Presbytery sanctioned by civil court in ‘scheme’ over church property

Sanctions have been imposed on a Presbyterian Church (USA) presbytery in the amount of $390,000 after the court “unavoidably” concluded that the presbytery had “in bad faith advanced frivolous arguments in support of a claimed right it knew had no legal or evidentiary support.”

In the matter of Carrollton Presbyterian Church v. Presbytery of South Louisiana (PSL), Judge Kay Bates of the 19th Judicial District Court, Parish of East Baton Rouge in Louisiana not only ordered the presbytery to pay the legal expenses accrued by the congregation in defending itself against the presbytery’s claims on its property, she also ordered the release of documents sealed during the trial – 441 emails between the presbytery, lawyers and Mark Tammen, who at the time was the director of Constitutional Services with the PCUSA Office of the General Assembly.

The case dates back to March 2008, when Carrollton Presbyterian Church, in Carrollton, La., filed a civil lawsuit against the presbytery seeking a declaratory judgment that it owned its property, free and clear of the presbytery.

The church had been in the process of selling its property to its contiguous neighbor, The Stuart Hall School for Boys, when the presbytery tried to block the sale by asserting that the denomination – not the church – owned the property. The court ruled in favor of the local church, as did the Louisiana First Circuit Court of Appeal. Both the Louisiana Supreme Court and the U.S. Supreme Court refused to hear the case when the presbytery filed appeals.

Sanctions

In the court’s order, Tammen, who now serves as a presbytery executive in Long Island, N.Y., was described as the denomination’s “foremost in-house legal authority, … an attorney whose responsibilities include giving advisory opinions to PCUSA clergy and to legal counsel for synods and presbyteries concerning the meaning and application of the PCUSA constitution, the Book of Order.”

Tammen “bluntly informed” the presbytery that he saw “no way for the PSL to prevail,” read the court order, and it also stated that even the presbytery’s own corporate representatives, during depositions, acknowledged that “Carrollton continued to have the right to sell the property at issue without PSL permission.”

Despite Tammen’s words, the presbytery opposed the church, wrote Bates, and used as its central argument that the 1979 U.S. Supreme Court decision in Jones v. Wolf, “allows the PCUSA to impose a trust on local church property by amending the denominational constitution without the consent of the titleholder of record and without complying with either general principles of trust law or with the specifics of Louisiana trust law.”

However, she wrote, “Wolf unequivocally states that when applying neutral principles of law to resolve church property disputes, courts are to ascertain the mutual intentions of the parties and that the neutral principles of law method ‘relies exclusively on objective, well established concepts of trust and property law familiar to lawyers and judges’ … The PSL’s core argument is thus directly contradicted by the very case on which it has relied …”

Bates called the presbytery’s interpretation of Wolf “nonsensical,” and said that the presbytery erected a “‘Stalingrad-type’ defense intended to financially force capitulation or to make victory by the small, 20-member Carrollton church as costly as possible.”

Bates’ order quoted a Jan. 28, 2009, email where the presbytery’s lead New Orleans attorney “confided to some of his collaborators, ‘One must wonder whether Carrollton is prepared to go to the expense of litigating this case.’”

South Louisiana Presbytery spent more than $500,000 opposing Carrollton’s sale of its property – valued at less than $1 million.

“As a result of the PSL’s unreasonable intransigence Carrollton was forced to needlessly spend $336,000 in fees and expenses in pursuing recognition and enforcement of its property right,” read the order.

What happened during this “unfortunate litigation,” wrote Bates, was a “profoundly disturbing display of disdain for the rule of law and the judiciary. Multiple orders of this court were knowingly and contumaciously violated.”

The ‘plan’ or ‘scheme’

In her order, Bates stated that a “plan” or a “scheme” had been hatched by the presbytery’s New Orleans counsel to “circumvent the facts and the substantive law,” after Tammen had informed the PSL that it could not win the case on merit. “The court is not speculating. The participants to this scheme astonishingly acknowledged all of this in their own words,” wrote Bates.

She wrote that the “scheme could be traced through a number of emails the PSL was compelled by court order to produce.”

On the same date, Feb 13, 2009, that the court issued a temporary restraining order (TRO) which “expressly prohibited” the dissolving of the church by the “Presbytery of South Louisiana, its officers, agents, employees, and counsel, and any persons in active concert or participation with it, on its behalf, in its stead,” the Synod of the Sun expanded the powers of an administrative commission to include dissolving churches.

The TRO was announced and copies of it were distributed to commissioners at the Feb. 17, 2009, presbytery meeting. Members of the synod administrative commission attended that meeting along with PSL committee chair Lisa Easterling, who according to the court order “argued for the synod administrative commission to use its newly added power to dissolve churches ‘as a means to resolve things with Carrollton.’”

Along with Easterling, the presbytery’s New Orleans’ counsel “lobbied the synod administrative commission to see this court’s TRO itself as a sufficient reason to nevertheless dissolve Carrollton and in the process violate the clear language of this court’s TRO itself.”

Tammen “expressed his agreement that the synod commission should go ahead and use its new authority to dissolve Carrollton if the TRO was not lifted.”

The court order showed that Tammen argued that “violating the TRO would ‘drive’ a (purported) lack-of-subject-matter jurisdiction argument home,” and he also volunteered to “work with the synod commission to make sure they would perform “the role you (the PSL’s New Orleans counsel) need for them to fill-like taking action to dissolve, etc.”

According to the court order, the presbytery’s scheme, “which the knowing violation of this court’s TRO was designed to facilitate, permeates the PSL’s opposition and makes the PSL solidarily liable with its co-conspirators for the sanction in the amount set forth below.”

“In the present case, a conspiracy clearly existed. The PSL asserted on several occasions that it acted at all times in concert with the synod administrative commission and others in a ‘coordinated litigation effort.’ The PSL and synod representatives were heavily conspiring with, among others, Mark Tammen, the PCUSA’s Director of Constitutional Services in the Office of the General Assembly at the denomination’s Louisville, Kentucky headquarters,” read the order.

Disdain for the judiciary

Bates’ order also stated several other ways that the presbytery had “violated professional norms, disdained civil authority and engaged in sanctionable conduct.” The order said that the presbytery:

• “said that U.S. District Judge Ralph Tyson, a respected African American jurist, did not do his own work but instead merely ‘rubber stamped’ the work of others, in effect characterizing him as lazy. The PSL also said that he would be inclined to base his decision concerning remand on the skin color of the lawyers appearing before him.
• “said that the work of U.S. Magistrate Judge Stephen Riedlinger exemplified the ‘total depravity’ of man.
• “said that the federal court in Baton Rouge was ‘compromised,’ which by definition is to accuse the federal court of being dishonorably corrupt.
• “flagrantly disobeyed this court’s Sept. 22, 2009, order to produce documents, claiming that it did not know that ‘all persons’ meant all persons.
• “grossly misrepresented case law holdings and rationale and turned cases on their heads, repeatedly urging frivolous legal arguments.”

“The court regrettably but unavoidably concludes that the PSL has in bad faith advanced frivolous arguments in support of a claimed right it knew had no legal or evidentiary support. The PSL repeatedly ignored or misrepresented the facts and the law and has interposed meritless pleadings, defenses and arguments to obfuscate, delay and needlessly increase the cost of litigation in an effort to financially bleed the small Carrollton church into submission,” read the court’s order.

441 emails made public

The court order also rescinded a protective order on 441 emails that presbytery representatives exchanged with the Synod of the Sun, the Office of the General Assembly and five attorneys from a New York-based firm that has represented the General Assembly in church property cases.

According to the court order, the emails demonstrated “with clarity” a conspiracy not only to defy this court’s TRO but also revealed that the violation of the TRO was “simply a means to facilitate a wider scheme or plan. The PSL has funded the opposition to Carrollton and authorized its attorneys to act throughout on its behalf.”

Of the 441 PSL emails that the presbytery was compelled to submit to the court, “Tammen was a sender or recipient on approximately 398 of them.”

Attempts by The Layman to secure comments from the PSL were unsuccessful.

(View the court order in its entirety.)

Case timeline and related articles:

October 2012: Presbytery denied U.S. Supreme Court hearing in Carrollton property dispute

February 2012: Presbytery denied state Supreme Court hearing in Carrollton property dispute

September  2011: Court rules trust clause negated and state trust laws must be followed

April 2011: Carrollton case has bearing on all former southern PCUS congregations in PCUSA

January 2010: Presbytery appeals decision

December 2009: Carrollton church wins Declaratory Judgment and Permanent Injunction

December 2009: Presbytery forced to release documents

October 2009: Expenses mount

October 2009: Presbytery found in contempt of court

September 2009: Judge orders presbytery to back off

August  2009: Judge issues ‘written reasons’ favoring Carrollton

September 2008: Presbytery votes to aggressively pursue churches contemplating leaving