Memorandum Number 910

Digest

Statement of Facts

The Judicial Council has jurisdiction under Par. 2613 of the 1996 Discipline and ¶ 2609 of the 2000 Discipline.

Because of the complicated procedural nature of this decision, we feel that a review of previous decisions relating to it is necessary. This matter first came before the Judicial Council in October, 1998 as a review of an episcopal decision made by the presiding bishop of the Norway Annual Conference.

The questions raised by a lay member of the annual conference related to the legality of the conference structure. The bishop affirmed the legality of the structure basing his decision on the Northern Europe Central Conference Book of Discipline, 1976 and later editions.

The Council, in Decision 848 did not affirm the bishop's decision, and reconsideration was requested.

In Decision 859, the Judicial Council, after granting reconsideration of Decision 848, withdrew the Decision noting that ¶ 29.5 of the 1996 Discipline authorizes central conferences To make such rules and regulation for the administration of the work within their boundaries including such changes and adaptations of the General Discipline as the conditions in the respective areas may require, subject to the powers that have been or shall be vested in the General Conference. The Council also cited ¶ 537.21 which says that [a] central conference shall have authority to edit and publish a central conference Discipline, which shall contain . . . such revised, adapted, or new sections as shall have been enacted by the central conference concerned . . . .

After reviewing the information provided by Bishop Vaxby in his petition for reconsideration, it was the Council's opinion that in restructuring its administration and work, the Norway Annual Conference was operating within the parameters of ¶¶ 29.5 and 537.21 of the 1996 Discipline. Nevertheless, the Council stopped short of affirming the bishop's Decision of Law believing that the matter should more properly fall within the jurisdiction of the Judicial Court of the Northern Europe Central Conference. The referral was made in accordance with ¶ 537.33 of the 1996 Discipline. The Council requested the Judicial Court of the Northern Europe Central Conference to forward a copy of its decision to the Judicial Council. A copy of the Court's decision has been received.

The Judicial Council did not retain jurisdiction in this matter in referring it to the Judicial Court of the Northern Europe Central Conference. The Judicial Council has no jurisdiction over this matter as ¶ 537.33 gives the Judicial Court of the Northern Europe Central Conference exclusive jurisdiction of all matters dealing with modifications of the Discipline by the Central Conference. Since the constitutional question was answered in Decision 859, it was in error to have assumed jurisdiction after receiving a copy of the Court's decision which affirmed the decision of law of the bishop. Therefore, Decision 904 is withdrawn.

At an oral hearing on Thursday, April 26, 2001, in Phoenix, Arizona, Bishop Hans Vaxby represented the Northern Europe Central Conference, and Bishop Jack Tuell appeared for the Council of Bishops.

Jurisdiction

The Judicial Council retained jurisdiction of this matter in Decision 893.

Analysis and Rationale

The Northern Illinois Annual Conference has made significant progress in developing a new conference structure. It is apparent that a lot of time, energy, and creative thinking have gone into the development of the New Model.

However, in Decision 893, the Judicial Council noted that the New Model approved by the Annual Conference on June 3, 2000, is not a completed product but has been referred to an Implementation Task Force to complete the structure for future approval by the Annual Conference. The Report of the New Model Implementation Task Force presented at the special session of the Annual Conference, as noted in the Statement of Facts, did little to complete the structure for approval. The special session made minimal changes in the Standing Rules governing the Nominations Procedure, and clarified that the Presiding/Resident Bishop had voice, but not vote except as otherwise required by the Discipline. While the 2001 budget adopted by the special session funded a position, the Director of Clergy Services, contemplated by the New Model, no job description or governing document has been approved by the Annual Conference for this position.

Until the Northern Illinois Annual Conference defines with specificity the interaction of the New Model with the existing structure, the Judicial Council is unable to rule on the constitutionality of the new structure or its compliance with the 2000 Discipline. By way of example and without excluding other questions which may need to be addressed, the Northern Illinois Annual Conference must address the following:

1. Because the New Model purports to maintain and continue existing annual conference boards, agencies, commissions and organizations, but suggests that they will be grouped in ministry areas, what is the practical relationship between the ministry areas and the existing boards, agencies, commissions, committees, and organizations?

2. The New Model contemplates the creation of a Ministry Advisory Team. However, the operation of this team and how it interacts with or changes the existing structure has not been outlined. What is the relationship between the Ministry Advisory Team and existing boards, agencies, commissions, committees and organizations?

3. The New Model contemplates creation of an Administrative Team. What is the relationship between the Administrative Team and existing boards, agencies, commissions, committees and organizations?

4. The New Model contemplates creation of a new staff position, the Director of Clergy Services. What is the relationship between this new staff position and existing boards, agencies, commissions, committees and organizations?

Until the Northern Illinois Annual Conference acts legislatively to define these relationships by amending its Standing Rules or taking other legislative action to define the impact of the New Model on the existing and continuing annual conference boards, agencies, commissions, committees and organizations, the Judicial Council is left to speculate on the operation of the New Model. Under such circumstances, the Judicial Council cannot rule on the constitutionality or the legality of the new structure.

The Northern Illinois Annual Conference Chancellor's brief contends, This case returns to the Judicial Council on a different legal footing than heretofore existed. To support this point of view, he calls attention to the recent constitutional amendment contained in ¶ 15.15 of the 2000 Discipline which provides:

The General Conference shall have full legislative power over all matters distinctively connectional, and in the exercise of this power shall have authority as follows:

. . .

15. To allow the annual conferences to utilize structures unique to their mission, other mandated structures notwithstanding.

He also contends that the two additions to ¶ 607.1 of the 1996 Discipline which appear in ¶ 608.1 of the 2000 Discipline constitute valid enabling legislation for conference restructuring. The additions state that in providing for an annual conference structure:

a) There shall be clear connections between the General Conference agencies, annual conference program and administrative entities, and the local congregation; b) There shall be clear checks and balances regarding program functions and financial/administration functions within the annual conference.

The chancellor's arguments are without merit. While Decision 893 held that the legislation adopted by the 2000 General Conference relating to conference structure may be construed to be enabling in character, it is the Judicial Council's judgment that appropriate enabling legislation setting forth the terms and conditions under which an annual conference may restructure, while at the same time maintaining and preserving the connection, has yet to be enacted. In adopting enabling legislation for ¶ 15.15, the General Conference must set forth such terms and conditions as the General Conference may determine in accordance with the provisions of ¶ 15.15 and other provisions of the Constitution to define how annual conferences may modify their structures. The General Conference has an affirmative duty imposed by the Constitution to ensure the continued vitality of the connection at all levels. See Decision 815. As the Judicial Council observed in Decision 339:

If each Annual Conference is free to decide for itself, without guidelines or controlling standards from any other source regarding any of the restrictive elements listed, the total connectional system of the church will be undercut at the Annual Conference level, not promoted and administered as the Constitution contemplates. The General Conference may not so delegate its constitutional responsibilities.

The Judicial Council has no other basis on which to judge the constitutionality of a particular annual conference structure than has been cited in previous Judicial Council Decisions concerning annual conference restructuring, including Decision 831.

While the Northern Illinois Annual Conference has made significant progress in meeting these criteria, further work needs to be done in specifically delineating how the New Model structure will be implemented.

Decision

The Northern Illinois Annual Conference is directed to continue to operate under the requirements of Decision 831 until such time as it has acted legislatively to define the interaction of those aspects created by its New Model with the existing and continuing annual conference boards, agencies, commissions, committees and organizations. The Judicial Council retains jurisdiction over any plan for restructuring the Northern Illinois Annual Conference. The final plan is to be submitted to the Judicial Council for review and approval prior to implementation.

Dissenting Opinion

In Decision 848, the Judicial Council reviewed a bishop's decision of law on five questions of law that were submitted to the bishop in writing during the regular business of a session of the Norway Annual Conference. Decision 848 stated that the Judicial Council had jurisdiction to review the bishop's decision of law under ¶ 2613 of the 1996 Discipline. That disciplinary provision provides:

The Judicial Council shall pass upon and affirm, modify, or reverse the decisions of law made by bishops in central, district, annual, or jurisdictional conferences upon questions of law submitted to them in writing in the regular business of a session . . . .

The Judicial Council in Decision 848 did not affirm the bishop's decision of law and remanded the matter to the Norway Annual Conference for correction, with the instruction that the matter was to be returned to the Judicial Council for review.

Thereafter, the bishop petitioned for reconsideration of Decision 848 and the Judicial Council voted to reconsider. In Memorandum 859, the Judicial Council stated that it had retained jurisdiction of the matter under ¶ 2613 of the 1996 Discipline. The Judicial Council proceeded to withdraw Decision 848. In Memorandum 859, the Judicial Council stated:

After review of the information provided by Bishop Vaxby in his petition for reconsideration, our opinion is that in restructuring its administration and work, the Norway Annual Conference was operating within the parameters of ¶¶ 29.5 and 537.21. Nevertheless, we stop short of affirming the bishop's decision of law because we believe that the matter is now more properly within the jurisdiction of the Judicial Court of the Northern Europe Central Conference.

The majority now states that in this statement, the Judicial Council was passing on the constitutionality of the actions of the Norway Annual Conference. We differ because we read the language to be a statement of fact with respect to the actions of the Norway Annual Conference and the authority it was advancing for its actions. In fact, ¶¶ 29.5 and 537.21 grant no authority to annual conferences. Those provisions address the authority of central conferences. At best, the Norway Annual Conference could only be said to be operating within the parameters of the Northern Europe Central Conference Discipline.

In any event, the Judicial Council decided in Memorandum 859 that it could not act further in the matter because it was now more properly within the jurisdiction of the Judicial Court of the Northern Europe Central Conference. This conclusion was erroneous as well.

The Judicial Council deemed the bishop's petition for reconsideration to be an appeal from a presiding bishop which required that the matter be referred to the Judicial Court of the Northern Europe Central Conference for decision, a copy of such decision to be forwarded to the Judicial Council. Memorandum 859. In making its referral, the Judicial Council referred to ¶ 537.33 of the 1996 Discipline which provides that:

A central conference that adapts and edits the Discipline as provided in ¶ 537.21 shall establish a judicial court, which in addition to other duties that the central conference may assign to it shall hear and determine the legality of any action of the central conference taken under the adapted portions of the Discipline or of a decision of law by the presiding bishop of the central conference pertaining to the adapted portions of the Discipline, upon appeal by the presiding bishop or by one fifth of the members of the central conference. Further, the judicial court shall hear and determine the legality of any action of an annual conference taken under the adapted portions of the Discipline or of a decision of law by the presiding bishop of the annual conference pertaining to the adapted portion of the Discipline, upon appeal of the presiding bishop or of such percentage of the members of the annual conference as may be determined by the central conference concerned. (Underscoring added).

Only the concluding sentence of ¶ 537.33 is potentially applicable here because the matter in question is a decision of law by the presiding bishop of the Norway Annual Conference. The members of the annual conference have not appealed under ¶ 537.33. When did the presiding bishop appeal? Certainly not at the time of making his decision. According to Memorandum 859, the presiding bishop appealed when he petitioned for reconsideration of Decision 848.

As noted above, at the time of Decision 848, the Judicial Council properly had jurisdiction to review a decision of law made by the presiding bishop of an annual conference. At the time of Decision 848, neither the annual conference in question nor the presiding bishop had appealed under ¶ 537.33. Thus, under the Constitution (¶ 54.3) and the Discipline (¶ 2613), the matter was properly before the Judicial Council. Memorandum 859 creates the highly unusual circumstance that empowers a presiding bishop of an annual conference within a central conference, not liking the decision of the Judicial Council, to take the matter away from the Judicial Council, by simply petitioning for reconsideration and treating such a petition as an appeal. This cannot be the intent of the Constitution or the Discipline.

Nevertheless, the issues first addressed by the decisions of law made by the presiding bishop of the Norway Annual Conference were now sent to the Northern Europe Judicial Court to determine the legality of the decisions of law by the presiding bishop of the Norway Annual Conference pertaining to the adapted portion of the Discipline. The Northern Europe Judicial Court reviewed the decisions of law pertaining to the adapted portion of the Discipline and, subject to some modifications, affirmed the decisions of law under the adapted portion of the Discipline. The Northern Europe Judicial Court, in making its ruling, stated that it

has not decided on the matter regarding whether the restructuring (pt. 3 of Ole-Einar Andersen's question) is in accordance with the Constitution, in that Constitution cannot be [adapted] or adjusted by the Central Conference, which is why this question rests outside the Central Conference Judicial [Court's] area of competence.

With the Northern Europe Judicial Court having issued its opinion, and specifically noting that it could not rule on the constitutional issues raised by the decisions of law, the matter was properly before the Judicial Council once more in Decision 904. For the first time, the penultimate issue in the case was squarely before the court of last resort – were the statutory provisions (i.e., the adapted Northern Europe Central Conference Discipline) pursuant to which the Norway Annual Conference modified its structure constitutional? The Judicial Council had not previously ruled on this issue.

The majority opinion erroneously concludes that this Judicial Council no longer had jurisdiction over the matter because it had sent the matter to the Northern Europe Judicial Court. In fact, the Judicial Council has jurisdiction over the bishop's decision of law until it finally acts upon that decision under the Constitution (¶ 54.3, 1996 Discipline) and ¶ 2613 of the 1996 Discipline. As ¶ 2613 provides, no . . . episcopal decision shall be authoritative . . . until it has been passed upon by the Judicial Council. The Judicial Council has a constitutional duty, imposed by ¶ 54.3, to review as the court of last resort all episcopal decisions of law. Neither the General Conference nor any other body of the church can negate this constitutional duty. To the extent that ¶ 537.33 is interpreted as depriving the Judicial Council of the ability to fulfill its constitutional duty, it is unconstitutional.

For the foregoing reasons, we dissent from the majority opinion. The Judicial Council had jurisdiction in Decision 904. We would reaffirm that decision.

Keith D. Boyette

James W. Holsinger, Jr.

ld that the Interim Model was null and void, because it did not conform to the requirements of the 1996 Book of Discipline.

At its June 3, 2000 session, the Northern Illinois Annual Conference adopted a New Model as the basic organizational structure for the Annual Conference, and established a twenty-eight member implementation team, appointed by the bishop. The implementation team was to provide, for consideration by a November 2000 special session, a nominating process, the necessary Standing Rules, any budgetary proposals, and all other items necessary, in order that the New Model may be implemented by January 1, 2001.

In Decision 893, the Judicial Council reviewed a bishop's decision of law that the New Model structure approved by the Northern Illinois Annual Conference on June 3, 2000 was constitutional. The Judicial Council did not affirm the bishop's decision for several reasons, including that the New Model was not a completed product but had been referred to an Implementation Task Force to complete the structure for future approval by the Annual Conference. The Judicial Council stated that it was unable to rule at this time since the Annual Conference structure is incomplete. The Northern Illinois Annual Conference was directed to continue to operate under the requirements of Decision 831. The Judicial Council retained jurisdiction over any plan for restructuring the Annual Conference.

The Northern Illinois Annual Conference met in special session on November 18, 2000, and received the report of the New Model Implementation Team. Bishop C. Joseph Sprague made the following statement as part of the proceedings:

Pursuant to Decision No. 893 of the Judicial Council entered October 27, 2000, acceptance of the Report of the New Model Task Force as a basic structure of the Conference and changes in the Standing Rules to implement same, shall become effective on the later of the following to occur: a) effectiveness of the 2000 General Conference enabling legislation pertaining to restructuring; and b) approval of the new structure by the Judicial Council, pursuit [sic] to its reserved jurisdiction over this matter. No previously existing body of the Annual Conference is abolished or reinstated as a result of these measures.

The special session then proceeded to receive a report from the chairperson of the Committee on Nominations, who noted that the report fulfilled the disciplinary requirements and would, upon the adoption of the Annual Conference, serve to delineate membership under either the old or the new structure. The Nominations Report was adopted. Persons were nominated to serve only in positions which pre-existed the New Model.

The special session next received a document entitled, Enabling Changes for New Model Implementation. This document (702-03) amended the Standing Rules of the Northern Illinois Annual Conference with respect to the Nominations Procedure. In addition, the Standing Rules of the Annual Conference were amended as follows:

Notwithstanding any other spectic [sic] provision in these Standing Rules to the contrary, whenever the Presiding/Resident Bishop is ex officio or otherwise a member of or a participant on, any agency, task force, committee or organization established by the Annual Conference, the Presiding/Resident Bishop shall have voice but not vote thereon, unless otherwise required by The Book of Discipline.

The Standing Rules of the Annual Conference were not changed in any other respect to address the implementation of the Report of the New Model Task Force adopted in June of 2000.

Finally, the special session considered and adopted the 2001 budget. The only portion of the budget which addressed the New Model was a line item to fund the position of Director of Clergy Services beginning July 1, 2001. The budget was adopted.

No other report or proposals from the New Model Implementation Task Force were acted upon by the special session to provide a framework for the integration of the New Model with the existing annual conference structure.

Larry Pickens recused himself and did not participate in any of the proceedings in this matter.