Overture 04-21. On Amending D-6.0306a and D-8.0302a to Specify a Time Limit in Exercising the Right to Challenge the Findings of the Moderator and Clerk—From the Presbytery of San Francisco.

The Presbytery of San Francisco overtures the 216th General Assembly (2004) to direct the Stated Clerk to send the following amendments to the presbyteries for their affirmative or negative votes:

1. Shall D-6.0306a be amended as follows: [Text to be deleted is shown with a strike-through; text to be added or inserted is shown as italic.]

“a. If a challenge is made to the findings of the moderator and clerk within thirty days after receipt of those findings, either by a party to the case or by a member of the permanent judicial commission, opportunity shall be provided to present evidence and argument on the finding in question. Parties shall be invited to submit briefs prior to the hearing on the jurisdictional question.”

2. Shall D-8.0302a be amended as follows: [Text to be deleted is shown with a strike-through; text to be added or inserted is shown as italic.]

“a. If a challenge is made to the findings of the moderator and clerk within thirty days after receipt of those findings, either by a party to the case or by a member of the permanent judicial commission, opportunity shall be provided to present evidence and argument on the finding in question.”

Rationale

In the context of either a remedial complaint (D-6.0100 et seq.) or the appeal of a remedial case (D-8.0100 et seq.), the above portions of Book of Order provide a right for a party to the case or a member of the permanent judicial commission to make a challenge to the jurisdictional and related findings of the moderator and clerk. The Book of Order also requires the permanent judicial commission to dismiss the case if it determines that any point listed in D-6.0305 or D-8.0301 is answered in the negative (D-6.0306a, D-8.0302c). However, unlike most of the steps in the judicial process, the Book of Order does not specify a time limit for exercising the right to challenge the jurisdictional findings of the moderator and clerk.

When no notice of a challenge has been received, the absence of such a time limit creates a lack of certainty as to how long the right to challenge should remain open, and when the permanent judicial commission is required to make its findings and dismiss a remedial complaint. A specified time limit for giving notice of a challenge would assist in planning the work of a permanent judicial commission; help bring about the speedy, just, and economical resolution of a remedial case or appeal; and would ensure essential fairness in the process.