This Complaint was filed with Second Presbytery of the ARP church in October, 2010 and was acted upon by the Presbytery at the Stated Meeting held on March 8, 2011. For the story of the action taken at that meeting, go here: bit.ly/gMsbQM

To Calvin Draffin, Stated Clerk of Second Presbytery of the Associate Reformed Presbyterian Church.

And now, this 22nd day of October, A.D. 2010, Rev. James Loughner, Mr. Philip Malphrus, Mr. Earl Riddle, Rev. Peter Waid, Dr. Charles Wilson, Mr. Harold Wright, and Rev. Mark Wright complain against the action of Second Presbytery on October 12, 2010 in the matter of Unity ARP Church Session vs. James P. Hering,

and in support of said complaint set forth the following reasons:

On October 12, 2010 Second Presbytery approved the recommendation of the Minister and His Work Committee (MHWC) that charges in the case filed by the Session of the Unity ARP Church against James P. Hering (attached as Exhibit A) not be pursued. The MHWC concluded that there is insufficient evidence to substantiate the charges, and that these charges do not “rise to the level of a censurable offense. In support of these conclusions, the MHWC cited the following considerations:

1. The civil action was not filed

2. Mr. Hering believed the General Synod was in error and had acted hastily. Because of the overlap of ecclesiastical and civil governances of an institution such as Erskine, and that further harm and damage would be done to the church and to Erskine if the decision of General Synod was enacted, he believed his actions were in keeping with the commandments and his vows of ordination. (MHWC, “Report on the Investigation into Charges against Rev. Jay Hering, October 2010, p. 3, attached to this action as Exhibit B)

After some discussion by the court the recommendation by the MHWC that the charges against Mr. Hering not be pursued was approved by Second Presbytery.

The undersigned complainants believe that the decision of Second Presbytery is “irregular or unjust” (BoD X.E.1), and that grounds for this appeal are the following: “receiving improper or declining to receive proper evidence; rendering a decision before all testimony is taken; evidence for bias or prejudice in the case; and an unjust or mistaken sentence” (BoD, X.D.4). The complainants cite the following considerations and evidence:

I. The MHWC failed to investigate this matter in a full and appropriate way. The Chairman of the Committee volunteered the information on the floor that members of the Committee had not even bothered to visit the courthouse to research any relevant legal judgments and documentation in this matter.

II. Erroneous and unsubstantiated assertions were presented to the court:

A. Presbytery was told that the “civil action was not filed.” This is demonstrably incorrect. An action on behalf of Michael Bush, Richard Burnett, James Hering, J. David Chesnut, and the Erskine Alumni Association seeking to intervene in the action “Erskine College, Plaintiff vs. General Synod of the Associated Reform [sic] Presbyterian Church, Inc.” was filed in the Court of Abbeville on March 12, 2010 at 4:18 PM (see exhibit C). Furthermore, the existence of this civil action was referenced in the Settlement Agreement filed on September 17, 2010: “WHEREAS, certain individuals (the “Intervenors”) filed a motion seeking to intervene in the Erskine action”; see exhibit D.

B. Presbytery was informed by the MHWC that the motion had been refused by the court when Mr. Hering presented it to the secular court. After evidence of the court filing was referenced in the Presbytery meeting, the representative of the MHWC called upon Mr. Hering to explain to the court what had happened when he went to the courthouse. At this point, Mr. Hering admitted that he had not gone to the courthouse at all on March 12, 2010, and that the motion had been filed with the court via a courier.

C. Presbytery was told that the motion had not been accepted by the court and that it therefore had not been filed. Hearsay reference to the opinion of “three lawyers” on this matter was cited by the representative of the MHWC. However, no concrete evidence of any dispositive action by the secular court (one way or the other) with reference to the motion to intervene was presented to the Presbytery.

III. The Report of the MHWC is rife with opinion and interpretation, and the MHWC exceeded its mandate as an investigative committee under the provisions of the Book of Discipline by in essence seeking to try the case itself. For example, the MHWC report attributed the current matter to alleged “hastiness” on the part of the General Synod at its March 2010 meeting (“The MHWC believes that while the Called Meeting of the General Synod was in part the result of decades of frustration on the part of brothers in Synod over situations at Erskine, that the hastiness of enacting all of the Commission’s recommendations had great bearing on the matter before us with Mr. Hering”; MHWC “Report,” p. 1; Exhibit B). The MHWC also placed great emphasis on what it understood to be the motives of Mr. Hering (“Mr. Hering believed the General Synod was in error and had acted hastily. Because of the overlap of ecclesiastical and civil governances of an institution such as Erskine, and that further harm and damage would be done to the church and to Erskine if the decision of General Synod was enacted, he believed his actions were in keeping with the commandments and his vows of ordination.” MHWC, “Report,” p. 3; Exhibit B). Finally, the MHWC, while recognizing that there had been contact between the Unity Session and Mr. Hering before and after the filing of charges (note that the ARP BoD does not require a Matthew 18 process in matters involving general and public offense; see BoD II.A.2; IV.1), the MHWC nevertheless opined that “perhaps a subsequent meeting could have been held between Mr. Hering and the Unity Session after both parties had time to reflect on their previous meeting and discussion.” (MHWC, “Report,” p. 4; Exhibit B).

The content of said “Report” indicates that the MHWC exceeded its purpose and role in conducting a probable cause hearing. According to the BoD, the Committee was to determine if there is sufficient evidence to substantiate the charges, if all preliminary steps have been taken, if there are probable grounds for the accusations, and if the charges are proved will they constitute a censurable offence (BoD, IV.A.5). In reality, as the content of the Report of the MHWC amply demonstrates, the MHWC took it upon itself to try the case and, in effect, to present a verdict of “not guilty” for the Presbytery to approve. Matters of interpretation such as the status of the motion that was filed and the motives of the accused should have been left for the Court to decide according to proper and established procedures for ecclesiastical discipline as outlined in the ARP Book of Discipline. Furthermore, the incompleteness and one-sidedness of the “Report” at least suggest that the MHWC was less than even-handed in its handling of this matter.

In conclusion, the Complainants believe that Second Presbytery acted in an irregular and unjust manner. They believe that the record now shows that:

A. A civil action was filed on March 12, 2010 in a secular court of law by Mr. James P. Hering and others against the General Synod of the Associate Reformed Presbyterian Church.

B. That Mr. Hering is unrepentant and that he has defended his action both verbally on the floor of Second Presbytery and in writing.

C. That Second Presbytery acted on the basis of a flawed and inaccurate report that was presented by the MHWC to the Presbytery.

For the reasons listed above they complain this action to the General Synod of the Associate Reformed Presbyterian Church and ask for appropriate redress.

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