Wednesday, October 28, 2009

Striking out in Georgia

The Honorable Michael Karpf, Judge of the Superior Court in the Eastern District of Georgia, has now rendered his decision awarding ownership of the oldest Church in Georgia to the Episcopal Diocese of Georgia, and to ECUSA itself (which, paradoxically, as a common-law unincorporated association, is deemed incapable of holding any interests in property). I know that there will be knee-jerk reactions on both sides of the issue, but I refuse to respond in that fashion. On this blog, all that counts is faithful application of the actual law to the facts. Where the trial courts get either the facts or the law wrong, I shall point that out to be the case, and explain why the court is wrong. And by the same token, where a court gets things right, I shall point that out, too. Those who are outcome-oriented, and inclined to agree with any decision (regardless how poorly reasoned) that allows them to carve another notch into their gunstock, will receive no comfort here.

De facto victories in the trial courts are nothing to celebrate if they cannot bear up under legal analysis. All of us suffer when a court fails to follow the law. For too long now, the Episcopal Church (USA) has been twisting the facts of its formation, and avoiding confrontations over those facts by moving for summary judgment with hand-tailored affidavits (declarations). It claims the facts are in its favor, when they are not. It argues that there is an abstract entity, called "the Church", which exists in the hierarchical sky over each and every member diocese and parish. Some courts see through the flimflam, but many are taken in by it.

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.

The trial court's decision begins with a more or less standard recitation of the context in which the Court is called upon to make its decision:

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.
(Emphasis added.) So the facts are not materially in dispute? Let us view how that observation holds up under detailed analysis. [UPDATE 10/29/2009: A member of Christ Church who was there when it happened writes to point out that Judge Karpf has the facts wrong from the second sentence onward, when he writes of a "schism" in Christ Church and (in the next sentence) a "division within the Church" resulting in two competing "factions". The vote to withdraw by the Vestry of Christ Church was unanimous. The congregation itself later approved the move by an 83% majority of its members; it is not the case that the minority is a "faction" which has the capability of maintaining and operating the Church with a pastoral staff on its own. As the Court later acknowledges, the minority parishioners did not even begin the lawsuit; they were added by intervention later to the suit brought by the Bishop of the Diocese and by ECUSA. Also, the writer says, for the Judge to refer to Christ Church as "likely the oldest church in the state of Georgia" is akin to referring to George Washington as "likely the first President of the United States."]

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.
(Emphasis added.) This is a fair statement of the central issue with which the Court is presented. Is there a trust on the parish property which can be enforced by the Diocese and the "National Church" -- whatever that entity may prove to be?

And now let us recall certain universal legal propositions in the Anglo-Saxon world, at least, about how trusts in real property may be validly created. The first requisite for such a valid trust is that there be a written document signed by the owner of the property, which establishes the trust in question. The basic principle here is that no one may create a trust interest in their favor, and in your property, without your written consent to its creation. (This is called historically, for reasons that may be obvious, the "Statute of Frauds." It has been adopted in each and every one of the fifty States. It was the basis for the recent rejection by the Supreme Court of South Carolina of ECUSA's and the Diocese's claim to have a trust in their favor in a parish's property for which there was no written evidence.)

The court now delves into the history of the parish of Christ Church in Savannah:
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.
So far, so good. But now watch the Court deliberately prepare the result upon which it has decided, by slanting the facts which it claims are "undisputed" (I have put in bold the words where the court begins to stray from the actual evidence, in order to buttress its prejudged result):
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.
Oh dear, oh dear. No one who is familiar with the actual facts of the initial formation of "the National Church" could possibly conclude that it "began to organize in 1789 as a hierarchical institution." The Protestant Episcopal Church in the United States of America without question began in 1789 as a confederation of independent and autonomous State churches (referred to as "Dioceses", whose boundaries were coterminous with the States [former colonies] in which they had their existence up to that point), and not as any sort of "hierarchy". The very idea of a national hierarchy was anathema to Bishop William White, the person who did the most to bring about the "national Church". There was no sentiment in any State Church at that time to form any kind of "national hierarchy". Instead, here is what Bishop White proposed, and what PECUSA's founders agreed upon as a governing principle at the very outset of its formation:
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.
This is so well-documented a fact (see other posts here and here and here) as to be beyond dispute, unless you are a well-paid sham masquerading as an historian who reinvents the truth upon request. In sum, there was in 1789, and there is now, no "national Church" in the sense for which the plaintiffs argued, and which the trial court appears unhesitatingly to have accepted.

Indeed, just what is this "National Church" at the top of the imaginary three tiers which the court perceives? Is it a church, and does it have a place of worship where it meets every Sunday? Then why call it a "church", when what you mean is a "denomination"?

Very well -- let's call it a denomination. Of what, precisely, does this denomination consist? There are some 7,000 parishes which make it up, to be sure, and they are organized into 111 105 dioceses at the present time. But which parish, or which diocese, is at the top of the "hierarchy"? We all know that the Pope is at the top of the Roman Catholic Church, and in case we didn't the Canons spell it out precisely for us:

Art. 1.


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.

Is there anything even remotely akin to this in ECUSA's Constitution or Canons? How does the language "There shall be a General Convention . . ." amount to a statement that it is the supreme and highest body of "the Church"? Or does the court mean to say that it considers General Convention to be the denomination which it is calling the "national Church"?

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.
This would be comical if there were not so much at stake in the court's getting things right. Where is the language -- the specific words -- which make diocesan constitutions and canons "subordinate" to the national constitution and canons? And just what language makes a diocese -- or even an individual parish -- subject to the "doctrine, discipline and worship of the National Church"? Does the court mean to say that my little parish can be deposed if it allows people who are not baptized or confirmed to take communion? (Oh, yes -- Canon I.17.7 ["No unbaptized person shall be eligible to receive Holy Communion in this church"] is most certainly binding on every diocese and parish in the "National Church". That's why "open communion" is completely unknown in ECUSA -- because everyone, and every parish, is subordinate to its Canons -- don't you see?)

From here, the decision proceeds downhill quickly to its conclusion. Along the way, the court is persuaded that the Dennis Canon enacted in 1979 "merely codified in explicit terms a trust relationship that has been implicit in the relationship between local parishes and dioceses since the founding of PECUSA in 1789." The problem with that claim is twofold: in the first place, as an unincorporated association at common law, PECUSA was incapable of holding any interest in real property, whether in trust or in fee; and in the second place, the early history of PECUSA and its parishes proves exactly the opposite.

Consider, just for one such instance, the history of King's Chapel in Boston. As its name indicates, it was originally founded in 1686 as a colonial parish of the Church of England, and was the first such parish in all of New England. Its current building was begun in 1749, and opened for worship in 1754. During the Revolutionary War its loyalist clergy and parishioners fled to Canada, and the church was unused for several years. In 1782, however, the church opened under the leadership of a young graduate from Harvard, James Freeman. As a Unitarian, he revised the Book of Common Prayer radically to suit the principles he espoused, and the congregation approved his changes.

However, there was no bishop in Massachusetts to ordain him, and so Freeman applied to the newly consecrated Bishop William White of Pennsylvania for assistance in becoming an ordained minister. Bishop White had heard about the changes made to the Prayer Book, and asked Freeman to send him a copy. When he saw that the liturgy had been revised to remove every single reference to the Redeemer, he protested that the departure from Anglican tradition was simply too great for the church to remain in communion with the nascent PECUSA: "The invoking of the Redeemer has been too conspicuous a part of our services to be set aside by some of us, consistently with any reasonable expectation of continuing of the same communion with the rest." He also noted that the changes had been approved by a simple vote of the congregation, instead of receiving the imprimatur from a bishop of the church, or ecclesiastical council. This action "was inconsistent with the whole tenor of the ecclesiastical government of the Church of England", he wrote. To leave each church to its own congregational government "would be foreign to every idea of Episcopal government."

Bishop White declared that King's Chapel could not claim to be Episcopal if it adopted Unitarian doctrines and a congregational polity. He delivered an ultimatum: the congregation must return to the Book of Common Prayer as it had received it, or leave and start its new church somewhere else. In essence, he repeated the mantra of the current head of ECUSA: "Go if you must, but leave the keys, since the property is ours."

Freeman and his congregation ignored Bishop White's ultimatum, and Bishop White acknowledged that it had moral force only: he had no legal basis to assert ownership for the Church in any court of law. After also being turned down for ordination by Bishop Seabury of Connecticut, Freeman was "ordained by the Senior Warden of King's Chapel, in the name of the congregation, in words still used in ordinations at King's Chapel today: 'to be the Rector, Minister, Priest, Pastor, Public Teacher and Teaching Elder.'"

However, according to ECUSA's expert Dr. Mullin, and the findings made by Judge Karpf based on his declaration, what happened with King's Chapel simply could not have happened. All Anglican church properties were, you see, held "in an implied trust" for the "National Church" following the Revolution. Isn't it annoying when your theory simply will not fit in with the actual historical facts?

The same "implied trust" doctrine was of no avail to PECUSA when the Rev. Dr. Charles Cheney, of Christ Church in Chicago, left with his congregation in 1871 to affiliate with the Reformed Episcopal Church, which had ordained him as a bishop. The Diocese of Illinois first deposed him, and then brought suit in the name of three former parishioners to regain possession of the church property. In its 1879 decision, Calkins v. Cheney, the Illinois Supreme Court held that the property belonged to the parish, which held the deed. The courts of Illinois could determine questions of title only by looking to matters of public record, said the Court, and not to any implied trust arising out of a religious polity.

The entire implied trust doctrine was declared unconstitutional by the Supreme Court of the United States in 1969, as I have explained in this previous post. Judge Karpf shows his failure to understand this point of law when he writes:
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 [1969] 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.
Let us examine more closely what Judge Karpf appears to be saying with this argument. He first acknowledges that the implied trust doctrine was ruled unconstitutional by both the Georgia and the United States Supreme Courts. Then, however, he explains that his reading of the cases teaches him that only implied trusts which were based on determinations of which faction in a church remained truer to the original tenets of the faith were declared unconstitutional. The clear implication is that other rationales for imposing an implied trust remained intact -- but is this reading of the cases correct?

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.
This is bootstrap reasoning, and not legitimate legal argument at all. "By taking steps to affiliate with the larger church body", just how did Christ Church "make itself subject" to two laws dealing with deeds to churches? Judge Karpf claims that the parish's joining the Diocese made the "second sentence" of the statute applicable to it, even though the first sentence did not apply to its land. How can that be? And what does this second sentence of the statute in question say, in order to accomplish this magical feat? Take a look:
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.


  1. I hesitate to say so, but all this has the look and feel and smell of the work of the Enemy. But we've read to the back of the book, and we know who wins in the end.

  2. You ask: Where is the language -- the specific words -- which make diocesan constitutions and canons "subordinate" to the national constitution and canons? AND And what is the source for this blanket assertion that "diocesan canons are subordinate to the canons of the National Church"?

    Well, in this particular case, the Diocese of Georgia's Constitution, Art. I: "The Church in the Diocese of Georgia, as a constituent part of the Protestant Episcopal Church in the United States of America, also known as the Episcopal Church, accedes to, recognizes, and adopts the Constitution and Canons of the Church, and acknowledges the authority thereof."

    You write: in the first place, as an unincorporated association at common law, PECUSA was incapable of holding any interest in real property, whether in trust or in fee

    Incorrect. Trustees hold real property that is held in trust. An unincorporated association can be the beneficiary of a trust, which is what TEC claims.

    As for your Massachusetts example, how does that really show what you say? If there was no bishop or diocese in Massachusetts at the time, then that case hardly "proves" that property was not to be held in trust for the larger church where dioceses did exist.

    On the implied trusts front, it is not Judge Karpf that fails to understand. Trusts can and are implied routinely and not just in the church property context. The old "implied trust" and "departure from doctrine" system of church property law is not at all the same thing. It is only the latter that was ruled unconstitutional. (The so-called "English approach" presumed that gifts to a congregation in a hierarchical church were given to the local body impliedly for the benefit of the general church, but only so long as the general church held to the standard of faith in the organization. It focused inherently on the tenets of faith and practice as existed when the congregation affiliated with the general church.)

    And, as you well known, Judge Karpf's decision fits perfectly well with post-1969 neutral principles cases (however much you might dislike them or think them non-neutral), so it's hardly accurate to say he's turning back the clock 40 years.

    You write: Judge Karpf's decision is too full of mistakes to stand on appeal. We shall see, and OCICBW, but I think you are wildly optimistic.

  3. DavidH, you make a number of the same errors as did Judge Karpf. I guess you are in honorable company.

    1. The opinion states flatly that "diocesan canons are subordinate to the canons of the national Church." (Op. at p. 18.) As I stated in the post, the Court has no real authority for that blanket assertion. Even the language you quote does not amount to an agreement by the Diocese to subordinate its Canons to the national ones, but only to "recognize . . . and acknowledge" their authority -- i.e., in their own sphere. Otherwise the Diocese could not have enacted Canon II.8, if it had agreed to remain truly subordinate. Finally, the Diocese did not make the same accession and acknowledgment that Christ Church did -- which is the one at issue.

    2. You assert that "trustees hold real property that is held in trust." You are way oversimplifying. Trustees hold the bare legal title, and beneficiaries hold the equitable title to property in trust. That is what gives the beneficiaries the right to come into court to enforce the provisions of the trust. In the case of the Dennis Canon, the Church apparently argues that it is entitled to take over the property as a result of the trust when the parish votes to leave. But ECUSA has never been able to take title to any real property -- because it is a common-law association not organized under the laws of any particular State. So even in the case of the Dennis Canon, ECUSA's interest as a "beneficiary" is meaningless and unenforceable.

    3. In the Massachusetts example, note that Bishop White claimed the property in the name of the "Church" -- regardless of whether or not there was at that time a bishop in Massachusetts who could go into court. Churches in the colonies never had bishops before the War, so the lack of one after it was not seen by him as a hindrance, as you assume. There was a diocese in Massachusetts, as there were some other successor parishes; it just did not have a bishop.

    4. You are, I am sorry to say, not reading Judge Karpf correctly with your implied trust argument. He bases it on the two statutes which were in fact inapplicable to the Church, and on the national and diocesan constitutions and canons: he does not base it on any other precedent or conduct (such as building the church with national church funds) that would give rise to an ordinary implied trust under the law. To base it on the church governing documents takes him right back into the thicket of interpreting church polity, governance and doctrine which the current Court has expressly forbidden. Even then, he nowhere spells out the process by which he has divined this implied trust, other than to state that it has been Church policy ever since the Church formed in 1789. That claim is historically false. PECUSA never would have formed if the initial delegates had any idea that the national body they were creating would spring into existence with a beneficial claim on all their individual parish properties.

  4. As to your final remark, DavidH, I welcome argument, because I can respond to that. But a bald assertion such as the outlandish claim that Judge Karpf's decision "fits perfectly well with post-1969 neutral principles cases" is simply beyond the pale, and makes no sense to an attorney in the field. Judge Karpf is about as far as one can get from the other Georgia cases since Hull Church which apply neutral principles. His harkening back to language of a trust relationship "implied" from the Church governing documents is utterly non-neutral, because it favors one class of churches, just as does the deference approach. The New York, Connecticut and Philadelphia cases on which he relies simply claimed that the Dennis Canon reflected pre-existing Church policy, without engaging in any examination to support their assertions. The Dennis Canon reflected no pre-existing "policy" at all; it was a last-minute effort, as Walter Dennis himself admitted, to take advantage of some obiter dicta unwisely put out a month earlier by Justice Blackmun in the Jones v. Wolf decision. Had Blackmun not foolishly offered free legal advice to churches, the Dennis Canon would never have been enacted at GC 1979, and probably would have had to await the advent of DBB.

  5. I can only hope that this case is appealed to the Georgia Supreme Court and that those justices bother to read the SC Supreme Court decision. While they are informing themselves,I suggest they read this blog for excellent analysis as well.

  6. Mr. Haley, as always, I appreciate the dialogue.

    Regarding the EC/diocese relationship and canon subordination, I can understand your reading of the Article 1, but there is no defined sphere for the national canons (which may well be part of the problem in TEC's polity). So what you have is agreement to what's already been adopted (including the Dennis Canon), plus an acknowledgement of an unlimited authority. Sounds pretty subordinate to me.

    Regarding point 2 and TEC's ability to hold title, if I'm oversimplifying, you're ascribing way too much significance to the "title" in equitable title. Unincorporated associations can be the beneficiary of a trust, and that is what TEC claims. When a congregation leaves, TEC claims the right to have the property used for its benefit and purposes and not those of the breakaway congregation. It doesn't have to "take title".

    I appreciate the further detail on Massachusetts. I suspect there were then, as there are now, different conceptions of the power and polity of the church.

    Regarding implied trusts, I disagree with your characterization of the opinion. It is true that the opinion does not descend into "who paid for what" -- I don't think I'm aware of any modern church property decision on that basis. And I agree that the opinion relies on the state statutes and the canons. But it does look to conduct and apply a normal implied trust analysis -- specifically, it looks to occasions on which the congregation accepted / ratified / agreed to be bound by the national and diocese constitutions and canons. According to the opinion, there was one in the joining or formation of the Diocese of Georgia, another in the 1918 charter, and another in the re-recording of the charter in 1981. The opinion also looks generally to Christ Church's behavior over the years to determine whether Christ Church acted like it recognized that TEC and the diocese had authority over / an interest in the property, citing specific examples of conduct that did so recognize. See, e.g., pp. 11-13, 15-16, 16-17.

    And finally, on the consistency of the opinion with post-1969 law, I agree there is one of us being outlandish but disagree as the identity of that person. Any attorney in the field who doesn't recognize the essential congruity between Judge Karpf's opinion and the analysis employed in numerous other cases hasn't really been paying any attention to the field. It is not hard to go well into double-digits in terms of the number of post-1969, neutral principles cases that employ the same sort of analysis of all of the same areas (deeds, statutes, local and national governing documents, behavior over the years, etc.). Jones v. Wolf did basically that. TEC routinely cites multiple state appellate cases that have done so. You yourself have posted previously on such decisions (for example, from the California Supreme Court and from Judge Schwartz in Colorado). I can name at least two or three from Virginia. Go ahead and criticize this opinion in particular, and find fault with the general application of neutral principles by many courts, but it is impossible to take seriously a contention that Judge Karpf's opinion is not consistent with post-1969 church property law.

  7. There you go again, DavidH -- reading into the actual language something that is not there. You claim:

    "So what you have is agreement to what's already been adopted (including the Dennis Canon), plus an acknowledgement of an unlimited authority."

    The Dennis Canon had not "already been adopted" when the Diocese of Georgia made its accession to ECUSA's Constitution and Canons; that accession came 156 years before the adoption of the Canon. So there was no "agreement to what's already been adopted [meaning the Dennis Canon]" when the Diocese joined the Church.

    Nor was there any "acknowledgment of an unlimited authority" in General Convention by the simple act of acceding to the Constitution and Canons. The words "unlimited authority" do not appear anywhere in the Constitution and Canons. You are reading them into the text, just as is your wont when you want to claim something that is wholly unsupported by the text or the facts. Look again at Principle VI spelled out by Bishop White and the founders, quoted in the main post. No matter how you stretch the facts, you cannot legitimately claim that the intent was to give the assembled Dioceses in General Convention "unlimited authority" -- all of its authority was delegated from the dioceses which agreed to have a General Convention. There was no subordination in that act of delegation, but the opposite -- a reservation of autonomy. The delegator is not subordinate to the delegatee; instead it is the other way around.

    You miss my point entirely about equitable title. While ECUSA claims equitable title as a "beneficiary" under the Dennis Canon, the actual owner of the property, the parish, can commit waste, let the property burn down and not rebuild it, etc. As holder of the beneficial title, ECUSA can do nothing, so long as the parish remains part of ECUSA. Its role as a beneficiary springs into play only when the parish votes to leave -- and then ECUSA brings suit asking to be declared the owner of the property, along with the Diocese. But since ECUSA is incapable of taking title to any property, it has to let the Diocese actually step in and take control of the property (witness the recent handover of St. Luke's in the Mountains). The result? The property is now owned outright by the Diocese (there is no new trustee appointed), is no longer subject to the Dennis Canon, and so is no longer held "in trust" for ECUSA. That is why I say ECUSA's inability to take title to real property renders its equitable title under the Dennis Canon meaningless and of no use.

    On implied trusts, I insist that you are being inconsistent. You admit that "I don't think I'm aware of any modern church property decision [involving an implied trust] on that basis", but you persist in categorizing a decision such as Judge Karpf's as a "neutral principles" case. Can't you see -- just try to look at it for a minute from a different point of view -- that when you give lip service to "neutral principles", but then fashion special rules for hierarchical churches which you purport to derive solely from their polity, you are no longer being neutral? It is only the churches you decide are "hierarchical" which are allowed the luxury of "implied trusts" and of bypassing any need to comply with the Statute of Frauds because of what they put in their governing documents. To call that approach the "modern neutral principles" school is to eviscerate the term "neutral principles."

  8. Mr. Haley, our disagreements continue, and now you're twisting the words and issues to escape the original problems with your argument.

    First, the Diocese of Georgia still has its constitutional accession provision 30 years after the Dennis Canon, having amended its own governing documents numerous times since then. Nor is the accession provision dated or limited. It's you who are reading things into the text (a limit on the provision to TEC's constitution and canons as they were 156 years ago) that are not there. There is agreement to what's been adopted through 2009.

    Of course the words "unlimited authority" do not appear in the TEC Constitution and Canons. Neither do any limits, as I've seen numerous people bemoan on reasserter websites. Even if Bishop White and others believed in subsidiarity, they did not create a limited government (like that in the US COnstitution) to achieve it. Without limits on governmental power, government is unlimited.

    TEC's capability to take title remains irrelevant. Dioceses take control of the property because that's one of the functions that dioceses perform in TEC's polity. Typically new trustees are appointed (if the property is held by trustees), and the property remains in trust as before. Your argument to the contrary is bizarre.

    On implied trusts, what I actually said was not what you say I said, and what you now are arguing is not what you were originally arguing. What I said is that I'm not aware of any modern church property decision based on "who paid for what." I would also agree, however, that I'm not aware of any modern decision based on the English approach. Judge Karpf certainly did not do so.

    You originally claimed that Judge Karpf looked to pre-1969 law and did not do a normal implied trust analysis. You've apparently abandoned those points (appropriate, given that they were plainly incorrect). Now you argue that the "neutral principles" approach he applied is not actually neutral, but actually deferential. Fine -- make that criticism. I understand it. But be clear about what your criticism is, rather than mischaracterizing a perfectly mainstream judicial opinion.

  9. One correction to an earlier post. When I said "Jones v. Wolf did basically that," what I should have said is that "Jones v. Wolf essentially endorsed that approach." The Supreme Court did not do an analysis on its own; it reviewed the constitutionality of the Georgia courts' analysis.

  10. Does anyone out there feel that in the end, the U.S. Supreme Court will have to hear one of these property cases in order to stop TEC from stealing property? Anyone with even a half a brain knows that 815 does not in anyway shape or form own property of a Diocese or Parish. Okay, perhaps they own some, empty property, which if they keep winning, that's all they will have in the end. TEC may win all these court cases, but the Lord has a plan for the truly faithful Orthodox Episcopalian and the rewards for being steadfast and faithful will be great. It may take years, but it will happen. Thanks be to God.

  11. DavidH, if I seem to change stances, it is only that you keep presenting a moving target, instead of sticking with one point. This does not make for a coherent discussion, and I will stop trying to answer your new points seriatim. I shall just respond, as best I can, to a few of your newest new points:

    We went all the way from examining the lack of any textual basis for Judge Karpf's assertion that "diocesan canons are subordinate to the national canons" to your insistence that that was the case in Georgia, at least; when I pointed out that Georgia nowhere expressly acceded to the Dennis Canon, and indeed had even adopted a Canon that qualifies its application to previously incorporated parishes, you jumped ship. You now claim the untenable ground occupied by ECUSA: that "accede" means "irrevocably submit", so that Georgia must be deemed continually to have subordinated itself to ECUSA ever since 1823, and that, as you put it, "Without limits on governmental power, government is unlimited" -- i.e., there are no limits to the powers of General Convention.

    At least we have now come back to my original starting point: there is nothing in the text of the ECUSA Constitution or Canons which makes them superior to, or even binding on, the member dioceses. There are no limitations expressed on the powers of General Convention because there is no general conferring of power on that body in the first place: it is granted the power to admit new dioceses, to form area missions and missionary dioceses, and to amend the Prayer Book and Constitution -- and that's pretty much it. There is not even a general clause specifying the power it has to pass canons, but only specific mention of subjects which may be addressed by its canons.

    Thus the argument that GC is "unlimited" in its powers is meaningless -- because although it could conceivably pass any Canon it wanted, or amend the BCP to incorporate passages from the Quran, its act of doing so would be futile, and would have no effect until the several dioceses acceded to it by adopting that version of the BCP in their liturgies. (Good luck!) Without a Supremacy Clause, or language of hierarchy, the lack of expressed limits on GC's express powers is, for legal purposes, harmless, because GC has been given no power to make its acts binding; its power depends entirely on an ongoing consent to what it does ("accession").

    There is nothing "bizarre" about my point that ECUSA cannot take title to real property; it is still the common law. Repeating the mantra that "unincorporated [charitable] associations may be the beneficiaries of a trust" is again meaningless when one is speaking of the DC, because the DC establishes no real trust, but only a form of defeasible fee, as I showed in this post. The fee reverts (or the "trust terminates", if you will) to the beneficiaries, and since ECUSA cannot take title, the only entity to whom the reverter can apply is the local diocese. If it is not in a State where churches or unincorporated associations are not permitted to hold property in their own name, the diocese takes the fee, as in the case of St. Luke's, to which I referred. (You may be thinking of a state like your own, where as this article explains, the ownership of religious property is indeed complicated.)

  12. One final comment to your blanket assertion that all post-1969 "neutral principles" decisions follow a common path which includes the consideration of implied trusts. In my view, there are too many variations in approach for such a generalization. Suffice it to say that Judge Karpf's approach in the Christ Church case, which sees an implied trust in ECUSA's relationships running all the way back to the Church's founding, based solely on its religious structure and canons commanding certain religious deference to ecclesiastical authority -- and not on any objective words in any text -- runs explicitly contrary to this command in Jones v. Wolf, 443 U.S. at 604: "In undertaking such an examination, a civil court must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts in determining whether the document indicates that the parties have intended to create a trust." (Emphasis added.)

  13. Curmudgeon:

    Is there not an incorporated 'arm' of the national church that holds property, e.g. the 815 building? Do they hold this property in trust for TEC, or are they separate? Is it possible that this national entity could hold, say, property that had been wrested from a breakaway diocese?

    Br_er Rabbit

  14. There is a New York religious corporation called the Domestic and Foreign Missionary Society, Br_er Rabbit, but as I discussed in this post, it is not the same entity as ECUSA. The Dennis Canon gives "this Church", i.e., ECUSA, the reversionary interest, and does not refer to the DFMS.

  15. I can't help but chuckle a little at the comedy of having TEC's attorneys convincing judges that this voluntary association of dioceses is really the same as the Roman Catholic Church and that "Pope Schori" is somehow infallible in her assertion that only she can decide who really owns the property. I am happy that CC has appealed this obviously flawed ruling. The SC of SC has it right and Georgia should listen to them. The courts should stay out of religion and just read the deeds like everyone else.

  16. Dick - yeah, I think it's funny also. Isn't it strange that 99% of the time, those of the minds of 815 would always claim that there is a "separation of church and state" but that 1% of the time they want the state to come in and rule in their favor. They want it both ways as long as it's in their favor. It is funny, sometimes, but is getting rather frustrating now.

  17. Well written ... I particularly enjoy your style---good job.

    George Conger

  18. Thank you, Fr. Conger. I have to acknowledge that it was the research of Father Conger that first made me aware of the significance of the King's Chapel and Bishop Cheney cases for the viability of the claim that "there has always been an implied trust relationship between the parishes and their dioceses, which the Dennis Canon merely codifies."

  19. Mr. Haley, as a preface, we have been arguing as lawyers do, which may be effective but isn't necessarily a good thing. For example, we have been accusing each other of shifting stances in the hopes that such allegations will make our side more persuasive. I will try to avoid such tactical maneuvering; just offer final thoughts.

    You wrote, "when I pointed out that Georgia nowhere expressly acceded to the Dennis Canon, and indeed had even adopted a Canon that qualifies its application to previously incorporated parishes". Part 1 is incorrect. Even under your reading of the Diocese of Georgia's constitution (in which Article I does not mean submitting), Article I cannot reasonably be read as anything other than an express accession to the Dennis Canon. Arguing that Article I is limited in its effect to the canons of the 19th century is not credible. And whether Georgia can "qualify" the Dennis Canon depends on one's view of TEC polity, an issue that has been discussed ad nauseum on many blogs.

    You wrote, "You now claim ... that, as you put it, "Without limits on governmental power, government is unlimited" -- i.e., there are no limits to the powers of General Convention." Well, yes, I do. The notion that General Convention lacks the power to do anything other than the three functions you mention cannot be taken seriously, and even if you are correct as an intellectual exercise, that ship sailed several decades ago (at least). There are good reasons that our founders quickly adopted the Bill of Rights to insure limited civil government. Had TEC ever done so, many problems today would be very different.

    Your attempt to characterize the Dennis Canon as a defeasible fee made little sense as anything other than a functional description originally and hasn't improved over time, so your appeal to that hardly helps refute the principle that unincorporated associations can be the beneficiaries of trusts. (And, if I've repeated myself on the wording there, that's less because it's a magic chant than because it's an obvious point to which you've been unable to respond.) I can agree, of course, that that there is variation in the forms of church property ownership that are customary in different states, making it difficult to generalize too much.

    As to your separate comment about my "blanket assertion," the point I made originally and stick to is that Judge Karpf's approach is well within the mainstream of post-1969 neutral principles decisions, contrary to the claim in your post.

  20. Sorry, DavidH -- I cannot let you get away with yet another of your blanket assertions:

    "Article I cannot reasonably be read as anything other than an express accession to the Dennis Canon. Arguing that Article I is limited in its effect to the canons of the 19th century is not credible."

    You are saying that an accession to the Church's Constitution and Canons made in 1823 constitutes an agreement to whatever the Church decided to enact in 1979. That contradicts the ordinary and common-sense understanding of what it means to "accede" to a document. If a party wants to signal that it agrees to be forever bound by whatever measures another party decides to adopt, no matter how far in the future, then there have to be, for any such agreement to be given legal effect, words saying as much in the original agreement.

    Take a common contemporary example: when you sign up for a credit card, the Bank typically reserves the right to amend the Cardholder agreement. When it does so, it always sends out a notification to the Cardholder that the terms of the Agreement are being unilaterally changed, and giving the Cardholder the option, if he/she does not wish to accept the changes, to (a) send back the card for cancellation, or (b) make no new charges to the account. If the Cardholder does either (i.e., remains passively silent with regard to the changes), the Bank recognizes and concedes that the Cardholder's account must be treated in accordance with the contract before its unilateral changes were sent out.

    You will get nowhere on this site by asserting that an accession made in 1823 is a blank check to enact whatever seems convenient in 1979 -- especially when there was no prior or subsequent notice that such a canon would be, or had been, enacted. (As I documented in an earlier post, there was no mention of a "Dennis Canon" having been enacted in the official news organs of the Church until more than 20 years had elapsed from its supposed enactment.) I am afraid that you are the one who is not credible in advancing such an argument, because it defies all common sense.

    You also do not bother to read my answers to your points, and simply react in automatic mode. Thus you say, in your latest post: "And whether Georgia can 'qualify' the Dennis Canon depends on one's view of TEC polity, an issue that has been discussed ad [nauseam] on many blogs." I take it, by putting quotes around the word "qualify", you are implying that the text of the Dennis Canon -- which establishes no valid "trust" at all, since it specifies no trustee, or terms of any trust, except what happens if the parish in question is no longer part of ECUSA -- expressly forbids the waiver by a Diocese of its application to any given parish. This is yet one more example of your automatic reading into a text something that is just not there. ECUSA, as a common-law voluntary association, cannot legally have a reversionary interest in the parish property. [To be continued in next comment]

  21. [Continued] You doggedly continue, DavidH, to assert that an unincorporated association can be the beneficiary of a trust. Not only is this an incorrect statement of the common law, as any reference to Blackstone would demonstrate, but it ignores my main point: ECUSA does not come into court claiming to be the beneficiary of a "trust", but instead claims to be the co-owner in fee (along with the local Diocese) of the given parish property as a result of the latter's departure. Thus whether ECUSA could be deemed the beneficiary of a charitable implied trust under the particular law of some given State -- it cannot be so deemed, as Blackstone makes clear, under the common law, pursuant to which ECUSA organized itself -- is wholly irrelevant to the main point. Once again, I do not mean to appear argumentative, but when you insist you are correct in maintaining a proposition that may technically be correct under the law of some States, but which is entirely irrelevant to ECUSA's case, I do ignore, and do not respond to, your assertion, because it adds nothing at all to our discussion, and diverts others from the issues at hand.

    We shall just have to part ways on our respective views of where Judge Karpf's decision falls on the spectrum of case law post Watson v. Jones. You do not back up your claim with anything like the detailed analysis I have given in the main post; nor have you taken issue with my earlier posts on the evolution of church property law in the Supreme Court. You simply make the claim that he fits in to the mainstream of current case law. Well, we shall have to see, when the Georgia Supreme Court weighs in on Christ Church's appeal.

    One final remark: I do not want, by my responses, to alienate you from commenting here, DavidH; I welcome your opposition, because I think these points need to be fleshed out for a wider audience. At the same time, however, I cannot let you think that a response which simply stands upon general assertions, unsupported by any logical reasoning or reference to legal precedent, will cut the mustard on this blog. I spend a lot of time researching and backing up what I say here. Drive-by comments (which I am not accusing you of making; I do appreciate that you engage my posts, even if it takes us a while to whittle things down to their essentials) serve no use, and do not advance the dialogue. By all means, if you claim that a legal proposition is valid (such as that a common-law association of persons can be the cestui que use of property deeded for religious purposes, then give us a cite to someone before Blackstone, who says (in Book I, ch. 18) that "if land be granted for the purposes of religion . . . to twenty individuals not incorporated, there is no legal way of continuing the property to any other persons for the same purposes, but by endless conveyances from one to the other, as often as the hands are changed." There is, in short, no way for an unincorporated assembly of individuals to act with one mind and through one person in the eyes of the common law, because the common law refuses to see a single entity capable of acting for (or in the name of) a voluntary assembly of individuals -- let alone of "dioceses."

  22. DavidH left a response to the last two comments which begins: "I intended my previous comment to be my last on this thread . . ." Well, that will have to stand as your last comment on this thread, DavidH, because your new one falls so far short of the standard of civil discourse required here that it will not be posted. Descending into supercilious and arrant calumny constitutes the easiest way to have your proffered remarks rejected, as well as to demonstrate either that there must be no good response on the merits, or that your respect for your opponent is so low that you cannot be troubled to make one. Either way, you will not be allowed to post here.