Confusing and Conflicting System
Let me try to reconstruct the situation in the case from the Texas Conference. A woman pastor was accused of being involved in an affair. The accusation became formal. A just resolution was worked out. One of the bodies that should have been a party to the just resolution, the conference relations committee of the Board of Ordained Ministry without providing a hearing with the woman pastor, refused to accept the terms. The matter went to trial. The trial court found guilt and the punishment was what had been worked out in the just resolution.
If I had been the advocate at the time the conference relations committee decided there would be no hearing, I would have complained immediately to the bishop that the respondent did not get fair process rights as the 2008 Discipline required (Paragraph 363.1). I wouldn’t have waited until conference. The bishop, under Paragraph 415.3, could have intervened on the procedural (emphasis added) matter of failure to provide the respondent’s right to be heard and the accompanying rights a hearing with the committee required. Had the bishop done that, there might not have been the expense and other costs a trial entails.
The Council has not been asked, so far, to look at Paragraph 415.3 as part of the bishop’s administrative responsibilities with respect to handling of complaints. I made a point of it in my analysis of “moot and hypothetical” rulings of the Council last year.
The 1988 study commission added Paragraph 415.3 as a back up protection of fair process so that if there were mistakes made implementing fair process, the bishop could “ensure” it by stepping in, correcting the situation, and get the procedure back on track. By doing that, the bishop was not dealing with the accusations or evidence substantively but only procedurally (administratively).
The word “substantive” and its various forms have not been properly parsed in this decision or all the others which have been based on JCD 799. If we distinguish between having jurisdiction over deciding about procedural matters and deciding about guilt or innocence and identify “substantive” to relate to the latter only, I think we would be better able to sort out the various roles.
As the Discipline currently reads, the bishop’s judicial role includes monitoring and correcting process in administrative and judicial matters, including being required to answer questions of law at annual conference about procedures used in personnel cases. That is not how the Council reads the Discipline. There have been serious departures in certain cases (JCDS 1031, 1032, 1156, 1189, 1216,1230, et al) because the cases were clearly unjust. The Council, by encouraging the use of Paragraph 415.3 for procedural questions, now could have legitimate grounds for what it did in those past cases.
I also happen to agree that bishops should be removed from judicial matters, as I have said innumerable times. But that would leave a gaping hole in our system that would have to be filled some way. Perhaps the nominating committee can take over all nominations that the bishop now makes for the groups that deal with personnel matters. Perhaps a “counsel for the Church” can be elected to take over the tasks of receiving complaints, handling supervisory response tasks, setting up just resolution options or mediation, and so forth. Maybe there should be an annual conference level court to be the first body to hear questions of law and even requests for declaratory decisions and appeals of church trials.
The system needs a serious review and the various tasks need to be realigned so that the separation of powers is handled better and so that cases like this one do not continue to fall in the cracks as they have since 1997 when JCD 799 was made.