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Decision No. 800

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April 24 1997
In Re: Request from the West Ohio Annual Conference for Reconsideration of Judicial Council Decision 788.

Digest of Case

The Judicial Council's Decision 78S is modified to remand to the West Ohio Annual Conference its Resolution entitled "Confidentiality and Responsibility for Addressing Sexual Misconduct and Harassment." The West Ohio Annual Conference is instructed to modify the language of its Resolution to reflect the language in Decision No. 736 and ¶ 332.5, 1996 Discipline. The West Ohio policy as presently worded has no effect and is a nullity until it is reviewed and approved by the Judicial Council.

Statement of Facts

During its Fall, 1996 session, in Decision No. 788, the Judicial Council ruled that the West Ohio Annual Conference's Resolution, "Confidentiality and Responsibility for Addressing Sexual Misconduct and Harassment" violated ¶ 440.5 of the 1992 Discipline. [¶ 332.5, 1996 Discipline] That paragraph regards confidentiality. Subsequent to the council's decision, because of legal and policy considerations, the West Ohio Annual Conference filed for reconsideration of Decision No. 788. The request for reconsideration was granted. The General Council on Finance and Administration filed a "Friend of the Court" brief, supporting the West Ohio Annual Conference's position. Others have filed both supporting and opposing briefs. Jurisdiction The Judicial Council has jurisdiction under ¶ 2616 of the 1996 Discipline and Rule No. 13 of the Rules of Practice and Procedure of the Judicial Council. Analysis and Rationale In June, 1996, the West Ohio Annual Conference passed a Resolution entitled "Confidentiality and Responsibility for Addressing Sexual Misconduct and Harassment." The West Ohio Annual Conference then asked the Judicial Council whether the language of that Resolution violated ¶ 440.5 of the 1992 Discipline [hereinafter referred to as 'J 332.5, 1996 Discipline] regarding confidentiality, We held that the language of the Resolution violated P 440.5. We continue to hold the view that, as presently worded, the language of the Resolution violates P 332.5, 1996 Discipline and Decision 736, and, as presently worded, cannot be justified on the basis of the legal and policy grounds advanced by both the West Ohio Annual Conference and the General Council on Finance and Administration. The position of the West Ohio Annual Conference does not differentiate between accusation, allegation, and conviction. Nor does it take into account the long history in The United Methodist Church and nearly all denominations of the sanctity of privileged communication between clergy and penitent. Historically the provision of P 332.5 in the 1996 Discipline has been a fundamental and paramount provision of the Discipline and polity of The United Methodist Church and its predecessor bodies. The provision insures the sanctity of confidential relations, both confessional and otherwise, and preserves them and is not restricted to penitent clergy confession. This has been true of most of the Protestant denominations. Even Martin Luther, when asked whether secrecy should be preserved and a pastor should testify, replied: By no means! For one must distinguish between the authority of the church and the authority of the state. The woman did not confess to me but to Christ. But what Christ keeps secret I, too, must keep secret and simply deny that I have heard anything. If Christ has heard anything, He may Himself say so. The Resolution can, however, be reformed to accomplish West Ohio Annual Conference's stated purpose of being in compliance with P 332.5 of the 1996 Discipline and Judicial Council Decision 736. If this council were to approve the West Ohio Annual Conference's Resolution, as presently worded, this council would be usurping the legislative function of the General Conference by effectively amending the language of P 332.5, 1996 Discipline to read, "All clergy of The United Methodist Church are charged to maintain all confidences inviolate, including confessional confidences, EXCEPT when such confidences are required to be disclosed by local. state or federal law." We decline the invitation to such usurpation, Such amendment authority is within the exclusive jurisdiction of the General Conference. [PP 15.15 and 501, 1996 Discipline]. In its Brief, [at p. 16] the West Ohio Annual Conference recognizes this invitation as usurpation of authority, but attempts to justify it by saying "In promulgating P 332.5 and its predecessor and paragraphs, the General Conference is no more likely to have anticipated all the critical issues which have emerged for United Methodism, than the framers of the United States Constitution could have predicted the critical issues which continue to confront this nation." We do not find arguments of West Ohio Annual Conference and the General Council on Finance and Administration compelling. Therefore, we leave to the sound discretion of the General Conference the question of whether the language of P 332.5 should be amended in accordance with the West Ohio Annual Conference's suggestions. We might mention that there were a number of amicus briefs filed.with us, We have taken those into consideration. However, we are constrained to point out that the brief submitted by the General Council on Finance and Administration is overreaching and improper. The brief of the General Council on Finance and Administration could be interpreted to reflect the position of The United Methodist Church when in fact, it is only the position of that council. No person or general agency can speak for The United Methodist Church. Only the General Conference can speak for The United Methodist Church. ¶ 509, 1996 Discipline This council does, however, recognize The United Methodist Church's overwhelming desire to stop – absolutely and unequivocally – all sexual misconduct, and the denomination's policy and philosophy of respect for and obedience to civil authority. That philosophy underlies the language of ¶¶ 65.g, 66.c and 68.b, 1996 Discipline. We see nothing in the Ohio language which confessions and its respect for and conscientiously balances the church's joint obligations as a sanctuary for obedience to civil authority. By its ruling in Decision 788, the Judicial Council is not attempting to protect persons who engage in sexual misconduct. Quite to the contrary, everything this council has written in the last several years has attempted to make clear that such conduct is absolutely unacceptable and shall not be tolerated. Nevertheless, this council has, likewise, required that policies regulating and addressing such conduct be consistent with rights and privileges contained within the Discipline of The United Methodist Church. [See Decision 736]. The West Ohio Annual Conference's Resolution, as presently worded, fails to achieve that consistency. We are, however, of the opinion that the West Ohio Annual Conference's Resolution can be re-written in such a way as to forbid sexual misconduct and be consistent with language of the Discipline and Decision 736. We, therefore, remand this Resolution to the West Ohio Annual Conference, and instruct the Conference to rewrite the Resolution in a manner consistent with the Discipline and Decision 736.

Decision

The Judicial Council's Decision 78S is modified to remand to the West Ohio Annual Conference its Resolution entitled "Confidentiality and Responsibility for Addressing Sexual Misconduct and Harassment." The West Ohio Annual Conference is instructed to modify the language of its Resolution to reflect the language in Decision No. 736 and ¶ 332.5, 1996 Discipline, The West Ohio policy as presently worded has no effect and is a nullity until it is reviewed and approved by the Judicial Council. This copy subject to final editing and correction.

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