Written by: The Anglican Communion Institute, Inc.
Thursday, October 6th, 2011
The Reverend Canon Professor Christopher Seitz
The Reverend Dr. Philip Turner
The Reverend Dr. Ephraim Radner
Mark McCall, Esq.
ACI has long been concerned about the provisions of the new Title IV. We first raised our concerns about the constitutionality of the new canons in a memorandum circulated privately two years ago. This eventually made its way to those responsible for drafting and implementing the new canon, who later replied—unsatisfactorily from our perspective. Later, in September 2010 we began publishing a series of articles by Alan Runyan and Mark McCall addressing Title IV issues more comprehensively. The first of these “Title IV Revisions Unmasked” outlined the scope of the due process and constitutional problems presented by the new disciplinary canon. The second, “Title IV Unmasked: Reply to Our Critics,” focused primarily on the constitutional issues related to the unprecedented expansion of the authority of the Presiding Bishop. The third, “Title IV and the Constitution: Dioceses’ Exclusive Authority for Clergy Discipline,” demonstrated conclusively that clergy discipline is a matter committed exclusively to the dioceses. Messrs. Runyan and McCall also summarized these concerns when they were interviewed by a group of bishops and members of the Presiding Bishop’s staff as part of an investigation conducted by the House of Bishops.
The new title became effective on July 1, 2011, and already has been invoked in two proceedings against bishops of the Church. Given our past concerns, it is appropriate to take initial stock of the new canons as applied. Our succinct summary: it is even worse than we expected. We address three issues below: (1) what procedures are followed in initiating proceedings against bishops; (2) what standards are applied when restricting the ministry of bishops before trial; (3) what standards are applied in evaluating allegations before deciding to proceed with an investigation.
Procedures for Initiating Disciplinary Proceedings Against Bishops
At first glance, the procedures for initiating proceedings against bishops appear to be among the more straightforward of the provisions of the new canons. The starting point is the duty imposed on every “Member of the Clergy” to “report to the Intake Officer all matters which may constitute an Offense.” “Information concerning Offenses may be submitted to the Intake Officer in any manner and in any form.” (IV.4.1(f); IV.6.2.) When submitted, this information triggers canonical duties of the Intake Officer and the Presiding Bishop. The Intake Officer is required to make an initial determination as to whether the information if true would constitute an offense. If the answer is no, he must confer with the Presiding Bishop and, if she concurs, the matter is dismissed. If the answer is yes, he must prepare a written report and give it to the Presiding Bishop and President of the Disciplinary Board for Bishops.
These are not discretionary steps; they are canonical duties. They must be done. (IV.6.) The Presiding Bishop, the President of the Disciplinary Board and the Intake Officer (the “Reference Panel” in the terminology of the new canons) have discretion as to how to proceed next if the allegations survive this initial stage, but there is no discretion simply to do nothing at the outset.
While these initial procedures may seem simple in the abstract, their application in the case of the proceedings against Bishop Mark Lawrence quickly becomes incomprehensible. Bishop Lawrence has been informed by the President of the Disciplinary Board, Bishop Dorsey Henderson, that there are “serious charges” that he has abandoned The Episcopal Church. But Bishop Henderson also released a public statement that “the information was not brought forward by the Presiding Bishop’s office, or by the House of Bishops of the Episcopal Church. Therefore, the matter is not being handled by the Presiding Bishop’s office or anyone in the employ of the Episcopal Church Center.”
We take Bishop Henderson at his word on this. That the charges were not “brought forward” by the Presiding Bishop’s office is apparent to anyone familiar with allegations, which have long been made by dissidents in Bishop Lawrence’s own diocese. The “serious charges” made public against Bishop Lawrence this week follow almost verbatim in some places allegations sent over a year ago by the South Carolina dissidents to the entire House of Bishops and the Executive Council. Bishop Lawrence published an answer to these charges in The Living Church at that time.
We also accept Bishop Henderson’s statement that “the matter is not being handled by the Presiding Bishop’s office or anyone in the employ of the Episcopal Church Center.” But this is where the confusion arises. The entire church has been aware of most of these matters for over a year. They have been given to the House of Bishops. The House of Bishops has discussed them. If any bishop or other clergy considers them to be “matters which may constitute an Offense” he or she has a canonical duty to report them to the Intake Officer. This duty falls on the Presiding Bishop, all the bishops in the HOB, all the clergy on the Executive Council, the dissident clergy in South Carolina, Bishop Henderson and the clergy on the Disciplinary Board for Bishops. And if someone did report this information to the Intake Officer, he and the Presiding Bishop then have canonical duties to consider it.
Bishop Henderson may have chosen his words very carefully when he used the present tense in saying that the matter “is not being handled” by the Presiding Bishop’s office. But if he also meant that the matter has never to date been considered by the Presiding Bishop’s office, we have a major breakdown in the application of the new Title IV in one of its first cases.
This gives rise to the following questions:
- Did the clergy of the church, including the Presiding Bishop, collectively conclude that these matters do not rise to the level that they “may constitute an Offense” and therefore also conclude there was no reason to report them to the Intake Officer? If so, why is the Disciplinary Board for Bishops proceeding as if they are “serious charges” of abandonment?
- If they were not reported to the Intake Officer as required, why not? Put simply, if there is a mandatory duty to report possible offenses and those offenses include violating or even attempting to violate the Constitution or canons of the Church or failing to “abide by the promises and vows made when ordained,” how could the principal clergy charged with enforcing the disciplinary canons charge full speed ahead with an investigation of allegations of abandonment of the Church without thinking to inform the Intake Officer as canonically mandated?
- Were the allegations in fact reported to the Intake Officer, but he did not act on them at all in violation of his canonical duty?
- Did the Intake Officer and the Presiding Bishop agree that these charges would not constitute an offense even if true and dismiss them?
- Or did the Intake Officer, the Presiding Bishop and the Disciplinary Board decide simply to deal with this as a case of abandonment and pay no attention to the canonical duties outlined above?
Without knowing the answers to these questions, two inferences seem reasonable at this point. First, the canonical authorities designated by the new canons do not understand the procedures they are canonically required to follow. And second, there is something approaching an official and conclusive determination that the matters under consideration by the Disciplinary Board are not matters that “may constitute an Offense.” Otherwise, we would have proof of a massive canonical failure by the entire church leadership, including the officers designated by Title IV, the House of Bishops and the Executive Council, at the very outset of the new title.
Standards for Restricting the Ministry of Bishops Before Trial
Concurrent with the commencement of the investigation against Bishop Lawrence was the first instance in which the Presiding Bishop has used the new Title IV authority to restrict the ministry of a fellow bishop. This action was taken against Bishop Vincent Warner, the retired bishop of Olympia, and announced publicly by his successor on the same day Bishop Lawrence was informed of the proceeding against him. Public information concerning the Warner matter is justifiably meager. We know only that it involves allegations of “infidelity.” Of more significance than the facts of that particular case, however, is the articulated standard on which the decision to restrict Warner’s ministry was based. In reporting the restriction, Bishop Rickel said:
I received allegations regarding Bishop Warner several weeks ago, and promptly reported them to the presiding bishop’s office. The Rt. Rev. F. Clayton Matthews, in his capacity as the Episcopal Church’s intake officer for allegations regarding bishops of the church, reviewed the complaints with the presiding bishop, and found that according to Title IV (Section 6.7), the evidence presented, if true, constitutes an offense.
Bishop Rickel characterized the information as a “credible allegation of recurrent marital infidelity” and said that the matter is under investigation.
Leaving aside the issue of the restriction of ministry for a moment, it is obvious from what we said above that this is how a matter is supposed to proceed under the new Title IV. Information about something that may constitute an offense is given to the Intake Officer, who then confers with the Presiding Bishop to decide whether to dismiss or proceed.
Our concern with the Warner matter is not these procedures, but rather what standard, if any, is used to restrict the ministry of a bishop before trial. The only standard articulated publicly in this case is that the allegation, if true, would constitute an offense. But that is simply the minimal standard for non-dismissal of an allegation, the bare minimum for having the case go forward. Will it be the practice of the Presiding Bishop to impose a restriction of ministry on a bishop any time there is an allegation that if true would be an offense? Even prior to investigation, which is said to be underway in the case of Bishop Warner? This would make restriction virtually automatic at the outset of an investigation. Or does the Presiding Bishop not have an articulable standard and simply treats this as a matter of discretion?
Bishop Rickel does say that the allegation was “credible,” but it is not clear whether that was his standard in deciding whether to forward the allegation to the Intake Officer or the result of some preliminary investigation by the Presiding Bishop’s office. We are told only that the investigation is underway. We are also assured that this does not involve minors or any individuals who were in the bishop’s pastoral care—in other words that it probably does not constitute “sexual misconduct” as defined by Title IV—but we are not informed what canon has been violated.
It is instructive to compare the new Title IV with the prerequisites for temporary inhibitions under the old canon. Such inhibitions could be issued only if “in the opinion of the Presiding Bishop, the Charge or complaint of serious acts is supported by sufficient facts.” This former standard tracks in its requirement of factual support and gravity the standard that is widely used in civil courts for granting preliminary remedies before trial. It is near universal in the civil law that such preliminary relief is only granted on a showing of likelihood of success on the merits (i.e., that the factual allegations are likely true) and that there will be immediate irreparable injury without the preliminary relief. Such preliminary relief is supposed to be rare, not the norm.
One of our major concerns with the new Title IV is that it contains no such standard. The Presiding Bishop may very well have concluded that in the Warner case the allegations were serious, likely to be true and required immediate restriction. But if that conclusion were reached, it was not articulated as the standard to be applied. It is troubling to say the least to find that in the first use of this power, the only articulated standard would suggest that restriction is virtually automatic in such cases even prior to completion of an investigation.
Standards for Evaluating Allegations before Deciding to Proceed with an Investigation
We have already discussed above whether the canons were followed in considering the allegations against Bishop Lawrence. One place where the apparent failure to follow canonical procedures becomes significant is the nature of some of the allegations now being investigated. Did anyone ever consider what they are required to review as the first step in a canonical processing of a disciplinary matter: whether the allegation if true would constitute an offense? There are many examples we could cite here, including statements apparently made by Bishop Lawrence when he was still a rector before he (twice) went through the consent process for becoming a bishop. We will focus, however, on only one of these examples: what is listed as count no. 9 in the list of allegations.
Bishop Lawrence was referenced in an Anglican Church of North America (ACNA) conference document from September 13, 2009, wherein a report was presented that included Bishop Lawrence and the Diocese of South Carolina.
The report referenced was a statement made by several TEC bishops after meeting with the Archbishop of Canterbury. It was widely reported at the time, including by ENS (“Seven Episcopal bishops urge covenant endorsement at all church levels”) and The Living Church (“Communion Partner Bishops Urge Support of Covenant”). Without quoting from the statement extensively, it is apparent from the titles of the news stories that the statement is not evidence of any canonical violation, much less abandonment. But the allegations against Bishop Lawrence do not in fact allege that the statement itself is such evidence. Rather the actions that “establish abandonment” are said to include the “reference” of this document in a “conference document” of ACNA. Even the most cursory of reviews would have established that this allegation is completely frivolous and not worthy of further investigation. Under no interpretation of the canons could merely being “referenced” by ACNA be something that even if true would constitute an offense. And it is precisely this determination that is the first duty of those charged with considering disciplinary matters. How could this have been neglected in the case of Bishop Lawrence?
We have not attempted to address all of the issues raised by the proceedings against Bishops Lawrence and Warner. Our purpose is simply to note at the very outset of the use of the new Title IV that our concerns are only increasing. Title IV is a bad canon being implemented badly. We understand that there are plans to propose amendments to the new title to try to rectify some of its shortcomings. The best course, however, would be to repeal it completely and replace it with the previous canon, one that has worked for years, provides adequate due process for those charged, does not expand unconstitutionally the powers of the Presiding Bishop, and not least is understood by those charged with administering it.
October 06 2011 11:40 pm | Articles