Article Submitted by Rev. Dennis Meaker: Rev. Dennis J. Meaker is an Elder in the Tennessee Conference. He entered the ministry in 1998 and will be retiring in June of 2017.
Many trials taking place under the United Methodist Judicial Process in the last 15 years or so have involved matters where there were few disputed facts. The trials over same-sex weddings are often in the form of protests where it is understood that the Discipline was intentionally violated. Likewise, if one is accused of being a self-proclaimed ‘practicing’ homosexual the case probably arose because the pastor in question proclaimed their sexual orientation and their relationships. In such cases, the Judicial Process is primarily a forum for protesting the Discipline.
An altogether different case arises when there are allegations of misconduct that are disputed. A typical example would be an allegation that a pastor had a sexual relationship with a parishioner. It is likely that the bulk of the proof will be reduced to a swearing contest between the parishioner and the pastor. Our only mechanism for ultimately resolving such a dispute, in the absence of a settlement, is the United Methodist Church version of a civil trial. To understand the inherent inadequacy of our existing process from the standpoint of the pastor I am comparing the process that is actually available in civil proceedings with the process available under the United Methodist Discipline.
I am a second career pastor. I practiced law for 20 years before entering the ministry. Most of that practice focused on contested civil proceedings in State or Federal courts. I entered the ministry in 1998 and finished my last case in December of 1999. During my years as a United Methodist pastor I have been involved in three contested cases under the Discipline, none of which involved the provisions of the Discipline relating to sexual orientation. Two cases involved allegations of consensual sexual affairs between a pastor and parishioner and one was a case of alleged sexual harassment. In one case I was counsel for the Church and in the other two counsel for Respondent. Two of these cases concluded with a Jury trial.
The Civil Adversarial Process
The Civil judicial system operates under a system often referred to as the Adversarial Process. Each side is represented by an advocate charged with the responsibility of doing everything permitted under the law to advance the case of their client. The concept is that, when these two sides meet, the truth will prevail. Our Criminal Justice system operates in much the same way.
In reality, as any attorney will tell you, the only thing of which you are assured when a case goes to trial is that there will be a result. Hopefully, that result will comport with truth and justice, but that is not assured. One need only reflect upon the many innocent people sent to prison for decades or sentenced to death, only to be exonerated later to know that the system is far from perfect. That is the reason so many cases, civil and criminal, settle before trial. Nevertheless, there needs to be a system to handle those cases that do not settle and the adversarial process is the best system we have developed.
To ensure that the parties in a civil action are given the fullest opportunity possible to develop the facts of their cases, the civil judicial system has a complex set of rules and safeguards for discovering facts. The parties can be compelled to produce documents relevant to the case, to answer written questions under oath regarding the case, and be required to submit to pre-trial depositions in front of a Court Reporter. In these depositions, the allegations and the defenses of the parties can be explored in detail and inconsistencies identified. It is common that facts come out in depositions that disprove either allegations or defenses. Civil litigants also have the power to compel the presence of non-party witnesses for depositions and at trials. This power is often essential to obtain the testimony of someone who does not wish to become involved in the case but who will tell the truth if put under oath. By the time a civil case comes to trial, there is often little dispute about most of the facts in a case. The trial is meant to resolve those issues still in dispute but with the help of all the other information that has been developed. The discovery process often provides evidence crucial to issues of credibility. When deciding whom to believe, the jury often has proven instances in which one party or the other has been untruthful or where other facts call into question the assertions of a party.
And still, after all of this, there is no guarantee that ‘justice’ will prevail. The only thing guaranteed is a result.
The United Methodist Judicial Process
In form, the United Methodist Judicial Process is set up to partially mirror the civil adversarial process. There can be some, very limited, discovery of documents and it is sometimes possible to obtain testimony outside of Court. In reality, the system is wholly inadequate to allow the development of a case for trial and is heavily biased in favor of the Conference. These shortcomings are particularly apparent when the core of the case is a swearing contest between accuser and pastor. As a practical matter, I contend that the pastor is given only the appearance of a fair trial. In reality, the pastor is at an extreme disadvantage when it comes to defending the case.
If a case cannot be resolved in the Supervisory Response period, the Bishop appoints a Counsel for the Church who prepares a complaint against the pastor based upon the original complaint. Counsel for the Church must be a clergyperson in full connection. Counsel for the Church need not be a trained lawyer. Counsel for the Church may retain the services of a lawyer to help in preparing the complaint and preparing and trying the case. That attorney does not have the right to argue the case or speak at the trial. The attorney is limited to assisting Counsel for the Church. Of course, any such attorney to assist Counsel for the Church is paid for by the Conference. The Conference also has the funds, if it desires, to hire investigators.
Counsel for Respondent must also be a clergyperson in full connection. Respondent also has the right to hire an attorney to assist Counsel for Respondent. However, the cost of such an attorney must be borne by Respondent.1 The same is true for any investigator. Attorneys are likely to charge several hundred dollars per hour for their time. Few United Methodist pastors have the resources to pay for such assistance. As a practical matter, the Conference is able to outspend the accused pastor by orders of magnitude when it comes to trial preparation.
The Conference is, under Judicial Council case law and the Discipline, required to turn over some documents in its possession that relate to the complaint. If they do not, there is little the pastor can do about it and the pastor may not even know about the existence of exculpatory evidence in the possession of the Conference. Moreover, there is no mechanism to compel the Complainant, or anyone else, to turn over anything or to answer any question. There might well be documents in the possession of the Complainant that could conclusively disprove the allegations but there is no way to discover their existence or to compel their production for examination.
Likewise, there is no mechanism for pretrial interviews or depositions of the parties. A Complainant might have made detailed statements to others regarding the events underlying the complaint. The complainant cannot be cross-examined by Respondent about any of those statements until the trial of the case. At that point in time there is, of course, no way to check up on any answer that the Complainant wishes to give.
Each party may, of course, present witnesses. But there is not, and as a practical matter cannot be, any mechanism for compelling the attendance of witnesses. Every clergy and lay member of the United Methodist Church is obligated, under pain of being found in violation of the Order and Discipline of the United Methodist Church, to appear and testify at any trial if they are called. One can imagine the likelihood of that penalty persuading any lay person to come forward who does not wish to testify. There might be a parishioner with evidence that would exonerate the pastor. Unless that parishioner voluntarily agrees to come forward, possibly placing them at odds with Complainant and Complainant’s family and friends, the jury will not receive the evidence. Additionally that person, like a witness in a civil trial, will likely lose time from work. If they are unwilling, or unable, to take the time from work their testimony will never be heard.
In civil cases, if a witness is not able to attend the trial either party may preserve their testimony with an out-of-court deposition and possibly even a video deposition. That deposition can then be presented or read at trial as if the person was present. In theory, such a deposition can also be taken in a Church proceeding, but only with the permission of the presiding Bishop. If the presiding Bishop refuses to allow pretrial depositions there is no appeal avenue for the requesting party. Moreover, the Discipline places the costs for taking such testimony on the requesting party. Such costs could run from several hundred to over a thousand dollars for each deposition. Few United Methodist clergy have the resources to fund such expenditures.
A Hypothetical Case
I’m mindful that the foregoing comparison of civil procedure in the Civil Courts versus the United Methodist Church Court can be a bit confusing. To help the reader understand how these different factors interact I’ve constructed a hypothetical case that might arise most anywhere.
David is a United Methodist Elder with ten years’ experience. He is married with one child. He is newly appointed to a Charge paying the Conference minimum and moves his family into the parsonage. David’s wife works at a nearby office park and actually earns more than David.
One of the Churches on the charge provides a church office. There is also an office assistant. She is a recent high school graduate, over 18, who is the daughter of one church family and the niece of another. She comes into the office three days a week from noon to five o’clock. Let’s call her Sharon. It is not unusual for Sharon and David to be in the office alone for hours at a time.
David receives a call from his DS notifying him that Sharon has filed a written complaint alleging that he has engaged in a sexual relationship with Sharon. Sharon told the DS the affair started slowly with flirtation in the office and advanced to the point that they would often kiss, and occasionally have sex, during office hours. Sharon tells the DS that she started feeling guilty about the affair and wished to come clean. David is stunned. Although he admits to flirting with the young woman, he has been faithful to his marriage vows and his vows as an Elder. He tells the DS there has been no kissing or any physical contact of any kind. The DS tells David that he has been suspended from the ministry, with pay, until this is resolved. [In actuality, the suspension process is more complex but it often works out as described.] David begins the process known as the Supervisory Response. He brings along an old classmate and close friend to help him in this process as he meets with the Bishop. The Bishop seems skeptical about David’s denial, telling him that he finds the Complainant to be very credible.
David is given a couple of specific dates that encounters allegedly took place but no other details. David cannot state with any certainty if he was in the office on those days. Sharon claims that David often spoke to her on a cell phone but that it was not his regular cell phone. She does not produce any phone records. They are unsuccessful in reaching a just resolution. Sharon thinks that David should be removed from the ministry. The Bishop refers the case to a Counsel for the Church. Counsel for the Church is a full Elder who used to practice law before she entered the ministry. The Conference also hires a member of a local law firm to assist Counsel for the Church. In addition to other resources, that law firm has investigators on its staff.
David’s friend who has been helping him is not an attorney. David is unable to find another pastor in Full Connection who has legal training and who is willing to take his case. One such pastor tells David that he has been down this road before and advises David to settle, if
possible, and to begin work on his resume because it’s likely that he will be convicted and his credentials as a United Methodist pastor revoked. David makes some inquiries within the local legal community. Three firms do not wish to be involved because of business and personal relationships with Sharon’s family. In any event, the lowest hourly fee quoted to him is $175 and that firm wanted a $10,000 advance against anticipated fees. David does not have that kind of money. David’s friend reluctantly agrees to be his counsel although he hasn’t a clue about what will be required to prepare a case for trial and no idea how a trial is conducted.
A Judicial complaint is prepared and filed. The Judicial Complaint does not contain any more information than the original complaint. David’s friend files an answer to the Complaint that simply denies that any relationship existed.
The parties appear before the Committee on Investigation. For the first-time David is able to hear from Sharon herself what she claims happened. Under the provisions of the Discipline neither he, nor his counsel, are allowed to cross-examine Sharon. They may submit questions to the Committee for the Committee Chairperson to ask if the Chairperson agrees that the question should be asked. David is stunned Sharon is willing to make up these allegations. However, Sharon adds two new dates that sexual encounters supposedly took place. She says that she worked these out by looking through her calendar. One of those dates happened to be David’s anniversary and David had taken the afternoon off to be at home with his wife. On the other, David remembers he was with a parishioner in the Hospital. However, David is unable to provide proof of those facts to the COI because, until that day, he was not aware that these days were supposed to be days that encounters took place. The COI decides that, since the case is essentially a swearing contest between Sharon and David, they will have to return a Bill of Specifications and Charges for a trial.
David contacts his parishioner witness. She remembers David’s visit to the Hospital but is uncertain of the date. She also seems reluctant to talk with David about the matter and is not sure she would feel comfortable testifying in a Courtroom setting. She has lived in the town her whole life and watched Sharon grow up. She is close friends with Sharon’s family. David asks if it is possible to get the phone records Sharon claims shows his calls to her. He believes that it is possible that the times and places of any calls shown on the phone records
would help show that he did not make those calls. Counsel for the Church does not have the records and declines to ask Sharon to produce them.
Three days before the trial David’s parishioner witness won’t return his calls. She stopped communicating with David and his counsel after she had been identified to Counsel for the Church and Sharon as a witness. David thinks that Complainant, or Complainant’s family, may have contacted her and asked why she is testifying for David and against Complainant.
David’s counsel sees a provision in the Discipline for taking the testimony of a witness who is unavailable for trial. David’s counsel asks for permission to try and take such a deposition thinking that the woman might agree to a deposition that wouldn’t involve her appearing in a Court Room. The presiding Bishop thinks it is too late to take such testimony and denies the request. Besides, he points out, if she won’t communicate with David how would the deposition be scheduled? David suggests that the Conference and the Bishop tell the woman that her membership in the United Methodist Church could be revoked if she does not agree to testify. The presiding Bishop and the Conference decide that they won’t confront the woman about her apparent reluctance to testify.
The trial date arrives. David does not know who is more scared; himself or his counsel who seems totally lost. The case for Sharon is well organized and crisply presented. Counsel for the Church is assisted during trial by an attorney. David’s counsel does the best that he can do but really has no idea what he is doing. The Presiding Bishop helps as much as possible, but David’s counsel has no idea how to undertake a direct examination of a witness or a cross-examination. There are numerous objections to his questions by Counsel for the Church.
David’s wife does testify that she was home alone with David on one of the alleged days. Counsel for the church will later point out in closing argument that it is not unusual for a wife to try and cover for the indiscretions of a husband. She suggests that David’s wife is merely ‘standing by her man.’ She also points out that the parishioner referred to by David as a potential alibi witness has not been produced.
Counsel for the Church and Respondent offer closing arguments. Again, David’s friend does as well as he can but has never done something like this before. The case goes to the jury. This scenario is not far-fetched. It is very close in factual background to one I tried. What happens? The jury will return a verdict. What it will be, or how it is reached, is something that attorneys in civil and criminal trials often never know. There will be a result.
David’s future as a United Methodist Pastor is on the line.
In summary, while the United Methodist Judicial process appears to mirror the Civil Judicial system, the Conference has a substantial advantage. The Conference has the money to hire assistant counsel and investigators has the money to pay for preserving out-of-court
testimony and effectively serves as a buffer between Respondent and the Complainant allowing Complainant to pick and choose the evidence that will be produced for Respondent.
Respondent has no right to ask any question of Complainant until the day of trial and, by then, no practical means of investigating anything that Complainant might say. Respondent has no right to require the production of any documents even if Respondent knows that such documents exist and can state where they can be found. If Complainant wishes to withhold that evidence and the Conference cannot or will not obtain the documents from Complainant, Respondent is without recourse.
If Respondent can find a trained attorney who is also a member in full connection, then he might at least be competently represented at trial. If he cannot, as in David’s case, he must make do with whoever is willing to represent him. If he can get witnesses to show up for trial his case might go better. If he cannot there is nothing he can do. If his witnesses do not show up he can expect arguments to the effect that their absence indicates that their testimony wouldn’t have helped him.
This is the United Methodist version of a fair trial. There is no downside for Counsel for the Church. Counsel for the Church has no stake in ‘winning’ or ‘losing.’ Counsel for the Church’s job is to present the Conference’s case as competently as possible. They are not obligated to do anything that makes preparing a defense easier for the Respondent. For Respondent their future, and the future of their family is on the line. If this process strikes you as being unfair to Respondent there is a reason. The process does allow for the possibility for a
fair trial, but reality makes receiving a fair trial very uncertain.
Some Proposals for Changes in the Process
There is not a lot that can be done to level the playing field for Respondent in a contested case under the Discipline. However, there are some things that could be done.
1. Respondent’s costs for preparing the case, including the costs of hiring an attorney and investigator, should be borne by the Conference. To prevent abuse, the Discipline could provide for the appointment of a Referee to review these expenditures. This would ensure that Respondent has the opportunity to have his case fully and competently prepared but ensure that the costs of the case are not run up unreasonably.
A copy of this article was submitted to my Conference’s Treasurer for pre-publication review. He objected strongly to the proposal to pay the Respondent’s attorney’s fees. I understand his concern. Nevertheless, as I’ve tried to point out in the article, the current system leaves the pastor with a crippling disadvantage. This is especially true if, as shown in the hypothetical case, the pastor’s counsel is not a trained attorney. The only way to ensure fairness to the pastor is to pay his attorney’s fees.
2. The Conference should be obligated to turn over to Respondent any exculpatory evidence in its possession, including the identity of witnesses with knowledge of the case.
3. As a condition for pursuing the case, Complainant and Respondent should be required to make themselves available for pre-trial interviews and depositions to allow for the discovery of relevant facts and to facilitate investigation of the case. As it stands now, the Complainant can provide any information he or she desires and withhold any information he or she desires. If Respondent can at least interview Complainant before trial then it’s likely that Respondent will discover the existence and location of documents and witnesses that would otherwise remain known only to Complainant.
I suspect that the current practice is designed to prevent the Complainant from being harassed. It is not uncommon in civil sexual battery cases to have a situation where the complainant’s sexual history is explored. However, as a practical matter, the sexual history of Complainant can have no effect on a case involving a pastor and questions about that history can be prohibited (A history of claims about sexual abuse might be relevant, however). In this case, it is assumed that the relationship, if it existed, was consensual. Consent is not a defense to violating a pastor’s marriage vows or the Discipline. A non-consensual violation would probably be handled by the police.
By not allowing the pastor to interview Complainant about the allegations the Discipline is crippling his ability to prepare a defense. In the hypothetical, as in two cases in which I was involved, the pastor had no idea of where or when the alleged violations had taken place until the first appearance before the COI. By then it’s likely at least several months have gone by and evidence might be lost and witnesses’ memories diminished.
4. The parties should be required to produce any documents in their possession that pertain to the case. The civil standard documents that are directly relevant or that could reasonably lead to the discovery of relevant evidence. At present, there is no
mechanism for compelling the production of documents except the Conference must produce documents in its possession that support the complaint or were reviewed in making decisions. It is not required to produce exculpatory documents.
In the hypothetical, the Complainant’s cell phone records would at least provide a basis for determining if she was receiving repeated calls from the same unknown number. It’s possible that number might be proven to be someone else’s, placing in question all her allegations. Additionally, cell records disclose the cell tower where the call originates. That information could prove to be useful. But, with no means to compel production of the records the pastor, and the jury, is left in the dark.
5. The parties should be permitted, as a matter of right, to take the pre-trial testimony of witnesses so that in the event a witness cannot, or chooses not to, testify at trial the jury will still hear the evidence. These costs should be born by the Conference.
6. Every person who is a clergy member, or employee, of the Conference, including the Bishop and his staff, should be required to make themselves available for interview by the parties. These would not have to be, but could be, depositions of such individuals. This would allow the development of evidence regarding the existence of documents as well as evidence concerning procedures followed that might have prejudiced Respondent’s case.
7. Following time for investigation and discovery, and before trial, the parties should be required to participate in an attempt to mediate a settlement of the dispute. Mediation has long been recognized as a viable means for reaching a settlement in even very difficult cases. In some civil courts mediation is required to be attempted before a trial date will be set. A facilitated mediation is much less expensive than a trial and is more likely to result in a resolution that has the potential to bring healing.
The changes I’m proposing would require action by the General Conference. I am not hopeful that such action will be forthcoming, especially in light of the current turmoil in the Church. But I believe that it is important for every clergy person to know that it is unlikely that they will receive a fair opportunity to defend themselves should they have the misfortune to be accused of conduct that constitutes a chargeable offense.
By Rev. Dennis J. Meaker, Elder, Tennessee Conference
This restriction on paying for Respondent’s attorney’s fees is spelled out in the 2016 Discipline, although it was already the practice in the Tennessee Conference in the cases in which I was involved. I have been informed that some Conferences had been paying Respondent’s fees resulting in this move to make the restriction specific. Perhaps some were unhappy that the Conferences were paying outside attorneys for opposing the provisions of the Discipline. Whatever the reason, this provision has solidified the disparity in representation between the Conference and the Respondent clergy person.