North Carolina church granted TRO, preventing presbytery from seizing its property and assets
By Craig M. Kibler, Staff Writer The Layman Online, July 17, 2007
A church in western North Carolina has been granted a temporary restraining order that prevents the presbytery or the Presbyterian Church (USA) from seizing control of the congregation’s property and assets.
The temporary restraining order, signed July 2 by Judicial District 29A Superior Court Judge James Baker, will remain in effect pending a hearing in which First Presbyterian Church in Marion is seeking a ruling that it, and not the Presbytery of Western North Carolina or the PCUSA, owns its property. That hearing has yet to be scheduled.
The Rev. Jim Wilken, pastor of the church, referred all questions to the congregation’s attorney, Stephen Little. Little was out of the country and did not respond to an e-mail seeking comment.
The Rev. Barbara (Bobbi) White, general presbyter of the Presbytery of Western North Carolina, said, “We were shocked and saddened. Without any discussion or notice, we were served with the TRO and complaint and a couple inches of paper” supporting those legal documents.
“At this point in time,” White said, “we’re trying to determine the best way to respond to it.
“We did invite the pastor and session to come before the presbytery’s committee on ministry or the presbytery council,” she said, “just to help us understand their thinking behind this action and to try to bring reconciliation and to listen to their concerns. They refused to come on the advice of their legal counsel.”
Presbytery letter
In a letter dated June 11 sent to the moderators and clerks of session of all congregations in the Presbytery of Western North Carolina, the Rev. James Aydelotte, the presbytery’s stated clerk, wrote that, in meetings held throughout the presbytery, “one question that regularly came up concerned property in our denomination.”
“The essential point,” he wrote, “is this: A congregation owns its property, but that property is held in trust for the denomination.”
Aydelotte’s letter cited G-8.0201, the property trust clause in the denomination’s constitution. In a comment on the clause, he wrote that: “The above provision clearly means that no congregation can alienate or remove its property from the PCUSA without the consent of its presbytery.”
Congregation’s resolution
The temporary restraining order cites the text of a resolution adopted by First Presbyterian Church on May 7, 1950, in which it states that the congregation, and not the presbytery or denomination, owns the property. That resolution reads as follows:
“Be it resolved: that the Trustees of the First Presbyterian Church of Marion, N.C., be and hereby are authorized and directed to execute and deliver to the First Presbyterian Church of Marion, N.C., Incorporated, a deed conveying in fee simple to said corporation all the real property located in McDowell County, N.C., held by said trustees of the First Presbyterian Church, Marion, North Carolina, said deed to be drawn in such manner as to insure the absolute ownership of said property by said corporation as against any claim that any presbytery, Synod or General Assembly or any other ecclesiastical body whatsoever, may make” [emphasis in original].
The temporary restraining order cites “The Louisville Papers,” denominational documents that advocate taking harsh measures against a congregation seeking to have itself declared the owner of its property.
In those documents, the TRO states, the denomination “issued instructions to its various presbyteries … to take unilateral action to claim ownership interests and exercise control over the real and personal properties of local churches who challenge [the] PCUSA’s governing documents and authority, such as [the] PCUSA’s trust clause and other provisions that purport to give PCUSA certain control over the properties of local churches.”
First Presbyterian Church in Marion, according to the TRO, “is informed and believes that presbyteries have removed the pastor, excommunicated the membership and padlocked the sanctuary of one or more local churches who challenged the presbytery’s or the denomination’s authority and control.”
In seeking the TRO, the congregation said it feared “immediate and irreparable harm through unilateral and forceful retaliatory action by [the presbytery] to padlock [the congregation’s] sanctuary and other buildings, seize and freeze … bank accounts, and completely disrupt and take over the local church.”
“Such unilateral, hostile, aggressive action,” the TRO states, would violate the congregation’s “historic, well-documented independent, congregational treatment of its property and would completely and irreparably destroy the 162-year-old life, reputation and mission of [the congregation] as a thriving church.”
Exception to clause
Aydelotte, in his letter to the moderators and clerks of session, said there was an exception to the property trust clause (Chapter VIII) in the Book of Order.
“If your congregation was a member of the Presbyterian Church in the United States (PCUS) – popularly known as the ‘Southern Presbyterian Church’ – before the 1983 reunion, and if your congregation duly voted before 1991 to abide by the property rules of the PCUS, then Chapter VIII does not govern your congregation’s property.
“Those congregations which could and did vote for the exception in G-8.0700,” he wrote in reference to a vote of the church congregation to exempt itself from the trust clause within a period of eight years from June 10, 1983, “do not have to obtain presbytery’s approval to buy, sell or mortgage their property.”
In its complaint, First Presbyterian Church stated that, at a regularly called meeting of its congregation June 24,1984, it adopted a resolution that stated “this congregation in a regularly called meeting voted to be exempt from the provisions requiring the written permission of presbytery before selling, encumbering, leasing church property or acquiring property subject to an encumbrance or condition as stated in G-8.0500 of the Form of Government of the Presbyterian Church (USA)” [emphasis in original].
The complaint also states that, “according to the provision of G-8.0701 of the Form of Government of the Presbyterian Church (U.S.A.), this congregation voted to hold its property and exercise its privileges of incorporation and property ownership according to the Form of Government provisions of Chapter 6 of the Book of Church Order of the former Presbyterian Church in the United States as that chapter existed on June 10, 1983″ [emphasis in original].
Craig M. Kibler is the Director of Publications/Executive Editor of The Layman and The Layman Online. He can be reached at cmkibler@www.layman.org.