Congregation-friendly property policy is unconstitutional, synod committee says
By Patrick Jean, July 6, 2007
The Presbytery of Mississippi’s congregation-friendly property policy is not in accordance with the Constitution of the Presbyterian Church (USA), an administrative review committee for the Synod of Living Waters has ruled.
Specifically, the committee charges in an eight-page draft report sent to the presbytery, the policy “ignores the trust provision in Chapter 8 (G-8.0201)” of the Book of Order. That clause states, “All property held by or for a particular church, a presbytery, a synod, the General Assembly, or the Presbyterian Church (USA), whether legal title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in programs of a particular church or of a more inclusive governing body or retained for the production of income, is held in trust nevertheless for the use and benefit of the Presbyterian Church (USA).”
The committee also takes to task the presbytery commissioners who adopted the policy Nov. 30, 2006. “The elders and pastors who took such action,” the report states, “did so in violation of their answers to the ordination question asked of all elders and pastors (G-14.0405b(5) for pastors and G-14.0207e for elders): ‘Will you be governed by our church’s polity, and will you abide by its discipline?'”
The committee recommends several modifications, deletions and additions to the policy, including the removal of language that says the presbytery won’t act to enforce “any general trust interest claimed by any higher governing body against any property, real or personal, held by any of its particular churches” and won’t resist “any particular church of the presbytery … which would ask the courts of the state of Mississippi to clear its property of any claims made by higher governing bodies against that property.”
If the presbytery doesn’t take the committee’s advice, the committee states it is “bound to recommend that the Synod of Living Waters direct the presbytery to amend its property policy in such a way that it is brought into accord with the Book of Order.”
The presbytery council has received copies of the report and will make recommendations when it meets later this summer, said the Rev. John C. Dudley, stated clerk of Mississippi Presbytery. The presbytery’s next stated meeting is in October.
Lawsuits follow presbytery’s action
Last November, Mississippi became the first of the denomination’s 173 presbyteries to repudiate the property trust clause. A purpose statement accompanying the presbytery’s property policy drew attention to actions that heightened polarity over church property:
- In April 2006, the trustees of Eastern Oklahoma Presbytery filed an affidavit placing a claim on all the real property belonging to congregations within the bounds of the presbytery. This was a strategy recommended in a paper titled “Church Property Disputes” that was produced for the stated clerk of the General Assembly.
- Lawyers for Clifton Kirkpatrick, the stated clerk, privately disseminated “privileged and confidential” papers on “Church Property Disputes” and “Processes for Use by Presbyteries in Responding to Congregations Seeking to Withdraw” – later dubbed “The Louisville Papers.” Those documents, which were published Aug. 9, 2006, by The Layman Online after it anonymously received copies, urge presbyteries to use aggressive measures when trying to claim the property of churches that are troubled by the direction of the denomination.
The first civil-court test of Mississippi Presbytery’s property policy came Dec. 7, 2006, when J.J. White Memorial Presbyterian Church in McComb sought a temporary restraining order, preliminary injunction and declaratory judgment. On Dec. 15, Pike County Chancery Court Chancellor Deborah K. Halford signed a stipulated preliminary injunction that prevented the presbytery from staking a claim on J.J. White’s property.
First Presbyterian Church in Vicksburg went to court next, filing a petition for a temporary restraining order, preliminary injunction and declaratory judgment Jan. 4 in Warren County Chancery Court. On Jan. 16, court Chancellor Vicki R. Barnes signed a stipulated preliminary injunction in which the presbytery agreed not to make legal efforts to assert ownership of the church’s property.
Two days later, the Presbytery Council of Mississippi Presbytery appointed a three-person subcommittee to draft a proposed final judgment on the J.J. White lawsuit. Stewart Robison, attorney for J.J. White and an elder of the church, said he and the subcommittee would make the judgment a template to apply to the Vicksburg case and any future cases.
The next case came Feb. 5, when First Presbyterian Church in Pascagoula filed a petition for a temporary restraining order, preliminary injunction and declaratory judgment in Jackson County Chancery Court.
On Feb. 24, presbytery commissioners voted nearly unanimously to instruct their attorney to amicably resolve the churches’ lawsuits. Final declaratory judgments were entered Feb. 26 in the McComb case and March 2 in the Pascagoula and Vicksburg cases.
Three clauses of Book of Order cited
The Synod of Living Waters – acting on a request from Mississippi’s other presbytery, St. Andrew – agreed at its annual meeting Jan. 29-30 to conduct a special administrative review of Mississippi Presbytery actions relating to church property ownership issues. “There had been concerns raised at the synod meeting about the Mississippi property policy, both as to its constitutionality and as to the possible effects it could have on other presbyteries in the synod and their churches,” the administrative review committee’s report states.
The five-member administrative review committee held several conference-call meetings, then met April 26 with representatives of Mississippi Presbytery at the presbytery’s office in Hattiesburg. The committee drafted its report May 24 and mailed it to the presbytery June 6.
A cover letter, signed by each member of the committee, accompanies the report and states: “It is sent to you in draft form because we hope that Mississippi Presbytery will act on the recommendations of the administrative review committee and revise the property policy in such a way that it will comply with the Constitution. If these recommendations are implemented, we will gladly revise our draft report so that our report to the synod indicates that the revised property policy of Mississippi Presbytery is in accord with the Constitution.”
In its report, the administrative review committee determined that the proceedings at which the Mississippi Presbytery property policy was approved:
- “Were not in accordance with the Constitution” of the PCUSA (G-9.0404a(2)).
- “Were not prudent or equitable” (G-9.0409a(4)).
- “Have not been faithful to the mission of the whole Church” (G-9.0409a(4)).
In finding that the proceedings were unconstitutional, committee members said, “We base this determination on the fact that the property policy ignores the trust provision in Chapter 8 (G-8.0201). While we understand the confusion that may have existed about the exemption that was claimed by many, if not most of the existing churches in Mississippi Presbytery during the eight-year period after reunion, no governing body may choose which portions of the Book of Order it will live by and which it will disregard.
“Either we have a Constitution we will all live by, or agree to change where and when necessary, or we will have no Constitution and thereby no connectional polity and thereby no PCUSA,” the report states.
The administrative review committee said the presbytery “cannot choose to ignore the actions of its churches that contravene the Book of Order, such as pre-emptively suing the presbytery in civil court to negate the trust clause and gain title to their property.” According to committee members, the presbytery’s response to the McComb, Pascagoula and Vicksburg churches’ lawsuits was to cite item 11 in its property policy, which resolves that the presbytery “will not resist any particular church of the Presbytery of Mississippi which would ask the courts of the state of Mississippi to clear its property of any claims made by higher governing bodies against that property.”
“When churches clearly choose to act over and against the clear word of Scripture (1st Corinthians 6:1-8) … and without consulting with their brothers and sisters in the presbytery, and file suit against the presbytery (their brothers and sisters) in the civil courts, when there is ample recourse through the church courts as set out in the Book of Order, the presbytery has the obligation to both point out this error and to resist the erroneous actions of any church,” committee members said.
Mississippi Presbytery elders and pastors who voted for the property policy “did so in violation of their answers to the ordination question asked of all elders and pastors (G-14.0405b(5) for pastors and G-14.0207e for elders): ‘Will you be governed by our church’s polity, and will you abide by its discipline?’ ” the report states.
“By placing the aforementioned item in its property policy,” committee members said, “the presbytery actually seemed to encourage other churches to also file suit against the presbytery to have the civil courts declare them to be the holder of title to their property, and many of them have done so (seven to date).” Dudley would not say which churches filed suit after McComb, Pascagoula and Vicksburg, but the actual total number of cases is now thought to be higher than seven.
In finding that the proceedings were not prudent or equitable, committee members argue that, “By ignoring the trust clause and preemptively declaring that the property of each church in Mississippi Presbytery be determined by the local courts to be the property exclusively of that local church, Mississippi Presbytery has given away its ability to help a church in schism.
“As a result,” the report states, “the presbytery has no standing in protecting the rights of any minority that may remain loyal to the PCUSA in the event that the majority might vote to leave the denomination.”
The report states that item 12 in the property policy attempts to address this by stating the presbytery “resolves that nothing contained within this policy statement shall abrogate the authority and responsibility of presbytery under sections G-8.0401 and G-8.0601 of the Book of Order.”
“However, by negating the trust clause and in effect giving over its constitutionally mandated responsibilities vis-à-vis church property, Mississippi Presbytery has in effect removed itself from any practical role to be the arbiter in any property dispute in any of its churches, because it has no vested interest, which the trust clause explicitly declares the presbytery to have,” committee members said.
In finding that the proceedings were not faithful to the mission of the PCUSA, committee members said they “discovered two primary responses from the presbyteries” in the Synod of Living Waters: “Those that are geographically distant from Mississippi Presbytery report no effect. Three of the presbyteries closer to Mississippi Presbytery, however, report significant effect.”
A representative of one neighboring presbytery told committee members that Mississippi Presbytery’s property policy was “hanging like a dark cloud” over them. “Our focus has been on … another matter in this presbytery, but I believe the Mississippi Presbytery policy will be an issue here in the near future,” the presbytery representative told the committee.
Two other neighboring presbyteries reported to the committee that the policy’s impact “had been and continued to be felt and that it seemed to encourage some of their churches to similarly take their concerns to the civil courts for adjudication of property title.
“While some in Mississippi Presbytery feel that their property policy should be a model for all presbyteries,” the report states, “there are clearly many in other presbyteries that view this property policy as detrimental to their mission, and to the mission of the greater church.”
Recommended changes
The administrative review committee recommends Mississippi Presbytery make the following changes to its property policy to bring it “into compliance with the Book of Order:”
Item 8 reads that the presbytery, “Recognizes all its particular churches as having the ability to sell, lease, mortgage or otherwise encumber any of their real property without further written permission of the presbytery.” The committee recommends the item be changed to read that the presbytery, “Recognizes that those churches who exercised the property exemption (G-8.0701) that was available in the eight-year window after reunion (which action is duly recorded in the minutes of Mississippi Presbytery) have the ability to sell, lease, mortgage or otherwise encumber any of their real property without further written permission of the presbytery.”
Item 9 reads that the presbytery, “Recognizes all its particular churches as having the ability to acquire real property subject to an encumbrance or condition without further written permission of the presbytery.” The committee recommends the item be changed to read that the presbytery, “Recognizes that those churches who exercised the property exemption (G-8.0701) that was available in the eight-year window after reunion (which action is duly recorded in the minutes of Mississippi Presbytery) have the ability to a