BCO 40.5

The Historical Development of the Book of Church Order

Chapter 40 : General Review and Control

40-1

40-2

Paragraph 5 :

40-5. When any court having appellate jurisdiction shall receive a credible report with respect to the court next below of any important delinquency or grossly unconstitutional proceedings of such court, the first step shall be to cite the court alleged to have offended to appear before the court having appellate jurisdiction, or its commission, by representative or in writing, at a specified time and place, and to show what the lower court has done or failed to do in the case in question.
The court thus issuing the citation may reverse or redress the proceedings of the court below in other than judicial cases; or it may censure the delinquent court; or it may remit the whole matter to the delinquent court with an injunction to take it up and dispose of it in a constitutional manner; or it may stay all further proceedings in the case; as circumstances may require.

DIGEST : The current PCA text dates to 2006 [M34GA, 34-8, Item 3, p. 57-60.]

BACKGROUND AND COMPARISION :
1. PCA 1973, RoD, 14-5, Adopted text, as printed in the Minutes of General Assembly, pp. 152-153
2. Continuing Presbyterian Church 1973, RoD, 14-5, Proposed text, p. 56
3. PCUS 1933, XIII-§262
4. PCUS 1925, XIII-§262
5. PCUS 1879, Rules of Discipline, XIII-1-6
When any court having appellate jurisdiction shall be advised, either by the records of the court next below or by memorial, either with or without protest, or by any other satisfactory method, of any important delinquency or grossly unconstitutional proceedings of such court, the first step shall be to cite the court alleged to have offended to appear by representative or in writing, at a specified time and place, and to show what it has done or failed to do in the case in question. The court thus issuing the citation may reverse or redress the proceedings of the court below in other than judicial cases ; or it may censure the delinquent court ; or it may remit the whole matter to the delinquent court, with an injunction to take it up and dispose of it in a constitutional manner ; or it may stay all further proceedings in the case ; as circumstances may require.

PCUS 1869 draft, Canons of Discipline, XIII-1-6
When any court having appellate jurisdiction shall be advised, either by the records of a lower court, or by memorial (either with or without protest,) or by any other satisfactory method, of any important delinquency or grossly unconstitutional proceedings, the first step to be taken is to cite the court alleged to have offended, to appear by representative or in writing, at a specified time and place, and to show what it has done or failed to do in the case in question. The court thus issuing the citation may reverse or redress the proceedings of the court below in other than judicial cases; or it may censure the delinquent court; or in case of heresy or other gross offence, it may dissolve that court, assigning the members thereof to the jurisdiction of other co-ordinate courts; or it may remit the whole matter to the delinquent court, with an injunction to take it up and dispose of it in a constitutional manner; or it may stay all further proceedings in the case, as circumstances may require.

PCUS 1867 draft, Canons of Discipline, XIII-1-6
When any court having appellate jurisdiction shall be advised, either by the records of a lower court or by memorial (either with or without protest), or by any other satisfactory method, of any important delinquency or grossly unconstitutional proceedings, the first step to be taken is to cite the court alleged to have offended, to appear by representative or in writing, at a specified time and place, and to show what it has done or failed to do in the case in question. The court thus issuing the citation may reverse or redress the proceedings of the court below in other than judicial cases; or it may censure the delinquent court; or in case of heresy or other gross offence, it may dissolve that court, assigning the members thereof to the jurisdiction of other co-ordinate courts; or it may remit the whole matter to the delinquent court, with an injunction to take it up and dispose of it in a constitutional manner; or it may stay all further proceedings in the case, as circumstances may require.

COMMENTARY :
F.P. Ramsay, Exposition of the Book of Church Order (1898, pp. 242-243), on XIII-1-6:
§When any court having appellate jurisdiction shall be advised, either by the records of the court next below or by memorial, either with or without protest, or by any other satisfactory method, of any important delinquency or grossly unconstitutional proceedings of such court, the first step shall be to cite the court alleged to have offended to appear by representative or in writing, at a specified time and place, and to show what it has done or failed to do in the case in question. The court thus issuing the citation may reverse or redress the proceedings of the court below in other than judicial cases ; or it may censure the delinquent court ; or it may remit the whole matter to the delinquent court, with an injunction to take it up and dispose of it in a constitutional manner ; or it may stay all further proceedings in the case ; as circumstances may require.
In the exercise of general review and control the superior court may go so far as to enter upon the records of the inferior court a censure of the records (but not of the court), or send to the inferior court an order to review and redress irregular proceedings ; but in the exercise of its jurisdiction by process the superior court may censure the inferior court (and not its records merely), and may itself reverse and redress the proceedings (in other than judicial cases) instead of ordering the inferior court to reconsider and correct them. But the superior court is not obliged to redress wrongs by its own action ; it may order the court to do so, or to stop a wrong proceeding. And, of course, the result of process against an inferior court may be its acquittal altogether. Three things should be borne in mind concerning the power of a superior court to try a next inferior court : first, the inferior court cannot be tried for its action as a court in deciding or conducting a judicial case, since judicial cases can come before the higher court only by reference, appeal or complaint ; the lower court may be censured, but not its members, since the individual cannot be tried except in the court having original jurisdiction over him ; and no inferior court may be censured except after conviction on regular trial, any more than an individual.

INTERPRETATION:
2006 - M34GA, 34-48, p. 186
On the constitutional inquiry regarding the relevance of BCO 40-5 on memorials in the light of this General Assembly's action in amending that section of the BCO and related sections of the Rules of Assembly Operations (RAO), the Committee on Constitutional Business offered the following advice:

It is the advice of the CCB that since the action involving Louisiana Presbytery came to the SJC as a memorial under the old BCO 40-5, the action should be processed under the old BCO 40-5 and SJC Manual 16 provisions. This grandfathering is following earlier precedents set by previous General Assemblies. Furthermore, the SJC Manual 16 may need to be revised in the future since the terminology of memorial has been removed from BCO 40-5.
Adopted by the CCB.