Date: Sat, 09 Dec 1995 12:14:50 -0500 (EST) From: Louie Crew Subject: Louie Crew's notes on the Preliminary Hearings Louie Crew's Notes at the Court Preliminary Hearing for the Heresy Trial of Rt. Rev. Walter Righter Christ Church Cathedral, Hartford December 8, 1995 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. Louie Crew, English Dept., Rutgers, Newark, NJ 07102 201-485-4503 Preferred: P. O. Box 30, Newark, NJ 07101 http://newark.rutgers.edu/~lcrew/luti.html