Tag Archives: property

Brief Comment On The Central (now Alps Road) Presbyterian Church Decision, Athens, Georgia – The Exception That Proves The Rule

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I began my previous property post on the Bethlehem Presbyterian Church court arguments with the reference to the cliché “fools rush in where angels fear to tread.” This is a very apt phrase to keep in mind when dealing with church property cases because the law varies significantly between states and each case has its own particular circumstances. Earlier this month we got a very good example of this in a court decision from Athens, Georgia.

Being in Georgia the hierarchical church gets strong support as laid out in the 2011 state supreme court decision of Presbytery of Greater Atlanta, Inc. v. Timberridge Presbyterian Church, Inc. (Timberridge decision). The court wrote in the conclusion:

Like the trial court, we conclude that neutral principles of law demonstrate that an implied trust in favor of the PCUSA exists on the local church’s property to which TPC Inc. holds legal title. See Barber, 274 Ga. at 359; Crumbley, 243 Ga. at 345. The Court of Appeals erred in concluding to the contrary.

The critical word in that block is “implied,” sort of like “if you are a PC(USA) church than the trust clause applies to you – end of story.” Very few states have given this level of deference to hierarchical churches. But the latest decision shows that it is not necessarily that simple and it is probably best to wait on analysis until you have the data.

In the case of Central Presbyterian Church, now Alps Road Presbyterian Church, a decision was handed down earlier this month that made a preliminary award of the property to the congregation. [And our thanks to The Layman for posting a copy of the decision.] The difference in this case is the strong documentary evidence that from the highest levels of the PCUS and then PC(USA) the understanding was that the trust clause was a theological understanding. The section begins with this:

Testimony showed that CPC believed that its property rights were not going to be affected by the reunion (or by any amendments to the PCUS constitution pre-dating the 1983 merger containing similar trust language). This belief was informed by a 1981 letter written by Rev. James Andrews, the Stated Clerk of the PCUS at that time, regarding a similar trust clause proposed by PCUS. The letter stated that the new trust clause in the PCUS constitution would not change the Presbyterian Church’s historical position on property. He writes, “These amendments do not in any way change the fact that the congregation, in the Presbyterian Church in the U.S., owns its own property.” (Aff. Parker Williamson, Ex. I). In 1982, Rev. Andrews affirmed the denomination’s position in a report to all of the PCUS commissioners. The report reads, “The language dealing with trust does not in any way establish any kind of an encumbrance on church property as that term is understood in connection with real estate.” (Aff. Parker Williamson, Ex. K)

These communications, while not speaking directly to the PCUSA trust clause but
rather to the PCUS trust clause, are very important because in the Articles of Agreement
between PCUS and UPCUSA, PCUSA stated its intention to be bound by the representations
of its predecessor denominations. (Aff. Parker Williamson, Ex. G)

And that is just the start of that section.

The court clearly needed to address the Timberridge decision and how it relates to this one. The flavor of that finding is evident in the opening lines and since you know the bottom line of the case you can probably figure where the section goes from here:

In this case, there is a sharp conflict in the evidence as to the PCUSA mode of government (unlike in Timberridge where the parties agreed that the PCUSA was hierarchical). Petitioners presented evidence suggesting that the PCUSA structure of government is a hybrid congregational-hierarchical structure. Respondent’s witness testified that the PCUSA is hierarchical with a representational form of government.

Bottom line – take these property cases one at a time based on their own merits. Corollary – who knows what interesting material from American Presbyterian history may come to light in doing so. It will be interesting if we see more of those James Andrews quotes in the future.

I will leave it at that for today. From what I have been tracking there is a lot more property stuff in the pipeline and we will see where all this leads.

Stay tuned…

Musings On The News Report Of The First Presbyterian Church Of Bethlehem Property Arguments Yesterday

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Once again, in the “where angels fear to tread” territory, I wanted to muse a bit and post some brief comments on the arguments in the Northampton County Court (PA) yesterday between the First Presbyterian Church of Bethlehem, Lehigh Presbytery, and the minority “stay” group.

The article from The Morning Call of Allentown is titled “Court arguments reveal deep divide in First Presbyterian Church of Bethlehem.”

I am going to cast this in the light of the most recent case law for Presbyterian disputes over property in Pennsylvania right now, the 2014 Peters Creek decision.

And with those two inputs, maybe there is something appropriate to Mark Twain’s quip “There is something fascinating about science. One gets such wholesale returns of conjecture out of such a trifling investment of fact.”

Now, it is worth noting that these were oral arguments to decide if this case needs to go to a full trial. The article quotes Judge Baratta as saying:

“I really would hate to render a decision at some point that’s going to hurt members of the community in matters of faith,” Baratta said. “If you’re getting close to a resolution I will do whatever I can to work with you, to push you over that line. But please, consider, 10 years from now when you look back on this, it may not be as difficult an issue as it is today.”

The argument from the majority of FPC Bethlehem is that the deeds do not mention the denomination and the church never explicitly accepted the PC(USA) Trust Clause. The judge responded “So you’re saying they didn’t really mean all of the Book of Order … only the parts they liked?” The majority’s lawyer responded that was an ecclesiastical question and not the scope of the civil courts. The judge replied that it could be looked at under neutral principles.

I must presume the judge has done his homework on this one. Part of the Peters Creek decision was laying out the boundaries of the neutral principles and the trust law related to the church trust clause. Under that decision it seems clear to me (reference Twain quote above) this court can deal with the property issue. Also under the Peters Creek decision a formal acceptance of the trust is not necessary but actions that would acknowledge PC(USA) ties and thus by inclusion the trust – like saying you are a PC(USA) church in your bylaws and charter and accepting the current Book of Order – are enough to demonstrate implicit acceptance of the trust clause. The decision quotes an earlier Presbyterian property decision that says (p. 19)

“In order for a court to find that a trust has been created, there must exist in the record clear and unambiguous language or conduct evidencing the intent to create a trust. No particular form of words or conduct is required to manifest the intention to create a trust. Such manifestation of intention may be written or spoken words or conduct indicating that settlor intended to create a trust.”

While a final decision in this matter would involve the close examination and history of the church’s bylaws, charter and property documents, the exchange between the judge and the lawyer is telling and may suggest that FPCB has a bit of an uphill battle on this.

But the initial questioning of the Presbytery’s lawyer was no less problematic. That revolved around the precedent that had been set and why three other churches were dismissed with property but FPCB has not yet been dismissed. The response was that a mutual agreement was reached in the other cases but was unable to be reached here. As noted above, the judge clearly hopes that something can be negotiated in this case and that it will not go to trial.

The lawyer for the minority was apparently there, according to the information in the article, to report back to the judge that while his initial order from November required the two groups to share the space the minority group had been running into problems with some of its activities.

My thanks to The Morning Call and their correspondent Sarah Wojcik for a good article. It is objective, balanced and tells the story with direct quotes while providing a reasonable national context for what is happening within Lehigh Presbytery.

But this was a preliminary hearing and to apply the situation in this case against the standard laid out in Peters Creek will require more documentation and that will come as admitted evidence if this does go to trial. From the little that was reported on from yesterday’s court appearances I would think the advantage goes to the presbytery but it is far to early to say that with any high degree of confidence.

So a decision, should one be necessary, should come within 90 days. The judge hopes this can be settled before then. As with much of what I discuss…

Stay tuned.

A Brief, Preliminary Comment On An Interesting Church Property Decision

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As regular readers know I tend to wait until I have a full court decision to break down a court ruling. In this case, This is a preliminary ruling, technically a memorandum decision, and both sides have 10 days to file responses before it is final, so I am going to trust a news article. Risky thing to do but 1) the ruling as reported seems straight forward and logical even if a bit different than usual, and 2) from the full reading the article seems fair and balanced so it seems reasonable.

From the Kansas City area KCTV 5 News reports that Judge Kevin Moriarty has reached a preliminary decision in the case of the Presbyterian Church of Stanley and Heartland Presbytery. I have discussed this church before concerning some of the nuances with the divided congregation with the two groups, an ECO group and a PC(USA) group, sharing a building until this gets straightened out.

The article begins with a very nice discussion of the situation with quotes from all sides in the matter. Good on-the-ground reporting. It is not until towards the end that it mentions the court ruling late yesterday and how Judge Moriarty diverged from the traditional legal approach in Kansas, that of hierarchical deference, and instead used neutral principles in rendering his decision. To quote the article:

Moriarty said in his ruling that church law claiming the property was held “in trust” for the regional branch wasn’t relevant. The deed names the local church, not the Presbytery. The mortgages name the local church, not the Presbytery. If the presbytery wanted a claim, the judge said, they could have placed a provision on those legal documents when they signed over the deed to the Presbyterian Church of Stanley decades ago.

The building and property, he said, belonged to the Presbyterian Church of Stanley, not Heartland Presbytery, which had filed the suit.

Now, in a “be careful what you wish for” twist, the decision continues. The property may belong to the church and not the presbytery, but with two groups claiming ownership to which does the property belong? To this the judge invoked ecclesiastical deference and said it was a church doctrine dispute and the civil courts should not get involved. Therefore, since the property was established by the PC(USA) and one group was recognized by the PC(USA) as the True Church then it gets the property.

A most interesting twist where the property does not belong to the PC(USA) in spite of the Trust Clause, but belongs to the PC(USA) congregation because of history.

As stated, this is the draft trial decision and it may change on final and is subject to possible appeal. When I have more details, and if worth another post at this time, I will probably just note at the top that this post has been superseded and point you at a new one.

In my reading of these property cases this is new legal ground. We shall see where this goes…

Brief Note On A California KAPC Civil Appeals Court Decision

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About a week ago a California appellate court handed down a decision affirming the trial court decision in the case of Jun Ki Kim et al. (Respondents) v The True Church Members Of The Holy Hill Community Church et al. (Appellants). From here I will use the annotation of Kim v. Church for the parties. The particular church at the center of this is in the Los Angeles area and a member of the Western California Presbytery (WCP) of the Korean American Presbyterian Church (KAPC). The two sides have been involved in a dispute over the church leadership and membership in the WCP since early 2011 which has resulted in a bit of a long and complex ecclesiastical and civil saga.

I am going to keep this relatively brief, or at least not dissect this decision as much as I commonly do, for two reasons. First, the history of the dispute and the presbytery involvement is complicated. In the time frame of the complaint each side has alternately been excommunicated by the presbytery and recognized by the presbytery as the true church. At the present time the Kim group is supported by the presbytery and the Church group is out. In addition, each group when they were in control tried to withdraw from the presbytery and the presbytery did not approve of their actions. Whether a KAPC church can take the action unilaterally I am not sure as I have not found an English language translation of their Book of Church Order (BOCO) to consult.

However, in the end the pivotal event of consequence to the trial was the Church group calling a congregational meeting to vote on whether to secede from the WCP, which they did. The presbytery did not recognize that vote, removed the church leadership, excommunicated the Church side in the dispute and brought the Kim side back into the church and the presbytery. The Church side alleged that the presbytery overstepped their authority and did not follow the process. The trail court said it was an ecclesiastical matter and did not interfere with the steps take by the presbytery.

The second reason that I will only consider part of this decision is that in the specifications of error the first applies to ecclesiastical control while the other two are legal procedural matters regarding admission of evidence and cross-examination.

So the Church group appealed the trial court decision on the three specifications of error including “the court erroneously found in favor of respondents based on appellants’ excommunication from the Holy Hill Community Church (Church) by the Western California Presbytery (WCP).” After reviewing the factual and procedural background, the decision discusses the deference to the presbytery’s excommunication decisions. In the discussion there is a section on the “Overview of law governing judicial deference to ecclesiastical decisions” which is an interesting read about the division of church and state (begins on page 8). The discussion is generally applicable since it focuses almost entirely on the classic U.S. Supreme Court decisions and only at the end brings in the controlling California decision, Episcopal Church Cases (2009).

One of the interesting polity arguments the appellants make is that while there was an internal dispute in 2011 there was no internal dispute in 2013 when the presbytery stepped in and excommunicated them. The court disagreed:

Substantial evidence supports the trial court’s conclusion that there was “an internal church dispute which exists to this day.”… The mere fact that both factions—appellants and respondents—continued to participate in this case demonstrates that the dispute continued for at least as long as the case itself.

The money quote in this decision, at least as far as the ecclesiastical deference is involved, comes right at the very end of this section (pg. 12-13):

Appellants’ last two arguments seek to overturn the trial court’s ruling on the grounds that the WCP lacked authority to excommunicate them either because they validly seceded from the WCP or because no one from the Church had petitioned for any action by the WCP. They argue their secession was valid even though the WCP had previously removed [an] interim moderator, because BOCO rules permitted a “minister from the presbytery” to act as a temporary moderator. However, in arguing the validity of their secession vote, they highlight the entire reason behind the ecclesiastical rule, which is that courts are ill-equipped to interpret ecclesiastical rules, particularly in hierarchical church organizations. No party disputes that the KAPC is a hierarchical organization, consisting of various presbyteries, and that churches are subordinate to both the KAPC and the presbytery to which they belong. (See Concord Christian, supra 132 Cal.App.4th at p. 1409 [explaining distinction between hierarchical and congregational church structures].)

We have already determined that the court correctly deferred to the WCP’s decision as a higher ecclesiastical authority. Similarly, the ecclesiastical rule of judicial deference to the highest authority within a hierarchical church on questions of church governance and church membership requires that we defer to the WCP’s decision that appellants’ vote to secede did not comply with BOCO, and that the WCP had authority to intervene.

Now if this were a property case my usual caveat is that interpretation of church property cases is highly variable from state to state. Not being a property case and primarily a membership case we can see that at least this California court gives the hierarchical church, in this case the presbytery, significant latitude to intervene in this situation.

In reading this decision a detail about KAPC polity jumped out at me. I was interested in a couple lines from a section of the BOCO quoted in the decision concerning church property:

Their argument rests on language in BOCO, which states “[w]hen an internal dispute arises in the local church that is within the jurisdiction of a presbytery, regarding membership in the presbytery and the ownership of church property, the right to manage the church property shall temporarily be placed within the hands of the presbytery until the dispute is resolved and the normal operation of the local church is restored.”

An interesting process in implementing what might be considered a trust clause – in a dispute the property is automatically placed in the hands of the presbytery.

Three legal notes that I probably should mention about the decision. First, not withstanding the property reference I just quoted, this decision stays completely away from property disputes and explicitly says this is not a property dispute so there is no reason for the court to become entangled in the ecclesiastical issues. The ecclesiastical portion of this decision was about process and the power and authority of the presbytery regarding membership and leadership. Second, the WCP was originally a party in this case but following the second schism in 2013 where the Church party was excommunicated they dropped from the case. Finally, this appellate court was very deferential to the findings of the trial court and was primarily judging errors that would have affected the outcome of the trial decision, not just any little errors that might have occurred.

So is this case relevant to other civil litigation over church secessions and responses? Maybe. It is a well written decision that sets out the circumstances for hierarchical deference in this case and could be used as a model for others.

On the other hand, this is a lower appeals court decision in one state and while it might set an example or model, it does not set precedent outside that circuit. Its applicability to the State of California would be more important if further appeals take it to the state supreme court. In addition, most of the other cases I look at include litigation about the property which this decision explicitly says is not in play here. How likely are the circumstances in this one particular situation to be replicated in other disputes? This could be a unique example and other cases may be different enough that its reasoning and model are not applicable.

However, as a polity wonk I found it to be an interesting insight into both the process within the KAPC in situations like this as well as a court dealing with the interface of church and state and the boundaries placed by the U.S. Constitution in the Establishment Clause and the Free Exercise Clause.

An interesting diversion. Your mileage may vary.

Now back to the next round of General Assemblies…

Brief Updates On Church Property Cases In Texas, Pennsylvania and Kansas

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As I have often commented in this space, I really don’t want to go chasing church property cases in the civil courts as they can vary so widely by jurisdiction. I am going to take this opportunity to update one situation I have previously covered in detail and use it as an opportunity to consolidate reporting on a couple more and in the process demonstrate the variety that there is, the moving target that it can be and the legal technicalities involved.

Let me begin with the legal landscape in Texas which I have written on to some extent before. In particular, I covered a ruling by the Texas Supreme Court back in August 2013 that set forth neutral principles as the standard of decision for the state. However, that decision, at least in my reading, left a little opening for a hierarchical church to make a claim under the trust clause.

Well, two decisions in the last couple of weeks don’t see it that way and the local judicatories won summary judgements over higher governing bodies in the trial courts on pure property ownership and Texas trust law arguments.

The first was a summary judgement in the case of First Presbyterian Church of Houston v. Presbytery of New Covenant issued back on February 16. (Thanks to the presbytery for posting the decision.) Being a summary judgement there is not a lot of analysis by the court. The critical point to be made is:

… the Court grants the motion finding that there is no genuinely disputed issue of material fact, and that Plaintiff is entitled to judgment as a matter of law.

The Court further finds that there is no enforceable trust or property interest created by any version of the Presbyterian Church (USA) Book of Order or the Presbyterian Church of the United States Book of Church Order under the neutral principle factors set forth by the Texas Supreme Court in Masterson v Diocese of Nw Texas.

The presbytery’s Pending Litigation web page indicates they will pursue the appeal. The lawyer for the church has a press release on their victory and indicates he will continue to represent the church pro bono.

The second court decision issued on March 2nd similarly gives the Diocese of Fort Worth under Bishop Jack Leo Iker control of the property of the diocese in a partial summary judgement which did exempt one church property dispute from the order. This was a rehearing of the case where the original decision in favor of the Episcopal Diocese of Fort Worth was overturned by the Texas Supreme Court decision previously mentioned. The Episcopal Diocese has indicated it will appeal.

We will see how these trial court decisions hold up in the appeals process.

On the other end of the spectrum we had a final decision this past December in the case of Peters Creek Church in Venetia, Pennsylvania. This was a case between a majority of the church that voted to join the Evangelical Presbyterian Church and a minority that voted to stay with Washington Presbytery of the Presbyterian Church (USA). After seven years of legal wrangling and two previous decisions that favored the majority, a decision by the Commonwealth Court last April awarded the control of the property to the minority as the True Church. With the denial of review by the Pennsylvania Supreme Court in October it was sent back to the local court to issue the final decision ordering the change of ownership and a negotiated solution. The two groups have been sharing the property.

The Commonwealth Court decision is a long but at points an interesting read as it determines the outcome based strictly on neutral principles and does affirm that a denomination can not create a unilateral trust in Pennsylvania unlike court decisions in New York, Georgia and California. However, the court did find that in their Bylaws of June 3, 2001, Peters Creek United Presbyterian Church did create a trust with the PC(USA) when it included the language:

…“nothing in these bylaws shall prevail over the [PC(USA)] Constitution,” and that the bylaws “shall be considered to include the mandatory provisions and requirements on local churches set forth in the Book of Order of the Presbyterian Church (U.S.A.), whether or not incorporated by specific reference.”

Among other finding of error by the trial court the Commonwealth Court declared that a formal trust document need not be created for the trust to be in force and recognized. They further find that the vote of the congregation on November 4, 2007, to leave the PC(USA) was invalid.

Woven into the rational of the decision are the histories of the PC(USA) and UPCUSA governing documents as well as the history of Pennsylvania trust law. In the end they make the case that using only neutral principles and consideration of the timeline of the history of the church the congregation can not unilaterally leave the PC(USA).

The trial court relied on the holdings in Beaver-Butler and Calhoun as examples of other Pennsylvania cases that have upheld the ability of a local church to disaffiliate from a national denomination (March 31, 2010, Trial Ct. Op. at 15). Those cases, however, do not support the trial court’s conclusions because their facts make clear that, at the time the local churches disaffiliated from the UPCUSA, the predecessor of the PCUSA, the UPCUSA governing documents did not prevent local churches from unilaterally disaffiliating. Here, in contrast, the PCUSA Constitution, which Peters Creek Church recognized as obligatory on its members, provided that the relationship between the PCUSA and an individual church can be severed only by the Presbytery.

So at least in Pennsylvania, timing and what you have in your bylaws and articles of incorporation is important.

And while this case is interesting, the legal nuances are a good example of why I don’t go chasing every one of these church property decision.

And now to Kansas…

Back in October a majority of the Presbyterian Church of Stanley, in Overland Park, Kansas, voted to disaffiliate from the PC(USA) and joint the EPC. There was a significant minority with 21% opposed. Control of the property is headed to court so there is not much to talk about there at this time.

However, there seems to be a pretty good back story on this one. A year ago there was an article quoting the church’s pastor as saying that the church was not looking to leave the larger denomination. But that article pointed out that this is the church home of Craig McPherson, a member of the Kansas legislature, who serves as an ordained officer in the church – a deacon. In last year’s legislative session he was a primary supporter of a Kansas House bill that was substituted for State Senate Bill 18 to clarify that Kansas judged church property disputes under neutral principles. The text, as amended by the House with McPherson’s input is included in an article in The Layman. Rep. McPherson published his testimony in support of a 2013 version of the bill. Last year the bill failed on the House floor but the Committee on the Judiciary, of which Rep. McPherson is a member, has reintroduced the bill in the 2015 session. According to the tracking page it is still awaiting committee action.

So there you have a selection of the church property cases recently in play across the country that have PC(USA) connections. If you want another interesting read consider the South Carolina decision giving control of a diocese, its property and its symbols (trademarks) to the group which has separated from The Episcopal Church. A unique case that probably has no impact on Presbyterian interests but one that gives the Episcopal equivalent of the Trust Clause, known as the Dennis Canon, very little weight.

So, enjoy that legal reading if you are so inclined. I might have a bit more to say on property from a PC(USA) polity standpoint in the near future.

Top Ten Presbyterian News Themes Of 2014

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As we close out this eventful year I will once again join the numerous sources putting out top ten lists for the year that was. And as in past years my primary focus will be on stories, or themes, that were seen across multiple Presbyterian branches with a few more selective ones thrown in.

General Assemblies and Same-Sex Relationships

This was probably the top news theme of the year: The Church of Scotland GA sending to the presbyteries, and the presbyteries approving, language for churches to opt-out of the traditional standards. The Presbyterian Church (U.S.A.) 221st GA approving language to redefine marriage in its Book of Order and it appears on path to approval in the presbyteries. The Presbyterian Church of Aotearoa New Zealand approving a change to their Book of Order to prohibit same-sex marriages. And momentum is building around an overture to the next Presbyterian Church in Canada GA that would remove the prohibition against ministers being in a same-sex relationship.

Seminaries

This was a category that really caught my attention this year but which I have yet to write up in detail. In any year there is interesting seminary news, like Doris J. García Rivera’s installation as president of the Evangelical Seminary of Puerto Rico. But this seemed to be a year with more initiatives than normal.

These included the reorganization of the Free Church Seminary as the Edinburgh Theological Seminary. There was also the new joint initiative between Reformed Theological Seminary and Redeemer Church in New York City.

More radical seminary initiatives include a non-accredited communal seminary associated with Church of All Nations in Minneapolis and San Francisco Theological Seminary has launched a Center for Innovation in Ministry with a workshop on the theology of video games.

But the one that I have found most interesting is the Redesigned Master of Divinity Program at Fuller Theological Seminary. Fuller listened to their alumni and launched a new program which is described in part like this:

Many graduates can no longer count on traditional systems to create jobs for them. They will have to invent new ways to minister. Our reshaped curriculum is designed to prepare students with entrepreneurial skills.

One of the interesting things about this new initiative, and Fuller in general right now, is the prominence of Presbyterian leadership. In addition to Mark Labberton becoming President last year, the initiative is under the oversight of Scott Cormode, the Academic Dean. Behind the Vocation and Formation part of the initiative are some well-known Presbyterian faces that include Tod Bolsinger, Steve Yamaguchi and Laura Harbert.

Congregations Switching Branches

The moves between branches continue with the PC(USA) once again transferring more churches than it closes. And in the Church of Scotland there has been a slower, but noticeable, departure.

The other interesting movement is churches moving from the Reformed Church of America to the Presbyterian Church in America. Last Spring one of the flagship churches, University Reformed Church, voted to transfer. This fall five churches in Illinois have also voted to make the move.

Fossil Fuel Divestment

The General Assemblies of both the Presbyterian Church (U.S.A.) and the Presbyterian Church of Aotearoa New Zealand considered this issue. In the PC(USA) the Assembly did not approve an outright divestment but referred it to the Mission Responsibility Through Investment Committee for further consideration. The PCANZ instructed their Property Trustees to divest and recommended that individual churches do likewise.

Independence Referendum in Scotland

The Church of Scotland was prominent in the time leading up to the Scottish Independence Referendum with an open session at their General Assembly that presented a variety of voices on the subject and further national and regional level gatherings leading up to the vote. Following the vote there was a service of unity hosted by the Kirk.

The Free Church of Scotland also held a session at their General Assembly and issued their own material providing viewpoints on Independence.

Property

For the Presbyterian Church (U.S.A.) this was certainly a hot topic with a GAPJC decision, civil legal challenges, settlements and high-valued negotiations. For this post the full extent of the property news is left as an exercise for the reader but there are still a lot of open questions and at the moment there seems to be momentum in favor of the hierarchical church.

Another property news item is the Greyfriars Church in Port of Spain, Trinidad. The historic structure was sold to a developer and it’s future is uncertain. Some preliminary demolition has begun and efforts are underway to try and preserve it.

PC(USA) Ethics Investigation

In a still developing story, it was revealed that four PC(USA) church development employees associated with Presbyterian Centers For New Church Innovation were the subjects of an internal ethics investigation for not following policy in setting up an outside non-profit corporation to facilitate distribution of 1001 Worshiping Communities funds. Initially there were administrative actions taken but as the story grew the four were placed on administrative leave and an outside law firm brought in to conduct an independent investigation. At year’s end it was decided that firm had a conflict of interest and a new firm was chosen.

Israel-Palestine Actions

The other hot topic leading up to the PC(USA) General Assembly was issues around Israel-Palestine. At the previous GA a proposal for divestment from three companies who profited from Israel’s occupation of Palestinian territory failed by a very narrow three-vote margin. The proposal was returning to this GA. In addition, a PC(USA) affiliated group, The Israel/Palestine Mission Network, (IPMN) issued a controversial study guide Zionism Unsettled that questioned Israel’s character and identity. While IPMN does not speak for the PC(USA) the study guide was sold by the official Presbyterian Distribution Services making the distinction fuzzy in many minds. In addition, there was some advanced controversy when the commissioner chosen to moderate the related commissioner committee was asked to step down because a number of people questioned his impartiality.

The 221st General Assembly did approve the divestment proposal by a slim seven-vote margin, but the action also encourages ecumenical dialogue in the region and affirms the denomination’s commitment to Israel and the peace process.

The Presbyterian Distribution Service dropped Zionism Unsettled shortly after the Assembly and it is now available on the IPNM web site. However, studies around this topic are available on Thoughtful Christian.

Women’s Ordination and Related

The religion gender issues news this year was dominated by the Church of England and the completion of the process to have women serve as bishops. In fact, in Presbyterian circles it was a very quiet year for complementarian/egalitarian discussions, which in itself is probably news.

The one big item is the decision by the Mizoram Synod conference to reject a long-standing request from Kohhran Hmechhia, the Women Ministry of the Presbyterian Church, to ordain women theologians.

In another story, history was made when Michael Barry and Liz Hughes tied in the first round of voting for Moderator of the General Assembly of the Presbyterian Church in Ireland. Rev. Barry was elected in the second round by one vote over Rev. Hughes and a third candidate, Rev. McNie. This was the strongest showing that a female candidate has had in the election.

Death of Ian Paisley

Among several notable deaths in the Presbyterian community, the death of Ian Paisley stands out for his iconic status in both Northern Irish religion as the leading founder of the Free Presbyterian Church and for his important roll in politics and reconciliation in Norther Ireland.

And a couple of other Presbyterian-ish stories

Knox 500

While the date of birth of John Knox is not known with certainty, the best information suggests that it may have been in 1514 making this the 500th year of his birth. This was marked by the Knox 500 Conference in Edinburgh as well as the making of a documentary about him titled “Give Me Scotland.”

Spectacular Viking treasure hoard found on Church of Scotland land

Not your typical religion news story but a very important archaeological discovery involving the Kirk and a couple of its ministers as well as a metal detectionist.

And let me take a moment to throw in two transitions: The retirement of Jerry Van Marter after over 26 years with the Presbyterian News Service and Jack Haberer stepping down from the helm of the Presbyterian Outlook to return to parish ministry. Best wishes to both in their new settings.

And those are some of the highlights of 2014. Now as we look ahead to 2015 – 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.

May you balance your ardor and order and remember to be decent and in order.

Happy New Year!

A Brief Note On Texas Church Property Court Cases

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There was a brief ripple on the church property legal front this past week as the U.S. Supreme Court declined to hear an appeal of the Texas Supreme Court Decision regarding the Episcopal Church cases. Personally I found this to be an expected outcome and frankly a non-event for reasons I will explain in a minute, but it occasioned a look at another Presbyterian case that has some related characteristics.

The Texas case is the one I discussed recently where the Texas Supreme Court overturned the summary judgement granted to the mainline Episcopal Church in the lower courts based on it being a hierarchical denomination. The Texas decision then sent it back down to the trial court for a full hearing on neutral principals but The Episcopal Church appealed it to the U.S. Supreme Court which this past week included it in a summary order of the cases that they declined to hear.

As I said in the lede, nothing in this struck me as unusual as the high courts prefer to weigh in after a case has run its course in the lower courts. In addition, the U.S. Supreme Court has, to my knowledge, yet to accept any of the recent church property cases for review. As a more experienced observer of the Episcopal church property cases, Allan Haley who writes at the Anglican Curmudgeon, says in his analysis of this order:

The order was expected, because neither decision by the Texas Supreme Court was final. The U. S. Supreme Court almost never agrees to review lower court decisions until they are final. In these two cases, the Fort Worth matter was sent back to Judge Chupp’s court for a trial, and the Church of the Good Shepherd case was likewise sent back to the trial court in San Angelo for further proceedings.

The action by SCOTUS now frees both of those cases to move ahead.

Reading further in his analysis I was interested to see that the parties who have left the mainline Episcopal church have filed for summary judgement and how, in his view of the cases, now it all comes down to one specific question:

In Fort Worth, Bishop Iker’s attorneys have filed a motion for summary judgment which is scheduled for a hearing in December. Given the decision by the Texas Supreme Court, the only question remaining for the trial court to decide is whether or not ECUSA managed to create a valid trust in the Diocese’s property which the Diocese did not revoke when it decided to withdraw in 2008. In Texas all trusts are deemed to be fully revocable at any time, unless the language creating the trust states otherwise.

I am not sure that is the only issue to be resolved but I don’t follow these with the focus or knowledge Mr. Haley does. It will be interesting to see where this goes.

This news has brought to the forefront another Presbyterian case that I have not previously included in these discussions, that of Windwood Presbyterian Church in Houston. As a Christian Post article details the history, they began the process of getting clear title to their property back in 2008 and departed for ECO: A Covenant Order of Evangelical Presbyterians this past May with the property issue still unresolved. As in the Episcopal cases they initially lost on summary judgement in the Texas courts because of the hierarchical church argument but the August 2013 Texas Supreme Court decision caused the Appellate Court to vacate their earlier decision and send the case back to the trial court for a full hearing.

But Mr. Haley’s comment above about whether a valid trust was created caught my eye because that will clearly play a role in this case. Windwood was a member of the PCUS at the time of the union creating the PC(USA) and the PCUS churches had the option of avoiding the trust clause.  I quote from the fourth page of the Appellate decision (emphasis mine):

The Book of Order also contains a provision permitting a local church, with in eight years of the formation of the PCUSA, to opt out of the trust provision if it had not been subject to a similar provision before the formation of the PCUSA. Windwood never exercised this right.

While Windwood has multiple arguments for it’s clear ownership of the property under a neutral principles approach, it seems that their not having exercised this option is a significant hurdle they have to cross. This would appear to be an acknowledgement by the church back in 1991 (eight years after the union) that they are subject to the trust clause in a hierarchical church. I am curious to see how all this balances out as the courts see it.

As a side note, I would point out the case of Timberridge Church in Georgia where Atlanta Presbytery successfully argued that the opt-out was only one of several tests of whether the trust clause was in place and that the congregation was still subject to it in spite of exercising the option. But to my knowledge, that case is unique regarding the interpretation of the opt-out option.

So, as usual, each case carries its own nuances. And, based upon past history on these cases, whichever side prevails in the trial court appeals can be expected. We will see where all this leads.

A Property Settlement In Texas

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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.