All Saints Waccamaw: Episcopal Vestry Petitions SCOTUS

As I have been expecting, the vestry of the Episcopal Church parish of All Saints Waccamaw on Pawley's Island, South Carolina has now filed a petition for certiorari with the United States Supreme Court to review the September 18, 2009 decision by the Supreme Court of South Carolina, which I quoted and commented on in this earlier post. The petition attempts to raise this single question for review:

QUESTION PRESENTED

Whether the Free Exercise Clause of the First Amendment requires courts resolving a property dispute within a hierarchical church to give legal effect to a pre-existing trust provision in the church’s canons.

I see a number of problems with this petition, not least of which is the question-begging that the petitioners indulge in with their formulation of the issue presented for review. As it is phrased, the question assumes that the Church's Dennis Canon, which dates only from 1979, was a "pre-existing trust provision" for purposes of the property of All Saints Waccamaw.

This is incorrect. As you can see by reviewing the opinion of the South Carolina Supreme Court linked above (it may also be read in this Appendix to the Petition), the property of All Saints was first placed into a trust in 1745, some 234 years before the enactment of the Dennis Canon by General Convention 1979. However, the Supreme Court of South Carolina found that the trust imposed no legal duties on the "trustees", who had long since passed out of existence without ever being replaced. Consequently, it held that the Statute of Uses as in effect in South Carolina had "executed" (automatically extinguished) the attempted trust, so that the congregation of All Saints Waccamaw held the property in fee simple outright. (As an aside, one wonders how the Dennis Canon would fare under the Statute of Uses. For it, too, imposes no duties on the parish as "trustee" of its own property; it imposes only a condition that, as beneficiary, it remain in ECUSA.)

But the parish's title to its property had come into question as the result of a statute enacted by the South Carolina legislature in 1880. Accordingly, the parish sought and received the assistance of the Diocese in clearing up its title in 1903. As part of the process of re-establishing its good title to the property, All Saints received a new corporate charter in 1902, and the Diocese then quitclaimed to that corporation all of its right, title and interest in the property -- to the extent it might have had any -- by deed executed in 1903.

Thus it is a little disingenuous of the petitioners to portray the 1979 Dennis Canon as a trust interest that was "pre-existing" in 1903, when the Diocese conveyed to the parish all of its interest in the property.

But let us put that cavil to the side. I have issues with the petition which I believe are even more substantial. To understand them, it will be necessary to review a little more of the history of the South Carolina litigation.

There were two cases before the South Carolina Supreme Court. They were consolidated for purposes of argument and decision, but the fact is that they remain two separate cases. Here is the South Carolina Supreme Court's description of the first case:

The first lawsuit (“the 2000 Action”) was a declaratory judgment action filed by All Saints Parish, Waccamaw, Inc. against the Episcopal Church in the United States of America (“ECUSA”) and the South Carolina Diocese (“Diocese”). The 2000 Action was precipitated by the Diocese’s recording of a notice with the Georgetown County clerk of court by which it purported to put the public on notice that the congregation of All Saints Parish held its property in trust for the Diocese and ECUSA.

The second lawsuit began five years later:

After the congregation fractured, the second lawsuit (“the 2005 Action”) was filed by a minority faction of the original congregation against its majority which had voted to sever ties with the ECUSA and the Diocese. The minority faction remained loyal to the denominational authorities and was represented by a vestry led by Guerry Green (“the minority vestry”). The majority group was represented by a vestry led by W. Russell Campbell (“the majority vestry”). In the 2005 Action, the minority vestry sought a declaration that they, and not the majority vestry, were the officers of All Saints Parish, Waccamaw, Inc. [the religious corporation re-chartered in 1902].

It is important to keep these cases, and their respective parties, very clearly in mind for purposes of the analysis that follows. The first case was between the parish corporation as plaintiff (along with some wardens and vestry members as individuals representing the class of trust beneficiaries), and the Diocese of South Carolina and ECUSA, as defendants. The Diocese had recorded a claim of trust against the parish's title based on the Dennis Canon, and the parish filed suit to invalidate that claim. That suit did not involve any claims by the later vestry which has filed the current petition; that vestry did not come into existence until the minority parishioners (who wanted to remain with ECUSA) held an election for them in January 2005.

In the second lawsuit, filed by that minority vestry in 2005, the claim was made that they were the true vestry (directors) of the parish corporation, because (they alleged) the majority had disqualified themselves from any right to hold those positions when they voted to realign with the Anglican Province of Rwanda (through its American branch, AMiA). They claimed that the changes made to the parish articles were null and void. But in its September 18 decision, the Supreme Court of South Carolina ruled that those changes were valid under South Carolina's laws governing nonprofit religious corporations. It concluded that the minority vestry had no basis on which to claim that its members were the rightful directors of the parish corporation.

Thus we have two separate cases, which were consolidated for purposes of argument. The Supreme Court of South Carolina resolved both cases in a single opinion, which the minority vestry has now asked the United States Supreme Court to review. To do so, it sought and obtained an extension of time until February 15, 2010 within which to file its petition, which it now has done. But none of the other parties to the decision below -- ECUSA, the Diocese of South Carolina, or the majority vestry -- sought review from the Supreme Court. So what happens as to them, now that a petition for review has been filed?

First, take a look at this excerpt from Rule 12 of the Rules of the U.S. Supreme Court:

Parties interested jointly, severally, or otherwise in a judgment may petition separately for a writ of certiorari; or any two or more may join in a petition. A party not shown on the petition as joined therein at the time the petition is filed may not later join in that petition. When two or more judgments are sought to be reviewed on a writ of certiorari to the same court and involve identical or closely related questions, a single petition for a writ of certiorari covering all the judgments suffices.

The last sentence just quoted would appear to mean that the petition filed by the minority vestry will suffice to bring into review the judgments in both of the consolidated cases, if those judgments are deemed to "involve identical or closely related questions." But do they? The judgment in the first case decided that the Dennis Canon did not create any valid trust interest in the parish's property under South Carolina law -- because under South Carolina law, a trust may be created in property only by the owner of that property, and neither the Diocese, nor ECUSA, nor the minority vestry owned the property at the time the Dennis Canon was purportedly enacted.

The judgment in the second case, on the other hand, decided that the minority vestry had no claim to be the directors of the parish corporation chartered in 1902. That was a decision based solely on provisions of South Carolina corporate law. That question cannot be considered as "identical" to the one in the earlier case: the two cases involve different parties at different times, and completely different rules of South Carolina law. Can they nevertheless be considered as "closely related"? Perhaps, insofar as they both turn on questions of the enforceability of ECUSA's canons under South Carolina law. But they still involve different canons, applicable to different parties at different points in time.

Thus my first big problem with the petition as filed is that, while it clearly could place the decision in the 2005 lawsuit under review, I do not see that it is an open-and-shut case that it could call the decision in the earlier (2000) lawsuit into review -- because the parties asking for review were not involved in that earlier decision, and the ones who were involved in it neither asked for the Supreme Court to review it, nor requested any extension of time within which to file a petition for such review.

But perhaps the issue will be moot, by virtue of this further provision in Rule 12 of the Supreme Court's rules:

All parties to the proceeding in the court whose judg­ment is sought to be reviewed are deemed parties entitled to file documents in this Court, unless the petitioner notifies the Clerk of this Court in writing of the petitioner’s belief that one or more of the parties below have no interest in the outcome of the petition. . . . A party noted as no longer interested may re­main a party by notifying the Clerk promptly, with service on the other parties, of an intention to remain a party. All parties other than the petitioner are considered respondents, but any respondent who supports the position of a petitioner shall meet the petitioner’s time schedule for filing documents, except that a response supporting the petition shall be filed within 20 days after the case is placed on the docket, and that time will not be extended. Parties who file no document will not qualify for any relief from this Court.

As I read this language, ECUSA and the Diocese of South Carolina may still become parties to the case in the United States Supreme Court if they file "a response supporting the petition . . . within 20 days after the case is placed on the docket, and that time will not be extended." (Emphasis added.) If they do not so file, they "will not qualify for any relief from this Court."

This raises some very interesting issues. First of all, the Diocese of South Carolina did not seek original review of the decision against it within the original deadline for requesting such review from the U.S. Supreme Court, which expired 90 days from September 18, or on December 17, 2009. But neither did ECUSA file for review within that timeline. Thus the decision is now squarely placed in ECUSA's hands: in order to obtain any benefit from a review of the case, should a minimum of four justices of the Supreme Court vote to grant such review, ECUSA must file a response in support of the petition by Monday, March 8. And so must the Diocese of South Carolina.

[UPDATE 03/11/2010: The petition filed by the parishioners was not docketed by the Supreme Court Clerk's office until February 22, 2010, one week after the original filing deadline. That means the deadline for ECUSA (and any other party) to join in the petition is now March 15, 2010. I am changing all the references to "March 8" that follow this paragraph to March 15 accordingly.]

What if ECUSA files such a response by March 15, but the Diocese does not? We will then be squarely presented with the question of just what "ECUSA" is, and who has the authority to represent it in court. For ECUSA is, as discussed many times on this blog, just a voluntary association of dioceses, organized at common law, and not under the law of any particular State. At common law, voluntary associations could not even appear in court, let alone sue in their own name. So the first question is: by what authority can anyone claiming to represent "ECUSA" file a response in the Supreme Court?

Given the current regime at 815, you and I both know the answer they will assert to that question: the Presiding Bishop, as the "chief Pastor and Primate of ECUSA", will instruct her Chancellor, David Booth Beers, to file a response in the name of ECUSA. No one at ECUSA will challenge her authority to do such a thing, and the filing will be a fait accompli.

That does not mean that anyone outside of ECUSA could not challenge her authority to file, however. If ECUSA does purport to file a response supporting the vestry's position, look for that response to be challenged by the parties who were victorious in the South Carolina Supreme Court. As I say, there may be a basis on which to question how a voluntary association like ECUSA, with no authority granted it to sue in court by the laws of any particular State (outside of such a State, at least), has any legal capacity to file papers with SCOTUS. The same issue would be presented if a minor -- who lacks the capacity to sue in their own name -- were to try to file papers in the Supreme Court without having a guardian or trustee ad litem first appointed. (However, it appears that no party below raised the issue of ECUSA's capacity to be sued and to sue in its own name in the South Carolina courts, and so that may be preclusive on this issue, even though we are now before an entirely different court.)

Let us assume that ECUSA can cross this hurdle, and be recognized as a party supporting the petition for certiorari before the Supreme Court. What, then, becomes of the Diocese of South Carolina? If it files no response in support of the petition by March 15, then as we have seen, under the Rules of the Court it "will not qualify for any relief" from the Court. Thus even if the Court were inclined to uphold the Dennis Canon as against the State's Statute of Frauds (which provides that to create a valid trust, the owner of the property must sign a document to that effect), a victory for the Dennis Canon could not do anything for the right of the Diocese to assert a trust in the All Saints Waccamaw property -- if it did not file a response in support of the petition by March 15.

And as all readers of this blog know by now, an unincorporated association such as ECUSA is incapable of taking title to any property, real or personal. (That is why ECUSA had to form the New York religious corporation known as the Domestic and Foreign Missionary Society, as explained in this earlier post. The DFMS holds title to all real and personal property used by ECUSA -- from 815 Second Avenue in New York City to the hundreds of trust accounts on deposit with Merrill Lynch and Morgan Stanley.) While property may be held in trust for an unincorporated association, the terms of such a trust may be enforced only by the members of that association (Restatement [2d] of Trusts, section 391, and comment c). But the only party to the South Carolina litigation which is a member of ECUSA is the Diocese of South Carolina. And if it does not choose to support the petition, then how can ECUSA enforce the Dennis Canon? It could not take title to the parish property in its own name (the DFMS is not, and never has been, a party to the South Carolina litigation).

And the minority parish is not a member of ECUSA, nor is it a named beneficiary of the Dennis Canon. So it cannot stand in for the Diocese, if the latter chooses not to support the petition.

Could the Presiding Bishop order the Diocese of South Carolina to file a response in support of the Petition? She could certainly try. But if even an ecclesiastical court for the trial of a bishop had to admit that it was powerless to compel the autonomous Diocese of Los Angeles to produce documents in the trial of Bishop Bennison (see the discussion toward the end of section III in this post), it is hard to see how the Presiding Bishop could have any greater authority over the autonomous Diocese of South Carolina.

Thus I think that ECUSA may find itself in a position of what chess players call Zugzwang in the South Carolina litigation: it must file a response in support of the petition by March 15, but even if it does so, there is no way such a filing will do it any good unless the Diocese of South Carolina also files in support of the petition. And there is no clear authority by which the Presiding Bishop could order the Diocese (Bishop Lawrence, after all, is not himself a party to the litigation) -- an unincorporated association who could not even lawfully assemble within 20 days to vote on instructing its chancellor to file anything -- to take any steps on behalf of ECUSA.

We thus have here a perfect illustration of the ultimate futility of ECUSA's stance in all the ongoing property litigation. It acts as though it were in charge, but it really is not, when push comes to shove. For ECUSA, which cannot legally hold title to any property, can act only through its member dioceses, which are autonomous in matters affecting their own temporalities. And if a member diocese believes that ECUSA's litigation stance will work counter to its own best interests within the Diocese, then ECUSA is powerless to require it to act against those interests.

The petition as filed is thus procedurally very weak. The parties who were most affected by the decision in the 2000 action -- which found the Dennis Canon had no legal effect in the State -- chose not to seek review by the deadline. Any joinder now will be seen as very lame, and will not carry the same weight as if it had been filed within the original time period.

As for the content of the petition, please note that it says absolutely nothing about reviewing the decision in the 2005 action, which was the action in which the petitioners themselves were involved. Moreover, the 2005 action involved only questions of State law under the provisions governing non-profit religious corporations. The Supreme Court has no jurisdiction to review questions of State law unless they also necessarily raise a federal question because it is inextricably bound up with them. That is not the case with the issues involved in the 2005 action, and that is why the petition does not discuss or try to raise those issues.

So we have a petition filed by persons who were not parties to the 2000 action, seeking to have the Court review the decision in that case as to a Church canon of which they are not a beneficiary, and which they have no standing to enforce. Meanwhile, the actual parties who are bound by that decision did not seek review within the original time limit, and unless both of them now do so together, I fail to see how any request for review by ECUSA alone could result in any relief favorable to it in the case. Those are just my first reactions to reading the petition; I am open to being persuaded differently by subsequent filings in the case.

There is one final point I wish to make in regard to the petition as filed. Notice how it tries, again and and again, to finesse the issue that when ECUSA sought to implement Justice Blackmun's infamous dictum in Jones v. Wolf, it failed to follow his directions. Look at this passage from Justice Blackmun's majority opinion in Jones, quoted (with emphasis as per the petition) at page 5 of the petition:

At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church.

Jones v. Wolf thus indicated that a "general church" could embody a trust in its Constitution, if it wished to create an effective trust interest in the property of its subordinate parishes. But that is not what ECUSA did. To have amended its Constitution would have required the votes of two successive General Conventions, over a period of four years, in the interim of which the measure would have been up for discussion by the conventions of each of its 100+ dioceses. That would have been an almost certain route to the defeat of any such constitutional amendment, once the parishes were made aware of its implications for the ownership of their property.

No, ECUSA fudged the issue by rushing through, on the last day of General Convention in 1979, an amendment to its Canons -- which could take effect immediately, without the necessity of consulting any parishes or diocesan conventions. (And there is a considerable question which remains whether the last-day maneuverings to rush the amendment through were adequate to meet the minimum procedural requirements for such an amendment at the time.) So not only did ECUSA likely fail to follow its own procedures for a proper canonical amendment, but it failed to do what the Supreme Court suggested -- which was to enact an amendment to its constitution.

No State court anywhere, to my knowledge, has been called upon to address this point. All of the decisions to date which uphold the Dennis Canon against the statute of frauds simply seem to assume, doubtless mostly out of their ignorance of canonical niceties, that a trust expressed via a canon would be the same as a trust expressed in the general church's constitution. But as those of us in ECUSA know all too well, it simply is not so. Constitutional amendments take a lot more time and trouble, and an amendment such as the Dennis Canon would have provoked a lot more discussion among the rank and file than a change to the canons rushed through at the last minute and known to but a few insider deputies and bishops. Needless to say, I believe ECUSA would be much better off today had it adhered strictly to the letter of Justice Blackmun's gratuitous advice. And that is why I find a passage such as this, at page 13 in the current petition for certiorari, completely disingenuous (bold emphasis added):

[S]ee also Cumberland Presbytery v. Branstetter, 824 S.W.2d 417, 422 (Ky. 1992) (holding that an express trust provision in a hierarchical church’s constitution was legally enforceable because the general church “followed to a T the suggestion of the U.S. Supreme Court in Wolf as to a method of ensuring ‘that the faction loyal to the hierarchical church will retain the church property’”).

While the Cumberland Presbytery may have amended its constitution, ECUSA did not, and so it is highly misleading to suggest by this quotation that ECUSA followed the Supreme Court's suggestion "to a T". Therein lies all its current problems with trying to enforce the Canon, and why it may win the argument in some States, but not in others (and that is also why ECUSA would be precluded from suing Justice Blackmun's estate for legal malpractice, even were it so inclined -- because it did not follow his advice as he gave it).

All in all, then, this petition raises some highly interesting and technical legal questions, but they are not raised by the persons who would be most affected by them. That realization may in turn affect its chances in the Supreme Court. Watch to see who files what further papers in the Supreme Court by March 15.

[UPDATE 03/12/2010: The Supreme Court's docket sheet for the case now reflects the entry of an order yesterday extending the time for all respondents to file responses to the petition for certiorari until April 23, 2010. That extension will not affect the March 15 deadline for ECUSA, as discussed above, to file a response in support of the petition. Under the language of the applicable rule, the latter deadline is fixed upon the docketing of the petition, and "will not be extended."

It may be that ECUSA is just going to let the Waccamaw parishioners carry the ball on their own. But if they do, I then cannot see how those parishioners have any standing to ask the Court to review the South Carolina Supreme Court's holding with respect to the Dennis Canon, for the reasons I have stated above.]