Georgia Court of Appeals Rubber-Stamps Christ Church Savannah Decision

Let ECUSA add another notch to its belt: it has yet one more case to string-cite for the proposition that it is a "heirarchical" church. In a unanimous decision filed earlier this afternoon, three judges of the Georgia Court of Appeals (Second Division) have affirmed the decision by the Hon. Michael Karpf, which granted summary judgment to ECUSA and the Diocese of Georgia that the property and assets of Christ Church Savannah (Georgia's oldest church, which predates the founding of the Protestant Episcopal Church in the United States of America) reverted to them when its congregation voted to withdraw from the Diocese. The decision relies upon much of Judge Karpf's opinion for its analysis and conclusions; hence the "rubber stamp" of my title:

We find no error and affirm the trial court's order. In fact, Superior Court Judge Michael Karpf, in his twenty-one page order, thoroughly and correctly detailed the history of Christ Church and the National Episcopal Church, and he properly analyzed the relevant statutes and church documents. We have incorporated much of his order in our opinion.

Do not look, therefore for any independent testing or analysis of the arguments which swayed Judge Karpf; they are simply repeated here again. For that reason, I would refer the interested reader back to this earlier post for a more detailed refutation of those arguments.

One knows one is in trouble when the opinion begins with a recitation that the following conclusions have been reached after "careful consideration":

Here, careful consideration of the National Episcopal Church's structure and history persuades us that the National Episcopal Church is hierarchical. The church organization has three tiers: (1) the National Episcopal Church, (2) geographically defined dioceses that belong to, are subordinate to, and are under the jurisdiction of the National Episcopal Church, and (3) local parishes that belong to, are subordinate to, and are under the jurisdiction of the National Episcopal Church and the individual diocese in which the parish is located. At the present time, the National Episcopal Church is comprised of 111 dioceses and thousands of individual churches, each of which must be affiliated with a diocese.

Regular readers of this blog do not need another lecture about the multiple errors and omissions in those three sentences. There is no "National Episcopal Church" at the top, but only a legislature which meets for (now just) eight days every three years. No diocese is "subordinate" to the non-existent "National Episcopal Church"; each diocese is simply a co-equal member of an unincorporated association of dioceses. The "National Episcopal Church", since it does not exist as such, has no "jurisdiction" over anything; there is not even any court at the national level which could purport to assert jurisdiction. And so on and so on -- all the fallacies in the decision flow from the mistakes in its opening paragraphs.

As did Judge Karpf, the Court of Appeals misreads a key statute in order to buttress its holding that an implied trust arose upon the Christ Church property from the moment it joined the Diocese of Georgia, and the Diocese joined the Church. It relies on the following language, from section 14-5-46 of the Georgia nonprofit corporation code, which deals with the succession of trustees holding title to church real property:

. . . 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.

(Emphasis added.) Instead of the natural reading, which would have the phrase "according to the mode of church government or rules of discipline" modify the nearest antecedent ("succession"), the Court reads the sentence as though it were worded:

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 --

according to the mode of church government or rules of discipline exercised by such churches or religious societies --

by them or their trustees for their use by succession.

The latter reading, as is evident, leaves the phrase "use by succession" without any reference to or definition of just how the trustees are supposed to succeed each other, while the correct reading refers to the rules for such succession established by the "mode of church government or rules of discipline" which the church has adopted.

By misreading the statute in this way, the court concludes that when ECUSA adopted its Dennis Canon, Georgia law already enabled its operation, and gave effect to the trust it imposed without any necessity for an express consent to its creation by the vestry of Christ Church (the legal owners of the property).

The Court of Appeals also repeats Judge Karpf's error when it holds that the canons of the national Church are always superior to the canons of a diocese. Here is what the opinion says, at pp. 23-24:

Likewise, Christ Church's 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 Episcopal Church. To the extent that Diocese Canon II.8 and the Dennis Canon conflict, the Dennis Canon would control. [Footnote omitted.]

In the case of dispositions of parish property, at least, this assertion is just wrong. Canon I.7.3 of the national Church (the one which immediately precedes the Dennis Canon) provides (with bold emphasis added):

No Vestry, Trustee, or other Body, authorized by Civil or Canon law to hold, manage, or administer real property for any Parish, Mission, Congregation, or Institution, shall encumber or alienate the same or any part thereof without the written consent of the Bishop and Standing Committee of the Diocese of which the Parish, Mission, Congregation, or Institution is a part, except under such regulations as may be prescribed by Canon of the Diocese.

In this instance, Georgia Canon II.8 provided that rights acquired previous to the adoption of the diocesan canons would not be prejudiced, and national canon 1.7.3 provided that when a parish disposes of or alienates its property, the diocesan canons control. Taken together, the Court should have realized that the two provisions meant that the Dennis Canon, per se, could not prejudice the rights already held by Christ Church under its prior land grants, which were free of any trust, express or implied. This point may afford grounds for a petition for rehearing (which has to be filed in ten days), or for review by the Georgia Supreme Court.

The opinion has numerous cites to similar rubber-stamp decisions in other States. But what about the recent decision by the Supreme Court of South Carolina, which is directly to the contrary? The court dismisses it with just one sentence, containing no analysis whatsoever:

We recognize that many ofthe authorities cited in this opinion are from foreign jurisdictions and, therefore, are not binding. Nevertheless, this Court is persuaded by the legal analyses therein and the consistency of the opinions. Christ Church argues that the recent South Carolina case of All Saints Parish Waccamaw is highly persuasive authority for this case and urges us to adopt the reasoning of the South Carolina Supreme Court. In particular, Christ Church relies on that court's conclusion that a party cannot establish a trust over property that it does not own. However, although there are certain factual similarities between that case and this one, ultimately the decision in All Saints is distinguishable and we decline to adopt its holding in this case.

Translation: we prefer to fall in line with all those other courts that have abandoned the Statute of Frauds, and are not persuaded by a decision which actually gives effect to that hoary doctrine.

Look not to the courts of Georgia, therefore, for detailed and careful legal analysis. The easy path is best, and ECUSA, as I say, has one more string-cite for its briefs.

Note, however, that this case is an application of Dennis Canon principles to departing parishes. Although the decision contains, as noted, much language that ECUSA and its supporters will claim applies to departing dioceses as well, all such language is obiter dicta to the Court's actual holding, which upholds the Dennis Canon as applied to a parish. (Remember: the Dennis Canon contains no language making it apply to the property held by or for dioceses.) Thus while ECUSA will try to cite it in Texas, Pennsylvania, California (San Joaquin) and Illinois (Quincy), it will not have any value as a precedent in those lawsuits.

Another item of note provides a perfect way to conclude this dismal day: the pseudo-diocese of San Joaquin has instituted what is now its seventh suit against a departing parish, this time St. Paul's in Visalia. For a discussion of the strategy behind these lawsuits, see this post. And for an explanation of the financial folly and fiduciary abuse it signifies, see this post.