JCM 1374

www.umc.org/decisions/79268

Not Our Problem

The Council did an interesting thing.  It clarified a line of appeal that had not been identified before.

Here’s the deal.  A West Ohio Committee on Investigation chose to strip out almost all of the allegations in the judicial complaint against a pastor on homosexuality-related charges.  

The Discipline allows the church counsel in such a case to appeal to the jurisdiction’s committee on appeals if he/she feels the process contained egregious errors of law.  

Upon that appeal, the jurisdiction’s committee ruled that the committee on investigation had done egregious things, remanded the case for rehearing, but then also “paused” any further judicial action until after GC2019.

That did not sit well with the church counsel, being anxious to prosecute this case so he appealed to the Judicial Council.  

Note that this appeal is an interlocutory one, seeking judicial action out of the normal order.  Normal order would have been committee on investigation-church trial-appeal to the jurisdiction-appeal to the Judicial Council.  

The Council honored the interlocutory appeal to the jurisdiction after the committee on investigation and before trial just like they did in JCD 1361.  In that case. they allowed an interlocutory appeal between the administrative review committee and the annual conference because that is what the Discipline says, not what conference officers wanted it to say..

And then the Council ruled on one more thing.  The Discipline says nothing about such an interlocutory appeal going on to the Judicial Council.  According to Par. 2715.10, appeals dealing with alleged egregious errors of law go only to the jurisdiction and no further, compared to other places where appeals are allowed to go to the Council (Pars. 2715.9 and 2718.3).

Oops!  Those who put together all the legalistic anti-gay legislation missed one.  (Update:  They caught it and added the Council at GC2019.  See JCD 1378, concurring opinion.)

And the Judicial Council “walked” without having to get involved.  While it appears this Council tends to be conservative in its majority, it is still a “rule of law” body and is pretty “strictly by the book,” as it should be.  No matter what ways we all wish the book were different and try to change it, at least the Council still goes by what’s there.

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.  

April 30 - Judicial Administration Petitions

Midas took care of my tire the first thing Monday morning and I got to Tampa only an hour later than usual. Pulling my travel case and wearing my red jacket, having gone through my entry routine, I headed for the plenary floor. One of the delegates from the Judicial Administration Legislative Committee came over to the edge of the bar of the conference and beckoned to me.

“Our committee dropped the Committee on Investigation for clergy but replaced it with one of your main concerns, verification of accusations,” she told me.

“CoIs never really did investigations,” I responded.

“Right,” she said. “Now conference chancellors who have at least beginning legal knowledge about the nature of evidence and validating complaints will be part of the initial response so that before there is any formal legal action against a pastor in the church, reasonably competent help will be given to be sure the complaint has merit.”

“And that means the chancellor can be called as a witness by the defense and cross-examined and probably can’t be assistant church counsel?” I asked. That had been a particular bone of contention in a recent trial I worked on.

“That’s what I understand,” she said. “When you see the legislation, some of your other ideas were included even though your specific petitions will appear in the DCA under non-concurrence.”

She said that conference chancellors meet every year for training and that working on evidence would be a topic of review as part of those meetings. “I think there will be better verification of accusations in the future. We kept the Committee on Investigation for bishops, deacons, and laity because those categories rarely are ever exercised. I thought you would want to know about all this,” she concluded

I thanked her sincerely. I wish all my petitions had been integrated into the new legislation that, she told me, would be on the consent calendar and probably pass before the end of the day. But I’ll take any victory I can get.

While I have seen a reconstruction of the work of the committee and was unable to find anything else I may have influenced, I await the final publication into the Discipline. None of it goes into effect until January 1, 2013.

JCM 1177

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1297&JDMOD=VWD&SN=1100&EN=1189

This is one of those kinds of rulings that drives advocates nuts. Arcane laws disrupt what should be a clear decision. Having done some consulting on this case, I share the advocate’s frustration.

This Philippines case has been brought to the Council three times before on other matters (JCDs 1149, 1152, and 1162).

What the Council does not (or cannot?) say relates to the six items the committee on investigation acknowledged. The committee simply said that those six items identified that someone brought accusations. When it came to the specific items that were the allegations, the committee did not accept them as true and so they dropped the case and did not forward it to trial.

That would ordinarily end the matter. The church may not appeal a decision favorable to the respondent unless egregious errors were made. The Council figured failure to report the committee on investigation’s ruling on the two other charges was worth something. I wish they had specifically remanded the case back to them. By being unclear about that, the advocates and the church were left in limbo.

The college of bishops used a request for a declaratory decision on the legality of the committee on investigation’s failure to forward the charges instead of appealing to the central conference appellate committee, essentially circumventing the Discipline’s block to a church appeal.

Instead of calling the action of the college of bishops an inappropriate way to get around a decision in the judicial process, the Council used their jurisdiction requirements to avoid a decision.

Again, the Council did not call upon anyone to report back to them, though that would have been hard to justify if they felt they had no jurisdiction. And if they had no jurisdiction, they could not really comment in a ruling about the end-run the college of bishops was trying. I wish someone had written a concurring opinion which spelled out in a little more detail some of the problems within this case. But who had time given this busy docket?