Associates in Advocacy now has two sites on the internet. Our primary help site is at http://www.aiateam.org/. There AIA seeks to offer aid to troubled pastors, mainly those who face complaints and whose careers are on the line.

Help is also available to their advocates, their caregivers, Cabinets, and others trying to work in that context.

This site will be a blog. On it we will address issues and events that come up.

We have a point of view about ministry, personnel work, and authority. We intend to take the following very seriously:


Some of our denomination's personnel practices have real merit. Some are deeply flawed. To tell the difference, we go to these criteria to help us know the difference.

We also have a vision of what constitutes healthy leadership and authority. We believe it is in line with Scripture, up-to-date managerial practice, and law.

To our great sadness, some pastors who become part of the hierarchy of the church, particularly the Cabinet, have a vision based on their being in control as "kings of the hill," not accountable to anyone and not responsible to follow the Discipline or our faith and practice. They do not see that THE GOLDEN RULE applies to what they do.

If you are reading this, the chances are you are not that way. We hope what we say and do exemplify our own best vision and will help you fulfill yours. But we cannot just leave arrogance, incompetence, and ignorance to flourish. All of us have the responsibility to minimize those in our system.

We join you in fulfilling our individual vow of expecting to be perfect in love in this life and applying that vow to our corporate life in the United Methodist Church.

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

If you have any questions or suggestions, direct them to Rev. Jerry Eckert. His e-mail address is aj_eckert@hotmail.com. His phone number is 941 743 0518. His address is 20487 Albury Drive, Port Charlotte, FL 33952.

Thank you.


Tuesday, January 11, 2011

Observations about the Judicial Council

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

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


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.

JCD 1048


Because of JCD 799, advocates are restricted in challenging bad decisions and actions by church leaders from the use of questions of law directed to the bishop. Questions of law had been the tactic of choice since the 1980s to counter the growing number of badly handled judicial and administrative processes widely used to remove ministers.

Questions of law were an effective tool because one individual could raise them and they would be reviewed by the Judicial Council. There was no floor debate about them and bishops usually did not need to provide an answer until after conference when they would be published in the conference journal which is rarely read. Since questions of law needed to be presented to the bishop in writing and recorded in the minutes, no oral presentation, which could have been embarrassing to officers or the person subject of the questions, was required by the Discipline.

With the question of law tool no longer allowed because of JCD 799, advocates then had to take other routes to raise questions that could try to halt bad actions. The tool of choice became the request for declaratory decisions. The advantage was that the bishop was not required to answer them. Another important trait of this process was that it could be prospective, not requiring a specific action to have occurred before the questions could be raised. To avoid being hypothetical, the questions had to relate to something confusing in the Discipline which needed clarification if that paragraph was to be used in a situation pending or likely to happen. The disadvantage was that to get the questions before the Judicial Council, the conference had to provide a majority vote. Further, the questions could be discussed on the floor of the conference as part of the preparation for the vote, possibly to the embarrassment of the bishop or others.

The case behind this decision occurred in the following way. A pastor facing charges chose to go into a just resolution process where agreement was reached by the respondent, the complainant, and the Committee on Investigation. However, the bishop did not like the resolution because it was not harsh enough so he insisted the agreement be abandoned and the case continue to trial. Coincidentally (?), the trial came out the way the bishop wanted….

After the trial, some of the parties-at-interest pursued a declaratory decision about the authority of the bishop to undercut a just resolution.

The questions were raised and forwarded by vote of the conference. Briefs were filed by the questioners. Just before the deadline for briefs, a hand-written note from a retired bishop was received by the Judicial Council. It had not been sent to the parties-at-interest as required by the Rules of Practice and Procedure of the Judicial Council.

The Judicial Council used the arguments contained in the retired bishop's letter to formulate its decision.

Not only did the Council refuse to look at the authority of a bishop to disrupt just resolutions, it also closed the door on the use of requests for declaratory decisions saying they could not be prospective, thus making the passages of the Discipline about that option meaningless.

Advocates have one less tool for helping the Church clarify and follow church law.

This decision shows five major weaknesses to which the Judicial Council can be vulnerable.

One, it allowed a document submitted secretly to be used without a proper chance for rebuttal by the parties-at-interest.

Two, the main precedent cited, a previous JCD, was misquoted. That decision had actually allowed for prospective clarifications of church law by the Council. Neither the team of the Council who dealt with the case nor the retired bishop who sent in the secret letter bothered to read more than the one sentence of that decision quoted in the secret letter.

Three, this decision was one of twenty-one the Council faced in the fall of 2006 and it is clear none of the members read with any comprehension the cited JCDs used as precedents.

Four, neither of the other two JCDs cited were germane to the issue. Their numbers were simply pulled off a list.

Five, the Council cited no provision of church law to support its ruling that a request for declaratory decision must include a "factual context." The secret letter which the Council received referred to an incident out of which the request arose, though this incident had not been mentioned in the request itself. Nevertheless, the Discipline does not require that a factual context be provided. But now it is required, thanks to the activist/overworked/inept court who made this decision.

One member of the Associates in Advocacy has said that appeals courts identify the political resolution that satisfies those they think are their constituency and then tries to find a legal rationalization for that ruling.

If there is any decision of the Judicial Council that illustrates this kind of cynical approach to justice, it is JCD 1048.

Update: Another associate has pointed out that the Judicial Council had grounds in JCD 799 to overturn the bishop’s action of disrupting the just resolution because it is a part of the judicial process. Once the judicial process has been started, JCD 799 ruled that the bishop is out of the loop and should remain so. Just resolution is part of the judicial process. Unfortunately, the Council has not seen it this way…, yet.

JCD 1094


The case behind this decision is of a pastor facing allegations of sexual misconduct (perceived unwanted touches and hugs, perceived suggestive comments, etc.) which if true should have received appropriate sanctions.

Church law does not have the civil court equivalent of an “Alford Plea,” a non-admission of guilt but acceptance of a guilty verdict because proving otherwise would be very difficult. This is very popular with insurance companies bonding the accused professional because they then do not have to face the cost of a trial they might lose. The pastor under accusation had been accused of misconduct a number of years earlier and may have felt that prejudiced any chance he had of successfully defending himself against the accusations of five women from his church, two of whom were on staff with him. He chose to seek a just resolution, as provided by the Discipline, in order to withdraw from the situation without the cost and stress of facing trial under the circumstances. The process did develop a resolution to which the pastor agreed. For reasons not made evident in the text of this decision, he requested withdrawal from the resolution, which was granted. He then faced trial and was convicted. Having failed in an attempt to use questions of law to resolve many Disciplinary violations he perceived had occurred, he took his questions to the presiding bishop of the trial who claimed he had no authority to respond to them. On that ground, the trial should have been remanded since the appeal process requires,as the Council pointed out, that the presider at the next level to respond to pre-trial objections.

While I had nothing to do with this case and have no more facts about it than are included in the decision’s text, full disclosure requires that I say that I was a consultant in the earlier case and had access to the evidence and provided suggestions for the pastor’s use at that time. He returned to ministry after a period of “punishment.” In the decade and a half that followed, there were no more accusations until the ones from the group of women arose. And their accusations did not match the "MO" of the earlier one.

The Judicial Council received the case after the jurisdictional appeals committee ruled against the pastor and he chose to pursue his appeal.

They did not respond to all of the pastor’s many appeal questions. Their rulings on the ones they did answer were mostly clear and cogent. But four stood out to me:

First, they acceded to the trail court as being the best to weigh the testimony. Despite having the transcripts in their hands to cross-check what each witness said against the specifications and to develop a timeline which might have supported testimony of the pastor (or not), they simply refused to do any analysis of the transcript, leaving the decision about the value of the accusers’ words to the trial court. They did not use their advantage of separation and non-investment in the trial to be sure the witnesses were really credible.

Second, they acknowledged they and the appeals committee were responsible for weighing the evidence. While not pointing to any evidence the church brought to support the allegations, the Council asserted the evidence sustained the charges.

Third, they focused on the value of the witnesses and evidence with respect to the charges but not to the specifications. Specifications were not mentioned in that part of the decision. But the Discipline is clear there can be no charge if there is no specification which supports it.

Fourth, while being clear that specifications are there for the Church to prove, the Council again acceded to the trial court as to whether or not the trial court thought the testimony and evidence were convincing, not whether the Church proved the respective specifications. By so doing, they removed the burden of proof from the Church and left it in the hands of the trial court, making meaningless their assertion that the Church had to prove specifications.

Because of the milieu in which we operate as a church, we do not want to be compared with the Roman Catholics who have lost in civil court over accusations of pedophilia and other sexual misconduct. Many years ago, after a flurry of law suits against our Church over alleged sexual misconduct, the General Counsel for the United Methodist Church went around the country urging that all allegations of sexual impropriety be handled as true. While her intent may have been to keep such allegations from being swept under the rug, the impact has been that church leaders take all allegations as true, presuming guilt (which is contrary to the Discipline).

As this review implies, the pastor may not have been guilty of anything but we do not know. The Judicial Council has not shown in this ruling that it even gave any thought to the possibility that the trial court was unfair in any way nor that testimony and evidence proved anything specific. That sets a dangerous precedent.

Summary Remarks

The task of the Judicial Council is almost impossible. It has hurdles which mitigate against being fully just on many matters, especially those related to personnel where the resident bishops have a major stake, either because of culpability, fulfilling a need to control, or protecting the Church from law suits.

The Judicial Council is a very human entity, subject to ignorance of the intricacies of church law (over 1150 decisions made over seventy years and Disciplines up to 850 pages long and changing every four years) and having no research staffs to help them.

How tempting to count on trusted bishops, to relinquish complicated responsibilities, to fall into a “save the institution” mentality under the stress of increasing workloads.

Reviews of decisions since April of 2009 may show how much this Council has learned and matured. Those will be addressed on this blog next.