Legal doubt over Presiding Bishop’s move to depose the Bishop of Pittsburgh

George Conger has the scoop from here.

Presiding Bishop Katharine Jefferts Schori may face legal hurdles in her bid to depose Pittsburgh Bishop Robert Duncan this week, as her decision to change the agenda of the special session of the House of Bishops five days before its start appears to violate canon law.

On Sept 12, Bishop Schori distributed a memorandum to the American bishops announcing that on Sept 18 she would attempt to depose the conservative leader.

“I shall present to the House the matter of the certification to me by the Title IV Review Committee that Bishop Robert W Duncan has abandoned the Communion of this Church within the meaning of Canon IV.9,” she wrote.

However, the rules of the House of Bishops forbid modifying the agenda of a special session after the meeting has been announced, placing her plans in legal and canonical limbo. Whether the bishops will challenge her request is unclear, however, as her past legal missteps in the cases of Bishops John-David Schofield and Williams Cox provoked protests from bishops and dioceses distressed over what they perceived was her abuse of office, but no action followed.

On Aug 20 Bishop Schori wrote to the bishops stating “as discussed in our spring meeting and confirmed in our time at Lambeth, we will hold a special meeting of the House of Bishops September 17-19 in Salt Lake City, Utah.” “The main purpose of this meeting,” Bishop Schori wrote, “will be to reflect and deliberate together following the Lambeth Conference.”

In the schedule appended to the letter, two sessions are labelled “Lambeth de-brief”, two “Business meeting”, and one “Theological Education.” No mention is made of Bishop Duncan or any disciplinary action in the formal letter calling the special session.

Following the release of the Presiding Bishop’s letter, a number of bishops contacted her to ascertain whether or not rumours that Bishop Duncan would be brought up on charges before the session were true.

Central Florida Bishop John W Howe wrote to the Presiding Bishop on Aug 26 stating there was a widespread expectation that charges of abandonment of Communion might be brought. The Presiding Bishop’s formal call of a special session however, made “no mention of that,” he told his diocesan board last week.

The evangelical leader added that bringing Bishop Duncan up on charges at this time “would be entirely out of order” as the Presiding Bishop had not completed all the mandated steps leading to the hearing.

Were the matter brought to a vote, Bishop Howe said on Sep 11 he would “dissociate from it,” neither voting yes or no as the underlying proceeding was improper.

Bishop Duncan wrote to the bishops on Aug 24, stating he would not be attending the meeting. “Given that I have been judged guilty by the Title IV disciplinary committee (without even my knowledge, prior to their findings, that there had been charges brought against me), and given the determination of the Presiding Bishop and her chancellor to proceed in this direction… I cannot see a way to bring myself to be present at the coming meeting of the House.

“In light of all that has happened so far, what kind of ‘hearing’ can I expect the leadership to accord me?” Bishop Duncan stated.

A spokesman for the Diocese of Pittsburgh told last week that they had had no response from the Presiding Bishop to the Aug 24 letter and did not know if Bishop Duncan would be brought up on charges at the meeting or not.

Neva Rae Fox, program officer for public affairs at the Episcopal Church Center, on Aug 21 told the Living Church magazine said she was not aware of any plans for disciplinary action during the special session.

In her Sept 12 letter announcing the change to the agenda, the Presiding Bishop defended her interpretation of the canons that allowed her to proceed and detailed the charges. Bishop Duncan’s verbal encouragement to his diocesan synod to alter its constitution, permitting it to withdraw from the Episcopal Church was prima facie evidence of his having ‘abandoned the Communion.’

She added that prior to the hearing, the Presiding Bishop’s Council of Advice would “hold an informal evening meeting to ‘investigate the matter’.”

“While Bishop Duncan has unfortunately announced that he will not attend this meeting of the House, his supporters may at this hearing offer factual and opinion material as to why he has not abandoned the Communion of the Church,” she wrote.

Bishop Schori also stated she would reject readings of church law that did not conform to her own, adding that “any ambiguity in the canon” should be resolved in her favour.

Plans for the September special session of the House of Bishops were announced in a March 25 e-mail from the Presiding Bishop. “The main purpose of this meeting will be to reflect and deliberate together following the Lambeth Conference,” she stated.

The Presiding Bishop added “concerning the issue of Bishop Duncan, all relevant materials have been posted on the College of Bishops website, including the Review Committee’s certification and the two submissions the Committee reviewed.”

“We had mentioned the possibility of a one-day May meeting,” the Presiding Bishop wrote, but was “not sure there was adequate desire for it on the part of the House at this point, and so this will be determined after a poll in April.

“More detailed information about the agenda, registration fee, and location of the September meeting will arrive in a future mailing to help you prepare for our time together,” Bishop Schori wrote.

On April 8, the Presiding Bishop’s assistant sent an e-mail asking the bishops if they wanted to hold a special session in May. No agenda was offered, but the September meeting was tentatively scheduled for Salt Lake City. “Details about that meeting will be sent out in a later communication,” Canon Charles Robertson wrote.

Ten days later, Canon Robertson informed the bishops that there was not sufficient interest in holding a May meeting, but confirmed “we will indeed proceed as planned with the post-Lambeth meeting in September in Salt Lake City.”

Two meetings of the House of Bishops were held at the Lambeth Conference. However, they were styled as a meeting of the bishops of the Episcopal Church, not meetings of the House of Bishops, as the Bishop of New Hampshire, the Rt Rev Gene Robinson was forbidden to attend the gatherings by conference organizers. The Salt Lake City meeting was discussed briefly by the American bishops at Lambeth as a time to “reflect” on the July 16 to Aug 4 conference, but no mention of a hearing to depose Bishop Duncan was made.

On Aug 20 the agenda, dates and location for the September Salt Lake City meeting were formally given to the bishops, with no mention of a hearing into the charges brought against Bishop Duncan. The first formal declaration by the Presiding Bishop that the bishops would decide whether or not to depose the Pittsburgh bishop came on Sept 12.

Bishop Duncan responded on Sept 13 in a letter to his diocese stating the decision to depose him from office this week was a bid by the Presiding Bishop to squelch the planned October vote by the diocesan synod to withdraw from the Episcopal Church and move under the protection of the Province of the Southern Cone. Bishop Duncan added the “House of Bishops ‘vote’ will be a gross violation of the Constitution and Canons of the Episcopal Church” and he asked the diocese “not be intimidated or turned from our over-riding commitment.”

A Pittsburgh spokesman told that Bishop Schori’s plans to move against Bishop Duncan violated the basic norms of “fair play.”

Giving five days notice that the lawfully elected bishop of a diocese would stand trial for what he might do, rather than what he had done, was “unfair” to both the diocese and to Bishop Duncan, diocesan communications officer Peter Frank said.

Whether the vote will take place is unclear, however, as the canons specifically forbid the Presiding Bishop from amending the agenda once she issued her March 25 and Aug 20 call for a special session to review the Lambeth Conference.

The Rules of Order for the House of Bishops state that “the latest edition of Robert’s Rules of Order shall govern the interpretation of these rules, and the parliamentary procedures to be followed in this House.”

Under Roberts Rules of Order, “only business mentioned in the call of a special meeting can be transacted at such a meeting.” As the Presiding Bishop did not include the Duncan hearing in her Aug 20 agenda and her “call” of the special meeting, the rules of the House of Bishops forbid her to add it to the agenda five days before the start of the meeting.

The House of Bishops rules also require 30 days notice. Rule XIX states, “except by a two-thirds vote of those present and voting, no member of the House may introduce a Resolution at a special meeting unless the Resolution has been circulated thirty days in advance to the members.”

Bishop Duncan will not be present, as will a number of other conservative bishops, to challenge the Presiding Bishop. For the vote to be blocked, a point of order must be raised and seconded. Bishop Schori will be asked to rule whether her actions constitute a breach of order. If she rules against the protesting bishops, an appeal may be taken which requires a majority or tie vote to sustain her ruling.