CANON LAWYERS DECRY USE OF CANON IV TO DEPOSE BISHOP OF SAN JOAQUIN
By David W. Virtue
Three canon lawyers, one a retired bishop, say that the use of Canon IV.9, "Abandonment of Communion" against the sitting bishop of San Joaquin, John-David Schofield has no basis, describing it as "legal balderdash," and a "bullying tactic" by the four ultra-liberal California bishops.
"It would appear that this attempt to invoke Canon IV.9 against Bishop Schofield is just another bullying tactic by revisionist bishops who think they can get a bishop deposed without a trial," said Wicks Stephens, chancellor for the Pittsburgh-based Anglican Communion Network.
"While I have not seen the 'charges' filed by the four California Bishops against the Bishop of the Diocese of San Joaquin, I cannot imagine that Bishop John-David Schofield could legitimately be found guilty of anything that would qualify for proceeding against him under Canon IV.9. I likewise cannot believe that the House of Bishops would by a majority of "the whole number of Bishops entitled to vote" endorse this charade by consenting it. What will we see next?"
The four presenting bishops are the Rt. Rev. J. Jon Bruno, Bishop of Los Angeles; the Rt. Rev. Jerry M. Lamb, Bishop of Northern California; the Rt. Rev. James R. Mathes, Bishop of San Diego; and the Rt. Rev. William E. Swing, Bishop of California. They wrote a letter to the Title IV Review Committee, which is concerned with Ecclesiastical Discipline. arguing that Bishop Schofield had abandoned the communion of this Church citing recent changes (October 2005) the diocese made to their diocesan Constitution.
The Rt. Rev. William Wantland, retired bishop of Eau Claire and a canon lawyer who is a specialist in the Canons and Constitutions of The Episcopal Church asked, "How can acts of a Diocesan Convention in amending its own Constitution and Canons be an act of abandonment by the bishop? This is totally insane. And how can diocesan law be the basis of such a charge if the diocesan law does not violate TEC Canon Law? What we see here is an attempt to re-write the canon law of TEC to claim that a diocese is nothing more than a creature of General Convention. This is historically untrue, and legally balderdash. The General Convention was created by dioceses which pre-existed GC, not the other way around. General Convention does not create dioceses it simply admits into union with itself those dioceses which ask to be admitted." They already exist, he told VirtueOnline.
"If they exist and have the authority to draw up their own Constitution and Canons, does such an action justify a charge of abandonment against the bishop? Remember, a diocese can exist and legislate without a bishop, but a bishop may not promulgate a constitution or a body of canons on his own," he wrote.
The four bishops believe there is sufficient evidence to remove Bishop Schofield from office without trial.
Retorted Philadelphia attorney John H. Lewis Jr., "It is the same strategy Bishop Bennison used against traditionalist priest Fr. David Moyer. No trial - no opportunity to defend yourself. Like the red queen in Alice in Wonderland 'sentence first, verdict afterward.'"
Bishop Schofield is one of seven bishops who have applied for Alternative Pastoral Oversight, which begs the question, why pick on him and not all the other bishops?
The fear is that the Dennis Canon, which applies to fleeing priests and parishes who wish to retain their properties could now apply to whole dioceses, and in the case of California state courts have so far ruled in favor of four fleeing orthodox parishes. Another Episcopal canon, Title I, canon 7.4 states that "all real and personal property held by or for the benefit of any parish, mission or congregation is held in trust for this Church and the diocese there of in which such parish, mission or congregation is located," and California courts have seen in favor of congregations who have left the diocese using neutral principles of law, rejecting The Episcopal Church's bylaws.
The last bishop to be deposed for "abandonment of communion" by The Episcopal Church was the bishop of Ecuador Central, The Rt. Rev. Neptali Larrea Moreno, He was deposed from the ministry by a unanimous vote of the House of Bishops, meeting at Camp Allen, Texas, on March 23, 2004.
The roster of the Title IV Review Committee has not been made available by the Presiding Bishop. The liberal bishop of Upper South Carolina, Dorsey Henderson heads up the Review Committee. The Committee itself is still being formed. If the bishops do give consent, the matter will be taken up by the next meeting of the House of Bishops.
In a statement released by the Diocese of San Joaquin http://www.virtueonline.org/portal/modules/news/article.php?storyid=4505 Bishop Schofield wrote: "For our part, the Chancellors have already responded to the initial allegations by challenging the appropriateness of the specific Canon Law [IV.9] being used to bring charges. In short, these allegations are neither relevant nor justified."
VOL asks, whatever happened to presentment charges filed against Connecticut Bishop Andrew Smith more than a year ago. Presiding Bishop Frank Griswold, it would appear, is in canonical violation by not acting on this.
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