Chapter VII
Appeals

1. An appeal in a judicial case is the removal of the case to an appellate judicatory by the filing of a petition asking that the final judgment of a lower judicatory be reversed or modified. An appeal may be taken by the accused, or by a judicatory whose judgment has been reversed or modified by an appellate judicatory.

Comment: The appeal described here has reference only to a judicial case. The appeal of a complaint is described in BD 9.3 and in the following sections of BD 9. In a judicial case, the judicatory of original jurisdiction announces to one adjudged “guilty” (either by trial, BD 4, or having come as their own accuser, BD 5) the verdict and the proposed censure. The convicted party may then appeal to an appellate judicatory, petitioning a presbytery or general assembly (as the case may be), to reverse or modify the judgment of a lower judicatory.

To reverse the judgment of a lower judicatory means to find specifications of error in the procedure of the lower judicatory that warrant a “not guilty” verdict. To modify the judgment of a lower judicatory means to find specifications of error in the procedure of the lower judicatory that warrant a lesser censure than the one proposed by the lower judicatory. An appeal may be taken, as already noted, by the accused. This would be in the case of a session dealing with a congregant or a presbytery dealing with a minister. Further, an appeal may also be taken by a judicatory (in this case a session) whose judgment has been reversed or modified by a presbytery. That session, in such a case, can appeal to the general assembly the presbytery’s reversal or modification of its judgment. Thus, appeal can be taken from the decision of either the court of original jurisdiction or an appellate body that overruled the court of original jurisdiction.

2. Decisions and rulings made by the trial judicatory during the course of the trial shall not be appealable but may be assigned as grounds of appeal from the final judgment of the judicatory.

Comment: During the course of a trial, an accused party may lodge numerous objections to various decisions and rulings made by the trial judicatory. The trial judicatory should note such objections and exceptions to its rulings taken by a defendant in its minutes and the response made to such, particularly as to whether such objections were sustained or overruled (and any other decisions made with respect to them on the part of the trial judicatory). Such objections and exceptions are not themselves appealable, as if the trial could be stopped or interrupted to take such matters on appeal to a higher judicatory. Rather, all such exceptions taken by the defendant to the proceedings of the trial judicatory in the course of the trial may be assigned as grounds of appeal—typically cited by the defendant as specifications of error on the part of the trial judicatory—if the trial judicatory, in its final judgment, finds the defendant “guilty” and proposes censure.

3. Notice of an intention to appeal must be filed in writing, within ten days after the judgment has been announced, with the clerk or the moderator of the judicatory from which appeal is to be taken.

Comment: The guilty party has ten days to file notice of intention to appeal in writing. Such notice should be filed with the clerk or moderator of the judicatory from which the appeal is to be taken. The ten-day period begins when the proposed judgment/censure has been announced to the one adjudged guilty (when it is proposed as the verdict and censure of the trial judicatory). If he fails or declines to appeal, the judicatory may execute his proposed censure after the expiration of the ten days. If he files intention to appeal within the ten-day period allotted for such, the judicatory may not execute its judgment but must now wait until the appeals process has run its course in the particular case. For instance, if a session proposes a censure of indefinite suspension, and the party adjudged guilty (either by trial or coming as his own accuser) notifies the judicatory of an intention to appeal, the judicatory must wait until the appellant has stopped appealing to execute the censure and must do so only in light of what appellate courts may have determined. If an appellant chooses not to appeal the decision of a session beyond the presbytery, for instance, things may proceed once the presbytery has ruled on the appeal. If the appellant chooses, however, to take his appeal to the general assembly, then matters must await the determination of that body.

4. In order to perfect an appeal, the appellant must lodge the appeal and the specifications of error with the clerk of the appellate judicatory within thirty days after the filing of the notice of appeal. The appellant shall also serve a copy of the appeal to the clerk of the judicatory from whose judgment the appeal is taken. The clerk of the appellate judicatory shall give the appellant and the judicatory from whose judgment the appeal is taken reasonable notice of the time, date, and place fixed by the appellate judicatory for the hearing of the appeal.

Comment: A distinction is to be made between the notice of intention to appeal, for which an appellant has ten days and is filed only with the judicatory from which appeal is taken, and the actual document that contains the substance of the appeal, for which the appellant has thirty days (after filing the notice of intention to appeal). This latter document must contain the specifications of error that constitute the appeal; in other words, the appeal proper consists of those things that the appellant believes went wrong in the lower judicatory. If, for instance, someone is appealing the decision of a session that served as his judicatory of original jurisdiction, the appeal to the presbytery will contain what the appellant believed was amiss in the session’s handling of his case. It should be clear that the appellant does not have his case retried on appeal.

The presbytery, as an appellate court (in this example), is not to retry the case. Rather, the presbytery is to look at the process that the session undertook in hearing the case: was it fair, did it attend to due process properly, etc.? These are the questions to be considered by the appellate judicatory, certainly in the case of a charge(s) pertaining to life (ethics/morals), as opposed to doctrine. In a case of someone charged with moral failure (violating, say, the sixth or seventh commandment), the appellate judicatory wants to assure itself that the trial judicatory properly attended to the case (to evidence, witnesses, direct and cross examination, etc.). In a case of a doctrinal charge, on the other hand, an appellate judicatory is quite concerned as to whether the alleged doctrinal divergence is, in fact, a censurable departure from sound teaching, i.e., whether what is alleged to be teaching contrary to the Scriptures and secondary standards is, in fact, a doctrinal departure as alleged.

Copies of the “perfected appeal” shall within the thirty-day period allotted be furnished both to the clerk of the judicatory to which the appeal is made and to the clerk of the judicatory from which appeal is taken. The clerk of the judicatory to whom appeal is made shall furnish the appellant and the judicatory from which appeal is taken, notice as to when the appellate judicatory will hear the appeal. Such notice shall include the time, date, and place of the meeting of the appellate judicatory to hear the appeal. The notice shall be reasonable, i.e., it should be given in due time for proper planning (not “the presbytery meets in three days to hear your appeal”).

5. The clerk of the judicatory from whose judgment the appeal is taken shall submit the entire record of the case, including the chronology, to the clerk of the appellate judicatory.

Comment: This matter is important enough to warrant its own separate section, because all the records of a case are vital and need to be fully furnished to the higher judicatory when a judicial case is on appeal. The clerk of the judicatory from whose judgment the appeal is taken is required to submit the entire record of the case, including the chronology prepared by the presbytery, or the clerk (or others) acting on its behalf, to the clerk of the appellate judicatory. Assuming that the clerk of the judicatory from which appeal is taken has been duly notified of such by the appellant (a crucial matter that must be attended to), the clerk of the appellate judicatory should not have to ask the clerk of the judicatory from which appeal is taken to furnish him with all these relevant documents. The clerk of the lower judicatory from which appeal is taken is required to furnish the entire record of the case and should do so with as much dispatch as possible.

6. If the appellate judicatory does not sustain any of the specifications of error, the judgment of the lower judicatory shall be affirmed. If the appellate judicatory sustains any specification of error, it shall determine whether the error is of such importance as to require a reversal or modification of the judgment. An appellate judicatory which decides not to sustain the judgment of a lower judicatory may remit the case to the trial judicatory for a new trial, may modify the judgment, or may reverse the judgment.

Comment: The appellate judicatory, in taking up the case on appeal, votes on each specification of error, the moderator preferably putting the matter in each case as, “Shall this particular specification of error be sustained?” If the appellate judicatory does not sustain any of the specifications of error alleged with respect to the proceedings of the lower judicatory, the judgement of the lower judicatory shall be affirmed. If, on the other hand, the appellate judicatory does sustain any single error, the appellate judicatory shall then proceed to determine whether the error is of such importance as to require a reversal or modification of the judgment of the lower judicatory.

The appellate judicatory may decide that the error is of such a nature (that it is insignificant, for example) that it does not warrant reversing or modifying the lower judicatory’s judgment. If it does decide that the error or errors warrant serious treatment, however, it may do one of three things, as noted in the last sentence: it may remit the case to the trial judicatory for a new trial, it may modify the lower court’s judgment, or it may reverse the judgment of the lower court.

A reversal of the judgment of the lower judicatory would involve a determination on the part of the appellate judicatory that the guilty verdict of the lower judicatory was improperly arrived at and that the accused is, in fact, not guilty (rather than guilty). A modification of the judgment of the lower judicatory would involve a determination on the part of the appellate judicatory that the censure of the lower judicatory was unduly severe and should be lessened (e.g., an excommunication should be reduced to an indefinite suspension).

It should be noted that appeals work only in the direction, respecting reversal or modification, of a guilty verdict being reversed to a not guilty verdict or of a more severe censure being lessened to a less severe censure. This is because all appeals in a judicial case are from the accused, and he would never be asking that a not guilty verdict become a guilty verdict (he would have simply pled “guilty” if he so desired) or a lesser censure to become a stricter one (he would not be appealing a censure unless he wanted a reduced one).

In addition to modifying or reversing the judgment of the lower court, the appellate judicatory may remit the case to the trial judicatory for a new trial. In such a case, the appellate judicatory would customarily give grounds to the court of original jurisdiction as to why a new trial is ordered and any special instructions for such that the appeal might be thought to have shown warranted. For example, the appeals court might instruct the trial court to disregard something that the lower court took as proper evidence at trial or to disqualify a witness that the appeals court deemed not to be competent. In any case, the appeals court can require a retrial that follows any instructions that it thinks necessary for the case to be fairly heard and handled.

7. When the judgment of a lower judicatory is before an appellate judicatory, neither the appellant, nor any member of the judicatory from whose judgment the appeal is taken shall propose or second motions, or vote in any decisions concerning the case.

Comment: When the judgment of a lower judicatory is before an appellate judicatory (either at the presbytery or general assembly level), the involved parties, while having privilege of the floor, may not make or second any motions whatsoever pertaining to the case (whether procedural or substantive), nor may they vote in any decisions concerning the case. The involved parties would include the appellant and the judicatory from whose judgment the appeal is taken. This means that in the case of an appeal from a judgment of a session, neither those bringing the appeal, which includes counsel to the appellant(s), nor the session being appealed may make or second motions or vote in any decisions of the presbytery, the court of appeal, concerning the case. Similarly, when a presbytery’s judgment is appealed to the general assembly, neither the appellants nor the presbytery whose judgment is being appealed to the assembly may perform any of the prohibited functions.

[Suggested forms to use when giving a notice to appeal or for the appeal itself are located on pages 172–73.]

Chapter VIII
Dissents and Protest

1. Any member of a judicatory who is entitled to vote on a question and who votes against the action or judgment of the judicatory thereon may request that his vote be recorded in the minutes of the judicatory.

Comment: Any member of a session, presbytery, or general assembly who has the right to vote on a question before the relevant body and who votes contrary to the action or judgment of said judicatory may request that his vote be recorded in the minutes of that body. This means that if he votes affirmatively, and the body defeats the motion in question by a majority “no” vote, said member may request his affirmative vote to be recorded in the minutes. Likewise, if the body adopts a matter, by a majority “aye” or “yes” vote, a member who stands in opposition to this may request that his negative vote be recorded in the minutes.

It is common courtesy for all judicatories to grant this request and to thus record affirmative or negative votes as the case may warrant, depending upon whether the affirmative or negative vote prevailed. This is generally viewed, taken in concert with section 2 of this chapter, as well as the next chapter on Complaints (Chapter 9), as the first step in registering disagreement with the actions of a body. For most, requesting that their votes be recorded ends the matter. For those that have greater, continuing, in short, unresolved concerns about the way a vote went, this may be, but certainly need not be, the first step in a process that may eventuate in a protest and/or a complaint. It is not the case that one may only complain when one has registered a contrary vote and protested. But it is the case that some start with this and, if unsatisfied, proceed to greater protests if they think that the case is serious enough to warrant such.

2. Any member of a judicatory may file a written protest stating his reasons for objecting to an action or judgment of the judicatory. A protest must be filed with the moderator or clerk within ten days after the judicatory has taken the action or announced the judgment, provided, however, that a protest against an action or judgment of the general assembly must be filed prior to the dissolution thereof. A protest shall be read to the judicatory and shall be recorded in the minutes.

Comment: This section addresses what may be a next level after recording one’s contrary vote (see comment on section 1, above). It is not necessary that the filing of a protest follow the recording of a vote contrary to the action of a judicatory: customarily it does not. Most leave their wish to make known their objection to some action of a judicatory at the level of the recorded contrary vote. It is also not required that the recording of a contrary vote precede the filing of a protest, as if one could not properly protest without having first recorded one’s contrary vote. But these things are sometimes linked, and some parties wish to get their vote recorded, file a protest, and file a complaint in cases where they wish to show that a course of opposition to the actions of a judicatory was carefully and deliberately taken.

Any member of a judicatory may file a written protest enumerating his reasons for objecting to some action or judgment of a judicatory. Note that he need not have been present when the judicatory took the action. This means that a minister on a session or an active ruling elder can protest an action of the session, even when he may have been absent from the meeting that took the action. Similarly, a ministerial member of the presbytery, whether present at the meeting or not (as well as any commissioned ruling elders at the meeting), would be eligible to file a protest.

Such a protest document would state the reasons for objecting to the judicatory’s action(s) and must be filed with the respective moderator or clerk within ten days after the session or presbytery took the action to which the protesting party objects. In the case of a general assembly, any such protests that may be filed with that body must be filed prior to the dissolution of the general assembly. A protest is to be read to the judicatory and shall be recorded in the minutes.

3. The judicatory may, if it so desires, place in its minutes an answer to a protest.

Comment: A judicatory whose action has been protested may place in its minutes any such answer to the protest as it may deem appropriate. A judicatory is, of course, not required to place an answer to a protest but may “if it so desires.” One of the good reasons for answering a protest is to show that the judicatory has heard and considered it. The answer could even accede in whole or part to the protest, as well as deny the reasons in the protest as valid, relevant, etc. If the judicatory in any measure accedes, it may well be the case that the judicatory reverses itself in some way, perhaps in reconsidering the question and voting as the protest preferred, declaring something null and void, etc.

Contrariwise, a judicatory may wisely take the occasion of an answer to defend its actions more thoroughly and cogently, perhaps convincing the protesters of the propriety of the judicatory in the actions protested and even staving off future complaints. An answer to a protest provides a record of the judicatory’s rationale for the actions taken, as well as which ones were protested, both for the better informing of protestors (making for the purity, peace, and unity of the church) and the judicatory itself, including providing a good record of the judicatory’s rationale, especially helpful in any potential appeals that might emerge in the event that protests develop into complaints.

Alan D. Strange is a minister in the Orthodox Presbyterian Church and serves as professor of church history and theological librarian at Mid-America Reformed Seminary in Dyer, Indiana, and is associate pastor of First OPC in South Holland, Illinois. Ordained Servant Online, October, 2023. A list of available installments in this series appears here.