The Sauls Memorandum Refuted (I)

The lengthy Memorandum to the House of Bishops authored by the Rt. Rev. Stacy F. Sauls of the Diocese of Lexington is, as many bloggers have already spotted, full of inconsistencies and erroneous analysis. In considering how best to demonstrate this point, I have decided to use a "Fisking" format for its first five pages, where the errors accumulate until the conclusions can no longer be validly drawn. I am putting this part of my response up now; the second part is posted here. Suffice it to say that everyone who takes the trouble to follow along and see what is being claimed in light of what is actually the case should have no difficulty in seeing, without any help from me, how these errors permeate the rest of the Memorandum. The original is in black text, and my fisks are in purple; the footnotes (numbers preceded by a *) are reproduced at the end.

MEMORANDUM
May 27, 2008


To: House of Bishops


From: Task Force on Property Disputes


Re: Proper Use of Abandonment Procedures for Bishops

Subsequent to our meeting at Camp Allen, some Bishops of The Episcopal
Church*1 and some commentators*2 have suggested that we may have failed to follow our own rules for giving consent to the deposition of a Bishop for abandoning the communion of this Church. A careful analysis and examination of the canon law, however, confirms that consent to deposition was procedurally appropriate, as the House’s Parliamentarian ruled and the Presiding Bishop’s Chancellor has advised.*3

A “careful analysis and examination of the canon law”? We shall see.

This memorandum is intended to provide the Members of the House with necessary legal background and the reasoning supporting that conclusion for the assurance of the Members as to past actions and in advance of their consideration of any additional such actions in the future.

Actually, this memorandum is intended to arrive at a foregone conclusion (that the Presiding Bishop and her Chancellor committed no error), and would serve as a very poor guide to any such additional actions in the future.

Conclusion

The House of Bishops followed the proper canonical procedure for consenting to the depositions of John-David Schofield and William J. Cox from the Ministry of The Episcopal Church as provided in Canon IV.9 of the Constitution and Canons of The Episcopal Church (2006) for the following reasons:

A. The intended meaning of Section 2 of Canon IV.9 of the Constitution and Canons of The Episcopal Church (2006) is that the consent of a majority of the Bishops voting at a meeting of the House of Bishops constitutes valid consent for the deposition of a Bishop.

B. Precedent establishes that the House of Bishops acted appropriately in considering and acting upon the Presiding Bishop’s referral to it of the abandonment of communion certified to her by the Review Committee.

C. Procedural safeguards assure fairness and justice in the case of Bishops accused of having abandoned the Communion of this Church. 


All right, so we know what your conclusions are before we start (and so, most likely, did you). Now let’s look at the analysis.

Background


The House of Bishops met for its annual, and duly noticed, spring meeting at
Camp Allen, Navasota, Texas on March 7-12, 2008. As is its custom, the House
scheduled a business session during that meeting. Members were notified in advance of the business session that the certification of the abandonment of the communion of this Church by the Rt. Rev. John-David Schofield, Bishop of San Joaquin, and the Rt. Rev. William J. Cox, Bishop Suffragan of Maryland, Res., would be considered. The business session was held, as planned, on March 12, at which time the subject of consent to deposition was before the House. 

Actually, the “business meeting” (meaning chiefly the business of deposing Bishops Cox and Schofield) was scheduled for the last day of the Camp Allen session, when it was highly likely that a number of Bishops would already have left. It was scheduled for March 12 because that was the earliest day following the 60-day period in which Bishop Schofield had to deny the charges that he had “abandoned the communion of this Church” under Canon IV.9 (having been given notice of his inhibition on January 11), and thus was the only day on which the assembled Bishops who were left by that point could take up the “business.”

With respect to each Bishop, a voice vote was taken, which was not unanimous and included abstentions but which clearly indicated majority consent to the depositions of Bishops Schofield and Cox by a wide margin in each case.

By holding just a voice vote, the Presiding Bishop ensured that the actual count of those voting for and against, and the abstentions, would be forever lost to the record. How convenient it is not to have to deal with the actual numbers, when by the time the matter was called for discussion the attendees were down to just 68 active bishops plus an indeterminate number of retired bishops, and the departure of just one active bishop (since retired bishops do not count toward a quorum) would have meant there was no longer even a quorum to hold the vote at all!

Presiding Bishop Katharine Jefferts Schori, as required by Section 2 of Canon IV.9, has since deposed both from the Ministry of The Episcopal Church.*4

Deposition was not “required”---indeed, the motion to depose lost---if it was not approved by the requisite number of Bishops.

Reasoning


A. The intended meaning of Section 2 of Canon IV.9 of the Constitution and Canons of The Episcopal Church (2006) is that the consent of a majority of the Bishops voting at a meeting of the House of Bishops constitutes valid consent for the deposition of a Bishop.

An extraordinary statement, given the history of this Canon: although the language used has differed over the years, the requirement that the deposition of a colleague be approved by a majority of all Bishops entitled to vote in the House (whether present or not at the meeting where the vote is taken) has remained unchanged since the Canon’s original enactment in 1853, as we shall see.

The procedure for deposing a Bishop of The Episcopal Church for abandonment of the communion of this Church requires, upon certification of the abandonment by the Review Committee, that the Presiding Bishop “present the matter to the House of Bishops at the next regular or special meeting of the House.”

Not so fast, Bishop Sauls---to be “liable to deposition”, a Bishop must not only be certified by the Review Committee to have abandoned the communion, but he must also have been first inhibited with the consent of the three senior Bishops of the Church. You (conveniently) left out the requirement for inhibition in setting up your premise. Is that because you also want to use this Memorandum to "justify" the Presiding Bishop's proposed deposition of Bishop Duncan without any inhibition, just as she did with Bishop Cox?

The Canon goes on to provide in its next sentence:

"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, and pronounce and record in the presence of two or more Bishops that the Bishop has been so deposed."

The current language of the Canon has evolved over time, and some understanding of that evolution is necessary to understand the meaning of the Canon’s current language.


Indeed.

The abandonment Canon (currently numbered IV.9) was originally enacted in 1853, and pertinently amended in 1859, 1874, and 1904.*5 It has consistently provided for Bishops found to have abandoned the communion of this Church, with required consent, to be deposed by the Presiding Bishop. It is the giving of that consent that is primarily at issue now.


Indeed, again.

The method and requirements for giving consent have evolved over the Canon’s 165-year history, as follows:

 • 1853: “with the consent of the majority of the Members of the House of
Bishops.”*6

 • 1859: “with the consent of a majority of the House of Bishops.”*7

You have misquoted White & Dykman here, on a point that is crucial to your later argument. The 1859 version did not read as you have it, but said the same as the 1853 version: “with the consent of the majority of the House of Bishops” (emphasis supplied).

 • 1874: “a majority of the whole number of Bishops entitled at the time to seats in the House of Bishops” at a duly convened meeting of the House.*8

 • 1904: “consent of the House, by a majority of the whole number of Bishops entitled to vote.”*9

 
Absent evidence to the contrary, we must interpret the General Convention’s choice to change the language defining the necessary consent from one version to another also to indicate an intention to change the definition itself.

Why assume that a change in the language necessarily meant a change in meaning? The history of the Canon (which you have relegated to some isolated footnotes, and which you have interpreted based on a misreading of the actual changes) shows instead that it was amended in a continuing process intended to clarify its meaning as applied to specific circumstances as they arose.

Relegating some explanation of the rationale behind the original enactment and its amendments to the footnotes, the meaning of the consent definition evolved over time as follows:

 • 1853: the consent of a majority of all Members of the House of Bishops was required without the necessity of a meeting being held.*10

The House did not read it that way at all. It held a meeting to vote on the deposition of Bishop Ives immediately following the adoption of this Canon at the General Convention of 1853. Surely such an interpretation of the Canon by those who enacted it, evidenced by their conduct immediately afterward, completely outweighs your unfounded speculation that a meeting was not considered necessary under the Canon.

 • 1859: the consent of a majority of the Members in attendance at a meeting of the House of Bishops (the meeting requirement being implicit and established by subsequent interpretation).*11

Not by “subsequent” interpretation, but by consistent interpretation ever since the Canon was first adopted. Your argument in the footnote (*11) that there was a change from the definite to the indefinite article in front of the word “majority” has no foundation in fact, and leads your subsequent conclusions badly astray.

• 1874: the consent, at a meeting of the House of Bishops, of a majority of the total number of Members entitled to a seat, whether or not present.*12

Or, said another way, it was exactly the same majority of Bishops required under both the 1853 and the 1859 versions. The only relevant change in the 1874 amendment was to make the requirement of a meeting of the House explicit, and in so doing the House simply acknowledged what had been its consistent practice over the previous years.

• 1904: the consent of the House as determined by a majority of the Members
entitled to vote at that meeting (not entitled to vote whether or not present)*13

Now you have jumped the ship in order to arrive at your predetermined destination. Your interpolation of the words “at that meeting”---which are not in the language of the Canon itself---cannot be justified by logic or history, and is not justified by any of your subsequent arguments.

The interpretation of the 1904 language is governed by five considerations: (1) the issue of who gives consent, (2) canonical context, (3) evolutionary context, (4) analogous provisions, and (5) the actual purpose of the word “whole” in Canon IV.9.
 

(1) The Issue of who Gives Consent


The 1904 amendment replaced the consent of the Members acting individually with the consent of the body itself. This is a significant difference with practical implications.



No, it is a specious difference wholly without support in the history and application of the Canon, and one that is invented only to get you where you have already decided to go.

The election of Bishops, for example, requires the consent of certain individual Members (those Bishops having jurisdiction) and not the consent of the House of Bishops expressed in a vote thereof, even when the consents are given during General Convention.*14 



Your footnote *14 continues the specious distinction you have just made. You cite to Canon III.11.3. Subsection (c) of that Canon reads that “. . . notice of [the] consent [by the House of Deputies to the election of a Bishop] . . . shall be sent to the House of Bishops.” (Emphasis added.) The House of Bishops votes on the matter during one of its regular sessions at General Convention---individual consents are not gathered up during coffee breaks and tallied afterward, but a vote of the House is taken and recorded in its Minutes. That vote is then certified to the House of Deputies, if the required number of active Bishops have consented. The only time no meeting is needed to take the vote is when the election is being ratified in the period between one General Convention and three months before the next.

When the Members act individually, the majority is determined based on the total number of individuals and not based on the number of those individuals present at the meeting. 



The specious logic continues. The Bishops act “individually” when they are not in a meeting, as when they are ratifying an election when General Convention is not in session. When they vote on an election at one of their meetings during General Convention, the same number of affirmative votes is required by the Constitution and Canons as when they are voting individually outside of Convention: it is a majority of all Bishops exercising jurisdiction, and has nothing to do with the number who are present at a given meeting during Convention.


On the other hand, when the House acts as a body, a majority is determined based on the number of those eligible to vote who are present.*15 



This is not necessarily the case. As just noted, if the vote is to ratify the election of a colleague during a session of General Convention, a majority of all Bishops exercising jurisdiction in the Church must still give their consent, regardless of the number present at the given meeting, and as we shall see, the majority of “the whole number of Bishops entitled to vote” is also not tied to the number who are actually present. Likewise, your cite in the footnote to Canon V.3---specifying that a quorum is a majority of all the members in a given body, except where the Constitution and Canons provide otherwise, is a non-sequitur. It is not Canon V.3, but Art. I, section 2 of the Constitution that specifies the definition of a “quorum” of the House of Bishops, and the number it specifies is smaller than the number specified by Canon V.3, because Art. I, section 2 leaves bishops who have resigned jurisdiction out of the count for a quorum.

In changing who gives consent from the individual Members (1874) to the House itself (1904), a difference in how a majority is to be determined was presumably intended. Otherwise, there would be no practical difference between the 1874 language and the 1904 language.


Precisely the point! All that occurred in going from the 1874 language to the 1904 language was a grammatical change of subject, not a change in meaning. Your distinction between “the House, by a majority . . . of the Bishops” and “the majority of the House” is a distinction without any semantical difference. This is especially the case when we take up the use of the word “whole” (in Part II, to come).


Not only is there not clear intent to the contrary, on the whole, evidence of intent favors the general rule as set forth in Canon V.3, as explained below.



The “general rule as set forth in Canon V.3” is a rule dealing with a quorum, not a particular vote on deposition, and it has no application to the House of Bishops, because Art. I, section 2 of the Constitution supersedes its definition.

(2) Canonical Context 


It is noteworthy that the reference to “a majority of the whole number of Bishops entitled to vote” in the current Canon immediately follows the requirement of a meeting of the House and is specifically linked to the House itself and not to the individual Members thereof. Therefore, the plainest reading in context is that it means “a majority of the whole number of members entitled to vote” at that meeting.



I dealt with this argument in my previous post, and showed how this meaning does not at all follow from your artificially derived distinction between “the House” and “the individual members thereof.”

Endnotes
*1 “Diocese of South Carolina Protests Presiding Bishop’s failure to follow the Canons,” (Diocese of South Carolina, 27 March 2008)  http://www.dioceseofsc.org/mt/archives/000337.html.


*2 See, e.g., George Conger, “Call for Review after Trial ‘Flouted Church Rules,’” Church of England Newspaper, 28 March 2008, p. 5.


*3 “House of Bishops’ Votes Valid, Chancellor Confirms,” (Episcopal News Service, 15 March 2008)
http://www.episcopalchurch.org/79901_95735_ENG_HTM.htm.
*4 The Deposition of a Bishop (John David M. Schofield) dated March 12, 2008 and the Deposition of a Bishop (William J. Cox) dated March 12, 2008, in both cases signed by the Most Rev. Katharine Jefferts Schori and witnessed by the Rt. Rev. Richard S. Chang and the Rt. Rev. Kenneth L. Price, Jr.
*5 Edwin Augustine White and Jackson A. Dykman, Annotated Constitution and Canons vol. 2 (1981 ed.) (New York: Office of the General Convention, 1985) 1079-1082 (herewith cited as White and Dykman).


*6 White and Dykman (n 5) 1079.


*7 White and Dykman (n 5) 1080.


*8 White and Dykman (n 5) 1081.
*9 White and Dykman (n 5) 1082.


*10 The canon was originally enacted in response to the decision of Bishop Levi S. Ives, Bishop of North Carolina, to become a Roman Catholic in 1852.


*11 The language of the amended Canon does not explicitly require a meeting, but does change the consent required from that of the Members thereof to being that of the House itself. There seems to have been some dispute, possibly relating to the change in language, over whether a meeting was required when the Bishops were forced to consider the abandonment of Bishop George D. Cummins, the Assistant Bishop of Kentucky, in order to found the Reformed Episcopal Church in 1873. Presiding Bishop Benjamin Bosworth Smith (Bishop of Kentucky) obtained the consent of a majority of the total number of Bishops without calling a meeting after which Bishop Smith deposed Cummins. Concern that the intention was to require the action at a meeting of the House led the House, meeting at the General Convention of 1874, to reaffirm the consent in the context of a meeting, and in October of 1874, Bishop Smith repeated the deposition. [White and Dykman (n 5) 1081]. A logical argument can be made that the change from the definite article “the” to the indefinite article “a” in the 1859 amendment together with the change to requiring
the consent of the House as such implied that a meeting was required and redefined the consent requirement as meaning as given by a majority at a meeting.


In fact, as noted above, there was no such change, and so this speculation is groundless.

*12 The extraordinary requirement of a majority of the total number of Bishops entitled to a seat was likely a reaction to the crisis of the Reformed Episcopal Church schism and confusion surrounding the deposition of Cummins.

As we have already seen, there was no change in the specified majority of Bishops required to vote on a deposition from 1853 through 1874, and continuing right down to today: it was then, and is now, a majority of all ("the whole number") of the Bishops entitled at any given time to vote in the House. 

*13 The 1904 language was originally proposed to 1895 Convention by the Joint Commission on Revision of the Constitution and Canons [General Convention, Journal of the General Convention of The Episcopal Church, 1895 (General Convention, New York 1895) 679]. The report was taken up by the Convention in sections, the abandonment canon being revised in 1904 [General Convention, Journal of the General Convention of The Episcopal Church, 1904 (General Convention, New York 1904] 325-326, 598.


*14 Cf. Canon III.11.3 (c) and (d).


*15 Canon V.3.

This completes Part I of this Refutation. Part II is posted here.