JCM 1354

www.umc.org/decisions/74482

No Jurisdiction, same as JCM 1347

The California Pacific Annual Conference tried the same tactic as the Denmark Annual Conference.  A request for a declaratory decision needs to relate to something specific before or pending before this annual conference, which was not shown in this case either.  But the Council rejected Cal-Pac’s attempt for an additional reason.  

The Council clarified something that has not always been clear: how many votes are needed to pass on to the Judicial Council a request for a declaratory decision.  The minutes referred to “one fifth” of the members present as the required vote but the Council pointed out that without a specific level of vote identified, the number would be one more than half of the members present and voting.  

The minutes did not include the number of votes involved so it had no way of knowing that the vote was actually sufficient.

By refusing jurisdiction, the Council indicates it does not resolve theological issues nor determine if our theological standards have been illegally changed.  If someone can somehow get into a situation on which a conference must act that involves a theological issue, then the Council might be able to take jurisdiction.  But what could that situation be?

Because of the narrowing of jurisdiction by the Council’s understanding of Church law, it appears the legality of a phrase like “is incompatible with Christian teaching” is up to the General Conference through legislative action.  Or do we leave that to the bishops too?

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.  

JCM 1304

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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 1254

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1375&JDMOD=VWD&SN=1201&EN=1259

“LEGISLATIVE MANDATE” OR “LEGISLATION?”

The bishop of the California-Pacific Annual Conference was asked if a resolution asking that a portion of the Social Principles be ignored was legal.  She ruled that because the Social Principles were for thoughtful and prayerful consideration and were not law, the resolution was not illegal.  

The Council majority agreed and said that the difference between her ruling on this question and the ruling in JCD 833 where a portion of the Social Principles was indeed law is that the other Social Principles statement was a mandate to action while the portion relevant to the instant case was not.

The three members of the Council from outside the United States disagreed, saying that there is precedent in JCD 1120 which says that anything passed by General Conference cannot be legally ignored by action of any other body of the denomination.

The Council acknowledged that members of the denomination disagreed with many portions of the Social Principles such as those related to gun control and war.  That was okay because, concurring with the bishop, the Council sees most of the Social Principles were a call for “prayerful dialogue.”

From what I heard at General Conference, a lot of church people in the Central Conferences find literalism more secure and have a hard time with the attitude that they see in America regarding “loose” interpretations of everything.  But I also remember very well some thoughtful leaders from Africa and Asia that were very calm about differences and were willing to question us in detail about our differing views on things like homosexuality.  The United Methodist Church is in flux all over the world, not just here in America.

Watch for who signs which concurring and dissenting opinions and you will see these dynamics reflected.

JCM 1232

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1354&JDMOD=VWD&SN=1201&EN=1240

RECONSIDERATION OF JCM 1217

This memorandum relates to reconsideration of JCM 1217, a request from California-Pacific Conference.  Again the Judicial Council decided not to reconsider and, as usual, did not offer any rationale that might help us.  At issue in JCD 1217 was the request for recompense for the respondent based on P 2701 during appeal.  In 1984, General Conference voted that the suspension of a pastor lasted through appeal and the pastor was owed his support package until the end of the judicial process.  Some of that wording remains in P 2701 and 2704.3 (2008 BOD).  However, another passage was added to the Discipline more recently which says that a pastor’s rights end upon convection and removal from ministry, thus removing his right to pastoral support during appeal, a financially devastating circumstance to the respondent, especially if the results of the trial court decision was mixed.  The Council ruled the request should have gone to the trial court before the trial ended rather than to the jurisdiction’s appellate committee and then to the Council.

At issue, I suspect, was the mixing of civil and church law.  In civil law there are appellate processes that can be used without completion of a trial, such as possible prejudice of the judge, improper procedures used by the prosecution that are prejudicing a case, and so forth. and I wish the Council would take time to explore the differences so that confusion over them would not persist in our system.  With so many secular lawyers on the Council, it is hoped that there would be serious discussion and review of the differences rather than just allowing the continuation of blurring the two.

In the earlier case in which I participated before the Council, one of the issues was over the necessity of objections in church trials in order for an issue to be subject to appeal.  We argued that in every other appeal situation within the church, objections could be raised after the actions were completed and were not required during the respective processes.  We argued that since our denomination does not have a way to appeal based on incompetent counsel, being a church system of justice, we allowed for objections to be raised after the fact upon reasonable reflection (PP 2706.3, 2708.3, 2715.1, 2715.7, and 2715.9).  Even P 2710.6 does not add that objections are required for appeal.  In our case, counsel chose the strategy to not object.  Being a church trial, even that strategy was thrown to the winds on several occasions and objections were raised during sidebar conferences off the record and then not brought up on the record afterward.  The Council was not convinced by our argument because there was no record and ruled that objections on the record at the moment of the action were required   This uncritical mixing of civil court proceedings and church proceedings is most unfortunate. 

Hopefully, future Council sessions will be wise enough to clarify such differences where it can do so rightly, and the General Conference can do what it must to sort out such differences.

JCM 1217

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1343&JDMOD=VWD&SN=1201&EN=1229

JURISDICTION OF AN APPELLATE COMMITTEE OVER AN APPEAL RELATED TO COMPENSATION OF A RESPONDENT DURING APPEAL

A counsel for the respondent in a case from California-Pacific Conference requested an urgent ruling on whether the respondent was due compensation during appeal. The Western Jurisdiction, which had not elected a committee on appeals, turned the request over to the committee which was elected in 2004, whose chairperson refused jurisdiction before the urgent request could be argued. The counsel then forwarded his request to the Judicial Council to get them to urge the jurisdictional committee to hear the request and consider it.

The Council also refused jurisdiction and supported the jurisdictional appellate committee chairperson’s right to refuse authority to make a decision.

The Disciplinary issue behind this request is the problem of which paragraphs to take as having priority.

Is the Conference obligated to help a pastor found guilty by a trial court by providing pastoral support during appeal as seems clear from reading P 2701 (“The judicial process terminates at the end of any appeal or right of appeal.”) and P 2403.3c (“…the bishop may suspend the person from all clergy responsibilities pending the outcome of the judicial process”)?

Is the right to pastoral support terminated by the trial court’s finding of guilty as stated in P 2711.3 (“The penalty fixed by the trial court shall take effect immediately unless otherwise indicated by the trial court.”)?

The Council’s decision says that this question, while it clearly shows a difference between the two passages on one side and the passage on the other, is not properly before them or before the appeals committee of the jurisdiction. The ruling is that the question should have been raised with the trial court presider and trial court itself at the time of the trial.

The Council said further that it will not enter into a legislative decision, choosing between the disparate passages, but urged referral of this matter to the General Conference to sort it out through the legislative process.

Meanwhile, the even though the trial court’s decision was mixed like the case in Wisconsin (JCD 1215), the pastor is left on his own with no means of support to be able to afford to appeal, let alone to survive. Something is wrong with this picture.

Note: In a case I worked on, this issue was said to be resolved by a member of the Judicial Council who asserted the priority of P 2711.3. The Council refused to deal with my objections at the time. The counsel in this case is well known to me as one of the most astute advocates for clergy in the denomination. But neither of us thought to consider that part of P 2711.3 which says “unless otherwise indicated by the trial court.”

This is why church law drives many of us crazy. It is a mix of church and civil court practice not always clear in how it is handled.

At least now there is a precedent which directs advocates to the place to raise this issue. In this case, the trial court would have had to face the two alternatives the Discipline provides. It could have deferred to the General Conference as the Council has done here. Or it could have made a decision based on the mixed results of the trial it had just concluded.

Hopefully, advocates will learn from this.

JCD 1220

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1338&JDMOD=VWD&SN=1201&EN=1229

RENOUNCING GENERAL CONFERENCE’S STANCE ON THE LGBT COMMUNITY

A resolution passed by the California-Pacific Conference was challenged by a request for an episcopal ruling of law. The resolution renounced the stance of the General Conference with regard to incompatibility of homosexuality with Scripture and a number of other points of church law related to the LGBTQ community. The other stipulations had to do with affirming the sacred worth of those folks, building inclusive communities with them, and inviting churches and individuals to live out these principles.

The Bishop supported the whole resolution as aspirational. The Council supported him on all but the first stipulation and only those parts of the fourth stipulation related to the second, third, and fourth.

You can read it by going to the website for Judicial Council Decisions at http://archives.umc.org/interior_judicial.asp?mid=263
And then click on “View the Current Judicial Council Docket” where you can scroll down to Docket Item 1012 – 18.

The Council pointed out that a conference can “announce” or “denounce” but it may not “renounce” without stepping over the line on relating to a church law.

To those in the world community, including the ones in the United States and Western Europe who do not agree with this resolution, you will see it again and again in coming years in some form or other. I pray for the day when people on both sides of this issue can understand why these resolutions will keep coming and how they can possibly be worded to reflect a consensus. As long as there is the stance that “We are right so you cannot possibly be,” the best we can do is to not let it turn into a stumbling block to our being in mission together.