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Decision No. 1103

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October 24 2008
In Re: Request from the California-Pacific Annual Conference for a Declaratory Decision on the Constitutionality, Meaning, Application or Effect of ¶ 327.6 of the 2004 Discipline, ¶ 318 of the 1996 Discipline, and of Judicial Council Decision 799 in Terms of the Authority of the Board of Ordained Ministry or its Executive Committee to Overturn Ruling on a Question of Law by the Chair of the Board of Ordained Ministry

Digest of Case

On Question 1: A hearing before the Executive Committee does not constitute an appeal of a decision by the Board of Ordained Ministry but is part of the Board of Ordained Ministry process. The hearing is part of the process moving to final recommendation of discontinuance of probationary membership to the clergy session. This authority is granted by ¶ 327.6 of the 2004 Book of Discipline. On Question 2: Paragraph 318 of the 1996 Book of Discipline requires a three-fourths vote by the Board of Ordained Ministry for recommendation of discontinuance of probationary membership to the clergy session. Three-fourths vote is not required by the clergy session. On Question 3: A request for a decision of law that does not cite a specific provision of the Book of Discipline is not within the jurisdiction of the Judicial Council.

Statement of Facts

The Judicial Council received a request to review paragraphs from both the 2004 Book of Discipline and the 1996 Book of Discipline with regard to the procedure used to discontinue the probationary membership of a 1992 Book of Discipline transitional Deacon as moved and passed by the body of the 2008 regular session of the California-Pacific Annual Conference.

Question 1. In the provision for discontinuance from Probationary membership ¶ 327.6 of the 2004 Book of Discipline it reads: “Prior to any final recommendation of discontinuance without consent, a probationary member will be advised of the right to a hearing before the executive committee of the board of ordained ministry. A report of the hearing will be made to the full board.” Does this hearing constitute an appeal of the decision of the board of ordained ministry (See ¶ 20 of the 2004 Book of Discipline and the provisions of the appeal of administrative procedures at Judicial Council Decision 799)? If it does, would the full board of ordained ministry then have the right to ratify the decision of the board? Question 2. Paragraph 318 of the 1996 Book of Discipline reads, in part, “No member shall be continued on probation beyond the sixth regular session following their admission to probationary membership and commissioning unless extended, upon the recommendation of the board of ordained ministry by a three-fourths vote, by the clergy session. Such extensions shall not be granted beyond three additional years.” Does granting of an additional year require a ¾ vote of the full board of ordained ministry? Or is the requirement for a ¾ vote of clergy session or both? Question 3: Under Judicial Council Decision 799, questions of law on administrative process may only be ruled upon by the presiding officer of the decision‑making body. The chairperson of the board of ordained ministry also serves as chairperson of the executive committee of the board of ordained ministry. Does either the full board or its executive committee have a right to overturn the ruling of the chair on a question of law? Or must an appeal of a ruling on a question of law go to another body in the church? If so, to what body in the church would such an appeal be taken?
Although the information submitted to the Judicial Council referred to a specific situation before the Clergy Session of the California-Pacific Annual Conference, the action of the Annual Conference on Thursday, June 19, 2008, referred only to the three questions stated above. Therefore the Judicial Council will respond only to these questions as presented.

JURISDICTION

The Judicial Council has jurisdiction under ¶ 2610.2(j) of the 2004 Book of Discipline on Questions 1 and 2. The Judicial Council does not have jurisdiction in Question 3.

ANALYSIS AND RATIONALE

The first question asks whether the hearing before the Executive Committee constitutes “an appeal” of the original decision of the Board of Ordained Ministry to discontinue candidacy. The reference is made to ¶¶ 327.6 and 20 of the 2004 Discipline and to Judicial Council Decision 799. The pertinent portions of those paragraphs from the Discipline and Decision 799 are as follows:
¶  327. Eligibility and Rights of Probationary Membership... 6. Discontinuance from Probationary Membership—Probationary members may request discontinuance of this relationship or may be discontinued by the annual conference upon recommendation of the board of ordained ministry. ... Prior to any final recommendation of discontinuance without consent, a probationary member will be advised of the right to a hearing before the executive committee of the conference board of ordained ministry. A report of the action will be made to the full board. The provisions of fair process (¶ 362.3) shall be observed and there shall be a review by the administrative review committee under ¶ 635 prior to hearing by the annual conference. ... ¶ 20. Article IV: The General Conference shall not do away with the privileges of our clergy of right to trial by a committee and of an appeal; neither shall it do away with the privileges of our members of right to trial before the church, or by a committee, and of an appeal. Judicial Council Decision 799: ...That portion of ¶ 2627.1(h)(2) of the 1996 Discipline (formerly ¶ 2626.1(h)(2) of the 1992 Discipline) which provides for the executive session of the clergy members of the Annual Conference to ratify a church trial decision if such decision results in a change in the conference relationship of a clergy member is unconstitutional...
Both references are to situations in which a clergy person is charged with a complaint and has the right to a trial and appeal. This is not the case in the situation under consideration. No mention is made in ¶ 327.6 in the 2004 Discipline to an administrative complaint. The hearing is part of the administrative process as outlined in the Disciplines referenced in this request. After receiving the report from the Executive Committee, the Board of Ordained Ministry makes the final recommendation to the clergy session. This is also the situation in the case of the disposition of an administrative complaint. See ¶ 362.4 2004 Discipline. The second question before the Judicial Council is a matter of grammatical interpretation of the sentence under consideration. In this request for a declaratory decision the questions posed therein concern ¶ 318 of the 1996 Discipline which sets forth in pertinent part:
¶ 318. Eligibility and Rights of Probationary Membership -- Probationary members are on trial in preparation for membership in full connection in the annual conference as deacons or elders. . . No member shall be continued on probation beyond the sixth regular session following their admission to probationary membership and commissioning unless extended, upon recommendation of the board of ordained ministry by a three-fourths vote, by the clergy session. Such extensions shall not be granted beyond three additional years [emphasis added]. (1996 Discipline p. 185)
This sentence, minus the clause set off by commas, reads: “No member shall be continued . . . unless extended by the clergy session.” The clause sets forth that a recommendation of the Board of Ordained Ministry requires a three-fourths vote in order to take the action before the clergy session. Question 3: The Judicial Council does not have jurisdiction on this question as it does not pose a formal question of law citing a specific provision of the Discipline.

Decision

On Question 1: A hearing before the Executive Committee does not constitute an appeal of a decision by the Board of Ordained Ministry but is part of the Board of Ordained Ministry process. The hearing is part of the process moving to final recommendation of discontinuance of probationary membership to the clergy session. This authority is granted by ¶ 327.6 of the 2004 Book of Discipline. On Question 2: Paragraph 318 of the 1996 Discipline requires a three-fourths vote by the Board of Ordained Ministry for recommendation of discontinuance of probationary membership to the clergy session. Three-fourths vote is not required by the clergy session. On Question 3: A request for a decision of law that does not cite a specific provision of the Book of Discipline is not within the jurisdiction of the Judicial Council.

DISSENTING OPINION

Fundamental to consideration of any request for declaratory decision is the question of the Judicial Council’s jurisdiction. Not only must a request be properly directed to and based on a specific provision of the Discipline, it must also be presented in accordance with The Rules of Practice and Procedure as promulgated by The Judicial Council. The Judicial Council is empowered under ¶ 2610 to make a ruling in the nature of a declaratory decision as to the constitutionality, meaning, application and effect of The Discipline or any portion thereof or of any act or legislation of a General Conference. The following reference is taken from the supposed minutes of proceedings and constitutes the only official conference record that is before the Judicial Council for review:
Thom Griffith moved for a declarative decision from the Judicial Council on some issues which have come before the Board of Ordained Ministry. It was approved. Thursday, June 17, 2008 (Page 7 of 9, lines 330-331)
The submission fails to comply with the Rules of Practice and Procedure of the Judicial Council because the record supplied by the Secretary of the California-Pacific Annual Conference fails to provide The Judicial Council with materials relating to the matter being appealed including a copy of the minutes where such matter arose in the normal proceedings of the body. Rule III B. The minutes should include an exact statement of the entire question submitted for declaratory decision and clearly reflect facts sufficient to invoke the Judicial Council’s jurisdiction, including any and all parliamentary actions tendered thereto. The record supplied is insufficient in that it fails to provide an exact statement of the entire question submitted for declaratory decision. Consequently, the submission fails to reflect facts sufficient to invoke the Judicial Council’s jurisdiction. The accompanying brief submitted by a member of the California-Pacific Annual Conference is not a suitable substitute for the Annual Conference record, nor may briefs or gratuitous statements of parties or interested persons serve in lieu of the record of the Annual Conference action that is maintained and supplied by the Secretary of the Annual Conference. For failure to comply with our Rules of Practice and Procedure, I would decline jurisdiction.

Jon R. Gray
October 25, 2008

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