Tuesday, October 11, 2011

Bishop Henderson: It's "Business as Usual" in the Church

The Right Rev. Dorsey Henderson has issued a statement to clarify the nature of the proceedings which the Disciplinary Board for Bishops, of which he is the President, is conducting against the Rt. Rev. Mark Lawrence of South Carolina. (H/T: Doug LeBlanc, Living Church Foundation.) The statement asserts that the Disciplinary Board is proceeding as an entire body under the special provisions in the canon covering abandonment of communion by bishops (Canon IV.16), instead of following the process dictated by Canon IV.17, which uses an Intake Officer, a Panel of Reference, and then other panels, as I discussed in this earlier post.

There is certainly a plausible case for reading Canon IV.16 as Bishop Henderson does in his statement, if one isolates its language from all the rest of Title IV. However, it must be noted that the drafters of the new Title left quite a bit open for argument, because they wrote the very next canon (IV.17) in this way (emphasis added):
Sec. 1. Except as otherwise provided in this Canon, the provisions of this Title shall apply to all matters in which a Member of the Clergy who is subject to proceedings is a Bishop.

Sec. 3. The Disciplinary Board for Bishops is hereby established as a court of the Church to have original jurisdiction over matters of discipline of Bishops, to hear Bishops' appeals from imposition of restriction on ministry or placement on Administrative Leave and to determine venue issues as provided in Canon IV.19.5.
"Except as otherwise provided in this Canon" means that everything in Canon IV.17 takes precedence over anything in Canon IV.16. And Canon IV.17 provides for a Reference Panel, an Intake Officer, a Conference Panel, and a Hearing Panel in "matters of discipline of bishops." It also provides for an appeal of any restrictions imposed, as well as for an appeal to the Court of Review for Bishops from any decisions of the hearing panel.

But what to one's surprise: Canon IV.16 provides only for summary action by a simple majority of the eighteen-member Disciplinary Board. They "certify" the fact of "abandonment" to the Presiding Bishop; she slaps a restriction on the abandoning bishop (inhibits him from exercising his office), and gives him sixty days to retract or deny his acts of abandonment. If he does not do so, or if the Presiding Bishop in her sole judgment decides that any denial is not in "good faith", then she presents the matter to the House for a resolution to depose the abandoning bishop.

Under this procedure, and contrary to the peremptory language of Canon IV.17, no appeal exists from any restriction imposed by the Presiding Bishop, or from any resolution adopted by "a majority of the whole number of bishops entitled to vote" (which the Presiding Bishop and her Chancellor interpret -- wrongly, as demonstrated in the series of posts linked at this page -- as meaning "a majority of those present and voting"). So despite the Canons saying what they do, we once again are witnesses to the Church's higher authorities deciding that they do not mean what they say.

The abandonment canon was originally enacted to cover the clear case where a bishop converts to another faith without bothering to resign his see first (an act which also requires consent from the House of Bishops). Its expedited procedures assumed that (a) there could be no argument over what acts constituted the "abandonment" -- hence the lack of provision for any hearing, or trial; and (b) the abandoning bishop would in all likelihood not contest the fact of his having left the Church. Neither of those circumstances applies in Bishop Lawrence's case.

But now Bishop Henderson has made it official: despite all the fanfare about the supposedly "more humane" character of the new disciplinary canons, when it comes to "abandonment", it is business as usual in the Episcopal Church (USA). If the Disciplinary Board certifies the flimsy acts spelled out in the document published on South Carolina's website as constituting "abandonment", it will have acted even worse (if that is possible) than did the old Title IV Review Committee in the case of Bishop Duncan. And for the second time in its history, the Episcopal Church's House of Bishops will have decided to remove one of its own members, a sitting and functioning bishop, from his diocese without any overt act on his part of renunciation or departure -- indeed, in spite of all his protestations to the contrary.

And so now, the question arises: why did it take so long for the Disciplinary Board to get involved? Why was not the September 2010 letter from the Episcopal Forum, with its nearly identical charges, not referred to the old Title IV Review Committee at the time? (Its Web page shows that they held their last meeting by teleconference on November 5, 2010.) Is it possible that the old Title IV Review Committee did consider the charges of abandonment at that time, and deemed them insufficient to certify as such?

The old body had just nine members on it, including six bishops. The new Disciplinary Board is twice as large, and has ten bishops -- only two of whom, Bishop Waggoner from Spokane and Bishop Henderson, are carryovers from the Title IV Review Committee. Also, please note this very disturbing fact: North Carolina attorney Ms. Josephine Hicks, who acting as "Church Attorney" for the Disciplinary Board sent this letter to the Diocese's Standing Committee, doubles as a voting member of the Board! So she not only gets to conduct an investigation into the charges as the Board's Attorney, she then gets to vote on them! Would you care to guess what her recommendation about the charges is going to be? Or is it too much to ask that the investigator not also function as judge and jury to boot? (See UPDATE #3 below.)

It will take a vote of ten members to certify "abandonment" to the Presiding Bishop. So if they did not have five members willing to vote for abandonment in September 2010, do they have ten such members now -- including their own attorney, for heaven's sake? We soon shall see.

The same jurisdictional and constitutional problems remain, however, as I discussed in my previous post. Neither Bishop Lawrence nor his Diocese concedes any authority or validity to the "Disciplinary Board for Bishops." And we now have a "double jeopardy" problem of sorts, too. For if the old Title IV Review Committee rejected the charges as constituting an act of abandonment, then where is the fairness in having a new and larger body consider them again?

There surely is no other church in the world which manages to muck up its disciplinary procedures, or to make the formerly clear now so murky and uncertain, as the Episcopal Church (USA). Lack of leadership at the top is solely responsible for this mess -- just as we are witnessing in the case of a president who would rather campaign for his seat than govern and do his job. Like the President, the leadership at 815 is too concerned with politics and what they see as their opposition, rather than getting on with what they were put into office to do.

But that, of course, is exactly what is meant by the phrase "business as usual."

[UPDATE 10/11/2011: There is much more that can be noted regarding the role of the "Church Attorney" under the new Title IV canons. To begin with, Canon IV.2 spells out her role in these words (I have added the bold emphasis after the initial two words):
Church Attorney shall mean one or more attorneys selected pursuant to Diocesan Canons to represent the Church in proceedings as provided in this Title. The Diocesan Canons may provide a process for the removal of a Church Attorney for cause. A Church Attorney shall perform all functions on behalf of the Church necessary to advance proceedings under this Title and shall have the following powers, in addition to the powers and duties otherwise provided in this Title: (a) to receive and review the Intake Officer's report; (b) to conduct investigations and oversee the Investigator and, in connection with such investigations, to have access to the personnel, books and records of the Diocese and its constituent parts; and to receive and review the reports of the Investigator; (c) to determine, in the exercise of the Church Attorney's discretion, whether the reported information, if true, would be grounds for discipline; and (d) to exercise discretion consistent with this Title and the interests of the Church by declining to advance proceedings or by referring any matter back to the Intake Officer or the Bishop Diocesan for pastoral response in lieu of disciplinary action. In representing the Church, a Church Attorney may consult with the Conference Panel.
This is supposed to be an independent and outside role -- is that not clear to Bishop Henderson and his cohorts on the Disciplinary Board? The Church Attorney has even been given the power to "declin[e] to advance proceedings" under Title IV -- including, one has to presume, proceedings under Canon IV.16 (the "abandonment" canon), because after all, Canon IV.17.1 states expressly that its provisions override all other provisions of Title IV in the cases of bishops, and it provides in Section 2 that there shall be a "Church Attorney" in all such proceedings who is "a person appointed by the Disciplinary Board for Bishops to serve as the Church Attorney" [as defined in Canon IV.2, quoted above].

And here there can be no question that Ms. Josephine Hicks is the Disciplinary Board's "Church Attorney." She identifies herself as such in her letter sent to South Carolina's Standing Committee, dated September 30, which she signs as "Josephine H. Hicks / Church Attorney to the Disciplinary Board". So how in the world do Bishop Henderson and his Board conceive, in the furthest reaches of their supposedly neutral and dispassionate roles as enforcers of the new Canons, that they can hire one of their own voting members to be the "Church Attorney" as defined in Canon IV.2????

Quite simply, the sheer chutzpah of this maneuvering boggles the legal mind. Attorneys must serve their clients first and foremost, and if Ms. Hicks is the Church Attorney for the Board, then her client is the Board. She cannot objectively fulfill that role while serving on the Board itself as one of its voting members.

Even were she to recuse herself from voting on any matters involving Bishop Lawrence, there is the fact that she has been hired by, and so is presumably being paid by, the very people who are her colleagues on the Board. Do you imagine that she could, in those circumstances, begin to exercise her independent judgment as to whether the proceedings against Bishop Lawrence should move forward, despite the total flimsiness of the charges? (Hint: she wrote the September 30 letter, so she obviously is incapable of being independent in this matter.)

Shall we continue with the joke which all this makes of the new Canons, passed with such fanfare at General Convention -- after only fifteen minutes of deliberation? Take a look at the Canons which spell out the "impartiality" required of all bodies which exercise functions under the disciplinary canons (Canons IV.19.14-15):
Sec. 14. Impartiality of officials and bodies described in this Title shall be addressed as follows:
(a) Any Bishop Diocesan exercising authority under this Title shall disqualify herself or himself in any proceeding in which the Bishop's impartiality may reasonably be questioned.
Comment: Bishop Jefferts Schori has steadfastly refused to meet with Bishop Lawrence, or to respond to his entreaties that they confer about the differences that divide them. Is that the action of an "impartial" diocesan?
(b) Any member of any Panel provided for in this Title shall disqualify himself or herself in any proceeding in which the member's impartiality may reasonably be questioned. The member shall also disqualify himself or herself when the member . . . (4) has personal knowledge of disputed evidentiary facts concerning the proceeding [such as the knowledge gained by personally investigating the charges?], [or] (5) has a personal financial interest in the outcome of the proceeding . . . [such as being paid for all time spent in "investigating" the facts?]
And now, please get this next provision (IV.19.14 [c]), which in the context of the role to be played by the "Church Attorney", is truly rich in irony:
(c) Any member of any Panel provided for in this Title who has not disqualified himself or herself as provided in this section may be subject to challenge by the Church Attorney . . . . The challenge shall be investigated by the remaining members of the Panel who shall determine whether the challenged member of the Panel should be disqualified and replaced according to the procedures of this Title for filling vacancies.
So -- not only is the Church Attorney supposed to be independent enough to bring grounds for disqualification of any member of the Board before the rest of its members, but according to this language, Ms. Hicks should bring the matter of her own disqualification before the Board! Truly -- Franz Kafka himself could not invent a more grotesque parody of "due process."

But wait -- we are not through; I have saved the best for last. Here is what new Canon IV.19.15 provides, in relevant part:
Sec. 15. In addition to any challenge permitted under Canon IV.19.14, the integrity of the Disciplinary Board shall be preserved by a system of challenge as to the membership of any Panel of the Board appointed for a proceeding. Each Diocese shall provide by Canon for a system of challenge. If the Canons of the Diocese make no provision for challenging a member of the Board, any member of a Panel appointed for a proceeding may be challenged by the Church Attorney or the Respondent on grounds of conflict of interest or undue bias. The remaining members of the Board shall determine whether the challenge is relevant and factually supported and shall determine whether the challenged member shall be excused from that proceeding. If the member is excused, another member of the Board shall be appointed to the Panel to fill the vacancy created by the challenge, maintaining the appropriate balance of lay and ordained members.
Needless to say, the drafters of the new Title IV neglected to provide any national canons providing a "system of challenge as to the membership of any Panel of the Board appointed for a proceeding." In their absence, Canon IV.19.15 allows -- you guessed it! -- the "independent" Church Attorney to challenge members for conflict of interest or bias!

Now, stop and reflect for a minute on all of the foregoing. We have an eighteen-member Disciplinary Board, none of whose members saw the slightest conflict of interest in hiring one of their own members to act as Church Attorney in the proceedings against Bishop Lawrence. Does that simple fact not suggest that they all are hopelessly blind and biased, beyond all expectation of objectivity? And does it not follow that every single one of the current Disciplinary Board should be disqualified? And just who is required by the Canons to bring these charges of disqualification? Why -- none other than the Church Attorney, of course!!

(Ms. Hicks -- please call your office.)

Needless to say, there is no need for Ms. Hicks to call her office, because no one at 815 is trying to point out to her the impossibility of her situation, and of all the current proceedings for which she is so dutifully laboring. But as we constantly have seen, all this is "par for the course" under the "leadership" (hah!) of Presiding Bishop Katharine Jefferts Schori. It is she, after all, who gives free rein to her own personal attorney (Chancellor) to hire his own law firm to carry out the vast litigation program of the Church, while earning that firm tens of millions of dollars in the process with no meaningful oversight of what they do. So why should Bishop Dorsey Henderson do any less? Hire one of his own as the "independent" counsel to the Board! Why not, given his mentor's example?

This all stinks, and it stinks to high heaven. And to add insult to the injury to the Canons, the folks at the Anglican Communion Institute remind everyone that the duty to report canonical "offenses" (such as "abandonment of communion") is mandatory, and not discretionary, under the new Title IV. Such a duty, if followed as the new Canons require, should have sidetracked all so-called "independent" proceedings under Canon IV.16, and should have injected the due process protections of Canon IV.17 into those proceedings.

But not when it is "business as usual" in the Episcopal Church (USA). By making a joke of their new canons -- six years in the drafting, but deliberated upon for just fifteen minutes at General Convention -- they turn the joke upon themselves. From this point forward, everything that 815 does against the Diocese of South Carolina should be treated as the joke that it is. It is unworthy of serious deliberation or debate, and any results produced will be ludicrous in light of the bias which will inexorably taint them. One might have thought that the Episcopal Church (USA) could not sink any lower -- but one would obviously be wrong.]

[UPDATE 10/12/2011: I appear to have been misled by the description of Ms. Hicks on the official roster page for the Disciplinary Board as a "Member" from Province IV. As Karen B. has helpfully pointed out, Ms. Hicks's name was not among those lay persons initially announced as having been appointed to terms on the Board. It was added when the roster was published, as was the name of Bishop F. Clayton Matthews (the Intake Officer for the Board), who is listed as "Other."

So why would not Ms. Hicks be listed as "Other" as well -- especially since Canon IV.5.3 (c) would appear to prohibit her from serving on the Board as well as its Church Attorney? That Canon states (in connection with diocesan Disciplinary Boards -- but in the introduction, it states that the Canon applies to "all" Disciplinary Boards):
No person serving in a Diocese as Chancellor, Vice Chancellor, Advisor, Conciliator, Church Attorney, Intake Officer or Investigator may serve on the Disciplinary Board of that Diocese, and no member of a Disciplinary Board may be selected to serve in one of those positions in the same Diocese.
If we ignore the restriction about "that Diocese/same Diocese" (which is meaningless at the national level), then this Canon expressly excludes both Bishop Matthews and Josephine Hicks from serving as members of the Disciplinary Board itself -- as it ethically should, given their independent roles as explained in the previous Update. But it would have been helpful if the Official Roster had clarified that point from the outset -- and it still would help if the Board was open about just who is voting in this matter, in what capacity. Given that Ms. Hicks was also a former member of the Executive Council which passed the resolution which purported to "nullify" the constitutional amendments passed by San Joaquin, Fort Worth, Quincy and Pittsburgh in June 2007, she is hardly to be regarded as an "impartial official" in this matter. My comments above about the kangaroo-court nature of this "process", therefore, stand.]

[UPDATE #3 - 10/12/2011: Since writing the above Update earlier this morning, the Roster for the Disciplinary Board for Bishops has been changed. It now shows a total of eighteen members -- ten bishops, four clergy and four laity. Neither Bishop F. Clayton Matthews nor Ms. Josephine Hicks appears any longer on the Roster in any category. Apparently someone at ECUSA has been tracking our complaints, either here or at StandFirm. Now let's hope they address the remaining ones -- which will not be so easy to fix.]

[UPDATE #4 - 10/13/2011: It turns out that the Diocese's Chancellor, Mr. Wade Logan, Esq., has been on top of this all along (he is a very experienced church attorney, with a graduate degree in canon law). Upon receiving Ms. Hicks's letter, he wrote back to inquire under which version of the Title IV Canons she was purporting to act, and then pointed out that the roster for the Disciplinary Board (as it appeared in this link) showed her as a member of that Board, contrary to the requirements for a "Church Attorney" as quoted in Update #2 above. Thus far, the only response received has been the sudden change to the Roster, which now does not show Josephine Hicks as a member.

And now Bishop Henderson comes forth yet one more time, to clarify what should have been made plain from the outset: Josephine Hicks was never at any time a voting member of the Disciplinary Board. She was hired shortly after its organization as its "Church Attorney". But given her background as stated in the article and accompanying video, and given that the charges against Bishop Lawrence must have reached the Disciplinary Board around the same time, is it any wonder that she was the Board's choice to investigate its first real case -- namely, the "acts of abandonment" allegedly committed by an orthodox Christian Bishop, including the reception of his own son into his Diocese from ACNA as a deacon, and then ordaining him as an Episcopal priest?

It does not matter how many "statements" Bishop Henderson issues: this entire affair is rotten through and through. The more about it that comes into the open, the more it appears for the pre-rigged proceeding which it is. Hamlet's Denmark was a teddy bear's picnic compared to this.

Sic simper tyrannis . . .]


  1. Ok so now they are admitting that they did not proceed according to the directions in the Title IV Canons. Good grief! We can do whatever we want because we say so!. There is real maturity- NOT. crazy

  2. (Sigh) indeed, Carolyn -- that seems to be my one constant foible. I shall try to do better next time -- but keep watching, and thanks!

  3. This isn't directly on the topic of this post, but it has to do with PB Jefferts Schori's comments quoted in the Wall Street Journal last week, and it could well apply to the potential outcomes of the South Carolina issue: in effect, TEC requires in making settlements with departing parishes that the parish agree not to affiliate with another Anglican denomination within five years of the agreement.

    Jefferts Schori refers to the other Anglican denominations several times in the article as "competing" with TEC. But aren't non-compete agreements normally unenforceable? An employer can't require me not to work for a competitor for five years after I leave my job, for instance.

    My retired attorney wife thinks there may be some exception for religious organizations if non-commercial speech is involved, but re-reading Jefferts Schori's comments, it seems fairly plain she's talking about competition.

    Do you have a reading on this?

  4. John, in my experience, covenants not to compete are made by the seller of a business to the buyer -- and not vice versa, as the Presiding Bishop is insisting here. The purpose is to give the buyer an opportunity to establish his own good will for the business without having to worry about its former owner opening up a similar business down the street. So, yes, they are enforceable if "reasonably restricted as to duration (length) and space (extent of area covered)."

    But these parishes are being booted out, and are not "sellers"; they are (in the cases where the covenants have been applied) "buyers" of their own property. And since the restrictions being imposed have to do not with their "competing", but with their right to associate with the denomination they choose, they violate the freedom of association under the First Amendment, and hence would not be enforceable in any state or federal court.

  5. Dear Mr. Haley,

    My congratulations to you, sir. In the final sentence of your update of 10/12/2011 you have correctly identified the Linnaean taxonomy of this particular Disciplinary Board for Bishops. It is, indeed, a member of the family Macropodidae, and more specifically, of the genus Macropus, which is to say a kangaroo.

    On a related note, and one which suggest an explnation as to why some of the questions you posed may not have a ready answer, I have heard quite some number of years ago, and from a source (whose identity I no longer recall) who was in a position to know, that the common name kangaroo is actually the Australian aboriginal word for "I don't know." According to that source, a Western explorer asked an aborigine what the animal was called and the response which he transliterated and recorded was "kangaroo." If true, how richly ironic is its usage in this particular case—the members of the Board obviously have no idea what they are doing, and would be likely to respond to your questions with the English equivalent of kangaroo.

    Pax et bonum,
    Keith Töpfer

  6. Mr. Curmudgeon, I accidentally placed this comment in your previous post. The Board of Discipline appears to be trying for the equivalent of a Bill of Attainder, methinks. What say you?

  7. It would be a "Bill of Attainder", Galletta, if the referral by the Disciplinary Board to the Presiding Bishop were adopted by the HoB. Such a Bill is by definition a legislative act, and neither the Disciplinary Board for Bishops nor the Presiding Bishop is authorized to enact legislation, but (in this case) only the HoB may do so, through a resolution of deposition.

    However, it could also meet the definition of an ex post facto law, depending on what specific charges are pronounced to have constituted "abandonment" -- again, determined entirely after the fact by the HoB. But given the movable target that ECUSA has employed in defining "abandonment of communion", there are no surprises here -- other than, perhaps, that so many retired bishops would play along with the charade (and not bother to insist on their right to vote, or at least to be counted in determining a "majority of all Bishops entitled to vote").

  8. What's the possibility of raising Title IV (or other) charges against all the bishops sitting on the Disciplinary Committee on the basis they have acted out of accordance with the Canons?

  9. There is now also an article at the Living Church including a video interview with Josephine Hicks, the "Church Attorney" to the Disciplinary board. Apparently, the listing of Ms. Hicks and Bishop F. Clayton Matthews, were simply "errors."

    To which I, as a retired U.S. Naval Officer, will only observe that such sloppiness bespeaks an organization that is ill-suited to any form of administration, and one whose lack of care does not become any religious organization, let alone a body that purports to dispense justice!

    Pax et bonum,
    Keith Töpfer

  10. Thanks, MA -- I was including the link in my update when your comment came in. Incompetence at the top would not seem to be even the half of it.

  11. Peter, sorry not to get back to you sooner -- this affair has been keeping me very busy. As I indicated at the beginning of this post, it is not entirely clear under the new Canons whether they are being broken, or followed, by the current procedure. Unlike the charges against Bishop Lawrence, charges against sitting (clergy) members of the Disciplinary Board would have to be crystal clear cases of a violation for them to get anywhere.