There would be an eight-month delay on all cases decided at the SJC’s fall stated meeting each October.  In its report to the Houston GA this year, the SJC is reporting decisions in 10 cases and all were unanimous except one (and that one was 18-1).  Despite that unanimity, each of those cases would be delayed if the proposed non-finality procedure were adopted.  Unfortunately, none of the overtures this year propose a solution to this serious delay problem. 

This year, several overtures propose changing the Presbyterian Church in America’s rule regarding the finality of appellate decisions from our 24-judge Standing Judicial Commission.  Unfortunately, these overtures share a substantial defect – they will delay justice in every case.  (Please note: I’m a member of the SJC, but will try to be unbiased in expressing my concerns.)

First, there’s really no problem of principle with PCA General Assemblies voting on every SJC decision.  In fact, it might be a good polity lesson for each GA Commissioner to read every SJC decision, along with the concurring and dissenting opinions (the SJC report is 65 pages this year).  And, to be honest, it might result in even more persuasively-written decisions if we judges knew the decisions would be read, and voted on, by all GA Commissioners.  But there seem to be other problems and principles that outweigh those benefits.

Delays – It seems these proposals would delay each and every complaint and appeal – even when the SJC is unanimous and the issues are non-controversial.  This alone seems like such a negative consequence that it ought to be fatal for the overtures.  For example, let’s say the SJC unanimously sustains the appeal of a minister who was convicted and deposed, and renders the decision in June (too late to report to that year’s GA).  If the non-finality procedure requested by the overtures were in place, he’d need to wait 12 months for a final decision in his case.  That seems like an unjust and unnecessary delay – for him, his church, his family, his Presbytery, etc.  And there would be an eight-month delay on all cases decided at the SJC’s fall stated meeting each October.  In its report to the Houston GA this year, the SJC is reporting decisions in 10 cases and all were unanimous except one (and that one was 18-1).  Despite that unanimity, each of those cases would be delayed if the proposed non-finality procedure were adopted.  Unfortunately, none of the overtures this year propose a solution to this serious delay problem.  Perhaps some hybrid solution could be proposed whereby only decisions in certain types of cases would be non-final, but the rest would be final.  (Non-finality is not as severe a problem at the Presbytery level since most Presbyteries meet three or four times a year, and can easily hold a called meeting.)

Nature of Commissions – Some of the overtures appear to have an underlying discomfort with the idea of commissions in the first place.  For example, there seems to be an assumption that the non-final judgment rendered by a Presbytery judicial commission is preferable, or wiser, or more just, or more Presbyterian than the finality of an SJC judgment.  This seems implied in the first and second “Whereas” clauses in Overture 3 from Grace Presbytery.  Whereas 2 seems to describe non-finality as a sort of higher principle, but some might argue the opposite, that is, finality is actually a more essential and fundamental feature of commissions.

Granted, the BCO treats differently the finality of the decisions of a Presbytery judicial commission (BCO 15-3) and the PCA’s judicial commission (BCO 15-5).  But the Book of Church Order (BCO) doesn’t enunciate or imply a “principle,” or even implicitly favor one vs. the other.  In other words, despite referencing the difference, none of the overtures demonstrate why the current BCO 15-3 non-finality provision (Presbytery) should be considered superior to the BCO 15-5 finality provision (SJC).  It’s asserted, but not proven.  And during the 14 years I’ve served on the SJC, we’ve reviewed several cases involving problems created by the non-finality of Presbytery judicial commission judgments (permitting questions but not debate, presbyters voting on recommendations on which they are much less informed than the members of the judicial commission, the awkwardness of debating a complaint filed against a decision that was originally non-debatable, etc.)

To emphasize one problem with the non-finality principle of BCO 15-3 (Presbytery judicial commissions), let me play “what if.”  Let’s say a Presbytery appoints a judicial/trial commission of 9 men and these judges read pre-trial briefs, hear and observe testimony and cross-examinations, ask questions, study the issues, and deliberate at length regarding a decision.  They then unanimously recommend a judgment.  When Presbytery meets, there could unfortunately be 9 inexperienced RE delegates whose votes cancel those of the trial judges.  And the BCO does not require these 9 inexperienced RE delegates to read the briefs, or hear or read the testimony or the cross-examinations, and the BCO does not allow them to even discuss the case (since the commission recommendation is non-debatable).  So it seems fair to question the assertion that non-finality is preferable to the finality of a judicial commission judgment.  It seems fair to wonder about the wisdom of a procedure whereby 9 inexperienced RE delegates could cancel the votes of 9 judges who (1) were appointed by the Presbytery, (2) sat on the case and (3) debated the case.

Some of the “Whereas” clauses in the seven BCO 15-5 overtures seem to imply commissions are somehow un-Presbyterian or somehow inherently suspect.  But a commission is essentially just a small quorum of the body appointing it.  BCO 13-4 allows a Presbytery to take action with a quorum of just 3 ministers + 3 ruling elders.  BCO 14-5 says the GA could act if it has a quorum of 50+50 from at least 1/3 of the Presbyteries (i.e., from 27).  The SJC is 12+12 from 24 Presbyteries.  And when the PCA formed in 1973, it seems final decisions in judicial cases could be rendered by as few as 10 men appointed by a GA, and that hearkened back to a similar procedure in the 1879 PCUS Book.  Indeed, every GA is just a quorum of the PCA (and sometimes not very reflective of it.)  If quorums are inherently problematic, perhaps all judicial decisions should be sent to each of our 81 Presbyteries, or perhaps to each of our 1,808 Sessions, for a vote before becoming final.

I read somewhere that Charles Hodge once said something like: “I’d just as soon have a matter decided by 10 good men as by 100.”  The point being, a Presbytery or an Assembly should put their best men on their judicial commissions – and then trust their judgment.  And if they make bad judgments – elect different men.

Some who seem uncomfortable with the finality of BCO 15-5 don’t seem as bothered by the next paragraph in Book of Church Order Chapter 15 that allows a single Assembly to appoint a commission of three men with authority to establish a national church in another country.  If the constitution allows us to entrust three men to do that, perhaps we should be more comfortable entrusting 24 Assembly-elected judges to render appellate decisions on complaints and appeals.

Valid Assumption? – Finally, while it’s accurate to observe that good men disagreed with the SJC’s 15-2 decision in Hedman v. Pacific NW, and a few Presbyteries sought to remand or overturn it via overture, I expect the majority at the Greenville GA would actually have approved the decision even if it had been put to a vote (I was recused in the case).  Granted, we can only speculate, but several things seem to indicate a majority would probably have upheld it (but that’s probably a discussion better had with a beverage and a robusto).

Elder Donahoe has been Clerk of Pacific NW Presbytery for two years.  He’s been a PCA member for 32 years in four Presbyteries, and a ruling elder for 28.