JCM 1323

http://www.umc.org/decisions/69693

Reconsideration of JCD 1314

The Council turned down this request without a rationale.  The case relates to JCD 1276, the one where the advocate tried imaginative ways to get an appeal before the Council for a pastor involuntarily retired.  I have two observations:

1. Advocates need to persist.  It is rare for the Council to actually respond to a request for reconsideration but once in awhile, like facing the nagging old woman in Jesus’ parable, some kind of breakthrough might occur.  Besides, the involuntarily retired pastor has exhausted all of his in-church options and can see if a civil court can accept jurisdiction.  Civil courts hate to take a case from a denomination with a judicial system unless the pastor has tried everything legally involved in a Church case like this one.

2. Council groups tend not to challenge their predecessor Council groups’ decisions.  That’s one of the dynamics that allows for precedent to develop.  Besides, the previous court applied its best thinking.  The grounds for reconsideration would have to be compelling to get a new Council to do it.

JCD 1314

http://www.umc.org/decisions/67276

Appeal of Involuntary Retirement

This case tests a serious problem with the administrative processes that involuntarily remove a pastor from ministry.  There is no real appeal.

Paragraph 16.7 of the constitution requires the General Conference to provide a “judicial system,” that is, a way to handle complaints.  Paragraph 20 says the General Conference shall not do away with the right to trial and appeal.  Paragraph 58 requires that there be a judicial system that guarantees trial and appeal.

In 1980, the General Conference accepted a separation of kinds of complaints to be handled by the judicial system.  It separated out incompetence and ineffectiveness to be handled in an administrative setting rather than a judicial one.  Over the years, that administrative system has become more complex, including most of the rights of Fair Process provided for the judicial process.  But General Conference has never provided a clear appeal process.

In the judicial track, a complaint goes from bishop to committee on investigation to trial to appeal all the way to the Judicial Council.  In the administrative track, a complaint goes from bishop to conference relations committee to Board of Ordained Ministry to administrative review committee to clergy session.  Appeals by question of law to the bishop were ruled in JCD 799 as inappropriate because of separation of powers.  Appeals by means of request for a declaratory decision put the authority to refer the request to the  Council in the hands of the same body that voted to remove the pastor from ministry involuntarily.  The presider of the clergy session is the bishop who with the cabinet recommended the involuntary action.  In addition, voting during the clergy session are members of the Board of Ordained Ministry and Conference Relations Committee that voted the pastor’s involuntary status.  And on top of that, all voting members are under the watchful eye of the bishop who has their career in his/her hands.

Since when is an appeal going forward dependent on the ones whose decision is being appealed?  In the judicial track, an appeal may be made by the respondent and neither the presider of the trial nor the trial court may prevent the appeal from going forward.  Isn’t an appeal inherently required to be free to go before an impartial person or body who has not been involved in the case being appealed?

That is the problem the advocate and respondent in this case face.

When the original action was taken against the pastor in 2014, his advocate sought to appeal directly to the Judicial Council under Paragraph 2715 to avoid having to have the appeal go through the conference and bishop who had already acted on his case.  In JCD 1276, the Council refused jurisdiction saying that the respondent had to approach them by means of a request for declaratory decision.

In 2015’s annual conference, the respondent did that very thing, and unsurprisingly, the conference voted down his appeal.  When the respondent then asked questions of law about that very problem, the bishop demurred, as allowed by JCD 799 (still, unfortunately, in the rules of the Judicial Council).  And the Council in this decision went along with the bishop.

Problem?  Unresolved.

Can the Judicial Council deal with this problem by pointing out the lack of appeal through the administrative process?  Or will the General Conference have to resolve it?

I believe the Judicial Council will have to point out this problem and perhaps go so far as to rule the administrative track unconstitutional because by means of it, the General Conference has violated Paragraph 20 by “doing away” with the right of trial and appeal.  An involuntarily retired, located, or leave of absence pastor is just as removed from preaching, parsonage, income, and health insurance under appointment as a pastor who is removed by trial.

The reason the General Conference is unlikely to act is because any petitions for addition of appeal to the administrative track would be referred by the Committee on Referral of the General Conference to the Ministry Legislative Committee and not to the Judicial Legislative Committee.  The Ministry Legislative Committee is stacked with members of the General Board of Higher Education and Ministry.  Observation of the nature of the petitions generated by GBHEM since 1980 shows that they have persistently made it easier for bishops to remove pastors administratively.  They also have turned down petitions seeking to add appeal there.  

Perhaps, if the creativity of advocates continues to fail, the creativity of the Council will provide a way.  Something has to change.  The problem is real.

Update:  General Conference in Portland last May passed a route of appeal for administrative cases.  According to new Paragraph 2718.3, an appeal on questions of procedure may be forwarded to the jurisdictional appellate committee for review and, if necessary, appeal can go from there to the Judicial Council.

JCM 1291

 HYPERLINK "http://www.umc.org/decisions/61959/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyIsInJhbmdlLWZyb206ZGVjaXNpb25fZGF0ZSI6IjEwXC8yNVwvMjAxNCJ9" http://www.umc.org/decisions/61959/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyIsInJhbmdlLWZyb206ZGVjaXNpb25fZGF0ZSI6IjEwXC8yNVwvMjAxNCJ9

RECONSIDERATION OF JCD 1276

Reconsideration by the Council usually is based on who is asking for it (certain bishops have gotten the Council to respond to requests for reconsideration).  That observation, of course, is from someone who has asked several times for reconsideration only to be turned down.  I do not know the statistics and my recall is not as sharp as it used to be, but I remember only one request that was granted and that was for Bishop Tuell many years ago.

In this case, the advocate was pressing for something comparable to appeal in the administrative track, appeals being to bodies that have not previously dealt with the case or having no one on the bodies who did deal with the case in another context.

That’s what makes reconsideration so unlikely.  The Council has already “dealt” with the case and it takes a Bishop Tuell or a dynamite bit of law to get the Council to revisit a previous decision, as desperately needed as that may be.

I do not know the grounds for the request in this case.   Mine would be that there is really no objective third party body for a pastor to appeal to from the administrative track, contrary to Paragraph 20 which guarantees the right of appeal.  People can lose their ministries as completely under administrative procedures as they can from judicial procedures.  The former are for lesser offenses than the latter but to end up on administrative (involuntary) location is to be considered as no longer a member of the conference (Paragraph 360.3).  That also happens to a defrocked pastor: they lose membership in the conference.  They may no longer be appointed because they are not members.  They are not Traveling Elders any more.  Why do those put on administrative location not have the same right of appeal as the one defrocked by a trial court?  There is no appeal, really, from any decision made by an Administrative Review Committee either to the jurisdiction appellate committee or to the Council.  That was made clear by JCD 1276.

While this issue should be legislated at General Conference, the Council should have considered the loss of objectivity in cases where all of the routes to challenge an administrative track decision have people on the bodies, including the presiding officers who have already acted on the case.  Even more serious is that all those bodies are under the influence of command (lack of separation of powers) of their bishop.  

What a dream come true it would be if the Council chose to reconsider JCD 1276 on their own and ruled Paragraph 363.3 is unconstitutional.  And find a way to also throw in involuntary retirement and involuntary leave of absence on the same grounds.

JCM 1276

http://www.umc.org/decisions/59637/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyIsInJhbmdlLWZyb206ZGVjaXNpb25fZGF0ZSI6IjEwXC8yNVwvMjAxNCJ9

AN ADMINISTRATIVE APPEAL

Normally appeals are judicial events, appeals of the actions taken by a judicial body to the next level.  They are spelled out in Paragraphs 2715-2718.  The Council has also laid out appeal tracks in a number of previous decisions.  They again lay them out in this decision in the form of noting failure to appeal in the proper way at the proper time.  

Briefly, the case is about a conference moving to involuntarily retire a pastor and his fight to avoid that, but not having his objections always given any response where he raised them where he thought they should be raised.

On the principle that the point of final appeal in an administrative hearing was the launching place for an appeal to the Judicial Council, the pastor and his advocate appealed the ruling of the Administrative Review Committee rather than raise a request for a declaratory decision or question of law at annual conference. 

As stated in other commentaries about administrative handling of pastors, JCDs 799 and 1048 have been used to block.appeals of administrative cases from annual conferences.  Further, I have argued that the clergy session is not really an objective appeals body since the Board of Ordaiined Ministry which has already acted on the case may vote in the clergy session,  The Board’s chairperson may preside in some conferences and would have a conflict of interest since his agency already made a judgment in the case.  Similarly, the bishop, who may chair the clergy session in other conferences also has a vested interest in seeing that decisions about the pastor are upheld, decisions on complaints which the bishop initiated against the pastor in some cases and, in all cases, directed into administrative action based on the bishop’s determination that there was cause.

The issue is this: how does a pastor facing administrative mishandling appeal it?

In this case, the advocate and pastor tested an alternative, appealing from the decision of the Administrative Review Committee (ARC).  The Council ruled that was not listed in the Discipline as a proper place from which to do it and refused jurisdiction.

The Council seems to be going against its terrible ruling in JCD 1048 to say in this decision that a request for a declaratory decision under Paragraph 2610 was the proper appeal route for an administrative case.  

And the Council has broken away from JCD 799 in other significant cases, namely JCDs 1031, 1156, 1189, and 1244 and has allowed some appeals through questions of law under Paragraphs 51, et al.

While the Council is not allowing appeal from the ARC, General Conference could consider it.

I have encountered innumerable times where conference officers act soon after annual conference to remove pastors administratiuvely so that they do not need to face the clergy session until long after the fact.  It would be sensible in that circumstance for appeal from the ARC to the Council for the sake of timeliness.  There being no other appellate body such as to an annual conference judiciary or even to the jurisdictional appellate committee, the pastor is out of ministry for as much as eleven months before an appeal can be raised.  The simplest solution would be an appeal from the ARC’s decision.

If the Council clears away the use of  JCD 799 to allow questions of law on procedural matters, as they have in the JCDs cited above, then there would be less need for appeals from administreative bodies like the ARC.  The only appellate issue would be to be able to appeal administrative actions taken soon after annual conference.  

In any case, I recommend that the Council revise Appendix A which is based in large part on JCD 799 for this very purpose.  I am willing to work on such a revision based mostly on the Council’s own rulings.