Stalinist Tactics Deployed to Silence ECUSA Bishops in Court (UPDATED)
The following is an email received yesterday by resigned (retired) Bishop Edward Salmon and two other bishops from the Intake Officer for the Disciplinary Board for Bishops, the Rt. Rev. F. Clayton Matthews:
And now, your Curmudgeon must regrettably report yet one more instance of Johnson's First Law of Episcopal Thermodynamics: "Every joke you make about the Episcopal Organization eventually comes true." Word has come also that, as foreseen (satirically, alas) in this earlier post, the same kind of "charges" have been filed with the Disciplinary Board against the seven bishops who dared to sign an amicus brief addressed to the Texas Supreme Court in the Fort Worth litigation:
Since the amicus brief was filed against Chancellor Wells' official position in the Fort Worth litigation, it is not too much of a stretch to guess at who may have initiated the filing of these "charges" with the Disciplinary Board. {Curmudgeon's Side Note: If she did, she may have disciplinary charges of her own to face, before the Texas bar. Those more familiar with the Code of Professional Ethics for members of the bar there may comment on the details, but in California, at least, it is an ethical violation for a member of the bar to instigate criminal or disciplinary proceedings against an opponent in order to gain an advantage in a civil case. If she is the one at the bottom of these charges, then she certainly would be trying to gain an advantage from it. The same would be true of David Booth Beers and/or Mary Kostel at 815, only they would be held to standards of professional discipline under the Code in the District of Columbia.}
Needless to say, these "charges" should never make it past the Intake Officer. Why they require investigation "over the next few weeks" is beyond this canon law attorney. To be sure, Bishop Matthews is unable to dismiss the charges on his own if the Presiding Bishop objects to that dismissal. Canons IV.5.4 and IV.5.5 state in part as follows (note that in the case of charges against bishops, Canon IV.17.2 (c) provides that "Bishop Diocesan" shall mean the Presiding Bishop):
But just what does it mean to say that ECUSA is or is not "hierarchical"? In legal proceedings, such a statement is called a "conclusion of law", reached after an inquiry into all the relevant facts. Attorneys and judges differ all the time over conclusions of law, and so it is fair to say that what the law will conclude on a given set of facts is a matter of opinion. And that is why the bishops filed their various affidavits and brief: ECUSA had given its opinion to the judges in each case that it was "hierarchical," and the bishops simply wanted to give the contrary version of that opinion.
After all, it is for the judges ultimately to decide which view is more correct (or to modify their holding to yet another version, if they are so inclined). That is what judges are paid to do. So how can the Episcopal Church (USA) possibly charge someone with discipline for expressing an opinion? Such a right is guaranteed toeveryone in America by the First Amendment.
Well, if it is not opinion in the case of the Episcopal Church (USA), then is it a matter of Church doctrine? Is the polity of the Episcopal Church (USA) truly a "doctrinal" matter?
It does not matter if it were, because then the following provisions of Canon IV.17.7 would apply:
That takes us back to expressing a matter of opinion. One searches in vain through the new Title IV for any offense that consists of expressing an opinion at variance with the leadership of the Church. The loosest of all the provisions is for engaging in "conduct unbecoming a member of the clergy", and if it is "conduct unbecoming" to disagree with the position that ECUSA is hierarchical, then a considerable number of clergy in the Church would have to be charged.
The idea, of course, is ridiculous on its face. And that is why these "charges" against these bishops should never have made it past the Intake Officer in the very first place. He could have informed the Presiding Bishop that the charges, even if true, did not rise to the level of an offense under the Canons. And if the Presiding Bishop then did object to dismissing them, she herself might be charged under the provisions of Canon IV.3.1 (c):
Those who know the history of the Presiding Bishop's disregard for the canons will have no hesitation in answering that question.
[UPDATE 07/02/2012: The Anglican Communion Institute, whose clergy members also signed the Fort Worthamicus brief (but who have not, to their knowledge, been charged) has now weighed in on this sorry affair. The article is too long to summarize here, but is well worth your time, so go and read the whole thing. Also, Bishop Dan Martins provides his own personal perspective on why he signed the Fort Worth brief, and what it feels like to be the object of unspecified and vague charges.
The Midwest Conservative Journal also joins in the chorus of dismay, and has written about the proposed "litmus test" for new bishops as well. Meanwhile, the blogs on the Episcoleft content themselves with just the facts, ma'am, just the facts. Other than a mild remonstrance from the Rev. Canon Mark Harris, there arezero expressions of dismay from the Church's left wing.]
June 28, 2012I reported previously on how the Episcopal Church (USA) lost its motion for summary judgment in the Quincy litigation in this post. It appears (see below) that there are those in the Church who did not take kindly to the three bishops' role in that defeat.
The Rt Rev’d Edward L. Salmon, Jr.
The Rt Rev’d Peter H. Beckwith
The Rt Rev’d Bruce MacPherson
Dear Ed, Peter, and Bruce,
As the Intake Officer for the Church, I am obliged to inform you that a complaint has been received against you for your action in signing affidavits in opposition to a motion for Summary Judgment made by representatives of The Episcopal Diocese of Quincy and The Episcopal Church in the Fall of 2011 to secure the Diocesan financial assets from a breakaway group. In the next few weeks, I will initiate a disciplinary process according to Title IV Canon 6 Sec. 3 & 4 of the Constitution and Canons of the Episcopal Church.
Sincerely,
Clay
And now, your Curmudgeon must regrettably report yet one more instance of Johnson's First Law of Episcopal Thermodynamics: "Every joke you make about the Episcopal Organization eventually comes true." Word has come also that, as foreseen (satirically, alas) in this earlier post, the same kind of "charges" have been filed with the Disciplinary Board against the seven bishops who dared to sign an amicus brief addressed to the Texas Supreme Court in the Fort Worth litigation:
The Rt Rev’d Maurice M. BenitezWe also know, from postings on the HoBD list serve, that one of ECUSA's attorneys in the Fort Worth litigation, Kathleen Wells, Esq., who is the chancellor for the faux diocese of Fort Worth (and whose whole career is thus now devoted to working for and defending a legal fiction), has been agitating for a "litmus test" for all new bishops: determine whether or not they agree with 815's view of ECUSA as a total hierarchy, as it has been proclaiming in all its litigation.
The Rt Rev’d John W. Howe
The Rt Rev’d Paul E. Lambert
The Rt Rev’d William H. Love
The Rt Rev’d D. Bruce MacPherson
The Rt Rev’d Daniel H. Martins
The Rt Rev’d James M. Stanton
Dear Maurice, John, Paul, Bill, Bruce, Dan, and Jim,
As the Intake Officer for the Church, I am obliged to inform you that a complaint has been received against you for your action in filing of Amicus Curiae Brief in the pending appeal in the Supreme Court of Texas in opposition to The Episcopal Diocese of Texas and The Episcopal Church. In the next few weeks, I will initiate a disciplinary process according to Title IV Canon 6 Sec. 3 & 4 of the Constitution and Canons of e Episcopal Church.
Sincerely,
Clay
Since the amicus brief was filed against Chancellor Wells' official position in the Fort Worth litigation, it is not too much of a stretch to guess at who may have initiated the filing of these "charges" with the Disciplinary Board. {Curmudgeon's Side Note: If she did, she may have disciplinary charges of her own to face, before the Texas bar. Those more familiar with the Code of Professional Ethics for members of the bar there may comment on the details, but in California, at least, it is an ethical violation for a member of the bar to instigate criminal or disciplinary proceedings against an opponent in order to gain an advantage in a civil case. If she is the one at the bottom of these charges, then she certainly would be trying to gain an advantage from it. The same would be true of David Booth Beers and/or Mary Kostel at 815, only they would be held to standards of professional discipline under the Code in the District of Columbia.}
Needless to say, these "charges" should never make it past the Intake Officer. Why they require investigation "over the next few weeks" is beyond this canon law attorney. To be sure, Bishop Matthews is unable to dismiss the charges on his own if the Presiding Bishop objects to that dismissal. Canons IV.5.4 and IV.5.5 state in part as follows (note that in the case of charges against bishops, Canon IV.17.2 (c) provides that "Bishop Diocesan" shall mean the Presiding Bishop):
Sec. 4. Upon receipt of such information, the Intake Officer may make such preliminary investigation as he or she deems necessary, and shall incorporate the information into a written intake report, including as much specificity as possible. The Intake Officer shall provide copies of the intake report to the other members of the Reference Panel and to the Church Attorney.
Sec. 5. If the Intake Officer determines that the information, if true, would not constitute an Offense, the Intake Officer shall inform the Bishop Diocesan of an intention to dismiss the matter. If the Bishop Diocesan does not object, the Intake Officer shall dismiss the matter...Bishop Matthew's email does not notify the bishops that he is dismissing the charges. To the contrary: he states that he will "initiate a disciplinary process according to Title IV Canon 6 Sec. 3 & 4 ...". Those Canons spell out the offenses for which clergy may be charged, and would be irrelevant if the charges were being dismissed. Consequently, either Bishop Matthews wanted to dismiss the charges, but the Presiding Bishop objected; or else Bishop Matthews truly believes the charges may constitute an offense under the Church canons, and so he is proceeding with his investigation. (There would be no reason for him even to advise the bishops of the complaints if he did not think they presented actionable charges under the Canons.)
But just what does it mean to say that ECUSA is or is not "hierarchical"? In legal proceedings, such a statement is called a "conclusion of law", reached after an inquiry into all the relevant facts. Attorneys and judges differ all the time over conclusions of law, and so it is fair to say that what the law will conclude on a given set of facts is a matter of opinion. And that is why the bishops filed their various affidavits and brief: ECUSA had given its opinion to the judges in each case that it was "hierarchical," and the bishops simply wanted to give the contrary version of that opinion.
After all, it is for the judges ultimately to decide which view is more correct (or to modify their holding to yet another version, if they are so inclined). That is what judges are paid to do. So how can the Episcopal Church (USA) possibly charge someone with discipline for expressing an opinion? Such a right is guaranteed toeveryone in America by the First Amendment.
Well, if it is not opinion in the case of the Episcopal Church (USA), then is it a matter of Church doctrine? Is the polity of the Episcopal Church (USA) truly a "doctrinal" matter?
It does not matter if it were, because then the following provisions of Canon IV.17.7 would apply:
Notwithstanding any provision of this Title to the contrary, no proceeding shall be brought under this Title against a Bishop in which the Offense alleged is violation of Canon IV.4.1(h)(2) for holding and teaching, or having held and taught, publicly or privately, and advisedly, any Doctrine contrary to that held by the Church unless a statement of disassociation shall have first been issued by the House of Bishops as provided in Canon IV.17.7 (a) and thereafter the consent of one-third of the Bishops qualified to vote in the House of Bishops has been received to initiate proceedings under this Title as provided in Canon IV.17.7 (b).Needless to say, no such "statement of disassociation" has been issued by the House of Bishops. Thus Bishop Matthews cannot be treating the bishops' offense as a matter of advocating false doctrine.
That takes us back to expressing a matter of opinion. One searches in vain through the new Title IV for any offense that consists of expressing an opinion at variance with the leadership of the Church. The loosest of all the provisions is for engaging in "conduct unbecoming a member of the clergy", and if it is "conduct unbecoming" to disagree with the position that ECUSA is hierarchical, then a considerable number of clergy in the Church would have to be charged.
The idea, of course, is ridiculous on its face. And that is why these "charges" against these bishops should never have made it past the Intake Officer in the very first place. He could have informed the Presiding Bishop that the charges, even if true, did not rise to the level of an offense under the Canons. And if the Presiding Bishop then did object to dismissing them, she herself might be charged under the provisions of Canon IV.3.1 (c):
Sec. 1. A Member of the Clergy shall be subject to proceedings under this Title for: (c)intentionally and maliciously bringing a false accusation . . . in any investigation or proceeding under this Title.(Emphasis added.) These charges are certainly intentionally brought, because it takes, as noted above, the concurrence of the Presiding Bishop not to have dismissed them in the first instance. And are they "maliciously" brought as well?
Those who know the history of the Presiding Bishop's disregard for the canons will have no hesitation in answering that question.
[UPDATE 07/02/2012: The Anglican Communion Institute, whose clergy members also signed the Fort Worthamicus brief (but who have not, to their knowledge, been charged) has now weighed in on this sorry affair. The article is too long to summarize here, but is well worth your time, so go and read the whole thing. Also, Bishop Dan Martins provides his own personal perspective on why he signed the Fort Worth brief, and what it feels like to be the object of unspecified and vague charges.
The Midwest Conservative Journal also joins in the chorus of dismay, and has written about the proposed "litmus test" for new bishops as well. Meanwhile, the blogs on the Episcoleft content themselves with just the facts, ma'am, just the facts. Other than a mild remonstrance from the Rev. Canon Mark Harris, there arezero expressions of dismay from the Church's left wing.]
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