Some commentators who are sympathetic to the national Church believe in their Episcopal hearts that the result simply reflects "an already existing understanding of the fiduciary and trustee relationship of parishes with their property; and [the fact that] by their admission into the church they have voluntarily accepted its law as governing and limiting their actions." Indeed it does; indeed it does reflect "an already existing . . . relationship". Such a relationship has, however, two sides. If there is an understood promise always to devote the property to the use of the larger church, isn't there a corresponding promise to keep the larger church faithful to "the faith once delivered to the saints"? It is again one of those ironies of the law that the former promise should (currently, at least) be enforceable in the courts, but not the other---because it would "entangle" the courts in religious doctrine. And yet the one is the consideration for the other.
So there is an enforceable trust on the property. Just what are its terms, and where do we go to look for them? So many people seem willing to assert the existence of a trust---including, apparently, the California Supreme Court---but there are precious few who are willing to say just what the Dennis Canon means.
The litigants themselves, for example, need this information. Currently, their attorneys seem to disagree over what happens next. According to the diocesan chancellor, Canon John Shiner, the decision was "final, conclusive, [and] definitive"---meaning the litigation is over, I assume. The defendants' lead attorney, Eric Sohlgren, however, points out that they have not yet answered the complaints of the diocese and the Church. All the news reports that sites like epiScope, Episcopal Café and Thinking Anglicans are fond of citing talk about the decision as a fait accompli, but then there is a reason why such sites link only to one kind of source, and never to sites like George Conger's, or to this one. When you read only those people who agree with you, pretty soon you believe that the "whole world" is on your side. But in California, as elsewhere in jurisdictions which follow the rule of law, a party gets an opportunity to answer the plaintiff's complaint before there is a final judgment. One needs to read more balanced commentary, such as George Conger's excellent piece cited earlier, to learn that:
Although the litigation began in September 2004, no testimony or evidence has been presented to the courts, as the abstract question of which legal theory governs the dispute has been under review for the past four years.Thus the parties now return to the Orange County Superior Court, barring any appeal to the U.S. Supreme Court in the next ninety days or so, to ask it to clarify Justice Blackmun's dictum that led to this whole mess. And I return to my question. The Diocese and the Church are asking the court to give effect to the trust embodied in the Dennis Canon. Parishes all over California might well be asking the question: What is the effect of the Supreme Court's decision on their property, and what are the terms of any trust imposed by the Dennis Canon?
What follows is a pure legal fable---as fabulous as the terms of the Dennis Canon are nebulous. It is only a fable, but is offered half seriously; maybe somewhere, some parish or congregation will be able to fashion out of it some solution for their own internal divisions, if such exist. (It was inspired by a taunting comment left on an earlier post: "What would you have TEC folks do? Wave goodbye?") If it leads to only one creative solution, I will feel that I have expiated a bit of the mess which the courts have made of the current situation. (Anyone who can manage to avoid the courts at this point is, believe me, far, far better off than those who are compelled to be involved with them.)
To understand what follows, we start with the language of the Canon itself (Title I, Canon 7.4):
To understand what follows, we start with the language of the Canon itself (Title I, Canon 7.4):
Sec. 4. All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.The parish property ". . . is held in in trust for this Church . . .". But what person is "this Church"? As discussed many times on this blog, the organization that now calls itself "the Episcopal Church" has a number of different aspects. It is first and foremost a voluntary association of dioceses that accede to the national Constitution and Canons, and which began with a convention in Philadelphia in 1789. Since an unincorporated association cannot hold title to property in a number of States, the Church also has an incorporated arm---the Domestic and Foreign Missionary Society, which is a religious corporation under New York Law. As a corporation, it can hold title to property of the Church, such as 815 Second Avenue.
But the Church also is sometimes thought of as its General Convention, which is a gathering of lay and clergy deputies in one house, and of its bishops in the other house, that meets once every three years for just two weeks---that is to say, it exists for just two weeks out of every one hundred and fifty-six (somewhat like the mythical village of Brigadoon, only not as whimsical). And there is its Executive Council, which meets in the interim between Conventions. Last but not least, there is the Office of the Presiding Bishop, which according to Canon I.2, is "the representative of this Church and its episcopate in its corporate capacity." How is one to say, from just the words "this Church" in the Canon, for which of its multifarious aspects the property of a parish is held in trust? Which part of "this Church" gets to say when that trust is not being performed to its satisfaction? Who gives the Church's attorneys their instructions what to ask for in court?
It is a little easier seeing the diocese in which the parish is located as the beneficiary of the trust. At least it is in the geographical neighborhood, and is led by a single bishop. In any conflict between the diocese and the national church over how the trust is to be enforced, a court would probably be inclined more to defer to the position of the diocese, under the theory that "what's good for the diocese must also be good for the church as a whole."
So we have a trust, and we have a likely beneficiary, and we have trust property to be "held in trust." How long does the trust last? The Dennis Canon does not say, but since it is a charitable trust, it can last for as long as the charity itself. And who is the trustee?
Ah, now that is an interesting question. The Canon itself uses the passive voice ("All . . . property . . . is held in trust . . ."), so it studiously avoids naming the trustee outright. But since the second sentence gives the parish complete power and freedom over the property while it remains part of the Church, it can only be the parish itself which is the trustee of the trust.
But what happens when a parish chooses to disaffiliate from the Church? Is it somehow "removed" thereby as trustee?
A trustee cannot be removed by a trust beneficiary, but only by a proper court---the trustee has to remain independent of, and not subject to, the beneficiary. (This is what makes the Dennis Canon trust such a strange creature under trust law. The parish is both the trustee and the primary beneficiary of the trust, and unlike a real trustee, can deal freely with the property as if it were its own. The Diocese is only a secondary beneficiary, and has very little say in how the property is operated; nor does it benefit from the use of the property as such.) But in the case of the Dennis Canon, the trustee becomes independent of the beneficiary only if, paradoxically, the parish disaffiliates.
Whatever else the California Supreme Court did, it did not remove St. James as trustee. All it did was declare the existence of a trust. And a trust has to have a trustee. What the Dennis Canon literally says is that the power of the trustee to deal with the property as its own becomes limited only if and when the trustee disaffiliates. In other words, it becomes a true trust only when the trustee decides to leave the Church, because it is only then that the trustee (by the act of leaving) becomes actually independent of the other beneficiary (the diocese), and is able to be a real trustee!
For parishes considering disaffiliation from the Church, therefore, this fact may open up some possibilities for a genuinely Christian solution to the problem of how to accommodate the desires and needs of both the group that splits off, and the group that wishes to stay in the Episcopal Church. Let's assume that in a typical parish (not St. James) of, say, 100 people attending services on an average Sunday, that 60 wish to leave, and 40 wish to stay. Let's assume also that the parish's articles and bylaws make it subject to the Dennis Canon.
The solution that offers itself for Christians is that the 60 who want to disaffiliate agree to continue to hold the property for the benefit of the 40 who wish to remain. They share the space, and hold different services on Sunday, at different times. The forty can bring in their own Episcopal priest to conduct their services, but they should not need to engage any other staff. The Sunday School teachers can still teach all the children, and the parish secretary now puts out two Sunday bulletins instead of one---but they will have the same lectionary, the same psalm, and can even have the same hymns. The only thing that changes are the names of the lectors, greeters, and the names of the clergy.
The 60 who disaffiliate contribute 60% of the expenses of the operation and upkeep of the property, and of the permanent staff---that is their compensation to the Diocese for their physical use of the building and its staff, except that they pay 100% of the salary of their rector (but they were going to have to do that anyway). The 40 who remain pay 40% of the expenses, plus the entire salary of their rector. The two congregations might even arrange to share a common coffee hour between services!
The property goes nowhere, and no title needs to be changed; there is just an acknowledgment that it is held in trust for the Diocese. And by allowing the 40% who remain with the Diocese the full use of the property, the trustee (the group with the 60%) is fulfilling its obligations to the fullest extent possible, by accommodating every Episcopalian in the area who still wants to go to church there. (The Diocese could scarcely be heard in court that it wanted the property sold to the highest bidder, when that would throw its 40 parishioners out of their own church.)
This arrangement could continue for as long as the two groups wished it to. Naturally, for reasons that commenter BabyBlue explained well here, the group that disaffiliates will not be investing much, if any, money in improving the property. Unless the group that remains chooses to do so, the property will become more run-down with time, so this suggests that the solution will not be a permanent one. If the group that disaffiliates gets much larger over time, then it will assume more of the expenses, until maybe it will choose to acquire a property that is truly its own. And if the group remaining becomes larger, maybe it, too, will choose to do the same, at which time the Diocese could sell (or just rent) the property to the other group.
I do not say it is a perfect solution; nor is it one that will work in just any case. But at least it has the virtue of being thoroughly Christian---and it fully honors the Dennis Canon, such as it is.