General Conference Vote on Guaranteed Appointments Ruled Unconstitutional

10/29/2012
by Neill Caldwell*
 
The top court of The United Methodist Church has upheld church rules that ensure security of appointment for elders and associate clergy members, striking down legislation passed by the denomination’s lawmaking assembly last spring.
 
The church’s General Conference, meeting in Tampa, Fla., had approved on May 1 a much-debated piece of legislation that would have deleted language in the church’s Book of Discipline ensuring security of appointment. The legislation also would have added steps for discontinuing elders and associate members from receiving an appointment. A church-wide Study of Ministry Commission had proposed the changes as a way to replace ineffective pastors.
 
However, the church’s Judicial Council, meeting Oct. 24-27 in Elk Grove Village, ruled that the General Conference action was in violation of the church’s constitution.
 
Security of appointment “has long been a part of the tradition of The United Methodist Church” and “abolishing security of appointment would destroy our historic plan for itinerant superintendency,” the nine-member court said in Decision 1226.
 
The General Conference action was in violation of the church’s third and fourth Restrictive Rules, which ban changes that would destroy that historic plan and do away with clergy rights to a trial and appeal, respectively, the court said. That right to trial and fair process is “absolute,” the ruling states, and it has been upheld repeatedly in previous decisions.
 
Itinerancy is the cornerstone”
 
Frederick K. Brewington, the General Conference delegate who had asked that the matter be referred to the Judicial Council, argued in favor of overturning the legislation during an Oct. 24 oral hearing before the court.
 
“Itinerancy is the cornerstone of the whole structure,” said Brewington, a lawyer and lay member in the New York Annual (regional) Conference. “This action shifts power from the annual conference to the episcopacy. There would no longer be a need to bring charges against an elder, just fail to appoint them. …
 
“Elders make a contract, a covenant, to serve where the bishop sends them,” Brewington said. “This turns things into a mish-mosh — and that’s not a legal term. It will take away our ability to attract new and young clergy, who will go elsewhere.”
 
Reached by phone afterward, Brewington was pleased with the council’s decision.
 
“We need to be all thankful that we have a church that allows us the opportunity to be able to have these important issues decided clearly and in a fully articulated fashion as the Judicial Council has done,” he said. “I think this is an important determination for over 30,000 clergy who basically would be left without recourse if indeed there were determinations made that were not just. That’s really what we — my team and I — were looking at as we put this together, the justice issue.”
 
Read the brief in favor of removing Guaranteed Appointments here.
The brief challenging the constitutionality of removing Guaranteed Appointments is available here.
 
Conflict within lawbook
 
The ruling restores Book of Discipline Paragraphs 337, 321 and 354 to their 2008 language. 
 
The decision tracks the security of appointment language since it was inserted into the Book of Discipline in 1956, and cites several previous Judicial Council decisions in which security of appointment was upheld. In Decision 380, the council said that “there is no directly stated Constitutional right to an appointment. However, it is implicit in Constitutional provisions. …”
 
The ruling also mentions a conflict in the 2012 Book of Discipline, noting that Paragraph 334 retains similar language that was deleted in Paragraph 337.
 
The Judicial Council acknowledged in its ruling that the phrase “guaranteed appointment,” while not used in the Book of Discipline, has become commonly used around the denomination for the idea of security of appointment.
 
Arguing for additional authority
 
At the oral hearing, recently retired Bishop Alfred W. Gwinn Jr. represented the Council of Bishops and argued to preserve the legislation.
 
Episcopal duties have not changed in any way, said Gwinn, who served on the Study of Ministry Commission. “A bishop recommends a person for transitional leave to the Board of Ordained Ministry; the Board of Ordained Ministry must recommend that leave to the clergy session, which has the final decision. Where does the bishop gain additional authority beyond what already exists?”
 
In an Oct. 29 phone interview, Gwinn said he was “disappointed, of course.”
 
“I feel like the Judicial Council looked at the issue very narrowly, and they speak of historical precedence of security of appointment and refer to 1956 as being historical,” he said. “The church is 230 years old, and they seem to try to establish the theory that it’s a historical precedent in the church by using 1956.”
 
Itinerancy should not be linked to security of appointment, the bishop said.
 
“Itinerancy is related to call and commitment — not to security of appointment — and I think (Bishop Francis) Asbury and (Thomas) Coke would be very disturbed by the idea of itinerancy being connected to security of appointment.”
 
Looking ahead, Gwinn said he thinks boards of ordained ministry should concentrate on recruiting “superb candidates” for ministry.
 
“The bishops can deal with people who make the grades E or F,” he said. “There’s a system to exit totally ineffective people, and we are very grateful for B and A pastors. What is killing the church is C- and D pastors with no way to exit them. The removal of security of appointment could have moved out the C- and the D pastors.”
 
 
*Neill Caldwell is editor of the Virginia United Methodist Advocate magazine. Heather Hahn with United Methodist News Service contributed to this report.
 
If you’d like to voice your opinion on this decision, please send it in to vance@ctcumc.org and we’ll share those in follow-up articles regarding this topic. Here is the official language of the decision as it was released early Monday, Oct. 29, a.d. 2012
 
  
 
JUDICIAL COUNCIL OF THE UNITED METHODIST CHURCH - DECISION NO. 1226 
 
IN RE: Request for a Declaratory Judgment from the General Conference for a declaratory Decision as to the Constitutionality of legislation Approved as Calendar Item 355 Regarding Guaranteed Appointments.
 
DIGEST
 
Security of appointment has long been a part of the tradition of The United Methodist Church and its predecessor bodies. Abolishing security of appointment would destroy our historic plan for our itinerant superintendency. Fair process procedures, trials and appeals are integral parts of the privilege of our clergy of right to trial by a committee and of appeal and is an absolute right which cannot be eradicated by legislation. The amendments to ¶337, as contained in Calendar Item 355, are unconstitutional and violate the third and fourth restrictive rules of the Constitution. The original ¶377 of the Discipline is restored and maintained and the changes made thereto at 2012 General Conference are null, void and of no effect. The amendments to ¶321, as contained in Calendar Items 352, is also declared repugnant to the constitution and hence, unconstitutional. The original ¶321 of the Discipline is restored and maintained and the changes made thereto by the 2012 general Conference are null, void, and of no effect.  Calendar Item 358, the new transitional leave ¶354, is declared unconstitutional and Calendar Item 359, which removed the language of a transitional leave from ¶ 354 of the Discipline, is also declared unconstitutional. The current language for a transitional leave as provided for in ¶354 is restored and maintained. 
 
STATEMENT OF FACTS
 
The records of the 2012 General Conference reflect that Petition Number: 20303-MH ¶337-G  deleted language that refers to security of appointment and added language that describes next steps if an elder or associate member is not continued under appointment. The Petition, Calendar Item 355, was amended and adopted by the Legislative Committee on Ministry and Higher Education. Calendar Item 335, as amended and adopted, was approved by the 2012 General Conference on May 5, 2012. 
 
The 2012 Session of the General Conference requested a declaratory decision from the Judicial Council regarding the constitutionality of the approved legislation (Calendar Item 355).
 
Calendar item amended ¶337 of the Book of Discipline of 2008 to read as follows:
 
Paragraph 337:
“1.       Ordained elders and persons who have been granted a license for pastoral ministry and who have been approved by vote of the clergy members in full connection may be appointed to local churches. All clergy members and licensed local pastors to be appointed shall assume a lifestyle consistent with Christian teaching as set forth in the Social Principles.
2.         Elders and deacons, associate members, provisional members, and persons licensed for pastoral ministry may be appointed to ministry settings that extend the ministry of The United Methodist Church and the witness and service of Christ’s love and justice in the world. They shall be given the same moral support by the annual conference as are persons in appointments to pastoral charges. Their effectiveness shall be evaluated in the context of the specific setting in which their ministry is performed. Such ministry settings shall include teaching, pastoral care and counseling, chaplaincy, campus ministry, social services, and other ministries so recognized by the conference Board of Ordained Ministry and approved by the bishop.
a)         Full connection and provisional member elders, associate members, and persons licensed for pastoral ministry may be appointed to Extension Ministries serving in ministries of pastoral care in specialized settings. See ¶¶ 326, 343-344 for specific information about Extension Ministries.
b) Deacons in provisional membership and full connection may be appointed to appointments beyond the local church that extend the witness and service of Christ’s love and justice in a ministry to both the community and the church. This ministry connects community and church and equips all Christians to fulfill their own calls to Christian service. See ¶¶ 326, 328, 329, 331 for specific information about these ministries.
c)         All persons in such appointments shall:
(1) be appointed to a setting that provides an appropriate support and accountability structure;
(2) continue to be accountable to the annual conference for the practice of their ministry;
(3) provide an annual report, including a narrative of their ministry, evidence of continuing education, and evidence of an annual evaluation in their setting;
(4) maintain a relationship with a charge conference.
3.         In the case that an elder or associate member in good standing is not continued under appointment one of the following steps shall be taken:
            a)         If the elder is not continued because a missional appointment is not available, then the bishop shall recommend the elder to the Board of Ordained Ministry for transitional leave (¶354).
            b)         If the elder is not continued because of ineffectiveness then the bishop shall initiate an administrative process in 361 at least 90 days prior to the annual conference.
4.         a)         Each annual conference shall quadrennially name a task force consisting of: four members named by the Conference Lay leader; at least two clergy members from the Board of Ordained Ministry nominated by the Chair of the Board of Ordained Ministry and elected by the clergy session; a superintendent named by the Bishop; and the Bishop. The task force shall meet annually to develop a list of criteria to guide the Cabinet and Bishop as they make missional appointments.
            b)         The Cabinet shall report the following information annually to the Board of ordained Ministry Executive Committee: 1) those elders, provisional elders and associate members who have not received a full-time missional appointment  and the rationale; 2) those elders, provisional elders and associate members who have not received an appointment for reasons of ineffectiveness and the steps which have been taken in the complaint process; 3) statistics by age, ethnicity and gender pf elders who have not received a full-time missional appointment; 4) learnings that have been gleaned as appointment-making is carried out in a new way. This data will also become part of the agenda of the Committee on the Episcopacy at the conference and jurisdictional level. This data will also become part of the evaluation of bishops by the Committee on the Episcopacy at the conference and jurisdictional levels.”  
 
From the records of the 2012 General Conference, as culled from page 2760 of the Daily Christian Advocate (DCA),  May 5, 2012,  Frederick K. Brewington made the motion to seek a declaratory decision from the Judicial Council and asked the specific question “Does Calendar Item 355 of the 2010 (sic) General Conference removing guaranteed appointments to clergy violate either the third restrictive rule of the constitution under paragraph 19 by setting up a process that can do away with the authority of the episcopacy in our denomination and/or the fourth restrictive rule of the constitution, which is paragraph 20, by taking away a right of clergy without a hearing, trial, or resort to any form of appeal and/or in violation of historical precedence to the contrary? “
 
The motion received more than the required 20% vote of the delegates of the 2012 General Conference (Yes, 397; No, 341).
 
An oral hearing was held on October 24, 2012, in Elk Grove, Illinois. The Council of Bishops filed a brief and Bishop Alfred Wesley Gwinn, Jr. appeared for the Council of Bishops. Frederick K. Brewington and John P. Feagins filed briefs and appeared.   Lonnie D. Brooks and Jimmie R. Tatum filed briefs but did not appear.
 
JURISDICTION
The Judicial Council has jurisdiction under ¶2609.1 of the Discipline.
 
ANALYSIS AND RATIONALE
 
¶16.5 of the Discipline gives to the General Conference the power “To define and fix powers, duties and privileges of the episcopacy….”  ¶16.16 of the Discipline gives to the General Conference the power “To enact such other legislation as may be necessary, subject to the limitations and restrictions of the Constitution of the Church”. Therefore, when the 2012 General Conference adopted Calendar Item 355, they were exercising their powers under these provisions of the Constitution.
 
In the case before us, we are being asked to determine whether the removal of security of appointments violate the third and fourth restrictive rules of the Constitution.
 
We observed that the specific question being asked the Judicial Council contains the phrase “guaranteed appointments”. This phrase is not found in the Discipline nor is it found in the revised ¶337. However, “guaranteed appointments” is a phrase frequently used by various speakers and writers (see the Report of the 2009-2012 Study of Ministry Commission, ADCA pgs. 1383-94, especially pg. 1389). This has become a common phrase to describe security of appointment.
 
Though the request for this Judicial Council decision relates specifically to Calendar Item 355 that changed ¶337 in the Discipline, we note that changes to ¶337 resulted in numerous other changes to other paragraphs in the Discipline. These other paragraphs were not cited in the request for the declaratory judgment.
 
Changes in ¶337 (Calendar Item 355) resulted from recommendations submitted by the Study of Ministry Commission. Other recommendations from this Commission that were approved by the 2012 General Conference included Calendar Item 359 (deletion of transitional leave from ¶354, which had allowed for clergy to request transitional leave under only a very limited provision-transitioning from an extension ministry appointment to another appointment for a period lasting a maximum of 12 months); Calendar Item 358 (establishing a new transitional leave, new ¶354, which  includes a new provision that allows  for transitional leave to be at the initiation of the bishop; allows transitional leave to be granted for reason other than not being appointed;  lasting up to a maximum of 24 months; and, includes a new subdivision that states “that clergy on transitional leave of absence shall have no claim on conference funds”); Calendar Item 356 (allowing for an appointment to less than full time service, ¶338); and, Calendar Items 352 (eliminating security of appointment for associate members). Though relating to or growing out of the change to ¶337, none of these Calendar items were included in the request for constitutional review. However, we note that the parties in their briefs acknowledged that these Calendar Items were linked to the issue. Hence, they were addressed in the respective briefs.
 
The Legislative Committee on Ministry and Higher Education also considered the elimination of ¶334 (Petition 20299, page 1423 ADCA). ¶334 contains similar language that was deleted in ¶337. The legislative committee rejected this petition, thus retaining the current disciplinary language in respect of security of appointment.
 
 The action of the 2012 General Conference in approving Calendar Item ¶355 changed ¶337 by the deletion of ¶337.1, the requirement that all elders in good standing shall be continued under appointment.  The current ¶337.1, which was deleted, reads as follows:
 
“All elders in full connection who are in good standing in an annual conference shall be continued under appointment by the bishop unless they are granted a sabbatical leave, an incapacity leave (¶357), family leave, leave of absence, retirement, or have failed to meet the requirements for continued eligibility (¶334.2,3), provided that if the elder is appointed to serve in an affiliated relationship in a missionary conference (¶586.4.b) and that appointment is terminated by the bishop who presides in the missionary conference, than the responsibility for meeting this obligation rests with the bishop of the conference of which the elder is a member.”
 
Similar language in ¶334.1, which was retained, reads as follows:
 
“……..Every effective elder in full connection who is in good standing shall be continued under appointment by the bishop provided that if the elder is appointed to serve in an affiliated relationship in a missionary conference (¶586) and that appointment is terminated by the bishop who presides in the missionary conference, than the responsibility for meeting this obligation rests with the bishop of the conference of which the elder is a member.”
 
When reviewing legislation for constitutionality, we defer to the legislative authority of the General Conference. In reviewing acts of the General Conference for constitutionality, our first inclination is to save legislation, if at all possible, and not destroy it. See Decision 1210.
 
The third and fourth Restrictive Rules state as follows:
 
¶19. Article III  – “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.
 
¶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.  
Security of appointment has long been a part of the tradition of the United Methodist Church and its predecessor bodies. Security of appointment for clergy in good standing was first articulated by the 1956 General Conference with the addition of ¶432.9:
 
“Every traveling preacher, unless retired, supernumerary, on sabbatical leave, or under arrest of character, must receive an appointment.”
 
This provision remained unchanged and untouched over the years and was retained in 1968 but rewritten as a result of the merger of The Methodist Church and The Evangelical United Brethern Church. The rewritten language appeared in ¶316 and ¶332 of the 1968 Book of Discipline:
 
¶316. All ministerial members who are in good standing in an Annual Conference shall receive annually appointment by the bishop unless they are granted a sabbatical leave or a disability leave or in the supernumerary or superannuate relation.
 
¶332. ….Every effective member in full connection who is in good standing in an Annual Conference shall receive an annual appointment by the bishop.
 
This language remained consistent and in effect over the next 28 years, undergoing no radical or substantive changes other than excluding those who were formerly called “traveling preachers on trial”, minor grammatical change  and moving it from one paragraph to another. In 1996 it was revised and removed to ¶328.1 and ¶325.
 
¶328.1 All elders in full connection who are in good standing in an annual conference shall be continued under appointment by the bishop unless they are granted a sabbatical leave, a disability leave, family leave, a leave of absence, retirement, or have failed to meet the requirements for continued eligibility (325.2).12
 
¶325.1 ….Every effective elder in full connection who is in good standing shall be continued under appointment by the bishop.
 
Over the next 16 years, the language has again remained consistent and unchanged, except for the addition of provisions relating to appointments in a missionary conference, ¶337.1 of the 2004 Book of Discipline.
 
In several cases, the Judicial Council has upheld and affirmed security of appointment as a characteristic of the United Methodist Church plan for itinerant general superintendency. In Decision 380 the Judicial Council held:
 
“There is no directly stated Constitutional right to an appointment. However, it is implicit in Constitutional provisions such as Restrictive Rule III (Par.17) which forbids the General Conference to destroy the plan of our itinerant general superintendency and Paragraph 59 which authorizes the bishops to appoint ministers to charges. It becomes explicit as an absolute right clearly set forth in Paragraphs 308.3, 316 and 391.10, disciplinary provisions which have long been a part of the tradition of the predecessor bodies of the United Methodist Church.” See Decision 380. Also see Decisions 459, 462 and 492.
 
Action of the 2012 General Conference in removing security of appointment would have the effect of overturning our historic security of appointment.
 
In Decision 398, the Judicial Council stated that “Of course, the position is correct that no General Conference or Annual Conference or any other body may take any action that would change or alter the government of The United Methodist Church in such a fashion as to destroy the plan of the itinerant General superintendency.”
 
¶337, as amended, is in conflict with ¶334, which was not amended by the 2012 General Conference and maintains security of appointment. Calendar Item 355 deleted the sentence…. “All elders in full connection who are in good standing in the annual conference shall be continued under appointment……..” Similar sentence in ¶334 was retained. Petition 20299 which had proposed to delete it was rejected by the legislative committee on Ministry and Higher Education. ¶337 as amended is in direct conflict with ¶334 and cannot be reconciled with ¶334. There is no indication that the 2012 General Conference intended to repeal ¶334. ¶334 remained unchanged.   
 
Also, Calendar Item 352, which amended ¶321 by removing security of appointment for associate members, is also in direct conflict with ¶334. ¶¶321 and ¶337, as amended, cannot coexist with ¶334 as they are incompatible. Therefore, the amendments to ¶321 and ¶337, as contained in Calendar Items 352 and 355, must be declared unconstitutional. 
 
The fourth Restrictive Rule state as follows:
 
¶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. 
 
The right to trial and appeal by our clergy members is an absolute right that has been expressed and upheld repeatedly by the Judicial Council. The right to appeal has been extended to instances where a clergy member has not been brought up on charges yet still has been determined to be unappointable or otherwise unacceptable to be appointed. Decision 351 is worth noting in this respect:
 
“Equally historic is the method for protecting the rights of ministers who are not under charges, against whom no formal accusations have been brought, and therefore for whom no trial is properly in order. This method has used long-accepted practices and procedures to determine the acceptability of a person for appointment to a parish in the church”.
 
We have found no instance in which there have been provisions for not appointing clergy involuntarily to ministerial settings other than chargeable offenses or some form of unacceptability for appointment.
 
In Decision 351 the Judicial Council stated “The United Methodist Church has a heritage of concern with the rights of persons. That concern has repeatedly made provision for the protection of the rights of its members and of its ministers.”
 
Calendar Item 358, the new ¶354, establishes a new transitional leave which allows for transitional leave to be at the initiation of the bishop rather than being restricted to the clergy. It also allows clergy to be refused an appointment for reasons other than those related to some form of ineffectiveness, etc. The leave can last up to a maximum period of 24 months, without the clergy having any claim on conference funds.
 
The right given to the bishop in this new provision to initiate and place provisional, associate and full members in good standing on transitional leave undermines the right to trial and appeal.
 
Fair process procedures, trials and appeals are integral parts of the privilege of our clergy of right to trial by a committee and of appeal.  In the instance of where a member is not under any formal trial, yet the annual conference is seeking to appoint said member to a status other than ministry appointment, certain safeguards and requirements have to be ensured. These include:
i)                    That there is a through process of investigation, petition and hearing…; and,
ii)                  The elder must be determined to be unacceptable for appointment to a parish nin the church.
 
The new ¶354 lacks these mandatory requirements. This is unlike ¶355, which requires some form of accusation against the clergy member affecting their good standing in the annual conference. Moreover, a request for involuntary leave made by the bishop and the district superintendent automatically invokes the fair process procedures set forth in ¶362.2.
 
Calendar Item 358, new transitional leave ¶354, is unconstitutional. Calendar Item 359 removing the language of a transitional leave from ¶354 of the Discipline is null and void and the current language for a transitional leave in ¶354 is restored and maintained.
 
DECISION
Security of appointment has long been a part of the tradition of The United Methodist Church and its predecessor bodies. Abolishing security of appointment would destroy our historic plan for our itinerant superintendency. Fair process procedures, trials and appeals are integral parts of the privilege of our clergy of right to trial by a committee and of appeal and is an absolute right which cannot be eradicated by legislation. The amendments to ¶337, as contained in Calendar Item 355, are unconstitutional and violate the third and fourth restrictive rules of the Constitution. The original ¶377 of the Discipline is restored and maintained and the changes made thereto at 2012 General Conference are null, void and of no effect. The amendments to ¶321, as contained in Calendar Items 352, is also declared repugnant to the constitution and hence, unconstitutional. The original ¶321 of the Discipline is restored and maintained and the changes made thereto by the 2012 general Conference are null, void, and of no effect.  Calendar Item 358, the new transitional leave ¶354, is declared unconstitutional and Calendar Item 359, which removed the language of a transitional leave from ¶ 354 of the Discipline, is also declared unconstitutional. The current language for a transitional leave as provided for in ¶354 is restored and maintained.