tag:blogger.com,1999:blog-759178030677978044.post4584856839590422479..comments2024-02-19T07:24:42.397-08:00Comments on Anglican Curmudgeon: Who Shall Own the Property?A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-759178030677978044.post-42823494242922621442008-06-28T07:09:00.000-07:002008-06-28T07:09:00.000-07:00A further point in reply to Jeff H's comment in li...A further point in reply to Jeff H's comment in light of the <A HREF="http://www.standfirminfaith.com/media/constitutionality_57-9_062708.pdf" REL="nofollow">6/27/2008 ruling by Judge Bellows</A> (see the Update Note in the text above): In a <A HREF="http://www.standfirminfaith.com/media/court_order_5_questions_57-9_062708.pdf" REL="nofollow">separate letter ruling,</A> Judge Bellows decided that nothing in the law required him to make a preliminary inquiry into "who owns the property" before applying the Division Statute, so long as the title to the property in question is held by trustees, as the Statute requires. (See Question 5 in the letter ruling.) This will eliminate any examination into deeds, charters, etc., unless Judge Bellows later decides that the Contracts Clause prevents the Division Statute from applying to a given parish, as I explain in the Update Note above.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-45170463711571407332008-05-30T17:21:00.000-07:002008-05-30T17:21:00.000-07:00Mike, thank you for the comment and the link to yo...Mike, thank you for the comment and the link to your very thorough post. <BR/><BR/>I commend <A HREF="http://www.stayinanglican.com/" REL="nofollow">Mike's site</A> to anyone who wants to delve thoroughly into the background of the Dennis Canon and its ramifications for church property issues.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-47506373163847848182008-05-30T07:04:00.000-07:002008-05-30T07:04:00.000-07:00Following up on the second part of Jeff H's commen...Following up on the second part of Jeff H's comment, it seems to me likely that if Judge Bellows were to find the division statute unconstitutional (and I'm not suggesting that he will), he would not do so on grounds that would favor a successful outcome for TEC and the Diocese in a trial phase applying neutral principles without the statute.<BR/><BR/>I wrote a piece on Jones v. Wolf, "Did the U.S. Supreme Court invite passage of the Dennis canon?" (see <A HREF="http://www.stayinanglican.com/stayin_anglican/2008/03/did-the-us-supr.html" REL="nofollow">here</A>) that covers some of the same territory as does A.S. Haley's fine entry above.Unknownhttps://www.blogger.com/profile/01258302079481649457noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-71798731279059625442008-05-29T09:11:00.000-07:002008-05-29T09:11:00.000-07:00Jeff H, thank you for that helpful comment. I may ...Jeff H, thank you for that helpful comment. I may need to clarify some of what I wrote towards the end, but I think we see the law the same way. One of the conditions for the Division Statute to apply is that title to the property in question be "held by trustees". Proving this condition will require the churches to show their deeds and charters, etc., and TEC and the Diocese will try to claim that due to the wording of the deeds and charters, etc., the documents show no such thing. Examination of the documents by the Court should therefore follow a straightforward "neutral principles" approach. Once the court is satisfied that the vestries are indeed qualified trustees for the churches, then I agree the procedures provided by the statute will dictate the outcome.<BR/><BR/>I had not considered your point about what might happen if Judge Bellows finds that the Division Statute is unconstitutional on some ground. On reflection, you are right---nothing would preclude him in such a case from still applying <I>Jones v. Wolf</I> and deciding the case on neutral principles, with a non-arbitrary majoritarian rule thrown in as part of the mix (assuming there is Virginia precedent for such a rule). That's a fascinating point, and I thank you for bringing it to my attention.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-37817988785544678092008-05-29T03:39:00.000-07:002008-05-29T03:39:00.000-07:00Dear Mr. Haley,Thanks for the very interesting and...Dear Mr. Haley,<BR/><BR/>Thanks for the very interesting and thorough post.<BR/><BR/>My understanding of the Virginia situation is that, instead of the Virginia statute being one factor in a <I>Jones v. Wolf</I> analysis, it actually preempts such an analysis: if the statute applies (Judge Bellows found it does) and is constitutional (determination pending), then under state law the usual church-property analysis is not done, and the certifications of parish votes are effective to dispose of the property.<BR/><BR/>Dovetailing with that is my understanding that the typical church-property analysis would still be done if the statute is found to be unconstitutional. Then the question would be how VA will apply <I>Jones v. Wolf</I> (given that it's at least nominally adopted the neutral-principles approach, but hasn't strictly applied it.Jeff Hhttps://www.blogger.com/profile/04662228150180705795noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-57605025118757425302008-05-28T07:57:00.000-07:002008-05-28T07:57:00.000-07:00Scott+, I share your concern about the paradox of ...Scott+, I share your concern about the paradox of having the ultimate authority in a "hierarchy" being a representative body---shades of our American republic, which is also a "hierarchy" of sorts, but in which the Constitution, circumscribed by the concept of "due process," is the Supreme Law of the Land. (There is, alas, no corresponding limitation on TEC's General Convention, or on its Bishops.) Fortunately, as more and more courts realize the benefits and simplicity of the "neutral principles" approach, the consequences flowing from being deemed a "hierarchical church" will be less and less of any consequence.<BR/><BR/>With regard to the Northern California diocese, I have some personal experience there that might be of interest to you. I am going to put my email address in the Profile section for a while in case you would like to get in touch.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-76708740717671161432008-05-28T06:35:00.000-07:002008-05-28T06:35:00.000-07:00Having been involved in a church property matter a...Having been involved in a church property matter a number of years ago, I have followed this with interest. I have trouble with the idea of a hierarchical church whose top authority is a representative democracy body. I think this not according to the generally understood meaning of the hierarchical. The generally understood idea would be that hierarchical authority is granted to some people with special authority. <BR/><BR/>In my reading I know of no other church body which has made claims of property trust, where such trust was not part of the rules of the church when a congregation joined the body. I do not remember if you heretofore cover this, but in Northern California a diocese took the step of having parishes change their deeds to embody the Dennis Cannon.traditionalanglicanhttps://www.blogger.com/profile/13439455356618984238noreply@blogger.com