Memorandum Number 746
Review of Bishop's Response to Request for Decision of Law in the North Central New York Conference Concerning Grievance Procedures.
Statement of Facts
This matter came before the Council in reference to an allegation that certain questions of law were presented to Bishop Hae-Jong Kim during the regular business of a session of the North Central New York Conference.
This was alleged to have been done under the provisions of Par. 2613 of the Discipline, which states:
The Judicial Council shall pass upon and affirm, modify, or reverse the decisions of law made by bishops in Central, District, Annual, or Jurisdictional Conferences upon questions of law submitted to them in writing in the regular business of a session; and in order to facilitate such review, each bishop shall report annually in writing to the Judicial Council, on forms provided by the council, all the bishop's decisions of law. No such episcopal decision shall be authoritative, except in the case pending, until it has been passed upon by the Judicial Council, but thereafter it shall become the law of the Church to the extent that it is affirmed by the council. Normally the bishop shall rule before the close of the Annual Conference session during which the question was submitted, but in no case later than thirty (30) days after the close of the session. The Annual Conference secretary shall enter in the Annual Conference journal an exact statement of the question submitted and the ruling of the bishop.
And Par. 54 of the Constitution states:
A bishop presiding over an Annual, Central, or Jurisdictional Conference shall decide all questions of law coming before the bishop in the regular business of a session: provided that such questions be presented in writing and that the decisions be recorded in the journal of the conference.
Such an episcopal decision shall not be authoritative except for the pending case until it shall have been passed upon by the Judicial Council. All decisions of law made by each bishop shall be reported in writing annually, with a syllabus of the same, to the Judicial Council, which shall affirm, modify, or reverse them.
It is the position of Bishop Kim that the questions were not properly presented to him at the North Central New York Conference for the following reasons:
1. The questions were not presented to me during "the regular business of the a (sic) session" of the Conference (as required by paragraph 2613).
The document containing the questions was being generally circulated among attendees of the Annual Conference. It was at that time that the document was given to me as a matter of information during a recess of the Executive Session of Annual Conference.
At a later time, the Rev. Charles Hakes stated that the Rev. Robert Searle had asked him to present these questions on the Conference Floor for a ruling. I told Rev. Hakes that I thought this was appropriate. Rev. Searle was in attendance at the Conference, but never spoke to me regarding the questions.
Neither Rev. Hakes nor Rev. Searle presented the questions during the regular session of Conference.
Although, the questions were allegedly presented to me while I was sitting in my presiding chair during a break in the Conference Session, I have no recollection of this. However, even if so, I contend that they were not properly presented during the regular business of the session. My interpretation is that the Conference must be in session so that the Secretary can officially record the presentation of each question of law. This identifies the presenter of the question and protects both the presenter and the bishop by minimizing the possibility of misunderstanding.
2. The next significant issue is that the questions were not signed. In the body of the document that presenter refers to him/herself as 'I.' (i.e. Bishop Kim I bring these questions ... ) A reasonable response to the questions requires that the one who drafted the questions be identified.
We have reviewed the document addressed to Bishop Kim entitled "Questions of Law." It is unsigned. In addition to that, we have reviewed a letter dated August 2, 1994 by the Rev. Charles D. Hakes in which he stated, "They were handed to me at the N.C.N.Y. Annual Conference. I was asked to present them. I asked a lot of questions before agreeing to do this since they were not my questions and no name was on them." He does not state in the letter who handed them to him, but assumed that was done on behalf of the Rev. Robert Searle. He does not say when he presented them.
An examination of the records indicates several problems:
First, the questions were unsigned. There is nobody for the bishop to respond to even if the questions were properly presented.
Second, as pointed out by the conference secretary, the questions are abstract, and there is nothing in their content to relate them to the business of the Annual Conference. They are, therefore, hypothetical.
In Judicial Council Decision No. 33, we ruled in reference to a fundamental principle:
Moot and hypoethical questions shall not be decided. We are of the opinion that this same principle should apply to requests for rulings by the Bishops in an Annual or a District Conference and that any such request should be based upon some action taken or proposed to be taken by such Conference, wherein under the specific facts in each case some doubt may have arisen as to the legality of the action taken or proposed. It is not the duty of the presiding Bishop to rule upon any hypothetical question which may be propounded, nor to answer requests for information which involve no legal matter.
This decision has never been reversed.
Bishop Kim is correct in not answering the questions.
It should be pointed out that, while Bishop Kim's outline of the method used is certainly the best method, it is not exclusive. It is clear that a member is not required to seek and get recognition from the chair to present a question. A presiding bishop may not avoid a question by failing to recognize a member who is seeking to present a question.