Schofield might not have been deposed canonically

[UPDATED 5/2/08] I can't say I like the looks of this one bit. In March, the Episcopal Church's House of Bishops voted to depose John-David Schofield, sometime bishop of the Diocese of San Joaquin, from ordained ministry for having abandoned the communion of the church.  But The Living Church reported that the number of bishops present at the meeting was far short of the canonical requirement. 

Canon IV.9.2 of the Episcopal Church sets out the relevant procedure. It says that such a deposition must be approved at a meeting of the House of Bishops by "a majority of the whole number of Bishops entitled to vote ...."    (Emphasis added.)  According to the Living Church report, out of 294 bishops entitled to vote, only 131 registered for the House of Bishops meeting, and 15 left before the vote.

I wasn't prepared to accept the report of an improper vote just on The Living Church’s say-so. I have no idea where they got their information. Anyone who has ever raced around at the last minute helping to organize an event can confirm that, just because 131 bishops registered for the HoB meeting, that doesn’t mean 131 bishops were present. We also need to know where The Living Church got its information about 15 bishops leaving before the vote.

In contrast, I was fully prepared to give the benefit of the doubt to the Presiding Bishop and her chancellor, David Booth Beers. Mr. Beers appears to be a reasonably competent lawyer: He is of counsel to a name-brand law firm; his firm biographical page says he’s a litigator, a Boalt grad, and a former judicial clerk, and that he’s been listed in every edition of The Best Lawyers in America (which doesn’t mean you’re Clarence Darrow, but you’ve at least got to have something on the ball).  The PB herself is no dummy, not by any stretch of the imagination.  I would be extremely surprised if she had proceeded with a deposition in contravention of the express canonical requirements.

But then the the Presiding Bishop's office issued a statement purporting to justify the Schofield deposition vote. It did so, not by explaining that X number of bishops were in fact present and voting, but by claming that a particular interpretation of the canon's language was controlling:

Chancellor David Booth Beers said votes consenting to the deposition of bishops John-David Schofield and William Cox conformed to the canons. 

"In consultation with the House of Bishops' parliamentarian prior to the vote," Beers said, "we both agreed that the canon meant a majority of all those present and entitled to vote, because it is clear from the canon that the vote had to be taken at a meeting, unlike the situation where you poll the whole House of Bishops by mail. Therefore, it is our position that the vote was in order." 

A quorum had been determined at the meeting by the House of Bishops' secretary, Kenneth Price, Bishop Suffragan of the Diocese of Southern Ohio. 

I'm sorry, but I don't think Mr. Beers' present-and-voting rationale is at all persuasive. Article I.2 of the Episcopal Church constitution specifies which bishops are "entitled to vote" at meetings of the House of Bishops:

Sec. 2. Each Bishop of this Church having jurisdiction, every Bishop Coadjutor, every Suffragan Bishop, every Assistant Bishop, and every Bishop who by reason of advanced age or bodily infirmity, or who, under an election to an office created by the General Convention, or for reasons of mission strategy determined by action of the General Convention or the House of Bishops, has resigned a jurisdiction, shall have a seat and a vote in the House of Bishops.

A majority of all Bishops entitled to vote, exclusive of Bishops who have resigned their jurisdiction or positions, shall be necessary to constitute a quorum for the transaction of business.

(Emphasis and extra paragraphing added.)  This alone suggests pretty strongly that the Schofield deposition could not proceed by a vote of merely a majority of those present at the meeting.

Moreover, it's indisputable that the drafters of the canons knew how to specify, when they wished to do so, that a particular vote would be by a stated percentage of the bishops present, as opposed to a stated percentage of the bishops entitled to vote:

• Canon III.12.8(d) states that when a bishop seeks to resign jurisdiction, the House of Bishops must approve the resignation "by a majority of those present."
• In 11 different places, the Rules of Order for the House of Bishops refer to a fraction, usually 2/3, of "those present and voting ....”

UPDATE 1: If I were representing +Schofield, I would argue that the clear intent of the canon in question was to treat deposition for abandonment as a very serious matter, so much so that:

(1) deposition must be considered at a full-blown meeting — where it can be discussed in congress by a quorum of bishops, so that each bishop voting will have had the benefit of hearing whatever his or her fellow bishops had to say — and not just in limited, off-line discussions followed by mail-in consents; and 

(2) deposition must be approved by a majority of all voting members of the entire House of Bishops, in contrast to approval by a majority or even a supermajority of “those present and attending,” which is what the canons provide for other situations. 

It pains me to reach this conclusion. I wish Bishop Schofield had been deposed months if not years ago. But pretending that the express canonical language means something else is not the way to go about it.

UPDATE 2:  VaAnglican nails it, so far as I can tell, in saying, "There was no incorrect procedure in the vote.  There was a vote.  It failed." (Bold-faced emphasis added.)

UPDATE 3: The Hills of the North blog has some interesting perspectives on the likely political fallout of this ... unfortunate episode.  (Hat tip: RobRoy.)

UPDATE 4:  At Preludium, the Rev. Mark Harris offers an argument why the deposition is supposedly effective.  I greatly admire Mark, but in this case he appears to be abandoning judgment in favor of wishful thinking. Mark writes:

To read “whole number” as meaning a reference back to all the possible bishops (300 or so) absent or present would provide the parliamentary boondoggle of making some votes based not on those present but on those possibly present.  One might suppose it would be a virtue of any democratic system to insist that a majority vote ought to be on the basis of the whole body of voters on the rolls, but it would be a virtue that would either require compelling voters to be present or it would be increasingly unmanageable.

Nonsense. Requiring certain actions to be approved by a stated percentage of an entire body is a common procedural safeguard.  For example, if the U.S. Senate wishes to remove a president from office (after impeachment by the House), a full 2/3 of all sitting senators must vote to convict, not just 2/3 of those senators present.  If the Congress wishes to override a presidential veto, a full 2/3 of the entire membership of each house must approve the override.   These requirements are hardly parliamentary boondoggles.  [UPDATE 5/2/08:  I just re-read the constitutional provision about impeachment, and it seems I remembered it incorrectly:  Removal from office does indeed require the concurrence only of 2/3 of the senators present, not 2/3 of the entire Senate. This just goes to show that human memory is fallible, something readers of the New Testament accounts should certainly take into account, as I've argued extensively in other postings ....]

Mark writes: 

The whole number of persons eligible to be present at the meeting is the list of 300. The list of bishops eligible to vote at the meeting are (i) persons present and (ii) persons part of the whole list.

If this were true, then the definition of a quorum in Art I.2 would be incoherent:  ”A majority of all Bishops entitled to vote, exclusive of Bishops who have resigned their jurisdiction or positions, shall be necessary to constitute a quorum for the transaction of business.” 

Under Mark’s argument, testing whether a quorum was present would entail counting up those bishop-voters who happened to be present, and then determining whether a majority of them were present. That, however, implies that the remaining minority of bishop-voters were somehow both present and not present at the same time. (Insert here your favorite joke about boring meetings.) 

I would like nothing better than to see +Schofield defrocked and, independently, stripped in civil court of every stick of diocesan property he controls. But we need to face the facts: The deposition motion failed for lack of the required number of votes. (It's no different than in 1996, when President Bill Clinton was not removed from office because the pro-impeachment side in the Senate could not muster up the required number of votes.) To pretend otherwise will only hurt future efforts to reconstitute the DSJ’s leadership structure. 

As I said above, the canonical rules for deposing a bishop who abandons the Episcopal Church may well be too restrictive. But those are the rules we’ve agreed to live by. Until those rules are duly changed, all of us are entitled to assume that TEC’s leadership will be bound by them — because who knows which of us will be protected in the future by the existence of binding rules.

UPDATE 5 (April 8): We need to be clear about one thing: No reasonable person could dispute that Bishop Schofield is no longer bishop of the Episcopal Diocese of San Joaquin. He unambiguously renounced that position in December.

The debate here is whether, as one possible response to that renunciation, the House of Bishops effectively deposed the bishop from all ordained ministry (meaning that he's no longer a bishop at all). It's clear that this didn't happen for reasons discussed above.

But the national church still can and must go about reconstituting the diocesan leadership. The failure to depose Bishop Schofield from ordained ministry in no way invalidates the recent election of Bishop Lamb as the interim bishop of San Joaquin.  (See also What the Presiding Bishop ought to be saying about the constructive resignation of San Joaquin's (former) standing committee.)

Comments

[bls]

Thanks for this analysis, D.C. I have to agree with you.

[LocoOwl]

D.C. -
You have been a beacon of reason over at T19 (even if I do not necessarily agree with you).

What, if any, is your opinion on the deposition of Bishop Cox at the same HOB meeting, given that +Cox was not inhibited at all?

Thanks!

Allen Lewis

[D. C. Toedt III]

Allen @10:18am, the canon is awkwardly drafted on that point. I think a fair reading is that inhibition per se is not a prerequisite to deposition. As long as the committee in question (I forget its name) makes the requisite finding, and the House of Bishops votes by the required majority, then the accused bishop is deposed. The requirement of consent by the three senior bishops with jurisdiction is best read as applying only to temporary inhibition as an interim measure pending the HoB vote. I don't think the intent of the canon was to give any one of three senior bishops the power to unilaterally abort the deposition proceeding by vetoing the interim inhibition.

As to the specific case of Bishop Cox, I don't know off the top of my head whether the committee made the required finding.