Upper SC 2010 Convention Proposed Amendment to Canons

I post this for not just those of us in the Diocese of Upper South Carolina, but also for those in other dioceses who should expect to see similar changes proposed to their canons.

Squirreled away in the EDUSC web 2010 convention site under "Constitution and Canons" is this innocuous sounding sentence:

"The Title IV Review Committee of The Episcopal Church has requested all diocesan canons be changed to coincide with the new Title IV of The Episcopal Church canons, which will take effect July 1, 2011.

The Constitution and Canons committee has completed their work to amend our canons. That resolution is available for download by clicking here."

Eagle eyed watchers have been waiting for this amendment to appear. It is unfortunate that this comes out shortly before the convention begins next week. If a delegate finds this prior to the convention and decides to actually read the 7 page document, they will find the following,

PROPOSED AMENDMENT TO THE CANONS
Date: September 17, 2010
Offered by: Committee on Constitution & Canons - Mr. Dan Hunt, committee chair

A question came up about that Sept. 17 date. Amendments are supposed to be submitted to the Secretary sixty days prior to the Convention as our web pages say,

Section 1. These Canons shall not be altered or amended, nor shall any new Canon be enacted, except at a stated Convention in the manner here provided. All proposals for new, altered or amended Canons shall be:


(a) Submitted in writing to the Secretary of the Convention no less than sixty days prior to the commencement of the Convention for reference by the Secretary to the Committee on Constitution and Canons:

(b) Read to the Convention prior to action by the Convention thereon; and

(c) Approved by a two-thirds vote of those present at the Convention at which it is first presented or by a majority vote of those present if the identical proposal had been previously read to and considered by the immediate preceding Convention where less than two-thirds but at least a majority of those present voted to approve the proposal.

Because the date on the amendment is what it is, I assume that reflects its final version, which should be what when it was presented to the Secretary. As the amendment is being offered by the committee itself, maybe some other rule applies, or this amendment was submitted late, or maybe it was revised after submission (at the very least, the date was revised). Too many questions arise. As currently dated, this amendment should not be acted upon by the convention until these questions are answered without the convention risking creating constitutional challenges during future trials.

Read on,

Title V: Ecclesiastical Discipline is Hereby Amended So As To Read As Follows:
PROPOSED TITLE V,
Canon 1: Jurisdiction
All proceedings in this Diocese for canonical discipline of members of the clergy shall be governed by Title IV of the Canons of the General Convention as supplemented by this Title. To the extent that any of the provisions of this Title are in conflict or inconsistent with the provisions of Title IV, the provisions of Title IV shall govern.

The problem is that Title IV of the Canons of the General Convention (G.C. of T.E.c.) has been changed recently, and it is subject to change every 3 years when each General Convention meets. This is a recipe for disaster. Clergy should be very, very concerned about this, and for this reason, I believe they should vote "NO" to this amendment.

Next there are some process and structural Canons.

Canon 2: Ecclesiastical Disciplinary Board
SECTION 1. Forming an Ecclesiastical Disciplinary Board
There shall be an Ecclesiastical Disciplinary Board for THE DIOCESE OF UPPER SOUTH CAROLINA to try such charges as may be preferred against any member of the Clergy canonically resident in this Diocese. The Board shall consist of not less than seven (7) members, four (4) of whom are members of Clergy, canonically and geographically resident of the Diocese, and three (3) of whom are confirmed adult Lay communicants in good standing who are members entitled to vote in congregations of this Diocese and who are geographically resident in the Diocese. Clergy and Lay members shall not be members of the Diocesan Executive Council and shall be elected at the Annual Convention of this Diocese according to Section 2 below. The Ecclesiastical Disciplinary Board may make, by majority vote, such rules as may be necessary for the orderly conduct of its business, consistent with Canon Law.
SECTION 2. Election of Members
(a) Currently, there are three (3) Lay and four (4) Clergy members serving on the Ecclesiastical Trial Court. Those members will transition to the Ecclesiastical Disciplinary Board when the new Canon IV takes effect on July 1, 2011. In case a member is rotating off the Trial Court, his or her replacement will take his or her place as anticipated herein and transition as herein anticipated.
(b) Thereafter, as members of the Judicial entity rotate off the entity, new members shall be elected by the Annual Convention. Each clergy member, shall be elected for a four (4) year term and each Lay member shall be elected for a three (3) year term; except, if a member is elected to fill a vacancy, the term of such member shall be the unexpired term of the member being replaced. The term of the member shall commence on the first (1st) day of the year following election. The terms of office of the Board shall be staggered and arranged into classes.
(c)Vacancies The Diocesan Executive Council may fill vacancies on the Board, other than for cause in the conduct of a presentment, occurring in the interval between Conventions; however, any member of the Ecclesiastical Disciplinary Board appointed by the Diocesan Executive Council shall serve only until the next Annual Convention at which time the Convention shall elect a member to serve the unexpired term.
SECTION 3. President
Within two months following the Annual Convention the members shall elect from among themselves by majority vote one person to serve as President for a one year term. The President shall preside at all meetings of Ecclesiastical Disciplinary Board, and shall be responsible for the conduct of the administration and business of the Ecclesiastical Disciplinary Board.
SECTION 4. Preserving Impartiality
In any proceeding under this Title, if any member of a Conference Panel or Hearing Panel (as defined in Canon IV of the General Canons) of the Board shall become aware of a personal conflict of interest or undue bias, that member shall immediately notify the President of the Board and request a replacement member of the Panel. Respondent’s Counsel and the Church Attorney shall have the right to challenge any member of a Panel for conflict of interest or undue bias by motion to the Panel for disqualification of the challenged member. The members of the Panel not the subjects of the challenge shall promptly consider the motion and determine whether the challenged Panel member shall be disqualified from participating in that proceeding.
SECTION 5. Intake Officer
The Intake Officer shall be appointed from time to time by the Bishop after consultation with the Board. The Bishop may appoint one or more Intake Officers according to the needs of the Diocese. The Bishop shall publish the name(s) and contact information of the Intake Officer(s) throughout the Diocese.

All of that seems pretty tame except for the elimination of a "Presiding Judge."

Next we pick up a new member of the team.

SECTION 6. Investigator
The Bishop shall appoint an Investigator in consultation with the President of the Board. The Investigator may, but need not, be a Member of the Church.

No mention of whether or not this is a paid position or who will pay for the investigator. I am guessing that it would come out of the Office of the Bishop's budget.

And isn't it curious that only the investigator need not be a member of the church. Out of all the individuals mentioned, the Investigator gets singled out for this distinction. It makes one think. I suppose he/she could come from another diocese or even from 815 itself. Or maybe Perry Mason's pal, Paul Drake, is still available.

Next comes another little added expense,

SECTION 7. Pastoral Response Coordinator
The Bishop may appoint a Pastoral Response Coordinator, to serve at the will of the Bishop in coordinating the delivery of appropriate pastoral responses provided for in Title IV.8 of the General Canons and this Title. The Pastoral Response Coordinator may be the Intake Officer, but shall not be a person serving in any other appointed or elected capacity under this Title.

I guess this person could be the Dalai Lama or even the U.G.P. because there again, this coordinator need not be a member of the diocese or the church. There might be potential for an enterprising person to start a consulting business in Pastoral Response Coordination (oops, there already is someone  in the Diocese of Connecticut who popped up in my Google search who might be available).

SECTION 8. Advisors
In each proceeding under this Title, the Bishop shall appoint an Advisor for the Complainant and an Advisor for the Respondent. Persons serving as Advisors shall hold no other appointed or elected position provided for under this Title, and shall not include chancellors or vice chancellors of this Diocese or any person likely to be called as a witness in the proceeding.

SECTION 9. Clerk

The Board shall appoint a Board Clerk to assist the Board with records management and administrative support. The Clerk may be a member of the Board.

SECTION 10. Notice of the First Meeting of the Hearing Panel

A written notice of the time and place of the first meeting of the Hearing Panel shall be served at least thirty (30) days before that meeting on the accused and on the Church Attorney. This period may be shortened with the prior written consent of the accused and the Church Attorney.

Canon 3: Church Attorney

SECTION 1. Church Attorney

A church attorney will be appointed by the Bishop with the advice and consent of the Diocesan Executive Council. The Church Attorney is not to be a member of the Diocesan Executive Council, but is to be licensed to practice law in a jurisdiction of the United States of America. In addition, he or she must be either a member of the Clergy canonically resident in this Diocese or a confirmed adult lay communicant in good standing who is entitled to vote in a congregation of this Diocese. The Church Attorney shall be elected to terms of one year and shall serve at the pleasure of the Diocesan Executive Council.

SECTION 2. Appointment of Assistant Church Attorneys

By majority vote, the Bishop with the advice and consent of the Diocesan Executive Council may authorize the appointment of one or more Assistant Church Attorneys, who shall then be appointed by and serve at the pleasure of the Church Attorney, provided, however, that such Assistant Church Attorneys must have the same qualifications as those applied to the Church Attorney.

Finally, we get to the question of who pays for all of this,

Canon 4 Expenses of the Ecclesiastical Disciplinary Board
The expenses of the Ecclesiastical Disciplinary Board, including but not limited to those of the Church Attorney, shall be presented to the Diocesan Executive Council for payment.

This is unchanged from the earlier canon, and maybe it can be interpreted to include the "Investigator's" fees. It sounds like a blank check to me. I wonder if in this day and age of ever escalating legal expenses that there should be some sort of limit on the costs that D.E.C. will agree to pay, or maybe there should be a proviso that an estimate of the legal expenses shall be obtained in the initial phases of the presentment.

In my opinion, it would be a grievous mistake to allow the disciplinary canons of the diocese to become of secondary relevance to any current or future canons put forth by a General Convention of the Episcopal church, a General Convention that does not have the reputation of providing the wisest counsel to the Church.

Delegates should not be afraid to vote "No."

What follows is the current wording in our canons. ________________________________________________________________________________

CURRENT TITLE V,

Canon 1: Jurisdiction

SECTION 1. All proceedings in this Diocese for canonical discipline of members of the clergy shall be governed by Title IV of the Canons of the General Convention as supplemented by this Title.

Canon 2: Ecclesiastical Trial Court

SECTION 1.
There shall be an Ecclesiastical Trial Court for THE DIOCESE OF UPPER SOUTH CAROLINA to try such charges as may be preferred against any member of the Clergy canonically resident in this Diocese. It shall be comprised of four members of the Clergy canonically resident in this Diocese and three confirmed adult Lay communicants in good standing who are members entitled to vote in congregations of this Diocese. Clergy and Lay members shall not be members of the Diocesan Executive Council, and shall be elected at the Annual Convention of this Diocese according to Section 2 below. The Ecclesiastical Trial Court may make, by majority vote, such rules as may be necessary for the orderly conduct of its business, consistent with Canon Law.

SECTION 2. ELECTION OF MEMBERS

(a) Election of Clergy members. At the first Annual Convention after January 1, 1996 there shall be elected one Clergy member for a term of four years, one Clergy member for a term of three years, one Clergy member for a term of two years, and one Clergy member for a term of one year. Thereafter, at each Annual Convention, one Clergy member shall be elected for a term of four years.
(b) Election of Lay members. At the first Annual Convention after January 1, 1996 there shall be elected one Lay member for a term of three years, one Lay member for a term of two years, and one Lay member for a term of one year. Thereafter, at each Annual Convention, one Lay member shall be elected for a term of three years.
(c) Vacancies. The Diocesan Executive Council may fill vacancies on the Court, other than for cause in the conduct of a presentment, occurring in the interval between Conventions; however, any member of the Court appointed by the Diocesan Executive Council shall serve only until the next Annual Convention at which time the Convention shall elect a member to serve the unexpired term.

SECTION 3. PRESIDING JUDGE

Within two months following the Annual Convention the members shall elect from among themselves by majority vote one person to serve as Presiding Judge for a one year term. The Presiding Judge shall preside at all meetings of Ecclesiastical Trial Court, and shall be responsible for the conduct of the administration and business of the Ecclesiastical Trial Court.

SECTION 4. Challenge as to members of the Ecclesiastical Trial Court

When a presentment is made, the Diocesan Executive Council shall promptly transmit a copy of it to each member of the Court and serve a copy upon the accused.
(a) Voluntary Recusal. Any member of the Court who is a party to or is personally interested in a particular case shall recuse himself or herself within five days after the Court's receipt of the presentment by notifying the Presiding Judge, or all other members of the Court in the case of voluntary recusal of the Presiding Judge. In the event these recusals result in less than three Clerical and two Lay members of the Court remaining as members, the remaining members who have not recused themselves shall appoint by majority vote another person of the same order to serve as a temporary member of the Court in place of the recused members. If the Presiding Judge has recused himself, the Court, after appointment of temporary members, shall appoint a Temporary Presiding Judge.

(b) Challenge for Cause. After due opportunity for recusal has been given the members of the Court, and, if necessary, additional appointments have been made, the Presiding Judge shall serve on the accused and the Church Attorney a list of the names of the members of the Ecclesiastical Trial Court as constituted after recusal and temporary appointment. The parties shall, within thirty days after service of the list, notify the Presiding Judge in writing of any challenge to a member or members of the Court for cause. The Court shall determine the merits of challenges for cause by majority vote. The member challenged shall not be allowed to vote on his own qualification or exclusion. In the event members disqualified for cause result in less than three Clerical and two Lay members of the Court remaining as members, the remaining members who have not been disqualified for cause shall fill such vacancies by appointing by majority vote a person of the same order to serve as a temporary member of the Court in place of any disqualified member removed for cause. If the Presiding Judge has been disqualified for cause, the Court, after appointment of temporary members, shall appoint a Temporary Presiding Judge.

(c) Selection of the Hearing Panel. After recusal, disqualification, and appointment of temporary members, three Clerical and two Lay members of the Court shall be selected by lot, and they shall constitute the Hearing Panel for the trial of the accused. The Hearing Panel, as originally constituted, shall retain jurisdiction over the trial of the accused until issuance of a final non-appealable order by a Court of Competent Jurisdiction, at which time the members of the Hearing Panel shall be dismissed. The Hearing Panel shall initially meet at such time and place as it shall determine, and shall have the authority to adjourn from time to time and from place to place within the Diocese, as it shall determine necessary by majority vote. If the Presiding Judge is a member of the Hearing Panel, he shall be the Chief Judge of the Hearing Panel. If the Presiding Judge is not a member of the Hearing Panel, then upon its initial meeting, the Hearing Panel shall select one of its members Chief Judge of the Hearing Panel and one Secretary of the Hearing Panel. The Chief Judge shall preside at all meetings of the Hearing Panel, and shall be responsible for the conduct of the administration and business of the Hearing Panel. The Hearing Panel shall then appoint a Clerk and such assistant clerks and officers as it shall determine necessary for the conduct of the business of the Hearing Panel, all of whom shall be duly sworn by the Chief Judge of the Hearing Panel to well and truly perform the duties of their respective offices. The Hearing Panel may also make, by majority vote, such rules as may be necessary for the orderly trial of the case, consistent with Canon Law and the rules of the Ecclesiastical Trial Court.

(d) After selection of the Hearing Panel for a presentment, all temporary members of the Ecclesiastical Trial Court who have not become members of the Hearing Panel shall be dismissed, and the Ecclesiastical Trial Court shall be comprised of its duly elected or appointed members as constituted prior to commencement of the presentment.

SECTION 5. NOTICE OF THE FIRST MEETING OF THE HEARING PANEL

A written notice of the time and place of the first meeting of the Hearing Panel shall be served at least thirty days before that meeting on the accused and on the Church Attorney. This period may be shortened with the prior written consent of the accused and the Church Attorney.

Canon 3: Diocesan Review Committee

SECTION 1. The Diocesan Review Committee shall be comprised of five members appointed by the Bishop with the consent of the Diocesan Executive Council. Of the five members of the committee, three shall be clergy and two lay. Terms of members shall be three years with all members eligible to be reappointed to a second three year term. The members of the committee shall elect a President from among their number each year. In cases where members recuse themselves from consideration of particular matters, the Bishop may appoint acting members to serve for consideration of that matter with consent of the Diocesan Executive Council. Acting members shall be the same order as the recused member they replace.

Canon 4: Church Attorney and Lay Assessors

SECTION 1. CHURCH ATTORNEY AND LAY ASSESSORS
The members of the Ecclesiastical Trial Court shall elect by majority vote at least one but no more than three Lay Assessors and the members of the Diocesan Review Committee shall by majority vote select a Church Attorney. The Church Attorney and all Lay Assessors must be persons who are not members of the Diocesan Executive Council, and who are licensed to practice law in a jurisdiction of the United States of America, and must be either a member of the Clergy canonically resident in this Diocese or a confirmed adult lay communicant in good standing who is entitled to vote in a congregation of this Diocese. The Church Attorney and the Lay Assessors shall be elected to terms of one year and shall serve at the pleasure of the Diocesan Review Committee or Ecclesiastical Trial Court respectively.

SECTION 2. APPOINTMENT OF ASSISTANT CHURCH ATTORNEYS
By majority vote, the Diocesan Review Committee may authorize the appointment of one or more Assistant Church Attorneys, who shall then be appointed by and serve at the pleasure of the Church Attorney, provided, however, that such Assistant Church Attorneys must have the same qualifications as those applied to the Church Attorney and all Lay Assessors in Section 1 above.

SECTION 3. EXPENSES OF THE TRIAL COURT.
The expenses of the Trial Court, including but not limited to those of the Church Attorney and Lay Assessors, shall be presented to the Diocesan Executive Council for payment.