Coming to a Neighborhood Near You: TEC Properties!

In the seesaw world of litigation, The Episcopal Church has recently been able to report that some courts have adopted its view of the Dennis Canon. I have in the past commented on the Canon in question, and it is time to place it in a larger perspective. That is what I shall attempt in this post.

On its face, the Dennis Canon (I.7.4 and .5) is an attempt to declare the existence of a trust:

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.

Sec. 5. The several Dioceses may, at their election, further confirm the trust declared under the foregoing Section 4 by appropriate action, but no such action shall be necessary for the existence and validity of the trust.

As a declaration of trust, it is an attempt to change the title in which "all real and personal property held by or for the benefit of any Parish, Mission, or Congregation" in The Episcopal Church is held. Instead of each "Parish, Mission or Congregation" owning its real and personal property outright, after the enactment of the Dennis Canon in 1979 all such property is magically impressed with a trust in favor of TEC and of the diocese in which the property is located. And notice the hand-waving that goes on in section 5: "no such action [by any diocese to implement the trust---such as by having the parish vestry actually execute a written trust document] shall be necessary for the existence and validity of the trust" (italics added).

"Existence and validity"---these are lawyers' words, mustered for arguments in court, and they do not add anything when used this way in a statute. Legislating that a trust "exists" and is "valid" does not make it so; only a court can declare that a trust exists and is valid. That is a judicial function, and legislatures (such as General Convention) have no business exercising a judicial function.

[UPDATE 11/01/2008: I have modified the wording in the previous paragraph to respond to criticisms here and in the comment from Craig M. below that my language did not say what I meant. But I stand by my statement that section 5 accomplishes absolutely nothing to establish the "existence and validity" of a trust by itself. Over at StandFirm, DavidH suggests that "[section 5] recognizes that if some dioceses chose to take further action, lawyers could turn around and argue that such further action was required to implement the Dennis Canon. It cuts off that argument—the canon rises or falls on its own." Lawyers could make that argument whether or not section 5 said what it says: if state courts determine that the trust requires further action by a diocese to implement it, section 5 as it currently reads has no force or effect as law in a given State to prevent such a result. It would be more legislative in function if GC had created a rule of construction for canon law rather than attempting to legislate universal effectiveness by fiat; for example, it could have made section 5 say: "For purposes of the canon law of this Church, no further steps to implement the trust imposed in section 4 shall be construed as necessary or essential to its creation." That would have been a much more appropriate exercise by GC of its proper functions. The very fact that we lawyers have such disagreements over the basics is, no doubt, why the statute-books (and the canons!) are clogged with meaningless language that the courts simply disregard.]

So in section 4 we have an attempt to create a trust, and in section 5 we have an acknowledgment that the attempt might be of dubious validity, and so there is some legislative wand-waving to say that the trust created in section 4 needs nothing further done---no documents of any kind, no attempt whatever to have the trust "embodied in some legally cognizable form", as the Supreme Court put it in Jones v. Wolf.

Yet the courts in both California (to date; we have yet to hear from the California Supreme Court) and New York apparently do not require anything more than the enactment of the Dennis Canon itself to recognize the "existence and validity" of the trust it created. How can this be?

One looks in vain for an explanation from New York's highest court, the Court of Appeals, in its recent decision in Episcopal Diocese of Rochester v. Harnish (No. 152 [Oct. 24, 2008]---the opinion may be downloaded here). The court simply states in summary fashion:

We conclude that the Dennis Canons clearly establish an express trust in favor of the Rochester Diocese and the National Church (see Jones, 443 US at 606), and that All Saints agreed to abide by this express trust either upon incorporation in 1927 or upon recognition as a parish in spiritual union with the Rochester Diocese in 1947.

Citing to Jones v. Wolf for the authority to say the trust is valid is highly disingenuous. As I noted earlier, the opinion in Jones clearly says (albeit in dicta) that the trust established by a national church must be in a legally cognizable form. The Court of Appeal itself admits there is no such legally cognizable trust document binding the parish, so it is improper for it to cite Jones in support of its finding that the Dennis Canon alone is sufficient to create such a trust.

[UPDATE 11/01/2008: For DavidH (in the comment referenced above) and for many others (including the New York Court of Appeals), the Dennis Canon is self-executing; but as I demonstrate here and here, you cannot cite the authority of Jones v. Wolf to make it so and still call yourself a lawyer who knows the difference between the holding of a case and what is unnecessary to that holding ("obiter dicta"). Relying on the dicta in Jones to say the Dennis Canon is self-executing is not only disingenuous, but in the end it is completely circular reasoning as well.]

Thus the New York Court of Appeals offers no defensible rationale for its holding, and in doing so, it even undercuts the dictum of Jones, which made it a condition of the trust's recognition that it be put into a form that the courts could recognize:

And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form. [443 U.S. 595, at 606 n 4; emphasis added; footnote omitted.]

Thus for the New York Court of Appeals, the words "legally cognizable" are devoid of meaning. The beneficiary of a trust can simply wave one into existence, even though it does not actually own the property being impressed with the trust, provided it is The Episcopal Church.

And this brings me to the most troubling aspect of the decisions in both New York and California (I wrote about the latter case here): they uphold the Dennis Canon trusts solely because they are the creation of a so-called "hierarchical" church. (I say "so-called", because as Mark McCall's paper on the topic demonstrates, TEC is anything but.) Nevertheless, for the sake of argument, let me grant for a moment that TEC is "hierarchical." Why should that mean that it gets to create a trust by waving its hierarchical wand, rather than having to have trust documents drawn up and signed like everybody else?

Imagine the consternation if General Motors, say, could bootstrap itself out of its current economic difficulties by adopting a corporate bylaw which declared that as a condition of anyone being a GM dealer, all of that person's real or personal property used for GM business should be held in trust for GM. The attempt to create a trust thereby would be laughed out of any court in the land, including the New York courts. So what is different about a church---sorry, a "hierarchical" church?

Now be careful here---if you try to say that a church is different, because the relations between it and its parishes are not like the contractual relations between GM and its dealers, you are on shaky ground. A diocese joins the church, and a parish joins a diocese, by "acceding" to the latter's Constitution and canons, that is, by entering into a contractual relationship that is akin, as Mark McCall has shown, to a nation's acceding to an international treaty. The essence of the relationship is contractual, or if you want to make it more solemn-sounding, covenantal. But a covenant is still a form of contract---more formal and permanent, perhaps, but a contract nonetheless.

So if you hold, as does the New York Court of Appeals, that under "neutral principles of law", you must give effect to a national church canon purporting to establish a trust without bothering to do so in any legally cognizable form as required by state statutes governing trusts, you are perilously close to violating the Establishment Clause of the First Amendment. You are setting up a State-sponsored Church that gets treated specially in the courts just because it is the Church that it is---no other litigant, private or public, can bring a trust into existence simply by waving a wand and decreeing it so.

Not only is the church's trust given legal recognition without further ado in New York, but it is apparently irrevocable to boot---that is, the parish in question can do nothing to get out of it. It is found subject to the trust for as long as it remains in the Church, and while its congregation is free to walk out the door, the property stays in the trust.

And what does this say about TEC itself, in passing the Dennis Canon? What was its object in doing so, if I may be so bold as to ask?

If the response is that TEC wanted to prevent churches from leaving, then the next question surely is: And why should TEC be afraid of churches leaving---what was it on the point of doing in 1979 that might cause churches to want to leave? And if it was about to do some such thing (such as making women's ordination first optional, then mandatory), why would it want to keep the buildings and the property after the people that supported them had left?

We all know the answer which the current Presiding Bishop gives to that last question: "Because I have a fiduciary obligation to keep the property for future generations." But if that is the case, then why later offer the property for sale? And why sell the property not to the people who built it and paid for it, but instead to anyone but those people---including, if need be, to people who want to use it for a nightclub?

In the 15th and 16th centuries, the temporal power of the Catholic Church reached its zenith, and the result in part was the Reformation. Pope Julius II even marched at the head of an army to retake lands which he claimed for the Church from the princes who had seized it. The Church was obsessed with its temporalities, at the expense of its spirituality.

So I would say of TEC today. With its battles for buildings and physical property, it is acting no better than Pope Julius did, and its heritage is destined to be just as disgraceful. An army of lawyers is no more a suitable spiritual instrument than was an army of soldiers. The legal battles will be won and lost, while souls will only be lost, and not won.