Commentary on Judicial Council Decisions 1361 to 1368

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.

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.

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.  The web page gives you several options for finding any decision(s) you may want.  To go to a listing of every decision, leave the boxes empty and just click on the “Search” bar.  To follow up on a theme such as “separation of powers,” or if you remember a short phrase from a decision, or know the conference or a person involved, type that into the “Keywords” box.  Then click on “Search.”  To go to a specific decision by number, ignore the “Keywords” box and type the number into the “Decision Number” box and click on “Search.”  Follow the instructions given on the page to search based on other things like approximate date of the decision.  Clicking on “Search” for all these options provides a list of possible decisions.  Scan those listed to find the most likely decisions that can be of help to you.  To get into the decision itself, click on the red text.

Once in a particular decision, you will not find your phrase highlighted.  To highlight a key phrase you search for, 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.

Another source of help to find and understand particular decisions, 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.

Hopefully, my commentaries on this blog will be a valued resource in your search for understanding church law and its contexts.  I also hope my directions for navigating in UM sites will help you in your research on the work of the Judicial Council.

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.

JCD 1361

http://www.umc.org/decisions/78134

Appeal of Administrative Personnel Actions

I was a consultant in a case appealed under Paragraph 2718.3-.4 at the time this decision was before the Council.  I should not offer my commentary until after the case has been resolved.

JCD 1362

http://www.umc.org/decisions/78135

On Removing Delegates

There was a request from General Conference administrators about the authority of General Conference to remove delegates who violate the ethical rules passed by General Conference.  The Council, while citing two previous decisions, ruled that the General Conference did have the authority.

In an impassioned plea in a dissent, it was pointed out that only the annual conference had Disciplinary authority to remove someone it elected.

Nowhere in the ruling, dissent, or original request for a ruing were any reasons for the question to be asked.  

For example, could a delegate facing church trial in his/her annual conference be removed from representing the annual conference by a vote of the General Conference, even if the judicial complaint had nothing to do with the General Conference?

Or could the General Conference vote for some narrow ethical criterion such as participating in a demonstration on the floor of General Conference or lobbying for a particular point of view that the majority do not accept as biblical?

By ruling that the General Conference may remove delegates, the Council has opened the door to just such a political tactic.

There are four basic ways this vulnerability can be overcome.  

One, legislation may be passed to establish criteria that limits such a political tactic.

Two, as globalization continues, waiting until some wedge issues like homosexuality decline because people discover they are no more of an issue than divorce or slavery.

Three, appealing to the Council a particular case where a delegate’s removal is actually voted upon by the General Conference.

Four, challenging any particular narrow criterion when it is proposed to be part of the rules, either by voting it down on the General Conference floor or by appealing to the Council.

There is also the option of providing in the Discipline for a facilitated process to allow an annual conference  to elect a replacement in a timely fashion.  With modern communication technology, this seems a plausible route.

The general principle that a body can make up its own rules of behavior and enforce them in its own way (such an impeachment of a President by the Congress) is not without its problems in a democratic system.

We’ve established that the Council has the last word on which authority is the higher.  That’s called “following the rule of law” or “believing in constitutional law.”  In this era where there are forces trying to break those values down, we need to remember that just as law can be manipulated, those strategies can be countered under law.  That’s what appeal and dissent are all about.  There are orderly if slow ways to respond and make right a situation.

That’s why counsels on both sides of a controversy tend to maintain collegiality.  They may end up on the same side someday.

JCD 1363

It Ain’t There!

There is no JCD 1363.  The chances are that the number was assigned to a case that for some reason, the Council decided late in its deliberations was not ready to a ruling.  

It’s my view that things are getting more complicated and sometimes, last minute discoveries of older church law or something obscure in the Discipline comes up and throws a monkey-wrench in the thinking of the Council.  

It might be that someone on the Council cannot make up his/her mind on a decision where the rest are split and the Council cannot act.  Again, it could be that the decision was held till the last minute and then not possible to resolve.

Most likely, there was an editorial error made.  They are rare but in actual numbers over the years, are the most likely to have occurred.

The Judicial Council makes human errors.  Who knew?!

Curious as we all are, those nerdy enough to want to know, we probably will never get a reason.  And once this kind of error is made, it becomes irrelevant since numbering a decision is like naming a child.  

JCD 1364

http://www.umc.org/decisions/78136

Legality of High Fees to Attend General Conference

Last year, the General Conference Commission set unusually high fees for observers attending General Conference as a way to raise enough money to cover expenses of General Conference.  Minnesota Annual Conference challenged those high fees.  Even though their request for a ruling came late, the Council responded by saying their request was moot because the commission found alternative funding and dropped the high fees.

JCD 1365

http://www.umc.org/decisions/78137

Legality of High Fees to Attend General Conference

Four other annual conferences challenged the high fees that the Minnesota Annual Conference challenged (see JCD 1364 above) with the same result, though their requests for rulings came in on time.

A timeline of events was laid out showing when the high fees were announced, how the conferences responded, and when the high fees were rescinded.

JCD 1366

http://www.umc.org/decisions/78138

Constitutionality of the Various Plans Before General Conference

Other writers have provided information on the three main plans before General Conference meant to deal with the deep divide in our denomination over the practice of homosexuality.  They include differing efforts on how to allow amicable separations of congregations, establishing new jurisdictions for each of the two sides in the debate, and more enforcement and punishment for those who disagree with current church law on the matter.

I admire the careful consideration provided to the Council of Bishops’ request.  That was very gracious of the Council, considering that the Council turned down a similar request last year because the Council did not see the request taking into account all the options that might be petitioned.  I’m sure there was a fear that calling out one or another of the plans as unconstitutional or as “clean” might prejudice the General Conference.  

With the plans in their petition form and the establishment of clear limits of any further petitions, the Council gave attention to sorting through everything coming through the Bishops from the Way Forward Commission and noting which petitions among that lot were okay and which were not under church law.

In briefest summary, the Council found the Bishops’ favorite, the One Church Plan,” to be mostly okay.  The Council found serious flaws that violate the constitution in the “Traditional Plan.”  The third plan, the Connectional Conference Plan, was not examined because it required constitutional changes and the Council cannot take jurisdiction over those kinds of petitions.

If you are interested in those details, the decision is well framed and any editing down as was thought necessary for JCD 1341 (the “Bishop Oliveto” decision) was laid aside.  Nerd out on JCD 1366 to your heart’s content.  You will also find many articles at the websites of the United Methodist News Service (https://www.umnews.org) and at United Methodist Insight (um-insight.net).  You may also find of interest a critique of the Bishops’ favorite plan which while it passed muster with the Council would leave the denomination vulnerable.  Go to http://www.wesletspace.net/GC-2029/Critique - One Church Plan.pdf.

This decision will not resolve the tension the 2019 General Conference faces.  It puts more pressure on the conservatives to come up with amendments that clean up their petitions and leaves them facing further challenges to the Council if they prevail with their votes.  I do not see many moderate to liberal churches leaving to denomination as the conservatives hope if the conservatives win.  

What I do see, though, is that by 2028, our successors will bemoan the fact that we wasted decades on the issue of homosexuality while the earth warmed.  The latest projections are that the world economy and politics have to change dramatically toward cooling the planet or the life we have known faces EXTINCTION . . . IN OUR LIFETIME.*

I have more to say on how we got here.  You can find that in posts I made on my personal blog at www.jerryeckert.blogspot.com.  

What I am advocating for in this posting here is that all of the differences of opinion, of tradition, of Biblical understanding, important as they are to who we as individuals feel them to be, pale in light of how rapidly the globe is warming and how soon the damage that is doing will become irreversible.  My prayer is that this General Conference will drop this whole controversy and face the most critical issue of our existence, find a collective prophetic voice to face it, and look for ways we can work to save the planet.

*Type “2030 global warming" into any search engine like Google for confirmation.

JCD 1367

http://www.umc.org/decisions/78139

Asking for a Special ruling by the Judicial Council

The Committee on Investigation of the West Ohio Conference ruled in a case of a complaint against a pastor in such a way that the Church appealed it to the North Central Jurisdictional Committee on Appeals.  When they ruled that the church counsel was right but that the case be paused until the conclusion of the 2019 General Conference, the church counsel sought a decision from the Council to remove the pause.  The Council deferred until it meets before the General Conference in question, asking the church counsel to provide grounds in church law for his request that the Judicial Council intervene.

Like the Council, I have no awareness of any church law that allows church counsel to seek the Council’s intervention by a request for an interlocutory ruling.  

Our judicial system is relatively simple and does not include a lot of the alternative appeals routes common in civil courts.  While I doubt that the church counsel will find sufficient grounds in church law to pursue his appeal, the Council at least is allowing him the possibility which means they may open up a channel not here-to-fore available.  Hopefully, if the Council does, it will provide a way to expedite interlocutory (“between sessions of the Council”) decisions.  I think it already has authority to do that.  In JCD 1361, the Council was ready to wait until the General Conference deals with it but I believe the Council will realize that is can set up something under Discipline Paragraph 56.6 where is says, “To provide its own methods of organization and procedure.”

JCD 1368

http://www.umc.org/decisions/78140

Who is the respondent?

One of the things that drives normal people crazy are matters of law that are understood by lawyers but are not usually made clear to everyone else.  The “everyone else” are usually the accused, the accuser, the advocates and counsels for both, the church counsel, the bishop, the members of the committee on investigation, the conference relations committee, the administrative review committee, the Board of Ordained Ministry and the clergy session  We are all duffers when it comes to law.  We are amateurs at best, and we go into meetings meant to provide justice, and we are usually incompetent at providing it or protecting each other with it.  We do the best we can and some of us learn the ropes with enough practice.  

And then someone switches the terminology and we either learn a new presumption of law or we are bumfoozled and wonder if justice just died.

In the case from West Ohio that is the subject of JCD 1367, the respondent wished to join the appeal of the church counsel before the jurisdictional appeals committee.  His arguments, which you can find in the docket for this session of the Council (see Docket No. 1018-3), the respondent felt his right to be heard applied to the appeal of the church counsel.  See Disciplinary paragraph 2701.2a.  

However, the appeals committee, at the advice of its consulting lawyer, identified the “respondent” to be the committee on investigation and the church counsel as the appellant.  So the real respondent was given no place to appeal in the hearing and his presence in the person of the assistant counsel for the respondent was not allowed either.

So who among us can quickly discern the presumption that the respondent in a case is no longer the respondent in certain circumstances and that the appellant is not the respondent in some situations where his or her situation is being discussed?

Several years ago, I was counsel for a respondent appealing his case to the Council.  How the appeal got there turned everything topsy-turvy.  A delegate at jurisdictional conference raised a series of questions on behalf of the respondent.  Because of some minor glitch, the questions were referred to the college of bishops who in turn referred them to the Council.  In that circumstance, the president of the Council pointed out that the respondent was no longer the appellant.  The College of Bishops was, having sent in the questions.  And so as appellant, the bishop’s representative spoke first and had the privilege of preserving minutes after my presentation for rebuttal.  My incompetence as an amateur aside, I felt I and the respondent were put into a serious disadvantage.  Indeed, we lost the case.  But I had to admit the technicality of the appeal through the College of Bishops forced the Council president’s hand.

In this case, JCD 1368, the Council agreed with the appeals committee that the one who appealed, the church counsel, was the appellant.  Unfortunately, legal terminology has apparently only one word for the other guy, “respondent,” and designated that to the committee on investigation who was being accused of egregious behavior in not forwarding the complaint to trial.  Where did that leave the pastor whose trial was being bandied about in that appeals hearing?  The appeals committee gave him no right of voice at all.  And neither did the Council in this decision.

Strange.  Law is confusing.  And the more we have to practice it in our denomination to handle conflicts and complaints, the more we get into new territory where civil law has long ago gone but where the rest of us amateurs never were before.  So many things lawyers bring over from civil law are not in the Discipline.  And what is, is only a part of what civil law does.  

So we desperately need good lawyers to help us do our personnel work.  That apparently was not done by the West Ohio Committee on Investigation.  Hence, they have to redo the hearing for the accused pastor, with counsel assisting the committee.

We also have to consider adding to our Discipline terminology that does not leave us confused.  Having the prosecutor called the appellant is weird, at least to me, and having the committee on investigation called the respondent was extremely weird to the counsels for the real respondent.  

In 1978, Bishop Jack Tuell published the main book on THE ORGANIZATION OF THE UNITED METHODIST CHURCH.  In it, he decried the pain and confusion of having law practiced in the denomination,  He left the practice of law to become a pastor to get away from the stilted and arcane things that law had been to him.  His hand is in the terminology in our Discipline (for example, “fair process” instead of “due process”).  But we have to come to grips with how to handle the gaps in our denomination’s legal system.  Like in this case, one is being filled without full consideration of its implications.  If the Church doesn’t have its own solution, a solution from secular law will be found when a decision has to be made.

Maybe it’s time for a serious examination of church law, much like the Roman Catholics went through when they established their canon law.  Several Associates in Advocacy have been teased about being “canon lawyers.”  

I hope someone has enough time to pull together canon law for United Methodists.  It would be a valuable tool and hopefully a good example of why we have law in the first place.  Maybe even be a challenge by example for counties, states, and nations, and other denominations.

Concluding Thoughts on the Fall 2018 Session

Overriding all that faces the Judicial Council are the scientific warnings that global warming is proceeding faster than previous predictions.  We are accustomed to projections pointing to the end of the century (80 years).  Some have identified 2050 is a check point with regard to some aspect of global warming.  But the most recent observations indicate that we have ten years before reaching the point of no return for our survival.*  No, everyone will not die in 2031 like the dynosaurs all seemed to die at one time.  But the oceans will be too hot to function right, terrible storms and fires will strike many parts of the earth.  Shore lines will be inland from where they are now and millions of people will be displaced and food will be scarce for most of them, to say nothing of housing and order and jobs.

What will our children and grandchildren say when they look back at what we are spending our time on now.  Splitting a denomination?  Arguing fine points of legal terminology?  Questioning how much it will cost to go to General Conference?

John Wesley once was asked what he would do differently if he discovered that he would die tomorrow, so my history professors said during seminary.  He replied, “I’d finish out what I have to do today.”  Or something to that effect.  There is wisdom in that.  After all, what am I doing?  These things have to be done, seeking resolution to complicated questions, resolving personnel issues, etc.  If predictions are wrong. if solutions are found that put off or even eliminate the dangerous future facing us, these kinds of things will be important.

But where are our priorities.  Can we change them to mobilize in such as way that we can be part of the solution rather than be distracted by personal feelings, by legalisms that complicate things, by agendas that have been important perhaps for our whole lives?  Is our heart as a denomination big enough to show our love for the Earth and for our neighbors?  Can we lay down our petitions and our arguments and our distractions long enough to see what is actually happening and see just how critical it is to act now?  

To the Judicial Council and those bringing their cases, I say do your thing.  But to the General Conference, I ask you to switch priorities and start asking how to plug in on all the ways being found to deal with global warming and save some of these intramural conflicts for another generation.

*Type  “2030 global warming” into any search engine like Google for confirmation.