Court rejects special General Assembly but says moderator 'acted improperly' By John H. Adams The Layman Online Wednesday, March 19, 2003 The General Assembly Permanent Judicial Commission has dismissed a complaint challenging the actions of the moderator and the stated clerk of the Presbyterian Church (USA) that invalidated a petition calling for a historic special meeting of the 214th General Assembly. Nonetheless, the court said Moderator Fahed Abu-Akel "acted improperly in his letter of January 14, 2003, when he 'implored [the Requesters] in the name of Christ and for the good of the Presbyterian Church (USA) to reconsider [their] decision' to call for a special Assembly." During the trial, Abu-Akel repeatedly testified that he was depending on the advice of Stated Clerk Clifton Kirkpatrick to guide him after he received the petition on Jan. 14. The court had removed Kirkpatrick as a defendant in the remedial case, but it was clear during the trial and during questions by members of the court that Kirkpatrick's counsel was on trial. Two members of the court, in a statement that was in part a dissent from their 10 colleagues, declared that the moderator's efforts to pressure commissioners to remove their names from the petition "shows that the process was fatally flawed." The court said Abu-Akel's letter to commissioners imploring them to change their minds "had the appearance of seeking to undermine the rights of commissioners. The Moderator has an obligation to see that the concerns of all parties, especially those expressing a minority opinion, are given full opportunity to be heard. Any action that appears to abridge this right should be scrupulously avoided." The commission's order said the moderator's letter to the 57 commissioners who signed the petition -- a letter that he said was crafted with Kirkpatrick's help -- was insufficient reason not to dismiss the case. The court concluded: "Notwithstanding the improper advocacy contained in the letter of January 14, 2003, the complainant failed at trial to meet the burden of proving by a preponderance of the evidence that the moderator's actions changed the response of any of the Requesters." The two court members who offered partial dissent are Gwen O. Cook and Christopher A. Yim, the court's vice moderator. The full court said the moderator "has the right and responsibility … to verify the standing and signatures of commissioners requesting a special meeting, and to conduct other verification as needed to maintain order and justice." "Verification should focus solely on the legality of the signatures," Cook and Yim said, and the process of verification "ought to be sterile, neither for nor against the cause of the petition." While some commissioners did change their minds, there was no evidence in the case alleging that any commissioner's name was illegally placed on the petition. "While the form of the petition in question was largely self-verifiable, the admitted desire of a signer to withdraw prior to the beginning of the verification process did give license to the Moderator to ascertain that the other signers still wished to request a special meeting," they added. Cook and Yim affirmed "fundamental Presbyterian polity and culture to afford great latitude to all minority positions lest the majority deem itself righteous enough to be able to declare that it no longer requires any correction … To hold such is to say that the majority may operate with capricious tyranny as sole interpreter and arbiter of the Holy Spirit…. "For the petitioners to be cajoled or implored to remove their names from the duly presented petition, especially based on a debatable projection of the cost of the meeting or the required number of days necessary for meeting notification, was clearly improper." On one of the key issues in the case, the court said commissioners "may join or withdraw from a request for a special meeting until such time as the Moderator issues the call for that meeting." The court was unclear about what kind of time frame that might involve.

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