Analyzing the Georgia Decisions (I): the Dissenters Have the Better Arguments

[Note: in this opening post on the recent Georgia cases, I begin with the case involving the Presbyterian Church (Timberridge), because it is the pivot on which the Court's decision in the Christ Church Savannah case turns. I will have more to say about the latter decision in a subsequent post.]

The majority opinion of the Georgia Supreme Court in the recent Christ Church Savannah case offers a study in judicial dynamics. The author of the opinion is Justice David E. Nahmias; he also wrote the opinion for the 4-3 majority in the case of Timberridge Presbyterian Church, which the Court decided the same day. [UPDATE 11/24/2011: I have been given some information which I find simply amazing. I am informed that Justice Nahmias is a prominent member of an Episcopal congregation in Atlanta, while the Presiding Justice of the Georgia Supreme Court, the Hon. George H. Carley, is an equally prominent member of a church that has joined the Anglican Province of America. The latter saw enough of a potential conflict in the Christ Church case to recuse himself from participation in it, while Justice Nahmias not only did not see fit to recuse himself, but authored the majority opinions in both cases! It's pretty good when you find yourself in a position to be able to take a decisive stance in favor of your own Church, while purporting to decide the case on purely secular grounds.]

In the Timberridge case, the dissenters included Presiding Justice George H. Carley, who had recused himself from the Christ Church Savannah case (perhaps because he is a prominent Episcopalian); he was joined in his opinion by Chief Justice Carol W. Hunstein (I am not certain about the distinction in Georgia between the "Chief Justice" and the "Presiding Justice", but there seems to be one). The third dissenting vote came from a lower court judge, the Hon. Deborah C. Benefield, sitting in the place of Justice P. Harris Hines, who did not participate because he serves as an Elder in the First Presbyterian Church of Marietta.

In contrast, there was but a single dissenter in the Christ Church Savannah case: another lower court judge sitting in the place of the recused Presiding Justice Carley: the Hon. S. Phillip Brown. (Judge Benefield was not on that panel.) Taking the two cases together, we then find the following alignments:

For implied trusts in favor of the national Church in both cases:

Nahmias, J.

Benham, J.

Thomas, J.

Melton, J.

For an implied trust in the Christ Church case, but not in the Timberridge case:

Hunstein, C.J.

For an implied trust in the Christ Church case (did not participate in Timberridge):

Hines, J.

Against any implied trust in the Christ Church case (did not participate in Timberridge):

S. Phillip Brown (sitting by designation in place of Curley, P.J.)

Against any implied trust in the Timberridge case (did not participate in Christ Church):

Curley, P.J.

Deborah C. Benefield (sitting by designation in place of Hines, J.)

From this lineup, it may be seen how the core majority (Nahmias, Benham, Thomas and Melton) decided, in effect, both cases. The majority opinion in Christ Church heavily relies upon the majority opinion in Timberridge to bolster its decision. (One wonders how Chief Justice Hunstein could join in an opinion [Christ Church] which derives most of its rationale from an opinion [Timberridge] which she refused to join. Since she did not express her views in either case, however, we are left to speculate.) In effect, the following passage from the dissent of Judge Benefield in Timberridge sums up the core majority's slender rationale for finding an implied trust based on the local church's "participation in", and "benefits received from", its membership in the national Church:

There are church property cases decided solely on the national church’s documents demonstrating the grantor’s intent by looking at the beneficiary’s impression of a trust, apparently due to the alleged grantor’s “affiliation” with the national church and the purported “benefits” enjoyed by the grantor thereby. Kemp, supra, at 328-329; Crumbley v. Solomon, 243 Ga. 343, 344-345 (254 SE2d 330) (1979); Carnes, supra. Affiliation with the national church, and purported benefits of it, have not been articulated as a neutral principle of law. Inasmuch as this “affiliation” is not a deed, statute or church document and it is being relied on to demonstrate intent, perhaps it creates a genuine issue of material fact assuming opposing affidavits to the contrary as in this case. . . . Conversely, it is perhaps a judicial acknowledgment that it is insufficient to decide these critical cases on deeds, statutes and church documents alone.

Often the deeds (or land grant) do not establish a trust holding the property for the greater church. See Carnes; Christ Church; Kemp and Crumbley, supra. In determining intent, this is viewed as irrelevant, “neutral”, or in some roundabout way proof of the grantor’s intent. As the majority opinion notes, “[i]t is true that [the deeds do not] show an intent by the grantors to create a trust.” Maj. Op. at 12. When in truth, it was either created or it was not and a review of the deed would quickly demonstrate which was true. The majority continues “[b]ut [the deeds] also do not expressly preclude the creation of one. Given [the provision in the national church’s constitution] Timberridge would have no reason to believe that its deeds needed to recite a trust in favor of the general church...” Id.; see also Christ Church, supra, at 89-90. It would seem just as easily to follow that Timberridge had no intention of creating a trust since they did not provide one in the deeds as they easily could have. What would be the purpose of including language “this instrument does not create a trust” in a deed?

Precisely the question to ask, Judge Benefield -- why would anyone put such language in a deed? And the answer is: "Given the majority's inclination to conclude, from the lack of any such language, that the parties did not positively preclude the imposition of a trust by other means, one is almost forced to recite such nonsense -- if that is what it will take to keep the courts from leaping to a contrary conclusion."

Because the hook by which the majority finds an "implied trust" on parish property is such a slender reed, and is grounded on no writings whatsoever (that is, no writings of the landowner whose property is impressed with a trust by implication), the finding of an implied trust based on evidence of long-standing affiliation (and the presumed "benefits" received therefrom) takes the doctrine of "neutral principles" into uncharted territory, where there are no firm guideposts by which to assess the evidence. And that evidence, as Judge Benefield also notes, is often disputed, and so should preclude these decisions by summary judgment -- where the judges decide the cases alone, without the benefit of fact-finding first by a jury.

Thus the Christ Church decision relies mainly on Timberridge, and the latter relies on -- but what, exactly, does it rely on? Let's listen to Presiding Judge Curley, as he struggles to understand the basis for the majority's decision in Timberridge:

The majority has contrived an opinion which purports to make a thorough examination of the documents relevant to the “neutral principles of law” doctrine and to find the existence of a trust pursuant thereto even though it virtually ignores a necessary element of trusts. That element is the intent of the settlor, which must be ascertained with reasonable certainty for an express trust to exist. [Citation omitted.] Alternatively, it must be “implied from the
circumstances” for an implied trust to exist. [Citation omitted.] Furthermore, even assuming that the majority has appropriately declined to apply Georgia’s generic express or implied trust statutes, the same requirement of the settlor’s intent nevertheless is found in the neutral principles approach, as articulated in Jones v. Wolf, 443 U. S. 595, 603-606 (III) (99 SC 3020, 61 LE2d 775) (1979):

[T]he neutral-principles analysis shares the peculiar genius of private-law systems in general – flexibility in ordering private rights and obligations to reflect the intentions of the parties. . . . [A] religious organization can ensure that a dispute over the ownership of church property will be resolved in accord with the desires of the members. . . . The neutral-principles method, at least as it has evolved in Georgia, requires a civil court to examine certain religious documents, such as a church constitution, for language of trust in favor of the general church. In undertaking such an examination, a civil court must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts in determining whether the document indicates that the parties have intended to create a trust. . . . Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. 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. . . . And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.

(Emphasis supplied.)

Thus the whole purpose of the "neutral principles" approach, as the Presiding Justice reminds us, is to ascertain what both parties intended in their arrangement, based on the written evidence which documents that arrangement. Justice Carley then addresses his most withering criticism to the way in which the majority analyzes those documents in Timberridge (with my emphasis added to his words):

The intention of Timberridge Presbyterian Church (Timberridge), as the local church, cannot be discerned by consideration of either the 1982 amendment to the Book of Church Order (BOCO) or the 1983 Book of Order (BOO). To limit judicial consideration in this manner would effectively constitute an inappropriate deference to church doctrine and reliance on religious precepts, or even an attempted return to the unconstitutional “departure from doctrine” approach. [Citation omitted.] Although the majority does consider relevant documents other than BOCO or BOO, it does not articulate what it should be looking for. Where, as here, there is neither a dispositive statute nor any deed with clear trust language, a court must look in other documentation or circumstances for the local church’s intention to create a trust or to consent to trust provisions in national church documents. . . .

The Articles of Incorporation for Timberridge Presbyterian Church, Inc. (TPC Inc.) are a remarkably slender reed on which to hang the weight of the majority opinion. The majority relies upon the Articles’ reference to the definition of “active member” in the Book of Order but fails to quote the whole definition, which reads as follows:

An active member of a particular church is a person who has made a profession of faith in Christ, has been baptized, has been received into membership of the church, has voluntarily submitted to the government of this church, and participates in the church’s work
and worship.

BOO § G-5.0202. This provision is “located outside the property section of the Book of Order.” [Citation omitted.] Like the overall intent of the Book of Order, the purpose of that definition clearly is spiritual. The portion on which the majority relies is that an active member has “voluntary submitted to the government of” the general church. This provision strongly implies in the context that the member has submitted to the authority of the general church only in spiritual matters. [Citation omitted.] See also BOO G-9.0102 (ascribing to the governing bodies of the general church “only ecclesiastical jurisdiction for the purpose of serving Jesus Christ and declaring and obeying his will in relation to truth and service, order and discipline”). Moreover, the definition of “active member” relates only to individual members, and not to local churches or their relationship with the general church. Thus, judicial inquiry into and application of that definition is both irrelevant and constitutionally foreclosed. [Citation omitted.]

Justice Carley then notes the utter lack of factual evidence to indicate an intention on the part of the local Presbyterian congregation to submit to an implied trust on their property. First, their joinder in the union of the national churches was not something under their control:

In the face of the exceedingly weak or non-existent documentary evidence of Timberridge’s intent to hold all of its property in trust for the general church, other relevant documentation and circumstances overwhelmingly prove the absence of any such intent. Timberridge operated for more than 150 years, including over 100 years as a member of the Presbyterian Church in the United States (PCUS), without any property trust provision. . . . It cannot be said that Timberridge voluntarily affiliated with the general church in 1983. The Articles of Agreement providing for the 1983 reunion of the PCUS with the United Presbyterian Church in the United States of America (UPCUSA) mandates that “[e]ach and every congregation of the [PCUS] and of The [UPCUSA] shall be a congregation of the Presbyterian Church (U.S.A.).” Article 1.4. Thus, instead of being required to “opt in,” each local church was automatically part of the new general church and was given eight years to petition for dismissal or to seek an exemption from the provisions of the property chapter of the Book of Order.

Next, the evidence showed that Timberridge did all that it could to avail itself of a provision in the agreement of union which allowed it to "opt out" of the property trust clause in the Book of Order:

Timberridge did not wait eight years, but rather acted in four years. In fact, Timberridge acted just two weeks after the last individual owner conveyed her interest in the land to Timberridge, and the Presbytery was promptly notified as required. More important, Timberridge broadly took “the ‘property exemption’ as provided in the Book of Order (G-8.0700)” and did not limit that notice to a single provision of the property chapter. Most important of all, Timberridge’s notice, regardless of the precise application of that chapter’s language thereto, constituted Timberridge’s only expression of intent with respect to the recently enacted property trust provisions in national church documents. In that prompt notice, Timberridge unmistakably rejected any consent to hold its property in trust for the general church. It is irrelevant that 20 years elapsed thereafter during which Timberridge continued its relationship with the general church until a dispute arose and Timberridge brought suit asserting control of its property. Those circumstances are wholly consistent with the fact that Timberridge, which never expressed any intent to create a trust, was relying on its prompt notice of exemption from property trust provisions as its expression of intent not to create a trust. [Citations omitted.]

Judge Carley goes on to contrast Timberridge's conduct in this regard to that of Christ Church Savannah, which supposedly allowed 30 years to pass without making any objection to the adoption of the Dennis Canon. This is unfair, and shows a lack of appreciation for the inability of the national Episcopal Church to adopt canons which bind individual parishes and dioceses without their consent. General Convention is not the "supreme legislative authority" in the Episcopal Church (USA) -- language which would have made it just that was expressly voted down by the dioceses meeting in General Convention in 1895.

Without any kind of supremacy clause in its Constitution, General Convention can only adopt resolutions and canons which it asks the dioceses and parishes to honor in their day-to-day operations. It takes local bylaws and local canons to implement those requests from General Convention, and implementing them attests to the mutual consent of both parties to the arrangement. But the Dennis Canon was not implemented by any rule or bylaw adopted at the parish level, and the Diocese's own canons contained a provision that preserved the "vested rights" of property owners which pre-existed the adoption of canons.

Thus, in the same way as the dissenters in Timberridge criticize the majority for implying a parish's assent from its long-continued silence in regard to a unilateral proposal by the national church to establish a trust on their property, so the same criticism could be made of the majority's similar finding in the Christ Church case.

In consequence of these two decisions by a four-person core majority on the Supreme Court of Georgia, the law of implied trusts on church property has now come unmoored from any grounding in statute or legal precedent. We are back full circle, to the days when an "implied trust" not to depart from doctrine was the only basis for the courts' decisions -- until the United States Supreme Court banished all such theories of implied trust in the (Georgia!) case of Presbyterian Church v. Mary E. B. Hull Presbyterian Church, 393 U.S. 440 (1969).

The ground for banishing the implied trust doctrine then was that its application entangled the courts in religious doctrine to a degree that was impermissible under the First Amendment. Under it, the courts had to examine which faction in a divided church had kept more closely to the original purposes for which the property on which its building stood had been donated.

But under the present doctrine, the courts are drawn into all sorts of improper speculation about the significance to attach to a member church's "subjecting itself" to the "governance" of a national church -- including to the point, apparently, of conceding to that national church the power to impose unilaterally a trust on the member's property! In order to find such an extraordinary cessation of power, one would think that the evidence of the parish's intent would have to be extremely conclusive. As Judge Benefield points out in her dissent, however, that is not the case under the standard applied by the majority (with my emphasis added):

Despite this, the majority in the case sub judice states their decision is “based ... on the sort of legal materials ‘familiar to lawyers and judges,’ embodied in a ‘legally cognizable form,’ and having nothing to do with the church’s religious doctrine,” quoting Jones v. Wolf. . . . In what non-church property case is the grantor’s intent found solely in a self-serving document created by the grantee determined to be a “legally cognizable form”?

Calvin Massey’s quote in the Kemp dissent goes on to provide:

This is ... the ... extraordinary power to seize property by divesting others of their beneficial interests in the property ... Donors of property to local churches are not necessarily members of the hierarchical church. Such donors have no assurance that their intent to transfer property in trust for the exclusive benefit of the local church, and not the hierarchical church, will be honored. All the general church would need to do is alter its own internal governing instruments to nullify the explicit intentions of donors.

Precisely again, Judge Benefield -- you have touched upon the central nerve of this entire problem. For if national churches can unilaterally, through their so-called "democratic" processes, cancel the intent of individual donors that their gifts stay with the local parish, then those donors will simply stop giving anything to their local parishes. I have yet to see a single Episcopal Church (USA) case in which the dissenters wanting to stay in ECUSA formed the majority -- in every published case, they were the minority. And in practically every such case to date, as well, the minority is simply too small to maintain, pay for and sustain "their" church property. As a consequence, the Diocese has to step in and subsidize the parish's operations, or else leave the church building vacant, or put it on the market for purchase by anyone except the majority who was forced to leave it.

This doctrine makes absolutely no sense to any generous-minded donor, and in the long run, it will seal the fate of the Episcopal Church (USA). No new churches will be built with donated funds, and those churches that remain will have fewer and fewer members over time, since nothing they can do locally will assure them that the building in which they worship is truly theirs. That is why the Dennis Canon is ECUSA's Trojan Horse, and why the next General Convention should abolish it -- if it genuinely wants the Church to grow, rather than shrink.