Monday, April 28, 2008

A High-Stakes Game in San Joaquin

By now most Internet-savvy readers with an interest in the goings-on in San Joaquin have found this link to a copy of the complaint in the case brought by the [Episcopal?---see below] Diocese of San Joaquin, the Rt. Rev. Jerry A. Lamb, and The Episcopal Church, as plaintiffs, against [the Rt. Rev.] John-David Schofield, the Episcopal Foundation of San Joaquin, Inc., the Diocesan Investment Trust of the Diocese of San Joaquin, and various yet-unnamed individuals identified only as "DOES 1-300", as defendants. The complaint is rather remarkable, both for what it says as well as what it does not say.  In this post I want to focus on the parties plaintiff and defendant, and the issues that are raised by who is named.

The Parties Plaintiff: The first thing to notice is the eponymous first-named plaintiff in the case's caption, called simply the "Diocese of San Joaquin". Not the "Episcopal Diocese of San Joaquin", and certainly not "the former Episcopal Diocese of San Joaquin, presently known as 'the Anglican Diocese of San Joaquin'", but just the "Diocese of San Joaquin". The allegation about it states only that "Plaintiff Diocese of San Joaquin . . . is an unincorporated association headquartered in Stockton, California. It is one of [T]he [Episcopal] Church's 111 dioceses, and encompasses the territory of 14 California counties, including Fresno County." Now Fresno County is where the lawsuit has been filed, and it is where the unincorporated association which changed its affiliation from "Episcopal" to "Anglican" has its headquarters---but that unincorporated association is missing from the list of named defendants. This omission is rather significant, for reasons that will shortly be explained. Joining the Diocese as plaintiffs are the Rt. Rev. Jerry A. Lamb, "in his capacity as the Episcopal Bishop of San Joaquin," and The Episcopal Church (another unincorporated association).

The Nature of an "Unincorporated Association". California law defines an "unincorporated association" as "an unincorporated group of two or more persons joined by mutual consent for a common lawful purpose, whether organized for profit or not." (Section 18035 [a], Corp. Code.) Thus any two or more people may come together to form an unincorporated association. Little formality is required; they may adopt governing instruments in writing (typically, a constitution or articles of association, and bylaws), or they may adopt unwritten "governing principles" by establishing specific practices that they agree to follow. The most important characteristic of an unincorporated association, for present purposes, is that the law recognizes it as a separate person, who is entitled to sue (and be sued) in the association's name.

The Diocese of San Joaquin as an Unincorporated Association. The entity historically known as the "Diocese of San Joaquin" has always been an unincorporated association under California law. Its first Constitution and Canons were adopted in 1961 as part of the process by which it became a diocese of the Episcopal Church (prior to that time, it had been a Missionary Diocese). The questions for the present lawsuit are: what happened to the "Diocese of San Joaquin" in December 2007? Where did it go, and where is it now? If it is the plaintiff in a suit with The Episcopal Church and Bishop Lamb, what happened to the group who left The Episcopal Church in 2007 with Bishop Schofield?

Although for ease of reference I will call it the "Anglican Diocese of San Joaquin", the entity which voted changes to its Constitution and Canons in December 2007 did not change its name---after the changes were voted, its legal name remained "the Diocese of San Joaquin". What changed was its affiliation: the changes were intended to make it a "constituent diocese of the Anglican Communion," and no longer a diocese of The Episcopal Church.

So what is this entity that is a named plaintiff in the lawsuit? It cannot be the unincorporated association which I am calling the Anglican Diocese of San Joaquin, because that entity honors and accepts the Rt. Rev. John-David Schofield as its diocesan bishop. Moreover, the latter is headquartered in Fresno, not Stockton. The complaint expressly alleges that the unincorporated association which is the plaintiff is "headquartered in Stockton, California." Moreover, it alleges that it is still "one of the [Episcopal] Church's 111 dioceses". The only things it has in common with the Anglican Diocese of San Joaquin are its name (both are officially called "the Diocese of San Joaquin") and its territory of 14 California counties.

Could they be two separate legal entities, but sharing the same name? It is entirely possible, but my analysis of the complaint leads me to believe otherwise. The plaintiffs, I believe, take the position that their unincorporated association (which, again solely for clarity's sake, I shall refer to as the "Episcopal Diocese of San Joaquin"), is the true continuation of that unincorporated association which existed before the December 2007 changes. They regard those changes as unauthorized and ultra vires---"beyond the powers" of the association to adopt. They have taken steps (in special convention) to rescind those changes, and to return to the status quo ante, the way things existed before. As that continued entity, they seek to deny legitimacy to Bishop Schofield as the authorized leader of the Diocese, since they claim to have lawfully deposed him and then to have lawfully approved the selection of Bishop Lamb as their diocesan at the Special Convention called on March 29.

This is playing for all the stakes. From the standpoint of the Anglican Diocese of San Joaquin, they followed their canons and California law in adopting their changes by the required majority at a duly noticed annual convention for two years running. Since the changes were approved by more than the required super-majority of 75% in each order (clergy and laity), they see their unincorporated association as the legitimate continuation of the entity that existed before the changes, and they continue to regard Bishop Schofield as their diocesan. If the plaintiffs prevail, they will thus not only take back all of the diocesan assets, they will take control of both the unincorporated association that is the Diocese and its associated corporation sole, operated by the incumbent Bishop. Then Bishop Schofield and his followers would have to file new corporate papers and reorganize as a diocese of some other province of the Anglican Communion in order to continue as a complete entity. But if the defendants prevail, the Remain Episcopal group and Bishop Lamb will have no alternative but to begin again from scratch, and to organize a new unincorporated association, form a Missionary Diocese, and hope in time to grow into a full-fledged diocese. Thus the stakes are high, indeed.

Had the Remain Episcopal group already organized a new unincorporated association to fulfill the role of an Episcopal Diocese of San Joaquin, I would have expected to see allegations about its date of formation, and the adoption of its constitution and canons, in the complaint. But there are no such allegations. Instead, the allegations are all about meeting and rescinding the changes adopted in December 2007. This is what makes me believe that the plaintiffs are of the view that their association is the only "true" Diocese of San Joaquin under Church and California law.

In addition to gambling all on the outcome, another reason why this is such high-stakes play is that the strategy puts directly into issue the validity of the "special convention" that was called on March 29. To begin with, Article V, Section 4 of the diocesan Constitution provides that special conventions may be called by "the Ecclesiastical Authority", which section 2 of Article III defines as the Bishop (or if he is not available, the Coadjutor, or if there is no Coadjutor, the Standing Committee of the Diocese). The convention held on March 29 was called by neither the Bishop nor by the diocesan Standing Committee, so a question will arise as to the authority for its convocation.

The next question that will arise about the actions of the Special Convention is whether it had a legal quorum to transact business. Diocesan Canon III, Section 3.01 provides:
A quorum shall consist of one-third of all the Clergy entitled to seats and votes together with at least one (1) Lay Delegate from each of one-third of all the Parishes and Missions entitled to representation. If a quorum be not present at any Convention, no business shall be transacted except that of adjournment from time to time until a quorum shall be present.
There were 47 parishes and missions in the Diocese of San Joaquin at the time of its previous annual convention in December 2007; a quorum of the laity would thus consist of delegates from at least seventeen parishes. The "Clergy entitled to seats and votes" are required by Article V, Section 6 of the Constitution to have canonically resided in the Diocese for the three months preceding the convention, that is, since the end of December 2007 (when 82 clergy participated in the vote to change the Constitution). From the viewpoint of the plaintiffs, all those clergy would still be "canonically resident" in the Diocese unless and until they had been deposed, so that a one-third quorum of those clergy would have required at least 28 of their members. As for those clergy brought into the Diocese by Presiding Bishop Jefferts Schori, Canon II, Section 2.01 provides that they would be entitled to a seat at the Convention (but would not be permitted to vote) so long as they had been licensed "by the Ecclesiastical Authority to officiate in the Diocese". Thus they would not even count towards a quorum. As reported by Episcopal News Service, there were forty-three lay delegates from eighteen parishes present, and just twenty-one clergy present (including, presumably, those clergy brought in from outside the Diocese by Presiding Bishop Jefferts Schori). It is unclear how the qualifications of the lay delegates to represent their parishes were established, since some of them came from parishes which had already voted to leave with Bishop Schofield, and they were thus representing a remnant minority (perhaps just themselves). Be that as it may, it appears on the face of things that there were not sufficient qualified clergy present to constitute a legal quorum so as to allow binding decisions to be made by the convention as a whole.

(One of the resolutions enacted apparently purported to "waive" any irregularities in the noticing of the convention.  Needless to say, such a "waiver" would be valid only if it passed unanimously by a full quorum present, since any objection to the notice by anyone needed to constitute a quorum would require that the convention be renoticed properly.  Not only was there apparently not a full quorum of both orders present, but objections to the convention proceeding were made---and overruled.)

Thus if the special convention lacked a quorum of clergy or was not lawfully noticed, its actions were unconstitutional by the provisions of Section 3.01 of Canon III quoted above. The only way for plaintiffs to avoid these requirements would be to argue that they had started a new Diocese, with new rules and terms of qualification, and were not continuing the old one. That contention, however, would undermine their argument that they are the true continuation of the group that before December 2007 was the incorporated Diocese of San Joaquin. It would also give tacit recognition to the fact that there was another Diocese of San Joaquin which had chosen to leave The Episcopal Church---something which the plaintiffs have tried hard to avoid in their complaint.

The parties defendant are the Rt. Rev. John-David Schofield, whom the complaint alleges was deposed by the House of Bishops, and hence does not even accord him that title, even though the House did not have the number of votes required by Canon IV.9 to do so, and two entities which hold diocesan trust funds. As noted earlier, the unincorporated association whose changes to its Constitution and Canons started the whole business is not named as a defendant---presumably because the plaintiffs wish to avoid the suggestion that there is even still such an entity existing separate and apart from their own, which is a named plaintiff. (It is also a legal impossibility for such an entity to sue itself.) But the allegation that Bishop Schofield was deposed by the House of Bishops "pursuant to Canon IV.9.2 of the Episcopal Church" will call that action into question, since plaintiffs will be unable to show that there was "a majority of the whole number of Bishops entitled to vote" even present at the meeting where the vote to depose took place. (Unlike the other Episcopal Bishops, the California court will most likely insist on proof that the canons were actually followed, since both the standing and the capacity of Bishop Lamb to sue as a plaintiff turns upon whether his predecessor was lawfully deposed, and on whether he was duly invested with authority as Bishop Schofield's successor.)

The plaintiffs' lawsuit as drafted, therefore, will raise a number of questions for the California court as to whether The Episcopal Church and the Diocese of San Joaquin followed proper procedures to bring them into court as they are today. Whether the court has to accept TEC's assertions at face value, or whether it will look behind the assertions to determine whether the rules were actually followed, is a fascinating topic on which quite a few courts have expressed themselves already, and which I will save for another post. Suffice it to note here that as drafted and filed, it is the plaintiffs' own complaint that raises the issues.

Tuesday, April 22, 2008

Skulduggery in San Joaquin?

Something mysterious (well, not really---but read on) has happened with regard to the corporate entity recognized under California law as the religious corporation sole associated with the Diocese of San Joaquin. Under California law, a "corporation sole" is a special kind of corporation---with just one shareholder, one officer and one director, who are all one and the same person---that can be formed by "a bishop . . . of any religious denomination, society, or church, for the purpose of administering and managing the affairs, property, and temporalities thereof." (Calif. Corp. Code section 10002.)

There has been a corporation sole for the Diocese of San Joaquin in California ever since 1911. Each time a new bishop is elected, there is an amendment to the articles filed by the new bishop, naming him as the successor to the position. When the Rt. Rev. John-David Schofield was elected Bishop in 1988, the articles were amended (albeit in 1992); and preceding the first convention vote in December 2006 to change the Diocesan Constitution, the articles of the corporation sole were amended in March 2006 to change the method of electing his successor. (That amendment caused four other Episcopal Bishops in California to issue an ultimatum to Bishop Schofield that they would file a presentment against him unless he rescinded the changes---the documents may be seen here.) On January 22, 2008, Bishop Schofield filed another amendment to the articles, changing the name of the corporation from "The Protestant Episcopal Bishop of San Joaquin, a Corporation Sole" to "The Anglican Bishop of San Joaquin, a Corporation Sole."

Now, quietly and without any fanfare, the Secretary of State's Web site lists the corporation again under a new name as of April 8, 2008: the name has changed back to "The Protestant Episcopal Bishop of San Joaquin, a Corporation Sole". Further research with this filing shows that it lists the sole member of the corporation as the Rt. Rev. Jerry A. Lamb, in Stockton, California, and that its agent for service of process is attorney Michael Glass of San Rafael, California.

Without its amounting exactly to "a shot heard round the world," it thus appears that an opening salvo in that new, non-Pauline but chiefly Episcopal sport---of suing each other in secular courts---has been fired. In order to file the amendment with the Secretary of State, the law requires that:
The chief officer of the corporation shall sign and verify a statement setting forth the provision of the amendment and stating that it has been duly authorized by the religious organization governed by the corporation.
(Section 10010; emphasis added.) In other words, the Rt. Rev. Jerry Lamb has sworn to the Secretary of State that only he has the right to govern the Diocese of San Joaquin, and that there is also only one such Diocese---namely, the one that elected him a provisional bishop on March 29, 2008. Where does this leave the unincorporated Diocese of San Joaquin that has withdrawn from The Episcopal Church? As far as the official record appears at this moment, the amendments which made Bishop Schofield the bishop of that Diocese are no longer in effect, since they have been changed by Bishop Lamb, who swears he has the authority to make those changes.

We must realize that the Secretary of State is just a middleman here, responsible for filing and indexing duly notarized documents---indeed, if they are presented in the appropriate form, the Secretary cannot refuse to file them. By this same token, Bishop Schofield could file new amendment papers tomorrow changing the name back again, and there could ensue a meaningless paper war. Which just means that this will have to be sorted out in the courts.

California law also provides (section 10009) that
Any judge of the superior court in the county in which a corporation sole has its principal office shall at all times have access to the books of the corporation.
This statute will create an interesting puzzle for the California courts, since Bishop Schofield will assert that the principal office is in Fresno, in Fresno County, while Bishop Lamb will reply that the principal office is in Stockton, in the County of San Joaquin. The California Judicial Council will probably be asked to assign one court to investigate and decide the dispute.

In any such suit, the issue will be: who has the present authority to govern the Diocese of San Joaquin, and which Diocese of San Joaquin is governed by whom? Given that there is unquestionably an unincorporated Anglican Diocese of San Joaquin in the eyes of California law, and that that entity has chosen John-David Schofield to govern it, the only way that Bishop Lamb could use the courts to gain authority over it would be to have them rule that the changes made to the Constitution and Canons of the Diocese in 2006-2007 were legally invalid and unauthorized. As I shall explain in a later post, I think that will be an uphill battle.

I assume that the attorneys for Bishop Lamb have caused there to be formed by now another unincorporated association to constitute the Episcopal Diocese of San Joaquin---because otherwise, how could Bishop Lamb properly swear that he had been duly authorized by the "Episcopal Diocese of San Joaquin" to be its head? And if that is the case, questions will arise about whether the special convention on March 29 had a proper constitutional quorum of clergy canonically resident in the Diocese, and of parishes (the old Constitution required at least one-third of each), and of whether Bishop Lamb is the proper authority to represent the Diocese. 

I agree with Father Dan Martins that The Episcopal Church is making matters unduly complicated here by its decisions and tactics. Had Bishop Lamb formed his own corporation sole without trying to take over Bishop Schofield's, he might have been able to be recognized as a plaintiff in his own right, at least on the surface of things. But now he has injected into the situation the element of whether or not the 2006-2007 constitutional and corporate changes were duly authorized under California law---note, not under Episcopal canon law---and as I say, I think he has an uphill battle on that ground.

From all that I have read in my study of this situation, there is no desire whatsoever on the part of Bishop Schofield or the Diocese which he governs to impede those wishing to remain in the Episcopal Church to organize themselves under California law and be recognized by The Episcopal Church. As it is so often, the issue is one of property---whose buildings, whose trust funds, whose assets, and it appears as though TEC's tactics are being driven more by that factor
than by any other. In a follow-up post, I hope to shed some light on how TEC could have approached this situation from a more Christian standpoint, had it been so inclined.

For the lawyers: here is the opinion in a California case that will probably figure in the ensuing lawsuit, Bomar v. Mt. Olive Missionary Baptist Church (3d Dist. 1928) 92 Cal.App. 618, 268 P. 665:

The second amended complaint filed in this cause sets forth that the plaintiffs are the duly elected, qualified, and acting trustees of the Mt. Olive Missionary Baptist Church, an unincorporated religious association having its principal place of worship at No. 3064 East First street, in the city and county of Los Angeles; that the membership of said church consists of 92 persons, of whom 71 are adults; that the association was organized and founded on or about the year 1909; that at the time of its organization it was agreed that Hiscox's Guide and Directory for Baptist Churches should be, and the same was, adopted as the rules by which the temporal affairs of the church should be guided; that since the organization of the church herein referred to, it has been governed as an unincorporated religious association in conformity with the rules and regulations set forth in Hiscox's Guide; that the rules and regulations set forth in said guide provide that the property of the church shall be held in the name of trustees, for the uses and benefit of the church; that on or about the 11th day of April, 1916, said unincorporated religious association acquired title to lot 8 in a certain tract known as the Corcoran tract in Los Angeles county, and thereafter, and on or about the 17th day of May, 1923, acquired title to lot 7 in said Corcoran tract, and thereafter, and on or about the 17th day of November, 1923, lot 9 in said Corcoran tract was purchased by said unincorporated religious association; that the title to lot 8 was taken in the names of H. T. Baucum, Charles Reed, and J. Buchanan; that the title to lots 7 and 9 was taken in the names of R. W. Willis, W. L. Bell, and Charles Reed, as trustees, for said unincorporated religious association; that the value of said lots was about $15,000; that the building in which the unincorporated religious association held its services was and is situated upon lot 8 of said Corcoran tract; that according to Hiscox's Guide and Directory the annual meeting of the church for the appointment of a pastor, the election of trustees, and the consideration of church affairs, was appointed to be held on the Friday next preceding the first Sunday in December of each year, and the installation of the pastor and the officers was appointed to take place on the first Friday preceding the first Sunday in January following the election, as just stated.

The complaint then sets forth the manner in which the right hand of fellowship may be withdrawn from a member and the members dismissed from such unincorporated religious association by the presentation of charges and the giving of an opportunity to be heard and a majority vote of a quorum of the church members required to effect a dismissal. The complaint then alleges that in the month of June, 1924, the defendants, in order to gain possession of the property owned by the unincorporated religious association, formed a religious corporation, and then and there represented to the Secretary of State of the State of California that they were authorized by said unincorporated association to incorporate under the laws of the state of California; that such statement was false; that no notice was given to a majority of the members of said association of any intention to form a religious corporation; that no meeting of the church was ever held which authorized the incorporation of said church; that said incorporation was brought about by said defendants and their families, including in all not over 18 or 20 persons; that said persons met and agreed to form a corporation, and that upon the representations of the defendants Willis, Bell, and Hutchinson a charter was granted by the state of California to the defendant the Mt. Olive Missionary Baptist Church, Incorporated; that thereafter, and in the month of June, 1924, the said defendants Willis, Bell, and Charles Reed, without any authority of said church or of a majority of the members thereof, conveyed lots 7 and 9 of said Corcoran tract to the defendant corporation; that thereafter the defendants represented to H. T. Baucum, J. Buchanan, and Charles Reed that it was the wish of the unincorporated association that lot 8 of said Corcoran tract should be deeded to said corporation, and said lot was thereupon so deeded; that at the time of the execution of said deed the said H. T. Baucum and J. Buchanan were unaware that there was any corporation, or that they were conveying said lot 8 to any corporation; that thereafter the corporation so organized adopted by-laws, and, purporting to follow the by-laws so adopted, purported to expel 18 members from said church, no notice thereof being given and no opportunity being had by the defendants for any hearing. The complaint then sets forth in detail that the proceedings herein referred to were all taken and had by the defendants for the purpose of wrongfully securing possession of the property of said unincorporated religious association. The prayer of the complaint asks that the property referred to herein be reconveyed to the trustees of said unincorporated religious association; that it be decreed that the plaintiffs are the duly elected, qualified, and acting trustees of the Mt. Olive Missionary Baptist Church, an unincorporated religious association; that defendants be required to account for all moneys received and disbursed by them; that W. L. Hutchinson be restrained from acting as pastor of said church; that the defendants be required to turn over to the plaintiffs all the books and registers belonging to the Mt. Olive Missionary Baptist Church as an unincorporated religious association. The answer denies seriatim all the allegations of the complaint.

The court found all the allegations contained in specifications A, B, C, D, E, F, G, H, I, and J of paragraph 10 of the amended complaint to be true, which includes all the allegations by which the complaint sets forth that the defendants conspired, contrived, and wrongfully and fraudulently transmuted the title of the property belonging to the unincorporated Mt. Olive Missionary Baptist Church to the corporation organized by them, as herein referred to. The second finding of the court is to the effect that it was stipulated that the accounting of moneys asked for might be withdrawn without prejudice to the institution of another action. The third finding of the court is to the effect that it was admitted at the trial that the attempted expulsion of members was without authority and was void. The fourth finding is to the effect that at all times mentioned in the complaint the plaintiffs owned the real property mentioned therein, and that the building situate thereon was occupied by and used as the place of worship first by the Mt. Olive Missionary Baptist Church, an unincorporated religious association, and, then, after the acts herein referred to and at the time of the trial, was in the possession of the defendant Mt. Olive Missionary Baptist Church, a corporation. The fifth finding is also to the effect that the records of said church belonged to the Mt. Olive Missionary Baptist Church as an unincorporated religious association. As a result of said findings and the conclusions of law based thereon, reconveyance of the real property herein referred to was ordered, and the plaintiff Mt. Olive Missionary Baptist Church, as an unincorporated association, awarded possession of the property. From this judgment the defendants appealed and assigned five different reasons why the judgment should be reversed, to wit: First, that the trial court had no jurisdiction, at the suit of private individuals, to determine whether the incorporation was legal or illegal; second, that the plaintiffs were estopped to deny the incorporation of the church; third, that the court erred in finding that the plaintiffs were the duly elected, qualified, and acting trustees of said religious society as an unincorporated religious association; fourth, that the findings from the first to the ninth, with the exception of the fifth, are unsupported by the evidence; fifth, that there was a fatal variance between the material allegations of plaintiffs' complaint and the proofs.

As we read the record, it does not seem to us necessary to follow the argument of the appellants or the authorities cited to sustain the objection that the court had no jurisdiction to inquire as to whether the incorporation was legal or illegal. This case does not present for adjudication the legality or illegality of the alleged incorporation. The only question involved is whether a corporation formed under the circumstances disclosed by the record and as found by the court, by a small minority of the members of the association, without the authorization of a majority of the unincorporated religious association and the obtaining of conveyances to the real property held in trust by certain individuals for the benefit of the unincorporated religious association, without any previous authorization for such transfer, may be compelled to reconvey the property to the duly elected, qualified, and acting trustees of the unincorporated religious association, found by the court to be the beneficial owner thereof. The complaint sets forth that the forming of the corporation was simply a device or expedient for obtaining possession of the property by a few members thereof, to the intent and purpose that the pastor and a few members thereof might control the temporal affairs of the church, and the findings of the court are to the effect that the allegations setting forth these facts contained in the complaint are true and correct.

The record shows that at the time of the occurrences referred to in the complaint there were 71 adult members; that out of that number 54 went on the stand and testified that no notice of any meeting to consider the question of incorporation was ever given as required by Hiscox's Guide and Directory for Baptist Churches. This guide required public notice to be given by announcement from the pulpit by the pastor at the time public services were being held by the church. The record discloses the names of 10 persons only who were present at the time the incorporation was decided upon. The defendants called some 10 or a dozen witnesses, who testified that notice was given and that other persons were present than the names of those stated at the time the decision was had by those who assembled on or about the 2d day of June, 1924, to consider the question of incorporation. Thus the finding of the court to the effect that the Mt. Olive Missionary Baptist Church, an unincorporated religious association, never authorized the formation of the corporation, is amply sustained by the evidence. Fifty-four of the adult 71 members testified that they had no notice and were not present. The transcript shows that the record of the members of the unincorporated association is evidenced by signed cards, so that it was a very easy matter to ascertain and present in the testimony the names of all of those who were present at the gathering when incorporation was decided upon, and also to present testimony as to who were present, if any others were actually present, than the 10 names set forth in the testimony of one of the witnesses called by the defendants. Our attention has not been called to any testimony showing that the Mt. Olive Missionary Baptist Church, as an unincorporated religious association, ever authorized the transfer of the properties of the church from the trustees, who held the title thereto, to the incorporation.

There is also testimony in the record to the effect that no regular meeting was held on the 2d day of June, 1924, as is purported to have been done; that only a few persons were present; and that there was no truth in the recital of the certificate attached to the articles of incorporation that a regular meeting was held and directors elected; and it would appear that no regular business meeting of the church could be held, other than the annual meeting provided for, without giving notice thereof by announcement from the pulpit of the time and place of such meeting. The rules of the church provided for the holding of an annual meeting on the Friday next preceding the first Sunday in December of each year. The complaint so alleges, and there is no denial of this allegation in the answer. The meeting to which we have referred, at which the incorporation of the defendant was considered, was held in the month of June, and not at a time provided in the rules of the church for the holding of an annual business meeting, or for the holding of any meeting other than that which, in ordinary language, would be called a special meeting.

We do not deem it necessary to set forth herein the testimony in the transcript indicating a fraudulent purpose on the part of the defendants, for the simple reason that, though the testimony may show actual fraud, actual fraud will nevertheless be presumed from the fact that one in whom confidence has been reposed has availed himself or benefited himself of the trust at the expense of the trusting or confiding party. Lezinsky v. Mason, 185 Cal. 240, 196 P. 884; Williams v. Lockwood, 175 Cal. 598, 166 P. 587. As we have shown from the record the church, as a church, never authorized either the incorporation or the transfer of the property by the trustees who held title thereto for the benefit of the church, and, the property having been transferred without any such authorization, it amounted to an actual fraud upon the church and laid the basis for an action to compel reconveyance. The contention of the appellants that it was necessary for the trustees holding the title to the property for the benefit of the church to convey the same to the incorporation to protect the title is wholly unfounded. The case of Brittenbaker v. Buck, 58 Cal. App. 738, 209 P. 264, settles the question as to the power of an unincorporated religious association to take title to property in the name of individual members as trustees. Nor do we find any merit in the contention of the appellant that the trial court had no jurisdiction of the cause presented to it for determination. The attack is not made upon the corporation as a corporation. So far as the judgment of the court is concerned, the persons associated in the scheme of bringing the corporation into existence may go on with their corporation unhindered. The complaint is founded upon the wrongful acts of such persons in creating a corporation in whom the property of the church might be vested and the control of the temporal affairs of the church lodged, in such a manner as to deprive the body of the church of any voice or control in its management and to dispossess the church of its property. The gravamen of the charge is that all of these acts were performed by a very small minority of the church, and that the church, as an unincorporated religious association, never authorized or consented to any of them. To regain possession of the property thus taken away from the unincorporated religious association is not an attack upon the corporation as a corporate entity, but only seeks to undo the wrong found by the court to have been perpetrated. Under such circumstances quo warranto proceedings instituted by permission of the Attorney General were and are wholly unnecessary. The plaintiffs have no interest in the existence of the corporation; they seek only the restoration of what the court has found to be their own.

The case of Hendryx v. People's United Church Co., 42 Wash. 336, 84 P. 1123, 4 L. R. A. (N. S.) 1154, 7 Ann. Cas. 764, is directly in point. In the Hendryx Case there was involved an intent or purpose to wrongfully obtain possession of church property. It was there held that an action to cancel a deed would lie, and that no question as to ecclesiastical matters was presented for consideration. A number of cases are there cited which we do not need to review. In one of the cases we find the following pertinent language:

“The bald question here is, Can a man or set of men, or a majority of the church organization, by chicanery, deceit and fraud, divert the property of a church organization to a purpose entirely foreign to the purposes of the organization, for their own selfish benefit, whether by the expulsion of members or in any other fraudulent manner? Neither the law nor public policy will sustain such a rule. Fraud vitiates all transactions and, if members are expelled for a fraudulent purpose to carry out a fraudulent scheme, the expulsion is a void act, and of no force or effect whatever. Equity will compel fair dealing, disregarding all *627 forms and subterfuges, and looking only to the substance of things.” Nance v. Busby, 91 Tenn. 303, 18 S. W. 874, 15 L. R. A. 801.

In the instant case the court has found that the persons who contrived to secure possession of the church property constituted only a small minority of the membership.

Another case relied upon by the appellants, but which we think supports the action of the court in the instant case, is that of Hatfield v. De Long, 156 Ind. 207, 59 N. E. 483, 51 L. R. A. 751, 83 Am. St. Rep. 194. The citations found in the opinion of this case are exceedingly numerous and show that the assertion of jurisdiction in such a case as the one at bar is not an interference with the control of the church over its members, and is a matter dealing purely with property and property rights. The findings show a stipulation in open court to the effect that the attempted expulsion of 18 members was absolutely void, and therefore we pass this question by. No question of estoppel was pleaded, nor is there anything in the record showing that the church, as a church, until shortly before the institution of this action, became aware that any incorporation had ever been formed, or that conveyances had been made of the property.

There does not seem to be any merit in the appellant's contention that the plaintiffs have no capacity to sue. This alleged defect in the pleadings was not raised by demurrer, but the facts which we have hereinbefore referred to in this opinion, we think, established the capacity of the plaintiffs to maintain this action. The court found, upon sufficient evidence, that the plaintiffs were the duly elected, qualified, and acting trustees of the Mt. Olive Missionary Baptist Church, an unincorporated religious association; that they were elected at the regular meeting of the church held at the church at the time and place provided for in the rules and regulations governing the church. The appellants contend that this finding was based upon the testimony of only one witness. This statement is controverted by the respondents, but, if the necessary facts were testified to in this respect only by one witness, it would place it beyond the power of this court to disturb such finding. While not cited as determinative of any questions involved herein, we think the following taken from the opinion of the court in the case of Wheelock v. First Presbyterian Church, 119 Cal. 477, 51 P. 841, pertinent:

“Notwithstanding incorporation the ecclesiastical body is still all-important. The corporation is a subordinate factor in the life and purposes of the church proper.”

In any event, as held in that case, the corporation would be only the agent or instrument for holding title to property and managing its temporal affairs. The ecclesiastical body would still remain the real church. Under the circumstances disclosed, we think, in the present case, the unincorporated religious association known as the Mt. Olive Missionary Baptist Church at all times constituted the body entitled to control both its ecclesiastical and temporal affairs, and that the incorporation never acquired any legal or ecclesiastical right to the control of either of them.

The judgment of the trial court is affirmed.

Tuesday, April 15, 2008

Abuses of the Abandonment Canons (II)

As the previous post explains, the Abandonment Canons (Canons IV.9 and IV.10 of The Episcopal Church) are more and more being put to a use for which they were not designed: they are being used to depose priests and bishops who disagree with the recent doctrinal departures in TEC, and who as a result change jurisdictions to another province of the Anglican Communion. If any Canons are violated in such a transfer, the proper use of the Canons requires a presentment to be brought against the offender under Canon IV.1, and not a charge of "abandonment" under Canon IV.9 or IV.10. Since both of the latter Canons define the offense of "abandonment" as the joining of a religious body not in communion with TEC, it makes no sense to read them as also prohibiting the joining of a church that is in communion with TEC---yet that is just what has happened.

As we saw in the previous two posts, Canons IV.9 and IV.10 were used, before the changes were made to the Book of Common Prayer in 1979, to deal with situations where priests (and some Bishops) had left TEC to join the Catholic Church, or to form a dissident church, as the Reformed Episcopal Church was organized in 1873. At that time, the dividing issue was "high church", Anglo-Catholic pomp and rites versus "low church", Evangelical Protestantism. A little more than a hundred years later, a similar divide appeared over the issue of the ordination of women to the priesthood. In both 1970 and 1973, the General Convention of the Episcopal Church rejected resolutions to approve women's ordination. In 1974, two retired Bishops and one resigned Bishop joined in ordaining eleven women (the "Philadelphia Eleven") to the priesthood. The House of Bishops met in emergency session, declared the ordinations "irregular" and "invalid", and censured the Bishops involved; some diocesan Bishops with jurisdiction over the women (in their capacity as already ordained deacons) inhibited them from serving as priests.

With the ordinations, however, the momentum began to swing the other way, despite warnings of "apostasy" and "declarations of conscience" from conservative clergy. Just two years later, at its General Convention of 1976, TEC approved the ordination of women to the priesthood. As a consequence, two ministers declared themselves no longer subject to the authority of their diocesans who had voted for the change. Both were charged with "abandonment of communion" under Canon IV.10, both were inhibited and then deposed, and both left to form (with the help of the Rt. Rev. Albert Chambers, Retired) the Anglican Church in North America, which had a somewhat rocky beginning. Others joined them, parishes voted to leave their dioceses, the dioceses sued to retain what they claimed was their property under the Constitution and Canons, and the entire affair has much the same ring about it as do the disputes today---with this major difference: the dissident parishes and their priests today are leaving, not to form a new church that will not be in communion with TEC, but to join other provinces in the Anglican Communion. The Abandonment Canons were properly used in 1977 to depose the priests who joined the dissident church, since those priests no longer wished to function in TEC, and they had not formally joined any other province of the Anglican Communion. Their case, therefore, was closer to that of the formation of the Reformed Episcopal Church in 1873 than it is to the cases presented today.

Two major differences mark today's situation as apart from those in 1873 or 1976: first, the Episcopal Church's doctrinal position was not out of step with that of the larger Anglican Communion in either 1873 or in 1976 (the Anglican Consultative Council had allowed provinces to proceed with the ordination of women in 1971); and second, the ordination vows in 1873 and 1976 had not yet been changed as described in the previous post---where the vow "to banish and drive away from the Church all erroneous and strange doctrines contrary to God's Word" was discarded in 1979 in favor of one to "conform to the doctrine, discipline and worship of The Episcopal Church". What has happened is that today's clergy find themselves ensnared between the Scylla of swearing allegiance to "the doctrine, discipline and worship of The Episcopal Church" and the Charybdis of swearing to uphold the "doctrine, discipline and worship of Christ as this Church has received them". No priest can be true to his ordination vows unless the "doctrine, discipline and worship" are the same in both cases, and the problem is that there are many today who hold sincerely that they are not the same.

It makes very poor sense, then, to exploit this gap by claiming a violation of "the doctrine, discipline or worship of this Church" when one is merely following one's conscience to try to make it possible to adhere to "the doctrine, discipline and worship of Christ as this Church has received them", if necessary under the authority of a different diocesan. There is only one remedy for cases of abandonment: deposition, and that is simply an inappropriate remedy when a member of the clergy wishes to remain within the churches of the Anglican Communion. Deposition revokes the authority of a priest, bishop or deacon to minister at services in The Episcopal Church. The Constitution and Canons of The Episcopal Church, however, contemplate that any clergy ordained within the Anglican Communion may be licensed by suitable local authority to minister within the Episcopal Church, and such license is not possible when one has been deposed from that very church. Thus by deposing its clergy who wish to stay within the Anglican Communion, TEC is doing permanent harm to its polity by creating a different class of Anglican clergy: those who may minister within any church in the Communion with the exception of within TEC itself.

There is further the point that disagreement over doctrine does not necessarily imply "abandonment"---especially where, again, the disagreeing member of the clergy still is doing his or her conscientious best to remain within the Anglican Communion. A far wiser and more experienced canon lawyer than yours truly warned very presciently about the chilling consequences of equating disagreement with abandonment. That warning is just as relevant today as it was in the context in which it was given. In fact, look how far we have traveled down the road to self-isolation in just thirty years. Here is a statement made in 1977 by the Prior of Mount Calvary Retreat House on the role of the Episcopal Church in the wider Communion:
Most of us remain, or become, Episcopalians because she is a Church with no other doctrine, discipline and worship than that of the ancient Catholic Church (an Archbishop of Canterbury said that, not I on my own), faithful to the principle and process of Reformation when needed, and respectful of the contributions in thought and expression of conscience of each of her members.

We are an Episcopal Church (according to our Bishops by our own choice in response to our Tradition certain authority within the whole life of the Church), a Prayer Book Church (rejoicing in a heritage of Common Prayer, devotion, discipline, and teaching... all of which the Book expresses to every age, not enshrines to every age as perfect in that expression), and a Canonical Church (constantly regulating and guiding the life of Her members based on the Scriptures and the accumulated Wisdom of the Church). It goes without saying that we are a Biblical Church as well.

We allow, we strongly encourage, difference of opinion and diversity of expression... in liturgy, discipline and doctrinal acquiescence.
What happened to change this view? No doubt there were many factors; I shall highlight here just a few of ones I regard as significant. When the General Convention of 1979 adopted a resolution (A053) recommending against the ordination of non-celibate homosexuals to the priesthood, twenty-three bishops and over 150 clergy and laity endorsed a "Statement of Conscience" asserting that they would not accept the recommendation, or implement it in their dioceses. In 1987 and again in 1989, panels from the House of Bishops rejected charges brought against the Rt. Rev. John Shelby Spong for preaching unorthodox doctrine. While this refusal may have illustrated the "diversity of expression" mentioned by Prior McHugh in 1977, it also served to encourage Bishop Spong and his assistant Walter Righter to ordain a practicing homosexual to the priesthood later in 1989, contrary to the recommendations of the General Convention. The person so ordained, the Rev. J. Robert Williams of Hoboken, proved to be too controversial in his views even for Bishop Spong, who asked for and received Rev. Williams' resignation just five weeks later. Although he was briefly deterred from proceeding with a further ordination, Bishop Spong again, waiting until after the General Convention had failed to change its recommendation of 1979, ordained to the priesthood in 1991 a practicing homosexual whom Walter Righter (as Bishop Spong's assistant) had ordained as a deacon the year before.

At the General Convention of 1994, ten days of heated debate failed to produce any consensus other than a resolution to continue to study and to talk about the issue. Bishop Spong led 55 of his colleagues in issuing what he called a "Koinonia Statement" proclaiming that sexual orientation was "morally neutral," that marriage was "an honorable vocation for some of God's people," and that same-sex relationships were also "worthy of honor". (The Greek word "koinonia" is used in the New Testament to convey the concept of "community, participation and sharing.") Later that same year, the Diocese of Ft. Worth considered and rejected a resolution to leave The Episcopal Church.

Although the General Convention of 1991 had declined to censure him, the ordination of Deacon Stopfel by Assistant Bishop Righter in 1990 was the subject of a presentment brought against Bishop Righter five years later, just as the statute of limitations was about to expire. His defense to the charges expressly asserted: "There is no doctrine in this church pertaining to the qualifications of ordinands to the diaconate or limitations on a bishop's right to ordain a canonically qualified candidate. . . [Consequently,] it is not contrary to the doctrine of this church to ordain to the diaconate a non-celibate homosexual man or woman." The trial pitted against each other the forces that were to struggle over the next eleven years for control of The Episcopal Church. The presenters were the following diocesans: John Howe (Central Diocese of Florida), William Wantland (Eau Claire), James M. Stanton (Dallas), Stephen H. Jecko (Florida), John David Schofield (San Joaquin), Terence Kelshaw (Rio Grande), James M. Coleman (West Tennessee), Jack L. Iker (Ft. Worth), Maurice M. Benitez (Texas) and Keith Ackerman (Quincy). On the other side were the Trustees of the Episcopal Divinity School, many clergy from the Diocese of Newark, and at least thirty-five members of the House of Bishops. In a 7-1 decision reached in May 1996, the court held that only the General Convention could declare (and define protection for) doctrine that was not related to the "core doctrine" of salvation realized through the death and resurrection of Jesus, and that it had not done so when it enacted what was only a "recommendation" in 1979. It thus kicked the issue of gay ordination back to the General Convention, which had thus far been unable to resolve it.

The outspoken theological positions of Bishop Spong, as well as his ordaining of a practicing homosexual in 1989, were adding fuel to a flame that had already been sparked by the women's ordination issue. The election of the Rt. Rev. Barbara Harris as the Suffragan Bishop of Massachusetts in 1988 had produced a countermovement within the Episcopal Church known as the Evangelical and Catholic Mission (ECM), led by the Rt. Rev. Clarence C. Pope, Jr., the diocesan of Ft. Worth. Along with Bishops Edward A. MacBurney, diocesan of Quincy, and A. Donald Davies, the former diocesan of Ft. Worth, he and several others met in 1989 with the Archbishop of Canterbury, the Most Rev. Ronald Runcie, to discuss "the need for continued maintenance and propagation of a traditional expression of Anglicanism within the Episcopal Church of the United States." However, "the ECM did not make definitive proposals to the Archbishop as to how this end should be achieved." Later that year, they formed what was called the Episcopal Synod of America, with its own House of Deputies and House of Bishops, and Bishop Davies, as its executive director, gave warning that bishops in the Synod would be performing sacramental acts in ECUSA dioceses to which they had not been invited. This was a direct challenge to the jurisdictions of ECUSA's bishops that was, if anything, more confrontational than even Bishop Spong's ordinations of practicing gays to the priesthood. Bishop Pope tried to play down the prospect of a confrontation with ECUSA, but Bishop Davies did not mince his words, according to the ENS article just cited: "Asked if he was going to cross diocesan lines uninvited, Bishop Davies said, 'We have to, or else we have no future. There may be bad feelings at this point, and we want to avoid that.'"

A temporary truce was declared following the meeting of the House of Bishops in September 1989, with all but retired Bishop Davies declaring themselves satisfied to let objections to women bishops be handled by means of an "Episcopal Visitors Plan". The truce lasted until 1991, when the ESA decided to form a new "Missionary Diocese of the Americas" (MDA) which would overlap with traditional ECUSA boundaries, and which would be headed up by Bishop Davies. In response, Presiding Bishop Edmond L. Browning wrote to all ECUSA diocesans a letter in which he outlined his views that the proposed diocese was contrary to ECUSA's Constitution and Canons. He also mentioned that the diocese had been turned down in an effort to associate with other provinces of the Anglican Communion, and expressed hope that a way to reconcile the differing sides could yet be found.

The first parish to join the newly created MDA was St. Luke's Episcopal Church in Richmond, in the Diocese of Southern Virginia. Disagree-ments with their bishop ranged from issues of homosexuals in positions of ministry to continued use of the 1928 Book of Common Prayer. The two sides squared off, with the defining question being whether or not the MDA was a valid part of ECUSA or not---its organizers claimed that it was, but Presiding Bishop Browning and the Archbishop of Canterbury regarded its formation as "potentially schismatic." The stakes were raised when, true to his word, retired Bishop Davies visited the parish in July 1992 to perform confirmations there without first obtaining permission from the diocesan of Southern Virginia, the Rt. Rev. Frank Vest. (He claimed he was visiting one of his own parishes, and was only "traveling through" the Diocese of Southern Virginia to do so.)

One of the organizers of the Episcopal Synod of America, the Rt. Rev. William Wantland, a respected canon lawyer, admitted that although Bishop Davies was in good standing with ECUSA, the MDA technically was "not in communion" with it, and urged the Rev. Leo Combes, rector of St. Luke's, to work out an accommodation with Bishop Vest. A month earlier the parish had filed a petition with the Virginia courts to determine that a "division" had occurred in ECUSA, and that under a special Virginia statute dating from the Civil War, the parish had elected to leave that church and keep its property. (This is the same statute whose constitutionality is now being considered in the suits between TEC and the dissident parishes of the Diocese of Virginia. The 1992 suit was resolved two years later when the Diocese of Southern Virginia agreed to sell the church property to the Rev. Leo Combes and his parishioners.) In November 1992, while the suit was pending, Bishop Davies took matters into his own hands. Declaring that the newly appointed Archbishop of Canterbury, the Most Rev. George Carey, was "in apostasy" over the issue of women's ordination, he announced that MDA would leave both the Episcopal Synod of America and ECUSA. At the same time, he sent Presiding Bishop Browning a letter resigning his orders in ECUSA, and Bishop Browning responded by inhibiting him as a precursor to deposing him for abandoning the church. At their meeting in Panama in September of the next year---there was evidently no rush to judgment---the members of the House of Bishops present voted to depose Bishop Davies. (Since there were only 137 members present at the meeting, out of a total membership of about 315 entitled to vote at the time (according to the Episcopal Church Annual), the deposition, like the depositions of Bishops Cox and Schofield in 2008, was canonically invalid---but Bishop Davies had unquestionably left the Church for a new church that would not be in communion with it.)

It should be noted here that Bishop MacBurney of the Diocese of Quincy became embroiled in 1994 with a parish of his own diocese over a dispute about its leaving the Episcopal Church, and following charges of abandonment certified by his standing committee, Bishop MacBurney inhibited, and then deposed, the rector of the parish, the Rev. Garrett Clanton. This was a correct application of the canons, because Father Clanton had no desire to stay in communion with ECUSA. However, as most readers know, Bishop MacBurney is now the victim of an improper use of the canons in an attempt to discipline him for performing confirmations at a church in San Diego which had left TEC to affiliate with the Province of the Southern Cone. The case will present the metaphysical question of whether ceremonies performed inside such a church are nevertheless still capable of being regarded, for purposes of applying TEC's canons, as being performed within the Diocese of San Diego.

With no resolution of the homosexual ordination issue reached at the 1997 General Convention, Bishop Spong sent a challenge to the Archbishop of Canterbury to address the topic at the forthcoming 1998 Lambeth Conference. This was the Conference that resulted in the adoption of Resolution 1.10, advising against such ordinations in much the same way as Resolution A053 adopted at the 1979 General Convention. The consensus was now Communion-wide, but that did not stop the activism within TEC. Splits over the issue of gay ordination and same-sex blessings now developed between diocesans and their priests in the Dioceses of Massachusetts, Pennsylvania, Texas, Arkansas, the Central Gulf Coast, and others.

In February 2002, after a long series of contretemps, the Standing Committee of the Diocese of Pennsylvania advised Bishop Bennison, the diocesan, that the Rev. Dr. David Moyer, rector of the Church of the Good Shepherd in Rosemont, Pennsylvania had "abandoned the communion of this Church" by refusing to allow Bishop Bennison to make a pastoral visit, by failing to present candidates to Bishop Bennison for confirmation, and by participating in an election to be Bishop of Forward in Faith/North America, the successor organization to the Episcopal Synod of America. Bishop Bennison responded by first inhibiting, and then deposing, Father Moyer, who retaliated with a civil lawsuit that, among other claims, challenged the propriety of using Canon IV.10 to depose him without a presentment and trial. (The current status of this lawsuit, which is scheduled to go to trial in a few months, can be gleaned from the latest pretrial statement.)

At the time Bishop Bennison inhibited Father Moyer, it is believed that this is the first time that Canon IV.10 had been used against a priest who disagreed with his bishop's beliefs but who wanted to remain within the Anglican Communion. The current status of Forward in Faith is unclear: it wishes to become part of a new orthodox province of the Anglican Communion in America, but the recognition of a new province is solely within the competence of the Anglican Consultative Council and the Primates. Nevertheless, it clearly sees itself as in continuity with the orthodox traditions of the Anglican Communion.

Once Canon IV.10 had been applied against Father Moyer, other standing committees in other dioceses brought similar charges of "abandonment" against other priests for similar refusals to allow episcopal visits and to present candidates for confirmation. The cases of the Connecticut Six, of the eleven parishes and twenty clergy in the Diocese of Virginia, of the parishes in the Diocese of Los Angeles (where the ensuing lawsuit will be argued shortly in the California Supreme Court) and of San Diego, of the charges against Father Don Armstrong and his parish in the Diocese of Colorado, of Father Geromel in Eastern Michigan (where the bishop delayed imposition of inhibition and deposition for five years), of Christ Church in Savannah, Georgia (the diocesan response is here), have all been in the news, along with many others. The most recent abuse---rather extraordinary in its scope---was the sacking of twenty-two priests under Canon IV.10 by Bishop John Howard, the diocesan of Central Florida. The latter act included the Bishop's and the diocesan Standing Committee's truly outrageous treatment of the 76-year-old Rev. Harald Haugan, who had served as a priest for nearly fifty years and who had been inactive and retired. Puzzled as to why they would think he had done anything that could be considered as "abandonment of communion", he wrote and asked them for an explanation. Three letters went unanswered, and the Bishop refused to elaborate on the "charges". Such are the machinations of blind power. [Update (05/08/08): The abuses continue---read about the foolish threats made by the Bishop of Colorado, the Rt. Rev. Rob O'Neill, against 18 former Episcopal priests, who are no longer subject to the his jurisdiction, here.]

Not content with deposing retired and inactive priests, TEC's Bishops have lately taken to threatening their colleagues with deposition under Canon IV.9. They ran roughshod over the Canon in claiming to have deposed Bishops Cox and Schofield, and signs of rebellion are beginning to be seen. Presiding Bishop Jefferts Schori's threat to hold a meeting to depose Bishop Duncan of Pittsburgh without the necessity of first inhibiting him is still on the table, although the hanging appears to have been postponed. And threats to depose the diocesans of Ft. Worth and Quincy are in the air. As I mentioned earlier, one needs to go back and read the comment of Prior McHugh quoted above to appreciate how far the situation in TEC has deteriorated in just the last thirty years.

TEC's Bishops who are taking these extreme actions maintain they are simply defending their diocesan territories. The problem, they say, is that when a priest withdraws from their jurisdiction to join, say, the Anglican Province of the Southern Cone, he or she does not leave and go to Argentina, but stays and conducts services (say) in the Diocese of Los Angeles, just as before. Pardon my impertinence, but so what? They cannot prevent that from happening, can they, with all of their thunderbolts? How do their threats and depositions change the situation by one whit for the better? It is the souls of fellow Christians that are at stake here, not medieval concepts of territoriality. (Depositions do not prevent the breakup of diocesan territory; they most likely exacerbate it.) Given that realization, one might think that TEC's bishops could take the Christian route, and issue letters dimissory . . . .

In all of these inhibitions and subsequent depositions, we see the results of treating the joining of other provinces of the Anglican Communion as equivalent to "abandoning the communion of the Episcopal Church." What TEC and her bishops are saying by these actions is that the only communion that matters to TEC is a communion subject to TEC's Constitution and Canons---the rest of the Anglican Communion can go hang, for all the comity that TEC cares to show to it. And as for the care of souls---the less said, the better.

TEC's Bishops have now rewritten Canons IV.9 and IV.10 so that they equate "abandonment of communion" not only with joining the Roman Catholic or Greek Orthodox Church, but also with joining the Anglican Church of Uganda, or the Anglican Province of the Southern Cone. This turns the canons into measures like those of the Anglican Church of Canada, which do not differentiate between joining another religious body that is in communion with the Canadian Church, and one that is not---both acts are equally subject to inhibition and deposition for "abandonment". (Most recently, the Canadian canons were used in this way to threaten the 82-year-old evangelist Dr. J. I. Packer with inhibition.)

We should truly be cautious before proceeding down Canada's path. What is happening in front of our eyes with all of the inhibitions and depositions is the balkanization of the Anglican Communion, in violation of the very principles of the Chicago-Lambeth Quadrilateral which lie at its heart. Soon, each province of the Communion will have two classes of clergy: those who are licensed to practice in that province, and those who cannot, but who are licensed elsewhere, even though they live and minister in the province in question. Once that happens, what can one say is left of the Anglican Communion? It will have become a tradition, in Hamlet's sad words, that is "more honor'd in the breach than the observance . . .".

Tuesday, April 8, 2008

Abuses of the Abandonment Canons (I)

Once again, because of the need to deal with historical and expository details, I will divide this post into a further two parts.  This one explains how the abuses of the Abandonment Canons (Canons IV.9 and IV. 10) came about; the next post (after a short hiatus while I am away) will chronicle the instances of abuse that have so damaged the polity of The Episcopal Church in recent years.  (Since these abuses are well known to all, I hope that this post, by providing the canonical background, will allow others to draw the appropriate conclusions for themselves, without waiting for the details in the next post.) 

As the previous post on the history of the Abandonment Canons demonstrates, they evolved out of, and were used to deal with, situations where a Bishop, priest or deacon had left his position in the Episcopal Church to join (or in some cases, to organize) another denomination that was not part of the Anglican Communion, and hence was not in communion with the Episcopal Church. The first case involving a Bishop was that of the Rt. Rev. Levi S. Ives, who left his post in 1852 as the second Bishop of North Carolina to join the Catholic Church; other cases involved the Rt. Rev. George D. Cummins, who left in 1873 to organize the Reformed Episcopal Church, and the Rt. Rev. Samuel A. McCoskry, who simply left in 1878 for Europe in order to avoid facing charges about his moral character.

In contrast to this kind of situation is the case where the ordained member clearly states that he is (a) remaining in The Episcopal Church, or (b) is transferring to another church within the Anglican Communion. How can he be said to have "abandoned the communion of this Church"? Certainly in the case of (a), he is still in this Church, and so has not abandoned it, let alone abandoned its communion. And even in the case of (b), it makes sense to speak of "abandonment of the communion" only if one considers The Episcopal Church not to be in communion with the other churches in the Anglican Communion.

[Aside: I am well aware that many Anglican provinces have declared themselves "out of communion", or "in broken communion", or "in impaired communion", with The Episcopal Church as a result of the actions taken at General Convention 2003. However, The Episcopal Church has made no such declaration with respect to any other Anglican province. Obviously only the declarations of The Episcopal Church can be given force and effect within The Episcopal Church itself---what another province declares may govern that province's actions towards us, but cannot govern our actions towards them.]

Because The Episcopal Church considers itself to be in communion with each of the 37 other provinces of the Anglican Communion, how can it be said to be an "abandonment of communion" for a minister in The Episcopal Church to transfer to another Anglican province? What is really going on in such cases is that there is usually a profound disagreement between the transferring minister and his diocesan bishop, so that the bishop refuses to sign the letters dimissory required by the canons for such a transfer. (In the case of a Bishop who transfers, the disagreement is with his colleagues in the House of Bishops, who must consent under the canons to his resignation from his jurisdiction for the resignation to be effective.) In other words, there is a territorial dispute going on here. The Anglican Communion has mostly been seen as having provinces that are geographically defined; if a minister in the Diocese of California transfers to the Province of Uganda, it has been the general expectation until recently that he would physically take up residence in Uganda, and not remain in California while serving in the Anglican Church of Uganda. Bishop Lamb accordingly denied letters dimissory to the Rev. David Miller because he and his church in Petaluma were physically staying put while "disassociating" from the Diocese of Northern California, whose geographical boundary takes in Petaluma. Similarly, the House of Bishops rejected the resignation of the Rt. Rev. John-David Schofield, and insisted on its right to depose him instead, because he and his Diocese were withdrawing from The Episcopal Church, but physically continuing to occupy the same territory as before.

One can certainly speak of an "abandonment" in a certain sense that is going on in these cases; Fr. Miller and Bishop Schofield were deliberately leaving the established hierarchy of The Episcopal Church. But they were transferring their ministries to another province of the Anglican Communion, and not (as with Bishops Ives or Cummins) leaving for another church not in communion with The Episcopal Church. How, then, can they be properly charged with "abandonment of the communion of this Church" under the canons? If "the communion of this Church" (with a small "c") is not the same communion (again with a small "c") as that of every other church in the Anglican Communion (big "C"), then what is it? And on what, then, is the Anglican Communion based?

The answer to these questions lies, at least in the eyes of those who I contend are abusing the Abandonment Canons, in the further definition of "abandonment of the communion" in Canons IV.9 (Abandonment of Communion by a Bishop) and IV.10 (Abandonment of Communion by a Priest or Deacon). (See the language quoted toward the end of the previous post. The language of Canon IV.10 is the same as for IV.9, except that clause (iii) of IV.9 is replaced by the catchall phrase "or in any other way" in Canon IV.10.) 

Canon IV.9, section 1 spells out what it means as follows:
If a Bishop abandons the communion of this Church

(i) by an open renunciation of the Doctrine, Discipline, or Worship of this Church, or

(ii) by formal admission into any religious body not in
communion with the same, or

(iii) by exercising episcopal acts in and for a religious body [other than this Church or another Church in communion with this Church], so as to extend to such body Holy Orders as this Church holds them, or to administer on behalf of such religious body Confirmation without the express consent and commission of the proper authority in this Church . . .
The definition of "abandonment" thus consists of three elements, of which the second two are much more explicit than the first. (As explained in the post on the history of these Canons, the second element took care of the case of Bishop Ives, while the third was drafted as a result of the consecrations and confirmations for the Anglican Church in North America performed by the Rt. Rev. Albert Chambers.)  Because these two elements are so explicit, it should be pointed out first how they actually prevent the Canons from being applied to cases where clergy transfer to another province of the Anglican Communion. For if the second clause defines it as an act of "abandonment" to secure formal admission into any religious body not in communion with this Church, then how can it also be an act of "abandonment" to join a religious body that is in communion with this Church?  Also, a similar application of the third clause (where I have inserted brackets to help with the reading of the language) means that it cannot be an act of "abandonment" to ordain or confirm others in a religious body that is in communion with this Church, i.e., is another constituent church of the Anglican Communion.  

So much is straightforward.  It is the first element of the definition that has been the source of all the problems.

The reason for that last statement requires some further historical explication. Abandonment consisting of "an open renunciation of the Doctrine, Discipline, and Worship of this Church" is language that has been with us ever since the first formulation of this Canon in 1853. In part, it echoed language of the Constitution of this Church, which ever since 1789 required the following vow from every ordinand (in place of the "Oath of the King's Supremacy" which had been required of all ordinands in the Church of England):
I do believe the Holy Scriptures of the Old and New Testament to be the Word of God, and to contain all things necessary to salvation: and I do solemnly engage to conform to the doctrines and worship of the Protestant Episcopal Church in these United States.  [Original Art. 7; emphasis added.]
The phrase "doctrine, discipline and worship", although not included as such in the oath of conformity of 1789, actually predates the Constitution, and is found in the Preface to the proposed Book of Common Prayer of 1786, drafted by the Rev. Dr. William Smith. (A shortened version of the Preface still appears in the 1979 edition, with the phrase quoted at page 11: "In which it will also appear that this Church is far from intending to depart from the Church of England in any essential point of doctrine, discipline or worship; or further than local circumstances require.") And beginning with the Prayer Book of 1792, the ceremony for the consecration of a Bishop required the candidate to swear this oath: "In the Name of God, Amen. I, N., chosen bishop of the Protestant Episcopal Church in N., do promise conformity and obedience to the Doctrine, Discipline, and Worship of the Protestant Episcopal Church in the United States of America. So help me God, through Jesus Christ.” (BCP, 1792.) As far as the required oath of conformity for ordinands was concerned, however, the word "discipline" was omitted from its form until the Constitution was amended by the General Convention of 1901, which changed "doctrines" to the singular, added the word "discipline", and capitalized each of the three words:
I do believe the holy Scriptures of the Old and New Testament to be the Word of God, and to contain all things necessary to salvation: and I do solemnly engage to conform to the Doctrine, Discipline and Worship of the Protestant Episcopal Church of the United States of America. [Art. VIII, Constitution of 1901.]
Except for the change in the name of the Church to "The Episcopal Church" in 1979, this oath of conformity has remained the same since 1901.  In White & Dykman's Annotated Constitution and Canons, the authors comment on the introduction of the word "Discipline" as follows:
The introduction of the word "Discipline" in 1901, making the pledge of conformity one to "the Doctrine, Discipline and Worship" of the Church extends the ordination vow to obedience to the provisions of the Constitution and Canons.  Inasmuch as a violation of the Constitution and Canons of the General Convention or of those of a diocese constitute an offense under Title IV, Canon 1, for which persons in Holy Orders may be liable to presentment and trial, it is appropriate that the engagement of conformity to the discipline of the Church, as well as to its doctrine and worship, be included in the declaration.  [White & Dykman, supra, Vol. I at p. 112; emphasis added.]
To recap this history briefly: at the time that Canon 1 of 1853 was adopted by General Convention to deal with the conversion to Catholicism of Bishop Ives, ordinands were required to conform themselves only to "the doctrines and worship" of the Church.  The abandonment of his Diocese by Bishop Ives, however---his departure for Europe with no stated return date, and his accompanying resignation from his see, without at the same time resigning from the House of Bishops---was seen by the drafters of Canon 1 not only as an abandonment of the doctrines and worship, but also of the discipline, of the Church (i.e., the canons, which since 1844 did not allow a Bishop to resign from his jurisdiction without first obtaining the consent of "a majority of those present" at a meeting of the House of Bishops---see White & Dykman, Vol. II, pp. 780-82). Accordingly, Canon 1 recited that "abandonment" consisted of an "open renunciation of the Doctrines, Discipline and Worship of this Church, or by a formal admission into any religious body not in communion with the same"---and thus both clauses covered the case of Bishop Ives, who had not only left his diocese, but had joined the Roman Catholic Church.   
The phrase "Doctrines, Discipline and Worship of this Church" was treated as a conjunctive concept in the cases of Bishops Ives, Cummins and McCoskry: that is, to leave the Episcopal Church for a church not in communion with it, or to leave it altogether, was seen at the time as an abandonment of all three elements together: the "Doctrines" of the Episcopal Church were not the same as the doctrines of the Roman Catholic Church, or of the Reformed Episcopal Church; nor was the "Worship".  As for the "Discipline," the departures all involved violations of the applicable Canons.

Note very carefully, however, that as stated, Canon 1 of 1853, like the 1901 oath of conformity, was worded conjunctively: that is, it required an open renunciation of the Doctrines and the Discipline and the Worship of the Church to amount to an "abandonment" under the Canon. Simply renouncing the "Discipline", or the "Worship", or the "Doctrine", or the "Doctrine and Discipline", etc., did not constitute violation of the Canon as worded, although it would constitute a violation of the vows at ordination or consecration. To see how this statement applies, let us look at some history of the ordination ceremonies in the Book of Common Prayer.   

At the time of the adoption of Canon 1 of 1853, an ordinand or a Bishop-elect was required to take vows in addition to the oath of conformity required by the Constitution.  For example, the consecration ceremony for a Bishop prescribed the following vows:
The Presiding Bishop.

ARE you persuaded that the Holy Scriptures contain all doctrine required as necessary for eternal salvation through faith in Jesus Christ? And are you determined out of the same Holy Scriptures to instruct the people committed to your charge ; and to teach or maintain nothing, as necessary to eternal salvation, but that which you shall be persuaded may be concluded and proved by the same?

Answer. I am so persuaded, and determined, by God’s grace.
. . .
ARE you ready, with all faithful diligence, to banish and drive away from the Church all erroneous and strange doctrine Contrary to God’s Word ; and both privately and openly to call upon and encourage others to the same ?

Answer. I am ready, the Lord being my helper.
And for priests, the vows at the time were similar, with an additional vow of obedience:
The Bishop.

ARE you persuaded that the Holy Scriptures contain all doctrine required as necessary for eternal salvation through faith in Jesus Christ ? And are you determined out of the same Holy Scriptures to instruct the people committed to your charge ; and to teach or maintain nothing, as necessary to eternal salvation, but that which you shall be persuaded may be concluded and proved by the Scripture?

Answer. I am so persuaded, and have so determined, by God’s grace.

WILL you then give your faithful diligence always so to minister the Doctrine and Sacraments, and the Discipline of Christ, as the Lord hath commanded, and as this Church hath received the same, according to the Commandments of God ; so that you may teach the people committed to your Cure and Charge with all diligence to keep and observe the same?

Answer. I will so do, by the help of the Lord.

WILL you be ready, with all faithful diligence, to banish and drive away from the Church all erroneous and strange doctrines contrary to God’s Word ; and to use both public and private monitions and exhortations, as well to the sick as to the whole, within your Cures, as need shall require, and occasion shall be given?

Answer. I will, the Lord being my helper.
. . .

WILL you reverently obey your Bishop, and other chief Ministers, who, according to the Canons of the Church, may have the charge and government over you ; following with a glad mind and will their godly admonition, and submitting yourselves to their godly judgments ?

Answer. I will so do, the Lord being my helper.
The irony here is that for the entire nineteenth century, and for most of the twentieth century until 1979, consecrated Bishops and ordained priests and deacons took vows to "banish and drive away from the Church all erroneous and strange doctrines contrary to God's word," and both publicly and privately to call upon others to do the same.  A bishop, priest or deacon who was fulfilling such a vow by speaking out against heresy could scarcely be said to have "abandoned the communion of this Church".  Yet today it is commonplace for such charges to be leveled against priests and Bishops on the ground that such efforts constitute a "renunciation of the doctrine, discipline or worship of this Church", because the particular doctrine in question is espoused by the priests' Bishop, or because the relevant Standing Committee (or Title IV Review Committee) believes that the priest or Bishop's opposition to the particular doctrine is simply wrong.  How did we get to such a pass?  

One chief reason is that the 1979 edition of the Book of Common Prayer significantly changed these vows of ordination and consecration. Unfortunately for our purposes, as we shall see, the drafters of the 1979 Prayer Book thought it fit to drop the vow about "banishing and driving away all erroneous and strange doctrines" and to restate the former vows in words as follows:
Bishop Will you guard the faith, unity, and discipline of the Church of God?

Answer I will, for the love of God.
For priests, the vows were restated as follows:
The Bishop says to the ordinand

Will you be loyal to the doctrine, discipline, and worship of Christ as this Church has received them? And will you, in accordance with the canons of this Church, obey your bishop and other ministers who may have authority over you and your work?


I am willing and ready to do so; and I solemnly declare that I do believe the Holy Scriptures of the Old and New Testaments to be the Word of God, and to contain all things necessary to salvation; and I do solemnly engage to conform to the doctrine, discipline, and worship of The Episcopal Church.
The oath ("I do solemnly engage to conform to the doctrine, discipline and worship of The Episcopal Church") does not necessarily match the query ("Will you be loyal to the doctrine, discipline, and worship of Christ as this Church has received them?")---unless the "doctrine, discipline and worship" of The Episcopal Church conforms in all ways to the "doctrine, discipline and worship of Christ as this Church has received them."  That is, the two concepts ought  to be the same, in an ideal world where The Episcopal Church has been fully faithful to the doctrines, discipline and worship as taught by our Lord as and as received by the Church from the Saints, but---aye, there's the rub, isn't it?  We now have considerable disagreement over whether the two concepts are indeed the same.  And as is evident everywhere in the Church today, the perceived dichotomy between the two concepts is causing no small degree of anguish and heartbreak.

In the General Convention of 1904, the two canons were amended to define "abandonment" in the disjunctive, that is, it was defined as the open renunciation of either the "Doctrines", or the "Discipline," or the "Worship" of the Church.  (This amendment was pushed through, Messrs. White & Dykman tell us, because a minister of the Reformed Episcopal Church who was canonically resident in the Diocese of Pittsburgh had responded to a charge that he had "abandoned communion" with the defense that he had not renounced "the doctrine, discipline and worship of this Church, because he still continued in the "worship" of this Church.)  And with this change as prelude, the 1979 changes to the vows threw the door to the abuse of the canons wide open.  Now it was no longer canonical to speak out publicly to "banish and drive away from the Church all erroneous and strange doctrine"; instead, the duty was replaced with the duty to conform "to the doctrine, discipline and worship of The Episcopal Church."  With the change to an offense defined disjunctively rather than conjunctively, all the Church attorney had to prove was any one of the three subelements of abandonment, whereas before the change he had to prove all three in combination: renunciation of doctrine, discipline and worship. Proof of the three elements together was simple in the cases of true abandonment.  But where the parties differed on matters of doctrine or worship, the one bringing the charges could now use any of those differences as a basis for finding "abandonment" under the canon.  Once such "abandonment" was certified, the Bishop, in the case of a priest or deacon (or, in the case of a Bishop, the Presiding Bishop, with the consent of the three senior bishops with jurisdiction), could decide to "inhibit" the clergyperson so charged, and the one so inhibited could be deposed without trial if he or she failed to respond adequately to the charges.

(Even inhibition is no longer a prerequisite to a deposition for abandonment, in the view of the current Presiding Bishop.  She is proposing to have the House of Bishops take up a resolution to depose the Rt. Rev. Robert Duncan, Bishop of the Diocese of Pittsburgh, even though she failed to obtain the necessary consents to inhibit him; and she has already pronounced unlawfully the deposition of the Rt. Rev. William Cox, Resigned, even though he was never inhibited as required by the plain language of the Canon.  We are quickly devolving to a Church where the canons---derived from a Greek word meaning "rule", or "measure"---are meaningless, and have become tools for misrule, and a complete lack of measure.)

The separating of the three elements of "doctrine, discipline or worship" in the 1904 and subsequent versions of the abandonment canons meant that charges of abandonment could be brought just for violations of "discipline" alone, i.e., violations of the canons, or of ordination or consecration vows.  To that extent, after the 1979 changes to the Prayer Book, Canons IV.9 and IV.10 became duplicates of Canon IV.1, the canon which properly deals with such violations.  The big difference is that Canon IV.1 provides for adversary proceedings, including a presentment and a trial, while Canons IV.9 and IV.10 do not (since true "abandonment" can scarcely be the subject of a genuine factual dispute).  Also, Canon IV.12 (Sentences) provides for a variety of disciplinary sanctions for violations of Canon IV.1, ranging from simple admonition to suspension to deposition, while the prescribed sanction under the abandonment canons is nothing less than deposition.  As we shall see in my next post, the simplified procedures of those canons have led to wholesale expulsions from the Church over matters that should properly have been handled under the disciplinary canons of Title IV.  (See also the remarks of the Anglican Communion Institute on this topic, with which I am in full agreement.) To the extent it is becoming more and more arbitrary in its abuse of Canons IV.9 and IV.10, The Episcopal Church is signaling its own "abandonment" of the foundations upon which it was built.