This past week Judge Carl Heldt of the Vanderburgh Circuit Court, Indiana, issued his ruling in the case of Presbytery of Ohio Valley and Synod of Lincoln Trails, Presbyterian Church (U.S.A.) v. Olivet Presbyterian Church.  This lawsuit was regarding the Olivet property which the higher governing bodies argued Olivet could not take with it as it disaffiliated from the PC(USA) and realigned with the Evangelical Presbyterian Church.  The court ruled that after examining all the incorporation and real estate documents there was no evidence of a higher governing body ever having a legal interest in the property and so the congregation held clear title to it.  Along with this the court ruled that under “neutral principles” the PC(USA) can not have an “implied trust” on the property since the ownership of the property is to be judged only by the documents applicable under civil law and not the Book of Order or other documents related to ecclesiastical law.

Thanks to The Layman you can read a scanned copy of the court decision.  There is also reaction from The Layman.

Now, I would not normally devote so much time to reading and analyzing a trial court decision — I expect this decision to be appealed and I would rather devote the time to looking at the legal reasoning after it has had “peer review.”  However, two things caught my attention in this decision…

First, after following the California Episcopal Churches case very closely a couple of years ago I found it interesting how essentially the same arguments played differently in the two courts.  Now I do realize that the California cases hinged on a point of California corporate law that permits hierarchical churches to place an implied trust on property, and that getting to the California Supreme Court different lower courts and trial courts ruled in opposite ways on the issue.

But in this case the judge goes to great lengths to set the foundation for his ruling based on neutral principles.  The decision is 29 pages long of which the Finding of Fact is roughly half at 13 pages.  The Conclusions of Law takes up almost 14 pages (the balance is the preferatory material and the judgment order) and of those pages five and a half are a detailed analysis of case law and precedent, both in Indiana State Courts and U.S. Federal Courts, to set the foundation for his decision based on neutral principles.  The bottom line here is that if the larger church has no presence in the civil documents (incorporation and real estate) the ecclesiastical documents are irrelevant.  This decision quotes a U.S. Appeals court decision (Merryman v. Price, 1971) that relied on a U.S. Supreme Court Decision (PCUS v. Blue Hull, 1969) where it says:

It is clear that the civil courts can not rely upon ecclesiastical law of the church to impose an implied trust upon real estate.

and, regarding neutral principles, goes on to say:

This approach has the advantage of almost never involving a civil court with the vexing problem of whether preferred evidence is admissible under the First Amendment.  Further adjudicating church property disputes by relying on formal title will ensure an almost evenhanded administration of justice since the necessary evidence will almost always be admissible.  The formal title approach will seldom involve a civil court in deciding what the polity of a given church is, a determination which will almost inevitably involve ecclesiastical considerations.  One final advantage inherent in this approach is that it invites and encourages religious organizations to title their property as clearly and unambiguously as possible.

I would add that in considering the formal title to the property this congregation has taken a slightly different path than many to their current affiliation.  As the facts of the case detail, this was a mission plant of the Cumberland Presbyterian Church in 1891 but became part of the Presbyterian Church in the United States of America in the partial merger of 1906.  It has now realigned from the PC(USA) to the EPC.

The second thing that caught my attention was the court’s attention to the polity of the PC(USA) as expressed in the Book of Order.  Or maybe it is better to say the conflicts in the polity that make sorting out ecclesiastical disputes in civil courts difficult.

In point 8 of the Findings of Fact the decision says “Even the PC(USA) Constitution and Book of Order permits and acknowledges the possibility of movement away from its denomination.”

In point 18 of the Findings of Fact, “[T]here are no specific set of By-laws prescribed by the Book of Order or other authority of Plaintiffs.” (And I would add that the flexibility of nFOG will enhance this point.)

Point 20 presents the PC(USA) argument that as a congregation of the PC(USA) they recognize church governance while they voluntarily chose to be affiliated with the denomination.  The church counters with the facts above, that there is provision for disaffiliating and that there is no set By-laws.

In the Conclusions of Law the court writes in point 7 “The Book of Order is cited by both parties and contains contradictory terms as it relates to property disputes.”  It then goes on to cite G-9.0102 about church courts having only ecclesiastical jurisdiction and not civil authority.

And point 20 notes the discrepancy between the PC(USA) argument that this is a “dissolution” of the congregation while at the same time a paragraph in the stipulated facts that both parties are in agreement on states that “The Olivet congregation has consistently made it clear its intention to continue it affiliation and worship under the EPC…” and never expressed plans or interest in abandoning its property.

But the major piece of analysis of PC(USA) polity is point 19 which covers more than one page double-spaced (I figure my interested readers can figure out the Book of Order references so I have edited those for length):

19. Both parties cite various portions of the PC(USA) Book of Order in support of their respective positions.

Plaintiffs’ case significantly relies upon G-8.0201, added to the Book of Order in 1981, which states:

All property…is held in trust nevertheless for the use and benefit of the Presbyterian Church (U.S.A.).

Plaintiffs rely heavily on this and other provisions of Chapter 8 in the Book of Order in asserting its trust interests.

The Olivet Defendants reply asserting the Book of Order is an ecclesiastical document which by its very terms is not supposed to have civil law jurisdiction citing G-9.0102 stating:

Governing bodies of the church are distinct from the government of the state…

Both parties assert many other provisions of the Book of Order all of which are part of the record. Olivet also cites the Affidavits Alex Merwin and William Rasch.  Irrespective of the affidavits, the court concludes that wading into various provisions of the Book of Order which may or may not be conflicting requires this Court to determine ecclesiastical questions in the process of resolving property disputes which is prohibited by the First Amendment to the United States Constitution. [cite removed] Plaintiffs ask this court to hold that pursuant to
G-8.0201, the Olivet property is held in trust for the use and benefit of the Presbyterian Church (U.S.A.) and yet Defendants assert that G-8.0201 is not a settlor’s declaration but an assertion by an entity that does not hold title to any of the property at issue in the instant case and which never held property at issue in the present case.  Plaintiffs assert the actions of its Presbytery consisting of voting members of various churches must be upheld while Defendants cite Chapter G-9.0102, stating governing bodies of the church (i.e., a Presbytery) have only ecclesiastical jurisdiction.  As further example, G-1.0307 of the Book of Order states: “That all church power, whether exercised by the body in general or in the way of representation by delegated authority is only ministerial and declarative…”  At G-1.0308 it states “Any ecclesiastical discipline must be purely moral or spiritual in its object and not intended with any civil effects…”  This conflict and the other potentially conflicting provisions in the Book of Order appear to this Court to force an evaluation or determination or ecclesiastical questions or interpretations in the process of resolving this property dispute.  This Court declines to do so, based upon the First Amendment to the United States Constitution, the Indiana State Constitution, U.S. Supreme Court precedent and state court precedent.  “Civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.” Jones v. Wolf, 443 U.S. 595, 606 (1979)

In other words: The Court leaves the sorting out of the Book of Order to church judicatories and polity wonks — it is not their business.  (I wonder if the nFOG would help or hurt the case?)

As I stated before, this could have a long way to go through the appeal process.  And it is clear that state law and precedent have significant implications in all of these property cases.  While there is some hope that one day the U.S. Supreme Court will take one of these cases and use it to set clear legal tests for when neutral principles versus church government theories apply, so far this term the high court has declined to hear two cases that have asked for a hearing so this situation still relies on state law and so varies between the states.

We will see where this particular case may lead us.