The WJ Case for Bishop Oliveto – Jurisdictional Autonomy

Attorney Richard Marsh in Colorado prepared and delivered the oral remarks supporting the Western Jurisdiction’s election of Bishop Karen Oliveto. As a fellow member of the Western Jurisdiction, he gave permission for them to be re-published here, so I am in three parts because he makes enough important points that they merit close attention. Here’s the series:

1. Introduction, Jurisdictional Autonomy
2. Elder in Good Standing
3. Marriage is no Disqualifier, Defer to A Way Forward

The section headings have been added by the editor for readability.

ORAL PRESENTATION, PART ONE

Richard A. Marsh for Western Jurisdiction College of Bishops

Introduction

Good morning, Mr. President and Members of the Judicial Council. My name is Richard Marsh. Together with Llewelyn Pritchard at my side, we represent the Western Jurisdiction College of Bishops as an Interested Party in this matter. The members of the WJ College present at this hearing are: Bishop Robert Hoshibata, Bishop Elaine Stanovsky, Bishop Minerva Carcaňo and Bishop Karen Oliveto. Bishop Grant Hagiya was unable to attend. Thank you for the opportunity to be heard on this matter.

I will divide my remarks under four general points.

1. The Judicial Council does not have jurisdiction to rule on the merits of the Request for Declaratory Decision.
2. Bishop Karen Oliveto was an elder in good standing at the time of her nomination, election, consecration and assignment as bishop. As such, she met all requirements of the 2012 Discipline. To grant nullification of the election, the Judicial Council has to legislate a requirement that does not appear in the
3. The nomination, election, consecration and assignment of a clergy person in a same-sex marriage does not violate, negate or ignore any Church law because the Discipline does not ban or prohibit same sex marriages.
4. The matters argued for in the Request for Declaratory Decision are precisely the matters pending with the Way Forward Comm’n and the Judicial Council should not interfere with or complicate the Commission’s work by creating a new standard for episcopal elections.

Facts

            The basic facts in this matter are undisputed and relate to what happened in 1939 when the Constitution of the Methodist Church was created and to what happened at the WJ Conference in July 2016. No other facts are relevant to the correct decision by this Council. The 1939 facts relate to the constitutional structure of the church. The 2016 facts are that Bishop Oliveto was an elder in good standing at the times of her nomination, election, consecration and assignment as bishop.

Origin of Jurisdictions

            As I’m sure you most of you know, the Methodist Episcopal Church split in 1844 over the issue of slavery. The churches in favor of slavery formed the Methodist Episcopal Church South. In 1939, the two churches approved a Plan of Union and re-united.

Prior to 1939, the General Conferences in both the MEC and MECS elected bishops. As an absolute condition of the 1939 Plan of Union, MEC South insisted on a church structure or polity that guaranteed that no General Conference would elect bishops for the southern churches. Because the northern churches outnumbered the southern churches, northern churches would control voting at General Conference. Consequently, the southern churches wanted to make sure that northern churches did not tell them who their bishops would be. They also insisted on a church structure that prevented the election of any black bishop for any white church. Thus, the 1939 Plan of Union created five Jurisdictional Conferences for white churches and a Central Jurisdictional Conference for black churches. The five Jurisdictional Conferences were organized geographically by region.

Without the creation of the Jurisdictional Conferences, there would have been no Plan of Union in 1939. There would be no church order and polity as we know it today in the U.S. The 1968 merger carried forward the same jurisdictional conference structure without change. Importantly, the 1968 merger eliminated the racial Central Jurisdictional Conference.

The jurisdictional structure and episcopal plan created under the 1939 Plan of Union is in our Constitution today.

• ¶27.2   “jurisdictional conferences shall . . . elect bishops”
• ¶45      “There shall be a continuance of an episcopacy . . .”
• ¶46      “The bishops shall be elected by the respective jurisdictional conferences and consecrated in the historic manner . . .”

The point of separate jurisdictional conferences was then and is now to elect bishops in their respective regions free from interference or oversight by other jurisdictional conferences. The use of the word, “respective”, in ¶46 evidences and underscores this jurisdictional autonomy over episcopal elections.

Not even the General Conference can interfere with the constitutional grant of authority to jurisdictional conferences over episcopal elections. At the 1944 General Conference, the Conference delegates passed a resolution granting the General Conference the authority to elect one or more Missionary Bishops to serve in Central or Provisional Conferences. The resolution was appealed to the Judicial Council on the question of its constitutionality. In JCD 21, the Judicial Council ruled the resolution unconstitutional:

“As the only provision in the Constitution relating to election of Bishops is that they shall be elected by the respective jurisdictional and Central Conferences, it would be unconstitutional for the General Conference to elect Missionary Bishops.”

Just as the General Conference has no power to elect bishops, it also has no power to un-elect or nullify jurisdictional episcopal elections. The same is true for jurisdictional conference. No jurisdictional conference has the constitutional authority to either elect or nullify an episcopal election in another jurisdictional conference. On this ground alone, the Judicial Council should decline jurisdiction over the Request for Declaratory Decision.

Separation of Powers

Next, we have three constitutive bodies in our Church: the General Conference, the Council of Bishops and the Judicial Council. The concept of separation of powers in central to this tripartite structure of our Church government. It is much like the structure of the federal government in the United States.

Where the Council of Bishops is concerned, the election and consecration of bishops has been constitutionally conferred on the five Jurisdictional Conferences, free from the interference of the Council of Bishops, the General Conference and other Jurisdictional Conferences. The same is true for Central Conferences. Each Jurisdictional and Central Conference acts exclusively and autonomously in its election and consecration of bishops. This basic point is acknowledged in the SCJ (or Brewster) Opening Brief at page 4: “The nomination, election, consecration and assignment of persons as bishops . . . is the primary and exclusive work of jurisdictional . . . and central conferences.”

Thus, the episcopacy in the United States is constituted by and continued in the respective Jurisdictional Conferences. Similarly, the episcopacy in the Central Conferences is constituted by and continued in the respective Central Conferences. As constitutive bodies in charge of their own episcopal continuity, the respective Jurisdictional and Central Conferences enjoy constitutional freedom in their elections.

There is no precedent since 1939 for challenging an episcopal election. Nor should the Judicial Council take this opportunity to create such precedent.

The only way to challenge the action of a constitutive body like a Jurisdictional or Central Conference is by whatever mechanism the constitution provides for such a challenge. Just like the US Congress cannot pass legislation outlining a procedure for impeaching a US President (because the US Constitution provides the only mechanism for impeachment), neither can our General Conference enact legislation providing a mechanism to nullify an episcopal election. The mechanism for a such a challenge must appear in the Church’s Constitution. There is no such mechanism in the Church’s Constitution. Nor does the SC Jurisdiction attempt to argue that the WJ election was unconstitutional.

In short, no Jurisdictional Conference or Central Conference can constitutionally interfere with the episcopal election in another Jurisdictional or Central Conference. It’s been that way since the Plan of Union was adopted in 1939. This is not the time to create the basis for a constitutional challenge where none exists as a matter of law.

Two Errors seeking jurisdiction

By its Request for Declaratory Decision, the SC Jurisdiction seeks to violate the very structure that has unified the Church since 1939. In this sense, the SC Jurisdiction seeks to lead the way in breaking the order and polity of the United Methodist Church. The Request for Declaratory Decision in fact negates, ignores and violates the laws of our Church as set forth in the Discipline.

The Judicial Council cannot assume jurisdiction over the Request for Declaratory Decision without violating the constitutional order and church structure established in the 1939 Plan of Union. The Judicial Council cannot assume jurisdiction over the Request for Declaratory Decision without violating the “continuity of the episcopacy” guaranteed by ¶45 of the Church’s constitution.

Next, the creation of the Jurisdictional Conferences in 1939 decidedly modified the general superintendency of the Church. Whereas prior to 1939, bishops exercised “residential and presidential supervision” over the entire General Conference (north and south), after 1939, ¶49 of the Constitution restricted bishops’ powers of “residential and presidential supervision” to their respective jurisdictions or those jurisdictions to which they might be transferred by consent of the receiving jurisdiction.

The Judicial Council cannot assume jurisdiction over the SC Jurisdiction’s Request For Declaratory Decision without unconstitutionally interfering with, and thereby destroying, the plan of itinerant general superintendency guaranteed under ¶19 of the Restrictive Rules. Jurisdictional and Central Conferences have the constitutional right to decide who will exercise residential and presidential supervision in their respective jurisdictions.

Here, in 2016, by a vote of 88-0, the WJ Conference elected a bishop in whom they vested the powers of residential and presidential supervision. Does anyone here really believe the Holy Spirit was not present at that election? The SC Jurisdiction has no standing to challenge that election without interfering with the Constitution’s plan of general superintendency and violating ¶19 of the Restrictive Rules.

Lack of Impact

Before I leave the question of jurisdiction, I want to touch on the point that the SC Jurisdiction has made no showing of how the WJ election was germane to or directly affected the business before the SC Jurisdiction. The only argument made in the SCJ Brief is the possibility of a future transfer of an LGBTQ bishop to the SC Jurisdiction. As I just outlined, ¶49 of the Constitution provides a fail-safe way for the SC Jurisdiction to avoid such a possibility. All they have to do is say “no”, to the transfer. The WJ election was not germane to and did not directly affect the business of the SC Jurisdiction.

Earlier this year, the Southeastern Jurisdiction College of Bishops issued a “Q&A” memo in which the College said that the WJ episcopal election “does not directly impact” the work of the SE Jurisdiction.

Only the SC Jurisdiction stands before this Council arguing for an impact of jurisdictional proportions. The fact is that the Request for Declaratory Decision makes no showing of how the WJ election affects the SC Jurisdiction. The election did not relate to any business before the SC Jurisdiction and the work of the SC Jurisdiction is unaffected in any direct and tangible manner by the election. (See our Opening Brief at pages 3-5 for discussion and citations to Decisions and Memoranda of the Judicial Council.)

For the reasons stated, the Judicial Council should decline jurisdiction.

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Your Turn

This opening framework pairs nicely with what Hacking Christianity wrote before the trial: jurisdictions have autonomy thanks to the South, and now the South cannot take that back without a constitutional crisis, and the Judicial Council would be wise to not upend the cart.

Read the rest of the series here:

1. Introduction, Jurisdictional Autonomy
2. Elder in Good Standing
3. Marriage is no Disqualifier, Defer to A Way Forward

Thoughts?

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