Appeals: Stay of Execution

When an assembly takes a decision and an appeal is launched against this decision, what should happen with the decision? Should it be executed? Should it there be a stay of execution? Should it be rescinded? In view of the fact that there are several stages of appeal, does it make a difference at what stage an appeal is?

This article looks at what happens to a decision during the course of appeal. It assumes the reader has read the article Appeals: Who and What.

Terms

In an attempt to keep things clear this article speaks of assemblies A, B, C, D, and E. Assembly A is the assembly taking the original decision. Assembly B judges appeals against A. Assembly C judges an appeal once B has considered an appeal concerning the matter. Assembly D judges an appeal once C has dealt with it, and Assembly E once Assembly D has dealt with it. In most situations A would be a consistory or council, B a classis, C a regional synod, D a general synod, and E the next general synod. If A is a classis, B would be a regional synod, C a general synod, and D & E following general synods. If A is a general synod, B would be the following general synod, etc.

Normal

The Canadian Reformed Churches, having roots in the Reformed Churches in The Netherlands (liberated), will argue there should be a stay of execution while an appeal is happening.

History. In the run up to the Dutch church schism known as the Liberation of 1944 a point of debate was whether churches were bound to a synod decision during the course of appeal. A general synod had adopted a number of doctrinal statement with which churches and individuals disagreed. The powers-that-were argued individuals and churches are bound “until” something is proven contrary to God’s Word or the mutually adopted order. The appellants pointed out Church Order Article 31 said “unless”, not “until”. As they were convinced the doctrinal statements were contrary to God’s Word, they refused to subscribe to them. This failure to subscribe led to the deposition of protesting office-bearers, which precipitated a church schism. The Canadian Reformed Churches have roots in the Liberation.

Scenarios

Different scenarios will require different approaches. In what follows a number of scenarios are considered. This list is not intended to be exhaustive.

During the first stage of appeal

Appeal against a local decision concerning a person

A local assembly makes a decision concerning a person. It could be a council deciding to appoint a certain brother to office. It could be a consistory deciding to place an individual member under discipline. If such a decision is appealed, the appeal would be submitted to a classis. In view of the fact that a classis (in Canadian Reformed Churches) happens every three months, little time is lost if there is a stay of execution. Thus the ordination of the brother is delayed, pending the appeal.

Where the exercise of church discipline is concerned, things are more complicated. The appeal challenges the decision that there is a hardening in censurable sin. Thus silent suspension should not be imposed. However, as judgment is “pending”, imposing a simple suspension until the appeal has been considered would be advisable. (For an explanation of the difference between “simple” and “silent” suspension see the articles Simple Suspension and Silent Suspension.)

Given their Forms of Subscription, in Canadian Reformed Churches a stay of execution is not imposed where the suspension or deposition of an office bearer has been decided to and is being appealed.

Appeal against a local decision concerning a matter

A local assembly makes a decision concerning a matter. For example, it could decide to celebrate the Lord’s Supper using individual cups. It could decide to become a sending church for a mission project. If such a decision is appealed, the appeal would be submitted to a classis. In view of the fact that a classis (in Canadian Reformed Churches) happens every three months, little time is lost if there is a stay of execution. Thus there should be no individual cups and no calls to possible missionaries pending the appeal.

Appeal against a broader assembly decision

A broader assembly takes a decision. By way of illustration, a classis decides a certain church is a needy church or a general synod approves the singing of a certain hymn. If such a decision is appealed, it would go to the next broader assembly. A decision of a classis is appealed to the first following regional synod, a decision of a general synod is appealed to the next general synod.

In the Canadian Reformed Churches the time span before the appeal is dealt with could be anywhere from eleven months to three years. This suggests that wisdom should be exercised as to imposing a stay of execution. If possible, there should be. However, especially where general synod decisions are concerned, this may not always be possible.

In such situations a wise alternative is to tolerate non-compliance in the light of freedom of conviction (cf. Belgic Confession article 32). While the needy church receives funds from the classis, the appealing church may refuse to pay the required assessment. While the hymn is sung in the churches, the appealing church does not sing the hymn.

When the appeal has been judged

If the appeal is denied

If the appeal is denied, Assembly B has agreed with Assembly A. The wisdom of two assemblies has indicated the correctness of the original decision. This suggests it should be fine to execute the decision.

In Canadian Reformed circles the opportunity for a second appeal exists. However, a second appeal will involve a span of time: up to a year if the appeal is to be submitted to Regional Synod, up to three years if the appeal is to be submitted to General Synod. It is for the (type of) assembly which took the original decision to determine whether to continue the stay of execution. If it determines it should not, it could decide whether non-compliance can be tolerated.

In the case of church discipline there probably should not be a stay of execution. The simple suspension is lifted and the silent suspension is imposed.
In the case of ordination there probably should not be a stay of execution. The brother should be ordained. However, non-compliance could be tolerated, in the sense that the appellant is not assigned to the supervision of this brother.
In the case of the needy church, there should not be a stay of execution. The appealing church should now pay the required assessment, also for the period that covered the first appeal. (Note: In the CanRC there has been a case where, to the best of our knowledge, non-compliance was tolerated. However, that case was a more complex: some churches questioned the legitimacy of admitting the church (Denver) to the federation.)
In the case of the approved hymn, non-compliance is tolerated. The local church may continue to refuse to sing the hymn during worship.

If the appeal is upheld

If the appeal is upheld, Assembly B has disagreed with Assembly A. This indicates at the very least that execution of the decision is unwise. There should at least be a stay of execution.

Should the decision be rescinded? Assembly A does not have to rescind the decision. Thus far there have been two authoritative ecclesiastical decision, one in favour and one against. The situation currently is a ‘tie’.

During the second stage of appeal

If the second appeal is submitted by the appellant who submitted the first appeal, the decision can be executed and often is. If it is, the appellant should be granted the possibility of non-compliance.

If the second appeal is submitted by Assembly A, there should be a stay of execution. If this is not possible, non-compliance is to be tolerated.

When the second appeal has been judged

If the decision is maintained

If the decision concerning the second appeal maintains the original decision, the decision can be executed. At this point in time two if not three assemblies have considered the original decision justified.

In Canadian Reformed circles the opportunity for a third appeal exists. However, a third appeal will involve up to three years as the appeal would always be submitted to General Synod. It is for the (type of) assembly which took the original decision to determine whether to continue a stay of execution. This assembly should also decide whether non-compliance can be tolerated.

In the case of church discipline there should not be a stay of execution. If still in place, the simple suspension is lifted and the silent suspension is imposed.
In the case of ordination there should not be a stay of execution. Now that two assemblies have approved the ordination of the brother appointed to office, he should be ordained. However, non-compliance could be tolerated, in the sense that the appellant is not assigned to the supervision of this brother.
In the case of the needy church, the appealing church should continue to pay the required assessment.
In the case of the approved hymn, the local church may continue to refuse to sing the hymn during worship.

If the decision is rejected

If the decision concerning the second appeal rejects the original decision, it depends on what was decided with respect to the first appeal as to what should now happen.

If the original decision was rejected at both the first and second stages of appeal, the decision should be rescinded by the (type of) assembly that took the original decision. For two assemblies have considered the original decision unjustified.

If the original decision was maintained at the first stage of appeal and rejected at the second stage of appeal, the reality is that the decision has already been executed. If further execution can be stayed, it should. If not, the possibility of non-compliance should be considered.

In the case of church discipline the silent suspension is lifted and simple suspension imposed.
In the case of ordination, the brother has already been ordained. Non-compliance could be tolerated in the sense that the appellant is not assigned to the supervision of this brother.
In the case of the needy church, the appealing church may suspend paying the required assessment.
In the case of the approved hymn, the local church may continue to refuse to sing the hymn during worship.

In Canadian Reformed circles the opportunity for a third appeal exists.

Further appeals

It has been assumed that once two assemblies have maintained a decision, it can be executed and once two assemblies have rejected a decision, it is to be rescinded. However, the appeals process may continue.

In our opinion the appeals process should cease when three assemblies have either maintained or rejected a decision. This means a decision could be considered by up to five assemblies, which implies up to four stages of appeal.

If the situation should arise that two assemblies have maintained a decision and two assemblies have rejected a decision while the decision is already being executed, the matters of a stay of execution and of tolerating non-compliance returns for the assembly which took the original decision. It should be noted, though, that introducing a stay of execution once it a decision has begun to be executed is generally not possible.

Currently the Canadian Reformed practice is that the judgment of the last assembly of appeal stands and it would seem that appeals can go on ad infinitum. In this context it becomes a matter of wisdom whether or not to impose a stay of execution or tolerate non-compliance. There are also situations where the appeals process is no longer being followed but, in view of Belgic Confession Article 32, non-compliance continues to be tolerated.

Appeal or Request?

Where decisions concerning persons are concerned, the foregoing usually applies.

However, where decisions concerning matters are concerned, the foregoing often does not apply. A submission concerning matters may be entitled an appeal but will often prove to be a request. For the distinction, see the article Assemblies: Requests, Appeals, and Overtures.

In Short

The fore-going makes clear whether or not to stay the execution of a decision and whether or not to tolerate non-compliance are questions not easily answered. Wisdom is required. In this matter, assemblies should seek what makes for peace and order in the churches.

The next article looks at possible responses of appellants to judgments of assemblies.