Copyright 1995 by Louie Crew. Freely quote and distribute in e-copy. Do not publish in hard copy unless you send a copy to L.C., Box 30, Newark 07101
Note: For readability, I have edited this to form complete sentences;
in my notes, many pieces were in fragments. Thus, this is not an exact
transcript. I have tried to be as accurate as possible, but obviously,
errors creep in in this type of manuscript. About any matters of
argument, one should consult the official court record when it
becomes available, as it surely will, since this is only the second heresy
trial in the history of the Episcopal Church.
All nine members of the court were present, (from the audience's left
to right): Rt. Rev. Roger White, Bishop of Milwaukee; Rt. Rev.
Douglas Theuner, Bishop of New Hampshire; Rt. Rev. Andrew
Fairfield, Bishop of North Dakota; Rt. Rev. Cabell Tennis, Bishop of
Delaware; Rt. Rev. Edward Jones, Chief Justice, Bishop of
Indianapolis; Rt. Rev. Arthur Walmsley, Retired Bishop of
Connecticut; Rt. Rev. Fred Borsch, Bishop of Los Angeles; Rt. Rev.
Donis Patterson, Retired Bishop of Dallas; Rt. Rev. Robert Johnson,
Bishop of North Carolina.
The session began in the office building of the cathedral, at 9 a.m.,
following a penitential Eucharist in the cathedral chapel. I counted 47
persons present in the middle of the afternoon session, when the
crowd seemed about its maximum:
9 judges
4 at the defense table: Chancellor Rehill of Newark, Chancellor
Cooney of Diocese of Washington and present as Mr. Rehill's
counselor; Bishop Walter Righter and his wife, Nancy Righter
2 at the prosecution table: Ex-chancellor Hugo Blankingship,
court-appointed prosecutor; Rt. Rev. William Wantland,
author of the presentment)
2 at the lay assessor's table (Assessor Sally Johnson and her
clerical assistant). Absent was lay assessor Daniel Pascal from
Chicago
1 a court reporter.
29 in the audience (including at one row designated as press;
some press persons sat in other rows as well).
Motions to Disqualify
Most of the morning was taken up with the prosecution's motions to
disqualify certain members of the court--all brought by the Church's
attorney, representing the presenters. Originally Mr. Rehill had
indicated to the court that he intended to challenge some members of
the court, but as my notes below show, he elected not to do so and
stated his reason.
H.B: (Hugo Blankingship):
In these motions we are concerned not with persons but issues. On
May 15 the Presiding Bishop in sending the procedure, on page 2. said
that "in due course that court will organize, elect a president, and
decide whether any member ought to resign for health or for conflict
of interest."
The Chancellor of Newark in October also asked for challenges.
Canons say that a judge may be challenged for any reason. We do so
because:
1) One or more members of the court have knowingly ordained
homosexual persons.
2) Four members have signed the Koinonia Statement, a
document that specifically affirms a bishop's right to ordain
homosexual persons.
Scriptures tell us that a judge shall be impartial.
Common law tells us: no judge shall be a judge of his own case.
Jurisprudence tells us: When the judge shall disqualify himself if he
has any other interests, the question is whether a reasonable person
might question doubt the judge's impartiality. The standard is not the
judge's own assessment of his impartiality.
Re: The Koinonia document:
1) Circumstance: It seems more than words, but rather an act.
2) Context: Originated at General Convention out of Newark,
the diocese where the offending ordination had originally
occurred. The respondent himself [Bishop Righter] signed the
document.
3) Content: General Convention stated in 1979 and the Presiding
Bishop and his Council of Advice reconfirmed in 1990, that the
official policy is not to allow such ordinations.
These conditions lead us to conclude that some of the judges would
do, or have done, what the respondent has done.
This court does not need to know about secular law, but jurisprudence
has said.....
Canon 3c of our own rules says: A judge shall disqualify himself if his
impartiality might reasonably be questioned.
Civil courts have said the same thing: e.g., in a Missouri case, Russelit
vs. Bagoti (sp?) 1990: The court said no system of justice can function
at its best or maintain broad public confidence if the litigant has
evidence that the judge is unfair. What's important is the appearance,
not just the fact of fairness. A liberal interpretation requires persons
to disqualify themselves even if they think they can be fair but find
circumstances that might make it hard for reasonable persons in the
public to reach that conclusion.
US Supreme Count, 1988, Ligerberg vs. Health Services: Louisiana.
A federal justice was a trustee of Loyola University, but the judge
forgot about the connection. No one suggested the judge was lying,
but the Supreme Court disqualified the evidence because of the mere
appearance that his trusteeship might have influenced his decision. A
reasonable person would know that the judge did understand the
appearance of impartiality.
Bishop Tennis: How do we separate words and actions. What do you
mean when you say that Koinonia is "an act"? What about votes on
other matters relating to homosexual persons? Are they all acts too?
Blankingship: In the Bishop Pike case, a distinction was drawn
between saying things and words that could be considered acts. It was
determined that bishops should be free to express their views without
being subject to discipline. [James Pike, Bishop of California in the
1960s, was a subject of much controversy for his views, but the House
of Bishops never brought him to trial for heresy. LC]
Bishop Jones: Please conclude soon so that the members of the court
can ask a question or two.
Blankingship. The Trial of Bishop Brown dealt with his writings.
[Note: HB refers to the only heresy trial ever brought in ECUSA, in
the 1920's, against Bishop Brown, retired Bishop of Arkansas, who
wrote that communism should replace God. He was convicted and
deposed. [LC] The court then made a distinction that things said in
open or fair debate are important and crucial, as that is the crucible
out of which decisions arise. It is obviously necessary for new ideas to
get heard and considered. But we believe that once the church has
spoken, you have to be very careful in what bishops may then be
allowed to say.
Bishop Borsch: Regarding action, Koinonia was a response to the
Affirmation document, which had been brought by 106 bishops stating
a contrary position. Was the Affirmation document not an "action"
too?
Blankingship: Context, yes; but look at the consequences. Now
diocese are incorporating the Koinonia document as part of their
working agenda. [He refers to actions taken supporting the Statement
of Koinonia in the Dioceses of New York, Washington, and El
Camino Real. LC]
The Affirmation re-affirms what is already doctrine and is therefore
privileged. The 1964 General Convention (61st General Convention):
established four levels of Authority in the Church, including
resolutions of General Convention....
Borsch: Regarding the Loyola case: The judge there withdrew
because there were other judges to take his place. In our case,
however, all bishops sit on the court, as the final court of appeal of
any decision in which this court of a trial of a bishop might make.
Therefore all bishops are involved and influenced by our own
judgments, not just the bishops who signed the Koinonia document.
That's why it is difficult to apply the same standard here that was
applied in the Loyola case.
Blankingship. The issue is how the world will view impartiality, not
how individual bishops feel about there own ability to be impartial.
[At this point Bishop Jones thanked Mr. Blankingship for his written
and oral presentations.
Michael Rehill
I will not repeat my brief.
This is not a secular court. We are here to do justice not only for
Bishop Righter, but also for our church. We are all involved. Which
of you could sit if you disqualified yourself if you have done something
that could be involved? Would anyone be left? I won't now even
begin to talk about who you may or may not have ordained.
One thing that cannot be disputed: this case is a matter of law, not
fact.
The doctrine of the church is the law here. How COULD we have a
bishop who has not taken any position regarding doctrine?
Impartiality is impartiality towards the litigant, not impartiality
towards doctrine. No one has suggested that anyone has a bias
towards the party, Walter Righter. Our church invests in you as
bishops the knowledge and the wisdom to give us the doctrine. How
could you dare disqualify yourselves if you do so?
It is ironic that I as a lawyer am no lecturing to bishops about what
doctrine is: it should be the reverse. Doctrine is your vocation to tell
the church.
Some of you have made statements that are political, yes, but they are
not doctrinal. While we do our business based on majority votes, but
we don't change doctrines by vote. Doctrine is not something so
superficial.
The report of the Bayne Commission would suggest that we should
not even be doing this trial, that trials should be much more difficult
to bring.
We know that you are all articulate and outspoken. We know that we
do not all stand in the same place on the political issues. We do not
seek to disqualify any of you. People keep saying to me that two
signers of the consent and should be disqualified. I was wrong at first
when I suggest that, and I apologize. This is not a secular court. I
have faith that you will be led by the Holy Spirit.
We believe that one of the thing that makes ECUSA valuable is that
our church has always been open to a diversity of opinions. This court
fairly represents the broad opinions of our church. We feel that all
voices need to be heard. We want to keep everyone in the house: I
don't want any outcasts. I trust the process.
I see no appearance of impropriety, no suggestion that you are
impartial. The only impropriety would occur if you were to disqualify
yourselves. The list of precedents in the secular world does not apply.
Koinonia was a political document in response to another political
document.
Either disqualify no one, or disqualify everyone.
Tennis: It occurred to some of us to do that. [Much laughter] Please
respond to the Pike case.
Rehill: The decision was not to validate Pike's position, but to spare
the church from the ordeal of a trial. In the Righter trial, however, if
you apply Mr. Blankinghship's standard, the only persons who would
be qualified would be the hypocrites, who would say that they believe
but would not act on it.
At this point the court recessed with lay accessor Sally Johnson to
decide Mr. Blankingship's motions, i.e., to determine whether or not
they constituted a court or whether some should disqualify
themselves. They left at 9:50, to return at 10:20, but did not return
until 10:45.
10:45 (after 50 minute break)
Bishop Jones: All four motions were considered and in each case the
motions were disqualified.
Mr. Blankingship indicated that he will file an exception.
Motion to Disqualify lay Assessor Ms. Johnson
Blankingship:
We bring this motion not because of her qualifications, but to
conform properly with the canons. The canons which go into effect
after January 1, 1996 prohibit chancellors from serving as lay
assessors. In at least one other place the 1996 canons prohibit
chancellors from serving in at least in another capacity.
If we pick and choose which canons apply, those now in place and
those to come in 1996, how will we do so fairly? The rule seems to be
that matters of substance are under the existing canons and matters of
procedure should be under the new. I am not sure about how that will
work out. How will we apply vote required for conviction, the new
statute of conviction, new procedure after the vote of initiating a
trial.......?
I think it proper to stay with the canons in effect in 1995 in all
instances until a matter comes up, and at that time the party seeking
to advance the case for using the new canon has the burden to
persuade the court to do so, on an issue by issue basis.
How can we have ex post facto canons?
Bishop White: Should we wait until we have decided which canons
will be used in all matters before we even hear this motion to
disqualify Ms. Johnson?
Bishop Jones ruled to lay aside the issue of Ms. Johnson's
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
qualifications until the larger issue of which canons apply is decided.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
Rehill: The canons have already made this issue clear, and it is not
really the province of this court to change the rules: the new canons
say explicitly: "Shall take effect on January 1st, 1995" . The court does
not have a credible option to ignore that for procedure We should
follow 1996 canons and force those who contend for the earlier
canons to show why we should not.
Mr. Rehill's Motion to Dismiss Count 1 of the presentment:
Rehill: We need to remember that we are a church. We don't want
to mire ourselves in issues of the retired bishop's son who signed the
consent for him [he alludes to Bishop Emrich's son, who used power
of attorney to consent for his father to the trial, because Bishop
Emrich has Alzheimer's disease. -- lc ]
[My notes and my memory are fuzzy at this point. Apparently Mr.
Rehill continued to talk about some problems with the way in which
the consents were received, especially with interpretations about dates
due. The required number of consents did not arrive until after then
announced deadline for receipts, but the Presiding Bishop had ruled
that the crucial date was the date postmarked. Under that ruling the
required number arrived. I am not clear whether Mr. Rehill merely
mentioned this circumstance or whether he also made it a part of his
motion to dismiss the Count 1. I believe that Mr. Rehill was merely
reading these concerns into the record but not making them a formal
accusation requiring action. It is clear that whatever there initial
status, Mr. Rehill withdrew these objections. At this point, Mr. David
Beers, chancellor to the Presiding Bishop, asked to be heard by the
court. -lc]
Beers:
I want to clarify the only instances in which I might ask to be heard,
namely, on any issues about how the Presiding Bishop does his job.
You will not hear applications from me unless it is important to how
he does business.
Blankingship: Time too late to bring up these objetions anyway.
Won't address in detail since it has been withdrawn.
Mr. Rehill's Motion to Sever 2 Counts and to Stay Count 2 of the
Presentment Pending the Judgment on Count 1.
Rehill:
The press misleads people as to what the charges are. (see pages 6-7
of the Presentment itself):
1) Teaching doctrine contrary to church.
2) Violation of ordination vows
These two are hugely different. No. 1 requires the process we're now
in. No. 2 requires another process There is no appeal for a decision
on No. 2, but No. 1 does allow for appeal to the full House!
The real issue for you to decide is Count 1, whether there actually is a
doctrine of our church to forbid ordination of noncelibate homosexual
persons.
There is also a huge practical issue at stake here: You will be flooded
with witnesses if you need to prove violation of ordination vows. You
will not have the huge expenses of a lengthy court case if you limit
yourself to the first issue, i.e., if you first decide whether this church
has a formal doctrine forbidding such ordinations. [Mr. Rehill noted
that he is confident that they will discover no such doctrine when they
examine this issue at the trial; hence, the second count would become
moot. If on the other hand the court finds there is such a doctrine,
Mr. Rehill said that he would need to summon dozens of witnesses to
testify to the issue of whether Bishop Righter knowingly violated such
a doctrine. -lc]
My solution would preserve the integrity of the canons.
Bishop Wantland's Response to Mr. Rehill's Motion
There is precedent for doing the two in following the procedure
offered by the Presiding Bishop's office. Doctrine is inextricably
involved in the ordination. This is first made clear in the ordination
of the Philadelphia 11. If the matter is a doctrinal one, the
presentment must be made by 10 bishops, not by merely 3, the
number required for the charge that one has violated ordination vows
only. In the 1976 Journal, page B313, regarding a special meeting of
the House of Bishops, three bishops questioned whether these
ordinations were subject to a canonical review: The case did go
before a board of inquiry.... 1974 precedent is that you must follow
for ordination.
In 1994, a presentment was brought against Bishop Stewart Wood
[Bishop of Michigan] for knowingly ordaining a noncelibate gay. The
Presiding Bishop appointed the review committee, and the committee
reported the distinction between doctrinal matter and merely a
canonical matter.
Consider also a precedent in the English ecclesiastical court case:
Heath vs. Berger, 1862......:
It is proper to bifurcate: Is there a law? Was it violated? But
doctrine is involved in both, and it is not proper to stay the second
charge.
Borsch: How is your position different from that of Rehill. What's
the difference between is "to sever and to stay no. 2" from your "to
bifurcate"?
Wantland: Rehill claims that ordination does not involve doctrine.
Rehill: I object to Bishop Wantland's introduction of evidence that he
had not filed in his brief, such as 19th-c British case. Wantland now
wants to re-write his own presentment. For some reason the
presenters and the church attorney believe that his is a one-issue case:
but it is not a one-issue case: If the doctrine exists, it does not
necessarily mean that the bishop before you is guilty as charged.
At this point, the court adjourned for a long private lunch.
Rehill's Objection to Wantland's Addressing the Court
I was shocked this morning to find Bishop Wantland actually
addressing the court. He is one of the Presenters.
Bishop Jones: We had not ruled on that.
Bishop Jones asked whether Bishop Wantland is scheduled to speak
in the afternoon. Mr. Blankingship says yes, they have planned it that
way. Bishop Jones then ruled that Bishop Wantland would be allowed
to speak for this time only without any assumption of his right to do
that in the future. Bishop Wantland said that the request had been
made for him to "assist," and he and Mr. Blankingship had therefore
assumed that the court's non-response indicated that his addressing
the court would be okay. He apologized for any problems doing so
might cause for the court.
Wantland: objected to limiting the documents to those first put into
the presentment. Those original documents merely served notice of
the type of accusations might be made. --lc]
At this point, much repetition occurred as Mr. Rehill and Bishop
Wantland each tried to clarify his point of view regarding Mr. Rehill's
motion to "sever the two and stay the second count of presentment."
The court closed the public session at around 3:30 and met thereafter
in chambers to consider the motions before it.
Send mail to: lcrew@andromeda.rutgers.edu