Category Archives: Property

A Property Settlement In Texas

My most recent post was on “A Matter of Perspective.” Well, as I read the news from Texas yesterday there were certainly multiple perspectives, some might go as far as to call it spin, in the different accounts of a recent property settlement.

The news was that Highland Park Presbyterian Church and Grace Presbytery had reached a mediated settlement in a civil suit brought by the church that allows Highland Park to leave the Presbyterian Church (U.S.A.) and join ECO: A Covenant Order of Evangelical Presbyterians with its property. The headline in the press is that the monetary portion of the agreement has Highland Park paying the Presbytery $7.8 million in the settlement.

What initially caught my attention were the statements from each side with each one having a favorable spin. The church’s statement begins:

After much deliberation and prayer, last night HPPC’s elders, trustees and pastors unanimously approved the settlement agreement previously approved by Grace Presbytery over the ongoing property litigation. This resolves once and for all that the congregation of Highland Park Presbyterian Church owns and controls the assets of Highland Park Presbyterian Church, free and clear of any claims by the PC(USA). This result achieves HPPC’s goal in the litigation of clarifying its exclusive ownership and control of its property.

The Presbytery statement (which is reproduced on the PC(USA) news page) lede is:

Highland Park Presbyterian Church will pay $7.8 million to Grace Presbytery in order to obtain both a release of its obligations under the Presbyterian Church (U.S.A.)’s trust clause and ecclesiastical dismissal from the denomination.

And as you might expect you will not find the term “trust clause” in the church’s statement although it is mentioned by the pastor in his video on that page.

The other wording that caught my attention was how the monetary settlement was presented, or spun if you will. There is no question that it is $7.8 million and we are not told whether there is a breakdown for real estate, other assets and past or future per capita or mission giving. But the Presbytery describes the amount as “The $7.8 million settlement figure represents 26% of Highland Park’s “approximately thirty million dollars” of property, as alleged in Paragraph 18 of Highland Park’s amended petition filed in the lawsuit.” By contrast the church statement says “In the settlement, HPPC has agreed to pay Grace Presbytery $7.8 million, or 11% of the fair market value of the approximately $70 million of assets that were at issue in the litigation.”

And both sides cite their experts about the strength of their claims. In an April update the church says “Based on a review of HPPC records from 1925 through the most recent Texas Supreme Court rulings, Prof. Johanson states without a doubt that HPPC holds title to all of its church property and that none of it is subject to any trust agreement with the PC(USA) or Grace Presbytery.” Similarly, the presbytery settlement announcement has the line “Ultimately, three experts in Texas trust law retained by Grace Presbytery agreed that Highland Park’s agreement to hold its property in trust for the use and benefit of the denomination was enforceable under neutral principles of Texas law. ”

Since Highland Park initiated the lawsuit it is interesting to consider their reasons for settling at this time. The stated purpose of the lawsuit was to clarify the nature of the trust clause and ownership of their property under Texas law – something that is not clear at this time as I will discuss in a minute. A follow-up letter from the session provides some additional reasons including that the legal filing will provide a shield and time for the church to look at its options.

In the video statement from the Pastor and Head of Staff TE Bryan Dunagan regarding the settlement he does talk about the witness of the legal proceedings saying:

“We believe that it would not be a good witness to the community of Dallas to allow this litigation to run its course in the court system. Moving forward with a prolonged court battle would jeopardize our mission, our outreach efforts and our ongoing ministry for years to come.”

While I accept and respect that statement, for those of us that have been through this we know there are also plenty of practical reasons to settle. In particular it allows the church to put the case behind them and move on. It is also a matter of counting the cost: What are the chances of prevailing in the courts a couple of years from now versus what can we settle for now.

In the end each side seems to have gotten an important result. The church has gotten their dismissal with property from the PC(USA) and in the $7.8 million payment the presbytery – and by extension the denomination – has gotten a tacit acknowledgement of the trust clause.

Which brings us to the future of the trust clause in Texas…

The most advanced case regarding the trust clause and the application of Texas’ neutral principles test is a case in The Episcopal Church – Masterson and others v. Diocese of Northwest Texas and others. In the trial court the Diocese, representing The Episcopal Church, was granted summary judgement and on appeal it was affirmed. However, the Texas Supreme Court in their decision considered the issue in light of neutral principles, overturned the summary judgement and sent it back down to the trial court for a full hearing.

While Highland Park mentions this decision as a favorable sign for them in their early communication, I don’t think a particular church in a hierarchical denomination in Texas should jump to conclusions too quickly.

Let me begin by saying that I found the court decision, written by Justice Johnson, an interesting read and actually a great primer on the legal theories of church property law and their development.

When the decision gets to its final summary of Texas law, it says this (pg. 18-19, emphasis added):

The method by which this Court addressed the issues in [ a previous Texas case Brown v. Clark, 1909, ] remains the appropriate method for Texas courts to address such issues. Courts do not have jurisdiction to decide questions of an ecclesiastical or inherently religious nature, so as to those questions they must defer to decisions of appropriate ecclesiastical decision makers. But Texas courts are bound to exercise jurisdiction vested in them by the Texas Constitution and cannot delegate their judicial prerogative where jurisdiction exists. Properly exercising jurisdiction requires courts to apply neutral principles of law to non-ecclesiastical issues involving religious entities in the same manner as they apply those principles to other entities and issues. Thus, courts are to apply neutral principles of law to issues such as land titles, trusts, and corporate formation, governance, and dissolution, even when religious entities are involved.

We recognize that differences between ecclesiastical and non-ecclesiastical issues will not always be distinct, and that many disputes of the type before us will require courts to analyze church documents and organizational structures to some degree. Further, deferring to decisions of ecclesiastical bodies in matters reserved to them by the First Amendment may, in some instances, effectively determine the property rights in question. See Milivojevich, 426 U.S. at 709-10; Brown,116 S.W. at 364-65. Nevertheless, in our view the neutral principles methodology simply requires courts to conform to fundamental principles: they fulfill their constitutional obligation to exercise jurisdiction where it exists, yet refrain from exercising jurisdiction where it does not exist. The neutral principles methodology also respects and enforces the manner in which religious entities and their adherents choose to structure their organizations and their property rights in the same manner as those structures and rights are respected and enforced for other persons and entities.

As I read this decision, and particularly the highlighted section of the second paragraph, the high court seems to be leaving open the possibility that in a hierarchical denomination the ecclesiastical structure could be considered off limits to the courts and as such may “…effectively determine the property rights in question.” This will of course have to go to trial in the Masterson case and then most likely be tested and interpreted on multiple rounds of appeal. But the hole the Texas Supreme Court decision seems to leave for ecclesiastical independence might be large enough that this decision is not a simple win for neutral principles but could be much more complicated.

So with Highland Park out of the legal mix that won’t be a Presbyterian test case for Texas, but it will be interesting to see how the Masterson case ends up as it winds its way back through the courts over the next couple of years.

So as each party in this dispute finds something positive in the settlement and the case is ultimately kept from going to trial, we wish them all well and we will see how the legal landscape in Texas develops.

UPDATE: After publishing this two other items were published that relate to this:

An article in the Christian Post has quotes from the church’s communications director and says that the $7.8 million figure was arrived at by taking the $70 million fair market value of the assets and taking 11% of that based on the percentage of members who voted “no”.

On the Layman website Carmen Fowler Laberge asks “Why did Highland Park settle?” and has an analysis much like mine above, although she reaches slightly different conclusions.

PC(USA) GAPJC Decision — Presbytery Of NYC v. McGee And Others

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Last weekend the General Assembly Permanent Judicial Commission (GAPJC) of the Presbyterian Church (U.S.A.) heard a remedial case brought against the Presbytery of New York City (PNYC) concerning details and process related to their Gracious Dismissal Policy (GDP). The complainants filed the case against the Presbytery concerning irregularities in the Gracious Dismissal Policy shortly after it was adopted. The Synod PJC agreed with the complainants and the Presbytery appealed it to the GAPJC.

The Executive Summary is that the GAPJC sustained none of the specifications of error in the SPJC’s decision, the GDP has been rendered null and void, and this decision has given other presbyteries something to think about. The first specification of error dealt with the claim that the PNYC GDP “conferred a unilateral right on a congregation to depart from the Presbyterian Church (U.S.A.).” The second was that the GDP “does not give effect to the Trust Clause.” Specifically, PNYC had specified a formula in their GDP for compensation for property and the GAPJC reaffirmed that this must be determined on a case-by-case basis. The third specification of error related to dismissal simply because there were theological differences. The GAPJC said:

It is the nature and weight of theological difference that is critical in a justification for dismissal. The mere presence of theological differences does not preclude coexistence within the PC(U.S.A.).

The fourth specification may be, from my experience, the one with the most implications. It was in regard to a congregation in schism and the GAPJC responded that “It is clear what a presbytery must do when confronted with a property issue… a presbytery is obligated to serve the interests and guard the rights of the ‘true church
within the Presbyterian Church (U.S.A.).” The final error related to PNYC allowing churches to retain their records.

OK, now let’s drill down into the detail.

In the matter of Presbytery of New York City Appellant (Respondent) vs. Ruling Elder Mildred McGee, Teaching Elder Flora Wilson Bridges, Ruling Elder Douglas Howard, Teaching Elder Lonnie Bryant, Ruling Elder Daniel Amiot Priso, Teaching Elder Phillip Newell, Ruling Elder Emmanuel Gouad Njayick, Teaching Elder George Todd, Ruling Elder Estella Taylor, and Ruling Elder Norita Chisolm, Appellees (Complainants) in Remedial Case 221-08 the GAPJC did not sustain any of the five specifications of error the Appellant charged regarding the trial decision before the Permanent Judicial Commission of the Synod of the Northeast.

The case results from the PNYC adopting a Gracious Dismissal Policy on January 29, 2013 by a vote of 56 in favor and 49 against. The complainants filed a remedial complaint with the SPJC on February 13, 2013 and along with the complaint a request for stay of enforcement, which was granted. The complaint was filed specifically in regards to the adoption of the GDP and not in connection with the application of the GDP in the dismissal process of a church as was the case in the Tom and Anderson cases (noting that the latter was a complaint to a SPJC which was settled in mediation).

The complainants listed seven charges in their complaint and in the decision of the SPJC five of the seven charges were sustained. There is a direct relationship of these five sustained charges in the SPJC decision to the five specifications of error in the GAPJC decision so I will not dwell on those any longer. The respondent appealed the SPJC decision to the GAPJC.

The first specification of error by the respondent was that “The SPJC erred in constitutional interpretation by holding that the Presbytery GDP conferred a unilateral right on a congregation to depart from the
Presbyterian Church (U.S.A.)…” This stems from a number of details of the GDP and a general sense in the GDP that if a church fulfills a certain set of steps it will be dismissed. In particular, there is no requirement that the presbytery votes to dismiss the congregation. The argument was put forward that since the presbytery approves the GDP that counts as their approval of any and all dismissals that follow the GDP.

This particular requirement is specifically addressed in a set of additional comments in the SPJC decision about the challenges of decision making in a narrowly divided presbytery:

We are sensitive to the difficult situation in which the PNYC finds itself and appreciate its sincere desire to deal with that as well as it can. [snip] Considering that the presbytery mustered a majority vote, however slim, for the GDP under consideration in this case, and with the case-by-case requirement satisfied in these cases, it ought to be possible for the PNYC to reach agreement on approval for such dismissal arrangements.

The GAPJC echoes this comment in their writing on the first specification of error:

While it may be understandable for a presbytery to develop a policy dealing with congregations considering dismissal with the intention of avoiding costly litigation, the GDP at the center of this case breaches the bounds of the Constitution of the PC(U.S.A.). [snip] A final vote by the PNYC is purposefully denied in the GDP in order to avoid divisive and argumentative response to a dismissal request, as admitted by the PNYC in the record and during arguments.

In responding to, and not sustaining, this specification of error the GAPJC finds three constitutional irregularities with the PNYC GDP: 1. The GDP is “self-executing” having the congregation jump through three hoops and meet the payment requirements in the GDP and dismissal will be granted. 2. The last of the three hoops is a congregational vote making that the effectual step of dismissal. And 3. “that a predetermined, formulaic mechanism runs counter to constitutional provisions for mutual dialogue and particular discernment.”

The GAPJC decision notes that the Constitution at G-3.0301a and G-4.0207 “reserves as a direct act of the presbytery the authority to dismiss a church,” thus arguing against the first two constitutional issues. Furthermore, case law helps clarify the latter two issues. In Sundquist v. Heartland Presbytery (219-03) the GAPJC affirmed “Withdrawal from the Presbyterian Church (U.S.A.) is not a matter that can be considered at a congregational meeting.” In the case of formulaic application in polity matters the GAPJC ruled against that in ordination matters in the case of Larson v. Los Ranchos Presbytery (221-04).

The second specification of error was that the SPJC had erred regarding its decision “that the GDP does not give effect to the Trust Clause.”

This issue relates back to the various formulas incorporated into the GDP to determine payments to the presbytery for dismissal and specifically a payment of 10% of the assessed value of the property. The GAPJC decision reiterates the findings in the case of Tom v. San Francisco Presbytery (221-03) and continues on to say:

Under the facts of this case, the PNYC argues that the requirement of due diligence under the Trust Clause has been met by adopting a formula for determining the value of the property at the time of enacting the GDP by the PNYC. However, the fiduciary nature of the Trust Clause requires an individual determination of the facts and circumstances related to dismissal of any church rather than a set formula, which may not be appropriate to the particular circumstances of a congregation. As stated by the SPJC, there must be an “individual assessment and valuation of the church’s unique situation, finances, history, spiritual needs and financial needs” when considering dismissal.

and

In addition, the exercise of the fiduciary duty must be carried out during the course of discernment of a particular church’s request for dismissal. A formulaic predetermination fails to account for the individualized requirement demanded by proper application of the fiduciary duty incumbent upon a presbytery.

and finally

Thus, the presbytery, in exercising its authority to perform due diligence under the fiduciary duties required by the Trust Clause, is required to make an appropriately timed, individual, unique determination of the circumstances applicable to any church requesting dismissal. In accountability to the PC(U.S.A.) as the beneficiary under the Trust Clause, such determination must be reasonable and based on documented facts.

With the third specification of error we begin to get into fresh territory with this decision, that being polity areas without substantial previous case law or interpretations. The specification is: The SPJC erred in constitutional interpretation by holding that the GDP did not provide specific guidance regarding discernment of theological differences as a basis for dismissal, in violation of F-1.0302a and F-1.0301.

The GAPJC begins their brief response to this specification saying:

The PNYC adopted the GDP “to provide for reconciliation and resolution within the Presbytery of New York City” and to permit their congregations to be dismissed to join another Reformed denomination for theological reasons. The policy did not seek reconciliation and resolution as the initial step in the process (G-4.0207). The policy accepts notice from a congregation of perceived theological differences as sufficient for dismissal without concern for mutual discernment and dialogue (Sundquist). It is the nature and weight of theological difference that is critical in a justification for dismissal. The mere presence of theological differences does not preclude coexistence within the PC(U.S.A.).

The section concludes with this:

The SPJC rightly concluded it was important that the PNYC “ensure that dismissal is the only viable remedy for the relevant theological differences.”

The fourth specification of error also helps to clarify an area that seems to be an occasional but potentially murky situation – the deference to be shown to a minority who indicate their loyalty to the PC(USA). The specification of error concerned “that the GDP did not provide an opportunity for the minority of a church in schism to retain the
property of a congregation.”

The GAPJC decision notes that in the formulaic dismissal process adopted by the PNYC there was no consideration of G-4.0207 and the determination of a true church in the group wishing to stay with the PC(USA). The second paragraph of this response puts this in more general terms:

It is clear what a presbytery must do when confronted with a property issue. Under G-4.0207, a presbytery is obligated to serve the interests and guard the rights of the “true church within the Presbyterian Church (U.S.A.),” regardless of who is in the majority of any session or congregational vote. The presbytery shall determine if one of the factions is entitled to the property because it is the “true church within the Presbyterian Church (U.S.A.),” majority notwithstanding. Any negotiation and decision about the disposition of the property must consider this interest of the true church. The GDP failed to comply with G-4.0207.

The Diversity Of Dismissals From The PC(USA)

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As regular readers know I have not just been following the many twists and turns of the dismissals of churches from the Presbyterian Church (U.S.A.) as an outside observer but at the level of my own presbytery I have found myself deeply involved in the process. And so it is with a great deal of interest that I have been following the recent news about dismissals of churches elsewhere. And while I have been seeing the mainstream media focusing on the “stay or go” side of the story, because of my level of involvement locally I have a great deal of interest in the fine details of the terms under which the churches are considering dismissal. My intent today is to drill down a bit into that aspect of the story with regards to two recent cases.

First, I did want to reflect for a moment on how dismissals have changed over the last two or three years. I have always been intrigued that before about three years ago the largest churches in the PC(USA) seemed to be staying with the denomination even if they were expressing concern about the direction that the church was headed. From my discussions with others the reasons seem to be two-fold. The first is that they did not see a good place to go. The only destination similar enough to the PC(USA) for most to even consider was the Evangelical Presbyterian Church (EPC) and over the years there were a good number of churches that headed in that direction to the extent that now the EPC has more than doubled in size based on the number of congregations. But as the EPC was working through these growing pains it was generally not seen as a good destination for what passes as a mega-church in the PC(USA). With the founding of ECO: A Covenant Order of Evangelical Presbyterians in 2012 a more suitable destination was available.

To be completely accurate, one of the churches on the list, First Presbyterian Church of Orlando, did transfer to the EPC. But while it was the first on the list of largest churches to depart it was at about the same time that ECO was founded and another church, First Presbyterian Church of Colorado Springs, began their dismissal process soon after.

The second reason is that the PC(USA) was trying to work out what was meant by Gracious Dismissal. As I will talk about in a minute, it looks like we still are. So while the motion was passed by the 218th General Assembly in 2008 it appears we have reached a point where a number of the kinks have been worked out and there is some greater understanding of what might be involved. This was aided by the General Assembly Permanent Judicial Commission’s decision in Tom, et al. v. Presbytery of San Francisco (Tom decision) that somewhat clarified the application of the Trust Clause in these matters.

So, we have transitioned from a point where none of the 15 largest churches in the denomination were actively moving towards departure just a few years ago to the point today where several have or are considering it. If we consider the 2011 list of the 15 largest churches in the PC(USA) there are two churches that have now been formally dismissed ( including FPC Orlando to the EPC ) and three more that are in the dismissal process, at least at the beginning of this month…

Which brings us to one of those churches that voted this past Sunday and in doing so decided to stay with the PC(USA) – First Presbyterian Church of Houston.

As I mentioned above, the media story here has been “stay or go” and while there was a strong majority of the membership that voted to transfer to ECO they fell 36 votes short of the 2/3 supermajority required in the dismissal agreement with Presbytery of New Covenant. This was out of a total of 1,681 members who voted.

One article from the Houston Chronicle gave these thoughts from pastor and head of staff, Teaching Elder Jim Birchfield:

“This is the toughest possible outcome in many people’s minds,” Senior Pastor Jim Birchfield
said. “To fall a few votes short will be very tough for them. I’m a
little bit disappointed. I came out very strongly and passionately in
favor of (the move).”

Birchfield said it was too early to assess the long-term
repercussions of the attempt to switch denominations, and he declined to
predict whether some members will leave the church as a result. He said
his immediate task is to begin smoothing over the differences for the
sake of keeping the 3,100 member church intact.
“We have to begin reconciling the two sides, and that will begin
immediately,” he said. “We’ll also begin reconciling among the
leadership. For the most part, we have had a very gracious debate.”

I would note that there is a longer article from the Chronicle available to digital subscribers.

Other news sources covered similar aspects of the meeting with the Texas Tribune providing this description of the debate:

For more than an hour on Sunday, church members provided testimony for and against leaving PCUSA, some of it tearful.

Those in favor of leaving PCUSA spoke of the national organization’s
“theological drift” and called for a more “Christ-centered theology.”

and

Opponents of the switch argued for theological diversity. PCUSA does
not require churches to ordain openly gay pastors if they choose not to.
They bemoaned what they saw as inevitable fallout from the decision,
and said that appealing to stricter evangelist views would only further
isolate young members from the church.

In particularly fiery testimony, one opposing member said she feared
the switch would make her “a member of a congregation that distinguishes
itself by its homophobia.”

For a more nuanced look at the meeting I would refer you to the article from the Presbyterian Outlook which has a bit more on the process and procedure.

But returning to the Texas Tribune article, one paragraph caught my attention and I want to use it as the starting point to drill down a bit. They describe the property of the church like this:

First Presbyterian of Houston was an obvious target for the fledgling
denomination. The Houston church has roughly 3,100 members, owns
property valued at more than $100 million and boasts an $18 million
endowment. The church is 175 years old.

Now consider the material that was provided by the church from a link that was on it’s Season of Decision web page. The link has now been removed but as of this writing the document with the details of the terms for possible departure is still available. (But could disappear soon.) Besides the rationale for the departure the document has some legal notes, the report of the presbytery team and the details of payments the church would have had to make to the presbytery. I have not figured out which of the two listed options would be used but the larger of the two would have been payments to the presbytery on a five year declining scale totaling $343,236. The rationale for the amount is not given and based upon negotiations in my own presbytery I would not expect it to be so. But for a $100 million property and $18 million endowment it seems like a pretty good deal. This will become more apparent in a minute.

One other item on that page caught my attention, particularly in light of the actual vote tallies, and this could have changed this picture dramatically. While no specifics or formulas are given there is this paragraph about additional payments:

There are two additional payments that might be made to Presbytery. The amounts are not known at this time. If the required majority votes to be dismissed and more than 10% of our congregation vote to remain in PCUSA, and a petition to start a new church is signed by more than 25 members, and Presbytery approves the new church start, we will owe a payment to start a new church. In addition we will likely be required to make a voluntary gift to the Presbytery’s New Church Development Fund.

It is interesting to wonder about the what-ifs had those extra 36 members been there and the vote had gone the other way, but just barely, what the magnitude of these payments would have been. (And I had to smile at the language about being “required to make a voluntary gift…” Probably a required gift of a voluntary amount.)

Let us now turn our attention to another vote, this time at Menlo Park Presbyterian Church in San Francisco Presbytery scheduled for this coming weekend. When I started hearing details of this church dismissal I had to think that the presbytery was taking the instructions in the Tom decision very seriously:

When a congregation seeks dismissal under G-11.0103i (now G-3.0301a), it is the responsibility of the presbytery to fulfill its fiduciary duty under the Trust Clause. This fiduciary duty requires that the presbytery exercise due diligence regarding the value of the property of the congregation seeking dismissal. Due diligence, of necessity, includes not only an evaluation of the spiritual needs of the congregation and its circumstances but also financial analysis of the value of the property at stake. Payments for per capita or mission obligations are not satisfactory substitutes for the separate evaluation of the value of the property held in trust.

According to the information on the church web site the payment to the presbytery will be $8.89 million if the congregation votes to accept the terms and request dismissal. Yes, it is 1.5 orders of magnitude larger than the terms that FPC Houston got. In addition, for FPC Houston the quorum requirement was 30% of the membership, it is 50% for Menlo Park. And the required supermajority is 3/4 for Menlo Park while it was the 2/3 for FPC Houston. The differences due to presbytery policy are striking for two churches of very similar size (3,567 members for FPC Houston and 3,382 members for Menlo Park according to the 2012 list). As my title says – The Diversity of Dismissals.

The PC(USA)’s polity places dismissals firmly in the authority of the presbytery and each church was obliged to deal with their presbytery in coming to an agreement about the terms of dismissal. One of the places that Menlo Park discusses the terms of the agreement is in Pastor John Ortberg’s February 2nd sermon. In there he talks about the process of arriving at these numbers saying:

Where did this figure come from, and why is it so high? Sorry for the complexity around this, but we want to be as transparent as we can. From the perspective of our church, part of what is suboptimal in our current denominational system is that there are no clear objective guidelines to arrive at a financial figure in a process like this one.

But regarding this financial number, in looking at a lot of the material on their web site I have not seen a breakdown of where this number actually comes from, if there is per capita, mission, property and new church development built into it.

For more details about the voting process there is a short video clip online from February 16th where Ruling Elder Ken Perez discusses what is coming up. In that discussion he also announces that a 5 year reversionary clause on the main property has been added by the presbytery to the terms of the agreement. The church’s main web page about the dismissal has a lot of information and there is another page devoted to this weekend’s vote.

Let me return to TE Ortberg’s February 2nd sermon for a moment and highlight a couple of the comments he made. In his discussion he talks about the various options the congregation has relative to the large cost of departure. Besides paying the millions of dollars, one option is that they could turn down the offer and stay. Another is that they could walk away from their property. He discusses how neither of these fits the missional vision of the church. The fourth option is litigation and he responds to that option this way:

We could say, “We’ll go to court.” However, we think public litigation would be a bad witness for the church. It’s not good for the bride of Jesus. It’s not what God is calling us to do, and nobody wanted to do that.

While not doubting that this is their rationale in avoiding this path, and respecting them greatly for it, it is also worth noting that based on case law in the State of California, specifically the Episcopal Church Cases decided by the State Supreme Court, they would have an uphill battle in retaining control of the property through civil court.

I want to make two final comments about Menlo Park PC’s missional vision as expressed in a couple of different places. In the church’s online material the argument that is regularly presented for transferring is that the necessity of working with the presbytery is burdensome and getting in the way of their missional vision. As TE Ortberg says in that February 2nd sermon:

As you all know, we have a vision. We believe we have a mission. We want to reach thousands of people for Jesus Christ around this Bay Area that needs him so much. We want to launch new sites to help us do that.

We believe we simply cannot do that effectively if we remain in the denomination.

And this is a sentiment that is echoed in the comments by RE Perez where he talks about the issues they have had with the presbytery. Instead of emphasizing what may be a mismatch in the visions of the two governing bodies it sounds to my listening that he is leaning to a more congregational form of government and he wants to get the presbytery out of the way so the church can have more autonomy and flexibility.

Taking this one step further, as I look at all this material throughout it there is a tendency to speak of problems with the denomination when some of the issues are specifically with the presbytery. Picky polity point I know, but we do work on hierarchical structure where presbyteries do have identities and some autonomy from the synods and the General Assembly. It strikes me that the PC(USA) is getting painted with too broad a brush.

The second item I wanted to mention is a good article from The Almanac titled Changes Ahead for Menlo Park Presbyterian Church. In some ways I think the article does a better job of in explaining the church’s vision than the church’s own online material does. For example, it does discuss the issue of the church wanting to expand as a multi-site church while running up against the limitations of geographic presbyteries. It says:

MPPC Communications Director Nicole Laubscher
said ECO’s 110 churches are organized into nine presbyteries by both
geography and similarity, such as size, as opposed to geography alone as
done by the Presbyterian Church (USA).

“For us it’s about the pace of change,” she
said. ECO offers more flexibility, whereas PCUSA is designed for small
churches in a single location. “It creates tremendous barriers.”

When MPPC first sought to expand outside Menlo
Park, she said, “It was really hard. At the time, we didn’t know if we
would just get a no. Instead of being supported, encouraged and helped,
it was another barrier to hurdle. … it’s just not the right framework
to support a larger, multi-site church.”

In PCUSA, the presbytery, or regional
governing body, is responsible for planning and placing new churches.
Tom Conrad, chair of the PCUSA team selected to deal with the proposed
departure of the Menlo Park church, agreed the concept of opening
multiple sites doesn’t fit well with that organization’s system; as a
result, there are “precious few” multi-site churches.

The article also does a good job of exploring the downside to the dismissal agreement.

Some former and current members of MPPC said
they think the theological differences are influencing the church’s
desire to change organizations.

Debra Holvick, who stopped attending several years ago, got re-involved to be able to participate in the upcoming vote.

“This was the church I was baptized in, I went
to Sunday school there, I was married there, my father’s memorial was
held there, my mother remarried there and my children were raised
there,” she told the Almanac. “That church has been a huge part of my
life, so I felt responsible for it and I don’t want them to take it in
an unchristian-like direction and say this is part of who I am.”

Ms. Holvick said taking a stance against gay
clergy and same-sex marriage may not be a major motivation for changing
denominations, but it does come with the package.

Later on there are comments about whether the almost $9 million buy-out price could be “better spent funding scholarships and buying food for those in need in the local community…”

So we wait for the meeting this Sunday to see how the congregation as a whole discerns the will of God regarding its future affiliations. Stay tuned…

[Ed. note: For the record, I did resist using the cliché “Houston we have a problem” as a subtitle to this post. But yes, another post and its correction did use a variation on it.]

Top Ten (Plus) Presbyterian News Topics of 2013

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As we spend this day looking back I thought I would once again post my personal list of the top ten news topics related to Presbyterians around the world from 2013. In this list I deliberately use the term “topics” because, as you will see, there were a number of parallels in the different branches when it came to certain items.

And so here, in no particular order, are my picks for the top ten news topics of 2013…

Elections, Elections, Elections and a Referendum

This fall it seemed that various Presbyterian branches were regularly linked with elections happening in their state or country. The list includes the Presbyterian Synod in Mizoram state in India asking for – and getting – a change in polling dates, CCAP synods defining the terms for political involvement of clergy running for office and commentary from the Presbyterian Church of Ghana on election decisions.

Falling into this category is the work of the Church of Scotland running forums and debates ahead of next year’s Scottish independence referendum.

Disasters

Somehow the natural disasters, and the global Presbyterian response, for this year stick out more than in previous lists and it includes damage done in a tornado outbreak in the central U.S. in May and typhoon Haiyan in the Philippines in November.

World Hotspots

The variety that could be included here is pretty large but let me mention Presbyterians speaking out to two of them – the response against attacks on Syria (e.g. PC(USA) ) and those speaking out about the violence in South Sudan (e.g. Presbyterian Church in Ireland).

In a particularly moving story, a Church of Scotland pastor lost many members of his family in an attack on a church in Pakistan and spoke of forgiving the attackers.

New Presbyterian Leaders at Seminaries

Four Presbyterian teaching elders were named, approved and/or installed at seminaries in the Presbyverse: Rev. Dr. Stafford Carson at Union Theological College, Belfast; Rev. Dr. M. Craig Barnes at Princeton Theological Seminary; Rev. Dr. Mark Labberton at Fuller Theological Seminary; Rev. Dr. J. Ligon Duncan at Reformed Theological Seminary.

Church of Scotland General Assembly Middle Way on Same-sex Issues

The Church of Scotland General Assembly dealt with ordination and marriage issues and rather than adopting one of the two options presented by their Special Commission chose a middle option that affirmed past teaching while opening the door to congregations being able to dissent. This led to their speaking against the proposed legislation in the Scottish Parliament that would permit same-sex marriage and asking for robust religious protections. In addition, the compromise solution was not completely satisfactory to the whole church and a few pastors and congregations have left.

Congregational Loss in the PC(USA) and Gracious Dismissal

In the Presbyterian Church (U.S.A.) 2012 Membership Statistics for the first time ever the number of churches transferred out of the denomination (110 churches) was larger than the number of churches dissolved (86 churches).

Associated with this was the emphasis on presbyteries having Gracious Dismissal Policies and fairly generous allowances to be dismissed with property, although there was at least one PJC case and some civil litigation, e.g. Caldwell and Highland Park.

Re-purposing Church Buildings

Along with the dissolution of churches comes the question of what to do with the property? Although to be fair this also may be a question if the church outgrows their existing property. Answers this year include a residence in Scotland, a restaurant in Belfast, and maybe a town hall in Maryland. In addition, there were several, at least, demolished and controversy down under with a presbytery of the Uniting Church proposing to close churches and sell off the buildings to satisfy debts.

With that I have hit all the cross-branch and big-topic themes that I ranked highest and have to decide on the last three from a field of several worthy and interesting candidates. Well, this is my blog and I can adjust the rules so here are five more…

The BBC Northern Ireland produced a documentary on Irish Presbyterians called “An Independent People”

Also from Northern Ireland, there was an agreement that the leaders of the failed Presbyterian Mutual Society would be ineligible to head up other companies and word of at least one bank that declined the offer to take over the failing institution.

The work of the Truth and Reconciliation Commission regarding the dark history of native residential schools continues in Canada and this year the Commission was addressed by the Moderator of the Presbyterian Church in Canada and the church issued a formal apology to Kenora residential school survivors.

The U.S. Department of Health and Human Services last year issued guidelines on what was required to be included in employee health care plans and several Presbyterian-affiliated organizations objected to the contraception mandate. This year at least two, Geneva College and Westminster Theological Seminary, won court cases exempting them from the HHS mandate. Review by the U.S. Supreme Court is expected so this may come back again next year.

And the Presbyterian Publishing Corporation issued a new hymnal, “Glory to God”, but not without a little controversy about one hymn that was originally to be included but deleted when a slight word change was not approved by the authors.

And there you have my suggestions for the top ~~ten~~ twelve Presbyterian news topics of 2013. Your mileage may vary.

So as we look ahead to 2014 – and many of my friends around the world are already there or now busy celebrating Hogmanay – I wish all of you a very Happy New Years and best wishes for the coming year.

Church Dismissals In The Synod Of Southern California And Hawai’i — Part 1

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It was just about one year ago now that at a special called meeting of the Presbytery of San Gabriel two churches were dismissed to ECO: A Covenant Order of Evangelical Presbyterians (ECO). In this two part piece I want to discuss the journey that this started as well as take an analytical look at where a couple of presbyteries in the synod are headed at this point. I don’t know if this first part is of any interest to others but what I first envisioned as a brief intro to where the synod is has now turned into its own moderately detailed discussion of my experience with this case. If you just want to see the quantitative analysis feel free to just jump to Part 2.

Part 1: Judicial Case Against The Presbytery of San Gabriel
On 20 October 2012 at a special meeting of the Presbytery of San Gabriel the dismissals of Glenkirk Presbyterian Church of Glendora, CA, and the First Presbyterian Church of Covina, CA, were approved. Polity wonks may recognize the timing of this action was just before the Synod Permanent Judicial Commission (SPJC) rendered its decision in the case of St. Andrews Session v. Presbytery of Santa Barbara (St. Andrews decision) and the General Assembly Permanent Judicial Commission (GAPJC) decided the case of Tom and others v. Presbytery of San Francisco (Tom decision).

Relevant to the San Gabriel action the St. Andrews decision called into question the validity of ECO as a reformed body and the Tom decision raised some issues with the details of the process and the terms of dismissal. The leadership of San Gabriel recognized the implications of both of these cases and began a process to take actions to bring future dismissals into compliance and to try to remedy deficiencies in the two dismissals already approved. In addition, a revision of the Gracious Dismissal Policy (GDP) included not just the specific requirements of the Tom decision but also the numerous lessons learned from the first application of the policy.

However, a remedial case was filed by 12 members of the presbytery specifying nine defects in the presbytery action based on the St. Andrews and Tom decisions. The SPJC accepted the complaint and issued a stay of action putting the dismissal of the churches on the agreement date of 31 December on hold. San Gabriel Presbytery itself put on hold all additional requests for dismissal and other presbyteries in the synod also stopped or slowed down their dismissal processes waiting for the outcome of this case since it might clarify the earlier SPJC decision about the status of ECO as a reformed body.

Before I go any further I need to do the full disclosure thing: I was asked and agreed to serve on the Committee of Counsel that responded to the complaint. Therefore, while I had a front row seat for this judicial process that seat was from the defense table so I have a particular perspective on all these proceedings. In addition, the comments, views and perspective that I will be sharing here are mine alone and, expect in the rare instance I state otherwise, do not necessarily reflect the perspectives and opinions of the other two members of the Committee of Counsel, our legal help, or the leadership of the presbytery.

Following the decisions the presbytery set about to try to retroactively fulfill the spirit of the St. Andrews and Tom decisions by doing three things. The first was to begin the previously mentioned revision of the Gracious Dismissal Policy. The policy was extensively rewritten, incorporating both the lessons learned as well as a great deal of language taken directly from the Tom decision, and this new draft policy was distributed early in 2013. Three opportunities were provided at open sessions outside of regular presbytery meetings for members of presbytery to ask questions and provide feedback. A first reading was done at the March presbytery meeting and the revised GDP was approved by the presbytery at the May meeting with a couple of amendments from the floor to the gracious dismissal process.

While the new GDP is loaded with procedural adjustments based on lessons learned, there are to my mind two significant changes based upon the Tom decision. One is the now explicit requirement for the consideration of the value of the property and the implications of the trust clause in the negotiated agreement with churches and the presentation to the presbytery. The second is the explicit inclusion of the requirement that a 10 year reversionary clause be included in any agreement so that if within the first 10 years after dismissal the church would leave a reformed body the property would revert to the presbytery or the church would have to make payment for the property. This was a point of a lot of discussion — not whether or not to have the reversionary clause but what to actually put in the GDP. In the modern world of the PC(USA) there is a line of thought that you don’t specify numbers in policy documents but take everything on a case-by-case basis. So there was discussion about whether to specify a number and if a number was specified whether to make it binding or advisory and how large a number to put there. It is worth noting that in the debate around these matters the two dismissed churches made it clear that they intended the switch to ECO as a permanent move and not a quick route to independence. I sensed that a few in the presbytery were skeptical of this claim but time will tell.

The second action the presbytery took was to hold a stand-alone debate and vote to approve ECO as a reformed body that a church can be dismissed to. In the original action this was bundled into the dismissal vote itself. This passed the presbytery with a roughly 2/3 approval. Following the vote Dr. Jack Rogers was given the opportunity to speak about, among other things, why his expert testimony against ECO in the St. Andrews case applied only to the union presbytery issue and not dismissals of congregations.

Finally, at another presbytery meeting a member of the pastoral engagement team for the presbytery presented all the financial information that the Tom decision now calls for as well as the ministry rational for the agreements negotiated with each of the two churches that asked to be dismissed.

At the same time that this was going on members of the presbytery leadership were meeting with groups of the twelve individuals who had signed the complaint. The objective was to share the steps the presbytery would be taking as well as discuss possible remedies they might be interested in. I was not part of these discussions and so can not speak specifically to them. Furthermore, I can not speak to anyone’s particular motivations, but over the next few months ten of the twelve individuals contacted the SPJC and asked that their names be removed from the complaint.

The two remaining complainants and the Committee of Counsel continued with the judicial process including entering into mediated negotiations and with those negotiations in progress asking for a postponement of a pretrial conference in March. By the time we reached the rescheduled confer
ence in May the complainants had agreed to drop all but the two charges that dealt sepcifically with the trust clause.

It was actually at the May pretrial conference, during an adjournment of the SPJC, that we finally all agreed in principle to a specific framework for a settlement. The SPJC set a trial date and we told them we hoped we would not need it.

Over the next few days the framework was filled in and a final settlement was worked out. This settlement included a statement acknowledging that while the presbytery acted in good faith in the decision of 20 October, in hind sight and with the new guidance of the Tom decision there were details of the process that did not meet that guidance on the implementation of the trust clause. In acknowledgement of the trust clause and the presbytery’s new GDP each church extended the reversionary clause to 10 years. In addition, they each made an additional payment as a symbolic gesture of a payment for the property and in recognition of the legal expenses the presbytery had incurred on their behalf.

Beyond that there was recognition of the revisions to the GDP, of which the complainants had their input, and the presbytery will be asked to send an overture to the 221^st General Assembly asking the Office of the General Assembly to provide more guidance for presbyteries seeking to discern which reformed bodies churches may be dismissed to. The settlement does not however require the presbytery to approve such an overture.

The churches fairly quickly made the necessary changes and payments on their side and in late June they, and their clergy, were transferred to ECO. The new GDP was approved in May and the pending overture is the last piece that needs to be presented to presbytery. Once that happens I am looking forward to having the Committee of Counsel being dissolved, hopefully with thanks.

Some reflection on the experience
First, it is impossible to ignore the emotional toll all this took on me at all points in the journey. I have many friends and colleagues in the two churches that requested and were granted dismissal. I fully understand that they did what they felt they had to do. It did take some doing to say goodbye and then help them on their way as I helped to defend the presbytery’s actions. Similarly, almost all of the original 12 complainants are friends that I have worked with over many years in this presbytery and synod. This was for me very much a family struggle and while I am glad that I could be part of the resolution, I am saddened by how this originally developed and the tensions and, yes, hurt feelings it caused.

Second, I believe that the eight months in which we settled this was
about as quickly as the judicial process would allow. It was done using
the alternative dispute resolution and did not go to trial. There was a
lot of work involved but we could set the pace of the mediation sessions
and make it happen without having to set those dates with the SPJC.

Having
said that, the logical extension is to ask whether this had to go to
the judicial process at all. The two remaining complainants did indicate
their view that the judicial process is an important part of our polity
and they felt it offered them the protection and supervision they sought
in resolving the complaint. From my perspective I would have rather tried to work it out earlier and gone to the judicial process if that failed. However, because of both the timing of the dismissals and the window to file a complaint – remembering that the charges were based upon cases that were decided in the weeks following the original action – the complainants felt time was short and if they were to keep the judicial option open they needed to file the complaint.

Finally, and this is one point where I think I can say my sentiments are shared by the rest of the Committee of Counsel as well as some of the presbytery leadership, I am very grateful for the patient way that the two dismissed churches stuck with us in the judicial process. They were as gracious about the delay as the presbytery was in dismissing them in the first place. We kept their leadership updated concerning what progress was, or was not, being made and when the additional terms were being discussed they might not have been eager to have modifications but they were extremely helpful in making it happen.

So that is a moderate-length version of where the Synod of SoCal and Hawai’i finds itself at the moment. While this case did not go to trial and so did not definitively settle the question of the eligibility of ECO as a reformed body that churches can be dismissed to, the fact that this case is no longer raising that and other questions within the synod means that presbyteries can once again feel comfortable with having their dismissal processes proceed. In Part 2 I take a closer look at the dismissals in three of the synod’s presbyteries.

Two News Stories About Churches And Their Worship Space

Recent Developments With The Church Of Scotland And St. George’s Tron

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Since I first discussed this situation two months ago the “discussion” over the property, the building and its contents, has continued between the departing congregation of St. George’s Tron in Glasgow and the Church of Scotland and in the past week there have been a few major developments.

To very briefly recap the situation, the city centre church’s leadership and congregation expressed concerns over the trajectory the Kirk is on towards allowing the ordination of officers who are in active same-sex relationships. For about a year they considered their relationship with the Kirk and in June voted to leave the Church of Scotland and become, at least for the moment, an independent congregation. While there are some reports of unpaid assessments, the major sticking point, as it is with some other Presbyterian branches, is the property, and the Kirk, through the presbytery, chose to keep the property and not let the departing congregation retain any of it.

Within the past week there have been three important developments. A week ago during an evening service a writ was served on the congregation requiring certain contents of the building to remain with the Church of Scotland. On Sunday December 9 the congregation held their last service in the building and then vacated it. Then, earlier this week the Kirk asked the Charity Regulator to enter the fray and settle the property dispute.

As one individual commented on this blog earlier about these disputes – “There are three sides: Your story, my story and the truth.” From this distance I don’t know where the latter lies but the agreed facts are listed above. Now let me share some of the viewpoints.

The congregation’s side has been well covered in the media and the coverage has been generally favorable to them. The Kirk has been almost silent and this situation has now become a public-relations problem for the Church of Scotland. The Kirk has been bit more active this week with damage control. Yesterday they issued a statement about the whole situation. Regarding the serving of the writ they say:

Messengers at Arms do not – and did not in this case – storm the
building and demand the return of items. It had become apparent that
former office bearers of the Church of Scotland Congregation had started
to remove items that we believe belong to the Church of Scotland from
the building. An interim interdict granted by the Court of Session was
served simply to prevent this continuing, and to prevent the disposal of
items already removed until questions of their ownership can be
resolved. The former minister met the Messengers at Arms in a side room
and the interdict was handed over – all reasonably amicable, we have
been told.

The congregation’s view, or at least the pastor’s story, is presented in a Herald Scotland article which says:

As the Kirk intensified its efforts to reclaim property, more than
100 church members were left stunned when Messengers-at-Arms arrived to
serve legal papers demanding the return of a number of key items.

The church minister, Rev Dr William Philip, described the arrival of
the law officers as frightening and humiliating. He said: “To disrupt a
prayer meeting in that way and demand the organ and other key items that
were gifted to the congregation, just weeks before Christmas, truly
beggars belief.

“Not content to evict us, it seems they are determined to publicly
humiliate our leaders and frighten our members, some of whom are
vulnerable people.

“It is shameful. Having law officers disrupt a church meeting and
intimidate a church is something we associate with China or former
Soviet dictatorships but is the last thing we expected from the
so-called national Church.

It is worth noting at this point that The Scotsman has an article that briefly and equally quotes both sides regarding this incident.

There are some parallels between this situation and one in the PC(USA) back in June of 2005 where a minority group continuing in the PC(USA) disrupted, intentionally or unintentionally, the worship of the break-away majority which then held the property. The incident was particularly news-worthy because the Moderator of the General Assembly, Rick Ufford-Chase, was with the minority and hoping to speak. The initial reports from the Layman described the incident by saying “a
contingent including Rick Ufford-Chase, the moderator of the
Presbyterian Church (USA), tried unsuccessfully to take over the June 26
worship service being conducted by the majority.” On his blog Mr. Ufford-Chase responded and essentially said that he did not realize what he was getting himself into and that the last thing he wanted to do was to intensify the existing divisions. The Layman did report on Mr. Ufford-Chase’s response.

Back to the Tron…

It should be noted that additional writs were served with the pastor, Mr. Philip, saying that one was delivered to his wife at the manse concerning that property and to other officeholders regarding the church building according to The Herald.

The viewpoints are less divergent about the last service in the building for the departing congregation this past Sunday. An article posted by the Christian Institute describes the service this way:

On Sunday 500 people packed St George’s Tron for the minister’s last sermon at the venue.

He spoke about the difficulties faced by those who would stay true to
the Bible’s teachings and “make a life investment with Jesus”.

He made reference to the Church of Scotland’s “refusal of any terms on which we might continue to use the facility”.

The Herald notes that the congregation departed singing “A Safe Stronghold our God is Still,” an English version of Martin Luther’s Ein Feste Burg

“These things shall vanish all; the City of God remaineth,” were the words that echoed as their last Sunday service ended.

There
were hugs and tears as the congregation closed the doors of the church
from which they have been evicted, despite contributing £2.6 million to
its refurbishment.

An article in the Scotsman also covers the last service in the building and has a number of quotes from members of the congregation regarding their view on the situation.

Having been unsuccessful in negotiating the disposition of the property and the Kirk having the interdict served, the Church of Scotland has now asked OSCR (Office of the Scotland Charity Regulator) to decide the varying claims on the disputed buildings and contents. It is covered by the BBC and mentioned in the Kirk statement, saying:

When access [to the property] was finally granted [to Church of Scotland Trustees] last week it was apparent that many
items had been removed from the building that we believe belong to the
Church of Scotland. Yet again they seem to be asserting their rights to
these items through action without any willingness to discuss matters
with us.

To claim that the Church of Scotland is acting in a
heavy handed manner is, in our opinion, merely an attempt to divert
attention away from the real issues here. These are nothing to do with
differing theologies, but about ownership of charitable assets, and the
questionable financial management of the former congregation – in
particular the legality of the transfer of assets of the Church of
Scotland to the Epaphras Trust before the individuals chose to leave the
Church of Scotland. We have therefore written to OSCR to raise our
concerns about the legality of this, as we consider we have a duty to do
under charity law.

As you may have noted in this post this situation has deteriorated into a war of words. Among the strongest is the statement made by Mr. Philip that I quoted above when he told the Herald Scotland, among other things, that “Having law officers disrupt a church meeting and
intimidate a church is something we associate with China or former
Soviet dictatorships but is the last thing we expected from the
so-called national Church.”

The Kirk statement responds to this saying

The claims made by the former minister and his supporters are extreme.
To claim that the Church of Scotland is persecuting them, intimidating
them and acting like a dictatorship does not stand up to examination.
Since they announced that they were leaving the Church of Scotland last
June – a decision which caused a great deal of sadness in the Church –
we have gone more than the extra mile to persuade them to stay, to enter
into meaningful discussions with them over the Church of Scotland
assets they lay claim to, and to try to come to an acceptable agreement.
However they have consistently refused to hand over the congregational
records and other assets, and they have turned down an offer of a
tenancy arrangement for the manse. They had given us no notice of any
plans to move services out of the building after 9 December.

So where to now?

For The Tron Church, their new name reflected on their web site, they will begin worshiping in the (apparently uncontested) church halls about five blocks away on Bath Street. In one of the Herald Scotland articles a church spokesman indicated that they had planned to move after Christmas.

For the Church of Scotland the plan is to continue their presence with a continuing worshiping congregation in the now recovered building. That same Herald article concludes with this quote:

The Very Reverend William Hewitt, session clerk of the on-going Kirk congregation, said: “It is regrettable that we are again forced to take action like this to protect our charitable assets. However, we are left with no alternative given the on-going lack of open co-operation from the leaders of the former congregation”

and the Kirk statement says

However it is now the future that counts. That is why we have decided we
have to rebuild the Church of Scotland presence in this part of Glasgow
City centre, based out of the Tron building. The Church of Scotland is
now starting to focus this work. It will do so building on the
traditions of conservative evangelical preaching and compassionate
service, and to that end a Transitional Ministry is currently being
established.

There is still no end of letters and opinion pieces appearing in the media about the situation with The Tron including concern for the situation, the possibility of schism and a call to reassess the polity. One columnist in the Glasgow Evening News asks the important question ‘Who does the Kirk think will fill this church now?‘

It is interesting to note the effort the Kirk is putting behind the continuation of their ministry in the building. Did you catch the title of the acting session clerk? ~~(And I have to think that is a mistake and they mean session moderator.)~~ (UPDATE: It has been confirmed that Rev. Hewitt is serving as the interim Session Clerk. I am not used to a Rev in that position.) The Very Reverend William Hewitt was the Moderator of the 2009 General Assembly.

In looking at how the Kirk handles this dilemma, and in how Presbyterian branches in general handle challenges, it is interesting to ponder the observation of the Rev David D. Scott in that polity reassessment piece I linked to above. In that letter he talks about how at the congregation level the members have called the pastor, contribute to the budget and have a level of graciousness about the happenings in the church. He then says:

At regional and national level, people are much more detached from the parishes. Our executive is not elected and doesn’t hold a mandate from the people. Financial decisions are not being made by the people who actually put the money in the offering bowl. A system of courts immediately raises the Pauline dichotomy of law versus grace.

After 30-odd years in the ministry, I think it is time for a radical reassessment of our polity. What we call “the courts of the church” are not effective in two crucial areas. First, situations that require the application of grace. This is true not only of the present crisis with seceding congregations but also with office-bearers (and especially ministers) who find themselves in difficult situations, sometimes through no fault of their own. Secondly, the application of vision and the accommodation of visionary people who think out of the legal box and other boxes too.

So we will see how the situation in Glasgow plays out. It seems that it is being watched closely as the test case that will set the precedent for future departures. While I know there is a lot at stake here I have to ask the question as to how we as the Body of Christ best balance our witness to the world with our ecclesiastical proceedings over doctrine, polity and possessions. Yes, I know – the answer is “very carefully.” But for the run that this is having in the Scottish media we should be asking whether we can be a witness to the world while still being right. (And don’t say “you first!”)

OK, commentary mode off. We will see what is next. Stay tuned…

PC(USA) GAPJC Decision — Tom and Others v Presbytery of San Francisco

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It was a busy and significant week for the General Assembly Permanent Judicial Commission of the Presbyterian Church (U.S.A.). A bit over a week ago they heard three important cases and a week ago issued their decisions. I am taking these individually because of the importance of each one and taking them in order of their case number. I have already posted 221-02 Newark v. McNeill and am hoping to have 221-04 Larson v. Los Ranchos posted in a couple of days.

But here is today’s case…

Remedial Case 221-03: Wilber Tom, David Hawbecker, and Thomas Conrad, Appellants (Complainants), v. Presbytery of San Francisco, Appellee (Respondent)

This decision includes a concurring opinion. It is also notable that, as the decision says, “Presbytery of San Francisco (Presbytery or Appellee) waived its appearance at the hearing and chose to rely on its written submissions.”

If you want the bottom line, from a polity standpoint, here you go:

When a congregation seeks dismissal under G-11.0103i (now G-3.0301a), it is the responsibility of the presbytery to fulfill its fiduciary duty under the Trust Clause.

OK, now let’s dig into this. I will first discuss the case, make a few comments about the GAPJC arguments themselves, and conclude with some thoughts on what this decision means.

To begin, few preliminary notes:

First, two types of issues were part of the appeal: the Trust Clause and process issues including possible conflict of interest of commissioners and documents received into evidence. The latter is specific to this case, I will make some mention of it, but because it does not provide any real polity issues I won’t do a lot with it.

Second, while this was tried under an earlier version of the Book of Order the language of the cited sections has not changed, only the section numbers. The two most important sections are the Trust Clause (G-8.0201 is now G-4.0203) and the presbytery’s authority to dismiss (G-11.0103i is now G-3.0303b).

Third, this case is a bit unusual in that no remedy could be provided the Complainants. The Presbytery has changed their Gracious Dismissal Policy (GDP) and the church in question has been dismissed. As the decision says “[I]n cases where circumstances prevent a remedy, this Commission may exercise its declaratory authority to provide guidance to lower councils and prevent future violations. Daniel J. McKittrick v. The Session of the West End Presbyterian Church (Remedial Case 215-5, 2003).”

This case results from the dismissal of Community Presbyterian Church of Danville (Danville) by the Presbytery of San Francisco in November 2010. The church was dismissed under the Presbytery’s Gracious Dismissal Policy (GDP) with their property and an agreement to make payments representing per capita and mission funding to the Presbytery over five years. Right after the dismissal the Presbytery voided their first GDP and began work on a new one. Following the dismissal decision a remedial case was filed with the Synod PJC of the Synod of the Pacific and in March 2012 the SPJC ruled in favor of the Presbytery and affirmed the dismissal of Danville. In May, as the GAPJC was accepting the case, the Presbytery signed a quitclaim deed and finalized the Danville dismissal. Based on this the Presbytery argued the GAPJC case was moot but as noted above the GAPJC proceeded with the case. This helps explain the fact that the Presbytery only submitted written briefs.

There were 15 specifications of error by the SPJC which the GAPJC reordered in their decision, but they did not consolidate any.

The first seven specifications of error deal with issues related to the Trust Clause and the last eight deal with proceedings at the trial concerning conflict of interest of a commissioner, questions asked and receiving evidence. All specifications of error in the first group were sustained and only two specifications of error in the second group, those regarding documents that were not received as evidence, were sustained.

The seven dealing with the Trust Clause were answered as a group. Several of these specifications are related to specific details and that the Presbytery “failed to consider or to understand the meaning of the property trust clause (G-4.0202, formerly G-8.0201) or that the church property in question was in fact unequivocally owned by the Presbyterian Church (U.S.A.).” The specifications include that the testimony of a witness was not properly considered, that the meaning of the trust clause was not properly interpreted, that the Presbytery did not properly consider two General Assembly (GA) Authoritative Interpretations (AI), that the Presbytery’s Engagement Team did not properly consider the Trust Clause in their negotiations and that the Presbytery had exercised too broad a power with regards to the Trust Clause.

The GAPJC in their decision says:

Under the Trust Clause, a presbytery’s discretionary authority to determine property rights, while broad, must be guided by the presbytery acting as a fiduciary for the benefit of the PC(U.S.A.), the beneficiary of the Trust Clause. A congregation’s financial and all other assets are also understood to be covered by the Trust Clause. Chesterbrook Taiwanese PC v. National Capital Presbytery, Remedial Case 217-12, 2006.

Under the fiduciary obligations inherent in the Trust Clause, a presbytery must take into consideration the PC(U.S.A.)’s use and benefit of the property in every decision concerning its disposition. To comply with the Trust Clause, the presbytery must consider the interest of PC(U.S.A.) as a beneficiary of the property. Payments for per capita or mission obligations are not satisfactory substitutes for valuations of the property held in trust. (G-4.0203)

Note that the case cited (217-12) regards a dissolving congregation so the application to this case beyond the scope of the Trust Clause is somewhat limited. The decision continues:

Based on an examination of the record, this Commission finds that the GDP developed by Presbytery, its implementation, and SPJC in its trial decision, failed to duly consider the economic interests of the PC(U.S.A.). Such consideration is essential. SPJC’s exclusion of documents which were the most convincing evidence of the position of PC(U.S.A.) in regard to the Trust Clause and of the financial position of Danville, strongly supports the allegation of erroneous interpretation. Failure to consider the property value and the PC(U.S.A.)’s beneficial interest in the property was a fatal omission of the trustee’s duty to the PC(U.S.A.).

The justification given by Presbytery for dismissal of the Danville church with property, which included only “Great Ends of the Church” and avoidance of litigation, was erroneously upheld by SPJC. While certainly valid, such considerations alone are not sufficient to satisfy the due diligence requirement imposed by the Trust Clause. SPJC erred in finding that due consideration had been given to the interest of the PC(U.S.A.) as the trust beneficiary under the Constitution. Due diligence, of necessity, will include not only the spiritual needs of the congregation and its circumstances, but an examination of the congregation’s financial position and the value of the property at stake. It is undisputed that Presbytery failed to make such an examination. SPJC erred in failing to require that financial due diligence be undertaken by Presbytery.

So, based on that can we determine exactly what steps a Presbytery needs to take to do “due diligence” and fulfill it’s “fiduciary responsibility”? More on that in a minute.

The other specifications of error related to process – questioning of witnesses, possible conflict of interest, and documents received or not received as evidence. With the exception of the documents alluded to above none of these specifications were sustained. The two documents that should have been received are the GA Stated Clerk’s Amicus Brief to the California Supreme Court and the Annual Statistical Report of the Danville Church.

[On a side note: I had to laugh where the decision refers to the Amicus Brief as “a clear statement of the legal position of the PC(USA).” Have a look. It is 5,294 words written for a civil court case with legal citations and vocabulary. For a document that is here described to as a “clear statement” I have always found to be a slow read. And I sometimes wonder if a document written for a civil judicial proceeding has much value in an ecclesiastical judicial case. In this case it reinforces the nature of the Trust Clause but does not really enlighten a Presbytery in determining how to properly consider it.]

The final decision section is brief, but important. Here it is in its entirety:

When the lower council’s actions cannot be undone, this Commission may exercise its declaratory authority to provide guidance to lower councils and to prevent future violations.

When a congregation seeks dismissal under G-11.0103i (now G-3.0301a), it is the responsibility of the presbytery to fulfill its fiduciary duty under the Trust Clause. This fiduciary duty requires that the presbytery exercise due diligence regarding the value of the property of the congregation seeking dismissal. Due diligence, of necessity, includes not only an evaluation of the spiritual needs of the congregation and its circumstances but also financial analysis of the value of the property at stake. Payments for per capita or mission obligations are not satisfactory substitutes for the separate evaluation of the value of the property held in trust.

There is a helpful concurring opinion that, while not authoritative, helps suggest some details for the process.

We also join in the majority’s conclusion that the language of the Gracious Dismissal Policy adopted by the Presbytery of San Francisco did not require adequate consideration of property retention issues. The needs of future congregations, the involved debt, the probability that a substantial number of dissenting members may be enabled to continue a PCUSA congregation would compel retention of a property or equity facilitating those or similar interests are all matters to be considered to be involved in the Presbytery trustee’s decision. The Gracious Dismissal Policy did not require the PET to deal with those aspects of the dismissal decision.

However erroneous the omissions of the GDP, and the construction given by its PET, it may well have been within the discretion of the Presbytery to dismiss the Danville church with its property.

and after considering the circumstances of the Danville situation

In short, there may have been no apparent reason to require retention by the PC (USA) of any property interest. With the evidence in that stature, the burden of proof that the Complainant would had to have met to show an abuse of discretion by the Presbytery would have been heavy.

And they conclude:

What the Presbytery did in securing additional mission and per capita payments may or may not have been sufficient to “balance the books” in this particular scenario, but it was within their discretion once they exercised due diligence and considered all the factors inherently required by the fiduciary duty of a trustee.

Let me take a brief look at a couple of the points in the arguments before the GAPJC that an observer at the hearing passed on to me. One point that the complainants argued for was step by step instructions that show the presbyteries understand the Trust Clause. Beyond this there also was a request that the GAPJC constitutional interpretation include payment of just compensation. In questions from the commissioners there was one of the nature of “Aren’t you in effect asking us to write the rest of the trust clause?” The response was along the lines that they wished they didn’t have to but it is clearly not understood so the presbyteries need procedural steps.

So we have this decision and it does not contain a step-by-step checklist as the complainants suggested. How does it fit into the patchwork of interpretation and what does it mean? Well, I had to chuckle when I read the two Authoritative Interpretations cited in the Specifications of Error. The first, 9-88, was from a stated clerk asking for guidance in these matters. The second, 89-10, was the same stated clerk coming back to GA a year later asking for further clarification. Yup, clear as mud.

So what interpretation do we have? The first AI says:

A presbytery may dismiss a church with its property pursuant to
G-11.0103i and G-11.0103y, provided the request is made in proper form
and provided proper consideration is given to the interests of the
Presbyterian Church (U.S.A.) as provided in Chapter VIII. In particular,
G-8.0201 recognizes the principle that all property by or for a
particular church is held in trust for the use and benefit of the
Presbyterian Church (U.S.A.). Thus the Presbyterian Church (U.S.A.) is a
party in interest when a presbytery takes action with respect to a
request to dismiss a church with its property.

The second expounds on this:

When dealing with a request by a church for dismissal with its
property pursuant to G-11.0103i and G-11.0103y, the presbytery is
responsible for exercising the expressed trust provisions of G-8.0201
recognizing and protecting the interests of the Presbyterian Church
(U.S.A.). Separate consideration should be given to the questions of
dismissing the congregation, the disposal of property, and the
relationships of ministers of the Word and Sacrament.

Each request for dismissal should be considered in the light
of the particular situation and circumstances involved. If guidelines
are established, it should be done with extreme caution. Any guidelines
which restrict presbytery in its deliberations and in the exercise of
its responsibility and authority might be subject to question in a case
of judicial process within the church. Instead of establishing
guidelines a presbytery might be better advised to trust its good
judgment in particular situations.

This decision says:

Under the Trust Clause, a presbytery’s discretionary authority to determine property rights, while broad, must be guided by the presbytery acting as a fiduciary for the benefit of the PC(U.S.A.), the beneficiary of the Trust Clause. A congregation’s financial and all other assets are also understood to be covered by the Trust Clause.

and later

Under the fiduciary obligations inherent in the Trust Clause, a presbytery must take into consideration the PC(U.S.A.)’s use and benefit of the property in every decision concerning its disposition. To comply with the Trust Clause, the presbytery must consider the interest of PC(U.S.A.) as a beneficiary of the property. Payments for per capita or mission obligations are not satisfactory substitutes for valuations of the property held in trust. (G-4.0203)

and finally

Due diligence, of necessity, will include not only the spiritual needs of the congregation and its circumstances, but an examination of the congregation’s financial position and the value of the property at stake.

At the present time there is Advisory Opinion 19 from the Office of the General Assembly that talks about the Trust Clause for the Unity of the Church. The detail contained in there talks about dismissing a church but does not address the due diligence discussed in this decision. There might be an update in the works based on this case. There is also a constitutional musing on Transferring Congregations that talks a lot about process but does not detail the property aspect.

Based upon all of these let me make a few observations and suggestions that relate to this and what these passages suggest to me is due diligence.

In spite of the AI above cautioning against a fixed policy the 218th General Assembly encouraged the development of Gracious Dismissal Policies. It would seem that based on the interpretations above these policies would entail process and guidelines but not specific dismissal terms. It should also be noted that the GDP postdates the two AI’s.
The thoughts that follow are contingent on a number of conditions including that the dismissal is to another recognized reformed body, there is near unanimous agreement in the congregation for dismissal, the process has been followed and there are no encumbrances on the property or at least all sides can agree on how loans and deed restrictions will be handled.
The first thing that these guidelines seem to say is that the real and other property must be specifically accounted for in the dismissal agreement and an acknowledgement that they are presently held in trust for the PC(USA) as a whole.
The requirement for due diligence indicates that the value of the property should be determined by appraisal or some other reasonable method.
As the concurring opinion suggests, a case can be made in the agreement for dismissal with property, possibly without financial compensation in consideration of the property, where the case for mission supports it. But it appears that this case needs to be laid out in detail in the agreement or an associated document.
One spiritual and fiduciary consideration should be the cost, in money and good will, of civil litigation.

As I look at the collection of documents this is the conclusion that I reach. Your mileage may vary.

There is certainly the possibility that there will be official clarification on this by one of the usual channels. We can get official interpretations by an AI from the General Assembly or a future judicial case that has the GAPJC clarify this decision. There can also be clarifications, recommendations and guidelines that might be issued by various entities or individuals (like my thoughts above) that are helpful but do not rise to the level of Constitutional Interpretation like those from GA or the GAPJC. [Guidance has been issued by the Office of the General Assembly – See UPDATE at bottom.]

On thing I would not expect and would caution against is a definitive number that is recommended. I often hear suggestions of a payment of 10% of the value of the property but the AI above talks about taking these on a case-by-case basis and the Assembly Committee on the Constitution gave the advice to the 220th General Assembly, regarding a different matter, not to enshrine specific numbers in the constitution as that was against the spirit of the new Form of Government.

Let me conclude with some thoughts on the implications of this decision. The original San Francisco GDP has been held up as a model for use by other presbyteries, my own included. At the risk of inviting a remedial case I would add that the agreements with the churches we recently dismissed would probably not meet the test the GAPJC puts forward in this decision. I have to wonder how many other dismissal cases currently in process or recently completed would be in the same category. Clearly all future agreements need to seriously address the Trust Clause and provide due diligence regarding property.

In addition, I don’t think it is an exaggeration to say that the Trust Clause has become a bit of a Rorschach Test across the denomination and different people and groups see it differently.

But the bottom line is that the GAPJC did not give a definite process or very many specific steps as to what would constitute due diligence. Until or unless such authoritative guidance is given each presbytery that dismisses congregations has some latitude in determining for itself what it’s good faith due diligence work entails.

Enough about that for the moment. Something tells me this question may arise again in the future.

Now I set my sights on the last of the three cases, Larson and other v. Presbytery of Los Ranchos. We will see how quickly I can get that written. Stay tuned…

UPDATE: 11/12/12 – Late last week the Office of the General Assembly issued a Frequently Asked Questions document about this decision. There guidance is a bit less detailed than the suggestion I had above but my thoughts are pretty much in line with the guidelines they gave.

Church Of Scotland Sexuality Discussion And Resulting Departure Actions

5 Replies

Over the last few weeks and months there have been some significant developments regarding ministers and churches that are concerned with the direction the Kirk is headed.

Briefly, the background to the recent actions is in the on-going discernment by the Church of Scotland through the General Assembly to determine the church’s stand on same-gender relationships. The current stream can be traced back to January of 2009 when Queens Cross Church in Aberdeen extended a call to the Rev. Scott Rennie who was in a same-gender relationship. This call was sustained by the presbytery and later that Spring the dissent and complaint concerning the presbytery decision was refused by the General Assembly. The Kirk has done what in my opinion is a wise thing and that is to deal with the matters of same-gender relationships as a whole including consideration of ordination standards and civil unions and marriages. The 2009 General Assembly, after refusing the dissent and complaint, considered some additional overtures and ended up setting up a Special Commission to consult with the church more widely concerning these matters. The Special Commission brought to the 2011 GA a set of recommendations which included a choice of which direction to head concerning this matter. By a vote of 351 to 294 the General Assembly chose to “Resolve
to consider further the lifting of the moratorium on the acceptance for
training and ordination of persons in a same-sex relationship, and to
that end instruct the Theological Commission to prepare a report for the
General Assembly of 2013…” So that is where we are, waiting for next year’s GA to see how the report of the Theological Commission is acted upon. From there, any polity changes based on the Theological Commission report would take another year.

Except that not everyone is waiting. With a trajectory chosen some members of the Church of Scotland are concerned with what they see as a non-biblical direction and are considering their options.

Most recently, the Rev. Paul Gibson has moved from the Church of Scotland to the Free Church of Scotland, being accepted by the Commission of Assembly on 4 October. In the Free Church news article he is quoted as saying:

I’m under no false illusions that somewhere out there is the perfect denomination or Church.

However, in these days of political correctness, pluralism and great
moral confusion, I believe that what is so desperately needed is not
further confusion and liberal ambiguity from the Church, but instead a
consistent appeal to the unchanging truths of God’s word, the Bible.

The Church should, by God’s grace, do all in its power to further,
rather than hinder, the good news of Jesus Christ in Scotland.

Something about this transfer caught the attention of the mainstream media and Rev. Gibson did an interview with The Scotsman which was picked up by several other news outlets. Something that caught my attention was the nuance that each headline writer gave. In The Scotsman it is said that he “defects” to the Free Church. The Christian Post says he was “forced out,” and at least they use that term again in the body of the article. And in the Christian Institute article the headline says he “quits Kirk.”

The other news is related to the congregation of St.George’s Tron, a landmark church in the centre of Glasgow. (Hey, if your URL is thetron.org you have something going for you. )

Back in June, after a year of prayer and discernment, the church decided to leave the Church of Scotland because of their disagreement with the GA’s chosen trajectory. This past Tuesday the Presbytery of Glasgow received a report from a special committee and, based on documents online, approved the report’s recommendations to retain the property — the buildings as well as the contents, bank accounts and church records. The presbytery decision is fresh so the situation is still developing but this disagreement could certainly head to the courts. In the statement from last Sunday the Rev. Dr. William Philip addresses this:

Now, we mustn’t pre-judge the issue, Presbytery on Tuesday night can
reject this report, but I have to tell you that I think that seems
extremely unlikely. And so, barring an intervention of God, that means
that we must be prepared for the fact that we must soon be forced out of
this building where we meet and where we so delight to share the gospel
of the Lord Jesus Christ. It may also be that the family and I are
forced to leave the manse and that we as a Church may lose all of our
other assets as well. (These things are more complicated, we may have a
better legal defence there, although it does seem that the Scottish
charity regulator has tended to side with the Church of Scotland view.
But as I say, these things are complex.)

Nevertheless, the deliverance being urged upon Presbytery on Tuesday
night includes taking further legal action without delay to dispossess
us of these things. As you know, there is already legal action underway
personally against myself and our Session Clerk and our treasurer.

[Note: the last action he is referring to is most likely the already initiated legal action to recover the church records.]

There are articles about the decision from The Scotsman and the Herald Scotland.

Let me make a few comments on church polity and legal precedents in this matter.

The Church of Scotland does not have a “trust clause” as American Presbyterians are familiar with. As I understand the property situation in the Kirk, title to church property in Scotland is, with minor exceptions, held by the General Trustees at a national level. This clearly presents a major legal hurdle for a congregation to overcome to retain their buildings and as noted in the statement above the charity regulator tends to side with the Church of Scotland.

Now, I have been advised that Scottish laws, and property laws in particular, have some unique aspects to them so I don’t want to go too far out on a limb here, but from the reading I have been doing the current situation does appear to present an up-hill battle for the congregation.

There is one recent church property decision that may present a precedent that supports the denomination and that is the July 2009 decision in the case of Smith and other v Morrison and others. In this case the Free Church of Scotland successfully sued the Free Church of Scotland (Continuing) claiming that when the two groups split in 2000 the Free Church (Continuing) congregations were not entitled to take the property with them.

There is an interesting nuance here because it appears that under Scottish law a church may keep property if they separate after, and because, the denomination has “departed from fundamental principles.” The Free Church decision talks extensively about fundamental principles and how they are not an issue in that case. One such passage says

[63] The national church cases were of limited importance to
the essential issues in the present case. Each dealt with the issue of
fundamental principles in a different context. The pursuers here did not aver
departure by the defenders from fundamental principles.

The implication throughout is that if fundamental principles were at stake the decision might have been different. Since this case does involve doctrine we will have to see if that does qualify as a fundamental principle and makes a difference in any legal proceedings.

[A couple of interesting points for those familiar with current happenings in American cases. The first is that American courts stay clear of doctrinal issues in property cases under the “neutral principles” concept and can not judge whether one side or the other has departed from fundamental principles of doctrine. The second is that for PC(USA) folks this idea of fundamental principles probably carries echos of the ongoing discussion about essential tenets and if this question goes forward it will be interesting to see the arguments made about where these issues are, or are not, fundamental principles of doctrine.]

It is interesting to note that the Free Church (Continuing) is now trying to cast their continuing property dispute with the Free Church as a fundamental principles case. Now that the Free Church has relaxed their position on exclusive unaccompanied hymn singing the Free Church (Continuing) is claiming that they have made a change regarding their fundamental principles. (Opinion: I personally don’t think that will go very far.)

If you want more on the FC/FCC property dispute you can find it with Martin Frost and Scottish Christian. There is also the statement by the Free Church regarding the decision on the Sleat and Strath Free Church blog. These actions do continue and about a year ago the decision was upheld on appeal. In the decision regarding the appeal one of the judges, Lord Drummond Young, wrote

In this respect, the exhortation to long suffering forbearance and unity
of the spirit within a congregation may be as relevant to Broadford and
other communities in Scotland in the 21st Century as it was to Ephesus
in the First Century.

And so just as there is the prospect of more Free Church cases to reclaim property there is also the prospect of not just St. George’s Tron but other Church of Scotland congregations getting involved in legal actions if they decide to leave the denomination.

As with so many things Presbyterian there is a long way to go here. Stay tuned…

UPDATE: 15 October – Herald Scotland brings the report that legal proceedings against St. George’s Tron have been initiated.

UPDATE: 21 October – The Church of Scotland has issued a statement about the St. George’s Tron situation. In the statement it is pointed out that the congregation has unpaid contributions to the Presbytery of Glasgow and has a loan of almost £1M from the General Trustees. (H/T Peter Nimmo)

The GA Junkie

The Politics of Presbyterianism