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Decision No. 497

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April 23 1981
In Re: Appeal of Joseph C. Evers

Digest of Case

The decision of the Trial Court and the Court of Appeals in the case of Joseph C. Evers is set aside and a new trial is ordered.

Statement of Facts

In September of 1979, Joseph C. Evers, a ministerial member of the Southern Illinois Annual Conference, was charged with "imprudent and unchristian conduct" by the Investigating Committee of that Conference. The specific accusation was dishonesty, based on his answer to a question addressed to him by the Divorce Review Committee of that Annual Conference. The Trial Court convened on October 29, 1979, and by a vote of 10 to 3, found the defendant guilty. Notice of appeal was filed by the counsel for the defense in timely and appropriate fashion, and was heard by the Court of Appeals of the North Central Jurisdiction on January 4, 1980. Their decision, rendered February 18, 1980, upheld the Decision of the Trial Court and ruled that the Court of Appeals "does not find sufficient errors of church law so as to vitiate the verdict rendered in the trial of Joseph C. Evers." The appeal was on ten counts, one of which was withdrawn during the hearing of the appeal. The remaining nine were considered by the Court of Appeals and formed the basis of the appeal to the Judicial Council. Briefs were filed, oral arguments were heard and the case taken under advisement on October 30, 1980. JURISDICTION The Judicial Council has jurisdiction under Pars. 2551.9 and 2553.1 of the 1976 Discipline, under which the case was originally tried, and under Pars. 2625.1(j) and 2625.3(a) of the 1980 Discipline. ANALYSIS Procedures for investigation and trial of a ministerial member of an Annual Conference are set forth in Pars. 2521, 2542-2550 of the 1976 Discipline. Procedure for appeal is prescribed in Par. 2551 and 2553. All such procedures are subject to the Constitutional provisions in Pars. 18, 37 and 63. The cited paragraphs constitute a relatively brief description of a very complicated procedure, so that not every question which may arise is answered in full detail. However, enough detail is given to indicate a clear concern for due process and protection of the rights of any who are accused, as well as the integrity of the church. It is within the framework of this relatively meager statement of trial and appeal procedures that the grounds for appeal may be considered. The Judicial Council makes no findings with regard to eight of the nine grounds included in the appeal because in one (Number 7 in the appeal transcript) we find sufficient reason for the action taken hereafter. Ground number 7 stated that two bishops, one of whom was the presiding officer, met with the members of the Trial Court during the time of their deliberations without the knowledge or consent of the defendant or defense counsel. This occurred after the finding of guilt and while the Trial Court was deliberating penalty. Par. 2548.9 specifies that "the presiding officer shall express no opinion on the law or the facts while the court is deliberating unless the parties in interest be present." According to the appeal transcript, no official record exists of the meeting of the presiding officer with the Trial Court during the Court's deliberations, but there is general agreement that such a meeting did indeed take place. There is agreement that neither the accused nor his counsel was present. There is some question as to whether or not counsel for the accused agreed to such a meeting without his presence. Actually, this question is irrelevant. The Discipline makes no provision for the waiving of this right, and does not authorize the presiding officer to ask for such waiver. We do not know whether or not the presiding officer expressed any opinion on the law or facts in the absence of the parties in interest, since no official record of that meeting exists. The very fact of such a meeting and the absence of any official record is persuasive evidence that church law, specifically Par. 2548.9, was violated and with it, the rights of the accused. The accused is therefore entitled to a new trial following all trial procedures as specified in the Discipline. It should be noted that Par. 37 of the Constitution reserves to the Annual Conference the right to vote on all matters relating to the character and conference relations of its ministerial members. This means that any decision of a Trial Court as it affects the conference relations of a ministerial member may be affirmed or rejected by the Annual Conference. This would normally occur during consideration of the report of the Board of Ordained Ministry when changes in conference relations are approved by the Annual Conference. (Par. 723, 1980 Discipline) Though Pars. 2521 (1976) and 2624 (1980) state that the findings of the Trial Court shall be final, they must be read in light of Par. 37, which gives the Annual Conference final authority with regard to character and conference relations of its ministerial members. Par. 2624 (1980) gives to the Trial Court "the exclusive right to determine the innocence or guilt of the accused." This also must be read in light of Par. 37.

Decision

The decision of the Trial Court and the Court of Appeals in the case of Joseph C. Evers is set aside and a new trial is ordered, following carefully and in detail the trial procedures as set forth in the Discipline, and reserving to the Annual Conference the right to vote on all matters relating to the character and conference relations of ministers as required by Par. 37 of the Constitution. Concurring Opinion I agree with the decision. I recognize that the sustaining of one of the ten grounds of appeal and the ordering of a new trial make it unnecessary to discuss the other claims of error. I believe, though, that for us to do so would be helpful, especially to the new Trial Court which may be faced with most of the same questions, and therefore submit the following brief comments: 1. It was claimed that the charge was not properly drawn in accordance with Par. 2545.3 (1976 Discipline) which required definition of the offense by its generic term as set forth in Par. 2542 and a statement in substance of the facts upon which the charges were based. The charge did clearly define the offense by its generic term as set forth in Par. 2542.l(a). The essential facts upon which the charge was based were sufficiently stated to inform the accused of the basis of the accusations. Further, at the beginning of the trial the accused requested a more detailed statement of facts and with his acquiescence the charge was amplified. 2. Objection was made to the failure to furnish the accused with a Bill of Particulars in response to his request. He was not given a formal written Bill, but none is required by any provision of the Discipline. Our church law does not contain many of the detailed procedural provisions that have been enacted with respect to trials in secular courts. All that is required is compliance with the disciplinary provisions and the essential elements of fairness and due process. Rev. Evers was given adequate information and time. He knew the nature of the evidence to be presented and had adequate opportunity to prepare his defense. There is nothing in the record to suggest that he was unfairly taken by surprise or disadvantaged. 3. Complaint was made of failure to respond to a motion to produce copies of all statements of witnesses, reports and documents. There is no provision in the Discipline requiring production of documents. He was given some. There was no showing that there were others, or that they were material, or that the lack of access to any document disadvantaged him in the preparation of his defense. 4. There is a complaint that the resident bishop refused to disqualify himself from presiding in any part of the trial. Nowhere in the record do I find any suggestion of prejudice or any reason why the bishop should have done so or indication that he acted other than fairly and with scrupulous impartiality. The claim is made that the bishop was subject to being called as a witness and was directly involved in the prosecution. He was not called as a witness by either party. The record indicates no involvement with the prosecution except for appointing counsel for the church and presiding over the selection of the court as contemplated by Par. 2521.5. As authorized by that subparagraph, he invited another bishop to preside over the trial itself, though the record suggests no reason why he could not properly have done so himself. 5. The accused moved to exclude evidence of anything that occurred more than two years before the date of the charges. Par. 2543 says that no charge shall be entertained for any alleged offense which was not committed within two years before the firing of the complaint. Here the complaint was based on allegedly untruthful statements made just 17 days before the filing of the charges, so that Par. 3543 is not applicable. There was no reason why evidence relating to acts in early August 1977 should not be introduced as tending to prove the statements made on August 28, 1979 were untruthful. The appellant's unusually able and diligent counsel supplied copies of a recent decision of the U.S. District Court for Arkansas in the case of U.S. v. Reed. In that case the court dismissed a 1980 indictment for perjury in testifying falsely in 1978 with respect to bribery in 1970-1972. The dismissal was not, however, because the statute of limitations had run with respect to the bribery. The court held it was not fair to try the defendant, and a denial of due process, since in the ensuing 8 to 10 years records had been lost or destroyed, three potential witnesses for the defendant had died, and he no longer had a fair chance to present his defense. The Arkansas court relied primarily upon United States v. Marion, 404 US 307. That case does not help the appellant. The Trial Court had found a denial of due process and dismissed an indictment because the government had delayed prosecution for more than three years after it knew of the offenses. The Supreme Court reversed the dismissal because the defendant could not show the government intentionally delayed to gain tactical advantage or that the defense was actually prejudiced by the delay. In the case of Rev. Evers the charges were brought within 17 days after the allegedly false statements and almost immediately after evidence indicating falsity was received. The events to which the statements related took place within twenty-six months of the filing of the charges. The record indicates no way in which the defense was disadvantaged by the passage of time. It did not appear that any records had been lost or destroyed, any material witnesses had died or become available, etc. No denial of due process is involved. The decisions of secular courts are not precedents for us, though their logic may be persuasive where the facts and issues are similar. Among the cases dealing with the question of whether the applicable statute of limitations in perjury cases is that relating to the false statement, or that governing the previous acts with relation to which the statement was made, are U.S. v. Novack, 271 US 201, Marzani v. U.S., 163 Fed2d 133, U.S. v. Masarik, 131 FS 555 and U.S. v. Alger Hiss, 185 F2d 822, 833. These cases look to the time of the making of the allegedly false statement. The appellant has argued that it was but a technical manuever to charge him with the statements of 1979 and that he was really being tried for the events of 1977 which took place a little more than two years before the filing of the charges. The record, however, contains an abundance of evidence to demonstrate that the appellant was told, and surely must have understood, that his answers to questions would be very important and have a significant effect upon the appointive process. The record conclusively demonstrates that the charges were neither trivial nor technical. 6. The accused complained of the denial of a motion to limit the evidence to documents furnished him. There is no disciplinary provision requiring production of documents. Further there is no showing that the accused was taken by surprise or disadvantage. 7. This contention was subsequently withdrawn by the appellant. 8. This contention is the basis for the reversal of the decision of the Trial Court. It is quite possible that the defendant was in no way actually prejudiced by whatever the Presiding Officer may have said to the Trial Court outside of his presence after the court had already reached its decision but was still considering the penalty. The eventual penalty was very similar to that discussed at length in his presence and substantially similar to that which his counsel suggested. The record impressively demonstrates consistent efforts at every stage, in the selection of the Trial Court, in the trial itself and throughout the proceedings before the Jurisdictional Court of Appeals, to give the accused a fair trial and the benefit of every reasonable doubt. He was given every opportunity to present his defense and Christian concern for him and his wellbeing was manifested. Decision No. 116 of the Judicial Council of the Methodist Church dealt with a number of similar issues, and there the Council, finding substantial compliance with the established law of the church, denied that appeal. In that case there was claim of a violation of Par. 1018 of the 1952 Discipline of the Methodist Church, a provision almost verbatim the same as Par. 2548.9 of the 1976 Discipline of the United Methodist Church. In that case, though, there was evidence that when the Presiding Officer of the Trial Court gave instructions in the absence of the accused and his counsel they had absented themselves for an unreasonable time after the scheduled convening of the Court. In this case the appellant and his counsel were present in the room in which the trial had been conducted and were immediately available when the conference of the Presiding Officer and the Trial Court took place. While the violation was doubtless inadvertent, Par. 2548.9 is designed to protect the right of an accused to an open trial and must be carefully followed. 9. It was claimed that a member of the Trial Court, after he had been selected but before the trial began, discussed the case with someone though he had been instructed by the bishop at the time of selection not to talk about it. No disciplinary provision was thereby violated. The bishop's instruction was appropriate, but not required. There is no showing as to what was said by the member of the Trial Court or that anything was said to him. The record shows no way in which the accused was prejudiced by this incident, and I do not consider it grounds for reversal. 10. In my opinion the accused is correct in claiming that it was error to reassemble the Trial Court on December 1 to modify the penalty it had imposed on October 29 because the original penalty contained a recommendation which apparently had not been acted upon. That error, however, would not have warranted our ordering a new trial. Par. 2548.5 provides that the court is a continuing body until the final disposition of the charge, and that if a member of the court should be unable to attend all of the sessions that person may not vote upon the final determination of the case, but the rest of the court may proceed to judgment. Clearly, "final disposition of the charge" takes place when the court announces its decision and imposes a penalty. In this case the Trial Court terminated on October 29 and the penalty which it then fixed, rather than any subsequent attempt at modification, would be final had it not been necessary for us to reverse the decision and direct a new trial for the reasons stated in the Decision. Leonard D. Slutz

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