The Judicial Council was severely criticized for a decision with an analysis that introduced a new legal term, “rebuttable presumption” and some other legal interpretations that were not completely argued. I pointed out there were signs that the decision, which printed out to 26 pages, was edited down from a much longer document. I believe the Council decided not to make that mistake again. JCD 1366 prints out to nearly sixty pages. The very length led me to skim the decision when I worked on those commentaries in order to provide a general statement of its consequence rather than analyze it as I tend to do in most commentaries.
By doing that, I missed a major concept, the “principle of legality” and several significant examples of what that concept means.
On page three is the primary paragraph where the principle of legality is stated and illustrated. Here is that paragraph:
“As a tenet of United Methodist constitutionalism, the principle of legality means that all individuals and entities are equally bound by Church law, which shall be applied fairly and without regard to race, color, national origin, status, or economic condition. It forbids selective or partial enforcement of Church law at all levels of the connection and demands that The Discipline in its entirety be followed without distinction. All decisions and actions by official bodies and their representatives must be based on and limited by the Constitution and The Discipline. Individuals must be informed with specificity and clarity as to what is prescribed and proscribed by Church law. No person or body can be required to act contrary to Church law or prohibited from engaging in lawful conduct. No person can be punished for actions and conduct that are permitted or required by Church law. Clergy persons whose credentials and conference membership are at stake have the right to know what to expect when they choose a course of action or take a particular stance on ordination, marriage, and human sexuality. To pass constitutional muster, any proposed legislation affecting clergy rights must define with sufficient clarity and specificity the standards to guide future actions of all concerned persons and entities.”
Most simply stated, the principle is that where there is church law, all are subject to that law.
As an advocate, it has been clear that church law is applied unevenly, that parts of it are ignored when pastors, boards, or bishops feel inconvenienced by it, and when even appellate bodies, including the Judicial Council, disregard parts of church law that they don’t want to deal with.
I could write a book about such things.
I could also write a book if I were to go down the paragraph quoted here line by line.
But for the supplement, I want to briefly address only one sentence.
“Individuals must be informed with specificity and clarity as to what is prescribed and proscribed by Church law.”
For the forty years or so I’ve worked in advocacy, nearly all of that time respondents have asked what the steps were that they faced in the administrative or judicial processes. The answer given in meetings with the bishop was one of three things: no answer was actually given, a sketch developed by a general agency diagramming the multiple steps in a way only the diagrammer really understood, or the pastor was directed to the Discipline and told it was all in there.
During the height of the United Methodist “Me Too” movement in the 1990s when there was a lot of effort put into how to handle sexual misconduct allegations, GCOSROW developed a comprehensive and effective description of the steps that should be taken. That is still in the GCFA Legal Manual. But not long after that, Paragraph 334.3 was introduced in the 2008 Discipline to provide for step by step documenting of incompetence/ineffectiveness so that when a complaint against a pastor of those flaws were finally brought, there would be a paper trail showing warnings, attempts at remediation, and results of those efforts. This pattern of helping someone with effectiveness issues came out of the federal law which requires such supervision before a person could be fired.
In every case with which I have dealt for the past decade, there has been no such recognition of the place of Par. 334.3 in handling of administrative complaints and no reasonable documentation.
A colleague pointed out that in her search of several annual conferences standing rules, only one (South Carolina Annual Conference) actually has a statement that expands on Par. 334.3 of what church law provides to its pastors. The best part of the statement is the list of resources and mentors to help.
Based on the Council’s call for such statements of procedures, I urge annual conferences to examine Par. 334.3 and then lay it out in plain language. A list of resources should be included. With the steps laid out for seeking a change of status of pastors facing complaints of poor pastoring, the cabinets also have the benefit of such guidelines.
The new appellate process for those who have been dropped from ministry for poor pastoring, found in Par. 2718.3-.4, also needs to be noted in the statement of procedures, especially in light of JCD 1361 which allows the appeal to go to the jurisdictional appeals committee BEFORE going to the annual conference.
I anticipate that most annual conferences will be able to develop these kinds of statements relatively quickly, once several models have been adopted and then shared among the conferences.
If history means anything, there will be several conferences where no such statements will be developed because certain bishops will much prefer using the administrative track to remove pastors they do not want in their conferences or who have violated the Discipline’s chargeable offenses (Par. 2702.1) instead of going to trial. There still are some bishops who believe in their right to fire clergy at will and cover it by hiding behind involuntary leaves, locations, and retirements.
The more conferences develop statements of procedures, the less that kind of abuse is likely to occur.