The Myth of an Independent Judiciary

We Presbyterians do not have such a tri-partite government. In the Presbyterian polity, there is only the Governing Body. There is no executive. There is no independent judicial branch. It is always and only the governing body that has the constitutional authority, whether acting in plenary, acting through an elected commission, or acting through some form of committee elected or appointed to carry out the acts and responsibilities of the governing body. Most recently, the General Assembly PJC seems to have ruled that in some cases the Moderator of the General Assembly may be the General Assembly acting.

As to the judiciary, this arrangement is explicit in the Rules of Discipline, where it says that judicial process is the “exercise of authority by governing bodies of the church” for disciplinary and remedial matters (D-2.0100). Judicial process is carried out by an elected permanent judicial commission which hears cases brought to it by an elected investigating committee or by complainants in remedial cases. When a judicial commission rules, it is an act of the governing body (G-9.0502).

The truth is that the judiciary is not independent. It is the governing body speaking; it is an elected commission of the governing body; it hears disciplinary cases only when initiated by elected committees of the governing body. Once upon a time, when we were governed by “judicatories,” the judicatory had to pass on the decision of its judicial commission; this is no longer the case. Under our current polity a ruling stands as an act of a governing body with no further action by the governing body except to enter the judgment in its minutes.

It is true that once a case reaches the PJC, a governing body may take no further “judicial action on the case” (D-3.0102). (It is not clear if a presbytery’s vote to rescind or amend a decision of a permanent judicial commission is a “judicial action,” particularly where the governing body does not disturb the finding of facts.) Apparently in a further attempt to make the judiciary independent, members are elected to long terms, six years. But these are slim assurances of independence. At least one presbytery has directed its investigating committees and permanent judicial commission not to pursue any disciplinary or remedial complaints growing out of attempts to enforce the provisions of G-6.0106b.

The concept of an independent judiciary is further attenuated by the consolidation of the executive function of governance into the governing body. In the civil arena, when a court makes a decision, the executive has the duty to enforce that decision as if it were law. But we have no executive branch, only a governing body. So a judicial commission has only the governing body that elected it to enforce its rulings. When problems of enforcement arose, in a misapplied analogy to the American constitutional system, some identified the stated clerk as the appropriate executive to enforce rulings of the PJC, a role given neither in the Form of Government nor in the General Assembly Manual.

The case in point is the attempt to have the 214th General Assembly enforce a decision of the General Assembly Permanent Judicial Commission, predicated on the ground that the session of the church had not adequately complied. (It is probably true that the overture should have been handled in two phases: first, a decision by the GA whether the session’s response to the order of its PJC was sufficient; then, if determined not sufficient, deciding what to do to enforce it.) When the GA decided it could not involve itself in a “local matter” to enforce a decision of its own permanent judicial commission, it effectively stated that the judiciary is not independent.

The confusion in our polity is illustrated in the General Assembly Manual, which, until amended by the 215th General Assembly, placed the enforcement provision of the General Assembly under the provision for the Stated Clerk. Apparently in response to the confusion generated in the 214th General Assembly, that provision was removed from the description of the Stated Clerk’s duties. (Even though it was not moved to another place in the GA Manual, it does not remove the responsibility of the General Assembly to enforce the decisions of its judicial commission.)

So I worry when I hear hopes that the “independent judiciary” will properly enforce the Constitution of the Presbyterian Church (U.S.A.) when the judiciary must rely on governing bodies to carry out their orders. If we really want the judiciary to be independent, governing bodies must be willing without question to take all steps necessary to enforce fully the decisions of their judicial commissions. Unless this is firmly established as an unquestioned, absolute and irrevocable mandate, then the notion of the independence of the judiciary will remain a myth, and the functional enforcement of orders of permanent judicial commissions will be forever subject to the vagaries of pressures and politics.

I believe it is probably true that the reluctance to urge governing bodies to step up to the plate lies in two general areas. One is that some governing bodies these days appear to be divided and affected by significant numbers of people who are willing to vote along a party line, regardless of what the Constitution requires. When this happens, there is no assurance that a governing body will effectively enforce an “unpopular” decision.

The other relates to the difficulties of finding adequate and effective remedies, of which there really are not many. Those that are available are either lacking in effective power or very harsh: The effectiveness of administrative review is dependent on a lower governing body’s willingness to comply, which willingness may not be forthcoming; forming administrative commissions with the power to assume original jurisdiction over a lower governing body that refuses to comply is a remedy so dire and difficult that it is rarely employed by presbyteries, and has never, as near as I know, been used against a middle governing body. These are difficulties in our polity that I do not know how to avoid––perhaps wiser souls can think of remedies I cannot. But if we let fear of making hard decisions or the difficulty of the remedies subvert our willingness to enforce the orders of our judicial commissions, we face the real possibility of making matters significantly worse.

There is an old quip that goes something like this: “Don’t just stand there, do something.” It recognizes that when there is a problem, doing nothing can make the problem worse. But it is equally true that applying the wrong solution to a problem can also make the problem worse, as the decades-long campaign to prevent forest fires, which had the long-term effect of making forest fires more likely and more destructive. I believe a simple reliance on an independent judiciary to resolve the problems before us, when we ignore the fact that the only thing the judiciary can do is give orders that need governing bodies to enforce them, has the potential of making matters worse rather than better.