D079 Clarify Orders and Sentences in Title III, Title IV, and Title V
The current revision of Title IV provides for giving notice of Accords and Orders. The previous revision provided instead for giving notice of Sentences. With one limited exception regarding sentencing of Bishops, Accords and Orders are merely recommendations to the sentencing Bishop, who has discretion to impose a lesser sentence. So what is contained in an Accord or Order may not correspond to the actual sanction imposed on the member of the clergy. If the sanction is a suspension of ministry or deposition, this is a significant fact for those to whom the notice is directed. Yet the current requirements for notices of Accords and Orders only require a recitation of the subsections of Canon IV.3 or IV.4 that the Offense involved violated. Neither the facts of the Offense, the name of the Respondent, nor the sanction recommended need be specified (these must go into the Accord or Order but not the notice). All that is known is that a Title IV proceeding has come to a close. Or maybe not even that: A notice of Accord or Order must "be given without delay" (Canon IV.13.12); yet the parties have forty days (IV.15.2) to file an appeal from an Order, possibly even after Sentence upon the Order is given (20 to 40 days after issuance (IV.14.8(b)). An appeal may vacate the Order, which has then been given for no purpose. This proposal returns to a system of giving notices of Sentences. Restrictions on ministry should be included in the notice, so that the recipients can know that the clergyperson in question cannot fully function as a cleric. In order to accomplish this, the proposal addresses several definitional problems. "Effectiveness" of Orders and Accords should not be an arbitrary thirty days but should flow from their being sent to those parties that have the right to act upon them, taking into consideration the five-day period of Canon IV.19.8. The proposal for Canon IV.14.10 collects all effectiveness provisions not elsewhere mandated. That for IV.14.5 measures time from such effective date. Canon IV.12.12 is amended to clarify that an objected-to Conference Panel Order is not effective. For the prohibition on sentencing during an appeal to be practical, the time before sentencing is increased to twenty-five days and the time for appeal is shortened to twenty days (a not unreasonable time). Otherwise sentencing can occur prior to the time an appeal is timely taken, but there are no current provisions for a stay of such sentence. The last sentence in IV.14.8(b) is amended: Orders are not themselves enforceable; only Sentences pronounced pursuant to Orders are enforceable to the extent that the sentencing Bishop chooses to include their provisions. A new IV.14.8(c) is added to provide for the same notice provisions for sentencing following an appeal that does not dismiss the matter or direct a new hearing. Pre-revision Title IV provided for notice to be given of Sentences and not of Trial Court Judgments (Canon IV.12.9 & .11 (2006)). Since the Sentence is the operative document,that is what should be noticed. This is included in the proposed changes to IV.14.12. In addition, since it is the president of the Disciplinary Board for Bishops that pronounces a Sentence on a Bishop, that person, rather than the Presiding Bishop, should be the person to send notices. As to modifications and remissions, since an Order or Accord is only a recommendation to the Bishop for sentencing, what really needs to be modified or remitted is the Sentence itself, which would include an admonition, suspension, or deposition, in addition to such "other terms" of the Accord or Order as the Bishop accepts. See Canon IV.13 (2006). While the current Canon only speaks to modifications or remissions arising from an Order, there is no reason that issues arising from an Accord should not be included as well. As to Section 5, note that a deposition for abandonment is not pursuant to any Order, which by definition (IV.2) can only be issued by a Conference or Hearing Panel. This anomaly is an argument (there are many) for moving the Abandonment Canon (IV.16) from Title IV to Title III, since its procedures are outside the scope of the disciplinary structures established by Title IV. The notice provisions for release and removal of a Bishop in Canon III.12.7(c) are conformed to those for a Title IV Sentence (and vice versa) and names of offices corrected. Canon IV.17.6 on Sentences for Bishops varies from sentencing for other clergypersons in that Accords or Orders that would result in suspension or deposition cannot be given any lesser sanction by the sentencing Bishop, but it is silent on recommendations for admonition or for any other terms that may be included in the Accord or Order, where the sentencing Bishop could presumably refuse to admonish or could reduce or waive any restrictions on the Respondent, and no review of this is provided for. ("The president shall have no discretion to decline to pronounce the Sentence or to pronounce a lesser Sentence" only refers to the defined term "Sentence" which does not include those "other terms".) Also, the sentencing Bishop is just one Bishop chosen to be the president of the Disciplinary Board for Bishops, chosen either by vote or by seniority (IV.17.3). For sentencing following an Accord, the terms of the Accord will have been approved by the Presiding Bishop and a majority of the entire Board (IV.17.9), and for sentencing following an Order issued by a Conference or Hearing Panel consisting of three bishops, one other clergyperson, and one lay person, and possibly affirmed on appeal by a Court of Review of nine bishops. Despite the limited language directing only two points of departure from IV.14.1(d) and IV.14.6(c), I believe that it is the clear intention is that sentencing under these circumstances is a ministerial act, and the sentencing Bishop should not have discretion to unilaterally impose a lesser burden on the Respondent than the Accord or Order shall provide. Language is inserted to clarify this. The timing provisions in IV.17.6 for sentencing are also at strong variance from those for other clergy, although prior canon (IV.12.10 (2006)) mandated the same sentencing procedure as for other courts. This proposal conforms the time limits to those proposed for Canon IV.14.8(b). New language is added parallel to that for new IV.14.8(c) to provide for sentencing following an appeal. Miscellaneous conforming changes are proposed for IV.19 and for V.4.1. Minor conforming changes are proposed for III.7.9, III.9.11, and III.12.8(b). Clarification is added that any dismissal (as in by Intake Officer or subject to appeal by the Church Attorney) be final. The foregoing proposal was submitted to, but not acted upon by the Standing Commission on Structure, Governance, Constitution and Canons. Given its workload, this was only to be expected. I would recommend that this proposal be referred back to that body for further consideration over the next triennium, particularly considering the numerous other changes to Title IV proposed for this Convention.
Explanation
The current revision of Title IV provides for giving notice of Accords and Orders. The previous revision provided instead for giving notice of Sentences. With one limited exception regarding sentencing of Bishops, Accords and Orders are merely recommendations to the sentencing Bishop, who has discretion to impose a lesser sentence. So what is contained in an Accord or Order may not correspond to the actual sanction imposed on the member of the clergy. If the sanction is a suspension of ministry or deposition, this is a significant fact for those to whom the notice is directed. Yet the current requirements for notices of Accords and Orders only require a recitation of the subsections of Canon IV.3 or IV.4 that the Offense involved violated. Neither the facts of the Offense, the name of the Respondent, nor the sanction recommended need be specified (these must go into the Accord or Order but not the notice). All that is known is that a Title IV proceeding has come to a close. Or maybe not even that: A notice of Accord or Order must "be given without delay" (Canon IV.13.12); yet the parties have forty days (IV.15.2) to file an appeal from an Order, possibly even after Sentence upon the Order is given (20 to 40 days after issuance (IV.14.8(b)). An appeal may vacate the Order, which has then been given for no purpose. This proposal returns to a system of giving notices of Sentences. Restrictions on ministry should be included in the notice, so that the recipients can know that the clergyperson in question cannot fully function as a cleric. In order to accomplish this, the proposal addresses several definitional problems. "Effectiveness" of Orders and Accords should not be an arbitrary thirty days but should flow from their being sent to those parties that have the right to act upon them, taking into consideration the five-day period of Canon IV.19.8. The proposal for Canon IV.14.10 collects all effectiveness provisions not elsewhere mandated. That for IV.14.5 measures time from such effective date. Canon IV.12.12 is amended to clarify that an objected-to Conference Panel Order is not effective. For the prohibition on sentencing during an appeal to be practical, the time before sentencing is increased to twenty-five days and the time for appeal is shortened to twenty days (a not unreasonable time). Otherwise sentencing can occur prior to the time an appeal is timely taken, but there are no current provisions for a stay of such sentence. The last sentence in IV.14.8(b) is amended: Orders are not themselves enforceable; only Sentences pronounced pursuant to Orders are enforceable to the extent that the sentencing Bishop chooses to include their provisions. A new IV.14.8(c) is added to provide for the same notice provisions for sentencing following an appeal that does not dismiss the matter or direct a new hearing. Pre-revision Title IV provided for notice to be given of Sentences and not of Trial Court Judgments (Canon IV.12.9 & .11 (2006)). Since the Sentence is the operative document,that is what should be noticed. This is included in the proposed changes to IV.14.12. In addition, since it is the president of the Disciplinary Board for Bishops that pronounces a Sentence on a Bishop, that person, rather than the Presiding Bishop, should be the person to send notices. As to modifications and remissions, since an Order or Accord is only a recommendation to the Bishop for sentencing, what really needs to be modified or remitted is the Sentence itself, which would include an admonition, suspension, or deposition, in addition to such "other terms" of the Accord or Order as the Bishop accepts. See Canon IV.13 (2006). While the current Canon only speaks to modifications or remissions arising from an Order, there is no reason that issues arising from an Accord should not be included as well. As to Section 5, note that a deposition for abandonment is not pursuant to any Order, which by definition (IV.2) can only be issued by a Conference or Hearing Panel. This anomaly is an argument (there are many) for moving the Abandonment Canon (IV.16) from Title IV to Title III, since its procedures are outside the scope of the disciplinary structures established by Title IV. The notice provisions for release and removal of a Bishop in Canon III.12.7(c) are conformed to those for a Title IV Sentence (and vice versa) and names of offices corrected. Canon IV.17.6 on Sentences for Bishops varies from sentencing for other clergypersons in that Accords or Orders that would result in suspension or deposition cannot be given any lesser sanction by the sentencing Bishop, but it is silent on recommendations for admonition or for any other terms that may be included in the Accord or Order, where the sentencing Bishop could presumably refuse to admonish or could reduce or waive any restrictions on the Respondent, and no review of this is provided for. ("The president shall have no discretion to decline to pronounce the Sentence or to pronounce a lesser Sentence" only refers to the defined term "Sentence" which does not include those "other terms".) Also, the sentencing Bishop is just one Bishop chosen to be the president of the Disciplinary Board for Bishops, chosen either by vote or by seniority (IV.17.3). For sentencing following an Accord, the terms of the Accord will have been approved by the Presiding Bishop and a majority of the entire Board (IV.17.9), and for sentencing following an Order issued by a Conference or Hearing Panel consisting of three bishops, one other clergyperson, and one lay person, and possibly affirmed on appeal by a Court of Review of nine bishops. Despite the limited language directing only two points of departure from IV.14.1(d) and IV.14.6(c), I believe that it is the clear intention is that sentencing under these circumstances is a ministerial act, and the sentencing Bishop should not have discretion to unilaterally impose a lesser burden on the Respondent than the Accord or Order shall provide. Language is inserted to clarify this. The timing provisions in IV.17.6 for sentencing are also at strong variance from those for other clergy, although prior canon (IV.12.10 (2006)) mandated the same sentencing procedure as for other courts. This proposal conforms the time limits to those proposed for Canon IV.14.8(b). New language is added parallel to that for new IV.14.8(c) to provide for sentencing following an appeal. Miscellaneous conforming changes are proposed for IV.19 and for V.4.1. Minor conforming changes are proposed for III.7.9, III.9.11, and III.12.8(b). Clarification is added that any dismissal (as in by Intake Officer or subject to appeal by the Church Attorney) be final. The foregoing proposal was submitted to, but not acted upon by the Standing Commission on Structure, Governance, Constitution and Canons. Given its workload, this was only to be expected. I would recommend that this proposal be referred back to that body for further consideration over the next triennium, particularly considering the numerous other changes to Title IV proposed for this Convention.