Summary judgment sought in Kirk of the Hills case
By Patrick Jean, February 1, 2007
A lawyer for Kirk of the Hills Presbyterian Church in Tulsa, Okla., is seeking a summary judgment for the church in its property ownership lawsuit against Eastern Oklahoma Presbytery and the Presbyterian Church (USA).
Attorney John O’Connor filed the motion Jan. 22 in Tulsa County District Court. The presbytery and denomination were served the same day and have 15 days to respond, but O’Connor expects them to ask the court for up to 30 days.
The church then would have an opportunity to file a reply or rebuttal. “We expect the judge will want to have a hearing within 30 days of the filing of our reply or rebuttal,” O’Connor said.
That would put the hearing date around mid-April. O’Connor anticipates Judge Jefferson D. “Jeff” Sellers will apply Oklahoma law and decide the case himself rather than defer to the decision of the presbytery’s Administrative Commission, which is looking into the issue separately.
The judge also could move the case to trial, said Tom Gray, co-pastor of Kirk of the Hills. A trial could take up to two years, he said.
Claims and counterclaims
The Kirk of the Hills congregation voted in August 2006 to leave the PCUSA and affiliate with the Evangelical Presbyterian Church. In its lawsuit, filed that same month, the church contends that the property and assets of the congregation are owned by an independent corporation for the benefit of Kirk of the Hills members and are not subject to control by the denomination.
The lawsuit was part of the church’s response to the presbytery’s affidavit filings in March 2006 asserting that the property of its congregations was held in trust for the benefit of the denomination, as stated in the Book of Order. Those filings sought to prevent lending agencies and insurers from doing business directly with the congregations without permission from the presbytery.
In counterclaims filed late last year, the presbytery and denomination accused officers of Kirk of the Hills and its independent corporation of a “scheme” to deprive the presbytery and the PCUSA of their property rights. They asked the court to recognize that the PCUSA is “hierarchical” and declare that its constitutional property trust requirements do not permit a congregation to leave with its property. Only the presbytery can dismiss a congregation, they contend.
On Jan. 10, Kirk of the Hills’ lawyers filed a reply to the counterclaims.
O’Connor said if the presbytery succeeds in having the matter referred to its Administrative Commission, that would be a denial of due process and a violation of First Amendment guarantees against establishment of a government-sanctioned religion.
If the judge hears the case, “we expect to prevail,” he said. “The facts of the case are not in dispute.”
Can’t agree on precedent
Craig W. Hoster, attorney for the presbytery, believes his side has the upper hand. He cited a 1973 Oklahoma Supreme Court ruling that established “hierarchical deference” as the legal precedent in church property ownership cases.
In Presbytery of Cimarron v. Westminster Presbyterian Church of Enid, the court found that a local church is bound by the constitution and decisions of a national hierarchical church to which it voluntarily belongs. Sellers cited the 1973 ruling as “the law which this court has to follow” at an October hearing.
“We’d like the Administrative Commission to proceed under the Book of Order and come up with a resolution that all parties, including the court, could follow,” Hoster said.
The Administrative Commission will meet Feb. 7 and has invited Kirk of the Hills representatives to discuss the case, said Greg Coulter, general presbyter of Eastern Oklahoma Presbytery. They have yet to respond, he said.
The commission hopes to have a report ready for the presbytery’s stated meeting on March 6, Coulter said. It would be posted on the presbytery’s Web site to be reviewed in advance by those attending the meeting, he said.
O’Connor disagrees with Hoster and Sellers as to which ruling establishes legal precedent in the Kirk of the Hills case. In his summary judgment motion, he argues that the 1973 case is “clearly distinguishable” from the facts in the Kirk of the Hills case. “Further, Cimarron was decided in 1973, at a time when the Oklahoma Supreme Court felt compelled to apply the deference doctrine to the dispute, and noted that it was not free to do otherwise.”
O’Connor cited:
- Jones v. Wolf, a 1979 U.S. Supreme Court ruling that stated the preferred application for settling a church property ownership case is using neutral principles of state and federal law.
- Oklahoma District Council of the Assemblies of God v. New Hope Assembly of God Church of Norman, a 1979 Oklahoma Supreme Court ruling that stated a legal dispute between religious institutions that does not involve doctrine “must be resolved upon neutral, non-religious grounds.”
O’Connor is seeking to have “neutral, non-doctrinal” Oklahoma law applied to the case.
Business as usual at the Kirk
Kirk of the Hills is doing well despite the ongoing legal fight, Gray said. Attendance is up and mission giving exceeded $1 million last year, he said.
Gray said Kirk of the Hills is conducting business as per the Constitution of the Evangelical Presbyterian Church, but hasn’t officially joined. The denomination has been “supportive and helpful without being intrusive,” he said.
Gray said his church is waiting to see what happens at the New Wineskins Association of Churches’ Winter Convocation on Feb. 8 and 9 in Orlando, Fla. A report that will be reviewed at the convocation says the Evangelical Presbyterian Church will vote in June on whether to establish a transitional, non-geographic presbytery to receive churches that disaffiliate from the PCUSA.
The church’s lawsuit does not touch on theological differences with the PCUSA, Gray said. “Our only issue with PCUSA [in the lawsuit] is property,” he said.
Kirk of the Hills has lost only about 30 of its 2,700 members to other congregations since the legal battle ensued, Gray said. “It’s amazing how supportive the congregation has been.”
“The morale is high. It’s a pleasure to be working,” he said. “We just don’t know where we’ll be working in a couple of years.”
Patrick Jean is a staff writer for The Layman Online. He can be reached at pjean@layman.org.