Last weekend the General Assembly Permanent Judicial Commission (GAPJC) of the Presbyterian Church (U.S.A.) heard a remedial case brought against the Presbytery of New York City (PNYC) concerning details and process related to their Gracious Dismissal Policy (GDP). The complainants filed the case against the Presbytery concerning irregularities in the Gracious Dismissal Policy shortly after it was adopted. The Synod PJC agreed with the complainants and the Presbytery appealed it to the GAPJC.
The Executive Summary is that the GAPJC sustained none of the specifications of error in the SPJC’s decision, the GDP has been rendered null and void, and this decision has given other presbyteries something to think about. The first specification of error dealt with the claim that the PNYC GDP “conferred a unilateral right on a congregation to depart from the Presbyterian Church (U.S.A.).” The second was that the GDP “does not give effect to the Trust Clause.” Specifically, PNYC had specified a formula in their GDP for compensation for property and the GAPJC reaffirmed that this must be determined on a case-by-case basis. The third specification of error related to dismissal simply because there were theological differences. The GAPJC said:
It is the nature and weight of theological difference that is critical in a justification for dismissal. The mere presence of theological differences does not preclude coexistence within the PC(U.S.A.).
The fourth specification may be, from my experience, the one with the most implications. It was in regard to a congregation in schism and the GAPJC responded that “It is clear what a presbytery must do when confronted with a property issue… a presbytery is obligated to serve the interests and guard the rights of the ‘true church
within the Presbyterian Church (U.S.A.).” The final error related to PNYC allowing churches to retain their records.
OK, now let’s drill down into the detail.
In the matter of Presbytery of New York City Appellant (Respondent) vs. Ruling Elder Mildred McGee, Teaching Elder Flora Wilson Bridges, Ruling Elder Douglas Howard, Teaching Elder Lonnie Bryant, Ruling Elder Daniel Amiot Priso, Teaching Elder Phillip Newell, Ruling Elder Emmanuel Gouad Njayick, Teaching Elder George Todd, Ruling Elder Estella Taylor, and Ruling Elder Norita Chisolm, Appellees (Complainants) in Remedial Case 221-08 the GAPJC did not sustain any of the five specifications of error the Appellant charged regarding the trial decision before the Permanent Judicial Commission of the Synod of the Northeast.
The case results from the PNYC adopting a Gracious Dismissal Policy on January 29, 2013 by a vote of 56 in favor and 49 against. The complainants filed a remedial complaint with the SPJC on February 13, 2013 and along with the complaint a request for stay of enforcement, which was granted. The complaint was filed specifically in regards to the adoption of the GDP and not in connection with the application of the GDP in the dismissal process of a church as was the case in the Tom and Anderson cases (noting that the latter was a complaint to a SPJC which was settled in mediation).
The complainants listed seven charges in their complaint and in the decision of the SPJC five of the seven charges were sustained. There is a direct relationship of these five sustained charges in the SPJC decision to the five specifications of error in the GAPJC decision so I will not dwell on those any longer. The respondent appealed the SPJC decision to the GAPJC.
The first specification of error by the respondent was that “The SPJC erred in constitutional interpretation by holding that the Presbytery GDP conferred a unilateral right on a congregation to depart from the
Presbyterian Church (U.S.A.)…” This stems from a number of details of the GDP and a general sense in the GDP that if a church fulfills a certain set of steps it will be dismissed. In particular, there is no requirement that the presbytery votes to dismiss the congregation. The argument was put forward that since the presbytery approves the GDP that counts as their approval of any and all dismissals that follow the GDP.
This particular requirement is specifically addressed in a set of additional comments in the SPJC decision about the challenges of decision making in a narrowly divided presbytery:
We are sensitive to the difficult situation in which the PNYC finds itself and appreciate its sincere desire to deal with that as well as it can. [snip] Considering that the presbytery mustered a majority vote, however slim, for the GDP under consideration in this case, and with the case-by-case requirement satisfied in these cases, it ought to be possible for the PNYC to reach agreement on approval for such dismissal arrangements.
The GAPJC echoes this comment in their writing on the first specification of error:
While it may be understandable for a presbytery to develop a policy dealing with congregations considering dismissal with the intention of avoiding costly litigation, the GDP at the center of this case breaches the bounds of the Constitution of the PC(U.S.A.). [snip] A final vote by the PNYC is purposefully denied in the GDP in order to avoid divisive and argumentative response to a dismissal request, as admitted by the PNYC in the record and during arguments.
In responding to, and not sustaining, this specification of error the GAPJC finds three constitutional irregularities with the PNYC GDP: 1. The GDP is “self-executing” having the congregation jump through three hoops and meet the payment requirements in the GDP and dismissal will be granted. 2. The last of the three hoops is a congregational vote making that the effectual step of dismissal. And 3. “that a predetermined, formulaic mechanism runs counter to constitutional provisions for mutual dialogue and particular discernment.”
The GAPJC decision notes that the Constitution at G-3.0301a and G-4.0207 “reserves as a direct act of the presbytery the authority to dismiss a church,” thus arguing against the first two constitutional issues. Furthermore, case law helps clarify the latter two issues. In Sundquist v. Heartland Presbytery (219-03) the GAPJC affirmed “Withdrawal from the Presbyterian Church (U.S.A.) is not a matter that can be considered at a congregational meeting.” In the case of formulaic application in polity matters the GAPJC ruled against that in ordination matters in the case of Larson v. Los Ranchos Presbytery (221-04).
The second specification of error was that the SPJC had erred regarding its decision “that the GDP does not give effect to the Trust Clause.”
This issue relates back to the various formulas incorporated into the GDP to determine payments to the presbytery for dismissal and specifically a payment of 10% of the assessed value of the property. The GAPJC decision reiterates the findings in the case of Tom v. San Francisco Presbytery (221-03) and continues on to say:
Under the facts of this case, the PNYC argues that the requirement of due diligence under the Trust Clause has been met by adopting a formula for determining the value of the property at the time of enacting the GDP by the PNYC. However, the fiduciary nature of the Trust Clause requires an individual determination of the facts and circumstances related to dismissal of any church rather than a set formula, which may not be appropriate to the particular circumstances of a congregation. As stated by the SPJC, there must be an “individual assessment and valuation of the church’s unique situation, finances, history, spiritual needs and financial needs” when considering dismissal.
In addition, the exercise of the fiduciary duty must be carried out during the course of discernment of a particular church’s request for dismissal. A formulaic predetermination fails to account for the individualized requirement demanded by proper application of the fiduciary duty incumbent upon a presbytery.
Thus, the presbytery, in exercising its authority to perform due diligence under the fiduciary duties required by the Trust Clause, is required to make an appropriately timed, individual, unique determination of the circumstances applicable to any church requesting dismissal. In accountability to the PC(U.S.A.) as the beneficiary under the Trust Clause, such determination must be reasonable and based on documented facts.
With the third specification of error we begin to get into fresh territory with this decision, that being polity areas without substantial previous case law or interpretations. The specification is: The SPJC erred in constitutional interpretation by holding that the GDP did not provide specific guidance regarding discernment of theological differences as a basis for dismissal, in violation of F-1.0302a and F-1.0301.
The GAPJC begins their brief response to this specification saying:
The PNYC adopted the GDP “to provide for reconciliation and resolution within the Presbytery of New York City” and to permit their congregations to be dismissed to join another Reformed denomination for theological reasons. The policy did not seek reconciliation and resolution as the initial step in the process (G-4.0207). The policy accepts notice from a congregation of perceived theological differences as sufficient for dismissal without concern for mutual discernment and dialogue (Sundquist). It is the nature and weight of theological difference that is critical in a justification for dismissal. The mere presence of theological differences does not preclude coexistence within the PC(U.S.A.).
The section concludes with this:
The SPJC rightly concluded it was important that the PNYC “ensure that dismissal is the only viable remedy for the relevant theological differences.”
The fourth specification of error also helps to clarify an area that seems to be an occasional but potentially murky situation – the deference to be shown to a minority who indicate their loyalty to the PC(USA). The specification of error concerned “that the GDP did not provide an opportunity for the minority of a church in schism to retain the
property of a congregation.”
The GAPJC decision notes that in the formulaic dismissal process adopted by the PNYC there was no consideration of G-4.0207 and the determination of a true church in the group wishing to stay with the PC(USA). The second paragraph of this response puts this in more general terms:
It is clear what a presbytery must do when confronted with a property issue. Under G-4.0207, a presbytery is obligated to serve the interests and guard the rights of the “true church within the Presbyterian Church (U.S.A.),” regardless of who is in the majority of any session or congregational vote. The presbytery shall determine if one of the factions is entitled to the property because it is the “true church within the Presbyterian Church (U.S.A.),” majority notwithstanding. Any negotiation and decision about the disposition of the property must consider this interest of the true church. The GDP failed to comply with G-4.0207.
More on this in a moment.
The last specification of error is a bit of a technicality in my opinion, but the PNYC GDP allowed the church to retain its records. The GAPJC succinctly notes that upon dismissal the church ceases to exist as a PC(USA) council and the presbytery takes possession of the records as the successor council. The church may retain copies for historical purposes.
As I read this decision the interpretations for errors 1, 2 and 5 seems to me to reinforce previous interpretations rather than really breaking new polity ground. It is primarily a reiteration and application of constitutional requirements and polity interpretations that have been written on before. To me, these sections are consistent with the interpretations and practice in previous cases.
I would note a polity discussion I was involved in since the release of this decision stemming from the section regarding error 1. In PC(USA) polity there are congregational meetings and then there are meetings of the congregation. This may seem a minor semantic difference but under our polity there is a big difference. Section G-1.05 of the Form of Government defines and controls Congregational Meetings with subsection G-1.0503 regulating the business that may be transacted at them. As the 218th General Assembly said – and is subsequently quoted in the Sundquist decision and this one – “Withdrawal from the Presbyterian Church (U.S.A.) is not a matter that can be considered at a congregational meeting.” So what is going on when a congregation has a meeting to vote to accept the dismissal terms? If we keep reading in Sundquist it says:
This does not mean that a congregation is prohibited from requesting dismissal. However, it is the presbytery (or its duly appointed administrative commission or its Committee on Ministry) that has the responsibility to consult with the members of a church about dismissal (G-11.0103i). The presbytery is required to afford all persons affected by a dismissal notice and an opportunity to be heard on the subject (G-9.0503b(2); Item 04-20). These consultations (which may be in the form of listening sessions, hearings or other consultations) are for the benefit of informing the presbytery as it considers a request for dismissal, but are not meetings at which any business of the congregation may be conducted…
So the meetings to discuss and vote on the terms of dismissal are meetings of the congregation held in conjunction with the presbytery for the purpose of consulting with the presbytery on this particular matter. For most GDP’s that I am familiar with, this meeting considers terms already negotiated and not subject to change at that meeting. In my experience the congregation may vote to select between different predetermined financial arrangements but no new terms or options may be proposed in the course of the meeting.
In summary, a Congregational Meeting is a specific constitutionally defined meeting usually called by the session for the congregation to transact certain business named in the constitution as the sole right and responsibility of the congregation. There are also meetings of the congregation (or whatever you would like to call them) which may discuss other items but may only transact business in a manner that is in cooperation with the presbytery which, as noted in the present decision when it quotes a 1991 GA Authoritative Interpretation, “Nowhere is written that the congregation is permitted to make the decision that the presbytery commits itself in advance to confirm.”
OK, that was a bit of a polity wonk discussion to distinguish the two types of meetings but 99.99% of the church will still consider both types of meetings as the same thing. C’est la vie. And other polity wonks are invited to try their hand at playing this game and giving their distinctions between these meetings. (And thanks to my correspondents for helping me refine this discussion.)
Returning to the specifics of this decision… In the interpretation of errors 3 and 4 the decision does not really shake things up but I see it as a call for presbyteries to examine their own GDP’s or at least to be careful to properly address these items in the negotiated settlement with a church.
For example, it appears advisable that presbyteries be intentional about considering the question of whether theological differences are great enough to warrant dismissal. It may even be a reasonable practice to be so specific about this as to spell it out explicitly in the negotiated agreement. I am not sure that it is necessary to take this to the extreme and hold a specific vote on this point much as a specific vote is required to certify that the body to which the church is being dismissed is another qualifying Reformed body. But it may be advisable to specifically list steps that have been taken to attempt reconciliation and resolution as the initial steps in the process, possibly in an appendix to the agreement or as part of a timeline presented in the introduction to the report.
Similarly, in light of this decision it now seems advisable that a presbytery be intentional and transparent about its due diligence when it comes to a congregation with a PC(USA)-loyal minority. Again, investigation, discussion and documentation appears to be the order of the day in leading up to any negotiated settlement and that settlement must “serve the interests and guard the rights of the ‘true church within the Presbyterian Church (U.S.A.),’ regardless of who is in the majority.” This decision does say that “The presbytery shall determine if one of the factions is entitled to the property because it is the ‘true church within the Presbyterian Church (U.S.A.).'” I will venture a bit of pushing the polity envelope here and suggest that the determination be made on a case-by-case basis as other property decisions are but that the “true church” must be properly provided for. Retaining the property with the PC(USA) may be the right thing to do, but mission may dictate otherwise. Is it best to continue the congregation in that location or has the neighborhood changed? Is the property of size and condition that it can be maintained and utilized by the PC(USA) group? While it needs to be documented retaining the property may not be preferable to another arrangement that provides for that group. And please realize that I write this from a distinctly urban multicultural perspective – your situation may be different and retaining the property for a group in a rural more culturally homogenous setting may more often than not be the best thing to do.
Let me suggest that the bottom line on this decision, as on other decisions, is that there are certain hard and fast items a presbytery must consider in dismissals. In this case it is that the church is dismissed by action of the presbytery, that the property must be properly considered in light of the Trust Clause, that theological differences must be considered and reconciliation attempted and if appropriate an inquiry into whether it is a church in schism and a “true church” can be identified and cared for. While not mentioned in this decision, the GAPJC in other decisions has noted that the presbytery’s authority is broad as long as it is guided by the church’s constitution and polity. With this in mind, presbytery decisions should be well reasoned and documented, rooted in the circumstances, context and mission of that particular presbytery while being guided by PC(USA) polity.
So that is what I gather from this particular GAPJC decision. Your mileage may vary.
At this point let me make an editorial note that I will be going into GA mode for a while. I am hopelessly behind on the headlines and probably will not get caught up on those. Most of my attention for the next couple of months will be related to the Assemblies, beginning with the Church of Scotland later this week, and then I will fall back into more general items later in the summer. For the Assemblies, it promises to be an exciting few months so we will see what develops. Stay tuned…