Commentary on Judicial Council Decisions 1291 to 1298

Spring, 2015 

8/13/15

The following observations are intended to encourage you to read the decisions of the Judicial Council for yourself. These blog posts are in no way church law in any form but could help you understand some important aspects of the decisions. Should you feel I have made an error of fact or interpretation, please let me know (email at aj_eckert@hotmail.com) so it can be corrected.

I began offering commentaries in November of 2008, starting with JCD 1099.  This brings them up to date.  While I have not considered going back to the earlier decisions of the Council, there have been a few that have drawn comments that you may discover on this blog (January, 2011, for commentaries on JCDs 799,1048, 1094). 

Please feel free to send your questions about any ruling by the Judicial Council, past or present, for my observations based on your question.  Like this blog, my answers carry no weight of law.  But maybe we can both learn something.

I've included the URL for each of the rulings. That should allow you to click it or paste it so you can go directly to the decision. I’ve added subject titles and have put in labels that can be picked up by search engines.

Each decision’s commentary is posted separately so this review doesn't seem so long! And by using the list of contents in the left margin of this blog, you can go to whichever decision is of interest to you.

The phrase “the Council” when used refers to the Judicial Council. 

Rulings of the Council may be referred to as JCDs (Judicial Council Decisions) or JCMs.  Judicial Council Memorandums do not provide decisions of law but may refuse to take jurisdiction, remand, or show a question is not legally appropriate under Council rules.  On rare occasions, the Council may provide their rationale in a memorandum.  

 Associates in Advocacy (AIA) publishes updated indexes of all Judicial Council decisions and memoranda. If you are interested, contact Rev. Michael Brown, 158 Saxony Ct., Vallejo, CA 94591. The AIA website (www.aiateam.org) offers indices under “HELPS for the Judicial Council.”  AIA’s website is not up to date, however.  The Judicial Council website now offers a search function which covers every JCD since 1940.  Go to  HYPERLINK "http://www.umc.org/decisions/search" http://www.umc.org/decisions/search to search.  To go straight to all decisions, leave all the boxes blank on that search page and click on the “search” bar.  Then you can scroll and scan to find what you want.

All commentaries on Judicial Council rulings are subject to editing, updating, and revision.

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.

JCD 1292

 HYPERLINK "http://www.umc.org/decisions/61961/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyJ9" http://www.umc.org/decisions/61961/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyJ9

IS ENCOURAGING REFRAINING FROM OBEYING THE DISCIPLINE ASPIRATIONAL?

The Council provides a decisive and yet nuanced response to a resolution passed in the Detroit Annual Conference asking church bodies to refrain from church trials, investigating LGBT possibilities in candidates for ministry, and prosecuting those conducting same sex marriages.

A question of law about the legality of the resolution was seen by the bishop in her ruling as not aspirational for the most part.  She did get support from the Council in her noting the opening part was okay but the rest of it, especially where called for “refraining” from obeying the Discipline was no longer just encouragement or support but a call for violating the Discipline.

The Council’s nuances come in noting two things.  There is no law in the church against transgender candidates or pastors nor against homosexual pastors who are not self-avowed and practicing.

However, to “strongly encourage refraining from following the Discipline” is prescriptive and not aspirational.

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 1295

 HYPERLINK "http://www.umc.org/decisions/61964/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyJ9" http://www.umc.org/decisions/61964/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyJ9

CORRECTING A RECORD OF THE BOM

A retiree of the East Ohio Annual Conference rose to request reconsideration (recommit) of the “Business of the Annual Conference” passed during clergy session.  The bishop ruled it out of order and was not challenged.  The retired Elder then sent a brief outlining the Disciplinary violations involved in the case of a provisional minister being discontinued.

The Council had to refuse jurisdiction since no question of law or request from declaratory decision had been noted as floor action entered in the minutes in the conference journal.  An individual may not bring a request for Council action without using the Disciplinary mechanisms available.  The issue had been raised as a parliamentary motion which, when ruled out of order, was not challenged.

The retired Elder’s heart was in the right place but he made several mistakes in trying to find justice in a situation of a colleague.

What is often the case going into a clergy session is that no one knows a pastor is in trouble.  The pastor that is being removed from ministry is usually told by a Cabinet member (or three if that conference uses triads of DSs) that the pastor may not speak to anyone about it.  Since the “Business of the Conference” report of the Board of Ordained Ministry is not seen by anyone but Cabinet and BOM personnel prior to the gathering of the clergy session, the rest of the clergy are not alerted to a problem a given pastor may face.  The clergy session covers a lot of ground and it is not always easy to sort out what is happening when the chairperson moves the business along as fast as possible.  Most members of the clergy session are amenable to that because it is a tiring amount of business to pass on.

Presuming that is the scenario and that the retired Elder only found out about the provisional minister’s case when it hit the floor during the clergy session, here is what I wish the retiree had done:  

One: move that the pastor-in-question’s matter be acted upon separately from the rest in that category.  If it passed, then go to step two.  If it failed, move for a tabling of that whole category in order to give time to allow the Elder and minister to meet to discuss the issues involved.  It is important that if there is a question about process or facts related to the provisional minister’s case, that time be allowed to make inquiries before the vote. If that passed or failed, then go to step two.  

Two: request a ten minute recess so the Elder and minister can meet.  If it is granted, the two must meet.  If that is not granted, the Elder has to get to the minister as fast as possible during the clergy session.  If a vote on the category comes up and the minister’s name is still in it, then the Elder has to interrupt the discussion with the pastor and vote for the resolution!  That gives him the right to request reconsideration (to “recommit” in the terminology used in East Ohio) if the category passes.  As soon as the Elder has enough information about the case, he then goes to step three.

Three: as soon as possible, in the clergy session, make a motion to reconsider the category for the purpose of dealing with the provisional pastor’s case.  (All motions also have to be turned in as written motions, part of the paper trail the conference secretary needs for keeping the minutes accurately.  If the motion prevails, go to step four.  If it fails, go to step five.  So far, all of this has been parliamentary steps to try to bring the minister’s case before the clergy session.

Four: move that the name of the provisional minister be removed from the list for discontinuance.  (For every motion there needs to be a second so every advocate must make it a practice to second everyone else’s motion so the matter can be dealt with on the floor.  Even apparently trivial matters may be more important upon discussion than it may appear when the matter is first raised.  If the advocate seconds everything and encourages those around him/her to do it, then others will too.  Their help will be needed at this point because the Elder can’t second this/her own motion!)  The motion, if seconded, then gives the Elder a chance to report what may have been false information or improper actions taken.  The floor can then go into involvement.  After all sides have been heard, request that the vote be taken by secret ballot so that Cabinet members cannot intimidate those who might disagree with them on the case of the provisional minister.  If the motion passes, the provisional minister is restored and the Cabinet has to find an appointment for him/her.  If the motion fails, and the Elder believes an injustice is being done, then he/she must go to step five.

Five: move as a request for a declaratory decision under Paragraph 2610.2(j), given the steps taken by the conference, were those steps consistent with Paragraphs 327.6 and 363 and their proper application of the Discipline in the case of (name the provisional minister) whose change of status was voted upon in this year’s clergy session of the ______ Annual Conference, and who is responsible for pastoral support compensation for any time left without appointment?  If a second is given, the matter is open to discussion and amendment from the floor, though usually there is little of either.  Request a secret ballot and hope that you get a majority.  That would move the matter to the Judicial Council for their consideration.

Alternate five: raise a question of law under Paragraph 2609 asking the bishop who is to ensure fair process under Paragraph 415.3 if specific actions (list the errors of process) were consistent with Paragraphs 327.6 and 363 in the case of (name of provisional minister) before this year’s clergy session of the ________ Annual Conference, and asking who is responsible (see JCD 492) for any pastoral support compensation if the minister was left without appointment improperly for any length of time before being returned to ministry.

These alternatives overcome the barriers that would make them moot or hypothetical because they are dealing with matters involving actions by the annual conference and specific to a particular case where the answers to the questions affect the actions of the conference.  They also allow for the clergy session and bishop to right the wrong, leaving going to the Council as a last resort.

While the Council has tended to expect such matters to come under Paragraph 2610, they have accepted on rare occasion, questions of law under Paragraphs 51, 56.3, and JCD 1244.  Be sure to look up the Rules of Practice and Procedure of the Judicial Council, currently at 

 HYPERLINK "http://s3.amazonaws.com/Website_Properties/who-we-are/judicial-council/documents/jc-rules-of-practice-adopted-4-18-2015.pdf" http://s3.amazonaws.com/Website_Properties/who-we-are/judicial-council/documents/jc-rules-of-practice-adopted-4-18-2015.pdf

I hope to help them revise Appendix A relating to what is moot and hypothetical and what is within their jurisdiction.

Hopefully this advice will help in future cases.

JCD 1296

http://www.umc.org/decisions/61965/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyIsInJhbmdlLWZyb206ZGVjaXNpb25fZGF0ZSI6IjEwXC8yNVwvMjAxNCJ9

RETAINING THE COMMITTEE ON INVESTIGATION

North Georgia Annual Conference forwarded a request for a declaratory decision about whether the 2012 General Conference’s removal of the Committee on Investigation (COI) was constitutional.  They quoted a retired bishop who has been a trial court presider as saying that the COI transcript was invaluable to trial court presiders because it gave a helpful summary of the facts of the case and the nature of the procedures leading up to the trial.  They pointed to Paragraph 33 and JCDs 698 and 704 referring to the COI as integral to the judicial process.  And the Council looked at the fact that the COI was removed only for clergy but not for laity and bishops.  The decision was fairly straightforward and they declared the removal unconstitutional, noting that the previous Disciplinary passages from 2008 related to the passages removed were now in effect.

The General Board of Higher Education and Ministry, primarily the Division of Ordained Ministry (GBHEM/DOM), submitted a sweeping revision to simplify the judicial processes through a storm of petitions, something anyone doing individually (me for example) would be castigated and reviled for doing.  But the Council of Bishops wanted the changes and the money/time savings involved.

I confess to thinking there was some merit to eliminating the COI because it has been misused and usually been incompetent in serving the function for which it was intended.  The COI is not the same as a grand jury because the complainant and the respondent have the right to appear and to raise questions and bring witnesses.  However, many COI chairpersons have been advised to minimize anything from the respondent in order to make the COI become a grand jury, contrary to the Discipline.  By eliminating the COI, someone with some measure of competence at investigating and framing judicial charges, the conference chancellors, would be given the task along with the Counsel for the Church.  Chancellors could be trained at the annual GCFA workshops or at the National Association of Conference Chancellors annual gatherings.

Word has come back to me that there has been little or no interest in setting up or attending such workshops.  But I thought the idea might be an improvement over the COI process.

If that isn’t working anyway, I welcome this ruling.

Now if only the Judicial Council would also look at the transcripts of the COI as well as those of church trials and appeals, that would be even better.  If the trial court presiders like having that transcript, it should be part of the record, along with the evidence presented so that the Council can fulfill its first function upon appeal: Does the weight of evidence sustain the charge or charges (Paragraph 2715.7) as well as its second function, checking for vitiating errors of law.  The whole appellate system has restricted its attention to the trial transcripts alone and has refused to weigh the evidence presented on the fallacious notion that only those at the trial could weigh it.  The appellate bodies ignore how much the thumb of the bishop may be on the scales at the trial level.

The dissenting and concurring opinions indicate there was again something of a spirited discussion among the Council dealing with this decision.  The dissenters note that the lack of a specific entity such as the COI does not mean the constitution has been violated.  The concurring opinion appears in large part to be the working paper of the Council member about the case.  The majority chose simpler language for the decision.  However, this concurring opinion counters the dissenting opinion, especially arguing there would be no involvement of laity in the pre-trial processes as Paragraph 33 requires.  His telling of the legislative history points out that the two different legislative committees (Judicial and Ministry Legislative Committees) disagreed on the petitions that had been submitted on behalf of the bishops through GBHEM/DOM.  Interesting stuff.

The next General Conference will have to fight off another deluge of petitions from GBHEM/DOM intended to make life easier for bishops to run off pastors.  (Star Chamber procedures, anyone?  Star chamber procedures are closed and controlled by the powers-that-be.)  Expect to see the Council called on to straighten out the next batch of petitions that gets manipulated through General Conference.