Wednesday, September 24, 2008

Hypocrisy, Thy Name Is David Booth Beers

From the Memorandum written to the members of the House of Bishops on September 12, 2008 (bold added for emphasis):

There may also be raised at this meeting the question of whether consent to the deposition of a bishop who has been certified to have abandoned the Communion of this Church must be by a majority of bishops present at the meeting at which the matter is presented or, on the other hand, by a majority of all the voting members of the House whether or not in attendance. Canon IV.9(2) states that the vote to consent must, first, take place at a "regular or special meeting of the House" and, second, be "by a majority of the whole number of Bishops entitled to vote." My Chancellor and the Parliamentarian of the House have both advised me that the canon means that the vote must be by a majority of all the bishops who are at the meeting at which the vote must be taken and who are entitled to vote.
From the Opening Brief filed by Episcopal Church and the Diocese of Virginia on [Section] 57-9 Voting Issues, prepared in part and signed on September 5, 2008 (one week before the above Memorandum) by the law firm Goodwin Procter, of which David Booth Beers is a partner (bold again added, except for the heading, which is in bold in the original):

V. The phrase "majority of the whole number" in § 57-9(A) requires a majority vote of the whole number of "members" eligible to vote, whether or not they voted.

Just as the Court can and should resolve the proper definition of the statutory term "members" as a matter of law, it should, if there is any dispute on this issue, resolve the meaning of the statutory phrase "majority of the whole number" as a matter of law. That is, does the statute require that the vote reflect a majority of "the whole number" of members or only a majority of those who actually cast a ballot?

In their efforts to invoke the statute, the CANA Congregations properly concluded that a majority of "the whole number" was required. . . .

. . . Furthermore, the Congregations did not simply schedule a congregational meeting at which a vote of those present could be taken. Instead, they went to great lengths to ensure a majority vote of all those who . . . were eligible to vote . . . .

The Congregations' own case law . . . confirms that the above understanding of "majority of the whole number" was correct. . . .

Accordingly, the phrase "majority of the whole number" in § 57-9(A) refers to and requires a majority of the total number of a congregation's "members" over the age of 18, regardless of how many or how few actually cast a ballot.
TEC's brief attached a copy of Merriam-Webster's definition of "member" to enhance its argument. Let us do the same here, and attach Merriam-Webster's definition of "hypocrite":

1 : a person who puts on a false appearance of virtue or religion
2 : a person who acts in contradiction to his or her stated beliefs or feelings

(H/T: Scott+)

UPDATE 09/24/2008: a further search of the pleadings shows that Goodwin Procter reiterated and emphasized its Virginia argument in its Opposition Brief filed on September 12, the very same day as that on which the Memorandum to the House of Bishops was written (see pages 13-14). What is more, TEC's brief even cites examples where the Virginia General Assembly, exactly as did TEC's General Convention in the Constitution and Canons (see the section of this post entitled "Analogous Provisions" for examples), used explicit language where it wanted to make it clear that only those present at a meeting were to be counted in determining a majority (bold added for emphasis; italics in original):

The General Assembly has used the phrase "majority of the whole number" to refer to majorities of all eligible voters in other contexts, and when that "majority of the whole number" is limited only to those present at a meeting it has said so explicitly.*7 Courts and the Attorney General of this Commonwealth have relied on the presence or absence of such distinctions.*8 This Court should too.

*7 Compare, e.g., Virginia Code § 23-103 ("no order to remove a professor without the concurrence therein of a majority of the whole number of [the Virginia Military Institute's board of] visitors") with Va. Code § 28.2-1000 ("No action shall be taken by the [Atlantic States Marine Fisheries] Commission in regard to its general affairs except by the affirmative vote of a majority of the whole number of compacting states present at any meeting") (emphasis added).

*8 See Smiley v. Commonwealth, 116 Va. 979, 83 S.E. 406 (1914) ("the import of [the] plain and simple language of a statute authorizing appointment of a county superintendent of roads by "the vote of a majority of all the supervisors of the county" was "that the office . . . could only be filled by the affirmative vote of a majority of all the supervisors---that is, by affirmative votes cast by at least four of the six supervisors of the county"). See also 1997 Op. Atty Gen. Va. 37 (discussing differences in statutes requiring a vote by a majority of those "present and voting" versus a majority of "the members elected" to a governing body); 1983-1984 Op. Atty. Gen. Va. 271 (statute providing that "[a] majority of the members of [a park] authority shall constitute a quorum and the vote of a majority of members shall be necessary for any action taken by the authority" construed as requiring a majority vote of all members, not just a majority of a quorum; "[h]ad the General Assembly intended that a majority of a quorum is sufficient for an authority to act, it could have stated as much in unambiguous terms").
TEC stuck to the same argument in its Reply Brief, filed just two days before less than a "majority of the whole number of Bishops entitled to vote" in the House of Bishops gave their consent to the "deposition" of Bishop Duncan.

One can only wonder: How many of the 88 bishops who voted in favor of deposition would have done so had they been confronted with this direct evidence of the duplicitous position that TEC was then taking in the Virginia court with respect to the interpretation of virtually identical language in § 57-9 (A)?


  1. Humpty Dumpty: When I use a word, it means just what I choose it to mean - neither more nor less.
    Alice: The question is, whether you can make words mean so many different things.
    Humpty Dumpty: The question is: which is to be master - that's all.


  2. When the law is against you, argue the facts. When the facts are against you, argue the law. When both are against you, do as TEC does and make it up out of whole cloth as you go along. Don't forget to be highly indignant when you are called on your affront.

  3. This seems to be air tight.

    The phrases are the same except that one uses "entitled" and and the other uses "eligible". I am thinking that those are synonyms.

    Is there any reason to think there is a significant difference in the meaning of the words "entitled" and "eligible"?

  4. I don't see any difference between the terms as they are used in the respective statutes, Perpetua. Nor does Merriam-Webster, who defines "eligible" as: "qualified to participate or be chosen : entitled."

  5. Unfortunately, your analysis, while accurate, doesn't really matter. I think Mr Beers is well aware that the TEC true believers will swallow anything, and no court will ever consider Bishop Duncan's deposition.

    So he can argue conflicting meanings simply because the intended audiences are disparate. The deposition was going to happen. The HoB is firmly under the control of an oligarchy and they will interpret their rules as they choose.

    The main conflict, and that's what this is all about, will be in the courts.

  6. Matthew, thank you for your comment. I will give in response some of what I posted over at MCJ:

    "+Jefferts Schori may be able to contradict her Church’s legal position in the House of Bishops, where she is, as you say, Maximum Leader, but such two-faced argument won’t fly in the courts. She cannot argue that +Schofield was validly deposed and +Lamb is his valid replacement when she is telling the Virginia courts that 'majority of the whole number entitled to vote' means all those entitled to vote, whether they in fact are present and vote or not.

    "If she installs a puppet to go after +Duncan, she will have the same problem. And if she deposes +Iker and +Ackerman with less than a full majority of all the bishops in the House, then no court anywhere will buy her argument that the depositions were valid. So while she can rig the game all she wants within TEC, she cannot do that and take an inconsistent position with the courts."

    So I agree with you, Matthew, that none of this matters inside TEC (although I do wonder if some bishops might have a prick of conscience when they realize how they were duped), and that it will have to be considered by the courts. But as I say, a Pittsburgh court will have to take up the legality of Bishop Duncan's "deposition" when and if TEC installs a puppet bishop to sue him without going through the proper procedures I outlined in this post.

  7. Assuming the Pittsburgh matter goes before a secular court, the courts only interest will be in property. The SCUS has left open the door to ignore actions by ECUSA if they are in direct contravention of the canons of the ECUSA at least as it applies to property matters.

    From U.S. Supreme Court BOULDIN v. ALEXANDER, 82 U.S. 131: This is not a question of membership of the church, nor of the rights of members as such. It may be conceded that we have no power to revise or question ordinary acts of church discipline, or of excision from membership. We have only to do with rights of property. . . .Still more certain is it that they cannot be removed . . . without warning, and acting without charges, without citation or trial, and in direct contravention of the church rules.

    Just something to think about,


  8. A,S.,
    It seems to me that TEC has a bigger issue in Pittsburgh if they try to install another bishop in order to sue +Duncan for the property. That issue is the fact that there is a duly elected Standing Committee which is the ecclesiastical authority in the case where the diocese is without a bishop.

    Schori & Co. cannot just come in and replace Duncan without a fight. Of course, after the diocesan convention, if the diocese votes to leave, as most people think it will, then the whole thing will have to be played out in the courts. I cannot see how TEC thinks it can win in that situation. But I am not a lawyer, trained to strain at gnats and swallow camels, so what do I know?

  9. "One can only wonder: How many of the 88 bishops who voted in favor of deposition would have done so had they been confronted with this direct evidence of the duplicitous position that TEC was then taking in the Virginia court with respect to the interpretation of virtually identical language in § 57-9 (A)?"

    Answer: Maybe one or two, but I doubt it. When you're drunk, whether it's with beer, wine, booze or power, nothing else matters, nor does it seem to matter to the HOB in TEC, glaring hypocracy notwithstanding.

  10. Scott+, Allen and Mark, thank you for your comments. While what you say is true, Scott, the issue of the validity of +Duncan's deposition will be squarely presented if TEC does in Pittsburgh what they did in San Joaquin: cobble together a rump convention and purport to elect a "provisional bishop" just so he/she can be a plaintiff in a lawsuit. Every plaintiff has to have standing to sue, and that means that a plaintiff who claims to be the real "Bishop of Pittsburgh" must in fact have been validly elected to that post. +Lamb was not, and so he will have a standing problem down the road.

    Allen, you are right that other than an objection at the convention, TEC will not challenge the Standing Committee. It will wait until the diocese has voted to leave, and then organize the remnant. But for reasons I have explained here, that remnant will not be a real diocese.

    Only "one or two," Mark? Then the HoB is beyond saving, because they would be without any conscience. But what good is it being a bishop if one has no conscience?

  11. That is just a glaring contradiction, isn't it?! Many thanks for the analysis.

    I am no expert in Canon Law, but I found this book quite helpful!

  12. ABP, thank you so much for sharing your link with us. You have added immeasurably to my day! I am going to consider linking to your site from this one, but I may have to invent a new category for my blogroll---your site is too souped up to fit into any of the usual categories.

    Once again, thank you!

  13. A.S.H., I normally find my self in nearly complete congruence with your writings, but I do believe you have described D.B.B. with a much kinder name than he deserves, even if one accepts the premise that he is only a hired gun of TEC. Hypocrisy is much too mild a descriptor for the likes of D.B.B. Propriety, however, dictates I may not offer alternative names that are more suitable.

    But I certainly could if pressed. After 31 years enlisted and commissioned service in the Navy my vocabulary in the direction indicated is quite expansive and fully inclusive of the salient characteristics descriptive of D.B.B.

  14. Just for the record, do you know whether the Virginia parishes actually surpassed Mr Beers’ bar? I.e., did the majority of the whole number entitled to vote in each of those parishes actually support their removal from the Episcopal Church?

  15. notworthyofthename said...

    Just for the record, do you know whether the Virginia parishes actually surpassed Mr Beers’ bar?

    A plain reading of the facts is that they did with comfort. This is if you are talking about voting membership. ECUSA was taking the position that the number was larger, because membership was larger than voting membership. Now how you count the votes of people not eligible to vote is something I do not understand. However, I am not an ECUSA lawyer.

    When reading a well-written pleading, even one, which is wrong in many respects, I often find myself being open to agree with the logic presented. That is to say a well-written pleading will make valid points, not necessarily compelling points but valid points.

    In the pleading ECUSA was making, I did not have that feeling. I keep saying to myself. You have a definition of voting members get over it ECUSA. It is moot now, so we will not be entitled to the judges thinking about that set of pleadings.

  16. NWotN, I believe the answer to your question is "Yes." The Truro church, for example, reported that the vote of its members over the age of 18 (as required by the statute) was 963 in favor and 79 against, and for Falls Church, the numbers were 1221 to 127. (You may go to this site and scroll down the documents at the bottom until you start coming to the December 2006 Reports filed with the Court by the individual parishes. I have not checked all of the individual reports, but since the numbers for the two largest were on the order of 90% to 10% or better, it would be safe to say that even if the "members" that Beers wanted to count were included, the numbers to disassociate would still be greater than 50%.