Decision Number 312

The Request of the Committee on Episcopacy of the Western Jurisdiction for a Declaratory Decision as to the Meaning, Application and Effect of Par. 395.2 of the 1968 Discipline Concerning the Retirement of a Bishop.

Digest

A Jurisdictional Conference may not proceed under Par. 395.2 for the retirement of a bishop. This paragraph is unconstitutional by reason of its violation of the constitutional provisions for a basically uniform retirement rule for bishops other than those elected by the Central Conferences (Par. 15.5), for life tenure of bishops (Par 55) and for the protection of our itinerant general superintendency (Restrictive Rule No. III, Par. 17), and therefore has no force or effect.

Statement of Facts

The Judicial Council received the following Petition:

"Petition to the Judicial Council of The United Methodist Church

"From: The Committee on Episcopacy of the Western Jurisdiction

"Regarding: The interpretation of Par. 378.2 in the Blue Book (Par. 395.2 in the Uniting Conference Daily Christian Advocate, pages 524, 525) as it bears on the situation of Bishop Gerald Kennedy. The paragraph reads:
"A bishop, at any age and for any reason deemed sufficient by his Jurisdictional Conference, may be released by that body from the obligation to travel through the connection at large, and from episcopal supervision."

"Date: October 28, 1968

"Whereas the Committee on Episcopacy of the Western Jurisdiction of The United Methodist Church met with the College of Bishops of the Western Jurisdiction, October 18, 1968, for the purpose of considering questions raised by Bishop Gerald Kennedy's announcement that he would be assuming certain responsibilities at the First United Methodist Church, Pasadena, California, and

"Whereas in that meeting Bishop Kennedy indicated his intention of preaching two or three times monthly at First United Methodist Church, Pasadena 'until he can retire as a Bishop,' and

"Whereas Bishop Kennedy has indicated his desire to be released from the obligation to travel through the connection at large and from residential and presidential supervision when this is possible within the provisions of the Discipline, and "Whereas the above-cited paragraph appears to bear on the issues at hand, but is not entirely clear as to its meaning, implication, and method of implementation.

"The Committee on Episcopacy of the Western Jurisdiction hereby petitions the Judicial Council of the United Methodist Church for a declaratory decision, under the provisions of Paragraph 1715.1 (Blue Book) giving answer to the following questions, all of which appear to be relevant to Bishop Kennedy's situation:

"1. Does this paragraph imply that a retirement under its provisions is the result of incompetency or inability on the part of the bishop?

"2. Is a bishop who is retired under the provisions of this paragraph entitled to the full amount of pension and housing benefits for a retired bishop? If not, who determines what pension benefits the retired bishop should receive?

"3. Is a bishop who wishes to relinquish his episcopal responsibilities in favor of some other line of endeavor such as a pastorate or college presidency entitled to retirement from the episcopacy under the provisions of this paragraph provided his Jurisdictional Conference votes approval of such procedure?

"4. Is it proper for a bishop to initiate action looking toward retirement under the provisions of this paragraph, and if so, what are the proper procedures?

Respectfully, Harvey H. Pothoff, Chairman Committee on Episcopacy The Western Jurisdiction"

Jurisdiction

The Judicial Council has jurisdiction under Par. 1715 of the 1968 Discipline.

Analysis and Rationale

The question before us is the meaning, application and effect of Paragraph 395.2 which reads as follows:

"A bishop, at any age and for any reason deemed sufficient by his Jurisdictional Conference, may be released by that body from any obligation to travel through the connection at large and from residential supervision."

Paragraph 15 of the Constitution of The United Methodist Church reads in part:
"The General Conference shall have full legislative powers over all matters distinctively connectional, and in the exercise of this power shall have authority as follows:
* * *

"5. To define and fix the powers, duties and privileges of the episcopacy, to adopt a plan for the support of the bishops, to provide a uniform rule for their retirement, and to provide for the discontinuance of a bishop because of inefficiency or unacceptability." (emphasis added)

Paragraph 395 provides the rules for the retirement of bishops other than those elected by Central Conferences. Section 1 of this paragraph carefully defines the procedures of mandatory retirement by age limit. Section 3 describes the specific requirements for voluntary retirement after age 65. Section 4 outlines the steps necessary for the involuntary retirement of a bishop because of impaired health. All three of these provide basic standards and procedures which comply with the constitutional requirement of uniformity quoted above.

However, Section 2 of Paragraph 395, the section in question in the petition before us, does not conform to this constitutional requirement. The very nature of the questions in this petition indicates that the ambiguities, vagueness, and lack of objective standards in this section are so great that a definitive interpretation of its meaning, application and effect is impossible. Because of the importance of this matter before us, the Judicial Council invited arguments and briefs from many agencies of the Church including the Council of Bishops, the College of Bishops of the Western Jurisdiction, the Council on World Service and Finance, the General Board of Pensions and the Department of the Ministry of the General Board of Education. Of the many statements submitted to the Judicial Council concerning the interpretation of this section, no two were in complete accord.

To say that a bishop may be retired "at any age, for any reason deemed sufficient by his Jurisdictional Conference" is to leave the Jurisdictional Conference without guidelines or objective standards to maintain uniformity in the retirement of bishops under Paragraph 395.2. If it were validated, this section could create a multiplicity of retirement programs and procedures among the several jurisdictions which would patently violate the constitutional requirement of uniformity.

Decision No. 83 of the Judicial Council is not in conflict. All that this case decided was that standards for retirement of Central Conference bishops need not be uniform with those prescribed by the Discipline for retirement of bishops of the several jurisdictions at age 70. The case obviously did not hold or require a holding that within the several jurisdictions a variety and disparity of standards for retirement could prevail either by enactments of the General Conference or by delegation of rule-making authority to the Jurisdictional Conference.

Decision No. 83 made a distinction which was in accord with the historic policy of changing and adapting the general laws of the church to meet the peculiar and varying needs of the Central Conference areas. (See Par. 30.5 of the Constitution.) On the other hand, within the jurisdictions the policy of the church has been to seek uniformity. We believe this to be the reason for the reference to "uniform rule" for retirement of bishops in Paragraph 15.5 and its related provision for "uniform basis" for election of bishops of the jurisdictions in Paragraph 15.10. To hold otherwise would open the door to a great disparity of rules within the several jurisdictions which could prove harmful to the administration of the church as a whole and seriously threaten the connectional system itself.

Furthermore, the question of life tenure for bishops is involved in possible interpretations of Par. 395.2. Par. 55 of the Constitution establishes for The United Methodist Church a guarantee of life tenure for bishops as follows:
"The bishops of The Methodist Church elected by the jurisdictions, the active bishops of The Evangelical United Brethren Church at the time of union, and bishops elected by the jurisdictions of The United Methodist Church shall have life tenure ...."

When the General Conference grants to the Jurisdictional Conference the power to retire a bishop "at any age for any reason" deemed by the Jurisdictional Conference to be sufficient, it puts in jeopardy the constitutional guarantee for life tenure. Such a grant of authority would empower the majority of members of a Jurisdictional Conference to terminate the active service of even the youngest bishop without regard to health or any other standards for retirement. To argue that this power would not be so used is no answer to the constitutional mandate and guarantee of life tenure. To assert that a bishop retired under Par. 395.2 would continue to hold the title "retired bishop" and to receive the perquisites appropriate to a retired bishop is likewise no answer to the fact that the procedure set forth in this section would do violence to the substance of life tenure.

It is significant in this connection that Restrictive Rule No. III of the Constitution (Par. 17) states as follows:
"The General Conference shall not change or alter any part or rule of our government so as to do away with episcopacy or destroy the plan of our itinerant general superintendency."

Certainly any procedure which would permit termination of the active itinerant service of a general superintendent under the unlimited discretion attempted to be granted to a Jurisdictional Conference under Paragraph 395.2 would not be in harmony with the purpose of Restrictive Rule No. III which seeks to assure continuance of the plan of the itinerant general superintendency.

Aside from the constitutional defects mentioned, it should be noted that a validation of Paragraph 395.2 would permit any Jurisdictional Conference to nullify the long-established standards enacted by the General Conference for episcopal retirement for reasons of age and health as set forth in Paragraph 395.1, 3 and 4. Literally Paragraph 395.2 would make it optional with each Jurisdictional Conference to follow or to ignore these standards. For this reason and also because of its lack of specificity and its inherent vagueness, serious doubt would exist concerning the validity of Paragraph 395.2 aside from its unconstitutionality. There have been intimations in some of the briefs before us that Paragraph 395.2 was designed to provide for the release and termination of bishops because of "inefficiency or unacceptability." Although the legislative history of this old and unused paragraph of the Discipline cannot be ascertained, if it seems desirable to provide procedures for such termination for cause this would be a matter appropriate for further General Conference action consistent with the constitutional provisions herein noted. Similarly, if the present procedures for the retirement of bishops under Sections 1, 3 and 4 of Paragraph 395 are insufficient to meet the needs of the Church, it would be within the competence of the General Conference to pass supplementary legislation which would be in harmony with the Constitutional provisions concerning uniformity, life tenure, and the itinerant general superintendency. It would not be proper for the Judicial Council, through the device of interpreting Paragraph 395.2, to supply this legislation.

Decision

We find and declare that Paragraph 395.2 violates the Constitution of The United Methodist Church and is, therefore, void and inoperative.

Dissenting Opinion

I find nothing in the Constitution which requires that legislation concerning episcopal retirement must be within the framework of a uniform rule; but if there is such a restriction, I believe that the present legislation qualifies, including Par. 395.2.

If the cited paragraph does not meet Constitutional standards, it must be because each Jurisdictional Conference is given the authority to approve or disapprove a retirement, even though two or more situations may be substantially identical. But a similar discretion is vested in those who must pass upon a requested retirement for a bishop who has reached the age of sixty-five years (Par. 395.3) or a proposed involuntary retirement because of health impairment (Par. 395.4). Those who must pass upon a proposed involuntary retirement are directed to decide on the basis of "the best interests of the church." No yardstick is supplied for those who must judge under Pars. 395.2 or 395.3, yet it is reasonably implicit from the nature of the church bodies that sit in judgment that they too are expected to vote for what they believe to be in the best interests of the church. I believe that all of our retirement legislation in which discretionary authority is vested in a named agency of the church is uniform for the reason that the instrumentality of the church named to sit in judgment on the desirability of a proposed retirement is of uniform application throughout the church, and that the objective standard to be applied in each instance is the best interests of the church. So I conclude that the legislation on the subject of episcopal retirement is uniform within the meaning of Par. 15.5 of the Constitution.

More than that, I do not believe that Par. 15.5 limits the General Conference to a uniform rule for episcopal retirement. The Constitution vests in the General Conference "full legislative power over all matters distinctively connectional," (Par. 15). Everyone agrees that a plan of episcopal retirement is a matter distinctively connectional, but it is said that Section 5 of Par. 15 limits the authority of a General Conference in the enactment of episcopal retirement legislation to the adoption of "a uniform rule for their retirement."

No one contends that the General Conference is limited to legislating only on those distinctively connectional matters which are enumerated in the fifteen grants of legislative authority which follow the general authorization. Rather, it is the position of the Council in this instance that if a General Conference is legislating in one of the enumerated fields, such as episcopal retirement, it is limited to the specific authorization to enact a uniform rule rather than the broader authorization to exercise "full legislative power."

This has not been the interpretation heretofore put upon the legislative authority of a General Conference. The General Conferences of the former The Methodist Church have legislated within the framework of full legislative power with respect to any matter distinctively connectional and have treated the specific legislative authority conferred in the ensuing sections of Par. 15 as authorizations but not limitations on their authority.

This interpretation was sustained in Decision No. 83 of the Judicial Council, which held that it was constitutional for a General Conference to enact episcopal retirement legislation that was not uniform. That decision sustained legislation which set a mandatory retirement age for bishops serving within the Jurisdictions while authorizing Central Conferences to set their own rules, with the result that Central Conference bishops were not required to retire at the age set for bishops serving within the Jurisdictions.

This was challenged as unconstitutional because it was not a uniform rule, exactly as Par. 395.2 is challenged today. In Decision No. 83, the constitutionality of non-uniform legislation was sustained, the authority in Par. 15.5 to adopt a uniform plan being ruled an authorization but not a restriction on the right to adopt a plan of retirement. It was said in that decision:

". . .'full legislative power over all matters distinctively connectional' . . . is a broad grant of power, and unless there is found elsewhere in the Constitution some modification of, or a limitation to, this power, the General Conference has the right to prescribe one age limit for the retirement of Bishops assigned to or elected by Jurisdictional Conferences and another rule for the retirement of Bishops elected by Central Conferences . . . .

"Central Conference Bishops constitute a part of the 'Episcopacy' of The Methodist Church . . . the General Conference does have the right to provide a uniform rule for the superannuation of all Bishops including Central Conference Bishops. So far, however, such uniform rule for the superannuation of all Bishops has not been provided by the General Conference.

"It has been suggested that the provision in Section 5 of Par. 8 authorizing the General Conference 'to provide a uniform rule for [the] superannuation' of Bishops, constitutes a limitation upon the legislative power granted in the first clause of Par. 8; and that a proper interpretation of Par. 8 as a whole is that in legislating upon the question of superannuation or retirement of Bishops, it is limited to prescribing a uniform rule for the retirement of Bishops.

"In view of the broad grant of power contained in the first clause of Par. 8 and the fact that provision set out in Section 5 of Par. 8 is not a clearly expressed limitation of this broad grant of power contained in the first clause of said paragraph, it does not appear that the paragraph as a whole is subject to the interpretation suggested. It' would appear that a more reasonable interpretation would be that the General Conference has 'full legislative power on all matters distinctively connectional' including the power and authority 'to provide a uniform rule.'"

My colleagues place exactly the opposite construction on Par. 15.5, holding it to be a limitation on the right of the General Conference to adopt episcopal retirement legislation that is not of uniform application. Decision No. 83 is rationalized away as something applicable only to Central Conference bishops; and to accommodate the rationalization the digest of today's decision waters down the "uniform rule" for retirement that is authorized in Par. 15.5 and it now emerges in the official digest of the opinion as a requirement "for a basically uniform rule for bishops other than those elected by the Central Conferences." A "uniform rule" in the Constitution becomes a "basically uniform rule" in today's decision apparently to accommodate the dicta in today's decision to the effect that retirement Pars. 395.3 and 395.4 are constitutional; and bishops elected by the Central Conferences are excluded in order to reconcile the decision with Decision No. 83. I have previously noted that I find the constitutionality of Pars. 395.3 and 395.4 indistinguishable from that of Par. 395.2.

Par. 395.2 is likewise held to be unconstitutional as an impingement upon "life tenure" (Par. 55 of the Constitution) and a violation of restrictive Rule III (Par. 17 of the Constitution) which denies to the General Conference authority to "destroy the plan of our itinerant General Superintendency."

Life tenure has never been a literal concept, and retirement and resignation have always been accepted as necessary corollaries to a workable plan of life tenure. This is for the protection of both the bishop and the church. Age, health and countless other circumstances, often unforeseeable, make it both wise and necessary that there be a retirement policy adaptable to changing circumstances.

The fact that Par. 395.2 makes possible retirement at any age and for any reason deemed sufficient by a Jurisdictional Conference simply recognizes that factors other than health or age may make retirement desirable either to the bishop or the church or both. To me, this is appropriate flexibility in a long-term contract, quite essential if something as serious to both parties as service for life is to be undertaken. But, it is always the church, speaking through its Jurisdictional Conference, that makes the final decision.

I find the argument that the retirement authority in Par. 395.2 would "destroy the plan of our itinerant General Superintendency" (Par. 17) even less persuasive. When a bishop is retired, he is replaced by another who itinerates. The fact that the retired bishop no longer does so would appear to be without significance, because he is out of office. And, finally, it is said that the legislation is without guidelines or objective standards and so vague as to cast serious doubt on its validity. I grant that the statute is broadly worded, and appropriately so if there is to be flexibility to cope with unforeseen situations. But its wording and meaning are not vague. "Any age" is perfectly explicit. Likewise, "any reason" while broadly framed is perfectly clear. It can be the bishop's reason or the church's reason. It can relate to his performance in office or to his acceptability. But, it can also relate to reasons personal to the bishop which have nothing to do with his acceptability or performance.

Whether the reason is sufficient to justify retirement is to be determined by the Jurisdictional Conference. The members will use their collective best judgment, weighing all of the circumstances, in determining what is in the best interests of the church.

It can be assumed that no one is in a better position than a Jurisdictional Conference to make such a determination. The bishop serves within its geographical territory, it elected him and it passes quadrennial judgment upon his work.

It is equally clear that a release under Par. 395.2 from the obligation to travel and from residential supervision amounts to retirement. It is so stated in Par. 395.5, and the rights and privileges granted under Par. 396 to a bishop retired under earlier paragraphs, including 395.2, are those of a retired bishop. Under existing legislation, his pension rights are determined by the General Conference on recommendation of the Council on World Service and Finance.

As for guide-lines or objective standards, a Jurisdictional Conference can reasonably be presumed to reach an answer that it considers to be in the best interests of the church. If it is desirable to have a flexibility in lifetime tenure to permit a retirement at any age and for any reason deemed adequate, it is hard to see how the authorization could be more precisely defined without defeating the ability to act on unforeseen circumstances.

Par. 395.2 is stricken down on no less than three Constitutional infirmities, and is found to be so vague as possibly to be invalid independently of Constitutional objections. This is quite an indictment of legislation that was first adopted by the General Conference of the former The Methodist Church in 1912. For the first twenty-eight years, this authority to retire a bishop at any age and for any reason was placed in the General Conference itself, and for the last twenty-eight years it has been vested in the Jurisdictional Conferences. So far as I can determine, it has never been utilized by either. This contrasts somewhat with the dire predictions of its destructive potential found in the Council's decision.

I would have sustained the constitutionality of the legislation under review and would have answered the petitioner's questions along the lines I have indicated.

LEON E. HICKMAN