Eight overtures await the 42nd General Assembly regarding judicial process and the authority of the Standing Judicial Committee (SJC). They come in response to a single case: Hedman vs. Pacific Northwest Presbytery.

The Hedman case was prompted by the trial of teaching elder Peter Leithart. Leithart had been charged and acquitted of five allegations by Pacific Northwest. Ruling elder Gerald Hedman, believing the court was in error, filed a complaint. Both the presbytery and the SJC denied it. Their denial of the Hedman complaint has stirred controversy — and eight overtures, all proposing changes to Book of Church Order 15.

The first of these, Overture 3, came from Grace Presbytery, and is the subject of the following conversation. Teaching elder Sean Lucas, who drafted the overture, is senior pastor of First Presbyterian Church in Hattiesburg, Miss., and current Chairman of the Committee on Constitutional Business; he writes in favor of the proposal.

Teaching elder David Coffin, senior pastor of New Hope Presbyterian Church in Fairfax, Va., and a member of the Standing Judicial Commission, writes in opposition.

You are invited to join the conversation with your comments.

In Favor of Overture 3

Dr. Sean M. Lucas

As of this writing, there are seven different overtures to the General Assembly that in one way or another seek to redress a “hole” in our Book of Church Order (BCO). That hole became obvious to some presbyters in the light of the Hedman v. Pacific Northwest Presbytery judicial case, although the proposed solution has very little to do with the specifics of that judicial case itself. Rather, the solution simply asks for the General Assembly to treat various judicial commissions, whether a presbytery judicial commission or the General Assembly’s Standing Judicial Commission (SJC), in the same way.

Let me back up and explain my perception of the hole in the BCO. When our current rules that developed the SJC were adopted in 1988, our General Assembly actually retained for itself the right to approve or disapprove the judgment of the SJC. Starting in 1993, the Ad Interim Committee on Judicial Procedure started to work on a major revision of our practice of discipline. They offered a provisional report in 1995 and a final report in 1996; in that final report, our current language for BCO 15-5 was proposed and was adopted with consent of the presbyteries in 1997.

The rationale for the practice that is now part of our BCO was that “the SJC ought to function as a true commission, in the most historic Presbyterian sense of the term, concluding the business referred to it” (M24GA, p. 75). In order to function in that way, the change was made whereby the SJC’s decisions would be final when adopted unless there was a minority report filed. If such a report was filed, then the matter would be suspended until it come to the General Assembly as a whole.

However, there is a major problem with this rationale: namely, our BCO as it stands makes a distinction between commissions that conduct regular business and those that handle judicial business (BCO 15-1). Such regular business that commissions handle includes “the taking of the testimony in judicial cases, the ordination of ministers, the installation of ministers, the visitation of portions of the church affected with disorder, and the organization of new churches” (BCO 15-2). To be sure, these aren’t the only matters that a commission might handle; but they are regular and non-judicial. Presbytery judicial commissions are treated differently (BCO 15-3). That’s because they are standing in for the presbytery as a whole; hence, the whole court approves the decision as their own decision.

This distinction between “regular” commissions and “judicial” commissions was part of the original understanding of those who established the SJC as our practice in 1988. And it actually is good Presbyterianism—as presbyters, we are members of church courts. If we are subject to discipline, we are subject to that discipline by the court to which we belong. While the trying of the case and the rendering of the decision might be entrusted to a commission, the final discipline itself should be meted out to us by the court to which we belong. It is right for the entire court—presbytery and/or Assembly—to approve (or disapprove) the decision and so mete out discipline as Christ’s court.

When the Ad Interim Committee on Judicial Procedure proposed and the General Assembly adopted our current language, it unwittingly then created the “hole”—namely, the SJC is decoupled from the Assembly as an independent commission more akin to the United States Supreme Court than a presbytery judicial commission.

For a number of years, the Assembly didn’t notice this hole in our system because there weren’t judicial cases that drew the entire church’s attention. But with Hedman v. Pacific Northwest Presbytery, we had a case that drew national attention, both within and outside our church. There were many that believed that both the presbytery and the SJC erred in that case; however, because our current rules did not allow the church’s highest court to approve or disapprove the SJC’s judgment, there was no constitutional way for dissent to be heard within the courts of the church.

That didn’t stop many from either attempting or proposing extra-constitutional ways of voicing their dissent. I, for one, did not agree with those attempts; in my opinion, if we are going to be Presbyterian, then we need to abide by the rules of government set forward in our BCO. However, I agreed with a larger concern: what if some teaching elder were to begin to deny the essentials of our understanding of biblical inerrancy? And what if they were to defend their view based on the Westminster Confession? And what if their presbytery found them to be within confessional bounds? And what if the SJC argued that the presbytery did not err, even though “nothing in this Decision should be construed as addressing or endorsing in general the teaching elder’s views, writings, teachings or pronouncements”? What then?

Under our current rules, there is nothing that can be done. And yet, because our denomination was founded for this particular doctrine—the inerrancy of Scripture—shouldn’t there be some way to redress this? I believe there should be—and the solution is actually very simple. It is to return to what our original practice was in 1988, to what our current practice is in our presbyteries, and to what common sense Presbyterianism should lead us toward: allow the General Assembly to approve or disapprove the decisions without debate. This would allow the whole church to render judgment or voice dissent in meaningful, constitutional ways. And it would restore the SJC as the judicial commission of the General Assembly and as a useful judicial structure in a biblical Presbyterianism.

 

Opposed to Overture 3

Dr. David F. Coffin, Jr.

One of the wisest of our American Presbyterian forefathers in matters of polity argued that a general objection ought to be considered against any proposed change in The Book of Church Order. He observed that any new language would include undiscovered ambiguities that might well have disastrous unintended consequences, consequences that would only appear when the provisions were tested in cases by sharp and contending minds seeking possible meanings to their advantage. Thus, he concluded, unless the change proposed is clearly necessary, the old language is to be preferred, because it has already been long-tested in cases, and persuasive precedents guide the church as to its meaning.

Happily, for the proponents of Overture 3 and its cousins, this objection cannot be brought against their proposals for change. Unhappily, the reason why the objection can be easily set aside is that we already know very well the disastrous unintended consequences that will follow. The proposed change would return the PCA to circumstances that undermined the justice of our appeals system and threatened to divide the denomination.

The proposal of Overture 3 would undo the Standing Judicial Commission as a proper commission, and return it to its former status as a kind of judicial committee tasked with proposing the disposition of cases for a vote by the next General Assembly, the Assembly acting without any debate on the proposed disposition. Thus, a judicial procedure founded on evidence, due process, and deliberation of a reasonable number of judges, is transformed into a political procedure, wherein hundreds of commissioners, without having seen the evidence (evidence not infrequently set forth in a Record of 500 plus pages), heard the pleadings, freed from rules of due process and the demands for deliberation, will settle cases. Charles Hodge spoke for his concerned Old School brethren (including Thornwell) when he warned “a body consisting of upwards of two hundred members is not a very suitable court of appeal” and “Most men would be as willing to have a cause in which they were interested, decided by ten good men as by a hundred.”

The current form of the SJC was framed precisely to overcome this defective scheme. In 1993, the Twenty-first General Assembly established an “Ad Interim Committee on Judicial Procedures to review our current General Assembly judicial procedures, evaluating their comparative strengths and weaknesses. . . . [and report the] results of its findings, complete with recommendations, if any, for further perfection of our judicial procedures.” (M21GA (1993), pp. 121-22.) The AICJP was appointed to represent the breadth of views found in the PCA. It included a former and the then current Stated Clerk of the Assembly, two lawyers (both ruling elders), two seminary professors, and two pastors (Dr. Morton H. Smith, Dr. Paul R. Gilchrist, RE M. Dale Peacock, RE W. Jack Williamson, Dr. Paul Fowler, Dr. T. David Gordon, TE David F. Coffin, and TE LeRoy H. Ferguson). Given the diversity of views represented on the committee, many predicted that the labor would result in a proposed Committee report and a minority report, simply reproducing the divisions troubling the Assembly itself.

For three years the AICJP labored and finally in 1996 it reported to the 24th General Assembly. The report included study papers on Scripture teaching (Old and New Testament), on the practice of civil government with respect to judicial proceedings, and on past and current Presbyterian practice with respect to judicial procedures. The Committee also solicited from the church insights gained through practical experience in judicial proceedings through a survey. Further, the Committee thoroughly reviewed the Manual of Standing Judicial Commission proposing important revisions to the Manual.

At the heart of the AICJP’s work, however, was a proposal to resolve the considerable tensions arising from the hybrid form of the SJC—a commission in name—but subject to approval by the Assembly, an Assembly that had not heard and could not debate the case (questions were allowed, but the posing of questions that surreptitiously advanced debate became high art, the object of admiration or disgust, depending upon one’s view of the decision at hand). The AICJP’s report argued, however, that in historic America Presbyterian usage a commission is not a body separate from the Assembly, with delegated powers, acting on its behalf. Rather, a commission is the Assembly itself, exercising its own Christ-appointed powers, determining to act for particular purposes with a more limited number of commissioners.

In relation to this central proposal, the Committee further proposed a series of 10 recommendations that were designed to prevent the new system from being abused. These included:

• the requirement that all Panel members certify to have read the Record of the Case and all briefs submitted before being permitted to deliberate or vote;

• the requirement that all Commission members at the meeting of the full Commission to adopt a decision certify that they have read the Judicial Panel’s proposed decision, all briefs, and those portions of the Record of the Case each one believes is necessary to understand the case before being permitted to deliberate or vote;

• that action on proposed Panel decisions no longer be handled by mail, but at full Commission meetings, with debate and amendment allowed on each part of a proposed Panel decision at the time of adoption by the full Commission;

• that if the SJC itself is seriously divided on a case, a significant minority of the SJC may bring it before the broader Assembly, to be debated by representative members, and accepted or rejected by Assembly vote;

• the adoption of vows to be affirmed by members of the SJC in order to help preserve the Constitutional fidelity of their procedures and judgments;

• to insure procedural accountability, a requirement that the minutes, but not the judicial cases, decisions or reports of the SJC, be reviewed annually by the Committee on Constitutional Business, with the possibility that “exceptions” taken may be ground for the Assembly to direct the SJC to rehear a case;

• that the SJC manual, establishing as it does principles of substantial due process, come under the direct control of the General Assembly as more broadly constituted, as a part of the Rules of Assembly Operation; and

• that there be standards for judicial review to formally direct the higher courts in their Constitutional calling, helping to insure that in judicial review the integrity of our system of graded courts not be violated.

To the astonishment of many, all the proposals were unanimously approved by the Committee. After a free-wheeling informational meeting on the report, the Assembly formally took the matter up after a pre-established 1 hour of debate. The report was adopted by nearly unanimous vote the Assembly (791 in favor to 17 opposed). At the Moderator’s suggestion the Assembly rose, sang the “Doxology”, and a prayer of thanksgiving was offered by the Moderator. He said: “I feel as if this is a major, major event in the PCA. I sense that the entire Assembly is impressed that this committee came back with a unanimous recommendation. . . . that could only be the work of the Holy Spirit.”

The AICJP’s proposed BCO amendments were adopted by Presbyteries 45 to 5 and 40 to 1. The next Assembly ratified the judgment of the Presbyteries by voice vote. The PCA adopted these judicial procedures as best adapted to provide justice for the parties involved. Further, the procedures adopted provided the perception of justice to the Church, whose confidence it must inspire if its spiritual ministry is to be received and made effectual (Preliminary Principles 8). For 17 years the Commission in this form has served the PCA well.

At the next Assembly however, Overtures are proposed that would take the denomination back to a clearly untenable position. The arguments proposed in their favor, nine or so brief “whereas” paragraphs, hardly address, let alone refute, the mature judgment exercised in the adoption of our current procedure. Assertions provided, in some cases, would just as reasonably prove the opposite of what is intended (e.g., the comparison to presbytery judicial procedures). Others are merely statements of fact without argument, or are so qualified by the use of “may” as to play no substantial role in thoughtful deliberation. The last “whereas” even suggests that the amendment ought to be adopted, because the Assembly may wish to violate the BCO in chapter 39. It should be carefully noted that the provisions for review of that chapter apply just as certainly to the broader Assembly itself (under the new proposal) as they do to the SJC now.

The 42nd General Assembly, reminded of the care with which we have come to our current procedures, and their fruitful employment of the past 17 years, must not let the passions aroused by disagreement over one case, return the judicial procedures of the PCA to a proven path of division and injustice.