DO BISHOPS DESERVE DUE PROCESS?

Posted at the Anglican Communion Institute website:

By Mark McCall

On Friday the Presiding Bishop notified the House of Bishops that she would seek the
deposition of Bishop Duncan next week. This announcement was contrary to other public
statements by her office and the published agenda of the upcoming meeting. Any bishops
wishing to speak against this unprecedented use of summary procedures against a sitting bishop of the church were given five days notice. She also served notice that she intends to run roughshod over the canons in seeking to depose Bishop Duncan and that only a two-thirds vote of those present and voting will deter her. It will take two-thirds of the bishops present to overrule her gross misreading of the canons, but only a simple majority to remove without presentment or trial a diocesan bishop who even today is fulfilling his responsibilities as the bishop of Pittsburgh.

Is TEC still under the rule of law?

1. The process against Bishop Duncan has been flawed from the start.

The Presiding Bishop’s letter of September 12, 2008, to the bishops states that she made a submission to the Title IV Review Committee in November 2007 “suggesting” that Bp. Duncan had abandoned the communion of this Church. She states that the “thrust” of her submission was not that he had already left TEC, but that by claiming that the diocese had a right to do so and should exercise that right he had made an open renunciation of the discipline of TEC. She then states that the Review Committee “evidently” agreed with her analysis because it sent her a certification of abandonment.

The reason for the Presiding bishop’s uncertainty about what the Review Committee
concluded is that the Committee did not specify the basis for its certification, which is plainly contrary to the requirement of Canon IV.9 that the certification contain “a statement of the acts or declarations which show such abandonment.” The certification simply referred to voluminous evidence of news clippings and other materials dating back to 2003.

Taking a different approach, a memorandum from the Task Force on Property Disputes, dated September 5, 2008, claims that “Bishop Duncan has conclusively completed his own separation from TEC” and that “there is no doubt that Bishop Duncan has left The Episcopal Church.” (Emphasis supplied.) This submission relies on materials obtained in August 2008 in the civil lawsuit brought against Bp. Duncan, raising the question whether the purpose of that lawsuit was not to use the civil courts to assist in the deposition attempt. In six pages of highlighted documents from the lawsuit, the Task Force memorandum manages only to establish the unsurprising conclusion that Bishop Duncan proposed that the diocese amend its canons to permit re-alignment and supports passage of the canon amendments. And that conclusion is not made any more surprising by attaching the adverb “actively” to every bullet point. Note the inconsistency between the Task Force’s claim that Bp. Duncan “has conclusively completed his own separation” and the Presiding Bishop’s complaint that “Bishop Duncan has unfortunately
announced that he will not attend this meeting of the House.” And not even the Presiding Bishop knows where the Review Committee stands on this issue, but she assumes they “evidently” agree with her.

It is one thing for the Presiding Bishop to speculate as to what the basis of the Review Committee’s certification was, but another thing for the respondent to have to guess. The most basic element of due process is for the defendant to be informed of the charges against him. And it is plainly required by Canon IV.9. All Bp. Duncan could reasonably have discerned from the certification itself is that he said something sometime since 2003 that was considered an open renunciation. All that can be determined from the conflicting statements made now by those who seek to depose him is that they do not know whether he has already left or merely plans to leave or whether he should be at the meeting of the House or is already gone. This is hardly the manifestation of a well-ordered process.

The issue of whether a diocese can leave TEC can be argued at length, but it will serve neither the purposes of Bp. Duncan nor of those arguments to introduce them into this proceeding. Therefore, this section will conclude by simply noting three sets of questions. First, the expedited procedures of Canon IV.9 are being used to circumvent the procedural protections established in detail elsewhere in Title IV. Virtually any act on which a presentment could be issued could be considered an open renunciation of the doctrine, discipline or worship of the church. Does TEC want to abandon all notion of due process? Is it now the position of TEC that taking a controversial position on its canons is a renunciation of those canons? What about open communion or same-sex weddings? With this precedent, will taking a controversial position on doctrine likewise invoke the summary procedures of this canon in the future?

Second, the theory on which the Presiding Bishop is proceeding fails to recognize the
distinction so fundamental in well-ordered legal systems between actions, on the one hand, and opinions and statements, on the other. The law does recognize that some statements can be so definitive that they constitute a repudiation of a party’s contractual obligations. For TEC to embrace this principle, however, is likely to prove short-sighted because it will surely be used against TEC itself. For example, has TEC renounced the principles expressed in the preamble to its own constitution?

Third, establishing the precedent that a sitting diocesan bishop of the church, whose ministry has not been inhibited in any way and who is even now performing his episcopal and sacramental duties, can be deposed for abandoning “the communion of this Church” demonstrates that TEC’s understanding of what constitutes its communion is so deeply flawed as to be totally incoherent.

The Task Force memorandum states that “even if he has joined a Church in communion with this Church, it alters not the least that he has abandoned the communion of ‘this Church’.” Is this the self-understanding of communion, so foundational that it is invoked in the preamble to the constitution, that TEC wants to exhibit to the wider communion and the world?


For the rest of this essay go to: http://anglicancommunioninstitute.com/wp-content/uploads/2008/09/do_bishops_deserve_due_process.pdf