The General Assembly Permanent Judicial Commission of the Presbyterian Church (U.S.A.) heard cases in San Diego, California, last Friday, February 27, and published the decisions yesterday.  Of the three cases, one is related to a higher-profile news item, but the decision does not settle the case, just overturns a specific ruling and the case is remanded back to the Synod PJC for trial.  However, as with most GAPJC decisions there is something in each of these decisions to interest us polity wonks.

I will start with the better known of the three cases so casual readers can get the main point and move on to other reading.

219-08: David Bierschwale, David Lenz, and Carol Shanholtzer v. Presbytery of the Twin Cities Area
Bierschwale et al. v Presbytery of the Twin Cities Area is a remedial case that derives from the complaint to the PJC of the Synod of Lakes and Prairies about the procedures the Presbytery of the Twin Cities Area followed in restoring Mr. Paul Capetz to the exercise of his ordained office.  A lot more detail can be found on that last link and the links it contains, but here are the important facts for understanding the GAPJC decision:

Mr. Capetz was ordained a Minister of Word and Sacrament in 1991 but following the passage of G-6.0106b, the “fidelity and chastity” statement, asked, as a matter of conscience, to be released from the exercise of his ordained office in 2000.  The Presbytery of the Twin Cities Area granted that release.  Following the 217th General Assembly (2006) adopting the new Authoritative Interpretation about declaring a departure or scruple Mr. Capetz applied to the Presbytery for restoration to the exercise of his ordained office.  In a meeting with the Committee on Ministry he stated his departure:

“I affirm the Constitutional Questions asked of me at my ordination. However, I have to raise a principled objection or scruple. I cannot affirm G-6.0106b. Nor can I affirm the position of the Presbyterian Church (U.S.A.) on the question of the morality of homosexual relationships.”

At the Presbytery meeting in January 2008 the body took action on three motions.  The first, referred to in the decision as the Departure Motion, was to affirm that his declared departure was not related to an essential of the faith.  The second, the Restoration Motion, was to restore him to the exercise of his office.  And the Third, the Validation Motion, was to validate his ministry teaching at a seminary.

Following the passage of these three motions a complaint was filed with the SPJC alleging the Presbytery acted irregularly in passing these three motions and requesting that they be nullified.  The officers of the SPJC issued a Preliminary Order dismissing the case on the grounds that the relief requested was effectively the removal of Mr. Capetz’s ordination which must be done as a disciplinary case, not a remedial case.  The complainants filed an appeal and amended their complaint asking “the SPJC admonish the Presbytery and order it to refrain from conducting further irregular ordinations, installations, restorations or validations.”

The SPJC decision was issued in August 2008.  It dismissed the case on the grounds that no claim was stated on which relief could be granted.  The case was appealed to the GAPJC.  In the appeal there were twelve specifications of errors.

In their decision the GAPJC sustained only two of the specifications of error:

Specification of Error No. 4: The SPJC erred by not conducting a trial to determine whether there are facts that show: (a) Capetz stated a departure from G-6.0106b and (b) if so, whether that departure was a failure to adhere to the requirements of G-6.0108; and if the facts show that (a) and (b) occurred, whether the Presbytery’s action was irregular.

This Specification of Error is sustained.

Specification of Error No. 5: The SPJC erred by not conducting a trial to determine whether there are facts that would show the Presbytery waived the “fidelity and chastity” requirement of G-6.0106b in considering Capetz as a candidate or applicant for membership in the Presbytery; and if so, whether that action by the Presbytery was irregular.

This Specification of Error is sustained. This case is not remanded for a determination in the abstract as to whether any presbytery may decide that the “fidelity and chastity” requirement of G-6.0106b can be waived for any candidate or applicant for membership in a presbytery.  Rather, the SPJC shall decide only on the basis of the facts of what the Presbytery did with respect to Capetz, and whether that particular action was irregular.

Before I go any further with the analysis of the decision let me remind you of a critical fact — Mr. Capetz never gave up his ordination.  Almost all of the case law, precedents, and AI’s on this subject deal with candidates for ordination and therefore are mostly irrelevant to this case.

The critical section on the GAPJC reasoning says:

Bierschwale, et al. did not allege that there was any procedural irregularity in the manner in which the Presbytery took action on any of the three motions,including the Departure Motion. Any alleged irregularity in the process by which motions such as the Departure Motion are adopted is reviewable by the SPJC under the holding of Bush. In this case, Bierschwale, et al. complained that the Presbytery acted irregularly in adopting the Departure Motion because Capetz’s statements to the Presbytery were a serious departure from essentials of Reformed faith and polity and not a proper exercise of freedom of conscience under G-6.0108b.

This Commission finds that Bierschwale, et al. have stated a claim upon which relief may be granted, and the SPJC should determine whether Capetz’s statements and the Presbytery’s adoption of the Departure Motion are in violation of G-6.0108. The SPJC should address whether Capetz’s statements were a proper exercise of freedom of conscience under G-6.0108, and whether the Presbytery properly approved them in the Departure Motion. The standards for determining whether departures from essentials of Reformed faith and polity are permitted include whether a departure deviates from the standards in the Book of Confessions and the Form of Government, infringes the rights and views of others, or obstructs the constitutional governance of the church. (G-6.0108 a, b.) The trial of this case should include a presentation of evidence to determine whether these three requirements of G-6.0108 have been met.

So the Departure Motion is reviewable and a claim has been stated on which relief my be granted, and in a unanimous decision the GAPJC sends the case back to the SPJC for a hearing on the facts.  And yes, there is a reference in there to the previous decision 218-10 – Bush v. Pittsburgh.

The Decision section makes interesting reading, even though this particular decision will have limited importance.  (An appeal from the new SPJC hearing could set the landscape for deciding departures.)  As I quoted above, the part on the Departure Motion is the pivotal part and the other ten errors not being sustained mostly hinge on the fact that Mr. Capetz was already ordained or that they were related to the Restoration Motion.  It was po
inted out that if Mr. Capetz’s restoration were to be challenged based on his lifestyle that must be done as a disciplinary case, not a remedial case.  Further, the decision says that the “undisputed record” of the case does not contain a basis for disciplinary process against Mr. Capetz, but that a disciplinary case could be filed based on other information regardless of the outcome of this case.

For the polity wonks, a couple more items of interest: 
1)  The additional requested relief in the amended complaint, the request to tell the Presbytery to not do this any more, was not sustained.  As was made clear in Bush, there can be no blanket prohibition or standards but each case must be dealt with on its own merits.

2)  There is an interesting and important footnote.  I will let it speak for itself:

The question of whether the type of examination contemplated by G-11.0402 is required for restoration has not been raised in this case, is not before this Commission, and need not be addressed by the SPJC on remand. [Note: You probably know already but G-11.0402 is the section on examining ministers for membership in the presbytery.]

3)  This decision specifically points out that if anyone is looking to this case to see if the 2008 AI overruled Bush you can forget that.  Neither the AI nor Bush are related to the restoration to ordained office.

4) I am a little surprised that throughout this decision I did not find a reference to the 1992 decision 205-05 Sallade, et al. v. Genesee Valley Presbytery.  This older decision is one of the very few that specifically deal with call standards for previously ordained individuals.  As that decision says: “this commission holds that a self-affirmed practicing homosexual may not be invited to serve in a Presbyterian Church (U.S.A.) position that presumes ordination.”

Possible reasons for not referencing Sallade are numerous.  Maybe the most obvious is that the current case dealt with validation of ministry while the previous case was about a “position that presumes ordination.”  So there are questions of call process and nature of the ministry that separate these.  It could have been an issue that the AI or G-6.0106b were not in affect then since those deal with ordination, but Sallade depends on the Definitive Guidance of 1978 which was in full force and effect when Mr. Capetz was examined, having not been removed until the 218th GA in June 2008.

So, this is just another step on the journey for this case.  The complainants will have their day to present the facts on certain of their points.  The case is remanded back to the SPJC for trail on the issues in specifications 4 and 5 only.  We will see where it goes from there.

219-06: Hyung K. Yun, Yoon Soo Kim, Young Yoon Kim, Kwan Young Lee, Seung G. Ahn, In Bae Chun, Richard Yun, and Kee Ho Lim v. The Session of the Korean United Presbyterian Church of New Jersey.
This is a remedial case based on a complaint filed by members of the church regarding two congregational meetings in October, 2005.  There were allegations made about irregularities in electing officers related to the nominating committee process and questions about the membership roles and who could vote at the meetings.

The Presbytery of Newark PJC issued a May, 2006, decision “reciting all parties’ acknowledgment that irregularities and delinquencies had occurred and stating that all parties had agreed to six specific remedies. The PPJC found that the church officer nominating committee had been properly formed. Those persons elected at the congregational meeting were later ordained and installed and have completed their terms of office or have resigned.”

Despite the decision saying “all parties had agreed” the PPJC decision was appealed to the PJC of the Synod of the Northeast which dismissed the case on the grounds that there was no basis for an appeal.  That decision was appealed to the GAPJC which previously ruled that there were grounds for appeal and the case was remanded back to the SPJC.  In April 2008 the SPJC ruled that the PPJC had erred in accepting the case because the complaint was made against the nominating committee and congregation which are not governing bodies.  That decision was appealed back to the GAPJC.

In this decision, the GAPJC found:
1)  The PPJC acted correctly in not invalidating the election and besides, that specification of error is now moot since the officers elected are no longer serving.
2) The PPJC did properly consider all appropriate evidence in the case.  Furthermore, to complain that the decision was “unfair and unjust” goes against the fact that all parties agreed to the remedies.
3)  The SPJC did err in its decision that the PPJC should not have accepted the case to the extent that in addition to claims against individuals and the congregation there were claims against the Session that should have been heard.

Bottom line:  The previously agreed to remedies are to be enforced.

For the polity wonks the most interesting part is a concurring opinion signed by three members of the GAPJC.  This opinion serves to point out a potential problem in PC(USA) polity related to deacons.  They note that in 1997 Book of Order section G-6.0403, regarding the organization of deacons, was amended to add the “b” paragraph permitting deacons to be actively serving on a “commissioned” basis without the organization of a Board of Deacons.  The previously existing section G-14.0223 about the composition of the nominating committee was never adjusted for this possible circumstance.  Should we watch for this “housekeeping” Book of Order amendment coming soon?

219-07: The Presbyterian Church (U.S.A.) through the Presbytery of Wyoming v. Gordon R. J. King.
This is a 10 to 5 decision related to a disciplinary case filed against Mr. King.  If you want the detailed history you can read the GAPJC decision, but in October, 2006, the PPJC filed its Final Decision.  Mr. King appealed this decision to the SPJC and when they did not sustain any of his specifications of error he appealed again to the GAPJC.

This case is interesting because it revolves around the Presbytery’s Standard on Sexual and Ethical Conduct and whether the facts in the case match the standard.  The GAPJC decision says

The application of a local standard for conduct (i.e., the Standard) does not relieve an appellate body of the obligation to determine whether that or any other legal standard has been properly applied. That determination is a question of law, not a question of fact.

It then goes on to overturn Mr. King’s conviction on the basis that the added “required” consideration of “proof of misuse of authority and/or power” was not present.  As I read this, the implication of the “required” is that it is part of “any other legal standard.”

This would be the implication of the Dissent which says,

The undisputed facts match specific examples of the offense…contained in the charge on which King was found guilty listed in item number five of the Presbytery’s Standard

The Dissent goes on to say:

The SPJC decision includes a concern that this standard might be ambiguous. However, our task in this disciplinary action is not to critique the Standard as written by the Presbytery. Our task is to determine whether there is any basis for the PPJC to conclude that the facts
in the case constitute a violation of the Standard. We cannot substitute our legal conclusion for that of the PPJC unless we can find that there is no basis for the decision, based on a clear error in matching the facts to the offense charged.

The PPJC decision is overturned apparently based upon “other legal standard[s]” even though the presbytery’s standard was apparently met.