When Is A Defense Not A Defense?

Were it not so utterly pathetic, the "defense" put forth by the Presiding Oceanographer for some of her many canonical violations would be laughable.  In essence, the P.O. has said, "well, it may not have been canonical, but we've done it that way before," in reference to the cases of Bishops Davies and Moreno.  An artful addendum to the legal memorandum setting forth the P.O.'s canonical violations fires a harpoon right to the heart of that squid-ly argument:

A defense now proffered by the Presiding Bishop and her supporters is that the same procedures were followed in the recent cases of Bishops Davies and Moreno.  Past violations of the canon’s clear provisions are said to justify current ones.  In considering this defense, it is necessary to distinguish three senses of “precedent” in legal usage.   One is the well-known sense of precedent as a formal ruling on a legal issue by a competent juridical body.  This is clearly not the case here as no one has suggested that the prior cases were determined to be canonical by any body reviewing the canonical issues.  These cases are not offered as reasoned legal rulings, but as a fait accompli.

A second sense of precedent is that in which the actions of parties to a contract are used to interpret terms that are vague or ambiguous.  In civil law this concept is referred to as “course of performance,” and this type of precedent is often used as an aid to interpretation for vague or ambiguous contractual terms such as those relating to timeliness or quality.  For example, terms like “promptly” or “standard grade” are ones that can sometimes be interpreted by the parties’ performance.  The applicability of this principle can be seen in the present context by noting that the meaning of the vague term “forthwith” in Canon IV.9 is given meaning by the Presiding Bishop’s own action in giving notice to Bishop Schofield within 48 hours of receiving the certification from the Review Committee.  But the requirements of inhibition in IV.9 and for consent by a majority of the whole number of bishops entitled to vote are not vague or ambiguous terms.  They are expressed in mandatory language using precise terms that are clearly defined and used elsewhere in the canons.  Express terms control when in conflict with arguable interpretations based on prior actions.

The third type of precedent is one that is often encountered in commercial litigation and corporate law.  This is when clear contractual or legal duties are repeatedly violated.  Here the past misconduct is to no avail absent an explicit waiver.  Especially relevant to the current context is a pattern familiar to any corporate lawyer: that of a closely-held corporation that does not follow its own bylaws.  Such corporations, owned by one or a small number of shareholders, have many of the same duties in terms of corporate formalities and procedural regularity as public corporations traded on national stock exchanges.  Corporate law requires that proper procedures be followed in order for an enterprise to receive legal recognition and protection as a corporation.  Often the sole shareholder of a corporation pays no attention to these formalities or the requirements of the corporate bylaws.  The business is simply run as the shareholder sees fit.

But when the litigation arises and a hostile party asks the court to disregard the corporate form and permit a suit directly against the shareholder, those past “precedents” of ignoring the corporate rules are to no avail.  In fact, the naked “we’ve done it this way before” becomes evidence for the other side, the primary evidence that the corporate form is a sham.  The frequent result in such cases is that the law disregards the corporate form --it “pierces the corporate veil”-- and the shareholder’s assets are no longer protected as intended by the corporation.  Corporations that seek the law’s recognition must follow the legal requirements and their own rules.  Past malfeasance is not a defense; to the contrary it is proof of a pattern of abuse that exacerbates the current violation.  It is a supreme irony that Bishop Lamb is now petitioning the California courts to defer to TEC’s polity and recognize him as the bishop of San Joaquin when the clear provisions of TEC’s canons indicate Bishop Schofield has not been lawfully deposed. 

Wow,  that's going to leave a mark!  As an attorney I have read many a good piece of legal writing over the years, and have been subjected to many a bad one.  This is one of the best - clear, concise, and right on the mark.  As I said in a previous post, the law values consistency in a party's legal positions.  It does not value a party that knowingly and repeatedly violates its own clearly-drafted rules and will on many occasions, such as the one given in the addendum, actually strip the violating party of the protection of its own rules.

I find it somewhat fascinating, albeit not in the least surprising, that many of our worthy opponents on the left are spending their time trying to guess the identity of the authors of the memo and/or Bishops who commissioned its preparation.  This is so typical of those of their political persuasion - when faced with an ironclad, unassailable position, mount an assault on the person(s) instead of the principles.  There has to have been some modicum of knowledge all along that the P.O. was operating well outside Canon Law, but in their glee over exacting vengeance on orthodox clergy, they forgot to conduct damage control and consider what could go wrong.  The P.O. has now been called on  her violations, and those who supported her without question are entirely complicit in this hijacking of the rules and procedures of the Episcopal Organization.  There is thus little question that they will try to defend themselves by any means available, no matter how nefarious.

The simple fact is that I know there are hundreds of very good lawyers out there who, if given the Constitution and Canons, and the indisputable facts of what has transpired since the P.O. took office, together with an objective review of some of the other history of what has occurred in TEO over the last thirty (30) years, could have reached these same conclusions and written much the same memorandum explaining them.  I thus do not think the author(s) are necessarily Episcopalian, nor are they necessarily warriors in the current controversies.  The memorandum has a strong flavor of objectivity to me, such that I would speculate that the author(s) are NOT heavily steeped in the current controversies.  If I am incorrect in saying this, the author(s) have at minimum done a very nice job of setting aside personal opinions and beliefs and presented an objective and compelling case against the P.O.

I tend to agree with the position asserted by Christopher Johnson and others that a presentment is not likely to accomplish much directly, but that one should nonetheless be made for a variety of other legitimate purposes beyond direct disciplinary action.  The mere existence of a presentment lodged against the presiding clergy-person of this denomination would make clear to the rest of the world, even Ol' Broccoli-Brains  himself, just how damaged TEO is and that the P.O. is the principal architect of that damage.  It would at the same time serve notice on the rest of the world that there are at least some within TEO that do care, strongly, about the imminent demise of the denomination.  It would provide leverage to those who wish her gone from her high office.  It would weaken her position as she tries to strong-arm Diocesan Bishops to abandon negotiations with departing parishes and open litigation. And, as I mentioned in my earlier post, the more this memo is made known generally, the more likely it is to have an effect on the property litigation as well.  In other words, there is sometimes value in the Quixotic; this windmill should be tilted upon, heartily.

Comments

[Rev. Dr. J+]

David;
I have asked several people, but have not received an answer from anyone to a question that I have. The question is, that TEC is Not a "communion", but is a part of the "Anglican Communion". So, with all the churches and one Diocese leaving TEC but staying in the AC, are they in fact abandoning the communion or not. They are staying in the Anglican Communion but switching to a another branch of it, be it the Southern Cone or Nigeria, or where ever, they are still in the AC..true or false?

[Trimble]

Great question, Rev. Dr. J+, and one to which I'm not sure there is a good answer. Per the Constitution of TEO, it is a "constituent member" of the Anglican Communion, but in its own organization is much more a church of the General Convention, hence it being sometimes called by its detractors The Church of the General Convention (TCGC). On the other hand, Title IV, Canon 9 of the Canons does list "abandonment of communion" as an offense for which a Bishop my be disciplined. The Canon defines abandonment of communion thusly: "If a Bishop abandons the communion of this Church (i) by an open renunciation of the Doctrine, Discipline, or Worship of this Church, or (ii) by formal admission into any religious body not in
communion with the same, or (iii) by exercising episcopal acts in and for a religious body other than this Church or another Church in communion with this Church, so as to extend to such body Holy
Orders as this Church holds them, or to administer on behalf of such religious body Confirmation without the express consent and
commission of the proper authority in this Church...". So, apparently clergy are thought to be "in communion" with TEO, to be then able to abandon such "communion." The question this raises is how a Bishop, or priest, or for that matter a Diocese or parish, who remains "in communion" with another Province of the Anglican Communion, of which TEO is a "constituent member", can be viewed as having "abandoned communion" with TEO? It seems to me that all that has happened is a change in the organizational chart where the arrows showing "communion" have been re-directed through another province. Also at play here, though, are those parts of the Anglican Communion who have declared themselves to be in "broken communion" with TEO. Is a departure to a part of the Anglican Communion that has declared communion to be broken the equivalent of "abandonment of communion"?
I think I need a handful of Tylenol now.

[Rev. Dr. J+]

David,
Thank you, I think that helps. What I was thinking of, is there have been many occasions when priest have gone to England from here and have not been considered to have abandoned the Communion and visa versa. Whether or not a particular diocese or province in is communion with TEC should have no bearing as long as they are in communion with the Anglican Communion...one would think. But, I think they are kind of making up rules as they go along. That certainly seems to be the case with PO. as you mentioned above.
It really strikes me as really ironic to the max that the PO violated the Canons in order to depose someone for violating the Canons. It's kind of like breaking the law to punish someone for breaking the law isn't it? Now I need an Advil.

[Trimble]

The example of a priest going overseas makes a good point - should it make a difference so long as the priest or Bishop remains "in communion" with Canterbury, regardless of whether the change is geographic or theological? And in my experience, even Tylenol or Advil won't get it done - Bourbon works pretty good, especially along with a nice Cohiba. There are times, though, when only a good schedule narcotic will do in dealing with TEO. I do wonder, however, if some of what the P.O. does is a result from a bad acid trip in her youth?