Proposed Amendments to Title IV - Resolution D031 (Pending Committee Action)

Resolved, the House of _________________ concurring, That the following sections of Canon IV.2 be amended to read as follows:

Hearing Panel shall mean a panel of three or more not less than five members of the Disciplinary Board, a majority of whom shall be Members of the Clergy, selected by the president of the Board, by lot or by other random means unless some other manner of selection is provided by Diocesan Canon, to serve as the body before which a hearing is held as provided in Canon IV.13, provided, however, that no such member of the Hearing Panel may serve as a member of the Conference Panel in the same case. The president of the Disciplinary Board shall be ineligible to serve on the Hearing Panel.

And be it further

Resolved,

That Canon IV.3.1 be amended to read as follows:

Sec. 1. A Member of the Clergy shall be subject to proceedings under this Title for:

(a)  knowingly violating or attempting to violate, directly or through the acts of another person, the Constitution or Canons of the Church or of any Diocese; or

(b) failing without good cause to cooperate with any investigation or proceeding conducted under authority of this Title; or

(c)  intentionally and maliciously bringing a false accusation or knowingly providing false testimony or false evidence in any investigation or proceeding under this Title.

And be it further

Resolved,

That Canon IV.3.3 be amended to read as follows:

Sec. 3.  In order for any conduct or condition to be the subject of the provisions of this Title, the Offense complained of must violate applicable provisions of Canon IV.3 or IV.4 and must be material and substantial or andof clear and weighty importance to the ministry of the Church.

And be it further

Resolved,

That Canon IV.5.1 be amended to read as follows:

Sec. 1.  Each Diocese shall, by Canon, create a court to be known as the Disciplinary Board as described in this Canon. Each such Board shall consist of not fewer than seven nine persons to be selected by the convention of the Diocese as determined by Diocesan Canon. The membership of each such Board shall include lay persons and Priests or Deacons, and the majority of the Board members shall be Priests or Deacons, but by no more than one. Within sixty days following each Diocesan convention, the Board shall convene to elect a President for the following year. , unless another method for selection of the president is provided by Diocesan Canon.

And be it further

Resolved,

That Canon IV.6.3 be amended to read as follows:

Sec. 3.  Information concerning Offenses may shall be submitted to the Intake Officer in any manner and in any form. writing, with a certification signed by the Informant that the Informant believes that the reported information is true.

And be it further

Resolved,

That Canon IV.7.7 be amended to read as follows:

Sec. 7. Any Pastoral Direction, restriction on ministry or Administrative Leave under this Canon shall be effective upon service of the writing setting it forth on the subject Member of the Clergy as provided in Canon IV.19.20. No Rector or other tenured Member of the Clergy shall be denied his or her compensation and benefits by virtue of the imposition of a restriction on ministry or placement on Administrative Leave.

And be it further

Resolved,

That Canon IV.12.6 be amended to read as follows:

Sec. 6.  The Complainant may shall attend the conference. but may not be required to do so. The Complainant's Advisor may also attend the conference. regardless of whether the Complainant attends.

And be it further

Resolved,

That Canon IV.13.4 be amended to read as follows:

Sec. 4.  All proceedings before the Hearing Panel, except its private deliberations, shall be public, provided, however, that the Hearing Panel may close any part of the proceedings at its discretion to protect the privacy of any person. No proceedings before the Hearing Panel, except its private deliberations, shall be closed to the Respondent, Respondent's Advisor, Respondent’s Counsel, or to the Church Attorney. A record of the hearing shall be made by such means as to enable the creation of a verbatimwritten transcript of the hearing.

And be it further

Resolved,

That Canon IV.13.6 be amended as follows:

Sec. 6. In all proceedings of the Hearing Panel the testimony of witnesses shall be taken orally and personally, or by such other means as provided by order of the Hearing Panel. All testimony shall be given under oath or solemn affirmation and be subject to cross-examination. The Hearing Panel shall determine the credibility, reliability and weight to be given to all testimony and other evidence. The proceedings shall be conducted as follows:

(a) The president shall regulate the course of the hearing so as to promote full disclosure of relevant facts.

(b) The president:

...

(4) may take official notice of any facts that could be judicially noticed, including records of other proceedings and of technical or scientific facts within the Hearing Panel's specialized knowledge;

...

(5) may not exclude evidence solely because it is hearsay; and

(6) shall afford to the Church Attorney and to the Respondent reasonable opportunity to present evidence, argue and respond to argument, conduct cross-examination and submit rebuttal evidence. and

(7) may, at the discretion of the Hearing Panel, give persons other than the Church Attorney and the Respondent opportunity to present oral or written statements at the hearing.

(c) Nothing in this section shall preclude the exercise of discretion by the president in taking measures appropriate to preserve the integrity of the hearing.

And be it further

Resolved,

That Canon IV.14.7 be amended to read as follows:

Sec. 7. Prior to the issuance of an Order by a Conference Panel or a Hearing Panel, the issuing Panel shall afford the Bishop Diocesan, the Respondent,and the Complainant each with an opportunity to be heard on the proposed terms of the Order.

And be it further

Resolved,

That Canon IV.15.2 be amended to read as follows:

Sec. 2. Within forty days after issuance 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.15.7 be amended to read as follows:

Sec. 7. It shall be the duty of the Hearing Panel to produce the record on appeal, consisting of a transcript of the proceedings before the Hearing Panel together with documentary and tangible evidence received by the Hearing Panel. The record shall be printed or otherwise reproduced as authorized by the president of the Provincial Court of Review. Within thirty days after receiving the record on appeal from the Hearing Panel, the party appealing Respondent shall serve two copies of the record on appeal, the notice of appeal and the appealing party's Respondent’s brief, if any, upon the opposite party Church Attorney and shall deliver five copies to the president of the Provincial Court of Review. Within thirty days after receiving a copy of the record on appeal, the party opposing the appeal Church Attorney shall serve the brief in opposition, if any, upon the appealing party Respondent, with five copies to the president of the Provincial Court of Review. Any reply brief of the appealing party Respondent shall be served likewise within fifteen days following service of the brief in opposition.

And be it further

Resolved,

That Canon IV.15.12 be amended to read as follows:

Sec. 12. If, after a notice of appeal has been filed, appealing party Respondentfails to pursue the appeal as provided in this Canon, the Provincial Court of Review may dismiss the appeal.

And be it further

Resolved,

That Canon IV.15.15 be amended to read as follows:

Sec. 15. Upon determination of the appeal, the president of the Provincial Court of Review shall give notice of the determination in writing to the appealing party, the party in opposition and to the Bishop Diocesan, the Respondent and the Church Attorney. The appeal record shall be certified by the clerk of the Provincial Court of Review and the president, and shall be delivered to the Bishop Diocesan along with a copy of the record on appeal from the Hearing Panel.

And be it further

Resolved,

That Canon IV.19.16 be amended to read as follows:

Sec. 16. There shall be a presumption that the Respondent did not commit the Offense. It shall be the burden of the Church Attorney to establish an Offense by any Respondent. The standard of proof required for a Hearing Panel to find an Offense by a Respondent shall be that of clear and convincing evidence.

And be it further

Resolved,

That Canon IV.19.17 be amended to read as follows:

Sec. 17. In all matters under this Title, it shall be the burden of the Church through the Church Attorney to establish an Offense by any Respondent

Involuntary Statements.

(a) No person proceeding under the authority of this Title may interrogate, or request a statement from, a Respondent or a person suspected of an Offense without first informing that person of the nature of the accusation and advising that person that no statement need be made regarding the Offense of which the Respondent is accused or suspected and that any statement so made may be used in evidence against that person in a proceeding under this Title.

(b) No Respondent or person suspected of an Offense may be compelled to make any statement or admission or to testify against himself or herself in any proceedings under this Title.

(c) No statement obtained from any person in violation of this Canon, or through the use of coercion, undue influence or improper inducement may be received in evidence against that person in a Trial under this Title.

Explanation

The first proposed amendment would require that the Hearing Panel consist of not less than five members of the Disciplinary Board. In addition, it requires that the members of the Conference Panel be chosen "by lot or other random means." The present section provides that it shall consist of three or more members. The Hearing Panel is the trial court. It should consist of at least five members, and they should be randomly selected. The fate of a member of the Clergy should not be in the hands of only two people.

Canon IV.3.1 revision: This proposed amendment would eliminate the new canonical offense of failure "to cooperate with any investigation or proceeding conducted under authority of this Title." Under the present Canon, a Member of the Clergy who, on advice of counsel, refuses to give evidence or testimony which could be self-incriminatory, could be charged with this offense. It is of little value to a Member of the Clergy to have the right to counsel, if then denied the right to follow that advice.

Canon IV.3.3 revision: This proposed amendment would require that for any conduct or condition to be subject to Title IV the alleged offense must be both material and substantial AND of clear and weighty importance to the ministry of the Church. The present language provides for either, not both. Too many frivolous complaints are being prosecuted at great cost to the Church.

Canon IV.5.1 revision: This proposed amendment would require that the Disciplinary Board consist of at least nine persons, that it be elected by the convention of the Diocese, and that the President of the Disciplinary Board be elected by the members of the Board. The number of members must be at least nine if there is to be a Conference Panel of three and a Hearing Panel of five. The Disciplinary Board is the ecclesiastical court. The manner of the selection of the members of the court and the manner of the selection of the President of the Board is necessary to insure impartiality. The present section is silent on both issues, and in at least one Diocese, the Bishop Diocesan not only appoints the Intake Officer and the Church Attorney, but also appoints the members of the Disciplinary Board and chooses its President.

Canon IV.6.3 revision: This proposed amendment gives recognition to the presumption that the accused Member of the Clergy did not commit any canonical offense and requires that the "information’ provided to the Intake Officer be in writing with a certification signed by the Informant that the Informant believes that the reported information is true. This restores a requirement in the predecessor Title IV to eliminate or lessen frivolous complaints.

Canon IV.7.7 revision: This proposed amendment would add a provision stating that no Rector or other tenured Member of the Clergy shall be denied his or her compensation and benefits by virtue of the imposition of a restriction on ministry or placement on Administrative Leave.

This is consistent with the historical polity of the Church and recognizes that accused Members of the Clergy are presumed not to have committed any canonical offense.

Canon IV.12.6 revision: This proposed amendment would provide that a Complainant is required to attend the meeting of the Conference Panel just as the Respondent is required to attend.

Canon IV.13.4 revision: This proposed amendment would provide that no proceedings before the Hearing Panel, except its private deliberations, shall be closed to the Respondent, Respondent's Advisor, Respondent’s Counsel, or to the Church Attorney, and that the Record of the hearing must be verbatim.

Canon IV.13.6 revision: This proposed amendment would eliminate the provision permitting the Hearing Panel to take official notice of technical or scientific facts within the Hearing Panel's specialized knowledge. All evidence must be in the record. This proposed amendment would also eliminate the provision permitting persons other than the Church Attorney and the Respondent to present written statements at the trial. A written statement cannot be cross-examined, and to permit such statements would deny Respondent the right to confront his/her accuser(s) and subject such person(s) to cross-examination.

Canon IV.14.7 revision: This proposed amendment would provide that prior to the issuance of an Order by a Conference Panel or a Hearing Panel, the issuing Panel shall afford the Respondent an opportunity to be heard on the proposed terms of the Order.

Canon IV.15.2, Canon IV.15.7, Canon IV.15.12 and Canon IV.15.15 revisions: These proposed amendments would eliminate the power of the Church Attorney to appeal from the decision of a Hearing Panel. Only the Respondent should be permitted to appeal.

Canon IV.19.16 revision: This proposed amendment would merge the language contained in this section with the language in Canon IV.19.17.

Canon IV.19.17 revision: This proposed amendment would restore the right of an accused Member of the Clergy not to be compelled to testify or give evidence against her/himself. It is taken verbatim from Canon V.14.11 of the predecessor Title IV.