A Rejoinder in the Discussion on ‘Parliamentary “Proceduring” or Constitutional Compliance?’

The continuing discussion on what the PCA BCO says on handling decisions of the Standing Judicial Commission

If the CCB member’s interpretation is correct, and CCB is allowed to review the merits of SJC decisions, then presumably any person who loses a decision at the SJC, or any losing Presbytery, could try to persuade one of the eight members of CCB to cite the SJC in the case, asking GA to remand it to the SJC for rehearing.  And no SJC decision would ever be final until after the following GA, because nobody would know whether CCB was going to recommend a GA remand.

In a recent article in the Aquila Report, a member of the PCA’s eight-man Committee on Constitutional Business (CCB) disagreed with a constitutional interpretation I affirmed in an earlier article regarding the finality of decisions rendered by the PCA’s Standing Judicial Commission (SJC) – a court on which I have the honor of serving as one of 24 judges.  Our difference seems to involve the relationship between the first and third sentences of paragraph 15-5 in the PCA’s Book of Church Order:

15-5  The decision of the SJC shall be the final decision of the General Assembly except as set forth below, to which there may be no complaint or appeal.  Members of the SJC may file concurring or dissenting opinions, or a minority report as set forth in (c) below.  The GA may direct the SJC to retry a case if upon the review of its minutes exceptions are taken with respect to that case.

Does sentence 3 (direct the SJC to retry a case) conflict with sentence 1 (SJC decisions are final)?

The CCB member seems to contend my interpretation of sentence 1 conflicts with a proper understanding of sentence 3, while I contend his interpretation of sentence 3 conflicts with a proper understanding of sentence 1.  So, is there an interpretation that fits the wording of 1 and 3 without doing violence to either?  Certainly.  Rules of Assembly Operation (RAO) 17-1 provides the explanation:

17-1.   … The minutes, but not the judicial cases, decisions, or reports, of the SJC shall be reviewed annually by the CCB.  The minutes shall be examined for conformity to the “Operating Manual for SJC” and RAO 17, violations of which shall be reported as “exceptions” as defined in RAO 14-11.d.(2). With respect to this examination, the CCB shall report directly to the GA.  If exceptions are taken with respect to a case, the Assembly may find this a ground to direct the SJC to retry the case.

The last sentence in RAO 17-1 reads like the last sentence of BCO 15-5.  But the first sentence in 17-1 above clearly defines limits on CCB review.  The first sentence of RAO 17-1 should govern the interpretation of the two sentences mentioning CCB exceptions taken with respect to a case (i.e., the last sentences of RAO 17-1 and BCO 15-5 underlined above).  CCB is not to review the “judicial cases, decisions, or reports” of the SJC.  CCB is only to review the minutes.  And it seems clear that whatever “minutes” refers to, it’s something other than the judicial cases, decisions or reports of the SJC.  But the CCB member seems to interpret the sentence as if it said: “The minutes, but not including the judicial cases, decisions and reports of the SJC shall be reviewed annually by the CCB.”  But the RAO clearly says the opposite.

The SJC addressed CCB’s misinterpretation in its Response to this year’s CCB report.  The SJC Response was distributed to the commissioners at the Greenville GA, and part was read aloud, but since not all readers of the Aquila Report were commissioners, it can be found at here.

BCO vs. RAO?  The CCB member asserts “the plain wording of the Constitution should be given priority over the RAO.”  Sure, generally.  But in many instances the meaning of BCO provisions are explained by the RAO and steps for implementation are provided by the RAO.  Three examples.

BCO 14-6.c says the GA has power to “review the records of the Presbyteries, to take care that the lower courts observe the Constitution; to redress whatever they may have done contrary to order.”  What does that mean and how is that implemented?  How is that “redress” done?  See RAO 16, the chapter on the Committee on Review of Presbytery Records.

BCO 21-4.f. stipulates “in examining a candidate for ordination, the Presbytery shall inquire not only into the candidate’s knowledge and views in the areas specified above, but also shall require the candidate to state the specific instances in which he may differ with the Confession of Faith and Catechisms in any of their statements and/or propositions.”  How is that important provision implemented?  See RAO 16.3.e.5: “Presbytery minutes shall record ministers’ and ministerial candidates’ stated differences with our Standards in their own words.”

BCO 15-4 stipulates: “The General Assembly shall elect a Standing Judicial Commission to which it shall commit all matters governed by the Rules of Discipline.”  How is that done?  See RAO 17 and the SJC Manual.

Original Intent and Original Meaning. Most PCA elders would agree the minutes of the Westminster Assembly sometimes shed light on the proper interpretation of the Confession and the Catechisms – or at least on the original intent or meaning.  In general, they would agree the minutes of any meeting at which a constitutional provision is adopted can largely inform the meaning of the provision – especially if grounds or rationale are offered in the debate on a matter.  (I imagine the CCB member, like myself, is fond of the constitutional philosophy of Justice Scalia.)  So a significant help for this present disagreement are the Minutes of the 24th GA where these changes were first adopted.  The Committee on Judicial Procedures recommended the PCA adopt a change involving the review of the minutes of the SJC and proposed an amendment to BCO 15-5 making possible such a review of minutes.  Of particular importance for the present question are the Issue and Grounds offered by the Committee for the new language in the RAO (which is now RAO 17, since chapter numbers have changed since 1997).  Note especially the original italics.

Issue:  Constitutional review of the procedures of the SJC

Proposed amendment:  Add a third paragraph as follows: “The minutes, but not the judicial cases, decisions, or reports, shall be reviewed annually by the CCB ….”

Grounds:  For the sake of proper accountability, there is need for a means of constitutional review of SJC procedures by the GA.

These recommendations were adopted by the 1996 GA in Ft. Lauderdale by a vote of 791-17 (98%-2%).  The BCO amendment was ratified the following year by the Presbyteries by a vote of 45-5 and finally adopted by the 25th GA in Colorado Springs in 1997.

So, again, what is CCB supposed to review?  Only procedures.  It would be appropriate for the CCB to comment on SJC minutes if it found the SJC violated one of the procedures in the 49-page SJC Manual or one of the five sections of RAO 17.  For example, it would be appropriate for the CCB to report if it found the SJC had:

  • improperly appointed a Panel (RAO 17-3)
  • failed to grant a rehearing when requested by 4 members (RAO 17-4 & OMSJC 17-7.a)
  • allowed an unqualified member to vote in a case (OMSJC 2.3)
  • allowed a member to represent a party before the SJC (OMSJC 2.9)
  • held a called meeting with less than 30 days notice (OMSJC 2.10.c)
  • acted without a quorum (OMSJC 6.1)
  • improperly disallowed a temperate and respectful Dissenting Opinion (OMSJC 18.12).

If the CCB member’s interpretation is correct, and CCB is allowed to review the merits of SJC decisions, then presumably any person who loses a decision at the SJC, or any losing Presbytery, could try to persuade one of the eight members of CCB to cite the SJC in the case, asking GA to remand it to the SJC for rehearing.  And no SJC decision would ever be final until after the following GA, because nobody would know whether CCB was going to recommend a GA remand.  And if CCB is constitutionally permitted to ask GA to remand a decision to the SJC, then any SJC member who found himself in an SJC minority smaller than 1/3 (and thus could not file a minority report) could seek to get the GA to remand the case via CCB.  None of those three scenarios seem reasonable, and in fact, none are constitutional.

In the 16 years since these revisions were made establishing the finality of SJC decisions, no CCB report (to my knowledge) has ever attempted to cite the SJC with an “exception” to its minutes by disagreeing with the essence and merits of the SJC decision itself (as CCB did this year regarding Bethel v. SE Alabama).

Absent an SJC minority report in a case, or a CCB citation of procedural violations like those above, all SJC cases are final when they are announced to the parties.

Howie Donahoe is a Ruling Elder at Grace Presbyterian Church (PCA) in Seattle, Wash. He is serves as the Stated Clerk of Pacific Northwest Presbytery and on the PCA Standing Judicial Commission.