REQUIRING A BISHOP TO RESPOND TO A QUESTION OF LAW
A member of the Southwest Texas Annual Conference raised questions of law related to a personnel issue.
This is a remarkable response by the Judicial Council in some unusual ways, four to be specific.
One, the pattern of capitalizing certain words may illustrate some very important attitudes of those whose writings are directly quoted. Two, the Council chose its own grounds for jurisdiction rather than take the one presumed by the one bringing the questions of law and the responding bishop. Three, the Council made a major ruling on a question that was not asked. And four, they may have overturned a major precedent about the kind of answers a bishop may give in a personnel case.
First, in the matter of capitalization, this is never considered in viewing decisions of law because the pattern is so inconsistent. The Discipline itself is inconsistent with respect to how it treats names of groups and officers as are the statements written by the Judicial Council itself. Consequently, the matter never comes up. But in this particular ruling, the bishop discussing the situation is very consistent. And whether anyone agrees with this analysis as significant or not, they may be interested that it is noted here.
The particular quote appears to have been transcribed by the conference secretary not from the recording of the speeches read into the microphones but from the actual text the bishop wrote with regard to the situation. Conference secretaries prefer to use the written text of those whose words are to go into the minutes.
Here is the normal protocol for capitalization: When a major branch of the United Methodist Church is written down by any news or official entity, it is always capitalized. The quote of the bishop’s statement to the Annual Conference on June 7 contains only two capitalizations that are not a person’s name and title: “Bishop” and “Discipline.” He does not capitalize “Annual Conference” or “Clergy Session.” And most revealing, he does not capitalize “Judicial Council.”
It has been my contention that bishops tend to not honor those beneath them. In fact, the reason so many Judicial Council Decisions seem the same is because the bishops tend to ignore Council decisions and make the same mistakes which the Council had tried to tell them were illegal under church law.
I believe the bishop showed his perception of the situation by capitalizing his own stature and that of the Discipline which he uses to support his view and he showed his disrespect of the Annual Conference and especially of the Judicial Council.
The other quotes from him in this Decision are not direct and have the more usual capitalizing.
If this seemingly irrelevant observation has any value, it will be reflected in other things said and done by that bishop. Has the unnamed bishop been disrespectful in other ways not reflected in the text of this Decision? One has to wonder when the other three most unusual points to be made here may have come as a response to the attitude of a particular bishop. Over the years, it has been clear to me that the Council has favorite bishops and some others, not so much.
Second, when the Council takes jurisdiction, it is usually clear. Questions of law are taken under P 2609.6. Requests for declaratory decisions are taken under P 2610. I am painfully aware of their care on this having had my own experiences with them over many years.
In this case, they leave aside paragraphs usually taken from the 2600s and go directly back to the constitution, something I have not seen them do before. I believe that where the Discipline allows, the Council should have the flexibility to choose its own grounds for jurisdiction provided they are reasonable and cause no harm. I hope they consider this possibility in the future, something I argued for in the past.
Third, the Council did the unimaginable. It answered a legal question that had not been asked and did not even have to be asked in this case. The 2012 change in the Discipline requiring a one-fifth vote in support of a question of law was in previous Disciplines along with a provision that did not require any vote. The one-fifth vote provision was parallel to most other circumstances under P 2609 where questions were forwarded to the Council. But the voteless question of law that had been in all previous Disciplines allowed an individual to have access to the Judicial Council to seek redress.
I have been aware of how bishops have resented that option because a single person could challenge a bishop during an Annual Conference and thus be an embarrassment to the bishop. It seems one of the points of pride among the Council of Bishops is how seldom a bishop is called before the Judicial Council.
In this case, the matter of the vote was not even a factor because when the bishop asked for a vote on forwarding the question of law, it easily surpassed the one-fifth requirement. That makes the ruling about its unconstitutionality extraordinary. The Council is loath to go outside the narrowest interpretation of the Discipline and the issues raised before them.
They are exactly correct in ruling against the change in P 2609.6. It is just so strange that they did it without anyone asking. That makes this an “activist” court by comparison with previous groups who made up the Judicial Council. Provided that no harm is done when they do it again, I’m all for it. There are a bunch of things I would call unconstitutional if I were on the Council! And, if I were a Council member, I’d bring them up if there was the slightest excuse!
Four, the Council broke with their own common practice of simply accepting any questions of law about personnel matters as moot and hypothetical, thus supporting bishops who may have allowed serious violations of fair process to occur but who washed their hands of it by hiding behind JCD 799, which the Council unwisely made part of its Rules (see Appendix B, Rules of Practice and Procedure of the Judicial Council).
In that ruling, they justified taking away bishops’ responsibility to deal with personnel issues by pointing to the separation of powers, that once a complaint entered either the judicial or administrative tracks, it was out of their hands.
In the judicial track, the bishop should have no right to pass on the substance of a complaint because that belonged to the judicial processes which could end up on appeal before the Judicial Council. That would be the proper body to deal with any appeal, hence the bishop was out of that loop.
While the Council did not similarly argue the administrative question in Decision 799, once the complaint enters the administrative track, under separation of powers, a complaint becomes largely a matter for the Board of Ordained Ministry and the Administrative Review Committee to resolve, with appeal to the Clergy Session of the Annual Conference which has the last word on personnel matters. Appeal should be possible from there to the Judicial Council but that has been taken away by JCD 799 (Appendix B).
Under Appendix B, the bishop is out of the loop because of separation of powers, and questions are moot (wrong place to appeal) or hypothetical (theoretical in nature because the bishop was out of the loop).
A careful reading of JCD 799 shows just how tenuous it is as a basis for their Appendix B rule. There were two trials and the matters brought in the questions of law from them both were procedural and not substantive. In the judicial track, procedural issues can be challenged as objections to the next level of hearing, finally ending with the Council. However, procedural issues in administrative processes end with the Administrative Review Committee under the Council’s rule because when bishops preside over the clergy session, they are not allowed to answer procedural questions under Appendix B. In some conferences, the Board chairperson presides and is in a conflict-of-interest position to be the one to answer procedural questions. The right of appeal on procedural issues disappears for those in the administrative track. Hence, the appeal to the Clergy Session is inoperative and, in effect, appeal of a decision of the Clergy Session to the Judicial Council is fruitless. While I can count on one hand the exceptions the Council has made, I don’t have enough fingers to count the times the Council has let the bishops allow harm to pastors where processes were inept or worse.
The Council has begun to realize that something was wrong with applying Appendix B to all cases. It took seriously questions of law in a personnel case where the Cabinet intervened to change the terms of return to ministry by a pastor on voluntary leave (see JCD 1156). The Council was exquisitely more careful in the analysis of the case of a bishop who had been involuntarily retired (JCD 1230). Both had been handled administratively.
Since the 1980s, most personnel cases which came before the Council where the administrative action against the minister were taken during the Clergy Session. That was not usually perceived as part of the business of the Annual Conference by the bishop or by the Council. In this case, the bishop affirmed that the Clergy Session’s tasks were a part of the business of the Annual Conference (interestingly, the actions of the Clergy Session relate to an agenda of voting and reporting on conference relations issues which is called “The Business of the Annual Conference”). This is the first acknowledgement by the Council of that essential tie between the Clergy Session and the Annual Conference.
One of these days, the Council is going to have to acknowledge that the separation of powers is almost non-existent. In practice, bishops have significant power in both the administrative and judicial tracks in at least four ways.
One, they have a vested interest in how each case turns out because they were involved in referring the case to whichever track in which they thought it should be handled. No referral would have been made if the bishops felt the complaint was not true. Their judgment would be in question if a complaint was dropped by one of the hearings groups.
Two, to protect the bishops’ decisions, they can use what to me is an unconstitutional authority, direct and nearly exclusive nominating powers over the various groups that handle both judicial and administrative tracks. They can put their own people into those groups.
Three, bishops can enforce their prejudice about each case because they have appointive power over each member of the respective groups involved in the processes.
Four, the bishop has the last word as to the meaning and application of the Discipline in the conference. The place that is done formally is at Annual Conference only if someone is willing to challenge the bishop’s interpretation.
Contrary to Appendix B, procedural questions should have been in order all these years. The Council should have taken jurisdiction over all those personnel cases it sloughed off by pushing those bishops to do as they are now asking this bishop to do: answer the questions.
Unfortunately, in practice, the Council does not always apply the same energy to insist on fair process every time. There is an unwritten rule in the United Methodist Church that each decision is unique to that case and therefore does not apply (unless the Council so chooses) to any other case. There really is no such thing as precedent in Council Decisions but is solely at their discretion to apply when they want to apply it.
In conclusion, it still must be said that this decision, JCD 1244, is extraordinary:
The Council determined its own authority for jurisdiction.
It answered a question it was not asked.
It ignored the precedent of some thirty years of letting bishops off the hook from ensuring fair process (see P 415.3), allowing them to simply say that the questions of law were moot and hypothetical.
(Note I did not mention the capitalizing in the summary. But it fuels my speculation about why the Council went so far afield from what the bishop and the rest of us expected in this case. See JCD 1251 where there are no such capitalization variations.)
When the Council gets it right, it is a thing of beauty.
Update: The Council took jurisdiction over its nineteen docket items by reconsideration of three of them, having retained jurisdiction on three more, found two were still under the 2008 Discipline, and the remaining nine after JCD 1244 was noted. So it was easier for the Council to clear away the unconstitutional passage than have to fight it for half of the rest of their time together.