Source: The National Herald
BOSTON, MA – The National Herald reveals the confidential documents of the Legal Committee of the Archdiocese sent to His All Holiness Ecumenical Patriarch Bartholomew regarding the election of the Metropolitan of Chicago relating to the List of Candidates. The issue of those hierarchs serving in Metropolises abroad but who had served as priests in the Archdiocese of America is examined here.
We also reveal the letter of Judge (Ret.) Paul C. Lillios from Chicago who is also a member of the Legal Committee of the Archdiocesan Council but he didn’t sign the Archdiocesan document.
We also include Attorney Thedore Theofilos’ letter to Ecumenical Patriarch Bartholomew dated November 27, 2017.
GREEK ORTHODOX ARCHDIOCESE OF AMERICA
PRIVILEGED AND CONFIDENTIAL ATTORNEY COMMUNICATION
November 17, 2017
His All Holiness Bartholomew
Archbishop of Constantinople, New Rome and Ecumenical Patriarch
342 20 Fener-Halic
Your All Holiness,
We greet you with deep respect and love, in the name of our Lord and Savior Jesus Christ, and ask for your Paternal Blessings. We have been asked by our Holy Eparchial Synod, following the decision made at a special meeting of the Holy and Sacred Synod and members of the Eparchial Synod in the Phanar on August 30, 2017, to provide our counsel on certain legal matters pertaining to the election of a Metropolitan for the Metropolis of Chicago. We have considered these matters carefully and ask for your understanding with respect to the sense of urgency which accompanies the resolution of this critical matter and this communication.
We have divided this letter into two discrete parts. The first part contains our legal analysis regarding a specific question posed to us concerning the election for Metropolitan of Chicago. The second part is a related inquiry regarding the ability to fill this vacancy through the transfer of a Metropolitan of the Holy Eparchial Synod from one Metropolis of the Holy Archdiocese to another.
Our analysis is based on the English version of the Charter and Regulations of the Greek Orthodox Archdiocese of America as required by Article 23 of the Charter and Article 36 of the Regulations, which provide that the English text approved by the Ecumenical Patriarchate is deemed to be the official, legal and governing text for all purposes.
This letter has been produced with the cooperation of, and after much discussion with and comment by, all active members of the Archdiocesan Council Legal Committee, all of whom are licensed attorneys. Seven of the eight members of the Legal Committee concur with this letter and it is submitted by the Legal Committee Chair and Co-Chair on their behalf. Only one member of the Legal Committee did not concur.
8 East 79th Street, New York, NY 10075-0106 . Telephone: (212) 570-3500 . Fax: (212) 570-3569 Web: www:goarch.org . E-mail: email@example.com
PART ONE: ANALYSIS OF TRIPROSOPON LIST ISSUE
On January 18, 2003, Your All Holiness and the Holy and Sacred Synod saw it fitting to grant to the Holy Archdiocese of America a new Charter which governs the Church in America and strengthens its sacred bond with the Mother Church of Constantinople. The inspirational letter of Your All Holiness accompanying the Charter stated the following:
“An expression of the exceptional confidence, honor and love of the Holy Mother Great Church of Christ for the whole body of the Holy Archdiocese of America, is the fact that the new Charter, by-passing established practices for the election of Metropolitans, hands to the Holy Eparchial Synod of the Holy Archdiocese of America the privilege to recommend, with the cooperation of the Archdiocesan Council, three candidates in the event of a vacancy of a Metropolis Seat, out of which the Holy and Sacred Synod of the Ecumenical Patriarchate will elect one.”
The Faithful in America welcomed the Charter as a gift from our beloved Mother Church and a promise of Her support for our continued growth as we extend the mission of the Ecumenical Patriarchate on the American continent. As legal advisors to the Greek Orthodox Archdiocese of America for many years, we have taken a solemn oath to serve our Holy Church to the best of our professional and God-given abilities. In addition, we remain committed to honoring the provisions of the Charter and Regulations, including the provisions regarding the duty of the Holy Eparchial Synod to present the triprosopon to the Holy and Sacred Synod of the Patriarchate for the election of a Metropolitan.
We are committed to preventing any negative effect on the Church in America and its relationship with our Ecumenical Patriarchate. Similarly, we are equally committed to doing all we can to be of assistance at this juncture in the election for the Office of Metropolitan of Chicago. It is our fervent prayer that we can help our Holy Church avoid further delays which could significantly, and potentially permanently, weaken the Metropolis of Chicago and the strength of the sacred ties between the Church in America and the Mother Church of Constantinople.
B. Charter Provisions Regarding the List for the Triprosopon
Article 14 a. of the Charter requires the Holy Eparchial Synod to submit the list of those eligible for the office of Metropolitan to the Ecumenical Patriarchate for its approval. In its wisdom, the Mother Church included a very specific two-level review process. The list is reviewed not only by the Holy Eparchial Synod, but is also reviewed and approved by the Ecumenical Patriarchate. Indeed, this two-level review practice has been followed since the granting of the Charter, with the most recent ratification of the list by the Ecumenical Patriarchate on March 1, 2017. Certainly, this was the process followed in connection with the elections of the Metropolitans of San Francisco and Pittsburgh, the two Metropolitans elected under the current Charter, as well as with the election of three Auxiliary Bishops (Mokissos, Zela and Medeia). In addition, as part of the process, the Archdiocese undertakes a comprehensive and required background check of all candidates to help ensure there are no legal impediments or issues with any candidate.
Accordingly, per the specific and clear language of Article 14, Section a. of the Charter regarding the candidate list provided by the Holy Eparchial Synod in the United States to the Ecumenical Patriarchate: “The list becomes definitive after its ratification by the Ecumenical Patriarchate.”
The term “definitive” is clear and unambiguous. Once the list is approved by the Eparchial Synod and submitted to and approved by the Ecumenical Patriarchate, it is final. Otherwise, there would be no integrity, consistency or end to the election process. As a result, once it is approved by both the Holy Eparchial Syno.d and the Holy and Sacred Synod of the Patriarchate, there is no legal option under the Charter to ignore or disregard that final, definitive and ratified list.
According to Archdiocesan records, the lists submitted by the Holy Eparchial Synod have been ratified by the Ecumenical Patriarchate repeatedly and always without any changes. Most recently, the list submitted to the Ecumenical Patriarchate in November, 2016 by the Holy Eparchial Synod was ratified by the Ecumenical Patriarchate, and thus became final and “definitive”, on March 1, 2017, shortly before the falling asleep in the lord of His Eminence Metropolitan lakovos of Chicago.
As a result, the Holy Eparchial Synod could use only that ratified, final and definitive list in its valid development and submission of a triprosopon for the office of Metropolitan of Chicago, as required by the Archdiocesan Charter and its implementing Regulations. The detailed and prescribed process under the Charter was carefully and fully followed, and any deviation from that process would disregard the Charter, Regulations and all past precedent.
C. Perceived Deficiencies in the Currently Ratified List
1. Omitted Names Identified. We understand that, after the fact, there may be some concerns about possible omissions in the list ratified by the Ecumenical Patriarchate in March of this year. In order to understand the perceived problems with the most currently ratified list, we have reviewed the written concerns raised by a Metropolitan of the Holy Eparchial Synod regarding two possible omissions of priests of the Holy Archdiocese. During the consultation process required by Article 5, Section 6 of the Regulations, a very small number of comments were offered with respect to these omitted individuals and that fact was communicated to the Holy Eparchial Synod as part of the Consultation Committee’s report. It should be noted that the two omitted names were priests of the Holy Archdiocese; no hierarchs were mentioned.
If, in fact, the priests who were omitted are eventually determined by the Holy Eparchial Synod, in accordance with Article 5, Section 6.C.1.c. of the Regulations, to have engaged in a “period of sufficient service” in the Archdiocese, as required by Article 14 d. of the Charter – a determination which has not yet been made – such individuals can certainly be considered by the Holy Eparchial Synod for addition to future lists. (As stated in the Regulations, the determination of “sufficient service” shall be made by the Holy Eparchial Synod.) But, since the current list is final and was ratified by the Ecumenical Patriarchate in March of this year, in accordance with the prescribed process, there can be no changes to that list. To do anything different would mean that no list is ever final and could be amended at any time. This strikes at the integrity of and would undermine the methodical and conciliar process provided for in the Charter and could lead to a potentially endless process in which there is never really a “final list” since names could continue to be added and deleted at any time, even after approval by the Holy and Sacred Synod.
Because of the vital importance of the list and the procedures surrounding its development and ratification, we have taken the time to review historical documents, including the exact transcript of the 2002 Clergy Laity Congress in Los Angeles, California, at which time Dr. Elenie Huszagh, a member of the Joint Committee that assisted the Ecumenical Patriarchate with the development of the Charter, addressed the issue of the list with the delegates of the Congress. During her explanatory remarks, Dr. Huszagh stressed the importance of the list and its publication as part of the consultation process as follows:
“This is something very, very new, and was brought to us in large measure by the recommendation of His Eminence our Archbishop, because then we know who is on the list, who is eligible, who has in fact been approved by both our Church and the Patriarchate, so that there’s no – you know, there’s no hidden agendas or anything there that everybody isn’t a party to. ”
1. Deletions. Similarly, if there are individuals on the final and approved list who subsequently are determined by the Holy Eparchial Synod no longer to be eligible due to unwillingness to serve, retirement, physical or mental incapacity, or failure to meet the specific requirements for the Office of Metropolitan outlined in the Charter, those names would be removed the next time a new list is created, approved by the Eparchial Synod and submitted and finally approved by the Holy and Sacred Synod of the Ecumenical Patriarchate. Of course, the Eparchial Synod, in its consideration of eligible candidates, can merely not vote to include any such individual in the triprosopon. The process in the Charter and Regulations clearly works well, as intended.
2. Addition of Metropolitans Serving Metropolises That Are Not Metropolises of the Holy Archdiocese of America. We have also been advised that a question was asked about the possibility of adding the names of Metropolitans serving Metropolises other than the Metropolises of the Holy Archdiocese of America.
From a legal perspective, even if the barrier to changing the list after ratification did not exist, we see no authority in the Charter and Regulations to authorize the addition to the list of Metropolitans serving Metropolises that are not Metropolises of the Holy Archdiocese of America. The Charter does, however, include a provision that would allow a qualified clergyman of the Archdiocese who might be residing outside of the United States at the time of an election (for example, on sabbatical or pursuing studies outside of the United States) not to lose his eligibility during such period of time outside the country. Thus, the “residence” reference in Article 14 e. of the Charter provides clarification that the physical location of an otherwise qualified member of the clergy of the Archdiocese would not prevent him from being on the list or the triprosopon.
In contrast, there is nothing in the Charter or Regulations that authorizes a Metropolitan serving a Metropolis outside of the Holy Archdiocese of America to be included on either the list or the triprosopon. In fact, were there to be a legal challenge, the exact wording of the current Charter would most likely be viewed as supporting the proposition that such individuals currently are not considered eligible to serve as Metropolitans of the Holy Eparchial Synod.
More specifically, and from an American civil law perspective, we call attention to the difference between the English version language pertaining to the election of a Metropolitan, and the language relating to the election of the Archbishop of America.
–Article 14, Section e., from “Election of a Metropolitan”, states that those fulfilling the necessary conditions are eligible: “regardless of the place of residence during the time of the election.”
–Article 13, Section c., from “Election of the Archbishop”, states that those fulfilling the necessary conditions are candidates: “regardless of the place of residence or service during the time of the election.” (emphasis added)
The omission of the words “or service” is an important fact in the context of the American legal system. In interpreting Charters and similar legal documents, the law requires us to acknowledge that words included in one section and omitted in another were intentionally included and omitted and must be interpreted to cause a different result because of such intention. Because, according to both the Charter and Regulations, the English text is the official version, the inclusion of the word “diakonia” in both Article 13 and 14 of the Greek version of the Charter does not change this analysis.
Notably, the transcript of the 2002 Clergy laity Congress includes considerable discussion about the importance of permitting a candidate outside of the Archdiocese (Bishop Kallistos Ware as one example) to be eligible for election as Archbishop of America. But, the transcript indicates that there was no request, whatsoever, by the Congress to include similar language with respect to the election of a Metropolitan. In any event, it is our considered opinion that a Metropolitan who serves a Metropolis that is not one of the Metropolises of the Holy Archdiocese of America is not eligible to serve as a Metropolitan in any Metropolis of the Archdiocese, unless there is an appropriate amendment to the Charter and Regulations.
In the over 15 years since the 2002 Clergy laity Congress, two Metropolitans have been elected, all following the clear provisions of the Charter that require that clergy of the Holy Archdiocese of America are the only ones eligible for consideration. Of course, if any changes to the Charter and Regulations allowing for Metropolitan candidates to come from Sees outside of the Archdiocese are now deemed desirable, then an amendment to the Charter and Regulations can be pursued according to the amendment process outlined in the Charter and Regulations. More specifically, a proposed amendment(s) by the Archdiocesan Clergy Laity Congress and subsequent ratification by the Ecumenical Patriarchate would be necessary. Anything short of following the required Charter and Regulations amendment process would lack integrity and could result in legal challenges after extended, costly and divisive disputes and damage.
The requirement of an amendment to the governing documents of the Archdiocese to add Metropolitans from outside the Archdiocese to the list is further clearly supported by past precedent and practice. At no time since the granting of the Charter, and the many ratifications of the list by the Ecumenical Patriarchate and elections of Metropolitans and Auxiliary Bishops, has the name of any individual serving a Metropolis outside of the Archdiocese ever been included on the list. In fact, to our knowledge, this issue has never before even been raised by either the Ecumenical Patriarchate or the Holy Eparchial Synod. However, as stated above, if it is the will of the Holy and Sacred Synod to make a change to the Charter and Regulations, the Archdiocesan Legal Committee would properly execute its duties to appropriately present this amendment to the Clergy Laity Congress.
PART TWO: TRANSFER OF METROPOLITANS WITHIN THE ARCHDIOCESE OF AMERICA
In connection with the Chicago Metropolis vacancy, we have been asked if an existing Metropolitan within the Holy Archdiocese can be transferred to another Metropolis within the Holy Archdiocese. We are aware that transfers of Metropolitans in the Holy Orthodox Church outside of the United States occur from time to time.
In addressing this question of first impression in the United States from the legal perspective, under the Charter and Regulations, the internal transfer of a Metropolitan from one of the Metropolises of the Archdiocese to another Metropolis within the Holy Archdiocese of America is a much different matter than the addition of a Metropolitan from a Metropolis outside of the Archdiocese to the list of eligible candidates.
Notably, each Metropolitan serving on the Holy Eparchial Synod has already (while a priest or Auxiliary Bishop) been determined to be “eligible” to serve as a Metropolitan of the Holy Eparchial Synod. Indeed, all candidates from within the United States have been fully vetted and investigated through the required legal background and other checks, and their candidacy has been commented on by the Faithful in the United States through the conciliar consultation process. Following such diligent processes, each was recommended by the Holy Eparchial Synod in the United States and ultimately elected by the Ecumenical Patriarchate to serve as a Metropolitan within the Archdiocese.
Additionally, there is nothing in the Charter that prevents the internal transfer of a Metropolitan from one Metropolis of the Holy Archdiocese of America to another Metropolis of the Archdiocese. By virtue of being elected a Metropolitan of the Holy Archdiocese of America and a member of the Holy Eparchial Synod by the Ecumenical Patriarchate, a Metropolitan of the Archdiocese is, de facto, eligible to serve another Metropolis within the United States, barring any canonical prohibitions and subject to the recommendation of the Holy Eparchial Synod and election by the Ecumenical Patriarchate.
Clear evidence of this right is the fact that per Article 12 of the Charter, in the event of a vacancy in a Metropolis, another Metropolitan of the Holy Eparchial Synod serves as locum tenens and administers the adjacent vacant Metropolis. This provision of the Charter does not permit a Metropolitan who serves a Metropolis that is not a Metropolis of the Holy Archdiocese to serve as locum tenens, thus providing further evidence that succession for Metropolitans of the Holy Eparchial Synod does not include those other Metropolitans.
Of course, it is understood that the transfer of a member of the Holy Eparchial Synod from one Metropolis to another within the United States should be considered only by oikonomia when, in the discretion and wisdom of both the Holy Eparchial Synod and the Ecumenical Patriarchate, such a transfer serves the best interests and unique needs of the Holy Church in America.
We have been blessed over the years to have had hierarchs who are not part of the Holy Archdiocese of America spend varying lengths of time in the United States, including at the Holy Cross School of Theology. However, regardless of the length or purpose of their stays, they never became members of the Holy Eparchial Synod. Clearly, in reading through the provisions of the Charter (Article 7, Rights and Responsibilities of the Metropolitans, as one example), it is apparent that only Metropolitans of one of the eight Metropolises of the Holy Archdiocese are considered to be Metropolitans of the Archdiocese. However, as stated previously, all of these many provisions can be formally amended through the detailed process established in the Charter for its amendment, if that is the desire. Such a significant number of Charter amendments would obviously take some time and need to be approved at many levels, including the Holy Eparchial Synod, the Archdiocesan Council, the Clergy Laity Congress, and of course, most importantly, by Your All Holiness.
We respectfully and prayerfully provide this, our best legal advice, to Your All Holiness as requested and in an effort to bring this critical matter to a prompt and successful conclusion, in a manner consistent with the Charter and Regulations and in such a manner as will avoid dissension, distractions and division within our Holy Archdiocese.
Time is of the essence, as those who would undermine the authority of the Ecumenical Patriarchate are already obfuscating the issues and notifying the Faithful of what they perceive to be a failure to uphold the Charter — an act that many are portraying as a violation of the sacred trust reflected in the Charter.
We believe that proceeding now with the election of the Metropolitan of Chicago using either: (a) the current list submitted by the Holy Eparchial Synod and approved by the Holy and Sacred Synod; or (b) through the transfer of a Metropolitan of the Holy Eparchial Synod from one Archdiocesan Metropolis to another, by oikonomia, following a request by the Holy Eparchial Synod to the Ecumenical Patriarchate, is legally consistent with the Charter and Regulations and poses no legal or other impediment to the development of a revised list for future elections. We do not believe the Charter and Regulations support or permit adding to the list the names of Hierarchs or other clergy serving Metropolises outside of the Archdiocese unless the Charter and Regulations are appropriately amended.
We pray that this communication will be accepted in the sincere, respectful and loving spirit in which it is intended. We seek your Patriarchal guidance as we work to serve our Holy Orthodox Church in America, Your All Holiness and His Eminence Archbishop Demetrios of America and the Holy Eparchial Synod, and we remain,
With deepest respect and wholehearted dedication, Your servants in Christ,
Catherine Bouffides Walsh, Esq., Legal Committee Chair
Demitrios M. Moschos, Esq., Legal Committee Co-Chair
Submitted on behalf of the following, concurring members of the Archdiocesan Council Legal Committee:
Catherine Bouffides Walsh (Chair) (Direct Archdiocesan District) Archon Demetrios M. Moschos (Co-Chair) (Metropolis of Boston) Archon George Tsandikos (Direct Archdiocesan District) Archon William Marianes (Metropolis of Atlanta) Archon Peter Clyde Papadakos (Metropolis of Pittsburgh) George G. Demos (Metropolis of San Francisco) Maria Logus (Direct Archdiocesan District)
Judge (ret.) Paul C. Lillios
33 North LaSalle Street, Suite 2000
Chicago, Illinois 60602
November 25, 2017
His All Holiness Bartholomew
Archbishop of Constantinople, New Rome and Ecumenical Patriarch
342 20 Fener-Halic
Your All Holiness:
Greetings with the deepest reverence, love and respect in the name of our Lord and Savior Jesus Christ.
As a member of the Legal Committee of the Holy Greek Orthodox Archdiocese of America (“Archdiocese”), I have been asked to elucidate upon the reasons as to why I did not specifically concur with all of the conclusions reached in the Legal Committee Memorandum of November 17, 2017 (“Memorandum”), submitted by the other members of the Archdiocese Legal Committee to Your All Holiness and to the Holy and Sacred Synod of the Ecumenical Patriarchate (“Holy Synod”). Although I deem myself most unworthy of this responsibility, please allow me to set forth my views as best as I can.
First and foremost, in submitting this letter, it is important to recognize there is absolutely no personal disagreement or dissension amongst the members of the Legal Committee itself. All of our work as members of the Committee has been performed with the utmost love and respect for one another, and, most importantly, as brothers and sisters in Christ working together for the good of our Mother Church.
Whatever differences we may have, such differences concern only with how documents are interpreted from a lawyerly perspective as viewed through the prism of American civil law. While we lawyers certainly do not always reach the same conclusions in interpreting various legal documents, please know the entire Archdiocese Legal Committee is truly of one mind and heart in seeking the best for our beloved Church and in providing all perspectives so that the right and correct decision may be reached.
The issue at hand concerns the selection of a Metropolitan for the Metropolis of Chicago, and how this may be best accomplished given relatively unique circumstances that have not been fully addressed before in America. That is, whether or not the Metropolis of Chicago may be filled by way of transfer of a Metropolitan of the Ecumenical Patriarchate, who has already been consecrated to the episcopacy, previously determined by the Holy Synod to be worthy of the office of Metropolitan, and meets the selection criteria set forth in the Charter, or, alternatively, whether appointment must only be made through an exclusive, mandated selection list comprised of only Archimandrites and Auxiliary Bishops of the Archdiocese.
In its Memorandum, the Legal Committee provides an interpretation of several provisions in order to essentially conclude that no Metropolitan, other than perhaps a current Metropolitan of the Archdiocese, may step in to assume the hierarchical responsibilities of the Metropolis of Chicago.
I believe this approach is problematic, because utilizing legal principles of statutory construction to answer an ecclesiastical question not previously contemplated or thoughtfully considered is difficult at best, and most certainly, fraught with peril. Given there are no provisions in the Charter or Regulations that even remotely cover this particular circumstance, the better course is to follow what Orthodox Church authorities have done for centuries when confronted with novel or untested new circumstances: refer the matter for decision to the entity best qualified to decide – the Holy Synod.
In point of fact, the Charter itself recognizes this centuries-old practice and provides the Archdiocese a direct solution for a situation such as this. In those cases where no Charter or Regulation can reasonably be applied, Art. 1b of the Charter unambiguously states such issues are to be referred to the Holy Synod for final determination:
“The Archdiocese, being Hierarchical, as an Eparchy of the Ecumenical Throne, is governed by the Holy Scriptures, Sacred Tradition, the Holy Canons, this Charter, the Regulations promulgated pursuant hereto (“Regulations”), and as to canonical and ecclesiastical matters not provided for herein, by the decisions of the Holy and Sacred Synod of the Ecumenical Patriarchate (“Holy Synod”).” (Emphasis added)
Pursuant to this provision of the Charter, since neither the Charter nor any Regulation provide any other answer to this question, i.e., with no other more applicable provision being on point, the Holy Synod therefore possesses all of the necessary authority and is legally empowered pursuant to the Charter of the Archdiocese to find a proper resolution of this issue as it best decides.
There most certainly is nothing untoward about allowing the Holy Synod to decide this matter and concluding that it should do so in this case, in fact, reflects overwhelming consistency and harmony with numerous other provisions of the Charter. First, the Archdiocese is hierarchical in nature and exists as an eparchy of the most Holy, Apostolic and Patriarchal Ecumenical Throne of Constantinople (“Ecumenical Patriarchate”). Therefore, in many meaningful ways, it acts as one with the Ecumenical Patriarchate. See Charter, Art. 1a; Regulations of the Greek Orthodox Archdiocese of America (“Regulations”), Art.1, Sec.1. All major decisions regarding the life and governance of the Archdiocese are also ultimately determined, ratified, approved or decided by the Holy Synod. For example, the Archdiocese follows the Ecumenical Patriarchate guidelines and positions with respect to all intra-Orthodox, intra-Christian, and inter-religious activities, Art. 2c; the Ecumenical Patriarchate has final decisional authority regarding the number, seats of Metropolises and boundaries of same, Art. 3a; the governance of the Archdiocese is subject to the Ecumenical Patriarchate, which is recognized as its “superior ecclesiastical authority,” Art. 4b; the Eparchial Synod must keep the Ecumenical Patriarchate informed of all matters discussed and decisions reached, Art. 5b; the Ecumenical Patriarchate approves all Regulations of the Archdiocese, Art. 5c; the Archbishop is the Exarch of the Ecumenical Patriarchate and reports to the Ecumenical Patriarchate, Art. 6; during Divine Worship, the Archbishop and the Metropolitans commemorate the name of the Ecumenical Patriarch, Art. 8; the decisions of the Ecumenical Patriarchate with respect to spiritual court matters are final and irrevocable, Art. 9c, 9e; and, depending on the process involved, the Ecumenical Patriarchate is the final selecting authority for Archbishops, Metropolitans and Auxiliary Bishops, Art. 13, 14, 15. Finally, the Charter to the Archdiocese itself, and all amendments thereto, are granted exclusively by the Ecumenical Patriarchate to the Archdiocese, Art. 24, 25.
While the Legal Committee has certainly faithfully worked hard to provide thoughtful guidance and insight through interpretation of several provisions of the Charter and Regulations, unfortunately, when such conclusions are considered closely and in-depth, more questions are raised rather than answered; and it becomes clear that rote application of existing Charter and Regulation provisions to answer this novel issue simply are not adequate.
For example, although the Memorandum points to the list of candidates eligible for selection as being “definitive” and “there is no legal option under the Charter to ignore or disregard that final, definitive and ratified list” (Memorandum p. 3), the fundamental deficiency to this argument of exclusive reliance is that compilation of the list itself never contemplates, refers to, or makes accommodation for the addition of existing Metropolitans to the list. It just does not apply to this circumstance and thus cannot be the basis for exclusive reliance.
In fact, the list should not be seen as the sole source for selection since the language of the Regulations seem only to refer to those who are first seeking to ascend to the office of Metropolitan rather than anything else, such as a Metropolitan who has already been consecrated. Cursory review of Article 5, Section 6 of the Regulations confirms this, in that Section 6(A)(1) speaks to obtaining the recommendation of an Archdiocesan Council member regarding “his or her recommendation of the person(s) for election to Hierarchical Office.”
Section 6(A)(2)(e) refers to a “candidate for hierarchical office” and Section 6(A)(2)(g) references a close review of a candidate’s record that “pose a reasonable impediment to the candidate’s serving in a hierarchical capacity…”. Of course, none of these provisions are applicable to an existing Metropolitan already deemed worthy by the Holy Synod to hold hierarchical office.
Rather than conclude, as the Legal Committee did, that the previously constituted list (by which its very terms and construction purposely excludes consideration of existing Metropolitans) must be utilized almost without exception, it seems the better approach in light of this issue of first impression is to straightforwardly recognize there truly are two separate and distinct tracks in existence available to the Holy Synod for the filling of the Chicago Metropolis: one through the list constituted by the Archdiocese pursuant to the Charter and Regulations that is designed specifically for priests who have not achieved hierarchical office and auxiliary bishops, and one through the historically established practice of transfer of an existing Metropolitan from one location to another.
There is no question but that the Holy Synod has in the past directed the transfer of Archbishops and Metropolitans. Transfer is part of the fabric of our Church. Even the Memorandum acknowledges this authority when the Legal Committee states in Part Two of its Memorandum, “there is nothing in the Charter that prevents the internal transfer of a Metropolitan from one Metropolis…to another Metropolis of the Archdiocese.” See Memorandum, p. 8. Thus, the filling of some positions by way of transfer is part of the long-established tradition within the Ecumenical Patriarchate and has always provided the Church with needed flexibility in order to properly and efficiently address the needs of the people.
The question of who may be eligible for transfer really constitutes the crux of the matter.
Separately, the Memorandum places emphasis on interpretation of Art. 13c and Art. 14e to conclude, in part, that while the Chicago Metropolis could conceivably be filled by transfer of a Metropolitan currently sitting within the Archdiocese, it could not be filled by one serving outside of the Archdiocese.
Unfortunately, this conclusion is not well supported by any language found within the Charter or Regulations.
In this regard, leaving aside for the moment (1) the problems associated with the Memorandum’s inherent conclusion that the distinction, status and office of a Metropolitan faithfully serving inside an Archdiocese that is an eparchy of the Ecumenical Patriarchate is somehow fundamentally different than a Metropolitan faithfully serving outside the Archdiocese but under the direct jurisdictional aegis of the Ecumenical Patriarchate (note that both are ultimately appointed by the Holy Synod and both are obligated to be faithful to the Ecumenical Patriarchate) and (2) the internal inconsistent analytical construct employed in the Memorandum to reach its conclusion (i.e., “we see no authority in the Charter or Regulations to authorize the addition [i.e., transfer in]” of Metropolitans serving outside of an Archdiocese Metropolis, Memorandum p. 5, versus “there is nothing in the Charter that prevents the internal transfer of one Metropolitan from…the…Archdiocese to another Metropolis of the Archdiocese,” Memorandum, p. 8 (emphasis added)), it is respectfully submitted that the real deficiency lies in the comparison of two somewhat disparate provisions, and in the placing of too much weight upon a relatively minor difference in language as between Art. 13c and 14e, to reach a conclusion that no Metropolitan outside of the Archdiocese is ever eligible for transfer or inclusion within the list, absent Charter revision.
Parenthetically, as a past member of an Archdiocesan ad hoc Charter revision committee, I can state there are a number of reasons that may well account for such language differences. These differences range from drafting oversight, lack of consideration for the possibility of transfer, to substantive assumptions of the drafters regarding the actual nature of the service involved as between the two offices. What is clear, however, is that these two solitary and relatively indescript provisions (which ironically serve to expand rather than constrict selection of candidates) – when they are viewed in the entire context of our circumstances and read in context with the remainder of each section – do not support an inference that no Metropolitan serving under the Ecumenical Patriarchate may ever be designated to serve as a Metropolitan in the Archdiocese absent revision of the Charter.
The most overt difficulty experienced when one expressly compares the Art. 13, Archbishop qualification, to the Art. 14, Metropolitan qualification, in order to conclude, as the Legal Committee did, “that words included in one section and omitted in another were intentionally included and omitted and must be interpreted to cause a different result because of such intention,” is that the two comparative provisions actually utilize different definitions or requirements for “service.” The service provision found in Art. 13 for the election of the Archbishop states that the candidate shall “have had a period of successful service in the Archdiocese of no less than five (5) years or to have proven, direct, substantive and broad knowledge of the life and status of the Church in America.” See Art. 13b. In contrast, the qualification for service relative to the election of a Metropolitan only states that the candidate “shall have had a period of sufficient service in the Archdiocese.” Art. 14d. Therefore, any difference in language seen pursuant to any comparison may well be due to the differential definitions used in each qualification section as opposed to anything else.
These differences must be considered in the analysis because Art. 13c and Art. 14e relied upon by the Legal Committee for its conclusion specifically modify and reference the two above different service provisions found in Art. 13b and Art. 14d. Rather than conclude that any Metropolitan outside of the Archdiocese is always excluded from consideration, it may well be the lack of reference to the place of service with respect to the selection of a Metropolitan is seen because an additional reference to “service” would be superfluous. That is, Art. 14d requires some degree of service within the Archdiocese. (It should also be noted Art. 14d does not impose any residency limitation on the potential candidate for Metropolitan or Archbishop. In terms of statutory construction, this evinces an intent that this section be interpreted to be more expansive and inclusive, rather than limiting and constrictive).
On the other hand, the drafters of the Charter may well have included reference in Art. 13c to the place of service for selection of the Archbishop because service sufficient to qualify the candidate for the position of Archbishop, in addition to direct service in the Archdiocese, could also be through “proven, direct, substantive and broad knowledge of the life and status of the Church in America.” In other words, the Church provides a means for a candidate to ascend to the office of Archbishop either by way of direct service in the Archdiocese or by way of academic or substantive knowledge of the Church in America, with such knowledge having been acquired outside of the Archdiocese.
There is no authority or justification to equate an existing Metropolitan’s “service” in satisfaction of the Metropolitan qualification provision to mean only “service” as a Metropolitan outside of the Archdiocese. There is no support in the Charter or Regulations for this additionally imposed consideration because, certainly, if a Metropolitan currently serving outside of the Archdiocese happens to also possess qualifying service inside the Archdiocese as well (either as an Archimandrite or auxiliary Bishop), it would be patently unfair and unsupportable to ignore and discount that service while crediting service of the exact same nature for an Archimandrite or auxiliary Bishop who may appear on the list.
Accordingly, in fashioning a result that is most consistent with the intent and spirit of the Charter, rather than extrapolate substantive intent from two obscure and somewhat different provisions, it is just better to look specifically and directly to the requirements of Art. 14d to determine whether or not a Metropolitan outside of the Archdiocese could be considered by the Holy Synod to be eligible for transfer. In that regard, a reasonable construction is that as long as a Metropolitan of the Ecumenical Patriarchate is (1) a person of deep faith and ethos, (2) a Greek Orthodox Christian, (3) a graduate of an academically recognized and accredited Orthodox school of theology of the highest level, (4) a person who has a fluent knowledge of spoken and written English and Greek, (5) a person of proven ability in administration and pastoral work, (6) a person not less than thirty-five (35) years of age, and (7) a person who has had a period of sufficient service in the Archdiocese, there should be no valid reason to exclude any current Metropolitan from such appointment. Stated differently, any Metropolitan could properly be considered by the Holy Synod to be eligible for transfer to the Metropolis of Chicago, so long as that candidate possesses the above seven qualifications. Such a selection would fully comport with the requirements set forth for selection pursuant to the Charter and would be legally defensible.
From a policy standpoint, this course of action makes the most sense in light of all of the requirements set forth in the Charter and Regulations. It accords the greatest degree of flexibility in serving the people and best deciding how resources should best be allocated while eliminating the inherent unfairness in classifying or differentiating the Metropolitans per the Legal Committee opinion. This construction also fully satisfies the appropriate concerns expressed in the Memorandum with respect to the lack of “vetting” of any potential candidate, because current Metropolitans have already been deemed worthy of hierarchical office by the Holy Synod; and, if the transferee has prior service in the Archdiocese as either an Archimandrite, auxiliary Bishop or Metropolitan, all concerns are satisfied as to whether any potential transferee possesses a sufficient nexus to the life of the Archdiocese prior to assumption of the position.
Finally, although time constraints, as well as my role as a member of the Legal Committee rather than as an attorney for any entity or person, do not permit the rendering of any definitive legal opinion that can be relied upon, some general observations regarding how courts may consider such issues as those that appear in this matter are appropriate. The United States Supreme Court has held no state law may contravene the Free Exercise Clause or the Establishment Clause of the First Amendment, particularly when any potential infringement directly affects the exercise of an ecclesiastical right, such as the right of a Church to choose its hierarchy. See e.g., Hosanna Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694 (2012). This right was more thoroughly considered in Serbian Eastern Orthodox Diocese for the United States and Canada v. Milivojevich, 426 U.S. 696 (1976), where the Supreme Court held civil courts must accept the determination of hierarchical religious organizations regarding its own rules and regulations, because to do otherwise, would require civil courts to resolve “quintessentially religious controversies whose resolution the First Amendment commits exclusively to the highest ecclesiastical tribunals” of the Church. Id., at 720. In this case, we are discussing the potential selection of a hierarch and the conclusion that the Charter leaves the ultimate determination to the highest Church authority possible, the Holy Synod. Certainly, under this circumstance, I cannot conceive of any probable scenario where a civil court could rightfully assume subject matter jurisdiction in order to mandate how a hierarchical Church should choose its hierarchy. See e.g., Hosanna, id., “[t]he church must be free to choose those who will guide it on its way.”
Since the Charter of the Archdiocese and the Regulations do not provide any definitive answer to the present question at hand and do not adequately address the issue currently confronted, the Charter mandates deferment to the decision of the Holy Synod as to how best to resolve this issue. At this point, then, all discussion becomes wholly advisory to the Holy Synod as it possesses the full authority and discretion to act as it deems best. By way of simple advice, however, if the Holy Synod in its discretion determines (as it has in other cases), this position may be best filled by transfer of a qualified, presently consecrated Metropolitan, either from within the Archdiocese or outside of the Archdiocese, and in doing so, utilizes as part of the selection process the qualification standards set forth in Art. 14d, it is my opinion this determination would stand fully in accord with the Charter and the Regulations, since such a course of action fully respects the spirit and intent of the Charter provisions. Similarly, if the Holy Synod chooses only to select from the submitted list, and considers transfer but decides transfer is not warranted, that decision would also be rightfully seen as standing fully in accord with the Charter and the Regulations as well.
Most respectfully, and Your Servant in Christ,
Paul C. Lillios
Archon, Proto Ekdikos
THEODORE J. THEOPHILOS
535 WOODSIDE AVENUE
HINSDALE, ILLINOIS 60521
November 25, 2017
His All Holiness Bartholomew
Archbishop of Constantinople, New Rome and Ecumenical Patriarch
342 20 Fener-Halic
Your All Holiness,
Attached is my reply to the Archdiocesan Legal Committee letter dated November 17, 2017. I did not think it appropriate for me in my response to address all of my reactions to the letter and the general controversy. Please allow me to express my more personal thoughts.
Plainly said, I thought the letter was outrageous. I would never have expected such a communication coming from the Archdiocese. The Charter is being asserted as the principle source of authority on the manner by which a Metropolitan is selected and as a limitation on Your All Holiness’ Canonical role. This is not the Charter’s intent, and this aggressive interpretation of the Charter should not be tolerated, let alone advanced, by the Archdiocese. Back several years ago, the group OCL filed a lawsuit making several of the same Charter arguments when Archbishop Demetrios was himself elected. I wrote a letter to one of the United States newspapers rebutting the OCL’s charter arguments. At that time, the Archbishop was highly complementary of my Charter analysis. These misplaced Charter arguments were wrong then, and they are wrong now. The Charter needs to be viewed in its proper canonical context, and we walk down a very perilous road when we call on civil lawyers to make definitive conclusions about the Charter’s applicability to matters that squarely rest on canonical principles. The fact that the Archbishop turned to a committee of civil lawyers on this matter is a highly divisive action. The election of a Church Hierarch is not a matter that any civil lawyer should present a professional opinion without great deference to higher canonical authorities.
I should add that the letter itself is very aggressive, despite pious language, which I thought was artificial and insincere. There was a threatening tone to the communication which upset me a great deal. The Committee argued that the thin terms of the Charter control, the Patriarchate is stuck with the Charter, and if you want to amend the Charter you will have to get the Archdiocesan Clergy and Laity’s approval first. Sometimes, when I imagine an autocephalous Orthodox Church in the United States, I despair of sentiments like those expressed by the Legal Committee, because they demonstrate the absence of a proper foundation apart from our relationship with the Ecumenical Patriarchate.
After reading the letter, I was left with this question: why this letter at this time? In the United States, we have become used to our political leaders obfuscating unwanted scrutiny by directing public attention to other matters. Perhaps this is what is happening here.
I apologize, Your All Holiness, if I have appeared too critical of the Archdiocese and its Legal Committee. I wanted to share the full range of my reactions to the letter.
Most respectfully and with humility,
THEODORE J. THEOPHILOS
535 WOODSIDE AVENUE
HINSDALE, ILLINOIS 60521
November 25, 2017
Archbishop of Constantinople, New Rome and Ecumenical Patriarch
342 20 Fener-Halic
Your All Holiness,
At your request, I have reviewed a certain letter dated November 17, 2017 sent to you by the Archdiocesan Legal Committee, signed by the Chair and Co-Chair of that committee. I will begin with a statement of the undisputed facts associated with this matter.
• In the later part of 2016, a list of candidates for future open Metropolises in the Archdiocese was submitted to the Ecumenical Patriarchate.
• In the spring of 2017, it appears that the list was approved by the Ecumenical Patriarchate.
• Prior to the voting by the Eparchial Synod on possible successors to the open position of Metropolitan of Chicago, the completeness of the list was protested by Metropolitan Gerasimos of San Francisco stating that certain names that should have been included on the list were not. Archbishop Demetrios opposed the challenge to the completeness of the list, and the voting proceeded. Metropolitan Gerasimos appealed the matter to the Holy Synod.
• Your All Holiness considered the Metropolitan’s concerns and further reviewed the list.
• The Ecumenical Synod declined to elect any of the three candidates proposed by Archbishop Demetrios and the Holy Eparchial Synod and further requested Archbishop Demetrios and the Holy Eparchial Synod to revise the list and include additional candidates, among them certain clergy who were currently serving the Ecumenical Patriarchate outside the United States of America.
• Archbishop Demetrios has declined to revise the list and resubmit the list to the Ecumenical Patriarchate and, in turn, proffer the new list to the Eparchial Synod for voting.
• The Archbishop asked the Legal Committee to provide an opinion on the “propriety” of revising the list. The opinion of the Legal Committee interprets the Archdiocesan Charter in such a manner as to support the Archbishop’s position.
• Specifically, the Legal Committee has concluded: 1) that a revision to the list of candidates is not authorized by the Charter since the list was initially approved by Your All Holiness and is thereby deemed “definitive” and final and not subject to any change even if there was error in its creation; and 2) that adding clergy serving Metropolises outside the Archdiocese is not permitted under the Charter.
I have set forth the facts without argumentation. Upon calm reflection, the facts show a course of action by the Ecumenical Patriarchate that is manifestly just and forthright, with the light of the Gospels and Holy Tradition that should be enough to end this inquiry. The list should be revised to include all qualified candidates, and that with respect to whether or not a candidate is qualified for the position of Metropolitan, consideration should be given to the Canonical nature of the question and deference given to the interpretation of Your All Holiness. This is the outcome that the truth compels. I have practiced law for almost forty years. I am a member of the bar in the states of New York, California and Illinois. I have been a partner for one of the largest law firms in the United States. I have been the general counsel for five public companies. I have represented the Archdiocese in connection with the Bishop Anthimos litigation as well as other complex and critical matters. I am an Archon, a member of Leadership 100, a former member of the Archdiocesan Council and former chair of the Archdiocesan legal committee. I reference my professional experience only to say that legal arguments that are inapposite to basic fairness and transparency are almost universally wrong. This, of course, should be of no surprise to a Christian, since we know that there is a law written on all of our hearts that transcends all other forms of legislation. What my experience tells me is that this issue needs only for a simple resolution – the list should be revised to include all qualified candidates; the Eparchial Synod should select three names from that list; and the Holy Patriarchal Synod should elect the new Metropolitan of Chicago.
But with regret, we find ourselves at an impasse. An impasse, at least in part, built upon tortured and specious legal arguments and faulty premises. These arguments need to be exposed as fallacious, and that is the intent of this letter.
Like all poorly constructed legal arguments, the Legal Committee’s position is founded on a faulty premise. The Legal Committee begins Part One of its analysis with the following statement,
“On January 18, 2003, Your All Holiness and the Holy and Sacred Synod saw it fitting to grant to the Holy Archdiocese of America a new Charter which governs the Church in America …” (emphasis added).
The Legal Committee got it wrong from the start and rather importantly failed to quote from the language of the Charter itself.
Preamble and Canonical Jurisdiction
b. – The Archdiocese, being Hierarchical, as an Eparchy of the Ecumenical Throne, is governed by the Holy Scriptures, Sacred Tradition, the Holy Canons, this Charter, the Regulations promulgated pursuant hereto (“Regulations”), and as to canonical and ecclesiastical matters not provided for herein, by the decisions of the Holy and Sacred Synod of the Ecumenical Patriarchate (“Holy Synod”).” Official Charter of the Archdiocese. (emphasis added).
The Archdiocese is not “governed” by the Charter as the Legal Committee asserts but by Holy Scripture, Sacred Tradition, the Holy Canons, all of which take precedence over of the Charter. Reading the Charter without any reference to these other authorities, such as the Holy Canons, is a grave mistake. Of course, regarding these authorities, the Legal Committee has absolutely no qualifications to have any professional opinion . Nevertheless, the Legal Committee “remain(s) committed to honoring the provisions of the Charter and Regulations” without any attempt to harmonize the fact that the Orthodox Church is a hierarchical church, and the Archdiocese is an Eparchy of the Ecumenical Patriarchat; and, that the Holy Synod has canonical authority to elect a new Metropolitan and require that all qualified candidates be considered.
The Legal Committee’s principal argument centers on a single sentence in Article 14 of the Charter which states: “The list (of candidates) becomes definitive after its ratification by the Ecumenical Patriarchate.” The Legal Committee contends:
“The term ‘definitive’ is clear and unambiguous. Once the list is approved by the Eparchial Synod and submitted to and approved by the Ecumenical Patriarchate, it is final. Otherwise, there would be no integrity, consistency or end to the election process. As a result, once it is approved by both the Holy Eparchial Synod and the Holy and Sacred Synod of the Patriarchate, there is no legal option under the Charter to ignore or disregard that final, definitive and ratified list.”
Why is that? The list, on the Patriarchate’s further reflection, was incomplete. An error had been made and additional names should have been considered. The Patriarchate’s approval was withdrawn. The Patriarchate asked the Holy Eparchial Synod to add the additional names and create a new list which the Patriarchate will approve. Following the Patriarchate’s approval of the new list, Archbishop Demetrios and the Holy Eparchial Synod can make their recommendation of three names. This does not undermine the integrity and consistency of the process. A Metropolitan of the Archdiocese raised an issue about basic fairness … qualified candidates were not being considered. The Charter should not be used as a weapon to thwart truth and fairness. To argue that the Patriarchate could not withdraw its approval is preposterous and is not a position supported by the word “definitive”. Moreover the fact that the Patriarchate can withdraw its approval of a list and request revisions does not mean that the election process is without end.
The second argument of the Legal Committee is perhaps the most specious and obviously partisan. The Legal Committee offers its “legal opinion” that the Charter prohibits Metropolitans currently serving Metropolises outside the United States from being considered as candidates for Metropolises in the Archdiocese. This is a particularly anomalous conclusion for two reasons. First, it should go without saying that the Charter should always be construed in a manner consistent with the best interests of the Church; and it is in the best interests of the Church that the best possible candidates be considered for the position of Metropolitan. The second reason this conclusion by the Legal Committee is so peculiar is that it is obvious that no civil lawyer should be venturing a professional opinion on this question. Is it the task of the Legal Committee to conclude that Metropolitans serving the Ecumenical Patriarchate outside of the United State should be excluded from consideration for Archdiocese Metropolitans? But let us assume the bona fides of the Legal Committee’s analysis, and point out that the Legal Committee’s opinion itself demonstrates that there is no small matter of confusion in their Charter interpretation. The Legal Committee tells us that there is a discrepancy between the Greek version and the English version of the Charter. The fact that the English version “controls” does not eliminate the ambiguity. Next, the Committee points out that there was the inclusion of the term “or service” regarding the election of the Archbishop but not for Metropolitans. Why? Well we don’t really know. The Legal Committee tells us that there was no discussion in the “transcript” of the 2002 Clergy Laity Congress meeting stating why the two words “or service” were not included in the section regarding the Metropolitan elections. The ultimate question of course, unaddressed by the Legal Committee, is that if it was the intent that Metropolitans serving outside the United States cannot be considered for Metropolitans of the Archdiocese, why does the Charter not say it? It is not a particularly difficult concept to articulate. The Legal Committee demonstrates that there is indeed ambiguity on this point. To resolve this purported confusion, the Committee relies on maxims of legislative interpretation and reference to legislative history. But the Charter itself provides an unambiguous mechanism to resolve points of confusion in the Charter language. Here again, the Legal Committee wearing the banner of advocate opposed to adviser fails to quote from the Charter itself which states:
Language and Authentic Text
The languages of this Charter and any Regulations hereunder promulgated shall be English and Greek. The English text, as approved by the Patriarchate, shall be deemed the legal and governing text. In the event of need, this Charter shall be authoritatively interpreted by the Ecumenical Patriarchate. (emphasis added).
The Ecumenical Patriarchate has indeed “authoritatively interpreted” the Charter, and Metropolitans serving the Ecumenical Patriarchate outside of the United States are to be considered as candidates for Archdiocesan Metropolises.
There are other points raised by the Legal Committee regarding Charter amendments which I find particularly disingenuous and should not go without response. The amendment provisions in the Charter apply, by their terms, only to situations where the Eparchial Synod requests an amendment.
“The present Charter regulating the affairs of the Holy Archdiocese of America as an ecclesiastical institution, may be amended in its entirety or in part after a proposal of the Holy Eparchial Synod submitted to the Ecumenical Patriarchate following the appropriate procedure in the Archdiocesan Council and the Archdiocesan Clergy-Laity Congress, and after the approval of the Holy and Sacred Synod of the Ecumenical Patriarchate to which the proposal has been submitted.” Article 25.
Does this mean that the Holy Synod could not make a change to the Charter unless the Clergy Laity Congress approved? This would be an enormous erosion of Canonical authority. Applying the same principles of legislative interpretation which the Legal Committee invoked, sound jurisprudence would require that so major a relinquishment of Patriarchal authority must be accomplished by unambiguous language. Suffice it to say that no such language is found in the Charter, and no such relinquishment of authority was ever intended.
Your All Holiness, I remain at your disposal should you need me to further elaborate on these points. Please pray for me as I will pray for you that Our Lord will provide you with the strength to guide us and bring this matter to a proper conclusion.
Your spiritual son,