Saturday, June 30, 2012

Stalinist Tactics Deployed to Silence ECUSA Bishops in Court (UPDATED)

The following is an email received yesterday by resigned (retired) Bishop Edward Salmon and two other bishops from the Intake Officer for the Disciplinary Board for Bishops, the Rt. Rev. F. Clayton Matthews:
June 28, 2012
The Rt Rev’d Edward L. Salmon, Jr.
The Rt Rev’d Peter H. Beckwith
The Rt Rev’d Bruce MacPherson

Dear Ed, Peter, and Bruce,

As the Intake Officer for the Church, I am obliged to inform you that a complaint has been received against you for your action in signing affidavits in opposition to a motion for Summary Judgment made by representatives of The Episcopal Diocese of Quincy and The Episcopal Church in the Fall of 2011 to secure the Diocesan financial assets from a breakaway group. In the next few weeks, I will initiate a disciplinary process according to Title IV Canon 6 Sec. 3 & 4 of the Constitution and Canons of the Episcopal Church.

Sincerely,

Clay
I reported previously on how the Episcopal Church (USA) lost its motion for summary judgment in the Quincy litigation in this post. It appears (see below) that there are those in the Church who did not take kindly to the three bishops' role in that defeat.

And now, your Curmudgeon must regrettably report yet one more instance of Johnson's First Law of Episcopal Thermodynamics: "Every joke you make about the Episcopal Organization eventually comes true." Word has come also that, as foreseen (satirically, alas) in this earlier post, the same kind of "charges" have been filed with the Disciplinary Board against the seven bishops who dared to sign an amicus brief addressed to the Texas Supreme Court in the Fort Worth litigation:
The Rt Rev’d Maurice M. Benitez
The Rt Rev’d John W. Howe
The Rt Rev’d Paul E. Lambert
The Rt Rev’d William H. Love
The Rt Rev’d D. Bruce MacPherson
The Rt Rev’d Daniel H. Martins
The Rt Rev’d James M. Stanton

Dear Maurice, John, Paul, Bill, Bruce, Dan, and Jim,

As the Intake Officer for the Church, I am obliged to inform you that a complaint has been received against you for your action in filing of Amicus Curiae Brief in the pending appeal in the Supreme Court of Texas in opposition to The Episcopal Diocese of Texas and The Episcopal Church. In the next few weeks, I will initiate a disciplinary process according to Title IV Canon 6 Sec. 3 & 4 of the Constitution and Canons of e Episcopal Church.

Sincerely,

Clay
We also know, from postings on the HoBD list serve, that one of ECUSA's attorneys in the Fort Worth litigation, Kathleen Wells, Esq., who is the chancellor for the faux diocese of Fort Worth (and whose whole career is thus now devoted to working for and defending a legal fiction), has been agitating for a "litmus test" for all new bishops: determine whether or not they agree with 815's view of ECUSA as a total hierarchy, as it has been proclaiming in all its litigation.

Since the amicus brief was filed against Chancellor Wells' official position in the Fort Worth litigation, it is not too much of a stretch to guess at who may have initiated the filing of these "charges" with the Disciplinary Board. {Curmudgeon's Side Note: If she did, she may have disciplinary charges of her own to face, before the Texas bar. Those more familiar with the Code of Professional Ethics for members of the bar there may comment on the details, but in California, at least, it is an ethical violation for a member of the bar to instigate criminal or disciplinary proceedings against an opponent in order to gain an advantage in a civil case. If she is the one at the bottom of these charges, then she certainly would be trying to gain an advantage from it. The same would be true of David Booth Beers and/or Mary Kostel at 815, only they would be held to standards of professional discipline under the Code in the District of Columbia.}

Needless to say, these "charges" should never make it past the Intake Officer. Why they require investigation "over the next few weeks" is beyond this canon law attorney. To be sure, Bishop Matthews is unable to dismiss the charges on his own if the Presiding Bishop objects to that dismissal.  Canons IV.5.4 and IV.5.5 state in part as follows (note that in the case of charges against bishops, Canon IV.17.2 (c) provides that "Bishop Diocesan" shall mean the Presiding Bishop):
Sec. 4. Upon receipt of such information, the Intake Officer may make such preliminary investigation as he or she deems necessary, and shall incorporate the information into a written intake report, including as much specificity as possible. The Intake Officer shall provide copies of the intake report to the other members of the Reference Panel and to the Church Attorney.  
Sec. 5. If the Intake Officer determines that the information, if true, would not constitute an Offense, the Intake Officer shall inform the Bishop Diocesan of an intention to dismiss the matter. If the Bishop Diocesan does not object, the Intake Officer shall dismiss the matter...
Bishop Matthew's email does not notify the bishops that he is dismissing the charges. To the contrary: he states that he will "initiate a disciplinary process according to Title IV Canon 6 Sec. 3 & 4 ...". Those Canons spell out the offenses for which clergy may be charged, and would be irrelevant if the charges were being dismissed. Consequently, either Bishop Matthews wanted to dismiss the charges, but the Presiding Bishop objected; or else Bishop Matthews truly believes the charges may constitute an offense under the Church canons, and so he is proceeding with his investigation. (There would be no reason for him even to advise the bishops of the complaints if he did not think they presented actionable charges under the Canons.)

But just what does it mean to say that ECUSA is or is not "hierarchical"? In legal proceedings, such a statement is called a "conclusion of law", reached after an inquiry into all the relevant facts. Attorneys and judges differ all the time over conclusions of law, and so it is fair to say that what the law will conclude on a given set of facts is a matter of opinion. And that is why the bishops filed their various affidavits and brief: ECUSA had given its opinion to the judges in each case that it was "hierarchical," and the bishops simply wanted to give the contrary version of that opinion.

After all, it is for the judges ultimately to decide which view is more correct (or to modify their holding to yet another version, if they are so inclined). That is what judges are paid to do. So how can the Episcopal Church (USA) possibly charge someone with discipline for expressing an opinion? Such a right is guaranteed to everyone in America by the First Amendment.

Well, if it is not opinion in the case of the Episcopal Church (USA), then is it a matter of Church doctrine? Is the polity of the Episcopal Church (USA) truly a "doctrinal" matter?

It does not matter if it were, because then the following provisions of Canon IV.17.7 would apply:
Notwithstanding any provision of this Title to the contrary, no proceeding shall be brought under this Title against a Bishop in which the Offense alleged is violation of Canon IV.4.1(h)(2) for holding and teaching, or having held and taught, publicly or privately, and advisedly, any Doctrine contrary to that held by the Church unless a statement of disassociation shall have first been issued by the House of Bishops as provided in Canon IV.17.7 (a) and thereafter the consent of one-third of the Bishops qualified to vote in the House of Bishops has been received to initiate proceedings under this Title as provided in Canon IV.17.7 (b).
Needless to say, no such "statement of disassociation" has been issued by the House of Bishops. Thus Bishop Matthews cannot be treating the bishops' offense as a matter of advocating false doctrine.

That takes us back to expressing a matter of opinion. One searches in vain through the new Title IV for any offense that consists of expressing an opinion at variance with the leadership of the Church. The loosest of all the provisions is for engaging in "conduct unbecoming a member of the clergy", and if it is "conduct unbecoming" to disagree with the position that ECUSA is hierarchical, then a considerable number of clergy in the Church would have to be charged.

The idea, of course, is ridiculous on its face. And that is why these "charges" against these bishops should never have made it past the Intake Officer in the very first place. He could have informed the Presiding Bishop that the charges, even if true, did not rise to the level of an offense under the Canons. And if the Presiding Bishop then did object to dismissing them, she herself might be charged under the provisions of Canon IV.3.1 (c):
Sec. 1. A Member of the Clergy shall be subject to proceedings under this Title for: (c) intentionally and maliciously bringing a false accusation . . . in any investigation or proceeding under this Title.
(Emphasis added.) These charges are certainly intentionally brought, because it takes, as noted above, the concurrence of the Presiding Bishop not to have dismissed them in the first instance. And are they "maliciously" brought as well?

Those who know the history of the Presiding Bishop's disregard for the canons will have no hesitation in answering that question.

[UPDATE 07/02/2012: The Anglican Communion Institute, whose clergy members also signed the Fort Worth amicus brief (but who have not, to their knowledge, been charged) has now weighed in on this sorry affair. The article is too long to summarize here, but is well worth your time, so go and read the whole thing. Also, Bishop Dan Martins provides his own personal perspective on why he signed the Fort Worth brief, and what it feels like to be the object of unspecified and vague charges.

The Midwest Conservative Journal also joins in the chorus of dismay, and has written about the proposed "litmus test" for new bishops as well. Meanwhile, the blogs on the Episcoleft content themselves with just the facts, ma'am, just the facts. Other than a mild remonstrance from the Rev. Canon Mark Harris, there are zero expressions of dismay from the Church's left wing.]




15 comments:

  1. I have this theory that +KJS and her closest advisers, Wormwood, Screwtape, and Beers, are having a contest. They are trying to discover if there is any atrocity, any abuse of power, or just some absurdity, which will rouse the HoB or the pew potatoes to act. So far, crickets all the way down.

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  2. "Is the polity of the Episcopal Church (USA) truly a 'doctrinal' matter?"

    Of course not, until the litmus test is given to each and every member of the church. Raise your right hand and say, "I believe in one hierarchal Episcopal church, born of the Presiding bishop, suffered under the same... etc."

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  3. This is to be expected from an organization run by agents of Satan.

    David Katzakian

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  4. Ahem...

    A few comments for you, Sir.

    If the Episcopal Church is not hierarchical, sir, why have bishops? Is it not the case that we explicitly have four orders with differing levels of authority and responsibility and the lower orders are accountable to the highest, i.e. the episcopate? If this is not hierarchy, what is?

    And is it also not the case that the Bishops in their ecclesial office cannot unilaterally make polity on behalf of TEC: acts of both houses of the GC are required?

    For that matter, is it not the case that to become a TEC bishop one must be accepted by the nationl church's hierarchy in the form of standing committee approvals - standing committees established by the Canons and Constitution of the National Church?

    Perhaps this is why the ten bishops ran afoul of the Intake Officer: they asserted their personal beliefs in their capacity as bishops of TEC!

    If folks in the military are proscribed from making public political speech while in uniform, is it unreasonable to expect the Bishops of TEC to be censured for using their "rank" to challenge their Church's hierarchy and polity in a public court proceeding?!

    Your thoughts?

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  5. SFitC, thank you for asking those questions. I shall do my best to give you succinct answers below, but you have to realize that these matters are complex, and for enhancement and more detail you will have to read other posts on this blog. (Here is a link to my collected posts on the polity of the Episcopal Church (USA).)

    You ask: "If the Episcopal Church is not hierarchical, sir, why have bishops?" Bishops in ECUSA are "hierarchical" only with respect to the clergy under their jurisdiction. They are by definition not hierarchical with respect to each other. Each bishop heads a diocese in the Church, and the collected dioceses come together in General Convention, which passes Church legislation. But General Convention is not an ecclesiastical court, and it can command no bishop what to do; it can only provide uniform standards for discipline.

    Again, you ask: "Is it not the case that we explicitly have four orders with differing levels of authority and responsibility and the lower orders are accountable to the highest, i.e. the episcopate? If this is not hierarchy, what is?" I know of only three orders in the Church: deacons, priests, and bishops. And as I said, for those under a given bishop's jurisdiction, the lower orders are definitely in a hierarchical relationship to that one bishop. But the hierarchy stops with the bishop in ECUSA (unlike the Roman Catholic Church, where the hierarchy stops with the Pope).

    I will respond to your next question in my next comment.

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  6. SFiTC, you ask next: "And is it also not the case that the Bishops in their ecclesial office cannot unilaterally make polity on behalf of TEC: acts of both houses of the GC are required?"

    As I indicated above, General Convention is the Church's legislature. It is not its executive branch, nor its judicial branch. There is no judicial branch, but of late the Presiding Bishop and her staff have been energetically assuming the role of an executive branch.

    So if by "making polity" you mean passing legislation about the structure and governance of the Church, then, yes, that is the function of General Convention.

    But no individual diocese is bound to obey any legislation by GC which it deems unconstitutional. Thus, the Diocese of South Carolina has refused to recognize the validity of the new disciplinary Canons enacted by GC 2009. And Gneral Convention is powerless to do anything about it.

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  7. SFitC, your next question is: "For that matter, is it not the case that to become a TEC bishop one must be accepted by the nationl church's hierarchy in the form of standing committee approvals - standing committees established by the Canons and Constitution of the National Church?"

    To become a bishop recognized by ECUSA, the only requirement is that the candidate be ordained in a proper ceremony by at least three other bishops in churches in the Anglican Communion. The Standing Committees of the ECUSA dioceses give their consent only to the confirmation of bishops elected by their dioceses to jurisdiction within ECUSA, as do the other diocesan bishops.

    We have not yet reached the point where a diocese will elect a bishop who does not receive a majority of the necessary approvals, and which nevertheless goes ahead and ordains that bishop anyway. But I predict that we will be there soon.

    Once again, though, your main (hierarchical) point is all about bishops, and how they get to exercise a hierarchy over their clergy. When ECUSA claims to be "hierarchical" in the court cases, it is talking about the "supremacy" of General Convention over all the rest of the Church. And that claim is simply no true: for more background about how the Church expressly refused to adopt a "Supremacy Clause" which would have given GC that authority, please see this post.

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  8. SFitC, you next posit this possibility: "Perhaps this is why the ten bishops ran afoul of the Intake Officer: they asserted their personal beliefs in their capacity as bishops of TEC!" And then you go on to make a comparison: "If folks in the military are proscribed from making public political speech while in uniform, is it unreasonable to expect the Bishops of TEC to be censured for using their "rank" to challenge their Church's hierarchy and polity in a public court proceeding?!"

    First of all, military officers are subordinate to their Commander-in-Chief, and are not supposed to make public statements at odds with his. But when they do, they are not subjected to a court-martial; the President simply fires them.

    As I hope I have convinced you, bishops are subordinate to no one but God Himself. And no one has the power to fire them.

    I seriously question whether the Church has the power to discipline bishops for expressing their opinions in any forum -- not just the civil courts. That is their prerogative under the First Amendment, and as far as I am able to tell from the Canons, the only First Amendment right clergy in the Church give up when they become bishops is the right to spread false doctrine with impunity.

    Even then, look at Bishop Spong, who has gotten away with it for a lifetime.

    So do you still think that the Church has power over its bishops for what they say in public? Think again.

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  9. I'm afraid not, TRR. "Whistleblower" cases are always based on statutes (usually creating a cause of action for employees of the government, or of a government contractor, who are fired after they disclose improper handling of government funds or claims). There is no whistleblower statute that would apply to ECUSA, and moreover, the secular courts do not entertain most cases of religious firings (except possibly when egregious discrimination is involved).

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  10. Thanks, A.S. I don't think ECUSA has any interest in protecting Whistleblowers, and what is left of the old Episcopal denomination is so tiny that the courts might not be too interested.

    Politically though, from a 'balance of power' perspective, this seems like a really REALLY stupid move...something the institutionalist Episcopalians (like Duncan Gray, etc.) have tried to steer clear of since 2003...completely alienating the orthodox.

    I bet that there were plenty of good people in Springfield who wanted to join their neighboring brothers and sisters in Quincy when they opted to leave the oppressive authority of General Convention for the Southern Cone. Now I'm sure the fires have somewhat abated in the years since GC 2003(people find a secure orthodox parish or diocese, etc., and they feel 'safe'...I too have fallen into this trap from time to time) and the other abuses (i.e., the Jefferts-Schori seizure of powers not hers, the beginning of secular lawsuits against churches, etc.).

    But this arrogant charge against their duly chosen and elected bishop, together with what will be the most radical General Convention ever, will probably stoke the fires again 'white hot' in a region like Springfield. And assuming that the Diocese of Quincy prevails in Illinois court and takes all their funds and property with them, what is to stop (at least a majority of) the Diocese of Springfield from seeking new Anglican horizons?

    I'm sure there are personalities and politics at work (just as personal hubris seems to have played a role in the South Carolina business), and you point those out to us: however, most of the remaining faithful will read these procedures as a sign that the ruling class of ECUSA has decided 'accommodation be damned' that they are now content to declare war on the few remaining orthodox to make them leave (become Methodist or something) and turn their church properties and funds over to them.

    As you suggest, these 'charges' probably would not have gone so far if Jefferts-Schori had not played her hand in all of this.

    Thank God that KJS was never elected to a secular office with special codes. She would truly drop atomic bombs on her own country.

    I pray for all of these Godly bishops who have to face this spirit of antichrist. If it ever comes to a real inquisition, may God put the words in their mouth and may the spirit of the Lord speak through them.

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  11. What "charges"? "Complaints" were made and are now being investigated. I've seen no evidence that anyone is "charged" with anything.

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  12. Hi, Grandmère Mimi - you are using "charged" in the sense of "indicted", which is in a criminal context. We don't have that here. In the Church, disciplinary proceedings begin with a complaint by someone, which are allegations that a member of the clergy did something in violation of the Constitution and/or Canons.

    When you allege something to be true, you are making a charge that it is true -- it still has to be investigated, and proved whether you are right. So that is why lawyers also refer to allegations as "charges." (But notice that I put it in quotes the first time I used the word, so as to signal that I was not using the term in the criminal sense.)

    If the Intake Officer believes that the allegations (charges) would, if proved true, constitute an offense, then he will write a report to the Reference Panel. Only that Panel will decide whether or not to make the charges formal -- if it does, it will refer them to the Conference Panel of the Disciplinary Board for Bishops to take further action.

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  13. A. S., thank you for your explanation. Still, I believe the atmosphere remains less charged if the complaints are referenced as "complaints". Although when I read some of the other comments here, whether one uses "charges" or "complaints", the atmosphere would be no less charged.

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  14. Mr. Haley,

    If you do not object to my sharing the link, there is a document to which you had a link in a much earlier article which may be of benefit to the understanding of those not intimately familiar with this issue. The article explains in detail (I should warn readers that the article itself runs to 76 pages, not counting three pages of Bibliography and ten pages containing 377 footnote references) from a legal and historical perspective, precisely what the hierarchical relationships are. It was published by the Anglican Communion Institute in September 2008 and is titled Is The Episcopal Church Hierarchical?

    Others who have not read it and question the nature of TEC's hierarchy might well benefit from the investment of reading it.

    Pax et bonum,
    Keith Töpfer

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