The following post was included in the April 4, 2012 United Methodist Insight, an online weekly collection of essays and articles about the 2012 General Conference. It can be found at
http://um-insight.net/articles/where-do-we-find-god%27s-spirit-in-our-system%3F
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Sometimes God's inspiration shows up in the most unlikely places, such as in this rap by Doug E. Fresh that served as a theme song for the movie "Ghostbusters II":
Spirit! Some people hear it, some people fear it,
Spirit! Some people just won't go near it!
Sure as I'm me and you should know you're you,
The Spirit is the key to unlock the true you.
Looking beyond its obvious references to the comedy's plot, this ditty captures one of my biggest concerns about the many alternatives flying about for United Methodist governance: Where does the Holy Spirit operate in our system?
The seat of power where the Holy Spirit resides in a denomination is very important, though our conversations do not usually go into that arena of theology. When I was in seminary, we talked in terms of the central entity of the denomination being the annual conference. All of the church's structure was to help the annual conference serve the needs of local churches that could not be handled by local churches themselves, meaning everything from how our churches got their pastors to how we shared mission responsibilities.
The reality at that time was that the general church boards and agencies appeared to feel they were the true bearers of the Holy Spirit. This was shown in the ways that some of them operated with no accountability and were subject to some financial mismanagement.
Charging to the rescue was General Conference, picking the Council of Bishops to reign in the agencies by having them be chairpersons of the respective bodies and having a cluster of bishops serving as directors of each agency. Thus, the power shifted. The center of power devolved onto the Council of Bishops, whose members were in a position to direct and influence actions of the boards and agencies AND to direct the legislation coming to General Conference.
As in the pre-Reformation era when the Catholics openly talked of their bishops and archbishops bearing the Holy Spirit, ours actually do, even though we don't use that terminology to describe it. The Church begins to fail if one or both of the following happens:
•When we let any one segment of the Church be its sole power without checks and balances and some form of accountability; or
•When we are unwilling to recognize that the Holy Spirit moves as It will and may be surfacing someplace other than the power center.
How would everything that is coming before the 2012 General Conference change if attention were shifted from legislating win-lose scenarios to discerning where and how God's Holy Spirit is active, and then legislating to follow that guidance?
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UM Insight coordinator Cynthia Astle contributed to this essay.
Showing posts with label Judicial Council of the United Methodist Church. Show all posts
Showing posts with label Judicial Council of the United Methodist Church. Show all posts
Thursday, April 5, 2012
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.
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.
JCD 1048
http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1127&JDMOD=VWD&SN=1001&EN=1099
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.
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.
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