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.