Does the lack of inhibition of Bishop Duncan matter?

There has been a lot of discussion about the meaning of the senior bishops’ lack of consent to inhibit The Rt. Rev. Robert Duncan, Bishop of the Diocese of Pittsburgh. The question has been “does this mean the process is stopped or not?” The letter to Bishop Duncan from the Presiding Bishop and Canon IV.9.2 state that the process continues not withstanding the senior bishops’ non-consent to inhibition.

Letter from the Presiding Bishop (ed. underline):

5 January, 2008

Dear Bob,

I am sorry to have to tell you that on 17 December 2007 the Title IV Review Committee certified to me that in its view, you have abandoned the Communion of this Church, within the meaning of Canon IV,9 of this Church. A copy of that certification, together with the submissions on which the commmittee based its decision, is included with this letter.

Pursuant to that Canon, I submitted the matter to the three senior bishops of this Church having jurisdiction – Bishops Frade of Southeast Florida, Lee of Virginia, and Wimberly of Texas – and asked that they consent to your inhibition, pending consideration of this matter by the House of Bishops. On 11 January, 2008, they informed me that such consents would not be given at this time by all three bishops.

In due course, I shall forward the Review Committee’s certification to the House of Bishops for its consideration. Pursuant to the time limits stated in Canon IV.9, the matter will not come before the House at its next scheduled meeting in March 2008, but will come before the House at the next meeting thereafter. I would, however, welcome a statement by you within the next two months providing evidence that you once more consider yourself fully subject to the doctrine, discipline, and worship of this church.

You continue in my prayers. I remain

Your servant in Christ, Katharine Jefferts Schori

The relevant portion of Canon IV.9.2 reads

“Otherwise, it shall be the duty of the Presiding Bishop to present the matter to the House of Bishops at the next regular or special meeting of the House. If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent, the Presiding Bishop shall depose the Bishop from the Ministry, and pronounce and record in the presence of two or more Bishops that the Bishop has been so deposed.”

It is clear from the Presiding Bishop’s letter and the Canon that the discussion and vote on deposition of Bishop Duncan will not occur at the bishops’ March meeting, but at the following meeting. Unless a special meeting is held it will occur at the Fall 2008 meeting of the House of Bishops. The Presiding Bishop is proceeding on this basis.

More on this story from Episcopal Cafe here and here and here.

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10 Comments
  1. I appear to be in the minority, but the “Otherwise” in the quoted section refers to what happens when the PB is not “reasonably satisfied” that the “verified written statement” of “the inhibited bishop” “constitutes (i) a good faith retraction… or (ii) a good faith denial…” and moves to “terminate the Inhibition.” In other words, it is only when the PB is not satisfied that a retraction or denial has been made that the inhibition is to remain in force “until such time as the House of Bishops shall investigate the matter.”

  2. The original quick access to inhibition was to prevent those charged with sexual abuse, exploitation and misconduct from continuing in office. The charge is intended to be heard by the House of Deputies regardless of inhibition. “Otherwise” refers to if the inhibition is not given.

  3. James Wirrell

    A few responses:

    1. Haller’s interpretation is most certainly correct, at least from a legal drafting perspective. If Canon IV.9 is interpreted in the way any secular court would interpret a statute, the lack of inhibition would cancel out the process. This is the plain reading of the text of the canon. The text very specifically says that only an “inhibited bishop” is liable to deposition and only an “inhibited bishop” has to recant. The “otherwise” phrase clearly refers back to the “inhibited bishop” choosing not to recant. Now if TEC chooses not to embrace the basic due process rights that Americans take for granted, that is its right (there is, after all, no independent competent body within TEC that functions akin to the US Supreme Court). However, doing so will have a impact on how TEC is perceived both domestically and internationally.

    2. Ann – this Canon has nothing to do with child abuse, exploitation, etc. There is another canon entirely that deals with inhibition for those sort of offences. That is the whole point. There already exists a canon dealing with inhibiting a bishop in other circumstances. This canon deals ONLY with bishops who are alleged to have abandoned the communion of “the Church”. It is a very powerful canon, it contains no provision for a trial, and so it requires strict due process. One of the due process checks is the requirement that the 3 senior bishops agree to the inhibition (otherwise why have this requirement?). If the 3 senior bishops do not so agree, it means that they do not agree with the charge (as Wimberly has so stated). That means that the due process provision has checked the deposition attempt. Again, TEC and the PB can ignore this and get away with what is an uncanonical abuse of process – there is no body that can stop her – but you need to think what this says about TEC.

  4. Richard III

    “but you need to think what this says about TEC.”

    James what does this say about TEC? I get tired of people attempting to make the church out to be the bad cop in all of this. Bishop Duncan has been working hard for several years to destroy TEC. How egregious does his behavior or for that matter any other bishop like him have to be before it’s OK to kick him (them) out the church? When is it OK to say enough is enough?

    Richard Warren

  5. I think that is reading a whole lot into the Canon that is simply not there.

    The Review Committee’s certification is similar in many respects to an indictment from the Grand Jury.

    The inhibition is similar to an injunction or a restraining order.

    Apples and oranges. Yoking the two makes no sense.

    Just because a “judge” (bishop) does not feel that a temporary restraining order is needed cannot cancel out the serious charges made by the Grand Jury (Review Committee).

    The indictment will go to court (House of Bishops), with or without the temporary restraining order (inhibition).

    Terry Martin

  6. James Wirrell

    Jake: We are dealing here with Canon IV.9 here, and not a temporary restraining order and a judge. We need to be guided by the actual text of Canon IV.9, and not by what we imagine it might mean. Haller and I are not reading anything into Canon IV.9 – we are going by the clear, explicit language contained therein.

    Jake – it is a longstanding principle of legal interpretation that you MUST take the plain meaning of the statute AS IT IS WRITTEN.

    Here’s a challenge for anyone who doubts the clear and obvious meaning of Canon IV.9. Find several lawyers who have no personal interest or bias in this case. Make sure that they do not know what you would like Canon IV.9 to say. Then have them sketch out a flowchart of what is needed for the PB to request a deposition vote by the HOB. If you assemble a group of neutral lawyers, I will guarantee you that all of them will state that an inhibition is required for a deposition vote.

    Jake – I have no doubt that the PB will put this to a vote with the HOB and that the HOB will vote to depose (well, maybe a little doubt on the latter, but only a little). But it would be an uncanonical abuse of process for her to do so, and that will have very negative implications for TEC’s standing and credibility both internationally and domestically, both inside and outside of the Anglican Communion and TEC.

    I would ask you all if the quick deposition of Bob Duncan is really worth it.

  7. James Wirrell

    Richard:

    We need to separate the issue of “Do you want Bob Duncan kicked out of the church” from the issue of “is Canon IV.9 being abused?”

    You may want to kick Bob Duncan and many others out of TEC. Fine. That is you choice to want to do that. I think that if you really want to “purify” your church, you might try negotiation for an amicable divorce. But if you choose to use legal coercion to accomplish your goals, you need to do it canonically. And that is the issue at hand.

    Is Canon IV.9 being used properly here?

  8. James Wirrell

    Here’s a suggestion. I think that this debate over the meaning of Canon IV.9 is extremely important, and one that should take us beyond the conservative vs. liberal fight of the day.

    Episcopal Cafe, TitusOneNine, StandFirm, Fr.Jake, etc. should get together and designate a forum for discussion of this issue. Ground rules would be that the discussion must pertain to Canon IV.9 only and not include any other issues or side shots.

  9. Carol Cole Flanagan

    It may be the case that a secular court would stop the process but this is an ecclesiastical process, and I see nothing in Canon IV.9.2 that suggests that the process is cancelled if there is no decision to inhibit. I can’t think of an ecclesiastical case in which a decision for or against inhibition stopped the process. If the Review Committee has evidence that leads them to certify abandonment then the bishop needs to be invited to respond whether or not an inhibition was issued. He is not being denied due process, and has the opportunity to respond.

  10. tobias haller

    Carol, my suspicion is that the canon was written primarily to address situations that were so obviously amounting to abandonment that consent would be forthcoming without debate or discussion: note there is no reference to the three senior bishops meeting, or a time frame for their consent — sure signs, to my mind, that this was seen as a formality to lend a bit of gravitas to the situation.

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