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Bishop Dorsey Henderson Explains Disciplinary Board's Duty

Bishop Dorsey Henderson Explains Disciplinary Board's Duty

The Living Church
October 11, 2011

In response to questions from The Living Church and others, the Rt. Rev. Dorsey Henderson, president of the Disciplinary Board for Bishops, provided this explanation regarding accusations brought to the board against the Rt. Rev. Mark J. Lawrence, Bishop of South Carolina.

A question has arisen about the process for administration of the so-called "abandonment" canon (Title IV.16) especially as it applies to bishops. Although it has come in a couple of forms, the question might be expressed in this way: "Who initiates action when information arises which indicates that abandonment of The Episcopal Church may have occurred?"

In accordance with the canon, such proceedings are begun at the initiative of the Disciplinary Board itself (although this has not happened within memory, if ever), or when information is received by the Disciplinary Board from any credible source with standing to raise the issue. Perhaps the following is helpful.

Title IV.16 is entitled "Of Abandonment of The Episcopal Church," and sub-section (A) is the portion thereof which relates to bishops. It designates that conduct which constitutes abandonment and specifies the process for administration of the canon when such conduct happens, or is alleged to have happened.

Title IV.17 is entitled "Of Proceedings for Bishops." It addresses terminology applicable to Title IV.16, but the canons make clear that the process to be followed for abandonment is markedly different from that to be followed with other kinds of infractions.

Title IV.16 provides, in part, that "If a Bishop abandons The Episcopal Church ... it shall be the duty of the Disciplinary Board ... to certify the fact to the Presiding Bishop...." The Presiding Bishop then restricts the exercise of the ministry of the bishop and refers the matter to the House of Bishops to "investigate the matter and act thereon." It is clear that the language "it shall be the duty of the Disciplinary Board" means that the action starts exactly there. This was the understanding of the provision under the prior version of Title IV as well, and the practice of the Review Committee (that version's equivalent of the present Disciplinary Board) before implementation of the present canon.

a. That the procedure for abandonment was designed to be different finds further expression in IV.16(B), which covers abandonment "By a Priest or Deacon"; it provides, in part, "If it is reported to the Standing Committee of the Diocese ... and if (the Standing Committee) shall determine ... that the Priest or Deacon has abandoned The Episcopal Church ... it shall be [its] duty ... to transmit ... to the Bishop Diocesan ... its determination"; the Bishop then acts on the Standing Committee's determination.

b. Note that the abandonment canon makes no provision for the involvement of the Intake Officer, any of the panels, for appeal to a court of review, or for conciliation (short of retraction or satisfactory denial) for bishops, priests or deacons.

Title IV.17, on the other hand, clearly relates to other actions covered by the canon - actions primarily involving moral and/or legal infractions specified in Canons 3 and 4 of Title IV. Information submitted to the Church which relates to possible infractions of these types of misconduct goes first to an Intake Officer. If the Intake Officer determines that the information, if true, constitutes an offense under the Constitution or Canons, then one, some, or all of the following disciplinary bodies may be involved (depending on whether, how, and when/where in the process resolution of the matter is reached): Reference Panel, Conference Panel, Hearing Panel. If the matter gets to, and a decision is rendered by, the Hearing Panel, there is an opportunity for appeal: from decisions within a diocese, the Court of Review in the province in which the diocese is a part; for bishops, the Court of Review for Bishops.

Conclusion: The process for dealing with conduct which may constitute abandonment of the communion of the Church under Title IV was intended to be, and under the canons is, an exception to and different from the process for dealing with other infractions, actual or alleged.


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

By Alan S. Haley
October 11, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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


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