From The Living Church:
Posted on: April 30, 2008
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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