Appeals

The intent is to give a brief primer not to cover all aspects related to appeals [note: several changes to the appeal process not covered below were made by General Council 40 pending release of The Manual 2010].

The first thing is to pray about the question of appeal, and if you must then do it properly.

Who may appeal:
The Manual is one of the means by which the United Church does its work and safeguards its members. It protects the minority, and provides the means by which any member may express convictions and seek justice, from the congregation through to the General Council. The Manual likewise assists the majority in the making of necessary decisions and the carrying out of policies and plans. [The Manual p. 3]
505 Powers. The General Council shall have full power: (Basis 8.6)
(b) to receive and dispose of petitions, memorials, etc. (Basis 8.6.4)
i. Every member of the United Church has direct access to the Session or Church Board or Church Council of the Pastoral Charge or Congregation to which such member belongs, except in matters pertaining to the pastoral relationship, where ten (10) members may require a meeting of the Pastoral Charge or Congregation, or bring a petition to the Official Board or Church Board or Church Council. A Petition from a member of a Pastoral Charge or Congregation must first be presented to the Session or Church Board or Church Council, and any member or members of the Pastoral Charge or Congregation or its representatives may be heard in support of their Petition in any Court and have the right of appeal from the decision of one Court to the next higher Court.
ii. A Petition to a higher Court must first be presented to the Session or Church Board or Church Council or next lower Court, or on matters pertaining to the pastoral relationship to the Official Board or Church Board or Church Council, with a request for transmission.
iii. It is competent for any member of a higher Court to approach that Court directly by Petition.
iv. A Session or Official Board or Church Board or Church Council or a Presbytery must transmit a Petition with or without concurrence. A Conference must transmit a Petition with which it gives concurrence and may or may not transmit a Petition with which it does not concur. If transmission is refused, there remains the right of appeal. The Court should see that each Petition is in proper form for transmission to a higher Court. It is competent for a Session or Official Board or Church Board or Church Council, a Presbytery, or a Conference to transmit a Petition with recommendations.
v. The foregoing procedure applies also to a Petition from any number of members from a Pastoral Charge, a Congregation, its Official Board or Church Board or Church Council, or from a lower Court;

An appeal is from:
a. a decision
b. a ruling of the General Secretary of the General Council
and may be made only by a person or a Court directly affected by the decision or ruling.

076 Appeals.
(a) An Appeal may be made only against a Decision or against a ruling of the General Secretary of the General Council. An Appeal may be made only by a person or a Court directly affected by the Decision or ruling. In the case of a Decision made by a Formal Hearing Committee, an Appeal may be made only by a party to the Formal Hearing.

The definitions were changed to read:
001 In these By-Laws: "Decision" means any disposition of a matter by a Court, or by a body authorized to act on behalf of the Court;
as General Council recognized "whereas refusal of a court to make decision is not appealable" as an injustice in passing "appeal deficiencies [rop 2003, pp.55, 186] making refusal of a court to make decision appealable.

Certain decisions are not subject to appeal:
077 Decisions Not Subject to Appeal.
Decisions that are not subject to Appeal are as follows:
(a) elections;
(b) Decisions about an individual in the candidacy process;
(c) calls and settlements;
(d) appointments;
(e) implementation of a Decision pending an Appeal;
(f) determination of whether an Appeal meets the requirements for an Appeal hearing;
(g) acceptance or rejection of a medical certificate;
(h) in cases of sexual abuse (sexual harassment, pastoral sexual misconduct, or sexual assault), Decisions whether to hold an Informal Hearing;
(i) a Decision by a Pastoral Charge to request a change in the pastoral relationship;
(j) the disposition by a Presbytery of a request from a member of the Order of Ministry for a change in the pastoral relationship;
(k) a Decision by a Court whether to hold a Formal Hearing;
(l) a Decision by a Formal Hearing Committee whether to hold a Formal Hearing;
(m) a Decision by a Court to make a complaint; or
(n) a Decision by a Presbytery to initiate a review of the situation under subsection 363(c).
Although a Decision about an individual in the candidacy process may not be appealed, the individual may request that the appropriateness of the procedures used to arrive at the Decision be addressed through the General Council's approved policies and procedures for conflict resolution, other than a Formal Hearing. The individual may appeal the appropriateness of the procedures used to arrive at the Decision, but only if the matter is not resolved through the policies and procedures for conflict resolution.

A ruling other than from the General Secretary of the General Council is not subject to appeal:
APPENDIX III
THE RULES OF DEBATE AND ORDER
2. Questions of Privilege and Order
(b) Any member of the Court may appeal from a ruling of the Chair, but only at the time when the ruling is made. But where a ruling is a precedent the general question of its correctness may be brought up later when there is no business pending, but cannot then affect the business transacted under the ruling.

Appeals can be made:
076 Appeals.
(b) An Appeal may be made as follows:
i. against a Decision of a Formal Hearing, to the Judicial Committee of the General Council;
ii. against any other Decision, to the next higher Court; and
iii. against any ruling of the General Secretary of the General Council on questions of jurisdiction or interpretation, to the Judicial Committee of the General Council.

The parties to an appeal are:
076 Appeals.
(c) Parties. The parties to the Appeal are: the Appellant; the Court the Decision of which is being appealed; in the case of an Appeal against a ruling, the General Secretary of the General Council; and in the case of an Appeal of a Decision of a Formal Hearing Committee, the other parties to the Formal Hearing.

Notice of appeal is:
003 Notice.
Any notice or other communication that any person or Court may desire or be required to give to any other person or Court shall be in writing and may be given either by personal service on such person or an officer of such Court, or by assured delivery (registered mail) or facsimile transmission addressed to the last address for such person or Court as such address appears in the records of the appropriate Court. Unless otherwise specified in The Manual, such notice shall be deemed to have been received:
(a) if given by personal service, on the day upon which it was personally served;
(b) if given by assured delivery (registered mail), on the tenth (10th) day after the day upon which it was so sent; or
(c) if given by facsimile transmission, on the day upon which it was so sent, unless that day is a non-business day (a Saturday, Sunday, or statutory holiday) at the place of receipt, or its receipt occurs after 4:30 p.m. at the place of receipt, in which case such notice shall be deemed to have been received on the next following business day.
When the time period for giving or receiving notice is seven (7) days or less, then in calculating such time period a day shall not include Saturdays, Sundays, statutory holidays, and the period between December 25th and January 1st.

076 Appeals.
(d) Notice of Appeal. Notice of Appeal must be given in accordance with section 003 to the Secretary of the Court to which it is directed within thirty (30) days after the Decision of the lower Court has been communicated. A Decision shall be deemed to have been communicated to a person or Court eligible to appeal, on the earlier of:
i. the date on which notice is deemed to have been received in accordance with section 003; and
ii. fifteen (15) days after the minutes of the Court making the Decision have been distributed in the normal manner.
Such Secretary shall, within five (5) days after receipt of a notice of Appeal, give, in accordance with section 003, a copy of the notice of Appeal to all other parties to the Appeal.

note that the written minutes are taken as what happened, but:
547 Procedural Matters.
(e) Notwithstanding section 003.1, the Judicial Committee and all panels thereof shall have power to take such evidence as it may deem necessary, either in person orally or by commission report, statutory declaration, or otherwise which shall be stipulated in each case.

phone or e-mail are not considered legal notice, and the thirty days starts the earlier of i. or ii. above not the date of the decision or ruling.

The grounds for appeal are:
076 Appeals.
(f) Grounds for Appeal. Grounds for Appeal are:
i. the failure of the Court that made the Decision against which the Appeal is being made to consider the matter as completely as practicable;
ii. an injustice in the disposition of the matter;
iii. that the Decision was against the evidence and the weight of the evidence;
iv. that the Decision was wrong in law; or
v. the availability of newly discovered evidence that might have an important bearing on the case.

The appellant's statement:
076 Appeals.
(g) Appellant's Statement. Within thirty (30) days after the notice of Appeal as provided in subsection (d) is deemed to have been received, the Appellant must give, in accordance with section 003, to the Secretary of the Court that is hearing the Appeal, a statement outlining the arguments to be made in support of the Appeal. If this requirement is not met, the Appeal will be deemed to have been abandoned.

is the complete statement of the appeal. The Manual 1995 wrongly referenced the appellant's statement as "a written statement outlining the gist of the argument", while the appeal committee could refuse to hear the appeal for failure to substantiate one or more of the grounds for appeal above.

Whether to hear the appeal:
(m) Whether to Hear. Before any Appeal may be heard,
i. the Committee; or
ii. in the case of an Appeal to the Judicial Committee of the General Council, its Executive,
shall review the written statements referred to in subsections (g) and (i) above and shall make a Decision either to refuse to hear the Appeal because it does not meet the grounds for an Appeal or to proceed to hear the Appeal. Notice of such Decision shall be given in writing to the parties concerned, and in the case of a Decision to refuse to hear the Appeal shall include the reasons for such Decision. Such Decision is not subject to Appeal.

Finally, read The Manual...... especially the definitions, not what you think it says but what it says, and check the meaning of words in a dictionary. The appellant does not get a second chance unless there is "newly discovered evidence" - be legalistic, the appeal committee will be legalistic.