The Layman
A Ministry of the Presbyterian Lay Committee

PCUSA’s highest court deliberates whether to require called 214th General Assembly

By John H. Adams, The Layman Online, March 18, 2003

KANSAS CITY – Twelve men and women on the highest court in the Presbyterian Church (USA) began deliberations today on whether the explicit language of the denomination’s constitution required Moderator Fahed Abu-Akel to call the 214th General Assembly back into a special session to deal with defiance of church laws.

Moderator Fahed Abu-Akel testfies via video depositionThe jury is the Permanent Judicial Commission of the General Assembly which, on Monday, conducted one of its longest trials ever – 10.5 hours of testimony, including a video testimony by Abu-Akel, and numerous legal maneuvers.

Mary Lou Koenig, the moderator of the court, told The Layman Online that she expects the court to send its decision to participants by overnight mail on Wednesday or Thursday. The court’s key decision is whether to require the moderator to call the General Assembly back into session.

Only one member of the court, Pat Norris, seemed to indicate where she leans.

“It seems to me that the moderator had the opportunity and the right to make that determination [to invalidate the petition and refuse to call the General Assembly back into session],” she said.

But Paul Rolf Jensen, using and translating a Latin phrase to emphasize the historic nature of the trial, declared, “Alea iacta est – the die is cast.” In its 213-year history, the Presbyterian Church (USA) and its predecessor denominations have never had a commissioner-generated called meeting of its national governing body.

‘Look at the law’
“Look at the law, in its plain meaning, within the four corners. There is no room for doubt,” Jensen said.

Background material

The Book of Order, which is part of the denomination’s constitution, says: “The Moderator shall call a special meeting at the request 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 …” (emphasis added).

It was the contention of the complaint by Westminster Presbyterian Church in Canton, Ohio, whom Jensen represented, that Abu-Akel was required to reconvene the assembly once he received a petition Jan. 14 signed by 57 commissioners – 31 elders and 26 ministers representing 46 presbyteries and all 16 synods.

The complaint accused the moderator and Stated Clerk Clifton Kirkpatrick of lobbying against the special meeting, pressuring commissioners to vote again and removing the signatures of Presbyterians who, they claimed, no longer agreed with the purpose of the petition.

Thus, the Presbyterian leaders overreached their authority and violated the constitution, the complainants said.

‘Trust’ the leaders and the process
Not so, argued Judy Woods, the attorney who represented the denomination’s leaders. “Was the die cast on Jan. 14?” she asked, contending that Dr. Alexander F. Metherell, the 214th General Assembly commissioner who initiated the petition, used that as a “day of his own choosing … chosen for his convenience.”

Calling on the court to demonstrate its “trust” in Presbyterian leaders and the “process,” Woods said the moderator was within his right to lobby against the petition and that the Office of the General Assembly acted prudently in inviting commissioners to have their names taken off the petition.

It was a trial that had little drama or smoking guns. The hour-and-one-half video of Abu-Akel’s deposition – which was filmed by the denomination’s media services in Woods’ Indianapolis office while Jensen asked questions by cell phone from O’Hare International Airport in Chicago – was tedious.

Moderator depended on Stated Clerk
The moderator gave rambling responses to Jensen’s questions and showed little personal knowledge of the key constitutional requirements or the evidence in the case.

“I saw a big book, but I didn’t read it,” he said when asked about the record of the proceedings.

Abu-Akel repeatedly said he “depended on the wisdom of others,” namely Kirkpatrick and denominational advisers.

“I need the wisdom of the stated clerk and the Committee on the Office of the General Assembly,” he said. “I really need to ask the wisdom of Cliff Kirkpatrick.”

He gave a strained answer to Jensen’s question about his obligation to remain neutral once the petition was handed over to him. After repeatedly saying that he didn’t understand what Jensen meant by “neutral,” he said, “There’s no human being under the sun who’s neutral. Only God almighty is neutral. That’s a theological definition.”

The thrust of Abu-Akel’s argument in defense of his decision not to call the General Assembly back into session was that he was following the advice of others and he had more important pastoral duties to attend to than the trial of the Westminster complaint.

“The whole purpose of the moderator is not the holy works he wants, but the holy works they want,” he said, referring to the 214th General Assembly commissioners who met in Columbus last June. By overwhelming majorities, those commissioners rejected a proposal to respond to the denomination’s failure to enforce church laws prohibiting the ordination of practicing homosexuals and other acts of defiance of church law.

That 214th General Assembly also adopted a radical position favoring partial-birth abortions, yet Abu-Akel described the 214th as “the best assembly I ever attended.”

Expenses paid for some witnesses
With their transportation, lodging and meals paid for by the Office of the General Assembly, three commissioners who asked that their names be stricken from the petition and the pastor of a fourth who said she did likewise testified on behalf of the moderator.

One, the Rev. Nancy Gillard of Jackson, Mo., admitted she signed the petition, but said she didn’t know what she was doing.

She said she signed the petition believing that she was indicating her willingness to participate in a small group discussion about Presbyterian issues. “It was never my desire to have a special called meeting,” she said.

But Jensen showed her a copy of what she had signed and asked her to read it. She did: “I, the undersigned Commissioner to the 214th General Assembly, exercising my right under G-13.0104 of the Book of Order hereby request the Moderator of the 214th General Assembly call a special meeting of the 214th General Assembly at the earliest possible time.”

“Is that your signature an inch below that statement?” Jensen asked.

“Yes,” Gillard said, adding that she would begin reading her mail more closely.

Ghost-written withdrawal
The Rev. Andrew W. Jacob of Immanuel Presbyterian Church in Cleveland, Ohio, whose membership included elder-commissioner Angela A. Davis, admitted that he had typed and signed with his own handwriting a letter to Kirkpatrick asking that her name be removed from the list.

“Why did you not indicate that you signed it for her?” asked Chris Yim, vice moderator of the court.

“I was in a hurry,” he said. “She was devastated. I’ve been told it’s legal.”

“Is it ethical?” asked Yim.

“In the future, that will never happen again,” Jacob said.

“At the time, did you know better?”

“No.”

The story about Jacob’s intervention for Davis was broken by The Layman Online, which, Jacob said, published a factually correct article that he nonetheless criticized because of its “innuendo.”

But his testimony conflicted with what he told The Layman Online: that Ms. Davis had signed the letter with her own signature after he typed it.

Concerned about controversy
The Rev. David Rodriquez of Hollister, Calif., and the Rev. William C. Duckworth of the Presbytery of Central Florida both told the court that they had signed the petition with the intention of calling the General Assembly back into session, but that they had changed their minds about how effective that meeting could be.

“For me, the deciding factor was that the meeting would further divide and alienate others in the church,” Rodriquez said.

Influenced by clerk’s interpretation
Duckworth said he asked to have his name removed because he believed too much time had lapsed since he signed the petition. He said he realized when he signed the petition that it could take months to get a called meeting – maybe as late as March.

When Metherell presented the petition to Abu-Akel on Jan. 14, he asked the moderator to call the meeting by the end of March, which would have been in Duckworth’s target range. But Kirkpatrick’s office and the moderator both insisted that the call for the special meeting required a 120-day notice to commissioners, which is their interpretation of a disputed constitutional requirement dealing with possibly unrelated issues. They contended that the special called meeting could be held – at the earliest – only a few days before the 215th General Assembly convenes. As soon as the 215th General Assembly convenes, the 214th General Assembly no longer exists.

There is still time
The constitution does say that matters requiring constitutional interpretation must be presented to assemblies 120 days before they convene. But the petition for the special assembly did not call for interpretation; its purpose was to enforce constitutional standards – including church law prohibiting the ordination of practicing homosexuals – that are already on the books and for which there is already a body of interpretation by the Permanent Judicial Commission.

The constitutional provision for a called meeting, G-13.0112 (a), provides for a 60-day notice, not 120 days. “The respondents err when they attempted to convince commissioners to change their minds because they ‘were required’ to give 120 days’ notice of the special meeting, notwithstanding the explicit language of G-13.0112 (a),” Jensen said in his brief to the court.

After its landmark decision earlier this month that Abu-Akel and Kirkpatrick face trial, one person close to the court told The Layman Online that there is still time to call the 214th General Assembly back into session to deal with constitutional defiance issues before the 215th General Assembly convenes on May 24 in Denver.

Self-funded witnesses
Unlike witnesses who testified on behalf of the moderator and stated clerk, witnesses summoned by the complainant traveled to Kansas City at their own expense. They included Metherell and the Rev. William Pawson, minister of Westminster Presbyterian Church, the complainant in the case.

Respecting the form of government
Metherell recounted his personal history of service to the Presbyterian Church (USA), including his experience as a commissioner to the 214th General Assembly. Asked why he was “so passionate about the Presbyterian Church,” he said that he was an evangelical Christian who had been drawn to the Presbyterian form of government.

Yim asked Metherell what had changed after the close of the 214th General Assembly meeting in Columbus that caused him to initiate a petition drive to recall the assembly. Metherell listed several of the more than 20 acts of defiance by ministers, church sessions, and even presbyteries that led him to believe that the denomination faced a constitutional crisis.

Wood challenged Metherell on his contention that commissioners who had signed the petition could not rescind their names.

Metherell said that, during the period prior to his submitting the names to the moderator, there was much discussion and some ambivalence among commissioners, particularly as news of the petition drive surfaced and they became lobbying targets from the moderator and the Committee on the Office of the General Assembly. Metherell said he allowed commissioners to change their minds until the moment when the petition was handed to the moderator, but he insisted that once the petition was delivered and became a matter of record, the names were not rescindable.

‘Can anything be done?’
Pawson took the stand and testified regarding the sequence of events that led his session to file remedial charges against the offices of the moderator and stated clerk. He told the court that he and his session had followed the news of the petition drive very closely, and that they shared news reports of Metherell’s delivery of the petitions to the moderator.

He said that, when the Westminster session learned that the moderator had refused to honor those petitions, the elders asked, “Can anything be done?” Reviewing the Book of Order, they examined several options and concluded that they could remedy this offense to the constitution by bringing a case to the denomination’s highest court.

When asked by Wood if he wrote the legal brief, Pawson said that he and the session left the legal details of the matter up to their attorne

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