An open letter regarding the Synod of the Sun’s administrative commission for South La. Presbytery
By Lloyd Lunceford, Special to The Layman Online, May 7, 2008
News that a synod has appointed an administrative commission to remove from a presbytery its ordinary decision-making authority concerning property signals a dramatic development in the life of the Presbyterian Church (USA). The synodical appointment of an administrative commission to remove authority from a presbytery is extremely rare, if not unprecedented, in the history of the PCUSA. This development, though significant, should not startle.
On Aug. 13, 2006, the PCUSA’s Office of Constitutional Services issued Advisory Opinion: Note 19, which gave notice to presbyteries of a potential synodical takeover in the event a presbytery failed to enforce the property trust clause at G-8.0201 of the Book of Order.
That salvo, intended to have a chilling effect on presbyteries, did not achieve its desired result. Consequently, on April 25, 2008, the Synod of the Sun (Texas, Oklahoma, Arkansas and Louisiana) went the next step. It appointed an administrative commission which, while stopping short of assuming “original jurisdiction” over the Presbytery of South Louisiana for all purposes, nevertheless assumed all authority to approve or disapprove “all pending and future decisions regarding property in the Presbytery of South Louisiana … .”
What sin had the PSL committed to deserve this usurpation of its normal authority? What allegations were made or evidence produced that prompted this unprecedented action? What process was followed or standard of review applied to reach this result? Although the Synod of the Sun’s action is directed to just one presbytery in the Gulf South, its action has nationwide repercussions that should trouble not only evangelical renewal organizations, but denominational executives and presbyteries of every theological stripe around the country.
I have served as legal counsel to several of the particular churches within the Presbytery of South Louisiana that have sought civil court clarification of the respective property rights of the local churches and the presbytery. I am personally familiar with the relevant facts and controlling law. Respectfully, the Synod of the Sun acted without first fully considering all of the pertinent facts and law. It acted at the request of a disgruntled few within the presbytery. It acted in disregard of the prudent stewardship of the general presbyter and the Presbytery Council, and the entire presbytery’s democratic process. And it acted on the basis of only vague allegations.
Some readers may dismiss this characterization as “sour grapes.” They would be mistaken. From a legal standpoint, the appointment of the administrative commission does not alter the merits of the two property cases currently pending in south Louisiana, and cannot change the outcome of the prior cases where property rights have been adjudicated to final, non-appealable judgments.
To better understand the significance of the Synod of the Sun’s action, the following background will be helpful. This is an illuminating tale, so bear with me through some of the details. They are pregnant with meaning.
In November 2006, the Presbytery of South Louisiana voted, on the advice of its attorney and recommendation of its council, to stipulate to a property judgment recognizing that First Presbyterian Church of Baton Rouge held its property free of any legally valid trust claims. No appeal, to the civil courts or to the ecclesiastical courts, was made. That judgment is now final and non-appealable.
However, as an alternative to judicial recourse, in early 2007 the Synod of the Sun appointed a special administrative review committee to look into the circumstances surrounding the PSL’s decision to stipulate to a judgment in favor of FPCBR. Upon completion of its review, that committee opined that it thought that an enforceable property trust in the national denomination’s favor was essential to Presbyterian connectionalism (a proposition contrary to Presbyterian history). On the basis of this (faulty) premise, the committee concluded that the PSL’s stipulation to the judgment “negated” the connection between the particular church and the PCUSA. However, despite this conclusion, the synod committee’s report recommended that “no action” be taken against the PSL. The committee report was subsequently “received” by the full synod.
Because the report recommended “no action,” and because the report had only been “received” rather than “adopted” by the synod, the general presbyter for the Presbytery of South Louisiana advised the local church that it could, in effect, disregard the report’s assertion that the connection between of the local church and the PCUSA had been severed. Insofar as the PSL was concerned, First Presbyterian Church of Baton Rouge was still a member church in good standing with the PCUSA. From the vantage point of the local church, though, the report’s assertion was deeply troubling. It left the local church in ecclesiastical limbo. True, the Synod of the Sun had only received the report rather than adopted it, but neither did it reject the report. The synod’s action had the effect of forcing the local church to the banks of the denominational Rubicon.
First Presbyterian Church reasonably believed that the Book of Order’s grant of authority to presbyteries to “dismiss” churches must necessarily be construed as only a limitation on the authority of other PCUSA governing bodies (session, synod and General Assembly) and could not be lawfully construed as an abridgement on a congregation’s constitutionally protected rights of freedom of assembly and worship to determine its own collective ecclesiastical future. In the absence of any dismissal process adopted by any PCUSA governing body, FPCBR embarked on an almost nine-month period of discernment to seek the Lord’s will for its future.
As part of that process, the session’s denominational affairs committee met personally with the general presbyter for the Presbytery of South Louisiana, the executive director of the Synod of the Sun, and even the executive director of the General Assembly Council. That last meeting, with Linda Valentine, may have been the straw that broke the camel’s back. Ms. Valentine surprisingly disclaimed any knowledge of the “Louisville Papers” or the draconian policy adopted by Heartland Presbytery. When asked to discuss the shrinking national budgets for missions, she dissembled. She offered no remedy to the declining number of full-time evangelizing or church-planting missionaries supported by the PCUSA. She expressed no concern for unrestrained theological pluralism, and viewed churches holding mutually exclusive theological views within the PCUSA as a cause more for celebration than discipline.
At the conclusion of a very thorough and deliberate process, First Presbyterian Church unilaterally voted for legal disaffiliation from the PCUSA, but also subsequently cooperated with the PSL when the presbytery exercised its ecclesiastical function to formally “dismiss” the local church from the PCUSA. [A similar sequence of events occurred with respect to River Community Church, a nearby church formed by First Presbyterian, which owned the River property.]
Subsequently, two more property suits against the Presbytery of South Louisiana were concluded by the presbytery voting to stipulate to final judgments. Those judgments recognized that First Presbyterian Church of Thibodaux and Woodland Presbyterian Church (New Orleans) both held their property free of any third-party trust claims. Again, the PSL acted only after receiving the advice of its lawyer and on the recommendation of the PSL Council. No appeals, civil or ecclesiastical, ensued. The judgments are final. First Presbyterian Church of Thibodaux has not unilaterally voted to legall
y disaffiliate as of this writing, but has since decided to petition the PSL for ecclesiastical dismissal. It has been going through the PSL’s newly adopted dismissal process. However, Woodland Presbyterian Church has taken no action, either to unilaterally vote to legally disaffiliate or to petition the presbytery for ecclesiastical dismissal.
Two additional churches, which will go unnamed to protect the innocent, also retained legal counsel to evaluate the strength or weakness of their respective property claims. However, despite having compelling facts and law in their favor, they decided not to file suit for a declaratory judgment.
At present, two other churches within the Presbytery of South Louisiana have property suits pending in civil court: Canal Street Presbyterian Church and Carrollton Presbyterian Church, both of New Orleans. Canal has not made any decision to leave the PCUSA. Carrollton has affirmatively stated that its effort to obtain clear title has nothing whatsoever to do with any plan to leave the PCUSA. [Indeed, for financial reasons, obtaining a declaratory judgment of clear title in Carrollton’s favor would actually help save the PSL tens of thousands of dollars in avoidable expenses, such as the Presbytery assuming payment of $36,000.00 per year in property insurance premiums.]
It cannot be emphasized too strongly that in each instance, the PSL’s actions, in stipulating to judgments favoring four churches and in subsequently dismissing two of them, followed open and democratic debate on the floor of presbytery at which full opportunity was provided for both opponents and proponents to be heard. All of the presbytery’s actions were on the recommendation of its council, which previously convened to hear and consider the advice of its attorney. Its attorney had reviewed the state law and the particular facts of each case. The PSL’s only alternative was to spend money it did not have to fight cases it could not win.
In each case, the real property owned by FPCBR/RCC, FPCT, Canal and Carrollton were owned by churches that were formed between 1827 and 1855. Woodland was formed in the 1950s. All property was titled in the name of the local churches only, with only local funds used for the purchase of land, construction of buildings, and subsequent maintenance and insurance. Each church timely exercised the exemption provision in Chapter VIII of the Book of Order, to fall back on the property provisions of the former PCUS that were in place at the time the PCUSA was formed. Although those PCUS property provisions were amended in the last year of the PCUS’s 118-year existence to insert assertions of a trust, the documentary evidence produced by each church (contemporaneous correspondence and minutes) indicated their understanding at the time that in exercising the exemption provision, they were retaining historic ownership and control of their local property.
Those were the facts confronting the Presbytery of South Louisiana. As for the law, Louisiana, like most states, is a neutral-principles legal jurisdiction. More specifically, Louisiana law does not recognize the Book of Order’s trust clause as a valid and enforceable formation of an express trust. Louisiana law, perhaps owing to its unique Napoleonic heritage, is especially skeptical of trusts. Louisiana law only recognizes express trusts that strictly conform to statutory form requirements. Additionally, state law in Louisiana frowns on implied trusts. State law would only recognize an implied trust in favor of the PCUSA if the substantial portion of the local church property had initially been donated to the local church by the PCUSA.
These facts and this law explain the advice given by the PSL’s attorney, whose advice informed the recommendation of the PSL Council and the final vote of the PSL itself. As already stated, the PSL’s only alternative was to spend a lot of money it didn’t have to fight cases it couldn’t win. However, by working with these churches instead of needlessly fighting against them, the presbytery acted prudently to preserve a measure of goodwill that has (up until now) resulted in continued, voluntary financial gifts by these churches to the presbytery even after departure, in two instances, from the PCUSA.
In every circumstance, the Presbytery of South Louisiana acted in a clear-eyed, prudent manner and only after first hiring independent counsel to research the law and perform an individualized, case-by-case evaluation of the facts presented by each particular church. After all, in proceeding in this fashion, the PSL only heeded the advice of the PCUSA’s official Legal Resource Manual for Middle Governing Bodies. It acknowledges, at the top of page 1, that most church property matters are governed by state law. Such law, in neutral-principles jurisdictions like Louisiana, stands in contrast to provisions adopted internally by ecclesiastical bodies without the participation or consent of the title holders of record (which, for the churches involved, candidly had to be conceded were civil corporations governed by state nonprofit corporation law). What, then, had the presbytery done wrong to warrant usurpation of its authority?
It should be remembered that decisions by the Presbytery of South Louisiana, whether stipulating to a few final property judgments or exercising its prerogative under the Book of Order to dismiss a church to another Reformed body, all passed by overwhelming majorities on the floor of the presbytery. The votes were often by margins of 85 or 90 percent or more. No matter. The Synod of the Sun disregarded the deliberative, case-by-case-approach followed by the PSL, and disregarded its democratic processes. The synod instead appointed an administrative commission at the request of seven disgruntled ministers and three elders (from one church). In their April 8, 2008 letter to synod Executive Judy Fletcher, these disgruntled individuals expressed “concern” that unnamed “presbytery leaders” had given “insufficient consideration to the protocols set forth in the church’s constitution pertaining to (property) matters.”
By what standard of review did the synod conclude that such vague and unsubstantiated allegations, by less than 10 percent of a presbytery’s commissioners, warranted the extraordinary step of removing the presbytery’s authority on property matters? No real hearing was held. No credible evidence was submitted to the synod. Hearsay, innuendo and misinformation prevailed. Even if such lack of due process is allowed by the Book of Order (it is not known if remedial action will be instituted), it is nevertheless rule-by-fiat.
Interestingly, prior to the synod appointing an administrative commission on April 25, Rev. Fletcher, in a show of pastoral concern, met informally with the PSL Council a few days earlier. Following that meeting, the PSL Council wrote a letter, on April 22, 2008, to the Synod Council that actually expressed qualified support for the formation of an administrative commission – but not for the purpose of assuming original jurisdiction, in whole or in part. The PSL Council concurred in the formation of an administrative commission only for the purpose of ongoing “consultation.” However, that expression of collegiality among brethren did not appease. The synod acted to appoint a 13-member administrative commission that wrested all authority on property matters from the PSL.