Houston, we have a problem.

Wow, that is stunning reading. Luke 8:17 comes to mind - “For nothing is hidden that will not be made manifest, nor is anything secret that will not be known and come to light.”

Problem - - what problem?  The Dennis Canon passed both houses in identical form as required.  How do we know this?  Why, both Schori and Beers have assured us it passed, and their interepretation (by TEC law) carries the day. Besides, where’s the proof it did NOT pass?  So again, where’s the problem?

It’s definitely worth reading the whole affidavit carefully.  Fr. Conger and the drafting lawyers are to be congratulated for what appears to be a careful avoidance of overstatement and argument.

The only facts consistent with the possibility that the Dennis Canon wasn’t passed appear to be the following:

     • in the working copy of the day’s calendar used by the Secretary of the House of Deputies, the Dennis-Canon item doesn’t have a checklist by it — but it apparently is not alone in not being checked off, so that in itself doesn’t tell us much (see paragraph 15 of the affidavit);

     • in the record of daily legislative actions by the House of Deputies, the records for Day 10 of the convention are missing. That’s when the Dennis Canon was putative approved (see paragraph 14 of the affidavit). Note that it’s not just the Dennis Canon records that are missing, but all records of Day 10 action in the House of Deputies — so again, it doesn’t tell us much.

Interestingly, the print-shop binder contains a summary of Day 10 actions, indicating that the Dennis Canon resolution was indeed approved by the House of Deputies:

17. ... I examined the “print shop” binder—a record of all items sent for duplication, and there I found only the 10th day summary. 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 has survived either, and is known only by that reference.

So it would seem that the secessionists can bring to bear only a very weak argument from silence, one contradicted by the print-shop summary — and, more importantly, the failure of successive General Conventions to overrule the decision of the Standing Commission on Constitution and Canons including the Dennis Canon in the official publication of the constitution and canons.

It thus would further seem that those seeking to strike down the Dennis Canon should be thinking about their Plan B.

“.......the failure of successive General Conventions to overrule the decision of the Standing Commission on Constitution and Canons…...”

Now, I wonder:  Just who were the people behind that failure?  Surely not the parishioners who objected after the fact, when they found out following the Convention that they had been “had?”  Rather, how about the bishops who were determined to grab control and keep it in order to make sure that dissenters would be left with nothing if they left the Church?

It seems awfully fishy that all of day 10 is missing. Who had access to the original files. In the medical world, if something is not written down it didn’t happen. I wonder if the same applies to odious canons?

Oh William of Occam, I invoke thee:

Theory 1:  The “Denis” Canon was indeed passed by both houses of General Convention, as required, but various pieces of internal documentation have gone missing in the nearly thirty years since then.

Theory 2:  The “Denis” Canon did not pass both houses, but a conspiracy of officials destroyed the evidence that it did not pass, inserted it into the body of canons as though it had passed, and in nearly thirty years, out of all the hundreds of people who were present at that convention and would have remembered it not passing not one single person noticed this and publicly objected.

Yeah, Bill doesn’t think much of that second theory either.

WestJ writes: “In the medical world, if something is not written down it didn’t happen.”

So if a doctor accidentally gives a patient the wrong medication, or operates on the wrong body part, all s/he has to do is not write it up and the problem goes away ....

Ask any competent journalist, historian, or business/technology litigator: Ross’s Theory 1 [in #7] is far more likely.

various pieces of internal documentation have gone missing in the nearly thirty years since then.

No, it is clear from the comments in White and Dyckmann (1981) that the internal documention for the crucial 10th day went missing immediately.

If Matt weren’t so durned Reformed I’d call this a “Hail Mary” pass.  Even if the archival evidence is missing, the fact is that all the secondary evidence points to the fact that the canon was indeed passed.  I’m all for Matt’s decision to leave TEC and make a stab at contesting the diocese’s claims using resources that he would otherwise have to turn over to the diocese anyway, but I don’t think people should get too worked up over this.  Instead they should be thinking about how to raise money for Matt’s replacement worship space when he looses, as every single parish in the state of New York has already lost.

This kind of like saying that if someone destroys every extent copy of the Bill of Rights, that we no longer have the Right to Bear Arms.  I just don’t see it working.

How about the scenerio that the Denis Canon was not validly enacted and the documents that would exist had it been properly enacted do not exist.

The available documentary evidence simply does not support the validity of the Denis canon.  I checked W&D;and the Journals and what should be there if the Canon was properly enacted simply is not there.

Likewise with what Conger has discovered.  The documentation that should exist does not.

But, #13, if that were true—why didn’t any of the delegates to that GC object?  Did none of them notice that the Denis Canon had magically appeared in the book, and say to themselves, “That’s odd, I distinctly remember that it didn’t pass”?  Not even one?  That beggars belief.

This kind of like saying that if someone destroys every extant copy of the Bill of Rights, that we no longer have the Right to Bear Arms —-AndrewA [#11]

It is clear beyond any reasonable doubt that the Bill of Rights, including the Second Amendment, was properly ratified. We know what it says and we know it became part of the Constitution. That would remain true even if every contemporaneous copy were destroyed.

Here the question is whether the Dennis Canon was ever properly adopted. The officially published Constitutions and Canons book is (I gather) an editorial compilation of what various General Conventions adopted.

The United States Code provides a secular parallel. The code contains most federal laws of general application, arranged into 50 subject-matter titles: e.g., agriculture, aliens, arbitration, armed forces, banking, bankruptcy, census, commerce, Coast Guard, and Congress. Unofficial editors compiled these titles from tens of thousands of statutes enacted over the years. Congress has enacted half of the 50 titles into law (e.g., those dealing with bankruptcy, commerce, copyright, crimes, judiciary, and taxation).

The other titles remain unofficial compilations even though they appear in the Government Printing Office’s edition of the United States Code. If a real dispute arises about whether a particular provision is law, the courts will scrutinize the record and decide the issue. This doesn’t happen often (as the unofficial compilations are usually quite reliable), but it does happen—-and rightly so.

Similarly, parties like Good Shepherd should be free to question whether the Dennis Canon received the requisite approval. After all, book publishers have no official say about what the law is.

14, your question requires speculation.  The FACT is that the documentation that should exist if the canon was validly passed, does not as a matter of FACT exist.  The simplest conclusion is that the canon was not validly passed and that’s why the documentation does not exist.

The point is that this is an issue of material fact and is up to the trier of fact to determine.

Iranaeus [#16], I don’t think your analogy to the Government Printing Office is especially helpful, because:

     • The unofficial editions of statutes and codes with which I’m familiar are published not by the GPO, but by commercial publishers such as West.

     • If you haven’t already, you should read Canon I.1.2(n)(3).  Under that provision, the Standing Commission on Constitution and Canons has the duty, among other things, to:

(iv) Conduct a continuing and comprehensive review and update of the authorized “Annotated Constitution and Canons for the Government of the Protestant Episcopal Church in the United States of America otherwise known as The Episcopal Church” to reflect actions of General Convention which amend the Constitution and Canons  .... [Emphasis added.]

I could easily see a court starting out with a presumption of administrative regularity, analogous to that routinely used in secular law: Absent a showing to the contrary, the Standing Commission on Constitution and Canons is presumed to have competently done its job in publishing the ‘authorized version’ of TEC’s constitution and canons — which for decades, without objection at any General Convention (so far as I know), and with no evidence affirmatively suggesting error on this point — has included the Dennis Canon.

Fr. Matt Kennedy [#15], I read the quotes in A.S. Haley’s piece referenced by Kendall in a post of yesterday. I doubt a court would agree to consider hearsay reports that some deputies denied that the vote occurred.

I do suspect, however, that ENS’s failure to mention the Dennis Canon’s adoption in its post-convention wrapup article, cited by Haley, might well give a court pause.

In the end, I think a court will rely on: • the fact that both houses did indeed approve the substance of the Dennis Canon; • the absence of any non-circumstantial evidence that the House of Deputies overlooked taking the final follow-on vote; • a presumption of administrative regularity on the part of the Standing Commission on Constitution and Canons in carrying out its canonical duty of overseeing the publication of the ‘authorized version’ of TEC’s constitution and canons, which since the 1979 GC have included the Dennis Canon; and • the acquiescence of nine successive General Conventions, without known objection, in that publication.

20, good argument.  It’s just that the documentary evidence that should exixt to support the valid enactment of the canon is not there.

It will be interestering to see what the court does.

Matt Kennedy [#19] writes: “Isn’t that at least in part what is at issue…whether the Standing Commission on Constitution and Canons discharged its duties?”

Your judge isn’t going to want to go down that rabbit trail any more than s/he absolutely has to.  We have to remember that judges and their law clerks (if any) have heavy workloads; your case is far from the only one on your judge’s docket. And like the rest of us, judges are only human; they tend to seek the shortest path to a judgment:  (1) that gets the case off the judge’s to-do list — because judges who fall behind in their workload are subject to public criticism, which no one likes; (2) that provides, if possible, what the judge thinks of as the ‘correct’ outcome; (3) •that’s unlikely to be reversed on appeal, because judges really don’t like being reversed; and (4) that doesn’t take up more than ‘its share’ of scarce judicial work time.

These facts of life are reflected in any number of substantive and procedural rules. That’s why (for example) the rules of evidence prohibit going too far down the rabbit trail in challenging the credibility of impeachment witnesses.  It’s also one reason why we have time limits such as statutes of limitations and the doctrine of laches: a party that didn’t complain about an injustice in a timely manner must not really have regarded it as that big a deal, so the court won’t either.

(I’m grossly oversimplifying the relevant law to make a point.)

Students of international relations might call the above a ‘realist’ analysis.  It’s why I think your court is likely to dismiss your challenge to the Dennis Canon, for reasons more or less like those I summarized in the last paragraph of #20 above.

To be brutally realist about it, Matt [#23], all of the judge’s cases are competing for his (or her) time, and personally he doesn’t necessarily regard your case as being that much more important than the others.

From what I’ve seen, at best there’s what’s called ‘a mere scintilla of evidence’ that the Standing Commission on Constitution and Canons might have screwed up in including the Dennis Canon in the official version of the canons. Under the law, it normally takes more than that to overcome presumptions.

Perhaps in an ideal world with infinite judicial resources it wouldn’t be that way. Whether we like it or not, though, courts don’t try to pursue the ‘100%-correct’ answer to every single question that arises; they try instead to focus their efforts on getting the ‘right’ answers to the main questions, and on getting ‘close enough’ answers for the ancillary ones.

One of the problems that I see here is that investigation has shown that in the case of one particular canon, the paper trail that ought to exist showing that it was passed does not, in fact exist.

But nobody, to my knowledge, has checked any other canons to see if the paper trail exists.  If the “Denis” Canon is unique in missing this documentation, then your case is stronger; but if it turns out that a significant number of other canons are also missing pieces of the paper trail—that is, if it turns out that General Conventation is just bad at archiving documents—then your case is much weaker.

More to the point, it would seem to me to create an unnerving precedent that before any law can be applied, it must first be proved to have been validly passed.  Can every state dig up the documentation trail—agendas, debates, motions, vote records, etc.—to prove that it really did pass a law against murder?  I frankly doubt it.

And I still come down to the point that I really cannot believe, if it were slipped into the book despite not being passed, that none of the delegates would have raised a big public stink at the time.  Memories are hazy twenty-nine years later, sure, but at the time the new canon was first printed in the book of canons they would have been plenty clear enough.  No such stink exists on record or in memory—or at least I haven’t seen anyone cite evidence of it, just a few deputies who now say that they don’t remember it passing—which means I have a really hard time seeing where you have a case.

Ross, the states are well awair of what you are saying.  They are well ahead of you.  Everytime a legislature starts a new sesson they renact into law the codification of what they did in the last session.  This cures any proceedural errors.  However until that happens the codification is merely evidence of the law and the statutes that were enacted in the last session are subject to an attack on the grounds that they were not properly enacted into law.

And as to your last paragraph, most legislation in not questioned until it is used.  The delay is not unusual.

Any legislature and legal system worth its salt keeps proper records of legislation passed.  It is called the Rule of Law.

But as we have seen TEC does not bother with that any longer.  It remains to be seen if they can persuade a judge to do the same.