WELCOME!

Associates in Advocacy now has two sites on the internet. Our primary help site is at http://www.aiateam.org/. There AIA seeks to offer aid to troubled pastors, mainly those who face complaints and whose careers are on the line.

Help is also available to their advocates, their caregivers, Cabinets, and others trying to work in that context.

This site will be a blog. On it we will address issues and events that come up.

We have a point of view about ministry, personnel work, and authority. We intend to take the following very seriously:

THE GOLDEN RULE
THE GENERAL RULES
GOING ONTO PERFECTION

Some of our denomination's personnel practices have real merit. Some are deeply flawed. To tell the difference, we go to these criteria to help us know the difference.

We also have a vision of what constitutes healthy leadership and authority. We believe it is in line with Scripture, up-to-date managerial practice, and law.

To our great sadness, some pastors who become part of the hierarchy of the church, particularly the Cabinet, have a vision based on their being in control as "kings of the hill," not accountable to anyone and not responsible to follow the Discipline or our faith and practice. They do not see that THE GOLDEN RULE applies to what they do.

If you are reading this, the chances are you are not that way. We hope what we say and do exemplify our own best vision and will help you fulfill yours. But we cannot just leave arrogance, incompetence, and ignorance to flourish. All of us have the responsibility to minimize those in our system.

We join you in fulfilling our individual vow of expecting to be perfect in love in this life and applying that vow to our corporate life in the United Methodist Church.

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

If you have any questions or suggestions, direct them to Rev. Jerry Eckert. His e-mail address is aj_eckert@hotmail.com. His phone number is 941 743 0518. His address is 20487 Albury Drive, Port Charlotte, FL 33952.

Thank you.

(9/26/07)


Thursday, July 20, 2017

Commentary on Judicial Council Decisions 1338 to 1344

The following observations are intended to encourage you to read the decisions of the Judicial Council for yourself. These blog posts are in no way church law in any form but could help you understand some important aspects of the decisions.  Should you feel I have made an error of fact or interpretation, please let me know (email at aj_eckert@hotmail.com) so it can be corrected.

I began offering commentaries in November of 2008, starting with JCD 1099.  This brings them up to date.  While I have not considered going back to the earlier decisions of the Council, there have been a few that have drawn comments that you may discover on this blog.

Please feel free to send your questions about any ruling by the Judicial Council, past or present, for my observations based on your question.  Like this blog, my answers carry no weight of law.  But maybe we can both learn something.

I've included the URL for each of the rulings. That should allow you to click it or paste it so you can go directly to the decision. I’ve added subject titles and have put in labels that can be picked up by search engines.

Each decision’s commentary is posted separately so this review doesn't seem so long! And by using the list of contents in the left margin of this blog, you can go to whichever decision is of interest to you.
The phrase “the Council” when used refers to the Judicial Council.

Rulings of the Council may be referred to as JCDs (Judicial Council Decisions) or JCMs.  Judicial Council Memorandums do not provide decisions of law but may refuse to take jurisdiction, remand, or show a question is not legally appropriate under Council rules.  On rare occasions, the Council may provide their rationale in a memorandum.

Associates in Advocacy (AIA) publishes updated indexes of all Judicial Council decisions and memoranda. If you are interested, contact Rev. Michael Brown, 158 Saxony Ct., Vallejo, CA 94591. The Judicial Council website now offers a search function which covers every JCD since 1940.  Go to http://www.umc.org/decisions/search.  To go straight to all decisions, leave all the boxes blank on that search page and click on the “search” bar.  Then you can scroll and scan to find what you want.  To highlight a key phrase you search for, use the proper box and click on the “search” bar.  While you will get a list of decisions and can go into each, you will not find your phrase highlighted.  To get the highlighting in a particular decision, do “Ctrl f” on PC compatible computers or “Command f” on Apple computers.  That gives you a drop down box at the top of the page.  Type in your phrase, click on “Enter,” and the phrase will be highlighted in that decision.

I found articles about people and decisions in United Methodist News Service under www.UMC.org/.  I clicked on “News and Media” at the top of their page, clicked on “United Methodist News” to get to their home page and then clicked on the magnifying glass icon in the upper right hand corner.  That opened a box at the top of the page.  I could put in key words and numbers followed by clicking on “Enter.”  The search function will let you know which articles had that content.  There are articles going back as far as 1952, though the articles are not in chronological order.  I also do not think every article has yet been digitized and posted on the site.

All my commentaries on Council decisions are subject to editing, updating, and revision.  You may want to check back from time to time on decisions of special interest to you.

JCM 1338


No Syllabus - No Decision

This is the first time in my recollection (a dangerous statement for anyone to make!) that the Council stated that a bishop's failure to send a rationale (syllabus) was grounds for not accepting a decision of law but remanding it.

Whether or not this is a first, it is a good action by the Council to put bishops on notice not to be careless about making rulings.  There are a number of reasons a bishop could fail to do the background work, all the way from arrogance to forgetfulness to busyness.  There is no question the Western Jurisdiction in July of 2016 had many dynamics which needed attention.  This technical question did not seem to rate any serious priority at the time.

If I read the bishop's ruling correctly (another dangerous presumption!), I see that he provides a rationale for disobeying the Discipline when he said, "The Jurisdictional Conference has adopted rules for this Conference which do not exercise that authority."

That sounds a lot to me like "We have made up rules that we do not have to do what the Discipline says."  But I could be wrong (understatement of the day!).

It will be interesting to see if the bishop persists in that line of argument in his preparation of his rationale and what the Council says about it in their next session. 

In any case, we now know what a "syllabus" is (a rationale for the decision) and that this Council takes it seriously.

JCD 1339


Standing of a Wesley Foundation Pastor

My experience with Wesley Foundation is that from its ranks come pastors and lay leadership.  Those still with the church at that point in their life, many of whose generation will not return to the church until they have children of Sunday School age, have often become strong participants in local churches upon graduation from college.  Not having someone in leadership in the Wesley Foundation or the higher education program of the conference would be leaving out an important voice related to the future of the Church.  

But in this West Michigan case, the bishop felt it necessary to close down that option by noting that the Wesley Foundation was not a church but an adjunct to the conference Board of Higher Education and the pastor only an employee of that Board.  The nomination of that pastor who is a Local Pastor was for an open seat on the Leadership Council, and not as a representative required by conference rules.

Church law sometimes works against the best interests of the Church.  Most of the time, it saves us from serious problems and provides for the ground rules for us to cooperate in the most effective way, based on long experience.  There usually are good reasons for laws to be passed.  But there are times laws (conference rules, etc.) are used to prevent legitimate concerns from being handled reasonably.  

The Council can only work with what is given and what the law is.  They are not always in a position to deal with a possible conference political conflict or other dynamic that might be involved.  Hopefully, the parties involved may seek a legislative change in the conference rules or see if there is another way to resolve the concerns of both sides.

JCD 1340


Can a Jurisdiction prohibit church trials?

The Northeastern Jurisdictional Conference tried a creative way to draw attention to the conflict in the Church over homosexuality.  They passed a resolution that directed conference Councils on Finance and Administration to withhold funds for church trials that are for violations of church law about marrying homosexuals, being self-avowed practicing homosexuals, and related matters.

The same result as in many cases before the Council caused the resolution to fail muster as church law or policy.  It is not aspirational and resolves that people "negate, ignore, or contradict The Book of Discipline."  The bishop stated that in his ruling, adding that it also violated the constitution's requirements for trials.

The interesting thing to me was that the conference voted 2 to 1 in favor of the resolution.  That vote, even in the face of likely legal rejection by means of any appeal process, is amazing.  Those who brought the resolution knew all about past rulings on resolutions of the sort they were raising.  Their persistence matches that of the ones who brought about the anti-homosexual laws forty five years ago and who are still the majority at General Conference.  But, as in the Northeastern Jurisdiction, will the General Conference vote trend the way it has in the NEJ?

JCD 1341


The Oliveto Case

The Rev. Dr. Karen Oliveto, esteemed (now former) pastor of Glide Memorial UMC, one of the largest congregations serving the Gay community in San Francisco, was honored with election to the episcopacy in the Western Jurisdiction.  This was historic in that Rev. Oliveto is married to Robin Ridenour, a deaconness in the UMC, whose working profession is as a nurse-anesthetist.

Since all of the American jurisdictional conferences are held over the same several day period across the United States, word passed swiftly among them of this election.  And almost as swiftly, a lay delegate in the South Central Jurisdiction raised a request for a declaratory decision about the legality of Rev. Oliveto's standing as a clergy and bishop despite being in violation of the Discipline's rules against "self-avowed practicing homosexuals," whether or not the new bishop's marriage license was proof of that, and whether or not it was legal to consecrate her as a bishop.  

As can be seen by the concurring/dissenting opinions by various members of the Council, it was caught between those who felt the election was illegal under church law and those who wanted to postpone any serious consideration of the case.  They were seeking to give time to allow the newly formed bishops' commission to resolve the differences over the issue of homosexuality in our denomination.

The majority decided to explore church law very carefully and very comprehensively in an effort to answer the questions asked and not leave the denomination in limbo.  

I suspect their exploration was much longer than what was published because there seem to be large sections of argument that are missing.  One in particular relates to the significance of the marriage license where I believe the impression is left that a marriage license is de facto proof of self-avowal.  Careful reading of the sentences related to that issue show it might be accepted in a church trial court as "rebuttable presumption" but not as proof.  It is not a new law promulgated by the Council, as some critics said.  But the mistake is understandable because it appears the full argument was edited down.

Law is a strange creature in that on the one hand, it delineates the rules by which a body operates and on the other, it also defines how that law is to be enforced.  That has to drive some people nuts because it means that we can't go out and lynch someone just because we see what we think is proof of guilt.

That is one of the reasons why it became law in the American Wild West that carrying firearms was a bad idea simply because people could too easily take law into their own hands.  That is part of the rationale of why the British police do not carry firearms as our police officers do.

After their deep exploration of church law, the Council found that whatever anyone may have thought and said, including Rev. Oliveto herself, formal charges had to be brought and her standing as a clergy and as a bishop had to be properly tested under Fair Process.

Therefore, until that happened, her standing as an Elder was unchanged and her election as bishop was legal.

The Council carefully explained that whether we like them or not, church laws related to homosexuality have been legally established by General Conference.  But dealing with apparent violations must also be done by law and the subject of the allegations has Fair Process rights including innocence until proven guilty and only then, among other options that could be considered, may standing as a member of the conference and election to the episcopacy be ended.

Let me summarize the questions raised by the South Central Jurisdiction and provide the Council's answers:

Q: Is the nomination and election of a person who claims to be a self-avowed practicing homosexual legal?  How do church laws against such practice apply?

A: The Council could not take jurisdiction because the request was from a jurisdiction not directly affected by the action being questioned.  

Q: Does a marriage license for a same-sex marriage disqualify a person for election as bishop?

A: No.  It is grounds for bringing a complaint (a “rebuttable presumption”), the merit of which has to be tested by Fair Process but not to prevent nomination and election as bishop.

Q: If a jurisdictional conference chooses a bishop who could face charges, does that nullify the election?

A: No.

Q: May the bishops of a jurisdiction consecrate a bishop who by public record is known as a self-avowed practicing homosexual?

A: Yes and no.  “No” because a self-avowed practicing homosexual may not be consecrated.  “Yes,” if the pastor/bishop has not been proven to be so by Fair Process.  (This was not explicitly stated but follows from the rest of the Council’s analysis and decision.)

Q: When a public record of a civil union or same sex marriage of a clergy person is made known to conference officers, does that on its face amount to self-avowal of being a practicing homosexual?

A: Yes, but it does not disqualify that pastor from appointment without Fair Process.

I fudged a little bit on the wording but the point is the same.  As I understand it, no matter what public or private evidence there is that a pastor is a self-avowed practicing homosexual, that evidence has to be processed by appropriate hearings and appeal under the pastor's constitutional rights (Paragraphs 20 and 58).  As a church with a judicial system, we may not arbitrarily remove them from office without trial and appeal.

That's how I read this decision.  It will be interesting to see if the Council follows it in other rulings from this session and from future decisions. 

Note:  The term “rebuttable presumption” is a new term in denominational law.  It comes from BLACK’S LAW DICTIONARY (Sixth Edition).  It is similar to “probable cause” in that both allow the state to presume based on evidence that an action is illegal and therefore may take it to court.  My reading of the definitions is that “probable cause” must be proved by the state in civil court but “rebuttable presumption” shifts the burden of proof to the accused. 

Both have to be tested in court.  Both would constitute only “belief” of the prosecution and not “proof,” which can only be determined by a formal court hearing.

“Probable cause” is used mostly in criminal court so it carries with it the baggage of violence and comparable harms.  “Rebuttable presumption” does not have that baggage.  However, in civil court it does mean that the respondent has to prove the allegation is false.  I find that a little disconcerting because we are under English common law where the state has to prove guilt and not Napoleanic law where the accused has to prove their innocence.

Maybe, when this decision is challenged for reconsideration, the Council can make up a new term as the General Conference did when it chose not to use the phrase “due process” but chose “Fair Process” instead.

Additional note:  With reference to civil and public contracts like marriages and civil unions, the Council argues that state laws must be recognized as legitimate and those contracts have sufficient merit to be taken very seriously by the Church.  Article XXIII of the Articles of Religion (Paragraph 104, p. 70 of the 2012 Discipline) is to encourage the Church anywhere in the world to support local civil governance.  By making this reference, that puts all United Methodist pastors into a quandary where local law allows same sex marriage and civil unions.  Is the pastor obligated to follow civil law in their place of ministry under the Article of Religion or are they obligated to follow the Discipline?  

Another note:  The intellectual process of making a judgment is really a three step process: establish the facts, determine the basis of evaluating the facts, and coming to a conclusion (establishing an opinion that the evidence is actually proof).  Too often, we go from facts to opinions without going through evaluation.  Without that evaluation, our opinions are only “beliefs.”  But for many, beliefs are taken as facts and become motivation for causing harm (lynching being one harm too often perpetrated, figuratively or literally).  Your opinions are not facts, even if you are a cabinet member.  Facts have to be evaluated by reasonable criteria.  Evidence has to be tested in a court of law, following Fair Process.  Only then can a judgment be made.

Last note:  The decision is so extensive and full of law content that to deal with all the issues the decision raises becomes prohibitive for the purpose of this commentary.  There are likely to be many future references to points of law made in this decision.

JCM 1342

http://www.umc.org/decisions/71961

Mandatory Sentences for Bishops

During General Conference, three petitions were referred to the Council relating to providing mandatory sentences for certain kinds of Disciplinary violations related to homosexuality.  The Council, in JCD 1318, showed they were invalid.  This particular request dealt with a fourth similar petition that would impose mandatory sentences on bishops for those same offenses.  Since the General Conference voted the petition down, the Council felt it did not need to rule on the petition's merits.


JCD 1343

http://www.umc.org/decisions/71962

Does the BOM Have to Ascertain . . .

The Council heard back from the bishop of the New York Annual Conference (see JCD 1330) and ruled on whether or not the Board of Ordained Ministry was to ascertain possible violation of the homosexuality laws in the current Discipline, despite the Board's decision to not investigate the sexual preferences of candidates. 

The Council agreed with the bishop that if the Board found "by extrinsic evidence or self-admission" that a candidate was a self-avowed practicing homosexual, they could not submit their name for conference membership and ordination.  They disagreed with the bishop as to the extent to which the Board had to go to ascertain that.  

There apparently had been several candidates who announced their being practicing homosexuals during Annual Conference and the Council felt that such an announcement met the requirement for self-avowal.  That met the standard definition of to whom self-avowal is addressed, one of which is the clergy session.  See the footnote #1 to Paragraph 304.3.

The Council did point out, "Candidates for licensed or ordained ministry in the United Methodist Church should be treated fairly and denial of entry must be based upon the evidence received from the results of the full examination." 

"Full examination" was defined this way:  "There is a variety of methods to accomplish its investigative responsibility, ranging from evaluating written exams, conducting personal interviews, to reading social media postings of candidates."  They thus disagreed with the bishop who did not feel there was any way of "ascertaining with certainty." 

What stands out here is that the Council is now saying that social media postings by a candidate are the equivalent of giving their self-admission to the clergy session.  That is similar to their decision in JCD 1341 about public documents like marriage licenses being the same as self-avowal to the clergy session.

Not exactly clear in this decision is whether or not such "rebittable presumption" is really sufficient evidence.  Perhaps because this is related to entry into ministry rather than having already been voted into membership, the standard of proof is not as high.  

It could be argued that even at this level, a fair process hearing is required.

My sense of the bishop's response was to avoid violation of the privacy of a candidate since the only sure proof of "practicing" is to have someone "in the bedroom."  

It is not hard for me to imagine if a widower married his widower brother-in-law for all kinds of legal reasons as well as for companionship and mutual care-giving when needed.  But sex?  They could joke about it on Twitter and tease everybody in the world on Facebook about it, but even discounting ED they could actually not be so inclined.  Social media and a marriage license would not be proof of anything sexual in that case.

This decision moves closer to clarifying where the line is drawn on self-avowal and how far a Board may go in their "examination."  But there is that space between invasion of privacy and full examination.