Why Would Any Disciplinary Board Choose Ms. Hicks? (UPDATED -- See End of Post)

Your Curmudgeon takes pride in his attention to details -- and he does not like being misled. He is always happy to correct his mistakes, once they are pointed out to him, because no one should have a vested interest in spreading untruth. Thus when somebody feeds him wrong information, he cannot refrain from asking why they would have done so.

Consider the latest snafu over the "mistaken" listing of Ms. Josephine Hicks, the Church Attorney to the Disciplinary Board of Bishops, on the Official Roster of that Board as published on ECUSA's Website. She was still shown as a "Member" (i.e., a participant with a vote) as late as October 12, and yet on the previous September 30, she authored a letter to the President of South Carolina's Standing Committee, which she signed as "Church Attorney to the Board".

Now the Rt. Rev. Dorsey Henderson, former (resigned) Bishop of Upper South Carolina, is a canon lawyer. He has served on the predecessor to the Disciplinary Board (the former "Title IV Review Committee"). As such, he participated in the proceedings against Bishops Schofield and Duncan for so-called "abandonment of communion", which resulted in their faux "deposition" by a tiny minority of the full membership of the House of Bishops who are actually entitled to vote under ECUSA's Constitution, notwithstanding what the vindictive Presiding Bishop or her financially very interested Chancellor chooses to opine. So he is no stranger to the canonical process, especially in so-called cases of "abandonment."

On July 1, 2011 Bishop Henderson -- despite having his term on the Title IV Review Committee shown as continuing until GC 2012 -- transferred directly from his former position on that Committee to the new Disciplinary Board for Bishops, having been appointed to the Board by the Presiding Bishop under the purported authority of the new (but unconstitutional) Title IV Canons which "took effect"* on that date.

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*Constitutional scholars of the Episcopal Church (USA) might well want to ask themselves: what, exactly, went "into [canonical] effect" on July 1, 2011? The major part of the new "Title IV" has to do with proceedings at the diocesan level. But not a single one of those provisions could actually "take effect" within a Diocese unless that Diocese enacted them into law at its own earlier Convention -- so the far greater part of the new Title IV had no canonical effect whatsoever. General Convention, no matter what the revisionists may think, has absolutely no power to enact legislation for dioceses; it depends on them to take up the baton and follow its suit (which, to be sure, the vast majority of unthinking sheep did). The current crisis is all over one particular Diocese which chose, under its own careful reading of ECUSA's Constitution and the authority it grants to General Convention, not to adopt holus bolus every single "Canon" pushed through that body at the last minute, and with zero opportunity for meaningful debate.

To return to the chronology: we know that on that same day -- July 1, 2011 -- the Board held its first meeting, since it was now officially in business. The minutes are not yet published (why? because this is ECUSA, of course), but we may hazard a guess that the meeting was largely organizational. The Board needed to elect a President, and it elected the Rt. Rev. Dorsey Henderson. It also needed a Clerk, and it elected the Rt. Rev. Robert Fitzpatrick to that position.

But did it have any other business before it at that first meeting? Only the minutes will let us know for certain -- and the Board, being an official body of ECUSA, has not seen fit to publish them yet. But we can note from its Website that it met again, just six weeks later -- on August 17, 2011. And I find this simple fact most interesting.

Why? Do you remember the famous Sherlock Holmes mystery in which the most significant fact, in Holmes's view after explaining how he solved the case, was the dog that did not bark? That is rather what we have to observe in this case, as well. For (again according to the Board's official Web page) it has not met again ("barked") after August 17.

This observation, my dear Watson, raises at once the following question: Why did the dog in question "bark" on August 17 -- two full months ago -- but not once since? We know that the Board's President sent Bishop Lawrence a copy of the allegations of abandonment which it was considering during the month of September. But there was no official meeting of the Board during September; therefore, I conclude that the matter of the allegations against Bishop Lawrence was first presented at, and was indeed the very reason for, the unusually quick second meeting of the Board on August 17.

July 1 was a Friday; August 17 was a Wednesday. On both dates, a teleconference of the full Board needed to be arranged. It takes time to set up an acceptable date in advance for a Board consisting of eighteen members. Obviously the organizational meeting on July 1 could have been scheduled well in advance, as soon as it was known who would be serving on the Board.

But the meeting on August 17, just six weeks later, suggests that something had come to the attention of the Board in the interim. And it is only logical to infer that the "something" which had come up in the interim was the arrival of the letter(s) from South Carolina with allegations of "abandonment" on the part of Bishop Lawrence. Otherwise, there was absolutely no reason for the full Board to meet again so urgently.

Consider: at some point in the last few weeks, the Presiding Bishop was presented with a question of whether she should restrict ("inhibit") the resigned bishop of the Diocese of Olympia. Now he was not charged with "abandonment" (requiring the full Board to deliberate), but with adultery during his former marriage. The charges were found credible after they were taken up by the Intake Officer and an investigator, under the procedures I outlined in this post. And so they resulted in the bishop's inhibition (restriction from performing episcopal acts, such as ordination, confirmation, etc.).

But such a decision to inhibit pending further proceedings, I emphasize, did not require a meeting of the full Disciplinary Board. The Presiding Bishop, acting under metropolitical authority purported to be granted to her by these unconstitutional new canons, may "at any time" she pleases impose restrictions (inhibit) a Bishop against whom charges have been brought. She does not need the consent of the full Board, or indeed of any of its members, to exercise that power -- that is one of the significant changes between the old disciplinary Canons and the new.

The clincher, however, is that the current Bishop of Olympia stated on September 30 that he had become aware of the adultery allegations "several weeks ago", i.e., most likely still within the month of September, and most certainly after the Disciplinary Board's full meeting on August 17.

I conclude that the charges against the resigned Bishop of Olympia could not have been on the agenda for the full Disciplinary Board at its meeting on August 17. Then what matter was then before the full Board, which required all of its members to meet on that date? We have the answer, whether wittingly or not, from Bishop Henderson's statements: it was the "serious" charges of abandonment by then brought to the Board by unknown (and unforthcoming) persons in the geographical territory of the Diocese of South Carolina, whether communicants of that Diocese or not. (The new Title IV allows literally anyone to bring charges -- not just members "known to the Treasurer" of a parish.)

For the charges to have been delivered to the Board, and for its newly elected President to have scheduled a teleconference among all of its members on August 17, means that the charges would have come to the Clerk of the Board in sufficient time to arrange the August 17 meeting -- that is, probably in mid-July, or shortly after the Board itself was organized and "open" to do business.

Now please note this one additional fact: as of July 1, the date of the organizational meeting of the Board, there most probably was no occasion to hire a "Church Attorney" for the Board. Why not? Because there was not even a President elected as of that meeting. Unless there was in place a complete and foreordained program (which would emphatically not redound to the supposed "impartiality" of these proceedings), the Board needed to organize itself before it could begin to hire investigators and a Church Attorney. Moreover, if (as I have hypothesized) the charges against Bishop Lawrence were not submitted until after July 1's change in the national Canons, then there would have been absolutely no reason to engage a "Church Attorney" when there were no matters before the Board requiring such an official's attention. (As explained in this earlier post, the "Church Attorney" gets involved only after all the preliminaries before the Reference Panel, and an initial determination by its investigator, have been completed.)

So -- is the largely inescapable logic all clear now?

1. The Disciplinary Board could not legally have organized itself, and elected a President and a Clerk, before July 1, 2011.

2. At that meeting, the allegations against Bishop Lawrence were either already on the agenda, or they were not.

3. But if they were already on the agenda, the Board could not have proceeded to deal with them until after it had organized. It needed both a President to direct the proceedings, and a "Church Attorney" to investigate the charges under Canon IV.16, and to report to the full Board before it voted on their sufficiency, as provided in that Canon.

4. So in either event, the charges could not have begun to have been addressed until after the Board met again six weeks later, on August 17.

5. Unless the Church Attorney had been authorized to be hired at its July 1 meeting, then the Board either (a) voted to hire Josephine Hicks on August 17, or else (b) authorized the President to hire a Church Attorney of his choosing after that meeting, to make a full report to the Board.

6. Ms. Hicks wrote her letter to the DSC Standing Committee on September 30, 2011, as the Board's "Church Attorney", asking for information to assist her in her investigation for the Board.

7. It is thus logical to infer that the Board hired Ms. Hicks sometime after its August 17 meeting -- otherwise why would she wait until September 30 to open her investigation?

8. Also, please note that as of September 24, 2011, Google made a cache of the Board's Roster page, which showed Ms. Hicks as a "Member" as of that date.

It is inescapable from the foregoing facts that (a) the Board met to discuss what to do about allegations from South Carolina on August 17, 2011, and that sometime between that date and mid-September, it hired Ms. Josephine Hicks as its "Church Attorney" to investigate the allegations. And in that one logical conclusion from the available facts lies all that we need to know about the kangaroo character of these trumped-up proceedings against Bishop Lawrence.

Why? Ask yourself this question: Of all the available and qualified church attorneys to investigate Bishop Lawrence, why would anyone pick Ms. Hicks?

Of course, without an open and complete confession by Bishop Dorsey Henderson and the other members of his "impartial" Board, we will never know the absolute answer to that question. Nevertheless, just the asking of it, when combined with the following evidence, gives a clue to its answer -- because actions speak louder than words.

In July 2007, four bishops of the Church released the text of an inquiry which they had sent to the Executive Council, following the latter body's publication of a "Resolution" it had adopted at its June 2007 meeting which supposedly declared "null and void" all attempts by dioceses in the Church to amend their governing documents so as to qualify, in various ways, their "accession" to the Constitution and Canons of ECUSA. They also inquired as to the amounts which the Church was devoting to litigation, and followed their inquiry up with a formal letter signed by five bishops, dated August 27.

Their inquiries were answered in a letter sent November 29, 2007 from two members of the Executive Council: the chairs, respectively, of its Administration and Finance Committee, and of its Committee on National Concerns. The former was none other than Ms. Josephine Hicks, and you can read the full letter she sent at this link. Let us fisk relevant portions of it below, and then see why the author of this letter was considered as not just a suitable "candidate" for the position of Church Attorney to investigate Bishop Lawrence, but indeed, as the candidate to be preferred over all other applicants (if indeed there were any) for the post in question.

The first part of the letter in question addresses the Executive Council's recent enactment of "Resolution NAC 023", whose text was as follows (I have left unchanged the Council's sycophantic references to ECUSA as "The Episcopal Church" [sic] -- as if there were no other church led by bishops):

“Resolved, That the Executive Council, meeting in Parsippany, New Jersey from June 11-14, 2007, reminds the dioceses of The Episcopal Church that Article V, Section 1 of the Constitution of The Episcopal Church requires each Diocese to have a Constitution which shall include ‘an unqualified accession to the Constitution and Canons of this Church’; and be it further

“Resolved, That any amendment to a diocesan Constitution that purports in any way to limit or lessen an unqualified accession to the Constitution and Canons of The Episcopal Church is null and void; and be it further

“Resolved, That the amendments passed to the Constitutions of the Dioceses of Pittsburgh, Ft. Worth, Quincy, and San Joaquin, which purport to limit or lessen the unqualified accession to the Constitution and Canons of The Episcopal Church, are accordingly null and void and the Constitutions of those dioceses shall be as they were as if such amendments had not been passed.”

The letter then quotes the “Explanation” given at the meeting for passing the Resolution, as follows:

“Some dioceses of The Episcopal Church have purported to pass amendments to their diocesan Constitutions that repeal or limit the extent to which those dioceses are subject to the Constitutions and Canons of The Episcopal Church. The Dioceses of Pittsburgh, Ft. Worth, Quincy, and San Joaquin have done so, and other dioceses have taken initial steps to do so. Because such actions violate the Constitution of The Episcopal Church as a whole, they can have no force or effect and must accordingly be considered as completely ineffective.”

So here we have members of the Executive Council -- a body which has no authority under ECUSA's Constitution, and which was invented by General Convention on its own to allow certain actions to be "authorized" in between its triennial gatherings -- taking it on their own (actually, at the instigation of the Presiding Bishop's Chancellor, who was figuratively rubbing his hands in anticipation of the litigation which in 2007 he could foresee would ensue) to "pronounce" certain legislative acts by sovereign member dioceses (just like the sovereign States under the Articles of Confederation) to be "null and void", and "completely ineffective."

Oh, really? Is the Executive Council a "Supreme Court" of the Episcopal Church (USA)? No. Does it have any kind of Constitutionally granted jurisdiction or power over the member dioceses of the Church? Again, no. Pray tell, then: what is the source of its claimed authority to make such pronouncements as it did in "Resolution NAC 023"? Answer: None whatsoever.

But those constitutional facts do not stop our Ms. Hicks. For she then goes on to write (with her co-signer -- I have added the bold, for emphasis):

. . . [T]he Resolution simply reminds people of something we believe is obvious, namely, that the very essence of a Diocese of this Church is that it has stated its “unqualified accession” to the Constitution and Canons of this Church: Article V, Section 1, of the Constitution of The Episcopal Church states very plainly that when a new Diocese is formed, “after consent of the General Convention,” the new Diocese must file with the Secretary of the General Convention “a certified copy of the duly adopted Constitution of the new Diocese,” which must “include an unqualified accession to the Constitution and Canons of this Church . . . .” Upon approval of the Diocesan Constitution by the Executive Council, “such new Diocese shall thereupon be in union with the General Convention.” See also Canon I.10.4.

In enacting Resolution NAC 023, as the Explanation states, Council was motivated by the actions of several Diocesan Conventions that purported to qualify their previously stated accessions to the Constitution and Canons of this Church. These are alarming actions.

The "very essence" of a Diocese, Ms. Hicks? And for that "very essence" to be rejected by its actions in Convention is to you "alarming"? Having so expressed yourself in public in November 2007, Ms. Hicks, do you not consider that you might not be the most "impartial" of investigators to make recommendations to the Disciplinary Board concerning the similar actions of the Diocese of South Carolina in 2010 and 2011? (Forget, of course, that the actions were those of the South Carolina Diocesan Convention, and not of its Bishop individually. We know that you and your Board will have no difficulty in imputing the acts of the former to the latter, when it comes to judging "abandonment" -- by citing the case of Bishop Duncan as "precedent".)

But Ms. Hicks was not done with her legal asseverations in her response to the bishops. No: she had to add for them these words of precaution (bold again added):

Although this Resolution, contrary to the language in your “open letter,” does not contain “threats of litigation,” it is the case that Canon I.17.8 provides that

“Any person accepting any office in this Church shall well and faithfully perform the duties of that office in accordance with Constitution and Canons of this Church and of the Diocese in which the office is being exercised.”

Moreover, any violation of the Constitution or Canons of the General Convention by a “Bishop, Priest, or Deacon of this Church” is a presentable offense. Canon IV.1.1(e).

We very much hope and pray that there will be no further occasion to refer to these provisions.

Oh, that is couching it so nicely and gently, Ms. Hicks -- rather like an iron fist inside a velvet glove. To translate, for the layperson, what you just said: "You dare to disobey our Constitution / Canons and you are outta here, Bub -- Bishop or no Bishop." And now we see: no wonder the Disciplinary Board chose you, of all candidates, to investigate the charges against Bishop Lawrence.

Oh, I'm sorry -- but you were not done yet, were you Ms. Hicks? You decided that you needed to put in a plug for the Church's infamous Dennis Canon (bold again added):

We are quite frankly stunned to learn of the actions of priests and lay leaders who undertake to leave The Episcopal Church [sic] and yet to maintain control and ownership of church buildings and other assets that belong to the Church and have been held by them only in trust.

As you know, that Canons of the Church are very plain on this subject. The first sentence of Canon I.7.4 states unequivocally that

“All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission, or Congregation is located.” See also Canons I.7.5 and II.6.4.

Canon I.7.4 goes on to state

“The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.” (Emphasis added.)

In case after case, state and federal courts have ruled that, inasmuch as The Episcopal Church [sic] is a “hierarchical church,” its decisions must be respected by the courts. This means that the Canons quoted above must be honored by church leaders, and if they are not so honored the courts will enforce them. We do not understand how, in the face of this clear canonical language and the long line of precedent, priests and lay leaders, and the lawyers who advise them, insist on retaining title to the property of a Parish even as the individuals decide to leave The Episcopal Church [sic]. If they leave, they leave as individuals, and the property remains part of the Church they have left.

Wow, Ms.Hicks -- and that was your view of matters before the South Carolina Supreme Court ruled the Dennis Canon itself void and of no effect whatsoever in that State? It's a good thing, I guess, that the Diocese did not hire you back then to represent them in the Supreme Court -- otherwise, you most definitely would have been disqualified from participating in any investigation into the charges against Bishop Lawrence today.

But thank goodness for ECUSA: they know a good attorney when they see one, and they (Bishop Henderson and his fellow Board members) saw how useful a perspective you could bring to their job of weighing the charges against Bishop Lawrence for -- among other things -- refusing to go back to court after the All Saints decision to waste yet more of the Diocese's precious money in trying to enforce the Dennis Canon against St. Andrew's in Mt. Pleasant. Oh, yes -- you certainly could be "impartial" in any such inquiry, given the views you expressed three years earlier, in public, and as an official of the Executive Council of the national Church. That is of the essence of what the Church calls "unbiased and impartial."

Let's see -- you weren't quite done yet, were you, Ms. Hicks? You tossed in this "friendly advice" to clergy who, like Bishop Lawrence, might be dissuaded -- even by their State's Supreme Court -- from claiming that the Dennis Canon created any kind of operative legal trust within their borders:

If these persons would acknowledge the undisputed provisions of the Canons, and the court cases enforcing them, there would be no need for litigation, and there would be no need for The Episcopal Church or its Dioceses or its Parishes to expend on litigation funds that should be devoted to the mission of the Church.

"[A]cknowledge the undisputed provisions of the Canons," Ms. Hicks? "Undisputed," as in the 2009 case of All Saints Waccamaw vs. Diocese of South Carolina? Oh, certainly -- certainly anyone in authority in the Diocese of South Carolina, after that decision came down, should see the necessity of "expend[ing] on litigation funds that should be devoted to the mission of the Church" in a futile attempt to get the Supreme Court of South Carolina to reverse its opinion. Oh, yes -- that would make perfect sense, and once again, we see just why the Disciplinary Board wanted you as its "Church Attorney" to look into Bishop Lawrence's alleged failure to follow the law as laid down by his State's Supreme Court.

But you just couldn't let matters rest there, could you, Ms. Hicks? You just had to dig your claws into the poor bishops who asked for your opinion. And so, as a parting shot, you signed your name to these unforgettable words (with bold and italics added, lest anyone miss your main point):

But we and the Presiding Officers have a responsibility to protect the assets of The Episcopal Church [sic] and to preserve its structure. That structure, as set forth in the Constitution and Canons, confers on the General Convention the sole authority to make changes in the identity and responsibilities of Dioceses. Unilateral actions by Diocesan leadership that are contrary to the Constitution and Canons should not be tolerated by any active or retired Bishop.

Thus we see that you claim not only to speak for the Executive Council, Ms. Hicks, but also for the Church's "Presiding Officers" -- that is, we must assume, for the Presiding Bishop who has to act on your Board's recommendations. So that must mean you have a direct ear to what she thinks, since you told us what it is.

Well -- if we had the least doubts about your impartiality before, Ms. Hicks, you have certainly set our minds at rest with these concluding observations you expressed in 2007. No, you made up your mind on all these issues two years before Mark Lawrence took a stand against General Convention as bishop of his Diocese. And that, of course, is the principal reason why Bishop Dorsey Henderson and his full Board wanted you, and only you, to be their impartial and independent "Church Attorney" for their kangaroo proceedings against Bishop Lawrence.

There are none so blind as those who will not see. ECUSA, its leadership, and its entire disciplinary machinery, are so incapable of seeing their bias that they should require all further proceedings in this kangaroo court to be conducted in Braille.

[UPDATE 10/14/2011: The Living Church Website is carrying an announcement from Bishop Henderson that he has accepted the resignation of Josephine Hicks as the "Church Attorney" to the Disciplinary Board for Bishops in its investigation into the charges that Bishop Mark Lawrence has "abandoned the communion of this Church." He gives these reasons for her recusal:

Ms. Hicks has withdrawn from all involvement in the Board’s investigation and/or consideration of the Bishop Lawrence matter because unanticipated circumstances have created the possibility of a conflict arising regarding fiduciary responsibilities for members of her law firm as matters develop. For reasons of professional responsibility, she is not at liberty to disclose any details concerning that possibility.

The recusal, therefore, was not for any reasons of bias and prejudging of the issues, as indicated in my main post above. Indeed, Bishop Henderson keeps his blinders on:

Any apprehension, implication or suggestion that Ms. Hicks’ work would not be impartial is unfounded, just as the claim that she served as a member of the Board is unfounded.

Of course, Bishop Henderson has not yet seen the "work" that he claims would be so impartial, but it is now an academic point. We traditional Episcopalians wait with bated breath to see whom the Disciplinary Board will hire next. (Hint: it won't be your Curmudgeon, for the same reasons it never should have been Ms. Hicks.)]