Associates in Advocacy

On Aaron Rodgers and Being Bishop

2011-12-07T12:41:00.000-08:00

Associates in Advocacy
Justice Always, Reconciliation and Restoration Where Possible
c/o Rev. Jerry Eckert, Contact Person 20487 Albury Drive Port Charlotte FL 33952
Phone: (941) 743 0518 E-mail: aj_eckert @hotmail.com

Dear Bishop,

I try to find the best story or theme I can to forward to you during the holidays. Instead of something built on Christmas themes, I have found a Bible-based theme: “I am the good shepherd; I know my own and my own know me.” (John 10:14)

I’ve been a Green Bay Packer fan since I was a pre-schooler, thanks to my family always listening to the games on the radio. So, when parishioners called me “Coach,” I was deeply honored because as a minister, I most appreciated those bishops and superintendents who really knew me and helped me. As excellent illustration of that kind of knowing was described by Lori Nickel of the Milwaukee Journal-Sentinel in her article about Aaron Rodgers. She gave me permission to send it to you and other leaders of the Church.

In the covenant of the clergy,

Jerry

“Do unto others as you would have them do unto you.”

* * * * * * * *
Rodgers learns 52 ways to motivate teammates

By Lori Nickel of the Journal Sentinel
Nov. 26, 2011 |(78) Comments

Green Bay - Donald Driver was getting dressed for the game at St. Louis two years ago when Aaron Rodgers came over and handed him the game program.

"Read this," Rodgers said.

The article referred to Green Bay's veteran receiver being past his prime and too old to make any impact.

Driver, who has made a 13-year NFL career out of proving his detractors wrong, felt his blood boil. And then he caught four passes for 95 yards and a touchdown.

"That's something that I love about Aaron - he knows how much I love criticism," Driver said. "People tell me I can't do it; I prove them wrong. Soon after that at Detroit, I ended up winning the Gobbler. Pam Oliver said after the game something like, 'The old man does it again.'

"That was very, very motivating for Aaron to walk up to me and show me that. It was motivation to go out there and play at a high level. And he continues to push me now."

The Packers' elite quarterback is familiar with the power of motivation.

From the kids on the high school bus who said he'd never make it to the colleges and their rejection letters to the teams that passed on draft day to the boo-birds on Family Night. People said he couldn't run, was made of glass, couldn't rally in the fourth quarter and couldn't live up to the legacy of you-know-who.

He's used every one.

And now he finds ways to motivate his teammates.

With a look, or a word or a simple show of support, Rodgers prods his teammates to give more. There is no one formula for reaching 52 other guys. And that's the secret. Rodgers studies his teammates to come up with the best method to push them.

"That's why he has so much success," backup quarterback Graham Harrell said. "It's not just how well he plays but how he can get other guys to play around him."

The Look

Rodgers is playful with the defensive linemen in practice, but if you play with him on offense, you do not want The Look.

It's practice, and tight end Tom Crabtree makes a rare mistake. He looks up. Rodgers has zeroed in.

"It's a pretty good look. It's pretty constructive," Crabtree said. "But it's good to make those (mistakes) in practice, because then you definitely don't make it in a game."

A drop in practice. A mental error. A half-effort. Those will get the icy cobalt blue stare just long enough to make the receiver feel a little guilty, but most important - aware.

"We can't run a route at 75% in practice because we're not feeling it," receiver Jordy Nelson said. "Then the timing is all off and then he looks bad and he gets mad at us - and that will keep me moving forward.

"You don't want to get on the bad side."

The Look is much better than more demonstrative signs of disapproval. Rodgers keeps it low-key with The Look while still conveying his message: You can do better.

"Sometimes you can see it on his face, you know: 'Hey, come on, guys,' " right guard Josh Sitton said. "He's not the type of guy that's going to yell at you or put you down. He's a real positive guy. Everybody respects him.

"But when things are happening wrong, he kind of gives you that look, and when he gives you that look, you know."

Lessons learned

But The Look is nothing compared to being called out by Rodgers.

Rodgers motivates tight end Jermichael Finley by asking him to do everything the right way instead of just relying on his elite talent.

"He did jump me a couple of times, but nothing too brutal. Nothing I can't handle," Finley said. "Like if you didn't get your depth on running a route, he'll jump you for that.

"He's the quarterback, and if you want to get the ball, you've got to do it right."

But then as quickly as Rodgers pushes Finley, he praises him with something he noticed.

"He does a good job adapting to each guy, like someone like Jermichael, who is a little more wired than most guys, or Jordy and Greg Jennings, who are more laid-back," Harrell said. "He knows how to get to each one of them personally."

But Rodgers' attempts at motivation don't always work. Last year, when rookie running back James Starks came off the physically unable to perform list, Rodgers nudged him to work harder in practice.

Well, it was more like a scolding.

And Rodgers now believes he was wrong.

"He is probably the nicest guy in the locker room. And I felt bad because I kind of ripped him a couple of times," Rodgers said. "So I had to go to him and apologize. It took me a little to figure out he was out for nine weeks and kind of how he's best motivated.

"He just needs that constant encouragement. Reminders - but in a way that's uplifting."

The history behind it

Rodgers realized 10 years ago at Butte College that it helped to understand his teammates in order to ask them to play their best.

"I was 18, just out of high school," Rodgers said. "Our center was 25 from Canada, our left tackle had been in the Army, one of my best friends on the team had been in prison - he was our free safety. I really learned the difference between leading a bunch of high schoolers - you're all about the same age - and leading guys who come from all different backgrounds."

Rodgers takes the time to educate himself on his teammates by being observant and making the effort to get to know them.

Tim Masthay had been in Green Bay less than 48 hours. He was thrown immediately in to a two-man fight for the punting job. He was a number. Totally anonymous.

And yet someone kept messing with him.

Masthay was working out with the special-teams unit. The quarterbacks were in the middle of a March practice. Masthay did a triple-take to realize it was Rodgers, whom he had never met, joking around with him. Still feeling like a guest, Masthay was floored.

"He called me by my first name," Masthay said. "Me - a rookie free agent, new off the street, a punter, frankly bottom of the totem pole. Yet he immediately made me feel welcome and a part of the team."

Rodgers does his research: Where is the player from, his college and what other parts of his background are relatable or interesting.

"I wanted to talk to Diyral Briggs right away and get his story, to Erik Walden and Howard Green and get his story, because that can only make us better," Rodgers said. "The chemistry of the team is often under-appreciated or overlooked when you talk about success. When you know the guy next to you - when you can count on him, you've hung out with him, you know what kind of person he is, know how he's motivated - then you can figure out the buttons to push."

A year and a half later, Masthay wants to perform his best, naturally, but part of that is because he doesn't want to let anyone down, most of all Rodgers.

"We were playing Detroit at home. The week before I hit the ball pretty decent, but Devin Hester had returned one," Masthay said. "There was all this pressure on the punting and on me. I started out the Detroit game with a bad punt; I just kind of shanked one out of bounds. The crowd is booing here at home.

"I come to the sideline and a couple of teammates talk to me, but he pulled me off to the side - and he's getting ready to start an offensive series - and just settled me down. 'Just do your stuff.' "

A calming presence

For all the competitive nature of Rodgers, his calming effect on the team can be seen most often in his receivers.

"You know what he does that other quarterbacks don't? It's in the huddle: 'Let's just take one throw at a time,' " Driver said. "That motivates everyone in the huddle - even if you are nervous, like, 'Man, I've got to make every play count. This may be my one opportunity.' He makes you forget that.

"He motivates the guys to say, 'Let's not worry about how many balls we've got. Let's just play.' Because when it's all said and done, no one is going to care about you having a 1,000-yard season - everyone is going to care about us winning the whole thing."

That's an entirely different kind of motivation, unique to a 2011 Packers squad that is so deep at receiver and tight end. Rodgers has to find a way to keep everyone content when things can't always be fair.

The Packers won the season opener against New Orleans, but not everyone was happy. James Jones had one reception. This was not what he had hoped. Though Jones knew the Packers had depth at receiver, he had waited for his time. He had signed a new contract. His moment was now.

Rodgers didn't want to let that issue fester, so he talked with Jones right away.

"I wanted him to know - one, I have confidence in him," Rodgers said. "Two, I agree with him. He should get more opportunities. And three, when he's in there, to run every route as if he's going to get the ball.

"I don't think that's going to directly correlate to him playing well the next couple of weeks or anything. But I just hope he understood that I had confidence in him and I was agreeing with him."

Jennings, Nelson, Finley and even Starks have had more catches than Jones, who had a surreal performance at Detroit on Thursday with three catches including a 65-yard touchdown. He's shown he could be a starter. It's got to be a challenge for the 27-year-old in his prime, but he hasn't vented since.

One mission, one heartbeat, one team. Case closed.

Rodgers seems to enjoy being around his teammates and figuring out what makes them tick for the fulfillment of being a part of something bigger than himself - a team. A good team. And though he's about to turn 28 years old, and perhaps win his first Most Valuable Player award, he's still reading his teammates, listening and watching them, pushing them and encouraging them.

"When you think you've got it figured out, you stop being attentive to what your teammates need, because we're a locker room that's changing," Rodgers said. "Guys change. Their priorities change. Their off-the-field lives change. Guys have kids, get married, guys may have something in their life that's happened that is traumatic.

"You can't talk to a guy the same when he's had those experiences. You have to be sensitive to them and their needs and maybe their situation."

Fall 2011 Judicial Council Decisions JCDs 1190-1204

2011-11-21T02:58:00.000-08:00

The following observations are intended to encourage you to read the decisions of the Judicial Council for yourself. The observations 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 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.

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, you can go to whichever decision is of interest to you.

Associates in Advocacy 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 under HELPS for the Judicial Council.

JCM 1190

2011-11-21T02:52:00.000-08:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1311&JDMOD=VWD&SN=1101&EN=1200

Having done some consulting as noted in the blog posts about the respective docketed items on the Philippines case, I have reread every related decision and memorandum rendered by the Council (JCD/Ms 1149, 1152, 1162, 1177, 1182, 1183, and 1184). I am seeing inconsistency on the Council’s part with respect to the case.

The Council accepted a petition from the bishops of the Philippine less than a month after their Spring 2010 session where the Council ruled the bishops in the Philippines constituted a central conference for the purpose of dealing with a complaint against one of their fellow bishops (JCD 1149).

But the Council refused to accept a request for an early decision in Bishop Tangonan’s ongoing struggle with the college of bishops. Despite identifying the actions of Bishop Arichea as “convoluted” in changing the site of the annual conference (JCD 1152) and most of the Council being bothered by the six undocumented suspensions of Bishop Tangonan over two years by that college of bishops (JCD 1183), the Council put him off by postponing dealing with his request until next Spring’s session.

Despite their unease about what was coming to them in incomplete bits and pieces, they still went along with their rulings that the Philippines bishops constituted a college of bishops and that Bishop Arichea did no legally questionable wrong. But Bishop Tangonan has been left hanging by those decisions, further deepening the split in the annual conferences which he led prior to his suspensions.

The Council appears to have taken the word of the college of bishops when the Council accepted how the bishops’ petition described the results of a committee on investigation rather than seeing that original document for themselves.

It can be argued that the Council is stuck with maintaining their rules and with parties who do not send all the needed documents. Hence, they put out decisions as best they can. But I fear that the Council, when in doubt, tends to believe those higher in the power structure and not persist in their demand for better documentation.

In JCD 1152, Bishop Arichea said he met with the Cabinet on Feb. 3 and they voted to change the site of the annual conference. Then in JCD 1162, the story changed. The DSs failed to respond to attend the Feb. 3 meeting and a final vote on the change of site occurred on Feb. 18 after he had appointed a whole new Cabinet.

A different reading of JCD 1162 might allow for another interpretation, that a request not to change the site sent in by the lay leader was what the Cabinet refused to respond to. But it is more reasonable to assume the Cabinet refused from the beginning to meet with retired Bishop Arichea because the Judicial Council had not yet ruled that the Philippines bishops did indeed constitute being a college of bishops under church law. That ruling did not occur until many months later. No one knew in February when Bishop Arichea showed up and changed where the annual conference was to be held whether or not he had that authority. The Council gave it to him retroactively. Like enforcing a law retroactively is wrong (see JCD 704), having to justify past actions by making a law change to fit the situation, which is what JCD 1149 did, may also be bad law.

The Council has a way out of this mess. It needs to undertake a review of all their decisions. And it needs to use its authority to obtain documents withheld from it or were not asked for in those decisions. Until the Council does, it may face many and sundry petitions from that group of annual conferences. One hopes that instructions have been sent to all the involved parties to send everything they have for the review of the Council next Spring. In the meantime, it might want to change its rules and find a way to review early requests in an orderly and consistent manner and respond in a timely way to Bishop Tangonan’s request.

JCM 1191

2011-11-21T02:49:00.000-08:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1312&JDMOD=VWD&SN=1101&EN=1200

This memorandum notes that concerns left over from JCD 1156 have been resolved. Although it is not clear from what this statement says, apparently the conference has paid the pastor for time lost due to the incorrect application of the 2008 Discipline. Apparently the proper minutes and other documents have clarified what actually happened.

I have no independent confirmation that is what happened but the upshot of this ruling is that JCD 1156 stands.

One hopes this effort by the Council shows they can sort out the sometimes murky personnel actions of the Church and resolve them.

JCM 1192

2011-11-21T02:43:00.000-08:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1296&JDMOD=VWD&SN=1101&EN=1200

This memorandum deals with two unrelated petitions seeking reconsideration. It denies both without analysis or comment. The effect is to sustain earlier decisions on both. JCM 1176 was the case where a church closing was challenged because the Conference gave no prior warning to the congregation. JCM 1184 was about requesting reconsideration of JCD 1152 in which the Council affirmed after the fact the authority of an interim bishop in the Philippines case.

The requests were not without merit, as my blog posts on those earlier decisions state. It is a shame the Council chose not be share their thinking as they have on other requests. Their docket was surprisingly small compared to other fall sessions in recent years.

The upshot is that the Council feels all further argument on the respective cases adds nothing to what they already said about them. On these two requests, I wish the Council did not choose to play their “We have the last word” card because I think there still are serious issues left unresolved.

JCM 1193

2011-11-21T02:40:00.000-08:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1314&JDMOD=VWD&SN=1101&EN=1200

The Council was asked for a third time to reconsider JCM 1152 (see JCMs 1162 and 1183). I do not know the grounds for the request from either the originator or from the Council. I hope the Council’s minutes which will be archived contain complete notes on the request and the grounds for denying it. Historians of the future will be interested in how our era thought judicially.

JCD 1194

2011-11-21T02:35:00.000-08:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1315&JDMOD=VWD&SN=1101&EN=1200

There were several annual conferences that were impacted by the removal of Bishop Tangonan and his being supplanted by retired Bishop Arichea. The request before the Judicial Council shows there is lingering discontent about it.

The impact of this ruling is that only the session presided over by Bishop Arichea sends the valid representatives to the General and Jurisdictional Conferences in 2012.

I find it interesting that the Council did not cite its own rulings to justify supporting Bishop Arichea’s decision of law saying his conference session was the only legitimate one (see JCD 1149). Interesting, but who knows how significant it is?

JCD 1195

2011-11-20T09:02:00.000-08:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1316&JDMOD=VWD&SN=1101&EN=1200

The parallel situation in a second of conferences previously served by Bishop Tagonan provides the request in this decision. The commentary for JCD 1194 obtains here.

JCD 1196

2011-11-20T08:59:00.000-08:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1317&JDMOD=VWD&SN=1101&EN=1200

The wording is different but the issue is the same as in the previous two rulings. The result is the same.

The cumulative effect of all the decisions in the Philippines case is that the college of bishops, no matter what they did, was essentially supported from the United States, further enhancing the power of that group to do as they think is best, whether or not the Discipline is on their side. They have had the Judicial Council, which is even better.

That could fall apart if the Council seeks all the documentation they should have received as these cases came their way. Will the adeptness of JCD 1156 be applied to the spring session’s review or will the tendencies of this whole series, essentially backing up the college of bishops no matter what? We’ll see.

Surely there have been questions in other annual conferences in other parts of the world. History shows that the Church in the Philippines has turned to the Judicial Council more frequently than any other conferences outside the United States. Some historian may find it an interesting study to see why that is so.

JCD 1197

2011-11-20T08:57:00.000-08:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1319&JDMOD=VWD&SN=1101&EN=1200

Our era has seen the rise of the bishop as CEO. In that movement, bishops have sought more authority than the Discipline actually provides. I’ve seen the officers of the conference (the administrative ones under the bishop) take over the determination of which mission projects to fund, taking it away from the annual conference (JCD 608). I’ve seen bishops press toward having the power to fire pastors without fair process (JCD 777, 784. et al). I’ve seen the Judicial Council turn back many reorganization plans which supposedly “streamlined” program and administration in various annual conferences, some of which even granted the bishop a vote in matters the Discipline does not allow (JCD 1171).

What usually occurs in these reorganization plans is that the conference cuts ties with the denominational resources outside the conference by slushing together Discipline mandated bodies into more “manageable” and less regulated groups. The result is that control of the actions within the conference is not “hindered” by obligations to entities outside the conference (JCD 1147) or even inside the conference (JCD 1150).

The Council provided guidelines for restructuring back in 1998 (JCD 835). It seems the bishops have not even wanted to let the Judicial Council interfere with their restructuring ideas. Or maybe, no one has instructed new bishops for the past 13 years about lessons to be learned from the Discipline and the Judicial Council.

This Council is amazingly patient with its explanations covering old ground again and again.

The bishops are going to have to realize there are limits to their power, that they are part of a connectional system that only works when all the parts are properly connected, and that connectionalism means more than “Obey the bishop.”

One other note about this decision. It includes the same rationale for a Council member not to have recused himself from voting on a decision that was used in JCDs 1131 and 1132. At least a reason was given for the sake of transparency.

JCD 1198

2011-11-20T08:55:00.000-08:00

JCD 1199

2011-11-20T08:49:00.001-08:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1320&JDMOD=VWD&SN=1101&EN=1200

I’m a devotee of being able to ask questions of law and seeking declaratory decisions to resolve personnel problems.

In the instant case, I wish the request had not been made because it appears the conference was open to granting the pastor’s wish of applying five years of previous service to the two years required after graduation, given the pastor’s impending retirement.

The implications related to pensions, health insurance benefits, and other factors are a little beyond me, though I do not think they would have been affected. It seems the matter is one of appearance rather than substance, though there could be other factors involved not mentioned in the Statement of Facts. Hopefully, the ordination of a retired pastor is not out of the question.

But the Council was drawn in. And the gracious intent of the conference and petitioner was set aside. The simple statement of the law shows that the Council did not trivialize the matter but took it too seriously.

JCM 1200

2011-11-20T08:43:00.000-08:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1321&JDMOD=VWD&SN=1101&EN=1200

There is a lot of history behind this case. One should read JCDs 301, 665, 794, 847, and 871 to understand the issues well. The first three essentially affirmed the right of conferences and churches to consider dissent from law, whether civil or church law, if there were no mandates or regulations requiring specific actions. Hence a church body could identify as Reconciling or Confessing or Transforming. While JCD 301 dealt with conscientious objection, the others dealt with aspirations related to welcoming homosexuals. However, in the last two, the Judicial Council said that identifying with one movement or another was a doctrinal matter even if such designations were not regulatory. Hence, they argued, becoming one or another was divisive and therefore contrary to the Discipline.

Interestingly, JCDs 665, 847, and 871 originated in the same place JCM 1200 does, the Northwest Texas Annual Conference.

In the instant ruling, the Council took no jurisdiction for two reasons: one, “the request has no direct and tangible effect in the work of the petitioning Annual Conference;” and two, they already clearly ruled on the same thing before.

In a concurring opinion, three members felt that the Council had no authority to direct how a conference or church identified its mission aspirations, thus making JCDs 665, 794, 847, and 971 inappropriate. The General Conference should provide by legislation for resolving the matter. Another member noted the reason the request came was because there is little compliance. Church bodies continue to identify with one or another of the movements. He writes the Council has done its job and now the legislative and administrative bodies need to do their job to bring every conference and church into compliance.

Bishop Norris pointed out in his ruling from JCD 847 that there was no enforcement mechanism.

The upshot of this series of decisions is that, just as the Council raised parts of the Social Principles related to homosexuality to the status of law (JCD 833), so the Council has raised aspirational affiliations with movements to the status of doctrine. These are peculiar to the issue of homosexuality and no application of the decisions to anything else in the life of the church has occurred.

But the Council is not insensitive to the aspirational. Affirmed in JCM 1200 without specifying it is the following from JCD 871. “We do, however, reiterate the proposition that local churches like Annual Conferences can freely pursue principles and causes affirmed in the Discipline and by the General Conference with the mandate of reconciliation and healing being required of the whole church.” They just can’t use affiliating with a movement to do it.

JCD 1201

2011-11-20T08:41:00.000-08:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1322&JDMOD=VWD&SN=1201&EN=1204

Picky over whether or not the Judicial Council has jurisdiction, I was as surprised as the concurring opinion writer was that the Council took jurisdiction over a bishop’s forwarding a resolution about trial court penalties as if it were a question of law. But the Council did so they could tell the Church that only the trial court can set a penalty in a guilty verdict.

I hate to think that because a bishop said something, the Council took that as sufficient to take jurisdiction. The Council, in any case, is a human institution, subject to the same vagaries as the rest of us.

In our annual conference (Wisconsin), we have rules and we have policies. They are codified and published in the conference journal every year. The policies can change year to year with a simple majority vote and are not regulatory. The rules are as binding as regulatory just as is the Discipline, provided there is no conflict between them. They are subject to vote only after 24 hours for review.

Even policies may not contradict the Discipline which, in the instant case, the policy did as the Council points out.

Now that the matter is cleared up, despite the questionable basis for accepting jurisdiction, conferences cannot set penalties in cases where pastors conduct same sax marriages or union services. If nothing else, the Council has advertised what one conference wants to do. It will be interesting to see if a pattern develops where there occur trials of pastors on the violation noted. Will it influence trials in Northwest Texas Conference?

JCD 1202

2011-11-20T08:39:00.000-08:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1323&JDMOD=VWD&SN=1201&EN=1204

The statement of facts about this case does not include the bishop’s ruling. Even though the Council vacated it, one wonders how a bishop could justify telling a pastor in any circumstance, without prior fair process (JCD 702), that s/he was unappointable.

In the cases of Revs. Winslow Wilson and Nathaniel Grady, both of whom were in prison, were put on leave of absence. Their respective conferences felt that they had each been incarcerated unjustly. Their appointability was never seriously in question. If church complaints were initiated against either pastor, no committee on investigation forwarded it to church trial.

In the instant case, after the bishop put in writing to the imprisoned pastor that he was unappointable, the formal complaint process has been begun. Appointability is a determination to be made by the conference, as I understand it in church law, and is not the prerogative of a bishop to determine. I do not know who advised the bishop to write such a letter or who gave him the impression such a letter was appropriate. I can guess, based on how frequently I have heard about bishops who thought they could make that determination on their own.

The Judicial Council, on the grounds of separation of powers, has stood up to the incursion of episcopal authority into employment matters. I hope their ruling receives better attention than has the Council’s rulings on some other matters (for example, JCD 1200 and its predecessors).

JCD 1203

2011-11-20T08:35:00.000-08:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1324&JDMOD=VWD&SN=1201&EN=1204

Behind the question of law presented, there must have been a concern about an agency not fulfilling its responsibilities to pay a retired pastor. Unfortunately, the question was not tied to a specific person nor was it tied to a specific action before the conference. Consequently, by rule (JCD 799), the question was judged moot and hypothetical.

In a dissenting opinion, one member felt the bishop failed to offer an answer to the question of law. JCD 799 is clear. “The duty of the bishop is to respond with a ruling to all submitted questions of law. A ruling is required even if the ruling is simply that the question is moot, hypothetical or improperly submitted.” No such response to the question was offered.

Unfortunately, the Council overlooked its own rules (JCD 799 is incorporated into the Rules of Practice and Procedure of the Judicial Council) and allowed a bishop to get away with refusing to send in her response to the question asked. There is no indication the bishop is unaware of the circumstances that precipitated the question of law. She just refused to answer it.

What if the Council had ruled the question of law was appropriate? That has occurred before when a bishop thought the question was moot and hypothetical. The Council would have to remand the matter to the bishop for an answer and keep jurisdiction until they received it. The bishop would have been in violation of the Discipline, returning the answer well past the thirty day limit. That would also have put off a resolution of the issue, a delay that could have caused harm to the pastor in question.

As the Council said of others in JCD 777 and others, that irreparable harm is done because of failure to follow the Discipline in personnel cases, so it may need to include itself among those required to obey the Discipline.

JCD 1204

2011-11-20T08:31:00.000-08:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1325&JDMOD=VWD&SN=1201&EN=1204

Another conference attempted to restructure and had its plan forwarded for review by the Judicial Council. And again the Council had to point out significant flaws, remand the plan back to the annual conference, and retain jurisdiction to be sure the flaws were corrected.

Streamlining may seem like a good idea for administrative purposes and for cost effectiveness. What it usually shows is how low in priorities of key leadership are things like ministries to young people, maintaining an active mission outreach, and keeping adequate archives. What makes it worse is that certain conference leaders must have refused to respond to questions about such concerns during the decision-making process and forced the matter to be forwarded to take up time of the Judicial Council.

Summary of the Fall 2011 Session

2011-11-20T08:29:00.000-08:00

The biggest beneficiary of this fall’s decisions is the college of bishops of the Philippines on whose side the Judicial Council ruled. As I pointed out, if the Discipline is not on their side, having the Judicial Council is even better! Of the 16 items (2 were dealt with in one decision) before the Council this fall, 6 were related to the Philippines. The result of the Council’s rulings further entrenches the power of the college of bishops and their appointment of an interim bishop. That bishop may be a nice guy and popular with folks in the United States, but his actions should be compliant with the Discipline and they may not have been.

I have watched groups in the denomination triangulated into one power struggle after another, usually causing harm to the other side and the whole Church. I hate it when it happens at the highest levels of our Church.

Compliance issues with church law, as this session’s docket illustrates, ranges from individual failure to follow the rules for questions of law (JCD 1203) to annual conferences (JCDs 1198 and 1201) to the Council itself (also JCD 1203). Is church law breaking down? Is everybody so busy they don’t take boundaries and guidelines seriously but “roll their own” because they are in a hurry? Are things so complicated that nearly everyone misses the finer points intended to help? Even when the Council shows immense patience and offers significant teaching in its decisions and opinions as it does in JCDs 1197 and 1198 in particular, there seems to be a low level of responsiveness (JCDs 1200, in re: 847).

The struggle to minimize episcopal incursions beyond their Disciplinary authority continues to go on (JCDs 1191, 1194-6, 1198, 1202, and 1204).

Homosexuality continues to haunt us (JCDs 1201 and 1202) as do questions about handling of personnel (JCDs 1191, 1199, 1202, and 1203).

Still bound by arcane rules, lack of adequate information, and the discretion about what they report, this Council sometimes is not able to perform consistently. And the Council sometimes shows some awareness of its occasional lapses.

Maybe those of us who watch and understand the significance of what the Council does need to become more vocal in commending the good things the Council does in hopes of encouraging them on to consistency and authority so people pay more attention and accept the helpful guidance they offer.

On "incompetent pastors"

2011-07-30T07:18:00.000-07:00

A recent daily UMNS e-mail carried the story of how bishops have a hard time removing incompetent pastors.

I submitted a comment which I offer through this blog:

Let me speak to the issue of incompetent pastors. For two reasons, I am not convinced by bishops who say they have hard time removing incompetent pastors. One, all they need to do is supervise, that is, keep track of times when pastors mess up in their work (keep a file and accumulate a paper trail), draw the incidents to the respective pastor's attention, work out a mutually agreeable plan for improvement with a warning about failure to work at it, follow up if the pastor fails, and take it to the Board of Ordained Ministy's personnel committee. It is a little bit of work but supervisors in every other employing entity do it all the time. Is it possible that superintendents do not have the time to do their job? Is it possible that superintendents are not properly trained to do their job? Is it possible that bishops choose superintendents who are incompetent at supervising? Is it possible that bishops are incompetent at supervising and thus fail to follow normal protocols when there is incompetence involved? Is it possible that bishops are not being held accountable for failure to properly supervise their superintendents or fail to follow normal protocols in handling pastors in trouble?

Such issues have a major effect on morale in an annual conference. Horrible bosses turn good pastors into troubled pastors....

Second, for many years, the hoops prospective pastors have to go through have raised the bar on the degree of competence pastors have to meet to become members of an annual conference. How is it that all these glowing candidates (prospective members are rarely being criticized but rather are greatly lionized during clergy session) are suddenly incompetent and need to be identified by the Cabinet as unappointable? Is there a possibility that their morale or their health have been crushed by lack of support and upbuilding of their ministries from their superiors in office?

Now let me add some additional observations about how things are actually going in the denomination.

Petitions dealing with these kinds of issues have been sent to General Conference since 1980 only to be ignored in favor of petitions from the Council of Bishops presented through GCFA or GBHEM. The protocols in the Discipline come from the bishops themselves, which makes their criticism misplaced. They want to take over the function of hiring and firing pastors at will, something they already have over Local Pastors, something some bishops have actually been doing with complete disregard for the Discipline.

No one compliments bishops on how successful they are at matching pastors and churches and helping both succeed together.

No pastors are encouraged to visit among the church members and constituents by the example of bishops and superintendents who visit among their pastors.

Everyone in the connection seems to have found more important things to do. We find it easier to complain and seek shortcuts.

Jurisdictional conferences take little time asking episcopal candidates about their pastoral care practices as pastors. Maybe we need to select pastors who like pastors and who like churches to become our bishops and who have some understanding of supervision. Morale builders may do more to diminish the number of incompetent pastors than giving bishops more power to fire pastors.

In conclusion, the voice of the bishops is not the only one that should be heard in the discussion of pastoral competence. Many of us see other dynamics involved and pray that our voices will be heard as well.

June 2 letter to the bishops

2011-06-02T08:35:00.000-07:00

Associates in Advocacy
Justice Always,Reconciliation and Restoration Where Possible
http://www.aiateam.org/

Dear Bishop,

You are in my prayers as you participate in your annual conference. There are a lot of things to keep track of. I hope you will keep this e-note somewhere handy so you can come back to it.

There are two things I wish to share with you.

One, I completed a commentary on the past two years of Judicial Council Decisions. This group has matured in many ways and provides much assistance to readers in how they see church law. Their decisions, in most cases, are very insightful. You can find the commentaries on each decision at http://aiateam.blogspot.com/ and you can go to http://archives.umc.org/interior_judicial.asp?mid=263 to find the decisions themselves.

Two, something I have seen during many decades of advocacy is how a pastor in trouble suddenly loses all support, as if the covenant of the clergy (of which you are one) does not really exist. The daily cartoon “Crankshaft” of May 28, 2011, offered this discussion between his daughter and son-in-law:

“I wonder why social niceties seem to fall away when we’re dealing with family.”

“I know…. If only we could treat the ones we love the way we treat total strangers.”

In the covenant of the clergy,

Jerry

Rev Jerry Eckert, AIA contact person

Do unto others as you would have them do unto you.

Spring 2011 Judicial Council Decisions JCDs 1182-1189

2011-05-14T10:29:00.000-07:00

JCM 1182

2011-05-14T10:21:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1303&JDMOD=VWD&SN=1100&EN=1189

Reconsideration of JCD 1149 was denied.

That is what the Council usually does when it is asked to reconsider. No explanation, no legal grounds, no indication that the request had merit or was frivolous, no nothing.

JCD 1149 was the decision where the Council ruled a sentence which implied that all central conference bishops world-wide were the supervisory body of a central conference bishop unconstitutional. Practically speaking, it does not seem there are any grounds for reconsidering. I was not consulted with respect to this request so I cannot tell you what was at issue.

I do know that the respondent Philippines bishop was seeking any legal support he could get against the College of Bishops of the Philippine Central Conference. It was trying to remove him from office any way it could. His argument could have been that the Council answered the wrong question or that the Council over-stepped its authority by declaring a passage unconstitutional that was not at issue in the original request.

But we do not know and the Council’s terse ruling clarifies nothing except that JCD 1149 stands. See the comment on JCM 1183 below.

JCM 1183

2011-05-14T10:16:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1304&JDMOD=VWD&SN=1100&EN=1189

This request for reconsideration was about a previous request for reconsideration. This the first time I’ve seen that in my studies of the Judicial Council.

As the concurring opinion signed by the majority of the Council indicates, this ruling is part of the tale of a respondent bishop in his quest for justice against a Philippines College of Bishops antagonistic toward him.

Let me touch on the two previous rulings behind this memorandum.

JCD 1162 was a denial of request for reconsideration of JCD 1152. The Council was generous in providing a rationale for the denial, something the Council rarely does.

JCD 1152 dealt with the legality of an interim bishop changing the meeting place of an annual conference at the last minute using DSs appointed by him at the last minute to change the meeting place. As my commentary on JCM 1162 pointed out, the College of Bishops had not been truthful about that in their brief for JCD 1152.

The Council closes that door about the matter of the authority of the interim bishop with this memorandum. The concurring opinion does not mention the College of Bishops’ fabrication. More of the story that has emerged now did trouble the Council, specifically the six suspensions of the respondent bishop since 2009 used to keep him out of episcopacy despite a committee on investigation dropping the charges against him (see JCD 1177).

JCM 1184

2011-05-14T10:12:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1305&JDMOD=VWD&SN=1100&EN=1189

The Council denied the request for reconsideration of their ruling in JCM 1176, that what a person at California-Nevada Conference asked was a parliamentary matter rather than a question of law.

Drawing the line….

I wish a concurring opinion had suggested that the questioner petition the General Conference to include consultation with participants in a local church being considered for discontinuation. Paragraph 2548 does not allow for it. I’ll make it my job here now in this blog to make the suggestion. And I can direct the person to people who can help draft such a petition.

JCD 1185

2011-05-14T10:06:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1306&JDMOD=VWD&SN=1100&EN=1189

The Council picked up work on a New York Conference resolution that would have allowed its pastors in Connecticut to marry same sex couples, a lawful option for those living in that state (JCM 1155).

The Council ruled that the church may define marriage in its own way no matter what civil authorities in the various states do. While a pastor has discretion about any couple presenting themselves for marriage, the pastor may not violate the church’s definition of one man/one woman. That can only be changed by General Conference.

Again, the Council has been very careful in examining church law and settling the issues raised by the New York Conference argument. For that reason, this decision is well worth reading.

Some of us wish church law was different on this matter, but it is up to us to persuade the General Conference. If there are any other church law conflicts that the Council could consider to overturn the Church’s current definition of marriage, I do not know what it is.

JCM 1186

2011-05-14T10:02:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1307&JDMOD=VWD&SN=1100&EN=1189

A California-Pacific Conference pastor was taken before a conference relations committee facing an administrative complaint. Unresolved at the time of conference, the pastor’s advocate presented a request for a declaratory decision on the way the case was being handled and the fairness of restrictions on what the pastor could do in the hearing, among other concerns.

The Council could take no jurisdiction. The matter had not risen to become an action before the conference. Though not mentioned, JCD 1048 lay behind the Council’s decision to not look at the matter because it was not yet part of the business of the conference even though a conference committee and its practices were involved.

By taking this view, the Council leaves no way for it to intervene when something that could be contrary to church law may be going on. The Council leaves itself stuck until the conclusion of the process when it is too late to prevent unjust practices from occurring.

JCM 1187

2011-05-14T10:00:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1308&JDMOD=VWD&SN=1100&EN=1189

California-Pacific Conference took its shot at getting JCD 1032 reconsidered and received a patient response spelling out that the Council does not have to choose to reconsider something after multiple requests that it do so. The issue is the same. The General Conference has to resolve it.

Writers in church law will find the rephrasing of the old arguments quite well done so that it doesn’t come across as “boiler plate.”

JCD 1188

2011-05-14T09:46:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1309&JDMOD=VWD&SN=1100&EN=1189

The Rocky Mountain Conference case deferred in November 2010 (JCM 1169) was taken up. The questions of law related to his right of trial and the bishop’s right to end his right to trial. The bishop said the questions were moot and hypothetical.

The Council did not agree with the bishop. It said, “The questions presented were not moot and hypothetical; they were relevant but improper as questions of law to a Bishop.”

The Council stuck by its view that separation of powers prevents the bishop from dealing with such questions. I have argued a contrary position to that in my comments on JCDs 799 and JCMs 1130, 1145, 1153, and 1166.

The bishop is in a position, especially under the Discipline's Paragraph 415.3, to “ensure” fair process.

For true separation of powers, the episcopal office should not be involved in the nomination of the officers for the judicial and administrative committees and boards. S/he should not have the authority to determine whether a complaint goes judicial or administrative. The Cabinet members should not have the authority to place complaints on behalf of others. The Cabinet should not pick the trial court pool. The bishop should not pick the trial court presiding bishop. But the bishop is given all of those judicial responsibilities by the Discipline. Therefore, the bishop should have to take responsibility when the fair process systems break down and answer questions of law about them in order to get them reviewed by an outside entity with power to uphold church law.

As it is now, people who do the supervisory meetings, and hold the hearings for involuntary leave of absence, and other involuntary options in the administrative track tend to do as they please . . . or as the bishop allows . . . or as the bishop wants. Only if the bishop insists on careful following of fair process can harm be minimized to the respondents, complainants, churches, conference morale, and leadership credibility, as the Council has pointed out in JCDs 777 and 1156.

Bishops will get away with whatever they can get away with because the Council does not accept jurisdiction for questions of law challenges and requests for declaratory decisions (with a few exceptions).

The theory of separation of powers is great, except it is only applied to the back end of the administrative and judicial processes instead of the beginning.

With all the amateurs we have trying to do church law, no matter what the Council rules, there will continue to be attempts to get the conference leaders to follow the Discipline by the asking of questions of law and making requests for declaratory decisions.

JCD 1189

2011-05-14T09:41:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1310&JDMOD=VWD&SN=1100&EN=1189

Officers of the Baltimore-Washington requested reconsideration of JCD 1156. They felt the Council was confused over two different cases and some other errors based on errors of fact about the case which the Council said occurred.

The Council did not really need to respond because they have usually not done so in the past.

But having gotten more (and confusing) statements of facts, they leaned back on the official minutes which gave one narrative compared with the multiple stories the Council received from the many briefs sent in.

It takes a real lover of church law to get inside the tight and extended argument prepared in the analysis. In effect, the analysis is a “How To" manual for Cabinets and Boards of Ordained Ministry on the changes in involuntary leave of absence that occurred in 2008’s Discipline.

The upshot is that the Council did not change its mind about what it said in JCD 1156: that the pastor be reinstated and have all pastoral support repaid from when the whole mess began. Then they added what was a real joy to my eyes: “We retain jurisdiction in order to monitor Annual Conference compliance with this decision. Evidence of compliance should be transmitted to the Secretary of the Judicial Council by July 15, 2011.”

You go, Council!

Summary remarks for JCDs 1182-1189

2011-05-14T08:50:00.000-07:00

This session was odd because it dealt with so many requests for reconsideration. Five of the eight docketed items were such requests.

The patience to go into the grounds for their decisions not to reconsider as was done in three cases is most unusual and appreciated. They even handled JCD 1189 as a decision and not as a memorandum.

In the cases involving the Philippines and Baltimore-Washington Conferences, they uncovered glaring problems with the handling of personnel. That may give them reason to look more carefully at how they may be inadvertently avoiding similar devastation in other personnel cases by relying on JCDs 799 and 1048 and not accepting jurisdiction.

The 1992-96 Council went through a similar learning curve, facing up to the unfair practices previous Councils had allowed, becoming far more careful to avoid letting conference leaders cause harm.

This group, like the earlier group, says, “It should be emphasized that both the administrative and judicial processes in the Discipline are carefully and specifically designed to protect the rights of clergy and of the church. The steps set forth must be followed carefully and explicitly or injustice results. Lack of diligence, integrity, care, or compassion in dealing with a case almost always results in irreparable harm to both the individual and the church. That has usually happened by the time a case of this nature gets to the Judicial Council.” (See JCDs 777 and 1156)

The 1992 Council began noticing the injustices by their third session (October 1993, see JCD 695). The current Council, besieged by challenges to JCD 1032 among other things, seems to have turned the corner in their fifth session.

This Council persists in sharing their homework in the analysis they do and in their concurring and dissenting opinions. They have been very good teachers of church law.

Re: Fall 2010 Judicial Council Decisions 1152 - 1181

2011-05-14T08:47:00.001-07:00

The following observations are intended to encourage you to read the decisions of the Judicial Council for yourself. The observations are in no way church law in any form but will hopefully help you understand some aspects of the decisions I think are important. Should you feel I have made an error of fact or misinterpretation, please let me know 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.

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, you can go to whichever decision is of interest to you.

As a matter of full disclosure, I was counsel of record for a respondent in a case which was docketed twice and which I will not address.

JCD 1152

2011-05-14T08:42:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1272&JDMOD=VWD&SN=1100&EN=1181

A Philippine bishop was suspended not long before his annual conference was to meet. A retired bishop was assigned to take over and decided that another site for the conference would be handier for him. He sought the Cabinet’s support which finally was grudgingly given. The bishop got his site and then appointed new superintendents to work with him on making appointments despite the fact that the suspended bishop and his Cabinet had already made appointments. Consequently, there was great confusion in the conference and people split on which site to go to for conference. Both sites held conference sessions. At the one where the retired bishop presided, questions of law were raised challenging the change of venue.

The retired bishop ruled immediately that the Discipline supported his choice of site, since the superintendents went along with it. The Judicial Council agreed because by their earlier ruling (JCD 1149), they had supported the Philippine bishops as a College of Bishops who then took action against another bishop under accusation. That action was extended to the assignment of the retired bishop and this decision followed from the retired bishop’s actions.

Had the questions asked covered more of the circumstances, the Council, as their concurring opinion states, may have been able to sort out more of the problems that were splitting the conference.

Note: This decision was made outside the time frame of the normal Council schedule to facilitate matters for the church in the Philippines. I was not consulted about this matter.

JCM 1154

2011-05-14T08:39:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1273&JDMOD=VWD&SN=1100&EN=1189

The Council chose not to reconsider JCM 1145 in which a personnel matter from the California-Pacific Conference was at issue. Where is the flexibility the Council shows on property and polity matters? They chose not to give attention to one of the most effective advocates with many years of experience before the Judicial Council. He is well aware of the rules and all the mistakes that could be made.

Could there be a growing incompetence on the part of conference secretaries? This is not the only case where inadequate minutes caused a matter to fail the Council’s jurisdiction requirements.

JCM 1155

2011-05-14T08:36:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1275&JDMOD=VWD&SN=1100&EN=1189

A matter from New York Conference related to the legality of same-gender marriages in Connecticut and therefore the opportunity of United Methodist clergy conducting the services in that state was put off until the spring of 2011 session of the Council.

JCD 1156

2011-05-14T08:31:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1277&JDMOD=VWD&SN=1100&EN=1189

The Council assigned some of its most assiduous members to review a case from Baltimore-Washington Conference. A pastor in trouble worked out a just resolution and avoided being forced onto involuntary leave of absence. When she requested return to appointment status believing that she had fulfilled the requirements laid on her under the just resolution, the bishop’s assistant determined that she needed to do more to get back in. Her advocate submitted a request for a declaratory decision, despite what JCM 1048 said.

The Council tends to go along with what happens at the annual conference level so it was a moment to rejoice when they clearly ruled in favor of the pastor.

This decision is clear. Conditions set prior to a leave of absence may not be amended by the Cabinet at the end of the leave to prevent a pastor from returning to appointment status. The only way to add new terms is to restart the supervisory process and follow fair process.

Unfortunately, that can be done in conferences where the bishop’s influence over the Board of Ordained Ministry is very strong. After all, most Cabinet members are appointed from the ranks of the BOM. All on the BOM were nominated by the bishop in the first place with no nominations from the floor possible. And all are subject to the appointive power of the bishop so their careers are on the line when Board members balk at what the bishop wants.

This decision points out the separation of powers that the Council perceives to be in effect. In this case, the Council enforced it. Hopefully, it will continue to do so.

The Council is to be commended in this case for the care they took to identify the polity properly and save the Conference from further embarrassment for their treatment of the pastor.

I wish the Council had asked for the Conference to report back on what happened. Frequently, in these kinds of cases, conference leaders find ways to punish the pastor rather than follow up in a reasonable way.

JCM 1157

2011-05-14T08:26:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1276&JDMOD=VWD&SN=1100&EN=1189

A policy on sexual conduct of the Baltimore-Washington Conference was the subject of a request for a declaratory decision on its effect and application in light of Paragraph 605.8. The conference voted to forward the request to the Council. The Council held a hearing with the parties at interest.

The analysis was not of the issue in question but of what allows the Council to have jurisdiction. This is the longest discussion of their criteria I have seen in one place.

They ruled they had no jurisdiction!

It appears there was no specific case on which to base the request. I think the Discipline allows requests for declaratory decisions that could have an effect on someone but so far, the Council has not agreed with me. My argument goes back to their JCM 1048. (See my argument related to that on this blog dated January 11, 2011.)

JCM 1158

2011-05-14T08:21:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1278&JDMOD=VWD&SN=1100&EN=1189

Arkansas and Northern Illinois Conferences sought to get the Council to reconsider on its own Decision 1032, the five year old ruling that has caused so much controversy, namely the right of a pastor to have the discretion about whether or not a person is ready for church membership. And you thought it was about a pastor who turned away a gay constituent from joining the church.

As I understand the facts of that old case, the pastor did not refuse the gay man. In fact, they were on very friendly terms. The man chose not to join a denomination that was so strongly against sexual activity between same sex couples.

The issue was that the bishop wanted that discretion over membership and did not want the pastor to have it.

In all my years of ministry, I always thought I had discretion about an applicant’s readiness for membership and even exercised it once with a confirmand. I never expected to have to do it and, with that one exception, I didn’t.

I could go into a long dissertation about how that weakness of discipline has so mixed our denomination that we are becoming more Southern Baptist than Methodist. But not for this review.

So I agreed with JCD 1032 on the basis of the facts and the traditional role of pastors indicated in Paragarphs 214 and 225.

I disagree with the anti-homosexual portions of the Discipline, strongly! But because I view JCD 1032 differently than the bishops and the church media, no one is paying attention to my opinions.

In this memorandum, the Council says the requests do not rise to the standard of a manifest injustice or clear error of law, and were not brought by a party to the original case. They took no jurisdiction.

The really good stuff, other than ignoring what I think the real issue was in the original decision, is in the three concurring opinions. They add humor, history, and mostly good legal thinking and are well worth reading.

JCM 1159

2011-05-14T08:14:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1279&JDMOD=VWD&SN=1100&EN=1189

A question from South Carolina Conference about the authority of the General Conference Secretary to determine the number of delegates to be allowed to each annual conference under the Discipline was not answered because the Council took no jurisdiction.

Their rationale is identical in wording to several other such decisions in the recent past. I expect we’ll see it in the future again . . . and again . . . and again.
The Council provided a rationale to the requesting conference.

I happen to agree with the dissenting opinion because a decision would affect the numbers in all of the conferences with respect to the coming elections in conferences around the world as they choose delegates to General Conference.

Here there are two issues.

One, there has been a competition among the southern conferences over getting more votes at General and Jurisdictional Conferences because each vote means that much more power to elect bishops. Political power is the ambition in the southern conferences, compared to the programmatic ambitions of the northern and western conferences. So the question raised in South Carolina is a critical part of their view of church life.

Two, resolving the issue of dealing with the huge number of United Methodists in Cote d’Ivoire was put off in JCD 1128. Though not mentioned here at all, that elephant in the room haunts the church in the United States, especially those conferences in the Southeast and South Central jurisdictions. The southern church has a greater ability to understand and use power than the other three jurisdictions. The Africans may be more skilled at it and that could become a problem.

Watch for these two dynamics to return again and again to the Judicial Council over the next eight years.

JCM 1160

2011-05-14T08:05:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1280&JDMOD=VWD&SN=1100&EN=1189

Northern Illinois persisted in seeking clarification re: JCD 1032. They also asked if revising Paragraph 225 by replacing the discretionary “may” with the absolute “shall” superseded JCD 1032.

The Council pulled out the “boiler plate” (legal slang for stuff that becomes standard language in similar cases) they used in JCM 1158. They took no jurisdiction.

Beth Capen added her two cents worth in an extra mixed opinion. Her material is not a straight repeat. While starting as she did in JCM 1158, she explores the Disciplines since 1939. The trend is to show less discretion available to the pastor as the passages are modified through 2008.

The Disciplines I read in my early years were much the same as the 1939 Discipline written when the northern and southern churches merged. It says, “When the Pastor is satisfied as to the genuineness of their faith, their acceptance of the baptismal and membership vows, and their knowledge of and willingness to keep the rules and regulations of The Methodist Church, he shall present the candidates to the congregation….”

I was in seminary when the Discipline said, “When they shall have given proof of genuineness of their faith…,” presumably to the pastor responsible for their membership training, the pastor could then present them for membership.

In the north, the church followed the Lutheran/Catholic milieu and had confirmation classes. In the south the milieu was Baptist, membership training was Sunday School, and people, and children as young as 5 or 6, could present themselves for baptism and membership at any public service (worship, revival, Bible class, or prayer group) and could join on the spot at the discretion of the pastor which he rarely used unless an ethnic person was involved.

That oversimplifies how people became members but both show that the pastor was presumed to have some discretion. Practice led most pastors to never use their discretion in order to expand the membership of their churches. And the Disciplines tended to follow that while retaining the word “may.”

This memorandum, like that in JCM 1158, lays at the feet of the General Conference the responsibility to clarify what we should be doing.

Unlike what I’ve seen from Council rulings and members’ opinions, I believe JCD 1032 was not an activist decision “making law.” It was very conservative in the sense that it described where the Discipline really was, no matter what the bishop wanted. That was pretty gutsy, but not surprising given the Council’s membership at the time.

What worries me is that with the requiring of pastors to take in anyone who presents him/herself for membership, I can see a small ultra-conservative church joining one of our congregations, taking it over because the pastor could not stop them under the 2008 Discipline. More realistically, I can see Southern Baptists dissatisfied with their pastor, joining one of our churches and asserting their polity once they became officers of the local church and sending off people into the ministry in our denomination who practiced a congregational polity once they joined an annual conference.

JCD 1161

2011-05-14T08:02:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1281&JDMOD=VWD&SN=1100&EN=1189

An oral question of law was given during a plenary session of Mississippi Conference about a provision that allows the conference to respond to emergency financial situations between sessions of conference.

Despite taking no jurisdiction, the Council took the time to try to state the problems and describe what the conference wanted to do before vacating the bishop’s ruling.

Those who like such intricacies surrounding church finance, this decision appears to be down their alley.

Mississippi has had Katrina in 2005 and tornadoes this summer which might just trigger a financial crisis. It is important that conferences have a way to respond. Even if such catastrophes are not identified as the emergencies which drop conference receipts below a certain percentage level, good procedures would be wise to have in place.

JCD 1162

2011-05-14T07:55:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1282&JDMOD=VWD&SN=1100&EN=1189

The Philippines case returned in the form of a request for reconsideration. Usually such requests get no space in the memorandum. In this case, it appears the interim bishop may have not been truthful about having met on Feb. 3, 2010, with the Cabinet to get them to change the site for the annual conference. He answered the request for reconsideration of JCM 1152 and in his argument said that the Cabinet had not responded to his requests for meetings. That raises the issue of the credibility of the interim bishop. The chances are that he did not meet the Cabinet on February 3 as the statement of facts in both 1152 and 1162 provide but unilaterally changed the site of the conference for his own convenience. He had to appoint new superintendents in order to finally get the "Cabinet" authorization on February 18. If he already had the old Cabinet's support for changing the site, why did he need to appoint new DSs to get that vote?

The Council did not sense that possible question when it considered the case in JCM 1152 and despite being told by the brief from the opponents of the interim bishop for this docketed action, they found nothing egregious about the interim bishop’s actions and ruled he operated within church law.

One party seeking reconsideration was chastised for not copying his request for reconsideration to the other parties at interest.

The Council was in a situation where they did not know for sure who to believe.

Over the years, Councils have tended not only to believe the bishop’s side of the story but rarely ever have acknowledged anything said from the pastor’s side. Decisions like JCD 1156 occur about once a decade.

In this case, there was some acknowledgement that there were issues against the episcopal rendering of the situation. I appreciate that whenever the Council does it.

JCD 1163

2011-05-14T07:51:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1283&JDMOD=VWD&SN=1100&EN=1189

The New York Conference faced dealing with a resolution about welcoming LGBT persons but which the bishop ruled out of order. Despite efforts to amend the resolution, the bishop persisted in ruling it out of order. Finally, the bishop asked for a motion to support his ruling, which the plenary did. The Council was left with a parliamentary situation that it has no jurisdiction to resolve.

It has to be frustrating to advocates for resolutions when they cannot overcome a parliamentary move which passes the house though the bishop had no real grounds.

Even though the resolution took up a large chunk of time in the Conference's agenda, by being voted as out of order, made all that work legally meaningless. The vote in support of the bishop meant it was not before the conference and hence, the Council had no jurisdiction.

This Council often provides enough history to understand the circumstances and their decision.

JCD 1164

2011-05-14T07:46:00.000-07:00

JCD 1164

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1284&JDMOD=VWD&SN=1100&EN=1189

All earlier attempts by annual conference to define the word “status” in Paragraph 4 have been in reference to persons seeking or holding ministerial standing in our denomination. Northern Illinois Conference was trying to apply it to church membership. By opening the definition of “status” to include sexual orientation and transgender identity for their annual conference, the hope was to provide a precedent other conferences could follow.

The Council pointed out that they have persistently said that the definition of “status” as they do in this decision was the task of the General Conference.

The analysis is a helpful study of the judicial efforts of our denomination to consider this issue. I find such good research by Council members helps clarify where we are in this issue, making the Council’s work more helpful, and therefore more interesting.

JCM 1165

2011-05-14T07:38:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1285&JDMOD=VWD&SN=1100&EN=1189

Minnesota Conference jumped into the fray over JCD 1032 by asking if that decision was consistent with the “civil rights” paragraph in the Book of Discipline, Paragraph 4.

The Council responded exactly as they did in JCMs 1158 and 1160 verbatim, (they have no jurisdiction) even to the opinions added at the end . . . with one little twist. Beth Capen called on church leaders not to misinterpret JCD 1032 as saying homosexuals may not join the church.

JCD 1166

2011-05-14T07:29:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1287&JDMOD=VWD&SN=1100&EN=1189

In Kentucky Conference, an advocate raised “five questions related to administrative and judicial procedures concerning a clergy person in the conference.” Under their policies since JCD 799, the Council ruled the questions were moot because bishops are not part of the judicial processes and cannot be used as a means of judging what other bodies are supposed to judge.

Here’s the problem. When the bishop decides to direct a complaint against a pastor into the administrative processes under the Board of Ordained Ministry, the appeals process has a logical progression, just as it does in the judicial track which moves toward a church trial.

If there is a violation of the Discipline perpetrated by one or another of the persons or bodies handling the complaint, the respondent has the right to raise those as questions for a ruling by the presider over the next hearing body. That is the route of appeal. So let us say that errors are made at the last step before annual conference, at the meeting of the Board of Ordained Ministry where the respondent is fighting administrative location. His/her advocate raises questions about violation of church law with the chair of the Board who is presiding and the chair allows the Disciplinary violation to go unchecked. The respondent pastor wants to appeal to the clergy session as the place to stop the action against him/her. The Discipline says that appeals of violations of the Discipline are to go to the presider at the next hearing body. Some clergy sessions have the Board chair presiding and she/he may be the one who already ruled on those same Disciplinary violations, so under ordinary definitions of what an appeal is, the BOM chair has to be replaced.

There are two options for who is to preside. One is the vice-chair of BOM who has already voted on the motion against the pastor. The other is the bishop. If the vice-chair does as the chair did and allows the Disciplinary violations to go unchecked, what is the recourse of the respondent? If the bishop chairs the clergy session, then JCD 799 applies making Paragraph 2715 meaningless, contrary to JCD 331.

If the respondent was in the judicial process, appeals would go from the trial to the jurisdictional appellate committee to the Judicial Council.

But in the administrative process, the appeal ends at the annual conference. The clergy session makes the crucial vote. Everyone in that body is subject to the appointment of the bishop and Cabinet. Since the bishop has already given credence to the complaint by referring it, having been involved in the supervisory process sufficiently to know the complaint and having an opinion which leads to referral into the administrative process, the self-interest of the pastors in the clergy session can lead to a faulty decision against the respondent. And the only way to get an outside review of the matter where no one has a vested interest in the case is through the questions of law to the bishop as presider of the conference plenary which has the vote to support the report of the BOM. Such questions of law go to the Judicial Council but it can use JCD 799 to block that line of appeal as it did in this case as well as in JCMs 1130, 1145, and 1153. And the respondent’s search for justice is ended without a final appeal beyond the milieu and influence of command within the annual conference.

JCM 1167

2011-05-14T07:27:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1286&JDMOD=VWD&SN=1100&EN=1189

The text for this memorandum responding to questions of law from Rocky Mountain Conference is the boiler plate used in JCM 1166. And another pastor’s attempt to seek justice is blocked by JCD 799.

The bishops have a successful anti-pastor deal going here….

JCM 1168

2011-05-14T07:22:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1288&JDMOD=VWD&SN=1100&EN=1189

Sometimes I really like this Council. In this memorandum, they refuse jurisdiction because the Executive Committee of the Council of Bishops wanted the Council to make a ruling at their request. My initial response to the opening of this memorandum was that the bishops were at it again, stretching their authority over the limits set by the Discipline. When I got to the Council’s decision to not take jurisdiction because the executive committee does not have authority to access the Council, I said, “Yes!”

I hope the question is properly raised by an authorized group because it is important that there be clarity about the terms of bishops and their election.

Some parts of Africa have the tradition of their bishops having to be re-elected every four years. When missionary bishop Ralph Dodge was working in Africa, he never presumed on a longer term but always insisted on that re-election process. He was honored with re-election each time until he retired. I wish that process was in effect in the U. S. It might curb the overreach of bishops that I have seen during my lifetime.

JCM 1169

2011-05-14T07:20:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1289&JDMOD=VWD&SN=1100&EN=1189

Rocky Mountain Conference’s bishop seems to have a lot of questions of law raised about the administration of personnel issues. This set was deferred by the Council to the spring of 2011.

JCD 1170

2011-05-14T07:16:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1290&JDMOD=VWD&SN=1100&EN=1189

Questions of law from another conference in the Philippines relate to re-election of trustees. The people raising the questions also asked for a declaratory decision by the Council on the same matter. The Council accepted the questions of law but not the request that had been voted on.

I always thought the higher the vote count, the more it impacted the attention of the Council. I guess that rule of thumb may still be operative except in the unusual situation where the same concerns are raised using both channels to the Council.

The Discipline does not disallow Trustees from succeeding themselves. That seems so obvious that one wonders why the question was raised, especially in a conference whose culture is different. I wish someone would have given the back-story in a concurring opinion as has sometimes been done in the past. Or maybe not….

JCM 1171

2011-05-14T07:13:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1291&JDMOD=VWD&SN=1100&EN=1189

Indiana Conference (newly merged) set up a steering committee on which the bishop had a vote. That is contrary to our tradition that the bishop may preside but not have a vote on conference matters. A lot of the restructuring done around the country features bishops adding another illegal arrow to their quiver of authority. Since the Council overturned the bishop’s supportive rulings on the questions of law, I hope bishops elsewhere will stop the overreaching they’ve done.

JCD 1172

2011-05-14T07:10:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1292&JDMOD=VWD&SN=1100&EN=1189

Indiana Conference was challenged about how it handled its finances as the respective committees prepared the reports, especially the distribution of apportionments. The issue may have been the use of the conference website to disseminate apportionments information or it may have been that there was a question about proper consultation along the line as was raised in Texas the previous spring (JCD 1150). The Council reviewed all that and came to the same conclusion the bishop did, that all the proper steps had been taken under the Discipline.

Those who enjoy thinking through financial processes may find good information in this Decision but I was not greatly helped by it.

JCD 1173

2011-05-12T13:15:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1293&JDMOD=VWD&SN=1100&EN=1189

Iowa Conference established rules that restricted campaigning for General Conference for delegates and resolutions. Someone was concerned that the restrictions were too strong and in violation of the Discipline. While the Council was very spare in affirming the bishop’s rulings that they were legal under the Discipline, Beth Capen again provides church law readers with more insight into the issues and circumstances, concluding with the advice that as long as the people passing out literature outside conference allow people to be able to avoid them if they wish and as long as the conference avoids certain requirements that inhibit candidates in conference-sponsored events and processes, the restrictions passed were appropriate.

JCD 1174

2011-05-12T13:09:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1294&JDMOD=VWD&SN=1100&EN=1189

In a question raised in the North Alabama Conference, the bishop was asked if appointment consultation had occurred according to the Discipline. The bishop, of course, said it had. The questioner said it hadn’t. The Council said it wasn’t a fact-finding body so it went along with the bishop.

I have difficulty with that for two reasons.

First, in JCD 629, the Council said, “Ambiguities must be construed in the favor of the person affected.” In this case, the person affected was the pastor.

Second, the Council ruled in JCD 595, "The Judicial Council has authority to determine factual matters which are essential to decide the legal questions involved." In this case they had conflicting information and faced the question of how to determine if one or the other statement contained sufficient facts to make a determination.

Did the bishop provide copies of his documentation to back up his telling? Did the pastor challenge what the bishop said occurred? Did he have any documentation showing the bishop was inaccurate? Or did the matter come down to “He said/He said.”

The Council members do not have research staff. They do have knowledge of colleagues with the skills to do research and analysis and, under the rules of practice and procedure, can integrate such research into the work on the case.

I have been critical of the lack of examination of the materials coming to the Council. Too many times, it was not discovered until too late that necessary materials, especially minutes of annual conference or clergy session, have not accompanied the questions of law or requests for declaratory decisions. The Council had to remand cases, postponing for six months the work of the Council to resolve what in some cases were time-sensitive matters.

I urge the Council to establish a process to check each set of materials when it comes in to be sure all the required records are included and to check to see if differences of fact are documented. The Council cannot let itself be in the position of guessing about facts that should have been documented by the parties at interest. The Secretary should have the authority and the help to do that checking when cases arrive for docketing and should have the responsibility to insist to the parties that they document all of the pertinent facts before docketing the case.

I must concede that since I have not seen what was included in either brief, I cannot say definitively that the Council did not have the facts. In writing legal materials such as in summarizing a statement of facts, inadvertent changes in wording can leave an impression that is not consistent with the reality.

But it is disconcerting when the Council cannot say what the facts are and excuses itself by saying it in not a fact-finding body when it has the authority to press the parties to provide more information. It is even more disconcerting when rushed by a huge docket for the short time they have to work each session, they simply accede to the bishop rather than to follow their own guideline on ambiguous situations.

JCD 1175

2011-05-12T13:07:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1295&JDMOD=VWD&SN=1100&EN=1189

The Arkansas bishop was asked to rule on whether a pastor who received denominational financial help had to fulfill five years of service in the conference that helped the pastor get the student loan. The bishop ruled that even though the pastor started out in Tennessee, she was only obligated to do the five years somewhere in the connection. The Council pointed out that the funds were from the general church and that the conferences were just trustees of the fund. We have no idea how the Tennessee bishop would have ruled.

The Council may run into a turf dispute on this kind of situation in the future. Hopefully, they won’t because of the inclusion of the “trustee” factor. It will depend on how highly a bishop values a particular pastor.

And what a treat for the Council that the facts were uncontroverted!

JCM 1176

2011-05-12T13:01:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1296&JDMOD=VWD&SN=1100&EN=1189

This kind of situation is so sad. A church is seen by the California-Nevada Conference (though it can happen anywhere) as no longer worthy of being open for whatever reason; it decides to close it without going through all the consulting or prior notice; and someone from the church tries to stop the process. Annual conferences end up facing situations where there is a lonely voice protesting a leadership position and wisely or unwisely makes the choice.

What makes this even sadder is that all the lone voice did was raise a parliamentary question and not a question of law. If he had asked instead, “Was the process of closing this church consistent with Paragraph(s) so-and-so of the Discipline?” the Council would probably have taken jurisdiction.

JCM 1177

2011-05-12T12:55:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1297&JDMOD=VWD&SN=1100&EN=1189

This is one of those kinds of rulings that drives advocates nuts. Arcane laws disrupt what should be a clear decision. Having done some consulting on this case, I share the advocate’s frustration.

This Philippines case has been brought to the Council three times before on other matters (JCDs 1149, 1152, and 1162).

What the Council does not (or cannot?) say relates to the six items the committee on investigation acknowledged. The committee simply said that those six items identified that someone brought accusations. When it came to the specific items that were the allegations, the committee did not accept them as true and so they dropped the case and did not forward it to trial.

That would ordinarily end the matter. The church may not appeal a decision favorable to the respondent unless egregious errors were made. The Council figured failure to report the committee on investigation’s ruling on the two other charges was worth something. I wish they had specifically remanded the case back to them. By being unclear about that, the advocates and the church were left in limbo.

The college of bishops used a request for a declaratory decision on the legality of the committee on investigation’s failure to forward the charges instead of appealing to the central conference appellate committee, essentially circumventing the Discipline’s block to a church appeal.

Instead of calling the action of the college of bishops an inappropriate way to get around a decision in the judicial process, the Council used their jurisdiction requirements to avoid a decision.

Again, the Council did not call upon anyone to report back to them, though that would have been hard to justify if they felt they had no jurisdiction. And if they had no jurisdiction, they could not really comment in a ruling about the end-run the college of bishops was trying. I wish someone had written a concurring opinion which spelled out in a little more detail some of the problems within this case. But who had time given this busy docket?

JCD 1178

2011-05-12T12:54:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1298&JDMOD=VWD&SN=1100&EN=1189

Northern Illinois used creativity to try to get around JCD 1032 by directing its BOM to train pastors that they could only use “no more than a profession of faith and vows of the Baptismal Covenant to be required of new church members in this Annual Conference.” They made the legal decision that some things in the Discipline superseded JCD 1032 and then asked the Council if they were correct.

The Council did not take kindly to the conference’s pre-empting the responsibilities of the Council and they did not take kindly to the conference asking them to rule the correctness of their actions.

The concurring opinion was not a straight repeat of previous such opinions. But the point was the same: This is a problem for General Conference.

JCD 1179

2011-05-12T12:52:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1299&JDMOD=VWD&SN=1100&EN=1189

This request for a declaratory decision from Northern Illinois dealt with a minor shift from what they asked for in JCD 1178. In that decision., the matter related to transfers of membership. This request relates to those seeking membership by confession of faith.

This time the Council put in its ruling the different routes to membership that the General Conference left when it only modified Paragraph 225 and not Paragraph 214. While sending the two separate requests might have covered that difference, the Council overturned the Conference resolution for the same reasons it did in JCD 1178.

Again, the concurring opinions add a little more background in church law that are of value.

JCM 1180

2011-05-12T12:48:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1300&JDMOD=VWD&SN=1100&EN=1189

A district in the Northern Europe and Eurasia Central Conference has grown so much that it could be an annual conference of its own. But the Discipline is not exactly precise about how that can be brought about. This is a nice problem for the Council and they did a good job of sorting it all out. Only the General Conference can make it happen after the proper consultations show the requirements for formation of a provisional annual conference are met.

A member of the Council concurred dubitante. That means he went along with the decision but still has some doubts, probably not enough to identify them in a concurring or dissenting opinion.

JCD 1181

2011-05-12T12:45:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1302&JDMOD=VWD&SN=1100&EN=1189

This ruling is an ad interim decision for the Council of Bishops which appears to have been needed so the conferences they served would have timely guidelines for the elections that lay ahead this year. The Council of Bishops meets right after the Council’s meetings so the request would not have been heard until this past April. Hopefully, this special session of the Judicial Council does not turn into a privilege that only the Council of Bishops may enjoy.

The decision itself is carefully parsed, with some slight discontent stated in the brief partial-dissenting opinions.

In effect, the Council said the amendment regarding electors for General, Jurisdictional, and Central conferences are all pastors under appointment who have met certain educational requirements and who have been under appointment for two years. Ambiguities arise because the amendment does not get more specific, which is why the bishops raised the questions.

This is a job for General Conference to sort out.

Summary remarks for JCDs 1152-1181

2011-05-12T12:27:00.000-07:00

The Council faced thirty-one docket items. Around half were memoranda, rulings that mainly included lack of jurisdiction, deferrals, and requests for reconsideration. But only a small handful showed no rationale. This Council has helped clarify church law, precedent, and their grounds for such rulings. By doing so, they perform an invaluable service to anyone trying to approach them with issues needing adjudication.

The other half also provided extensive analysis and careful interpretations which showed their thinking about how they reached their decisions.

The Council’s judicious use of concurring and dissenting opinions continues to be very informative and valuable for legal and historical reasons. This body of work, built on research, provides immense help to those who seek legal information to deal with complicated issues, from property insurance to forming provisional annual conferences.

The next step in the development of a mature canon of church law is the collation of the hard work showing up in the decisions of this Council. Indexes available from Associates in Advocacy and whatever is used by the Judicial Council already provide outlines for such a canon.

The Council is reaching its stride for the Church and deserves much credit for its effective service.

A large docket raised many issues. I identify six important ones.

1. JCD 1032 got a lot of attention with requests for reconsideration, with about a fourth of the items on the docket. The Council properly called upon the General Conference to resolve the issue but they, like the rest of the denomination, tend to see the problem as one of unwisely restricting pastoral authority and not of episcopal over-reach as I do (see my rationale under the comment on JCM 1160). Northern Illinois provided five docket items in their effort to overturn JCD 1032 and the Council began using “boiler plate” passages to simply say, “Work through General Conference, not us!”

2. I was deeply disappointed in the continuing pattern of the Council relying on their 1997 JCD 799 and failing to face up to violations of church law in personnel cases whenever an advocate used questions of law to appeal. Previous Council sessions have chosen to take jurisdiction in JCDs 1031 and 1135. If the Council accepted my arguments under JCM 1166 as well as what I’ve written in this blog about JCD 799 on January 11, 2011, and chosen to look into the things done by local church and conference leaders to the pastors seeking justice through the Council, in most of those cases, they would find as they did in JCD 1156, “Lack of diligence, integrity, care, or compassion in dealing with a case almost always results in irreparable harm to both the individual and the church. That has usually happened by the time a case of this nature gets to the Judicial Council.”

3. I was equally elated to see the Council’s JCD 1156 where a request for a declaratory decision was honored, and not summarily dismissed under JCD 1048. This Council can do exceptional analysis on many things as this set of decisions from November of 2010 shows. That excellence was applied to the personnel case brought in this docket item. The Council has just seen the tip of the iceberg of dirty tricks and machinations certain bishops and certain conferences have done to pastors.

4. I am glad for the flexibility that provides for Council action ad interim. But the trend so far, though small, is worrisome. Two decisions were handled outside the Council’s normal sessions at the request of two different sets of bishops. Is that showing some kind of privilege allowed to bishops?

(Ed. Note: I wish the Council had a way to handle personnel matters ad interim in order to sort out questions about abuse of fair process while it was happening rather than long after it happened. I think an annual conference judiciary team or maybe one on a jurisdictional level could handle such claims, especially in the administrative track.)

5. The number of Central Conference requests was unusually high. That appeals came from Africa and Eastern Europe is a sign of their growth. The Philippines has used the Council for a very long time.

(Ed. note: The Council’s four responses over the past year to one case may be giving them a better view of what is happening there. One clue is that for JCD 1152, the College of Bishops reported that the DSs went along with the change of site for an annual conference. In their report to the Council for JCM 1162, they admitted that the interim bishop appointed his own DSs to make that decision when the true DSs chose not to respond to the interim bishop. No matter which DSs were properly appointed, the College of Bishops was caught in a lie to the Council. I pray the Council will watch that situation carefully.)

6. Not having the actual questions of law nor other facts in front of me, I can only guess that JCM 1156, like JCM 1130, were seen by the Council as their best way to handle what may have been antagonistic questions meant to embarrass the respondents in those cases. My experience has been quite the opposite, that questions of law have been raised to help a respondent out of a bad situation. I can believe, as the concurring opinion in JCM 1130 states, that confidentiality was an important factor in the Council's decision. The problem remains though how to maintain it but not let a bishop off the hook for unfair decisions he or she made in a case.

7. Finally, I apologize to those seeking wisdom on financial and property matters for my not knowing enough to be sure my observations provide you with help on the decisions of interest to you. Your observations would be valuable. The material in this blog can be easily changed when the facts warrant it.

Re: Spring 2010 Judicial Council Decisions

2011-04-26T07:09:00.000-07:00

The following observations are intended to encourage you to read the decisions of the Judicial Council for yourself. The observations are in no way church law in any form but will hopefully help you understand some aspects of the decisions I think are important. Should you feel I have made an error of fact, please let me know so it can be corrected.

I've included the URL for each of the rulings. That should allow you to paste it so you can go directly to the decision.

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, you can go to whichever decision is of interest to you.

As a matter of full disclosure, I was counsel of record for a respondent in a case which was docketed twice and which I will not address.

JCD 1142

2011-04-26T07:05:00.001-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1262&JDMOD=VWD&SN=1100&EN=1181

In JCM 1127, the Council described a complete set of materials sent in by the West Michigan Conference bishop and secretary. The bishop’s report included reference to a question of law but the minutes did not. The Council remanded the case, something it has done but only when no minutes are sent along.

In this decision’s description, the minutes “reflect” the question of law…. I take this acceptance of jurisdiction to mean that the Council really wanted to assure the law was properly fulfilled . . . on a property matter. Not having seen what had been sent in either previously or for this review by the Council, I cannot make an accurate judgment about how precisely the documents fulfilled the requirements for jurisdiction. It appears that in its own discretion, the Council felt it would handle the case no matter what. Ah, the privilege of discretion….

The Council decided that because the annual conference has an identifiable interest in the protection and security of church properties exercised through being involved in the sale or mortgaging of church properties by requiring the District to be in the decision-making process, the conference has the right to require all churches to have the same insurance carrier. The three decisions cited as precedent were relevant.

With the movement around the country of certain congregations leaving the denomination over social issues like abortion and homosexuality and wanting to take their church property with them, this insurance issue allowed the Council to emphasize who really owns the local church property, the annual conference.

JCM 1143

2011-04-26T07:02:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1263&JDMOD=VWD&SN=1100&EN=1181

The Council chose not to reconsider JCM 1125 where it has refused jurisdiction. A resolution at the Detroit Conference had not been voted onto the plenary agenda so it was not part of the business of the conference.

JCM 1144

2011-04-26T07:00:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1264&JDMOD=VWD&SN=1100&EN=1181

Getting the question of law properly worded makes all the difference in the world when it comes to being sure the issue is reviewed by the Council. In this case, the questioner at the Indiana Conference asked if the matter was properly before the conference, which is a parliamentary procedural question, hence not within the Council’s jurisdiction. The person raising the question could have asked, “Are the provisions of the budget policy on which we voted in violation of the Book of Discipline, Paragraphs (so-and-so)?” I believe a question of that nature would have been taken up by the Council.

JCM 1145

2011-04-26T06:58:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1265&JDMOD=VWD&SN=1100&EN=1181

A request for a declaratory decision from the California-Pacific Conference came to the Council in two alternative wordings, neither of which was recorded in the conference minutes. The Council chose not to make a ruling. Even taken together, the materials did not satisfy the requirements for the Council to take jurisdiction. It is too bad because the clarification sought relate to personnel processes.

JCD 1146

2011-04-26T06:56:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1266&JDMOD=VWD&SN=1100&EN=1181

The Council reversed the bishop’s ruling of law on a question related to apportionments for the Indiana Conference. Annual Conferences have a lot of discretion about handling of apportionments to be paid to the denomination. However, they may not make plans that will decrease it.

JCD 1147

2011-04-26T06:34:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1267&JDMOD=VWD&SN=1100&EN=1181

Those interested in restructuring their conferences will find this decision loaded with argument for and against its various aspects. Whoever wrote this for the Council is very capable of excellent analysis in a complicated circumstance.

Restructuring annual conferences has been very popular for a number of years now. Where I live, for example, there are no district superintendency committees. There is what amounts to a single administrative council that does nearly everything at the district level. I’m told it works for them. It doesn’t for the very reasons stated in the decision. The alternate structures must provide for a clear connection with the required agencies established by the Discipline. Let me add another point. Maintaining the separate agencies required by the Discipline maintains separation of powers so that conflict of interest and influence of command are minimized.

When I taught UMC polity in church membership classes, I showed connectionalism to be parallel structures at every level of the church which interacted to develop ideas, share information, and solve problems. In recent years, unfortunately, “Connectionalism” is defined as “obeying the bishop no matter what she/he orders.”

But this decision based on questions that come from the Dakotas puts the correct emphasis on what is truly connectional in our system of church administration.

JCD 1148

2011-04-26T05:48:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1268&JDMOD=VWD&SN=1100&EN=1181

The Baltimore-Washington conference issue that could not be reviewed when JCM 1139 came down is again before the Council in good order.

The majority of the Council accepted jurisdiction (see the concurring opinion) and made it clear that lay people were not authorized to conduct church conferences in the place of superintendents or Elders assigned by the superintendent.

The bishop had chosen to say that the question of law was moot because it did not deal with any business of the conference. The dissenting opinion supports the bishop.

I welcome the flexibility of the Council to accept worthwhile questions of law as they did in JCD 1126 because they are in harmony with the intent of questions of law as described in the constitution (Paragraph 56.3).

This decision also reminds us that the tendency of Cabinets to minimize their personal contact with each congregation is not Disciplinary. Superintendents are getting to be fewer but with more responsibilities. Consequently, the rift between the conference and the local church grows wider and the clout of superintendents becomes nearly minimal in local churches. We do not have a congregational polity. But that is the direction we are headed.

I do not want to detract from the gifts and graces lay people could bring to conducting of charge conferences. As in preaching, they could outshine us professionals. But what is at issue is the relationship between the congregation and the superintendent whose main role is knowing the churches and the pastors in order to make good appointments and make sure those appointments succeed for both the pastors and the churches. Anything that disrupts that crucial connection needs to be set aside. The further superintendents are from their churches and pastors, the more interchangeable pastors will appear to be. The whole purpose of appointments is undermined when the Cabinet members do not feel they have to try to match the differing skills and experiences of the pastors with the needs of the respective churches.

JCD 1149

2011-04-26T05:44:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1269&JDMOD=VWD&SN=1100&EN=1181

As a matter of full disclosure, I was consulted by the counsel for the respondent about the case behind this request. As soon as the complaint came in, the bishops in the Philippines immediately took action on their own, sent in a retired bishop to take over, suspended the elected bishop, and proceeded to the committee on investigation. When the respondent bishop challenged their right to take over, the question was forwarded to the Judicial Council. The Council took jurisdiction and decided that the part of the passages of the Discipline granting authority to the college of bishops to act was unconstitutional. That part was that every bishop all over the world who were bishops in central conferences were a part of the college of bishops. That would have meant that the bishops from the Philippines would have needed to work in concert with that world-wide group.

By ruling as they did, the Council was authorizing the Philippine bishops to be the College of Bishops to undertake the supervision and handling of the case against the respondent bishop.

As in JCD 1135, I wish the Council had ordered a review of what happened to be reported back to them as a result of this decision.

JCD 1150

2011-04-26T05:39:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1270&JDMOD=VWD&SN=1100&EN=1181

This Texas Conference case was carried over from the October 2010 Council session (JCM 1136).

At issue was whether or not an annual conference restructured committee (Core Leadership Team) could bypass the conference’s council on finance and administration and implement spending without first getting its approval prior to annual conference.

The Council said such a by-pass was contrary to church law, citing JCD 813 which says, “An Annual Conference cannot restructure in such a way as to constitute unauthorized delegation of its authority to a committee.”

The program in question was established to facilitate a down-sizing of conference clergy requiring appointment. The funds were used to facilitate early retirements. I thought this was a far better plan than having a Cabinet, as occurred some years ago in other conferences, simply tell all of the white male clergy over 50 that they were unappointable.

The decision in this Texas case reaffirmed the necessity of conferences to be careful in their restructuring so that responsibilities were not shifted from the proper Discipline-authorized bodies.

Summary remarks for JCDs 1142-1150.

2011-04-26T05:34:00.000-07:00

It is sometimes breath-taking how careful the Council is to not only urge the following of the Discipline but to take the time to analyze and explain their reasons. A conference council on finance and administration may not be passed over on a major financial action a conference wants to take. A restructuring must follow the rules to take into account mandated inclusion of conference agencies. All churches are subject to sharing in a conference-wide property insurance program. No plan by a conference should establish a way to fail to pay apportionments. On subjects like these, its work is of a high quality.

The Council even makes accommodation when its rules of practice and procedure have not quite been met and, in order to deal with administrative and property issues, it makes accommodation even when ordinarily its understanding of what makes questions addressed to them moot.

I wish that same expertise and concern could be applied consistently to personnel matters like church trials and questionable handling of pastors in the “administrative” track.

Re: Fall 2009 Judicial Council Decisions

2011-04-20T11:38:00.000-07:00

JCD 1119

2011-04-20T11:31:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1236&JDMOD=VWD&SN=1100&EN=1181

Since the 1840s, Annual Conferences have struggled with the balance of power between laity and clergy in one or another of the branches of the people called Methodist. While that struggle for us was largely settled in the merger of 1939, some clergy who serve churches but who are not ordained Elders have sought to have a vote on all that is before the conference. The push in recent years by Cabinets to have more Local Pastors in order to have a cheaper at-will work force (I do have a bit of opinion about that) has meant that on the matters where Local Pastors may not vote, such as for delegates to General and Jurisdictional conferences and constitutional amendments, the desired balance between clergy and laity is not met. The goal of equalizing lay and clergy membership in the annual conference required in our constitution is blocked if all the lay members can vote on amendments but the Local Pastors can't.

The issue was brought to the floor in Minnesota during a session where constitutional amendments were under consideration, one of which (Amendment 19) would give the vote to Local Pastors on more matters. It was not just a matter of idle curiosity.

Unfortunately, the request for a declaratory decision in this case was not as clear and precise as it needed to be. The Judicial Council, by taking advantage of the question’s ambiguity, interpreted constitutional amendment voting as “not the work of the annual conference” in order to avoid answering the question.

Votes on amendments are one of the few things that are tallied individually when they are taken. An amendment passes on the total of all those voting church-wide, not on the basis of the number of annual conferences in which it received a majority. That bit of polity was the opening the Judicial Council chose for their interpretation that these votes are not "the work" of an annual conference.

However, that view fails to take into account three important points.

First, the Discipline makes the annual conference session the setting for the vote. Ballots are not mailed individually to members to be returned by a certain date. The constitution requires the votes to be taken at the annual conference session. Therefore, it is part of the work of the conference.

Second, while not all amendments directly affect the work of an annual conference, in this case, at least one did. The passage of that amendment before all of the annual conferences, including Minnesota, on the voting rights of Local Pastors would change the balance of power of clergy and laity in their annual conference as well as in all of the conferences across the denomination. That would affect nominations and elections of conference members, have to be factored into budget work of the conference, and influence the work of the conference that occurs in the clergy session, to name a few implications.

Third, the work of the annual conference includes other matters that serve the needs of the larger church beyond the conference’s borders: election of delegates to General and Jurisdictional Conferences from which many go on to boards and agencies of the general church, financial support for the general church, requesting actions by the Judicial Council, and petitions for the General Conference to consider every four years. The work of the annual conference includes more than what goes on in the boundaries of the conference and the plenary agenda.

The Judicial Council narrowed their definition of what constitutes the “work of the annual conference” by this ruling.

This erosion of the centrality of annual conferences in the polity of our denomination is a trend that is not being discussed anywhere I know of. Here are some other things which erode the powers of the annual conference: Restricting nominations for certain offices to just the bishop and not allowing them from the floor of conference, allowing general categories to be called “line items” in mission budgeting rather than requiring that the individual ministries and projects are to be the line items for plenary votes of the budget, taking away the right to use requests for declaratory decisions by saying that they may never be used prospectively, and finding administrative ways to remove Local Pastors without any review by the conference.

The “law of unintended consequences” may be in operation here as these kinds of rulings come down from the Judicial Council.

JCD 1120

2011-04-20T11:28:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1237&JDMOD=VWD&SN=1100&EN=1181

The Baltimore-Washington Annual Conference faced a resolution that attempted to moderate the anti-homosexual language in the Discipline. During plenary, someone asked the bishop for a ruling of law about whether or not the resolution was out of order. The bishop took the time to go beyond that question to answer the rationale of the questioner. And the Council did likewise, rather than just responding as they should have that the Judicial Council does not deal with parliamentary questions.

It appears the Council chose to educate. They seemed to want to share the bishop’s arguments which they would not have had to if they had properly refused jurisdiction. After spending a lot of text on helpful historical understanding of various resolutions brought to them in the past, they told the bishop his decision was reversed.

On the one hand, they should have kept it simple by avoiding a parliamentary ruling. On the other, they provided a good summary of church law on resolutions.

JCD 1121

2011-04-20T11:26:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1238&JDMOD=VWD&SN=1100&EN=1181

Western North Carolina had a policy that allowed local churches to pick and choose among the various apportionments they would pay. When a question of law was brought about that policy, the bishop ruled it was contrary to the Discipline and that the conference’s paying of apportionments had declined significantly since the passing of the policy. The Judicial Council affirmed his ruling, pressing the necessity of all churches’ full participation in order for the Church to conduct ministries that local churches could not conduct on their own.

JCD 1122

2011-04-20T11:24:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1239&JDMOD=VWD&SN=1100&EN=1181

This decision settles whether or not the health insurance cost carried by a local church is compensation or a benefit. As the decision points out, local churches have no say about how much the premium for a benefit will be whereas compensation, the salary, is theirs to determine.

Some churches may have padded the pastor’s salary by budgeting a larger amount for the health insurance premium as they may have done with how they paid mileage for the pastor. By reporting a smaller salary, some churches were apportioned less based on the formula for setting conference “dues.”

The tone of the question from Louisiana, as I interpret it, really has more to do with helping the local church set its total budget at the charge conference rather than facing having to change it later in the church year if the conference requests a budget-busting health insurance apportionment. And lately, that specific cost has risen so much each year that it is a budget-buster every time.

The request was an attempt to hurry the process for formulating that cost in time for charge conferences. But it was indirect and the Council did not bite.

JCM 1123

2011-04-20T11:12:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1240&JDMOD=VWD&SN=1100&EN=1181

One of the dirty tricks that are played on pastors that Cabinets and Boards of Ordained Ministry do not like, earned or not, is to change the requirements for the pastor to get back into service after he or she has already met the original requirements. It is most unfortunate for the pastor, though not for the conference leaders, that the secretary did not somehow see to it that the vote was properly recorded and therefore the questions could not be considered by the Council.

Reports to the Council by conference secretaries are required to be prompt after annual conferences conclude. The due date is July 15 for the October session and December 31 for the April docket. What is not reported is whether the Council sought clarification from the Baltimore-Washington conference secretary when that gap in crucial information is seen. This has been a problem in the past with this Council. Hopefully this simple matter of administration has been addressed.

This case should have been remanded.

JCD 1124

2011-04-20T06:48:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1241&JDMOD=VWD&SN=1100&EN=1181

A New York Conference bishop reported to the Council that he had received a letter requesting a ruling of law during a break. The request dealt with a resolution supporting those who dissent with the Discipline, though the issues involved are not noted. The conference secretary submitted nothing so the Council had no information beyond what the bishop told them. The bishop’s ruling that the request was not before the conference was affirmed.

Here again, it does not appear that the Council Secretary chose to make inquiry prior to docketing about the record of the conference session to see if indeed there was no mention of the request. The Council trusted that the bishop was telling the truth about the situation. Since every sitting member of the Council was originally nominated by the Council of Bishops, the appearance of conflict of interest is unsettling, especially since the Council has a clerk who can assist in this small point of administration.

Wise bishops in the past have allowed discreet presentations of written requests for rulings of law and dealt with them. The clear advantage of not having possible dirty laundry aired in public is no small matter. This strategy should require some kind of reasonable acknowledgement to be entered on the record such as the name of the questioner and the specific question raised. With the record showing or not showing the request, the Council would not be vulnerable to the question of conflict of interest.

JCD 1125

2011-04-20T06:44:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1261&JDMOD=VWD&SN=1100&EN=1181

The Detroit Conference voted against suspending their rules to allow a resolution to be introduced for plenary consideration. Later, the matter was brought up to be forwarded to the Judicial Council. The bishop ruled it moot and hypothetical because, essentially, the questioner was trying to circumvent that vote. The Council concurred.

JCD 1126

2011-04-20T06:41:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1247&JDMOD=VWD&SN=1100&EN=1181

A retired minister was elected chair of the finance committee of the local church he attended and where he held his charge conference membership. There was an unwritten policy of the Eastern Pennsylvania Cabinet that he could not hold that position. The main grounds were concern about possible undermining of the authority of the pastor in charge, a possible conflict of interest, and depriving a lay person of that responsibility.

The Council ruled that since he was a member of the charge conference, he was eligible for the position, it not having been identified by the Discipline is requiring lay relationship to the local church.

The jurisdiction for this ruling was that it was a request for a declaratory decision. Jon Gray, a Council member, wondered whatever happened to the criteria that such rulings had to be restricted to the business of the conference.

I really believe the Council uses that restriction when it wants to and feels free to go outside its restrictions when it wants to.

I believe the question was worth asking and the Council was right in responding. What I wish is that the Council would loosen its criteria for taking jurisdiction so that unanticipated requests like this one can be resolved without appearing to contradict the Council’s own restrictions.

JCD 1127

2011-04-20T06:22:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1243&JDMOD=VWD&SN=1100&EN=1181

This time the Western Michigan conference secretary’s minutes came along with the bishop’s ruling on a question of law and what was apparently the written question. There does not seem to be anything more that needed to be sent so there was no need for the Council Secretary to pursue the matter. The Council found it had no record of the question in the minutes and therefore had no jurisdiction.

Even so, the matter was remanded to the bishop for review in the next session of the Council. The Council must have felt there was something to pursue….

JCD 1128

2011-04-20T06:18:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1244&JDMOD=VWD&SN=1100&EN=1181

The Commission on the General Conference asked the Council to determine if there were any restrictions on the authority of the General Conference Secretary to determine the number of delegates from the various conferences. Unstated in this request is the question of how many delegates are to be allowed to Cote D'Ivoire in light of its huge membership numbers. The chances are extremely high that most of those delegates would be very conservative and greatly shift the balance of power between the liberal and conservative factions with votes at General Conference.

That was discreetly avoided in the decision as the Council reassured there were only two factors to be considered as restricting the General Conference Secretary; the number of clergy and the number of professing members of that conference. There are two other simple limits as well, that every conference have at least one lay and one clergy delegates and that the total number lies between 600 and 1,000 delegates.

Another amendment (6) being voted on in 2009 when this decision came down has to do with providing two quadrennia of transition between the entrance of a conference and its representation following the proportions indicated in the Discipline. The Council ruled only that the General Conference Secretary had the authority to determine the numbers to come to General Conference.

JCM 1129

2011-04-20T06:16:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1245&JDMOD=VWD&SN=1100&EN=1181

From the facts stated in the decision, it appears that someone in Virginia felt that secular law and church law were in conflict over how pensions and benefits were being handled. So a request for clarification was voted and thus forwarded to the Judicial Council.

This is a question more suited to review by the conference chancellor or other legal counsel.

The Judicial Council is not the denomination’s lawyer. So they rightly took no jurisdiction.

If the question behind the request was that someone among the church leadership was not following federal law for handling of one or more particular cases, then seeking a declaratory decision as stated didn’t work. Something was wrong or such a huge conference wouldn’t have backed the request. Matching the possible injustice with the proper legal tool is a real challenge.

JCD 1130

2011-04-20T06:10:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1246&JDMOD=VWD&SN=1100&EN=1181

A retired pastor questioned the bishop in Yellowstone Conference about how a fellow clergy had been administratively removed from conference membership. The bishop chose to have neither the questions nor her response to them entered in the conference minutes. But she did forward them to the Judicial Council. And they chastised her for censoring.

But the Council did nothing about her answers because they have previously ruled that the question of law strategy is inappropriate for handling personnel matters even in the administrative track. There was no trial so the questions could not go to the church trial’s presiding bishop. The questions should probably have been brought to the chairperson of the Conference Relations Committee prior to its hearing with the respondent pastor. And those same questions plus any others that might have been needed should have gone to the chair of the Board of Ordained Ministry when it dealt with the decision of the committee.

The fatal flaw of the administrative process is that there is no right of appeal outside of the conference where the bishop, who is the primary nominator of the Cabinet and the Board, holds influence of command. The final line of appeal goes to the annual conference when the board action is presented to the clergy session. Who presides there? Either the Board chair who already ruled on the questions when they came before the Board or the bishop.

The Council has been consistent in most cases (the most recent exception is JCD 1031 – though JCD 1135 may also be an exception) that such appeals in the form of questions of law cannot go to the bishop.

I believe that is in error for two reasons: one, the bishop is president of the conference and the next in line to whom appeals can go in the administrative track as stated above, and two, because the Discipline gives the bishop the responsibility to “ensure fair process” (Paragraph 415.3).

The bishop was obligated to respond to the questions but was taking cover under the Council’s past decisions that the questions were improper because bishops are supposedly out of the loop (separation of powers). Bishops have enormous clout in all matters of personnel. Fair handling of those in trouble is in the bishop’s hands in many ways and the bishop should be held accountable when fairness is lost. Having to be chastised for a personnel failure is not much real punishment. Neither is being asked to publish the questions and answers as the Discipline requires. Those who “take authority” must also take responsibility. This decision does nearly nothing toward that end.

I can imagine situations where a set of questions might be more damaging to the respondent if they were raised by an antagonist instead of by an advocate. That appears to be a consideration for several of the Council members. But it would be hard to imagine the majority of the Council being so mean-spirited as to insist on publishing such questions.

My experience is that advocates for pastors who were drummed out of ministry through the administrative process have tended to ask question where the embarrassment lay with the conference officers. The meanness experienced by pastors in trouble across the country has come from church leaders and their supporters who administered the process and not from those who challenge the process.

Not having seen the questions nor having any other information about the situation behind this case, I cannot make a valid and thoughtful judgment on this particular case.

JCD 1131

2011-04-20T06:05:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1248&JDMOD=VWD&SN=1100&EN=1181

Like JCD 1130, this same bishop in her other conference (Rocky Mountain) withheld the questions and her answers from publication and again Jon Gray raised the issue about the necessity of confidences possibly being violated.

I do not have what Judge Gray and the Council had before them. There is only the coincidence of the same bishop ruling in the same way, which to me says more about the bishop and the processes occurring under her administration than they do about the advocates.

Speaking of advocates, it is clear that the questioner did not think through the problem of relating the questions to the business of the conference, especially in light of the various restrictions put on that definition by various JCDs in the past. This is an area where Associates in Advocacy needs to provide guidance for those trying to help pastors in trouble.

This decision warns all those bringing questions of law to be ready to challenge a bishop’s making a parliamentary ruling that the questions of law are out of order and seek a conference vote to overturn that ruling. Preparation for conference requires ascertaining the grounds for the questions to be framed and supported as business of the conference.

JCD 1132

2011-04-20T05:25:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1249&JDMOD=VWD&SN=1100&EN=1181

This case from California-Pacific Conference was carried over from the previous session of the Council (JCM 1116). The bishop followed through on the Council’s remanding request.

For those who love to read about pensions and stuff, this is a good case. Both the bishop and Council make helpful distinctions and provide useful information. For those like me, it is a struggle to get inside the questions but I will try.

The questioner challenged two aspects of the health insurance program: one, it not being handled like apportionments; two, allowing the Board of Pensions to do something the Conference should be doing, assigning the amounts to be paid some months after conference has been held.

The responses were that, one, health insurance is a benefit and could therefore be handled differently. A special situation for the conference was that it had a surplus it could apply to the premiums of the retired and incapacitated and that was best handled outside of apportionment formulas. Two, the formula for the premiums had been set by the conference and the Board then just applied it when the bills were sent out, thus not violating the principle of one agency taking another’s responsibilities.

The reader is warned to discuss the ruling with someone who knows this stuff, such as people working for the Board of Pensions and Benefits or are on the conference pensions and benefits committee.

JCD 1133

2011-04-20T05:21:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1250&JDMOD=VWD&SN=1100&EN=1181

Western North Carolina Conference, in the midst of working through a motion related to housing policy for clergy couples, voted to ask the Judicial Council for amendments that would bring their motion into compliance with church law. While the Judicial Council properly took no jurisdiction, they were kind enough to remind those folks of previous decisions which indicated every pastor had the individual right to have housing as one of the parts of their support package.

JCM 1134

2011-04-20T05:18:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1251&JDMOD=VWD&SN=1100&EN=1181

An advocate for a pastor asked the Wyoming conference’s clergy session to pass a request for a declaratory decision in hopes of getting clarifications that could overturn the actions taken against the pastor in trouble. The vote to forward it to the Judicial Council was not a majority so the Council did not take jurisdiction.

JCD 1135

2011-04-20T05:13:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1252&JDMOD=VWD&SN=1100&EN=1181

This decision based on a case from Wyoming Conference, while the proper one in this case, leaves this question: How is it that a pastor facing involuntary retirement, an administrative process, may raise a question of law of the bishop who is supposed to be out of the loop on administrative personnel matters and have the Judicial Council actually rule on the bishop’s answers and overturn the situation? I believe that in some past decisions, previous Councils have done that when a particular bishop or the bishop’s theology was out of favor with the respective Councils.

I also believe that the Council has usually abrogated its responsibility when questions of law presented in writing and entered on the minutes should be answered. See my commentary on JCD 1130 above.

In this case, the decision is over a case described as so badly handled that ruling the questions “moot,” etc. would be a manifest injustice. In the rare cases like this one that the Council rules against a bishop and for the pastor, I would encourage the Council to require a report back on how the bishop and conference responded to the decision and what happened to the pastor. (I happen to know and it isn’t pretty!)

JCM 1136

2011-04-20T05:09:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1253&JDMOD=VWD&SN=1100&EN=1181

This case from Texas Conference was deferred to the spring session, a sign that the Council needed to preserve time to do its work and chose to hold off on a case not requiring immediate attention.

JCM 1137

2011-04-20T05:06:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1254&JDMOD=VWD&SN=1100&EN=1181

The Council chose not to reconsider their ruling in support of the Bush institute at SMU. One of the details they indicated in that earlier decision was significant, the price of the lease. They were not for anything less than market value of the property:

“The question posed alleges that the lease agreements were negotiated at less than fair market value. Nothing in the record, other than the question itself, makes reference to fair market value. Because the Judicial Council is not a fact-finding body, we cannot determine whether that portion of the question is true or untrue. The allegation that the lease agreements were negotiated at less than fair market value is not a self-proving assertion. There are portions of the question that neither the presiding bishop nor the Judicial Council can or should answer. Stripped to its essence, however, is a question that could have and should have been answered:” (JCD 1113)

After that ruling came out, the following information about the lease was passed on to the Council: For approximately $10 a year for 99 years, with the possibility of renewing for another 150 years, the Bush Foundation signed a lease with SMU. This information comes from a Feb. 28, 2008, copy of THE DAILY CAMPUS, an independent SMU campus newspaper.

If that information is correct, the Council had serious grounds to reconsider JCD 1113. They must have decided it was too late to overturn the project because ground was already broken. It is not hard to speculate that there would be huge financial problems for SMU and the UMC if the Council did act. Some of the donors to the Bush project are big donors to the university and the Church.

JCM 1138

2011-04-20T05:01:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1255&JDMOD=VWD&SN=1100&EN=1181

The Council chose not to reconsider its ruling on the questions related to the closing of a California-Nevada church. That ruling was JCM 1112.

In my commentary on that memorandum, I assumed the matter of the closure was before the conference when the questions were raised. I missed one little detail: The vote had occurred the year before so my comments were in error on the matter being part of the business of the 2009 conference and the possibility that the questioner was still an active member of the conference. The way for the questions to have been raised in 2009 were to have someone who voted for the closure to ask for reconsideration of that vote. If the conference voted to reconsider, then the matter would have been the “work of the conference” that year and the questions raised by an active member of the conference would have been in order.

My earlier conclusion that superintendents might pull the same stunts in the future as the one did in that case still stands. However, the advocates trying to bring justice erred and the Council had no other way to follow through than by telling the history in the concurring opinion. That does not have the authority of a decision of law but it does shine a light on what happened. Hopefully, those who read JCM 1112 and its concurring opinions will see and work to stop such tricks in the future.

JCM 1139

2011-04-20T04:53:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1256&JDMOD=VWD&SN=1100&EN=1181

This case was remanded. The Baltimore-Washington conference secretary did not send in the minutes of the session where the action was taken to refer a matter to the Council. Is this another situation where the Council’s secretary failed to see if the materials were complete when they came in prior to docketing? Is it a matter that the conference secretary is not informed of his/her full responsibilities in the case of any kind of referral to the Council?

JCM 1140

2011-04-20T04:49:00.000-07:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1259&JDMOD=VWD&SN=1100&EN=1181

The Council could take no jurisdiction over some questions raised at Northwest Texas Conference about materials passed out prior to voting on constitutional amendments. There was no record in the minutes or in the materials sent to the Council of a written set of questions or request for referral to the Council so jurisdiction on the matter could not be taken.

The bishop was wisely covering all his bases by reporting the incident.

JCD 1141

2011-04-20T04:44:00.000-07:00

JCD 1141
http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1260&JDMOD=VWD&SN=1100&EN=1181

This case from California-Nevada is another wonderful trip through difficult terrain for most people, determining pensions rates under conflicting Disciplinary passages and varying policies of related agencies. I will leave the details of the decision to those same experienced folks I noted above in the review of JCD 1132.

The Council reiterates a principle of law that must be noted. Where there are conflicts between related Disciplinary passages as there are in this case, the resolution of which passage takes precedence lies in which passage is the more recently passed by General Conference.

For those interested enough to read this blog, in situations where there is a conflict within the Discipline, you need to be ready to do one of two things:

1. check past Disciplines to determine which of the conflicting passages appears most recently, and

2. check past copies of the Daily Christian Advocate of General Conference, particularly if the conflicting passages both came from the same General Conference.
Another principle of law dates back to 1970 (JCD 331). “Acts in relation to the same subject or object should be constued together.” There may be a way that the apparent conflicts can be resolved by finding a frame of reference that allows both to be true.

In this case, however, the issue was clearly numbers which meant there was no way to construe them together, one or the other had to be chosen.

One other feature of this decision that is of special interest is that it is a case that came up after the docket’s deadline. The Council accepted jurisdiction under its own rules for emergency appeals. This is the first time I have been aware of the Council doing this in its history. If they did it previously, it was not mentioned in the decisions.

Summary Remarks for JCDs 1119-1141

2011-04-20T04:39:00.000-07:00

The Judicial Council during this autumn session of 2009 tended to business, giving some very helpful and educative rulings like 1129, 1132, and 1141. They went beyond to kindness by citing other decisions related to a case over which they had no jurisdiction (1133) and to thoughtfulness by reviewing case law on handling resolutions (1120). In neither case did they take jurisdiction and could have not bothered. When they were asked to give legal advice (1129) or to amend a resolution (1133), they were proper in drawing the line for what they do.

There were surprises when the Council took jurisdiction over two cases that did not appear to fit the criteria for handling questions of law (1126 and 1135). What is the business of the annual conference? I believe that particular criterion is not appropriate. How else can off-the-wall cases like 1126 be handled? Why is the bishop not supposed to be able to answer questions of law on personnel matters, especially the processes used to administratively remove pastors? As I showed in my review of 1130, what the Council did in 1135 (and several years ago in JCD 1031) is proper and necessary in order to have the full line of appellate procedures for personnel cases handled under administrative processes. How many other cases of injustice have slipped through the fingers of the Council under the current criteria?

Disconcerting were the number of cases that showed incomplete records. The Council could find a way to minimize that.

As disconcerting to me was the number of mistakes made by the questioners that failed to do the key things to be sure the Council could take jurisdiction. Been there, done that! Now I’ve got to do something about it through this blog and AIA’s website.

There were 23 docket items to be handled over the summer and the four or so days of the Council meeting. To have to deal with geo-political, pension, personnel, apportionments, and who can serve on local church committees is a mind-blowing range of concerns. And then to have conference personnel not turn over all the needed records or who failed to keep good records, I can understand how Council members have many more gray hairs than two years ago.

Observations about the Judicial Council

2011-01-11T10:08:00.000-08:00

Unlike the Supreme Court, no one on the Judicial Council has a lifetime appointment. Nominations occur at the General Conference meetings every four years. The Council of Bishops nominates as do delegates attending. It is highly unusual for floor nominees to be elected. Bishops tend to nominate candidates who would most likely be supportive of bishops and of the institution of the church.

Only rarely is a “church law geek” elected. Lay members tend to be civil lawyers or judges. Clergy members that have been elected were not known for challenging their bishops on the floor of annual conference over a matter of church law.

The term is eight years upon election and every four years half are up for re-election. The result is that in some quadrennia there may be a change of several members. In 2008, because of the need to fill early retirements, six new members were elected. That means that of the nine standing members, only three carried over from the previous quadrennium. As a result, it may take at least a couple years, if not longer, for new members to get up to speed on what the Discipline and previous Judicial Councils have actually said.

What makes matters worse is that the number of cases going before the Judicial Council has increased over the years so that there may be as many as 24 cases docketed for the autumn session and as many as a dozen for the spring meeting. The gatherings last five days. That must surely be exhausting and may not be enough time to be thorough.

The Council president assigns teams of two or three to focus on certain of the cases. Then each team reports to the whole body. All members are supposed to have a working knowledge of each case in order to assure that the team’s work gets a proper review. However, under the stresses facing the Council, the final results are uneven. That means that those who have decision-making power in the denomination can find precedent for whatever they want among the conflicting decisions.

Votes are never announced. The only clue is who signs dissenting or concurring opinions. But even then it is hard to say who voted which way but chose not to sign.

Advocates pray a lot and hope they can succeed at instructing the Council members! Most Council members are aware of their need for that instruction and call for specifics from church law from all parties-at-interest to help guide them.

The postings of seven articles today are all related so please consider clicking on “Older Post” in the lower right hand corner to take you to the next article in this set.

JCDs 799, 1048, and 1094

2011-01-11T10:01:00.000-08:00

The following observations are intended to encourage you to read the decisions of the Judicial Council for yourself. The observations are in no way church law in any form but will hopefully help you understand some aspects of the decisions I think are important.

I've included the URL for each of the rulings. That should allow you to paste it so you can go directly to the decision.

Because of this blog’s space limitations, I have not included the numbers of Disciplinary paragraphs and JCDs nor the quotes which back up my observations. Anyone wanting those is asked to contact me directly.

Observations on each of the three decisions reviewed here are posted separately.

JCD 799 closed down a route previously taken by advocates intending to challenge actions based on misinterpretation of the Discipline.

It is my belief that JCD 1048 is the worst decision of the Judicial Council and represents the greatest weaknesses of the Judicial Council.

JCD 1094 reflects a tendency toward presumption of guilt. I did not begin this blog until the Fall of 2008, missing JCD 1094. I confess to not reading it until a year ago.

JCD 799

2011-01-11T09:47:00.000-08:00

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=839&JDMOD=VWD&SN=701&EN=800

This decision arose from pulling together questions of law from two separate trials of ministers accused of sexual misconduct. The questions of law dealt with procedural matters each respondent experienced and believed were in violation of the Discipline.

The Judicial Council made three important rulings.

One, they ruled that despite the separation of powers, the judicial branch had priority over the legislative with respect to who had the last word on the membership and character of a pastor when that pastor was dealt with in the judicial process.

For two quadrennia, the Discipline provided that the clergy session of the annual conference had to vote on a trial court conviction which changed the pastor’s standing in the conference. This was to be consistent with the constitution which gives to the annual conference the final word on character and membership status of pastors. However, JCD 799 held unconstitutional that provision which required annual conference action if a trial court decided to change the minister’s membership, ruling instead (based on another provision in the Discipline to which it gave precedence) that the Judicial Council has the last word once a case has been in the church's judicial system.

I find this result self-serving but it does eliminate two confusing circumstances. The first is that the annual conference might be swayed by factors other than the evidence seen and heard by the trial court. The second is this: if the trial happened before conference but the appeals had not been completed, the decision of the annual conference could be prejudicial to the appeals.

Two, they ruled that the question of law “must relate to the business, consideration or discussion of the conference session.” The only illustration the Council offered was that the question of law in this case related to a “part of the supervisory function of the district superintendent…” and not to anything which the annual conference had voted on during its plenary session. The Council affirmed the bishop’s ruling without explanation.

The upshot of that affirmation is that once a pastor is made subject to “supervisory function” of a superintendent, the pastor has no right to raise any question of law before the annual conference related to how he or she is treated no matter what the subsequent action of conference officers are after that. The Council indicated that questions of law about any inappropriate actions are to go to the presider of the next hearing/trial in order to retain appeal rights beyond the annual conference and are not appropriate before the annual conference.

On paper that makes some sense. But in practice, there are two major problems. First, sometimes the bishop does not follow the Discipline when taking action against the pastor. In such cases, there are no hearings let alone presiders to whom the pastor can appeal. Second, the chairpersons of the Board of Ordained Ministry and of the Committee on Investigation are pastors subject to the appointive powers of the resident bishop, as are all clergy members of those respective groups. In the case of a church trial, the presiding bishop for the trial is an appointee of the resident bishop, chosen because she or he may be sympathetic with what the resident bishop wants. Once a procedure has moved to the appeals level, this new precedent in JCD 799 defers to the judgment of those closest to the decision-making, essentially leaving all questions of law to those under the influence of the resident bishop. More on that in discussion of JCD 1094.

Three, the Council established guidelines for bishops to determine what were moot and hypothetical questions of law. Those guidelines are now written into the Rules of Practice and Procedure of the Judicial Council. They retain the Disciplinary strictures about who may raise the questions, how they are to be recorded, that the bishop must answer if only to say they are moot/hypothetical, and submit them to the Council.

It appears that to the Judicial Council, a matter is moot if it has been decided already by a previous judicial action, should have been taken to a hearing presider in the next step of the judicial process rather than to the annual conference, or has become a matter under the supervisory function of the superintendent and is thus now “judicial” and outside the authority of the bishop under the doctrine of the separation of powers. A matter is hypothetical if the question of law does not refer to a specific case where an answer to the question would have a possibility of changing the results of that event.

This decision fails to deal with three passages of the Discipline. Two of them relate to the nature of questions of law, neither of which includes any restrictions on what questions may be raised. The Council points to a JCD from 1946, based on a passage no longer in the Discipline which does not require rulings on moot and hypothetical questions. That is their source of authority.

The third passage not considered by the Council is the one which lists as a duty of the bishop to ensure fair process through monitoring all of the judicial and administrative actions of annual conference groups charged with those procedures. If the bishop is to ensure, then the bishop must be subject to questions of law about those procedures.

In practice, bishops have tended to call every question of law they did not want to answer “moot” and/or “hypothetical.” The Council has not always challenged the bishops when they did that. So bishops continue to avoid their responsibilities by trying to pass them off this way, often successfully.

As a consequence, advocates have lost a tool in their fight for justice. Until this ruling in 1997, a number of injustices were reconciled by Judicial Council decisions. Since then, too many questions of law have tended to go unanswered, even those outside the administrative and judicial processes.