An Answer to ‘Parliamentary “Proceduring” or Constitutional Compliance?’

The answer to the question is ‘no;’ the PCA General Assembly did not act in compliance with its own Constitution

My view is that the GA moderator erred in his interpretation of RAO 17-1, as advised by the Parliamentarian and supported by the General Assembly as a whole.  The rulings related to the CCB exception and on Overtures 19 and 23, when taken together, have the effect of invalidating entirely the constitutional provision in BCO 15-5.a. 

 

In a The Aquila Report article, Ruling Elder Howie Donahoe wrote to oppose unnamed sources that he perceived were challenging the propriety of some procedural maneuvering at the recent 41st Presbyterian Church in America (PCA) General Assembly.  He wrote that there were those writing in blogs and speaking in conversations who were contending that “those who prevailed on several important matters related to judicial cases [at the Assembly] did so through less than ‘admirable procedures.’”

His article answered these complaints by suggesting that certain parliamentary rulings made at the General Assembly were less about “parliamentary proceduring” and more about “Constitutional compliance.”  I cannot judge the tenor of blogs I have not read or the content of conversations of which I have not been a part.  I also would not judge the motives of those making parliamentary points of order, especially without speaking to them first.  But still, I would like to offer another view of Constitutional compliance that differs from the one presented in the Donahoe article.  Forgive me if what I write seems somewhat tedious, but to speak of Constitutional compliance often requires going to the Constitution and the Rules involved and thinking out the ramification of the words written.

One of reasons there may be some grumblings about the use of allowable procedures as being less than admirable is that the utilization of those procedures, and especially their use before an underlying motion was ever offered to the Assembly, had the effect of eliminating any full floor debate on the point of order raised.  As a result, an opposing voice was never fully heard as to why any of the approaches taken in any of the relevant judicial matters ultimately ruled “out of order” may have, in fact, been Constitutional and “in order.”  On the floor of the Assembly, for example, a Standing Judicial Commission (SJC) report was presented by the SJC chairman.  The chairman spent more time reporting as to why the SJC believed the Committee on Constitutional Business (CCB) exception to its minutes article should have been ruled out of order than was spent in reporting on any other single case.  The position of the CCB, however, as to why the exception was taken was never heard.

Although RE Donahoe ordered his comments on the judicial matters by placing the CCB exception last, I will bring it up first.  In fact, the vast majority of what I write will be directed to the CCB exception because any argument related to the other matters raised by RE Donahoe will be influenced by my view that the CCB exception was permissible, despite the moderator’s ruling that it was out of order.

In the interest of full disclosure, I am a member of the CCB and a participant in the minority opinion offered from the CCB (which was never officially before the Assembly).  I also supported the exception that was taken by the majority of the CCB in relation to SJC Case 2012-06, Bethel v. Southeast Alabama – the exception that was ruled out of order by the moderator.  With regard to the Bethel exception, RE Donahoe stated it was approved by a 5-3 majority of the CCB.  However, to clarify, that 5-3 vote of the CCB was a counted vote in relation to the entire reported notations and exceptions found by the CCB after the review of SJC minutes.  This vote was not the vote on that exception in question.  As to the Bethel case exception, my personal recollection (which I grant could be flawed) was that the CCB vote was either a 7-1 vote or a unanimous vote.  That does not imply that a CCB member could not have potentially changed his view later, but at the outset, the Bethel exception was approved by a super majority of the CCB.

When addressing the question of the constitutional ability of the CCB to take an exception to the minutes of an SJC case, it is important to note that RE Donahoe does not cite the Constitution of the PCA.  The Constitution consists of the Church’s doctrinal (Westminster) standards and the Book of Church Order (BCO).  The Constitution should be the starting point of any constitutional inquiry.  However, neither Donahoe’s reasoning nor the SJC reply to the CCB, but focused on the non-constitutional Rules of Assembly Operation (RAO) 17-1.

The Rules of Assembly Operation (RAO) are in large part designed to implement the constitutional provisions.  They are not, however, to contradict the Constitution. If an RAO provision contradicts a constitutional provision it would result in an improper amendment of the Constitution.  So, with that in mind then, when one reads a RAO provision it should be read in a way that complies with the Constitution, and does not contradict it.

BCO 15-5.a is the sole constitutional provision directs how SJC minutes are to be reviewed.  This provision speaks of the finality of SJC rulings, but also provides exceptions to that finality.   BCO 15-5.a states in part:

 “The General Assembly may direct the Standing Judicial Commission to retry a case if upon the review of its minutes exceptions are taken with respect to that case.”

This provision must mean that the General Assembly (or a committee acting on behalf of the General Assembly, like the CCB) has a right of review of SJC minutes and a right to take exceptions to the minutes “with respect to a case.”  So why, then, would a CCB exception with respect to a case ever be thought to be out of order?  This is where RAO 17-1 comes into play.  The full content of the relevant portion of RAO 17-1 reads as follows:

 “The minutes, but not the judicial cases, decisions, or reports, of the Standing Judicial Commission shall be reviewed annually by the Committee on Constitutional Business. The minutes shall be examined for conformity to the “Operating Manual for Standing Judicial Commission” 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 Committee on Constitutional Business shall report directly to the General Assembly. If exceptions are taken with respect to a case, the Assembly may find this a ground to direct the Standing Judicial Commission to retry the case”  (Emphasis added).

The moderator’s basis for ruling the CCB exception out of order rests in the first part of this paragraph: “The minutes, but not the judicial cases, decisions, or reports of the Standing Judicial Commission shall be reviewed….”  The rationale being: CCB may not cite an exception to minutes regarding judicial cases.

RAO 17-1, I would suggest, is not a paragon of clarity.  The minutes are to be reviewed, but not judicial cases, decisions, or reports.  However, in large part, what are contained in the minutes are predominantly – almost entirely – references to actions taken with regard to judicial cases.  That is what the SJC does – it deals with judicial cases, and so the minutes of the SJC in most years are only reporting actions taken in various stages of a case in judicial process.  In addition, the question arises as to how the restriction on the review power granted to the CCB and articulated in the first part of the relevant paragraph of the RAO should be understood in light of the last sentence of the paragraph which closes by indicating that exceptions may be taken in respect to a case.

I suggest that the correct response is to interpret the whole of RAO 17-1 in a way that does not contradict the constitutional power already established – that is, the power of the General Assembly to take an exception to a judicial case.  In other words, the minutes excluding the judicial cases, decisions and reports, are to be reviewed by the CCB for conformity to the SJC operating manual and RAO 17.  However, if an exception is taken with regard to a case, it is to be reported to the Assembly and the Assembly may find this a ground to direct the SJC to retry the case.  This reading would not offend BCO 15-5.a, but to read the prohibition of the first sentence of RAO 17-1 as a complete prohibition on finding exception to a case would invalidate the only constitutional provision that deals with a review of SJC minutes.

There is also another possible reading of RAO 17-1 that would not contradict the PCA Constitution.  That would be to read the first sentence of RAO 17-1 as an absolute restriction on the CCB, but not as a restriction on the whole of the Assembly’s ability to judge there to be an exception to the SJC minutes in regard to a case, which could possibly then lead to a vote of the Assembly for a retrial of the case.  That is the interpretation that was requested in Overtures 19 and 23 which were also mentioned in the RE Donahoe’s article.  But as pointed out by RE Donahoe, those too, were also ruled out of order.

My view is that the GA moderator erred in his interpretation of RAO 17-1, as advised by the Parliamentarian and supported by the General Assembly as a whole.  The rulings related to the CCB exception and on Overtures 19 and 23, when taken together, have the effect of invalidating entirely the constitutional provision in BCO 15-5.a.  Some may argue that the historic intention when BCO 15-5.a was maintained unmodified and RAO 17-1 (then RAO 15-1) was added, was to curtail the review of SJC decisions.  But that’s not what our Constitution says and the plain wording of the Constitution should be given priority over the RAO.

I regret that this view was not openly debated and heard by the GA commissioners before rulings were made and sustained.  And I especially regret that my lack of understanding of the parliamentary rules contributed to this view of constitutional interpretation not being presented.

In addition to the parliamentary rulings that affected the CCB Bethel exception and Overtures 19 and 23, RE Donahoe also approved of the decision of the moderator to rule out of order minority reports from the Committee on Review of Presbytery Records (RPR).  Those minority reports related to potential error in completed judicial decisions at the Presbytery level.  The minority on RPR sought to cite Presbyteries with errors in certain matters related to how judicial cases were handled.  In this instance, RE Donahoe does cite the Constitution in order to advocate that RPR cannot take an exception to minutes of Presbyteries related to judicial cases.  The controlling Constitutional provision is BCO 40-3.  The provision states in relevant part that:

 “Proceedings in judicial cases, however, shall not be dealt with under review and control when notice of appeal or complaint has been given the lower court; and no judgment of a lower court in a judicial case shall be reversed except by appeal or complaint.”

As to this matter raised by RE Donahoe, my sympathies on this point actually lie with his view.  Here I would say that the plain wording of this constitutional provision should not be abrogated, just as I argued above in relation to BCO 15-5.a.  I would not argue differently than RE Donahoe on this one matter.

However, there still is another side to the argument advanced by RE Donahoe.  The judicial cases in question at the point of the review by the 41st General Assembly’s RPR were completed cases.  Any reported exception by the RPR would not reverse the Presbytery’s decision.  With that in mind, would it not be a good thing to still point out to a Presbytery that there were potential errors in judicial process?  At the very least, that would avoid the possibility of repeating wrongs once done.

With regard to that position, Stated Clerk Roy Taylor posed a similar question to a prior CCB in 1992 (See PCA Digest page 285).  The gist of the inquiry by Dr. Taylor asked:

 “[M]ay a court a court take exception contrary to BCO 40-3 to a lower court’s actions while the matter is under judicial process of complaint or appeal?  If so, what is the force of such unconstitutional decisions?  If not, is the exception taken through review and control null and void?”

The response of that CCB to the inquiry was as follows:

 “No.  Proceedings in judicial cases shall not be dealt with under review and control when notice of appeal has been given to the lower court.  (BCO 40-3)  An exception pertaining to a lower court’s actions is not to be ‘dealt with’ until the judicial process is complete. The language of the BCO does not prohibit Review and Control from noting what it believes to be an exception, but no action can be taken by the higher court until final judgment has been rendered in the judicial case  (Emphasis added).

So there is at least an opposing position that would advocate that an exception could be taken (as the minority wished) because the judicial processes in the cases involved were complete.  And there is also an apparent wisdom in that view.  If a Presbytery erred in judicial process, and they are made aware of their error, they still might have the ability to undo the error (if indeed there was an error made). Even if an agreed error could not be corrected, greater caution could then be used in the future to not make the same mistake again.

In summary, there are opposing constitutional views that were not fully heard on the floor of the General Assembly.  If these opposing views were fully heard, perhaps the moderator would have been persuaded to rule differently or the Assembly may have voted differently upon an appeal of the chair.  After having stated all of the above, I would also concur with RE Donahoe in regard to his recommendation on these issues going forward.  I would likewise encourage the our Presbyteries to seek to revise our Constitution (or the RAO’s implementing the Constitutional provisions).  However, I do so for differing reasons than those proposed by RE Donahoe.  Obviously, I do not agree with him that the Constitution was properly applied in all the matters he addressed in his article, but I encourage revision in order to eliminate the possibility of future error or continued confusion.

Art Sartorius is a Teaching Elder in the Presbyterian Church in America (PCA) and is Pastor of Black Hills Community Church in Rapid City, S.D. He also serves on the PCA’s Committee on Constitutional Business.

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