Advisory Opinions: Note 13
Duties of a Stated Clerk

April 2, 2004

With surprising regularity, the issue of a Stated Clerk's role in Constitutional interpretation and the Stated Clerk’s role in judicial process has been the focus of calls to the Office of the General Assembly.

I. Stated Clerk as Constitutional Advisor

All Stated Clerks bear responsibility to serve as advisors and interpreters of the Constitution. As we note below, the General Assembly Stated Clerk has particular and explicit Standing Rules responsibilities. Clerks in the middle governing bodies share that responsibility. Stated Clerks often staff "bills and overtures" committees and other groups responsible for bringing recommendations on Proposed Amendment votes. All Stated Clerks are responsible to provide Constitutional interpretations to their governing bodies, committees, or entities of those governing bodies.

A. GA Stated Clerk as Constitutional Advisor to the Church:

1. Book of Order

G-11.0112a Ex Officio Member of Advisory Committee on the Constitution.

2. Standing Rules

G.2.e. "The Stated Clerk shall give advisory opinions concerning the meaning of provisions of the Constitution of the Presbyterian Church (U.S.A.), and shall give advisory opinions on the meaning of the actions of the General Assembly.

That is the authority that the Office of the General Assembly relies upon when we release Polity Reflections (such as #19 on G-6.0106b and #43 on the Lordship of Jesus Christ). But note also the preceding sentence:

G.2.e the Stated Clerk shall preserve and defend the Constitution of the Presbyterian Church (U.S.A.), and support the decisions, actions, and programs of the General Assembly."

This is the section that the OGA relied upon in defending the Constitutionality of G-6.0106b in the National Capital Presbytery v. Office of the Stated Clerk (1998).

II. Stated Clerk in Judicial Process

Basically a Stated Clerk's role in judicial process is to be absolutely non-partisan. The clerk cannot take sides, but can give impartial procedural help to both "sides" in a dispute. The Clerk, in such situations, must keep confidences as to whom she/he has talked to about what. The Clerk's function is to facilitate smooth and efficient process, not to determine particular outcomes. The Clerk acts as staff to the permanent judicial commission, as a resource to committees of counsel in remedial actions, and a presbytery clerk acts as advisor to an investigating committee in disciplinary cases. The Clerk fields questions from the parties themselves or their own counsel. In many ways the Stated Clerk in judicial process functions very much like a Clerk of Court in secular process: processes papers, gives procedural advice, communicates with all parties, and does what the judge (PJC) directs.

Below is an outline of the specifics of the Stated Clerk as "clerk of the court."

A. Remedial Cases

1. Must be neutral

a. D-5.0105 Not eligible to be on a PJC

b. D-6.0302b Must not be on the Committee of Counsel

2. Keeper of the Record

a. G-9.0304 (D3.0106) Receives Protests

b. D-6.0102 Complaint filed with Stated Clerk

c. D-6.0301f Answer filed with Stated Clerk

d. D-6.0307b,c Receives Record of Notice of Appeal

e. D-7.0402d Decision filed with Stated Clerk

f. D-8.0201a,b,f Receives Notice of Appeal

g. D-8.0304a Receive Appellant's Brief

h. D-8.0305 Receive Appellee's Brief

3. Carries out Administrative Tasks on Behalf of PJC

a. D-5.0206a,b Addresses PJC quorum and roster issues

b. D-6.0304 Transmits complaint and answer to officers of PJC

c. D-1.0103,D-6.0310 Reminds parties/PJC of Alternative Dispute Resolution options

d. D-7.0201c Issues citations at direction of PJC

e. D- 7.0601e Preserves record

f. D-7.0701 Reports PJC decision to governing body

g. D-8.0203 Transmits notice of appeal to PJC

h. D-8.0303c,e Notifies parties if appeal is accepted

i. D-8.0303g, D-8.0304 Grants extension of time limits

j. D-8.0306 Transmits case and record to PJC

k. D-8.0404e Reports decision of PJC to governing body

B. Disciplinary Cases*

1. Must be neutral

a. D-5.0105 Not eligible to be on a PJC

b. Must not be on the investigating committee/prosecuting committee

2. Keeper of the Record

a. D-10.0101 Receives allegations (Presbytery Stated Clerk)

b. D-10.0303 If no charges filed, receives petition for review

c. D-10.0404 Receives charges; D-10.0403f Receives decisions of PJC

d. D-11.0601e(2) Preserves record

e. D-12.0104g Receives requests for restoration

f. D-13.0201a Receives written notice of appeal

g. D-13.0201b Receives copy of notice of appeal

h. D-13.0304 Receives appellant's brief

i. D-13.0305 Receives appellee's brief

j. D-13.0404c Receives PJC decision

3. Carries out Administrative Tasks on Behalf of PJC

a. D-10.0103 "Without delay" refers to investigating committee (Presbytery Stated Clerk)

b. D-10.0105 Informs that transfer is prohibited.

c. D-10.0301 Investigating Committee reports through Stated Clerk (Presbytery)

d. D-1.0103, D10.0202g Reminds parties/PJC about Alternative Dispute Resolution options

e. D-11.0201c Summons witnesses from other governing bodies

f. D-11.0701 Reports decision of PJC to governing body

g. D-12.0104f Sends notice of censure to General Assembly Stated Clerk (Presbytery)

h. D-13.0202f Transmits record to PJC

i. D-13.0303c Notifies that record complete

j. D-13.0303g, D-13.0304a, D-13.0305b Grants extension of time

k. D-13.0306 Transmits record, briefs to PJC

l. D-13.0404e Receives decision

*Note: Synod and General Assembly Stated Clerks have jurisdiction and responsibility only in appeals in disciplinary cases. These clerks would not receive allegations that an offense has occurred (D-10.0102) nor a Petition for Review (D-10.0303).

III. Guidance from GAPJC on the Role of Stated Clerks in Judicial Process

The General Assembly Permanent Judicial Commission has offered guidance on the role of Stated Clerks in Judicial process. (Note that the advice was given prior to the adoption [in 1996] of the current Rules of Discipline but the advice remains apropos to this date):

Minutes, 1990, p. 139

11.087

Letter to Stated Clerks and to Moderators of PJC's about implementation of judicial process.

11.087

The Permanent Judicial Commission is increasingly concerned about the manner in which the church is implementing judicial process.

Recommendation

11.088

That the 202nd General Assembly (1990) instruct the Office of the General Assembly to send the following letter to all presbytery and synod stated clerks and to all moderators of presbytery and synod permanent judicial commissions.

LETTER:

11.089

The power that Jesus Christ has vested in the church is one for building up the body of Christ. (Preamble, the Rules of Discipline.)

11.090

The Permanent Judicial Commission of the General Assembly communicates to the General Assembly, and through the General Assembly to the church at large, concern of the Commission for the exercise of this power given by our Lord.

11.091

There is a great need for the church to be aware that there are several avenues constitutionally available for principled resolution of difficulties and conflicts in the church in addition to judicial process. The Book of Order (G-11.0502 d and i) supports negotiations, mediation, and reconciliation among parties, as well as formal litigation in the judicial commissions of the church.

11.092

Those who sense conflict in the church need to be educated to the possibilities and limits of each of the above options, in order to insure the church is open and accessible to its members. Too often a lack of information about these options leads to frustration of efforts to seek reconciliation and to ever-engrossing procedural irregularities or misdirections. In particular, it should be noted that choosing judicial process forecloses all other operations (D-4.0200c.).

11.093

To further this building up of the church it is incumbent upon the stated clerks of the various governing bodies fairly, openly, helpfully, and impartially to guide the process and give instruction in its operation. Too often stated clerks have assumed the role of "protectors" of the church. In so doing stated clerks inappropriately become adversaries of those seeking to use the system, viewing them as troublesome intermeddlers or surfacers of embarrassment. Stated clerks have also presumed to arrogate to themselves responsibilities of the judicial commission, or those of the moderator or clerk of the judicial commission. The stated clerks have no ground to refuse to produce documents requested by any party, or to determine appropriate content of the record of a case, or to transmit to a judicial commission materials in addition to those requested by a party, or to offer advice on the disposition of a case which is a prejudgment of the merits of the case by the stated clerk.

11.094

Finally, the General Assembly's Permanent Judicial Commission takes note of the great need for better training of our sister judicial commissions. Particular attention needs to be given to pretrial process. Further, inappropriate influences from secular law must be resisted. There is not, for example, any constitutional provision of the Book of Order for summary dismissal of any case. This commission finds that motions for such dismissals have become commonplace in the records before us, and judicial commissions need to be reminded that a dismissal is only appropriate after thorough examination of the record and opportunity for all parties to be heard.