1/06/2009

California Supremes have spoken, maybe we can move on.

The California Supreme Court has determined that the Diocese of Los Angles and for that matter all Episcopal Church dioceses in California have the assumed right to claim ownership of property when a congregation or its leadership determine to leave The Episcopal Church.  It's not over, at least to hear the lawyers for the three churches whose members left TEC and occupy the properties. Read the excellent summary at Episcopal Cafe, HERE. 

Among the things noted by the Court in its findings is this: 

"Canon I.7.4 is consistent with earlier-enacted canons that, although not using the word “trust,” impose substantial limitations on the local parish’s use of church property and give the higher church authorities substantial authority over that property. For example, permitting a disaffiliating local church to take the property with it when it reaffiliates with a different church is inconsistent with the prohibition of Canon II.6, section 2, against encumbering or alienating local property without the previous consent of higher church authorities. Thus, a strong argument exists that Canon I.7.4 merely codified what had long been implicit."

This is what I have argued for in a previous post, "Wringing of hands, muttering about litigation costs and other economic challenges."  Here is what I said regarding Canon I.7.4:
 
"In doing some other research I came upon the commentary in the Annotated Canons of the Episcopal Church that struck me as of some importance regarding ownership of Churches. In 1868 a canon on the dedication and consecration of churches was enacted, (at first numbered Title 1, Canon 2, and now is Title II, canon 7.)   It stated in part, (section 2) "It shall not be lawful for any Vestry, Trustees, or other body authorized by law of any State or Territory, to hold property for any Diocese, Parish, or Congregation, to incumber or alienate any consecrated Church or Chapel without the previous consent of the Bishop, acting with the advice and consent of the Standing Committee of teh Diocese in which such Church or Chapel be situated, PROVIDED, that this section shall not be operative in any State with the laws of which , relating to the tile and holding of property by religious corporations, the same may conflict."

In 1871 this canon was changed, giving greater strength to section 1, which now spelled out the matter of being "free from lien or other incumbrance." That now read, "No Church or Chapel shall be consecrated until the Bishop shall have been sufficiently certified that the building and ground ...are secured by the terms of the devise, or deed, or subscription by which they are given from the danger of alienation from those who profess and practice the doctrine, discipline, and worship of the Protestant Episcopal Church in the United States of America, except in the cases provided for in Sections 2 and 3 of this Canon...."

The Annotated Canons indicate that "this change was occasioned by the secession of Christ Church, Chicago, who, taking the parish property with them, affiliated themselves with the Reformed Episcopal Church."

In 1904 the language of the 1868 proviso regarding state law and conflict was removed, and the rest of the language simplified. Relatively minor changes were made in 1943. In 1973 the work of the Standing Liturgical Commission on a new service for consecration of churches and chapels which did not require that the property be debt free and without lien, so a resolution was passed to repeal Section 1 of the Canon, since the proposed service was to include language allowing it to be used without the restriction of debt or lien.  Convention did so, no realizing that at the same time they "had removed the requirement that property be secured from alienation to those not affiliated with this Church (meaning TEC)."

In 1979 a new Section 1 was inserted, as part of the same resolution that put in the new section of Title 1, Canon 6, Section 4&5 (also known as the "Dennis Canon.") It inadvertently makes possible a difference of opinion between the Canons and the BCP, and the Annotated Canons notes that the BCP takes precedence.  The difference of opinion would concern what the canons meant by "secured for ownership" meant.

What is interesting to me in this otherwise arcane bit of history, is that (i) from 1871 until 1973 it was clear that property was to be held in such a manner that it could not be alienated from the Protestant Episcopal Church in the United States of America or "this Church."

That is, the canons already supposed what Title 1, Canon 6, Section 4&5 spelled out - that property was held in trust for the Episcopal Church.  The three years when this restriction was not in one way or another spelled out was an error in less than careful work on canons. But the essential point of the matter is that from 1871 to 1973, churches were consecrated only when assurances were secured that the church could not be alienated from this Church, and from 1979 to the present that they are held in trust for this Church. For the past century there has been no proviso for state law contrary notwithstanding to have weight."

It appears the California Supreme Court agrees.

What now? Well, the matter could return to trial again on a lower court level. The court could issue an eviction order to the congregations. The congregations could take matters (I don't know which matters) to the US Supreme Court. Legal matters could continue. Or...

The congregations could accept the findings of the California Supreme Court, enter into conversations with Bishop Bruno who has invited such, and begin to work out the matter of actual use of the buildings, possible reconciliation, time for leaving or staying, etc.

If the California Supreme Court has determined a presumption of ownership by The Episcopal Church, represented by the Diocese in this case, the basis of negotiation has changed from occupation of buildings to use of buildings. That is a very different basis for conversation.

We can hope those conversations will be grace-filled.

4 comments:

  1. Father Mark,
    What of those parishioners that were "shutdown", evicted and then had their buildings sold out from under neath them in order to finance the folly of some rather boorish bishops? (at least one that I know of, I won't mention any names but his initials stand for John David Schofield).

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  2. Hi Mark--Yes conversations that are "grace filled" would be a blessing for them.

    And as to this:

    "The congregations could take matters (I don't know which matters) to the US Supreme Court. Legal matters could continue."

    Perhaps they should heed the advice they keep giving to us. Wasn't it Minns that said the lawsuits should cease. They should take his advice if for no other reason than, we are going to continue to win.

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  3. The California court was construing its own constitution. As such, there is no appeal to the Federal system available unless the thieves want to claim the California constitution violates US law or the US Constitution. That is why it is the California Supream Court.

    The US Courts have already ruled on this stuff (cf. Fr. Moyer's dispute with the diocese of Washington) and the hierarchical church status of TEC has been upheld.

    No one is saying the holier-than-God-dares folks have to pray with the rest of us. Just slip the key under the mat on the way out.

    I wonder how exciting the "North American mission" will look in central Africa absent the trust funds and real estate?

    FWIW
    jimB

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  4. Mother Susan reports of +Bruno's previous grace-filled attempts to work with the schismatics on her blog; Story Time 2.0. I am sure that this speaks of how sincere he is even still today, as he offers an olive branch.

    It is interesting that +Bruno was nominated from the floor of dio convention and not a choice of the nominating committee, because this bishop in the church of God continues to model gracefulness in every story I read of him. Truly the Spirit was working in his election.

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