Decision Number 1096

SUBJECT TO FINAL EDITING

April 29, 2008

Request from the 2008 General Conference for a Declaratory Decision as to the Constitutionality of Various Petitions Related to Provisions of the Discipline. Regarding the Judicial Council.

Digest

The General Conference is vested with the constitutional authority to determine the number and qualifications of Judicial Council members, their terms of office, and the method of election and the filling of vacancies. The Judicial Council is empowered by the Constitution to provide its own methods of organization and procedure. Any proposed legislation that purports to mandate the Judicial Council to adopt certain policies, or take certain actions, or that creates a method to sanction, suspend or dismiss members of the Judicial Council is in excess of the power of the General Conference and is therefore unconstitutional. The petitions which address recusal, conflicts of interest and the creation of a Commission on Judicial Conduct are unconstitutional. The General Conference is empowered to set a minimum number of members to comprise a quorum and is likewise empowered to require that only the whole of the Judicial Council may consider and decide the constitutionality of acts of the General Conference.

Statement of Facts

On April 27, 2008, the General Conference requested the Judicial Council to issue a declaratory decision as to the constitutionality of four petitions proposing legislation related to the Judicial Council on issues of recusal, conflict of interest, judicial conduct and quorum for the consideration of constitutional issues. The record of the proceedings reflects that the following motion was made and adopted:

I move on behalf of the General Conference to petition the Judicial Council to make a ruling in the nature of a declaratory decision as to the constitutionality of petitions: 80848-JA-2600; 81107-JA-2600; 81315-JA-2607; 80148-JA-2608.2 in reference to Division II, Section II, Article IV.4 of the Constitution (¶ 16.7 of the 2004 Book of Discipline) and Division IV, Article II.5 and .6 (¶ 56.5-6 of the 2004 Book of Discipline).

Petition 80848 provides for the amendment of ¶¶ 2603 and 2604, and would require members of the Judicial Council to recuse themselves from any hearing or deliberation where there is a known conflict of interest. The proposed legislation also defines when a conflict of interest exists.

Petition 81107 provides for a new ¶ 2605 that would create a Committee on Judicial Conduct with authority to receive and act upon complaints made against Judicial Council members related to incapacity, immoral conduct, breach of trust or actions that undermine the integrity of the Judicial Council or in other ways violate fair and impartial judicial administration. The stated rationale of the proposed legislation is to provide a method for removal of a member of the Judicial Council for incapacity or inappropriate behavior.

Petition 81315 seeks to amend ¶ 2607 to add a conflict of interest provision relating to the Judicial Council and mandates the method by which the Judicial Council shall publish its opinions in order to avoid the appearance of conflicts of interest.

Petition 80148 seeks to amend ¶ 2608 to require that nine members or alternates of the Judicial Council must be present in order to consider any question of constitutionality involving the acts of the General Conference. Beth Capen recuses herself from consideration of Petitions 81107 and 81315.

Jurisdiction

The Judicial Council has jurisdiction under ¶2609.2 of the 2004 Book of Discipline.

Analysis and Rationale

Powers conferred by the Constitution receive greater deference than powers conferred by the General Conference. The Judicial Council's constitutional powers may not be infringed by General Conference legislation. If disciplinary provisions are in conflict with the Constitution, the Constitution must prevail. Section II, Article IV of the Constitution provides that â€œ[t]he General Conference shall have full legislative power over all matters distinctively connectional and in the exercise of this power shall have the authority. To provide a judicial system and a method of judicial procedure for the church, except as herein otherwise prescribed. Â¶ 16 of the 2004 Discipline. Paragraph 56.6 of the Constitution, Division IV, creates the Judicial Council and states that the Judicial Council shall have authority to provide its own methods of organization and procedure.

The Judicial Council is the highest judicial body in The United Methodist Church. Its authority is specified in Â¶Â¶ 55-57 of the Constitution and in Â¶Â¶ 2609-2612 of the 2004 Discipline. The General Conference has the authority to determine the number and qualification of members of the Judicial Council, their terms of office and the method of election and the filling of vacancies. Â¶ 16. Beyond these enumerated powers all other matters relating to the Judicial Council's methods of organization and procedure are reserved to the Judicial Council itself under Â¶ 56. Paragraphs 55-57 of the Constitution relate specifically to the Judicial Council. Paragraph 16 is a general provision that relates to creation of a judicial system and judicial procedures, such as those contained in Â¶Â¶ 2701-2718, but has no application to the creation, formation and operation of the Judicial Council. General Conference authority over the Judicial Council is limited to the determination of the number and qualification of its members, their terms in office, and the method of election and the filling of vacancies.

Petition 80848 purports to compel recusal of a member of the Judicial Council whenever a conflict of interest is known. From a legal standpoint recusal is a discretionary decision made by a member of a tribunal by which the member makes a personal decision to refrain from participation in a matter for any reason the member deems appropriate. The definition of recusal, which is firmly established in the law, has suffered substantial erosion of meaning as it has come into popular usage. Recusal is distinguishable from disqualification. Recusal cannot be imposed upon the member by rule or requirement, but is solely dependent on the member's knowledge of the member's conflicting involvements or pre-conceptions, and the member's own sense of fairness. Recusal cannot properly be requested or required but comes from the member's own motivation based on a personal perception of the member's suitability to participate fairly and impartially in the adjudication of the matter before the tribunal. The right of a member of a tribunal to recuse is an inherent personal right to be exercised on the member's own motion and no other.

Disqualification is the process by which a member of a tribunal can be removed from considering a matter for cause. Disqualification goes to the very heart of the member's lawful ability to participate fairly and impartially and can be determined by the tribunal itself. A party may call a disqualifying reason to the attention of the tribunal and thereby identify a basis for disqualification of the member for cause.

The proposed legislation in Petition 80848 which would mandate members of the Judicial Council to recuse themselves from any hearing or deliberation where there is a known conflict of interest violates the principle of separation of powers by infringing upon the Judicial Council's constitutional authority to provide its own methods of organization and procedure. The determination of a conflict of interest as well as the determination of disqualification of a member for a particular case is within the Judicial Council's constitutional power to determine its own methods of organization and procedure as set forth in Â¶ 56. Petition 80848 is unconstitutional.

Petition 81107 would create a Committee on Judicial Conduct with the authority to receive and act upon complaints against members of the Judicial Council. The proposed legislation would grant a Committee on Judicial Conduct the authority to sanction, suspend, or dismiss members of the Judicial Council for acts related to incapacity, immoral conduct, breach of trust or other action that undermines the integrity of the Judicial Council. The General Conferenceâ€™s ability to delegate is wholly dependent upon the scope of its own powers. The General Conference cannot grant or delegate powers that it does not possess. There is nothing in the Constitution that reserves to the General Conference the power to sanction, suspend or dismiss members of the Judicial Council. Creation of a Committee on Judicial Conduct would exceed the power of the General Conference stated in Â¶ 16. Under the system of checks and balances, the Judicial Council is made accountable to the General Conference through the electoral process and by limitation of terms of service of its members. There is no provision for removal or sanction of Judicial Council members contained in the Constitution. Petition 81107 is unconstitutional.

Petition 80148 proposes legislation that would establish a requirement that the Judicial Council may only consider the constitutionality of acts of General Conference with a full complement of nine members and/or alternates. The General Conference has foreseen circumstances when the Judicial Council will need to meet with less than a full complement of its members. For such purposes, the General Conference has established in Â¶ 2608 that â€œa quorum for the conduct of its business shall be seven members. The legal definition of a quorum is that number of members of a body necessary to validly and legally conduct business. The General Conference is empowered to determine the quorum set forth in Â¶ 2608 by virtue of Â¶ 55 that provides the General Conference shall determine the number and qualifications of members of the Judicial Council. A quorum by definition is less than the full number of members of the body. Petition 80148 would effectively prohibit the Judicial Council from considering the constitutionality of acts of the General Conference with less than nine members and/or alternates present.

The General Conference possesses the power to require a super majority of six votes of the Judicial Council to declare acts of the General Conference unconstitutional. It follows that the General Conference likewise has the authority to require that all seats of the Judicial Council be filled whenever a constitutional issue involving an act of the General Conference is before it for determination. In doing so, the General Conference is not setting a quorum, but rather is setting a requirement on the number of the Judicial Council members that must be present in order to consider and decide any constitutional question involving an act of the General Conference. While we find and determine this to be within the constitutional authority of the General Conference to establish such a requirement, we caution that exigencies, such as illness or interrupted travel, and other practical considerations may mitigate against imposing such an inflexible rule. Moreover, such a requirement would permit one member to remove himself or herself from the deliberations to prevent the Judicial Council from discharging its responsibilities.

The rationale offered in support of Petition 80148 is to ensure that at no time will a minority of fewer than four members of the Judicial Council be able to decide a constitutional question involving acts of the General Conference. The proposed legislation is a solution in search of a problem and misperceives the Judicial Council's role in conducting constitutional reviews of acts of the General Conference. Although the Discipline permits in Â¶ 2608 a quorum of seven members to act for the Judicial Council, it also requires that a super majority of six votes are necessary to declare an act of the General Conference unconstitutional, regardless of the number of members present. In the absence of such a super majority of votes, there can never be a declaration of unconstitutionality of an act of General Conference. With this caveat the General Conference may require that all members of the Judicial Council must be present in order to consider and decide questions involving the constitutionality of acts of the General Conference.

Petition 81315 would amend Â¶ 2607.2 to mandate that each decision or memorandum shall include the names of each participating member of the Judicial Council and how each voted on the matter. It further provides that each decision or memorandum shall indicate each member absent or recused from the matter. The Petition would further mandate the adoption of a conflict of interest policy. Both of these matters and the remaining portion of the Petition directly infringe on the Judicial Council's authority to provide for its own methods of organization and procedure. The Petition contains fatal provisions similar to those previously discussed in this Decision that infringe on the Judicial Council's authority under Â¶ 56, to provide its own methods of organization and procedure. Petition 81315 is unconstitutional.

One of the briefs suggests that if Petition 81315 is unconstitutional, then the existing Â¶ 2608 may likewise be unconstitutional. The existing provisions of Â¶ 2608 are not part of the request of declaratory decision. We are unaware of any previous challenge to its constitutionality. Nevertheless, the authority for existing Â¶ 2608 is derived from Â¶ 56 that gives the Judicial Council such other duties and powers as may be conferred upon it by the General Conference. However, such other duties and powers as may be conferred upon the Judicial Council by the General Conference may not conflict with the authority of the Judicial Council to provide for its own methods of organization and procedure.