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.

THE ROMAN PONTIFF

Can. 331 The bishop of the Roman Church, in whom continues the office given by the Lord uniquely to Peter, the first of the Apostles, and to be transmitted to his successors, is the head of the college of bishops, the Vicar of Christ, and the pastor of the universal Church on earth. By virtue of his office he possesses supreme, full, immediate, and universal ordinary power in the Church, which he is always able to exercise freely.

Can. 333 §1. By virtue of his office, the Roman Pontiff not only possesses power over the universal Church but also obtains the primacy of ordinary power over all particular churches and groups of them. . . .

§3. No appeal or recourse is permitted against a sentence or decree of the Roman Pontiff.

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.