Sufficient legal grounds exist for presenting Presiding Bishop Katharine Jefferts Schori for ecclesiastical trial on 11 counts of violating the Constitution and Canons of The Episcopal Church, according to a legal memorandum that has begun circulating among members of the House of Bishops.
A copy of the April 21 document seen by a reporter representing The Living Church states Bishop Jefferts Schori demonstrated a “willful violation of the canons, an intention to repeat the violations, and a pattern of concealment and lack of candor” in her handling of the cases of bishops Robert W. Duncan, John-David Schofield and William Cox, and that she “subverted” the “fundamental polity” of The Episcopal Church in the matter of the Diocese of San Joaquin.
Prepared by an attorney on behalf of a consortium of bishops and church leaders seeking legal counsel over the canonical implications of the Presiding Bishop’s recent actions, it is unclear whether a critical mass of support will form behind the report’s recommendations for any action to be taken, persumably as a violation of the Presiding Bishop’s ordination vows. Title IV, Canon 3, Section 23a requires the consent of three bishops, or 10 or more priests, deacons and communicants “of whom at least two shall be priests. One priest and not less than six lay persons shall be of the diocese of which the respondent is canonically resident.” Victims of sexual misconduct and the Presiding Bishop also may bring charges before the Title IV [disciplinary] Review Committee. Title IV, Canon 3, Section 27 specifies that the Presiding Bishop appoints the five bishops to the Review Committee and the president of the House of Deputies appoints the two members of the clergy and two lay members. A spokeswoman said the Presiding Bishop was unable to respond to the charges as she had not yet seen the memorandum.
The Rev. Ephraim Radner, a member of the Anglican Covenant Design Group, said he found the matters addressed by the brief troubling. The lack of a common understanding of the church’s constitution and canons was “tearing apart our very episcopate and the credibility of our church’s ability to make formal decisions,” he said
The 7,000-word memorandum states it does not address issues of doctrine under Title 4, Canon 1, Section 1c, but limits its review to the “recent actions she has taken against bishops Cox, Schofield and Duncan and the Diocese of San Joaquin.”
The paper argues the Presiding Bishop “failed to seek the inhibition of Bishop Cox as required by [Title IV, Canon 9].” This failure was not a “technical issue that could be waived,” but was an “important procedural protection that is integral” to the use of the canon. Nor did she comply with the requirement that the bishop be given timely notice of the legal proceedings, as the Presiding Bishop withheld notice for seven months.
By not inhibiting Bishop Cox during the two-month period she gave him for denying the charges, the Presiding Bishop was also creating “new procedures” for deposing bishops. The 60-day notice to deny the charges applies only to an “inhibited bishop,” according to the memorandum. Bishop Jefferts Schori had made the same error in her treatment of Bishop Duncan, the document noted.
Bringing Bishop Cox before the House of Bishops without securing his inhibition first also violated Title IV, Canon 9, Section 2, the memorandum said, as “a bishop who has not been inhibited is not ‘liable to deposition’ under this canon.”
To suggest that the provision of Section 2 of the Canon: “Otherwise, it shall be the duty of the Presiding Bishop to present the matter to the House of Bishops at the next regular, or special meeting of the House,” was “nonsensical,” the paper argued for “if the ‘Otherwise’ sentence deals with uninhibited bishops such as Bishop Cox (and Duncan), there is no provision under which the Presiding Bishop is authorized to depose an inhibited bishop such as Bishop Schofield. No rule of legal interpretation permits such a nonsensical result.”
The Presiding Bishop’s deposition of Bishops Cox and Schofield was done without the “necessary consent” of the House of Bishops. “The conclusion that the requisite consent was not given is irrefutable” as the “plain meaning” of the words of the canon, as well as voting procedures detailed in other parts of the Constitution and Canons do not permit the interpretation interposed by the Presiding Bishop’s chancellor, the paper said
Concerning the Diocese of San Joaquin, the Presiding Bishop’s announcement that she did not recognize the “duly elected” diocesan standing committee violated Articles IV and II.3 of the church’s constitution and repudiated her duties under [Title I, Canon 2, Section 4(a)(3)] which permits her only to “consult” with the diocesan ecclesiastical authority in the event of an episcopal vacancy.
The appointment of “representatives and vicars” to act in San Joaquin violated Article II.3 of the church’s constitution, the document stated, while the convening of a special convention in San Joaquin and installation of Bishop Jerry Lamb as the provisional bishop violated Article II.3 and Title III, Canon 13.
“The violations with respect to Bishops Cox and Duncan, although willful and repeated, pertained primarily to individual bishops. The violations with respect to [San Joaquin] however, subvert the governance of an entire diocese and go to the heart of TEC’s polity as a ‘fellowship of duly constituted dioceses’ governed under Article II.3 by bishops who are not under a metropolitan or archbishop,” the legal memorandum concluded.
The procedural difficulties in bringing this matter to adjudication were formidable, the paper argued, as the “ability of the complainants to hold accountable the Presiding Bishop or another bishop thus ends at the [Title IV] Review Committee.”
The authors of the legal memorandum were not optimistic the current legal and political environment within the church would be conducive for a conviction. The Title IV committee could issue a presentment, it could decline to issue a presentment and “produce a rationale that is persuasive to most objective observers,” or it could “decline to issue a presentment on grounds that are not persuasive and serve only to discredit the Review Committee and the process as well as the respondent,” it said.
This third outcome is “highly likely,” the paper concluded, but it noted the effort should nonetheless be made to hold the institution “accountable.”
(The Rev.) George Conger
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11 Comments
Before you start speculating, you might want to read the letter from The Presiding Bishop to the House of Bishops. It provides excellent background information as well as making it clear that all was done in accordance with the C&C.
If one wants to remain in The Episcopal Church, then one does not indicate that one has left. Otherwise folks will presume one has indeed left. And if one leaves, then one needs to leave rather than continuing to sow discord just for the sake of discord.
Bruce Garner
I did read the letter to the House of Bishops and that wasn't clear to me at all. As I read her letter, Katharine Jefferts Schori essentially claimed that she didn't violate the canons because she and her chancellor believe that she didn't. Not that I think anything's going to come of this although it should if the Episcopal Church wants to maintain any credibility at all.
My guess is that those "church leaders" bringing these charges are not among those who are fully committed to the continuation and flourishing of the Episcopal Church.
The misbehavior and flaunting of our Constitution and Canons by bishops Duncan, Cox, Schofield and others is no secret -- Duncan and Schofield have relished in it. My second guess is that those bringing these charges are supportive of the reckless regard of our Constitution and Canons of those bishops.
I would love to see The Living Church get to the heart of this kind of story by using a headline like "Church Dissidentss Attempt to Knee-Cap the Episcopal Church."
It should be noted that the Presiding Bishop (in her recent letter) after her comments about inhibition stated the following:
"This understanding of the canon is held not only by my Chancellor, but also by members of the Title IV Review Committee including an attorney who is an original member of the Committee, the chancellors of several dioceses who have been consulted, and the former Chair of both the Standing Commission on the Constitution and Canons and the Legislative Committee on the Canons at the General Convention."
However, on the issue of the number of affirmative votes required to consent to a deposition, there is no such comment. The rationale given is that this is how we handled such situations previously. I doubt it will be handled that way again.
The issue is due process.
I haven't read the memo referenced in this article, but I have read the PB's letter and it is entirely unconvincing. Have you read the pertinent Canon (Title IV, Canon 9, Sec. 2)? The votes on +Cox and +Schofield are clearly in violation of the Canon and all the rationalizing in the world won't change that. The Canon plainly calls for a majority of all bishops entitled to vote because it should demand an extraordinarily high level of both participation and agreement among the bishops before deposition is imposed. By Bishop Schori's rationale, the threshold to depose a bishop is no higher than that required to change an agenda or issue a pastoral letter.
Isn't it pathetic that from leadership that prides itself on inclusivity, what we get is shortcuts to deposing bishops who don't toe the line?
Lord have mercy on us. Don't we have enough to worry about without all this fuss over ecclesiastical politics? Right now we have a world food crisis because many of us would rather convert food (corn) into fuel for our cars. The cost of rice and grains are rising exponentially -- and the poorest of the poor are suffering as a result of purposeful decisions being taken by the privileged and powerful while the rest of us do nothing -- or argue about matters which in heaven's eyes are trivial and unimportant. Just how how long we will keep slapping Jesus in the face? Christ have mercy on us. Matthew 23:23.
Michael A. Foughty,
St. Mark's Episcopal Church, Alexandria VA
Bruce,
The PB's letter doesn't correctly state the applicable C&C's articles. In particular, the passages about the required votes is inaccurate as is the process described to begin an inhibition.
Sowing discord is what TEC is doing by filing lawsuits against parishes all over the US.
Warren
"LA, LA, LA, LA, I CAN'T HEAR YOU!!" isn't an argument, Tom. The only regular, repeated and willful "misbehavior and flaunting of our Constitution and Canons" in the Episcopal Church these days is the work of the Presiding Bishop. So it's "kneecapping" the Episcopal Church to expect the Presiding Bishop to actually follow the Canons? Good to know. If you can't deal with the fact that Mrs. Schori thinks the Canons mean whatever she needs them to mean, then the Constitution and Canons of the Episcopal Church don't need to be followed by anybody.
Dear Mr. Garner (#1), As a person with only very limited training in narrow areas of law (mostly military law), but with a reasonable command of the English language and having some education involving logical analysis, I find that your statement that the PB's recent letter makes "it clear that all was done in accordance with the C&C" beggars belief. Having examined the canons in some detail, that analysis suggests that anyone who believes your quoted assertion is very likely unable to spell, correctly, either Consitution or Canons.
Blessings and regards
I find it curious that this "memo" fails to note that there is little doubt that those deposed are guilty of the charges. Remove the current PB and the next one deposes the Bishops. What is gained?
Regarding the memo; there's more than a few questionable statements in it. For instance, suggesting that a lack of an inhibition negates the charges certified by the Review Committee doesn't make a lot of sense. An inhibition is similar to a restraining order put in place while the accused awaits trial. The lack of such a restraining order does not invalidate the charges.
The Standing Committe of San Joaquin said not one word when the Convention voted to abandon TEC. One would think that those who still considered themselves as members of TEC would have objected in some manner, as from that point on they were functioning as members of the Southern Cone. By their silence, and by their meeting to do business as a diocese ofthe Southern Cone, they disqualified themselves from that office. I suppose the Presiding Bishop could have taken steps to depose them all. But, she decided to be gracious, and simply asked them to reaffirm their commitment to TEC. The Standing Committee could not even do that. Instead, they sent an angry letter that basically said "You're not the boss of me!" What possible conclusion can one come to except that those gentlemen had also abandoned the Church?
Regarding Canon IV.9.2, the novel reading of that Canon presented in this memo, and championed by a reporter for the Living Church, seems to ignore the history of that particular wording. For those who are interested, an analysis of that canon can be found here:
http://frjakestopstheworld.blogspot.com/2008/05/analysis-of-canon-iv92.html
Terry (10)
Seems we have inadvertently stumbled into the Queen's Croquet Ground and like Alice, diocesan bishops find that the Queen (++KJS) is crying "Off with heads."
Really now frjakestopstheworld as an impartial arbiter of the canons, we are definitely through the looking glass. Perhaps some will find this analysis by Philip Turner more apt:
http://anglicancommunioninstitute.com/content/view/140/1/
[Edited by The Living Church News Service staff.]