THE PERMANENT JUDICIAL COMMISSION
OF THE GENERAL ASSEMBLY
OF THE PRESBYTERIAN CHURCH (U.S.A.)

Jurisdiction- Insofar as the Moderator is exercising the particular duty in G-13.0104 in his or her representative capacity, the Office of the Moderator is "an entity of the General Assembly" over which this Commission has jurisdiction to entertain a remedial case alleging a delinquency in failing to call a special meeting.

THE PERMANENT JUDICIAL COMMISSION
OF THE GENERAL ASSEMBLY
OF THE PRESBYTERIAN CHURCH (U.S.A.)

History

This remedial case came before this Commission on a complaint filed by the Session of Westminster Presbyterian Church, Canton, Ohio, a constituent congregation of the Presbytery of Muskingum Valley in the Synod of the Covenant (Session), against the Office of the Stated Clerk of the General Assembly, Office of the Moderator of the General Assembly, Committee on the General Assembly, Fahed Abu-Akel, as Moderator of the Presbyterian Church (USA), and Clifton Kirkpatrick, as Stated Clerk of the General Assembly of the Presbyterian Church (USA), respondents. ⁽¹⁾

Session's complaint alleges that on January 14, 2003, a commissioner to the 214^th General Assembly (2002) (Assembly) delivered a letter to the Moderator with what purported to be the written requests of fifty-seven commissioners to the Assembly requesting the Moderator to call a special meeting of that Assembly in accordance with G-13.0104. Accusing the respondents of "conspiring together," the complaint asserts that the respondents have prevented the assembly from "being recalled into special session."

The Executive Committee of this Commission entered a preliminary order finding that Session's complaint did not state a claim upon which relief could be granted. Session challenged this preliminary order and requested a hearing on the findings of the Executive Committee as to the preliminary questions specified in D-6.0305. Pursuant to D-6.0306a, a hearing on the preliminary questions was held by the entire Commission on February 28, 2003. In addition, the Commission heard a motion to dismiss filed by the respondents, which asserted that the Commission lacked jurisdiction to hear the complaint and that the complaint failed to state a claim upon which relief could be granted.

Decision

We find that Session has standing to file and that the complaint was timely filed. We further find that the Commission has jurisdiction over two of the respondents, but that the complaint states a claim upon which relief can be granted against only one of these respondents.

Office of the Moderator

Under D-6.0202b, a remedial complaint to correct an alleged irregularity or delinquency may be filed against "an entity of the General Assembly. . . ." (See also D-2.0202.) The question of jurisdiction therefore rests on whether the Office of the Moderator constitutes "an entity of the General Assembly."

A fundamental principle of our polity is that "ecclesiastical jurisdiction is a shared power, to be exercised jointly by presbyters gathered in governing bodies." (G-4.0301h) In short, individuals do not have authority to act alone, but only as part of or on behalf of governing bodies. With respect to calling a special meeting of the General Assembly, the Book of Order authorizes fifty commissioners to the last General Assembly to call the larger body back into session, and further requires the Moderator to implement that decision on behalf of the body. In fact, the language of G-13.0104 makes clear that, in exercising the duty to call a special meeting, the Moderator is acting in a representative capacity by, first, acting on behalf of the commissioners requesting the special meeting and, second, acting on behalf of the Assembly in calling the meeting.

The Moderator shall call a special meeting at the request of or with the concurrence of twenty-five elders and twenty-five ministers, representing at least fifteen presbyteries, under the jurisdiction of at least five synods, all of whom must have been commissioners to the last preceding stated meeting of the General Assembly.

(Emphasis added.)

Insofar as the Moderator is exercising this particular duty in his or her representative capacity, the Office of the Moderator is "an entity of the General Assembly" over which this Commission has jurisdiction. (See D-6.0202b; D-2.0202.) While it may be true in other instances that the Moderator's actions or omissions would not be deemed actions of "an entity of the General Assembly," the particular duty in G-13.0104 is clearly one that the Book of Order requires the Moderator to fulfill in a representative capacity on behalf of the governing body. Therefore, this Commission may entertain a remedial case against the Office of the Moderator for an alleged delinquency in exercising this duty.

Office of the Stated Clerk

The Commission concludes that the complaint against the Office of the Stated Clerk fails to state a claim upon which relief can be granted insofar as the complaint contains no allegation that the Moderator was unable to act. Rather, the allegation was that the Moderator refused to act. The Stated Clerk of the General Assembly may only call a special session of the General Assembly "should the Moderator be unable to act.…" (G-13.0104) (Emphasis added).

Committee of the General Assembly

We further conclude that the Committee on the General Assembly (Committee on the Office of the General Assembly (COGA)) is an "entity of the General Assembly" over which this Commission has jurisdiction under D-2.0202 and D-6.0202b. However, because COGA has no authority under G-13.0104 to call a special meeting, the complaint fails to state a claim for which relief can be granted against COGA.

Moderator and Stated Clerk as Individuals

To the extent that the complaint has attempted to state a claim against the Moderator and Stated Clerk in their individual capacities, we conclude that this Commission has no jurisdiction since the relief to be granted would be disciplinary, not remedial. A remedial case may not be used to prosecute a disciplinary case. Wier v. Session, Second Presbyterian Church, Fort Lauderdale, Florida (Minutes, 1999, page 831). Therefore the Session's allegations of conspiracy and interference may not and will not be heard in this remedial case.

In conclusion, under the unique circumstance of this case, this Commission finds that it has jurisdiction over the Office of the Moderator as an entity of the General Assembly, and that the complaint has stated a claim upon which relief can be granted against this respondent. Session is, therefore, entitled to a trial on the factual and constitutional issues outlined below.

Order

At trial the parties shall present evidence only upon the following factual issues:

1. Which commissioners to the 214^th General Assembly requested or concurred in the request for a special meeting;
2. Which commissioners were added or removed from the petition after its presentation to the Moderator on January 14, 2003, and when were they added or removed.

Further, we direct the parties to stipulate to the following:

1. the names of commissioners whose signature and status are not in question; and
2. the authenticity of all correspondence and communications concerning the request and petition for a special meeting, when authenticity is not in dispute.
   

The parties are also directed to submit to this Commission a trial brief addressing the following issues of constitutional interpretation:

1. Whether a commissioner may be added or removed from a petition to call a special meeting of the General Assembly and if so, when;
2. Whether the Office of the Moderator may request commissioners to reconsider their request or concurrence to call a special meeting of the General Assembly;
3. Whether the matters identified in the petition presented to the Moderator required an interpretation of the Constitution and had to be communicated in writing to the Stated Clerk of the General Assembly no later than 120 days prior to the convening of the special meeting;
4. Whether it was appropriate for the signatures and the status of the requesting commissioners to be verified, and if so, how; and
5. Whether the Moderator was required to call a special meeting of the 214^th General Assembly.

The respondents' motion to dismiss is granted in part and denied in part in conformity with the foregoing decision. All other issues raised in the motion but not addressed in the decision are taken under advisement.

Dissent

I dissent from the decision of the GA PJC in the Westminster case. The Book of Order gives the GA PJC jurisdiction over "entities" of the General Assembly. Neither the Moderator nor the Stated Clerk is an entity. I would have affirmed the Executive Committee's decision to dismiss this case on the ground that it failed to state a claim on which relief can be granted.

                                                James J. McClure, Jr.

1. Session unilaterally attempted to add the General Assembly Council (GAC) as a respondent in the briefs it filed with this Commission. That effort is procedurally improper, and the Commission will not grant Session leave to add the GAC.