There is a prima facie case for bringing the US Presiding Bishop Katharine Jefferts Schori to trial before a church tribunal for abuse of office, a legal memorandum commissioned by a group of concerned American bishops and church leaders has found. But whether the bishops have the political will to act is unclear, the paper concluded.Prepared by an international lawyer in response to a request for an independent opinion as to the legality of Bishop Schori’s actions, and their implications for the polity of the Episcopal Church, the April 21 memorandum concludes the Presiding Bishop deliberately and with full knowledge and forethought “subverted” the “fundamental polity” of the Episcopal Church in her takeover of the Diocese of San Joaquin.
The Presiding Bishop had also committed a “wilful violation of the canons, an intention to repeat the violations and a pattern of concealment and lack of candour” in her attempts to depose Bishops Robert Duncan, John-David Schofield and William Cox, the paper said.
The 7000-word memorandum does not address question of doctrine, but limits its review to the “recent actions she has taken against Bishops Cox, Schofield and Duncan and the Diocese of San Joaquin,” and finds 11 violations of the church’s constitution and canons.
However, it does not appear to have had a wide circulation yet amongst the American bishops and church leaders. Spokesmen for the Presiding Bishop and the Archbishop of Canterbury declined comment, telling The Church of England Newspaper they had not seen the document.
"I have seen the brief, but I do not know who is behind it,” Central Florida Bishop John W Howe said. “I frankly cannot imagine a more difficult or unhappy situation than someone filing a presentment against the Presiding Bishop, but I can envision exactly that happening if she continues to maintain, and act upon, her very questionable interpretation of our canons,” he observed.
Prof. Ephraim Radner, a member of the Anglican Covenant Design Group found the “matters addressed by this brief troubling.”
“It is clear that we have entered territory within TEC of such profound disagreement that the legal bearings of our Constitution and Canons are no longer even commonly understood, and that this lack of common understanding is tearing apart our very episcopate and the credibility of our church's ability to make formal decisions. How will TEC be able to enter into a Covenant with the rest of the Communion under these circumstances?", he asked.
The memorandum argued that Bishop Schori’s attempts to interpose her authority in the affairs of the Diocese of San Joaquin violated church law. By stating she did not recognize the authority of the “duly elected” standing committee of San Joaquin, appointing vicars, and calling a convention, the Presiding Bishop violated canons and usurped authority not hers, as church law gives her only the right to “consult” with diocesan ecclesiastical authority, not to create one at her sole pleasure.
These actions “subvert the governance of an entire diocese and go to the heart of TEC’s polity as a ‘fellowship of duly constituted dioceses’ governed under Article II.3 by bishops who are not under a metropolitan or archbishop,” the legal memorandum found.
Bishop Schori had also created “new procedures” for deposing bishops not found in the canons, the paper said. In attempting to bring Bishops Duncan and Cox before the House of Bishops to defrock them, she was required to first inhibit or suspend them. Neither Bishop Duncan nor Cox were so inhibited. “A bishop who has not been inhibited is not ‘liable to deposition’ under this canon,” the paper observed, thus rendering her attempts unlawful.
The Presiding Bishop’s deposition of Bishops Cox and Schofield was done without the “necessary consent” of the House of Bishops. “The conclusion that the requisite consent was not given is irrefutable” as the “plain meaning” of the canons, as well as voting procedures detailed in other parts of the church’s governing documents do not permit the interpretation interposed by the Presiding Bishop’s chancellor that an unrecorded voice vote by a simple majority of those present was sufficient, the paper said.
The procedural difficulties in bringing this matter to adjudication however were formidable, the paper argued, as the “ability of the complainants to hold accountable the Presiding Bishop or another bishop thus ends at the Review Committee.”
The authors of the legal memorandum were not optimistic the current legal and political environment within the church would see justice done. The review committee could issue a presentment, it could decline to issue a presentment and “produce a rationale that is persuasive to most objective observers.” It might also “decline to issue a presentment on grounds that are not persuasive and serve only to discredit the review committee and the process as well as the respondent,” it said.
This final outcome “highly likely,” the paper concluded, but noted the effort should none the less be made to hold the institution “accountable.”
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