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Decision No. 902

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October 26 2000
In Re: Review of Bishop’s Decision of Law in the California-Nevada Annual Conference Related to ¶ 2628.1(j) of the 1996 Discipline Which Was Declared Unconstitutional by the Judicial Council in Decision 872.

Digest of Case

The decision of law of Bishop Melvin G. Talbert, that he did not have authority to review the actions of the Committee on Investigation in light of the unconstitutionality of ¶ 2628.1(j), is affirmed.

Statement of Facts

On January 16, 1999, 68 clergy of the California-Nevada Annual Conference officiated at or participated in a service of celebration of a holy union. Thereafter, numerous complaints were filed against these clergy alleging a violation of the 1996 Discipline, and particularly ¶ 65.C. Par. 65.C provides in relevant part: Ceremonies that celebrate homosexual unions shall not be conducted by our ministers and shall not be conducted in our churches. In due course, a Committee on Investigation considered the complaints filed against the 68 clergy. The Committee issued its decision on February 8, 2000 stating: These respondents [the 68 clergy charged] acknowledge their participation in the celebration. . . . The Committee on Investigation for Clergy Members does not certify the Judicial Complaint dated May 10, 1999, relating to the Service of Celebration of the Holy Union of Jeanne Barnett and Ellie Charlton held on January 16th, 1999, Sacramento, California against (see list of names attached) as a charge proper for trial. During the June 17, 2000 session of the California-Nevada Annual Conference, the presiding bishop, Melvin G. Talbert, was asked to rule on questions of law submitted in separate writings by two different lay persons to the bishop during the regular business of the session. The first lay person asked: Does the presiding officer of the Annual Conference according to ¶ 415 (Presidential Duties) have a responsibility under ¶ 2628(j) [sic] to correct the errors of the judicial process committed by the Committee on Investigation in response to the complaints against the respondents to the alleged events of January 16, 1999? The bishop ruled as follows: My ruling on the question is “no.” The Judicial Council in Decision #872 declared paragraph 2628.1(j) unconstitutional. Therefore, a bishop has no authority to correct any investigation process, especially since the Book of Discipline does not grant such authority except at the point which has been voided by the Judicial Council. The second lay person asked: 1. Was the decision of the committee on investigation signed by the chairman on February 8, 2000, finding and holding that an admitted violation of Par. 65C is not a proper charge for trial, erroneous under church law? 2. If it was, what action will you take to correct the error? 3. Paragraph 2628(j) [sic]1 authorizes a request to correct errors in investigative proceedings that result in no trial to be made in open session of the annual conference. On what basis can an attempt to make such a request be held out of order even before the basis (nullification) for the request is stated. In correspondence directed to the second lay person, the bishop referred to the inquiry of the first lay person set forth above and stated, “My ruling was ‘no.’ I gave as my reason the fact that the Judicial Council Decision #872 declared the paragraph 2628.1(j) unconstitutional. So my ruling applies to your question.” Jurisdiction The Judicial Council has jurisdiction under ¶ 2613 of the 1996 Discipline. Analysis and Rationale In Decision 872, the Judicial Council held ¶ 2628.1(j) of the 1996 Discipline unconstitutional stating that the paragraph “grants to a bishop and an annual conference of the church powers and authorities which are reserved to other organizational bodies and divisions in the Constitution.” The unconstitutionality of ¶ 2628.1(j) required the bishop to rule, as he did, on the question asked by the first lay person, and the second and third questions asked by the second lay person. Therefore, the bishop’s decisions of law are affirmed in this regard. The first question of law asked by the second lay person is the same question addressed in Decision 903 and is addressed there.

Decision

The decision of law of Bishop Melvin G. Talbert, that he did not have authority to review the actions of the Committee on Investigation in light of the unconstitutionality of ¶ 2628.1(j), is affirmed.

We concur in the decision of the Judicial Council in this matter because the precedent of Decision 872 necessitates the result. Nevertheless, we dissent from the decision because we believe that Decision 872 should be reconsidered and reversed. We are of the opinion that ¶ 2628.1(j) of the 1996 Discipline is constitutional for the reasons set forth below. The General Conference enacted ¶ 2628.1(j) under its broad powers granted by ¶ 15 of the Constitution which provides: The General Conference shall have full legislative power over all matters distinctively connectional, and in the exercise this power shall have authority as follows: 3. To define and fix the powers and duties of annual conferences . . . . 5. To define and fix the powers, duties, and privileges of the episcopacy . . . . 7. To provide a judicial system and a method of judicial procedure for the Church, except as herein otherwise prescribed. . . . 15. To enact such other legislation as may be necessary, subject to the limitations and restrictions of the Constitution of the Church. Par. 2628.1(j) is found in Chapter 7, Judicial Administration, of the Discipline, and is specifically placed within Section II of that Chapter, entitled “Investigations, Trial, and Appeals.” This Section addresses the procedures for processing charges made against clergy and others. Procedures to ensure fair process, what constitute chargeable offenses, how charges are to be handled, the proceedings of the committee on investigation, trial procedures and appeal procedures are outlined. A settled principle of jurisprudence is that a legislative enactment is to be interpreted in such a way as to uphold its constitutionality if at all possible. Par. 2628.1(j) is narrowly limited in its import. Initially it provides, “Errors or defects in judicial proceedings shall be duly considered when present on appeal.” There is certainly nothing unconstitutional about this provision. The constitutional role of the appellate bodies and the Judicial Council is to address errors or defects in judicial proceedings. Par. 2628.1(j)(1) and (2) address entirely different circumstances however in that they address circumstances which occur once the judicial process (including all appeals) is concluded. Par. 2628.1(j)(1) addresses the situation where an investigation is undertaken under ¶ 2626, but no trial is held as a result of the investigation. In such an event, the judicial process has concluded with the determination that no appeal is to occur. In that event, and that event only, ¶ 2628.1(j)(1) provides that errors of Church law or administration committed by those in charge of the investigation are to be corrected by the presiding officer of the next conference on request in open session. In exercising such corrective authority, the presiding officer is not exercising a judicial function. No violation of any doctrine of the separation of powers can occur. The judicial proceeding has concluded. The presiding officer is performing an executive function. Such corrective action could involve a range of actions, all of which would be administrative and executive in nature. In fact, the appellate bodies and the Judicial Council would not have any opportunity to address such errors of Church law or administration because the judicial process was concluded with the matter not proceeding beyond the Committee on Investigation. Par. 2628.1(j)(1) further provides that, in addition to the presiding officer being authorized to correct errors where no trial has occurred, the annual conference itself may order just and suitable remedies if injury resulted from such errors. Once again, the exercise of such authority by the annual conference in its legislative capacity is not the exercise of judicial power and is not in conflict with the exercise of judicial power. Under such circumstances, there can be no violation of the doctrine of separation of powers. The judicial process has ended, and the conference legislatively would be performing a curative act. For example, in Decision 806, the Judicial Council was faced with the question of whether a clergy member was entitled to compensation when charges were ultimately resolved in his favor upon the completion of the judicial process. A similar question might arise when a person was suspended or placed on a leave of absence during an investigation. If the investigation concluded that charges should not proceed and a trial did not occur perhaps because of errors of Church law or administration, the conference, under ¶ 2628.1(j)(1), might order just and suitable remedies, such as lost salary and benefits for the period of suspension or leave of absence while the investigation was proceeding. Such action again would not involve a conflict with the doctrine of separation of powers. Par. 2628.1(j)(2) addresses the situation where a trial is conducted and an appeal occurs. During the prosecution of the appeal, errors of Church law or defects in the judicial proceedings are discovered and are ruled upon by the appellate tribunal or the Judicial Council. With the conclusion of the appellate process, the judicial process is concluded. Thereafter, ¶ 2628.1(j)(2) provides that any errors of Church law or defects in judicial proceedings that were identified in the concluded appellate process are to be corrected by the presiding officer at the next annual conference session, and the annual conference itself may order just and suitable remedies if injury resulted from such errors. In the exercise of such authority after the conclusion of the judicial process, the presiding officer and the conference are exercising executive and legislative powers. They are not exercising judicial powers and there is no violation of the doctrine of separation of powers. Pars. 2628.1(j)(1) and (2) are not provisions to permit an appeal through the exercise of the executive powers of the bishop or the legislative powers of the annual conference. For example, ¶ 2628.1(j) does not authorize the bishop or the annual conference to review the action of the committee on investigation in deciding that no trial should occur. That decision is entrusted by our Discipline to the Committee on Investigation, and the Discipline, as currently written, does not permit an appeal from such decision. In Decision 846, the Judicial Council held that the “Church does not have a right to an appeal when a judicial matter does not go to trial.” However, if the Committee on Investigation committed errors in its proceedings, the bishop or the annual conference could take action to ensure that those errors were not repeated in future investigations entrusted to the Committee on Investigation. The 2000 General Conference adopted legislation to address the action of the Judicial Council in declaring ¶ 2628.1(j) unconstitutional. We urge our colleagues on the Judicial Council to reexamine the issues presented in Decision 872 at an appropriate time and recognize that the episcopacy and the annual conferences have legitimate roles in addressing in non-judicial ways errors of church law or defects in judicial proceedings that may occur. Keith D. Boyette James W. Holsinger, Jr.

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