JCD 1413

ee.umc.org/decisions/81536

 

Did They or Didn’t They?

 

During a special called meeting of the Greater New Jersey Annual Conference to discuss Discipline changes of the 2019 General Conference, a report was made which included a set of ten recommendations for giving direction to the conference regarding LGBTQIA+ matters.  The recommendations were mostly pastoral, showing care and respect, especially toward teenagers.  Someone asked the bishop if the conference was trying to tell the local churches what to do.  He said in essence, “Not really.”

 

And the Council accepted his decision that the recommendations were moot and hypothetical.  In other words, the vote to accept the ten recommendations was without meaning or effect in church law.

 

Based on comments in concur/dissent section of JCD 1413, that the matter was parliamentary rather than “legal” may have stemmed from the bishop’s decision that the recommendations, while voted on, were not then finally settled because the full report was not ever voted upon.  

 

This is a quirk in annual conference processes where elements of an agency’s or committee’s report to the conference may be voted on but unless the whole report is voted upon, the matter actually fails to become binding for the annual conference.  

 

So the bishop’s response was that the conference had not actually told anyone what to do even though the content of the report was extensively discussed and parts voted upon.  The real effect was that the recommendations were given the support of the respective votes.  Anyone at the session would come away with the impression that the conference e was supporting the LGBTQIA+ community, especially the kids.

 

But technically, the Council went along with the bishop that nothing binding happened.

 

Did they or didn’t they?  Not really, I guess.  But existentially, they did.  And without the word “aspirational” being used.

 

JCD 1414

ee.umc.org/decisions/81537

 

A PR Effort?

 

A second question of law was raised at the Greater New Jersey special called annual conference session.  In summary, the questioner wanted to know if the report could be acted on without a full vote on it.  The bishop gave the same answer that he gave for JCD 1413.  Nothing really happened because the report as a whole did not receive a vote.  

 

In a dissenting opinion, the argument was made that for that reason, the Council was premature in accepting jurisdiction.  The report was interim and would probably become final at the normal session of the conference a few months later.

JCD 1329

http://www.umc.org/decisions/69706

Remanding a Moot and Hypothetical Question

Let me first insert an anecdote before commenting on this interesting decision,

When I was interviewed for ordination, I was really asked only one question.  “Do you smoke?”  That was way before sexual orientation was on anyone’s mind and while the Discipline was explicit about our witness being to not smoke or drink.  My answer was “No” because I have always found the habit abhorrent and unhealthy.  The answer was “No” by all of the candidates even though those who were Korean War veterans and rebels smoked.  That was true in southern conferences as well, especially where tobacco was the main cash crop.

Here’s the kicker: No Board of Ordained Ministry advertised their decision to ignore the Discipline.  After a very few years, the Discipline was changed and hardly anyone noticed.

Take that bit of history for what it’s worth.

Second, let me advertise a little.  Last year I completed a study on “moot and hypothetical” and put it in a form of guidelines for bishops that I wish the Council adopted instead of JCD 799.  Anyone interested in my handiwork may contact me.

I bring that up because it suggests that a questioner and the bishop should meet to discuss the question before it goes to the floor of the conference.  The bishop should take a break if one comes up spontaneously as this one appears to have.  The break should be for the purpose of going over the requirements and limitations related to the two kinds of questioning.  Perhaps a parliamentarian should help them evaluate the situation and see if there is a best question and best way to ask it so that the Council is not caught in the kind of bind exemplified in this case.

It is hard to say exactly what questions might have been asked, if any.  To speculate would be to argue this case.  This commentary is badly timed since this case was remanded back to the bishop for reworking her answers.

But let me say a couple things more.

One, the Council is wise to overturn the bishop’s argument that a defeated motion is moot and hypothetical.  Past Councils have overturned personnel cases when there were failures of fair process that led to conference decisions that were being challenged.  A negative action of a conference is an action and may be questioned.

Two, I find it strange when the Discipline requires a two-thirds vote of an annual conference to forward a request for a declaratory decision (P 2609.5) but only one fifth or one-third vote of members of jurisdictional, central, or General Conferences.  That sure makes it hard for annual conferences to challenge bishops to the Council if the bishop is authoritarian.

JCD 1330

http://www.umc.org/decisions/69708

Is the Board Required . . . .?

I prepared a full answer and then realized I was preparing a brief.  So except for a short paragraph, I am holding the main body of my comment until after the Council meets in April.  I regret having waited so long to doing these commentaries.

Now, regarding the decision, I think the bishop and Council are both in error.  The four questions are all academic.  Answers to the questions actually change nothing.  They are not related to a specific case.  They are arguments against the Board’s statement of policy which was not actually before the conference for any kind of action

JCD 1334

http://www.umc.org/decisions/69707

Confusing and Conflicting System

Let me try to reconstruct the situation in the case from the Texas Conference.  A woman pastor was accused of being involved in an affair.  The accusation became formal.  A just resolution was worked out.  One of the bodies that should have been a party to the just resolution, the conference relations committee of the Board of Ordained Ministry without providing a hearing with the woman pastor, refused to accept the terms.  The matter went to trial.  The trial court found guilt and the punishment was what had been worked out in the just resolution.  

If I had been the advocate at the time the conference relations committee decided there would be no hearing, I would have complained immediately to the bishop that the respondent did not get fair process rights as the 2008 Discipline required (Paragraph 363.1).  I wouldn’t have waited until conference.  The bishop, under Paragraph 415.3, could have intervened on the procedural (emphasis added) matter of failure to provide the respondent’s right to be heard and the accompanying rights a hearing with the committee required.  Had the bishop done that, there might not have been the expense and other costs a trial entails.

The Council has not been asked, so far, to look at Paragraph 415.3 as part of the bishop’s administrative responsibilities with respect to handling of complaints.  I made a point of it in my analysis of “moot and hypothetical” rulings of the Council last year.

The 1988 study commission added Paragraph 415.3 as a back up protection of fair process so that if there were mistakes made implementing fair process, the bishop could “ensure” it by stepping in, correcting the situation, and get the procedure back on track.  By doing that, the bishop was not dealing with the accusations or evidence substantively but only procedurally (administratively).

The word “substantive” and its various forms have not been properly parsed in this decision or all the others which have been based on JCD 799.  If we distinguish between having jurisdiction over deciding about procedural matters and deciding about guilt or innocence and identify “substantive” to relate to the latter only, I think we would be better able to sort out the various roles.

As the Discipline currently reads, the bishop’s judicial role includes monitoring and correcting process in administrative and judicial matters, including being required to answer questions of law at annual conference about procedures used in personnel cases.  That is not how the Council reads the Discipline.  There have been serious departures in certain cases (JCDS 1031, 1032, 1156, 1189, 1216,1230, et al) because the cases were clearly unjust.  The Council, by encouraging the use of Paragraph 415.3 for procedural questions, now could have legitimate grounds for what it did in those past cases.

I also happen to agree that bishops should be removed from judicial matters, as I have said innumerable times.  But that would leave a gaping hole in our system that would have to be filled some way.  Perhaps the nominating committee can take over all nominations that the bishop now makes for the groups that deal with personnel matters.  Perhaps a “counsel for the Church” can be elected to take over the tasks of receiving complaints, handling supervisory response tasks, setting up just resolution options or mediation, and so forth.  Maybe there should be an annual conference level court to be the first body to hear questions of law and even requests for declaratory decisions and appeals of church trials.

The system needs a serious review and the various tasks need to be realigned so that the separation of powers is handled better and so that cases like this one do not continue to fall in the cracks as they have since 1997 when JCD 799 was made.

JCD 1311

http://www.umc.org/decisions/67273

Authority of a bishop

The bishop of the California Pacific Conference set up two task forces that she chaired to handle problems she wanted the conference to resolve.  One of the problems was financial and the conference’s Council on Financial Resources (alternative name for conference council on finance and administration) challenged the task forces’ formation and nature since they were not initiated by the legislative body of the annual conference nor have to work through existing conference agencies before going to the plenary of the annual conference.  The second episcopal task force dealt with conference structure and its recommendations went straight to the plenary without being reviewed by any existing conference agency like the Rules Committee.

The bishop tried to make the five questions of law disappear by calling them moot and hypothetical.  She believed she had the authority to form the task forces under the Discipline and that the results of the task forces could be directly dealt with by the conference.

From the stated facts, it appears the conference was terribly busy sorting out things from its previous administration and so the bishop felt under her general supervisory authority as bishop that she could pull together groups to face issues that appeared to be falling through the cracks in the midst of the turmoil.  

I worry that certain bishops would use this tactic to circumvent the appropriate agencies of the conference who might be unsympathetic to his/her agenda.  JCD 831 reminds us that bishops are not members of the annual conference and therefore have no right to bring legislation to the plenary.  But some bishops keep trying!

In this case, the Council stated that a bishop may set up a committee to report back to the bishop.  Then those recommendations must be vetted by the appropriate agency of the conference and if valid, presented by the agency for amending and vote by the conference.  

But the bishop’s committees do not have authority to present directly without the vetting (disrespecting the Disciplinary constitutional authority of the respective conference agencies).

So in this case, the bishop’s belief she had the authority to have her task forces report directly to the conference was overturned by the Council.  Some of the recommendations of her financial task force, however, were accepted by Financial Resources council and presented to the conference and voted upon there.  The Council ruled those changes stand despite their original source.  They illustrated the proper way.  

The two questions on constitutionality of the bishop’s overstepping the separation of powers were dismissed by the Council as inappropriately raised.  See JCD 1304 as well as my blog posting on it.  They should have been raised separately as requests for declaratory decisions and not given to the bishop to rule upon.  But that was taken care of indirectly by the Council’s reversing the bishop’s decisions of law about how broad her authority was.  Her authority as bishop does not extend to providing legislation through personally chosen task forces.

Let me note that both question four and question five were arguments against the bishop’s actions more than either being questions of law or requests for legal review.  Hence the Council could refuse jurisdiction.  As recommended in my blog on JCD 1304, the questions needed to be based on the specific actions of the conference, such as votes on motions.  Without being specific, the questions became hypothetical.  That took the bishop and the Council off the hook for ruling on legitimate concerns.  

The paper I did on “Moot and Hypothetical” is available now from me.  

JCD 1313

http://www.umc.org/decisions/67275

“Moot and Hypothetical” Revisited

For some reason, the Conference Lay Leader of the Desert Southwest Annual Conference felt it necessary to raise questions of law about being invited to cabinet meetings where conference ministries were being discussed and about being invited to provide a report to the plenary.  The Discipline provides for those tasks and apparently the bishop was not recognizing them.

The bishop, in his report to the Council. pointed out that the questions did not include any action of the conference germane to the questions and therefore they were moot and hypothetical.

“Not so fast,” replied the Council.  “The nomination and election of all conference officers including the Conference Lay Leader had just occurred and the questions of law were part of the response to that.”  The Council overturned the bishop’s ruling.

The Council can be creative where it wants to be.  A mere segue opening became the connecting reference that opened the door for the Council to step in and take jurisdiction on what appears to be a careless or disrespectful failure on the part of the bishop.  If he had a good reason for his actions, he wisely did not bring it up in this context.

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 1304

JHYPERLINK "http://www.umc.org/decisions/64867/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyIsInNlYXJjaDpkZWNpc2lvbl9udW1iZXIiOiIxMzA0In0" http://www.umc.org/decisions/64867/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyIsInNlYXJjaDpkZWNpc2lvbl9udW1iZXIiOiIxMzA0In0

EXERCISE IN MOOT AND HYPOTHETICAL QUESTIONS

Over the summer, as I was working on commentaries on JCDs from October of 2014 and April 2015, I found myself studying what makes questions moot and hypothetical.  Those two terms are not defined anywhere and seemed to me to be used arbitrarily, especially to protect a bishop who may have allowed violations of fair process.  Last year’s JCDs were a lot of help to me in clarifying how this Council sees what is moot and what is hypothetical.

I don’t know if it was glee or consternation that hit me when I read the intelligent questions asked by a lay person about one aspect of rules that had been passed by the California-Pacific Annual Conference.  The sad part of his concern is that he was trying to get answers the wrong way.  If the bishop, he, the conference chancellor, and anyone else with smarts about referring questions to the Judicial Council had had about fifteen minutes together, they might have resolved all of his issues without resorting to formal seeking of legal rulings.  

Hey, Bishops, be ready to call a break, request a meeting as soon as possible, or some such thing to allow exploring the questions and the proper forms for formal legal questioning to see if there is a reasonable way to resolve the issues.  The result might be clearing up everything.  But if there is even one issue unresolved, that could then be put into proper form for presentation over which the Judicial Council could take jurisdiction.

Now about the questions and the bishop’s answers:

Upon analysis, the questions, while on a worthwhile subject, were mostly hypothetical in that they were intended to change the opinion of the bishop rather than appeal an action that could have been illegal.  That is a very subtle matter and lawyers are about the only ones who can tell the difference.  The bishop brought in a lawyer to go over the questions before responding, something the lay person would not ordinarily have thought to do.  So the bishop then ruled the questions moot, with some elements being hypothetical.  The Council affirmed the bishop’s decision though it finessed some of the questions as hypothetical.

I am in the process of trying to nail down the definition of “moot” and “hypothetical” so that lay and clergy, bishops and Council members can all get onto the same page.

Let me suggest what the lay person might have done with his concern about episcopal overreach in the new plan.  It appears he realized after the new rule passed that the Discipline was at variance with the new plan on the issue of separation of powers.  With the help of others to offer a second, he could have moved reconsideration of Rule Change 15-15.  If the motion was seconded, the motion for reconsideration would be up for discussion, particularly the grounds for making the motion.   Instead of asking the bishop to rule on the Disciplinary discrepancies, he could have asserted his interpretation of them as grounds for reconsidering Rule Change 15-15.  If the motion to reconsider passed, then he could make a motion to amend the Rule Change to be in line with the Discipline and hope the conference agreed and voted to support his amendment.  If the conference chose not to accept his motion to change the new rule, then he could have moved a request for a declaratory decision under ¶ 2610 on the constitutionality of Rule Change 15-15 in light of the Disciplinary passages he felt conflicted with the new rule and whether or not the other passages used to support the new rule were indeed constitutional.

If you understood that legal-babble of mine, we’re good.  If not, contact me.  

As the questions were asked, the Judicial Council was blocked from a substantive response of looking at the real issue of possible episcopal overreach by arcane rules that are not clearly defined nor widely understood. 

If I succeed in helping define “moot and hypothetical” based on the Council’s own decisions, maybe we can minimize that impediment in the future.

Note: The concurring opinion does take the questions to have enough substance that it offers an answer which has some teaching value for consideration by the questioner.  It may or may not resolve his concerns but it respects them despite the technical flaws in the wording and approach of his questions.

JCD 1293

 HYPERLINK "http://www.umc.org/decisions/61962/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyJ9" http://www.umc.org/decisions/61962/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyJ9

QUESTIONS ABOUT THE NON-APPOINTIVE CABINET

The Council deferred requests for rulings from the bishop re: appointive Cabinet, a non-Disciplinary group bishops have formed by adding whomever they wished to participate in consultations about appointments along with superintendents.  The deferral was to give the conference secretary a chance to send all pertinent documents.  The Council saw the original written request was not included in the paper work and very nearly refused jurisdiction because it had not been presented at conference, thus violating the basic rules about raising questions of law.  But the questioner’s written request accompanied the other ruling asked of the bishop.  So the Council deferred and allowed the Conference Secretary a chance to find the written question if one existed.

Interesting thing: the secretary had forgotten to include the original request in the package.  How long have I been complaining about someone at the Council not pursuing all the documents as soon as there appeared to be something missing, which would be when everything was to be sent in, and not just before the meeting of the Council?

What makes this ruling really interesting is that there must have been a very strong discussion about jurisdiction of the Council once the concern for the original written questions was resolved.  The dissenting opinion, something rarely written unless the writer feels very strongly about the matter (some are unwise ego trips but that kind is even rarer).  This time the dissenting opinion pointed out that the conference had indeed dealt with the rules including who was to be on the appointive Cabinet.  The action was essentially just affirming the conference rules and policies without specific reference to the issue of membership on the appointive Cabinet.

Perhaps if the questioner had specifically tied the questions to that conference action, the Council might have accepted it.  With this Council, that is unlikely.  They want more specificity.

The session of the Council also very likely had quite a to-do about the lack of Disciplinary support for there even being an “appointive” Cabinet.  The concurring opinion really wished the questioner had made a request for the issue to be for a declaratory decision rather than addressing it as a question of law to the bishop.  If the questioner had done that, there might have been a very interesting challenge to the Council of Bishops’ cavalier approach about doing things their own way rather than in compliance with the Discipline.  

I’m not the only one smelling something bad behind the question.  I feel bad that I was not in a position to do these commentaries until now.  Had I been timely, maybe the questioner might have gotten word to either bring a motion related to changing the rule about who could be on the appointive Cabinet or could have framed his question to go to the Council under Paragraph 2610 instead of under Paragraph 2609.  

Unfortunately, the dissenting opinion did not prevail and the questioner did not pick the right arrow out of the quiver.  Hence, the result was a “moot and hypothetical” ruling.

Will this become a warning to the bishops?  If I’m right about them, they won’t pay any attention.  They are above the Discipline.  It’s called “King of the Hill” syndrome or Success Sickness.  

JCD 1294

http://www.umc.org/decisions/61963/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyJ9

RETIREMENT RULE FOR MEMBERS OF AN APPOINTIVE CABINET?

The issues in this case, and its ruling are essentially the same as in JCD 1293 above.  Same problems of “moot and hypothetical,” having all the documents, etc.

The difference in this question of law was that it addressed retirement from the Cabinet requirements for superintendents and asked if those applied to non-superintendents.

Again, the Council bemoaned the fact that the bishop bothered to answer the questions even though he had already determined that they were moot and hypothetical.  I do not know who writes that kind of stuff for the Council but hopefully they will heed the concerns I raised about such treatment of bishops in situations where there was either ambiguity about whether or not to answer and the pastoral need to answer in order to avoid looking autocratic and dismissive.

We urge advocates seeking to bring questions under Paragraphs 2609 and 2610 to meet ahead of time with the bishop to work out the smoothest way to handle the floor “game” of getting the question raised.  Under those circumstances, the bishop could point out the problems with the questions re: “moot and hypothetical,” something I hope both sides will find more adequately addressed following revisions of Appendix A of the Council’s Rules of Practice and Procedure.

The decision was in favor of the bishop in the sense that the majority of the Council agreed that the questions were moot and hypothetical.  There are no rules requiring non-superintendents to retire after eight years as superintendents have to.

JCM 1279

http://www.umc.org/decisions/59640/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyIsInJhbmdlLWZyb206ZGVjaXNpb25fZGF0ZSI6IjEwXC8yNVwvMjAxNCJ9

DEFERRAL OF QUESTIONS ABOUT NON-SUPERINTENDENTS ON THE APPOINTIVE CABINET 

Following the Arkansas Annual Conference, the Council received a bishop’s rulings and a brief based on a a request for a ruling of law on the matter of the tenure of members of the appointive Cabinets who were not superintendents.

What the Council did not receive was proof that said the request had been received in writing.  I hate it when that happens.

I have no information on the merits of the questions raised.  But I can imagine a Conference Council Director being a bishop’s right hand man and having an undue amount of influence when appointments are being considered.  In my years as a pastor, our conference had some very influential directors but the bishops, in those days, did not include anyone but superintendents to work on appointments.

There might be a real interest in these questions receiving benefit of judicial review.  The bishop lists all of the paragraphs related to appointment making, all referring only to the superintendents.  The one paragraph where he notes an additional person is Paragraph 608.6 which allows the director of connectional ministries with some restrictions.  In  other conferences, I am aware that the bishop’s administrative assistant is a major addition, though I see no disciplinary authority for a bishop to pick anyone s/he wants to sit in on making of appointments.  

In my opinion, limited as that is, I smell a game afoot among the Council of Bishops where the more staff a bishop has, no matter the cost to the respective annual conferences, the more stature s/he attains in the eyes of episcopal colleagues.

I hope a proper question is raised as a way of minimizing such game playing.  

In this case, the Council deferred until April, 2015, any action on this matter.

JCM 1280

http://www.umc.org/decisions/59641/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyIsInJhbmdlLWZyb206ZGVjaXNpb25fZGF0ZSI6IjEwXC8yNVwvMjAxNCJ9

DEFERRAL OF QUESTIONS ABOUT RETIRING NON-SUPERINTENDENT MEMBERS OF AN APPOINTIVE CABINET

This issue arising from the Arkansas Annual Conference is similar to the questions raised for JCM 1279 but relates to retirement for non-superintendent members of the appointive cabinet.  

It appears from material in the docket of the Council that the bishop handled things the same way as with the other request.  The Council either has a written request in hand for this one or was so strapped for time, it couldn’t even check for that!  Hence the deferral till April, 2015.

JCD 1286

http://www.umc.org/decisions/59647/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyIsInJhbmdlLWZyb206ZGVjaXNpb25fZGF0ZSI6IjEwXC8yNVwvMjAxNCJ9

DISSENTERS ON THE BOARD OF ORDAINED MINISTRY?

At the Eastern Pennsylvania Annual Conference, members of the Board of Ordained Ministry included several pastors who were reported to be willing to do same sex marriages.  Someone raised a question of law based on his reading of JCD 980 that those pastors unwilling to obey the Discipline on that matter should not be allowed to be on the Board.

The bishop offered the opinion that JCD 980 related to judicial processes and not to nomination processes, though he suggested that those in disagreement with the Discipline on same sex issues should consider not accepting nomination to groups where their opinion might not lead to following the group’s disciplinary responsibilities.  He added that nominations cannot be arbitrarily limited.

Remember that the members of the Council giving JCD 980 strongly leaned against same sex issues.  The current Council has to be ready with legal arguments fully weighted to give rulings that legitimately change those precedents,

This docket item was not such a case. 

There were several problems with this case.  There were no elections or other actions of the conference to which to tie the request for a ruling.  That made the questions hypothetical.  

Further, the Council points out, the question was based on reports of previously held opinions of people on the Board.  This is as close to  the Council considering a matter being based on hearsay as any decision of which I am aware.  The Council rejected the questioner’s use of such a basis for his questions.  

Finally, the Council said none of the people in question was under complaint for any action and could not be put under complaint for something they had not yet done.  That made the request hypothetical as well.

The bishop also was chastised on two points: One, he should have recognized the questions as hypothetical and so ruled.  Second, his response to the questions bore the weight of law for his conference and if upheld by the Council, it would be the law  of the church, and not just an opinion.

Under stress of time and not being present at the annual conference session led the Council to again be short with a bishop caught in the dynamics of the annual conference (see JCD 1284 above).  The tone of the questioner was “bold” (I’d say he was angry and even defiant) so the bishop, following the universal rule of lowering the “temperature” when there was a confrontation, chose to soften his response to be pastoral and parliamentary.  And seeking to avoid the appearance of disrespecting the questioner, the bishop sought to provide a reasonable answer.

Previous Councils dismissed many questions as moot and hypothetical without explanation and refused jurisdiction.  This Council noted the procedure for submitting a question of law had been followed, and when the bishop ruled, the conference was asked to vote the question and rulings to be reviewed by the Council.  

My fussing about some concern or other with Council actions should be considered as relatively minor compared to the Council’s usual patience and clarifications in decisions like this one.

JCD 1244

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1366&JDMOD=VWD&SN=1201&EN=1259

REQUIRING A BISHOP TO RESPOND TO A QUESTION OF LAW

A member of the Southwest Texas Annual Conference raised questions of law related to a personnel issue.

This is a remarkable response by the Judicial Council in some unusual ways, four to be specific.

One, the pattern of capitalizing certain words may illustrate some very important attitudes of those whose writings are directly quoted.  Two, the Council chose its own grounds for jurisdiction rather than take the one presumed by the one bringing the questions of law and the responding bishop.  Three, the Council made a major ruling on a question that was not asked.  And four, they may have overturned a major precedent about the kind of answers a bishop may give in a personnel case.   

First, in the matter of capitalization, this is never considered in viewing decisions of law because the pattern is so inconsistent.  The Discipline itself is inconsistent with respect to how it treats names of groups and officers as are the statements written by the Judicial Council itself.  Consequently, the matter never comes up.  But in this particular ruling, the bishop discussing the situation is very consistent.  And whether anyone agrees with this analysis as significant or not, they may be interested that it is noted here.  

The particular quote appears to have been transcribed by the conference secretary not from the recording of the speeches read into the microphones but from the actual text the bishop wrote with regard to the situation.  Conference secretaries prefer to use the written text of those whose words are to go into the minutes.

Here is the normal protocol for capitalization:  When a major branch of the United Methodist Church is written down by any news or official entity, it is always capitalized.   The quote of the bishop’s statement to the Annual Conference on June 7 contains only two capitalizations that are not a person’s name and title: “Bishop” and “Discipline.”   He does not capitalize “Annual Conference” or “Clergy Session.”   And most revealing, he does not capitalize “Judicial Council.”   

It has been my contention that bishops tend to not honor those beneath them.  In fact, the reason so many Judicial Council Decisions seem the same is because the bishops tend to ignore Council decisions and make the same mistakes which the Council had tried to tell them were illegal under church law.

I believe the bishop showed his perception of the situation by capitalizing his own stature and that of the Discipline which he uses to support his view and he showed his disrespect of the Annual Conference and especially of the Judicial Council.  

The other quotes from him in this Decision are not direct and have the more usual capitalizing.

If this seemingly irrelevant observation has any value, it will be reflected in other things said and done by that bishop.  Has the unnamed bishop been disrespectful in other ways not reflected in the text of this Decision?  One has to wonder when the other three most unusual points to be made here may have come as a response to the attitude of a particular bishop.  Over the years, it has been clear to me that the Council has favorite bishops and some others, not so much.

Second, when the Council takes jurisdiction, it is usually clear.  Questions of law are taken under P 2609.6.  Requests for declaratory decisions are taken under P 2610.  I am painfully aware of their care on this having had my own experiences with them over many years.  

In this case, they leave aside paragraphs usually taken from the 2600s and go directly back to the constitution, something I have not seen them do before.  I believe that where the Discipline allows, the Council should have the flexibility to choose its own grounds for jurisdiction provided they are reasonable and cause no harm.  I hope they consider this possibility in the future, something I argued for in the past.

Third, the Council did the unimaginable.  It answered a legal question that had not been asked and did not even have to be asked in this case.  The 2012 change in the Discipline requiring a one-fifth vote in support of a question of law was in previous Disciplines along with a provision that did not require any vote.  The one-fifth vote provision was parallel to most other circumstances under P 2609 where questions were forwarded to the Council.  But the voteless question of law that had been in all previous Disciplines allowed an individual to have access to the Judicial Council to seek redress.  

I have been aware of how bishops have resented that option because a single person could challenge a bishop during an Annual Conference and thus be an embarrassment to the bishop.  It seems one of the points of pride among the Council of Bishops is how seldom a bishop is called before the Judicial Council.  

In this case, the matter of the vote was not even a factor because when the bishop asked for a vote on forwarding the question of law, it easily surpassed the one-fifth requirement.  That makes the ruling about its unconstitutionality extraordinary.  The Council is loath to go outside the narrowest interpretation of the Discipline and the issues raised before them.

They are exactly correct in ruling against the change in P 2609.6.  It is just so strange that they did it without anyone asking.  That makes this an “activist” court by comparison with previous groups who made up the Judicial Council.  Provided that no harm is done when they do it again, I’m all for it.  There are a bunch of things I would call unconstitutional if I were on the Council!  And, if I were a Council member, I’d bring them up if there was the slightest excuse!  

Four, the Council broke with their own common practice of simply accepting any questions of law about personnel matters as moot and hypothetical, thus supporting bishops who may have allowed serious violations of fair process to occur but who washed their hands of it by hiding behind JCD 799, which the Council unwisely made part of its Rules (see Appendix B, Rules of Practice and Procedure of the Judicial Council).

In that ruling, they justified taking away bishops’ responsibility to deal with personnel issues by pointing to the separation of powers, that once a complaint entered either the judicial or administrative tracks, it was out of their hands.  

In the judicial track, the bishop should have no right to pass on the substance of a complaint because that belonged to the judicial processes which could end up on appeal before the Judicial Council.  That would be the proper body to deal with any appeal, hence the bishop was out of that loop.  

While the Council did not similarly argue the administrative question in Decision 799, once the complaint enters the administrative track, under separation of powers, a complaint becomes largely a matter for the Board of Ordained Ministry and the Administrative Review Committee to resolve, with appeal to the Clergy Session of the Annual Conference which has the last word on personnel matters.  Appeal should be possible from there to the Judicial Council but that has been taken away by JCD 799 (Appendix B).

Under Appendix B, the bishop is out of the loop because of separation of powers, and questions are moot (wrong place to appeal) or hypothetical (theoretical in nature because the bishop was out of the loop).

A careful reading of JCD 799 shows just how tenuous it is as a basis for their Appendix B rule.  There were two trials and the matters brought in the questions of law from them both were procedural and not substantive.  In the judicial track, procedural issues can be challenged as objections to the next level of hearing, finally ending with the Council.  However, procedural issues in administrative processes end with the Administrative Review Committee under the Council’s rule because when bishops preside over the clergy session, they are not allowed to answer procedural questions under Appendix B.  In some conferences, the Board chairperson presides and is in a conflict-of-interest position to be the one to answer procedural questions.  The right of appeal on procedural issues disappears for those in the administrative track.  Hence, the appeal to the Clergy Session is inoperative and, in effect, appeal of a decision of the Clergy Session to the Judicial Council is fruitless.  While I can count on one hand the exceptions the Council has made, I don’t have enough fingers to count the times the Council has let the bishops allow harm to pastors where processes were inept or worse.

The Council has begun to realize that something was wrong with applying Appendix B to all cases.  It took seriously questions of law in a personnel case where the Cabinet intervened to change the terms of return to ministry by a pastor on voluntary leave (see JCD 1156).  The Council was exquisitely more careful in the analysis of the case of a bishop who had been involuntarily retired (JCD 1230).  Both had been handled administratively.

Since the 1980s, most personnel cases which came before the Council where the administrative action against the minister were taken during the Clergy Session. That was not usually perceived as part of the business of the Annual Conference by the bishop or by the Council.  In this case, the bishop affirmed that the Clergy Session’s tasks were a part of the business of the Annual Conference (interestingly, the actions of the Clergy Session relate to an agenda of voting and reporting on conference relations issues which is called “The Business of the Annual Conference”).  This is the first acknowledgement by the Council of that essential tie between the Clergy Session and the Annual Conference.

One of these days, the Council is going to have to acknowledge that the separation of powers is almost non-existent.  In practice, bishops have significant power in both the administrative and judicial tracks in at least four ways.  

One, they have a vested interest in how each case turns out because they were involved in referring the case to whichever track in which they thought it should be handled.  No referral would have been made if the bishops felt the complaint was not true.  Their judgment would be in question if a complaint was dropped by one of the hearings groups.  

Two, to protect the bishops’ decisions, they can use what to me is an unconstitutional authority, direct and nearly exclusive nominating powers over the various groups that handle both judicial and administrative tracks.  They can put their own people into those groups.  

Three, bishops can enforce their prejudice about each case because they have appointive power over each member of the respective groups involved in the processes.  

Four, the bishop has the last word as to the meaning and application of the Discipline in the conference.  The place that is done formally is at Annual Conference only if someone is willing to challenge the bishop’s interpretation.  

Contrary to Appendix B, procedural questions should have been in order all these years.  The Council should have taken jurisdiction over all those personnel cases it sloughed off by pushing those bishops to do as they are now asking this bishop to do: answer the questions.

Unfortunately, in practice, the Council does not always apply the same energy to insist on fair process every time.  There is an unwritten rule in the United Methodist Church that each decision is unique to that case and therefore does not apply (unless the Council so chooses) to any other case.  There really is no such thing as precedent in Council Decisions but is solely at their discretion to apply when they want to apply it.

In conclusion, it still must be said that this decision, JCD 1244, is extraordinary:

The Council determined its own authority for jurisdiction.

It answered a question it was not asked.

It ignored the precedent of some thirty years of letting bishops off the hook from ensuring fair process (see P 415.3), allowing them to simply say that the questions of law were moot and hypothetical.

(Note I did not mention the capitalizing in the summary.  But it fuels my speculation about why the Council went so far afield from what the bishop and the rest of us expected in this case.  See JCD 1251 where there are no such capitalization variations.)  

When the Council gets it right, it is a thing of beauty.  

Update: The Council took jurisdiction over its nineteen docket items by reconsideration of three of them, having retained jurisdiction on three more, found two were still under the 2008 Discipline, and the remaining nine after JCD 1244 was noted.  So it was easier for the Council to clear away the unconstitutional passage than have to fight it for half of the rest of their time together.