I analyzed the Georgia Supreme Court's dissenting and majority opinions in the Timberridge case in this earlier post, and I also wrote about the Georgia Court of Appeal's opinion in this post. Taken together, the two posts provide a very good picture of what is wrong with the Georgia Supreme Court majority's view of what constitutes "neutral principles of law." Significantly, this will be one of the main points in the forthcoming petition for certiorari to the United States Supreme Court:
In its petition for writ of certiorari to the United States Supreme Court, Appellee intends to raise the following issues:A. Whether [the Georgia Supreme Court] incorrectly applied the holding and guidelines of the [U.S.] Court in Jones v. Wolf … in its analysis of neutral principles, thereby violating the First Amendment to the [U.S.] Constitution.” Jones v. Wolf is a past decision in which the U.S. Supreme Court established a neutral-principles-of-law requirement. That requirement specifies that both parties must have the intent to create a property trust.B. Whether [the Georgia Supreme Court] violated the First Amendment … by impermissibly deciding ecclesiastical matters rather than applying neutral principles.C. Whether the [U.S.] Supreme Court should resolve the conflicting opinions of numerous high courts across the nation as to application of neutral principles authorized by the decision in Jones.
The Timberridge case will be a perfect vehicle with which to present the Supreme Court with an illustration of how State courts have misconstrued and misapplied Justice Blackmun's famous dictum in Jones v. Wolf, to the special benefit of churches such as ECUSA and PCUSA, and to the detriment of individual parishes which have all along paid for and maintained their property. Indeed, the application for stay in Timberridge lays out the unusual situation which will occur as a result of the Georgia Supreme Court's judgment unless it is stayed:
This Court should stay remittitur to conserve Georgia’s judicial resources. In its decision dated November 21, 2011, this Court ruled that the local church property where Appellee has worshiped for over a century is impressed with an implied trust in favor of a national denomination that has only been in existence for approximately thirty years.Not only does the regional Presbytery plan to take over the parish's property as a result of the judgment; it says it will do so without assuming the existing mortgage! (This is rather short-sighted of them: do they not realize that if the mortgage is not kept current, the bank will end up owning the property, instead of either the Presbytery or the parish? Or perhaps they intend to engage in a game of "chicken" with the parish, to see who will blink first?)
. . . By its terms, the trial court’s order is effective upon remittitur. Therefore, absent a stay, Appellee will be deprived of its place of worship not only during the holy season of Advent and Christmas but also during a time period when it will be pursuing a petition for writ of certiorari to the United States Supreme Court, challenging the very constitutionality of such injunctive relief. . . .
Furthermore, although counsel for the Appellant argued at the October 19, 2009 oral argument in this Court that the Appellant would assume ownership of the local church property if it was ultimately successful in this litigation, as well as the mortgage which is inherent in such ownership, Appellant later filed a supplemental brief in this Court asserting that “title to the property will remain in [Timberridge Presbyterian Church, Inc.] Thus, any outstanding debt secured by the property will also remain a [Timberridge Presbyterian Church, Inc.] obligation. [The Presbytery] will not assume any of [Timberridge Presbyterian Church, Inc.’s] debts.” (Appellee’s Supplemental Brief, p. 2 (emphasis in original).)As the record reflects, there will be no church to assume the current obligations of the local church property as a result of this Court’s decision, nor will the Appellant assume those ￼obligations. Id.; see also, R-1158. Therefore, a stay is imperative to preserve the potential rights and obligations of all parties and to prevent a likely foreclosure and loss of the local church property, pending exhaustion of the full appellate process.
All of this presents a good case for granting the requested stay. Meanwhile, Christ Church Savannah, the other parish which lost its property due to the twisted reasoning of the Georgia Supreme Court (which relied mainly on its 4-3 decision in the Timberridge case), has not requested a stay. It plans to hand over its properties to the Episcopal Diocese of Georgia, and its local congregation, on December 12.
That turnover should not, however, prevent it from petitioning the United States Supreme Court for review of its judgment, as well. Doing so will be the only way for Christ Church to prevent that judgment from becoming irreversible, should the Timberridge parish be victorious in the highest court. Moreover, by filing such a petition, Christ Church would increase the chances of both petitions being granted by the United States Supreme Court.
As I have frequently pointed out before, all of the most recent decisions by the United States Supreme Court on church property law have been occasioned on review of decisions made by the Georgia Supreme Court. In the 1969 case of Presbyterian Church v. Mary E. B. Hull Presbyterian Church, 393 U.S. 440, the Court ruled that church property disputes could not properly be resolved under the "departure from doctrine" element of the implied trust theory which had been employed until then in church property cases in many State courts, including Georgia's. On remand from that reversal, the Georgia Supreme Court ruled that without the "departure from doctrine" element, no part of the "implied trust theory" could survive First Amendment scrutiny (quoting from the U.S. Supreme Court's majority opinion in Jones v. Wolf):
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).
Another decision by the Georgia Supreme Court came up for review ten years later, and resulted in the 5-4 ruling in Jones v. Wolf (1979), 443 U.S. 595, that sanctioned a “neutral principles” form of analysis as a constitutional alternative in church property disputes --- even in ones involving a hierarchical church. The case was again sent back to the Georgia Supreme Court for it to apply such "neutral principles" to resolve the ownership question in favor of the majority of the parish.
Before the decision came down in Jones, the Georgia Supreme Court went off on another tack, and upheld the award of a parish's property to the national denomination in Carnes v. Smith, 236 Ga. 30, 222 S. E. 2d 322, cert. denied, 429 U.S. 868 (1976). As described by the majority in the Jones opinion again:
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. . .
Three Justices of the Georgia Supreme Court dissented from this holding, on the grounds that under "neutral principles of law", only the church deeds and similar documents could be consulted, and not any national church rules or canons. As noted in the quote above, the United States Supreme Court had refused to review the decision in 1976. Then, in 1979, it reviewed and reversed the Georgia Supreme Court in Jones v. Wolf.
Now the Georgia Supreme Court has again purported to apply its doctrine favoring national church-imposed trusts as part of "neutral principles", in the Timberridge case. But this time, there is a new wrinkle. As explained in my two posts on the appellate decisions linked earlier, the Timberridge parish took steps to opt out of the national church's trust provision, steps which the Georgia Supreme Court deemed were inadequate. The Georgia Court needed to reach that result in order to bolster its decision in the Christ Church case, and as indicated, the result was a divided 4-3 Court.
The Timberridge parish is to be commended for calling the majority's result-oriented reasoning to account before the nation's highest court. And for the reasons I gave earlier, Christ Church should strengthen its own and Timberridge's chances of a hearing by asking for review of its own judgment, as well. Only in that way will the United States Supreme Court be able to see how the rationales of the two cases were inextricably bound up with each other, so that if one falls, the other must, as well.