JCD 1393

ee.umc.org/decisions/81134

A Hypothetical Question

The Tennessee Annual Conference passed a resolution apologizing for the harm caused by the TP and asking that any actions taken by the conference against pastors for violating it are trials of last resort.  The bishop received a verbal challenge and then a written one that referenced one of the new passages.

The bishop responded by noting the new Disciplinary passage referred to withdrawal of churches which was not really the subject of the resolution and was therefore hypothetical.

The Council supported the bishop’s ruling and pointed out the question did not relate to anything before the annual conference the way it was written.

So there was at least confusion on the part of the questioner.  Again, I wonder how that might have been better resolved had the bishop called a brief recess to put the questioner together with someone knowledgeable about requesting decisions of law.  I have a feeling the questioner would have either realized he was off subject with his questions or put together an appropriate question of law to the subject at hand.

Maybe if I repeat this suggestion often enough, someone whose opinion is actually important in the denomination will suggest it and might try it.

JCM 1397

 ee.umc.org/decisions/81134

A Missionary Conference’s Dilemmas Under TP

The Alaska Missionary Conference will become a district of the Pacific Northwest Annual Conference, if all goes as planned.  That may resolve some of the questions raised in a request for a declaratory decision.

As the Council notes, there are serious discussions there about Alaska’s way forward under TP.  The questions raised in the request show some of the options these discussions have covered and the folks there would love to have more definitive input.  I’m very sympathetic with that.  But that input could come from other sources such as a seminary professor or even former Judicial Council members or geeks like myself.  The Council rightly reserves itself to answer questions that are germane to a specific action being taken by an annual conference or its officers rather than on hypothetical options and speculations about possibilities.

But I am still left without a completely solid ground on which to determine when clarification of church law is warranted in response to prospective questions and when they are speculative and hence, hypothetical.  

JCM 1347

www.umc.org/decisions/74475

No Jurisdiction

Denmark Annual Conference requested a ruling on the legality of the phrase in Paragraph 161.G, “…and considers this practice incompatible with Christian teaching.”

In their request, they note the phrase is also repeated in the law section of the Discipline at Paragraph 304.3.  They then enter into a significant theological argument which challenges the legitimacy of the phrase.  

For their text, go to: 

codifies.umc.org/website_Properties/who-we-are/judicial-council-council-dockets/docket-10-2017-1.pdf

The main argument that the Council has no jurisdiction is that Paragraph 161.G is not church law.  The Social Principles of which P 161 is a part is, as the Discipline itself says, “not to be considered church law.”  

I have a suspicion that that point of law was outvoted after serious discussion, the liberals and moderates on the Council wanting to maintain the Social Principles, from which the phrase comes, as “a prayerful and thoughtful effort . . .to speak to the human issues . . . intended to be instructive and persuasive . . . .”  I sense that this argument carries over from each quadrennium’s Council to the next and is decided somewhere early in the term.  I think this was the case when that argument took place and the majority took the conservative approach that indeed, the Social Principles are church law.  Their point of view is upheld in the footnote to Paragraph 161 which identifies JCDs 833 and 1254, both of which treat the passages related to homosexuality as law. --  Note: In editing this post, I have been unable to find where I saw that footnote.  No recent Discipline includes them under Paragraph 161.  But they are germane anyway.--

I look forward to when other Social Principles that are not related to homosexuality are tested to see if they too are church law.

The Council in this case, having settled that the phrase being challenged is church law,  then applied its rules about its being moot and/or hypothetical, though they don’t use those words this time.  They look to see if the issue has a local manifestation in the actions of the annual conference.  Is anyone being subject to complaint or is some project of the conference directly affected by the phrase?

None was identified by the petitioners nor seen in the record by the Council so it was a hypothetical matter and therefore not under the Council’s jurisdiction.

Whenever the Council decides to not take jurisdiction, they sure love to throw in all kinds of decision number to support it, as if their own weight as the sitting Council is not sufficient.  Maybe it isn’t, given how the bishops tend to ignore the Council’s rulings unless certain bishops find it to their advantage.  The lists of decisions supporting their point do have the positive value of helping students and observers to research the concept.  But to outsiders, it still has a tinge of self-justification.  Or maybe frustration that they are not being listened to.

Let me note, as the Denmark request states, the phrase from 161.G is also part of Paragraph 304.3 and other places in the law section of the Discipline.  So the question of its constitutionality is rightfully raised.  Because it is in the law text, it is an imposition on all clergy, even those who, like the Denmark group, do not agree with it.  So should a case arise where, for example, Denmark’s conference passes legislation that specifically negates that phrase as part of its policy toward clergy, preferably with respect to a certain person, the Council would have to take jurisdiction and might have to test what is really a theological assertion, “intended to be instructive and persuasive,” against the constitution.

Finally, let me remind everyone that a key ruling related to requests for declaratory decisions, JCD 189, says, “A request may ask for clarification or interpretation of church law about any action that is being considered or is pending before the conference.”  To wait until a matter is actually before the conference may be a waste of time or may cause harm to those involved should  lack of clarity lead the conference board or agency to take action.  For that reason, I believe rulings on interpretation or constitutionality that are prospective are within the jurisdiction of the Council.

If I were a member of the Council, I would have written a dissenting opinion based on the above argument and agreed with the Denmark appellants.  I think the phrase is an illegal attempt to change the doctrine of the United Methodist Church.  While I may disagree with other Disciplinary passages added since 1972 about homosexuality, they are matters of policy over which disagreement may be legislatively handled.  

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 1284

http://www.umc.org/decisions/59645/eyJyZXN1bHRfcGFnZSI6IlwvZGVjaXNpb25zXC9zZWFyY2gtcmVzdWx0cyIsInJhbmdlLWZyb206ZGVjaXNpb25fZGF0ZSI6IjEwXC8yNVwvMjAxNCJ9

ANSWERING A MOOT AND HYPOTHETICAL QUESTION

I’m sorry this decision was not held over to the spring 2015 session of the Council.  Technically, I agree with the decision that the questions of law were hypothetical.  I will address that in a moment.  

What I find in this decision is hasty and abrupt language not typical of this Judicial Council.  Usually, it bends over backward to clarify and teach.  In this case, it provides faint praise for the work of the bishop who responded to the questions respectfully but then makes it sound as though her work was incorrect and that there was something wrong with her for even bothering to answer the questions.  Had the Council had more time, it might have ruled something like this:

“The questions of law, while mentioning in passing a resolution on same sex issues, did not refer to anything in the text being discussed on the floor of the Northern Illinois Annual Conference.  Nor were they related to past or present events where the Discipline was allegedly violated.  Nor were specific Disciplinary passages listed by the questioner allegedly violated.  Hence. both questions are hypothetical.  Therefore the bishop’s rulings are technically not required and therefore have no weight of law.  

“However, despite JCD 33’s admonition to not answer moot and hypothetical questions, the bishop was in a position, based on the dynamics of her annual conference, to provide a response to clarify the effect of a resolution the conference had just passed.  The heart of the matter she faced was to be sure that everyone understood that the resolution was aspirational, non-binding, non-specific, and most importantly, did not prescribe specific behaviors that would violate the Discipline.  For example, in the eyes of some,’support’ may conceivably include violating the Discipline on the matter being supported, such as conducting a same sex marriage.  In the eyes of most, ‘support’ primarily includes so many more things that are pastoral and compassionate.  

“Further, bishops are sometimes instructed by the Judicial Council to answer the questions (see JCD 1244).  The first question in this case appears to be asking what “effect” the resolution would have.  Paragraph 2610 allows for requests for declaratory decisions to seek answers to questions about the effect of proposals or rules passed by a church body.  While that is something that the Judicial Council is directed to do, not the bishop, there is still confusion over what has to be answered and what does not within the rules, practices, and precedents related to church law.  Any thoughtful bishop is left in the position of feeling responsible to answer.  The pastoral and political thing required of her was to provide a reasonable response to the questioner so that no one would think she was just ignoring him or even “dissing” him.  She was there and appears to have sensed an intent to test for the implications of the resolution, even though, when read in the submissions, it is clear the question relates prospectively to something not actually addressed in the resolution.

“JCD 33 concludes by saying ‘It is stated here only that all members of Annual or District Conferences may be guided in making requests for rulings which are reviewable by the Judicial Council.’  In effect, the ruling is not directed to the bishop alone but as an admonition to the ones who wish to raise questions.

“As the Judicial Council felt in JCD 33, we cannot simply support the bishop’s rulings nor reverse them.  While her rulings are consistent with the Judicial Council’s previous decisions, we rule that her answers to the first question have no standing as church law if the question had not actually been hypothetical.  Her recognition of the second question as moot and hypothetical correctly notes the question of law’s nature as invalid because no specific Disciplinary violation has occurred citing the resolution as authority.

“In summary, both questions were hypothetical.  Her answers have meaning though no weight of law in the context of her own conference.”

I believe this is what the Council meant and might have ruled had they had more time to apply their usual tact and educational proclivities in deciding this case.  For those interested in seeing her actual responses, go to the Judicial Council Docket for October, 2014 (http://s3.amazonaws.com/Website_Properties/who-we-are/judicial-council/judicial-council-dockets/docket-oct2014-with-supporting-docs-rev.pdf).  Go to Docket 1014-15.

JCD 799

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=839&JDMOD=VWD&SN=701&EN=800

This decision arose from pulling together questions of law from two separate trials of ministers accused of sexual misconduct. The questions of law dealt with procedural matters each respondent experienced and believed were in violation of the Discipline.

The Judicial Council made three important rulings.

One, they ruled that despite the separation of powers, the judicial branch had priority over the legislative with respect to who had the last word on the membership and character of a pastor when that pastor was dealt with in the judicial process.

For two quadrennia, the Discipline provided that the clergy session of the annual conference had to vote on a trial court conviction which changed the pastor’s standing in the conference. This was to be consistent with the constitution which gives to the annual conference the final word on character and membership status of pastors. However, JCD 799 held unconstitutional that provision which required annual conference action if a trial court decided to change the minister’s membership, ruling instead (based on another provision in the Discipline to which it gave precedence) that the Judicial Council has the last word once a case has been in the church's judicial system.

I find this result self-serving but it does eliminate two confusing circumstances. The first is that the annual conference might be swayed by factors other than the evidence seen and heard by the trial court. The second is this: if the trial happened before conference but the appeals had not been completed, the decision of the annual conference could be prejudicial to the appeals.

Two, they ruled that the question of law “must relate to the business, consideration or discussion of the conference session.” The only illustration the Council offered was that the question of law in this case related to a “part of the supervisory function of the district superintendent…” and not to anything which the annual conference had voted on during its plenary session. The Council affirmed the bishop’s ruling without explanation.

The upshot of that affirmation is that once a pastor is made subject to “supervisory function” of a superintendent, the pastor has no right to raise any question of law before the annual conference related to how he or she is treated no matter what the subsequent action of conference officers are after that. The Council indicated that questions of law about any inappropriate actions are to go to the presider of the next hearing/trial in order to retain appeal rights beyond the annual conference and are not appropriate before the annual conference.

On paper that makes some sense. But in practice, there are two major problems. First, sometimes the bishop does not follow the Discipline when taking action against the pastor. In such cases, there are no hearings let alone presiders to whom the pastor can appeal. Second, the chairpersons of the Board of Ordained Ministry and of the Committee on Investigation are pastors subject to the appointive powers of the resident bishop, as are all clergy members of those respective groups. In the case of a church trial, the presiding bishop for the trial is an appointee of the resident bishop, chosen because she or he may be sympathetic with what the resident bishop wants. Once a procedure has moved to the appeals level, this new precedent in JCD 799 defers to the judgment of those closest to the decision-making, essentially leaving all questions of law to those under the influence of the resident bishop. More on that in discussion of JCD 1094.

Three, the Council established guidelines for bishops to determine what were moot and hypothetical questions of law. Those guidelines are now written into the Rules of Practice and Procedure of the Judicial Council. They retain the Disciplinary strictures about who may raise the questions, how they are to be recorded, that the bishop must answer if only to say they are moot/hypothetical, and submit them to the Council.

It appears that to the Judicial Council, a matter is moot if it has been decided already by a previous judicial action, should have been taken to a hearing presider in the next step of the judicial process rather than to the annual conference, or has become a matter under the supervisory function of the superintendent and is thus now “judicial” and outside the authority of the bishop under the doctrine of the separation of powers. A matter is hypothetical if the question of law does not refer to a specific case where an answer to the question would have a possibility of changing the results of that event.

This decision fails to deal with three passages of the Discipline. Two of them relate to the nature of questions of law, neither of which includes any restrictions on what questions may be raised. The Council points to a JCD from 1946, based on a passage no longer in the Discipline which does not require rulings on moot and hypothetical questions. That is their source of authority.

The third passage not considered by the Council is the one which lists as a duty of the bishop to ensure fair process through monitoring all of the judicial and administrative actions of annual conference groups charged with those procedures. If the bishop is to ensure, then the bishop must be subject to questions of law about those procedures.

In practice, bishops have tended to call every question of law they did not want to answer “moot” and/or “hypothetical.” The Council has not always challenged the bishops when they did that. So bishops continue to avoid their responsibilities by trying to pass them off this way, often successfully.

As a consequence, advocates have lost a tool in their fight for justice. Until this ruling in 1997, a number of injustices were reconciled by Judicial Council decisions. Since then, too many questions of law have tended to go unanswered, even those outside the administrative and judicial processes.