Wednesday, April 4, 2012

A Pewster's Primer on Property Lawsuits

This post will serve as an introduction to churchgoers both inside and outside the Episcopal Church (USA) who want to know more about the lawsuits it has brought against congregations and entire dioceses who do not want to remain affiliated with it. The easiest way to address this topic is through a Q and A format.

Q Who is suing whom?

A  Most often, the plaintiffs bringing the lawsuits are the Episcopal Church itself, together with one of its 100+ dioceses, which are its regional members. When a congregation in one of the dioceses serves notice that it is pulling out of the Church (for various reasons), the Church and that diocese file suit against it for its buildings, bank accounts, hymnals, prayer books, vestments, candlesticks, crosses, vessels and altar cloths. Not only that, but they sue the parish rectors and vestry members as well, and frequently seek punitive damages against them, both as a means of punishment and intimidation, and to make it more costly for them to have to defend themselves in addition to their parish.

Q Why do they sue for those things? Don't they belong to the congregation that paid for them, and that saved the money in its bank account?

A On paper, all those things are in the congregation's name, yes, because (almost always) the congregation has paid for them, and neither the Church nor the diocese has paid a thing.  But the Church and the Diocese claim that all the congregation's assets are held in trust, and cannot be used outside of the Church.  So when the congregation votes to leave, the diocese says: "Fine, but leave us your keys, your deeds, and your bank accounts."

Q Did the congregation know about that trust?

A Most often not, until just before the lawsuit is filed.  That's because it was created by passing a Canon (bylaw) at the Church's national convention in 1979, and then neither the Church nor the dioceses told their congregations about it.  Even one of the Church's bishops admitted recently in a lawsuit that "no one expects church members to know much about the Canons."

Q How can the Church enforce a trust that no one knew about?

A Because many courts are allowing them to.  They say to the congregation: "When you joined the Church, you agreed to abide by all of its canons."

Q But did congregations joining the Church in the 1800's agree to abide by a Canon passed in 1979, if they weren't told about it?

A The courts say it doesn't matter. The congregations were supposedly "represented" at the national convention that adopts the Canons, whether they actually knew about them or not.

Q Even if a congregation knew about the 1979 Canon, how can a Church simply declare that a trust exists on all of its parishes' properties, just like that? Wouldn't each congregation have to sign a deed placing its property into such a trust, for it to be recognized in court?

A Again, that's they way everyone else has to create a trust, yes -- the owner of the property in question has to sign a document in writing that places the property into a trust.

Q So how do the courts let the Episcopal Church get away without having the signed consent of each of its congregations?

A Because it's a big national church, and claims it has the power over each of its congregations to do so. And the courts don't like to ask too many questions about the structure and power arrangements of a church, for fear of interfering with the "free exercise" of its religion, under the First Amendment.

Q Has the Church succeeded in each of its lawsuits to date?

A By no means.  Its arguments have been successful to date in about nine states, and have been unsuccessful thus far in about eight others.  Final decisions are still pending in other states.  Each State decides the cases according to its own law of trusts, and those differ widely.

Q Will the differing results ever get resolved?

A The United States Supreme Court could help, by making it clear that an earlier decision was not intended to grant national churches a special privilege to bypass State trust laws

Q Is there any chance of its doing so?

A There are three cases now pending before it asking it to do just that.  We will probably not know whether it will agree to hear them before June, or possibly not even until next October.

Q How much is all this litigation costing?

A I estimate about $25 million to date -- there is nothing so expensive as litigating over 75 lawsuits, some of them through several appeals.  You can read how I arrive at that estimate here.

Q What are the Church and its dioceses doing with the properties they win in their lawsuits?

A Most of the time they have no remaining congregations sufficient to occupy them and pay for their upkeep and the costs of operation, including the salaries. Very few of the properties -- less than half a dozen or so -- are now in the hands of Episcopal congregations who actually use them each week.

Q So what can the diocese do with a property for which there is no congregation?

A It tries to sell it -- and if it does so, it is usually for a loss (in the current market).  It uses the money to defray the costs of litigation.

Q Could the congregation that lost purchase it from the diocese?

A The leadership of the Episcopal Church strongly discourages that, and practically all of the dioceses have refused to sell, to what they regard as "the schismatics", i.e., "the competition."

Q How does that make sense?

A It doesn't.  Frankly, it's madness.  Despite their protestations, the leaders of the Church have not managed to preserve any assets "for future generations", and they have consumed far more of the Church's endowment on lawsuits than they will ever replace through sales of property.

Q So why does the litigation continue?

A Solely as a means of intimidation against those who are thinking of leaving, and as a punishment of those who left.  And it will continue until the Episcopal Church itself either depletes its own available assets, or until those in its pews and pulpits bring the leaders to their senses.



  1. You might add that the Episcopal Church is also suing the rectors and vestries of the departing congregations, alleging fraud and wrongdoing on their part and demanding damages from them too. Of course there is no justification for that other than pure evil.

  2. You are right, sophy0075, and I have corrected my first Q and A to reflect that dastardly element of ECUSA's strategy in these cases.

  3. A.S.,
    Great job on helping those who don’t know what’s really going on in the church property litigation front. Here's another question I thought of:

    Q: Have individual parishes made settlements/deals with TEC and what is the outcome?

    A: Yes, several have; however, part of the settlement is that the parish pays for the property AND is not allowed to associate with any Anglican province (e.g, ACNA, CANA, etc.) for at least five years.

  4. What about Mississippi? I've read about a Catholic church on the Gulf Coast and a Presbyterian church in Madison who left PCUSA and kept its property, but I don't know if this was all settled in local probate court, or if some things on neutral principles had to be straightened out, etc. I think the Madison Presbyterian church took some issue not to the state Supreme Court, but to the US Circuit. I can find nothing about the decision, but since that was back in 2007 and the church is still there, I assume they won...but I don't know.

  5. In my opinion, there is a bold and useful thing the Abp. of Canterbury could do before relinquishing his post that would leave him standing taller and with a legacy much brighter than if simply quietly winds things down. What I suggest is related to the fact that the Abp. has operated on an apparent belief that there is no reason to have a time certain for ending mediation and negotiation of an issue or issues, while in actuality--whether at the courthouse steps or some other further next-step that may follow mediation or negotiation--a no-time-certain approach with regard to mediation or negotiation will almost universally operate to deny justice to one of the parties to a dispute, as has occurred in the case of congregations where there has been a clearly demonstrated desire of individuals not to remain affiliated with TEC/ECUSA. Thus, what the Abp.can now do to rectify his past approach involving issues in property litigation cases is to file amicus briefs in every property dispute pending in an appellate court in this country in which TEC/ECUSA is a party and clearly point out that TEC/ECUSA is largely at fault for the entire matter being before the court. This should deservedly take much of the wind from TEC/EDCUS's "sails" and would provide necessary guidance to the courts as what is really involved in these disputes.

  6. To hopefully simplify my post relating to what may now available to the Abp. of Canterbury with regard to submitting an amicus brief in various TEC/ECUSA's legal actions against congregations where a majority of members have voted in favor of no longer remaining affiliated with TEC/ECUSA: (A). A bishop is consecrated in TEC/ECUSA in violation of Church law of provinces in the Anglican Communion. (B). The Abp. of Canterbury provides the greatest possible forbearance to TEC/ECUSA in dealing with this situation (i.e., under what I termed a policy of a no-time-certain end to mediation and/or negotiation of various related issues). (C). In no way, morally or legally, does (B)justify TEC's/ECUSA's proceeding in property litigation against a congregation where the majority of a congregation has voted in favor of no longer remaining affiliated with TEC/ECUSA,if,in fact,(as noted in (A)), the above consecration in TEC/ECUSA simply continues to remain in violation of Church law in provinces of the Anglican Communion.