One Rule for Thee, A Different One for Me

Episcopalians should remember the nine bishops who were subjected to proceedings under the new Title IV disciplinary canons for having the temerity to file papers opposing the Presiding Bishop's official position in U.S. courts that ECUSA is "hierarchical."  Your Curmudgeon criticized those proceedings severely at the time, because the Presiding Bishop acted as chief complainant, prosecutor, judge and jury throughout.

The proceedings ended in an "Accord," which stated the terms upon which the charges were settled. However, the Accord itself remained confidential at the time, under both the provisions of Title IV, and the Agreement to Mediate signed by all parties to the Conciliation that took place in Richmond, Virginia in January of this year under the direction of Prof. John Douglass. Specifically, I can now disclose (see below) that the Agreement to Mediate provided:

-Statements and documents generated in the process of Conciliation are confidential unless otherwise agreed by all parties and the Conciliator;
-Confidential materials and communications are not subject to disclosure or subpoena in any judicial, administrative or disciplinary proceeding ...

The Accord was reached at the close of the Conciliation, but agreement had to be secured from all the Complainants and Respondents (the nine bishops) who did not personally attend the Conciliation. Finally, in accordance with Canon IV.14.5, the Presiding Bishop (whom Title IV places in charge of disciplinary proceedings against her fellow bishops) had to agree (or disagree) with the Accord within thirty days after all parties and the Conciliator signed it.

Some alert readers may remember that Bishop Dan Martins of Springfield, one of the nine respondent bishops, put up a post at his blog shortly after the Conciliation, which he attended. The post recorded  his experiences with the process, and the fact that an Accord had been reached.  But because not all parties, nor the Presiding Bishop, had yet signed the Accord, he was asked to take it down, and did so promptly  -- pursuant to the express terms in the Agreement to Mediate, quoted above.

Under Canon IV.14.12 (b), the Presiding Bishop is to give "notice" of the Accord to the Ecclesiastical Authority in each Diocese of the Church, as well as to the Primates and Archbishops of the provinces in communion with ECUSA, and other officials. Notice of the Accord, however, is not necessarily the same thing as revealing its actual text. In order to preserve confidentiality, one would expect a simple communication of the fact that the Accord was reached, and of any sentence pronounced as a result of it. (Here the Accord did not provide for any sentence.) And one certainly would not expect that any such communication would go further than the specific recipients named in the Canon.

Notwithstanding the confidentiality provisions in the Agreement to Mediate, and in Title IV itself, the Office of the Presiding Bishop issued a press release on March 8, 2010 which included the full text of the Accord! Indeed, it turned out that the very text of the Accord called for its "publication ... as required by Canon IV.14.12 (b)" (my emphasis). Paragraph 10 of the Accord stated (again, with my emphasis added):

The Parties and their agents reaffirm, attach and incorporate herein by reference the Agreement to Mediate executed on or about January 8, 2013, and specifically reaffirm that the provisions regarding the confidentiality of the Conciliation process as described therein remain in effect hereafter, except for the publication of this Accord as required by Canon IV.14.12(b).

Required? Required?? As a canon lawyer of some long standing, I have to say that I would never have agreed to this language on behalf of my clients. As stated above, the most that Canon IV.14.12 (b) requires is that "notice" of the Accord be communicated officially to specified officials within the Church and the Anglican Communion -- but not to the public at large, through a press release.

After the Presiding Bishop issued her press release with the full text of the Accord, Bishop Martins put up a post explaining why he agreed to its terms. He did not say anything more of substance, however,  about what went on in the Conciliation itself, since Paragraph 10 required him to maintain the confidentiality of those proceedings.

I noted at the time that some of the other provisions of the Accord text seemed designed to undercut the earlier statement made by the nine bishops and their colleagues as "Communion Partner Bishops".  Paragraphs 6 and 7 of the Accord stated:

6. Respondents acknowledge that the 2009 Bishops’ Statement on the Polity of the Episcopal Church is likely a minority opinion.
7. Respondents affirm that the authority of a diocesan Bishop is limited by the Dennis canon (Canon I.7.4).

(N.B.: Indeed, the latter statement is particularly poignant in light of the subsequent ruling by the Orange County Superior Court, which I discussed here.)

However, given the confidentiality provision which expressly continued in effect after publication of the bare text, unaccompanied by anything more, I did not see a way in which the Church could seek to use the Accord in any future proceedings.  And now, as I have only recently discovered, the Agreement to Mediate, which was incorporated into the Accord, provided that the document could not even be produced pursuant to a subpoena! (See the language quoted above.) There was to be a one-time publication of the text, and apparently both sides had agreed that such publication would be the end of the matter.

Well, was I ever wrong! I can now report that it appears the Church's litigation strategy took precedence over the terms to which all parties, including the Presiding Bishop, had agreed upon by signing the Accord with its incorporated Agreement to Mediate. Or, perhaps more accurately stated, the Accord was designed and intended by 815 from the outset to be used by the Church in litigation, in defiance of its express terms.

Why can I now say this? Indeed: only because in the recent Quincy trial, the full Accord (with its attached Agreement to Mediate, and concurrence in the Accord signed by the Presiding Bishop) was offered and received into evidence as Exhibit 204B. So I now have a copy, as does every attorney who participated in the trial -- and Judge Ortbal and his clerk have it, too. (Out of respect for the bishops  who were falsely induced to sign it, I decline to publish or quote it to any further extent than I have already above.)

Well, who offered the full Accord into evidence, in violation of its own terms? I can assure you that we (the attorneys for the Diocese of Quincy at the trial) did not obtain a copy of it from our witness, the Rt. Rev. Peter Beckwith, who was the Bishop of Springfield before Bishop Martins, and who was one of the bishops charged with violating Title IV. And we certainly did not offer it into evidence.

No -- by now, you must have guessed. The full Accord document was voluntarily offered into evidence at the trial by ECUSA's attorneys.  (That would be David Booth Beers, the Presiding Bishop's own Chancellor, and Mary Kostel, the Presiding Bishop's "Personal Assistant for Church Litigation."  They, along with local Illinois attorney Thomas Ewing, represented ECUSA and the Episcopal rump diocese of Quincy at the trial.)

And they offered the document into evidence at the last minute, after the trial had already begun.  This was a conscious decision (what else could have been the reason, after the trial had started?) by the Presiding Bishop's own attorneys to disregard the language of the Accord in order to impeach Bishop Beckwith's expected testimony at trial. (For the Accord made the bishops promise not to submit any additional "amicus brief or affidavit", but it did not prohibit them from testifying in open court -- which almost certainly would have run afoul of their First Amendment rights, to say nothing of subjecting the participants in the Accord to a charge of suppressing evidence.)

Once the Accord was made an Exhibit, Quincy's attorneys knew what their opponents' plan was: to wait until Bishop Beckwith testified that the Episcopal Church was not "hierarchical", and then to cross-examine him with his statement that his view was "likely a minority opinion."  ("Minority" in regard to what? The Accord did not say, in order to provide the impeachers with maximum flexibility in their cross-examination.)

And so Quincy's attorneys did what any experienced trial attorney would do, faced with such a potentially damaging document. Tad Brenner, the longtime Chancellor of the (now Anglican) Diocese of Quincy, showed the document to Bishop Beckwith during his direct examination -- before David Booth Beers could use it in cross-examination (after all, the document was now in evidence before the Court, by stipulation of the parties). And the following colloquy then occurred:

Q. Now, back in April of 2008, you signed a document entitled "The Bishop's Statement on the Polity of the Episcopal Church." Do you recall signing that document? 

A. Yes. I do. 

Q. Did you, additionally, sign an affidavit in this case whereby you affirmed your views as expressed in that document? 

A. Yes. I did. 

Q. Were any types of complaints or charges brought against you as a result of those actions? 

A. Yes. There was. 

Q. And when was that complaint initially made? ... Was it roughly the fall of 2012? 

A. Yes. 

Q. And, if you know, was that shortly before the plaintiff in this case was required to disclose witnesses? 

A. Apparently. 

Q. Now, that situation was resolved roughly a month ago, is that correct? 

A. Yes. ... 

Q. And you signed a document called "An Accord," which is going to be Exhibit 204B. Do you recall signing that document? 

A. Yes. I did. 

Q. Why did you sign that document? 

A. The active bishops, who also were a part of that action, wanted to get on with things and put that behind them. That was a main motivator. I didn't see anything in it that really was a specific issue. I could -- I could read into it enough generality so that I could sign it in good conscience. 

That much was intended to, and did, take the sting out of Mr. Beers's anticipated cross-examination. Chancellor Brenner went on, however, to deal with the other statements in the Accord, and ran into an objection from Chancellor Beers when his questions came too close to minimizing the text of the Accord altogether:

Q. Now, in terms of the other folks against whom charges were brought, were they bishops who had also signed affidavits on behalf of the Diocese of Quincy? 

A. Yes. 

Q. Or bishops who had signed an amicus brief for the Diocese of Fort Worth? 

A. Yes. 

Q. Now, there are three statements in that accord, one of them is that the signatory said that the bishop's statement on polity is, quote, likely a minority view. Do you recall that section? 

A. Yes. 

Q. What does that mean? 

A. Well, to me, it meant if you took the opinions or held a vote in the House of Bishops, it probably would be a minority position. 

Q. Today? 

A. Today. If you had taken that in '92, it would have been a slam dunk. I mean, overwhelmingly, it would have been approved. And the church, as a whole, in my opinion, would embrace that a hundred percent. That's classic Anglican theology and polity. 

THE COURT: Do you have an objection, Mr. Beers? 

MR. BEERS: Yes. I do. I move to strike this [as] sheer speculation. There's no foundation for his opinion. 

MR. BRENNER: I think he has given some foundation. This witness has served as a diocesan bishop for a good number of years. He was ordained as a priest in 1961. ...

Q. Let me ask this question: You've been a priest for more than 50 years? ... 

A. It will be -- it will be 50 -- I will [have been] ordained [for] 50 years [on] June 29, 2014. ...

Q. In terms of your longevity with the [church], do the views expressed in that document reflect the historic views of the church, as you understand them? 

A. Absolutely. 

So Bishop Beckwith was able to assert clearly that the views of the Communion Partner Bishops were the Church's traditional views, and imply that the views being advocated in the current lawsuit were claims newly invented for the occasion.

Chancellor Brenner had a few more questions about the Accord:

Q. Now, you also state in that accord that you will not sign any further affidavits or amicus briefs, is that correct? 

A. That's -- that was the agreement. 

Q. Additionally, there's a statement that reads something to the effect that "the so-called Dennis Canon applies to diocesan bishops." 

A. Yes, as much as canons apply. 

Q. What do you mean by that? 

A. Well, canons have an application to every diocese and, therefore, every -- every bishop that is not -- that does not necessarily mean -- it certainly doesn't mean to me that you take it at how it's being interpreted today. 

Q. Is a diocese able to disregard a canon? 

A. Certainly. 

Q. Have you seen that happen on many occasions? 

A. Absolutely.

All in all, this was a very effective de-fanging of the anticipated cross-examination which Mr. Beers would make. The proof, after all, was in the pudding: when it came time for his cross-examination, Chancellor Beers confined it to questions about the recent depositions of various bishops, and asked not a single question about the Accord.

Notwithstanding the fact that 815's intended scenario did not pan out in this instance, the brutal fact remains: 815 was prepared to jettison the terms of the Accord entirely if it would advance their litigation strategy -- regardless of what the Presiding Bishop had signed onto with the accused bishops -- and to parade it openly and fully in court.  

Confidentiality? What does that mean, or matter, to the Presiding Bishop and her attorneys?

Bishop Martins and his colleagues who signed the Accord now have a complete picture of what it means to enter into a pact with the current leadership of the Episcopal Church (USA): "One rule for thee; but a different one for me ...". (Reading some of the comments at his earlier blog post serves only to drive home this point.)

Is there a remedy for this gross violation of the confidentiality provisions of the Accord? Well, of course there is -- on paper. It's just that any charges lodged, you see, would have to be vetted first by the Presiding Bishop's designated Intake Officer, the Rt. Rev. Clayton Matthews. And then, any complainant would have to put forward evidence that David Booth Beers and Mary Kostel were acting in accordance with the Presiding Bishop's wishes (or dare I say: instructions?), and were not off on an independent lark of their own. For as laity, neither the Presiding Bishop's Chancellor, nor her Special Assistant for Church Litigation, are chargeable under the current provisions of Title IV. (Nor did they sign on to the Accord.)

It's a rather neat set-up, don't you think? Get the uneasy bishops to face disciplinary charges, and then soft-soap them with promises of full (well, almost) confidentiality. And then disregard the terms of the Accord entirely, thereby letting the accused bishops know that nothing, absolutely nothing, will stand in the way of intimidating them to whatever extent may be necessary to keep them silent.

In other words, despite your own contempt for the language of the Accord, continue to hold it over them, to intimidate them from attempting to commit such an outrageous act of disloyalty ever again. And if the bishops allow that continuing intimidation to affect their actions, then I pray for them, and for the future of a Church that is in such cynical and calculating hands.