With Bishop Sauls' lengthy and considered review of the canonical irregularities in the cases of Bishops Cox and Schofield, we can now assume that the leadership of The Episcopal Church has made the best case that can be made in defense of these actions. But a review of Bishop Sauls' memorandum shows that one cannot defend the indefensible. His analysis studiously avoids addressing the controlling issues. He extols safeguards that were not followed in these very cases. His inexplicable misreading of the legislative history of Canon IV.9 points to yet further proof confirming the plain meaning of that canon. And inherent in his waiver argument is the admission that there was a legal right that was waived. After all arguments are made that can be made, it remains clear that a "majority of the whole number of Bishops entitled to vote" does indeed mean what it says: a majority of bishops with voting rights in the House of Bishops. The legislative history to which Bishop Sauls points demonstrates that the canon has always had this meaning, and it has never changed.
First, it must be noted that Bishop Sauls does not address at all the numerous other canonical violations of the Presiding Bishop in her handling of the matters involving Bishops Cox, Schofield and Duncan and the Diocese of San Joaquin. He assures us that Canon IV.9 contains procedural safeguards, but does not mention that Bishop Cox was denied those very safeguards. He points out that the Presiding Bishop must present the matter of certification of abandonment to the House of Bishops at its next meeting, but does not acknowledge that this was not done in the Cox case. He emphasizes the procedural protections afforded by the role of the three senior bishops, but does not acknowledge that they were never consulted about Bishop Cox. There is scant protection in procedural safeguards that are ignored.
Second, notwithstanding his scrutiny of the nineteenth century forerunners of Canon IV.9, Bishop Sauls does not address the fact that the language in the current canon is found elsewhere in TEC's current Constitution, in Article XII concerning constitutional amendments: such amendments are adopted by “a majority of all Bishops, excluding retired Bishops not present, of the whole number of Bishops entitled to vote in the House of Bishops.” It is absolutely clear in this provision that active bishops not present are counted for purposes of determining the required majority when the phrase “whole number of bishops entitled to vote” is used. Bishop Sauls never mentions this provision.
Similarly, he ignores clear language elsewhere in the canons that expresses precisely the meaning Bishop Sauls discerns in Canon IV.9. For example, Canon III.12.8(d), relating to the resignation of bishops, states: “The House during its session shall accept or refuse the resignation by a majority of those present.” When the canons mean a majority of those present, they use the precise parliamentary language, “a majority of those present.” Bishop Sauls never addresses this point. Instead, he would have us believe that the well-known parliamentary distinction between members “present” and those “present and voting” (involving how one counts abstentions) was made in Canon IV.9 not with the usual parliamentary language, which is actually used frequently in the canons, but with the phrase “whole number of bishops entitled to vote” that elsewhere clearly refers to absent bishops and all invited to attend. (Compare Canon III.12.8(d) (“majority of those present”) with Article I.6 (unless a vote by orders is required voting in the House of Deputies is by a majority of those “present and voting”).
Third, Bishop Sauls' survey of the history of the abandonment canon is puzzling because it simply disproves his interpretation. His whole argument turns on an inexplicable misreading of the prior language. He states:
“The 1904 amendment replaced the consent of the Members acting individually with the consent of the body itself....In changing who gives consent from the individual Members (1874) to the House itself (1904), a difference in how a majority is to be determined was presumably intended.”
But there was no change from consents by individual bishops to consent by the House of Bishops as he asserts, so the “presumption” Bishop Sauls makes is a presumption based on a demonstrably false premise. The abandonment canon always required consent by the House, not individual bishops. All of the previous versions of the canon, those of 1853, 1859 and 1874 refer to consent of the House of Bishops: “consent of the majority of members of the House of Bishops” (1853); “with the consent of the majority of the House of Bishops” (1859); and “with the consent of the whole number of bishops entitled at the time to seats in the House of Bishops” (1874). Thus, from its inception, the canon required consent of the House, not bishops acting independently. See Edwin Augustine White and Jackson A. Dykman, Annotated Constitution and Canons, vol. 2 (1981 ed.) at 1079-1082.
Moreover, when the Constitution and Canons mean bishops acting individually apart from the House of Bishops this is expressed precisely. In the example cited by Bishop Sauls, consents to episcopal elections, the language is clear: “the consent of a majority of the Bishops of this Church exercising jurisdiction.” When the canons mean the House of Bishops, as they did in the abandonment canons of 1853, 1859, 1874 and currently, they say “House of Bishops.” When they mean bishops acting individually, they say “bishops of this Church” or some similar formulation. Thus, Bishop Sauls' reading of the legislative history is flawed from the outset.
Any debate on this point was foreclosed by the case of Bishop Cummins, who was deposed in 1874 for leaving to form the Reformed Episcopal Church. He was initially deposed with the written consents of a majority of bishops without a meeting of the House of Bishops. When the unlawfulness of that action became apparent, the House of Bishops at the next General Convention gave its proper consent by a resolution proclaiming “the consent of a majority of the House of Bishops is hereby given....” Following the Convention and obtaining the required consent, the Presiding Bishop deposed Bishop Cummins (again), this time lawfully. See White & Dykman (1981 ed.) at 1081-82.
At the same Convention in 1874 that consented to the Cummins deposition, the canon was amended to make the procedure beyond question. As of 1874, the canon read:
“It shall be the duty of the Presiding Bishop to convene the House of Bishops, and if a majority of the whole number of Bishops entitled at the time to seats in the House of Bishops, shall at such meeting give their consent [the bishop would be deposed].
As White & Dykman note:
“In order to remove any doubt as to the necessity of a meeting of the House of Bishops, and to prevent a recurrence of any such question of doubt as in the case of Bishop Cummings (sic), this canon provided ... it should be the duty of the Presiding Bishop to convene the House of Bishops....” White & Dykman at 1082.
Thus, the purported change Bishop Sauls claims was made in 1904 was not a change at all, having always been the rule. For the avoidance of doubt, this rule was made explicit in any event no later than 1874, at which time it was also clear, as even Bishop Sauls acknowledges, that “whole number of Bishops” means all the bishops. Bishop Sauls' argument simply proceeds from a demonstrably false premise.
Indeed, his entire historical survey merely reinforces the irrefutable conclusion that the Presiding Bishop's interpretation of the canon in the current cases of Bishops Cox and Schofield is incorrect. As Bishop Sauls notes, prior to the adoption of the current language, the “whole number of Bishops entitled to vote,” in 1904, the canon read “the whole number of Bishops entitled at the time to seats in the House of Bishops.” When the canonical prohibition on suffragan bishops was repealed in 1904 and suffragans with a seat but no vote became a possibility, a corresponding change had to be made to the abandonment canon and “seat” was changed to “vote.” Since Bishop Sauls acknowledges that all bishops, whether present or absent, were included prior to this amendment, he concludes that “presumably” this simple change also excluded sub silentio bishops who were absent. He suggests that a profound change in the voting requirement was made implicitly while making a small conforming change in wording due to changes in another canon. No credible analysis of legislative history permits such a speculative inference. It is noteworthy that White & Dykman's sole commentary on this change (at page 1082) was simply this: “The former second paragraph was made Section 2 and was amended to read as at present.” Bishop Sauls' presumption is without warrant.
And if it is relevant at all, the deletion of the phrase “at the time” does not help Bishop Sauls because it removes a limiting condition on “entitled to vote.” If the qualifying phrase is not superfluous (as is likely), the simple, unqualified “entitled to vote” is broader, not narrower, than the qualified “entitled at the time to vote,” i.e., there are, if anything, more bishops, not fewer, included in the provision as amended. In sum, Bishop Sauls' resort to past language to avoid the clear meaning of the current language is to no avail. It is simply further proof that his interpretation is mistaken.
Fourth, Bishop Sauls again undercuts his own argument by citing Canon V.3, which reads in its entirety as follows:
Except where the Constitution or Canons of the General Convention provide to the contrary, a quorum of any body of the General Convention consisting of several members, the whole having been duly cited to meet, shall be a majority of said members, and a majority of the quorum shall be competent to act.
As this canon makes crystal clear, the “whole” is all who are cited to meet, not just those who are present. Bishop Sauls' only response is that “whole” means one thing when it is a noun, but something entirely different when it is an adjective. As this canon illustrates, the canons consistently use “whole” to mean all. But this point is so well established by now that this canon would hardly be worth citing in support had not Bishop Sauls raised it himself.
Fifth, Bishop Sauls raises once again the cases of Bishops Davies and Larrea, but offers no compelling reason to think they were handled correctly or any reason at all to think the bishops understood themselves to be interpreting the canon in the way Bishop Sauls proposes. Indeed, he acknowledges that “the minutes of both meetings leave much to be desired.” The more ancient case of Bishop Cummins is instructive here. When something is done wrong, it should be made right.
Finally, Bishop Sauls tellingly concludes by arguing that a waiver has occurred. The significance of this argument lies in the meaning of “waiver,” which is a well-defined term in legal usage: a waiver is an intentional relinquishment of a known legal right. Has there in fact been an intentional relinquishment of rights in the cases of Bishops Cox and Schofield? Bishop Sauls points to the lack of objection at the recent meeting of the House of Bishops as evidence for this waiver, but the minority of bishops present at the time these actions were considered had no rights to waive. Consent to depose was required of a majority of the whole number of bishops entitled to vote and that majority simply was not present. It was neither present to consent nor present to waive. Nor is there any evidence, certainly none was cited by Bishop Sauls, that any of the bishops, whether present or absent, were aware of the canonical defects they are alleged to have waived. There was no “intentional” relinquishment.
More importantly, however, the parties most prejudiced by the purported depositions were the bishops who were charged. Of these, Bishop Cox made a formal objection when made aware of the facts of his purported deposition and Bishop Schofield will be filing a formal answer in civil court. (It should also be noted that Bishop Duncan has denied the charges against him and expressly reserved all his rights and the Standing Committee in San Joaquin has publicly and repeatedly objected to the Presiding Bishop's actions in that diocese.) The notion that there has been an intentional relinquishment of rights by this conduct is patently false.
But the most profound issue underlying the waiver argument is the necessary legal implication of making it. A waiver is a relinquishment of a legal right. Put differently, the party giving the waiver is in the legal right and the party claiming the benefit of the waiver is in the legal wrong or otherwise not entitled to the action subject to the waiver. In other words, there can only be a waiver if Bishops Cox, et al., are right and the Presiding Bishop and Bishop Sauls are wrong. Claiming the benefit of a waiver is inconsistent with the position, never persuasively argued in any event, that the Presiding Bishop has followed the rules in these cases. Yet these actions remain the self-proclaimed pattern for further actions to come. It is the essence of bad faith simultaneously to plead waiver for past wrongs and pledge to continue in the wrongful course of conduct. On final analysis, the argument is simply “we've done it before, we did it this time, and we will do it again, right or wrong.”
Mr. McCall is a member of the New York bar and former partner, now retired, of a large, international law firm based in New York City. He practiced in his firm's New York, Washington and Paris offices and also worked extensively in London and The Hague, specializing in international litigation.
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