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.

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.