D079 Clarify Orders and Sentences in Title III, Title IV, and Title V
Resolved, the House of ________________ concurring,
That Canon III.7.9 is hereby amended to read as follows:
Sec. 9. If a Deacon submitting the writing described in Section 8 of this Canon be the subject of information concerning an Offense that has been referred to an Intake Officer or a Respondent in a pending disciplinary matter as defined in Title IV of these Canons, the Ecclesiastical Authority to whom such writing is submitted shall not consider or act upon the written request unless and until the disciplinary matter shall have been resolved by a dismissal that is no longer subject to review or a Sentence pronounced pursuant to an Accord , Accord, or Order and the time for appeal or rescission of such has expired.; and be it further
Resolved, That Canon III.9.11 is hereby amended to read as follows:
Sec. 11. If a Priest submitting the writing described in Section 8 or 9 of this Canon be the subject of information concerning an Offense that has been referred to an Intake Officer or a Respondent in a pending disciplinary matter as defined in Title IV of these Canons, the Ecclesiastical Authority to whom such writing is submitted shall not consider or act upon the written request unless and the disciplinary matter shall have been resolved by a dismissal that is no longer subject to review or a Sentence pronounced pursuant to an Accord , Accord, or Order and the time for appeal or rescission of such has expired.; and be it further
Resolved, That Canon III.12.7(c) is hereby amended to read as follows:
Sec. 7. (c) In the case of the release and removal of a Priest from the ordained Ministry of this Church as provided in this Canon, a declaration of release and removal shall be pronounced by the Bishop in the presence of two or more Priests, and shall be entered in the official records of the Diocese in which the Priest being released and removed is canonically resident. The Bishop who pronounces the declaration of release and removal as provided in this Canon shall give notice thereof in writing to every Member of the Clergy, each Vestry, the Secretary of the Convention and the Standing Committee of the Diocese in which the Priest was canonically resident; and to all Bishops of this Church, the Ecclesiastical Authority of each Diocese of this Church, the Presiding Bishop, the Recorder of Ordinations, the Secretary of the House of Bishops, the Secretary of the General ConventionHouse of Deputies, the President of the House of Deputies, The Church Pension Fund, and the BoardOffice for Transition Ministry, the Archives of The Episcopal Church, and to all Archbishops and Metropolitans, and to all Presiding Bishops of Churches in communion with this Church.; and be it further
Resolved, That Canon III.12.7(b) is hereby amended to read as follows:
Sec. 7. (b) If a Bishop submitting the writing described in Section 7(a) of this Canon be the subject of information concerning an Offense that has been referred to an Intake Officer or a Respondent in a pending disciplinary matter as defined in Title IV of these Canons, the Presiding Bishop shall not consider or act upon the written request unless and until the disciplinary matter shall have been resolved by a dismissal that is no longer subject to review or a Sentence pronounced pursuant to an Accord, Accord, or Order and the time for appeal or rescission of such has expired.; and be it further
Resolved, That Canon IV.4.1(d) is hereby amended to read as follows:
Sec. 1. (d) abide by the requirements of any applicableSentence pronounced pursuant to an Accord or Order, or any applicable Pastoral Direction, restriction on ministry, or placement on Administrative Leave issued under Canon IV.7; and be it further
Resolved, That Canon IV.12.12 is hereby amended to read as follows:
Sec. 12. The Respondent or the Church Attorney may object to an Order issued by the Conference Panel by giving written notice of the objection to the president of the Conference Panel within fifteen days following the date on which the Order is issued. Upon receipt of the notice of objection, the president of the Conference Panel shall notify and provide copies of the notice of objection to the Bishop, president of the Disciplinary Board and the non-objecting party. The Order shall thereupon not be effective, and the president of the Disciplinary Board shall promptly notify members of the Hearing Panel and refer the matter to the Hearing Panel.; and be it further
Resolved, That Canon IV.14.5 is hereby amended to read as follows:
Sec. 5. The Bishop Diocesan shall have twenty days from the date on which the Accord is entered effective in which to advise in writing the Respondent, the Respondent’s Advisor, the Respondent’s counsel, if any, the Complainant, the Complainant’s Advisor, the Church Attorney and the Conciliator or the president of the Conference Panel or Hearing Panel whether the Bishop Diocesan will pronounce the Sentence or accept the other terms of the Accord as recommended. The Bishop Diocesan shall advise that he or she will (a) pronounce the Sentence as recommended, or (b) pronounce a lesser Sentence than that recommended and/or, (c) reduce the burden on the Respondent of any of the other terms of the Accord. The Bishop Diocesan shall pronounce Sentence not sooner than twenty days following the date on which the Accord is entered effective and not later than forty days following such date. The Bishop Diocesan’s pronouncement of a lesser Sentence than that recommended or other modification shall not affect the validity or enforceability of the remainder of the Accord. In the case of an Accord under Canon IV.9, the Bishop Diocesan shall pronounce Sentence not sooner than the day after the date the Accord becomes effective and irrevocable.; and be it further
Resolved, That Canon IV.14.8 is hereby amended to read as follows:
Sec. 8. (a) Except for an Order from a Conference Panel to which the Respondent or Church Attorney has timely filed a notice of objection, the Bishop Diocesan shall have twenty fifteen days from the date of the issuance effectiveness of the Order in which to advise in writing the Respondent, the Respondent’s Advisor, the Complainant, the Complainant’s Advisor, the Church Attorney, and the president of the Conference Panel or Hearing Panel (whichever Panel issued the Order) whether the Bishop Diocesan will pronounce the Sentence or accept the other terms of the Order as recommended. The Bishop Diocesan shall advise that he or she will (a) pronounce the Sentence as recommended or (b) pronounce a lesser Sentence than that recommended and/or (c) reduce the burden on the Respondent of any of the other terms of the Order.
(b) The Bishop Diocesan shall pronounce Sentence not sooner than twenty-five days following the issuance effectiveness of the Order and not later than forty days following the issuance effectiveness of the Order. Notwithstanding anything in this section to the contrary, no Sentence shall be pronounced while an appeal of the matter is pending. However, the Bishop Diocesan may, while an appeal is pending, place restrictions upon the exercise of the Respondent’s ministry, or place the Respondent on Administrative Leave, or continue any such restriction or Administrative Leave as was in effect at the time of the issuance of the Order. The Bishop Diocesan’s pronouncement of a lesser Sentence than that recommended or other modification shall not affect the validity or enforceability of the remainder of the OrderSentence.
(c) Following the receipt from the Provincial Court of Review of a notice of determination of an appeal of an Order, other than a dismissal of the matter or a direction granting a new hearing, the Bishop Diocesan shall have fifteen days in which to advise in writing the Respondent, the Respondent’s Advisor, the Complainant, the Complainant’s Advisor, the Church Attorney, and the president of the Conference Panel or Hearing Panel (whichever Panel issued the Order) whether the Bishop Diocesan will pronounce the Sentence or accept the other terms of the Order as recommended. The Bishop Diocesan shall advise that he or she will (a) pronounce the Sentence as recommended or (b) pronounce a lesser Sentence than that recommended and/or (c) reduce the burden on the Respondent of any of the other terms of the Order. The Bishop Diocesan shall then pronounce Sentence not sooner than twenty-five days following the receipt of the notice of determination of the appeal and not later than forty days following such receipt.; and be it further
Resolved, That Canon IV.14.10 is hereby amended to read as follows:
Sec. 10. An Accord under Canon IV.9 shall be effective as provided in Canon IV.9.3. An Accord under Canon IV.10 or IV.12 shall be effective thirty five days following the date on which the Accord is signed by the Conciliator or the president of the Panel and sent as provided in Canon IV.14.4. An Order under Canon IV.12.11 is effective five thirty days following the date on which the Order is issued and sent to the parties required by canon.; and be it further
Resolved, That Canon IV.14.12 is hereby amended to read as follows:
Sec. 12. If there has been no objection by the Respondent or the Church Attorney to the Order(s), notice of Notice of all Sentences pronounced pursuant to Accords and Orders which have become effective shall be given without delay as follows:
(a) In the case of any Accord or Order pertaining to a Priest or Deacon, the Bishop Diocesan shall give notice of the Accord or OrderSentence to every Member of the Clergy in the Diocese, each Vestry in the Diocese, the Secretary of Convention, and the Standing Committee of the Diocese, which shall be added to the official records of the Diocese; to the Presiding Bishop, to all other Bishops of the Church, and where there is no Bishop, to the Ecclesiastical Authority of each Diocese of the Church; to the President of the House of Deputies; to the Recorder of Ordinations; to the Office of Transition Ministry; the Archives; and to the Secretary of the House of Bishops and the Secretary of the House of Deputies.
(b) In the case of any Accord or Order pertaining to a Bishop, the Presiding Bishop president of the Disciplinary Board for Bishops shall give notice of the Accord or Order OrderSentence to the Secretary of Convention and the Ecclesiastical Authority and the Standing Committee of the Diocese in which the Bishop was canonically resident, to all Bishops of this Church, the Ecclesiastical Authority of every Diocese of the Church, to the Recorder of Ordinations, to the Office offor Transition Ministry, to the Church Pension Fund, to the Archives, to the President of the House of Deputies, to the Secretary of the House of Deputies, and to the Secretary of the House of Bishops, and to all Archbishops and Metropolitans, and to all Presiding Bishops of Churches in communion with this Church.
(c) All notices given pursuant to this Canon shall reference the Canon(s), section(s) and subsection(s) specifying the Offense which is the subject of the Accord or Order. In addition to setting forth the Sentence pronounced, the notice shall set forth any other terms of the Accord or Order that are accepted by the Bishop Diocesan or Presiding Bishop which place restrictions upon the exercise of the ministry of the Member of the Clergy.
(d) Similar notice shall be given whenever there is any modification or remission of any Order Sentence for which notice has previously been given pursuant to this Canon.; and be it further
Resolved, That Canon IV.15.2 is hereby amended to read as follows:
Sec. 2. Within forty twenty days after issuance effectiveness of an Order by a Hearing Panel, the Respondent or the Church Attorney may appeal to the Provincial Court of Review, by serving written notice of the appeal upon the Bishop Diocesan, with copies of the notice to the presidents of the Hearing Panel and the Province. The notice of appeal shall be signed by the Respondent's counsel or the Church Attorney and shall include a copy of the Order from which the appeal is taken and shall state the grounds of the appeal.; and be it further
Resolved, That Canon IV.17.6 is hereby amended to read as follows:
Sec. 6. The provisions of Canons IV.14.1(d) and IV.14.6(c) pertaining to recommendations that a Respondent be admonished or suspended or deposed from ministry shall not apply where the Respondent is a Bishop. Where the Respondent is a Bishop, an Accord or Order may provide for the admonishment, suspension, or deposition of the Respondent. In such event, the Sentence of admonishment, suspension, or deposition, together with such other terms as may be contained in the Accord or Order, shall be pronounced by the president of the Disciplinary Board for Bishops. The president shall have no discretion to decline to pronounce the Sentence or to pronounce a lesser Sentence. Where an Accord provides for the admonishment, suspension, or deposition of a Respondent who is a Bishop, the president shall pronounce Sentence within thirty days after the date on which the Conciliator or the president signs the Accord becomes effective pursuant to Canon IV.17.9. Where an Order provides for the admonishment, suspension, or deposition of a Respondent who is a Bishop, the president shall pronounce Sentence not sooner than forty twenty-five days following the issuanceeffectiveness of the Order and not later than sixtyforty days following the issuanceeffectiveness of the Order. Notwithstanding anything in this section to the contrary, no Sentence shall be pronounced while an appeal of the matter is pending. However, the president may, while an appeal is pending, place restrictions upon the exercise of the Respondent's ministry, or place the Respondent on Administrative Leave, or continue any such restriction or Administrative Leave as was in effect at the time of the issuance of the Order. Following the receipt from the Court of Review for Bishops of a notice of determination of an appeal of an Order, other than a dismissal of the matter or a direction granting a new hearing, the president shall then pronounce Sentence not sooner than twenty-five days following the receipt of the notice of determination of the appeal and not later than forty days following such receipt.; and be it further
Resolved, That Canon IV.18 is hereby amended to read as follows:
CANON 18: Of Modification and Remission of Orders Sentences
Sec. 1. Any Member of the Clergy who is the subject of an Order which has become effective a Sentence may apply to the Bishop Diocesan of the Diocese from which the Order Sentence issued, or the Presiding Bishop in the case of a Bishop, for modification or remission of the OrderSentence. If the Bishop is satisfied that sufficient reasons exist for granting the modification or remission sought, in whole or in part, the procedures provided in this Canon for modification or remission shall apply.
Sec. 2. In the case of an Order a Sentence pertaining to a Priest or Deacon, any provision of any Order Sentence other than a provision recommendingSentence of deposition of the Priest or Deacon may be modified or remitted by the Bishop Diocesan of the Diocese from which the OrderSentence issued with the advice and consent of two-thirds of the members of the Disciplinary Board.
Sec. 3. In the case of a Sentence of deposition of a Priest or Deacon pursuant to an Order, such deposition may be remitted and terminated by the Bishop Diocesan of the Diocese from which the Order Sentence issued only upon the following conditions: (a) the remission shall be done with the advice and consent of two-thirds of the members of the Disciplinary Board of the Diocese from which the Order Sentence issued; (b) the proposed remission, with the reasons therefor, shall be submitted to the judgment of five of the Bishops Diocesan whose Dioceses are nearest to the Diocese from which the OrderSentence issued, and the Bishop Diocesan shall receive in writing from at least four of those Bishops their approval of the remission and their consent thereto; (c) if the person deposed maintains legal residence or canonical residence in a Diocese other than the Diocese from which the Order Sentence issued, the proposed remission, with the reasons therefor, shall be submitted to the judgment of the Bishop(s) Diocesan of the Diocese(s) of legal and canonical residence and such Bishop(s) shall give his or her (or their) written approval of the remission and consent thereto; and (d) before such remission, the Bishop Diocesan shall require the person deposed, who desires to be restored to the ordained ministry, to subscribe to the declaration required in Article VIII of the Constitution.
Sec. 4. In the case of an Order a Sentence pertaining to a Bishop, any provision of the OrderSentence may be modified or remitted by the president of the Disciplinary Board for Bishops with the advice and consent of a majority of the members of the Board and the Bishops who are then serving on any Provincial Court of Review.
Sec. 5. In the case of any Order deposing deposition of a Member of the Clergy for abandoning the Church, no application for remission shall be received by the Bishop Diocesan until the deposed person has lived in lay communion with the Church for not less than one year next preceding application for the remission.
Sec. 6. No OrderSentence may be modified or remitted unless the Member of the Clergy, the Church Attorney and each Complainant have been afforded sufficient opportunity to be heard by the Disciplinary Board, or the Disciplinary Board together with the Bishops who are then serving on any Provincial Court of Review, as the case may be, as to why the proposed modification or remission should or should not be permitted.; and be it further
Resolved, That Canon IV.19.3 is hereby amended to read as follows:
Sec. 3. No secular court shall have authority to review, annul, reverse, restrain or otherwise delay any proceeding under this Title. No action shall be brought in any secular court to enforce the terms or provisions of any Accord or Order or Sentence unless otherwise expressly provided therein.; and be it further
Resolved, That Canon IV.19.10(f) is hereby amended to read as follows:
Sec. 10. (f) The reasonable costs and expenses of providing Advisors made available by the Bishop Diocesan shall be the obligation of the Diocese in which the matter of Discipline is proceeding unless otherwise provided in a Sentence implementing an Accord or Order. The reasonable costs and expenses of providing Advisors chosen by the Respondent or Complainant and not made available by the Bishop Diocesan shall be the obligation of such Respondent or Complainant unless otherwise provided in a Sentence implementing an Accord or Order.; and be it further
Resolved, That Canon IV.19.23 is hereby amended to read as follows:
Sec. 23. Except as expressly provided in this Title, applicable Diocesan Canon, or in a Sentence implementing any Accord or Order, all costs, expenses and fees, if any, shall be the obligation of the party, person or entity incurring them.; and be it further
Resolved, That Canon IV.19.26 is hereby amended to read as follows:
Sec. 26. Wherever in this Title it is provided that any communication, deliberation, investigation or proceeding shall be confidential, no person having knowledge or possession of confidential information derived from any such communication, deliberation, investigation or proceeding shall disclose the same except as provided in this Title, in any Accord or Order or a Sentence pursuant to such Accord or Order, or as required by any applicable law.; and be it further
Resolved, That Canon IV.19.30(b) is hereby amended to read as follows:
(b) The Bishop Diocesan shall:
(1) promptly deliver to The Archives of the Episcopal Church a copy of any Accord or Order which has become effective and any Sentence pronounced thereon and a record of any action of remission or modification of any Order Sentence, and
(2) provide for the permanent preservation of copies of all Accords and Orders and Sentences by means which permit the identification and location of each such copy by the name of the Member of the Clergy who is the subject thereof.; and be it further
Resolved, That Canon V.4.1(a)(2) is hereby amended to read as follows:
Sec. 1. (a)(2) upon any restriction on exercise of ministry;, placement on Administrative Leave;, or pronouncement of a Sentence pursuant to entry of an Order or Accord, which Order or Accord includes a Sentence of Admonition, Suspension, or Deposition of upon a Member of the Clergy then serving on the body;
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.