Commentary on Judicial Council Decisions 1260 to 1269, Spring, 2014

The following observations are intended to encourage you to read the decisions of the Judicial 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.

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. 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 decision is of interest to you.

The Judicial Council will be often referred to as “the Council.”

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 may offer explanations for everything else from refusing to take jurisdiction to remanding to showing a question is not legally appropriate under Council rules.

Associates in Advocacy (AIA) publishes updated indexes of all Judicial Council decisions and memoranda. If you are interested, contact Rev. Michael Brown, 158 Saxony Ct., Vallejo, CA 94591. The Judicial Council website also offers indices as does the AIA website (www.aiateam.org) under “HELPS for the Judicial Council.”  AIA’s are out of date, however.

JCM 1260

 http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1382&JDMOD=VWD&SN=1201&EN=1269

LEGALITY OF PHILIPPINES EPISCOPAL ELECTIONS RULES

This memorandum relates to a request from the Philippines Central Conference which led to JCM 1249.  My observations about that memorandum were that the Council was not enforcing their need for full documentation.  The Council’s rules of practice and procedure were amended this April to clarify that minutes of the time when a request for a ruling is made must be part of the materials submitted. The failure on this prevents the Council from making a decision.  

From this memorandum, it is clear that despite there being no rule requiring it, efforts were made prior to the Council session of Fall, 2013, to obtain the minutes and some other materials.  Because those materials were not sent, JCM 1249 was handed down saying no ruling could be made for lack of full documentation.  The Council may need to add to their rules that the Secretary and Clerk are authorized to seek additional documentation.  That might help conference secretaries realize such requests are proper.  

From what I have seen, various conference secretaries may not be taking minutes during certain conference actions.  For example, minutes from the clergy session were not taken in several cases and therefore were unavailable to be sent in.  Every conference at every level must have minutes taken.  Not only should the secretary be made aware but so should the presider.  While casual meetings may proceed more quickly, both officers have to realize that when a “legal” event occurs at the meeting or might occur at a later time in the meeting, minutes for that event must be taken even if not for most of the rest of the meeting’s actions.

Rules or not, the conferences where the requests for Council review occur must realize nothing can be done by the Council without all minutes and must join in the effort to get all documents in.  

Advocates take note.

With respect to JCM 1260, despite efforts by Council officers to get full documentation, the Central Conference Secretary never did provide the minutes and so the Council once again remands the case back and retains jurisdiction.  Time consuming as that is, it is better than making an arbitrary decision without full information, something the Council sometimes did in the past.

Update:  Two typhoons have struck the Philippines this year and may have been a factor in lack of response to the Council’s request. 

JCD 1261

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1383&JDMOD=VWD&SN=1201&EN=1269

IS “A FUTURE WITH HOPE, INC.” A UNITED METHODIST AGENCY?

If you feel like you’ve seen the largest part of the text of this decision before, it is because everything down to the analysis is verbatim from JCD 1259.  It was copied to give this decision its full background and identification of the question being ruled upon.

This docket item comes back to the Council from the Greater New Jersey Annual Conference from the fall session where the Council said it needed to see the incorporation papers in order to see if the emergency agency set up to help meet the challenges of Hurricane Sandy in 2012 is an agency of the conference and therefore a conference liability.

The Council got the papers and ruled that while related to the conference by virtue of its officers and the funding being from the conference, the corporation was not otherwise organically related.  Legally, the funds and officers could be from anywhere according to the by-laws.  While the goals of the corporation and the conference are the same, the corporation arose to meet emergency needs of the conference.  It was time-saving to set up the administrative “costs of office space, accounting, and support services to be underwritten” by the conference.  While that makes the corporation seem like it “looks, walks, and quacks like a duck,” in fact the two bodies are legally separate.  There was no vote by the conference to be a guarantor of the corporation, which is the bishop’s key argument.  The Council upheld the bishop’s ruling.  The corporation does not fit the Book of Discipline’s definition of an “agency.”  While the corporation could seek funding from the conference beyond the administrative aid already promised, one fourth of funds raised would remain in the local church, and the conference could vote down such a request.

The Council warns that the relationship is so close that the boundaries between the corporation and the conference will have to be carefully monitored on both sides so that liability is not intermingled.  This is especially true because of the emergency nature of the establishment of the corporation.

See the concluding thughts below for further remarks.

JCD 1262

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1394&JDMOD=VWD&SN=1201&EN=1269

“MARRIAGE EQUALITY RESOLUTION” VIOLATES CHURCH LAW

The Desert Southwest Annual Conference passed a resolution, in light of a Supreme Court decision legalizing gay marriage in California.  Because the conference includes part of California, same-gender marriages ought to be conducted in the churches and by the pastors of the annual conference.  When the resolution was challenged, the bishop ruled that it was aspirational and therefore legal under church law.  See the full text of the resolution in the body of the JCD.

The matter came before the Judicial Council.  It disagreed in part (in large part!) with the bishop, acknowledging that the opening of the resolution was indeed aspirational, but that the resolution further called for not following church law in order to hold same-gender marriages.  They quoted from JCD 1111:

“An annual conference may not negate, ignore, or violate provisions of the Discipline with which they disagree, even when the disagreements are based on conscientious objections to the provisions.”

This decision reflects the changing values occurring in the denomination but accentuates the difference between church law and the changes that are coming.

The church, which is allowed freedom under the separation of church and state, is not required to follow civil law.  Church law may prevent gay marriage within its own denomination, including making it contrary to church law for its pastors to be conducting such ceremonies.  When United Methodist pastors have violated that law, and it has become public, those pastors have faced sanctions by the church, mainly through church trials.  As time has gone on, the guilt has been found but the punishments have varied from forcing pastors to withdraw to brief suspensions or community service (see JCD 1215).  

So in practice, resolutions of the sort passed in Desert Southwest are in violation of church law and serve no direct function.  Indirectly, they show the growing will of the coming generation to overturn church law and they aggravate those who feel current church law is legitimate.  The Judicial Council is the arbiter of which side wins in this confrontation.  They okay resolutions that aspire to changing church law but they do not allow calls for violating church law.  

This pattern will be repeated until church law changes, unlikely at the 2016 General Conference.  

When an argument cannot be settled but ends up in a circular pattern, that usually means that is not the real argument but is symptomatic of another problem.  On the surface, that would appear to be how each side views the priority of Scripture (only) versus Experience, Reason (science), and Scripture.  (Tradition is claimed by one side but that is a whole other argument.)  Unfortunately, the Judicial Council cannot resolve that conflict, even if it wanted to.  The resolution of that issue in the Church, similar to those related to things like slavery, women, tobacco and alcohol, divorce, and civil rights, will ultimately work itself out, but outside of the Council.  

JCD 1263

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1393&JDMOD=VWD&SN=1201&EN=1269

RIGHT TO A HEARING BEFORE A DECISION IS MADE

A District Committee on Ministry forwarded a candidate for admission to the Southwest Texas Annual Conference.  However, in 2013 before she could meet with the Board of Ordained Ministry, she received reports that her candidacy was terminated and she would not get to meet with the Board.

At the 2013 conference, the Board chair reported her being dropped and the conference supported that when it voted down a request for reconsideration.  However, that action was challenged by a request for a ruling of law on the failure to have the hearing before the decision was made.  The 2014 statement of facts from the case given in JCD 1244 did not include that there had been a vote to forward the request.  That omission follows from the ruling by the Council in JCD 1244 that a vote on a question of law was a violation of the constitution. With no vote involved, the request for the ruling could not be interpreted to be a request for a declaratory decision.  That made the request a question of law which, according to JCD 799, made it appear to be moot and hypothetical because the bishop was outside the judicial loop of responsibility under separation of powers.

The bishop ruled in 2013 that the question was moot and hypothetical.

According to the Discipline (Paragraph 2609.6), all questions of law presented to a bishop and the bishop’s response go to the Council for review, whether or not they are ruled moot or hypothetical.  The Council changed its approach about the question of law in JCD 1244 as it has done occasionally in recent years. The bishop’s ruling was overturned and he was asked to rule on the question within sixty days so that the Council could review it in its next session.  See my commentary on JCD 1244 of last November to see just how uncharacteristic this ruling was.

Honoring JCD 1244 that the request had been a question of law and that he had already ruled that actions taken by the clergy session were officially business of the annual conference and therefore something for which he must provide an answer, the bishop did as asked and ruled that because the candidate was not given a hearing prior to the Board’s action, she was still an active candidate.

The analysis of the Council was thorough and educational for those interested in the legal detail.  The result was the same as the bishop’s simpler ruling.  The Council affirmed it.  

Update: The Southwest Texas Board of Ordained Ministry has since interviewed the candidate and recommended to the 2014 clergy session that she not be granted membership. That recommendation was accepted by the clergy session this past June.

Note: Before I post my commentaries on the Judicial Council, I send a copy to them for their information and for any error of fact I may have made.  It is against their rules to comment on the meaning of their decisions but I presume they are free to correct facts.  While I am sure my work is not error free, I have received no corrections or observations back from the Council or its staff.  I take that to mean that they are granting me the right to have my opinions and any error of fact is inconsequential.  My hope, of course, is to help them do their work better.  Occasionally it appears they have given thought to my opinions, for which I am grateful.

JCD 1264

 http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1392&JDMOD=VWD&SN=1201&EN=1269

PENSION AND HEALTH BENEFITS FOR SAME-GENDER SPOUSES

For some years, annual conferences have been paying benefits for same-gender spouses and many have been challenged to the Judicial Council as violations of the Discipline’s provision about supporting agencies promoting homosexuality.

In decisions noted by their numbers in JCD 1264, the Council has been consistent, saying that the conference councils on finance and administration do not by Discipline promote homosexuality.  Further, they note that Paragraph 807.12 of the Discipline disallows violation of the Social Principles which call for equal treatment of all employees, including homosexuals.  

These same arguments are used in this decision to resolve a similar challenge of the General Council on Finance and Administration’s paying benefits to their gay employees’ spouses.

The Council further argues that each of the respective finance and administration groups also have the task of enforcing the rule against money going to groups promoting homosexuality and none had so far found against themselves.  I’m sure someone will raise the issue of conflict of interest because the agencies are policing themselves.  Even if legislation passes in 2016 putting the enforcement role into an independent body, the other two arguments of the Council would stand.

There is a caveat in Paragraph 807.12 that would allow a conference council on finance and administration to choose not to provide benefits for same-gender spouses because it could depend on “local employment conditions.”  I have no information to support my opinion that many conferences, because of local conditions that mitigate against benefits for same-gender spouses, do not provide them now.  Even if that is the case, as civil courts overturn such policies in the communities around the country, annual conferences will eventually provide the benefits.

JCM 1265

 http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1387&JDMOD=VWD&SN=1201&EN=1269

RECONSIDERATION OF JCD 1256

The Council refused reconsideration.  While the docket of the Judicial Council published before their session includes in sometimes painful detail the substance of the requests for rulings, it does not include the requests for reconsideration there.  Consequently, there is no knowing what issues were brought forward to be grounds for review of JCD 1256.  The dissenting opinion that there were no proper controls on the emergency reallocation of funds may have been used but it did not hold sway with the Council last fall.  While the Council acknowledged that problem in JCD 1256, it did not sanction the conference for the violations.