The Permanent Judicial Commission of the General Assembly of the Presbyterian Church (U.S.A.) heard appeals in three cases last Friday, October 30, and yesterday published their decisions in the three cases, all of which were unanimous.
While the two decisions dealing with ordination standards were highly anticipated, and one of those does finally clarify a point in the PC(USA) ordination process, it is my assessment that for anyone following the polity closely they would not be surprised by the decisions handed down. And while this closes the book on two of these cases the third decision does explicitly anticipate the possible continuation of the judicial proceedings.
This first one is unlike the other two…
In remedial case 219-12 Phinisee v. Presbytery of Charleston-Atlantic as you read through the history of the case it begins to sound like a comedy of errors. Unfortunately, for anyone who has served on a Committee on Ministry for any length of time several of the aspects begin to sound too familiar.
In this case the church that the Rev. Phinisee was pastoring developed a conflict in the congregation which they were trying to work through with a consultant and the COM. The pastor and session requested an Administrative Commission, the COM wanted to handle the process themselves. So far fairly standard.
The issues of the case revolve around 1) a request in writing by three elders to the moderator of the session (Rev. Phinisee) to call a session meeting and Rev. Phinisee not calling the meeting and 2) the COM calling a session meeting to call a congregational meeting to dissolve the pastoral relationship with Rev. Phinisee. This happened in December 2006 and the Rev. Phinisee filed his remedial complaint with the Synod PJC in early January 2007. The case was further complicated by the Synod PJC failing to act within 90 days and the complainant then asking the GAPJC to assume jurisdiction. The GAPJC then told the SPJC to get moving. The SPJC did and basically found that everything was done according to process.
The appeal to the GAPJC had six specifications of error of which the GAPJC did not sustain five of them. This included the error that the Presbytery should have appointed an Administrative Commission with the GAPJC noting that the appointment of a commission is “a discretionary function that resides solely with the presbytery.” Where the GAPJC did sustain the error is in the SPJC’s finding that the congregational meetings were properly called. In brief, they noted that a COM does not, of its own authority, have the power to call a special session meeting (which in this case called the special congregational meeting). The presbytery may delegate that to the COM but the record is clear in this case that they had not. The GAPJC also noted that the Rev. Phinisee was at fault as well for not calling the session meeting after receiving the legitimate written request from three elders. Due to the passage of time no direct relief could be granted in this case but the GAPJC did order the Presbytery to establish an administrative commission to review policies and procedures.
In closing the GAPJC says:
This case demonstrates the consequences of failing to follow the Book of Order for calling meetings and dissolving pastoral relationships. The flaws of the COM procedure were exacerbated by the failure of the Synod to respond in a timely manner to Phinisee’s grievances. Justice delayed was an impediment to the process and a fair proceeding throughout the course of this matter. Governing bodies are reminded that “all participants are to be accorded procedural safeguards and due process” (D-1.0101).
Case 219-08 – Bierschwale, Lenz and Shanholtzer v. Presbytery of the Twin Cities Area is a remedial case related to the process for restoring the Rev. Paul Capetz to the exercise of ordained ministry. Without covering the full history, Mr. Capetz had, at his request, been released from the exercise of ordained ministry because of his conscientious objection to the “fidelity and chastity” section G-6.0106b. With the 2006 GA Authoritative Interpretation allowing the declaration of an exception he requested, and was granted by the presbytery, his restoration to the exercise of ordained office.
The complainants filed their case with the SPJC on the grounds that in granting Mr. Capetz’ declared exception the presbytery failed to “adhere to the essentials of the Reformed faith and polity under G-6.0108.” The SPJC initially dismissed the case on the failure to state a claim upon which relief could be granted but an earlier GAPJC decision sent it back to the SPJC for trial on one of the three points, the specifics of declaring an exception. In their decision in the trial the SPJC found that the presbytery had properly carried out the process in G-6.0108 and were correct in their decision to grant the exception. However, in conducting the trial the SPJC took the unusual step of excluding the public from the proceedings.
At this point is it important to note that the Constitutional standards, the GA Interpretations, and the previous GAPJC cases as they apply to process are nearly unanimous in their application to the ordination process only. The declaration of an exception is something that is normally considered when an individual is being examined for ordination. In addition, the application of these standards in the call process of a previously ordained individual is limited by the Sallade v. Genesee Valley decision to a “position that presumes ordination.” Mr. Capetz was previously ordained and seeking validation of ministry in a position teaching at a seminary. In short, this case does not easily fall under any of the established polity and interpretations. As has been pointed out in such cases before, if there is a question about Mr. Capetz’ manner of life under G-6.0106 that would be handled as a disciplinary case.
In their decision the GAPJC noted that all parties agree that the presbytery process was unique to this individual. Consequently, the GAPJC concurred with the SPJC that granting the exception did not “infringe on the views of others and did not obstruct the constitutional governance of the church.” Further, “There is nothing in the record to show that he [Capetz] has taken any action that could be deemed to be an act in violation of G-6.0106b.” and “This Commission reaffirms what it previously held in Bierschwale I that Capetz’ future conduct is not at issue in this case.” The GAPJC did sustain the specification of error that the SPJC trial should not have been closed under the PC(USA) open meetings policy. (The proceedings in a remedial case may be closed only for reasons of maintaining decorum.)
With that background we come to the third decision which revisits much of this under other circumstances…
Remedial case 219-11 – Naegeli, Stryker and Gelini v. Presbytery of San Francisco does deal with a candidate in the ordination process.
In this case Ms. Lisa Larges, who has been in the process for ordination as a Minister of Word and Sacrament for 20 years, was certified ready to receive a call with a declared exception by San Francisco Presbytery.
A couple of polity notes at this point. The first is that previous GAPJC decisions have generally held that candidates that can not affirm the standards for ordained of
fice in G-6.0106 should not even be in the process. With the 2006 Authoritative Interpretation explicitly introducing the declaration of an exception it has been ambiguous at what point the presbytery should act upon the declaration. The second item to note is that the status of “certified ready” is one usually conferred by the Committee on Preparation for Ministry and need not be voted upon by the presbytery as a whole. Both of these are noted in the decision.
To briefly summarize the history the CPM voted 12-9 on December 5, 2007 to certify her ready for examination for ordination pending a call. At the January Presbytery meeting both a majority report for certification and a minority report to remove her from the rolls were presented and by a vote of 167-151 the Presbytery accepted the majority report. In the remedial case heard by the SPJC that Commission rescinded the status of “certified ready” but did not rule on the declaration because an examination had not taken place. (Ms. Larges was not present and therefore not examined at the January 2008 Presbytery meeting.) (And in another side note, if you read the story as currently posted on the More Light Presbyterians web site you will note that they have the timing off — the original AI was from the 2006 GA and it was reaffirmed by the 2008 GA. The CPM and Presbytery actions took place before the 2008 GA.)
The GAPJC grouped the nine specifications of error into four groups. For the two related to the actions of the Presbytery, neither were sustained. The GAPJC agreed that the proper time for declaring an exemption was at the time of examination for ordination. Part of the reasoning was that the examination was the time when other waivers or exceptions were considered.
The GAPJC partly sustained one of the two specifications of error related to Constitutional Interpretation of G-6.0106b. While noting that an examination had not formally taken place, they did note that in the action the Presbytery had followed they had not completely fulfilled the requirements of G-6.0108 for the policy and process of declaring an exception.
There were two specifications of error regarding the actions taken by the CPM and one of those was sustained in part. On one level, actions of a committee of presbytery are not reviewable by a higher governing body since the principle of review applies to governing bodies themselves. However, as noted in this case, when the action of a committee is the action of the governing body acting through the committee, in this case the CPM, it is reviewable. However, the GAPJC concurred with the SPJC that while the CPM presentation to presbytery was “not as clear as it could have been,” there was no misrepresentation.
Finally, of the three specified errors related to the Procedures of the SPJC, two were sustained. One related to the handling and admission of certain confidential documents in what was referred to as “Envelope B.” The GAPJC decision notes that there are procedures for handling confidential and sensitive material, that the material need not be made public, but that at least the substance of the material (documents or testimony) must be disclosed to all parties even if it is only offered but not admitted to evidence. If offered but not admitted it still becomes part of the record of the case. In the point that was not sustained it was agreed that it was acceptable, but not necessarily advisable, to not have a verbatim transcript of pre-trial hearings.
So the result is that the previous action of the Presbytery has been rescinded but the Presbytery is now free to examine Ms. Larges for ordination, including in the examination her Statement of Departure from G-6.0106b. This is expected to happen next week.
One of the points that the complainants wanted was for the SPJC to instruct the Presbytery that G-6.0106b was a standard of the church and a declared departure from that was not permissible. Both the SPJC and the GAPJC declined to do so.
However, while emphasizing that each examination must be handled on a case-by-case basis, as part of the decision the GAPJC took pains to reiterate previous decisions about the process and procedures of the ordination process and examination. They included an extended section from the Bush decision that begins:
It would be an obstruction of constitutional governance to permit examining bodies to ignore or waive a specific standard that has been adopted by the whole church, such as the ‘fidelity and chastity’ portion of G-6.0106b, or any other similarly specific provision. On the other hand, the broad reference in G-6.0106b to ‘any practice which the confessions call sin’ puts the responsibility first on the candidate and then on the examining body to determine whether a departure is a failure to adhere to the essentials of Reformed faith and polity and the remainder of G-6.0108a with respect to freedom of conscience.
And the Commission also cited additional cases on this aspect including Buescher v. Olympia, and Wier v. Second Pres.
The Commission also made a point of cautioning against acting too hastily to ordain so as to preclude a judicial challenge to the way the examination was handled. Again, there was a good length quoted from a previous case, this time McKittrick v. West End Pres., which includes the caution:
[When] an installation occurs immediately following the examination process, there may be no practical opportunity for a protesting or dissenting party to seek a stay of enforcement of the decision to install. The Presbyterian custom of conducting business ‘decently and in order’ should not be converted into a race in which the swift prevail.
On close reading I get the distinct impression that they are trying to send a message. Whether that message is “be sure you sweat the details because this will be reviewed” or whether it is “we aren’t saying this in as many words but remember G-6.0106b is on the books” will have to be seen. (And maybe they are saying both.) But it is important to remember that up to, and including, these decisions the GAPJC has ruled unanimously but really only on technicalities. The substance and handling of a declaration of departure has not been formally ruled upon. If the exception is granted in this case, and a new remedial case is filed there is the very real possibility that it would work its way through the church judicial process parallel to the church taking another vote on G-6.0106b that might remove that section and render the judicial cases moot.
Just another day as we strive to be “reformed and always being reformed according to the Word of God and the power of the Holy Spirit.”