JCD 1048

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1127&JDMOD=VWD&SN=1001&EN=1099

Because of JCD 799, advocates are restricted in challenging bad decisions and actions by church leaders from the use of questions of law directed to the bishop. Questions of law had been the tactic of choice since the 1980s to counter the growing number of badly handled judicial and administrative processes widely used to remove ministers.

Questions of law were an effective tool because one individual could raise them and they would be reviewed by the Judicial Council. There was no floor debate about them and bishops usually did not need to provide an answer until after conference when they would be published in the conference journal which is rarely read. Since questions of law needed to be presented to the bishop in writing and recorded in the minutes, no oral presentation, which could have been embarrassing to officers or the person subject of the questions, was required by the Discipline.

With the question of law tool no longer allowed because of JCD 799, advocates then had to take other routes to raise questions that could try to halt bad actions. The tool of choice became the request for declaratory decisions. The advantage was that the bishop was not required to answer them. Another important trait of this process was that it could be prospective, not requiring a specific action to have occurred before the questions could be raised. To avoid being hypothetical, the questions had to relate to something confusing in the Discipline which needed clarification if that paragraph was to be used in a situation pending or likely to happen. The disadvantage was that to get the questions before the Judicial Council, the conference had to provide a majority vote. Further, the questions could be discussed on the floor of the conference as part of the preparation for the vote, possibly to the embarrassment of the bishop or others.

The case behind this decision occurred in the following way. A pastor facing charges chose to go into a just resolution process where agreement was reached by the respondent, the complainant, and the Committee on Investigation. However, the bishop did not like the resolution because it was not harsh enough so he insisted the agreement be abandoned and the case continue to trial. Coincidentally (?), the trial came out the way the bishop wanted….

After the trial, some of the parties-at-interest pursued a declaratory decision about the authority of the bishop to undercut a just resolution.

The questions were raised and forwarded by vote of the conference. Briefs were filed by the questioners. Just before the deadline for briefs, a hand-written note from a retired bishop was received by the Judicial Council. It had not been sent to the parties-at-interest as required by the Rules of Practice and Procedure of the Judicial Council.

The Judicial Council used the arguments contained in the retired bishop's letter to formulate its decision.

Not only did the Council refuse to look at the authority of a bishop to disrupt just resolutions, it also closed the door on the use of requests for declaratory decisions saying they could not be prospective, thus making the passages of the Discipline about that option meaningless.

Advocates have one less tool for helping the Church clarify and follow church law.

This decision shows five major weaknesses to which the Judicial Council can be vulnerable.

One, it allowed a document submitted secretly to be used without a proper chance for rebuttal by the parties-at-interest.

Two, the main precedent cited, a previous JCD, was misquoted. That decision had actually allowed for prospective clarifications of church law by the Council. Neither the team of the Council who dealt with the case nor the retired bishop who sent in the secret letter bothered to read more than the one sentence of that decision quoted in the secret letter.

Three, this decision was one of twenty-one the Council faced in the fall of 2006 and it is clear none of the members read with any comprehension the cited JCDs used as precedents.

Four, neither of the other two JCDs cited were germane to the issue. Their numbers were simply pulled off a list.

Five, the Council cited no provision of church law to support its ruling that a request for declaratory decision must include a "factual context." The secret letter which the Council received referred to an incident out of which the request arose, though this incident had not been mentioned in the request itself. Nevertheless, the Discipline does not require that a factual context be provided. But now it is required, thanks to the activist/overworked/inept court who made this decision.

One member of the Associates in Advocacy has said that appeals courts identify the political resolution that satisfies those they think are their constituency and then tries to find a legal rationalization for that ruling.

If there is any decision of the Judicial Council that illustrates this kind of cynical approach to justice, it is JCD 1048.

Update: Another associate has pointed out that the Judicial Council had grounds in JCD 799 to overturn the bishop’s action of disrupting the just resolution because it is a part of the judicial process. Once the judicial process has been started, JCD 799 ruled that the bishop is out of the loop and should remain so. Just resolution is part of the judicial process. Unfortunately, the Council has not seen it this way…, yet.