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
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.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.
*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").
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)?