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Decision No. 846

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October 29 1998
In Re: Review of Bishop's Decisions of Law in the South Carolina Annual Conference Concerning Matters Related to the Process of Investigation of a Complaint Against a Clergy Member.

Digest of Case

When a request for a declaratory decision is presented as a request for an episcopal decision of law the bishop may rule that the request is moot and hypothetical. The Church does not have a right to an appeal when a judicial matter does not go to trial. Conditions under which an involuntary leave of absence is imposed must be satisfied before a pastor is permitted to come off leave of absence. A bishop is not required to respond to requests for decisions of law that are improper, but must rule that the questions are improper. There is no conflict between ¶ 2626.6e and ¶ 2626.6b nor between ¶ 2626.6e and ¶ 2623.3b. A bishop is not required to respond to a declaratory statement when improperly posed as a request for an episcopal decision of law, but must state that it is an improperly posed question. The decisions of the Bishop J. Lawrence McCleskey are affirmed with the exceptions that no response is required to an improperly posed question of law other than that it is an improper question, and a bishop is not required to respond to a declaratory statement posed as a request for an episcopal decision of law except to state that the statement is not a proper question of law.

Statement of Facts

A clergy member in full connection in the South Carolina Annual Conference was accused of embezzling funds from a congregation in Greenville, South Carolina, where he had served as pastor from 1992 to 1996. The congregation also filed criminal charges against the former pastor. The pastor was subsequently charged by the Greenville County Solicitor's Office with breach of trust greater than $5000. Upon learning of the allegations the resident bishop asked the executive committee of the Conference Board of Ordained Ministry to recommend that the pastor be placed on sixty days suspension, in accordance with ¶ 358.1c of the 1996 Discipline. The executive committee of the Board of Ordained Ministry met on March 6, 1997 and made the requested recommendation. The bishop suspended the pastor for sixty days forthwith. In his letter of suspension to the pastor the bishop indicated that he might be required to ask the counsel for the Church to bring a judicial complaint based on allegations of financial misconduct. The bishop also indicated in the letter to the pastor that if all matters related to the allegations had not been resolved at the end of the sixty day suspension the district superintendents might ask the executive committee of the Board of Ordained Ministry to approve an involuntary leave of absence. The matters related to the allegations were not resolved at the end of the sixty day suspension period and the district superintendents asked the executive committee of the Board of Ordained Ministry to approve an ad interim involuntary leave of absence. The basis for the request for an ad interim leave of absence was stated as being "the unresolved complaint currently being addressed in the supervisory process and through the Greenville County Solicitor's Office, Greenville, South Carolina." The hearing was scheduled for April 24, 1997. Upon receipt of the notice of the hearing on the ad interim leave of absence the pastor requested to receive a copy of the charges and any related information, so as to be able to prepare his defense. Following the hearing on April 24, 1997 the pastor was notified by the chair of the Board of Ordained Ministry that he was to be placed on ad interim leave of absence, effective at the end of this suspension on May 5, 1997. The clergy session of the 1997 Annual Conference, meeting May, 1997, ratified the ad interim leave of absence and continued the pastor on leave of absence. In July, 1997, following another attempt to resolve the matter in a supervisory mode, the bishop appointed a counsel for the Church, who formulated specifications for a judicial complaint. The specifications were forwarded to the Conference Committee on Investigation. The complaints and specifications were: 1. Disobedience to the Order and Discipline of The United Methodist Church [¶ 2624.1e] Re: Pastor's establishment of the Frances Asbury United Methodist Church Discretionary Fund. 2. Immorality [2624.1a] Re: Pastor's illegal immoral influence upon account signatories. 3. Immorality Re: Pastor's personal contributions to the "Special Account" and his altering of his personal contribution records for alleged immoral purposes. 4. Immorality [¶ 2624.1a] Re: Pastor writing checks to himself and suppliers from "Special Account" for alleged immoral purposes. 5. Immorality [¶ 2624.1a] Re: Pastor's business relationship with a church member allegedly established through immoral violation of his trust as a pastor. 6. Relationships and/or behavior that undermines the ministry of another pastor [2624.1g]. At its hearing on Monday, December 1, 1997, the Conference Committee on Investigation concluded its investigative proceeding. The committee concluded that reasonable grounds had not been established to sustain the charges and dismissed all complaints and specifications. The pastor subsequently requested to come off ad interim involuntary leave of absence. The Cabinet did not request that the pastor come off leave of absence, citing as the reason the fact that the issue of breach of trust greater than $5000 had not been resolved. When the clergy session met on May 24, 1998 it continued the pastor on involuntary leave of absence. On May 25, 1998 the counsel for the respondent presented in writing to the bishop, during a regular session of the conference, a request for an episcopal ruling of law on the following questions: (1) Does Division Four, Article IV (Paragraph 56) or any other provision of the Constitution of The United Methodist Church call for a judicial system that guarantees the right to an appeal to anyone other than our clergy and our members? (2) Does Paragraph 2628 (Appeal Procedures) provide the right of appeal to the Church or its Counsel? (3) Does Paragraph 2628.1j give its presiding officer of an Annual Conference or the Executive Session of an Annual Conference the authority to decide errors of Church law have been (sic) committed by those in charge of an investigation? (4) Do Division Four, Article IV (Paragraph 56) of the Constitution, Paragraph 2623.5 and/or Paragraph 2627.1e require that a clergy member who has been suspended or placed on leave of absence be restored without delay when the Committee on Investigation decides that there is no reasonable ground for any of the charges against him/her and does not certify any charges as proper for trial? Another elder in full connection in the conference during the regular session of the conference on May 25, 1998 presented in writing to the presiding bishop a request for an episcopal decision of law on the following questions: (1) Does 2628.1j give the church the right to appeal when the matter does not go to trial? (2) Is Paragraph 2621.6b in conflict with Paragraph 2626.6e? If so, which paragraph takes precedence over the other? (3) Is Paragraph 2626.6e in conflict with Paragraph 2626.3b? If so, which paragraph takes precedence over the other? (4) I request that the provisions of Paragraph 2628.1j be implemented at the earliest possible time. Theodore H. Walter recused himself and did not participate in any of the proceedings that involved this petition. Jurisdiction The Judicial Council has jurisdiction under ¶ 2613 of the 1996 Discipline. Analysis and Rationale In response to the question posed by the counsel for the respondent: Does Division Four, Article IV (Paragraph 56) or any other provision of the Constitution of The United Methodist Church call for a judicial system that guarantees the right to an appeal to anyone other than our clergy and our members? the bishop ruled: The question is moot because: (a) it is improperly stated as a request for a decision of law when it is in fact a request for a Declaratory Decision; and, (b) because there is not existing appeal in the judicial matter referenced. In giving the rationale for his decision the bishop stated: Although asked under the jurisdiction of Par. 2613, which deals with bishops' rulings of law, this question is a request for a Declaratory Decision. The provisions of Par. 2616 give to the Judicial Council alone the authority to make Declaratory Decisions. Therefore the bishop has no jurisdiction in such requests. In addition, though this question is a request for a Declaratory Decision, such a request must come from one of the bodies listed in Par. 2616.2, by vote of the body; therefore it is improper for the request for a Declaratory Decision to come from an individual. Further, since there is no existing appeal in the judicial matter referenced the request for a decision about appeal is moot (reference Judicial Decision 33). The rationale set forth by the bishop in the above statement is valid, and his decision pertaining to this question is affirmed. In response to the second request for an episcopal ruling made by the counsel for the respondent: Does Paragraph 2628 (Appeal Procedures) provide the right of appeal to the Church or its Counsel? the bishop ruled: The question is moot because: (a) it is improperly stated as a request for a decision of law when it is in fact a request for a Declaratory Decision; and (b) because there is no existing appeal in the judicial matter referenced. The rationale set forth for this decision by the bishop is as follows: As with the first request, this question is a request for a Declaratory Decision, and the same rationale in this regard cited in response to the first request, there is no existing appeal in the judicial matter referenced; therefore the question is moot. Though Judicial Decision 595 has ruled that the Church does not have the right to initiate an appeal, that issue is moot in regards to this question since there is no existing appeal in the judicial matter referenced. The bishop has correctly indicated a valid rationale for his decision, and the bishop's decision of law related to this question is affirmed. In response to the request for an episcopal decision of law submitted by the counsel for the respondent on the following question: Does Paragraph 2628.1j give its presiding officer of an Annual Conference or the Executive Session of an Annual Conference the authority to decide errors of Church law have been (sic) committed by those in charge of an investigation? The bishop ruled: The question is moot because it is improperly stated as a request for a decision of law when in fact it is a request for a Declaratory Decision and it is hypothetical because it does not relate to an actual situation or set forth any circumstances or acts upon which a specific ruling may be rendered. In justifying his decision the bishop stated: As with the previous two requests, this question is a request for a Declaratory Decision, and the same rationale in this regard cited in response to the first request applies in this one as well. Also, in the question as stated there is no reference to an error or an alleged error of Church law in the judicial matter referenced, thereby rendering the question hypothetical in the light of Judicial Decision 799 which requires that questions of law must relate to actual situations and must set forth the circumstances or acts upon which a specific ruling may be rendered. This council, in Decision 799, and in several other decisions, e.g. 396, 651, 746, 747, 762 and 763, reiterated that regarding moot and hypothetical questions the key principle is: "Moot and hypothetical questions shall not be decided." The bishop has properly referenced the principle in his citation of Decision 799. The decision of the bishop relating to this question is affirmed. In response to the request for an episcopal decision of law submitted by the counsel for the respondent on the following question: Do Division Four, Article IV (Paragraph 56) of the Constitution, Paragraph 2623.5 and/or Paragraph 2627.1e require that a clergy member who has been suspended or placed on leave of absence be restored without delay when the Committee on Investigation decides that there is no reasonable ground for any of the charges against him/her and does not certify any charges as proper for trial? the bishop ruled: The ruling in this question is twofold: First, the question is moot since ¶ 2627.1i is raised in relation to disciplinary paragraphs (56, 2623.5 and 2627.1) which deal with trial and appeal, double jeopardy in a judicial proceeding, and suspension of a clergy person during a trial or appeal. In the referenced judicial matter there was no trial, there is no existing appeal, and there was only one investigative proceeding conducted thereby rendering double jeopardy impossible. Thus the question is moot. Second, there is no requirement in the paragraphs cited in the question which contravene the paragraphs under which the involuntary leave of absence was granted. It is proper for the conditions under which a leave of absence is granted to be resolved prior to the termination of the leave. Thus there is no requirement by ¶ 56, ¶ 2623.5, ¶ 2627.1.i that the leave be terminated prior to resolution of the conditions upon which it was originally granted. In explaining his ruling the bishop points out that ¶ 56 guarantees the right to trial and appeal; ¶ 2523.5 precludes double jeopardy as a component of fair process in a judicial proceeding. Par. 2621.e deals with suspension and recompensation once a pastor has been found innocent of all charges. In the instant case there was no denial of right to trial; no issue of double jeopardy, as there was no trial, so that ¶¶ 56 and 2623.5 are not applicable. One may be kept on involuntary leave of absence until all conditions which precipitated the leave have been satisfied. In the instant case there were two conditions to be met before the pastor was eligible to come off leave of absence: (1) resolution of the complaints which were brought by the Church, and, (2) resolution of the criminal charges against the pastor. Although the Committee on Investigation determined that there were no reasonable grounds to sustain the allegations lodged by the Church, the issue related to the criminal charges has not been resolved. Since the latter condition for coming off involuntary leave of absence had not been met, the clergy session was within its right in continuing the pastor on involuntary leave of absence. The bishop is affirmed in his ruling on this question. The first question raised by the second elder in full connection was: Does 2628.1j give the church the right to appeal when the matter does not go to trial? The bishop ruled: Paragraph 2628.1j is unconstitutional in light of Judicial Decision 595 and 799; therefore this paragraph does not give the Church the right of appeal when the matter does not go to trial. If one considers this question alone it is also a request for a declaratory decision, and would, therefore, be out of order as it comes from an individual rather than one of the entities authorized by the Discipline to make requests for declaratory decisions. Even if it were properly posed, the cited paragraph is in reference to appeal procedures and in the instant case there was no trial, so there is no appeal pending. In Decision 595, however, this council ruled that: The Church does not have the right to initiate an appeal but it does have the right to respond, to submit briefs, and to argue at every level, once the appeal process has been initiated. Further, in Decision 799 this council stated: Substantive rulings by a bishop which comes under the purview of the judicial and/or administrative process are improper; however, a bishop must rule on such matters as improper. The bishop has ruled that ¶ 2628.1j is unconstitutional in light of Judicial Council Decisions 595 and 799. As stated, the bishop's ruling gives the impression that he is ruling the referenced paragraph unconstitutional. Obviously, only the Judicial Council can make such a ruling. The correct ruling by the bishop should have been that the question posed is improper in light of Decision 799. The decision of law as rendered is not affirmed for reasons set forth above. The second question raised by the second elder: Is Paragraph 2621.6b in conflict with Paragraph 2626.6e? If so, which paragraph takes precedence over the other? The bishop ruled: Par. 2626.6b is not in conflict with 2626.6e and it is expected that the Committee on Investigation will follow both paragraphs in the conduct of its business. Standing alone, this question may also be viewed as a request for a declaratory decision but viewed in relationship to the pastor who was placed on involuntary leave of absence, it is a properly posed question. The relevant sentence in ¶ 2626.6b is: "A respondent shall be entitled to choose one assistant counsel without voice who may be an attorney." The relevant statement in ¶ 2626.6e is: The chairperson shall have the power, whenever it is appropriate in the committee's own discretion, to appoint a member(s) of the committee to interview any witness(es)... The issue in this question is whether it was appropriate for the chair of the Committee on Investigation to permit the assistant counsel for respondent to testify as a witness in the hearing before the Committee on Investigation. Clearly, as indicated in ¶ 2626.6b, the assistant counsel is without voice, cannot participate in the hearing, except to advise his/her client. In calling its witnesses, the Committee on Investigation may not call the assistant counsel to testify. This prohibition is not in conflict with the cited provision in ¶ 2626.6e above. The ruling of the bishop is affirmed on his ruling on this question. The third question posed by the second elder is: Is Paragraph 2626.6e in conflict with Paragraph 2626.3b? If so, which paragraph takes precedence over the other? The bishop ruled: Par. 2626.6e is not in conflict with Par. 2626.3b, and it is expected that the Committee on Investigation, in following the provisions of both paragraphs, will call and give voice only to witnesses allowed voice by disciplinary provisions. Again, standing alone, this question may be viewed as a request for a declaratory decision, but when viewed in reference to the pastor in question it may be determined as a request for an episcopal decision of law. The relevant statement in ¶ 2626.3b is: Counsel for the Church shall be entitled to choose one assistant counsel without voice who may be an attorney. The relevant statement in ¶ 2626.6e has been cited above, and as above, there is no conflict between the two paragraphs. The ruling of the bishop is affirmed on this question. The fourth question posed by the second elder: I request that the provisions of Paragraph 2628.1j be implemented at the earliest possible time. is not a request for an episcopal decision of law but is a declaratory request. The bishop ruled: Par. 2628.1j is unconstitutional in light of Judicial Decisions 595 and 799, and the bishop therefore does not have the right to correct errors of Church law or administration committed by those in charge of the investigation, the presence of such errors notwithstanding. As the fourth question raised by the second elder was not a question but a declaratory statement, the bishop should have declared it as such, and declined to have responded to the statement, except to state that it was not a properly posed question. The ruling of the bishop on this question is not affirmed.

Decision

When a request for a declaratory decision is presented as a request for an episcopal decision of law the bishop may rule that the request is moot and hypothetical. The Church does not have a right to an appeal when a judicial matter does not go to trial. Conditions under which an involuntary leave of absence is imposed must be satisfied before a pastor is permitted to come off leave of absence. A bishop is not required to respond to requests for decisions of law that are improper, but must rule that the questions are improper. There is no conflict between ¶ 2626.6e and ¶ 2626.6b nor between ¶ 2626.6e and ¶ 2623.3b. A bishop is not required to respond to a declaratory statement when improperly posed as a request for an episcopal decision of law, but must state that it is an improperly posed question. The decisions of the bishop are affirmed with the exceptions that no response is required to an improperly posed question of law other than that it is an improper question, and a bishop is not required to respond to a declaratory statement posed as a request for an episcopal decision of law except to state that the statement is not a proper question of law. Concurring Opinion We concur with our colleagues in the foregoing decision. However, we write to point out that we have serious constitutional concerns about ¶ 2628.1j. This paragraph grants to bishops (the executive body) the authority to correct errors in Church law or defects in judicial proceedings. And it grants to an Annual Conference (the legislative body) the authority to order just and suitable remedies if injury occurs from such errors. This is a constitutional violation of the separation of the powers of the legislative, executive and judicial bodies of the Church. (For reference see Decision 799.) It is our opinion that this paragraph will be declared unconstitutional when an appropriate case comes before the Judicial Council.. Wesley Bailey C. Rex Bevins Evelynn S. Caterson Susan T. Henry-Crowe Zan Holmes Tom Matheny Ted Walter

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