What Is It about "Conflicts of Interest" that the Kangaroo Court Cannot Understand?

The term "kangaroo court" is a mid-nineteenth century Americanism that may have hit its stride during the days of the Gold Rush, when rough and ready justice was meted out on the spot in the mining camps and unorganized territories of California. But its meaning has always been well-established, even if its etymology is not clear: it refers to a rigged proceeding to deliver "justice" to some poor victim or unlucky offender who has aroused the popular ire of the moment. The judge is in on the script, the jury is stacked, and the victim generally does not know what hit him until later, because the trial proceeds so fast.

In such an atmosphere, the words "conflict of interest" have no meaning or consequences. The jury foreman may be the judge's brother, and the prosecuting attorney the judge's son. All they care about is railroading the defendant(s) as quickly and thoroughly as they can -- and they have all the power in the situation.

The current attempt to bring canonical charges against the bishops (and, to date, one presbyter) who exercised their First Amendment rights to offer testimony or legal argument to the courts in Illinois and Texas is a case in point. In the Fort Worth case before the Texas Supreme Court, seven bishops and three presbyters within the Episcopal Church (USA) filed a "friend-of-the-court" (amicus) brief, which took the position that ECUSA is not a three-tier hierarchy (1 - "national church"; 2 - diocese; 3 - parish), but has a hierarchical relationship only between the bishop diocesan and the resident clergy of any given diocese.

They contended in their brief to the Texas Supreme Court that because of this characterization of ECUSA, then then the Court should, if it agreed to maintain the century-old "deference standard," defer to the defendant Episcopal Diocese of Fort Worth and its bishop, the Rt. Rev. Jack W. Iker, as the highest "ecclesiastical authority" in the jurisdiction in dispute.

This simple (and entirely true) contention was attacked by five other ECUSA bishops in Texas (+Lillibridge,  +Doyle, +Ohl, +Vono and +Gulick -- the latter as the Provisional Bishop of the faux diocese of Fort Worth) in an amicus brief they filed with the members of the faux diocese's "Standing Committee" last February (pdf download at this link). And it is the latter "Standing Committee" who are the complainants (along with one other person) who filed the Title IV charges against the Fort Worth Seven.

Did you follow that? The complainants (plaintiffs) against the Fort Worth Seven are the very same ones who filed their own brief with the Supreme Court of Texas, together with four other Episcopalian bishops. Their brief happened to disagree with that of the Fort Worth Seven, but so what? Is it now against the canons of the Episcopal Church (USA) for some bishops to disagree with others?

Apparently so; indeed, tragically so (for the Church). Matters have come to the point where the bishops on the Disciplinary Board want to punish certain orthodox bishops -- not for expressing their views to the Texas Supreme Court (because Bishops Lillibridge et al. did that as well, and they are not being held subject to discipline) -- but for what they said to that Court. In other words, the bishops' First Amendment rights of free speech do not exist in the Church, if this kangaroo prosecution proceeds.

And proceed it will, according to an astonishing letter from the Rt. Rev. F. Clayton Mathews, who is the Intake Officer for the Disciplinary Board for Bishops, appointed by the Presiding Bishop. Dated October 2, 2012, it contains this paragraph (I have added the bold for emphasis):

The complaints were filed by the Standing Committee of the Diocese of Fort Worth and Mr. Paul Ambos, a member in good standing of Christ Church, Brunswick, New Jersey and a Deputy to the 77th General Convention from the Diocese of New Jersey. They allege you violated Canons IV.3.1, and Canons IV.4. Sec. 1(c), (e), (g), (f), (h)(6), (h)(8), and possibly IV.4. Sec.1(h)(2) [sic]. My task as the Intake Officer is to determine whether the information, if true, would constitute an Offense; and if the complaints are so determined, to forward them to the Reference Panel, Canon IV.6. Sec.7. After reviewing the complaints and participating in the "closed" sessions of the House of Bishops meetings during the 77th General Convention held this past July in Indianapolis, I, as the Intake Officer, have determined that the alleged canonical violations contained within these complaints, if true, would constitute an Offense, and am forwarding these complaints to the Reference Panel.

Bishop Mattews, incredibly, sees no problem in serving as the Intake Officer for these particular charges after he participated in closed-door discussions at the House of Bishops last summer between the accused and their episcopal accusers. He specifically references those discussions as one of the sources of information that played a part in his decision that the charges would, "if true," constitute an Offense under the Canons!

Will no one tell Bishop Mathews that he ought to have recused himself from dealing with these charges because of that very participation? Look at what his own Canons say (IV.19.14 [b]; my bold emphasis):

(b) Any member of any Panel provided for in this Title shall disqualify himself or herself in any proceeding in which the member's impartiality may reasonably be questioned. The member shall also disqualify himself or herself when the member . . . (4) has personal knowledge of disputed evidentiary facts concerning the proceeding . . . .

Bishop Mathews has convicted himself out of his own mouth, and in writing to boot. This entire proceeding is invalid from the outset, since he made the crucial first determination to forward the charges to the Reference Panel.

And just who sits on the "Reference Panel"? Why, it's Bishop Mathews again, wearing his "Reference Panel" hat! Also sitting with him are Bishop Dorsey Henderson (retired) of the Diocese of Upper South Carolina, and -- you guessed it -- the Presiding Bishop of ECUSA. Are either of them disqualified?

I cannot speak for Bishop Henderson, since I do not know if he was in attendance at the House of Bishops meetings in Indianapolis. But I can certainly say that Presiding Bishop Jefferts Schori was there, and that she participated in -- nay, directed and led -- the discussions. There is no way that she is not disqualified.

(Bishop Henderson might be disqualified under an additional proviso of Canon IV.19.14 (b) (6), if he has "a close personal or professional relationship" with any respondent or any complainant. I would be surprised if most of the Fort Worth Seven had not felt, before now, that they had a close personal and professional relationship with Bishop Henderson, since they all have been in ECUSA for more than twenty years, if not much longer, and have been meeting collegially at least until Bishop Henderson's retirement.)

According to a second letter received by the Fort Worth Seven from Bishop Mathews (dated October 19), the "Reference Panel unanimously decided ... that the complaint will proceed with ... Conciliation pursuant to Canon IV.10. After obtaining the agreement of the complainants, we will include in the process some representatives from the House of Bishops, in the spirit of our closed sessions, appointed by The Presiding Bishop [sic!!]. After some research for potential persons to serve as Conciliator, I will meet on October 29th with the person, who we hope will serve as the Conciliator..." [my bold emphasis].

So the kangaroo court proceeds apace, directed by "The Presiding Bishop"™ (of "The Episcopal Church" -- aren't we getting a little monomaniacal here?). She will appoint other bishops to get involved, and she also appoints the Conciliator. The complainants will be consulted and their agreement sought, but the Fort Worth Seven -- the "Respondents" -- will not have any role in determining the process to be used against them. Do you see just how fair a kangaroo court this is?

[UPDATE 10/26/2012: Episcopal News Service has now picked up on this story, and manages to go through it all without mentioning anything about disqualifications of the Reference Panel for conflict of interest. "Move on, folks -- nothing to see here -- just 'some blogs' circulating private information on the Web." This official spin is itself part of the very problem identified in this post: everyone at 815 is simply pretending that this is, to use the words of the DBB's President, "business as usual."]

The object of "Conciliation" under Canon IV.10 is to reach an "Accord" pursuant to Canon IV.14:

Sec. 1. An Accord may (a) provide any terms which promote healing, repentance, forgiveness, restitution, justice, amendment of life and reconciliation among the Complainant, Respondent, affected Community and other persons; (b) place restrictions on the Respondent's exercise of ministry; (c) place the Respondent on probation; (d) recommend to the Bishop Diocesan that the Respondent be admonished, suspended or deposed from ministry;(e) limit the involvement, attendance or participation of the Respondent in the Community; or (f) any combination of the foregoing. An Accord may be conditioned on the Bishop Diocesan imposing any recommended admonition, suspension, deposition or conditions for restoration to ministry. An Accord providing for suspension from ministry shall specify on what terms or conditions and at what time the suspension shall cease. Any Accord providing for limitation upon the involvement, attendance or participation of the Respondent in the Community shall also provide conditions for restoration.

Subsection (a) sounds airy and grandiose, but subsections (b) through (f) are purely punitive in character. And if such kinds of punishment imposed on any of the Fort Worth Seven or Quincy Three will "promote healing, repentance, forgiveness, justice and reconciliation" in the Episcopal Church (USA), I will eat my hat.

It just gets more and more ominous. Section 3 of Canon IV.10 states: "If conciliation cannot be achieved within a reasonable time, the Conciliator will report such to the Bishop Diocesan, and the matter will be referred back to the Reference Panel" (bold emphasis added). At that point the Panel will choose among the options remaining to it: (a) determining that an appropriate "Pastoral Response" under Canon IV.8 will be sufficient (such "Pastoral Response" to be devised and imposed by The Presiding Bishop™ acting unilaterally so as to "promote healing, repentance, forgiveness," etc., etc., i.e., +Jefferts Schori could simply impose her own discipline on the Fort Worth Seven and the Quincy Three); (b) investigation in preparation for a subsequent hearing (trial); or (c) referral to The Presiding Bishop™ for agreement on terms of discipline -- i.e., the same thing an Accord would do.

Isn't it strange how, under these new and supposedly much more flexible Canons, all paths seem to lead to the same outcome? That outcome is action by Herself (The Presiding Bishop™), whether pursuant to an "Accord," a "Pastoral Response", or a sentence following a hearing. And don't forget Herself's new metropolitical powers under Canon IV.7: she may, at any time during this entire process, cut matters short and issue a "Pastoral Directive" which unilaterally imposes any sentence she wishes (short of full deposition).

To be sure, any such Directive is subject to review by the Conference Panel or the Hearing Panel (depending on where the case is when it issues), and may be overridden, affirmed or modified by that Panel, or by any subsequent Order it issues after conducting a Conference (informal) or Hearing (formal), respectively. Given that the episcopal (and some lay and clergy) members of those Panels are each partial for the reasons I set out in this earlier post, there is no reason to expect a fair outcome as long as disqualified members will not recuse themselves.

And just what are these specific violations of Canon IV.1 which the impartial Intake Officer, based in part on his own participation in the "private sessions" at the House of Bishops, determined, in all his objectivity, that the Fort Worth Seven may have committed? Ah, well -- now, that's a whole other post.

(To be continued.)