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Decision No. 836

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October 29 1998
In Re: Request From the Minnesota Annual Conference for a Declaratory Decision on Whether ¶¶ 358.1b, 2623, and 2626.1 of the 1996 Discipline Violate the Constitution When They Define Judicial Process as Beginning Only with the Referral of a Complaint to the Committee on Investigation.

Digest of Case

The current supervisory process as defined in the 1996 Discipline does not deny the respondent the rights of fair process nor the constitutional right of trial. Pars. 358.1b, 2623 and 2626.1 of the 1996 Discipline do not violate ¶ 15 of the Constitution. The General Conference in ¶ 15.7 is authorized to provide a judicial system and a method of procedure. Par. 15.7. states: To provide a judicial system and a method of judicial procedure for the Church, except as herein otherwise prescribed. The Constitution does not prohibit the General Conference from establishing a supervisory process. The supervisory process may proceed to a judicial process if the complaint becomes the grounds for a formal complaint in accordance with the disciplinary procedure.

Statement of Facts

During the regular 1998 session of the Minnesota Annual Conference a motion made by a clergy member was adopted to request from the Judicial Council a declaratory decision on the question: Do Paragraphs 358.1b, 2623 and 2626.1 violate Section II Article IV Par. 15 of the UMC Constitution when they define judicial process as beginning only with the referral of a complaint to the Committee on Investigation and withhold fair process rights from accused persons prior to such referral? The cited paragraphs of the 1996 Discipline are as follows: Par. 358.1b states: b) Supervisory Response—The supervisory response is pastoral and administrative and shall be directed toward a just resolution and/or reconciliation among all parties. It is not part of any judicial process. At any meetings no verbatim record shall be made; no legal counsel shall be present; the person against whom the complaint was made may choose another person to accompany him or her with the right to voice; the person making the complaint shall have the right to choose a person to accompany him or her with the right to voice. Judicial Council Decisions 698 and 723, decided under the 1992 Discipline, relate to this paragraph concerning the fair process. Par. 2623 states: Fair Process in Judicial Proceedings—The following procedures are presented for the protection of the rights of individuals guaranteed under Section III, Article IV of our Constitution and for the protection of the Church. The presumption of innocence shall be maintained until the conclusion of the trial process. At each step in the proceedings listed in ¶¶ 2623 through 2627, efforts for resolution shall continue, so long as these efforts are not used to hinder fair process. The judicial proceedings process and the rights set forth in this paragraph commence upon referral of a matter as a judicial complaint from counsel for the Church to the committee on investigation. Special attention should be given to ensuring racial, ethnic, and gender diversity of boards, committees, and courts and the timely disposition of all matters. 1. In any judicial proceeding, the respondent (the person to whom the procedure is being applied) shall have a right to be heard before any final action is taken. 2. Notice of any judicial process hearing shall advise the respondent of the reason for the proposed procedures, with sufficient detail to allow the respondent to prepare a response. Notice shall be given not less than twenty (20) days prior to the hearing. 3. The respondent shall have a right to be accompanied by another person to any judicial process hearing to which he or she is subject, in accordance with the appropriate disciplinary provisions (see ¶ 2626.6b). The person accompanying the respondent shall have the right of advocacy. 4. In any judicial proceeding, under no circumstances shall one party or counsel, in the absence of the other party or counsel, discuss substantive matters with members of the pending hearing, trial, or appellate body while the case is pending. Questions of procedure may be raised with the presiding officer or secretary of the hearing or appellate body. 5. A person shall not be subjected to a judicial process a second time for the same alleged occurrence(s). 6. The respondent shall have access to all records relied upon in the determination of the outcome of the committee on investigation, trial court, or appeal committee or body. 7. In the event that a clergyperson fails to appear for supervisory interviews, refuses mail, refuses to communicate personally with the bishop or district superintendent, or otherwise fails to respond to supervisory requests or requests from official administrative or judicial committees, such actions or inactions shall not be used as an excuse to avoid or delay any Church processes, and such processes may continue without the participation of such individual. 8. As a part of the judicial process, the bishop and cabinet, in consultation with the presiding officer of the pending hearing, trial, or appellate body then sitting, shall provide for healing within the congregation if there has been significant disruption to congregational life by the judicial matter. This may include a mediation process for unresolved conflicts, support for victims, and reconciliation for all who are involved. This process may also include the sharing of information by the bishop or a cabinet member about the nature of the complaint without disclosing alleged facts underlying the complaint that might compromise the judicial process. Judicial Council Decisions 557, 723, 724, and 695, decided under the 1992 Discipline, relate to ¶ 2623. Decisions 697, 777, 784, decided under the 1992 Discipline, relate to fair process noted in ¶ 2623.5. Decisions 691 and 765, decided under the 1992 Discipline, relate to fair process noted in ¶ 2623.6. Par. 2626.1 states concerning the Committee on Investigation— General—The investigation procedure is the first step in the judicial process. The appropriate committee on investigation (¶ 2626.2c, .3c, .4c) shall conduct the investigation, and if in the judgment of the required number of committee members there is reasonable ground for such charges, they shall sign and certify the charges as proper for a trial (the general offense or offenses under ¶ 2624) and the specifications (e.g., the date, place, and specifics of the events alleged to have taken place). They shall then forward a copy to the person charged, the person making the complaint, and the appropriate Church officials (¶ 2626.2c, .3c, and .4c). Jurisdiction The Judicial Council has jurisdiction under ¶ 2616 of the 1996 Discipline. Analysis and Rationale The 1992 Discipline provided for the Committee on Joint Review to hear and recommend actions with regard to any signed grievance. This process included to seek reconciliation and/or resolution where possible prior to sending the matter as a complaint to the Committee on Investigation. The paragraphs being questioned herein were added to the Discipline at the 1996 General Conference in a restructuring of the handling of issues involving clergy performance. Specifically, after a beginning supervisory process, complaints may now be channeled into two different tracks: one addressing performance concerns which are not chargeable offenses, and the other addressing ¶ 2624 chargeable offenses. The 1996 Discipline is clear that no formal complaint for judicial procedure is established until the bishop sends the signed statement and related materials to the counsel for the Church, who prepares the specifications of the formal complaint to send to the Committee on Investigation. As noted in ¶ 2626.1, "The investigation procedure is the first step in the judicial process. " The supervisory process is clear about the role of the bishop. Any choice of remedial action related to a complaint, which is identified in the supervisory process, shall be voluntary on the part of the respondent. No authority is given the bishop to require a remedial process. It is argued that the new supervisory process, which has no fair process safeguards, is contradictory to Decision 698. Such is not the case. Decision 698 was rendered under the procedures of the 1992 Discipline wherein everything in the supervisory process upward made its way to the Committee on Investigation. The fair process protections were needed because each body involved was using the information of the person or body below. The new procedures require a fresh start if the supervisory response fails to produce resolution or reconciliation. Nothing but the bare complaint is referred. Neither the Committee on Investigation if the complaint is a chargeable offense, nor the Board of Ordained Ministry, if the complaint is to be handled administratively, has any documentation from the supervisory response. In secular terms, these bodies to whom the referral is made hear the case "de novo", i.e. from the beginning. The current supervisory process as defined in the 1996 Discipline does not deny the respondent the rights of fair process or the constitutional right of trial. Pars. 358.1b, 2623 and 2626.1 of the 1996 Discipline do not violate ¶ 15 of the Constitution. The General Conference in ¶ 15.7 is authorized to provide a judicial system and a method of procedure. The Constitution does not prohibit the General Conference from establishing a supervisory process. The supervisory process may proceed to a judicial process if the complaint becomes the grounds for a formal complaint in accordance with the disciplinary procedure. In fact, the 1996 Discipline provides fair process for the respondent to receive written specifications and all related materials based on defined chargeable offenses in the Discipline. Prior to the process of the Committee on Investigation, receipt of the formal complaint with specifications shall be made in a prescribed, timely manner and opportunity given for written response within thirty days. There follows a hearing before the Committee on Investigation with the right of advocacy, timely notice of at least twenty days, and a verbatim record of the hearing. The purpose of the required verbatim of the judicial process is to provide a detailed record for any further process or appeal. The disciplinary ¶¶ 358.1b, 2623 and 2626.1 which deal with supervisory process, fair process and judicial process in the 1996 Discipline do not conflict with Section II, Article IV, ¶ 15. The cited disciplinary paragraphs on supervision, fair process and the judicial/administrative procedure are, in fact, a mandatory and proper exercise of the authority of the General Conference "To provide a judicial system and a method of judicial procedure for the Church. . . ." The prescribed disciplinary, supervisory process does not hinder the respondent’s rights as prescribed by the 1996 Discipline. If and when, reconciliation and/or resolution is not attained, the Discipline provides for a proper hearing, notice, advocacy and verbatim record.

Decision

The current supervisory process as defined in 1996 Discipline does not deny the respondent the rights of fair process nor the constitutional right of trial. Pars. 358.1b, 2623 and 2626.1 of the 1996 Discipline do not violate ¶ 15 of the Constitution. The General Conference in ¶ 15.7 is authorized to provide a judicial system and a method of procedure. Par. 15.7. states: To provide a judicial system and a method of judicial procedure for the Church, except as herein otherwise prescribed. The Constitution does not prohibit the General Conference from establishing a supervisory process. The supervisory process may proceed to a judicial process if the complaint becomes the grounds for a formal complaint in accordance with the disciplinary procedure.

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