CHAPTER 39

 Modes in Which the Proceedings of Lower Courts Come Under the Supervision of Higher Courts.

 

39-1.    The acts and decisions of a lower court are brought under the supervision of a higher court in one or another of the following modes:

1.   Review and Control;

2.   Reference;

3.   Appeal; and

4.   Complaint.

 

39-2.    When the proceedings of a lower court are before a higher court, the members of the lower court shall not lose the right to sit, deliberate and vote in the higher court, except in cases of appeal or complaint.

 

39-3.    While affirming that the Scripture is “the supreme judge by which all controversies of religion are to be determined” (WCF 1.10), and that the Constitution of the Presbyterian Church in America is “subordinate to the Scriptures of the Old and New Testaments, the inerrant Word of God” (BCO Preface, III), and while affirming also that this Constitution is fallible (WCF 31.3), the Presbyterian Church in America affirms that this subordinate and fallible Constitution has been “adopted by the church” (BCO Preface, III) “as standard expositions of the teachings of Scripture in relation to both faith and practice” (BCO 29-1) and as setting forth a form of government and discipline “in conformity with the general principles of biblical polity” (BCO 21-5.3).  To insure that this Constitution is not amended, violated or disregarded in judicial process, any review of the judicial proceedings of a lower court by a higher court shall by guided by the following principles:

1.   A higher court, reviewing a lower court, should limit itself to the issues raised by the parties to the case in the original (lower) court.  Further, the higher court should resolve such issues by applying the Constitution of the church, as previously established through the constitutional process.

2.   A higher court should ordinarily exhibit great deference to a lower court regarding those factual matters which the lower court is more competent to determine, because of its proximity to the events in question, and because of its personal knowledge and observations of the parties and witnesses involved.  Therefore, a higher court should not reverse a factual finding of a lower court, unless there is clear error on the part of the lower court.

3.   A higher court should ordinarily exhibit great deference to a lower court regarding those matters of discretion and judgment which can only be addressed by a court with familiar acquaintance of the events and parties.  Such matters of discretion and judgment would include, but not be limited to:  the moral character of candidates for sacred office, the appropriate censure to impose after a disciplinary trial, or judgment about the comparative credibility of conflicting witnesses.  Therefore, a higher court should not reverse such a judgment by a lower court, unless there is clear error on the part of the lower court.

4.         The higher court does have the power and obligation of judicial review, which cannot be satisfied by always deferring to the findings of a lower court. Therefore, a higher court should not consider itself obliged to exhibit the same deference to a lower court when the issues being reviewed involve the interpretation of the Constitution of the Church. Regarding such issues, the higher court has the duty and authority to interpret and apply the Constitution of the Church according to its best abilities and understanding, regardless of the opinion of the lower court.

 

 CHAPTER 40

 

          General Review and Control

 

40-1.    It is the right and duty of every court above the Session to review, at least once a year, the records of the court next below, and if any lower court fails to present its records for this purpose, the higher court may require them to be produced immediately, or at any time fixed by this higher court.

 

40-2.    In reviewing records of a lower court the higher court is to examine: 

1.   Whether the proceedings have been correctly recorded; 

2.   Whether they have been regular and in accordance with the Constitution; 

3.   Whether they have been wise, equitable and suited to promote the welfare of the Church; 

4.   Whether the lawful injunctions of the higher court have been obeyed.

 

40-3.    It is ordinarily sufficient for the higher court merely to record in its own minutes and in the records reviewed whether it approves, disapproves or corrects the records in any particular; but should any serious irregularity be discovered the higher court may require its review and correction by the lower.  Proceedings in judicial cases, however, shall not be dealt with under review and control when notice of appeal or complaint has been given the lower court; and no judgment of a lower court in a judicial case shall be reversed except by appeal or complaint.

 

40-4.    Courts may sometimes entirely neglect to perform their duty, by which neglect heretical opinions or corrupt practices may be allowed to gain ground; or offenders of a very gross character may be suffered to escape; or some circumstances in their proceedings of very great irregularity may not be distinctly recorded by them.  In any of these cases their records will by no means exhibit to the higher court a full view of their proceedings.  If, therefore, the next higher court be well advised that any such neglect or irregularity has occurred on the part of the lower court, it is incumbent on it to take cognizance of the same, and to examine, deliberate and judge in the whole matter as completely as if it had been recorded, and thus brought up by review of its records.

 

40-5.    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.

 

40-6.    In process against a lower court, the trial shall be conducted according to the rules provided for process against individuals, so far as they may be applicable.

 

CHAPTER 41

 References

 

41-1.    A reference is a written representation and application made by a lower court to a higher for advice or other action on a matter pending before the lower court, and is ordinarily to be made to the next higher court.

 

41-2.    Among proper subjects for reference are matters that are new, delicate or difficult; or on which the members of the lower court are very seriously divided; or which relate to questions involving the Constitution and legal procedures respecting which the lower court feels the need of guidance.

 

41-3.    In making a reference the lower court may ask for advice only, or for final disposition of the matter referred; and in particular it may refer a judicial case with request for its trial and decision by the higher court.

 

41-4.    A reference may be presented to the higher court by one or more representatives appointed by the lower court for this purpose.  It should be accompanied with so much of the record as shall be necessary for proper understanding and consideration of the matter referred.

 

41-5.    Although references are sometimes proper, in general it is better that every court should discharge the duty assigned it under the law of the Church.

            A higher court is not required to accede to the request of the lower, but it should ordinarily give advice when so requested.

 

41-6.    When a court makes a reference, it ought to have all the testimony and other documents duly prepared, produced and in perfect readiness, so that the higher court may be able to fully consider and handle the case with as little difficulty or delay as possible.

 

CHAPTER 42

Appeals

 

42-1.    An appeal is the transfer to a higher court of a judicial case on which judgment has been rendered in a lower court, and is allowable only to the party against whom the decision has been rendered.  The parties shall be known as the appellant and appellee.  An appeal cannot be made to any court other than the next higher, except with its consent.

 

42-2.    Only those who have submitted to a regular trial are entitled to an appeal.

 

42-3.    The grounds of appeal are such as the following:  any irregularity in the proceedings of the lower court; refusal of reasonable indulgence to a party on trial; receiving improper or declining to receive proper evidence; hurrying to a decision before all the testimony is taken; manifestation of prejudice in the case; and mistake or injustice in the judgment and censure.

 

42-4.    Notice of appeal may be given the court before its adjournment.  Written notice of appeal, with supporting reasons, shall be filed by the appellant with both the clerk of the lower court and the clerk of the higher court, within thirty (30) days following the meeting of the court.  No attempt should be made to circularize the courts to which appeal is being made by either party before the case is heard.

 

42-5.    It shall be the duty of the clerk of the lower court to file with the clerk of the higher court, not more than thirty (30) days after receipt of notice of appeal, a copy of all proceedings in connection with the case, including the notice of appeal and reasons therefore, the response of the lower court, the evidence, and any papers bearing on the case, which together shall be known as “the Record of the Case”, and the higher court shall not admit or consider anything not found in this “Record” without the consent of the parties in the case.  Should new evidence come to light the case shall be remanded to the lower court from which the appeal was made, unless both parties consent to admit the new evidence and proceed with the case.

 

 

42-6.    Notice of appeal shall have the effect of suspending the judgment of the lower court until the case has been finally decided in the higher court.  However, the court of original jurisdiction may, for sufficient reasons duly recorded, prevent the appellant from approaching the Lord’s Table, and if an officer, prevent him from exercising some or all his official functions, until the case is finally decided (cf. BCO 31-10; 33-3).  This shall never be done in the way of censure.

 

42-7.    If a lower court shall neglect to send up “the Record of the Case” or any part of it, to the injury of the appellant, it shall receive a proper rebuke from the higher court, and the judgment from which the appeal has been taken shall be suspended until “the Record” is produced upon which the issue can be fairly tried.

 

42-8.    After a higher court has decided that an appeal is in order and should be entertained by the court, the court shall hear the case, or in accordance with the provisions of BCO 15-2 and 15-3, appoint a commission to do so.  At the hearing, after the Record has been read, each side should be allotted not over thirty (30) minutes for oral argument, the appellant having the right of opening and closing the argument.  After the hearing has been concluded, the court or commission should go into closed session, and discuss the merits of the case.

            The vote then should be taken, without further debate, on each specification in this form: 

 

            Shall this specification of error be sustained?

 

            If the court or commission deem it wise, it may adopt a minute explanatory of its action, which shall become a part of its Record of the Case.  The court or commission shall designate one of its members to write the opinion, which opinion shall be adopted by the court or commission as its opinion.

 

42-9.    The decision of the higher court may be to affirm in whole or in part; to reverse in whole or in part; to render the decision that should have been rendered; or to remand the case to the lower court for a new trial.  In every case a written opinion shall be prepared, and a copy of the opinion and judgment entered will be delivered personally or mailed to the lower court and the appellant, with a written receipt required.

 

42-10.  An appellant may represent himself or be represented as provided in BCO 32-19.

 

42-11.  An appellant shall be considered to have abandoned his appeal if he fails to appear before the higher court, in person or by counsel, for a hearing thereof, after he has been properly notified; but an appellant may waive, in writing, his right to appear with permission of the court and not be considered to have abandoned his case.  In case of such failure to appear, the judgment of the lower court will stand unless the appellant gives to the court a prompt and satisfactory explanation.

 

42-12.  If an appellant manifests a litigious or otherwise un-Christian spirit in the prosecution of his appeal, he shall receive a suitable rebuke by the appellate court.

 

CHAPTER 43

 Complaints

 

43-1.    A complaint is a written representation made against some act or decision of a court of the Church.  It is the right of any communing member of the Church in good standing to make complaint against any action of a court to whose jurisdiction he is subject, except that no complaint is allowable in a judicial case in which an appeal is pending.

 

43-2.    A complaint shall first be made to the court whose act or decision is alleged to be in error.  Written notice of complaint, with supporting reasons, shall be filed with the clerk of the court within thirty (30) days following the meeting of the court.  The court shall consider the complaint at its next stated meeting, or at a called meeting prior to its next stated meeting.  No attempt should be made to circularize the court to which complaint is being made by either party.

 

43-3.    If, after considering a complaint, the court alleged to be delinquent or in error is of the opinion that it has not erred, and denies the complaint, the complainant may make complaint to the next higher court.  If the court fails to consider the complaint by or at its next stated meeting, the complainant may make complaint to the next higher court.  Written notice of complaint, together with supporting reasons, shall be filed with both the clerk of the lower court and the clerk of the higher court within thirty (30) days following the meeting of the lower court.

 

43-4.    Notice of complaint shall not have the effect of suspending the action against which the complaint is made, unless one-third (1/3) of the members present when the action was taken shall vote for its suspension, until the final decision in the higher court.

 

43-5.    The court against which complaint is made shall appoint one or more representatives to defend its action before the higher court, and the parties in the case shall be known as complainant and respondent.  The complainant himself may present his complaint, or he may obtain the assistance of a communing member of the Presbyterian Church in America, who is in good standing, in presenting his complaint.

 

43-6.    It shall be the duty of the clerk of the lower court to file with the clerk of the higher court, not more than thirty (30) days after receipt of notice of complaint, a copy of all its proceedings in connection with the complaint including the notice of complaint and supporting reasons, the response of the lower court, if any, and any papers bearing on the complaint.  If the clerk of the lower court shall neglect to send up the proceedings on the complaint, he shall receive a proper rebuke from the higher court, and the act or decision complained against shall be suspended until the proceedings are produced so that the higher court can fairly consider the complaint.

 

43-7.    The complainant shall be considered to have abandoned his complaint if he fails to appear before the higher court, in person or by counsel, for a hearing thereof, after he has been properly notified; but a complainant may waive, in writing, his right to appear with permission of the court and not be considered to have abandoned his case.  In case of such failure to appear, the judgment of the lower court will stand unless the complainant gives to the court a prompt and satisfactory explanation.

 

43-8.    After the higher court has decided that the complaint is in order, the court shall hear the complaint, or in accordance with the provision of BCO 15-2 and 15-3, appoint a commission to do so.  If the date of the hearing shall, for good cause, be other than the same day it is presented, the court shall notify the complainant and respondent in writing of the date set for the hearing.

 

43-9.    At the hearing, after all the papers bearing on the complaint have been read, the complainant and respondent will be given the opportunity to present argument, the complainant having the right of opening and closing the argument.  After the hearing has been concluded, the court or the commission should go into closed session, and discuss and consider the merits of the complaint.  The vote should then be taken as to what disposition should be made of the complaint, and the complainant and respondent notified of the court’s decision.

 

43-10.  The higher court has power, in its discretion, to annul the whole or any part of the action of a lower court against which complaint has been made, or to send the matter back to the lower court with instructions for a new hearing.

 

CHAPTER 44

 

          (Vacated)

 

 

CHAPTER 45

 Dissents, Protests, and Objections

 

45-1.    Any member of a court who had a right to vote on a question, and is not satisfied with the action taken by that court, is entitled to have a dissent or protest recorded.

            None can join in a dissent or protest against an action of any court except those who had a right to vote in the case.

            Any member who did not have the right to vote on an appeal or complaint (see BCO 39-2), and is not satisfied with the action taken by the court, is entitled to have an objection recorded.

            A dissent, protest or objection shall be filed with the clerk of the lower court within thirty (30) days following the meeting of the lower court or with the clerk of the General Assembly before its adjournment.

 

45-2.    A dissent is a declaration on the part of one or more members of a minority, expressing a different opinion from the majority in its action on any issue before the court, and may be accompanied with the reasons on which it is founded.

 

45-3.    A protest is a more solemn and formal declaration by members of a minority, bearing their testimony against what they deem an improper or erroneous action on any issue before the court, and is generally accompanied with the reasons on which it is founded.

 

45-4.    An objection is a declaration by one or more members of a court who did not have the right to vote on an appeal or complaint, expressing a different opinion from the decision of the court and may be accompanied with the reasons on which it is founded.

 

45-5.    If a dissent, protest, or objection be couched in temperate language, and be respectful to the court, it shall be recorded; and the court may, if deemed necessary, put an answer to the dissent, protest, or objection on the records along with it.  Here the matter shall end, unless the parties obtain permission to withdraw their dissent, protest, or objection absolutely, or for the sake of amendment.

 

CHAPTER 46

Jurisdiction