The Acts of Convention

House of Deputies

The House of Deputies Committee on Formation and Education for Ministry presented its Report #47 on Resolution A135 (Amend Canon IV.13 Procedural Matters and Discovery) and moved adoption with amendment.

Original Text of Resolution:

(A135)

Resolved, the House of Bishops concurring, That Canon IV.13 be amended to read as follows:

Sec. 1. If When the Conference Panel decides to refer a matter is referred to the Hearing Panel, the president of the Conference Panel shall within three days of that decision promptly notify the president of the Disciplinary Board and the Church Attorney of the referral.

Sec. 2. Upon Within 10 days of receipt of a referral for Hearing Panel proceedings, the Church Attorney shall review all information acquired as of the time of such referral and, if necessary, shall revise or update the statement of the alleged Offense and shall provide the same to the Hearing Panel.provide to the Hearing Panel the statement of the alleged Offense(s), updated as needed. No other material from any prior proceedings under Title IV shall be provided to the Hearing Panel. Upon receipt of the Church Attorney’s communication, Tthe Hearing Panel shall within seven days issue a notice to the Respondent, to the Respondent’s Advisor, to Respondent’s counsel, if any, and to the Church Attorney.

(a) The notice shall describe the nature and purpose of the proceeding, contain a copy of the written statement prepared by the Church Attorney, disclose the names of all persons to whom the notice is sent, advise the Respondent that a written response to the notice must be filed by the Respondent with the Hearing Panel within thirty days of the mailing date of the notice and advise the Respondent that failure to attend or participate in a scheduled or noticed hearing may result in a finding of defaultof the provisions of Canon IV.19.6.

(b) A copy of the notice shall be sent to the Complainant and to the Complainant’s Advisor.

(c) Unless additional time is approved for good cause by the Hearing Panel, the Respondent shall within 30 days of the mailing date of the notice file with the Hearing Panel and deliver to the Church Attorney a written response signed by the Respondent within thirty days of the mailing date of the notice. The president of the Hearing Panel shall forward a copy of the response to the Church Attorney.

Sec. 3. In all proceedings before the Hearing Panel, the Church Attorney shall appear on behalf of the Diocese, which shall then be considered the party on one side and the Respondent the party on the other. Each Complainant shall be entitled to be present throughout and observe the Hearing and each may be accompanied by another person of his or her own choosing in addition to his or her Advisor.

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. A record of the hearing shall be made by such means as to enable the creation of a written transcript of the hearing.

Sec. 53. The Church Attorney and the Respondent shall each be afforded reasonable time and opportunity to prepare evidencediscover evidence in preparation for the hearing as follows:

(a) Within thirtysixty days after the filing and delivery of the response by the Respondent, the Church Attorney and the Respondent’s counsel shall meet and confer regarding the nature and basis of the allegations against the Respondent and the defenses thereto and to make or arrange for initial disclosures as described in Canon IV.13.5(b), and to develop a proposed plan of discovery forms and schedule for approval by the Hearing Panel. A report of the proposed plan shall be filed with the president of the Hearing Panel within fifteen days after the conference.

(b) Within fifteen days after the conference described in Canon IV.13.5(a), the Church Attorney and the Respondent’s counsel shall each provide to the other initial a mandatory disclosure of all evidence known to them that would tend to prove or disprove the allegations against the Respondent, including but not limited to (1) the name and, if known, the address and telephone number of each individual likely to have direct knowledge of information which may be used to support the allegations against the Respondent or the defenses thereto, together with a detailed summary of the expected testimony of the person, if called to testify; and (2) a copy of, or a description by category and location of, all documents and tangible things that may be used to support the allegations against the Respondent or the defenses thereto, except as such disclosure would involve Privileged Communications. The parties must supplement mandatory disclosures made under this section as additional information becomes known. Documents and tangible items identified in the mandatory disclosures that are in the possession of a party shall be produced upon request. The Hearing Panel may, upon request of a party or Injured Person, enter an order limiting production of documents or tangible items of a sensitive nature.

(b) A party claiming that any communication is privileged must provide a log containing the date of the communication, a list of all persons party to the communication, and a short description of the communication. Disputes over the scope of the privilege may be raised with the Hearing Panel.

(c) If the discovery plan has been mutually agreed upon by the Church Attorney and counsel for the Respondent, the president of the Hearing Panel may approve the plan and incorporate it in a discovery order and scheduling order governing all discovery procedures and establishing a date for hearing of the matter. If the Church Attorney and Respondent’s counsel do not agree on all elements of the discovery plan, the president of the Hearing Panel shall allow each to be heard with respect to the elements in dispute, make a determination of appropriate discovery procedures and issue a discovery order and scheduling order within thirty days of the receipt of the discovery planning report.

(c) The Church Attorney and Respondent’s counsel may each also serve on the other up to 20 Requests for Admission at any time within the 60-day period for mandatory disclosures or within 15 days after that 60-day period. A party upon whom a Request for Admission is served must respond by admitting or denying the Request within 30 days of service, and failure to so respond shall be deemed an admission. Where extraordinary circumstances prevent a party from providing a timely response to a Request for Admission, the party may seek relief from the Hearing Panel, which, at its discretion, may grant such relief.

(d) Discovery procedures as approved in the discovery plan filed pursuant to Canon IV.13.5(a) may include written interrogatories, oral or written deposition testimony of any person having knowledge pertaining to the alleged Offense or any defenses, requests for production of documents or tangible objections, and requests for admissions of fact.

(e) In addition to the disclosures required by this section and the discovery obtained pursuant to the discovery plan, the Church Attorney and Respondent’s counsel shall each provide to the other and to the Hearing Panel at least thirty days before the hearing final pre-hearing disclosures including (1) the name, address and telephone number of each witness expected to be called to testify at the hearing; (2) identification of each document or other tangible object expected to be used as an exhibit in the hearing; and (3) requests, if any, to have all or portions of the hearing closed to the public.

(d) The Church Attorney and Respondent’s counsel may each take two depositions without prior permission of the Hearing Panel.

(e) No other discovery shall be allowed at any point during the pendency of a matter under this Title except with permission of the Hearing Panel upon a showing of extraordinary circumstances.

(f) Notwithstanding any provision of this section, in approving or determining the discovery plan, the president of the Hearing Panel shall take reasonable steps to assure that the discovery process will not unduly burden any person from whom information is sought or unduly adversely affect any pastoral response being offered to any such person. The Hearing Panel may impose, after reasonable notice and opportunity to be heard, reasonable sanctions on any party for failure to comply with any discovery or scheduling order pursuant to the provisions of Canon IV.5.5.

Sec. 4. In all proceedings before the Hearing Panel, the Church Attorney shall appear on behalf of the Diocese, which shall then be considered the party on one side and the Respondent the party on the other.

Sec. 5. All pre-hearing motions and challenges shall be timely filed with the Hearing Panel. All responses shall be filed by the non-moving party within 15 days of receipt of the motion or challenge. Upon receipt of a motion or challenge, the Hearing Panel may consult with the Procedural Officer or refer the motion or challenge to the Procedural Officer for determination. Upon receipt of a motion or challenge, the Hearing Panel will promptly set the matter for hearing. The hearing may be conducted by conference call. After consideration of the argument of the parties, the Hearing Panel or the Procedural Officer, whoever conducted the hearing, shall render a decision within three days of the hearing. The decision shall be final as to all procedural matters. Decisions on evidentiary matters are preliminary and may be reconsidered by the Hearing Panel during the course of the hearing if warranted by the evidence. A decision by the Procedural Officer shall be provided to the parties and the President of the Hearing Panel.

Sec. 6. All proceedings before the Hearing Panel except its private deliberations shall be open to the Respondent and to each Complainant, to any Injured Person, and to persons from the public. Each Complainant shall be entitled to be present throughout and observe the Hearing and each may be accompanied at the proceedings by another person of his or her own choosing in addition to his or her Advisor. Notwithstanding the above, the Hearing Panel, at its discretion and for good cause, including to protect the privacy of any person, may close any part of the proceedings to any person or group of persons, after consultation with the Church Attorney, the Respondent’s counsel and, where appropriate, the Bishop Diocesan. A record of the hearing shall be made by such means as to enable the creation of a written transcript of the hearing.

Sec. 7. At least 15 days before the hearing, the Church Attorney and Respondent’s counsel shall each provide to the other and to the Hearing Panel final pre-hearing disclosures including (1) the name, address, and telephone number of each witness expected to be called to testify at the hearing; (2) identification of each document or other tangible object expected to be used as an exhibit in the hearing; and (3) requests, if any, to have all or portions of the hearing closed to the public.

Sec. 68. 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:

(1) may exclude evidence that is irrelevant, immaterial or unduly repetitious;

(2) shall exclude privileged evidence;

(3) may receive documentary evidence in the form of a copy or excerpt if the copy or excerpt contains all pertinent portions of the original document;

(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;

(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.

Sec. 79. Following the conclusion of the hearing, the Hearing Panel shall confer privately to reach a determination of the matter by (a) dismissal of the matter or (b) issuance of an Order.

Sec. 810. If the determination is to dismiss the matter, the Hearing Panel shall issue an Order which shall include the reasons for dismissal and which may contain findings exonerating the Respondent. A copy of the Order shall be provided to the Bishop Diocesan, the Respondent, the Respondent’s Advisor, the Complainant, the Complainant’s Advisor, and the Church Attorney.

Sec. 911. If the resolution is the issuance of an Order other than an Order of dismissal, the provisions of Canon IV.14 shall apply.

Committee Amendment:

Resolved, the House of Bishops concurring, That Canon IV.13 be amended to read as follows:

Sec. 1. IfWhen the Conference Panel decides to refer a matter is referred to the Hearing Panel, the president of the Conference Panel shall within three days of that decision promptly notify the president of the Disciplinary Board and the Church Attorneyof the referral.

Sec. 2. Upon Within 10 days of receipt of a referral for Hearing Panel proceedings, the Church Attorney shallreview all information acquired as of the time of such referral and, if necessary, shall revise or update the statement of the alleged Offense and shall provide the same to the Hearing Panel. provide to the Hearing Panel the statement of the alleged Offense(s), updated as needed. No other material from any prior proceedings under Title IV shall be provided to the Hearing Panel. Upon receipt of the Church Attorney’s communication, Tthe Hearing Panel shall within seven days issue a notice to the Respondent, to the Respondent’s Advisor, to Respondent’s counsel, if any, and to the Church Attorney.

(a) The notice shall describe the nature and purpose of the proceeding, contain a copy of the written statement prepared by the Church Attorney, disclose the names of all persons to whom the notice is sent, advise the Respondent that a written response to the notice must be filed by the Respondent with the Hearing Panel within thirty days of the mailing date of the notice and advise the Respondent that failure to attend or participate in a scheduled or noticed hearing may result in a finding of defaultof the provisions of Canon IV.19.6.

(b) A copy of the notice shall be sent to the Complainant and to the Complainant’s Advisor.

(c) Unless additional time is approved for good cause by the Hearing Panel, the Respondent shall within 30 days of the mailing date of the notice file with the Hearing Panel and deliver to the Church Attorney a written response signed by the Respondent within thirty days of the mailing date of the notice. The president of the Hearing Panel shall forward a copy of the response to the Church Attorney.

Sec. 3. In all proceedings before the Hearing Panel, the Church Attorney shall appear on behalf of the Diocese, which shall then be considered the party on one side and the Respondent the party on the other. Each Complainant shall be entitled to be present throughout and observe the Hearing and each may be accompanied by another person of his or her own choosing in addition to his or her Advisor.

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. A record of the hearing shall be made by such means as to enable the creation of a written transcript of the hearing.

Sec. 53. The Church Attorney and the Respondent shall each be afforded reasonable time and opportunity toprepare evidencediscover evidence in preparation for the hearing as follows:

(a) Within thirtysixty days after the filing and delivery of the response by the Respondent, the Church Attorney and the Respondent’s counsel shall meet and confer regarding the nature and basis of the allegations against the Respondent and the defenses thereto and to make or arrange for initial disclosures as described in Canon IV.13.5(b) and to develop a proposed plan of discovery forms and schedule for approval by the Hearing Panel. A report of the proposed plan shall be filed with the president of the Hearing Panel within fifteen days after the conference.

(b) Within fifteen days after the conference described in Canon IV.13.5(a), the Church Attorney and the Respondent’s counsel shall each provide to the other initiala mandatory disclosure of all evidence known to them that would tend to prove or disprove the allegations against the Respondent, including but not limited to (1) the name and, if known, the address and telephone number of each individual likely to have direct knowledge of information which may be used to support the allegations against the Respondent or the defenses thereto, together with a detailed summary of the expected testimony of the person, if called to testify; and (2) a copy of, or a description by category and location of, all documents and tangible things that may be used to support the allegations against the Respondent or the defenses thereto, except as such disclosure would involve Privileged Communications. The parties must supplement mandatory disclosures made under this section as additional information becomes known. Documents and tangible items identified in the mandatory disclosures that are in the possession of a party shall be produced upon request, and copies of all documents provided to the requesting party. The Hearing Panel may, upon request of a party or Injured Person, enter an order limiting production of documents or tangible items of a sensitive nature.

(b) A party claiming that any communication is privileged If any party withholds from disclosure any relevant document on the ground of privilege, the party must provide a log containing the date of the communication, a list of all persons party to the communication, and a short description of the nature of the communication. Disputes over tThe scope of the privilege mayshall be raised withdetermined by the Hearing Panel, pursuant to Canon IV.19.27.

(c)If the discovery plan has been mutually agreed upon by the Church Attorney and counsel for the Respondent, the president of the Hearing Panel may approve the plan and incorporate it in a discovery order and scheduling order governing all discovery procedures and establishing a date for hearing of the matter. If the Church Attorney and Respondent’s counsel do not agree on all elements of the discovery plan, the president of the Hearing Panel shall allow each to be heard with respect to the elements in dispute, make a determination of appropriate discovery procedures and issue a discovery order and scheduling order within thirty days of the receipt of the discovery planning report.The Church Attorney and Respondent’s counsel may each also serve on the other up to 20 Requests for Admission at any time within the 60-day period for mandatory disclosures or within 15 days after that 60-day period. A party upon whom a Request for Admission is served must respond by admitting or denying the Request within 30 days of service, and failure to so respond shall be deemed an admission. Where extraordinary circumstances prevent a party from providing a timely response to a Request for Admission, the party may seek relief from the Hearing Panel, which, at its discretion, may grant such relief.

Within fifteen days after the delivery of the mandatory disclosures, the President of the Hearing Panel shall convene a scheduling conference with the Church Attorney and Respondent's counsel. During the scheduling conference, after the Church Attorney and Respondent’s counsel have been heard, the president of the Hearing Panel shall issue a scheduling order to provide for (1) a calendar for discovery, including depositions and written interrogatories, as provided in this section; (2) filing deadlines and hearing dates for preliminary motions and for dispositive motions; and (3) the date of hearing before the Hearing Panel.

(d) Discovery procedures as approved in the discovery plan filed pursuant to Canon IV.13.5(a) may include written interrogatories, oral or written deposition testimony of any person having knowledge pertaining to the alleged Offense or any defenses, requests for production of documents or tangible objections, and requests for admissions of fact.

(e) In addition to the disclosures required by this section and the discovery obtained pursuant to the discovery plan, the Church Attorney and Respondent’s counsel shall each provide to the other and to the Hearing Panel at least thirty days before the hearing final pre-hearing disclosures including (1) the name, address and telephone number of each witness expected to be called to testify at the hearing; (2) identification of each document or other tangible object expected to be used as an exhibit in the hearing; and (3) requests, if any, to have all or portions of the hearing closed to the public.

(d)The Scheduling Order shall provide Tthe Church Attorney and Respondent’s counsel authorization to may each take up to two depositions and propound up to twenty written interrogatories regarding each Complainant without prior permission of the Hearing Panel.

(e) No other discovery shall be allowed at any point during the pendency of a matter under this Title except with permission of the Hearing Panel upon a showing of good causeextraordinary circumstances.

(f) Notwithstanding any provision of this section, in approving or determining the discovery plan, the president of the Hearing Panel shall take reasonable steps to assure that the discovery process will not unduly burden any person from whom information is sought or unduly adversely affect any pastoral response being offered to any such person. The Hearing Panel may impose, after reasonable notice and opportunity to be heard, reasonable sanctions on any party for failure to comply with any discovery or scheduling order pursuant to the provisions of Canon IV.5.5 IV.13.7.

Sec. 4. In all proceedings before the Hearing Panel, the Church Attorney shall appear on behalf of the Diocese, which shall then be considered the party on one side and the Respondent the party on the other.

Sec. 5. All pre-hearing motions and challenges shall be timely filed with the Hearing Panel within the time limits prescribed in the scheduling order. All responses shall be filed by the non-moving party within 15 days of receipt of the motion or challenge. Upon receipt of a motion or challenge, the Hearing Panel may consult with the Procedural Officer or refer the motion or challenge to the Procedural Officer for determination. Upon receipt of a motion or challenge, the Hearing Panel will promptly set the matter for hearing. The hearing may be conducted by conference call. After consideration of the argument of the parties, the Hearing Panel or the Procedural Officer, whoever conducted the hearing, shall render a decision within three days of the hearing. The decision shall be final as to all procedural matters. Decisions on evidentiary matters are preliminary and may be reconsidered by the Hearing Panel during the course of the hearing if warranted by the evidence.A The decision by the Procedural Officer shall be provided to the parties and the President of the Hearing Panel and placed on the record of proceedings.

Sec. 6. All proceedings before the Hearing Panel except its private deliberations shall be open to the Respondent and to each Complainant, to any Injured Person, and to persons from the public. Each Complainant shall be entitled to be present throughout and observe the Hearing and each may be accompanied at the proceedings by another person of his or her own choosing in addition to his or her Advisor. Notwithstanding the above, the Hearing Panel, at its discretion and for good cause, including to protect the privacy of any person, may close any part of the proceedings to any person or group of persons, after consultation with the Church Attorney, the Respondent’s counsel and, where appropriate, the Bishop Diocesan. A record of the hearing shall be made by such means as to enable the creation of a written transcript of the hearing.

Sec. 7. At least 15 days before the hearing, the Church Attorney and Respondent’s counsel shall each provide to the other and to the Hearing Panel final pre-hearing disclosures including (1) the name, address, and telephone number of each witness expected to be called to testify at the hearing; (2) identification of each document or other tangible object expected to be used as an exhibit in the hearing; and (3) requests, if any, to have all or portions of the hearing closed to the public.

Sec. 8. 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:

(1) may exclude evidence that is irrelevant, immaterial or unduly repetitious;

(2) shall exclude privileged evidence;

(3) may receive documentary evidence in the form of a copy or excerpt if the copy or excerpt contains all pertinent portions of the original document;

(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;

(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.

Sec.79. Following the conclusion of the hearing, the Hearing Panel shall confer privately to reach a determination of the matter by (a) dismissal of the matter or (b) issuance of an Order.

Sec. 810. If the determination is to dismiss the matter, the Hearing Panel shall issue an Order which shall include the reasons for dismissal and which may contain findings exonerating the Respondent. A copy of the Order shall be provided to the Bishop Diocesan, the Respondent, the Respondent’s Advisor, the Complainant, the Complainant’s Advisor, and the Church Attorney.

Sec. 911. If the resolution is the issuance of an Order other than an Order of dismissal, the provisions of Canon IV.14 shall apply.

Motion carried

Resolution adopted with amendment

(Communicated to the House of Bishops in HD Message #277)