A TRINITY OF EVIL: THE PC(USA)'S PERMANENT JUDICIAL COMMISSION SPEAKS

Note: This post is a statement of opinion of the author. It does not reflect, nor should it be construed to reflect, the opinions or positions of Forks of the Brandywine Presbyterian Church, The New Wineskins Transitional Non-geographic Presbytery, the Evangelical Presbyterian Church, or the New Wineskins Association of Churches.

That loud noise you just heard was the PC(USA)'s Permanent Judicial Commission (PJC) slamming the door on congregations that might want to faithfully follow a call from God to move to another part of His vineyard.

There is now a trinity of evil emanating from the denominational home office: the two Louisville Papers are complemented and completed by Sundquist, et al v. Heartland Presbytery. In so doing, the GAPJC abandoned its role as an independent judicial body and became nothing more than a mouthpiece for the bureaucrats in Louisville. In fact, the Sundquist decision appears to have been written by the very same pen that wrote the other two.

Defying the long-standing principle that a court of review ought answer only the questions before it, the GAPJC used a case about a very narrow question of jurisdiction of an administrative commission to amend the Book of Order so as to support the bureaucracy. That they did so by abandoning an "essential tenet" of American constitutional law ought be no surprise in a denomination that cannot say what it believes other than that property and money are the denominational sine qua non. In fact, the very 2008 action of the General Assembly upon which the PJC relies constituted a unilateral amendment of the Book of Order, but that was of no import to Louisville's puppets sitting in Baltimore.

Had the GAPJC limited its decision to Parts I and III of its opinion, it would be subject to hearty disagreement from the proponents of the losing side, but there is some colorable merit to the conclusions reached therein. But the PJC completely abandoned its jurisdiction by adding PART II.

In Part II, the PJC rewrote sections §§ G-7.0304 and G-11.0103i without approval by either the General Assembly or the presbyteries. Its action in so doing appears to be an attempt to give Louisville some ammunition when faced with assertions by congregations that those sections as currently written permit congregations to unilaterally disaffiliate and move to a more faithful denomination.

As I discussed in a series of posts between April 30 and May 14, 2008, the current Book of Order is so ambiguous that it must be read to allow a congregation to leave the denomination on its own initiative. Now, if that issue had been raised in the Synod PJC below, briefed by the parties, and argued before the PJC, the GAPJC could have addressed itself to that question. That was not the case. Instead, the PJC took up the issue sua sponte. And there was joy in Louisville.

Specifically, the PJC held in pertinent part:

". . . G-7.0302 and G-7.0304 limit the business of congregational meetings and do not include the topic of seeking dismissal."

Sundquist at 9. That assertion is patently false. Section G-7.0302 merely defines Annual and Special meetings of the congregation, and provides a standard for notice and parliamentary procedure. Specifically, section G-7.0302b provides that a special meeting can consider any "...business as may be proper for congregational consideration..." citing § G-7.0304.

Section G-7.0304a, provides:

a. Business to be transacted at meetings of the congregation shall include the following:
( 1 ) matters related to the electing of elders, deacons, and trustees ;
( 2 ) matters related to the calling of a pastor or pastors;
( 3 ) matters related to the pastoral relationship, such as changing the call, or requesting or consenting or declining to consent to dissolution;
( 4 ) matters related to buying, mortgaging, or selling real property (G-8.0500) ;
( 5 ) matters related to the permissive powers of a congregation, such as the desire to lodge all administrative responsibility in the session, or the request to presbytery for exemption from one or more requirements because of limited size. (Emphasis added.)

In other words, the congregation reserves the power of self-government, including the right to organize itself, so that, at the local level, its witness and ministry is most effective. Boiled down to its basics, at its annual meeting, the congregation asks and answers the following questions:

• Who shall be our leaders?
• What shall we agree and promise to pay our pastor?
• What shall we do with our land, buildings and other property which we, as a congregation have purchased for the purpose of our worship?

All of these questions go directly to the root of the congregation’s unique identity. Surely, the final component of that identity—denominational affiliation—must also be reserved to the congregation. Thus, we add to the foregoing list this question:

• How (by what denominational name) shall we identify ourselves to the community?

Observe that in every instance, these questions go to the core issue of the identity of the congregation.

Nonetheless, the GAPJC ignores § G-7.0304a(5), as if the FOG proposal had been approved by the 2008 General Assembly and ratified by a majority of the presbyteries. This is important because the FOG proposal removes §G-7.0304a(5), specifically limiting the business that may be conducted at congregational meetings to §§ G-7.0304a(1)-(4). In matters of statutory construction, such an amendment should be construed to mean that the permissive powers of the congregation are other than those listed in §§ G-7.0304a(1)-(4).

But dancing to Louisville's desperate tune,the PJC wrties "permissive powers" out of the constitution. And to accomplish their master's bidding, they resorted to judicial smoke, mirrors and deception of the first order, to wit: ex post facto application to this 2007 case of an "action" of the 2008 General Assembly. They wrote:

In 2008, the 218th General Assembly adopted Item 04-20 (Minutes, 2008, p. 48), which refers to G-7.0304 and states, “Withdrawal from the Presbyterian Church (U.S.A.) is not a matter that can be considered at a congregational meeting.”

But § G-7.0304a says no such thing. The acceptance by the GAPJC of the General Assembly's attempt to amend § G-7.0304 by legislative fiat is improper, and the further application of any such amendment to the Sundquist facts ex post facto is doubly so.

And that is not enough. Next, the PJC must also amend § G-11.0103i.

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). . . . 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 (id.; see also Gaba v. Presbytery of Eastern Virginia, Minutes, 2003, p. 269, (The purpose of this provision is not merely matter of fairness or information gathering, but also exercise of pastoral oversight of churches by the presbytery to facilitate reconciliation.)).

* * * * * * *

Congregational meetings called or conducted by sessions for the purpose of voting on dismissal without the involvement of the presbytery are improper and have no binding effect.

* * * * * * *

G-11.0103i requires the presbytery to consult with members of local congregations seeking dismissal. The presbytery should consult with pastors and congregations seeking dismissal at the earliest practicable opportunity and in the manner described by the Resolution for a Gracious, Pastoral Response (Item 04-28).

Sundquist at 9-10 (emphasis added).

First and foremost, the PJC assigns to the presbytery certain exclusive rights not granted by the Book of Order. Section G-11.0103i does not require presbytery action before a congregation can request dismissal! Section G-11.0103i is simple and clear. "[The Presbytery] has the responsibility and power...to divide, dismiss, or dissolve churches in consultation with their members." The suggestion that the only possible interpretation of § G-11.0103i is that consultation must occur before the congregation votes to seek dismissal is absurd. At best for the PJC, § G-11.0103i is ambiguous. It can be as fairly read to say that after a congregation asks to be dismissed, the presbytery must consult with the members. Because the General Assembly and a majority of the presbyteries wrote the Book of Order, the doctine contra proferentum should be applied in favor of the other party, i.e., the congregation.

Obviously, the PJC means to adopt a construction of § G-11.0103i that requires a congregation to give advance notice so that the presbytery can form an administrative commission to crush any such attempt.

Any privilege to seek dismissal is conditioned on the cooperation of the congregation, the session and the pastor(s) with the presbytery in a process that operates in the manner set forth in Item 04-28. There shall not be any secret or secretive acts by sessions, pastors or congregations; bylaw changes or transfers of assets effectively negating the Book of Order or diminishing a church‟s connection to the PC(USA); or curtailment of communications with the presbytery as a prelude to dismissal. Congregational meetings called or conducted by sessions for the purpose of voting on dismissal without the involvement of the presbytery are improper and have no binding effect.

Sundquist at 10. Although the PJC suggests that Item 04-28 (218th GA, 2008) is directive, a clear reading of the item reveals that it merely states a hope on the part of the General Assemblty that presbyteries will act in a consistent and pastoral manner.

Next, in violation of §§ G-1.0308 and G-9.0102a, the PJC seeks to unconstitutionally control the actions of the congregation and to usurp the powers of the civil magistrate by directing trustees of corporations.

There shall not be any secret or secretive acts by sessions, pastors, or gongregations; bylaw changes or transfers of assets effectively negating the Book of Order or diminishing a church‟s connection to the PC(USA); or curtailment of communications with the presbytery as a prelude to dismissal.

Where to start?

Because the congregation is not a "governing body," see,§§ G-G-9.0101 and G-9.0103, its powers are different than and independent of those of any governing body. Thus, its power to conduct a congregational meeting under § G-7.0304a(5) cannot be controlled by a presbytery.

Moreover, the trustees of a civil corporation, even those which hold the property of the congregation, are not subject to the direction of a presbytery, synod, or the General Assembly. The fiduciary duty of the trustees flows solely to the members of the corporation, and, subject to the constraints of State law, the trustees must act in the best interests of the corporation. The suggestion that the presbytery can order the trustees to abandon that duty in favor of a third party, i.e., renders the trustees that comply subject to an action for breach of fiduciary.

Ultimately, it appears that the Sundquist decision was written to benefit the improper assertions first made in the infamous Louisville Papers. It is simply another giant step towards accomplishing the goal of the bureaucracy to convert a presbyterian denomination into an apostolic hierarchy. The giants of the Reformation must be spinning in their graves.