Commentary on Judicial Council Decisions 1260 to 1269, Spring, 2014

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'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 Judicial Council will be often referred to as “the 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 offer explanations for everything else from refusing to take jurisdiction to remanding to showing a question is not legally appropriate under Council rules.

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 also offers indices as does the AIA website (www.aiateam.org) under “HELPS for the Judicial Council.”  AIA’s are out of date, however.

JCM 1260

 http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1382&JDMOD=VWD&SN=1201&EN=1269

LEGALITY OF PHILIPPINES EPISCOPAL ELECTIONS RULES

This memorandum relates to a request from the Philippines Central Conference which led to JCM 1249.  My observations about that memorandum were that the Council was not enforcing their need for full documentation.  The Council’s rules of practice and procedure were amended this April to clarify that minutes of the time when a request for a ruling is made must be part of the materials submitted. The failure on this prevents the Council from making a decision.  

From this memorandum, it is clear that despite there being no rule requiring it, efforts were made prior to the Council session of Fall, 2013, to obtain the minutes and some other materials.  Because those materials were not sent, JCM 1249 was handed down saying no ruling could be made for lack of full documentation.  The Council may need to add to their rules that the Secretary and Clerk are authorized to seek additional documentation.  That might help conference secretaries realize such requests are proper.  

From what I have seen, various conference secretaries may not be taking minutes during certain conference actions.  For example, minutes from the clergy session were not taken in several cases and therefore were unavailable to be sent in.  Every conference at every level must have minutes taken.  Not only should the secretary be made aware but so should the presider.  While casual meetings may proceed more quickly, both officers have to realize that when a “legal” event occurs at the meeting or might occur at a later time in the meeting, minutes for that event must be taken even if not for most of the rest of the meeting’s actions.

Rules or not, the conferences where the requests for Council review occur must realize nothing can be done by the Council without all minutes and must join in the effort to get all documents in.  

Advocates take note.

With respect to JCM 1260, despite efforts by Council officers to get full documentation, the Central Conference Secretary never did provide the minutes and so the Council once again remands the case back and retains jurisdiction.  Time consuming as that is, it is better than making an arbitrary decision without full information, something the Council sometimes did in the past.

Update:  Two typhoons have struck the Philippines this year and may have been a factor in lack of response to the Council’s request. 

JCD 1261

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1383&JDMOD=VWD&SN=1201&EN=1269

IS “A FUTURE WITH HOPE, INC.” A UNITED METHODIST AGENCY?

If you feel like you’ve seen the largest part of the text of this decision before, it is because everything down to the analysis is verbatim from JCD 1259.  It was copied to give this decision its full background and identification of the question being ruled upon.

This docket item comes back to the Council from the Greater New Jersey Annual Conference from the fall session where the Council said it needed to see the incorporation papers in order to see if the emergency agency set up to help meet the challenges of Hurricane Sandy in 2012 is an agency of the conference and therefore a conference liability.

The Council got the papers and ruled that while related to the conference by virtue of its officers and the funding being from the conference, the corporation was not otherwise organically related.  Legally, the funds and officers could be from anywhere according to the by-laws.  While the goals of the corporation and the conference are the same, the corporation arose to meet emergency needs of the conference.  It was time-saving to set up the administrative “costs of office space, accounting, and support services to be underwritten” by the conference.  While that makes the corporation seem like it “looks, walks, and quacks like a duck,” in fact the two bodies are legally separate.  There was no vote by the conference to be a guarantor of the corporation, which is the bishop’s key argument.  The Council upheld the bishop’s ruling.  The corporation does not fit the Book of Discipline’s definition of an “agency.”  While the corporation could seek funding from the conference beyond the administrative aid already promised, one fourth of funds raised would remain in the local church, and the conference could vote down such a request.

The Council warns that the relationship is so close that the boundaries between the corporation and the conference will have to be carefully monitored on both sides so that liability is not intermingled.  This is especially true because of the emergency nature of the establishment of the corporation.

See the concluding thughts below for further remarks.

JCD 1262

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1394&JDMOD=VWD&SN=1201&EN=1269

“MARRIAGE EQUALITY RESOLUTION” VIOLATES CHURCH LAW

The Desert Southwest Annual Conference passed a resolution, in light of a Supreme Court decision legalizing gay marriage in California.  Because the conference includes part of California, same-gender marriages ought to be conducted in the churches and by the pastors of the annual conference.  When the resolution was challenged, the bishop ruled that it was aspirational and therefore legal under church law.  See the full text of the resolution in the body of the JCD.

The matter came before the Judicial Council.  It disagreed in part (in large part!) with the bishop, acknowledging that the opening of the resolution was indeed aspirational, but that the resolution further called for not following church law in order to hold same-gender marriages.  They quoted from JCD 1111:

“An annual conference may not negate, ignore, or violate provisions of the Discipline with which they disagree, even when the disagreements are based on conscientious objections to the provisions.”

This decision reflects the changing values occurring in the denomination but accentuates the difference between church law and the changes that are coming.

The church, which is allowed freedom under the separation of church and state, is not required to follow civil law.  Church law may prevent gay marriage within its own denomination, including making it contrary to church law for its pastors to be conducting such ceremonies.  When United Methodist pastors have violated that law, and it has become public, those pastors have faced sanctions by the church, mainly through church trials.  As time has gone on, the guilt has been found but the punishments have varied from forcing pastors to withdraw to brief suspensions or community service (see JCD 1215).  

So in practice, resolutions of the sort passed in Desert Southwest are in violation of church law and serve no direct function.  Indirectly, they show the growing will of the coming generation to overturn church law and they aggravate those who feel current church law is legitimate.  The Judicial Council is the arbiter of which side wins in this confrontation.  They okay resolutions that aspire to changing church law but they do not allow calls for violating church law.  

This pattern will be repeated until church law changes, unlikely at the 2016 General Conference.  

When an argument cannot be settled but ends up in a circular pattern, that usually means that is not the real argument but is symptomatic of another problem.  On the surface, that would appear to be how each side views the priority of Scripture (only) versus Experience, Reason (science), and Scripture.  (Tradition is claimed by one side but that is a whole other argument.)  Unfortunately, the Judicial Council cannot resolve that conflict, even if it wanted to.  The resolution of that issue in the Church, similar to those related to things like slavery, women, tobacco and alcohol, divorce, and civil rights, will ultimately work itself out, but outside of the Council.  

JCD 1263

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1393&JDMOD=VWD&SN=1201&EN=1269

RIGHT TO A HEARING BEFORE A DECISION IS MADE

A District Committee on Ministry forwarded a candidate for admission to the Southwest Texas Annual Conference.  However, in 2013 before she could meet with the Board of Ordained Ministry, she received reports that her candidacy was terminated and she would not get to meet with the Board.

At the 2013 conference, the Board chair reported her being dropped and the conference supported that when it voted down a request for reconsideration.  However, that action was challenged by a request for a ruling of law on the failure to have the hearing before the decision was made.  The 2014 statement of facts from the case given in JCD 1244 did not include that there had been a vote to forward the request.  That omission follows from the ruling by the Council in JCD 1244 that a vote on a question of law was a violation of the constitution. With no vote involved, the request for the ruling could not be interpreted to be a request for a declaratory decision.  That made the request a question of law which, according to JCD 799, made it appear to be moot and hypothetical because the bishop was outside the judicial loop of responsibility under separation of powers.

The bishop ruled in 2013 that the question was moot and hypothetical.

According to the Discipline (Paragraph 2609.6), all questions of law presented to a bishop and the bishop’s response go to the Council for review, whether or not they are ruled moot or hypothetical.  The Council changed its approach about the question of law in JCD 1244 as it has done occasionally in recent years. The bishop’s ruling was overturned and he was asked to rule on the question within sixty days so that the Council could review it in its next session.  See my commentary on JCD 1244 of last November to see just how uncharacteristic this ruling was.

Honoring JCD 1244 that the request had been a question of law and that he had already ruled that actions taken by the clergy session were officially business of the annual conference and therefore something for which he must provide an answer, the bishop did as asked and ruled that because the candidate was not given a hearing prior to the Board’s action, she was still an active candidate.

The analysis of the Council was thorough and educational for those interested in the legal detail.  The result was the same as the bishop’s simpler ruling.  The Council affirmed it.  

Update: The Southwest Texas Board of Ordained Ministry has since interviewed the candidate and recommended to the 2014 clergy session that she not be granted membership. That recommendation was accepted by the clergy session this past June.

Note: Before I post my commentaries on the Judicial Council, I send a copy to them for their information and for any error of fact I may have made.  It is against their rules to comment on the meaning of their decisions but I presume they are free to correct facts.  While I am sure my work is not error free, I have received no corrections or observations back from the Council or its staff.  I take that to mean that they are granting me the right to have my opinions and any error of fact is inconsequential.  My hope, of course, is to help them do their work better.  Occasionally it appears they have given thought to my opinions, for which I am grateful.

JCD 1264

 http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1392&JDMOD=VWD&SN=1201&EN=1269

PENSION AND HEALTH BENEFITS FOR SAME-GENDER SPOUSES

For some years, annual conferences have been paying benefits for same-gender spouses and many have been challenged to the Judicial Council as violations of the Discipline’s provision about supporting agencies promoting homosexuality.

In decisions noted by their numbers in JCD 1264, the Council has been consistent, saying that the conference councils on finance and administration do not by Discipline promote homosexuality.  Further, they note that Paragraph 807.12 of the Discipline disallows violation of the Social Principles which call for equal treatment of all employees, including homosexuals.  

These same arguments are used in this decision to resolve a similar challenge of the General Council on Finance and Administration’s paying benefits to their gay employees’ spouses.

The Council further argues that each of the respective finance and administration groups also have the task of enforcing the rule against money going to groups promoting homosexuality and none had so far found against themselves.  I’m sure someone will raise the issue of conflict of interest because the agencies are policing themselves.  Even if legislation passes in 2016 putting the enforcement role into an independent body, the other two arguments of the Council would stand.

There is a caveat in Paragraph 807.12 that would allow a conference council on finance and administration to choose not to provide benefits for same-gender spouses because it could depend on “local employment conditions.”  I have no information to support my opinion that many conferences, because of local conditions that mitigate against benefits for same-gender spouses, do not provide them now.  Even if that is the case, as civil courts overturn such policies in the communities around the country, annual conferences will eventually provide the benefits.

JCM 1265

 http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1387&JDMOD=VWD&SN=1201&EN=1269

RECONSIDERATION OF JCD 1256

The Council refused reconsideration.  While the docket of the Judicial Council published before their session includes in sometimes painful detail the substance of the requests for rulings, it does not include the requests for reconsideration there.  Consequently, there is no knowing what issues were brought forward to be grounds for review of JCD 1256.  The dissenting opinion that there were no proper controls on the emergency reallocation of funds may have been used but it did not hold sway with the Council last fall.  While the Council acknowledged that problem in JCD 1256, it did not sanction the conference for the violations.

JCM 1266

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1388&JDMOD=VWD&SN=1201&EN=1269

RECONSIDERATION OF JCD 1257

The Council refused reconsideration.  While the docket of the Judicial Council published before their session includes the substance of the requests for rulings, it does not include the requests for reconsideration there.  Consequently, there is no knowing what issues were brought forward to be grounds for review of JCD 1257.  While the Council acknowledged in JCD 1257 that the bishop overstepped his boundaries to get Hope for the Future, Inc. up and running in the aftermath of Hurricane Sandy, the Council did not sanction the bishop for the violations.  That could lead to problems in the future.  See my commentary on JCD 1257.

JCM 1267

 http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1389&JDMOD=VWD&SN=1201&EN=1269

RECONSIDERATION OF JCD 1258

The Council refused reconsideration.  While the docket of the Judicial Council published before their session includes the substance of the requests for rulings, it does not include the requests for reconsideration there.  Consequently, there is no knowing what issues were brought forward to be grounds for review of JCD 1258.  While the Council ruled in JCD 1258 that the chairperson of Hope for the Future, Inc. could not also hold the office of chairperson of the conference council on finance and administration at the same time, the Council did not state it would hold jurisdiction until the man decided.  Refusal of reconsideration may mean that he did decide or it may mean that the Council feels it had already made its ruling on the matter and that was enough.

JCM 1268

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1390&JDMOD=VWD&SN=1201&EN=1269

The Council refused reconsideration.  While the docket of the Judicial Council published before their session includes the substance of the requests for rulings, it does not include the requests for reconsideration there.  Consequently, there is no knowing what issues were brought forward to be grounds for review of JCD 1259.  Since the Council already ruled on the issue of conference liability in JCD 1261, reconsideration was moot . . . unless there is concern that the by-laws of Hope for the Future, Inc. really cross the line between the conference and the corporation.  There is no question that the emergency under which Hope for the Future, Inc. was established led to short cuts that were not Disciplinary but both the annual conference and the Judicial Council tolerated that.  As the Council warned in JCD 1261, the boundaries between the conference and the corporation will need to be watched carefully.

JCM 1269

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1391&JDMOD=VWD&SN=1201&EN=1269

RECONSIDERATION OF JCD 1251

The Council refused reconsideration.  While the docket of the Judicial Council published before their session includes the substance of the requests for rulings, it does not include the requests for reconsideration there.  Consequently, there is no knowing what issues were brought forward to be grounds for review of JCD 1251.  In my commentary on JCD 1251, I point out that the advocate missed his opportunity by waiting a year instead of dealing with the strange actions of the Cabinet’s triad at the annual conference immediately after the event.  As discussed in my commentary, using Matthew 18:15 would only have postponed the necessary Judicial Council action until it was too late.  By refusing reconsideration, the Council postpones review of the Cabinet triad processes until a proper request for ruling can be prepared.  And a pastor loses again to power abuse. . . .

As a point of grace, the Council would be wise in the future to allow for a period before saying that they have brought their request for a ruling too late.

Concluding Thoughts on the 2014 Spring Session

My view of the Council’s spring session focuses on three major themes, reconsideration of previous decisions, clarifying the relationship between an emergency relief agency and an annual conference, and sorting out rights of homosexuals.

First, a scanning of the last five commentaries shows that requests for reconsideration are not included in the docket for each Council session.  Let me argue for the Council posting in part the issues which are being raised in those requests.  If you check the docket (go to  HYPERLINK "http://umc.org/who-we-are/judicial-council" http://umc.org/who-we-are/judicial-council and click on VIEW DOCKETS in the middle of the page), you will see the complete request for a ruling.  In one case where I requested reconsideration, the document went on for pages so I would certainly grant editorial rights to the Secretary of the Council.  Since the Council is open to briefs from “friends of the court,” it would help those “friends” to know the grounds for reconsideration that is being asked, just in case insights from the “friends” would aid the Council.

Second, the emergency that led to the formation of “Hope for the Future, Inc.” in New Jersey is a reason and not an excuse for the hasty decisions made to get the program operational.  However, just asking the conference and the corporation simply to watch their boundaries is not sufficient sanction against what the Council acknowledged as Disciplinary violations in setting up the corporation.  While there are “friends of the court” who might be willing to examine the JCDs related to the Greater New Jersey situation and provide a careful listing of violations to avoid in future emergency situations, it would be more authoritative if some or all of the Council members could list them in a concurring opinion, as a Council member did on one issue in JCD 1256.  Further, the Council might provide a church law framework for annual conferences to anticipate handling emergency decision-making following a catastrophe which prevents convening the conference.  Beside the advantage of the legal framework and guidelines provided by the Council being authoritative, it would be independent of the bias of the Council of Bishops who may well set up their own framework and guideline lists which, under their current administrative culture, would accrue more power unto themselves.  See my commentary on JCD 1257.

When the bishops come out with their version, there will be opportunities for them to be challenged at annual conference and thus bring them to the Council’s attention.  But by the Council preemptively providing them, the bishops may decide to abide by them and save themselves and the Council future work.

The final area of concern in this batch of decisions relates to gay rights.  

In the case of the candidate who was turned down (JCD 1263), even an “avowed practicing homosexual” has the right to a proper hearing.  That self-avowal in and of itself is not immediately disqualifying.  The candidate or respondent has the right to a hearing and appeal before his/her peers prior to action being taken. 

In the case of same gender spouses’ rights to benefits, the Discipline provides for equal treatment at least with respect to practices of the surrounding community (JCD 1264).

The Council allows aspirational resolutions, something that only seems to be put forward by those concerned about humane and fair treatment of homosexuals.  The Council strikes down resolutions that call for violation of the Discipline. – One wonders what the Council will do if a resolution calling for schism is passed by a conference.

The range of issues handled by the Council this term was smaller, something common in the spring session.  But the Council is apparently settled into a consistent understanding of church law on those things and that helps all of us.

Now if only they will tweak a few rules and procedural matters . . . .

Ignoring the Discipline Doesn't Doom Us

On May 16, this was published in United Methodist INSIGHT.  It was based on a letter I got from a good friend who saw the controversy over homosexuality and pastors violating the Book of Discipline by conducting marriages of Gay family members and friends.  I wrote a long letter back to hi in response.  I realized it was too long for a single article and it became three, only the first of which was published with some helpful editing.  I've posted the other two below this one.

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A young friend recently asked me: “Does the trend by our bishops to dismiss complaints related to same-sex issues break our covenant under the Book of Discipline? Doesn't that doom our church?" 

After nearly eight decades of "life experience" and more than half a century as a United Methodist ordained elder, I can say without equivocation, "The end of the UMC is not coming anytime soon." I have watched people at all levels of the church thumb their noses at parts of the Discipline since my first appointment in 1959.  That year, for charge conference (annual congregational meeting) that year, the Discipline required that I find out where the deeds and other legal papers were. When I asked the trustee chairman about the documents, he became very angry and accused me of not trusting him. The DS did not back me on my effort to locate the documents. He was not a stickler for the Discipline. 

When the process of consulting with congregations on pastoral appointments was first put into the Discipline in the 1960s, the only bishop that I know who followed it was ours in Wisconsin. Most bishops saw the whole idea of having a potential pastor meet with the pastor-parish relations committee of a church before appointment as undermining their authority. To this day, consultation with congregations on pastoral appointments is inconsistent at best; some conferences use it regularly and with integrity, while others don't. But it's still a requirement in the Discipline.

In another violation of the Discipline, many pastors completely ignore the Church's stance against re-baptizing adults who, baptized as infants, want to repeat the ritual to mark their spiritual renewal. If a pastor holds to a theology that only adult baptism has any meaning because of a believer's public profession, then he or she re-baptizes without a second thought. Yet no one has seen the church fall apart on account of re-baptizing, which violates the Discipline.  

Finally, based on the cases I have worked on as an advocate for clergy in "fair process," I have seen bishops violate the Book of Discipline left and right in personnel matters. Pastors' rights have been trampled upon repeatedly by inept or intentionally cruel misuse of church law, yet no one – not even their own accountability body, the College of Bishops – allows bishops who transgress the United Methodist personnel processes to be brought up on charges for their violations of the Discipline. 

These episodes illustrate my point: everyone – bishops, clergy and laity – violates the Discipline regularly. This has gone on since the Discipline was passed by the first General Conference in 1784. Yet the United Methodist Church lives on. 

Having the UMC's long history of inconsistent enforcement of the Book of Discipline as its ruling covenant, I think that the furor over private sexual behavior of only certain people has hidden a lot of other violations of the Discipline. The threat to break up the church over violations of the "covenant" is being used as an emotional distraction covering efforts to take over the denomination and drive out diversity of all kinds. The same tactics were used in the Southern Baptist and Missouri Synod Lutheran denominations to gain control of properties and seminaries of those denominations, and thus control of the theology and authority of each denomination. Such a drive for control is characteristic of those who cannot tolerate dissent or differences. The reason they don't show their true colors in the middle of the fight is because if they did, their ambition and hunger for power would antagonize everyone.  

Within our United Methodist Church, there are very good people with a wide variety of agreement and disagreement who are on each side of the homosexuality debate. We have been working side-by-side with them in hurricane relief, in jail ministries, and in mission projects. We all sit side-by-side at weddings, funerals, anniversary services and annual conferences. Only rarely do our differences over the church's official stances regarding the issues related to homosexuality enter into our conversations.  

So will "breaking the covenant" by violating the Book of Discipline doom The United Methodist Church?  Our covenant is only partly related to church law. I think that using the threat to split the church as a part of tactics to change church law has been with us since 1980 and we haven't split yet because we are too busy enjoying the other part of our covenant, our potlucks and trying to do good in the world in Jesus' name.