Commentary by attorney
By Donald G. Nichol, The writer is an attorney with the law firm of Jacobowitz & Gubits, with offices in Walden and three other New York cities., August 9, 2006
The reported response of the Presbytery of Prospect Hill to the request of the Riverside Presbyterian Church illustrates the need of the local church to be prepared for the tactics of depraved and unrepentant denomination powers and authorities seeking to prevent those who would be faithful from following the LORD’s leading to leave that denomination. If Riverside wants to keep its property, it must have a plan prayerfully considered, know its rights and resist takeover.
I suggest reading Lloyd Lunceford’s book [A Guide to Church Property Law] advertised on The Layman Web site. The book is well worth the read. Having a church lawyer familiar with church property law in the state and familiar with Presbyterian polity is virtually a must. I speak with some experience, having represented two churches who left the PCUSA, Circleville and Ridgebury in New York. The former paid the ransom. The latter is being sued by the Presbytery and is awaiting a favorable court decision, LORD willing. The disclaimer is that none of the advice here should be used with an appropriate and skilled analysis based on the particular facts, circumstances and law prevailing in the individual case.
The Scriptures and confessions must be the strength the true church. Two provisions of The Book of Confessions are worth knowing. First is the property guarantee provision in the Westminster Confession, 6.148, which states:
- Nor doth their communion one with another as saints, take away or infringe the title or property which each man hath in his goods and possessions.
Therefore, a local church’s association with the presbytery or denomination does not take away or infringe the property rights a local church has to its property. This provision overrules the so called trust provision in the Book of Order, since The Book of Confessions is clearly the superior part to the PCUSA constitution. If a court considers what the denominational constitution says about property, it needs to consider this provision. The Disciplines of 1560 and 1578 make it clear that local holding and control of church property is, and always has been, true Presbyterian polity.
Second is the duty to resist the false authority of church councils found in the Scots’ Confession, 3.20, which relates not only to the recent General Assembly, but more specifically to the creation of administrative commissions. Regarding administrative commissions, a presbytery cannot assume original jurisdiction from a local session (G-11.0103(s)) except in the context of a “case”. That is expressly what G-11.0103(s) says. The Book of Discipline defines what “cases” are. Only remedial “cases” would involve a local church session as a defendant. Those “cases” must be commenced by a “complaint” fulfilling the requirements of D-6.0400. Such a complaint may only be made by a church member who has fulfilled the requirements of D6.0500(a) or another session (D-6.0500(f). Presbytery cannot commence such a remedial “case”. See D-6-0500.
Indeed, to assume original jurisdiction, it would have to be a case where a presbytery did not already have original jurisdiction, which it would have if the session were the defendant. Such cases would thus be disciplinary cases where the session had original jurisdiction. An administrative commission would in such a context would assume the full power of the session [to hear and decide such disciplinary case], and the session would cease to act [with respect to such case]. Utilizing the power to appoint an administrative commission outside the context of a “case” denies due process of law and cannot be said to be done decently and in order. Without the specificity required by a formal complaint, as is required in a case, a session is left in a Kafkaesque state, not knowing what it is charged with or what it was expected to do. The session would be denied the ability to confront a complainant. This kind of situation does not accord with Scriptural or Presbyterian polity.
Jurisdiction, literally ‘to speak the law’, is defined by Webster as “the legal power to hear and decide cases,” not the “responsibility and power” to conduct business. Administrative commissions are ordinarily entrusted “to visit particular churches, governing bodies, or other organizations of the Church reported to be affected with disorder, and to inquire into and settle the difficulties therein.” There appears to be no disorder in the Riverside Church. Is not the fear of the LORD the beginning of wisdom? Do not the ordination vows of the leaders require following the LORD rather than the denomination? See G-9.0503(a)(3). This provision does not indicate that an administrative commission is to take over and run the church, although some presbyteries have apparently interpreted the Book of Order this way. A session has “responsibility and power” (G-10-0102) to conduct the business of the local church.
In any event, nothing in the Book of Order gives such an administrative commission the power to take over the role of the trustees of the civil church corporation, who may also be the session, since the selection of trustees is ordinarily a matter of state law. Thus by purporting to take over a church corporation, a presbytery may be liable to civil legal and punitive damages. Such presbyteries should be warned of the possible consequences. This should be reviewed by a lawyer familiar with, and skilled in, state law.
Therefore, if a presbytery purports to “take over” a local church, the local church should tell the presbytery that it lacks such authority. The local church should not submit to the presbytery’s unauthorized usurpation of power properly held by the local church. Letting the fox into the chicken coop is a sure recipe for disaster. Ask Hollywood or Norwood. On the other hand, Ridgebury Church in New York has resisted being taken over by an administrative commission and, though it is now being sued by the Hudson River Presbytery, continues to operate on its own. I would not give the presbytery the local membership rolls since they merely are looking for dissenters which the presbytery will then proclaim to be the true church.
Those who are destroying the PCUSA have utilized the tactic of ignoring constitutional authority by ordaining and blessing unrepentant sinners. As much as those who fail to submit to proper constitutional authority will be condemned for not doing so, how much more will those who resist unlawful authority be rewarded for such resistance. As it says in the Scots Confession in the Book of Confessions, the greater part of the Constitution of the PC(USA) 3.20:
- But if men, under the name of a council, pretend to forge for us new articles of faith, or to make decisions contrary to the Word of God, then we must utterly deny them as the doctrine of devils, drawing our souls from the voice of the one God to follow the doctrines and teachings of men.
And everyone who has left houses or brothers or sisters or father or mother or wife or children or lands, for My name’s sake, shall receive a hundredfold, and inherit eternal life. – Jesus, as quoted by Matthew 19:29