.

The Historical Development of the PCA Book of Church Order

Chapter 34 : Special Rules Pertaining to Process Against a Minister
(Teaching Elder)

Paragraph 1 :


34-1. Process against a minister shall be entered before the Presbytery of which he is a member. However, if the Presbytery refuses to act in doctrinal cases or cases of public scandal and two other Presbyteries request the General Assembly to assume original jurisdiction (to first receive and initially hear and determine), the General Assembly shall do so.


DIGEST: The provision here for the General Assembly to assume original jurisdiction is unique to the PCA, and the need for this provision was seen by the founders of the PCA as they reviewed the more recent history of the PCUS. Around 1940, the PCUS presbyteries of Harmony, Knoxville, Mecklenburg and Central Mississippi had each separately brought overtures before the PCUS General Assembly, requesting an investigation of the teachings of E.T. Thompson at Union Theological Seminary in Richmond, VA. These overtures were answered in the negative on the understanding of the PCUS BCO that original jurisdiction over a minister resided solely in the presbytery. Dr. Thompson was further protected when his presbytery, East Hanover Presbytery, indicated that they had investigated his teachings and found them to be in conformity with the Standards of the Church. As a result, modernism was further entrenched in the denomination and conservatives in the PCUS were left without judicial recourse. The PCUS General Assembly by its action turned original jurisdiction into exclusive jurisdiction. In brief this is the history that explains why the PCA has this provision in 34-1 that allows other presbyteries to request the General Assembly to assume original jurisdiction. [Conservatives in the PCUS did respond to their judicial defeat with the founding of The Southern Presbyterian Journal in 1942, using the magazine as a means of publishing their views on the health of the church. The Journal was key to the defeat of an attempted union of the PCUS with the PCUSA in the 1950s, and the magazine was later instrumental in the founding of the PCA.]
1989 - The PCA text of 34-1 originally was vague, specifying only that "other Presbyteries" could request Assembly to assume original jurisdiction. Then in 1989, 34-1 was amended [M17GA, 17-6, Item 14, p. 55]. The amendment began as one of the recommendations brought forward by the Ad Interim Committee on the General Assembly [M15GA, 15-55, Item 16, "Exhibit P", p. 120], but because not all of the presbyteries had reported their votes in the advice and consent stage, the matter was deferred to the 17th General Assembly, in accordance with BCO 26-6 [M16GA, 16-10, Item 14, pp. 105-106; see also the note on pg. 88]. Thus in 1989 the amendment was adopted and now two presbyteries were required to petition for original jurisdiction. This brought BCO 34-1 into conformity with 33-1, where two Sessions are required for successful petition for the Presbytery to assume jurisdiction when an erring Session fails in its responsibility.
2003 - Another attempt to amend BCO 34-1 failed [M31GA, 31-11, Item 1, p. 51-52]. Arising from a judicial case in 1999, some in the PCA began to be concerned about potential abuse of the principle of original jurisdiction. In 2001, Evangel Presbytery brought Overture 9 before the 29th General Assembly, seeking to amend both BCO 33-1 and 34-1. That effort was answered in the negative [M29GA, 29-44, III, Item 9, pp. 203-205]. Then by 2002, with the formation of the Presbyterian Pastoral Leadership Network as a supporting organization, overtures came before the 30th General Assembly from nearly two dozen presbyteries, seeking to amend 34-1 such that, instead of two presbyteries being required to petition for original jurisdiction, now ten percent of all presbyteries would be required. [M30GA, 30-50, III, Item 5, pp.213-218.] When the matter came back before the 31st General Assembly, the report of Presbytery voting indicated that the amendment had failed by a vote of 40 for the amendment and 24 against, a concurrence of 2/3's of the presbyteries being required for adoption.

ANTECEDENT TEXTS:
PCA 1973, 8-1, Adopted text, as printed in the Minutes of General Assembly, p. 148
Continuing Presbyterian Church 1973, 8-1, Proposed text, p. 47
Process against a Minister shall be entered before the Presbytery of which he is a member. However, if Presbytery refuses to act in doctrinal cases or public scandal, and other Presbyteries request the Assembly to assume original jurisdiction, the Assembly shall do so.

PCUS 1933, 8-§217
PCUS 1925, 8-§217
PCUS 1879, VIII-1
Process against a Minister shall be entered before the Presbytery of which he is a member.

PCUS 1869 draft, Canons of Discipline, VIII-3
Process against a Gospel Minister shall be entered before the Presbytery of which he is a member.

PCUS 1867 draft, Canons of Discipline, VIII-3
In all ordinary cases, process against a gospel minister shall be entered before the presbytery of which he is a member.

PCUSA, 1858, Revised Book of Discipline, V-2 [text dates to 1821]
Process against a Gospel minister shall always be entered before the Presbytery of which he is a member. And the same candour, caution, and general method, substituting only the Presbytery for the Session, are to be observed in investigating charges against him, as are prescribed in the case of private members.

PCUSA 1789, Forms of Process, II-1
Process, against a gospel minister, shall always be entered before the presbytery of which he is a member. And, in case it shall be found that the facts with which he shall be charged happened without the bounds of his own presbytery, they shall send notice to the presbytery within whose bounds they did happen : and desire that presbytery, either (if within convenient distance) to cite the witnesses to appear at the place where the trial began, or, if otherwise, to take the examination themselves : and transmit an authentic record of their testimony. Always giving due notice to the accused person of the time and place of such examination.

Steuart, Walter, Collections and Observations Concerning the Worship, Discipline, and Government of the Church of Scotland (1709; reprinted 1770), Chapter VII, Concerning Process Against a Minister, p. 255.
All processes against any minister, are to begin before the presbytery to which he belongeth, and not before the kirk session of his own parish.

COMMENTARY:

F.P. Ramsay, Exposition of the Book of Church Order, (1898, p. 210), on Rules of Discipline, VIII-2 :
196.--I. Process against a Minister shall be entered before the Presbytery of which he is a member.
197.--II. As no Minister ought, on account of his office, to be screened in his sin, or lightly censured, so scandalous charges ought not to be received against him on slight grounds.
The very fact that Presbyteries ought to feel most sensitively the importance of preserving the good name of Ministers justifies the fear that, on the one hand, they may be tempted to screen offenders, and, on the other hand, that they may be tempted to pay undue attention to charges not well grounded.

NON-JUDICIAL REFERENCE & CONSTITUTIONAL INQUIRY:
2000 - Reference 1 - Presbytery of Western Carolina [M28GA, 28-19, III, p. 68-69]:
Question 1. When presbyteries act under the provisions of BCO 34-1, may the case be declared out of order without being heard, or does the word "shall" in 34-1 indicate that the General Assembly is obligated to take up the case and hear evidence?
Response - When Presbyteries act under the provisions of BCO 34-1 the word "shall" in the last clause does obligate the General Assembly to act on the matter. The way in which the Assembly shall act on the matter is by referring it to the Standing Judicial Commission (see BCO 15-4) which shall process the matter according to its regular procedures which shall include the options of administratively ruling the matter out of order if there is sufficient cause or, if the matter is in order, taking up the case and hearing the evidence.
Question 2. Does the reference to the General Assembly in 34-1 mean that it is the Assembly "as a whole" which must determine to take up the case, or may the SJC make that determination?
Response - The matter shall be referred to the SJC (see the answer to question number 1 above).
Question 3. May the case of original jurisdiction under BCO 34-1 be declared judicially out of order under the provisions of BCO 41, 42 or 43 or must the SJC (or Assembly) hear it?
Response - There are no operating provisions in the Manual of the SJC for dealing with BCO 34-1. However, the BCO does assume that the SJC has the right to determine whether all matters coming before it are in order (RAO 15-2). Although the provisions of the BCO 41, 42 and 43 dealing with references, appeals and complaints do not directly apply, they are the only analogy the SJC currently has for making such determination. More specific operational guidelines dealing with 34-1 are needed, but until they are provided the SJC can only operate with its ordinary procedures.
Question 4. In a case arising under the provisions of BCO 34-1
, may the SJC or its officers determine all or some of the "facts" of the case as a basis for a determination as to whether a case is judicially in order without hearing evidence and arguments from both parties, or must the case go forward (assuming it is administratively in order) so that such evidence may be presented under the provisions of BCO 32-13, 32-14, 32-18 and 35?
Response - Under the provisions of 34-1 and in accord with the Manual of the SJC (10-1) the officers of the SJC or the impaneled SJC may determine if a matter is administratively out of order without hearing evidence and arguments from both parties based on timeliness of filing, proper paperwork, etc. The impaneled SJC may determine if a matter is judicially out of order prior to hearing full evidence and arguments from both parties if the SJC believes it has sufficient initial evidence to make such a determination (cf. Manual of the SJC 10-1b). Otherwise the SJC could be forced to listen to matters at length, which were not properly before it.
Question 5. In the event that the matter is assumed as a case of original jurisdiction, then since the Presbyterian Church in America versus the individuals are the parties of the case, would members of those presbyteries that have been involved in bringing the issue to the Assembly be required to be excluded from participating in the trial?
Response - Because the only parties to a case that goes to the SJC are the Presbyterian Church in America and the accused (BCO 31-3), the mere membership of an SJC member in a presbytery that may have brought charges against the accused does not disqualify that SJC member from hearing and voting upon the case in which the SJC has assumed original jurisdiction. However, the rules for the conduct of SJC members who are qualified for adjudicating a case (Manual of the SJC 6 and 7), will ordinarily disqualify the SJC participation of members of presbyteries who have brought charges resulting in the SJC becoming the court of original jurisdiction. These rules, for example, indicate that it is not appropriate for any member of the commission to discuss the merits of the case with any party to the case or any person other than a member of the commission, or to express an opinion on the merits of the case prior to the record being completed, or to consult or advise regarding any matter that may come before the commission. While it is conceivable that members of presbyteries bringing charges may not be disqualified from SJC participation for these or similar reasons, it is unlikely and, therefore, members of presbyteries bringing charges should ordinarily recuse themselves or be disqualified.
The entire response was adopted by proper motion, 8-0-0.

2000 - Reference 2 - Presbytery of the Ascension
[M28GA, 28-19, III, Item 2, pp. 70-71]
[Note: Reference #2 is identical to Inquiry #1 from Ascension Presbytery that same year [cf. M28GA, 28-19, IV, Item 1, pp. 73-74]
Question 1 - When presbyteries act under the provisions of BCO 34-1, may the case be declared out of order without being heard, or does the word "must" in 34-1 indicate that the General Assembly is obligated to take up the case and hear evidence?
Response - See answer to question #1 of Western Carolina Presbytery Reference for Advice dated Dec. 28, 1999.
Question 2 - Does the reference to the General Assembly in 34-1 mean that it is the Assembly as a whole which must determine to take up the case, or may the SJC make that determination (implicit in this is the corollary question - is this even a case before it is received by the General Assembly itself)?
Response - Since BCO 15-4 assigns all judicial cases to the SJC for adjudication it is the duty of the SJC to handle such matters.
Question 3 - May the SJC (or the Assembly as a whole) declare as judicially out of order any case which comes to the General Assembly under a provision not covered by one of those chapters (e.g., an action arising on the basis of BCO 34-1), or must the SJC or the Assembly hear such a case if it is administratively in order?
Response - See answer to question #3 of Western Carolina Presbytery Reference for Advice dated Dec. 28, 1999.
Question 4 - In a case arising under the provisions of BCO 34-1, may the SJC or its officers determine all or some of the "facts" of the case as a basis for a determination as to whether a case is judicially in order without hearing evidence and arguments from both parties, or must the case go forward (assuming it is administratively in order) so that such evidence may be presented under the provisions of BCO 32-13, 32-14, 32-18 and 35?
Response - See answer to question #4 of Western Carolina Presbytery Reference for Advice dated Dec. 28, 1999.
The entire response was adopted by proper motion, 8-0-0.



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