Monday, January 5, 2009

California Supreme Court Throws out the Statute of Frauds

The California Supreme Court has now joined the ranks of State courts who uphold trusts created by the Dennis Canon, without any action on the part of the parishes that actually own the property in question other than the act of aligning with the Episcopal Church (USA). In a 7-0 decision, it ruled that the Diocese of Los Angeles could go forward with its suit to reclaim the buildings and land of St. James Church in Newport Beach, California, which voted to leave ECUSA in July 2004. (Justice Joyce Kennard dissented only on the point that as construed by the Court, the California statute which saves the Dennis Canon [Corporations Code section 9142, discussed below] is not a "neutral principle of law.")

I will have more to say about the full consequences of the decision for other pending California cases later. For the moment, I just want to focus on the problems with the result reached by the Court in this case. I reviewed the arguments to the Supreme Court in this series of past posts: a summary of the case, a discussion of the arguments for and against the Dennis Canon, and a discussion of the effect of California's unique charitable donor enforcement statute, Corporations Code section 9142. Readers of those posts will remember that the principal question presented on appeal was this, as asked in oral argument by the counsel for St. James, Eric Sohlgren:
"By what power or authority is a trust beneficiary, even if it is a church, able to create in California a trust without the signature of the trustor on the trust?"
The California Supreme Court's answer to this question is that a church can do so, because Corporations Code section 9142 (c) (2) says it can. In other words, the Court has held that section 9142 (c) repealed the California Statute of Frauds with regard to trusts in real property (expressed in Probate Code section 15206). (The original "Statute of Frauds" was enacted by Parliament in 1677, and it has been a mainstay of the law ever since. It requires (among other things) that an interest in real property be created only by an instrument in writing. As applied to trusts in real property, section 15206 requires that to be valid, they must be created in a writing signed by the owner of the real property in question.) To make 9142 (c) read so as to repeal section 15206 in the case of religious trusts, the California Supreme Court disgracefully kowtows to the dictum of Justice Blackmun in Jones v. Wolf (which I quoted and discussed at length in this post). Remember, in responding to criticism from the dissenters in Jones that the "neutral principles" approach would unduly burden a hierarchical church, Justice Blackmun said, among other bits of legal advice to the churches which were mere obiter dicta, or "matters said in passing":
They [the churches] can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal.
(443 U.S. at 606.) Well, now look at how the California Supreme Court takes this little judicial aside and turns it into a pronouncement of binding legal effect:
Defendants focus on the high court’s reference to what the “parties” can do, and argue that Canon I.7.4, to be effective, had to have been enacted by the parties — in other words, that some kind of agreement must have been reached between the general church and St. James Parish (and presumably every other parish in the country) ratifying Canon I.7.4. We do not so read the high court’s words. Use of the passive voice in describing the possible “alternative[]” of making the general church’s constitution recite the trust suggests the high court intended that this could be done by whatever method the church structure contemplated. Requiring a particular method to change a church’s constitution — such as requiring every parish in the country to ratify the change — would infringe on the free exercise rights of religious associations to govern themselves as they see fit. It would impose a major, not a “minimal,” burden on the church governance. (Jones v. Wolf, supra, 443 U.S. at p. 606.)
(Opinion, at pp. 22-23.) With this passage, the Court not only kowtows to Justice Blackmun's legal advice to churches, it transforms a mere dictum into a "requirement" of the law. "Requiring a particular method to change a church's constitution" is nonsense, and shows a complete failure to comprehend the issue at stake here. No one is arguing that California has the right to tell a church how to "change" its own constitution. (Justice Ming Chin appears to think that St. James was arguing that in order to pass a canon, the Church would have to have the written consent of all of its 7000+ parishes---a straw man, if there ever was one.) All that St. James was arguing is that to create a trust in its property (whether by canon or otherwise), the national church, just like any other beneficiary of a trust in California, had to get the written consent of the property owner. What would make that requirement any more of a "major" burden on the church than for any other entity that wanted to establish a trust over 7,000 separate properties? Why should a church receive the benefit of a judicially enacted shortcut, just because it is a church?

In sum, the California Supreme Court has abdicated its responsibility to decide cases with regard just to the legal principles established by prior cases. In combination with a number of other State courts who have done so, it takes Justice Blackmun's dictum about how a church could change its constitution and elevates that dictum into a rule of law that overrides even the Statute of Frauds.

The Court then compounds this major misstep, as courts are wont to do, with a dictum of its own: it brushes aside any further inquiry into the validity of the Dennis Canon, saying that "this is one of those questions regarding 'religious doctrine or polity' . . . on which we must defer to the greater church’s resolution" (op. at 29). To which I say: what "resolution"? When, or where, has General Convention ever "resolved" the issue of whether it properly passed the Dennis Canon? General Convention has said absolutely nothing about the Dennis Canon ever since 1979---and the Canon itself was not even referred to by the Church's own news service for over twenty years after that. This, unfortunately, is all too typical of the way judges dispose of matters that might, if looked into, disturb the major result on which they have decided.

The bottom line, therefore, is this: dictum has prevailed, and neutral principles of law have lost. The Court's dressing up its ruling as a decision based on "neutral principles of law", as Justice Kennard rightfully points out in dissent, is a charade. The proper way to describe the Court's result today was anticipated by the Court of Appeal in California-Nevada Annual Conference v. St. Luke's United Methodist Church (2004) 121 Cal.App.4th 754, at page 771, when it said:

“Although the hierarchical theory has supposedly been rejected in California, it will nevertheless live on under the label of ‘neutral principles of law,’ if a church’s own rules are viewed as trumping state statutes.”


  1. I have been making my tithe (remotely, as I do not live in the area) to the Anglican church in Petaluma. They were not affected by this ruling but I consider it likely that they will abide by it nonetheless, in the interest of avoiding unnecessary litigation.

    Does this mean that the funds in that account will now belong to TEC? If I request that my tithe, which was very intentionally sent to the Anglican congregation instead of the Episcopal congregation, do you think that TEC will transfer the money to the Anglican congregation, honoring my intent?

    Thanks. I always appreciate reading your thorough overviews of the canonical and legal situations. Your blogging is much appreciated.

  2. AnglicanAlone, I am sorry, but I cannot give legal advice via this Weblog.

    All I can do is indicate that the lawsuit against the church in Petaluma seeks the return of property in the name of that church as of the date it voted to leave. I do not see, in general, how the lawsuit could affect the right to contributions made after that date---but I stress that if you want definitive advice, you should retain a qualified church attorney.

  3. Hi Anglican Alone,
    I am wondering if we may both live in a similar part of California. I looked for your email address and couldn't find it on your blogger profile. If you are interested, please contact me at

  4. I was very pleased with the court's decision and, obviously, disagree with the Anglican Curmudgeon. The decision to assert that the real property of congregations and dioceses is held in trust for the Episcopal Church was not made by a body in which congregations and dioceses have no say. This is not a matter of an unrelated institution claiming a trust relationship. It is a matter of a decision of the General Convention, made with representation from every diocese. In fact each and every diocese owes its existence as a diocese to the action of the General Convention, just as every congregation owes it existence as a member congreation of a diocese to the diocesan convention. Congregations and diocese exist in relationship and not on their own, and those relationships are ordered by diocesan and Episcopal Church canons. People who are no longer able to live in conscience within those relationships are free to leave - with my prayers - but they can't take Episcopal Church property with them.

  5. Father Weir, thank you for coming here to comment. We do not have a dispute over the power of General Convention to pass a canon such as the Dennis Canon (bad policy though it might be, for the reasons stated by BabyBlue here).

    My problem is with the way the California Supreme Court has seen fit, without any logic or true precedent, to allow ECUSA's canons to trump a State statute---a law which the people of this State first enacted in 1872, in their own legislature, and that has been on the books ever since. Think about how you would like it, say, if some religious body meeting in Zanzibar could pass a rule which changed the laws in New York without your having anything to say about it.

  6. The Canons of the Episcopal Church can trump a state statute because the California Supreme Court has so ruled. You may not like it and lawyers and jurists may think it is a bad decision but it is now case law in California.
    It seems to me that the decisions about any congregation's or diocese's membership in the Episcopal Church, having been jointly made by congregation and diocesan convention or diocesan convention and General Convention, can only be reversed by the bodies that made the decision. Seceding from the Episcopal Church cannot happen unilaterally.

  7. Father Weir, again I thank you coming here to comment—I appreciate the fact that you wish to keep the door open. Bad decisions, however much they may be “the law”, never help in the long run. (Think of Plessy v. Ferguson, and how that delayed the South’s progress in public education for fifty years.)

    I have no problem with the Church adopting its canons, provided it follows its own procedures in doing so, and provided it follows them itself once it has adopted them. However, as I have pointed out before, General Convention did not follow the Constitution, and the House of Deputies ignored its own Rules, in “adopting” the Dennis Canon. And as I have demonstrated time and time again on this blog, neither the Presiding Bishop nor the House of Bishops cares about following the canons when it is inconvenient to do so.

    So I find it somewhat hypocritical of the Church to be telling the courts one thing while it does exactly the opposite.

    Meanwhile, on the matter of the right of a member diocese to “secede”, you might want to study this post. And you need also to appreciate that how the Church came together in the first place is exactly the same as how it can come apart today—particularly if it persists in violating its own laws and procedures in its efforts to hold itself together.

  8. Perhaps St. James should seek an initiative change to the law explicitly making Corporations Code section 9142(c) subject to the Statute of Frauds. In the meantime they can return to TEC hat in hand, and then once the initiative passes, re-depart.

    I think that in California, a slogan along the lines of "make churches subject to the same trust law as everyone else" would have more power to sway then "keep a special exception for churches". What do you think?

  9. James, an initiative takes millions to initiate and then see through to a success. But I agree that the Legislature should not take the Supreme Court's dispensing with the Statute of Frauds lying down. Perhaps St. James and other threatened Churches could see just who are their friends in the Legislature. That would be a far quicker way to put a stop to judicial arrogance and lawlessness than trying to get an initiative going. And now, since the Legislature's session is just beginning, is the time to introduce such a bill!

    (However, if there were money for that available, I agree with your idea of how to present the campaign. The same tack should be taken with Gov. Schwarzenegger to sign the bill, should the Legislature see fit to pass it.)