Friday, May 2, 2008

How to Follow the Canons in San Joaquin

There seems to be so much confusion about what is going on in the Diocese of San Joaquin that it is probably too optimistic to expect that another post on the subject will assist anyone in understanding the situation. In considering how to approach the subject, and on how to place the current lawsuit in context, it occurred to me that one viewpoint that has not yet been seen is that of a chancellor's advice to a Presiding Bishop of The Episcopal Church who genuinely wants to honor and to follow TEC's Constitution and Canons. So let the following memorandum (which will appear in three parts) speak for itself.


The Most Reverend N_______, Presiding Bishop of The Episcopal Church

From: A. S. Haley, Church attorney

Re: San Joaquin: the Situation and my Recommendations

The Situation in San Joaquin

A. Before December 2007

1. The Episcopal Diocese of San Joaquin was an unincorporated association organized under California law. As an unincorporated entity, it did not have "articles of incorporation" on file with the State, but it did have its own Constitution and Canons, adopted over the years at various diocesan conventions.

2. The Episcopal Diocese of San Joaquin was canonically recognized by The Episcopal Church as one of its dioceses, electing delegates to General Convention. Its Constitution contained language that it "accedes to the Constitution of that branch of the Holy Catholic Church known as the Episcopal Church in the United States of America and recognizes the authority of the General Convention of the same."

3. Thus the Diocese of San Joaquin had two identities before December 2007: it was an entity recognized by California as an unincorporated nonprofit religious association, and recognized by The Episcopal Church as a constituent Diocese of Province VIII of that Church.

4. California law authorizes the creation of a special kind of corporation, the "corporation sole", by "the 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.) Under that provision, the Rt. Rev. John-David Schofield, who had been elected and consecrated as Bishop of San Joaquin in 1988, filed amendments to the articles of the corporation sole belonging to his predecessor (the original corporation sole for the Bishop of the Diocese of San Joaquin had been incorporated in 1911). These amendments made him the incumbent of the corporation sole under California law.

5. At its Diocesan Convention in October 2005, the Diocese of San Joaquin approved an amendment to Article II of its Constitution stating that the diocese would accede "to the extent that such terms and provisions, and any amendments thereto, adopted by the authority of the General Convention, are not inconsistent with the terms and provisions of the Constitution and Canons of the Diocese of San Joaquin...". This was a response (begun at the Diocesan Convention of 2003, and then changed at the Convention of 2004) to the actions of TEC's General Convention 2003, which approved the election of the Rt. Rev. V. Gene Robinson, an openly non-celibate homosexual who had divorced his wife, to be Bishop of the Diocese of New Hampshire.

6. In March 2006, Bishop Schofield again filed amendments to the articles of his corporation sole. These amendments changed the language that specified how his successor was to be chosen, and removed the requirement (conforming to Art. II, sec. 2 of TEC's Constitution) that the election of his successor be approved by a majority of the Bishops and the Diocesan Standing Committees of The Episcopal Church. After the amendment, the articles required only that Bishop Schofield's successor be consecrated as "a Bishop in the Apostolic Succession."

7. At the Diocesan Convention in December 2006, the 2005 amendment was superseded in favor of one that would lead to actual withdrawal from TEC. The delegates voted (clergy: 68-16; laity: 108-12) to amend Article II of their Constitution to remove language that stated the Diocese acceded to the Constitution of The Episcopal Church, and to substitute language making the Diocese "a constituent member of the Anglican Communion." This change did not specifically align the Diocese with any other Anglican Province (indeed, it left it free to reaffiliate with The Episcopal Church, should it so choose), and was the first vote; before the change would take effect, it had to pass a second vote at the next annual Diocesan Convention.

B. After December 2007

8. On December 8, 2007, a large majority of the delegates to the annual Convention voted again to adopt the proposed amendment to the Constitution to remove the Diocese from The Episcopal Church and to make it part of the broader Anglican Communion, along with related changes. (The text of the amendments may be read here.) A subsequent motion passed to amend the Canons of the Diocese to subject it to the authority of the Primate of the Anglican Province of the Southern Cone, the Most Rev. Gregory Venables.

9. The Standing Committee of the Diocese of San Joaquin has eight members, two of whom are elected at each Diocesan Convention to four-year staggered terms. At the Convention in December 2007, Mr. Stevie Oates was elected as a new lay member, and the Rev. Richard I. James and the Rev. Robert G. Eaton as clergy members (there was one additional clergy position vacant because of the departure of the Rev. Dan Martins for Indiana). Their terms would expire in December 2011.

10. Following the 2007 Convention, two of the lay members of the Standing Committee (Messrs. Oates and Yumoto) announced their intention of remaining with their respective congregations who were joining Bishop Schofield and the other parishes affiliating with the Province of the Southern Cone. The remaining six members of the Standing Committee, including all four of its clergy members, were with parishes who were still going through the process of discernment as to whether to stay with TEC or transfer their affiliations to the Southern Cone.

11. The Standing Committee held at least one regular meeting in January 2008 at which it dealt with a typical agenda, including the recording and transmission to the Presiding Bishop of its approval to the ordination of a Bishop who had been elected by another Diocese. What happened next is recounted here:
[A]s is now well-documented--on this blog and elsewhere--the four clerical members of the Standing Committee, and two of the lay members, almost immediately following the December convention, signaled their intention to not follow the majority to the Southern Cone. They did so by consenting to the election of a bishop by a diocese of the Episcopal Church, and transmitting that consent through normal channels. In mid-January, the President of the Standing Committee spoke on the phone with the Presiding Bishop and informed her that a majority of committee's members did not intend to join in the secession, and wished to continue to operate under the Constitution and Canons of the Episcopal Church. A day after this phone conversation, Bishop Schofield, in effect, recognized this reality and effectively "fired" these six individuals, and reconstituted the Standing Committee of the Southern Cone Diocese of San Joaquin from the remaining two lay members.
Bishop Schofield appointed six other persons to replace those he had dismissed. This move created a second Standing Committee whose responsibility was to Bishop Schofield and the Province of the Southern Cone. The original Standing Committee had not recognized the affiliation, and so wished to remain bound to The Episcopal Church, as its president had told your predecessor.

12. Nevertheless that predecessor, the Most Rev. Katharine Jefferts Schori, on January 25, 2008 sent an extraordinary letter addressed to all eight of the members of the Standing Committee as it had been constituted following the December 2007 Diocesan Convention. It informed them:
It has come to my attention that in the past several months you have taken actions in support of an attempt to take the Episcopal Diocese of San Joaquin out of the Episcopal Church and into affiliation with the Province of the Southern Cone. I understand that these have included voting to amend the Diocese’s Constitution and canons and attempting to organize as the Standing Committee of an entity that identifies itself as an Anglican Diocese of the Province of the Southern Cone. These actions directly conflict with the Constitution and canons of the Episcopal Church.

Canon I.17.8 of the Episcopal Church provides that “[a]ny person accepting any office in this Church shall well and faithfully perform the duties of that office in accordance with the Constitution and Canons of this Church and of the Diocese in which the office is being exercised.” In the light of your recent actions, I find that you have been and are unable to well and faithfully fulfill your duties as members of the Standing Committee of the Episcopal Diocese of San Joaquin under Canon I.17.8. Accordingly, with this letter I inform you that I do not recognize you as the Standing Committee of the Episcopal Diocese of San Joaquin.
It is important to take note of the factual inaccuracy of the charges made in this letter. Contrary to what Bishop Jefferts Schori states, the Standing Committee did not vote to take any of the actions described as a basis for her refusal to recognize them any longer. Instead it was the Diocesan Convention that held the votes and passed the changes in question. Only the vote to change the Canons actually changed the affiliation of the Diocese, and the number of persons who voted for the Constitutional change (affiliating with the larger Anglican Communion) was greater than the number who voted to change the Canons. How the individual members of the Standing Committee may have voted as Delegates on the individual resolutions proposed at Convention is not only not known, but is irrelevant to their function as a Standing Committee.

13. The six members still remaining on the Standing Committee responded to Bishop Jefferts Schori in a letter informing her that she was without canonical authority in refusing to recognize them, that they were still the Diocesan Standing Committee, and would be "the Ecclesiastical Authority of the Diocese of San Joaquin in the event the House of Bishops should choose to depose Bishop John-David Schofield." They concluded with this warning:
Any attempt on your part, or on the part of any other person, to circumvent or replace the Standing Committee as the Ecclesiastical Authority will be a violation of the Constitution and Canons of the Episcopal Church.
14. From this point on, the events that unfolded are well known (see also the timeline here). Having inhibited Bishop Schofield following the certification of charges that he had "abandoned the communion of this Church," and rejecting Bishop Schofield's response to the charges in which he resigned his seat in the House of Bishops, Bishop Jefferts Schori brought before the House of Bishops, on the last day of its March 2008 meeting at Camp Allen, a resolution to depose him. Although there was only a bare minimum of a quorum of the House of Bishops (68 active Bishops, plus a small number of retired Bishops) present when the debate started, and although Canon IV.9 requires, in order to depose, the vote of "a majority of the whole number of Bishops entitled to vote"---or 148 Bishops, active and retired, at the time of the Camp Allen meeting---Bishop Jefferts Schori took only an unrecorded voice vote on the resolution, and declared that it had carried. A few days later, she certified that Bishop Schofield had been deposed in accordance with the vote.

15. The Diocesan Standing Committee, with its six members, refused to recognize the validity of the vote to depose Bishop Schofield, and indicated that they would wait to assume the Ecclesiastical Authority of the Diocese until he had been properly deposed. Bishop Jefferts Schori, however, did not wait. She herself issued a call for a Special Convention of the Diocese on March 29, at which all delegates were required to subscribe an oath of conformity to the Episcopal Church as a condition of being allowed to attend. She appointed clergy from other dioceses to serve in the Diocese on an interim basis pending the Convention, and she chose retired Bishop Jerry A. Lamb to be confirmed by the Special Convention as Provisional Bishop of the Diocese, with authority to sue for recovery of Church property. As has been noted in a thorough review of the legality of these actions, they each violated the Constitution and Canons of both The Episcopal Church and the Diocese of San Joaquin.

Except as will be necessary in the next part of this memorandum, I shall not recount here the legal debacle that ensued from these actions, when Bishop Lamb brought a lawsuit in Fresno County Superior Court to try to recover the title to the assets of the Diocese, and to have himself declared Bishop of San Joaquin and the rightful incumbent of the corporation sole; or the actions in the Church that led to your subsequent elevation to the post of Presiding Bishop. To do so would take us too far astray from the subject, which is to recommend concrete canonical steps and guidelines for you to follow in rectifying the unfortunate situation in San Joaquin. The next part of this memorandum will address the legal and canonical status of the two Dioceses of San Joaquin. A proper understanding of their status is essential to deciding on what steps may be taken toward that end.

(Part II follows in a subsequent post.)

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