Working through an example — appeal procedure

I’ve found that one way to expose the difficulties in applying the Discipline is to actually work through a hypothetical example.

Let’s suppose that a clergy member of an annual conference, the “respondent,” wants to appeal a trial court finding. Let’s further suppose that the trial court convicted the respondent on November 18 and completed its determination of the penalty (¶ 2711.3) on November 19. What does the Discipline say about appealing from a trial court?

¶ 2716.2 states that “In case of conviction by a trial court, a … clergy member shall have the right of appeal to the jurisdictional … conference committee on appeals … provided that within thirty days after the conviction, the appellant shall notify the presiding bishop of the conference … and the presiding officer of the court in writing of the intention to appeal.” But wait, there’s more. ¶ 2715.1 also states that “In all cases of appeal, the appellant shall within thirty days give written notice of appeal and at the same time shall furnish to the officer receiving such notice [¶ 2716.2 cross-referenced] and to the counsel a written statement of the grounds of the appeal, and the hearing in the appellate body shall be limited to the grounds set forth in such statement.” (Judicial Council Decision 144 and Memorandum 826 are each relevant here.)

To recap the above: the written “notice of appeal” goes to the presiding bishop and the presiding officer (¶ 2716.2). ¶ 2715.1 further requires that the “notice of appeal” go to “the [?] officer receiving such notice” as well as Church counsel, and that the “notice of appeal” be accompanied by the “written statement of the grounds of the appeal.”

The thirty-day deadline seems simple enough. In a year where February has only 28 days, November 19 is day 323. Day 353 is December 19. But on closer inspection, November 19 is possibly not the correct date to “start the clock.” ¶ 2716.2 says “within thirty days after the conviction [emphasis added],” which took place on November 18, not November 19. To further strengthen this reading, ¶ 2711.3 has for a title, “Penalties—If the Trial Results in Conviction.” Arguably, December 18 is the correct deadline, as it is thirty days after the conviction. But, arguably, so is December 17 the correct deadline: the controlling language is “within thirty days after the conviction [emphasis added],” suggesting no more than twenty-nine days. To be on the safe side, I’d go with “twenty-nine days after conviction.” Hence, December 17 is the (arguably) correct deadline.

The Discipline also says (¶ 2710.5) that “The presiding officer shall remain and preside until the decision is rendered and the findings are completed and shall thereupon sign and certify them.” A reader might think upon reading this sentence that once the presiding officer has signed and certified the decision and findings, the presiding officer no longer presides. This is apparently not the case.

One way the presiding officer continues to preside is that the presiding officer has say in perpetuity regarding “release” of the trial record. Specifically, from ¶ 2713.5: “The secretary of the court shall at the conclusion of the proceedings send all trial documents to the secretary of the annual conference, who shall keep them in custody. Such documents are to be held in a confidential file and shall not be released for other than appeal or new trial purposes without a signed release from both the clergyperson charged and the presiding officer of the trial that tried the case. If an appeal is taken, the secretary shall forward the materials forthwith to the president of the court of appeals of the jurisdictional … conference.” (Here we note that even though the court of appeals was renamed the committee on appeals [1992 General Conference Calendar Item 1427, DCA page 468], this mention of the old name has remained for over twenty years.) For purposes of the appeal, the respondent and “the Church” are guaranteed access to records at ¶ 2701.2e.

Another way that the presiding officer continues to preside after the trial court is in the appellate process. The presiding officer is the only person specified in the Discipline to first communicate with the committee on appeals. This makes some sense; after all, the committee on appeals will need the trial record. Despite this reality, things start to get strange in ¶ 2716.3.

¶ 2716.3 starts, “When notice of an appeal has been given to the presiding officer of the court, the presiding officer shall give notice of the same to the secretary of the committee on appeals of the jurisdictional … conference and submit the documents in the case, or in case the documents have been sent to the secretary of the annual conference, instruct the secretary to send the documents to the president of the committee on appeals.” (It’s strange that the Discipline does not explicitly require that the “written statement of the grounds of the appeal” also go at the same time.) So if the presiding officer still has the documents, the presiding officer sends the documents along with the “notice of appeal” to the committee on appeals secretary; if the annual conference secretary now holds the records, the annual conference secretary sends these documents to the committee on appeals president. Why the difference in sending to the president instead of the secretary?

¶ 2716.3 concludes, “The jurisdictional … conference committee on appeals shall within thirty days give notice to the presiding bishop of the conference from which the appeal is taken … and to the appellant of the time and place where the appeal will be heard. Such hearing shall occur within 180 days following receipt of notice to the committee on appeals. Both the annual conference … and the appellant may be represented by counsel as specified in ¶ 2708.7. The presiding bishop of the conference … shall appoint counsel for the Church.” Note that the committee on appeals has an obligation to give notice to the appellant but not to the appellee. Giving notice to the appellee is the (implied) job of the presiding bishop. At this point the presiding bishop has to appoint counsel for the Church (perhaps reappointing existing counsel who was apparently given “written statement of the grounds of the appeal” back at ¶ 2715.1 by the appellant). Why the repetition regarding appointing Church counsel?

Realistically of course an appellant has to contact a committee on appeals prior to all of this. ¶ 2716.1 states that “The committee [on appeals] shall elect its own president and secretary and shall adopt its own rules of procedure, …” If the committee prefers the “written statement of the grounds of the appeal” in a specific format (for example), the appellant would want to ask before submitting it to the three named persons not including the committee on appeals. ¶ 2715.13 provides for asking such formatting questions: “Contacts with members of any appellate body shall be limited to matters of procedure and shall be directed only to the presiding officer or secretary of the appellate body. Under no circumstances shall matters of substance be discussed.”

The above interpretation of the Discipline in the given hypothetical is by no means a complete discussion. One example: does the annual conference have a right to its own counsel before an appellate body? In other words, before an appellate body does the annual conference have a right to counsel independent of the “Church counsel”? ¶ 2715.7 says, by omission, “No.” ¶ 2716.3 strongly suggests, “Yes.” There must be other more subtle issues that come up in practice.

I haven’t the faintest idea how to simplify the above procedures. Before I close, I’d like to mention a related observation.

Let’s imagine a different hypothetical example: suppose that Church counsel and the presiding officer both agree to change the trial’s location. ¶¶ 2701.2b and 2708.5a both require that notice be given as required. Who is supposed to provide notice to the respondent of this change: the Church counsel or the presiding officer?

I don’t know either. This hypothetical situation has occurred at least twice in the last sixteen years. In both cases I’ve read about, the respondent found out by accident from another source about the change in location.

It would be nice if judicial procedure within The United Methodist Church could concentrate on principles rather than micromanagement one paragraph at a time. Micromanagement has the odd effect of preventing both support and accountability.

 

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