A106 Amend Canon IV.15.5.a
When a Respondent chooses not to participate in proceedings or appear for hearing, they necessarily forfeit certain options to subsequently challenge a hearing panel’s order. This is particularly the case since Title IV proceedings are neither civil nor criminal in nature, but ecclesiastical. Ordained persons who chose not to participate or appear in a Title IV proceeding against them have expressed in such actions a profound disregard for the life and health of the Body of Christ. Such disregard in itself, absent any allegations of misconduct, suggests unfitness for ordained ministry. Not all avenues of appeal which are open to Respondents who participate in the proceedings and in the hearing should be available to a Respondent who had intentionally chosen not to participate. It appears that the language of “clear error” is intended to parallel the secular appellate review standard set out in U.S. v. Gypsum, 333 U.S. 364 (1948) for questions of fact that leave the reviewing court “with the clear impression that a mistake has been committed” in the issuance of a hearing panel order. However, the Court of Review is concerned that without the proposed clarifying language, it could too persuasively be argued that an error which was clear but did not prejudice the Respondent could provide a basis for a Respondent bent on delaying final resolution of a matter to do so to the prejudice of the process, complainants, and the Church. The suggested language assures that the reviewing court retains the ability to set aside orders which are mistaken, while retaining the ability to bring closure where appropriate.
Explanation
When a Respondent chooses not to participate in proceedings or appear for hearing, they necessarily forfeit certain options to subsequently challenge a hearing panel’s order. This is particularly the case since Title IV proceedings are neither civil nor criminal in nature, but ecclesiastical. Ordained persons who chose not to participate or appear in a Title IV proceeding against them have expressed in such actions a profound disregard for the life and health of the Body of Christ. Such disregard in itself, absent any allegations of misconduct, suggests unfitness for ordained ministry. Not all avenues of appeal which are open to Respondents who participate in the proceedings and in the hearing should be available to a Respondent who had intentionally chosen not to participate. It appears that the language of “clear error” is intended to parallel the secular appellate review standard set out in U.S. v. Gypsum, 333 U.S. 364 (1948) for questions of fact that leave the reviewing court “with the clear impression that a mistake has been committed” in the issuance of a hearing panel order. However, the Court of Review is concerned that without the proposed clarifying language, it could too persuasively be argued that an error which was clear but did not prejudice the Respondent could provide a basis for a Respondent bent on delaying final resolution of a matter to do so to the prejudice of the process, complainants, and the Church. The suggested language assures that the reviewing court retains the ability to set aside orders which are mistaken, while retaining the ability to bring closure where appropriate.