Readers who have access to the 1977 Agenda for the CRC Synod will find that Report 41 (pp. 399 ff.) is about “A Proposed Judicial Code” which the 1977 eRe Synod will have to consider. First presented by attorney Charles L. Zandstra as an address at last September’s annual meeting of Reformed Fellowship, this article deals with the matter of a Judicial Code for the CRC. Assisting in the preparation of this material, attorney Daniel C. Hoebeke, is a member of Mr. Zandstra’s law firm in Highland, Indiana.

There is something missing in the Church Order. The Synod of 1974 was presented with an overture expressing the need for a judicial code in the Christian Reformed Church. The overture stated in part as follows:

“There is lacking in the Church Order sufficiently clear and explicit articles pertaining to the substantive and procedural rights and privileges of its members who may, in respect of life or doctrine, be addressed or heard by their ecclesiastical supervisors. In order to insure the matters of this sort are dealt with in a fair manner and that true justice be done, it is proposed that the following regulations be incorporated in the Church Order.”

In response to this overture, a committee was appointed to investigate whether the need for such a code does exis t. The committee reviewed the Acts of Synod from 1960 to 1974 and discovered that there were many instances where there were significant procedural problems which were directly indicated in the Synodical record itself, many of which could have been avoided if a workable judicial code had been enforced to protect the rights and privileges of the members and the asscmblies involved.

It is my conviction that the procedural problem is capable of solution. Further, I believe that the substantive problems will be difficult, if not impossible, to solve without a fair judicial due process.

Procedural problems – The purpose of our discussion is to attempt to point out with some particularity the procedural problems with the present Church Order and to suggest ways of solving the problems.

Before we proceed further, it is necessary to define what I mean by the terms “procedure” and “substance.” Procedure is the vehicle through which a legal right is enforced as distinguished from the law which gives or defines the right. In other words, the machinery, as distinguished from its product. Or even more simply staled, procedure is the how and substance is the what.

Particular issues of substantive concern to the Christian Reformed Church will be excluded, for example: the authority of Scripture, ordination of women in the Church, and other current substantive issues. Our discussion is limited to present procedural difficulties which preclude an accurate and complete evaluation of the substantive issues such as those just mentioned.

Article Twenty-eight of the Church Order requires that the assemblies of the Church deal with ecclesiastical matters in an ecclesiastical manner. Without effective procedural guidelines, it is often impossible to deal with substantive issues in that required manner.

The Boer case – To illustrate the magnitude of the problem, allow me to cite a recent example, that of Dr. Harry Boer. It is not my intention to plead the pros and cons of the substantive issue. Rather, by using this example, I hope to show how an inadequate procedure affects the decision-making process on substantive issues in the Christian Reformed Church.

Dr. Boer alleged that on January 8, 1976, five days before Classis IlIiana met, he received a statement of the Consistory’s grounds for the charges. These grounds consisted of a 20-page document, typed and single spaced. Furthermore, Dr. Boer’s response to the Consistory’s document was first distributed at the meeting of Classis llliana. This document was 9 pages long, typed and single spaced. Apparently this short period of time for filing papers met the requirement of the Church Order. It is incomprehensible to me how Classis Illiana with an otherwise congested agenda could give adequate consideration to the substantive matter raised by this issue having received those lengthy documents on the date Classis met. That is a procedural problem which could have been avoided by a carefully drafted judicial code.

A second procedural problem became evident when, after 10 years of dealing with the Consistory, Dr. Boer was allowed under Article Five of the Church Order to go to Synod at a time when Classis was about to conclude the matter by having a vote on deposition. By exercising his rights under Article Five, Classis was precluded de facto from exercising the jurisdiction it had over the matter at a time when it was prepared to act.

It is, to say the least, frustrating to realize that the Church Order as it presently operates would allow Synod to effectively pre-empt the matter after lengthy deliberation by both Consistory and Classis.

There is certainly nothing wrong in and of itself with a provision in the Church Order that different ecclesiastical bodies have the right to consider a particular issue at a particular time. The particular facts for a given case may make it advisable to be able to choose between alternate routes.

The Boer case, however, indicates the procedural problems involved when both routes can be used at the same time.

The civil courts take care of this problem by what is termed an “election of remedies.” In essence, the courts of law require that when a litigant has a choice of remedies and begins to pursue one of them, he loses the right to proceed on the other.

An “election of remedies” provision in the Judicial Code could have eliminated the difficulties caused by Synod’s pre-emption in the Boer matter. Since the route of Consistory-Classis-Synod had already been started, the rule would require that no alternate procedure could be used until the matter, as begun, was resolved in one way or another.

At this point you may be seriously questioning, as I am, whether or not such procedures are fair to all parties involved. The Supreme Court of the United States in the case of Mullane vs. Central Hanover Trust Company stated that at a minimum the deprivation of life, liberty or property must be preceded by notice and opportunity for hearing appropriate to the nature of the case. Again, in another landmark Supreme Court case, it was stated that the timing and content of the notice and the nature of the hearing will depend on appropriate accommodation of the competing interests involved.

Procedural difficulties such as the foregoing are critical inasmucll as they discourage Church members from exercising their responsibilities as prophet, priest and king. It is beyond question that every Church member has the responsibility to exercise these duties. Obviously, a large percentage of people would never exercise these duties regardless of the circumstance whether due to apathy, lack of convictions, lack of knowledge that there is a procedure available or most pitiful of all, the “Who am I to challenge” complex. How to find ways to get this large group of people off center to assume their duties as prophet, priest and king is another issue which we will not deal with in this discussion. Instead, let us focus on those people who are potentially willing to exercise their responsibilities but are often discouraged from doing so due to the widespread belief that they cannot obtain a fair hearing.

2. The Verhey case – It has been my personal experience in taking an appeal to Classis that the problems of procedure to which 1 have just alluded are very real. One thing every lawyer knows is that judicial due process denied is justice destroyed. I must say that the procedure with which I work on a daily basis virtually guarantees all parties concerned a fair hearing on the substantive issues of law.

It is with regret that I have come to an almost opposite conclusion on the procedure in the Christian Reformed Church. This conclusion has been fortified by the analysis of the Dutton appeal given by Dr. Lester DeKoster in his editorial in The Banner of September 10, 1976. The article laments that the substantive issues involved in the ordination of Dr. Allen Verhey could not be addressed by Synod. This is due to the confusing and incomplete procedure as provided in the Church Order for such a case.

It is my judgment after reading the various positions on the matter of procedure, including the majority and minority reports to Synod, that the Church Order could arguably be read to support either position. If such is the case, then the Verhey case is just one more example of inadequate procedural guidelines causing confusion in the church. Allow me to elaborate.

On the one hand, the procedure followed by Dutton may have been proper under Article Thirty of the Church Order, since they believed that the decision to ordain conflicted with the Word of God, by admitting a minister to the ministry of our churches who had views plainly contradictory to Scripture. Listen to Article Thirty of the Church Order:

Assemblies and Church members may appeal to the Assembly next in order if they believe in justice has been done or that a decision conflicts with the Word of God or the Church Order. Appellants shall observe all ecclesiastical regulations regarding the manner and time of appeal.

The Commentary (The Revised Church Order Commentary, Van Dellen and Monsma) to this Article, on page 127, states that church members may appeal to the next assembly in order, and continues by stating:

But it is often advisable that an appeal is first made to the next Assembly against which an appeal is made. In some instances it is doubtlessly altogether advisable to give the body against which objections are held the opportunity to correct itself, if correction is needed.

This appears to be exactly what Dutton did. They went back to Classis and protested the decision of Classis. Rev. Peter De Jong in the July, 1976, issue of THE OUTLOOK asserts as follows: “The Dutton Church, following proper procedure. appealed to Synod.”

The other position, that being that the procedure followed by Dutton was improper, was adopted by Synod, presumably on the theory that immediately upon ordination a different set of rules became applicable. Dr. DeKoster noted in his Banner article that: “It was the protest itself which neglected to take note of the procedural shift involved when a candidate has become. through proper procedure, a minister.”

This statement is based on the grounds of Synod for denying Dutton‘s appeal. According to Synod, the act of ordination changed the kind of proceedings necessary to “get at” the issue, that is deposition pursuant to Articles Eighty-nine and following.

In essence, Synod took the position that the law defines as “the case is moot,” that is, the arguments and procedure which were previously used arc no longer applicable due to a change in circumstances (here ordination).

Although the argument of “mootness” or “procedural shift” sounds valid, the answer is not that simple. It is my opinion that Synod had the right and opportunity to consider and decide the Dutton appeal on at least two grounds:

First: Synod should have asked itself the effect of denying Dutton‘s appeal.

The Supreme Court of the United States has repeatedly maintained that under certain circumstances it will consider and decide a case even though their decision will not have any direct effect, due to a change in circumstances, on the litigants involved. In such a case, the Court asks itself two questions

(1) Is the issue one of substantial importance?

(2) Is there a real possibility the problem will occur again?

Certainly, the allegation that a candidate’s views of the Bible are unscriptural is a substantial issue in the CRC and, therefore. the first test was met.

Also, it is very likely that this kind of problem will occur in the future, which satisfies the second test.

Therefore, Synod had the duty to decide the issue so as to preclude other such ordinations from taking place if they indeed found that Verhey’s views were contrary to Scripture.

Next: A second and possibly more potent answer to Synod‘s argument is that there was a remedy which Synod could have supplied. It is true that when Dutton protested to Classis, Dutton’s opponent was Verhey. However, the appeal to Synod was directed at the decision of Classis to recommend ordination, not the ordination itself. Thus, the provisions of Article Thirty continued to apply, that is, an Assembly may appeal to the Assembly next in order if they believe . . . that a decision conflicts with the Word of God or the Church Order. Thus the provisions of Article Thirty continued to apply and Synod had the authority to decide whether the decision of Classis to recommend ordination conflicted with the Word of God.

It is not important for our purposes whether I believe that the Dutton procedure was proper or improper. What is important is that an issue as critical as the ordination of a minister in the Christian Reformed Church has become inextricably mired in procedural ambiguity.

A license to preach, like a license to practice law or medicine, is a privilege—not a right. The right is, of course, predicated upon fulfilling the basic requirements of the license. I am also well aware that becoming a minister is a calling.

If, for some reason, the recipient of the license does not meet the requirements for obtaining it, he is acting improperly, that is. he has a faulty license.

I’m sure that none here would question that it is vitally important to closely scrutinize the doctrinal and hermeneutical positions of those who are to be ordained in the CRC.

It is truly unfortunate that Synod found that there was no proper way for Dutton to oppose Verhey’s ordination.

The procedure under which we now operate allowed Synod to effectively choose whether to allow or disallow the appeal.

I find this alarming, since and argument can be legitimately raised both for allowing or disallowing such an appeal.

Whenever two alternate procedures are available, as is arguably the case here. almost invariably one will encourage the examination of the substantive issues and the other will not. For example, in the Dutton appeal, a procedure through Article Thirty would have required Synod to determine whether Verhey met the qualifications of his office, whereas the procedure Synod followed prevented an examination of this substantive issue. It is not fair to the parties involved or to the organized church to give the ruling body a choice of which of two such procedures it should follow. As I mentioned before, the purpose of a well-drafted Judicial Code is to encourage a decision on the substantive issues. A single, properly drafted procedure will do just that.

In spite of all of the problems we have had with procedure as recently as these important cases of Dr. Boer and Dr. Verhey, there still appears to be a reluctance to adopt a comprehensive and complete procedure to help resolve such substantive issues. This de-emphasis of procedure corresponds to an over–emphasis of good will, Christian love and forebearance. This is exemplified time and again in the commentary of the revised Church Order.

For example, the commentary [Van Dellen and Monsma] under Article Thirty stales as follows:

Multiplication of rules and stipulations in ecclesiastical matters often works for more harm than good. We should be very careful on this score. Let each assembly judge with good-will and Christian forbearance as to the propriety of each appeal directed to it. This is the unwritten rule which we have followed thus far and it seems to have worked well.

Again, in the commentary under Article Eighty-two–

The trial should be dignified, conducted prayerfully, absolutely impartial. The procedure should not become overly tcchnical. Consistories do not conduct court trials in the civil sense of the word. Each case should be investigated not according to certain set and highly technical rules, but rather freely, as fairness and sanctified common sense may indicate for every specific case.

Furthermore, the commentary under Article Thirty–one states in part as follows –

In civil courts, technical terms and technical interpretation of terms means a great deal. But in the Church of God, we are first of all interested in the matter as such [substance–CLZ]. We stress spirit and content, not terms and technicalities.

This distrust of a comprehensive procedure which per force will contain a number of “technicalities” by definition, is now, again, being de-emphasized by the committee appointed by Synod to propose a new judicial code. A How me to quote from the Acts of Synod of 1975 on pages 617 through 619.

– Accordingly, most of our efforts were devoted to a thorough re-examination and revision of the Lake Erie version with a view to providing the Church with a statement of judicial rights and procedures that is compact, workable, and not burdened with excessive legalism.

From page 619 I quote–

In response to many suggestions, the committee has replaced most of the terminology derived from the civil law with simpler or more typically ecclesiastical language.

Ironically, the committee follows with a quotation from John Calvin‘s institutes on the same page:

We further see that in human transactions some procedure is always in effect, which is to be respected in the interest of public decency, and even of humanity itself. This ought especially to be observed in churches, which are best sustained when all things are under a well-ordered constitution, and which without concord become no churches at all.

Also, Calvin states:

No organization is sufficiently strong unless constituted with definite laws; nor can any procedure be maintained without some set form.

Ideally, the principles of love, forbearance and Christian toleration can obviate the need for a comprehensive procedure, or indeed, for any procedure. However, all of us are keenly aware of human frailty, and in those cases where people have a very personal and important stake in the outcome of the proceedings, such as deposition from office, refusal of ordination, excommunication from the Church, etc., the chances of frailty becoming involved increases dramatically. Since we have not attained perfection and since in such situations these high Christian ideals arc most severely tested, the Church must take all necessary precautions to safeguard its ideals in solving the substantive problems facing the Church. The most obvious and basic safeguard which the Church can consider is a well–drafted, comprehensive procedural due process. A well–defined procedure has the function of virtually forcing a proper and fair consideration of the substantive issues, presuming of course that those who consider the matter are willing to exercise their authority in an ecclesiastical manner.

Unfortunately, the inherent distrust of procedural guidelines, per se, yields the following result: instead of emphasizing procedure to enhance the goals of good will, Christian love and forbearance, the concept of procedure is construed as being at variance with these Christian ideals.

What must be done? – If it is true that often the inability to deal with substantive issues in the Church is related to the lack of effective judicial due process or procedure, the question remains: What must be done?

It is gratifying to realize that Synod recognizes a problem with the present procedure and has appointed a committee to propose a judicial code pursuant to the original overture by Classis Lake Erie. It is further gratifying to note that many Classes and interested Church members have submitted communications and input to the committee.

I have studied the proposed judicial code submitted by the committee to Synod 1975, and conclude without reservation that it is an improvement over the present procedure in many respects. Further, I recognize that the final judicial code which will be submitted to the Synod of 1977 may be improved over the proposed judicial code submitted to Synod 1975. However, it is my judgment that the proposal does not go far enough to insure that the procedural quagmire will become a thing of the past.

Without going into a step by step analysis or suggesting an entire judicial code, allow me to point up a few areas of weakness in the present proposed judicial code which can be easily remedied.

First: Although the proposed Code sets some time restrictions, more are needed. Article 6 states as follows:

Every charge must be presented to the assembly in writing, must set forth the alleged offense and must specify the facts relied upon to sustain the charge. Such specification shall declare, as far as possible, time, place and circumstance of the alleged offense and shall be accompanied with the names of the witnesses and the title of the documents to be cited in its support. A copy of the charge shall be submitted to the respondent.

The question is, “When must a copy of the charge be submitted to the respondent?” The proposed judicial code does not answer this question. Recall the example of Dr. Boer wherein he received a statement of the Consistory’s grounds for the charges five days before Classis met and that his response thereto was not obtained by Consistory or Classis until the day Classis met. The proposed judicial code does not preclude a similar occurrence.

Article 16 of the proposed judicial code provides a time limit within which the appellant must give notice of appeal to the stated clerk of Classis and to the Consistory whose decision is appealed. Then, Article 20 states that in all cases the Classis shall set a time for the hearing on appeal and shall send a notice as to the time and date of such hearing to all parties. Noticeably lacking from the notice requirement is the statement of the number of days’ notice to be given prior to the hearing. The lack of specific time requirements weakens the overall effect of making the procedure somewhat more definite and giving all parties adequate time to study and properly prepare for response and decision.

Article 11 of the proposed judicial code states in part:

In all cases sufficient time shall be allowed for the respondent to appear at the given place and time and to prepare for the hearing. The consistory shall decide what constitutes “sufficient time.”

Once again, it would be much preferable to have an objective time limit to insure adequate notice. Absent such definite standards, the Church has no assurance that the complaint will not be raised that “the Consistory did not give me sufficient time.”

Second: The proposed code needs an “ejection of remedies” section. In order to make the code more workable, and to avoid the procedural problem involved in the Boer matter, the code should provide that once a litigant chooses his remedy, that procedure will be followed until the matter is concluded. The time which Synod has to consider the issues before it is too valuable to even have to ask the question of whether the parties are properly before it.

Third: The proposed code needs to resolve the possible difficulties of contested ordination. As in the last proposal, there are components of election of remedies involved here, too. More basic, however, is the fact that the Consistory had no way to block ordination, even though they alleged Biblical grounds.

Just as an example, the Code would provide that a Consistory has thirty days to appeal the decision of Classis. The effect of setting such a limit would be to forestall, for a short period of time, the taking effect of ordination. The matter would remain under the guidelines of Article Thirty, and appropriate bodies would not have to proceed with the distasteful and laborious task of deposition under Articles Eighty-nine and following.

Finally: The most basic requirement of an adequate and fair procedure is a fitting and proper attitude by those who use and rule on the procedural questions. Any procedure must be employed as a means to an end rather than the end itself. In this regard, it is necessary to avoid either of two extremes, namely, either that procedure has little value within the Church or, at the other extreme, procedure is the panacea of solving all problems. Neither extreme will provide the right atmosphere for solving problems within the Church. The proper function of a good procedure is to discourage personal differences from overshadowing legitimate ecclesiastical issues. The benefits derived from an adequate procedure are that the valuable time of all persons involved as well as the assembly‘s will be spent resolving the substantive issue at hand in an expeditious and ecclesiastical manner, rather than spending an undue amount of time determining whether or not proper procedure has been followed.

It has long been presumed in the law of the land that an equitable procedure is necessary to protect the people and its government. Considering out additional Christian mandate, the Church deserves at least as much.