Thursday, December 9, 2010

A Tale of Two Churches

This is a story of two American churches, each located in the same State.

The first church is somewhat older than the second, and was founded well before the Revolutionary War, on property granted by the Crown, and subsequently confirmed by an act of the colonial legislature, which also gave it a corporate charter. An independent parish for many years, and a major center of the community in which it was located, the church became part of the Protestant Episcopal Church in the United States of America in the early nineteenth century, when it joined that denomination as a constituent member of one of its "dioceses", or regional grouping of parishes.

The second church began its existence as an unincorporated group of worshippers in 1829, and although presbyterian in character, did not affiliate with a national denomination until 1880, when it joined the Presbyterian Church in the United States (PCUS). It did not incorporate, however, until 1984. Meanwhile, PCUS, of which it was a member, had reunited with another branch (the "United Presbyterian Church in the U.S.A.") a year earlier, to form what became the "Presbyterian Church (USA)", or PCUSA. The newly incorporated parish thus became a constituent member of PCUSA (which must carefully be distinguished, in this telling of a Tale of Two Churches, from "PECUSA", or [later] "ECUSA" -- the Episcopal Church in the U.S.A.).

The first church, on joining PECUSA, had declared its accession (agreement) to that Church's constitution and bylaws, or canons. It obtained a new corporate charter from the State in 1981, in which it restated its accession. Two years earlier, in 1979, ECUSA (as it was now called) had adopted a bylaw (the "Dennis Canon") which purported to make all real and personal property held by any parish subject to a trust in favor of the denomination and of the diocese of which the parish was a member.

The earlier denomination PCUS had adopted a similar declaration of trust on all parish property in 1982, shortly before it merged to form PCUSA, as just described, in 1983. Upon the creation of this larger denomination, it adopted a national constitution which contained a trust provision identical in every respect to the one PCUS had passed in 1982, except that the name of the beneficiary of the trust was changed to PCUSA. At the same time, it adopted a new "opt-out" clause, which stated:
The provisions of this chapter shall apply to all particular churches of the Presbyterian Church (U.S.A.) except that any church which was not subject to a similar provision of the Constitution of the church of which it was a part, prior to the reunion of the Presbyterian Church in the United States and The United Presbyterian Church in the United States of America to form the Presbyterian Church (U.S.A.), shall be excused from that provision of this chapter if the congregation shall, within a period of eight years following the establishment of the Presbyterian Church (U.S.A.), vote to be exempt from such provision in a regularly called meeting and shall thereafter notify the presbytery of which it is a constituent church of such vote.   The particular church voting to be so exempt shall hold title to its property and exercise its privileges of incorporation and property ownership under the provisions of the Constitution to which it was subject immediately prior to the establishment of the Presbyterian Church (U.S.A.).   This paragraph may not be amended.
Four years after the enactment of this provision, our second parish elected to "opt out" under its terms, and so notified the higher Presbytery of which it was a member. However, just what provision it thereby opted out of was unclear. Since it had become subject to the almost identical trust language while it was a member of PCUS, before the merger, the opt-out clause would appear to have no application to that provision. However, no clarification was ever sought or obtained, and both the local church and PCUSA proceeded on their respective ways.

Adoption of the Dennis Canon by ECUSA had been subject to similar ambiguities. If it actually did pass both Houses of General Convention 1979, it did so on the next to last day -- when the bylaws prohibited the consideration of any such last-minute measures unless the House voted by a two-thirds majority to suspend the bylaws. The archived records of the Convention do not contain any definitive evidence either that (a) a vote was taken to suspend the rules, or (b) that a final vote was taken on the proposed Dennis Canon.

Unusually, the adopting language provided that the Canon would take immediate effect throughout the Church, upon its passage. Yet the contemporary write-ups of the Convention make no mention of the Canon or its supposed passage. Although the Canon was included in the compilation printed after that Convention, no one in ECUSA seems to have noticed its existence for over twenty years. Then, in 2000, Bishop Salmon of the Diocese of South Carolina recorded a declaration of trust against the property of All Saints Waccamaw -- and a ten-year court battle began, which resulted in a final judgment that the Canon was ineffective to create any trust interest under South Carolina law.

Not so in the State of Georgia, which is where the two churches this tale is about are situated. As we have seen, the second church (whose name is Timberridge Presbyterian Church) elected to exercise its privilege to opt out of what it assumed was a new trust provision in the new PCUSA Constitution. (Although delegates from Timberridge were present at the 1982 convention of PCUS which had adopted the equivalent trust language for that denomination, the evidence was unclear -- just as was the case with the passage of the Dennis Canon -- whether any church in the denomination, including Timberridge itself, had actually been aware of that adoption.)

In 2006, just five years after the Dennis Canon came to prominence in Church litigation, our first church (whose name, as you have by now guessed, is Christ Church, Savannah) similarly "opted out" of its application, by amending its corporate documents to remove any language of accession to the ECUSA constitution and canons.

So there you have the foundation for the Tale of Two Churches -- two churches with a dissimilar beginning, but with a similar recent history, insofar as they each tried to remove themselves from the effect of an trust imposed on their properties by their respective denominations. In each instance, the dispute went to court, and each national church prevailed at the trial court level. Then, since the Two Churches were in the same State of Georgia, they each appealed those decisions to the same Court of Appeals of Georgia.

And how did they fare? In two different decisions by the Court of Appeals rendered within five months of each other, delivered by two separate panels of three justices each, one church (Christ Church) lost, and the other (Timberridge Presbyterian) won. Christ Church was told that no act by it alone was effective to take itself out from the operation of the Dennis Canon, and that while it could amend its Charter under Georgia law to "deaccede" from the Episcopal Church (USA), it had to leave the property behind, because the trust imposed by the Canon was binding upon it when it decided to leave.

But Timberridge was told that, on the facts of its case, its attempted opt-out, even though ambiguous and uncertain, was effective to remove the trust, because it was not all that clear that a valid trust had been imposed on its property in the first instance.

Huh? you say. And I join you: Huh? How can that be?

Listen to the opinion in the Timberridge decision (November 30, 2010):
Read as a whole in light of the relevant law, the evidence is inadequate to show the existence of a trust in favor of the Presbytery.   The evidence must reveal that “factors other than mere connectional relationship between a local and general church were present.”  Carnes, supra, 236 Ga. at 35(1).   In the absence of some showing of intention and assent on the part of Timberridge, neutral principles of law cannot support the unilateral imposition of a trust provision drafted by the purported beneficiary of the trust and the resulting deprivation of the opposing party's property rights.
And now, here is a passage from the Court's decision in the Christ Church case (July 8, 2010):
Christ Church next contends that even if its 1918 charter accepted the trust obligation, the 2006 charter amendments, removing all accession to the Diocese of Georgia and the National Episcopal Church, effectively negated it.   This argument is flawed.   Although Christ Church is correct that Georgia law which governs non-profit corporations permits such amendments, the amendment did not have the effect desired by Christ Church.   Contrary to its argument, Christ Church cannot amend its way out of an already existing trust. Changes to corporate documents cannot sever the strands of the trust that attached to parish property.
The individual properties of both Timberridge and Christ Church had been made, within three years of each other, the subject of nationally imposed trusts. Timberridge's attempt to opt out of the trust, five years later, was on its face ineffective, and was treated by the national church as such. Yet when Timberridge filed suit for declaratory relief in 2007 -- twenty years later -- it is told that the imposition of the trust in 1982 was not effective without a showing of its assent that would be based on more than just its membership in the national body, and its delegates' attendance at the convention which adopted the trust.

Christ Church moved in 2006 to do the same thing -- yet it was told that the imposition of the trust on its property in 1979 was effective, because theretofore it had been a long-standing member of ECUSA and enjoyed the benefits of that membership, which created an implied trust that was made express by the passage of the Dennis Canon in 1979. And also, it had sent deputies to the Convention which "enacted" the trust!

The amazing thing is that the panel in the Timberridge case showed that it was aware of the Christ Church decision, and nevertheless tried to argue that the earlier decision was different. To the passages from the former which attempt to distinguish the Christ Church decision, and which I quote below, I shall add my own commentary in colored text:
For example, in Christ Church, supra, 305 Ga.App. 87, an express trust was established by the national church in 1979, and the local church re-recorded its charter in 1981, reaffirming its “accession to the doctrine, discipline, worship, constitution and canons” of the national church after adoption of the express trust provision.  Id. at 96(3)(b).
And likewise, in Timberridge, the local church, after having voted to adopt a national trust provision while a member of PCUS, voted to merge into a new body a year later -- with an identical trust provision. (True, there was adopted at the same time an "opt out" provision, but it applied only to those parts of the new national Book of Order which were different from those to which the given parish had previously been subject.) Thus the vote by Timberridge in 1983 was, just as the Court considered the re-recording of its charter by Christ Church in 1981, a "reaffirmation" of the national trust provision first adopted in 1982.
Moreover, the local church “failed to take any steps to disavow the canon or attempt[ ] to remove itself from the reach of ․” the express trust provision during a 30-year period after its adoption.   The local church “repeatedly sought the canonically-required consent of the Diocese of Georgia before alienating real property or incurring indebtedness, including two times after adoption of the Dennis Canon in 1979.”  Id.
Likewise, since the measure adopted by Timberridge in 1987 was ambiguous, and did not specify just what provision(s) in the Book of Order it was "opting out" of, and the church did nothing thereafter to clarify the situation for another twenty years, it could be said that Timberridge failed to take any such steps, as well.
. . . Here, in contrast to Crumbley and Christ Church, Timberridge promptly attempted to opt out of the newly created property trust provisions.   While the national church adopted rules “codifying the trust relationship,” Christ Church, supra, 305 Ga.App. at 94(3)(a), the local church has not undisputedly “adopted or adhered to those rules” with respect to the property at issue, id., but rather has “taken steps to disavow” the provision and attempted “to remove itself from the reach of” the trust provision, Id. at 96(3)(b), regardless of whether that attempt was successful under the precise wording of the interlocking church documents.
So an ambiguous and technically ineffective attempt shows an intent “to remove itself from the reach of” the trust provision for which the Church itself had voted, but failure to make any attempt at removal shows an intent to be bound by the provisions of a Canon of which one is completely unaware, along with the entire rest of the Church, for over twenty years?
No intent has been demonstrated on the part of the purported grantor of the trust to place its property in trust.   In fact, the evidence shows that Timberridge took every possible step to express its intention not to create a trust.
"Every possible step"? Such as actually voting for it, in the first place? And then making an express repudiation of it later, citing to section number, instead of referring to a "property exemption" in general?

And that is how Timberridge distinguished the earlier decision in Christ Church. I find the distinction singularly unconvincing, and I hope that the Georgia Supreme Court does, too. Otherwise, churchgoers in Georgia will never know just which decision the Court of Appeals will find controlling in any one instance. For a court that consists of only four divisions, organized into panels of three justices each, it is striking that they could reach two such different results within five months of each other -- and not show the slightest embarrassment.

Church property law is under a cloud once again in Georgia. But when one considers that cases from Georgia have given rise to nearly every major decision by the United States Supreme Court on church property since 1969, then perhaps what we are seeing is another such case (or two) in the gestation phase.


  1. I realize that these cases have not gotten this far but is there any chance that the GC Supreme Court justices are aware of the SC Supreme Court decision ?

  2. Yes, Alexi, they are -- the case is cited in the Church's petition to them asking that they review the Court of Appeals decision. However, I am not sure whether they will pick up the conflicts between the Christ Church case and the Timberridge case; it will depend on how much their clerks follow the advance sheets, and whether they connect the dots.