III. Remaking the Diocese of San Joaquin: a Canonical Proposal for Harmony
Given the background that is in Part I of this Memorandum, and the analysis that is in Part II, the way forward to reconstitute the Diocese of San Joaquin according to the Constitution and Canons of The Episcopal Church is clear. Recall that the Diocese has always been an unincorporated association, and that such an entity is simply a gathering together of like-minded people for a common purpose. The group known as Remain Episcopal can therefore be fully accommodated as a Diocese, along with the other parishes, missions and individuals who did not join or participate in the irregular convention held on March 29 (because of its irregularity). All that is required of them is that they agree they want to continue as the Diocese of San Joaquin in Province VIII of The Episcopal Church, and go through the proper procedures to do so.
(Your predecessor required that would-be participants in the March 29 convention sign an "oath of conformity" to the Church as a condition of participation. This was a condition without precedent in the annals of the Church, and should not be made into one for the future. The open nature of an association means that its members are free to join it and to leave it as they see fit.)
A Diocese should have a Bishop, and a Bishop can be elected only at a properly noticed diocesan Convention. Under Article V of the diocesan Constitution, a Convention must be called by the Ecclesiastical Authority of the Diocese. In the absence of a Bishop, Article III provides that the Standing Committee of the Diocese is the Ecclesiastical Authority. Thus it is necessary first to consider the canonical status of Bishop John-David Schofield.
As noted in Part I, Bishop Schofield sent in a letter that resigned his seat in the House of Bishops, but did not resign his jurisdiction as Bishop of the Diocese of San Joaquin. (He could not do that without jeopardizing his authority to lead the unincorporated association of which he had been made the Bishop in 1988.) He has since left with those members of the former Diocese who submitted to the jurisdiction of the Southern Cone. As explained in Part II, that group is an unincorporated association in its own right, but which The Episcopal Church cannot recognize as a Diocese in accordance with its Constitution. Thus, given that The Episcopal Church lost its lawsuit to declare that the changes voted in December 2007 were illegal, and because Article II, Section 6 of its Constitution requires the consent of the House of Bishops for a Bishop to resign jurisdiction, we have a clash between canon law of the Church and the secular law of California. Under the former, Bishop Schofield is still the Ecclesiastical Authority of the Diocese because the House of Bishops declined to accept his resignation, and its purported deposition of him was invalid---indeed, the vote to depose him failed for want of a sufficient majority. But under the latter law, he is no longer the head of an entity which The Episcopal Church can recognize as one of its dioceses. Thus it will first be necessary to organize properly a new unincorporated entity that can serve as the Episcopal Diocese of San Joaquin within The Episcopal Church. (The entity that met in March was not called in accordance with its own proclaimed Constitution, and so its proceedings were null and void.)
What should happen now is that a new gathering of those wishing to remain in the Episcopal Church should be called, with proper notice. (The notice could be given by the former Standing Committee, but in the end it will not matter, since the point of this gathering will be to form a new diocese, with its own new Standing Committee.) At the meeting, the group will formally adopt a Constitution and canons for the diocese, which can be modeled on the old ones. And it will elect a new Standing Committee, which thereupon will become the Ecclesiastical Authority of the Diocese until a Bishop can be elected. Then it can submit its application to be the Diocese of San Joaquin, along with its accession to TEC's Constitution, to General Convention 2009. (It will also be necessary for GC 2009 to enact a clarifying amendment to Canon I.11.3, because the language of that provision as it now stands would make it literally impossible to organize a new diocese in a territory where there had previously been a diocese, as in San Joaquin. Also, because of Article VI, Sec. 1 of the Constitution, it is not possible to organize the Remain Episcopal group as a Missionary Area while TEC considers itself in communion with the other provinces of the Anglican Communion, but only as a full diocese on its own. If it cannot sustain itself, it will have to be absorbed into one of the neighboring dioceses.) Upon the acceptance of the application and the adoption of appropriate changes to the Canons, The Episcopal Church will again have a Diocese of San Joaquin that is both canonically proper and duly recognized under California law.
The Episcopal Church will still need to find a way canonically to remove Bishop Schofield from its rolls. Your predecessor, and the Title IV Review Committee which reported to her, were frankly preoccupied with the mechanism for deposition provided by the "Abandonment of Communion" Canon (Canon IV.9). For reasons I have explained at length here and here, the use of this Canon to depose a Bishop who is leaving The Episcopal Church for another province of the Anglican Communion (as opposed to leaving for a church that is not in communion with The Episcopal Church) is improper, and ultimately self-defeating for TEC itself. The invocation of Canon IV.9 against Bishop Schofield served only to exacerbate the situation, and unduly prolonged its resolution, especially when the requisite number of votes could not be secured at the meeting of the House of Bishops which considered the resolution to depose.
I am confident from Bishop Schofield's public pronouncements that he has no desire to hinder or to impede those wishing to remain in The Episcopal Church from organizing themselves. That being the case, I recommend that we negotiate with his Chancellor the terms of a letter of resignation from any legal entity which this Church wishes to recognize as its own Diocese of San Joaquin. The letter would expressly provide that such resignation would be without prejudice to his right to continue as the Bishop of the Diocese of San Joaquin that is subject to the jurisdiction of the Southern Cone, and as incumbent of the corporation sole that bears the name "The Anglican Bishop of San Joaquin, a Corporation Sole." (When the court dismissed the lawsuit against Bishop Schofield and his Diocese, it ruled null and void the amendments to that corporation which had been filed by Bishop Lamb.)
Such a letter could be acted on by a majority of TEC's Bishops without the necessity of calling a meeting of the House of Bishops, under Canon III.22.3(b), and the way would then be cleared for the election of a successor under the Diocesan Canons, or (if the group wishes, after you consult with them) for the appointment of a Provisional Bishop under the terms of Canon III.23.1. Either of these alternatives would require the summoning of a Diocesan Convention, if the date of the next Annual Convention following General Convention 2009 is not close enough. Pending any such convention, the Standing Committee could invite in a visiting Bishop, pursuant to Canon III.23.2, to perform any necessary episcopal acts.
A final word about the property---the buildings, land and trust accounts that stayed with Bishop Schofield when he left. As noted in Part II, the court held that the Dennis Canon (Canon I.7.4 of TEC) applied only to the property of parishes and missions, and not to property held by dioceses. It was the policy of Bishop Schofield to allow any parish or mission remaining in The Episcopal Church to keep its property (so long as arrangements were made to pay off any debt owed to the diocese). Thus each of the parishes and missions that form part of the ongoing diocese already have their property as far as I am now aware, and I am certain that Bishop Schofield remains open to discussing amicably the particulars of any case that remains unresolved. The Episcopal Diocese now has property and accounts of its own in Stockton due to the generosity of the Church in funding it for the present, and with proper shepherding of those funds, and not having to expend them on further costly litigation, the Diocese should be viable.
Note by the Author: This exercise in imagination is wholly hypothetical, except for the facts given in Part I. Rather than having it turn out to predict the future course of the current litigation, the author hopes that those who read it, and who are in any position to bring it about, might use its points as a start in negotiating a compromise---among The Episcopal Church, the good and faithful Episcopalians of San Joaquin, and Bishop Schofield---that would avoid needlessly wasteful and rancorous litigation. A solution that lets everyone exist within their own parameters is at hand, if Christian consciences will only apply themselves to that end.