WHO WILL TRY THE CASE?
“Bishops normally administer church discipline unless evidence indicates that a man who holds the Melchizedek Priesthood is likely to be excommunicated. In that case, the stake president convenes a stake disciplinary council.” (6.2.1)
- There are NO gender-based scriptural determinations for which court is to be used. It is ONLY the nature and difficulty of the offense.
- There is a recognized division between the greater (Melchizedek) and lesser (Aaronic) Priesthoods (D&C 107:6). The Mechizedek is to administer in greater, spiritual things (D&C 107:8, 12), while the Aaronic, headed by the bishopric, is to administer in the lesser, temporal things and the written law (D&C 107:14, 20, 68). Therefore, the only determining factor as to which council should initially try a case is whether an Aaronic level written law is clearly broken (stealing, lying, etc.). If the matter is more difficult or serious, requiring more deliberation, more understanding, more of the Spirit to properly resolve, it is to be handled by the Melchizedek councils (adultery, teaching questionable doctrine, offenses questionably condemned by scripture, etc.)
- Prior to 1835, elders’ councils represented the initial Melchizedek arm of handling church discipline, from which appeals could go to the high council. Volume 1 Number 9 of The Messenger and Advocate contains an article, attributed secondhand to Joseph Smith (only signed "P"), titled "To the Saints Scattered Abroad." This article put an end to the use of elders’ councils in that place and time, instead directing those disciplinary matters to be handled by the high council.
- On one hand, this change was never canonized, while the canonized instruction to utilize elders in discipline remains in our scriptures (D&C 42:80-81, 89).
- On the other hand, the church under Joseph’s Presidency treated the change as legitimate.
- The article also contains the qualifier "in her unorganized condition," concerning the elders' councils no longer being allowed to "meddle with [the church's] spiritual affairs, to regulate her concerns, or hold councils for the expulsion of members." This leaves a door open for a shift when the church is in an "organized condition."
- I have not resolved in my mind whether this change should be effective at present or not.
- Were the Aaronic expansions partially responsible for the shift in what determines who will judge a matter? (see Aaronic Expansions) They allow for bishops who do not hold the high priesthood, if they are Aaron’s descendants (D&C 107:69), which was not allowed prior to the expansions. This risked a holder of the higher priesthood being judged of someone with only the lower priesthood, if the offense was within the scope of the bishop’s office. With our fidelity to rank and authority over principle, such a thing certainly could not stand. This would provide seeming justification for switching the determining factor from being the type of transgression to the status of the transgressor. I don’t know whether this was the case.
- If the current LDS understanding of excommunication is correct (see The Evolving Office of Bishop), then bishops lack entirely the scriptural authority to hold any disciplinary council in the church, as excommunication would be a "spiritual matter" and is the only church punishment prescribed in scripture. (Mosiah 26:36; D&C 42:20-28).
THE DISCIPLINARY COUNCILS (6.10.4)
NOTE: Both bishops’ councils and stake disciplinary councils are to function according to the same procedures, with only a few differences. When a difference arises, the council it applies to will be noted.
Confidentiality creates an umbrella over everything (6.5), limiting information as much as possible on a "need-to-know" basis.
- The congregation is meant to be involved in an excommunication by an informed vote of agreement. (D&C 42:81)
- Public and open rebuke are scripturally required for public and open offense (D&C 42:90-91).
Bishops, stake presidents, mission presidents, district presidents, and branch presidents are all called to be “judges in Israel” (6.2).
- The provided scriptural source of D&C 107:72-74 only refers to bishops (specifically high priests who are not direct descendants of Aaron) as “judges in Israel.”
- There are no scriptural provisions for disciplinary authority being in the hands of mission presidents, district presidents, or branch presidents.
- Stake presidents get their authority in disciplinary matters, as presidents of their local high councils, from D&C 102:1-2. D&C 107:72-74 simply doesn’t apply.
All written mandates for procedure and evidence can be dismissed on a whim, as the presiding officer “rules on the procedures that are followed and the evidence that is presented.”
- All disciplinary procedure is supposed to adhere to scripture (D&C 20:80).
A clerk records the proceedings (6.10.4, 6.10.11).
- In practice, some presiding officials have taken the liberty of telling clerks to withhold certain items from the record, bolstering their unilateral power over the entire process.
COUNCIL PROCEDURE
1. The presiding officer explains the council’s purpose to the accused, and “asks for consent to use [any] confession as evidence in the council.” The confession cannot be used without the member’s consent, but the presiding officer “explains that refusal reflects a lack of contrition and repentance.”
- Requiring member consent to use their confession against them is nullified, as “the presiding officer can still impose informal discipline on the basis of the confession, even if the member does not give consent for the confession to be used in the council.”
2. Before the accused is allowed into the room, “the presiding officer tells his counselors (and the high council if it is a stake disciplinary council) whom it is for and what the reported misconduct is.” As he “rules on the procedures that are followed and the evidence that is presented,” he also “explains the procedures of the council to these leaders.”
- The leaders get to know which procedures are going to be used in the process, but the accused is not granted the privilege of knowing how they are to be tried. Couple this with our lack of rights to know secret interpretations of laws we are expected to obey (e.g. "Apostasy"), and the membership is not allowed to know all the laws they are to keep, nor the procedures by which offenses will be tried. These are hallmarks of tyranny.
- The best that can come out of this is that the balance of the council members theoretically don’t know who the accused is, or the charges against them before this time. This provides hope of greater impartiality from them as they hear the case, though their power to affect the actual council proceedings is now arguably non-existent (examined later).
3. Then the accused may enter.
4. Open with a prayer (6.10.4-1).
5. The charges and plea are stated (6.10.4-2). In case of guilty plea, examination of evidence is skipped (6.10.4-3).
6. Examination of evidence, as provided by the presiding officer (6.10.4-3).
- A disciplinary authority, should they simply wish, can withhold from any victims of the accused the opportunity to make statements or present evidence, as the bishops and stake presidents “determine whether it would be helpful and appropriate for the victim to be given an opportunity to provide a written or oral statement about the known or alleged misconduct.” (6.10.3, emphasis mine).
- If any council members were involved in the investigation or collection of the evidence, they nullify their scripturally required impartiality (D&C 102:20). But if they lip-service assurances of impartiality, they allow themselves to continue in their judging capacity.
--CONCERNING WITNESSES--
Witnesses are currently only required for charges of adultery (6.10.12), and therefore there might be no witnesses to testify in any other case. If they are present it is considered helpful, though it is not required in practice that “witnesses” provide firsthand knowledge. Rumors and gossip have proven acceptable.
- Scripturally, it seems there should be at least two witnesses for any accusation (Mosiah 26:5-9; Moroni 6:7; 1 Timothy 5:19).
- Witnesses are also intended to be from the local congregation, or “church.”
- If the “church” is expected to lift up their hands against the condemned (D&C 42:81), it is both impractical and unreasonable to understand this as including those from all distant congregations throughout the larger “Church,” who know nothing of the accused or the allegations.
- It is a reasonable check against unbridled authoritarianism, such as is currently practiced through the Strengthening the Members Committee (STMC) and similar programs in which upper leadership seeks to police the general membership from their authoritarian seats.
- The STMC is run from within the Quorum of the Twelve, in defiance of Joseph’s instructions that the Quorum only hold authority where no stake is organized (Kirkland Council Minute Book, May 2, 1835). These instructions became entirely disregarded via Correlation, though the church claims to still follow them, which is demonstrably false.
- Scripturally, witnesses and accusers are required to “testify,” and to be “just,” which would not allow for gossip, rumors and hearsay to be treated as evidence, or for witnesses to merely put leadership on the trail of the accused and then extract themselves from the disciplinary process.
"And to judge his people by the testimony of the just, and by the assistance of his counselors, according to the laws of the kingdom which are given by the prophets of God." -- D&C 58:18
"And also to be a judge in Israel, to do the business of the church, to sit in judgment upon transgressors upon testimony as it shall be laid before him according to the laws, by the assistance of his counselors, whom he has chosen or will choose among the elders of the church." -- D&C 107:72
7. “The member must be given an opportunity to question any witnesses who give evidence against him.” And then this requirement is immediately discarded (6.10.4-3).
- When a witness or party cannot (or doesn’t wish to) attend, they may entirely avoid questioning and cross-examination if they submit a written statement, which “may be considered as evidence” (6.10.12), should the President decide to do so.
- Who knows but the accusation all turns out to be a misunderstanding, which could be cleared up at this moment if the right of the accused to face and question their accusers were respected. Or even more, the entire Disciplinary Council might have been avoided if D&C 42:88 had been respected, and the accused had been afforded the privilege of a scripturally required conversation with those who would accuse them.
8. The accused can then present their case (6.10.4-4), but only according to whatever evidence and witnesses the presiding official decides to allow them to present, as he “rules on the procedures that are followed and the evidence that is presented.”
- Witnesses in behalf of the accused are not required to be members, scripturally or in CHI-1, but they are required by CHI-1 to be “approved” by the presiding officer (6.10.4-4). This is yet another opportunity for a judge's bias to affect the trial.
- Some who have stood as the accused have been prevented from discussing doctrine when laying out their case, though doctrinal differences were the basis for the Apostasy charges which brought the trial into being in the first place. Discussing doctrine in this setting has a well established precedent, which has even altered the course of official doctrine in the church.
- Bishop Bunker was tried for heresy for teaching that the Adam-God doctrine was false during Wilford Woodruff’s presidency, and faced excommunication. But the court couldn't reach a conclusion on what to do because he defended his beliefs so well from the scriptures. Wilford Woodruff came down and they had another convening of the church court, with President Woodruff presiding. Once again, they rendered no decision, finding his position unassailable. Bishop Bunker's doctrinal exposition on the topic has since become the doctrine of the church, although at the time it was dangerous heresy for him to preach it.
9. The accused and their defensive witnesses (if any were allowed) are questioned by the presidency (6.10.4-5, 6.10.4-6).
10. HIGH COUNCIL - The high council speaks on the evidence, according to drawn lots.
- The presiding officer also “may invite any member of the high council” to speak, negating D&C 102:13-14:
"Whenever this council convenes to act upon any case, the twelve councilors shall consider whether it is a difficult one or not; if it is not, two only of the councilors shall speak upon it, according to the form above written. But if it is thought to be difficult, four shall be appointed; and if more difficult, six; but in no case shall more than six be appointed to speak."
- The councilors “are not prosecutors or defenders,” yet D&C 102 clearly lays out that there are to be those defending the accused against insult and injustice, even speaking in their behalf (D&C 102:15, 17), but no definitive prosecution. The defenders are not trying to shield the guilty from justice, but to shield the potentially innocent from the insult and injustice that stems from assumptions of guilt.
- Rather than one half of the full council as required by D&C 102:15-17, now only “one-half of those appointed to speak are responsible to stand up in behalf of the accused, and prevent insult and injustice.”
- In practice, the councilors given this assignment frequently choose to make no comment at all, failing to uphold their sacred duty.
11. “The accused member and the accuser (if any) are then given another opportunity to speak.”
- “...the accuser (if any)…”
- How does a difficult or serious case, such as a Melchizedek Priesthood holder being tried for his membership in the Church (the required basis for calling this council), come before the council without an accuser having brought the offense to their knowledge? Only if the accusers sit upon the council itself, now judging the accused, in defiance of D&C 102:20.
- It is interesting that when a case was brought before Christ to be judged, but none would stand as accusers, Christ Himself chose not to judge the case (John 8:10-11).
12. HIGH COUNCIL - All but the council and presidency depart, and “the stake president may ask for any additional comments from the high council,” without the accused present to hear the comments or respond.
- The President is supposed to render a verdict once the accused has finished laying out their defense (D&C 102:19). There is no latitude for further, closed discussion to take place afterward. In scripture, all matters in a church disciplinary council are transparent and open to all involved, with nothing going on secretly behind closed doors.
- Ultimately, the high council’s input has no more influence than the president determines. This is a king receiving disposable input from advisors, not a council with a presiding officer.
13. The Presidency privately confers to deliberate, and “the presiding officer…makes the decision” and “invites his counselors to sustain it” (6.10.4-7).
- The scriptures make no mention of a presidency conference to take place after the accused finishes their final remarks. The president is to render his verdict when the accused finishes, in the presence of the council and the accused. If there is disagreement in the council, it is all on the table and transparent, as the entire process is meant to be.
- If the counselors disagree, the presiding officer “seeks to resolve the differences,” but ultimately “the presiding officer is the judge” (6.10.4-7).
- All things are to be done by common consent in the church (D&C 26:2; 28:13). Councils and congregations are to decide all matters by this principle, as a check and balance precisely against this sort of unilateral power, which allows a president to function more as a king with advisors than a president of a council.
- “If there is not enough evidence to justify formal Church discipline but it seems inappropriate to conclude the matter immediately by a decision of no action, the presiding officer adjourns the council temporarily to seek additional evidence.” (6.10.4-7).
- What a scary practice, for if a leader or accuser should decide they want someone punished (which happens), yet they fail to uncover sufficient evidence for conviction, they can return trial after trial to the same case as often as necessary to pursue the desired verdict.
14. HIGH COUNCIL - “After the stake president reaches a decision and his counselors sustain it, he announces it to the high council and asks them as a group to sustain it. The high council cannot veto the decision; it is binding even if it is not sustained unanimously.” (6.10.4-7).
- A majority vote of the council is scripturally required to ratify the decision, or in other words to make it effective (D&C 102:19, 22). This would in fact constitute veto power by majority vote. Council presidents are not meant to be acting the part of kings.
15. If any have a concern with the President’s decision, “the stake president makes every effort to resolve the concerns and achieve unanimity.”
- This is a wasted exercise in appearances. Only a majority is required by the scriptures (D&C 102:19, 22), and the lack of unanimity has no bearing on the outcome anyway. It is meaningless ritual to create an empty mirage of unity.
16. If the president cannot achieve the image of unanimity, he can still pull rank by virtue of his priesthood, as “the presiding officer is the judge,” and “the high council cannot veto the decision.”
- This is precisely the kind of behavior D&C 121:34-43 was targeting and intended to curtail.
17. HIGH COUNCIL - The President “may recall witnesses for further questioning” and “again review the evidence,” but “not in the presence of the [accused] member.” Behind their backs, with no one present to even represent them.
- The disturbing nature of this procedure should be self-evident.
18. The accused is brought in and informed of the verdict and pertinent information concerning punishments and appeals (6.10.4-8, 6.10.4-9).
POSSIBLE VERDICTS (6.10.4-8, 6.10.5)
- No action
- Unscriptural punishments, all of which come with restrictions, yet do not prevent a person from paying tithing.
- HIGH COUNCIL - Refer to bishop for potential “informal” punishment
- BISHOP - Informal probation
- Formal probation (while “formal,” it doesn’t go on your record) (6.9.1)
- Disfellowshipping (6.9.2)
- Excommunication (6.9.3)
--CONCERNING EXCOMMUNICATION--
- Stake level authority is required to excommunicate Melchizedek priesthood holders, all others can be excommunicated by bishops.
- If excommunication is only understood as temporal removal from the temporal body of the church for unlawful behavior—with no other strings necessarily attached—then it appears a bishop has authority to excommunicate. If all the spiritual ramifications we attach to excommunication are true (loss of baptism and temple blessings, etc.), then a bishop cannot have authority to excommunicate anyone, as that would be administering in spiritual things, an infraction against D&C 107. (see The Evolving Office of Bishop and Excommunication)
- Excommunication is used for:
- Serious transgressions, especially violations of temple covenants.
- This also includes infractions against the secret interpretations of “Apostasy,” and any number of loosely defined infractions which allow the judge great latitude of interpretation.
- The unrepentant disfellowshipped, for whom this “seems to offer the best hope for reformation.”
- The initial disfellowshipping is unscriptural, and this use of excommunication is only a manipulation tactic. It doesn’t matter if it is with the member’s “best interests” at heart, manipulation is ungodly.
- Those who are a serious threat to members, whose continued membership would facilitate their access to victims.
- Church leaders or prominent members who have publicly harmed the image of the church.
- Even if the harm to the image is done by simply shining a light on unflattering truth, or expressing an opinion that is claimed to be nothing other than an opinion.
- It is public and open transgression that requires public and open response (D&C 42:90-91). Fame or prominence do not make a person’s sins worse than if the common member committed them or God would be a respecter of persons, applying different measures for the same crimes.
- The vote of the congregation is no longer required for an excommunication, being replaced with, at best, announcements (6.10.9), in defiance of D&C 42:81.
- Announcements of church discipline are done on a “need to know” basis, containing it as much as possible, rather than involving the congregation in the decision as scriptures dictate. (6.10.9)
- Leadership all gets to know in PEC, whether they “need to know” or not. It’s a privilege of higher authority, being involved in pious but exclusive gossip that is intended to be a community concern.
- Excommunication for the following crimes get a more widespread range of announcement:
- Preaching false doctrine (as church leadership defines it)
- Predators
- “Flagrant” transgressors, those involved in such activities as plural marriage, cult behaviors, and ridicule of leaders (because apparently that is tantamount to cult behavior and polygamy).
- The disbanding of elders’ councils also impacts the process of excommunication for a member, removing a layer of trial and appeal to streamline the process of kicking someone out.
19. Closing prayer (6.10.4-10).
20. Prompt written notice is given of the decision (6.10.7).
21. Efforts are to be made to keep records tracking the excommunicated if possible (6.10.8). This doesn't require their permission.
