Unfortunately, the decision of the Hon. Michael Karpf is an instance of the latter category. What is worse, it not only gets the facts wrong, but it also misreads the law as well. In doing so, it only adds to the terrible muck that ECUSA is making of property law across the country. Some respond to ECUSA's maneuvers by saying, "Just let it have its way; it's too big to fight, and you can't win." I am unable to live with that. I make my living from the law, and I cannot understand the thinking of those who try to undermine it to gain a temporary advantage. ECUSA's win is the law's loss, because ECUSA is allowed to act as though it is above the law -- it doesn't have to bother with deeds or declarations of trust, as does everyone else. Accordingly, let us proceed to one more example of how to get it all wrong by listening to ECUSA's attorneys and experts.
This case is one of a series around the country involving parishes of the Episcopal Church who have sought to disaffiliate because of doctrinal differences. Specifically, the case at bar involves a schism in what is likely the oldest church in the state of Georgia. The division within the church has resulted in one faction taking control of the church property, while the other has sued to regain it. It appears that both sides are passionate about the doctrinal issues, but it is well settled that courts have no business intervening in such disputes. Each side has moved for summary judgment. For the reasons that follow, the court GRANTS plaintiffs’ motion and DENIES defendants’ motion. The facts are not materially in dispute and will be recited briefly.
This is a decision upon a motion for summary judgment, which argues that there are no material facts in dispute, and that the Court may use the undisputed facts as the basis for rendering judgment as a matter of law. On the other hand, if the Court were to find that there were any material facts which were disputed, it could not grant summary judgment, but would be required to submit the case to a jury, or to a judge sitting without a jury, to find which of the disputed fact versions is operative for the case.
Apart from its mischaracterization of the parties as "factions", rather than as "the overwhelming majority" and "the minority", the opinion begins with a relatively neutral expression of the actual issue before the Court:
The competing factions seek to control the property of Christ Church, located on Johnson Square in downtown Savannah. Plaintiffs are the Episcopal Church [the National Church], the Diocese of Georgia and the local group which remained loyal to the National Church and the Diocese. The local plaintiffs, who were added by petition to intervene, formed a new vestry, changed their name slightly and began holding services elsewhere, but continued to press their claim to the disputed property. Defendants are the group which has disassociated itself from the National Church and Diocese, and who retain control of church property. At issue before the court is whether church property is impressed with a trust in favor of the National Church and Diocese. If so, then plaintiffs are entitled to control the property. If not, then defendants will continue their dominion over it.
Christ Church was founded in 1733, shortly after the arrival of General Oglethorpe and the original colonists. The church was formally organized in 1758 by act of the colonial government of Georgia. At the time of its founding, the church was a constituent of the Church of England. After the Revolutionary War, affiliation with the English church was no longer possible in the newly formed country.
The National Church then began to organize in 1789 as a hierarchical institution. The church organization has three tiers – the National Church, the dioceses and the local parishes or missions.
VI. That no Powers be delegated to a general ecclesiastical Government, except such as cannot conveniently be exercised by the Clergy and Vestries in their respective Congregations.
THE ROMAN PONTIFF
Can. 331 The bishop of the Roman Church, in whom continues the office given by the Lord uniquely to Peter, the first of the Apostles, and to be transmitted to his successors, is the head of the college of bishops, the Vicar of Christ, and the pastor of the universal Church on earth. By virtue of his office he possesses supreme, full, immediate, and universal ordinary power in the Church, which he is always able to exercise freely.
Can. 333 §1. By virtue of his office, the Roman Pontiff not only possesses power over the universal Church but also obtains the primacy of ordinary power over all particular churches and groups of them. . . .
§3. No appeal or recourse is permitted against a sentence or decree of the Roman Pontiff.
General Convention is no denomination, but is merely a legislative assembly, through which the 105 dioceses can act in concert. Does that mean that General Convention is all-powerful, and at the top of the "hierarchy"? Hardly -- it is difficult to operate a hierarchy when you exist for just two weeks out of every three years, and when there is no language conferring hierarchical status upon you. Consider the reception which GC 2006's Resolution B 033 received in the various dioceses which are supposed to be "subordinate": a number of Dioceses declared they would ignore it. That's some hierarchy.
The court tries to document its conclusion:
The National Church has a constitution and canons, which are similar to bylaws. The dioceses also have constitutions and canons, but these are subordinate to the National Church. The individual parishes are controlled by the terms of their charters and bylaws, which are in turn subordinate to both the diocese and the National Church. In addition, the dioceses and parishes are subject to the doctrine, discipline and worship of the National Church generally.
Defendants’ reliance on Presbyterian Church v. Eastern Heights Presbyterian Church, 225 Ga. 259 (1969), for the proposition that implied trusts over all church property have been abolished, is misplaced. First, that case was decided prior to Jones v. Wolf, 443 U.S. 595 (1979), which distinguished and explained it.Not only was that case decided before Jones v. Wolf, Judge Karpf -- it was the Georgia Supreme Court's holding on remand after it had been reversed by the U.S. Supreme Court! It was the predecessor to that decision, with the same title but appearing in Volume 224 of the Georgia Reports at page 61 (159 S.E.2d 690), which had held -- just as Judge Karpf does -- that the parish property was subject to an implied trust in favor of the national denomination. On appeal to the United States Supreme Court (under the name Presbyterian Church v. Hull Church  393 U.S. 440), that court reversed the Georgia decision and stated unequivocally (393 U.S. at 450; emphasis added):
Since the Georgia courts on remand may undertake to determine whether petitioner is entitled to relief on its cross-claims, we find it appropriate to remark that the departure-from-doctrine element of Georgia's implied trust theory can play no role in any future judicial proceedings.Why, then, does Judge Karpf think that some vestige of the implied trust doctrine can remain, so long as it is not based on any determinations of "departure-from-doctrine"? His explanation of Georgia cases post-Jones does not adequately account for their actual holdings. Listen first to what Judge Karpf says:
Second, subsequent Georgia cases have also noted that the prohibition in Presbyterian Church was to an implied trust theory based on a departure from doctrine, where a court would have to decide the ecclesiastical issue, i.e., did the larger church depart from the tenets of faith such as would defeat the implied trust. See Carnes v. Smith, supra; Coles v. Wilburn, 241 Ga. 322 (1978); Crocker v. Stevens, 210 Ga. App. 231 (1993), disapproved on other grounds, Kim v. Lim, 254 Ga. App. 627 (2002). No such issue is presented in the case at bar.
Now look at how the United States Supreme Court in Jones v. Wolf read what happened in Georgia following the Hull Church reversal -- in contrast to Judge Karpf's reading (I have added the bold for emphasis):
On remand, the Georgia Supreme Court concluded that, without the departure-from-doctrine element, the implied trust theory would have to be abandoned in its entirety. Presbyterian Church v. Eastern Heights Church, 225 Ga. 259, 167 S. E. 2d 658 (1969) (Presbyterian Church II). In its place, the court adopted what is now known as the "neutral principles of law" method for resolving church property disputes. The court examined the deeds to the properties, the state statutes dealing with implied trusts, Ga. Code 108-106, 108-107 (1978), and the Book of Church Order to determine whether there was any basis for a trust in favor of the general church. Finding nothing that would give rise to a trust in any of these documents, the court awarded the property on the basis of legal title, which was in the local church, or in the names of trustees for the local church. 225 Ga., at 261, 167 S. E. 2d, at 660. Review was again sought in this Court, but was denied. 396 U.S. 1041 (1970).
The neutral-principles analysis was further refined by the Georgia Supreme Court in Carnes v. Smith, 236 Ga. 30, 222 S. E. 2d 322, cert. denied, 429 U.S. 868 (1976). That case concerned a property dispute between The United Methodist Church and a local congregation that had withdrawn from that church. As in Presbyterian Church II, the court found no basis for a trust in favor of the general church in the deeds, the corporate charter, or the state statutes dealing with implied trusts. The court observed, however, that the constitution of The United Methodist Church, its Book of Discipline, contained an express trust provision in favor of the general church. [Footnote omitted.] On this basis, the church property was awarded to the denominational church. 236 Ga., at 39, 222 S. E. 2d, at 328. . .
None of this sounds as though there was any authority granted by either the United States Supreme Court or the Georgia Supreme Court to continue to resolve title questions on any kind of implied trust doctrine -- as the former observed, the latter ordered that the doctrine "be abandoned in its entirety", and not just as to its departure-from-doctrine aspect. If a court has to look into a church's history and polity to determine that there was always an implied trust relationship between parishes and the denomination, it will be engaging in the same unconstitutional evaluation and weighing of religious language and doctrines as it did in deciding whether there had been a "departure from doctrine." Any such implied trust, if it can be created only out of a subordinate religious relationship and not from any objective words of trust written on paper, is purely a creation of religious doctrine and polity -- which the Hull decision says "can play no role in any future judicial proceedings."
Thus Judge Karpf pays lip service to deciding the current case on "neutral principles", but by resurrecting the implied trust doctrine forty years after it was laid to rest, he has thrown out neutral principles and reverted to the law as it was pre-Hull Church.
Judge Karpf also misreads two Georgia statutes which appear to codify the implied trust doctrine by declaring the existence of an express trust with regard to certain conveyances of land to churches. The precise language of the statutes cannot be applied to Christ Church, because it did not receive its land by "deeds of conveyance" -- it received a land grant from the colonial legislature. Watch how Judge Karpf tries to blur the clear language of the statutes:
At the time Christ Church was incorporated and the Legislature confirmed its land grant, it was a congregational church, unaffiliated with either the Diocese or the National Church. When the church joined the hierarchy in 1823, the two code sections had been promulgated eighteen years earlier. By taking the steps to affiliate itself with the larger church body, Christ Church made itself subject to the code sections. Even though the first part of OCGA § 14-5-46 did not change the status of the church’s title to its property, which was already valid by the earlier act of the Legislature, the second sentence became applicable.
All lots of land so conveyed shall be fully and absolutely vested in such church or religious society or in their respective trustees for the uses and purposes expressed in the deed to be held by them or their trustees for their use by succession, according to the mode of church government or rules of discipline exercised by such churches or religious societies.In his opinion, Judge Karpf places the entire sentence in italics for emphasis. I have changed his emphasis to highlight the two little words he appears to have missed. This sentence spells out how the land "so conveyed" to a church shall be held and used: the reference "so conveyed" takes us right back to the first sentence, which Judge Karpf admitted did not apply to Christ Church, or modify the terms on which it held its property. Thus if the first sentence did not apply to Christ Church when it joined the Diocese of Georgia, nothing in the second sentence could have applied to it, either. The second sentence is completely dependent on the first.
Judge Karpf's reference to a second statute is just as ineffective, because it, too, refers back to the statute just quoted -- which cannot apply to Christ Church. It reads:
All trustees to whom conveyances are or shall be executed, for the purposes expressed in Code Section 14-5-46, shall be subject to the authority of the church or religious society for which they hold the same in trust . . .This statute does not apply to Christ Church for another reason: it applies only to conveyances (and Christ Church did not, as Judge Karpf acknowledges, receive its land by conveyance) executed after the statute's effective date --"which are or shall be executed . . ." Christ Church was granted its land well before the enactment of the statute. Thus Judge Karpf is just wrong when he concludes that the two statutes support the existence of the trust supposedly created by the Dennis Canon. They simply do not apply to the situation of Christ Church.
There is much, much more in the decision that is wrongly reasoned, and wrongly decided, but it would be too tedious to work through all the details. One more example shall have to suffice. Towards the end of his opinion, Judge Karpf deals summarily with Christ Church's argument that the Diocese of Georgia's own canons insulate its property from the trust of the Dennis Canon:
Defendants’ reliance on Canon II.8 of the Diocese of Georgia is misplaced. The canon does state that “[n]othing in these Canons shall prejudice the legal rights of any Parish or Vestry already existing by act of incorporation.” However, diocesan canons are subordinate to the canons of the National Church.13 To the extent that II.8 and the Dennis Canon conflict, the Dennis Canon would control.And what is the source for this blanket assertion that "diocesan canons are subordinate to the canons of the National Church"? Footnote 13 spells it out: "The Episcopal Church Const. art. V, § 1; Mullin Aff. ¶ ¶ 15 and 22." I have enough familiarity with Dr. Mullin's declarations to know that he simply asserts they are subordinate, without any reference to language making them so. But the reference to Article V, § 1 of the Constitution utterly fails to convince. That section says only that as a condition of joining the Church, the Diocese of Georgia had to accede to the Church's Constitution and Canons back then. As I have already noted, Dioceses routinely refuse to comply with or give effect to canons with which they disagree -- many allow open communion, and still more allow same-sex marriages in defiance of the Book of Common Prayer (whose authority is superior to that of the Canons).
Moreover, even if the national canons would have to be read in conjunction with diocesan ones, there is no conflict between the Dennis Canon and Georgia's Canon II.8. The former purports to make the Church and the Diocese the beneficiaries of a trust in the parish's property. But as we already know, ECUSA is a common-law association which is incapable of holding any interest in property, so the trust interest supposedly created for it is of no effect. That leaves the Diocese of Georgia, which as a beneficiary is perfectly capable of waiving its right to the trust -- and it appears to have done so with its Canon II.8, as to properties held by parish corporations before the date of its enactment. It agreed not to prejudice those pre-existing rights, and the Dennis Canon constitutes an extreme prejudice to those rights.
Enough said. Judge Karpf's decision is too full of mistakes to stand on appeal. One might be hopeful about the Supreme Court of Georgia's reluctance to touch any "implied trust" argument with a ten-foot pole after having two of its earlier decisions taken up by the United States Supreme Court. The first was reversed outright (Hull Church), and in the second one, the Court said: "You almost got it right this time with your neutral principles approach, but . . ." If the Georgia Supreme Court sticks to true neutral principles, stays away from the two inapplicable statutes relied upon by ECUSA, and reads Canon II.8 as a waiver of imposing the Dennis Canon on pre-existing parish corporations, then Christ Church might just keep its property. Only time will tell.