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Decision No. 698

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October 29 1993
In Re: Constitutionality of Par. 454.1(c) of the 1992 Discipline with Specific Regard to the Provisions that "No Verbatim Record of the Proceedings Shall be Made" and "No Legal Counsel Shall be Present."

Digest of Case

The sentences in Par. 454.1(c) which state: "No verbatim record of theproceedings shall be made" and "No legal counsel shall be present," are unconstitutional in that they are contradiction to fair process (due process) accorded in Par. 2622 under the provisions of Par. 18 of the Constitution.

Statement of Facts

At the 1993 session, the West Michigan Annual Conference passed the following motion: The West Michigan Annual Conference requests a ruling from the Judicial Council of the United Methodist Church on the Constitutionality of Paragraph 454.1(c) of The 1992 Book of Discipline, specifically in reference to the phrases: "No verbatim record of the proceedings shall be made" and "No legal counsel shall be present." Oral arguments were held on October 28, 1993 at Atlanta, Georgia. S. Dale Lathers appeared, representing the First United Methodist Church of Big Rapids, Michigan. JURISDICTION The Judicial Council has jurisdiction under Par. 2616 of the 1992 Discipline. ANALYSIS At issue is the constitutionality of two sentences of Par. 454.1(c) of the 1992 Discipline, namely: "No verbatim record of the proceedings shall be made"and "No legal counsel shall be present." In both these sentences the language is prohibitive. In context these sentences refer to hearings on complaints referred for resolution to the Joint Review Committee from the chairperson of the Conference Board of Ordained Ministry. Each sentence will be considered separately. The sentence: "No verbatim record of the proceedings shall be made" refersto the hearings conducted by the Joint Review Committee on the complaint referred by the chairperson of the Conference Board of Ordained Ministry. In the secular judicial system there are courts, e.g. General Sessions Court, where no record of the proceedings is kept. The respondent, however, has a right to appeal to a higher court where a trial de novo is held. That is not the case here. If no resolution to the complaint is achieved by the Joint Review Committee, this committee refers the complaint, including the entire file, with any recommendations for remedial action to the Board of Ordained Ministry for its consideration. When the complaint has been received from the Joint Review Committee, the-Board of Ordained Ministry develops its response, based on the report of the Joint Review Committee. No hearing de novo is held. The Board of Ordained Ministry may recommend remedial action, discontinuance, leave of absence, administrative location, or termination. These recommendations, which are frequently followed, are based solely upon the file received from the Joint Review Committee. This file, of course, contains no verbatim record of the proceedings of the Joint Review Committee, thus depriving the respondent the right to be heard by the entity which imposes the sanction. This action is in violation of Par. 2622.1, which was developed to ensure fair process (due process) in accordance with the provisions of Par. 18 of the Constitution. The second sentence at issue in this petition: "No legal counsel shall bepresent," is equally problematic. Since for all practical purposes the proceedings of the Joint Review Committee establish the basis upon which sanctions may be recommended, and subsequently implemented, this is the beginning of the judicial process. Fair process (due process), under the provisions of Par. 2622.3, accords the respondent the right to be accompanied by another person to any interview or hearing to which the accused is subject. Said accompanying person shall have the right of advocacy. There is no prohibition in this paragraph against such person being an attorney. In fact, one definition of an advocate is one who is learned in and duly admitted to practice law. To deny the respondent to select his/her advocate, albeit an attorney, would be to infringe upon his/her right to choose the advocate. This prohibition is in contradiction of the ensurance of fair process (due process) which is accorded in Par. 2622, under the provisions of Par. 18 of the Constitution. The respondent should have the opportunity to have legal counsel present at every level of the administrative or judicial process pursuant to Par. 2622.3.

Decision

The sentences in Par. 454.1(c) which state: "No verbatim record of theproceedings shall be made" and "No legal counsel shall be present," are unconstitutional in that they are in contradiction to fair process (due process) accorded in Par. 2622 under the provisions of Par. 18 of the Constitution.

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