Ecclesiastical Discipline in the Anglican Church in North America: Part 2

Read Part 1.

By Robin G. Jordan

Disciplinary Proceedings against Bishops. The requirements for the presentation of a bishop are much more stringent and make it much more difficult to hold a bishop accountable for misconduct or any other offense specified in Canon IV.2.

Canon IV.4.1 states:

A Bishop may be charged under Canon IV.2 by three Bishops of this Church with jurisdiction, or by not fewer than ten Presbyters, Deacons, or adult baptized members of this Church in good standing, of whom at least two shall be Presbyters. One Presbyter and not fewer than six lay persons shall belong either to the Diocese in which the alleged offense was committed or to the Diocese in which the Bishop is canonically resident. Such charges shall be in writing, signed and sworn to by all the accusers and shall be presented to the Archbishop, the Archbishop’s delegate, or the College of Bishops. The grounds of accusation must be set forth with reasonable certainty of time, place and circumstance. The charges shall be referred to the Board of Inquiry.

Who may charge bishops with offenses in this canon is taken from Canon IV.3.23 (a)(1) and(2) of the canons of the Episcopal Church, which states:

A Bishop may be charged with any one or more of the Offenses other than Offenses specified in Canon IV.3.21(c) by
(1) three Bishops; or
(2) ten or more Priests, Deacons, or adult communicants of this Church in good standing, of whom at least two shall be Priests. One Priest and not less than six Lay Persons shall be of the Diocese of which the Respondent is canonically resident; or…

The Episcopal Church has adopted a complicated procedure for charging bishops with offenses specified in Canon IV.3.21 (c), that is, “ for holding and teaching publicly or privately, and advisedly, any doctrine contrary to that held by this Church.” The House of Bishops must first issue a statement of disassociation from the doctrine alleged to be contrary to be held by the Episcopal Church before a bishop may be charged with such offenses. A request for a statement of disassociation signed by ten bishops and accompanied by the proposed statement of disassociation and a supporting brief must be filed with the Presiding Bishop who must serve copies of these documents upon the bishop who has been charged and send copies of them to each member of the House of Bishops. Upon the House of Bishops’ issuance of a statement of disassociation ten bishop may file a presentment. If the House of Bishops does not issue a statement of disassociation, there are no further proceedings. Even if the House of Bishops does issue a statement of disassociation and ten bishops file a presentment, the written consent of one-third of the voting members of the House of Bishops is required before the proceedings may continue.

One of the problems that have beset the Episcopal Church has been the difficulty of holding bishops accountable for apostasy from the Christian faith, heresy or false doctrine, and abuse of ecclesiastical power due to these requirements. This problem has been further complicated by the lack of clear doctrinal statements in the Episcopal Church. Such statements are also lacking in the Anglican Church in North America.

It is noteworthy that the ACNA canons omit the special provision of Canon IV.3.23 (a) (3):

…in a case when the Offense alleged is the Offense of Crime, Immorality or Conduct Unbecoming a Member of the Clergy, as specified in (1) or (2) or by any adult who is (i) the alleged Victim, or (ii) a parent or guardian of an alleged minor Victim or of an alleged Victim who is under a disability, or (iii) the spouse or adult child of an alleged Victim.

Considering the number of cases of child sexual abuse and exploitation, sexual harassment, and sexual misconduct in Anglican and non-Anglican churches that have come to light during recent years, such a provision is warranted, and its omission is irresponsible.

With the exception of the referral to the Board of Inquiry, the remaining language of Canon IV.4.1 is taken from Section 2, Requirements for Presentment, of Canon 32, Of Presentments in the Episcopate, of the Rwandan canons:

Such charges shall be in writing, signed and sworn to by all the accusers and shall be presented to the Primate or his delegate, otherwise the College of Bishops. The grounds of accusation must be set forth with reasonable certainty of time, place and circumstance.

Before drawing the conclusion that the ACNA canons make it easier to charge a bishop with offenses specified in Canon IV.2, we need to consider who may make charges against a bishop under the canons of the Anglican Church of Rwanda and other Anglican bodies, both in and outside the Anglican Communion.

Anglican Church in Aotearoa, New Zealand and Polynesia:

Any person may make a complaint against a Bishop of this Church for any breach of duty required, or of ethical standards, under Canon I Part A.

No complaint against a Bishop other than a complaint for sexual or other harassment shall be received unless it proceeds from six baptised members of this Church of whom two at least shall be licensed priests. Canon II, Sections 3-3.1

Anglican Church of Kenya:

No charge shall be received against a bishop of the province unless it be preferred by at least ten (10) priests licensed in the church or by five (5) bishops of the church, or if it relates to matters other than faith and doctrine, by at least five (5) priests and three (3) lay representatives in the synod of the diocese of the accused bishop. Canon XVII, Section 1

Anglican Church of Rwanda:

A bishop may be presented by any bishop of this Church exercising jurisdiction, or ten or more communicants of' this church in good standing, of whom at least two shall be priests: one priest and not fewer than six communicants shall belong to the diocese in which he has domicile. Canon 32, Section 2

Anglican Province of America:

In the event the charged party is a bishop, the presentment shall be endorsed and certified by the affidavit of one bishop, by no less than three priests, and no less than five members in good standing of the laity of the church. Canon 29, Section 7

Church of Ireland:

Any bishop or any member of the clergy or any lay member of the Church of Ireland who has a proper interest may bring to the attention of the Complaints Administrator any complaint in respect of a bishop by means of a written submission signed by such person.

Any such written submission must be accompanied by the sum of £600 or €1,000 (or such other sum as the Rules Committee may from time to time prescribe). Such sum shall be held by the Complaints Administrator and shall be returned to the Complainant unless the Complaint is dismissed pursuant to section 27(a), 28(a) or the Complaints Committee is of the opinion that a prima facie case has not been made out in respect of the Complaint. Where such a written submission is made by a lay member or members of the Church of Ireland, it must incorporate a written confirmation on the part of each such lay member that he or she is a member of the Church of Ireland. Chapter VIII.1. 26 (b)-(c)

Church of Nigeria (Anglican Communion):

No charge shall be received against a Bishop of the Church unless it be preferred, if it relates to a matter of Faith and Doctrine, by at least five Priests of the Diocese, or by a Bishop of the Church or, if it relates to other matters, by at least three Priests of the Diocese and also three Lay Representatives in the Synod of the Diocese of the accused Bishop. Canon XIV, Section 23

Reformed Episcopal Church:

In the event the charged party is a bishop, the presentment shall be endorsed and certified by the affidavit of at least one bishop, by no less than two presbyters, and no less than five communicant members in good standing of the laity of the Church. Canon 29, Section 7

Scottish Episcopal Church:

>Any person admitted to the Roll of Communicants of a congregation in terms of Canon 41, Section 2, or who is entitled to be so admitted, or the Provincial Officer for the Protection of Children and Vulnerable Adults appointed under Canon 65 may bring an accusation in the form prescribed in Section 4 of this Canon against a Bishop, Priest or Deacon holding any form of authorisation to minister in the Scottish Episcopal Church alleging that an offence has been committed by such accused under Section 2 of this Canon. Canon 54, Section 3

As we can see from this sampling of provisions of the canons of several Anglican bodies specifying who can make charges against a bishop in the province or body, the requirements of the ACNA canons, while not the most difficult, are among the more difficult of the requirements that were sampled.

Under the provisions of the canons it is not only difficult to bring a presentment against a bishop, it is also difficult for a bishop to get a fair shake. Note that neither in this section or elsewhere in the canons is there a provision requiring the articles of presentment to be served upon the bishop or the names of those making the charges to be provided to him. The bishop and his legal counsel would need such information to prepare an adequate defense. The bishop and his legal counsel is not given an opportunity to discuss the charges with the Board of Inquiry and to challenge the members of the Board of Inquiry. Under the provisions of the canons the Board of Inquiry can conduct its investigation without the bishop’s knowledge. The Archbishop is not required to inform the bishop of the appointment of the Board of Inquiry. If the Board of Inquiry completes its investigation and determines the existence of no probable cause to try the bishop for violation of Canon IV.2, it is not required to inform the bishop that he has been subject of an investigation. The Archbishop is also not required to inform the bishop. The Board of Inquiry is required to make a public declaration of its findings if it finds in the course of its investigation probable cause to put the bishop on trial for violation of Canon IV.2. It is not required to provide the bishop and his legal counsel with the record of its investigation, the testimony that it gathered, and the conclusions that it drew from this testimony, all of which the bishop and his legal counsel would also need to prepare an adequate defense.

While the canons require judicatories to provide an adviser to deacons and presbyters and their legal counsel to assist them in their defense, they make no such provisions for bishops.

While, as we shall see the canons make provision for the inhibition of a bishop under presentment, they do not require it. In the case of minor violations of Canon IV.2 the requisite number of senior bishops may choose not to inhibit the bishop pending the outcome of the investigation of the Board of Inquiry. The lack of any provision to notify the bishop of the charges made against him or inform him of the appointment of a Board of Inquiry cannot be justified on the grounds that he would learn of the charges and the appointment of the Board of Inquiry at the time he was inhibited. The canons do not require the inhibiting bishops to inform the accused bishop of why they are inhibiting him.

Under English ecclesiastical law, under the provisions of the Bishops (Retirement) Measure of 1951, if a complaint is sent to the archbishop of a province that a bishop of a diocese in the province or a suffragan bishop commissioned by a bishop of a diocese in the province has been guilty of an offense or offenses, and the complaint if it is signed by five beneficed clergy in the diocese and by five lay members of the diocesan conference of that diocese, or if the archbishop is otherwise satisfied that it is worthy of investigation, he must call into consultation three bishops of his selection from a panel of bishops appointed by the Upper House of Convocation of the province to consider it; if he and they, or a majority of them, decide that the complaint is serious and the matter is not one which can otherwise be dealt with satisfactorily, the archbishop must refer the complain to the Upper House of Convocation for inquiry and report. That House, unless of the opinion that the complaint is unfounded must refer the complaint to a commission appointed by them for the purpose, consisting of, unless they otherwise determine, members of the Upper House who must invite to act as their legal assessor the official principal, or judge, of the province or a deputy nominated by him and approved by the archbishop. This deputy must be person holding or having high judicial office or be a barrister of not less than ten years’ standing.

The archbishop must authorize the complainants if they are willing, or if none is willing, some other person or persons to conduct the proceedings before the commission as promoters.

The registrar of the province must give to the promoters and to the bishop against whom the complaint is made not less than 15 days’ notice of the time and place of the hearing of the complaint. At the hearing the commission must inquire into the complaint. The commission has power to regulate its own procedure, subject to any directions given by the Upper House of Convocation. The proceedings, however, must, in general, be public. The commission has the same power of administering oaths and requiring the production of documents as the High Court may exercise. The commission may award costs against either party.

The decision of the commission must be that of a majority of the members. The report must be sent to the Upper House of Convocation of the province through the president. It must state whether the complaint is founded or whether any of the charges contained in the complaint have been admitted by or proved against the bishop, and if so which of them. A copy of the report must be sent to the bishop.

If the commission reports that the complaint is unfounded the Upper House of Convocation must declare it to be unfounded. In any other case the Upper House of Convocation may decide to take no further action, censure the bishop, or request the archbishop to declare the bishopric vacant. In the latter case the archbishop may declare the bishopric vacant but the declaration is not effective unless and until confirmed by Her Majesty the Queen in Council.

If a complaint alleging that the archbishop has been guilty of conduct unbecoming the office and work of an archbishop or of serious persistent or continuous neglect of duty is sent to the two senior diocesan bishops of his province and the complaint is signed by five clergymen holding benefices in the diocese of the archbishop against whom the complaint is made and five lay members of the diocesan conference of that diocese, or if the two senior bishops are otherwise satisfied that the complaint is worthy of investigation they must call into consultation such three bishops from the panel as they may select. If the five bishops thus constituted or a majority of them determine that the complaint is serious and that the matter cannot otherwise dealt with satisfactorily the two senior bishops must refer the complaint to the Upper House of Convocation of the archbishop’s province for inquiry and report.

Only complaints that might be entertained against a bishop may be entertained against an archbishop. The subsequent proceedings and powers of the Upper House and of any commission appointed by the Upper House are the same as in the case of a bishop, except that all the functions, powers, and duties performed and exercised by the archbishop when there has been a complaint against a bishop are performed by the two senior diocesan bishops of the province.

If, after investigation of the complaint the Upper House requests the two senior bishops to declare the archbishopric of the archbishop vacant they may do so, but such declaration does not take effect unless and until it is confirmed by Order in Council.

The Canonical Provision for the Investigation of Rumors affecting a Bishop’s Character. While it may not be easy to bring a presentment against an ACNA bishop, ACNA bishops may, with the agreement of two of their fellow bishops, demand an investigation if he has “reason to believe that there are in circulation rumors, reports, or allegations affecting his personal or official character.” He may make this demand to the Archbishop, the Archbishop’s delegate, or the College of Bishops. Upon receipt of this demand the Archbishop must appoint a Board of Inquiry. This is an unusual canonical provision not found in the existing constitutions and canons of the Anglican provinces that I have examined other than the canons of the Episcopal Church and the Anglican Church of Rwanda. According to the provisions of Canon IV.3.23 (c) of the Episcopal Church’s canons a bishop may, “with the advice and consent of any two bishops” of the Episcopal Church, demand such an investigation from the Presiding Bishop who is required to cause the matter to be investigated and to report the results to the requesting bishop. It does not specify how the investigation should be conducted. I also found similar provisions for the investigation of rumors and reports in the Rwandan canons. Canon IV.4.2-5 appears to be adapted from these provisions, from the provisions of Sections 3-7 of Canon 32, Of Presentments in the Episcopate, of the Rwandan canons:

Section 3 – Response to Rumors
Whenever a bishop shall have reason to believe that there are in circulation rumors, reports, or allegations affecting his personal or official character, he may demand in writing of the Primate or his delegate, otherwise the College of Bishops, that investigation of such rumors, reports and allegations be made.

Section 4 – Board of Inquiry
The Primate or his delegate, upon receipt of such demand shall select a Board of Inquiry of five priests and five lay communicants, none of whom shall belong to the diocese of the accused, of whom eight shall form a quorum.

Section 5 –Process of Inquiry
The Board of Inquiry shall investigate such rumors or reports as the case may be. In conducting the investigation, the Board shall hear the accusations and such proof as the accusers may produce, and shall determine whether, upon matters of law and fact, as presented to them, there is ground to put the accused to trial.

Section 6 - Confidentiality
The testimony shall be recorded and transcribed and shall be preserved in the archives of the College of Bishops. The proceedings of the Board shall be private.

Section 7 – Findings of the Board of Inquiry
If in the judgment of the majority of the whole Board of Inquiry there is sufficient ground to present the accused bishop for trial, it shall make a public declaration to that effect.

Section 3, Canonical Investigation, of Canon 30, Of Offenses against Bishops, Priests, and Deacons requires “each Diocese and/or the Province” to “appoint a canonical investigator to ascertain the worth of the accusations and make a recommendation to the ecclesiastical authorities as to whether further juridical process should be pursued.” This suggests that a canonical investigator may be appointed to investigate charges against a bishop but does not specify by whom the appointment would be made. The use of the phrase “accused bishop” in Section 7 of Canon 32, on the other hand, does suggest that the provisions of Sections 3 through 7 of this canons are delineating how charges against bishops may be investigated as well as “rumors, reports, and allegations” affecting the character of a bishop. Sections 3 through 6, however, do appear to be referring to accused as a person or persons including but not limited to bishops. The Rwandan canons are murky on who actually investigates charges made against a bishop—a canonical investigator, a board of inquiry, or the board of inquiry acting as a canonical investigator.

I also found similar provisions for the investigation of rumors and reports in the canons of two Anglican bodies outside of the Anglican Communion. Canon 30, Of a Board of Inquiry, of the canons of the Anglican Province of America as adopted in 1998 and amended in 2002 and 2004 contains a similar provision as does Canon 30, Of Diocesan Boards of Inquiry, of the canons of the Reformed Episcopal Church as adopted in October 2008. This is not found in the canons of the REC as revised through May 1984. Canon 29, Section 7 of the APA revised canons requires the Presiding Bishop to impanel a board of inquiry composed of himself and two priests to determine the adequacy of the presentment of a bishop. Canon 29, Section 7, of the REC revised canons requires the empanelment of a special board of inquiry to investigate the charges made against a bishop and to determine the adequacy of the presentment. This special board of inquiry consists of the presiding bishop, or a bishop appointed by him, acting as its president, two other bishops, two presbyters, and two laypersons appointed by the general committee. Only the president of the special board of inquiry must not be from the diocese of the accused.

The Rwandan canons were adopted by the Rwandan Provincial Synod in November 2007, endorsed by the Rwandan College of Bishops on January 2008, and promulgated in March 2008. The similarities between the Episcopal, Rwandan, REC, and APA canons are not coincidental. They are all derived from Canon 56, Sections 4-9, of the canons of the Protestant Episcopal Church USA as revised through 1967. A number of omissions from the original provisions of these sections of Canon 56 in the Rwandan adaptation of the provisions of the same sections account for the murkiness of that adaptation. The provisions of Canon IV.4.2-5 are based on the Rwandan adaptation. They contain further omissions that open them to interpretation as not only applying to bishops but to other clergy and laity. This is one of a number of drawbacks of the ACNA “minimalist” canons.

The omissions from the Rwandan adaptation of the original provisions of Canon 56, Sections 4-9 contain a number of important procedural safeguards. The Presiding Bishop must convene a panel of 3 to 7 bishops who weigh the merits of the charges or demand. The Presiding Bishop and the panel of bishops select the Board of Inquiry and not the Primate or his delegate alone as in the Rwandan adaptation.

Sec. 5. The Presiding Bishop, upon receipt of such written charges or such written demand, shall summon not less than three nor more than seven Bishops, and unless a majority of them shall determine that such charges, if proved, would constitute no canonical offense, they shall select a Board of Inquiry of five Presbyters and five Laymen, none of whom shall belong to the Diocese of the accused, of whom eight shall form a quorum….

If the Board finds insufficient ground for a presentment, the accused Bishop is furnished with a true copy of the charges and the Board’s finding:

Sec. 6. If in the judgment of the majority of the whole Board of Inquiry, there is sufficient grounds to put said Bishop upon trial, they shall cause the Church Advocate to prepare a presentment, which shall be signed by such Board as shall agree thereto, and which shall be transmitted with the certificate of the determination of the Board to the Presiding Bishop.

If a majority of the whole Board shall determine that there is not sufficient ground to present the accused Bishop for trial, it shall forward the charges and a certificate of the finding thereon to the Presiding Bishop. He shall send the same to the Secretary of the House of Bishops, by him to be deposited in the archives of the House; and a true copy of these papers shall be given to accused Bishop. [my emphasis] No further proceedings shall be had by way of presentment of such charges, except that any communicant of this Church in good standing may make and present to the Presiding Bishop his affidavit alleging the discovery of new evidence as to the facts charged and setting forth what such evidence is; and upon receipt thereof the Presiding Bishop shall decide whether the affidavit does or does not state grounds which in his opinion are sufficient for the reopening of the case. If the Presiding Bishop shall be of the opinion that the affidavit states grounds sufficient to justify reopening the case, he shall reconvene the Board, which shall determine, first, whether as a matter of fact the evidence set forth in such affidavit is really new evidence and not merely cumulative; and if the Board shall find that the evidence so tendered is new, it shall proceed to receive and consider such evidence, and any further evidence that it may deem proper to receive; and in the light of all the evidence the Board shall determine whether there are sufficient grounds for presentment. If the Board, by a majority of its members, shall decide that there is any such sufficient ground, it shall certify its decision as in this Canon heretofore provided.

The accused Bishop may request the selection of a new Board of Inquiry if the Board is unable to agree upon a finding of sufficient or insufficient ground for a presentment:

Sec. 7. In case a majority of the whole Board shall fail to find either that there is, or that there is not, sufficient ground to present the accused Bishop for trial, it shall certify the fact of its inability to agree upon any such finding to the Presiding Bishop, who, at the request of the accused Bishop, may select a new Board in the manner provided in Section 5, who shall consider the case de novo [my emphasis].

A true copy of the presentment is served on the accused Bishop:

Sec. 8. In case any presentment shall be made to the presiding Bishop as hereinbefore provided, he shall at once transmit the same to the President of the Court for the Trial of a Bishop, and shall cause a true copy of the presentment to be served upon the accused Bishop, in the manner provided in Canon 54.

Who will perform the duties of the Presiding Bishop under the canon in case he is the accuser or the accused or otherwise disabled is prescribed:

Sec. 9. In case the Presiding Bishop shall be either an accuser or the accused, or shall otherwise be disabled, his duties under this Canon shall be performed by the Bishop who, according to the rules of the House of Bishops, becomes its Presiding Office in case of the disability of the Presiding Bishop of the Church.

From these omissions it is clear that the original provisions of Canon 56, Sections 4-9 of the PECUSA canons were intended to deal with the problem of bishops’ spreading malicious rumors or false reports about their fellow bishops. However, the adaptation of these provisions in the ACNA canons can be interpreted as enabling a bishop to initiate an inquiry against any clergy of the ACNA purely on the basis of suspicion. The threat of such an inquiry may be used to suppress any differences in opinion from those of the bishop in the judicatory or sub-provisional jurisdiction that the bishop oversees. It may also be used a fishing expedition for anything that might be used to bring a presentment against any clergy who are at variance with the bishop on any matter. It has a high potential for misuse.

In its investigation of rumors and reports, the canons require that the proceedings of the board of inquiry must be private. There is no mechanism such as a “sunshine” provision in the canons by which those who are the subjects of its investigation can cause these proceedings to be made public and can demand a copy of the record of such proceedings.

In order to make a finding of probable cause to put the accused bishop on trial, two-thirds of the board of the inquiry must agree to the finding. Only a majority of the whole board of inquiry is required under the Rwandan disciplinary canons and the PECUSA disciplinary canons from which their provisions were adapted. Only a majority of the members of a Church of England commission is required for a finding of a complaint being founded. Requiring two-thirds of the board of inquiry to concur with a finding of probable cause reduces the likelihood that a bishop accused of apostasy from the Christian faith, heresy or false doctrine, abuse of ecclesiastical power, or other offenses will be brought to trial.

In the adoption of the Rwandan method of appointment of members of the Board of Inquiry in Canon IV.4.2-5 we see a strong intimation of the arrogation of metropolitical authority to the Archbishop to which I refer in the introduction to this article.

The Board of Inquiry that can be appointed under provisions of Canon 56 does bear some similarity to the commission that can be appointed under the provisions of the Church Discipline Act of 1840, suggesting that this Board of Inquiry may have evolved from this type of commission appointed to investigate a charge or report of misconduct involving a clergyman of a diocese. The latter resembles an English coroner’s juror sworn to examine evidence, hear testimony, and render a verdict in an coroner’s inquest on a body supposed killed by violence, accident, or foul play, or an English grand jury inquiring into indictments, or written accusations, laid before the grand jury before they go to trial.