Bumped:  Let’s Get to the Procedural Bottom of This

Greg,
  Not that I qualify but a quote of the relevent Canons would help those reading along a bunch.

Thanks,
Rocks

As an amateur sometime parliamentarian, I’ll have a go. This was not a trial with an analogy of double-jeopardy. If this vote did not achieve the canonical level of a majority of those entitled to vote (calculated from all bishops entitled to vote, not just those present), then I believe another vote can be taken at the next “session” of the body.

CANON 4: Of Vacancies on Canonical Bodies
Sec. 1 (a) Except where the Constitution or Canons of the General Convention provide to the contrary, the term of a member in any body of the General Convention consisting of several members shall
become vacant as follows:
...
(4) upon the certification to the Presiding Bishop by the Advisory Committee as to the abandonment of the communion of this Church by a Bishop pursuant to Canon IV.9;

This seems to say the Advisory Committee must certify the abandonment for a see to be declared vacant. Does this mean they have to vouch for the vote, etc. before KJS can proceed with the new diocese?

If I may, I’d like to pose a question that seems to be at the procedural bottom of this.

Title IV Canon 9 Sec. 2 ends with the words, “the Presiding Bishop shall depose the Bishop from the Ministry, and pronounce and record in the presence of two or more Bishops that the Bishop has been so deposed.” My question is, whether legitimate or not, has this occurred? I suspect that it has.

If the PB has purported to depose the Bishop(s), under what process or canon can the question of whether she was entitled to do so even be tried? If she says they’re deposed, and the institution at 815 says they’re deposed, is there even any way to dispute this in any meaningful way? Is there anything to stop her from acting as an autocrat (other than civil lawsuits or bringing charges against her)?

If it turns out that the simple numbers show the vote was unconstitutional, then any subsequent pronouncements are also unconstitutional and null and void.

And Rocks: I think “Canonical Bodies” include things like Court for the Trial of a Bishop. Membership in the HOB is a different breed of cat. The PB can’t declare a See vacant with just the findings of the Title IV group. This is what this whole snafu we are arguing is about.

Well, not to attempt to answer my own question, but perhaps I can add a bit to help folks along on this.  I know under Robert’s Rules of Order Newly Revised (RONR), the PB is not able to use a motion to reconsider, since that would have to have been made at the just-finished meeting by a member of the prevailing side—one of those bishops who voted no.  Presumably that did not happen.  Likewise, she can’t avail herself of the motions to rescind or amend a motion previously adopted, as no main motion was adopted—it failed.  That leaves her under Robert’s with simply renewing the matter at the next session, i.e., bringing it up again, when it would then be treated as a new motion.  But here is where there are several questions.  Under the canons, to get to that point there is an entire procedure which presumably should be followed again, from start to finish—else bishops could vote again and again and again and forever keep a deposition hanging over someone’s head, even though the bishop had enjoyed the functional equivalent of an acquittal.  Though this is not plain in the canons, the analogous action in the trial of a bishop is dismissal.  So reason and fairness would suggest that to go after these bishops again for Abandonment, the Presiding Bishop would have to again (or in the case of Bishop Cox, for the first time) again seek consents and so forth.  Furthermore, as the canon states that it is her duty to bring it up at the NEXT regular or special meeting of the HOB, then presumably doing so again at the session after that is considered outside of her duty, as it is defined, thus requiring a restart of the procedure so she will be able to bring it up at a “next” session.

Of course none of this should even be in play, since this was an abuse of this canon to begin with, and the use of this canon was, like not reading it, reflective of the Presiding Bishop’s trying with great haste to run roughshod over the rights of those accused.

#5, Mr. Workman, I agree. As a lawyer, and a former member of a Canons Committee (who helped write the Canons for a new diocese, WTN), I opine that the depositions are a nullity. Now, one or both Bishops have resigned from the HOB. I will think and worry tonight how and if that affects the situation.

But what practical difference does it make that her deposition of bishops is “null and void”? If the PB pronounces and records in the presence of two or more Bishops that the Bishops have been deposed, I would guess that all we can do is ask the PB to admit she was not entitled to do that. If that doesn’t happen, I would guess that 815 will consider these bishops deposed. Are we hoping that the HOB or +Rowan will declare the PB’s actions null and void?

The position of the Presiding Bishop was that Bishop Schofield’s resignation was not effective, because it had not been accepted by the House of Bishops.  Because she was so hellbent on deposing him, the issue of whether to accept his resignation never came up, and his resignation therefore was not accepted.  So she’s stuck now with his not being deposed (as you said, it is a nullity), and with his resignation not being considered effective.  She was hoist by her own petard (an expression with more relevance after her Easter message.)

BTW, I got off the HOBD listserv about Christmastime. I figured I had about enough of those “gifts”

My last post (#9) was in reply to #7.  This one is in reply to justin (#8).

The difference it makes at the end of the day is that if she attempts to claim in court that Bishop Schofield is not the Bishop of the San Joaquin diocese, and that he has no authority or responsibility any longer (as she must) the issue of whether he is or is not the bishop will be at issue.  And no court will let her get away with arguing that a vote plainly insufficient under the canons was sufficient.  And 815’s credibility will if she tries to do that be horrendously undermined in every part of the case as a result.  It is a most unenviable position to be in.  There is also the potential for civil liability if in fact the organization breaks its own rules (the essence of being arbitrary and capricious) and causes damage to someone as a result.  There was some stupendously bad lawyering going on here.

The full sense of the acronym ‘SNAFU’ must surely apply here.  Assuming that the Living Church story is essentially accurate, I think four conclusions may reasonably be drawn:
1.  Bishop Schofield still remains the ordinary, according to TEC’s canons, since the vote invoking Canon IV.9.2 was not in order.
2.  He is unable to renounce (nor may the P.B. interpret his resignation letter as a tacit renunciation) because of the inhibition that was already in place (Canon III.12.7b).
3.  The proposed special convention called for March 29, for the purpose of electing a provisional bishop, would be illegal, given that the see is not vacant.
4.  The only way forward for the Presiding Bishop and the House of Bishops would be to convene again to vote on the deposition.  This would be the proverbial broken hangman’s rope: haul the condemned man back up on the gallows for another try.  Cruel and unusual punishment and categorically unChristian behavior.

The other legal issue is that of following the procedure required by Canon IV.9.  There are “gates” that must be passed through to get to depostion of a bishop and one of these, following the Review Committee’s concluding that there are grounds for the deposition, is that the PB must get the consent of all three of the senior bishops with jurisdiction.  The language of the Canon is unambiguous on this.  The following language from TLC makes it clear that that did not happen in the case of Bishop Cox:

One of the three senior bishops with jurisdiction confirmed to The Living Church that his consent to inhibit Bishop Cox was never sought.

Although there are other matters mentioned (e.g. speedy trial), the lack of consents is enough to make his supposed deposition a nullity.  I’ve not seen anything that makes clear whether any similar deficiency occurred re lack of consent in the case of Bishop Schofield, but it seems absolutely clear in the case of +Cox.  Thus there is no need to even get into questions of quorum and sufficient votes in his case.

Thanks RomeAnglican; very good points. I couldn’t imagine anyone suing TEC to prove that the depositions were invalid, but the notion of it being a hindrance to TEC’s goal of asset acquisition through their own litigation makes the question more relevant.

The interesting thing is, no one is really arguing that Bishop Schofield is a member of the HOB. But TEC would presumably have to argue that he’s not the Bishop of the Diocese of SJ because he was deposed, which now has this cloud over it. Imagine if the PB decides to admit the deposition failed, and then asks the HOB to approve his resignation, as a way to be canonically rid of him and to make it easier to sue for the diocesan assets. You know the drill: “the bishop can resign, but he can’t take the diocese.”

Here is my summary of whether the purported depositions were canonical.

First thing that needs to be done is to set out the applicable sections of TEC’s canons and constitution.  They are Article 1(2) of the Constitution, Canon I.2.4(4), Canon III.12.8(d), and Canon IV.9.  We need to set out the canonical requirements, then determine whether they have been met.

Section 1 of IV.9 states that once the three senior bishops have given consent, the Presiding Bishop shall inhibit the bishop in question “…until such time as the House of Bishops shall investigate the matter and act thereon.”  This would suggest that for the purposes of the inhibition, the House of Bishops have one chance to “act thereon”.  Section 2 discusses the requirements for the actual deposition.  If the inhibited bishop does not recant, “…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. If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent, the Presiding Bishop shall depose the Bishop from the Ministry”.  This canon appears to give the Presiding Bishop one shot at winning consent for that particular process.  Either the House of Bishops consents or it does not.  If it does not, then the process for the deposition expires.  There is nothing in the canons that I can see that forbids a second charge for the same offence, so presumably, the Presiding Bishop could return to the Review Committee to request a newly certified charge.

Section 2 of IV.9 also sets forth what constitutes consent by the House of Bishops.  Specifically it declares that the consent must be “…by a majority of the whole number of Bishops entitled to vote.”  The question is what this means.  Some have suggested that it means simply a majority of bishops at the meeting in question.  However, Canon III.12.8(d) makes clear what language is employed when a simple majority of those present is required, and that language is “by a majority of those present.”  Article 1(2) of the Constitution specifies what “the whole number of Bishops entitled to vote” means when it states

Each Bishop of this Church having jurisdiction, every Bishop Coadjutor, every Suffragan Bishop, every Assistant Bishop, and every Bishop who by reason of advanced age or bodily infirmity, or who, under an election to an office created by the General Convention, or for reasons of mission strategy determined by action of the General Convention or the House of Bishops, has resigned a jurisdiction, shall have a seat and a vote in the House of Bishops.

Article 1(2) also specifies the quorum necessary for House of Bishops meetings as “[a] majority of all Bishops entitled to vote, exclusive of Bishops who have resigned their jurisdiction or positions, shall be necessary to constitute a quorum for the transaction of business.”

Thus it seems to me that we need to discern 4 specific numbers.

Value “a” equals the total number of “each Bishop of this Church having jurisdiction, every Bishop Coadjutor, every Suffragan Bishop, every Assistant Bishop, and every Bishop who by reason of advanced age or bodily infirmity, or who, under an election to an office created by the General Convention, or for reasons of mission strategy determined by action of the General Convention or the House of Bishops, has resigned a jurisdiction.”

Value “b” equals the number of “Bishops who have resigned their jurisdiction or positions”.

Value “c” equals the total number of votes at the current House of Bishops meeting that consented to the depositions of Schofield and Cox.

Value “d” equals the total number of bishops present who would be included under value “a” but not under “b”.

The first question to be determined would be whether a quorum was reached at this House of Bishops meeting.  We would determine this by asking whether Value “d” was greater then 50% of (Value “a” minus Value “b”) + 1.  If this is false, then there was no quorum and the vote for deposition was null and void, but it could be retried (since there would have been no valid House of Bishops meeting).  If this is true, then unless the consents were given, the attempt to depose Cox and Schofield would have failed.

The second question, then is whether the necessary number of consents were given?  We would determine this by asking whether Value “c” was greater then 50% of Value “a” + 1.

If the answer to the first question is in the affirmative, and the answer to the second question is in the affirmative, then a valid deposition has taken place.  If the answer to the first question is in the affirmative, but the answer to the second question in the negative, then the attempt to depose Cox and Schofield has failed, and any attempt to depose them again would need to begin at square one.

The Living Church story does not provide sufficient information, stating only that 294 bishops were eligible to vote (presumably Value “a” above) but that only 131 actually registered.  It would appear that it is very likely that a quorum was achieved, given that only a majority of non-retired bishops is required for a quorum.  According to Louie Crew’s website, there are currently 144 retired or resigned members of the House of Bishops.  If this is true, and the Living Church number of 294 is correct, then the presence of 76 non-retired/non-resigned bishops at the current House of Bishops meeting would have constituted a quorum.  In other words if 55 or fewer retired/resigned bishop attended, then quorum was achieved.

However, assuming the 294 number is correct, it would take 148 votes of consent for a valid deposition.  This number was clearly NOT achieved if the Living Church’s figure of 131 attendees is correct.

There is a presumption that the deposition failed to achieve the necessary consents and thus was null and void.  Does anyone have access to the hard numbers?

And here’s a question - what is being debated here is a question of procedure, and has absolutely nothing to do with religious doctrine or theology.  Mark and other lawyers - would a court be able to “pierce the ecclesiastical veil” in a situation like this if the ecclesiastical body was in clear and blatant violation of its own procedural rules such that this violation resulted in the blatant abuse of the due process rights of the individual which the ecclesiastical body is suing???

I mean sure, the courts wouldn’t touch the question of whether Schofield has or has not “abandoned communion”.  But when the canons say x number of bishops must vote to depose, but less then x number of bishops was even at the meeting, that has nothing to do with religion and everything to do with procedural fairness.

I fear the HOB operates in session in ways that are not outlined by the Canons.  That’s the only way I can explain the fog that we have seen at the last 3 meetings.  There has been an acceptance of decisions made that do not fit any other scenario.  Does anyone know of separate operating procedures or norms for the HOB legislative sessions?

Here’s what I posted as a comment at T1:9 right after the latest ENS release has Beers justifying the vote.  I’m putting it here because it fits nicely with my comment above (17) :

Here is the first line of defense—“TLC got it wrong” (he used the word erroneous).  What they did not get wrong in any case is the voting anomaly.  The second line of defense is, to paraphrase,  “We sometimes do things differently, just because it is expedient for us to do so.”  There it is.  Neither defense is working.

This need for expediency is part of the behind the scenes norms for voting that routinely overlooks Canonical defined procedure.  There’s got to be more, but this is a start.

RGEaton

Rob:  I have seen non-church organizations with very similar characteristics to TEC.  I mean organizations in which the leadership has isolated itself from the real world, surrounded itself with sycophants, regarded all voices challenging the official viewpoint as troublemakers, and in response to clear signs of failure, has only entrenched itself further in its fantasy world.

In these situations, the leadership has become so detached from reality that it begins to act in ways that are breathtakingly arrogant and authoritarian and which seem patently ridiculous to neutral observers.  I think that TEC has become just such an institution.

I have no doubt that with the minimum effort, KJS could have rounded up the necessary votes to canonically depose Schofield.  But she didn’t.  Because she and the HoB are so out of touch with reality and so into their wierd fantasy world, that they don’t think they need to follow the rules.  I have seen the exact same dynamics in other organizations.  It is very hard to understand unless you have seen it operate elsewhere.

jamesw (#15), I think you’re spot on.  I think the word “until” is vitally important, as you note.  The House did investigate and did act, and so not only is there no deposition, there is now no inhibition.  Both bishops are in fully restored.  I think going back for a second vote is quite nasty and un-Christian and all that, but I’m not sure it’s precluded.  I think the word “until” though does suggest strongly that she has to start the entire procedure all over again in both cases.

justin (#14), I agree that the easiest thing now with respect to Bishop Schofield is to accept his resignation.  That might strengthen their hand in keeping him away from Lambeth and might make it easier for their extra-canonical putsch in the diocese (remember the throwing over of the Standing Committee was certainly illicit).  But they really can’t do that, for the same reason they didn’t accept it in the first place.  They very much need, in his case for legal purposes and for deterrent purposes, to declare that he is a renegade, and that he abandoned the Communion of this church.  (Even though each time they do this they are in fact declaring themselves out of communion with the province to where these bishops are going—which is really dumb and short-sighted).  Because right now they can’t in court say that he had abandoned the church—the House of Bishops has declared he did not!

Just read DBB’s statement.  This is one sorry lawyer.  He must know that this would not hold up in court—and this is a matter well within a court’s purview to review.  There is no Registered or Certified Parliamentarian anywhere that would support this reading.  There may be a quorum for general business, but that does not vitiate the requirement for the super-majority required for this matter.  The man is either a fool, or thinks everyone else is a fool.  There are analogs aplenty for this sort of situation, where general quorums are not sufficient for votes to amend bylaws, the constitution, etc., under an organization’s rules.  He also ignores totally the word “whole” which plainly means the universe outside the meeting room.  The ruling of the parliamentarian (who, by the way does not “rule” on anything, but advises the chair) does not change anything: the vote is a nullity. 

One useful bit from his inane statement, though, is the admission that the vote has to take place at a meeting. 

The Living Church should expose him for what a fool he is.

jamesw #16,

In reply to your question, my opinion (guess) is tht no court will review the legality of this decision for many reasons, not the least of which is that the two bishops, having resigned, will never seek such review, nor should they.  However, and this is important, the purpose behind this deposition is to install Lamb as new bishop and sue Schofield in California state courts.  Any good lawyer will undoubtedly point out that this deposition was invalid under ECUSA’s own rules and the court will readily see that ECUSA is a rogue outfit to which no deference should be paid.  So, although the issue is not directly reviewable in court, it will be highly prejudicial in the property litigation.  I suspect 815 would rather have Schofield back than lose that lawsuit, but they made this bed.

ps

Your analysis, here and at T19, is compelling.  DC’s was also very persuasive.

“I have seen the exact same dynamics in other organizations.  It is very hard to understand unless you have seen it operate elsewhere.”

Actually, I think it is the second law of thermodynamics in action.  We could just wait it out if there weren’t careers and souls in jeopardy.

Jamesw (#15), in your excellent analysis you just touched on the “three senior bishops with jurisdiction” consent requirement.  I assume you are in agreement with what I wrote (#13) that in the case of Bishop Cox, the failure to apparently even ask for the consents of the at least one of the three senior bishops means that questions of quorums and votes never arise.  If all three did not give their consent to the PB, then he could not be inhibited and thus can’t be deposed.  The PB simply never passed that gate in Canon IV.9.1.

D.C. Toedt, who is definitely on the reappraiser side but whom I definitely respect (more and more) states in response to a posting by Brian at Titus:

I certainly wish +Schofield’s deposition had been effective, but the facts in evidence seem to indicate otherwise.

If I were representing +Schofield, I would argue that the canon in question treats deposition for abandonment as a very serious matter, so much so that:

(1) the canon requires deposition to be considered at a full-blown meeting — where it can be discussed in congress by a quorum of bishops, so that each bishop voting will have had the benefit of hearing what his or her fellow bishops had to say — and not just in limited off-line discussions followed by mail-in consents; and

(2) the canon requires the deposition to be approved by a majority of all voting members of the House of Bishops, not just by a majority or even a supermajority of “those present and attending,” which is what the canons provide for other situations.

I hate to say it, but IMHO Mr. Beers’ purported justification of the deposition vote doesn’t come close to being persuasive. The canon in question may be overly restrictive, but until it’s duly changed, that’s the way it is.

Robroy, those are very good and important points.  I would add to that the earlier requirement that the three senior bishops with jurisdiction all consent to moving forward before the PB can inhibit a bishop.  All of this is clearly designed to put some very substantial gates in the path of deposition.  This was likely done because there is no right to a trial in this canon.  Beers argument is pathetic—it’s pretty obvious he knows he’s wrong and I guess never expected to have it exposed as was done by the TLC article.

My, how the world can change when one is away for just 24 hours!  I have read all the posts here and at T19, and I will try to add some perspective from another chancellor’s view.  A little history may be helpful here.  From White and Dykman (1981 ed.), Vol. II, pp. 1079-80 (with emphases added):

The first canonical enactment on the subject of the “Abandonment of the Communion of the Church by a Bishop” was Canon 1 of 1853, which read as follows:
<blockquote> In all cases where a Bishop, Presbyter or Deacon of this Church . . . has abandoned her Communion . . . either by an open renunciation of the Doctrine, Discipline and Worship of this Church, or by a formal admission into any religious body not in Communion with the same: such Bishop, Presbyter or Deacon . . . shall thereupon be pronounced deposed; . . . and if a Bishop, by the Presiding Bishop, with the consent of the majority of the Members of the House of Bishops . . . .

This canon was enacted to meet the case of Bishop Ives of North Carolina, who, on December 22, 1852, renounced the communion of the Protestant Episcopal Church and submitted himself to the authority of the Church of Rome.  No canon on this subject had before been enacted, as there had been no need thereof . . . .

It was recognized that the canon, hastily enacted to meet an emergency, was far from perfect . . . .  In the revision of the canons by [the] Convention [of 1859], Canon 1 of 1853 was made Title II, Canon 8, and amended to read as follows:

If any Bishop . . . abandon the Communion of this Church, either by an open renunciation of the doctrine, discipline, and worship of this Church, or by formal admission into any religious body not in communion with the same, it shall be the duty of the Standing Committee of the Diocese to make certificate of the fact to the Senior Bishop . . .
Notice shall then be given to said Bishop . . . that unless he shall, within six months, make declaration that the facts alleged in said certificate are false, he will be deposed from the Ministry of this Church.
And if said declaration be not made within six months as aforesaid, it shall be the duty of the Senior Bishop with the consent of the majority of the House of Bishops, to depose from the Ministry the Bishop so certified as abandoning . . . .

</blockquote>

It has thus been the case ever since the first version of the “abandonment” canon was adopted that a majority of the House of Bishops was required to consent to the deposition of a Bishop.  This post is long enough now, and I will follow it up with another that traces the later language down to its present form.

Continuing with the history of the Abandonment Canon from White and Dykman (1981 ed.), Vol. II, pp. 1080-82 (with emphases added):

[The] Convention [of 1874], confronted by the renunciation of the communion of the Church by another bishop, and realizing certain defects in the canon, amended Title II, Canon 8, to read as follows:
<blockquote> If any Bishop . . . abandon the Communion of this Church, either by an open renunciation of the doctrine, discipline, and worship of this Church, or by a formal admission into any religious body not in communion with the same, or otherwise, it shall be the duty of the Standing Committee of the Diocese of said Bishop to make certificate of the fact to the Presiding Bishop . . .; and the Presiding Bishop with the consent of the three Bishops next in seniority, shall then suspend said Bishop from the exercise of his office and Ministry until such time as the House of Bishops shall consent or refuse to consent to his deposition . . .
Notice shall then be given to said Bishop . . . that unless he shall, within six months, make declaration that the facts alleged in said certificate are false, and shall demand a trial, he will be deposed from the Ministry.  And if such declaration be not made within six months, . . . 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 said Presiding Bishop . . . shall proceed to depose from the Ministry the Bishop so certified as abandoning . . .

On November 10, 1873, Bishop Cummings, Assistant Bishop of Kentucky, addressed a letter to the Presiding Bishop, declaring his renunciation of the ministry of this Church.  The Presiding Bishop, without calling a meeting of the House of Bishops, obtained the written consent of a majority of the bishops entitled to seats in the House of Bishops, and then proceeded to depose the said Bishop Cummings on June 24, 1874, and pronounced and recorded said deposition in the presence of two bishops.  It was questioned whether the consent of the bishops so obtained was regular . . .
In order to remove any doubt as to the canonical deposition of Bishop Cummings, when the House met in General Convention a few months later, [a resolution was passed] by that house [consenting to, ratifying and confirming the deposition] . . . </blockquote>

Thus the changes made by the 1874 Convention were to remedy the defects in the previous version of 1859 (quoted in my previous post) that were shown up by the case of Bishop Cummings.

The sequence of abandonment—-certification—-suspension (inhibition)—-period to deny abandonment—-convening House of Bishops to vote on deposition if no denial, has been followed in the changes to this canon made ever since.  Moreover, the requirement for a full majority of those entitled to vote in the House of Bishops to consent to the deposition before it can take effect has been maintained consistently since the first version of the canon was enacted in 1853.  In 1904, the 1874 language was changed from “a majority of the whole number of Bishops entitled at the time to seats in the House of Bishops” to read as it does at present: “a majority of of the whole number of Bishops entitled to vote”, and has remained the same ever since.

Thus David Booth Beers is all wet.  An historical analysis of the canons easily puts to rest the meaning of the phrase “a majority of the whole number of Bishops entitled to vote”: it means a majority of all the Bishops then having seats in the House and entitled to vote on matters coming before it.  It has meant that ever since the first version of the canon was adopted in 1853.

Chancellor,

Thank you.  That was very helpful.

One other point in response to a questions raised by others: why was no objection made during the meeting?  I don’t pretend to know why, but it is good that there was none.  The reason is that Rule XV of the Rules of Order of the House of Bishops provides:

“All questions of order shall be decided by the Chair without debate, but appeal may be taken from such decision. The decision of the Chair shall stand unless overruled by a two-thirds vote of those present and voting. On such appeal, no member shall speak more than once without express leave of the House.

And Rule XVII says:

“A Question being once determined shall stand as the judgment of the House, and shall not be again drawn into debate during the same session of the House, except with the consent of a two-thirds vote of those present and voting. A motion to reconsider can be made only on the day the vote was taken, or on the next succeeding legislative day, and must be made and seconded by those who voted with the majority.”

So you can see what would have happened had the point been raised.  Since it was not raised, however, no ruling by the Chair was made, and there was no definitive decision made on the interpretation of the canon.  (After the fact doesn’t count, unless it is in a court of law having jurisdiction of the question.)  TEC and its Chancellor are stuck with the nullity they allowed to happen.

Hanks - yes, I agree with you on the necessity to have the three senior bishops agree to inhibit before the PB has grounds to press towards a deposition.  I made this point (I believe using White and Dykman) when the situation with Duncan arose a couple of months back.

Mark - yeah, I was thinking more in terms of what you suggest - not a direct reversal stemming from a specific secular lawsuit for that purpose, but rather examining the question in the context of a TEC lawsuit against Schofield.  This will also help, I think, in any lawsuits which may be launched against Duncan also, as it would strengthen the argument that TEC does not follow proper canonical procedure.

Of course the problem with all of this speculation is that none of us are the proper parties to object to the recent travesty.

Bishops Cox and Schofield are the ones who can raise a fuss about it, but I do not think that they will.

The whole thing is yet another black eye for the institution that is the Episcopal Church.

I have finally reached my plateau

<blockquote.  Thus David Booth Beers is all wet.  </blockquote>

Chancellor, thanks much for that historical analysis—it’s always good to look at legislative history to understand usage, meaning and intent.  In the present situation, it is absolutely clear and DBB’s feeble attempt to save face for the PB has zero credibility.

Whatever happens with +Schofield and +Cox, the very good news for +Duncan and others who KJS has in her gunsight is that these violations of the canons have come under very bright lights.  The HOB will not be able to ignore Holy Polity unless they are complete toadies and willing to let TEC turn into a full dictatorship, led by KJS. 

It would be great to see one or more of the orthodox bishops go public on this very important issue of fairness and due process—and just plain deceit by 815 in handling this mess.

“Article 1(2) also specifies the quorum necessary for House of Bishops meetings as “[a] majority of all Bishops entitled to vote, exclusive of Bishops who have resigned their jurisdiction or positions, shall be necessary to constitute a quorum for the transaction of business.”

How many of the 131 present minus the 15 who left were retired?  Does anyone have a list of those attending?  Perhaps there wasn’t even a quorum to begin with according to the canon.

Wow great stuff, especially you Chancellor. I would say Beers explanation is all wet and so is Jake’s weak defense trying to use “All the members” when it’s clear that refers only to the Review Committee. The key word is “whole” of course. The only reason to use such a term is to be clear to set it off for special meaning, as in the Whole HOB. Why would anyone say “whole” means only those present? Is there a case where the chair would could allow only part of those present to vote? No there isn’t.

I hope KJS is dumb enough to get Lamb elected and then sue for property. +Schofield can then just obtain a ruling that he hasn’t been validly deposed nor has his resignation accepted. Since he would still technically be Bishop of the TEC Diocese of SJ and can’t legally sue himself the judge can just chuck the case out.

Honestly, if even reappraisors can’t see what a terrible precedent this would be if it stands, even for their own agenda, then they are hopeless. This would literally hand power of the HOB to any block of 60 odd active Bishops in a body of nearly 300. It’s madness.

Rocks, see the comment by the reappraiser D.C. Toedt above but D.C. also wrote:

There’s an old legal maxim of statutory construction whose name I forget, but it’s essentially a species of the argument from silence: If a legislature used particular express language elsewhere in the document, it weighs against reading another phrase in the document to implicitly mean the same thing. The reasoning is that the legislators knew how to use the express phrase when they wanted to do so, therefore their failure to use it is significant.

The writers of the canon law wrote *majority of those eligible to vote* specifically in this part of the canon but not others. As D.C. points out, this carries legal weight and Jake can’t fudge it away.

There is some interesting discussion at Hills of the North and at Billy Ockham’s (our own mousetalker) on free advice to DBB. See here.

#37 Dr Dr Rob Roy
Mousetalker’s piece is interesting - in England if a lawyer and his firm became aware that their client could have a case against them for wrong or negligent advice then professionally they must immediately:-
1. advise their client that they can no longer advise on the matter and that the client should seek independent legal advice; and
2. advise their professional indemnity insurers of a potential claim and allow their insurers to take control of the claim.
Failure to do so will be a professional breach for which a lawyer could be struck off and the insurers void cover.

I wonder what provisions apply in the US.

Isn’t KJS just acting like the Queen in “Alice in Wonderland” who ran around and shouted “Off with his head!”  She is spring loaded to not tolerate any lack of obesience by underlings. IMHO

I agree with those interpreting the canon to mean what it plainly states—a majority of the whole number of bishops entitled to vote.  Nowhere can anyone, including Beers, find a reason that “entitled to vote” = “those present.”  And it’s elementary law that you don’t go adding words (”present and entitled to vote”).

Unfortunately, however, it is equally clear that the irregularity in this vote means nothing in civil litigation of any kind.  There’s U.S. Supreme Court constitutional precedent exactly on point—Serbian Eastern Orthodox Diocese v. Milivojevich, 426 US 696 (1976).  It doesn’t matter if a hierarchical church acted arbitrarily or failed to follow its own rules; civil courts accept the decision.

There are other reasons too:  (1) the civil courts don’t interpret and enforce canon law, (2) ministers have special constitutional and legal status, such that the bias in cases involving them is for courts to stay out (unless it’s a sex abuse case or some other instance where a third party is bringing suit based on an overwhelming public policy—and there isn’t any religious doctrine justifying the activity anyway), and (3) there’s no way for a court to remedy the situation (i.e. no court is going to issue an order restoring a minister to his religious position, which then puts the court in a position of control and monitoring of religious leaders).

It’s tempting to think that a civil court will make the judgment that TEC doesn’t follow its own rules, so this court isn’t going to follow them.  But it just ain’t gonna happen.

That’s interesting DavidH because I’ve just been reading this comment which refers to cases which decided the exact opposite, at least in California.

Well, Pageantmaster, note that the California state case referred to came 24 years before the U.S. Supreme Court case to which I refer.  And because Serbian Eastern Orthodox Diocese v. Milivojevich was a constitutional decision, it’s not something that states get to ignore.

Also note that the courts’ approach to church property disputes changed in the late 1960s (and then developed a lot in the 1970s).

Also note that how courts approach procedural and property issues in a congregational church—like the Baptist entity in the case cited over on T19—is very different from how they approach those issues with respect to hierarchical churches.

DavidH, a civil court won’t insert themselves into a question such as whether Bishop A committed heresy or Bishop B violated a particular canon, for fear of state intrusion into religion.  But they can and will hold a church to account for violating its own procedures (although the degree to which they will is state-specific).  The best way for 815 to keep at bay any scrutiny of their use of the canons is to scrupulously abide by them, and by the parliamentary law that is incorporated by reference.  A court will be much more inclined to get involved if there appears to be arbitrary and capricious conduct or disregard of the rules an organization sets for itself (which can be viewed as a contract of sorts).  There are also a whole range of other legal constraints on a church (criminal laws and civil liability for fraud, breach of contract, and tortious conduct, for example).

#42 Thanks for your response - it is good to have a US lawyer explain it all to an Englishman.  I don’t know how things work with you and precedent between state courts and others and of course red lorries and yellow lorries may be looked at differently in the UK from the States.

Is it the case that there was no breach of canon law - a cononical deposition vote in respect of Bishop Schofield was held and lost, the canonical minimum not having been met?

The test in the Serbian Orthodox case is whether a court will have to inquire extensively into matters of religious law and polity.  The question we have been discussing all day hardly requires such an extensive inquiry.  Indeed, a court could simply look at whether Robert’s Rules Newly Revised was respected and not inquire at all into any matters religious.  Indeed the question here is not whether there was fairness in the decision of the House of Bishops—it is what the decision was.  A court can look at the the plain language and the vote and know what the result was without any insertion into religious matters at all.

43,

The best way for 815 to keep at bay any scrutiny of their use of the canons is to scrupulously abide by them, and by the parliamentary law that is incorporated by reference.

I can entirely agree with the above.  The rest of your post, no.  Read the case I cited—the U.S. Supreme Court says the courts do NOT examine whether a hierarchical church’s behavior was arbitrary or failed to follow its rules.  It’s a constitutional issue, so while much does vary from state to state, that does not.

There are also a whole range of other legal constraints on a church (criminal laws and civil liability for fraud, breach of contract, and tortious conduct, for example).

Yes, there are, but they don’t apply here.  Those are all 3rd party liability constraints, not intra-church or church vs. separatists ones.

Gosh that’s interesting, so Bishop Schofield was not deposed on a vote for violating canons, but in violation of the canons the PB can declare that he is, but it doesn’t matter because a Court won’t interfere.  I think I understand.

By George, I think you’ve got it.

It’s interesting that in the case DavidH sites there was this in the dissenting opinion written by Rehnquist:

Unless civil courts are to be wholly divested of authority to resolve conflicting claims to real property owned by a hierarchical church, and such claims are to be resolved by brute force, civil courts must of necessity make some factual inquiry even under the rules the Court purports to apply in this case. We are told that “a civil court must accept the ecclesiastical decisions of church tribunals as it finds them,” ante, at 713. But even this rule requires that proof be made as to what these decisions are, and if proofs on that issue conflict the civil court will inevitably have to choose one over the other. In so choosing, if the choice is to be a rational one, reasons must be adduced as to why one proffered decision is to prevail over another. Such reasons will [426 U.S. 696, 727]  obviously be based on the canon law by which the disputants have agreed to bind themselves, but they must also represent a preference for one view of that law over another.

If civil courts, consistently with the First Amendment, may do that much, the question arises why they may not do what the Illinois courts did here regarding the defrockment of Bishop Dionisije, and conclude, on the basis of testimony from experts on the canon law at issue, that the decision of the religious tribunal involved was rendered in violation of its own stated rules of procedure. Suppose the Holy Assembly in this case had a membership of 100; its rules provided that a bishop could be defrocked by a majority vote of any session at which a quorum was present, and also provided that a quorum was not to be less than 40. Would a decision of the Holy Assembly attended by 30 members, 16 of whom voted to defrock Bishop Dionisije, be binding on civil courts in a dispute such as this? The hypothetical example is a clearer case than the one involved here, but the principle is the same. If the civil courts are to be bound by any sheet of parchment bearing the ecclesiastical seal and purporting to be a decree of a church court, they can easily be converted into handmaidens of arbitrary lawlessness.

Quite prophetic really as his hypothetical case is almost exactly what has just occurred. I think that if this manages to work it’s way to the Supreme Court his position might just prevail now.

TEC has not brought civil suit yet to claim the property yet for one simple reason, they have no standing in CA to do so. The Bishop of the diocese must do so and so TEC must first get another Bishop.
Even if the judge in the case has no intention of deciding Canon Law he would at least ask that the new Bishop shows that he legally holds the office before he has grounds to sue. TEC would put forth this vote as the first item and it hardly takes any deep delving into Canon Law to determine a simple procedural violation. The Judge would have no need to reinstate +Schofeld to determine the new Bishop has no standing.

A strict interpretation of the case DavidH sites would be against this but it’s more than enough to keep this in appeals for 10 years.

Chancellor,
Your comment in 31 speaks to that to which I was alluding in 17, i.e. an internal set of rules of order in the House of Bishops.  There’s the fog that settles on the House.  I think I can summarize:  however the chair rules, that’s it.  And the chair always gets the last word.  Moving right along…..
You said “It’s a good thing no objection was raised…” and why.  Right.  My question was why do objections not get raised?  Really.  And I would suggest the house rules actually act as a pall in favor of the majority.  Is it possible the HOB House Rules do not protect the minority?  Wouldn’t that be a twist.
Besides the fog issue, one would hope House Rules do not supercede TEC C & C.  What a massive research project that would be. 
No time.  So we’re back to the main issue.

Pageantmaster and DavidH, over at Titus1:9, I asked Jim the Puritan about the orthox serbian case and he pointed me to a case that clarified the orthodox serbian and seemed to bring the current understanding more in line with Rehnquist’s dissenting opinion. Here is my reply to Jim with the appropriate reference:

Thanks, Jim. By the way, it is Jones v. Wolf (one ‘f’), could not find the result with two f’s. The relevant discussion is here. It is very pertinent, involving a Presbyterian church who voted to leave the existing branch of Presbyterianism and affiliate with another. The SCUSA agreed that the majority voters acted procedurally correctly and asserted that the denomination should follow its rules.

The site linked is pretty nifty. Makes one think that you can “play law.” The site’s discussion of the orthodox serbian case is here.

Note that the court today has definitely moved away even further from the one the one that made the orthodox Serbian ruling. In particular, Roberts was Rehnquist’s clerk, I believe.

DavidH, sorry I didn’t get back to you promptly: I finally hit the sack!  Others beat me to it, though: the Rehnquist dissent in Serbian Orthodox more or less became the law, at least with respect to property matters (which the San Joaquin case will be) and the ancillary inquiries that can be necessary into matters of polity.  I would argue that even under Serbian Orthodox criteria (not considering Jones) this matter could be answered without any recourse to canons—but merely looking at Robert’s (a wholly non-canonical document), which was incorporated by reference.  Certainly, though, Jones and progeny will make permissible looking at the question of what in fact is Bishop Schofield’s position, and whether the church followed its own rules.  Interesting that the Rehnquist dissent offered up as a hypothetical example of extreme lawlessness something similar to what the Episcopal Church chancelor and Presiding Bishop are trying to do with the deposition vote, isn’t it?

Cross-posting with T19 in part—see this comment:

...

I would concede that First Amendment jurisprudence in general, and the religion clauses in particular, is often messy and unclear.  You’re almost always going to be able to make arguments both ways.  And courts are always hesitant to explicitly discard past cases, so they continue to be cited.  But as someone said on another thread somewhere (I’ve lost track), one way to approach it is to think how many times out of 10 a court would rule in your favor on a particular issue.  Here, largely due to the squarely on point rule of Serbian Eastern Orthodox, I’m suggesting that 8 or 9 times out of 10, a court is not going to look behind +Schofield’s deposition.

Now, more to the specific points raised by you and later posters:

...

you quite rightly bring up Jones v. Wolf, the last U.S. Supreme Court church property decision.  I think you incorrectly conclude, however, that Jones v. Wolf is inconsistent with Serbian Eastern Orthodox.  Certainly the majority in Jones v. Wolf never drew that conclusion.  I would suggest, and I think this was the Court’s view in both cases, that the use of “neutral principles” to resolve ownership of property is very different from using “neutral principles” to determine the validity of ecclesiastical discipline.  For a court to do the latter, as people are suggesting with respect to this vote on +Schofield’s deposition, Serbian Eastern Orthodox would have to be overturned.  And that, I think, has no chance of happening.

It should also be noted that it is far from clear that Jones v. Wolf results in less deference to hierarchical churches.  Indeed, it was an explicit invitation in Jones v. Wolf that resulted in passage of the Dennis Canon, and a number of courts have enforced the Dennis Canon under neutral principles since Jones v. Wolf.

Also relevant here to any civil court would be Canon IV.14 sections 2 and 3, which explicitly forbid what many here want to have happen—resort to and review of a Title IV decision by civil courts.  Perhaps LTN and Jim the Puritan believe that the courts would disregard these provisions.  I don’t think so.

Finally, I don’t think +Schofield’s resignation letter helps.  A court could easily avoid all of this mess by observing that, under both TEC and +Schofield’s view of things, +Schofield is no longer an Episcopal bishop.  Thus, the court doesn’t need to wade into the sticky issue of the validity of +Schofield’s ecclesiastical discipline.  All it needs to do is to determine whether one has to be an Episcopal bishop to lead the DSJ corporation / whether the DSJ can depart from TEC with property.  (Not that that question is terribly easy.)

Now, new material:

I agree that the Supreme Court today might rule very differently than the Court back in the 1970s.  (I’m not certain of that though because religious freedom issues don’t always follow traditional liberal / conservative splits.  E.g. Rehnquist and Stevens coming to the same conclusion in Jones v. Wolf.)  Given how few cases the Supreme Court takes, the biggest hurdle anyone faces may be getting the Supreme Court to rule.  I think it unlikely that the Court will take any church property cases.

As much as I agree with those who think the canon is plain and was not followed here, I think RomeAnglican is also too optimistic when he says that this is simply a matter of looking to Robert’s Rules.  As the threads about this issue show, there’s a lot going on here—including cross-references and interpretive arguments about a lot of other provisions in the Constitution and Canons, the history of the relevant provisions, the seriousness of deposition votes, the centrality of an actual meeting of the HoB, etc.  A court that can avoid tackling the validity of +Schofield’s deposition will do so, and I’ve sketched out above a few ways a court can do so.

For anyone looking for a discussion of what Jones v. Wolf means, the Va court briefs (available on both the Diocese’s website and the ADV’s, I think) are a good place to go.

Most of the lawyers seem to agree that the reading of the canon on which the HOB proceeded is wrong.  In that case there is one other procedural matter - Beers, as Chancellor and retained as a lawyer at Goodwin and Proctor on behalf of TEC, as he reports conferred and advised the house that a simple majority of those present could depose [“therefore, it is our position that the vote was in order”] then either [1] his advice was negligent; or [2] he knew that the advice he was giving was wrong and he proceded nevertheless to deliberately mislead the bishops.  Take your pick.

A very learned and fascinating discussion, all of you.  I would just add that in California there is precedent for bringing an action in quo warranto to test the credentials of a religious official in his church.  (I don’t have access to Westlaw just now, so I can’t provide the exact cite.)  It predated the Serbian Orthodox case, and it’s just a decision by the Court of Appeals.  But since the issue would be essential to a proof of standing to sue, I think a court would go into the matter.  That is a question that every plaintiff has to satisfy, religious or not.  And it’s a matter that goes to the jurisdiction of the court over “cases and controversies”, so I don’t think the court would be able to duck out by saying “TEC has decided the question.”

One other thought: the real test will come, won’t it, when we see whether +Schori will proceed to sign certificates of deposition in the presence of two bishops?  If she does, I think she creates civil causes of action in favor of +Cox and +Schofield for defamation, etc.  I think there are a number of ways around the First Amendment barrier.

Chancellor, you are right that her signing the deposition can create cause of action for defamation.  I suspect they thought about that and determined it was unlikely.

As to standing, the case, if it comes, is not as simple as +Lamb vs. +Schofield.  It’s TEC, the reconstituted diocese, and the local Episcopalian minorities vs. +Schofield, the breakaway diocese, and the local Anglican majorities.  Both sides’ standing is clear—both sides have significant claims on the property.

There won’t be any cause of action for defamation for a number of reasons, including: (1) there’s no way to test the truth of the assertions in the charges against +Schofield (and no civil court would touch that issue with a 10 foot pole—that’s a huge step beyond canonical interpretation and vote requirements), and (2) there’s no damage / no harm to reputation.  Those that like +Schofield couldn’t care a whit that TEC deposed him, and neither does he, according to public statements.

There are clearly some very smart and creative lawyers out there working for breakaway congregations.  There are clearly some very smart people who disagree with my take on things.  That’s to be expected—these are complex issues where different interpretations are easily possible.  I’ve enjoyed the discussion.  (I’d use conversation, but the PB’s approach to that word in South Carolina will have me shying away from it for some time, I think.)  Signing off now.

It seems to me that TEc’s argument for property is based on its own interpretation of its canons, and a huge example such as this of TEc totally riding roughshod over its own canons would be a useful counter argument.

As a former trial lawyer, staff attorney for the state legislature, and now a sitting trial judge I agree the interpretation of Beers is not accurate.  However, he doesn’t care.  He is litigating!! This is all about gaining an advantage for his client..He doesn’t expect either bishop involved to challange this action.  When they don’t he has a couple of scalps already and can then turn and face the other orthodox bishops and challange them, while he has a couple of victories…for what ever weight a default by the two bishops will give him…
EDS

Here’s counterpoint to the earlier Hills of the North posting about the costs to the PB of admitting error: http://hillsofthenorth.blogspot.com/2008/03/on-other-hand.html

#60 aacswfl1
Finally! Thank you! This is where the rubber meets the road. My fear is that Bishop Schofield and Bishop Cox will do nothing and allow DBB to continue to trod over the canons and by not challenging Beers, Schori, and the HoB, this action will leave the door wide open for other Bishops, whether they be Orthodox or no, to be deposed so simply. As we speak now those on the liberal left are looking to change the canons to fit their purpose. They want to change them to make it easier to depose those that they feel are in their way of taking this Church and making it the Political Chuch of the USA, not the Episcopal Church of the USA as our ancestors worked hard to build. They want to make sure that this faux pas cannot happen again and they intend to do it! Wake up sleepers and do something for the love of your brother bishops! I beg of those who can please do something for souls are at stake and lives will be affected drastically if not.

I think that the liturgy of sandle dust shaking off should be celebrated by all.  Get into a real church.  The Holy Spirit left long ago.  Don’t turn into a pillar of salt.  IMHO

I think that the liturgy of sandle dust shaking off should be celebrated by all.  Get into a real church.  The Holy Spirit left long ago.  Don’t turn into a pillar of salt.  IMHO

As the New Yorker use to say, “Block that metaphor!”

thanks to all of you for all your great input. I’ve tried to summarise some basic positions in my post “A Majority of Bishops?”

Do feel free to make corrections etc.

****SF team****I think the following comment needs a headline: “..[Beers] doesn’t care.  He is litigating!”
[See aacswfl1 #60 on 03-16-2008 at 01:59 PM]

Come on friends…why all the discussion here? These are the very same people who believe that the votes for JFK from deceased people in the Chicago area were legitimate votes…and that a punch card ballot in Florida (in which there were zero holes punched on the card are obvious votes for Al Gore.

The ACI has weighed in on the fiasco here. (Hat tip to David Virtue.)

Just read an update at ENS and the vote DID NOT FAIL.  The canon apparently was reinterpreted on the spot.  Must read!

just subscribing…

http://www.episcopalchurch.org/79901_95735_ENG_HTM.htm

DBB and cronies just decided that they knew better than the crafters. Didn’t want to be incovenienced.

Church lady, there does not appear to be anything new on Episcopal Life—just the same desperate statement from Beers a few days ago.    Are you seeing something else?

As elsewhere stated “God send us enemies like these.” Beers and Schori are the worst possible representatives of the New Thang Church.  I have had some folks who have NEVER before questioned the dirft of TEC come up to me after church and ask what can they do to stop what is happening.
Lewis wrote “Screwtape”  with an eye to demonstrating that evil or Satanic possesed persons are dangerous, but usually dumber than MCJ Johnson’s Sack of Hammers. Thank you Lord for sending us Ms. Schori and Dave Beers.

Greg,
I suggest you or Sarah contact retired Bishop Wantland in Oklahoma.  I’ve heard him speak twice on the situation in the Episcopal church.  Once almost 5 years ago, and again just last year. Not only is he a wonderful man of God, I suspect he knows more about canonical law than just about anyone, being both a bishop and a lawyer.  He’s also very good at explaining things for the laity.
Just a suggestion,
Susan Ives

I realize that this is late, but here are a few more thoughts.

In my view, a civil court might consider the HoB’s procedural irregularities only if the plaintiff (i.e. Bps. Cox and Schofield) can show harm that a secular court can remedy. So an action declaring they have abandoned their orders would not be an injury a secular court could fix, unless abandonment carried with it some tangible penalty, such as loss of retirement pay, etc. I don’t know what the fine print of the TEC pension plan says about that, and ERISA is applicable here too.

In my view, the way TEC’s procedural irregularities get before a secular court is in property litigation when two or more groups claim to be the “Diocese”. Thus, in San Joaquin, the incumbant Standing Committee and the soon to be appointed rump will both claim to be the “Ecclesiastical Authority” with power to control diocesan assets. I think a secular court could consider that dispute, using the same neutral law principals a court would use to consider an intra-corporation dispute where two groups claimed to be the corpration’s board of directors. The court could analyze whether TEC obeyed its canons, just as the court can analyze whether a corporation followed its By-laws.

Blessed Easter!