Parsing the Arguments in Georgia

Oral arguments before an appellate court are an art form of their own. Frequently, an attorney has no more than ten or fifteen minutes to lay out the heart of his case, and more often than not, the judges' questions prevent him from realizing that goal. Nevertheless, the attorney must spend a good deal of time in preparation, by analyzing all of the arguments pro and con, and by developing a smooth thread that links them into a continuous whole. When a question interrupts that flow, the attorney must be nimble at first answering the question, and then picking up the thread of his argument where it left off.

By the same token, I find that reporters' descriptions of oral arguments tell me more about the lawyers' skills in getting their message across than they relate the ebb and flow of the argument. What will stick in a lay reporter's mind is not what an attorney would necessarily understand as the key issue in the case; rather, it is what came through loudest and clearest to that particular reporter from that attorney's argument.

It is thus instructive to compare the various accounts of yesterday's oral arguments in the Christ Church Savannah case before the Georgia Supreme Court. There are only two independent accounts available: one by Associated Press reporter Greg Bluestein, and one by Walter Jones of the Morris News Service. Here is the former's account of the arguments made to the Court by Christ Church's attorney and by Mary Kostel, special counsel to the Presiding Bishop (who was specially admitted on a temporary basis for the purpose of appearing before the top Georgia Court):

A Chatham County court ruled in favor of the national group's claim on the property in October 2009, and the Georgia Court of Appeals later agreed. The courts concluded that state laws and church documents — including a 1979 rule that placed parish property in trust for the national group — should govern the case.

But the church's attorney, Paul Painter, countered that those rules don't apply here because the property wasn't acquired by "deed," as the law requires, but was instead granted by a special legislative act. He also said the appeals court's ruling gave the national church far too much power over land rights.

The Episcopal Church countered that its internal rules should resolve any land dispute, regardless of what state law dictates. The church agreed to those rules back in 1823 and it can't back out now, said Kostel.

"When it came into the diocese, it relinquished its separate identity," she said.

And here is the account from the Morris News Service reporter:

During Monday’s arguments in an appeal of that lawsuit, James Painter, an attorney for the congregation, tried to put the case into perspective.

“It’s fitting that this argument is held on the day after Mother’s Day as Christ Church in Savannah is widely known throughout our state as the Mother Church of Georgia,” he said.

Painter argued that the congregation should be able to keep the $3 million building and property because the grant from Oglethorpe, as King George’s agent makes it unique from other cases of Georgia churches that broke from their own national organizations. State laws on church property were drafted for smaller, rural churches, he said.

Mary Kostel, an attorney for the National Church, countered by saying the congregation volunteered to join the Episcopal Church when it formed after the American Revolution, and in doing so it gave up its right to the property to the national organization by agreeing to follow the national rules.

“If Christ Church didn’t want to turn over its records to the bishop, the financial records when he visited, too bad,” she said. “... Once they were in the church, their property was subject to review and care of the larger church.”

From the two accounts, the gist of the arguments is clear: Christ Church argued that its special status as Georgia's oldest church, with property granted to it originally by Georgia's founder in 1733 and then confirmed to it by an act of the Georgia legislature following the Revolutionary War, should mean that it retains its property free and clear of any trust in favor of the national Church (e.g., the Dennis Canon). For Mary Kostel, however, the decisive act was Christ Church's decision to join the Protestant Episcopal Church (USA) in 1823: at that point, it gave up control over its property, and subjected it to the whims of the national church and its General Convention.

Does the latter argument stand up in light of history? By no means: when Christ Church became Episcopalian in 1823, the most recent precedent regarding church property in PECUSA had been its relinquishment of all claims to King's Chapel in Boston, which had gone from being Anglican to being Unitarian. Here is the account I gave in an earlier post:

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.'"

Well, perhaps the Church later clarified its doctrine with regard to maintaining parish property in trust for it? Not as late as 1879, when it again lost a claim to the property of a different Christ Church, this one in Chicago. Its rector, Dr. Charles Cheney, left with his congregation to form the Reformed Episcopal Church in 1871, and they continued to meet and hold services in their consecrated building. When the Diocese of Illinois tried to claim the property in court, the Illinois appellate court ruled that it belonged to the parish.

So Mary Kostel's argument -- that the die was cast in 1823, and from that point forward, Christ Church Savannah could not regard its property as its own -- is, historically speaking, hogwash. The only real argument ECUSA has is that its adoption of the Dennis Canon in 1979 was sufficient, under Georgia law, to create an unrecorded trust in the ancient property which literally no one in Georgia knew about at the time, and which did not satisfy the requirements of the Georgia Statute of Frauds (which states that a trust may be created only by a writing signed by the owner of the property placed in trust).

It is, as one can readily see, an extraordinarily weak argument when examined in an accurate historical light. As such, it did not pass muster in the Supreme Court of South Carolina. Whether the Supreme Court of Georgia will also not let itself be bamboozled is something we shall have to wait several more months to discover.