The Central Carolina Presbytery of the Presbyterian Church in America (PCA) has sent an overture (Overture 3) asking that the General Assembly amend BCO ¶¶ 33-1 and 34-1, which govern a higher court’s assumption of original jurisdiction over a matter otherwise within the original jurisdiction of a lower court. Overture 3 does have a point—there has been some confusion about BCO ¶¶ 33-1 and 34-1. Nevertheless, Overture 3 is very misguided and confused itself, misrepresenting PCA history and proposing changes that would distort the current polity of the PCA. I think it should be answered in the negative.
Background: The concept of “original jurisdiction”
“Original jurisdiction” refers to the power of a court to hear and decide a matter before any other court can review it. Under the BCO, sessions have original jurisdiction over ruling elders, deacons, and congregational members, presbyteries have original jurisdiction over sessions (which are ecclesiastical “persons” and therefore tried in cases of process like individuals so far as possible (see BCO 40-6)) and teaching elders, and the GA has original jurisdiction over presbyteries. However, under BCO ¶¶ 33-1 and 34-1, two sessions or two presbyteries can ask their presbytery or the GA, respectively, to assume original jurisdiction over (i.e., become the trial court for) a matter that is within the original jurisdiction of the court next below. (It is important to note that once a higher court assumes original jurisdiction over a matter, the lower court LOSES its jurisdiction over the matter. Original jurisdiction is an exclusive power—it can only be properly exercised by one court (i.e., only one court can be the trial court).)
The Overture’s proposal
Overture 3 would make two changes to current law. First, it would expand the ability of higher courts to assume original jurisdiction of cases by eliminating the requirement that the lower court “refuses to act” (i.e., refuses to indict (see discussion infra for more on this point)). Accordingly, higher courts could assume original jurisdiction in any whatsoever (so long as it is otherwise within the original jurisdiction of the court next below and the required number of requests are made), including cases where the lower court has indicted the individual, and even cases where the lower court has rendered a judgment, and the judgment has been appealed and affirmed by the SJC. The overture also seeks to increase the number of presbyteries required to vest the SJC with original jurisdiction in BCO ¶ 34-1 from two to five, but it does not seek a similar increase regarding the number of sessions required to vest a presbytery with original jurisdiction in BCO ¶ 33-1.
Here is the exact wording of the proposed revisions (I added underlining to indicate proposed new language in order to clarify that some punctuation is not in the original):
Chapter 34 – Special Rules Pertaining to Process Against a Minister
(Teaching Elder)
34-1. Process against a minister shall be entered before the Presbytery of
which he is a member. However, if the Presbytery refuses to act in
doctrinal cases or cases of public scandal and two, if five other
Presbyteries request the General Assembly to assume original jurisdiction
(to first receive and initially hear and determine), the General Assembly
shall do so. Assumption shall be postponed until the Presbytery has
concluded its consideration of the matter and rendered its judgment –
or at least until after it has been afforded reasonable time to do so.
Chapter 33 – Special Rules Pertaining to Process Before Sessions
33-1. Process against all church members, other than ministers of the
Gospel, shall be entered before the Session of the church to which such
members belong, except in cases of appeal. However, if the Session
refuses to act in doctrinal cases or instances of public scandal and, if two
other Sessions of churches in the same Presbytery request the Presbytery
of which the church is a member to initiate proper or appropriate action in
a case of process and thus assume jurisdiction and authority, the
Presbytery shall do so. Assumption shall be postponed until the
Session has concluded its consideration of the matter and rendered its
judgment – or at least until after it has been afforded reasonable time
to do so.
The overture argues that the current wording of the BCO is “confusing” because it only allows a higher court to assume original jurisdiction where a lower court “refuses to act.” According to the overture, this “confusion” prevented the SJC from assuming original jurisdiction in two judicial matters—involving Rev. John Wood and Rev. Steve Wilkins. The overture also appears to suggest that when a higher court assumes original jurisdiction over a matter, it should continue to defer to the lower court’s handling of the matter up to that point. In addition, the overture contends that in certain cases where “an original court has actually instituted process, if the censure is inadequate, other Presbyteries or Sessions should have the right to petition for AOJ and if granted, the minister or member would then answer for himself directly before the higher court (the broader church)” and that “AOJ should not be contingent on what the original court does or doesn’t do.”
Summary Analysis
In what follows, I will explain my conclusions and how I arrived at them. To give you a road map, here is where I am heading:
The overture has a point—there has been some confusion about the meaning of the phrase “refuses to act” in BCO ¶¶ 33-1 and 34-1. However, that confusion has been substantially resolved by the John Wood case, and can be further elucidated by considering the double jeopardy and “grass roots” polity concerns behind it. As such, there is no need for the action identified by the overture, and the revision proposed by the overture would only make the problems attending the assumption of original jurisdiction worse and distort the polity of the PCA.
1. PCA history misrepresented
Of course, I don’t think that the authors of this overture meant to misrepresent the historical facts regarding the John Wood case and Steve Wilkins dispute, but that is exactly what they (unwittingly) have done. The overture suggests that two judicial cases demonstrate that confusion over the phrase “refuses to act” has made the assumption of original jurisdiction inordinately difficult. In fact, one of those cases substantially resolved the very “confusion” that the overture claims persists, and the other case is pretty much inapposite.
a. The John Wood case
The first case involved the Rev. John Wood, who was accused of having been involved (as moderator of the session of his church) in allowing a woman to preach at two evening worship services and of holding heterodox views regarding women in the ministry. See In re John Wood, No. 99-1 (SJC 2000), in 28 PCA GA Minutes 238-41 (2000). After the controversy surfaced, Tennessee Valley Presbytery, of which Rev. Wood was a member, ended up discussing the matter (albeit informally) and adopting two resolutions regarding the matter in which the presbytery cleared the session of wrongdoing. See 28 PCA GA Minutes, supra, at 239-40; see also 29 PCA GA Minutes 74-75 (2001) (describing developments in the presbytery leading up to the adoption of the resolutions). In response, three other presbyteries adopted resolutions requesting the General Assembly to assume original jurisdiction over Rev. Wood. 28 PCA GA Minutes, supra, at 238. The SJC determined that the GA had no power to assume original jurisdiction because Tennessee Valley Presbytery “did not refuse to act” under BCO ¶ 34-1. Id. at 238-39.
At that point, Louisiana Presbytery sent an overture to the GA, asking that the GA “condemn” the SJC’s ruling. Id. at 276-77. Among the claims in the overture, Louisiana Presbytery argued that the SJC erred in ruling that Tennessee Valley Presbytery’s action vindicating the session of Rev. Wood’s church “automatically clears” Rev. Wood. Id. at 277. Before the overture was presented to the GA floor by the Committee on Bills and Overtures (CBO), the GA decided to refer the overture to the Committee on Constitutional Business (CCB) based on a petition by RE W. Jack Williamson. Id. at 214-15. Among the several constitutional questions raised by the petition, the CCB was asked whether the resolutions of Tennessee Valley Presbytery clearing the session of Rev. Wood’s church fulfilled the requirement of “acting” as set forth in BCO ¶ 34-1 or had the presbytery “refused to act” under ¶ 34-1 and whether the assumption of original jurisdiction would violate the constitutional principle of double jeopardy. Id. The CCB punted the overture back to the CBO. Id. at 80, 258.
The CBO was divided. See id. at 275-78. A majority of the CBO recommended that the overture from Louisiana Presbytery be answered by adopting a resolution overruling the SJC by stating that the GA “declares that the resolutions of [the three presbyteries requesting the assumption of original jurisdiction over Rev. John Wood] be treated as overtures timely filed to this General Assembly, and be referred to the Committee of Commissioners on Bills and Overtures, for recommendation to this Assembly as to whether the Assembly should assume original jurisdiction as so requested, and refer the case for hearing before the SJC.” Id. at 276. In support of this recommendation, the CBO stated:
The plain language of BCO 34-1, absent any other provision in the Constitution or Rules, appears to have the Presbyteries in question petition the Assembly itself concerning the question of original jurisdiction. After that decision is rendered, the Assembly should exercise its jurisdiction in the regular Constitutional manner, i.e., through the SJC (cf. BCO 15-4).
Id. at 276 (emphasis in original). The minority of the CBO argued that the overture from Louisiana Presbytery was out of order because, among other things, Tennessee Valley Presbytery did not “refuse to act” for purposes of BCO ¶ 34-1 and conducting a “second investigation would amount to an act of double jeopardy.” Id. at 278. The GA rejected the minority report of the CBO and adopted the majority report. Id. at 258-59.
On remand, the SJC conducted an investigation pursuant to BCO ¶ 31-2 but unanimously determined that the evidence was insufficient to support an indictment of Rev. Wood. In re John Wood, No. 99-1 (SJC 2001), in 29 PCA GA Minutes, supra, at 70-82; see also 29 PCA GA Minutes, supra, at 198-202 (declining to condemn the ruling of the SJC). Of 17 SJC members present and qualified to vote in the matter, only 6 expressed the view that the SJC should not indict Rev. Wood because, inter alia, the GA did not have the authority to assume original jurisdiction in the matter because the presbytery did not “refuse to act.” 29 PCA GA Minutes, supra, at 73-76.
Well, as one of my law profs once said, “Dissents are for losers.” While it is true that, as Overture 3 asserts, there was some confusion about whether a presbytery that has conducted an investigation and found insufficient evidence for an indictment has thereby “refused to act” for purposes of BCO ¶ 34-1, the ultimate disposition of Rev. John Wood’s case substantially resolved that confusion. The GA’s actions show that
- the propriety of assuming original jurisdiction under BCO ¶ 34-1 is a question reserved to the GA floor itself—only once the Assembly has voted to assume original jurisdiction pursuant to proper requests under BCO ¶ 34-1 is the SJC vested with the power to proceed in the matter;
- “refusal to act” for purposes of BCO ¶ 34-1 means, at the very least, a refusal or failure to do more than what Tennessee Valley Presbytery did (actions consisting of some informal questioning and fact-finding by the presbytery and that did not lead to an indictment); and
- implicitly (especially given the specific arguments raised by RE W. Jack Williamson, by the minority of the CBO, and by the 6-member minority opinion of the SJC on remand), investigating a matter anew after the assumption of original jurisdiction in such a case does not expose the accused to “double jeopardy” because the lower court’s mere investigation of a matter without an indictment did not result in a judgment precluding subsequent judicial action.
In other words, far from constituting proof of the need to eliminate the “refuses to act” prong of the BCO ¶ 34-1 (and ¶ 33-1) threshold, the John Wood case is a window into both the concerns behind the requirement and the limits of its application.
b. The Steve Wilkins dispute
The second matter discussed in the overture involved Rev. J. Steven Wilkins, who was accused of doctrinal error in a “memorial” from Central Carolina Presbytery before the 2006 GA. See In re Memorial from Central Carolina Presbytery, No. 2006-2 (SJC 2008), in 36 PCA GA Minutes 75-83 (2008).
(The BCO provision contemplating that a presbytery could be cited to appear before the GA’s SJC based on a “credible report” of an important delinquency or grossly unconstitutional proceeding, BCO ¶ 40-5, employed the term “memorial” prior to an amendment effective upon the GA’s ratification in 2006. 34 PCA GA Minutes 52, 57-60 (2006); cf. BCO ¶ 26-2 (requiring ratification of subsequent GA for amendment to the BCO). The CCB advised the SJC that the memorial in Wilkins’s case was in order because it was received prior to the effective date of the amendment of BCO ¶ 40-5. See 34 PCA GA Minutes, supra, at 149, 186.)
The memorial from Central Carolina Presbytery asked for alternative relief. In re Memorial, in 36 PCA GA Minutes, supra, at 80 (quoting Central Carolina Presbytery’s January 28, 2006 memorial). First, it asked the GA to assume original jurisdiction over Rev. Wilkins under BCO ¶ 34-1. Id. If that were not done, then the memorial asked, in the alternative, that the GA cite Louisiana Presbytery “per BCO 40-5 and SJC Manual 16.” Id. The SJC decided at its March 3, 2006 meeting “to cite Louisiana Presbytery to appear in person pursuant to BCO 40-5.” Id.
The SJC received two other communications in 2006 pertaining to Rev. Wilkins and Louisiana Presbytery—one from Southern Florida Presbytery and one from Calvary Presbytery, but the SJC’s Report to the GA that year simply states that they were “found out of order.” 34 PCA GA Minutes 84 (2006). I could not ascertain from the GA minutes the basis for the SJC’s ruling. A man who was an SJC member at the time has advised me that only one overture (the Central Carolina Presbytery memorial) requested the assumption of original jurisdiction over Rev. Wilkins, and that once the SJC had decided to pursue the matter under BCO ¶ 40-5, the other requests were moot. That is somewhat incongruous with the wording of the PCA GA minutes, which state that the communication from Calvary Presbytery was a “Request for Original Jurisdiction . . . RE: S. Wilkins.” Id. My best guess, given what the SJC member told me, is that the request from Calvary Presbytery was not received until after the SJC had already decided to begin BCO ¶ 40-5 proceedings in regard to Louisiana Presbytery (which is consistent with the numbering of the Calvary Presbytery request on the SJC docket as No. 2006-03), at which point the SJC either decided that granting the request of the Central Carolina memorial for the BCO ¶ 40-5 proceeding had rendered its alternative request for the assumption of original jurisdiction moot or that the institution of the BCO ¶ 40-5 proceedings against Louisiana Presbytery for its handling of the Wilkins matter somehow preempted the assumption of original jurisdiction over Wilkins himself.
The GA minutes also show that Suncoast Florida Presbytery sent an overture to the GA asking that it summarily declare that the Session of Auburn Avenue Presbyterian Church was heterodox, that Louisiana Presbytery erred in declaring that Rev. Wilkins was faithful to the confessional standards of the PCA, and that the GA appoint a commission to discipline the Session of Auburn Avenue and Rev. Wilkins. 34 PCA GA Minutes, supra, at 310-10b (2006). The CCB’s advice to the SJC was not reported to GA. Id. at 83. I cannot discern from the GA minutes what became of this overture. The overture’s request that the SJC appoint a commission to handle the Wilkins matter could be what led to its apparent demise because BCO ¶ 15-4 requires the GA to “commit all matters governed by the Rules of Discipline” to the SJC—not ad hoc commissions. (This language was adopted at the outset of the 34th GA in 2006, but even prior to its adoption the BCO required that all “judicial cases within its jurisdiction” be committed to the SJC, to the same effect. See 34 PCA GA Minutes, supra, at 55 (quoting the Strategic Planning Committee as stating that the change “makes clear that not just ‘judicial cases,’ a narrower category, but all matters of discipline, a broader category, are to be referred to the SJC”).)
Thus, it is far from clear that any confusion regarding the phrase “refuses to act” led the SJC to rule that the assumption of original jurisdiction over Rev. Wilkins was foreclosed, as Overture 3 suggests. In fact, an SJC member specifically recalls that the issue had to do with the lack of “two” requests from presbyteries for such action.
To recap, the John Wood case substantially resolved the very confusion that the overture claims justifies revision of the BCO, and the dispute regarding the assumption of original jurisdiction over Rev. Wilkins was apparently inapposite to the meaning of “refuses to act” insofar as the dispute turned on questions concerning the continuing viability of alternative relief, the timing of requests, and the propriety of a request for an appointed commission.
2. PCA polity would be distorted
Overture 3′s solution to the (virtually non-existent) “confusion” regarding the phrase “refuses to act” would distort the PCA’s polity. First, it would create double jeopardy problems and lead to meaningless proceedings that undermine the integrity of the courts. Second, it would centralize power in the SJC in a manner contrary to the PCA’s decentralized organization.
a. Double jeopardy and institutional integrity
There are actually two different concerns when it comes to double jeopardy. The first is fairness to the accused. It’s not fair for the accused to have to be tried over and over again for the same issue. Once of a court of competent jurisdiction resolves the matter, it is decided, and the only relief for those aggrieved by the decision is an appeal or complaint (or in extraordinary cases a collateral attack on the original judgment predicated on something as fundamentally defective in the original proceeding as a lack of jurisdiction (e.g., a minister was actually subject to the jurisdiction of a neighboring presbytery), fraud (e.g., the judge was bribed), etc.). This is why the Committee on Review of Presbytery Records does not review presbyteries’ judicial cases—they are only subject to review by the SJC through appeal or complaint (or indirectly, in cases of grossly unconstitutional proceedings, through BCO ¶ 40-5 proceedings).
In addition to protecting the accused, the prohibition on double jeopardy also protects the integrity of the courts. If any court’s judgment could be second-guessed apart from regular appeal or complaint, then the entire judicial system would be rendered chaotic. Every judgment would only be provisional; no judgment would be truly binding or conclusive. In the words of Presiding Judge Roscoe Conkling of the Missouri Supreme Court, “There must be a sometime end to litigation.” Drainage Dist. No. 1 Reformed, of Stoddard County v. Matthews, 234 S.W.2d 567, 573 (Mo. 1950). The PCA BCO specifically mentions this latter concern in BCO Chapter 11, where it describes the jurisdiction of church courts. There the BCO states that the courts of the church “are not separate and independent tribunals, but they have a mutual relation, and every act of jurisdiction is the act of the whole Church performed by it through the appropriate organ.” BCO ¶ 11-4.
The requirement that the lower court “refuses to act” before the higher court can assume original jurisdiction protects both of these principles of double jeopardy and institutional integrity. In criminal law, the protection against double jeopardy does not arise until jeopardy “attaches.” In other words, a person has to be in actual jeopardy once before the prohibition on their being in jeopardy a second time arises. See Will v. Hallock, 546 U.S. 345, 355 n. (2006). The Supreme Court has held that jeopardy attaches when a trial jury is empanelled and sworn. Crist v. Bretz, 437 U.S. 28 (1978). Similarly, in the PCA, there is no double jeopardy problem where a higher court assumes original jurisdiction over a matter where the lower court “refuses to act” because the refusal to act shows that the accused was never in jeopardy to begin with.
At the same time, once jeopardy attaches, any outcome constitutes a binding “judgment” conclusive of the proceedings apart from regular appeal (or, in the PCA, complaint), even if the outcome is an acquittal. By contrast, the failure or refusal to indict does not constitute a judgment. It can be complained against (as can all actions of a church court), but it cannot be appealed because there is no judgment to appeal. Turning again to the concern for the integrity of the judicial system itself, we see that the “refuses to act” requirement ensures that no higher court rides roughshod over a lower court’s competent judgment. Higher courts can assume original jurisdiction and reach an original judgment where there is no lower judgment standing in the way. But if there is such a competent judgment (or process) already in existence (or underway), then the higher court must be careful that the referral of the matter “shall not be so exercised as to impinge upon the authority of the lower court.” BCO ¶ 11-3.
Overture 3′s simple deletion of the “refuses to act” requirement would possibly expose church members to being tried anew after being investigated, indicted, tried, convicted, and even after those convictions were affirmed on appeal by the very higher court that would now purport to exercise original jurisdiction in the case. Needless to say, that would render the first trial—and the appeal—meaningless. (Or would it render the second one meaningless?)
b. “Grass roots” polity
The “refuses to act” requirement also reflects a preference for local resolution of local problems. Those closest to the situation will have the best grasp of the facts and the best ability to exercise appropriate discretion with respect to the pastoral and spiritual needs of those involved as well as the local community. It is gross empiricism to suppose that those “detached” from the local circumstances would have a better grasp of the facts by not being clouded by prejudice. A group of godly men who have lived and ministered in a community for decades will almost certainly have a better understanding of its people and needs than those on a three-day junket from across the country. This is why in cases of appeal or complaint, a “higher court should not reverse a factual finding of a lower court, unless there is clear error on the part of the lower court.” BCO ¶ 39-3(2).
That does not mean that there is no place for such extraordinary assumption of original jurisdiction, but those cases should in fact be extraordinary. The requirement that the court of original jurisdiction “refuses to act” before a higher court can assume that jurisdiction forces the locus of effort to the lower courts and, only once they have refused to address the question does a higher court have the power (upon request) to intervene.
Overture 3 tries to hold onto something of the protection of the grass-roots polity of the PCA afforded by the “refuses to act” requirement by providing that a higher court cannot assume original jurisdiction until the lower court first has had time to reach a judgment. However, that judgment would simply be set aside as soon as it were rendered, and the higher court would be required to start a de novo proceeding. Where the lower court has acted, such a course undermines the integrity of the judicial system and shifts the power to the higher court.
Conclusion
Overture 3′s proposal is a bad idea. Again, the overture does have a point—there has been some confusion about just what “refuses to act” means in BCO ¶¶ 33-1 and 34-1. However, the discernable rationale for the requirement and SJC precedent suggest that it means something like “refuses to indict.” Where there is no indictment, there is no judgment to preclude another court’s consideration of the issues and there was no jeopardy of the accused to preclude a second jeopardy. The word “refuses” implies that the original court has had an opportunity to indict but has not done so, which ensures that the first opportunity for discipline remains in local hands. This is a good requirement that, far from frustrating the effective and proper functioning of the PCA courts, is quite essential thereto.
To the extent there is confusion about the requirement, it could be resolved through better education of presbyters or through the replacement of the word “act” with the word “indict.”
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Jacob was baptized on the Twenty-Fifth Sunday after Pentecost, November 14, 2010, at Redeemer Presbyterian Church in New Orleans. We mailed the following announcement to our friends and family:
inverted from trochees to dactyls and iambs to emphasize the paradoxical nature of our baptismal vocation — namely new life through daily death, a new reality that is not yet seen, etc. It slows down the pace and creates an uneasy sense of anticipation. The nature of baptism as a proclaimed yet unseen reality (the gospel) is predicated of the challenging sacramental vocation itself: to live in hope of things not yet seen but already heard in the gospel (cf. Rom. 6-8; Luther: “every Christian has enough in Baptism to learn and to practice all his life”). Then, the trochaic rhythm is restored in the fifth line as the contemplation of the “not yet” aspect of baptismal life shifts to confident recollection of the “already” — with participial phrases — and of the redemptive purpose of suffering and death in this life. Meanwhile, the seventh stanza subtly shifts perspective from focus on Jacob (“him”) to the congregation (“we”) since the Holy Spirit in baptism not only gives us gifts personally but also signifies more generally realities for all believers who are present (“Raised that we might walk in newness,” cf. Rom. 6:4). The seventh stanza reflects some of the wording of the Fourth question on Baptism in Luther’s Small Catechism.choreographs the arrival of the infant into the community. In the painting, Melanchthon, who composed the Augsburg Confession and whose beliefs around 1547 were still generally supportive of Luther’s, is prominent and central.
