A copy of the written appeal is published below.
RE Phil Dudt, after being convicted by the Midway Session of questionable offenses, submitted a written appeal outlining 40 errors made by the Midway Session during his trial. The text of the appeal as submitted to the Northwest Georgia Presbytery is as follows:
Rev. David Gilbert, Clerk of the Northwest Georgia Presbytery of the Presbyterian Church in America:
And now, this seventh day of December, A.D. 2020, comes Ruling Elder Philip Dudt and appeals the November 12, 2020 judgment of the Session of Midway Presbyterian Church in the case of RE Philip Dudt, and in support of said appeal sets forth the following specifications of error:
1. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure by not establishing a strong presumption of guilt that RE Dudt distributed the SJC case 2019-03 to the entire congregation against the express will of the Session prior to serving the indictment. This was a violation of BCO 31-2, and therefore resulted in a material mistake in judgment by finding RE Dudt guilty of an offense that was not clearly established. Although the indictment presents an appearance of a prima facie case, a close inspection of the minutes cited in the indictment reveals no evidence that the Session explicitly stated that it did not want the SJC case distributed.
2. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure by misrepresenting the particular circumstances in the indictment (BCO 32-5) when it stated that RE Dudt was guilty of “distributing” the SJC case 2019-03 to the entire congregation. The facts are that, in his email, as one of the reasons for his proposed motion to postpone the congregation meeting, he:
· accurately summarized the judgment of the SJC in case 2019-03; and,
· included a link to the “Report of The Standing Judicial Commission to The Forty-Eighth General Assembly of The Presbyterian Church in America” and provided page numbers of the report where the case details can be found should anyone be interested enough to click the link.
The email recipients did not automatically receive the documents as attachments. In truth, RE Dudt was simply informing the email recipients of the facts of the public judicial record and providing them a way to research the issue on their own and confirm his statement, should they so desire.
3. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure by not scripturally proving that the first charge of communicating SJC 2019-03 to the congregation was an offense, thus violating BCO 29-1. This therefore resulted in a material mistake in judgment by finding RE Dudt guilty of an offense that had no basis in the general moral regulations of Scripture. That it might have the right to ask for such a conviction, it was the duty of the Session to show that such an expression of its will would have been considered a lawful order in accordance with the Bible and the Constitution of the Church (WCF 31-2, WLC 127, and WLC 130). Neither the indictment nor the prosecution during the trial attempted to do this, therefore the Session did not establish all the elements of its charge and failed to prove its case.
4. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in judgment when they convicted RE Dudt of the first charge of violating ordination vow #5 when it was shown in the trial that the “express will” of the Session was not recorded in the minutes as claimed in the indictment, nor was it actually communicated to RE Dudt in undocumented discussions held and, therefore, the Session’s judgment to convict was unjust. In one example, the June 15, 2020 minutes show that a substitute motion was made in response to RE Dudt’s main motion to “inform the Midway Congregation of case 2019-3 [sic], the SJC’s decision.” The substitute motion involved requiring the Pastor state election procedures to the congregation and was irrelevant to RE Dudt’s main motion. After the substitute motion was considered and passed, there is no documentation in the minutes that RE Dudt’s main motion was considered again. Several members of the court testified that they believed RE Dudt should have inferred the Session’s intent to not distribute from conversations held, but no witness testified that anyone explicitly told RE Dudt or anyone in these conversations not to distribute the case. The moderator testified that it is his opinion that everything that should be understood about the Session’s action doesn’t have to be explicit, and that reasonable persons should infer that declined motions mean “don’t do this.” Without documentation of an explicit vote on RE Dudt’s clear main motion, and without clear testimony from witnesses that a direct order was given, the Session’s “will” in this matter remains at best inferred, tacit, or implied, but certainly not “express” as claimed in the indictment. Therefore, the facts presented do not support the charge that the Session of Midway Presbyterian Church gave its “express” will in this matter, failing to present a prima facie case. (The Oxford English Dictionary defines “express” when used as an adjective as in the indictment as “definitely stated, not merely implied.”)
5. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in judgment when they convicted RE Dudt of the second charge of violating the ninth commandment when it was shown in the trial that no statement in the July 12th e-mail sent from RE Dudt to the congregation was false, in contradiction to what was claimed in the indictment. Therefore, the Session’s judgment to convict was unjust.
6. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in judgment when they convicted RE Dudt of the second charge of violating the ninth commandment when they generally failed to supply sufficient evidence necessary to establish all elements of the charge and reasonably render a guilty verdict: “If one gives an answer before he hears, it is his folly and shame” (Prov. 18:13, ESV).
7. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in judgment when they convicted RE Dudt of the second charge of violating ordination vow #6 when evidence to the contrary was prohibited to be introduced in the trial. Sending an email to the congregation regarding church business, when composed with temperate language, and with accurate and non-confidential content is not, in and of itself, a violation of vow #6 (SJC 2015-11).
8. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure by not investigating the alleged offenses prior to indicting RE Dudt, thus violating BCO 31-2. This was done in spite of a member of the court making a motion, that failed to pass, during the October 7, 2020 Session meeting to send the matter to the discipline committee of the Session for review.
9. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure by not establishing a strong presumption of guilt that RE Dudt violated the ninth commandment as the second charge claimed, but voted to indict anyway thus violating BCO 31-2. Therefore, this resulted in a material mistake in judgment by finding RE Dudt guilty of an offense that was not clearly established. In fact, the Session confirmed in the September 21, 2020 Session meeting minutes that there was “confusion and apparent disagreement about the application of Officer Vow #5”. Furthermore, at that same September 21st meeting the Session passed a resolution which violates BCO PP II 7 and WCF 20-2 by prohibiting all active officers from publically disagreeing with the Session, as RE Dudt was accused of doing with his July 12th email. RE Dudt was then indicted for violating such ordinance ex-post facto on October 7, 2020.
10. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure by classifying the alleged offenses as “general” when no heresy or immorality was involved, or proven to be so by the Session, thus violating BCO 29-3.
11. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure by classifying the alleged offenses as “public” when the underlining alleged offenses were known only to a subset of members of the Session and possibly a few deeply interested congregation members (e.g., the mother of one of the assistant pastors slated to be promoted to associate pastor), thus violating BCO 29-4.
12. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure by not sending a committee to converse with RE Dudt in a personal and private matter before instituting actual process, thus violating the principles of Matthew 18:15-16 behind BCO 27-5 and BCO 31-7. Additionally, F.P. Ramsay, in his Exposition of the Book of Church Order (1898, p.189-190), states regarding BCO 31-7 that “the principle would seem to require this to be done in all cases where the offence appears to have been against the court, or its members as such.”
13. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure when they didn’t follow the principles of Matthew 18 because they misapplied the BCO, violating BCO 27-5 and BCO 31-5.
14. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure when they assigned motive in the indictment of RE Dudt’s email without evidence to support their claim, thus exhibiting a manifestation of prejudice and potentially damaging RE Dudt’s good name (WLC 145). In fact, RE Dudt clearly stated his motive in the July 12th e-mail to postpone the congregational meeting until January 2021 “to allow the congregation reasonable time to prayerfully consider the church’s needs, the men’s qualifications, the establishment of a pulpit committee, and the subsidence of the global pandemic to allow for a greater congregational participation”.
15. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure when the clerk and members of the court drew up the indictment prior to being ordered to do so by the Session at the called meeting of October 7, 2020. The indictment was circulated to some members of the court, including the clerk, before the meeting, but was not provided to the remaining Session members at any point during the meeting nor was the wording of the indictment voted on by the Session. However, the signed indictment was provided to the accused at the end of the October 7, 2020 meeting, proving that it was both written, signed, and sealed prior to the October 7 meeting. This irregularity violated BCO 32-3 and is a manifestation of prejudice.
16. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure in that the indictment drafted did not match the charges made in the October 7, 2020 called Session meeting in that no other “public declarations” other than the July 12th e-mail were stated in the indictment.
17. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure by conducting the process as if the prosecution was instituted by the court when, in fact, it was voluntarily initiated by two elders when they called for the October 7, 2020 Session meeting to indict RE Dudt.
18. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure by allowing an elder to prosecute the case without working completely through the means of reconciliation and of reclaiming the offender required by Christ, thus violating BCO 31-5. Because this should have been treated as a personal offense, the injured party (one of the witnesses who signed the indictment) should not have been allowed to become the prosecutor without first calling one or more witnesses. As proven during the trial, this was not done. Additionally, the facts of the matter are these:
· RE Keesee is identified as the prosecutor in the signed citation letter included in the sealed envelope given to RE Dudt by the Session Clerk on October 7, 2020 at the end of the called Session meeting.
· The indictment was drawn up and citation letter signed prior to the called Session meeting on October 7 in which these documents were formally ordered to be created.
· Testimony given by one of the witnesses during the trial revealed that certain members of the Session had been planning to indict RE Dudt, and possibly others, since the summertime. Therefore, while the prosecutor was technically appointed by the Session during the October 7, 2020, meeting, he had effectively, by allowing the citation letter to be signed prior to the meeting’s occurrence, volunteered to be the prosecutor and is therefore subject to BCO 31-5 and BCO 31-9.
19. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure and exhibited a manifestation of prejudice when several members of the court failed to study the Rules of Discipline in preparation for the trial. The prosecutor admitted during the trial to not reading the Rules of Discipline before prosecuting this case, as did at least one other elder that signed the indictment. Furthermore, the prosecutor on multiple occasions while being examined by the accused, refused to answer questions submitted to the court until a member of the court, not the moderator, referenced BCO 35-12 and informed him that he may be censured for contumacy unless he answered the questions. That it was not initially the moderator who informed the prosecutor of BCO 35-12 is prima facie evidence of bias by the moderator. While acknowledged that the Handbook for Clerks of Session does not have constitutional authority, it does offer wisdom when it states that “Whenever the Session finds it necessary to exercise church discipline, the ‘Rules of Discipline’ should be carefully studied by the entire Session, so that it is conducted according to guidelines set forth in the BCO.” This wisdom was rejected by the Session.
20. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure and exhibited a manifestation of prejudice by not demanding that the members of the pastoral staff try the means of reconciliation. Not one member of the pastoral staff privately discussed their concerns with this matter with RE Dudt prior to indicting him on October 7, 2020. This was a neglect of their pastoral duties and basic Christian peacemaking obligations: “You shall not hate your brother in your heart, but you shall reason frankly with your neighbor, lest you incur sin because of him” (Lev. 19:17, ESV).
21. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure and exhibited a manifestation of prejudice in that the three associate pastors did not recuse themselves since the alleged offenses were directly related to the calling of those three assistant pastors to the position of associate pastor. Furthermore, two of the three associate pastors argued in favor of the indictment and conviction of RE Dudt. This is especially concerning because one of the associate pastors, TE Barry, testified that he did not discuss these issues with RE Dudt prior to initiating process because he believed it would be a conflict of interest to do so. TE Barry testified that he also thought the other two associate pastors would have the same rationale as he. However, despite this conflict of interest, TE Barry spoke in favor of both indicting and later convicting RE Dudt, and he also spoke in favor of bypassing the steps of BCO 27-5.
22. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure and exhibited a manifestation of prejudice in the process of the case by denying the accused’s request for an independent moderator after the moderator voted in favor of the indictment of RE Dudt. Supporting evidence of moderator bias includes an email to RE Dudt from the moderator’s son, and intemperate, hand-written notes to RE Dudt from the moderator’s wife expressing her disapproval of RE Dudt’s action.
23. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure when it allowed RE Dudt only one communing member of the congregation to represent him at trial when BCO 32-19 states “any communing member of the same particular church”.
24. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure by receiving accusations from witnesses deeply interested in any respect in the conviction of the accused (BCO 31-8). For example, one of the first and primary pieces of evidence introduced by the prosecution was an email from the mother of one of the associate pastors included in the motion presented to the congregation.
25. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure and exhibited a manifestation of prejudice in the trial by permitting the moderator to relinquish and reassume the chair, at will, during the trial to allow him to examine witnesses which gave an appearance of partisanship. Further manifestation of bias was exhibited when the moderator relinquished the chair to TE Barry, who admitted during the trial that he had a conflict of interest over this issue. TE Barry, because of this conflict of interest, should have held himself accountable and refused to accept the moderator’s chair. (The Oxford English Dictionary defines “moderator” as “a person whose job is to make sure that a discussion or a debate is fair.”)
26. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure and exhibited a manifestation of prejudice when several elders testified that they were angry at RE Dudt for sending out the July 12th email to the congregation. Members of the court that manifested anger at any point during the process (Titus 1:7) should have recused themselves to avoid violating BCO 27-4 and BCO 31-8.
27. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure when it voted to prohibit and then remove from the room members of the congregation that were attending the trial after RE Dudt requested those members of the congregation to stay. In a final attempt to persuade the Session to grant his request, RE Dudt read a statement from the Rev. J. Gresham Machen written during the period in which he and several others faced their own secret trials, which said in part, “There is no justification in the church constitution for this action. This injunction is extraordinary. Court proceedings ought to be open and above board. That right is accorded the most degraded criminals under our civil laws. If men are deprived of it in church courts that means that the church is standing on a lower moral plane than the world at large.” Upon hearing the reading of this passage, the Session voted to enter executive session and eject the congregation members present.
28. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure by entering executive session and remaining as such for the entire proceeding which lasted approximately 10 hours. This brought into conflict the privilege of executive session and the requirement that a careful record of the case must be included in the minutes according to the instructions in BCO 32-18.
29. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure when it removed RE Dudt’s wife from the trial after RE Dudt requested her to stay by his side during the trial. Thus, the Session denied this reasonable request. The most concerning reason was given by an associate pastor where he said he wanted her to leave so she would not think less of the elders. Removing Mrs. Dudt from the trial, against her and her husband’s strong objection, violated the sanctity of the institution of marriage which was created by God and no court has the right or authority to disturb. “What therefore God hath joined together, let not man put asunder” (Mark 10:9).
30. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure by declining to receive proper evidence (BCO 42-3) that could have contradicted the indictment’s claims that it was RE Dudt’s actions that “led to a divisive congregational meeting” when lines of questioning to witnesses about the congregational meeting were ruled out of order by the moderator on grounds of relevancy.
31. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure when the moderator was asked by a member of the court to clarify if the burden of proof rests on the prosecution in church court as in public courts. The moderator replied that church court is different than the secular court, but did not provide a clear answer to the question. This is in contradiction to the ruling in SJC case 1998-08, which states clearly that the burden of proof rests on the prosecution. This demonstrated the moderator’s confusion on a basic principle of Biblical justice, and his reply therefore created confusion among the members of the court and resulted in an irregularity in the trial.
32. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in procedure when its moderator and clerk refused to distribute copies of the testimony audio recordings to the accused, thereby impeding the timely drafting of his appeal thus violating BCO 32-18. This was after the accused requested a court reporter to record the proceedings at the Session meeting called prior to the trial, but that request was denied. The Session, in turn, had the three associate pastors record the audio of the proceedings, but then refused to provide copies to the accused thus resulting in an irregularity in the process. As of the filing of this appeal nearly four weeks after RE Dudt’s conviction, the clerk had not yet issued the minutes of the trial which should include the ROC per BCO 32-18, even though all necessary elements of the minutes were available upon completion of the trial. This appears to represent a significant delay in a serious matter that is required to be addressed “without delay” by BCO 32-18.
33. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in censure when it sent an email to the congregation announcing the indefinite suspension of RE Dudt from office the morning of November 12, 2020 at 7:57 a.m. This announcement was made even though RE Dudt filed the proper notice of appeal with the Clerk of the Session in person at approximately 5:30 a.m. upon conclusion of the trial that same morning. This is a violation of BCO 42-6 and a manifestation of prejudice.
34. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in censure when the wording of their November 12, 2020, 7:57 am email to the congregation stated “We regret to inform you that our brother, Ruling Elder Philip Dudt, has been indefinitely suspended from office by the Session. This was not a decision that was taken lightly or with haste, neither was it a retributive response to his congregational communications. To the contrary, the judgment was that he violated his ordination vows. This notice concludes the Session’s public discussion of this matter.” Such a statement violated BCO 42-6, suspended RE Dudt from office when the Session had no authority to do so, damaged RE Dudt’s good name before the judgment is either upheld or overturned by the higher courts, will cause the Session to lose credibility if the conviction is overturned, and caused many familiar to the case to question the accuracy of the statement since both charges were directly related to RE Dudt’s single congregational communication. This error demonstrated a manifestation of prejudice in their haste to announce the verdict to the congregation. The Session was forced to restate that email the following week, but only after the injury to RE Dudt’s good name was sustained.
35. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in censure when they prohibited RE Dudt from his official duties of office without providing sufficient reasons as required by BCO 42-6.
36. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in censure when they prohibited RE Dudt from performing non-office related duties including leading in prayer meetings and leadership in Trail Life USA programs while the judgment is under appeal thus violating BCO 42-6.
37. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in censure, manifesting prejudice in the case as evidenced by the harshness of its censure to suspend RE Dudt from the functions of office for his alleged offense. Given that:
· testimony about RE Dudt’s character was laudatory;
· his July 12, 2020 email was composed with temperate language;
· the Session itself admitted “confusion and apparent disagreement” about their interpretation of the application of Officer Vow #5 to public dissent (resolution passed at September 21, 2020 session meeting); and
· RE Dudt’s willingness to submit himself to the government of the church and honor the judicatory process;
An admonition “warning him of his guilt and danger, and exhorting him to be more circumspect and watchful in the future” (BCO 30-2) would have been more appropriate.
38. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in censure by manifesting prejudice in the case when the Restoration Committee (established by the Session at the conclusion of its conviction of RE Dudt) sent RE Dudt an e-mail on November 16, 2020 to begin the process of restoration even though all committee members knew that the notice of appeal, which suspended the judgment, had been filed, thus not respecting RE Dudt’s right of appeal (BCO 42-6).
39. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in censure and manifested prejudice by allowing TE Barry, who testified during the trial that he did not privately discuss this matter with RE Dudt due to a perceived conflict of interest, to contact RE Dudt on behalf of the Restoration Committee in the email of November 16, 2020.
40. The Session of Midway Presbyterian Church of the Presbyterian Church in America erred in censure by manifesting prejudice in the email sent by the Restoration Committee. The email stated in part that RE Dudt’s suspension will persist “even in the presence of an appeal…as a means of impressing upon your mind a proper sense of your danger and should be administered with the blessing of God leading to repentance (36-5).” That statement is a rush to judgment, for, in accordance with the appeal process, it has not been concluded by the judicatory process that RE Dudt has been convicted of a chargeable offense that demands repentance. This email itself is prima facie evidence of bias and a willful disregard of BCO 42-6 (SJC 2004-02).