Memorandum Number 1186

Request from the California-Pacific Annual Conference for a Declaratory Decision as to the Meaning, Effect, and Application of ¶¶ 362 and 363, Including Reference To Judicial Council Decision 830 and the Restrictive Rule in Section III, ¶20, Article IV of the Constitution

At the June 20, 2010, session of the California Pacific Annual Conference, a motion was passed by majority vote to request the Judicial Council "to issue a Declaratory Decision under the provisions of 2610.2 (j) on the following questions related to the hearing of an administrative complaint before the Conference Relations Committee of its Board of Ordained Ministry on March 1, 2010":

1. In the hearing of an administrative complaint before the Board of Ordained Ministry in ¶363.1 and ¶363.3, is the respondent considered innocent until proved guilty and/or effective and competent until "a pattern of being unable effectively and competently to perform the duties of itinerant ministry" is proven?
2. In the hearing of an administrative complaint before the Board of Ordained Ministry in ¶363.1 and ¶363.3, what is the burden of proof required for the evidence to show the respondent has "a pattern of being unable to effectively and competently to perform the duties of itinerant ministry" and to recommend administrative location?
3. In the hearing of an administrative complaint before the Board of Ordained Ministry in ¶363.1 and ¶363.3, what percentage of votes is required in order to show the respondent has "a pattern of being unable effectively and competently to perform the duties of itinerant ministry" and to recommend administrative location?
4. Does the right to be heard in ¶362.2.a and the constitutional right to fair process in Judicial Council Decision (JCD) 830 give the respondent the right to present documentary evidence during the hearing of an administrative complaint in ¶363.1 and ¶363.1? May the Board of Ordained Ministry place a reasonable limitation on this right provided the same limitation is placed on the bishop or district superintendent who is presenting the administrative complaint to the Board?
5. Does the right to be heard in ¶362.2.a and the constitutional right to fair process in JCD 830 give the respondent the right to call witnesses during the hearing of an administrative complaint in ¶363.1? May the Board of Ordained Ministry place a reasonable limitation on this right provided the same limitation is placed on the bishop of (sic) district superintendent who is presenting the administrative complaint to the Board?
6. The fourth restrictive rule in ¶20 states, "The General Conference shall not do away with the privileges of our clergy of right to trial by a committee and of an appeal …" Does the hearing before the executive committee of the Board of Ordained Ministry in ¶363.3.b.(2) constitute the appeal of the recommendation for administrative location which is required by the fourth restrictive rule? Ad (sic) if it does, does the membership of this appellate body violate the constitutional right to fair process in JCD 830 when the executive committee includes members who participated in making the decision to recommend administrative location in ¶363.1? And if it does not, does the membership of the executive committee in the hearing in ¶363.3.b (2) include members who participated in making the decision to recommend administrative location in ¶363.1?

Under the provisions of ¶2610.3 interested parties include:

• The respondent whose name will be provided in a confidential communication to the Judicial Council Richard Bentley, clergy assistant to the respondent
• Bau Dang and Myron Wingfield, district superintendents who presented the complaint at the hearing
• Catie Coots, cabinet representative to the Board of Ordained Ministry
• Willie Forman, chairperson of the Conference Relations Committee
• Derek Nakano, chairperson of the Board of Ordained Ministry
• Sharon Ruby ((i)sic), Director, Division of Ordained Ministry, General Board of Higher Education and Ministry.

The administrative complaint was filed under date of January 20, 2010, by a district superintendent against a clergy member. On February 12, 2010, the Board of Ordained Ministry initially ruled by e-mail that the respondent could only submit three documents, without restricting the number of documents the cabinet could submit. However, on February 15, upon urging by the respondent, the Board wrote that both sides could submit as many documents as they chose. On February 28, four objections to procedural rulings were filed with the Board, subsequently followed by two more questions with both the chairs of the Board of Ordained Ministry and the Committee on Conference Relations (Committee). The six items are substantially echoed in the six questions raised in this petition.

On March 1, 2010, a hearing was held before the Committee, presided by its chair, with the presence of the parties, counsels, and the Board chair. On March 10, 2010, the parties met with the Board and the Committee chairs. A supervisory agreement was thereafter negotiated. The agreement did not resolve the complaint but gave the respondent an opportunity to improve in specific areas. At the time of the annual conference, the complaint was still in process. Nothing in the agreement required action by the clergy session. Neither were the six procedural questions brought to the Administrative Review Committee. The Judicial Council cannot take jurisdiction under ¶ 2610.2 (j) of the 2008 Discipline, which authorizes any annual conference to file a petition for declaratory decision "on matters relating to annual conferences or the work therein."

Nothing in the administrative complaint has required the action of the Annual Conference. The questions referred to us are plainly procedural still pending with the Conference Relations Committee of the Board of Ordained Ministry. They are much too premature and speculative to beg our attention. As admitted in an amicus curiae brief, the questions deal with matters "which could come before the Annual Conference at a later time."

More important, being procedural in nature at the initial stage of the administrative process, the questions raised do not really involve the constitutionality, meaning, application, or effect of the Discipline or any portions of it or any act or legislation of a General Conference (¶ 2610.1). They obviously constitute respondent's defenses that the Committee and the Board must first resolve. The attempt to seek our advisory opinion to guide the Committee and the Board in handling the case cannot be entertained because that is not the task of the Judicial Council. Decision 362 is exceptional as it dealt with the constitutionality of the proposed plan of merger of the North and Upper Mississippi Annual Conferences. Recent Decision 1181 is a meritorious petition from the Council of Bishops for a declaratory decision as to the meaning, effect, and application of the amended ¶ 35, Article IV of the 2008 Discipline affecting the election of clergy delegates, clearly authorized under ¶ 2610.2(b).

Digest

The Judicial Council has no jurisdiction over an annual conference petition for declaratory decision on procedural questions in the initial stage of an administrative process which have not required the action of the annual conference and which could come only before the annual conference at a later time. The petition is premature and speculative, hence, improper. Moreover, there is no real and ripe Constitutional or Disciplinary issue. At most the petition is a request for advisory opinion which the Judicial Council is not tasked to render. See Decision 193, Memoranda 996 and 1129.

SUBJECT TO FINAL EDITING