Will decide whether Abu-Akel should have reconvened 214th GA

by John Filiatreau, Presbyterian News Service

The full text of the PJC decision is available on another page.

LOUISVILLE -- March 4, 2003 [posted here 3-4-03] -- The Permanent Judicial Commission (PJC) of the General Assembly has scheduled a trial for March 17 on whether or not Moderator Fahed Abu-Akel should have ordered a special meeting of last year's Assembly after receiving a petition bearing the requisite number of commissioners' signatures.

The session of Westminster Presbyterian Church, of Canton, OH, had alleged that Abu-Akel and Stated Clerk Clifton Kirkpatrick, in effect, ordered a "re-vote" in the matter and "acted unconstitutionally to compel the commissioners to change their minds."

In January, Alexander Metherell, an elder from Laguna Beach, CA, gave Abu-Akel a petition bearing the names of 57 Assembly commissioners who wanted him to reconvene the 214th General Assembly to do something about alleged widespread defiance of the so-called "fidelity/chastity" provision of the PC(USA) constitution.

To force a special Assembly, Metherell needed the signatures of 50 commissioners -- at least 25 elders and 25 ministers from at least 15 presbyteries and at least five synods. He claimed he had met those conditions.

The Canton church, alleging that Abu-Akel pressured the signatories to remove their names from Metherell's petition, asked the PJC to rule that he was "delinquent" when he refused to call the special Assembly. Abu-Akel said he declined to schedule the meeting upon learning that a number of commissioners had changed their minds.

The Westminster session appealed an earlier decision of the PJC's executive committee recommending dismissal of the complaint.

Oral arguments in the case were heard on Feb. 28 in Kansas City, Mo.

In an order released on March 4, the PJC ordered a trial on several issues:

The trial also will be held in Kansas City.

The commission agreed with the complainant that it does have jurisdiction over the Office of the Moderator as an entity of the General Assembly. However, it dismissed charges of conspiracy and interference against Abu-Akel and Kirkpatrick as individuals because the relief requested "would be disciplinary, not remedial," and a remedial case "may not be used to prosecute a disciplinary case."

The PJC also decided that the complaint "states a claim upon which relief can be granted against only one of these respondents" -- the Office of the Moderator.

In explanation of its dismissal of the case against Kirkpatrick, the PJC said in its ruling: "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 ... ''should the Moderator be unable to act.'"

Commission member James J. McClure Jr. filed a dissent, arguing that neither the moderator nor the stated clerk is an "entity" of the General Assembly. He said he would have affirmed the executive committee's decision to dismiss the case.

It is not clear whether a special session of the 214th Assembly could be held if the decision goes against the moderator.

The moderator's office released a statement on March 4: "The Moderator and his counsel are considering the decision and will cooperate fully."

In last week's oral arguments, the Canton church alleged that Abu-Akel pressured the signatories to remove their names from Metherell's petition, and that he and Kirkpatrick, in effect, ordered a "re-vote" of the commissioners.

"There is no discretion," argued Paul Rolf Jensen, the Virginia lawyer who represented the Westminster session. "The Book of Order says he ''shall' call an Assembly. ... It is not up to the moderator to decide this is not a good idea. ... He should have asked, ''Is this your signature?' and that is all."

Judy L. Woods, the Indianapolis lawyer who represented Abu-Akel and Kirkpatrick, said the clerk sent "a very neutrally worded letter, very plainly worded," asking the commissioners to attest to their signatures, and made "no attempt to influence anyone."

The complainant had argued that, when Abu-Akel refused to call the special session, the stated clerk should have stepped in and done so.

Abu-Akel wrote two letters in which he urged the commissioners to remove their names from the petition.

On Nov. 11, he wrote: "One of the letters you received may give you the impression that I support a called Assembly. I am not in favor of such a meeting. ... The Committee on the Office of the General Assembly has offered to you wise counsel in stating reasons why a special meeting would not be helpful to the life of the church."

In a second letter, dated Jan. 14, Abu-Akel wrote: "I am making one last appeal. ... I implore you in the name of Christ and for the good of the Presbyterian Church (USA) to reconsider your decision."

In his letter to the commissioners, Kirkpatrick wrote, "Please return the enclosed form to the Office of the General Assembly as quickly as possible so that arrangements for such a special meeting can be made, if that is your desire."

Woods argued that, when several commissioners subsequently changed their minds and said they no longer favored a called Assembly, the moderator "had no choice but to not call an Assembly."

She pointed out that this year's 215th GA will provide ample opportunity for Abu-Akel's critics "to challenge the moderator's action... and also to raise the questions raised in Mr. Metherell's petition."

Jensen argued that once the petitions were presented to Abu-Akel, they were "locked in ... the die had been cast."

Woods, arguing for dismissal, contended that the PJC has no jurisdiction over the moderator and stated clerk.

Jensen, who requested a trial in the case, countered: "A dismissal at this stage will send a clear message to the church ... that the constitutional remedies provided in the Book of Order for the minority to seek justice are mere words, with no real meaning."

Woods contended that "all actions by the moderator and stated clerk were done constitutionally, prudently, with good speed and with established procedures."

She noted that when Abu-Akel received Metherell's petition, he immediately asked the Office of the General Assembly to begin planning for a special meeting, but soon began hearing from commissioners who said they no longer wanted a called Assembly.

Woods said "there never was a second vote." Jensen responded by displaying a copy of Kirkpatrick's certification letter, which asked commissioners to check one of two boxes, one marked "yes," the other marked "no," noting that it looked a lot like a ballot.

Woods said the moderator and stated clerk were concerned about the high cost of convening a special meeting of the Assembly, and in opposing the idea, were exercising good stewardship. Jensen pointed out that Metherell had suggested that the PC(USA) could reduce expenses by holding the session in a church.

Metherell attended last week's hearing as a spectator, as did the Rev. William Pawson, the pastor of the Canton church.