The 47th General Assembly of the Presbyterian Church in America sent two proposed BCO Amendments to Presbyteries for voting, for advice and consent. The first item proposes a small amendment of just a few words, “of the last court’s decision,” to BCO 42-4 and to BCO 43-3.

Here is the amendment proposed to BCO 42-4, with the proposed new language in bold:

42-4. Notice of appeal may be given the court before its adjournment. Written notice of appeal, with supporting reasons, shall be filed by the appellant with both the clerk of the lower court and the clerk of the higher court, within thirty (30) days of notification of the last court’s decision.

Notification of the last court’s decision shall be deemed to have occurred on the day of mailing (if certified, registered or express mail of a national postal service or any private service where verifying receipt is utilized), the day of hand delivery, or the day of confirmed receipt in the case of e-mail or facsimile. Furthermore, compliance with such requirements shall be deemed to have been fulfilled if a party cannot be located after diligent inquiry or if a party refuses to accept delivery. No attempt should be made to circularize the courts to which appeal is being made by either party before the case is heard.

Then, here is the amendment proposed to BCO 43-3, with the proposed new language underlined:

43-3. If, after considering a complaint, the court alleged to be delinquent or in error is of the opinion that it has not erred, and denies the complaint, the complainant may take that complaint to the next higher court. If the lower court fails to consider the complaint against it by or at its next stated meeting, the complainant may take that complaint to the next higher court. Written notice thereof shall be filed with both the clerk of the lower court and the clerk of the higher court within thirty (30) days of notification of the last court’s decision.

Notification of the last court’s decision shall be deemed to have occurred on the day of mailing (if certified, registered or express mail of a national postal service or any private service where verifying receipt is utilized), the day of hand delivery, or the day of confirmed receipt in the case of e-mail or facsimile. Furthermore, compliance with such requirements shall be deemed to have been fulfilled if a party cannot be located after diligent inquiry or if a party refuses to accept delivery.

This version of the amendment was edited down from the original Overture 9 from Platte Valley Presbytery. The original version offered clarification for the specific method and deadlines for the timely filing of Appeals and Complaints—specifically, to specify the requirement that “neither facsimiles nor e-mail will be allowed for purposes of filing.”

Changes to the Original Overture 9

Overtures Committee recognized the need for clarifying the language about the timeline for timely filed appeals and complaints. Overture Committee did not, however, want to preclude digital filing at the same time. So, Overtures struck out much of the original language, leaving only those few words, “of the last court’s decision.”

On the floor of General Assembly, someone then raised the question of whether this phrase remaining is now redundant, since “the last court’s decision” is already included in the immediately preceding sentences of both sections. I attempted to give an answer on the floor of General Assembly, but I thought it might be valuable to give this answer again in writing as Presbyteries begin to consider this amendment.

Why Amending BCO 42-4 and BCO 43-3 is Important

The reason we need to adopt this proposed BCO amendment has to do with two different notifications that are ambiguously discussed in these sections of the BCO.

BCO 42-4 refers to both “notice of appeal” and “notification of the last court’s decision.” But, BCO 42-4, as currently written, does not specify which notice/notification this section refers to: “Notification shall be deemed to have occurred on the day of mailing (if certified, registered or express mail of a national postal service or any private service where verifying receipt is utilized), the day of hand delivery, or the day of confirmed receipt in the case of e-mail or facsimile.”

Similarly, BCO 43-3 refers to both the written “notice” of a complaint as well as the “notification of the last court’s decision.” Again, BCO 43-3 does not specify which notice/notification this section refers to: “Notification shall be deemed to have occurred on the day of mailing (if certified, registered or express mail of a national postal service or any private service where verifying receipt is utilized), the day of hand delivery, or the day of confirmed receipt in the case of e-mail or facsimile.”

Without the clarification, this section seems to state that the notices of appeals or complaints may be sent by e-mail or facsimile. In fact, this is not authorized in terms of appeals and complaints to the SJC (see SJC Manual 18-10.b), and these ambiguous sentences are in fact referring to the notification of the last court’s decision.

Practical Need for Amending BCO 42-4 and BCO 43-3

Platte Valley Presbytery ran into trouble interpreting this provision in 2018, causing confusion about what constituted a timely-filed appeal. This confusion prompted our Presbytery to overture General Assembly to amend BCO 42-4, and the identical language of BCO 43-3. Our Presbytery was not alone in this confusion, however.

The same difficulty caused a complaint in SJC Case 2016-02 to be ruled administratively out of order (M45 GA, 2017, p. 509). A concurring opinion written by RE Howard Donahoe (the Moderator of the 47th General Assembly) acknowledges the confusing language and then states, “Accordingly we believe that BCO 43-3 should be clarified by amendment offered through an Overture” (M45 GA, 2017, p. 514).

For these reasons, I urge Presbyteries to vote to amend BCO 42-4 and BCO 43-3 this year.

Published with permission to print. Jacob Gerber is a Minister in the Presbyterian Church in America and is the Senior Pastor of Harvest Community Church (PCA) in Omaha, NE, and also serves as the Stated Clerk of the Platte Valley Presbytery.