Friday, March 16, 2012

Timberridge Files Petition for Certiorari

On March 6, 2012, Timberridge Presbyterian Church of Atlanta filed a petition for certiorari (review) in the United States Supreme Court. (H/T: Layman online.) The petition asks the Court to review a decision by the Supreme Court of Georgia, about which I wrote in this earlier post.

The Layman article succinctly explains what is so significant about this particular filing:
Joining Timberidge attorney Michael Kendall in this case is Carter G. Phillips, managing partner of the Washington, D.C. office of Sidley Austin LLP. Phillips has argued 74 cases before the U.S. Supreme Court, more than any other attorney currently in private practice. Before his association with Sidley Austin, he served as a law clerk for U.S. Supreme Court Chief Justice Warren Burger and as assistant to the United States Solicitor General, arguing nine cases before the U.S. Supreme Court on behalf of the federal government.
And with Mr. Phillips' expert assistance, notice how clearly the petitioners have phrased the question which they would like the Court to decide:
Whether the  ‘neutral principles’ doctrine embodied in the Religion Clauses of the First Amendment permits imposition of a trust on church property when the creation of that trust violates the state’s property and trust laws.
This is the same question which the Dennis Canon presented (or presents) in South Carolina, Texas, Ohio, Pennsylvania, Nebraska, North Carolina, New Jersey, Connecticut, Tennessee, and in all the other jurisdictions where it has come up in the last dozen or so years -- with the exception only of California and New York. In their collective foolishness, the legislatures of each of those two states decided to enact statutes which grant the Episcopal Church a special privilege to bypass their own Statutes of Frauds.  (And for that very reason, those privilege statutes would probably themselves be open to challenge, under the Establishment Clause of the First Amendment.)

The petition makes excellent reading for those who would like the most current overview of the law in this area. It includes, of course, discussion of cases in still other jurisdictions (e.g., Louisiana, Missouri and Arkansas) which involve PCUSA, and not ECUSA -- but given the wording of the applicable provision of PCUSA's Book of Order, the issue presented is the same.

Petitioners advance two simple reasons for why the Supreme Court should accept the case for review: (1) “The judgment implicates a deep and mature conflict over whether a trust may be imposed on church property that secular law would not allow”; and (2) “Review is warranted because the decision below is wrong.” (The latter point, of course, would not be a reason on its own sufficient to take the case, because the Supreme Court does not use its jurisdiction simply to correct mistakes of law.)

Under the first ground, the petitioner's argument makes three points. First, the State courts, as noted above, are widely divided on the question of whether "neutral principles" allows certain kinds of churches to create trusts in violation of state property laws. Second, the Timberridge case itself provides an ideal vehicle for resolving the issue, since the Georgia Supreme Court ruled that for PCUSA to have to have obtained the express written consent of every presbytery to the imposition of a trust would have placed an undue "burden" on PCUSA under the Free Exercise Clause. In doing so, it read dictum in Jones v. Wolf, 443 U.S. 595 (1979) to require that any burden on churches in complying with State law should be "minimal." The brief argues:
To the contrary, when this Court allowed state courts to rely on “neutral principles,” to resolve church property disputes, it explained that churches could adopt express trust provisions that would bind civil courts “to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.” Jones, 443 U.S. at 606. The Georgia Supreme Court’s ruling disregards Timberridge’s intent and discounts the lack of a legally recognizable trust under Georgia law.
The third point is that the conflict among State courts has become widespread, to the degree that the doctrine of "neutral principles" itself is threatened. Under one interpretation, certain kinds of nationally organized churches receive a deference which is not accorded to other types of churches without any national organization. And other the other interpretation, "neutral principles" are truly neutral, because the Courts apply the same real property law to churches as they do to all other litigants.

This is a concise and well-presented argument. It is backed by one of the finest Supreme Court litigators in the profession. We may take some hope that, by this June, we should know whether ECUSA should have any cause for concern about its scorched-earth campaign of intimidation and bullying, based on the Dennis Canon.

All of the Court's major pronouncements in church property cases since 1969 have been in the course of its reviewing decisions from the Supreme Court of Georgia. We are about to see whether the Timberridge case will furnish the occasion for yet another one.

[UPDATE 03/12/2012: There is word that Christ Church Savannah is preparing a similar petition for filing. Two are always better than one, and with both decisions stemming from the same Georgia Supreme Court, but involving two different national Churches and their different trust provisions, this joinder could provide just the impetus which the U. S. Supreme Court needs to get involved.]


  1. If SCOTUS rules in favor of Timberridge and the priority of 'neutral principles' in church property cases, how might this effect the Virginia churches who recently lost their legal battle? Would this give them any hope of regaining their buildings, or are those properties lost forever because of TEC and the Men in Black?

  2. It would not help them directly, TRR, since the Virginia court already ruled that the Dennis Canon had no force or effect to create any trust in Virginia. That being said, the court's decision nevertheless afforded ECUSA and its Diocese an extraordinary latitude in being able to bypass the Virginia Statute of Frauds via an "implied trust" based on a "proprietary and contractual" interest in the parish property. There was no actual proprietary interest -- that was a convenient legal fiction -- and the "contractual interest", such as it was, had mostly to do with worship and discipline, not the ownership of property.

    That being said, there would first have to be an appeal to the Virginia Supreme Court, which would then get a crack at shaping any decision so as to minimize chances of a reversal by the U.S. Supreme Court. So, steady on -- this particular opera is not over yet, given that you-know-who has yet to sing.

  3. Since everyone who has been following you knows how the Virginia Supreme Court would rule on this appeal--which would also give them a chance to put their legal spin on the CANA case, as you point out--could the Virginia congregations petition the Supreme Court to hear the case if SCOTUS reverses the Timberridge case?

  4. Civil appeals to the Virginia Supreme Court, as I understand it, are discretionary with that Court -- it doesn't have to agree to hear them. So if the CANA congregations request the Court to hear an appeal of Judge Bellows' decision, and if it turns them down, then, yes -- the congregations could take the case up to the next level, and ask the Supreme Court to review the decision of the Fairfax County Circuit Court.

  5. Mr. Haley is correct about appeals to the Supreme Court of Virginia being discretionary.

    TRR, I wouldn't be so sure about the outcome of any potential appeal to the Supreme Court of Virginia. Although that court previously struck down a trial court ruling in favor of the CANA congregations, that was an appeal of the 57-9 issue, which was based on an almost entirely distinct body of law than the current decision in favor of TEC and the Diocese of Virginia. Just look at Judge Bellows, who ruled decisively in favor of the CANA congregations the first time around and decisively the other way on remand.

    Moreover, the Supreme Court of Virginia has had some turnover since its last decision, with the death of the Chief Justice Hassell and the retirement of Justice Koontz, both of whom sat on the shorthanded five-justice panel that decided the previous appeal. Two new justices have joined the Court in their places, so the personnel of the Court that would hear any appeal of the current ruling might be very different that last time around.