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)


Friday, November 24, 2017

Commentary on Judicial Council Decisions 1345 to 1357 Fall, 2017


Introduction

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.  To seek decisions not listed on the side margin, use the search box at the top left corner of the blog to find either the commentary or phrase you are researching.
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.  In this session, they did many times

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 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, names, or 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 1345



No Reconsideration

There were a number of requests for reconsideration of JCD 1341 which the Council denied.

JCD 1341 was about what might be included as evidence in a self-avowal of homosexual activity which would be contrary to church law and the rights of a person elected to the episcopacy, specifically the Rev. Dr. Karen Oliveto, bishop of two conferences in the Rocky Mountain region of the Western Jurisdiction.

The key provision of JCD 1341 is to provide fair process rights when accusations of being a practicing self-avowed homosexual arise.  Another provision added public records such as marriage licenses as possible evidence.  A trial court would have to decide whether or not that was sufficient proof.

Denial of reconsideration leaves JCD 1341 intact.  And that denial says that the Council will not be the venue for any form of hearing to determine whether or not the nomination, election, and administration of Bishop Oliveto could be overturned.  That could only be done by the Jurisdiction under the rule of law within the Book of Discipline.

As of this posting, no complaints against the bishop have been concluded.  By unwritten policy of the denomination, nearly all complaint procedures are rarely tracked in detail while they are in process so it is unlikely that anyone will know anything until the conclusion of the judicial processes.  That can take two or more years in complex and difficult cases.

JCM 1346



Bishops Unresponsive

In JCM 1338, the Council chastised the presiding bishop of the Western Jurisdiction for failing to send in the proper “syllabus” (documentation) related to a question of law with his answer.  So they remanded the case back without any ruling, leaving the bishop’s decision the law of that jurisdiction.

Another time, I wonder if the Council will stay the bishop’s decision of law until the proper documentation is provided.  I can imagine a number of scenarios where such a stay might be harmful in some and might be very helpful in others.  It will be interesting to see if future Councils will consider staying the bishop’s decision of law in some cases where such an action causes no harm or reverses possible harm.

In this case, it seems no one responded to the Council’s decision last spring.  Jurisdictional conferences, like General Conference, are presided over by a team of bishops taking turns in the chair.  So when a question of law is raised during one bishop’s turn as presider, some of the team of bishops meet to consider how to answer it.  It appears that the protocol is for the one presiding at the time of the question be the party to the legal issue all the way to the Judicial Council.  But I can imagine that one bishop may feel another bishop was taking the lead by preparing the answer.  

That is no excuse for any or all of the bishops failing to take responsibility.  The College of Bishops blew it.  And the Council has some choice words for them!

My experience has been that some bishops do not recognize the Judicial Council as ever having authority to tell them what to do unless it supports that bishop in a particular case.  Most bishops fear the Council and simultaneously resent it.  Systemically, the denomination is so bishop-centric that bishops actually feel they are above the law even though they are not.  Maybe as a result of this decision, bishops will be more careful.

At issue is a question about who may be nominated to general boards and agencies from the jurisdiction.  Without more information, it is difficult to sort out the problem.  Nominations in small conferences are difficult because the pool of nominees is small and the Discipline requires things like ethnicity to be considered.  That pool can be extremely small so any arbitrary restrictions on nominations can obstruct the purpose of the church law.  Or it could be that the College of Bishops made a legal ruling without it going through a proper venue.

But neither the data in the docket nor in the two decisions helps us understand the problem.  

None the less, the Council made decisions about the two elements of the question of law, overturning the bishop on one and partially on the other.

I would appreciate someone clarifying this whole matter for me because I am not sure what has been decided about nominations in the Western Jurisdiction and who was helped or hurt by this decision.

Update:  In JCM 1349, the Council stayed a bishops decision of law by explicitly reversing it, even though they took no jurisdiction to answer the question of law.

JCM 1347



No Jurisdiction

Denmark Annual Conference requested a ruling on the legality of the phrase in Paragraph 161.G, “…and considers this practice incompatible with Christian teaching.”

In their request, they note the phrase is also repeated in the law section of the Discipline at Paragraph 304.3.  They then enter into a significant theological argument which challenges the legitimacy of the phrase.  

For their text, go to: 
codifies.umc.org/website_Properties/who-we-are/judicial-council-council-dockets/docket-10-2017-1.pdf

The main argument that the Council has no jurisdiction is that Paragraph 161.G is not church law.  The Social Principles of which P 161 is a part is, as the Discipline itself says, “not to be considered church law.”  

I have a suspicion that that point of law was outvoted after serious discussion, the liberals and moderates on the Council wanting to maintain the Social Principles, from which the phrase comes, as “a prayerful and thoughtful effort . . .to speak to the human issues . . . intended to be instructive and persuasive . . . .”  I sense that this argument carries over from each quadrennium’s Council to the next and is decided somewhere early in the term.  I think this was the case when that argument took place and the majority took the conservative approach that indeed, the Social Principles are church law.  Their point of view is upheld in the footnote to Paragraph 161 which identifies JCDs 833 and 1254, both of which treat the passages related to homosexuality as law. --  Note: In editing this post, I have been unable to find where I saw that footnote.  No recent Discipline includes them under Paragraph 161.  But they are germane anyway.--

I look forward to when other Social Principles that are not related to homosexuality are tested to see if they too are church law.

The Council in this case, having settled that the phrase being challenged is church law,  then applied its rules about its being moot and/or hypothetical, though they don’t use those words this time.  They look to see if the issue has a local manifestation in the actions of the annual conference.  Is anyone being subject to complaint or is some project of the conference directly affected by the phrase?

None was identified by the petitioners nor seen in the record by the Council so it was a hypothetical matter and therefore not under the Council’s jurisdiction.

Whenever the Council decides to not take jurisdiction, they sure love to throw in all kinds of decision number to support it, as if their own weight as the sitting Council is not sufficient.  Maybe it isn’t, given how the bishops tend to ignore the Council’s rulings unless certain bishops find it to their advantage.  The lists of decisions supporting their point do have the positive value of helping students and observers to research the concept.  But to outsiders, it still has a tinge of self-justification.  Or maybe frustration that they are not being listened to.

Let me note, as the Denmark request states, the phrase from 161.G is also part of Paragraph 304.3 and other places in the law section of the Discipline.  So the question of its constitutionality is rightfully raised.  Because it is in the law text, it is an imposition on all clergy, even those who, like the Denmark group, do not agree with it.  So should a case arise where, for example, Denmark’s conference passes legislation that specifically negates that phrase as part of its policy toward clergy, preferably with respect to a certain person, the Council would have to take jurisdiction and might have to test what is really a theological assertion, “intended to be instructive and persuasive,” against the constitution.

Finally, let me remind everyone that a key ruling related to requests for declaratory decisions, JCD 189, says, “A request may ask for clarification or interpretation of church law about any action that is being considered or is pending before the conference.”  To wait until a matter is actually before the conference may be a waste of time or may cause harm to those involved should  lack of clarity lead the conference board or agency to take action.  For that reason, I believe rulings on interpretation or constitutionality that are prospective are within the jurisdiction of the Council.

If I were a member of the Council, I would have written a dissenting opinion based on the above argument and agreed with the Denmark appellants.  I think the phrase is an illegal attempt to change the doctrine of the United Methodist Church.  While I may disagree with other Disciplinary passages added since 1972 about homosexuality, they are matters of policy over which disagreement may be legislatively handled.  

JCM 1348



No Jurisdiction Again

At the Alaska Annual Conference, a lay delegate requested a declaratory decision on the constitutionality of a passage of the Discipline (Paragraph 2008) which appears to allow the General Commission to hold the Council of Bishops accountable.

Based on the principle that the conference had no action related to that passage about another entity in the denominations structure, the Council had no jurisdiction.  The docket item contained no additional information about why the question was raised.  Was that lay person on the General Commission and witnessed Bishops ignoring the commission’s decisions?  Was the Commission obstructing the Council of Bishops in some way?  Was the questioner the subject of actions related to both groups?  

The Council found nothing in the document sent in to tie the request to a concrete matter.  And the potential for injustice or other harm was not identified, apparently.  

In my experience, most requests or questions of law arise in annual conferences because someone felt or saw a harm and wanted to alleviate the situation or prevent it from occurring.  I have known of past Councils ignoring that kind of information and allowing a ruling that brought no relief one way or the other.  In those cases, key members of the Council were in the “pocket” of a particular bishop or the whole Council of Bishops.

I have been very pleased with the tendency of recent Councils to go into great detail about cases before them.  I have been pleased with the inclusion of the documents related to the docket that are now published prior to each session.  While it might be asking a little too much for the Council to also publish the briefs they receive, it may be helpful for interested parties to be able to contact the parties at interest for copies.  Back-stories on requests like this one might be far more important than they appear as currently published.

JCD 1349



Forcing Pastors to Go Part-time

The Greater New Jersey Annual Conference, like many conferences around the country, is facing the problem of diminishing numbers of churches that can afford full-time pastors.  These smaller churches are also diminishing in capacity to afford paying full apportionments, though that is not identified in the bishop’s response to the “request for a decision of law.”  Other words are used to speak of lack of financial strength in the churches.

To help resolve this problem, the bishop and his cabinet have come up with a plan that really only identifies which pastors are not getting their churches to pay full apportionments and threatening them with being put in part-time appointments as punishment.

The reason my opinion is this stark is that the plan’s legality became cemented in church law in New Jersey until the Council ruled on it.

Here’s how it works:  When a question of law is asked of the bishop at an annual conference session, his/her decision becomes law for that conference.  The only thing that can modify or reverse that legalization would be if the Council overturns or modifies the bishop’s decision.

So the bishop asks the dean of his cabinet to raise a question of law to which the answer supports the cabinet’s (bishop’s) plan and then she/he has full legal power to plow ahead with the cabinet’s plan.

I have not seen this kind of manipulation before in Judicial Council decisions..  Maybe other bishops have just been a lot more subtle about it.  Church law geeks have known about the possibility since the 1980s.

The Discipline provides that a bishop may initiate a part-time appointment for “missional purposes.  What the New Jersey plan does is allow the bishop to change the definition of “missional” to include failure to raise money.  

Let me say that the problem this bishop’s plan seeks to resolve is real.  The demographics of the United Methodist Church in the United States are pretty grim.  Many conferences have more pastors than churches.  Many churches have elderly members dying off without younger folks joining.  Many new ethnic populations are moving into formerly all-white neighborhoods around the churches and few pastors are bi-lingual and capable of working with the new populations around them.  –That’s truly “missional” as a concern.

An old saying in the South is that you get more flies with honey than with swatting.  This bishop’s plan is a not so subtle form of swatting.  

The Council has brought an end, at least on paper, to this nonsense.  They saw that the plan was not up for a vote and that the questioner made no reference to any specific case representing a problem with the plan or a way for the plan to resolve it.  So they took no jurisdiction.  Just to be sure no one missed it, they added that “the bishop’s decision of law is reversed.”  So the bishop can no longer say he has legal authority bolstered by the Judicial Council’s support.  They have not given it so the bishop better be very careful about his use of the cabinet’s policy.  By using the policy in an actual case, he faces getting a referral to the Judicial Council for a real case.  The Council just might rule against the policy.  They did not like his decision this time.

JCM 1350




I am on record as a consultant early in this case and feel I should not offer my commentary on this ruling until after the case has been resolved.