January 17, 2008

The Uninhibited Bishop

As can be read widely elsewhere, Bishop Duncan has been put on notice for alleged abandonment of the communion of this church (that is, The Episcopal Church) but has not been inhibited pending a decision by the House of Bishops on whether or not he should remain among their number. The inhibition requires the consent of the three senior acting bishops, and Bishop Wimberly has offered a rationale for his choice not to grant his consent. This appears to be based largely on the fact that the Diocese of Pittsburgh, unlike that of San Joaquin, has not yet taken a final untoward step towards disaffiliation from the Episcopal Church. As I observe at the Episcopal Café, however, I think this represents a confusion in Bishop Wimberly's mind concerning the nature of abandonment of communion by a bishop.

There is nothing about dioceses or their actions in the canon on abandonment of communion by a bishop. The canon is about the individual and his or her actions (or inactions) that might lead one to think that he or she has abandoned the communion of The Episcopal Church by renunciation of its Doctrine, Discipline and Worship. This cause for action need not involve the vote of a diocesan convention; indeed, I would think a bishop who advised or fostered schism and accused the hierarchy of apostasy to have renounced the good order of the church even if the diocesan convention repudiated the advice and accusation. Abandonment does not require re-affiliation; although that is a second cause for action. In the first case, though, it is about the claim no longer to be accountable to the authorities which one had vowed to obey; not necessarily the alignment with a new authority. And the diocese has nothing to do with it.

I hope Bishop Wimberly might reconsider his decision and find for inhibition, because I remain concerned that the movement to depose Bishop Duncan without his being first inhibited is not entirely in keeping with the wording of the canon, which to my unexpert (though keen) eye appears to say that only an inhibited bishop may be subject to deposition by the House. As I noted in a comment on an earlier post:

The canon ... appears to me to require the inhibition period: "shall then inhibit the said bishop until such time as the House of Bishops shall investigate..." Section 2 speaks again of the distinct "certification and Inhibition" being delivered to "the inhibited Bishop" who then has two months to issue a response. [I emphasize here the canonical importance of the word "and."] So the two month period appears to require the inhibition, which can be terminated by the PB and a majority of the three senior bishops, and then "Otherwise" (that is, no satisfactory response being made and the Inhibition remaining in effect) the PB presents the matter to the House of Bishops. So it appears to me that the inhibition is a required step in the process.

Of course, I could be wrong. But I strongly urge Bishop Wimberly to reconsider his refusal to consent, so that this matter may proceed properly and with due consideration for the damage the uninhibited bishop of Pittsburgh might do in the next several months.

Tobias Haller BSG

47 comments:

John B. Chilton said...

The wording of the canon can be read in different ways. What's the precedent? And, further, what's the secular parallel? It seems to me the parallel is an employee charged by the employer. The employer's tribunal has decided to allow the employee to continue to work while the charges are reviewed. But the employee could still be fired. Think of the case of police who are given administrative leave (or not) pending investigation of the use of their firearm.

The Postulant said...

I read the canon the same way you do, for what it's worth.

Tobias Haller said...

John, the other cases may not be analogous. If you want to look to analogies, the best bet is the next canon (IV.10) on priests and deacons, which follows the sequence of IV.9 in moving from charge to inhibition to deposition, unless a retraction or renunciation is made. Inhibitions are not required in cases other than the present case, though they "may" be issued against clergy and bishops (and I think often are.) But the inhibition does not appear to be optional in this case. Part of the problem is that abandonment of communion is an odd and unusual offense / situation -- and rarely contested until recently.

Ultimately, we have to deal with the canon before us, with all its oddities, and I don't see how the wording can be read in the way you suggest. The "notice" the PB is to give to the bishop is "of the certification and Inhibition" -- not "or Inhibition"; and the two month period refers only to "the inhibited Bishop." Note also the reference to the termination of the Inhibition as the only alternative to deposition, unless the bishop chooses the route of an official Renunciation under IV.8 or III.12.7.

Ann said...

I disagree with your interpretation Tobias - it seems to say that the difference is that Schofield is inhibited from episcopal acts but can continue as bishop in an administrative role, Duncan can continue to function in both roles but the 60 days is still passing on both of them. The Title IV committee has made its ruling - inhibition or not -- that is the key to the next step at the House of Bishops. This canon definitely needs some work - I agree on that.

R said...

Tobias,

I'm inclined to agree, except for one particular area that Bishop Wimberly appears to articulate clearly:

Were Bishop Duncan inhibited prior to formally acting with his Diocese to leave the communion of the Episcopal Church, he would be essentially held to a different standard than Bishop Schofield.

Whether Bishop Wimberly's hesitation is accurate canonically or not, I gladly defer to your judgment, but it seems to me that there is also a political reality to be considered when two certifications are issued on essentially the same grounds in such close proximity time-wise.

The political reality is the need to at least make an effort to act on the two with some ethic of consistency in mind.

Of course, as I think you and I agree, had that principle been applied more thoroughly in the past, and according to a more assiduous reading of the canons, Schofield and Duncan both might have been inhibited quite some time ago.

What I see happening at the present time is that the House of Bishops, with the Presiding Bishop's clarity and leadership, is starting to reclaim some authority they unfortunately ceded long ago to malcontents.

The process is bound to be messy, and there are likely to be few elegant solutions, canonically or otherwise. And, yes, Bishop Duncan might attempt to drive a truck through this one.

But I think Bishop Wimberly's argument is not without significant merit in this case, as far as internal consistency matters to the integrity of the House of Bishops and the greater church, as well as in keeping people from across the theological spectrum on board with much-needed disciplinary actions.

But I'll quote our Mad Friend right back at ya: Of course, I could be wrong!

Love and good prayers, as always. . .

Andrew said...

"...due consideration for the damage the uninhibited bishop of Pittsburgh might do..."

Might do?

Monday, the day before ++Katharine's letter was sent to +Duncan, the Diocese of Pittsburgh Board of trustees pledged over $400,000 of the diocese' unrestricted funds to +Duncan's defense fund.

Don't the canons say that an inhibited bishop still has temporal responsibilities? That's the last responsibility you'd want these guys to have. I'm pretty sure that the faithful Episcopalians in Pittsburgh (and SJ & FtW) will not be left with much when this is said and done.

Tobias Haller said...

Ann, can you show how the process continues without inhibition, when the only reference to the "two months" (not 60 days) refers to "the inhibited bishop"? I think you and others are misinterpreting the canon, which never intended an uninhibited bishop to remain functioning while facing deposition for an antecedent act. I do not think the "two months" has begun, because Duncan has not been inhibited.

Tobias Haller said...

Richard, I take your point, but in my view two wrongs don't make a right. Schofield should have been charged long since; so too Duncan and Iker. How this got mixed up with waiting for a diocese to act is what has confused things. The diocese has nothing to do with it. The church (esp. the Review Cttee) has allowed the novelty of trying to take a diocese out of the church to blind them to the open renunciations of the authority of the church -- which in themselves are sufficient to warrant deposition on this ground.

thomas bushnell, bsg said...

as i made clear some years ago, i think it is wildly wrong to use this process in a contested case. this is what trials are for.

i do not see that Duncan has met the requirements of the canon. he has, if anything, made clear that he *will* abandon the communion of this church. but a plan to leave, a declaration of intent to leave, plotting and scheming, are all not actually leaving.

that they are canonical offenses seems crystal clear to me. but the church is sadly allergic to actually using title iv.1. so instead we get this craziness.

present him for violating the canons (yes!) for violating his ordination vows (yes!). but unless you think that any disobedience constitutes abandonment, he has not, not yet at least, abandoned.

if that's bad, what's bad is the approach which assumes that trials are nasty things we shouldn't have. we should have presented him years ago for these offenses. why did we not?!

Tobias Haller said...

Andrew, of course that is true, and the canon doesn't address the financial side of things, leaving the purse in the hands of a renegade. I am as much concerned at the mischief that a bishop could do in matters such as ordination, appointment to cures, and all the other functions that inhibition would curtail. Given his peculiar reading of the meaning of "The Episcopal Church" (which he now claims means him and those who agree with him) he could, for instance, employ canon IV.10 to inhibit any priest who disagreed with him because the priest has abandoned communion with "The Episcopal Church" in his twisted meaning of the word. And with the Standing Committee on his side, who knows what he might do?

Please, Bishop Wimberly: motion to reconsider!

Tobias Haller said...

Thomas, I agree that he should have been tried on the other offenses long ago, and that this canon was not intended for contested situations. That being the case, however, I do think Duncan (and Schofield and Iker) have abandoned the communion of this church: they have openly declared themselves not to be in communion with it!

My concern in this case, though, is that if this canon is going to be used (and I agree IV.1. is preferable) it needs to be used correctly internally even if it is questionable externally.

R said...

Tobias,

On further reflection, I'll concede the point.

Unfortunately, for very good reasons, the House of Bishops do not act before the Title IV certification is delivered. It was the delay of the certification that appears to have contributed largely to a dilemma of sorts where consistent action is really not entirely possible, either according to the canons, or with the two situations.

I hope that this is a lesson that will be taken away from this mess once the decisions of the House have been made (and may those be consistent, I pray).

Marshall said...

Having looked back at Canon IV.9 myself today, I don't know that inhibition is a necessity before the matter can be addressed to the House of Bishops. I agree that no one ever thought we'd get a declaration from the Review Committee and not get an inhibition. However, I don't see the inhibition as necessary. First, the Presiding Bishop did inform Bishop Duncan of the certification, and addressed inhibition (acknowledging that he was not inhibited, for reasons that we now know). It seems to me, however, that he remains liable for deposition, and this can still be referred to the House, based on the certification alone. After all, he is expected to respond to the certification - to disprove, recant, or resign - and not the inhibition per se. By the same token, referral to the House seems dependent only on the certification, even when the inhibition hasn't stimulated an appropriate response.

Yes, one would expect that certification would result in inhibition. One would hope inhibition would bring about resolution. However, I think the critical events are the certification, the response (or non-response) to it, and action by the House.

Paul Stanley said...

I agree that it seems strongly arguable that, absent inhibition under IV.9.1 there can be no deposition under IV.9.2. Section 2 consistently talks about what is to happen with the "inhibited" bishop. That, at least, seems strongly arguable; and I suppose that doubt in these matters ought to be resolved in favor of the officeholder.

I have a slightly different question. Section 1 says that once the Review Committee certifies the fact, the Presiding Bishop "with the consent of the three senior bishops ..., SHALL then inhibit ..." (emphasis added).

"Shall" is mandatory. In other words, the PB has no option to disagree with the committee: if the committee certifies the acts as acts of abandonment, the PB MUST inhibit. The inhibition may be lifted under Section 2 if the PB considers that the acts in question have been "retracted" or are disputed. But not just because the PB (or the senior bishops) think they don't amount to abandonment of communion.

In other words, as I read the canon, CLEARLY so far as the PB is concerned, the PB cannot refuse to inhibit and may lift the inhibition only in the case of a retraction or dispute about whether the acts took place, NOT because of disagreement with the review committee about whether the acts in question constitute abandonment. THAT decision is left to the HOB.

If this is right with respect to the PB, why is it not also right with respect to the senior bishops? As I understand it, one of them seems to think that he has a "free choice" whether to consent to inhibition and that he can refuse to do so because he disagrees with the committee about the effect of the acts etc. It seems to me arguable that this is a misreading of the canon.

It seems to me to be strongly arguable that the only function of the PB and the senior bishops at the first stage of the process is to verify that procedurally there is a certificate from the committee which meets the requirements of section 1 (i.e. is passed by a majority of the committee etc etc). If that is present it is their DUTY to inhibit ... even if they personally disagree with the decision that communion has been abandoned. They must then maintain the inhibition and place the matter before HOB unless one of the two matters raised in section 2 occurs. Neither of those matters relates to the question whether the acts in question constitute abandonment, only to whether they took place or have been retracted. But a bishop who admits he did these things, and does not retract them, must be inhibited and may be deposed, the decision being for the HOB.

On this reading of the canon, the bishop who has refused to consent to inhibition has misunderstood his role, and ought to have consented.

One thing is sure: this is a terribly badly drafted canon!

Paul Stanley said...

BTW, I think my reading of IV.9 (that PB and senior bishops are OBLIGED to inhibit so long as the review committee's certificate is duly passed) derives some support from a comparison with IV.10. Under IV.10, the diocesan bishop is to inhibit only if "the bishop affirms the determination" of standing committee. There is no similar conditional qualification in IV.9.

Tobias Haller said...

Marshall, as Paul Stanley points out, the language of section two is limited to what is done to a bishop who has been inhibited.

Paul, I see your point, and wish it were so; but to my reading "shall" applies only to the requirement that the PB issue the inhibition if the three senior bishops consent; but absent that consent it appears the PB cannot inhibit. So the PB has no choice in the matter, but the three senior bishops do -- as I read it. (If nothing else this should be changed to "five bishops with jurisdiction" or some such. "Senior bishops" is perhaps a relic of the time when the PB was senior bishop of the house. And what happens if the person accused is one of the three seniors? Terrible mess.)

Once again, let me agree that this canon is a mess; I hope we can at the next GC develop a uniform code for dealing with all offenses -- retaining this, if necessary only for uncontested "walking away" -- and put all the other offenses (schism, incitement to schism, extending orders without permission, etc.), under the possible charges in IV.1.

Ormonde Plater said...

Bishop Wimberly has offered a rationale for his choice not to grant his consent. This appears to be based largely on the fact that the Diocese of Pittsburgh, unlike that of San Joaquin, has not yet taken a final untoward step towards disaffiliation from the Episcopal Church.

An equally plausible reason might be the conservatism of much of the Diocese of Texas. It would take a brave bishop to move against Iker.

Anonymous said...

My questionis: Can clergy be inhibited for thier vote and public support for a convention vote to remove themselves from the Episcopal Church. If so why aren't they;the Bishop is doing exactly what the convention(clergy) instructs him to do.
Jim

Santa Fe Observer said...

I am unclear how a Bishop becomes one the three "Senior Bishops".

Bp Wimberly has been a bishop for a relatively short time.

Santa Fe observer

Tobias Haller said...

Claims are being made the that clause beginning "Otherwise" in Canon IV.9 somehow means, "Apart from an inhibition being instituted.

I appear to be in the minority, but the "Otherwise" refers to what happens when the PB is not "reasonably satisfied" that the "verified written statement" of "the inhibited bishop" "constitutes (i) a good faith retraction... or (ii) a good faith denial..." and moves to "terminate the Inhibition. Otherwise" it goes to the House of Bishops. In other words, it is only when the PB is not satisfied that a retraction or denial has been made that the inhibition is to remain in force "until such time as the House of Bishops shall investigate the matter." [Note as well that the word "shall" appears to be missing in this section, prior to "terminate."]

Mike Watson said...

Compliments to Fr. Haller on his analysis of whether Canon IV.9 allows for deposition without inhibition. I disagree, however, with his statement that "The canon is about the individual and his or her actions (or inactions) that might lead one to think that he or she has abandoned the communion of The Episcopal Church by renunciation of its Doctrine, Discipline and Worship." It strains the normal use of words to argue that an open renunciation of Doctrine, Discipline or Worship can arise from inaction or from what one might be led to think.

Tobias Haller said...

Mike, thanks for your words. I realize we come from opposite sides on a number of issues, but in this case I am concerned for due process and following the canons.

I confess I may have gotten a bit rhetorically carried way on "inaction" and "led to think" but what I was getting at was the origin of this canon in dealing with a bishop who had "swum the Tiber" without making a formal renunciation; he just left. So that is an "action" but the problem was created, canonically, by the "inaction" -- the failure explicitly to renounce. I use "lead to think" because I consider the matter to be "alleged" until proven. I didn't mean to suggest this should be a whimsical matter; rather, that the process is in place to determine if the actions (or inactions) really do constitute what some might think them of constituting. Innocent until proven guilty is a good policy in my book.

The Postulant said...

You may be in the minority, but it's quite evident that the "Otherwise" clause has to be read as you're reading it. The other, "majority," construal is untenable -- how could the "Otherwise" reach all the way back to the penultimate sentence of the previous section of the canon, skipping all the intervening material?

This whole episode has had the perverse effect of making me wish I were on the Standing Commission on Constitution and Canons.

Mike Watson said...

Tobias: Further to the need for due process, it seems to me that one reason "open renunciation" has to be construed narrowly is that once inhibited, the only clear means of escape under the canon appears to involve retracting or denying the declarations or acts relied on. There isn't a provision for trial or other mechanism built in to Canon IV.9 for the accused to challenge that the words or acts at issue in fact constitute an open renunciation. The House of Bishops might consider such a challenge in connection with their vote on the deposition, but there doesn't seem to be assurance that they would or that there would be adequate time at their meeting for this.

Also, it isn't clear to me why your smimming the Tiber example wouldn't be covered by clause (ii) "formal admission into any religious body not in communion with the same," in which case an expansive reading of open renunciation wouldn't be necessary to address that situation.

Widening Gyre said...

Holy cow, Tobias, you have really stumbled onto something here. Although Marshall and others wage a valiant fight, your argument will carry the day ultimately. Let's walk through the statute (uh, I mean canon):

Step One: Review committee certifies that bishop has abandoned communion by one of three general actions. This step has been met (although the open renunciation issue is problematic to some).

Step Two: Presiding Bishop "shall then inhibit the said bishop" until HOB has time to investigate and act, provided however that first PB must get consent of three senior Bishops. This step clearly has NOT been met.

Step Three: PB shall "forthwith give notice to the Bishop of the certification AND INHIBITION (emphasis added)." Notice the conjunctive AND. Canon does not contemplate one without the other. To argue that AND means OR is a problematic here because...

Step Four: Provides that the "inhibited Bishop" will "be liable for Deposition" unless he or she (again, the inhibited Bishop) makes declarations otherwise about the alleged abandonment actions. Note, there is no canon section allowing for deposition of an Uninhibited but certified to have abandoned Bishop. It ain't there. More support is found in Step Five, which says...

Step Five: If PB is satisfied with the Inhibited Bishop's declarations, the PB can terminate inhibition with the consent of same three senior bishops who consented to the Inhibition. Notice here that a noninhibited but certified to have abandoned bishop does not have this option for getting out of this mess; it only applies to inhibited bishops. See the picture yet?

Step Six: You only get here after you pass Step Five because it begins, "Otherwise, it shall be the duty of the PB to present the matter to the House of Bishops." Uh, what matter is that? Oh yeah, that must be the deposition of the "inhibited Bishop" in step four. In other words, there is no matter for an uninhibited bishop. Just isn't there.

Step Seven: This proves the point because it talks about a majority of the HOB can consent to deposition, which is only authorized against "inhibited Bishops" under step four.

Tobias, I agree with you.

Joe Episcopalian said...

Tobias, I agree with you. Much as I might wish to interpret it differently, that "otherwise" can't possibly be intended to provide for deposition without inhibition.

Tobias Haller said...

Mike: agreed. The lack of a trial or hearing as part of the mechanism is one reason this canon should ideally be limited to uncontested situations. I see what you're saying about the admission into another religious body being sufficient without the employment of the "open renunciation" clause, but that has been the wording in the canon since 1853, when it was designed to meet the ad hoc situation of Bishop Ives of North Carolina who had joined the Roman Catholic Church. This may simply have been an example of that lawyerly fondness for saying things twice when they can be said once, just to make sure the bases are covered.

Thank you, Postulant and WG, you have analyzed the situation admirably, and not just because you come to the same conclusion I do.

Widening Gyre said...

Just for kicks, let's revisit my steps. Assume you had an inhibited Bishop meet the standards in my step five and the PB and senior Three terminate the Inhibition. Does the deposition proceed to the HOB even though the inhibition has been lifted? Those arguing that Duncan can be deposed without inhibition would have to say "Yes" to my question (which surely cannot be right result).

It's about time to QED this one and move on.

robinhoodnc said...

My goodness....all this mincing of canons and wordsmithing!
I would think that Jesus would be looking down at all of us and thinking this has very little to do with the Gospel.

Tobias Haller said...

Actually, this is just the kind of discussion in which Jesus was always interested in taking part; he was very interested in justice and fairness, and made it a part of his summary of the Law. In this case, I want Bishop Duncan to have the same benefit of the doubt that I would like for myself, so I am acting in accord with this principle. Jesus doesn't just "look down" -- he is with us and among us, and has revealed that it is in how we treat each other we treat him. Hence my concern for fairness in the application of the law.

Allen said...

Tobias,
It's clear that there are problems with the canon -- but the essential problem here is one of authority: Who gets to interpret the canon. it's clear that the Presiding Bishop has determined that even absent an inhibition, the two month period has started and that the matter of deposing Bishop Duncan will properly come before the House of Bishops. Any of us can have an opinion, but I think that as a practical matter, only the House of Bishops can determine whether she is right or wrong -- either by taking up the matter or by declining to take it up. I think they will take it up. (If they follow Robert's Rules, it would take a 2/3 vote to remove it from the agenda.)

susan s. said...

Thanks Tobias. For some of us with little or no understanding of the canons, this helps.

And I too think that Jesus is among us. It would be hard to deal with all that's going on if I couldn't believe that.

Tobias Haller said...

Allen, I quite agree the point is moot. An action by Wimberley (and Lee if he too did not consent) would remove that ambiguity, of course. But in the meantime there is a difference of opinion on how this canon should be applied, and as you say the PB has the authority to act, and only the HoB the authority to say No we won't consider, or No we won't depose. My guess is that most of the bishops would be happier if it were absolutely clear beyond a shadow of a doubt that this was all being done according to Hoyle -- or Roberts!

For a true "interpretation" we would need, I suppose, a General Convention, and I do hope this canon gets straightened out at the next one to remove any last ambiguity. Personally, as I think I said above, I would rather see the other "offenses" moved into Title IV.1 and leave this one just for those who "walk away" from their ministry without a by-your-leave. Then it could be applied across the board to deacons, priests and bishops alike, with appropriate judicatories doing their thing in each case.

Tobias Haller said...

One last comment and then I'm calling if a day, cross-posted at the Café. The canon was written primarily to address situations that so obviously amounted to abandonment that consent would be forthcoming without debate or discussion: note there is no reference to the three senior bishops meeting, or a time frame for their consent -- sure signs, to my mind, that this was seen as a formality to lend a bit of gravitas to the situation. After all, essentially deposing a bishop without trial is a very serious matter. (Of course, the fact there is no trial is also one of the reasons that analogies with grand juries and indictments and such don't really fly.)

But, enough. Let's see what happens in two months...

Tobias Haller said...

Well, really one last thing. I am correcting an earlier comment I mace (now deleted lest misinformation spread) I mistakenly referred to Bishop Frade having served in Venezuela prior to coming to Florida. It was another friend of mine, Onell Soto, who was bishop of Venezuela before coming to assist in Georgia. In any case, here is the corrected comment:

Jim, I think any priest who voted for removal should be subject to the same discipline. Problem is the canon says it's the Bishop who brings the charge. "Who will watch the watchers?" as the old saying goes.

Santa Fe, Wimberly was Bishop of Lexington before his move to the Lone Star State. Frade was also bishop of Honduras before coming to the territorial US. Seniority is by order of consecration. This is (I checked) a relic of the old days in which the Presiding Bishop was the senior bishop; the version of this canon from 1874 says "the next three bishops in seniority" rather than "the three senior bishops" -- and this most definitely needs to be changed.

Ann said...

I hope the Standing Committee on Constitution and Canons is busy working on this canon for consideration at the next GC.

Jake said...

Tobias,

I had the opportunity to ask Bp. Kathaine about this today. She affirmed my reading of the canon. The inhibition is a separate action from the deposition.

According to our PB, the charges against Bp. Duncan, and certified as valid by the Review Committee, will be presented to the House of Bishops at their next meeting following the required 60 days for him to recant. This will occur regardless if he is inhibited or not.

Tobias Haller said...

Jake, I do realize that the PB thinks she is acting correctly, and takes your reading of the canon. Otherwise she would not have said what she said. Neither you, she, nor I are lawyers; and the opinion of lawyers on this canon indicates that at the very least it is ambiguous. As I have said above, the House of Bishops will be the final interpreter. For myself, I continue to hope that Bishop Wimberly might be persuaded to change his mind and consent to the inhibition, which would then have the effect of rendering any action within any conceivable reading of the canon.

Prior Aelred said...

Of course we now know that Bishop Lee also doesn't understand the difference between an individual bishop betraying ordination vows & pretending to remove a diocese from The Episcopal Church -- whatever is wrong with these people?

Santa Fe observer:
Bishop Wimberly has been Bishop of Texas only since 2003, but he was ordained Bishop of Lexington in 1984 (FWIW, Bishops Lee & Frade were also made bishop in 1984)

John B. Chilton said...

We now have the explanations of each of the three senior bishops for why they consented or not: Lee and Wimberly, no; Frade, yes. See Episcopal Cafe. None of them questions the choice to take the matter to the House of Bishops. One can read into that as much or as little as one wants.

Tobias Haller said...

John,
I'm getting weary of the hermeneutics of episcopal letters and canons, but I don't read either Wimberly or Lee as assuming the matter will go to the HoB -- if that's what you mean! True, they don't "question" the matter; but neither do they raise it.

Wimberly appears to think his refusal will delay the process: "Even though waiting postpones the issue coming before the House of Bishops..." Lee doesn't mention the House of Bishops, and his letter seems to imply that his refusal puts the matter on hold, and gives Duncan time to either act or refrain from action. Both of them seem to be more interested in what the Diocese does than Duncan -- which as I said at the outset is to my mind looking at the wrong actor.

Again, I've said all I have to say on this matter, and at this point will await what the House of Bishops itself decides to do with the matter.

Paul (A.) said...

Sorry to come late to this conversation, but I have been posting on the subject over at Jake's, and Widening Gyre had only recently responded there by referring me here.

I think we can agree, Tobias, that the canon is poorly written. (But what canon isn't?) I can also agree that proceedings under IV.1 against these bishops would be appropriate, and such charges may even now be pending before the Review Committee. That committee, perhaps instructed by the expense generated by the Righter trial, may well have seized upon the different procedure under IV.9 as preferable, as well as being unwilling to have two pending hearings before two disparate bodies.

I also think that the Review Committee now realizes that their earlier decision not to proceed against Bp. Schofield was an error. And their now issuing a certificate against Bp. Duncan seems to show that they do not regard the earlier Schofield decision as binding precedent (although I have not read through both sets of charges to compare them). In any event, they appear to be more willing to act in such cases than they were a couple of years ago.

I must, however, disagree with you on the point at issue. My position is that Canon IV.9 assumes, but does not functionally require, inhibition of the respondent bishop.

A couple of preliminary points. The Review Committee has a "duty" to certify facts constituting abandonment to the Presiding Bishop. The three senior bishops have no duty to consent to an inhibition. By requiring their consent, their possible nonconsent is necessarily implied; otherwise that would be an empty requirement.

That said, it is evident that Bishops Lee and Wimberly either misunderstand how the canon works or are lying to themselves about the situation. They justify their nonconsent to inhibition by saying essentially "it is prudent to take every precaution to allow every opportunity for Bishop Duncan to remain in the Episcopal Church." That opportunity is given by a retraction under IV.9.2. Such a retraction is no more likely in the absence of an inhibition; inhibiting a bishop almost certainly would rather convince him more seriously to consider retraction than otherwise.

But to return to the text, specifically, the second sentence of IV.9.2: The content of the inhibition (if there is one) has nothing to do with the accused's possible retraction under IV.9.2; the retraction only deals with matters in the certificate from the Review Committee. Any retraction would not address the existence or terms of an inhibition but only the facts of the certificate. The fact that the canon uses "and" where it should perhaps say "and/or" (an ugly term to be avoided in any event) should not be persuasive. Any treatise in statutory construction will yield numerous instances where courts construe "and" as "or" and vice versa where the function and purpose of the statutory language would be better served.

And the "Otherwise" clearly relates to the immediately preceding sentence as a whole (on this we agree). Only if the inhibition (if there is one) is terminated by the Presiding Bishop is she relieved of the "duty" to present the charges to the House of Bishops. If there is nothing to terminate, then that duty remains.

So the only peg on which Tobias's argument is hung is the description in the second sentence of IV.9.2 of the "inhibited Bishop". In context, there are so many bishops involved in this process that it is useful -- and I believe that it was deemed necessary by the drafters -- to here identify that the retraction is to be made by the bishop who is the subject of the process. Since this particular canon does not use the standard terminology of "Respondent" from IV.15 (it probably predates that portion of Title IV, but I don't have my White & Dykman available to check), some shorthand identifier had to be chosen, and "inhibited" was the choice. But I don't see that that choice should have the sophistical result that a nonconsent by one of three senior bishops would alone terminate the entire process of formally removing a bishop who has like Bishop Ives ecclesially left the church.

I see no indication in the canon that there should be such absolute veto power over the entire process -- which is supposed to involve the whole House of Bishops -- by merely one member of that House who holds no office other than relative seniority. Do you really, Tobias, so understand the canon?

Tobias Haller said...

Paul,

As I've tried to make clear, I do so understand the canon. I also think it is very badly written. To me it is clear, both in the present language, and in examination of its history (including the most recent amendment) that the inhibition is expected to be a part of the process; and that the process should cease should that consent not be forthcoming.

I don't hold your view on the and/or language. There are very few ecclesiastical cases that come to trial in TEC, but one of the principle ones, the Beebe Case Appeal, hinged precisely on the distinction between "and" and "or" in the canon on whom a priest may allow to function in his/her parish in a priestly capacity. The appeal overturned the lower ecclesiastical court decision on the basis of the conjunction.

As I have said, I think the retention of the three senior bishops is a mistake -- the need for their participation was obviated by the introduction of the Review Committee, and the consent process should have been eliminated when the Review Committee was added to the canon, so that an Inhibition could have been imposed directly. That would have prevented the present situation.

Paul (A.) said...

And appeals in Title IV cases decided by Provincial courts are unreviewable by any central TEC authority to correct their errors. I'd cite you to the Berlenbach case, where a reversal was based on an objectionable and obsolete common-law evidence rule from British ecclesiastical courts that was written out of the Federal Rules of Evidence so long ago that the Rule banning it was deleted as unnecessary. And the appeal court reversed the decision without remanding for a new trial under this execrable evidence rule!

But I do not see any reason other than sophistical parsing of language that justifies giving one unelected bishop a veto right over a procedure that was instituted to remedy an existing gap in the disciplinary canons. Such a veto is contrary to every view of the polity of the church.

And what should in your view happen if, perchance, Bps. Lee and Wimberly see the light and give consent to an inhibition, say, at the opening of the House of Bishops meeting at which the Presiding Bishop has put unretracting Bp. Duncan on the agenda? Does he then get another two months in which to retract? Why? To what end?

Do you interpret IV.9.1(iii) to limit "episcopal acts" strictly to ordinations and confirmations? Is everything else in Canon III.12 now superfluous? Then why be so restrictive in your inferences in IV.9.2?

Your conscience may be discomfited, but I believe that you are raising a stumbling block that makes little sense and serves no purpose.

Tobias Haller said...

Paul,
I don't think I am being sophistical. I believe I am taking the canon as it was meant to be taken -- that is, the assumption was that the senior bishops would consent. The canon didn't provide for a situation in which they didn't, but neither did it make clear that matters should proceed. Remember, this is not a trial, but essentially a summary judgment ultimately issued by the House without any recourse on the part of the "accused" other than a statement. I do not think I am making up a stumbling block; and in any case, no one need pay any attention to me; I am glad I am not among the players in this particular drama.

As to the "episcopal acts" I think that means precisely what you say -- ordination and confirmation, as the canon indeed specifies in the "so as to" clause. (In other words, I don't think this canon is meant to cover consecrating churches and blessing bells and altars, or issuing a pastoral letter, or any of the other bishopy things a bishop might do. III.12 has no bearing in this canon, apart from the specified acts.

As I said above, I am more than content to let this matter rest with the House of Bishops, who will do with it as they see fit.

John B. Chilton said...

Do I understand correctly that in a previous form of the canon there was no review committee? Is the phrase "the inhibited bishop" then vestigial as I interpret paul a. to be saying? Understood that way the role of the senior bishops then is purely to reduce - if they choose - that bishop's scope for action pending a trial by the House of Bishops.

To understand its present meaning, it matters what the history of the evolution of the canon was.

Tobias Haller said...

John,

The phrase "inhibited bishop" is not vestigial. It was added to Sec. 2 of the canon in 1994, as near as I can find at the moment, as part of the overall revision of Title IV.

In 1979 the relevant portion of the canon, after citing the causes for action, reads as follows:

... it shall be the duty of the Advisory Committee to the Presiding Bishop as provided for by the Rules of Order of the House of Bishops, to certify the fact to the Presiding Bishop, and with such certificate to send a statement of the acts or declarations which show
such abandonment, which certificate and statement shall be recorded by the Presiding Bishop. The Presiding Bishop, with the consent of the three senior Bishops having jurisdiction in this Church, shall then suspend the said Bishop from the exercise of his Office and Ministry until such time as the House of Bishops shall investigate the matter.

Sec. 2. The Presiding Bishop shall forthwith give notice to the said Bishop of such suspension, and that unless he shall, within six months, make declaration that the facts alleged in said certificate are false, and shall demand a trial, he
will be liable to deposition from the Ministry. And if such
declaration be not made within six months, as aforesaid, it shall be the duty of the Presiding Bishop to convene the House of Bishops to consider the case; etc.


In the earliest form of the canon, the matter went right to the House of Bishops. No review, no senior bishops, no suspension. In 1859, the "charge" is brought by the standing committee giving notice to "the Senior Bishop" (i.e., the Presiding Bishop). It then goes to the House of Bishops, unless a recantation is forthcoming.

In 1874, the Standing Committee sends the charge to the PB, who gets the consent of "the three Bishops next in seniority" to "suspend said Bishop from the exercise of his office and Ministry until such time as the House of Bishops shall consent or refuse to consent to his deposition."

There were a few minor changes in the canon up until 1979, including the language of suspension being changed to inhibition, and the bishop in question came to be described, as at present in Sec 2., as "the inhibited Bishop." White & Dykman (or rather their successors) opine in the 1982 edition, "It should be noted that this is the only canon in which the terms "suspend" and "suspension" are used to describe an act which takes place prior to a trial. To be conceptually consistent with the other canons, these terms should be replaced with the terms "inhibit" and "inhibition" as was done in all other places in 1969." So it appears the change was one of which people were aware, at least among canonists.

Also post 1979 the "Review Committee" took up the work of the PB's Advisory Committee. I can't find when that happened at the moment. It was still the Advisory Committee as late as 1994.

White & Dykman provide more historical background on the cases that led to the ad hoc development of this canon. You can review the whole matter on pages 1078-1084. This document is now available on line at the Archives of the Episcopal Church.

My reading, which I've outlined above, is that the provision for suspension was added as an intended part of the process, so as not to leave an uninhibited bishop functioning for six months prior to action by the House. I do not think anyone ever conceived of the senior bishops not giving permission. The matter is raised by the venerable W&D thusly, "It was now provided, by the amended [1874] canon, that the Presiding Bishop, with the consent of the three bishops next in seniority, should suspend the bishop renouncing his ministry until such a time as the
House of Bishops might take action in the matter." One can read "should" to imply, as some take the present canon, that this is an optional step. I prefer to see it as an expectation. The 1874 - 1979 canon, by only referring to the "said Bishop" in the remaining sections, lacks the clarity (or unintentional precision) of the present canon's reference, since 1994, to "the inhibited Bishop."