THE MCJ

GOING YARD

In their attempts to clear the Episcopal Organization of the charge of violating its own canons in order depose William Cox and John-David Schofield, many on the Episcopal left, including Mrs. Schori herself, have fallen back on the following.  "I know how the canon reads," they say.  "But we did it this way in this case and that one and no one complained."  In an addendum to the previous memorandum listing Mrs. Schori's numerous canonical violations, the author of that memo jacks that "defense" into the left-field seats:

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.

And if you're wondering why no names have yet been released in connection with the original memorandum and this addendum to it, a commenter at Kendall's explains:

The reason is attorney-client privilege, Brian. The recipient of the memo has released the memo’s contents and waived the privilege as to that, but by redacting the name(s) of the author(s), the client is signalling that he/she/it does not waive any privilege with regard to the rest of the entire engagement which resulted in this Memo (and its Addendum, linked above).

Mad props to the Anglican Communion Institute for making this material available.  But who asked for these memoranda?  The ACI?  Conservative bishops?  If the ACI commissioned this, they are to be commended for laying the facts out before the Anglican public.

But if it was conservative bishops, they would seem to have all they need to proceed against Mrs. Schori.  So why haven't they?  Are they holding their fire, waiting to move until just before the Lambeth Conference in order to inflict the maximum amount of damage on Mrs. Schori and the left going into the Conference itself?

Or is this yet another display of conservative Anglican inertia, the expectation that somebody else will do something?  As I stated before, I don't think a presentment will go anywhere but I think one needs to be brought forward.  Are the bishops waiting for somebody to do their work for them?

I honestly don't know.  I suspect that the first possibility is what's going on but the latter, alas, wouldn't surprise me.

Posted on 5/6/2008 12:37:40 PM , 17 comments