In this post, I want to point up a classic example of the improviser's art, and to show how it will most likely catch up the improvisers in ways they surely did not imagine at the moment. At the same time, however, the facts I am about to show should let no Episcopal bishop remain comfortable in occupying his or her see. For the truth is that the innovation in this instance sets a most dangerous precedent. And given the manner in which the Episcopal Church (USA) reveres illegal precedent, as in the case of citing the depositions of Bishops Davies and Larrea to justify its subsequent "depositions" of Bishops Cox, Schofield and Duncan, the establishment of any precedent so egregious and illegal as the one I am about to relate should, as I say, be enough to make any Episcopal bishop insecure. For this precedent involves the transformation of the office of the Presiding Bishop from a "primus inter pares", or first among equals, into a Metropolitan of the Church: a primate not in name only, but one in fact, who can swoop into any diocese and assume the Ecclesiastical Authority there.
The San Joaquin litigation is slowly proceeding to judgment day; trial is currently set for August 24, 2009. The Episcopal Church (USA) and the pseudo-Diocese, with its pseudo-Bishop Lamb and the "corporation sole" which he claims to occupy and control, have filed a motion for summary adjudication of their first cause of action for declaratory relief. For this to occur, Bishop Lamb and the Diocese have to prove, among many other things, that they are the genuine article---that is, that the entity which currently calls itself the "Diocese of San Joaquin" is truly and verily a duly accepted constituent member of the Episcopal Church (USA), and that Jerry A. Lamb is its duly selected and installed Bishop.
I was very interested to look at their moving papers, to see just how they would claim (under penalty of perjury, mind you) to have followed all the required procedures. Sure enough, they claim that everything was put right by the "Special Convention" held in Lodi on March 29, 2008. At that "Convention", the lay and clergy deputies supposedly approved resolutions (a) changing the diocesan Constitution and Canons back to what they had been before Bishop Schofield's diocese amended them on December 8, 2007; (b) confirming the selection and appointment of the Rt. Rev. Lamb as "Provisional Bishop"; and (c) authorizing "Provisional Bishop" Lamb to file changes to the articles of the corporation sole which undid the changes previously filed by Bishop Schofield, and to bring an action against Bishop Schofield and the diocesan trust and foundation to seek a return of all the diocesan property.
It all sounds nice and proper on the surface, doesn't it? Please take a closer look.
Section 4 of Article V of the Diocesan Constitution reads as follows:
Sec. 4. Special meetings of Convention may be called by the Ecclesiastical Authority at any time provided at least thirty (30) days notice be given. Notice of such meetings shall be given in accordance with the provision of Section 3 of this Article V. The lay delegates to the last annual meeting shall be entitled to seats and votes at such meetings, unless delegates shall have been chosen therefor by regular or special parish or vestry meetings.
The reference to the manner of notice is to the provisions of Section 3:
Ninety (90) days notice shall be given of the meeting of every Annual Convention by the Secretary of Convention. The mode of notice shall be a circular addressed to every member of the Clergy and to each parish and mission of this Diocese.
Now this is, as Chief Justice John Marshall once famously reminded us, "a Constitution that we are interpreting." It is not some run-of-the-mill, everyday piece of legislation that can be changed at the next session of the legislature. Changes to the Diocesan Constitution of San Joaquin require, as we saw when the Diocese voted to withdraw from the Episcopal Church (USA), passage of the changes by a majority at each of two successive annual Conventions. (And the vote on the second passage has to be by a two-thirds majority in each order.) So these provisions for a Special Convention are not to be treated lightly, and still less may they be disregarded, or dispensed with altogether.
And now we come to a better appreciation of the dilemma that was faced by those wishing to "remain Episcopal" in San Joaquin. For they were faced with a choice between Scylla and Charybdis---between a strategy guided by the national leadership, and a strategy of being true to their own identity. If they followed the former, they risked everything on winning in court. If they were instead true to their identity, they would start over now, and be organized and ready in time to apply to General Convention 2009 for admission to ECUSA as a full-fledged Diocese. Unfortunately for them, they chose to go with the strategy devised earlier by the Presiding Bishop and her Chancellor (or perhaps it was the brainchild of the PB's new "special counsel"---wait and see).
This strategy was, as I explained in this earlier post, a very high-stakes strategy---an all-or-nothing bet, like putting all your chips on the red seven at roulette. If you win, you win big, but if you lose, you lose everything. It is a strategy based on the following assumptions:
1. The changes made in December 2006 and December 2007 were beyond the power of the Diocese to approve, and so they were invalid, and may be rescinded.
2. The clergy and parishioners who voted for the changes were, by the very act of voting, disqualified by Canon I.17.8 (see below) from further serving as deputies to the Convention.
3. Thus the ones who refused to vote for the change (i.e., who wish to "remain Episcopal") are still qualified, may come together in a Special Convention, may vote to rescind the changes, and make the Constitution and Canons as they were beforehand. At the same time, they can place themselves under a new bishop.
4. Thereafter, the Diocese may continue as it was before, with a new Standing Committee, a new Bishop, and a new Diocesan Council.
5. And because the Diocese is continuing without any interruption in its existence, it does not have to re-apply to General Convention for admission; its Bishop may go to the House of Bishops and be received as an active bishop; and most important of all, both of them may file suit as plaintiffs against the former Bishop ("Mr. Schofield") and the entities that hold the title to all diocesan assets and funds. (No need to sue the former diocese at all; indeed, no need to recognize it as existing in the slightest, since it doesn't have any property in its name.)
Oh, a fine strategy it would have been, no doubt---if it were not for those pesky provisions in the Diocesan Constitution. For if you want to act on the fiction that the diocese continued in existence uninterrupted by what happened on December 8, 2007, then you have to accept that the Diocesan Constitution remained in full force and effect during the whole period of disruption as well (except for the unauthorized changes). And if that is the case, you also have to accept that the Constitution provides that the only person who may summon a Special Convention is the "Ecclesiastical Authority". And just who might that be?
Now, be careful here---we are talking about giving notice in accordance with Section 4 of Article V, as quoted above. The "Ecclesiastical Authority" must give at least thirty days notice, so if you want a Convention to be held on March 29 in Lodi (this being a leap year), the Ecclesiastical Authority must give notice at the latest by February 28. (Even though a notice mailed in the afternoon of February 28 is inadequate to give thirty full days' notice of a meeting that starts at 9:00 am on March 29, we are going by Roberts Rules here, which say that the notice is adequate if it is put into the mail on the thirtieth day.)
- The Ecclesiastical Authority of the Diocese decides to call a Special Convention.
- He/she notifies the Secretary of Convention as to the date, place and time of the meeting, and asks the Secretary to send out the appropriate notice.
- The Secretary of Convention prepares the notice and addresses it to all the clergy, parishes and missions of the Diocese.
- The Secretary mails those notices at least by the thirtieth day before the Convention.
What about the fact that the Presiding Bishop had inhibited Bishop Schofield on January 11? Wouldn't that mean he could no longer call a meeting? No, because the inhibition orders that he "cease from exercising the gifts of ordination . . . and . . . cease all 'episcopal, ministerial, and canonical acts, except as relate to the administration of the temporal affairs of the Diocese of San Joaquin'"(emphasis added). Now calling a diocesan convention is hardly an episcopal act; it sounds more like a temporal affair, especially since all it amounts to is telling the Secretary to give the notice. There is nothing "episcopal, ministerial, or canonical" about that.
However, we must remember that we are dealing with no ordinary lawyers here, but with the Chancellor to the Presiding Bishop and his law firm. It is obvious, is it not, that there is no way they will get Bishop Schofield to call a Special Convention. So the only other alternative is to interpret the inhibition as prohibiting him from even that small act. For people who play with words as some lawyers do, it's simple, really: just argue that since notice can be given only by the "Ecclesiastical Authority", then the giving of notice must be an "ecclesiastical act," and thus prohibited.
So now we turn to the constitutions again (both national and diocesan), which are in happy agreement that in the event there is no Bishop to act as the Ecclesiastical Authority, or no Co-Adjutor or Suffragan, then the Standing Committee of the Diocese assumes the Ecclesiastical Authority. (See ECUSA Constitution, Article IV, and Article III, Section 2 of the Constitution of the Diocese of San Joaquin.) And since every diocese has a Standing Committee, the line stops there. (Article VII, Section 3 of the same Constitution gives the Standing Committee the right to fill its own vacancies in between annual conventions.)
Very well, the Standing Committee shall give the notice, then. There is just one slight problem, however: about a month earlier, on January 25 to be specific, the Presiding Bishop sent a letter to the members of the Standing Committee, informing them that she could no longer recognize them as the legitimate Standing Committee of the Diocese, because they had each---or so she claimed in her letter, at least---joined with the majority on December 8, 2007 to vote to disaffiliate from the Episcopal Church (USA) and to join the Province of the Southern Cone. (Never mind that the vote on December 8 was unrecorded; the Presiding Bishop's grand strategy must surely have included the stationing of spies with video cameras to record the division of the Convention into those for and those against. And never mind that a number of its members---including its Chair---did not accept licenses from the Province of the Southern Cone, and continued to meet and to function as the Standing Committee after December 8.)
Acting as Judge and Jury, the Presiding Bishop thus "found" that the members of the Standing Committee of the (still existing, but fictional) "Diocese of San Joaquin" had "violated" Canon I.17.8, which provides:
Any person accepting any office in this Church shall well and faithfully perform the duties of that office in accordance with the Constitution and Canons of this Church and of the Diocese in which the office is being exercised.But wait! Where does that Canon say anything about the consequences of failing to abide by it?
Answer from behind: It doesn't. We made them up.
OK, but wait again! Isn't this Canon entitled "Of Regulations Respecting the Laity"? And aren't at least half of the members of the Standing Committee from the clergy?
Answer from behind: Right again. But since the language says "Any person accepting any office in this Church", we just say it applies to clergy as well.
All right . . . but what about the fact that when it says "that office", it is referring in this instance to an office in the Diocese? Shouldn't it be therefore be the Diocese that takes action in this case, and under this Canon? How does the Presiding Bishop use this Canon to remove people from a diocesan office?
Answer from behind: Oh, go away---you ask too many questions. We made up the penalty for violating it, so we can also say who gets to impose the penalty.
Ah, I see. So the entire Standing Committee is out of office, then---is that right?
Answer from behind: Now you've got it.
What we have here, on January 25, 2008, is the first overt act taken by the Presiding Bishop in executing her plan to transform her office into that of a Metropolitan. Only a Metropolitan could have so presumed to assert authority over the internal affairs of a member diocese; only a Metropolitan could have so arrogated the authority to "de-recognize" (a circumlocution for "fire") the legitimate members of a diocesan Standing Committee. Because, under the polity of the Episcopal Church (USA) as it had existed before that date, the Presiding Bishop could deal with individual dioceses through their bishops, and in the absence of a bishop, through their Standing Committee as a body, and not with individual members. Matters concerning the qualifications of individual Standing Committee members were for the diocese to resolve, and not for the national church or its Presiding Bishop.
But there was a grand strategy in place, and nothing---not even the historic polity that kept relations with the Presiding Bishop on a diocesan, and not individual, level---could be allowed to hinder its implementation. So, having inhibited the actual Bishop, and having found a way to "remove" the Standing Committee, the Presiding Bishop was "in for a penny, in for a pound": she herself would assume the role of the "Ecclesiastical Authority" of the Diocese for the purpose of giving the constitutionally required notice. A convention would be called! Now the next order of business had to be the removal of the inhibited Bishop, so that his see could be declared "vacant", and then the Special Convention could employ the useful provisions of Title III, Canon 13, section 1 of the ECUSA Canons:
A Diocese without a Bishop may, by an act of its Convention, and in consultation with the Presiding Bishop, be placed under the provisional charge and authority of a Bishop of another Diocese or of a resigned Bishop, who shall by that act be authorized to exercise all the duties and offices of the Bishop of the Diocese until a Bishop is elected and ordained for that Diocese or until the act of the Convention is revoked.Now the scenario was taking definite shape:
First, stop the existing Bishop from being able to do anything. Done.The problem here was a meshing of gears. The Presiding Bishop and her staff did not want it to seem as though the outcome in the House of Bishops was prejudged (hah!). In fact, however, they had begun the plans for a Special Convention to ratify her choice of a Provisional Bishop for San Joaquin well before the House of Bishops met to vote on Bishop Schofield's deposition. The provisions of Canon III.13.1 quoted above call for the Presiding Bishop to consult with the diocese's Convention, but once again, this is the Episcopal Church: we follow the letter of the Constitution and Canons only when they will help us implement the Grand Strategy to provide for a "new leadership". (The Presiding Bishop had actually announced that Strategy the day of the December 8 vote by the Diocese to disaffiliate.)
Second, axe the Standing Committee, so there will be no local "Ecclesiastical Authority." Done.
Third, step in as the acting "Ecclesiastical Authority" in order to give the notice . . .
Wait, wait---you're going too fast! I can't keep up with you!
What's the matter?
Well, if the Presiding Bishop becomes the "Ecclesiastical Authority" to give the notice, then shouldn't the Convention place itself under her?
I suppose it might, but we have to keep up appearances here. Besides, we need a plaintiff, and it can't be the Presiding Bishop. So it will have to be someone else. . .
But then she will have to depose Bishop Schofield first. But wait---how can she become the "Ecclesiastical Authority" before Bishop Schofield is deposed? Oh, right---he's only "inhibited", so she would be the acting "Ecclesiastical Authority." And then the Convention will select a new "Ecclesiastical Authority" after he's deposed, and then she can step down as acting Ecclesiastical Authority, and hand the power over to that person. . . OK, I'm beginning to see now . . .
Good. Now stay with me here, because I'm going to need some help thinking this thing through. We have to hold a Convention, which means we have to give notice thirty days ahead. But we can't vote to depose Bishop Schofield before March 12.
Why is that?
Because his inhibition was on January 11, and he has to be given sixty days for the opportunity to retract that Canon IV.9 requires. Remember, we are following the Canons to the letter here. So that means we have to wait until March 12. But the notice will have to go out earlier . . .
Thus it was that news began to circulate, about two weeks before the bishops met at Camp Allen on March 9, that a "Special Convention" was in the works for San Joaquin. The earliest such news story I can find on the Web is from Episcopal News Service, and is datelined February 27, 2008, almost the last possible day on which notice could constitutionally be given, as discussed above. The only trouble is, it appears as though the notice itself was not ready yet, because there were no final plans as of that date as to where the Convention would be held:
[Episcopal News Service] A growing number of Episcopalians in the Diocese of San Joaquin are opting to remain within the Episcopal Church (TEC) as the Fresno-based diocese prepares for an anticipated March 29 special convention that would elect a provisional bishop.
Presiding Bishop Katharine Jefferts Schori, in a letter to be distributed via a new diocesan newspaper, notes the proposed convention date and reassures the people of the diocese that work is ongoing "to ensure that you and your fellow Episcopalians may continue to bless the communities around you well into the future."
"I anticipate convening a Special Diocesan Convention on 29 March, at which you will elect new diocesan leaders, and begin to make provision for episcopal leadership for the next year or so," Jefferts Schori writes. "That gathering will be an opportunity to answer questions you may have, as well as to hear about plans for the renewal of mission and ministry in the Diocese of San Joaquin."
(Bold added for emphasis.) The article goes on to describe how the letter was the outcome of some meetings held with local laity and clergy, as well as with those clergy sent in by the Presiding Bishop to help the former organize (again, on what authority---if this is truly a diocese, as opposed to merely an area mission---goes without discussion):
The convention announcement follows a series of February 19-22 meetings with individuals and groups from Lodi to Bakersfield which the Rev. Canon Bob Moore called "very fruitful. We've been able to broaden the scope of people who may see a future in the reconstituted Episcopal Diocese of San Joaquin and that's been good," he said.
Moore noted as signs of progress the appointment of a 26-member steering committee to help continue the diocese (see roster below); 17 congregations who have opted to remain with TEC; the anticipated March 29 special convention to elect a provisional bishop; establishment of new diocesan headquarters in Stockton and a partnership with Episcopal Life Media to facilitate dissemination of information and to provide a new diocesan newspaper edition.
"It's an enormously big step," said Moore, of the new diocesan publication. "The lack of information here is profound," he said.
The Presiding Bishop appointed Moore, and later the Rev. Canon Brian Cox, as an interim pastoral presence to continuing Episcopalians after 42 of 47 diocesan congregations voted in December to leave TEC and to realign with the Argentina-based Anglican Province of the Southern Cone.. . .
Delegates to the anticipated March 29 convention will, in addition to electing a provisional bishop, also elect the standing committee, deputies to General Convention, provincial representatives and diocesan officers.. . .
The new publication will be edited by Doris Hall, who had retired in December 2007 after serving for 19 years as editor and ten years as associate editor of the diocesan publication, the "San Joaquin Star." (Hall is no relation to the Rev. Michael [sc. "Mark"] Hall.)
"I'm thrilled and excited," she said about the new publication, which is expected to publish its first issue in early March. "Now we can give people news about what's happening all over the Episcopal Church and not just locally."
So as of February 27, at any rate, this is not the constitutional notice itself: it is simply a letter which has not yet been distributed, but which will go out in a diocesan newsletter yet to be established, and the Presiding Bishop is only anticipating, and not yet formally noticing, a Convention to take place on March 29. And in getting the letter out, the right hand appears not to have told the left hand what it was doing, as may be seen by looking at this story that appeared March 7, 2008 in The Bakersfield Californian newspaper. The reporter states (I have added the bold for emphasis):
If Schofield is deposed, an election for an interim Episcopal bishop for San Joaquin would most likely take place during a special diocesan convention that Jefferts Schori has announced for March 29.
“There’s a number of people from all churches who have expressed interest in remaining in the Episcopal Church,” [public affairs representative Neva Rae] Fox said. Seventeen valley congregations have chosen to remain within the Episcopal Church, according to Episcopal Life Online.
The location for the special convention has not yet been determined, Fox said. But Estes, who said he continues to receive mail from the presiding bishop’s office, said a recent letter identified the convention location as the Episcopal Church of St. John the Baptist in Lodi.
Note how every story describes the document that was "publicized in the diocese" on March 3 as just a letter, and not an official notice. And here is another report, entitled "Bishops prepare for Camp Allen gathering", filed by Pat McCaughan with EpiscopalLife Online on March 6, 2008:
Bishops are also expected to determine whether or not Bishop John-David Schofield of San Joaquin has abandoned the communion of The Episcopal Church (TEC). If a majority of bishops decide that Schofield has abandoned the communion, the Presiding Bishop will be canonically required to declare the see vacant and appoint a provisional bishop.
It is the last step expected in a process that began with the December 8 convention vote of the Central California diocese to leave TEC and realign with the Province of the Southern Cone. A series of developments followed: a Title IV Review Committee determined that Schofield had abandoned the communion; the Presiding Bishop informed the standing committee elected in December that they were no longer recognized as that body; a steering committee was appointed to organize an anticipated March 29 special convention to elect a provisional bishop.
An "anticipated" convention is not a formally noticed convention. Moreover, the leadership was concerned not to leak any details of just what would be done at the anticipated convention in advance of the House of Bishops meeting. An article in The Living Church reported on March 7 reported that "[a] single candidate chosen to be the provisional Bishop of San Joaquin will participate in a two-day walkabout visitation to the diocese immediately after the House of Bishops' meeting concludes at Camp Allen in Texas on March 12." (Emphasis added.) The reporter went on to cite "rumors" that the "single candidate [already] chosen" was none other than Bishop Lamb.
The announcement of the visitation (again without disclosing that it would be Bishop Lamb) was also carried on the Remain Episcopal website, and so the only fair conclusion to be drawn is that by March 7, the Supreme Executive had secured the agreement of that group to her plans. Nevertheless, both Remain Episcopal and the Supreme Executive were complicit in a transparent attempt to maintain the fiction that the outcome of the Special Convention would not be a fait accompli. ("When contacted by The Living Church on March 7," the article says, "Neva Rae Fox, public affairs officer for Episcopal Life Media said Bishop Jefferts Schori 'has not made any kind of announcement about the designee.'")
The Living Church article, however, is even more significant for this statement a little further on (bold emphasis again added):
In a letter written on her official letterhead and made public in the diocese on March 3, Presiding Bishop Katharine Jefferts Schori announced her intention to call to order a special convention of the Diocese of San Joaquin at St. John-the-Baptist Church in Lodi on March 29.
19. On February 28, 2008, the Episcopal Church's Presiding Bishop, the Most Rev. Katharine Jefferts Schori, distributed a notice calling a special meeting of the Convention of the Episcopal Church's Diocese of San Joaquin for March 29, 2008.20. A true and correct copy of this notice, which I, in my capacity as a priest in the Diocese of San Joaquin, received on or about March 2, 2008, is attached hereto as Exhibit 9.
Why is that odd? Take a look at the Diocesan Constitution again. It is clearly headed:
DIOCESE OF SAN JOAQUIN
So which is it? Was the notice sent out for "the Diocese of San Joaquin", which unquestionably had a bishop in the eyes of the Episcopal Church (USA) on February 28? Or was it sent out for a still-to-be-organized "Episcopal Diocese of San Joaquin", which indeed did not have any bishop on February 28?
If it was the former, then the notice was defective both factually and procedurally: contrary to what it states, there was a bishop "at this time", and the notice is unsigned and undated. And if it was sent by the Supreme Executive, there was no canonical mechanism in place by which she was empowered to act as the "Ecclesiastical Authority" of the Diocese---even if she could prevail on her contentions that the inhibition was sufficient to prevent Bishop Schofield from being the one to give the notice, and that she possessed the power to "remove" the Standing Committee under Canon I.17.8. That is (count them!) six hurdles to overcome for the notice to be effective.
But if it was the latter, there is an even greater problem---because then the group that met on March 29 would not be same as the one that met the previous December 8. And that would shoot down the whole Grand Strategy of winning the pot by claiming to be the only player left.
Well, in for a penny, in for a pound, as I said. The legal solution to this conundrum devised for the Convention was to adopt a resolution, by which they "waived" any and all defects in its noticing.
It's just too bad that the careful requirements of notice in the Constitution are there for the benefit of those who decide not to show up in response to it, and not for the protection of those who do. So having those who do show up "waive defects" in the notice is legally about as valid as the fox saying that he got the chickens' consent before he absconded with them, and it's just too bad that they are no longer around to prove that what he's saying is true.
Now I promised you a while back a little reward for making it all the way through this "tangled web." I promised you a possible insight into the actual source of all this wonderful strategy. (It's only a possible source, mind you; I claim no inside knowledge. All I claim is the ability to put two and two together to make four, just like so many other people.)
I wrote earlier about the Presiding Bishop's announcement that she had hired a special counsel for litigation on issues of property and discipline. I pointed out how it made simply no sense, if one wanted an objective second opinion, to go to an associate of the Chancellor who had been advising one all along.
Then my good friend David Trimble, over at his blog Still on Patrol, made this astute observation about the possible reason for hiring Ms. Kostel (David Booth Beers's former associate) as the PB's new special counsel:
My guess? Beers is in the process of slowing down - he has been practicing law since 1961, and forty-seven years (longer than the Curmudgeon!) of this would wear down even the Devil himself, which may be an on-point comment in this case. But it also means that TEO is bringing in some fresh blood to head up their litigation team, although Ms. Kostel has obviously been involved for some time, given her memo to the Priestess about a uniform litigation strategy with the four departed Dioceses.
I think that was an excellent guess, David. In fact, the length of Ms. Kostel's involvement in these "property litigation and discipline matters" became a lot clearer to me when I happened to glance again through the Title IV Review Committee's documents on their reasons for charging Bishop Schofield with "abandonment of the communion of this Church". Take a look for yourself---it's a 13-page Adobe Acrobat document. Go to page 10 of 13, and check out the signatures.