By Failing to Rule, the Judicial Council Sets Up the #UMC to Fail

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Busy Fall Docket

There were almost 20 cases before the Judicial Council this docket. They fell into a number of categories:

  1. Questions related to annual conference refusals to comply with the Traditional Plan, which bishops either allowed or denied (and the challenges are to both)
  2. Challenges to the Traditional Plan changes in light of more information since the Spring session of the Judicial Council.
  3. Challenges to the Disaffiliation process passed by the 2019 General Conference, particularly a request by the General Conference Commission to remove it due to voting irregularities.
  4. Challenges to the process of voting on the commissioning and ordination by block rather than individually
  5. A question about whether an annual conference can withdraw from United Methodism (from the Alaska Missionary Conference).
  6. A few random other cases

You can see the rulings here. Go to the page then click “search” without any operators and they should come up in descending order.

For today, we’ll be focusing on a few key cases to talk about how that changes

A mixed analysis of the Traditional Plan legislation

Most of the rulings are on decisions of law by a presiding bishop whether to allow anti-Traditional Plan resolutions to be passed by an annual conference floor. In general, they fall into two categories:

  1. When a bishop allowed the vote saying it was aspirational, the Judicial Council agreed with the bishop.
  2. When a bishop disallowed or struck portions of a resolution as out of order, the Judicial Council agreed with the bishop. This wasn’t just conservative bishops doing it—decision 1399 was by Bishop Karen Oliveto in the Western Jurisdiction.

Here’s the UMNS write up. One glaring exception to the above is 1381 about the office of Bishop Mark Webb from Upper New York which failed to properly send in the official record (which is required), which means the JC could not vote on it. Way to fail in a permanent official record!

But in short, most of the petitions dealing with opposition to the Traditional Plan passed, but most of the actual action items that the Bishops ruled out of order failed. So a lot of bite but no teeth to these resolutions other than showing that the “sense of the body” is overwhelming antagonism to the Traditional Plan come January 1.

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Good news for LGBTQ candidates

The Judicial Council upheld the ordination and commissioning of two LGBTQ+ members of the Baltimore-Washington Annual Conference in 2019. In Decision 1391, they upheld Bishop Easterling’s allowance of a group affirmation of clergy candidates for Ordination and Commissioning.

From the decision:

“Like the election of a bishop, the vote of the clergy session to approve a ministerial candidate is a binding administrative action that cannot be nullified, except through the proper administrative or judicial process. If “[t]here is no provision in The Discipline making it lawful to deny consecration to a duly elected episcopal candidate in good standing without fair and due process,” there is no disciplinary provision making it lawful to deny commissioning or ordination to a properly approved candidate, “even if there are serious concerns about his or her same-sex marital status at the time of [commissioning or ordination].” Therefore, Bishop Easterling was correct in concluding “that the episcopacy cannot nullify the clergy session’s free exercise of that right, after the fact, by declining to commission and ordain those persons the clergy session has elected.”

And from the final ruling:

Upon admission to full or provisional membership, a clergy person can be subject to review under ¶ 362. But only the trier of fact in an administrative or judicial process can properly determine if such person meets the criteria of “a self-avowed practicing homosexual.”

“Trier of fact” is a legal term for a judge or jury. So not a bishop and not an annual conference session after a clergy session has voted in a candidate.

A good ruling.

Disaffiliation is still…on?

The most explosive question of this session was whether the Disaffiliation Legislation should be struck from the Book of Discipline because of voter fraud.

1386 asked some questions related to whether the voter fraud should nullify the Disaffiliation Petition.

The JC voted to re-docket it (and an unrelated Upper New York petition) to the next session of the Judicial Council in the Spring. This makes certain sense because the Council of Bishops did not prepare or send the data to support their argument: the audit, the report, etc. In fact, during the debate, it was revealed that only two bishops had even seen the audit!

So the Council of Bishops was ill-prepared for this legal case. In a sense it doesn’t matter: no one can leave The UMC now until the next annual conference anyway, which will be after the 2020 General Conference. But it is really important for the future to see if voting irregularities can nullify legislation. I hope they get it resolved in the future decision in the Spring.

In the meantime, annual conferences should come up with conference policies around disaffiliation so they are not caught flat-footed by Annual Conference season.

The Lion became a mouse: The Alaska Petition

One of the biggest (but perhaps most overlooked) petitions in the whole docket was penned by Lonnie Brooks and passed by the Alaska Missionary Conference. It asks particular questions around if an annual conference leaves United Methodism. Very helpful clarifying questions as annual conferences in the West are considering the action.

And it fizzled! Decision 1397 shows the petition was not ruled on by the Judicial Council because they claimed no jurisdiction for what they saw as a hypothetical and speculative petition. It appears if an annual conference had voted to actually withdraw and begin the process, the ruling might have been dealt with. As it is, it was skipped because they found it “hypothetical and speculative”

While the Judicial Council had no problem ruling on hypothetical legislation before them when it came to the 2019 General Conference (Decision 1366), apparently their “long line of jurisprudence…strictly with constraint” began this week.

Edit: A friend sent in that the polity says that the Council of Bishops and the General Conference can send hypothetical questions to the Judicial Council, but Annual Conferences cannot. So my frustration should have been on this polity, not on the Judicial Council for following the polity. Sigh. Fine. 

Legal Challenges to Traditional Plan denied

This sentiment continues with two other petitions.

First, a really insightful clarifying question about what it means to dismiss a clergy complaint because it has “no basis in law or fact” was just dismissed as the judicial council has no jurisdiction. Decision 1394

I saw the briefs for this case. They were really good arguments on both sides, and I thought for sure it would be a good case. But then the Judicial Council up and denied a hearing altogether.

And even more curious is Decision 1390, relating to some questions about the Traditional Plan. It simply says that the Judicial Council didn’t come up with enough votes to render any judgments unconstitutional. Six of them have to agree for any decision per the UMNews reporting.

Sigh.

05-19-2002, Jesus Wept Statue outside of OKC Memorial. Photo by Jeremy Smith

The Oddest Ruling in Modern History

I try to be charitable when it comes to discussions far above my pay grade, but the flat-out…uh….oddest ruling is JC 1385. The petition asked whether the effective date of the Disaffiliation Petition was at the end of the 2019 General Conference (as commonly held) or not. The Judicial Council ruled that it was.

However, a dissent (the only dissent I see in this docket) states that the effective date was not included in the legislation but was in the rationale. Not part of the Book of Discipline: The 50 word rationale and preamble which is not actually included in the Discipline.

This matters because there is an actual process for setting a different effective date. You include in the legislation itself if you want to bypass the waiting period and have it apply immediately. For example, another petition about pension changes explicitly said the petition was to take effect at the end of the 2019 General Conference. That’s in order. That’s how it works.

But the disaffiliation petition did NOT say it in the petition—only in the rationale! Take a look at the previous Judicial Council case last April where they quote the petition in full: no different effective date! Further, General Conference doesn’t edit rationales. So an uneditable portion of a petition means it is now church law? Wow. I should have included this line in all my 2020 petitions!

From the dissent:

When a variance from the above effective date is sought, then the alternative date is generally set forth within the body of that sentence or paragraph that is to be inserted into the discipline. The General Conference delegates are voting on the content of the amended language, not on the rationale which follows the legislation nor on the preface material that precedes the proposed Disciplinary language.

We are rapidly approaching the point when it doesn’t matter because January 1 (the effective date of the rest of the petitions at the 2019 General Conference) is coming up soon. But dang. That’s a questionable ruling if I ever saw one that allows uneditable non-Disciplinary language to change a Discipline modification’s effective date.

I wonder how future Councils will view it.

Summary

The Judicial Council is a fickle animal. They get activists on both sides up in arms all the time, which in some cases means they are doing their job as an impartial group (though they are voted in by slates supported by caucus groups) but in the above cases shows that there’s such a missed opportunity at such a trying time for The United Methodist Church.

The Judicial Council, like before the 2019 General Conference, had the opportunity to really help clarify questions before the delegates and the institutions. Questions about accountability processes, annual conferences trying to leave the denomination, challenges to the Traditional Plan…all these were dropped like a hot potato. The Judicial Council had an opportunity to be helpful, to provide legal guardrails like in 2019, and they failed.

And now we continue to wander in the wilderness that will eventually dump us out, ill-prepared and scared, at the foot of the 2020 General Conference. And ill-prepared and scared people are vulnerable to the extremes and the caucus groups which promise everything and cost nothing. And in the meantime, ill-prepared bishops will be forced to administer the Traditional Plan provisions without knowing if what they are doing is even legal. A scary situation. And completely avoidable.

May God have mercy on the United Methodist Church and provide us with clarity that our institutional structures have failed to provide.

Your Turn

Do continue to read this blog, because our readers will not be scared and will not be uninformed in May 2020. Our readers will be convicted and empowered to accomplish the call of God on their hearts even in a legislative arena.

Thoughts?

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The Rev. Jeremy Smith serves as senior pastor of First United Methodist Church in Seattle, Wash. This post is republished with permission from his blog, Hacking Christianity.