However, I am obliged to tell you that in the event you do not reconsider the course you are on, I am prepared to seek an injunction, under corporation law (as I will discuss more fully below) to compel you to follow your legal obligations.
The Constitution could not be more explicit on the subject:
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, all of whom must have been commissioners to the last preceding stated meeting of the General Assembly. . . . . Commissioners to the special meeting shall be the commissioners elected to the last preceding stated meeting of the General Assembly or their alternates. A presbytery may, however, elect a commissioner or alternate instead of one who has died or changed presbytery membership. Notice of a special meeting shall be sent not less than sixty days in advance to each commissioner elected to the last preceding stated meeting of the General Assembly (G-13.0104).
Subsequent to my presentation to you of the signed original requests, you have done everything except what is required of you. Instead of obeying the constitution, you and the Stated Clerk have engaged in a campaign to get the 57 commissioners who have requested the meeting to change their minds-as if the recantation by a commissioner would have constitutional significance. You have taken the unconstitutional position that 120 days notice, instead of the specified 60 days, is required to be given. You have refused to issue the call until you confirm with each requesting commissioner that his signature is genuine. Such unconstitutional tactics are in breach of your fiduciary duty, and unless you reconsider them, will leave me with no option but to bring an action in the secular courts.
The Book of Order mandates that you immediately call the 214th General Assembly back into session, and offers no authority for any position you have taken: there is no provision for you to delay doing so for any reason; there is no provision for verification of signatures; there is no provision for a signatory to withdraw, much less a provision allowing for you to advocate such withdrawal; there is no provision for not counting a signatory who has changed presbyteries; there is no provision for 120 days notice.
The language I just cited from the Book of Order could not be more unequivocal: those making the request “must have been commissioners to the last preceding General Assembly”. Your office was and is immediately able to determine, without further inquiry, if the signatures are from such persons. The January 16th letter sent by the Stated Clerk for the nominal purpose of verification of signatures, exceeded his authority. This is particularly true in light of your own preceding letter asking the commissioners to reconsider. Since there is no constitutional provision for verification of signatures, sending this letter is nothing more than an attempt for you to later justify having abandoned your constitutional duties.
The Book of Order in G-13.0104 contemplates that in the event of the need for a special meeting there will be some urgency, thus explaining why the draftsmen explicitly failed to include a provision for verification. If verification were required, the question would arise as to what would happen if a signatory was unable to be reached, or was ill, or even died. By the same token, there is no provision in the Book of Order for verifying identity at any meeting of the General Assembly, or at any other governing body. On the contrary, the Book of Order speaks repeatedly of actions that are required by governing bodies because certain conditions occur, and yet never once speaks of verification.
The four corners of G-13.0104 require you to call a special meeting upon being presented with the request, not at some later date after reconfirming the requests. I call to your attention the fact that I presented you with the original post-card petitions, each bearing the postmark of the locality where the commissioner who signed it mailed it. Thus these postcards are self-authenticating. For the few petitions mailed in envelopes, I retained those envelopes, and would happily provide them to you upon request.
Of all of the erroneous arguments you and the Stated Clerk have raised, the most outlandish is that you must give 120 days advance notice. Section G-13.0104 explicitly states that “Notice of a Special Meeting shall be sent not less than sixty days in advance…” The 120-day provision relates to a restriction on General Assemblies from considering amendments to or interpretations of the Book of Order that have not been submitted 120 days in advance. The requests for the Special Meeting do not contain any proposed amendment to or interpretation of the Book of Order, and there is no reason for any one to suspect that any commissioner to the special meeting would seek to introduce such a motion. The special meeting can be held consistent with its stated purpose without any motion made to amend the Book of Order.
Presbyweb has published a letter from the Stated Clerk which tries to justify your 120-day argument by adverting to the seeming similarity to the stated purpose of the request for the special meeting and the Shenango [Presbytery] overture. Dr. Kirkpatrick reasons that thus the purpose of the special meeting necessarily involves a constitutional interpretation. Assuming for the sake of argument he is correct, then the Shenango overture is still before the 214th General Assembly, and no further notice need be given! For instance, a commissioner who voted in the majority on the floor with regard to this overture could simply move for the reconsideration of that vote. This fact betrays the Stated Clerk’s argument to be nothing more than a transparent subterfuge intended only to subvert the constitution. As a further argument I would submit that G-13.0112 does NOT apply to issues of interpretation or amendment that are initiated from WITHIN the General Assembly itself. G-13.0112c states:
All questions requiring an interpretation by the General Assembly of the Book of Order arising FROM governing bodies of the church or from individuals shall be communicated in writing TO the Stated Clerk of the General Assembly no later than 120 days prior to the convening of the next session of the General Assembly. (Emphasis added.) Reading this section in its entirety, it is clear from the use of the words “from” and “to,” that the source that the origin of the questions are from governing bodies other than the General Assembly itself. Therefore, this 120 restriction cannot apply to questions arising within the General Assembly.
More to the point, the Manual of the General Assembly, 2001-2002, which is the prevailing authority for the 214th General Assembly, states in E.4.c:
(2) New business initiated in an Assembly committee proposing an amendment to the Constituion (Book of Order, G-18.0301 (a) and (b)) or requiring an interpretation of the Constituion by the General Assembly (Book of Order, G-13.0112(c)) shall be referred to the Advisory Committee on the Constitution, which shall report its findings and recommendations to the General Assembly. Any other new business initiated in an Assembly committee which touches on a constitutional matters (Book of Order, G-13.0112 (e)) shall be communicated in writing to the Advisory Committee on the Constitution and to the Stated Clerk. The Advisory Committee on the Constitution shall consider each matter referred and report its findings and recommendations (which may include proposals for constitutional change) to the Assembly committee and the Stated Clerk. The advice of the Advisory Committee on the Constitution on these matters shall be transmitted to the General Assembly with the report of the Assembly committee.
(3) When the General Assembly is in plenary session, questions that touch on constitutional matters, including rulings on questions of order involving constitutional matters requested by the Moderator, shall be handled in accordance with Book of Order G-13.0112(e). These questions shall be referred in writing by the Moderator to the Advisory Committee on the Constitution, which shall consider each matter referred and make recommendations directly to the General Assembly through the Moderator. (Standing Rule B.6.)
Thus it is beyond dispute that constitutional matters may be initiated during a general Assembly on the floor of plenary, or in a committee, without prior notice.
You have also attempted to subvert the Constituion by trying to convince commissioners who have called for you to reconvene the General Assembly to change their minds. Once again, this argument is wholly unconstitutional. The thought that the Moderator and Stated Clerk of the General Assembly would ignore the express provisions of the Constituion and trash the delivered requests is outrageous! The Book of Order mandates action, and provides for no opportunity at this point for a commissioner to rescind his or her request for a special meeting. Furthermore, there is no secular jurisdiction in America known to me where a person is allowed to withdraw his assent to a petition, after that petition is submitted. So far as I have been able to ascertain, this fact is so well-settled that no such attempt has ever been made.
In California, where I live, virtually every state-wide election contains ballot measures which were initiated by petition. California law does not allow a signatory to a petition to defeat the effect of the petition by withdrawing his assent. Were such to be allowed, absurd results would be possible. A person could withdraw after the ballot is printed, or even after the election is held. To avoid such absurdities, perhaps, no state that I know of allows any person to withdraw his assent to a petition, once submitted.
Before I close on the subject of your attempts to get commissioners to reconsider, I must ask you and the Stated Clerk, and your staffs, to stop misquoting me as having written that one commissioner’s request should be withdrawn. As you know, that is NOT what I wrote. I merely informed the Stated Clerk, as I felt obliged to do, that one commissioner had himself so stated to me. My position is clear that he cannot withdraw his name, but that I was obliged to make his request known to you. For Gradye Parsons and Cliff Kirkpatrick to say that I asked for his name to be removed, is unconscionable!
The Book of Order G-13.0104 explicitly provides that a commissioner may change presbyteries and yet join in the request for a special session of the preceding General Assembly, and even attend as a commissioner! The Book of Order states that in such a circumstance, a commissioner who has changed presbyteries “may” — not “must” — be replaced for purposes of the special meeting. This sentence, read together with the previously quoted section, leaves no room for the argument that you can fail to consider the request of a commissioner who has changed presbyteries. The only persons who can request a special meeting are those persons who were commissioners to the preceding regular General Assembly, and that in the case of such a commissioner who has moved to a new presbytery, the old presbytery can, but need not, replace him. The draftsmen of this provision could not have been more explicit. Therefore your duty to call the special meeting of the 214th General Assembly is unchanged if it turns out that one or more signatures requesting the special meeting come from persons who have since changed presbyteries.
In each of these instances, it may fairly be said that the standard rule of statutory construction is that all provisions of a statute be read together and understood to give effect to their goal. Applying that rule to any of these instances dictates the reading I have given, because any other reading would have the opposite effect: e.g., to prevent the meeting from being called. The maxim of statutory interpretation involved here is expressio unius est exclusio alterius. “The expression of one thing excludes the contrary expression.” Since the Book of Order provides that the meeting SHALL be called upon the petition of x-number of commissioners, and fails to provide for any of the other circumstances I have discussed, there is no legal basis for failing to enforce the plain meaning of the Book of Order.
In conclusion, it is with a heavy heart that I have come to the decision that I must bring a lawsuit against you in the secular courts. Mr. Moderator, taking my Christian brothers and sisters into a court is something that I do NOT want to do; the very thought of it grieves me, particularly in light of the counsel we are given in Scripture on that subject. Yet I have exhausted every remedy offered to me in the Constitution of the Presbyterian Church (USA). I beseech you not to put me in the position that the only option left to me to defend the Constitution is in the secular courts where a truly impartial judgment can be made. To afford you the opportunity to change your mind and avoid litigation, I will wait until next Monday before filing suit. I implore you to call the special session before then.
Respectfully yours,
Alex Metherell, MD, PhD
Elder Commissioner, 214th General Assembly
Los Ranchos Presbytery
cc: The Rev. Dr. Cliff Kirkpatrick, Stated Clerk
