The Southeast Louisiana Presbytery of the Presbyterian Church in America (PCA) has sent an overture (Overture 7) to the 37th General Assembly (GA) asking that § 16 of the Operating Manual for Standing Judicial Commission (SJC Manual) be declared “constitutionally defective,” and that the SJC be asked to propose an revision of that section of the SJC Manual that would bring it into line with the Book of Church Order (BCO).
The skinny
This overture is somewhat technical, so don’t get lost in the details. Basically, the BCO, in language dating back to the 1800’s, has always required that inferior courts must be given a full-dress trial under the BCO before they can be censured by a higher court. (Note that a censure is more severe than simply taking exceptions to the minutes of a lower court, which can be done during the annual review of the minutes.) The overture rehearses in mind-numbing detail the series of failed attempts to get § 16 enacted while many in the PCA expressed concern about its constitutionality. In the end, SJC Manual § 16 was ultimately adopted. The problem is that § 16 allows the GA to censure a lower court without a trial but only after a “hearing” during which the accused court’s representatives are given “a maximum of 30 minutes” to make an argument. No evidence, no witnesses, none of the rules of procedure set forth in the Rules of Discipline – just a 30-minute presentation by each side and then a judgment. Because the SJC Manual is a law of lesser authority than the BCO (and since it can be amended by a single General Assembly), the GA can declare it constitutionally defective.
Sour grapes?
You might suspect that this overture is meant to undermine the action of the SJC in the recent case against Louisiana Presbytery. You’d be wrong. First, this overture comes from *Southeast* Louisiana Presbytery—not regular old Louisiana Presbytery. Second, although the SJC initially took up some of the issues in the Louisiana Presbytery case pursuant to a memorial under § 16, they wisely exercised some restraint and at that time only remanded the matter for further proceedings. In the end, before the SJC censured Louisiana Presbytery, they held a full-dress trial. After holding a preliminary hearing pursuant to a formal citation, an indictment was issued; pleas were entered; at the trial opening statements were made, witnesses were called, examined, and cross-examined, and closing arguments were made; and only then did the court render a judgment censuring the presbytery. So what happened with Louisiana Presbytery is neither here nor there as far as this overture is concerned.
The nitty-gritty
Turning to BCO Chapter 40, again, don’t to lose sight of the big picture. The BCO states that “[i]n process against a lower court, the trial shall be conducted according the rules provided for process against individuals, so far as they may be applicable.” As F.P. Ramsay explained in his 19th Century commentary on the PCUS’s nearly identical antecedent provisions to our BCO Chapter 40, “[N]o inferior court may be censured except after conviction on regular trial, any more than an individual.” F.P. Ramsay, An Exposition of the Form of Government and the Rules of Discipline of the Presbyterian Church in the United States 243 (1898). If § 16 allows this to occur when the BCO forbids it, then § 16 is constitutionally defective as the overture asserts. End of story.
You might be wondering, however, what this means when it comes to the annual review of records. After all, don’t higher courts typically find fault with the minutes of lower courts? Well, yes, and this is where Ramsay is especially helpful. As you can see in the linked PDF of his commentary, the PCUS Book had language virtually identical to our Chapter 40. According to Ramsay, the first four paragraphs of this chapter (the first three in the PCA BCO) have to do with the review of records, the next (our ¶ 40-4) “asserts the power of the reviewing court to go outside of the records,” and “the last two” (our ¶¶ 40-5 and 40-6) “treat of process against a court, the last paragraph particularly prescribing the rules of such process after the citation.” Ramsay, supra, at 238. Ramsay proceeds to explain the distinction between the “general review and control” and the “jurisdiction by process” of higher courts over lower courts:
In the exercise of general review and control the superior court may go so far as to enter upon the records of the inferior a censure of the records (but not of the court), or send to the inferior court an order to review and redress irregular proceedings [nota bene: in the PCA, we call a "censure of the records" or an "order to review and redress" in this context an "exception" (see generally RAO 16)]; but in the exercise of its jurisdiction by process the superior court may censure the inferior court (and not its records merely), and may itself reverse and redress the proceedings (in other than judicial cases) instead of ordering the inferior court to reconsider and correct them.
Id. at 242. As Ramsay explains, the GA can take exceptions to presbytery minutes all day long and can even order presbyteries to redress irregular proceedings recorded (or not) in the minutes. See RAO 16-7, -10. (Review of judicial cases, as Ramsay notes, is special because they can only come to the GA through appeal, complaint, or referral, and then they go to the SJC for review rather than to the Committee on Review of Presbytery Records (CRPR).) But the GA cannot censure a presbytery without a trial because that requires the exercise of jurisdiction by process. This is why the Rules of Assembly Operation provide for a referral from the CRPR to the SJC where the CRPR believes that a presbytery “has persisted in an error that is significant enough to require an Assembly response” other than “again seek[ing] a more acceptable response from the presbytery.” RAO 16-10(d).
“Mooted” by recent BCO changes?
There have been suggestions by some that the question presented by the overture was mooted by an amendment to the BCO in 2006. See generally 34 PCA GA Minutes 57-60 (2006). At that time the first line of BCO ¶ 40-5 was changed from
“When any court having appellate jurisdiction shall be advised, either by the records of the court next below or by memorial, either with or without protest, or by any other satisfactory method, of any important delinquency…”
to
“When any court having appellate jurisdiction shall receive a credible report with respect to the court next below of any important delinquency…”
Id. The amendment was proposed by the Strategic Planning Committee, which asserted that the “[p]roposed change simplifies the language of the antecedent in the conditional, and allows for the use of a commission, in anticipation of a proposed amendment to ‘RAO’ 14-10.c. establishing a judicial procedure to settle the question of the disputed exceptions alleged under General Assembly review of presbytery records.” Final Report of the Strategic Planning, 2261, ll. 30-37 (2005), reprinted in part in 34 PCA GA Minutes, supra, at 57-58. (That amendment to the RAO was in fact adopted, and it is now codified at RAO 16-10.c.) There is no indication in the language of the amendment or in the comments from the Strategic Planning Committee that the change would have such far-ranging effects as rendering meaningless an entire section of the SJC Manual. While it is true that § 16 refers to “memorials,” there is no reason to believe that this now-anachronistic term would not continue to embrace a “credible report” to the same effect.
And even if § 16 were somehow “mooted” by this 2006 BCO amendment, that doesn’t change the fact that § 16 still appears in the SJC Manual and is the only section of the SJC Manual that speaks to SJC’s exercise of original jurisdiction over presbyteries. In other words, even if the 2006 BCO amendments had the apparently unintended and unforeseen effect of rendering the entirety of § 16 suddenly meaningless, that only adds to the urgency of declaring that section “constitutionally defective” and asking the SJC to propose revisions.
Hamstringing the SJC?
You might worry what the implications of declaring the current § 16 “constitutionally defective” might be. So do I. Thankfully, the overture didn’t ask that the section be declared “unconstitutional” or “void” because that might hamstring the SJC, leaving it to exercise judicial oversight over presbyteries without any procedure on point. Instead, the “constitutionally defective” language basically identifies a problem but allows the SJC to work around that problem in some way until a revision can be adopted by the GA.
Conclusion
Overture 7 is a wise and temperate overture that seeks to reform the SJC Manual so that the SJC can more effectively exercise its responsibilities of judicial oversight of lower courts but happily leaves the SJC free to find an interim work-around and also asks them to propose a longer term solution.
ADDENDUM (06/03/2009)
Today, I came across further evidence that the 2006 amendment to BCO ¶ 40-5 did not “moot” or render meaningless SJC Manual § 16. That year, the SJC received a memorial from Central Carolina Presbytery asking that the SJC proceed against Louisiana Presbytery under BCO ¶ 40-5. The Committee on Constitutional Business (CCB) advised the SJC that the memorial should be processed under the pre-amendment version of BCO ¶ 40-5 since the memorial was sent and received before the amendment’s effective date. See 34 PCA GA Minutes 149, 186 (2006). The CCB also stated that “the SJC Manual 16 may need to be revised in the future since the terminology of memorial has been removed from BCO 40-5.” Id. at 186 (emphasis added). The CCB thus stopped well short of advising the SJC that § 16 had been mooted or rendered meaningless, suggesting instead that it only “may” need to be revised because “the terminology” had been altered by the recent BCO amendment. This adds further proof to the notion that SJC Manual § 16 is still a live problem for the PCA, just as current Overture 7 contends.
