The Dennis Canon – updated
In 2007 I wrote an article for the Living Church magazine reporting on the controversies surrounding the passage of the Dennis Canon at the 1979 General Convention. In that article I reported that it could not be shown that the Dennis Canon had passed the convention, but the balance of probabilities made it more than likely that it did.
In the five years since I wrote that article I have done further research on this question, and in light of these researches I have revised my conclusions.
As stated in the pleading below, I believe:
Although I hereby express no opinion as to the legal significance of my findings set forth above regarding the documentation relating to the Dennis Canon of the 1979 General Convention, I believe that the Dennis Canon was not properly adopted. In that regard, I affirm those findings: (1) that documentation relating to the Dennis Canon of the 1979 General Convention is missing from the archives and therefore that it cannot be verified that the canon was lawfully adopted by the Convention; (2) that no evidence exists in the archives that shows notice as required by Canon V.1 Section 5a was given to the wider church; (3) that no evidence exists in the archives that shows a motion to suspend the rules was offered to the House of Deputies under Rule VI.22 to permit the resolution to be considered out of time or that two-thirds of the deputies voted for such a suspension.
In recent years I have been engaged as an expert witness in a number of court cases concerning the Episcopal Church’s property cases. I am not a canon law expert, but an expert in the Episcopal Church’s history and polity, which includes the history of Episcopal canon law, Episcopal church properties and how they were historically acquired and held, and on the evolution and growth of the Episcopal Church’s national structures in relation to its parishes and dioceses.
In the pleading printed below in the California Episcopal Church cases, which include Rasmussen, et al. v. The Rev. Praveen Bunyan, et al. (Orange County Case Number 4CC00647); Adair, et al. v. The Rev. Jose Poch, et al. (Los Angeles County Case Number BC321101); and, O’Halloran, et al. v. The Rev. William A. Thompson, et al. (Los Angeles County Case Number BC321102), I testified as to the investigations I made at the Episcopal Church archives, and what I found there. What I have not done is express any opinion as to the canonical or legal significance of what I found.
Here is the text of the pleading:
I, GEORGE ARTHUR MUNGER CONGER declare:
SUMMARY OF QUALIFICATIONS
1. I am a priest of the Episcopal Diocese of Central Florida and was ordained deacon in 1997 and priest in 1998 by the Rt. Rev. Robert W. Duncan, Bishop of Pittsburgh. In 1998 I was made an honorary canon of St Matthew’s Cathedral in Dallas, Texas by the Rt. Rev. James M. Stanton, Bishop of Dallas. I have served as a Chaplain at Thomas Jefferson University Hospital in Philadelphia, Pennsylvania, Assisting Chaplain at Merton College, Oxford University, Rector of St. Elizabeth’s Episcopal Church in Sebastian, Florida, Chaplain at Treasure Coast Hospice in Fort Pierce, Florida, and am presently serving as Priest-in-Charge of the Episcopal Church of the Redeemer in Avon Park, Florida
2. I have been elected to two terms of office to the Board of the Episcopal Diocese of Central Florida and was past chairman of the Evangelism Commission of the Diocese. I was appointed to the national church’s Standing Commission on Domestic Mission and Evangelism’s 20/20 Task Force during the 2000-2003 triennium.
3. My educational background includes the following degrees: Bachelor of Arts Degree, cum laude: Duke University, Durham, NC, 1980-1983; Master of Business Administration Degree: Duke University, Durham, NC 1983-1985; Master of Divinity Degree: Yale Divinity School, New Haven, CT 1993-1995; Diploma in Anglican Studies: Berkeley Divinity School, New Haven, CT, 1995-1996; Candidate for the Degree of Doctor of Philosophy in Ecclesiastical History: Oxford University, (in residence 1997-1999 ABD). I have also undertaken graduate studies at Villanova University, Villanova, Penna., and the University of Pennsylvania, Philadelphia, Penna.
4. From 1983 to 1985, I was the Chicago Mercantile Exchange Fellow at the Fuqua School of Business, Duke University, and from 1999 to 2000 I was a Research Fellow at Yale Divinity School. I am a member of the Ecclesiastical Law Society, the American Society of Church History, and the Historical Society of the Episcopal Church.
5. I served as an advisor and aide to archbishops, bishops and dioceses of the Anglican Communion from 1997 to the present in services ranging from an instructor in Anglican Studies for the Church of Nigeria’s House of Bishops to the editor and compiler of the Lambeth Directory, the pictorial directory of bishops of the Anglican Communion commissioned by the 1998 Lambeth Conference. In 2010 I presented a lecture to the Anglican Communion Institute’s February conference in Dallas, Texas entitled “The Concept of Hierarchy in the Episcopal Church of the Nineteenth Century.”
6. At present, I am Chief Correspondent of The Church of England Newspaper and have written approximately 3000 articles for this London-based newspaper since 1998. I also write for GetReligion, an internet publication devoted to the critique of religious journalism and have published approximately 80 articles there as of the date of this affidavit.
7. My work has also appeared in a number of other places. I have published 835 articles in The Living Church, a magazine reporting on the Episcopal Church; as a correspondent for the Jerusalem Post I published 155 articles on religion news and diplomatic/military affairs; 17 articles and book reviews for the Washington Times on the Episcopal Church; 11 articles for Christianity Today on Episcopal and Anglican affairs; and occasional stories for the Episcopal News Service, Anglican Communion News Service, Touchstone, Faith & Freedom, The Anglican Planet, Scripps Treasure Coast Newspapers, The Zimbabwean, Review of Biblical Literature, Front Page magazine, and assorted publications in the U.S., Canada, Africa, Australia, India and the Pacific. My journalism was included in the 2005 anthology published by the Episcopal Church’s Seabury Press Changing Boundaries: The Best Religion News Writing, and I was given an “Award of Merit” from the Associated Church Press for the best interview in religion journalism in 2003.
8. Within the world of Anglican and Episcopal religious reporting I have written more articles in more publications than any other journalist and have been called by the Daily Telegraph (London) the “best informed” journalist in this field. I have been engaged as a consultant by the Times (London), Daily Telegraph and the Guardian and have appeared as a commentator and analyst on Anglican affairs on the Sunday Programme of the British Broadcasting Corporation’s radio service, the Religion Report of the Australian Broadcasting Corporation’s radio service and as a guest on a number of religion related radio and internet news shows. I am also the co-host of Anglican Unscripted, the most widely watched Anglican news and commentary program on the internet.
9. In the course of my work I have conducted research at the Archives of the Episcopal Church, Lambeth Palace, the British Library, Pusey House and Rhodes House in Oxford, and at the principal research libraries housing collections that touch upon Anglican affairs in the U.K., U.S.A. and South Africa.
10. I give this declaration at the request of R. Wicks Stephens II, one of the attorneys for Defendants All Saints’ and St. David’s and make this declaration based on my experience and expertise gained in my professional career, my own firsthand knowledge and study of the Constitution and Canons of the Episcopal Church and its dioceses, my on-going study of the history of the Episcopal Church and the Anglican Communion, my review of pertinent church historical documents, and examination of the church’s archives and other pertinent materials. If called as a witness, I could and would competently testify to the facts and opinions set forth herein. My statements are intended to provide insights in the polity, history and structure of the Episcopal Church and its relations with the wider Anglican Communion, which may assist the Court by broadening its understanding of the hybrid nature of this religions organization. There are two issues on which I have been asked to give my opinion. The first is on whether The Episcopal Church followed its own rules for the adoption of Canons when it purported to pass the Dennis Canon. The second issue relates to whether The Episcopal Church’s claim that it is a hierarchical church is correct.
THE DENNIS CANON
11. It was in my capacity as a writer for the Living Church and The Church of England Newspaper that I undertook an investigation of claims Episcopal Church Canon Title I.7.4, commonly known as the Dennis Canon, failed to pass the 1979 General Convention which was held in Denver Colorado from September 9-20, 1979.
12. I am familiar with the procedures and rules of order of the General Convention of the Episcopal Church and have been accredited to its last five triennial meetings.
To test the claims the Dennis Canon did not lawfully pass the convention, I turned to the official journal and the official commentary on the Constitution and Canons, White & Dykman 1981 (W&D).
First published in 1924, the Annotated Constitution and Canons for the Government of the Protestant Episcopal Church in the United States of America otherwise known as The Episcopal Church, was a private study prepared by Dr. Edwin A. White that examined the church’s canons from the first meeting of General Convention through 1922. In 1949 the General Convention asked Dr. Jackson A. Dykman to prepare a new edition of the 1924 edition, which was printed in 1954. Resolution D0004 of the 1976 General Convention called for the publication of a new edition. It stated:
Resolved, the House of Bishops concurring, That the General Convention, recognizing the need for an authoritative, currently available work covering the legal and canonical background of our Church, urges the Joint Standing Committee on Constitution and Canons, if such is established, or the Executive Council to supervise and arrange for the editing, updating, publication and sale of a revised, current edition of White and Dykman.
A new edition, subsequently printed in 1981, took the study through the 1979 General Convention. No other publication or treatise has ever been identified by the General Convention as an “authoritative” treatment of the “legal and canonical background” of the Episcopal Church.
13. W&D reported that the Dennis Canon was adopted by the 1979 General Convention. “Sections 4 and 5 were added by this Convention,” it stated, citing the Journal of the Convention, pp B-60, D-154.
14. However, W&D pointed out a mistake in the Journal on this point, leaving open the question whether the canon was lawfully adopted. “The account of this legislation does not appear under ‘Concurrent Actions.’ The reference in the index is to a related action” W&D noted at Volume 1, page 296. Attached as Exhibit “A” is a true and correct copy of W&D Vol. 1, p. 296.
15. Under the rules of General Convention, various entities may propose a resolution—deputies, bishops, dioceses, committees, provinces et al. The proposed resolution is then introduced into either the House of Deputies or House of Bishops for initial action. The resolution can be adopted as written, amended, or sent to a committee for further revisions. In order to be adopted by General Convention, both Houses must adopt or concur with the same resolution.
16. Resolutions that amend the canons must follow a specific legislative path. The Episcopal Church’s Title V Canon 1 Section 1 states:
No new Canon shall be enacted, or existing Canon be amended or repealed, except by concurrent Resolution of the two Houses of the General Convention. Such Resolution may be introduced first in either House, and shall be referred in each House to the Committee on Canons thereof, for consideration, report, and recommendation, before adoption by the House; Provided, that in either House the foregoing requirement of reference may be dispensed with by a three fourths vote of the members present.
17. An amendment to the canons that is adopted by General Convention must then be certified. Canon V.1 Section 5a states:
The Committee on Canons of each House of the General Convention shall, at the close of each regular meeting of the Convention, appoint two of its members to certify the changes, if any, made in the Canons, including a correction of the references made in any Canon to another, and to report the same, with the proper arrangement thereof, to the Secretary, who shall publish them in the Journal.
18. As W&D points out, the Journal is mistaken. It reports that both Houses adopted the Dennis Canon, yet the required statement of concurrence in the Journal—the formal statement of record — is absent, and refers to an unrelated piece of legislation.
19. A review I conducted of the records of the 1979 General Convention on August 1, 2007 held at the Archives of the Episcopal Church in Austin, Texas does not resolve this discrepancy. I found that no documentary evidence that showed the Dennis Canon was officially adopted by the 1979 General Convention.
20. Located at the library of the Episcopal Theological Seminary of the Southwest, the Archives contain all of the records of 1979 General Convention. Transferred to the Archives in 1996 by the General Convention office, the original documents from the Convention are held in two boxes and distributed among a number of three ring binders. Attached as Exhibit “B” is a true and correct copy of the Archive’s Finding Aid for the 1979 General Convention file.
21. Before travelling to Austin to make my inspection there in the Archives of The Episcopal Church, I telephoned the General Convention Office at the Episcopal Church’s headquarters in New York and was told that all of the official Episcopal Church’s records of the 1979 General Convention that existed were on deposit in the Archives of the Episcopal Church in Austin.
22. My review of the archival records found that many of the documents supporting the statements made in the 1979 Journal were not to be found. I found no records of the minutes of proceedings of the House of Bishops and House of Deputies, and a number of resolutions adopted by the Convention lacked supporting documentation. The records of the proceedings of the House of Bishops were not present, save for those appended to Committee Reports. I found no master list of documents for that Convention in the archives, nor any protections or mechanisms safeguarding the integrity of the documents from theft or alteration.
23. I also found no evidence that notice of passage as required by the canons was given. The Episcopal Church’s Canon V.1 Section 5a, as noted above, requires a summary of canonical amendments be completed and distributed to the dioceses at the close of the Convention. Despite a thorough search, I could find no record of such action in the Archives.
24. My review of the contemporaneous press reports on the 1979 Convention in the archives of the Living Church magazine and the predecessor of what is now known as the Episcopal News Service makes no mention of the passage of the Dennis Canon. The Pastoral Letter issued by the House of Bishops did not mention the passage of the Dennis Canon either.
25. The Dennis Canon, which began life as resolution D-24 was initially submitted at the 1979 Convention by the Rev. Canon Walter Dennis of New York. It asked Convention to amend Title I.6 (as then numbered) by adding a fourth clause which read in part:
All real and personal property held by any parish, mission, congregation or institution is held subject to an express trust in favor of the Episcopal Church and the Diocese where the property is located.
Attached as Exhibit “C” is a true and correct copy of the original resolution D-24.
26. The Resolution went first for action to the House of Bishops and on the fifth legislative day, Sept. 13, 1979, the Bishops sent Message 76 to the Deputies stating they had adopted the Resolution D-24 with amendment, according to pages B-60 and B-61 of the Journal. I then located in the records of the House of Bishops for September 13, 1979 a typewritten resolution which is the original of the document from which the journal entry was written. Attached as Exhibit “D” is a true and correct copy of resolution D-24 as contained in Message No. 76. Attached as Exhibit “E” is a true and correct copy of Journal page B60-61 recording this message.
27. The amended resolution (Exhibit “D”) at this stage of its legislative life had three clauses. The first “Resolved” clause of the resolution was the proposed amendment to Canon I.6 adding a new Section 4 as follows:
All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.
28. The second “Resolved” clause of the resolution (Exhibit “D”) was the proposed amendment to Canon I.6 adding a new Section 5 as follows:
The several Dioceses may, at their election, further confirm the trust declaring under the foregoing Section 4 by appropriate action but no such action shall be necessary for the existence and validity of the trust.
29. The third and last “Resolved” clause of the resolution (Exhibit “D”) was a provision which stated that the amendments to Canon I.6 shall “become effective upon enactment by the General Convention.”
30. The now amended resolution was sent to Committee 5 of the House of Deputies: Constitution and Canons for action. On Sept. 17 the Deputies’ Constitution and Canons committee issued its report on D-24, number 32 and recommended the House of Deputies adopt the resolution as amended by the Bishops.
In my review of the archived documents I found the report dated Sept. 17, 1979 by Committee 5 of the House of Deputies: the Canons Committee issued Report Number 32, and in that report, signed by D. Rebecca Snow, committee chairman, it “recommends: concurrence with HBM #75 & HBM #76 (the Dennis Canon amendment), the effect of which is shown on the attached text.”
Attached as Exhibit “F” is a true and correct copy of the Sept. 17, 1979 Committee 5 of the House of Deputies: the Canons Committee issued Report Number 32.
31. At this stage of its legislative life, the canons required the resolution to be submitted to the full House of Deputies for their concurrence. Page D-154 of the Journal records the Deputies’ concurrence. Attached as Exhibit “G” is a true and correct copy of Journal Page D-154.
32. However, the Journal made an error at this point – the error reported by W&D. In support of its statement the House of Deputies concurred with the resolution, the Journal cites page C-150 in confirmation. However, page C-150 speaks not to the Dennis Canon, D-24, but to a different resolution, D-101. Journal Page D-154 refers to actions purported to have taken place on Sept. 19, the 10th day of Convention, while Journal Page C-150 refers to actions on Sept. 16, the 6th day of Convention. Attached as Exhibit “H” is a true and correct copy of Journal Page C-150.
33. Page B-144 of the Journal goes on to state that on the 11th legislative day the Deputies informed the Bishops that they had approved D-24 via message 204. Attached as Exhibit “I” is a true and correct copy of Journal Page B-144.
34. I could not find, after a thorough search, the documents in the Archives that would support this claim in the Journal. Missing from the Handbook of the Secretary of the House of Deputies—which contains all of the legislative actions and committee reports—were the reports on legislation from the 10th day of Convention. Days 1 through 9 and 11 were present as was the 10th day’s consent calendar, but all that had survived in the documentary record was the day’s agenda with annotations made by the Secretary of the House of Deputies. Attached as Exhibit “J” is a true and correct copy of the Agenda for Day 10.
35. While other agenda items for the 10th day of the Convention were marked as amended, concurred or had check marks besides it, the Dennis Canon was not marked off.
36. I searched all of the records of the 1979 General Convention to see if these missing records that showed Resolution D-24 had been passed by the House of Deputies might have been misfiled. They were not present. In that search I examined the “print shop” binder—a record of all items sent for duplication, and there I found only the 10th day summary.
37. In the print shop binder I found copies of days 1-9 and 11 summaries in addition to the 10th day summary. Attached as Exhibit “K” is a true and correct copy of the Day 10 Summary.
38. On page 9, the summary reports resolution D-24 as amended was adopted by the Deputies, and message 204 memorializing this action was sent to the House of Bishops. However no copy of this message was found in the Archives.
39. The results of my search of the Archives were that I could verify the resolution’s passage through the first three stages: 1) Original resolution; 2) Resolution as amended by the House of Bishops; 3) Report from the House of Deputies Committee on Constitution and Canons recommending concurrence. These steps were reported correctly in the Journal.
40. But the final stage, the documentation that the House of Deputies concurred with the resolution was not present in the Archives – and it is at this point the Journal makes the error by stating the House of Deputies concurred with the resolution, but cites a different numbered unrelated resolution as evidence of concurrence.
41. Nor was I able to find evidence in the archival record that a supermajority (two-thirds) of the members of the House of Deputies passed a motion to allow the Dennis Canon to be considered after the time permitted for consideration of a resolution under House of Deputies Rule of Order VI.22.
42. Rule VI.22 of the House of Deputies Rules of Order state:
Except by a vote of two-thirds of the members present, no new business requiring concurrent action shall be introduced in this House after the third legislative day of its session and no matter which originated in this House and which requires concurrent action by both Houses shall be considered by the House after the ninth legislative day.
43. The documents cited above and the report of the Journal show resolution D-24 to have been introduced to the House of Deputies on Day 5 of the Convention, where it was referred to the Committee on Constitutions. The resolution was affirmed by the committee which passed it back to the House of Deputies. The resolution was scheduled to be considered by the House on Day 10.
44. The language of the Episcopal Church’s Title V Canon 1 Section 1 shows the verb “introduce” used in the Rule VI.22 applies to the presentation of a new item in both Houses of General Convention. In other words, a resolution is introduced twice, once in the bishops and once in the deputies. Resolutions requiring concurrent actions “may be introduced first in either House, and shall be referred in each House to the Committee on Canons thereof, for consideration, report, and recommendation, before adoption by the House.”
45. I found no evidence that any motion was made to suspend the rules, let alone that a two-thirds majority voted for such a suspension under Rule VI.22, for the measure validly to have been entertained for approval at that date.
46. Although I hereby express no opinion as to the legal significance of my findings set forth above regarding the documentation relating to the Dennis Canon of the 1979 General Convention, I believe that the Dennis Canon was not properly adopted. In that regard, I affirm those findings: (1) that documentation relating to the Dennis Canon of the 1979 General Convention is missing from the archives and therefore that it cannot be verified that the canon was lawfully adopted by the Convention; (2) that no evidence exists in the archives that shows notice as required by Canon V.1 Section 5a was given to the wider church; (3) that no evidence exists in the archives that shows a motion to suspend the rules was offered to the House of Deputies under Rule VI.22 to permit the resolution to be considered out of time or that two-thirds of the deputies voted for such a suspension; and (4) that the facts laid out by me in the above statement are a correct account of what I found in my researches in the archives of the Episcopal Church. I also affirm that I am not now nor have I even been a party to litigation involving The Episcopal Church over any issue relating to the Dennis Canon or otherwise.
I declare, under penalty of perjury under the laws of the State of California, that the facts stated above are true and correct and the opinions and conclusions expressed are offered in good faith, based upon my objective, impartial analysis and that this declaration was executed on this 24th day of April, 2012, at Vero Beach, Florida.
GEORGE ARTHUR MUNGER CONGER