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Decision No. 691

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October 29 1993
In Re: Interpretation of Paragraphs 453.5, 454.1(a), 454.1(f), 2622.2, 2622.6 and 2625.1(b) and Their Effect on Grievance Procedures.

Digest of Case

1. Withdrawal under Par. 453.5 is effective immediately. 2. Mediators must be neutral outside parties, and must be trained. No grievances are excluded by Discipline from mediation. 3. An ordained minister who withdraws under complaints or charges forfeits the constitutional right to trial. 4. A Board of Ordained Ministry may not recommend involuntary location based on any evidence not made known to the respondent. 5. A change in a statute of limitations may not take effect retroactively, nor may church laws defining chargeable offenses be made retroactive. 6. The Joint Review Committee must comply with the provisions of Par. 2622.2.

Statement of Facts

In the 1993 session of the Minnesota Annual Conference, a motion was adopted to petition the Judicial Council for a decision to answer the following questions: l. Does Par. 453.5 mean that a clergy member who has withdrawn is still a member until the clergy session confirms that withdrawal, or does membership cease immediately upon notification of withdrawal? 2. (A) Does the final sentence of Par. 454.1(a) require that if mediation is chosen as part of supervisory response, the mediator must be a trained neutral third party mediator or team? (B) Are there some grievances (such as those relating to sexual abuse) which cannot be mediated? 3. Does the requirement in Par. 454.1(f) that choice of withdrawal or trial must be made within ten days mean that if an ordained minister chooses withdrawal he or she has forfeited any further possibility of exercising his or her right to trial? 4. Does Par. 2522.6 mean that the Board of Ordained Ministry cannot recommend involuntary termination on the basis of documents or oral allegations which have not been shared with the respondent? 5. Does the exception clause relating to child abuse or sexual abuse in Par. 2625.1(b) mean that an ordained minister can be charged with offenses of this nature which were committed before they became chargeable offenses under church law? 6. Does Par. 2622.6 refer (later corrected to read "apply") to the work of the Joint Review Committee? Peter Milloy and Kevin Baxter appeared in oral argument on October 28, 1993 in Atlanta, Georgia. JURISDICTION The Judicial Council has jurisdiction under Par. 2616 of the 1992 Discipline. ANALYSIS 1. If a clergy member withdraws from an Annual Conference between sessions, under Par. 453.5, it is effective immediately. If this were not the case, the paragraph would have no meaning, as a person could not withdraw until the Annual Conference was in session to approve the action. The person who had chosen withdrawal would remain a clergy member of the Annual Conference, eligible for appointment, and the bishop would be under obligation to make that appointment unless the person was placed on leave of absence, disability leave, of other inactive status. If it were intended that some inactive status should be invoked in such cases, withdrawal between Annual Conference sessions would have no effect and the paragraph providing for it would serve no purpose. Therefore, withdrawal between Annual Conference sessions is effective immediately. The Annual Conference later confirms, as a matter of record, that withdrawal has occurred. 2(A). As used in Par. 454.1(a), mediation clearly assumes the presence of a neutral third party. Efforts toward reconciliation may be made by the parties involved, including consultation with various persons and groups within the supervisory structure. If mediation is chosen, it reaches outward beyond that supervisory structure to disinterested, neutral parties who may function as intermediaries. It is required that any who serve in that capacity shall be trained for the task. (B). No grievances are excluded from mediation by Par. 454.1(a), though practical considerations might make successful mediation in some cases less likely than in others. 3. If a clergy member chooses to withdraw under complaints or charges (Pars. 453.4, 453.5, 454.1(f), 2628.2), the right to trial is forfeited by that withdrawal. The person is no longer a clergy member and therefore is not included in the constitutional guarantee of the right to trial for an offense with which clergy may be charged. 4. Par. 2622.6 explicitly requires that any respondent in a judicial proceeding "shall have access to all records relied upon in the determination of the outcome of any and all aspects of processes related to or which may culminate in a judicial proceeding." If a Board of Ordained Ministry makes any recommendation involving a change in conference standing, all records on which that decision is based must be available to the respondent. If oral allegations enter in any way into that decision, they must be considered a part of the record and made available. All records must be provided in timely fashion to enable the respondent to prepare a response. 5. A change in a statute of limitations may not take effect retroactively, nor may church laws defining chargeable offenses be made retroactive. A person may not be charged with an offense which was not a violation at the time it was alleged to have been committed. However, this is not to say that child abuse or sexual abuse may not have been chargeable under a previous Discipline as immorality, crime, unministerial conduct, or other imprudent and unchristian conduct. Any charges filed must be in the language of the Discipline in effect at the time the offense is alleged to have occurred. In the 1992 Discipline, child abuse is not listed separately as a chargeable offense, but it is explicitly exempted from the six-year statute of limitations. If child abuse is alleged to have occurred during the period in which the 1992 Discipline is in effect, any resulting charge must be among those listed in Par. 2623 of the 1992 Discipline. If an earlier Discipline was in effect at the time of the alleged offense, any charge filed must be one which was listed in that Discipline. A person may be charged with an offense only if it was a chargeable offense in the Discipline in effect at the time the action was committed. 6. As indicated above, Par. 2622.6 requires that the respondent have access to "all records relied upon in the outcome of any and all aspects of processes related to or which may culminate in the judicial proceeding." It must be concluded that Par. 2622.2 applies to the work of the Joint Review Committee, since that work is related to and may culminate in a judicial proceeding. Par. 454.1(c), describing the work of the Joint Review Committee, agrees: "The personagainst whom a complaint is lodged, the respondent, shall be entitled to receive, prior to the hearing, a copy of the complaint and all supporting materials."

Decision

1. Withdrawal under Par. 453.5 is effective immediately. 2. Mediators must be neutral outside parties, and must be trained. No grievances are excluded by Discipline from mediation. 3. An ordained minister who withdraws under complaints or charges forfeits the constitutional right to trial. 4. A Board of Ordained Ministry may not recommend involuntary termination based on any evidence not made known to the respondent. 5. A change in a statute of limitations may not take effect retroactively, nor may church laws defining chargeable offenses be made retroactive. 6. The Joint Review Committee must comply with the provisions of Par. 2622.2.

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