Lay Committee files amicus before Georgia Supreme Court
By Parker T. Williamson, The Layman, July 7, 2011
The Presbyterian Lay Committee (PLC) has filed an amicus curiae (“friend of the court”) brief before the Supreme Court of Georgia on behalf of the Timberridge Presbyterian Church. At issue is the Presbytery of Greater Atlanta’s attempt to confiscate Timberridge’s property after it left the Presbyterian Church (USA) and joined the Evangelical Presbyterian Church. The presbytery’s claim was affirmed at the trial court level but was overturned by the Georgia Court of Appeals.
The stated clerk of the PCUSA filed an amicus with the Georgia Supreme Court on behalf of the presbytery. The PLC answered that brief, telling the high court that the denomination’s position on church property is “plainly wrong.”
In its amicus, the PLC argued that at the time of the merger between northern and southern Presbyterian denominations (PCUS and UPCUSA) in 1983, “hundreds of old-line southern churches opted out of the new denomination’s Book of Order’s purported ‘trust clause.’” Timberridge was one of those churches. In signing that waiver, said the PLC, these churches “expressly stated their intent not to be subject to such a trust.”
The denomination’s “imposition” of a purported trust violates Georgia law and the denomination’s own constitution which states that its ecclesiastical regulations have “no civil effect,” said the PLC. Georgia law requires that a trust can only be established by the property owner, not by a self-proclaimed beneficiary, and Timberridge never agreed to place its property in trust for the denomination.
The Book of Order is ‘self limiting’
The denomination’s constitution (Book of Order G-9.0102) states “Governing bodies of the church are distinct from the government of the state and have no jurisdiction or power to impose civil penalties.” On that basis, the PLC argued, “If forfeiture of property is not a civil penalty, then what is? By its own terms, the Book of Order cannot be used to bring about a forfeiture of property. It is self limiting in this regard …”
“Although it makes perfect sense that a denomination should have the ability to regulate ecclesiastical conduct within its jurisdiction,” said the PLC, “a denomination cannot usurp civil law functions, override civil law determinations, or set aside statutory regulations on ordering civil affairs. The PCUSA can no more override state statutes regarding trusts and titled property than it can tell a local church to ignore local fire regulations and zoning codes. Property ownership is a matter of civil law, and compliance with such governing regulations is not subject to a denomination’s constitution’s dictates.”
Reading Jones wrong
“The proposition that the PCUSA’s purported trust clause legally divests Timberridge of its property is predicated upon an incomplete and improper reading of Jones v Wolf, 443 U.S. 595 (1979)” said the PLC. In that case, the U.S. Supreme Court favored a “neutral principles of law” approach when adjudicating the disposition of local church property. Then it suggested an expressly limited hypothetical procedure by which churches might ensure that local church property could be claimed by the denomination. The PCUSA quoted only part of that court’s opinion, said the PLC, and it erroneously interpreted the fragment that it did quote.
The Supreme Court said “the outcome of a church property dispute is not foreordained.” But the PCUSA’s argument that the denomination’s trust clause trumps all local church property claims “would mean that the dispute is foreordained, which is directly contrary to what Jones says,” said the PLC.
No agreement between the parties
Regarding the limited procedure that might warrant denominational claims to local church property, the Supreme Court said that “at any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property.” The PCUSA argues that this was accomplished when the denomination enacted its trust clause. But the PLC said in its amicus that Timberridge, one of the “parties” in this case (the party whose name is on the deed), never agreed to the imposition of a trust on its property and, in fact, expressly denied such a trust.
The PLC continued, “If there is no agreement between the parties, then there is no dispute avoidance, and neutral principles are applied to see who prevails in the absence of such an agreement. And the evidence to be considered is the same indicia of property ownership that would be reviewed in any other land ownership dispute.”
“The starting point for the legal analysis is the deed, which is the prima facie indicator of title. If the deed resolves the issues either way, then the analysis need go no further,” said the PLC. In its concluding paragraph, the PLC reiterated this argument: “The deed is paramount,” it said.
No surrender to the PCUSA
“Church members and incorporated church entities (which are legal persons in the eyes of the law) do not surrender their civil rights by virtue of being affiliated with a denomination,” said the PLC. “They certainly do not surrender those rights to the denomination upon leaving the denomination. Ecclesiastical jurisdiction exists by consent, and when the consent is revoked, the jurisdiction ends.”
The PLC said that when former southern churches voted to exempt themselves from the requirement that they receive presbytery approval before they purchase, encumber or sell their property, they clearly “opted out of the PCUSA’s purported trust clause.” If the presbytery’s claim to Timberridge’s property were approved, “then each and every church which opted out of the PCUSA’s purported trust clause will have its express intent negated without a day in court.”
‘One half of the story’
PCUSA attorneys often point to Jones’ suggestion that if the parties desire to do so, they may agree to create a trust that ensures that the property goes to the denomination rather than to the local church. Then they claim that the trust clause in the Book of Order implements that advice. But, said the PLC in its brief, the PCUSA omits a crucial phrase in its reference to the Supreme Court opinion. Jones requires that the parties’ agreement must be “in legally cognizable form.” In other words, said the PLC, the so-called “trust” must be created in compliance with applicable state law.
“Assent and/or intent to create a trust” by the party whose name is on the deed is an essential element of the Georgia statutes, said the PLC. “What better measure of “legally cognizable form” could there be than compliance with statutory requirements?”
“Neutral principles of law call for the application of the same indicia of ownership as would be applicable to every other person or entity within the state, regardless of ecclesiastical standing. Given that every other proponent of a trust would be required to comply with the trust formation statutes of Georgia, it is not only illogical but directly contrary to neutral principles to argue that because the PCUSA is a denomination it should be exempt from those statutory requirements.”
The PLC’s Georgia amicus is one of several Supreme Court amicus curiae that the organization has filed on behalf of churches that see
k protection for their property from denominational take over attempts. It has filed briefs in South Carolina, California, New York and Indiana.