Observations on Recent Judicial Council Decisions

 I have not regretted going over a year without commentaries on Judicial Council Decisions.  Most of the issues before the Council were of how best to allow separation from the denomination by discontented pastors, bishops, churches, and conferences over gay rights.  Those decisions regarding separation have been carefully and thoughtfully described by Heather Hahn of the United Methodist News Service in her respective articles at the time of their publication by the Council.  I really had nothing to add regarding the meaning and legality of Paragraph 2553 and related paragraphs allowing withdrawal.

I have temporarily passed over the decisions on other subjects.  I hope to address those in the near future.

 

I complained privately that the whole issue of splitting the denomination was distracting us from global warming, THE crisis facing humanity.  A recent Council of Bishops was reported as incidentally looking at climate change and I realized I had to say something publicly.  

I knew the bishops were stuck in various levels of litigation over separation.  If I was going to get them to shift priorities (dropping so much of the other stuff they are expected to do) and build up the denomination, I needed to offer some specific steps to consider to do that building and finally offered some vignettes to encourage use of those steps.  I hope my letters to the bishops was of help to them.  

Part of saving the planet, besides facing up to global warming, is establishing a stronger church so that we can work together better and so that we can lean on each other through the tragedies of floods, fires, and storms that are upon us and yet to come.

The Judicial Council has little opportunity to deal directly with global warming because there is little church law dealing with it.  Once General Conference provides appropriate laws, the Council will be able to get involved.

Commentary on Judicial Council Decisions 1400 to 1418

 

Introduction - The following observations are intended to encourage you to read the decisions of the Judicial Council (JC or 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.

 

Since the March 18, 2020, posting on this blog, the world has experienced a pandemic that has killed over a half million Americans and more than three million world wide. The world has not yet shaken it off and certain elements in the US are refusing to deal realistically with the danger, leaving everyone vulnerable to new variants of the virus that could overcome therapeutic work that has been successful in combating the disease and also refusing vaccinations with the same potential effect. As a result the Judicial Council did not meet until this winter and spring and General Conference has been postponed several times and is to be held August 29 to September 6, 2022. Some of the Decisions reflect that reality. As local churches have had to use computer-facilitated virtual gatherings, so all church agencies have used Zoom and other communication systems to meet from the members’ respective homes. Whether or not such uses of technology have been a blessing remains to be seen. The Council has had to meet virtually and the results are described below.

 

History -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 over the years covered in this blog.

 

Any questions? - 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.

Terminology - The phrase “the Council” when used refers to the Judicial Council. As noted above, I will occasionally use their initials (JC). The Council of Bishops has become a frequent petitioner in recent years. Especially so this session. They will be referred to as the “Bishops” or “COB.”

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 report refusal to take jurisdiction, remand, or show a question is not legally appropriate under the Discipline or Council rules. On rare occasions, the Council may provide their rationale in a memorandum.

 

Referring to rulings - 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. The website was redone this fall so there may be a problem using the older URLs. 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 commentary on the decision which is of interest to you.

Finding things – There are three good sources for finding a JCD or JCM that you think exists or hope does. Associates in Advocacy (AIA) indexes, the JC website search function, and the United Methodist News Service (UMNS):

 

AIA indexes –AIA publishes updated indexes of all Council decisions and memoranda. If you are interested, contact Rev. Michael Brown, 158 Saxony Ct., Vallejo, CA 94951.

 

Council website search function - The Judicial Council website now offers a search function which covers every JCD since 1940. Go tohttp://www.umc.org/decisions/search. The web page gives you several options for finding any decision(s) you may want. To go to a listing of every decision, leave the boxes empty and just click on the “Search” bar. To follow up on a theme such as “separation of powers,” or if you remember a short phrase from a decision, or know the conference or a person involved, type that into the “Keywords” box. Then click on “Search.” To go to a specific decision by number, ignore the “Keywords” box and type the number into the “Decision Number” box and click on “Search.” Follow the instructions given on the page to search based on other things like approximate date of the decision. Clicking on “Search” for all these options provides a list of possible decisions. Scan those listed to find the most likely decisions that can be of help to you. To get into a decision itself, click on the red text.

 

Once into the text of a particular decision, you will not find your phrase highlighted. To highlight a key phrase you search for, do “Ctrl f” on PC compatible computers or “Command f” on Apple computers. That gives you a drop down box at the top of the page. Type in your phrase, click on “Enter,” and the phrase will be highlighted in that decision.

 

UMNS - Another source of help to find and understand particular decisions, I found articles about people and decisions in United Methodist News Service underwww.UMC.org. I clicked on “News and Media” at the top of their page, clicked on “United Methodist News” to get to their home page and then clicked on the magnifying glass icon in the upper right hand corner. That opened a box at the top of the page. I could put in key words, names, or numbers followed by clicking on “Enter.” The search function will let you know which articles had that content. There are articles going back as far as 1952, though the articles are not in chronological order. I do not think every article has yet been digitized and posted on the site.

 

Concluding remarks -Hopefully, my commentaries on this blog will be a valued resource in your search for understanding church law and its contexts. I also hope my directions for navigating in UM sites will help you in your research on the work of the Judicial Council.

 

All my commentaries on Council decisions are subject to editing, updating, and revision.You may want to check back from time to time on decisions of special interest to you.

 

DISCLAIMER:The opinions expressed in this blog are solely those of the writer and are not necessarily those of Associates in Advocacy nor its individual members. While the writer has made it a practice of letting AIA’s officers see these commentaries prior to their being posted on the blog, there have been no endorsements by them or the organization now or over past years.

JCD 1401

 JCD 1401

 

ee.umc.org/decisions/81527

 

Who Investigates Cheating at General Conference?

 

At the 2019 special session of General Conference, in a 402 – 400 vote, the General Conference shifted from a moderate framework for how churches and conferences could separate from the denomination to a framework preferred by conservatives (“traditionalists” who are anti-gay in orientation).  When that became the main motion, it passed with the vote that was similarly extremely close.  

 

After General Conference adjourned, word began circulating that there were irregularities in the voting.  Since General Conference was not in session and would not be until 2020, the administrative body that cares for General Conference matters between sessions investigated the claims.  After six months, the Commission on the General Conference came to the conclusion that there had been cheating.  On the presumption that they could act on behalf of the General Conference just as a church council acts on behalf of the charge conference between its annual sessions, the Commission declared the two motions passed by the close margins null and void.  

 

Even though it had authority to refer their decision to the Judicial Council under ¶2609.4, it chose to request that the Council of Bishops might have more clout and not be questioned as to having standing to bring the commission’s decisions for review before the Council.

 

The Council postponed acting on the request because they did not have enough information and gave both sides time to gather their resources.

 

When they finally dealt with the commission’s ruling, despite apparently having in their hands the evidence of the questionable votes, the Council hid behind their unfortunate thought that they do not have to deal with evidence but only with irregularities of law.

 

I find that counter to JCD 595: “The Judicial Council has the authority to determine factual matters which are essential to decide the legal questions involved.”  It is also counter to the Discipline: ¶2715:7 “a) Does the weight of evidence sustain the charge or charges?”

 

By ignoring these points of law, the Council leaves itself open to ignoring the facts and thus making a bad decision.  I am reminded of another case before the Council some years ago when it ignored the evidence in the record where a woman claimed she had had sex with a pastor on several specific dates and times only to have the phone records she submitted show she was actually on the phone with him from forty miles away each of those times.

 

Justice is lost when the appellate body feels it may ignore the facts.  

 

I do not know how much evidence was available to the Council but it is highly likely that the commission would bring everything it had.  And that would have to be the evidence that led them to their conclusion that the votes had been flawed.

 

The Council has essentially eliminated the commission from being able to do its job of oversight when someone cheated and has left no path for such violations to be dealt with.

 

I have a great deal of respect for the Council’s usual path of going by the book.  In this case as in a few others over the years, it did not open the book wide enough.

JCD 1402

ee.umc.org/decisions/81528

 

General Conference’s Authority Vs Pastoral discretion

 

The Michigan Annual Conference raised an interesting question.  Is the choice to participate in a same-sex union ceremony or wedding a”distinctively connectional matter?”

 

The question forwarded to the Council does not indicate as opposed to what other kind of matter it could be.  I do not know what was in the brief of the appellants but I would have pointed to ¶340.2a(3) which says “The decision to perform the ceremony shall be the right and responsibility of the pastor.”  

 

Nothing there about intrusive laws passed by General Conference. . . .  

 

Every pastor that I have heard about who went ahead despite what General Conference imposed on the kinds of marriage pastors may perform did so because their pastoral sense of dealing with the individuals asking for a gay ceremony was to support the couple and perform the celebration.  In the face-to-face setting of pastoral care, the human needs have prevailed over church law.

 

As the number of decisions cited by the Council to nail down their ruling indicates, the matter of what was distinctively connectional has been challenged frequently over the years.  From the time when the abstention from the use of tobacco and alcohol was mandated by General Conference through annual conferences adding educational requirements beyond what the Discipline says to one jurisdiction trying to tell another what to do about a gay bishop, there have been questions raised.  And the Council has upheld the General Conference’s authority on such personnel matters.

 

The General Conference sets the policy, the annual conferences enforce them.  The pastors find “work-arounds” when the policy appears to them to be onerous.  And after each judicial testing, everyone tries to work toward what each thinks perfects the Church in love by working within the framework of church law and democratic processes.  Well, most do.  

JCD 1403

ee.umc.org/decisions/81529

 

On Who May Direct Delegates

 

Baltimore-Washington Annual Conference was challenged for trying it.  Efforts by annual conferences to give directions of any kind to delegates are forbidden under church law.  Some groups in bodies that send delegates to General Conference have wanted to control their vote.  They have seen how, occasionally, individuals elected have not voted as expected.  The reason they wanted that delegate who did not follow through as anticipated became to them a wasted effort and a set back for their agenda.

 

But the Judicial Council has struck down every such attempt because of the principle that they are “delegates” and not “representatives.”  Representatives are expected to vote the way their constituents ask them.  Delegates are to be free to evaluate and integrate any new information that comes up in the considerations of the body to which they are delegated to participate and vote their conscience, rather than whatever bias their constituents preferred.

 

This time, though, the issue was not as much content as degree of participation.  Apparently, the delegation did not always participate in General Conference meetings and the annual conference wanted to be able to require participation.  The Judicial Council, in its rationale and two concurring opinions, strongly struck down even that degree of control of their delegates, leaving enforcement of taking part in the hands of the General Conference.

 

Having attended many General Conferences as an observer, I do not recall there being “attendance police” grabbing delegates from the cafeteria and dragging them up to plenary.  I confess to finding much of what happens in the sessions of the full gathering to be a “dog and pony show” instigated by the Council of Bishops to promote their agenda rather than allow full discussion of some of the key topics before the assembly.  I’d seen it happen at annual conferences and can understand why delegates could slip out just to get away from the propaganda or other waste of what little time they had for real dialogue.  That allowed me time to meet with some delegates on the side during plenary, which I found to be helpful as I advocated for fair treatment of clergy and better legislation.

 

Most delegates were good about attending.  I seldom saw many empty seats among the delegations, except up in the front where the bishops could sit.  Up there, only a handful of bishops were usually present and they sat close to the presiding bishop in order to be available in case the presider needed to consult about managing a knotty issue before the “house.”  Otherwise, bishops rarely attended the legislative sessions.

 

Delegates have to be free to change their vote or they would become obstructions to the body being able to make a decision.  Delegates have to be free to come and go as the circumstances of the General Conference move.  Annual conferences rarely send irresponsible people to General Conference and their judgment of the best use of their time while there should be trusted.  The rules for delegates’ actions are established early by the General Conference, freshly drawn each quadrennium.  Expectation of participation is set pretty high from the beginning.  So the separation of powers over who directs the delegates is well established.

JCD 1404

ee.umc.org/decisions/8153

 

Is the Resolution Aspirational Or a Violation?

 

The bishop of the Michigan Conference ruled a resolution supporting its Board of Ordained Ministry’s right to lament the treatment of LGBTQIA+ candidates as long as they did not act on it.  Then he’d have to step in, based on legislation passed at the special session of the General Conference held in 2019.

 

The Council supported the first part of the ruling but stated it could not support the bishop’s right to intervene.  Again the concurring opinions make clear that at least four of the Council members view the 2019 addition as unconstitutional.  According to ¶33, only the annual conference has that authority to do intervention through fair process procedures.  The whole Council does not disagree in the majority ruling but only uses that opinion to overrule the bishop’s alleged right to intervene rather than outright deciding the 2019 addition is unconstitutional.

 

What is startling in this decision is the identifying the annual conference vote in support of the resolution: 298 to 125. nearly a 3 – 1 ratio.  While the Michigan Conference is not as conservative as West Michigan, this ratio indicates a clear movement toward positively normalizing the LGBTQIA+ community.

 

That says to me that fewer and fewer churches are likely to separate when the split comes.  The dream of the conservatives who want to dominate the world of Methodism is fading faster than they want.  

JCD 1406

ee.umc.org/decisions/81532

 

An Attempt to Make Doctrine into Law?

 

In 1998, Rev. Jimmy Creech was put on trial for conducting a same-sex union celebration and the Trial Court did not punish him for it.  Since the Church as prosecutor could not appeal, the South Central Jurisdiction’s College of Bishops asked if a paragraph in the Social Principles made such a celebration in the church illegal.  They wanted to know if something in the Social Principles was actually law and not just a prophetic call for instruction and persuasion (see the preface to ¶160) as the Social Principles described themselves.  In effect, the Bishops were appealing the Creech trial, but using the Social Principles instead of the list of chargeable offenses which at that time did not include conducting homosexual union celebrations.  In fact, the 1996 General Conference voted down including them among the chargeable offenses.  See JCD 833 for a detailed recitation of what happened that year.

 

I went to Dallas, TX, for the hearing and came early to sit where I could hear and see everything.  At the time, the Council president and I were not on good terms on a personal level for a variety of reasons, mainly because I had deprived him of his being parliamentarian of his annual conference and had challenged the personal relationship of a prominent bishop and a key member of the Council.  So when Rev. Creech and his counsel sat right in front of me, I had a feeling the ruling would go against Creech somehow.

 

You may agree with the Council’s JCD 833 or not, the only use of the Social Principles so far as church law was in that instance.  

 

So when a member of the Michigan Annual Conference challenged an aspirational resolution on setting aside the concern about LGBTQIA+ laws in the Discipline by arguing that doctrinal statements from Wesley’s Notes on the New Testament and the Articles of Religion carried weight on legality, I thought, “Here we go again!”

 

In fact, as JCD 1406 notes, the bishop took considerable space in his response challenging the use of church doctrine as church law.

 

I am grateful that the Council did not even take note of the misuse of doctrine as law by the one raising the question of law.  The bishop’s response clearly took care of that argument and the Council’s affirmation of the bishop’s response may be sufficient.

 

I agree with the non-concurrence statement that the last section about not spending money on trials and investigating the sex life of candidates was also aspirational contrary to the Council’s majority opinion that it was not.  But practically speaking, aspirational or not, the conference would not be changing their budget to reflect their aspiration until and only when church law was changed.

 

One more thing:  The clergy vote was three to one in proportion on a similar matter during the executive session of the conference and just a little over two to one in the plenary where the lay members voted too.  That reflects the reality that in most conferences, the clergy tend to be more open than the laity is on these issues.

JCM 1407

ee.umc.org/decisions/81533

 

To rule or Not to Rule, That Is the Question

 

The Council of Bishops, Michigan Annual Conference, Philippines Annual Conference, and Sierra Leone Annual Conference were listed by the Bishops as interested parties to seek the testing of a different plan for separation that is being proposed for the upcoming General Conference.  The Council found none had actually passed the plan.  It had come out of an informal working group and sent in as a package of petitions.

 

The Council demurred for more than one reason.  The principle one was this: They did not want to inadvertently give the plan a boost over anything else brought to General Conference.  Unlike the three proposal package they were asked to review for the 2019 special-called General Conference (see JCD 1366), this plan was the only one to be reviewed among all that may have been sent by others to General Conference.  As I recall the situation, the 2018 Bishops’ request was about the main agenda, and was not in competition with other petitions.  Hence, when the Council looked at that situation which actually contained three separate plans, it felt it could determine the constitutionality of the various plans without biasing the choices.  Interestingly, they found one plan mostly consistent with the constitution and the other (the “Traditionalists” plan) not.  Fortunately for the latter group, they had time to revise their petitions prior to General Conference. – The third plan was a set of constitutional amendments which the Council felt it could not review 

 

While the Council uses the theme “plainly understood words” to describe what they do in reading the Discipline, they used a little legalistic legerdemain to say the authorization for them to test constitutionality I ¶2609.2 actually has no time limit so they felt no need to study this new plan prior to its being acted upon by the General Conference.  

 

They apparently felt that argument by counsels representing one or another of the groups listed as interested parties forced them to have to pull something out of their hat to avoid dealing with this new plan.  

 

Then there is the possibility that I misunderstand the matter.  I’ll leave that for you to challenge me if you wish.

 

In our denomination, we have a number of individuals with comprehensive understanding of the Discipline and Judicial Council rulings and they do not happen to be members of the Judicial Council at this time.  The Bishops, annual conferences, and others who may be concerned about constitutionality of petitions have at their disposal various former Council members, conference chancellors, counsels in private practice, parliamentarians, and various clergy who tend to nerd out on church law and could provide valid testing for unconstitutionality and let the Council just deal with questions related to actions rather than dealing with petitions that are really hypothetical prior to any formal action by the Church.

 

Whatever the matter, the Council chose not to rule.  I’m inclined to accept their main argument.  Using the Council to bring special attention to any one petition is manipulative, whether intentionally sought out for that reason or not.

JCM 1408

ee.umc.org/decisions/81524

 

Clarifying what was made unconstitutional in JCD 1383

 

The Council of Bishops hoped the Judicial Council’s ruling on the unconstitutionality of removing pastors by administrative means rather than through church trials was not as extensive as the Bishops feared.

 

The Council made it simple:  During the votes of the clergy in executive session, members of the Cabinet, Board of Ordained Ministry, and the various committees and individuals who took part in their actions and deliberations related to a particular pastor’s removal from ministry did not have the right to also vote on their decision during the clergy session.    

This follows precedents set in JCDs 917 and 950 relating to the involvement of Cabinet members in deciding what the Board of Ordained Ministries rules on the status of a pastor.  -  It takes awhile until exactly the right question is asked to build on a foundation established by such important rulings.

 

The principle established in JCD 1408 should have been in effect in the case described in JCM 1400 above.  Even in conferences not run by autocratic bishops, few pastors will stand up against the opinion of the bishop for fear of such “obstinacy” being “remembered” by the bishop when it came to appointments. 

 

That means that even when this change in church law is put into practice, the bishop must be extraordinarily careful to remain neutral in the handling of personnel matters that come before the clergy session.  Even when he or she hands the gavel to the parliamentarian or other person not involved in the processing of the removal of a pastor, there can be no clue or rumor perceived to share the bishop’s opinion.

 

Some bishops will hate that!  It was bad enough for those inclined to control everything that the Board of Ordained Ministry was written into removal of pastors back in 1980.  Now they will not have cover of their minions on the Board (have you noticed how the Board tends to have its leadership “graduate” into the Cabinet or other high place of standing in the conference?).  -  I get the feeling that the Council of Bishops tends to support the bishops who have autocratic tendencies and let them make their requests for Council rulings on church laws that could disrupt their need to control everything.  But since the deliberations of the Bishops in their meetings are held in secret, there is no way to know how many such requests come up and how many are shot down by the more thoughtful among the bishops!