Wednesday, December 2, 2009

Anatomy of a Church Property Lawsuit (Tennessee) - Part I

The Convention of the Protestant Episcopal Church in the Diocese of Tennessee, a religious corporation organized under Tennessee law, and its diocesan bishop, the Rt. Rev. John C. Bauerschmidt, filed on October 30, 2009 an action in the Chancery Court of Davidson County to recover the possession of St. Andrew's, a parish in Nashville, from its vestry and rector. A copy of the complaint may be viewed or downloaded (in Adobe Acrobat format) from this link. In this series of posts, I would like to use the complaint as a prototype of the typical Dennis Canon lawsuit which is filed when a parish votes to realign with a different entity than the Episcopal Diocese of which it formerly had been a member. In this case, the parish of St. Andrew's voted to realign with the Diocese of Quincy, which since the parish's vote has itself voted to realign with the Anglican Province of the Southern Cone.

The complaint begins in conventional fashion, by naming and identifying the parties to the lawsuit, and by justifying why the case is brought in Davidson County (where the parish's property is located). The parties plaintiff are, as mentioned, the corporation which is the Diocese of Tennessee, and its current bishop, Bishop Bauerschmidt. The defendants are the Rev. James M. Guill, rector of St. Andrew's, along with the parish's Senior Warden and Vestry members, and the parish corporation itself, which goes by the name of "The Rector, Wardens, and Vestrymen of St. Andrew's Parish."

The first unusual aspect of the lawsuit to notice is that the Rector, Senior Warden and Vestry members are named as defendants individually -- even though the only relief sought by the complaint is a declaration that the parish property now belongs to the Diocese, and that the bishop is entitled to take possession of it. Normally, if I were to file a lawsuit against a corporation (say, Ford Motor Company), I would name only the corporation, and not its President and the members of its Board of Directors, individually. The reason is that a corporation is regarded in the law as its own separate person, with the capacity to sue and to be sued in its own name. One would join the individual directors and officers in the lawsuit against the corporation only if those individuals committed their own civil wrongs, apart from the corporation, and thus were jointly liable with it.

(Caveat: I am not a member of the Tennessee bar, and do not claim to have any expertise in the law of that State. I shall count on colleagues who are to correct me if I misstate anything particular about Tennessee law.)

It is possible that the Rector and the Vestry members were named individually because they are the ones against whom any injunctive relief granted by the court would have to operate. Although the complaint does not set out a claim for injunctive relief, the prayer of the complaint (the part which tells the court what remedies the plaintiffs are specifically seeking) does request "such injunctive relief as may be necessary to effectuate the Court's declaration [of who is the rightful owner of the parish property] . . . ." Again, I defer to my Tennessee colleagues as to whether this is a well-pled claim for injunctive relief under Tennessee law.

With those caveats in mind, let us proceed to dissect the complaint. It gets into trouble, in my view, right away when it tries to explain why it names the rector and individual vestry members (whom it calls "the Disaffiliating Individuals") as parties defendant (par. 3):
. . . Upon information and belief, each of the Disaffiliating Individuals while serving as a member of the Vestry of St. Andrew's disaffiliated themselves and the other members of St. Andrew's from the Diocese of Tennessee and The Episcopal Church, as set forth below.
I have added the bold emphasis to stress the fact that I am unable, in my wildest imagination, to conceive how it would be possible for the "Disaffiliating Individuals" to disaffiliate both themselves and the other members of St. Andrew's from the Diocese of Tennessee and from the Episcopal Church (USA), as baldly alleged. If the complaint is intending to allege that the decision to realign was taken just by the nine named members of St. Andrew's parish, it is simply wrong -- as it itself demonstrates (see below). There is no factual means by which the named defendants were responsible for anyone's decision but their own.

The complaint goes on to allege:
7. This is a civil (not doctrinal) dispute over title to and possession of certain real and personal property, and therefore, is properly before this court for adjudication using "neutral principals of law" [sic] as announced by the U.S. Supreme Court and followed by the courts of this state. In particular, the dispute between the parties requires application and interpretation of Tennessee law for resolving church property disputes and the Constitutions and Canons of the Diocese and The Episcopal Church.
All right, so it is claimed that this is not a doctrinal dispute about religion, but only a dispute over property which can be resolved by the court's application of neutral principles of law. (I shudder for my legal colleagues who cannot bother to distinguish between "principles" and "principals." As my mother -- who taught elementary school for over thirty-five years -- drilled into me, one can distinguish between the spellings by remembering [at least back then it may have been true] that "the principal is your 'pal'.")

However, note that the application of "neutral principles" is said to require the "interpretation" of not only Tennessee law, but also of "the Constitution and Canons of the Diocese and The Episcopal Church." Hmmm. I thought secular courts were not supposed to get into the "interpretation" of church canons. Plus, we have this provision in Canon IV.14.2:
Sec. 2. Resort to secular courts. No Member of the Clergy of this Church may resort to the secular courts for the purpose of interpreting the Constitution and Canons, or for the purpose of resolving any dispute arising thereunder . . .
So how, exactly, does Bishop Bauerschmidt get away with asking the Tennessee Chancery Court to "interpret" the Constitution and Canons of the Episcopal Church (USA)? It must be one of those double standards of which those who follow "fuzzy logic" are so fond: if they depose you in plain contravention of Canon IV.9, you are forbidden from going to court to complain that the Church did not properly apply or interpret its own Canon, but if they want to take you to court, then by all means -- be our guest, Judge, and interpret the Canons to your heart's content!

The heart of the Diocese's lawsuit is contained in the next two paragraphs:
8. This dispute is occasioned by the decision of the Disaffiliating Individuals to separate from the Diocese and The Episcopal Church and thereby to control and use the Woodmont Property in a manner inconsistent with and contrary to the Constitutions and Canons of the Diocese and The Episcopal Church. The Woodmont Property is impressed with a trust in favor of the Diocese and The Episcopal Church, subject to St. Andrew's use.

9. Because the Disaffiliating Individuals have openly and publicly separated themselves from the Diocese and The Episcopal Church, they no longer have the right to use, occupy, or transfer the Woodmont Property or control the parish corporation. Pursuant to the Constitutions and Canons of the Diocese and The Episcopal Church, the bishop has a fiduciary duty, on behalf of the Diocese, to take possession of the title to the property and facilitate its use for proper purposes. This action is in furtherance of this duty.
There are a number of concepts which the plaintiffs have improperly conjoined here. In the first place, it is the parish corporation which owns and occupies the property in question, through its members -- who are much more numerous than just the "Disaffiliating Individuals" (the rector and the Parish board [vestry]). The actions of the Disaffiliating Individuals are not the operative actions in this case, as we shall see when we get into the details.

In the second place, the bishop's "fiduciary duty" under the diocesan canons applies only if, at the time the bishop proposes to act, the parish in question is still subject to those diocesan canons. That was, long since, not the case with St. Andrew's, as we again shall see in a subsequent post. And the meaning of the Dennis Canon, as we shall also see, is by no means clear. Specifically, the Canon says absolutely nothing about taking possession of a parish's property if it is no longer aligned with the Episcopal Church (USA).

The complaint now begins with the boilerplate allegations that have become standard fare in suits filed by the Church and its dioceses in actions to recover parish property:
10. The Episcopal Church is a hierarchical, religious denomination with three distinct tiers: (a) The Episcopal Church; (b) its dioceses; and (c) worshiping congregations, generally composed of parishes and missions.
As I have made clear in several prior posts, there is no "tier", or even entity, which one can point to as "the Episcopal Church (USA)". Instead, what there is in law is a voluntary association of separate Dioceses, which have come together to act in common purpose as "the Episcopal Church (USA)". As an association, the "Church" is unincorporated -- that is, it is not a separate person in the eyes of the law. So it has no individual identity; the law regards it simply as the collection of dioceses which are its members. The analogy is to a neighborhood book club that meets regularly to discuss books of common interest. Since there is no corporation (most book clubs I know do not bother), there are only the individuals who belong to it, and who gather from time to time. The book club owns no property of its own, and can take no legal action of any kind except by and through its individual members.

Alleging that the "Church" occupies a "tier" at the top is thus engaging in mental tomfoolery. There is nothing there: no legal person at the top whom the law can recognize. When it comes to the Episcopal Church (USA), just like your neighborhood book club, or road association, all there is are the people (dioceses acting through their bishops and deputies) who meet together and decide or do things as a group (in matters of importance in General Convention, the vote is taken separately by orders, and the measures must pass by an affirmative vote in both orders, as well as in the House of Bishops). Without the group itself, the Church itself would be incapable of doing or deciding a blessed thing.

[UPDATE: The economist Milton Friedman made exactly the same point about the government of these United States. In words that are also directly applicable to the Episcopal Church (USA), he wrote (Capital and Freedom, 1962) -- I have added the emphasis:
In a much quoted passage in his inaugural address, President Kennedy said, “Ask not what your country can do for you—ask what you can do for your country....” Neither half of the statement expresses a relation between the citizen and his government that is worthy of the ideals of free men in a free society. The paternalistic “what your country can do for you” implies that the government is the patron, the citizen the ward, a view that is at odds with the free man’s belief in his own responsibility for his own destiny. The organismic, “what you can do for your country” implies that the government is the master or the deity, the citizen, the servant or the votary. To the free man, the country is the collection of individuals who compose it, not something over and above them... [H]e regards government as a means, an instrumentality, neither a grantor of favors and gifts, nor a master or god to be blindly worshipped and served.

The free man will ask neither what his country can do for him nor what he can do for his country. He will ask rather “What can I and my compatriots do through government” to . . . advance our several goals and purposes, and above all, to protect our freedom? And he will accompany this question with another: How can we keep the government we create from becoming a Frankenstein that will destroy the very freedom we establish it to protect?
H/T: Ilya Somin, The Volokh Conspiracy]

The complaint continues with its fantasy allegations:
11. The cohesiveness and integrity of The Episcopal Church, as a unified communion of believers, is insured by requirements that the dioceses submit to the authority of the Constitution and Canons of The Episcopal Church, and that missions and parishes likewise submit to the authority of the diocese and The Episcopal Church. Parishes and missions must act in conformity with and subject to the authority of the General Convention, the Constitution and Canons and Book of Common Prayer of The Episcopal Church, their diocesan bishop and their respective diocesan conventions and Constitution and Canons.
The "cohesiveness and integrity of The Episcopal Church"? Give me a break. Can you currently provide any witness of such "cohesiveness and integrity"? Bishops and individual clergy, right and left, decide whether to offer communion to the unbaptized, despite the command of Canon I.17.7 that forbids such persons to receive communion. Bishops, including the current Presiding Bishop, regularly announce their disagreement with, and disparagement of, the "faith once delivered to the saints" -- and no one, certainly not the hypothetical "Church" at the top -- ever calls them to account. The Church's disciplinary canons are routinely misapplied and disregarded. Bishops are "deposed" without a canonically sufficient number of votes; clergy who transfer to other provinces in the Anglican Communion -- even the Church of England -- are routinely informed that they have thereby "renounced their orders".

The Episcopal Church (USA) currently presents to the world, and especially to the Anglican Communion, about as chaotic and discordant an ecclesial structure as one could possibly imagine in one's worst dreams. Its declining membership and revenues, and its obsession with affirming the exact opposite of what Scripture teaches, reflect its own "disaffiliation" from the one holy, catholic and apostolic Church of God. Those who, like the parish of St. Andrew's, disaffiliate from it are only doing what is required to remain affiliated with the traditions once embodied in the entire Anglican Communion -- and still practiced by an overwhelming majority of its constituents. That is why I refuse to term such an act as "disaffiliation" -- it is instead a realignment required by the fact that the Episcopal Church (USA) has veered so far off course.

Needless to say, there is no language in the Episcopal Church (USA)'s Constitution or Canons which requires that a diocese, or parish, "submit to [their] authority." (Need I point to the practice of communion for the unbaptized again?) Instead, clergy are generally required to submit to the authority of their bishop -- but only so long as that authority is being exercised in conformity with the Constitution and Canons in the first place. And there is no provision of the Constitution or Canons which requires any standard of performance -- let alone submission -- by lay members of the Church. (General Convention, it should not be necessary to point out, has nowhere been granted authority over individual parishes, vestries, or congregations. The much-cited Canon I.17.8, which requires that anyone accepting "any office in this Church" perform their duties "well and faithfully" applies on its face only to persons whom the national Church has the power to appoint. To read it as applying to vestry members and officers at the parish level would entail a hopeless conflict with individual parish bylaws and state law provisions governing the conduct of officers of religious corporations. If there is no power to fill the office in question, then there can be no power to remove anyone from it, or to tell them how to do their job.)

The complaint continues with the specific allegations of how it contends that the national and diocesan canons imposed a trust on St. Andrew's parish property. As we shall see in the next post, the terms of that "trust" are nowhere spelled out. Moreover, the Diocese should be estopped to claim any kind of trust applicable to the property, since the parish purchased from it a warranty deed to the property in 1966. The deed granted the property outright, with no reservation of any kind of trust, or "right of entry for condition broken." And the parish subsequently amended its articles to remove its accession to the diocesan and national canons before the last-minute and completely unnoticed adoption of the Dennis Canon (illegally, as it turns out -- but who's concerned about legality in the current Church?) in July 1979.

I will go into all the detail about the weaknesses of the case under the Dennis Canon in my next post on this topic.


  1. I disaffiliated myself from TEC and the DIOTN a few years ago, but still follow carefully my old diocese. Though only a moderately conservative one, one in seven of its congregations have either left entirely, or split. For that matter, I have attended a few services at St. Andrew's Parish for services which do not fit in the school cafeteria we normally use. There are no doubt a few local issues, but at the end of the day, is there any reason to expect that this court case will be decided any differently than the others which have casually ignored extensive bodies of law? Please understand that I support St. Andrew's in their efforts, but minor things like the Constitution don't seem to get much respect these days.

  2. I understand your feelings, Tregonsee -- the courts, especially the lower ones, are a considerable disappointment these days. Nevertheless, the points need to be laid out so all concerned can see where a court goes wrong. A court's only source of authority is the reasoning it gives for its decision.

    That being said, Nashville is at the moment a blank slate. That is why I chose it for the anatomy lesson being laid out in these posts. One can always be optimistic that the court will follow the same logical path of reasoning, and reach a correct decision. To expect it to do otherwise is to tell the courts we don't care, and then our sentiments become the stuff of a self-fulfilling prophecy.

  3. You've got a typo in the first line of the post, although wouldn't it be great if one of the fractious Anglican groups were to call itself the Protest Episcopal Church?

  4. Thanks, AAK -- it's corrected. Maybe it got by me originally because it was (in a subliminal sense) somewhat apt.

  5. So the parish voted to realign with the Diocese of Quincy which then voted to realign with the Southern Cone carrying the parish with it?

    So this would not be a case of abandoning communion with TEC if Quincy was in TEC at the time. Is that right?

  6. Correct, Pewster. Bishop Bauerschmidt and his Standing Committee have not claimed that the Rev. Guill "abandoned the Communion of this Church" with his realignment with Quincy. They would have to charge him with some other canonical violation -- but I'm not aware of any provision that could apply, especially since it was the congregation that made the decision, not Rev. Guill.

  7. Getting bleaker and bleaker with SCOTUS ruling against taking up similar cases.
    Seems as though a more logical path would be to challenge the Dennis Cannon itself?