9/17/2009

Professor Mullin on the Polity of The Episcopal Church

Professor Bruce Mullin provided an affidavit and expert testimony for the court in Fort Worth on behalf of The Episcopal Church. It is a very well constructed statement of Episcopal Church polity. You can read the document HERE.

For those who wondered where the rejoinder to the Anglican Communion Institute papers on hierarchy in The Episcopal Chruch might come from, here it is.

Dr. Mullin is Professor of Modern Anglican Studies and The Society for the Promotion of Religion and Learning Professor of History and World Missions. His paper is being or has been vetted by learned colleagues in Theology and Church History.

Those interested will want to read the whole thing. Those with less interest in the details will want the conclusion: He was asked to offer expert testimony on

"
The current and historical hierarchical organization and structure of TheEpiscopal Church and the consequent reasons why dioceses and parishes of the Church, as opposed to their individual leaders, may not, consistent with the Church's polity, articulated in its Constitution, canons, and Book of Common Prayer, unilaterally withdraw or disaffiliate from the Church and its governing body, the General Convention, or, in the case of parishes, from their dioceses."

The last two pages of the document give the conclusion summary in support of this position.

Read the whole thing, or at least take a look at the last two pages.

ACI does not seem to have felt the need to respond to this. Perhaps they have and I haven't seen it. I am sure I will be corrected if that is so.




41 comments:

  1. drdanfee

    On pg 8 of the deposition as scanned, I think the professor might possibly have meant to say, [The TEC House of Bishops is comprised of ...] ...most of the active and retired bishops. What the depositions records says, instead, ...most of the active and resigned bishops.

    I may be misreading.

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  2. drdanfee

    Oops, should cite deposition page seven. Apologies.

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  3. It may be a legal straw, but drdanfee, perhaps in legal parlance, retired bishops have resigned.

    In the legal parlance of human resources here in Mexico, a retired person has resigned their position(s) in order to retire.

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  4. Certainly long winded.

    I liked this main thrust: The Episcopal Church is based on the hierarchical Church of England, so the TEC is hierarchical.

    The United States is based on England and, so the U.S. is a monarchy. Oh, really? Where is the queen or king? What no king or queen???

    Similarly: Oh, really? Where is the Archbishop? No archbishop but we do have a General convention and that proves its hierarchical! Oh, really? What confederation doesn't have a "general convention"? The selection of bishop is about as un-hierachical as one can get. The diocese selects it and then the bishop's membership in the club is ratified by the bishops and standing committees in a process that doesn't involve the general convention and is about as level a playing field as one can get. No central authority from on high, whatsoever - exactly as voluntary organization would do.

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  5. RobRoy-

    Next, no doubt, you will be making derisive remarks about Professor Mullin's academic credentials.

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  6. So in this clearly hieararchical church, the founders simply ignored the hieararchy (the Bishop of London), declared their independence from his authority and the authority of the king and had a bishop confirmed by someone without any authority whatsoever in the English church to which they belonged. Sounds might convincing to me.
    (Dan)

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  7. Words matter. Professor Mullen has stated an opinion. For his opinion to be considered in litigation, he must be an expert in his field. He certainly seems qualified and there is nothing to suggest adversaries have challenged his expertise.

    But, it is still an opinion, and, like Fr. Harris, I haven’t seen a competing opinion from the other litigants.

    Professor Mullen does not make the logical leaps suggested by Robroy. Indeed, Mullen is diligent in stating that TEC’s system is not based on monarchy, or in a single person. Having a different hierarchy, or one not clearly derived from another organization, does not imply a lack of hierarchy.

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  8. Anonymous, two precedents come to mind. First, Henry VIII ceded from Rome, initiating a dispute which was ultimately settled by the defeat of the Spanish Armada. Second, the colonial church ceded from the Church of England as a consequence of the Revolutionary War. Warfare has a tendency to override many legal constraints.

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  9. Have you read the South Carolina Supreme court decision? The Court seems to have ruled that the dennis canon is illegal in south carolina! All Saints and AMIA have won the property.

    Andy

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  10. Despite some of the comments above, Professor Mullin has nailed it. and I think the Episcopal Church owes him much gratitude. This is a very good piece, and I thank you, Mark, for posting the link.

    I'm sure RobRoy finds it longwinded, since it meticulously picks apart the separatist position to which he apparently adheres. If you can't controvert an argument, call it "boring." I myself found it very interesting, and it included many historical facts I had not been aware of. I suggest everyone read the whole thing. It's not really all that long.

    It is time for Jack Iker to go away now. (Or, even better, to repent and return.)

    In fact, it seems to me that Dr. Mullin's statement on page 2, paragraph 4, and page 4, paragraph 8, that a diocese "may not unilaterally withdraw or disaffiliate from the General Convention" suggests that it is also time for Mark Lawrence either to shut up or to pack his bags.

    Anonymous Dan -- did you actually read all of Dr. Mullin's depostion? The Bishop of London no longer had any hierarchical authority over Episcopalians in the United States. (Not that he ever really cared very much.) Or do you think the American Revolution was just a bad dream?

    Anonymous Andy -- I assume it is yet to be finally determined whether the Dennis Canon is valid in South Carolina. (Actually, it doesn't really matter -- the Dennis Canon simply makes even more explicit what was already clearly there, as Dr. Mullin demonstrates.) Are y'all planning to wave the Stars and Bars on December 20? And even if All Saints and AMiA finally get away with it, they're still thieves.

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  11. Andy, since the Dennis Canon was enacted at the behest of the Supreme Court of the United States, I have my doubts as to how long this shall stand.

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  12. Andy, I have read the South Carolina decision; and indeed the South Carolina Supreme Court has found for the AMiA congregation. I wonder, though, whether that ruling can be generalized even in South Carolina. Like the decisions under which Mariners Church was able to leave the Diocese of Michigan just over 15 years ago, this appears to hang on a specific and unique characteristic of that property that other congregations may not have. So, it might or might not be significant for South Carolina congregations, depending on the existence or lack of a quit claim deed from the Diocese to the Congregation. It is not likely to be significant in Texas, especially in that the Diocese of Fort Worth was formed from the Diocese of Dallas after passage of the Dennis Canon.

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  13. I am not a lawyer and so I do not understand the whole ruling - but the supreme court has said:

    Furthermore, we hold that neither the 2000 Notice nor the Dennis Canon has any legal effect on title to the All Saints congregation’s property. A trust “may be created by either declaration of trust or by transfer of property….” Dreher v. Dreher, 370 S.C. 75, 80, 634 S.E.2d 646, 648 (2006). It is an axiomatic principle of law that a person or entity must hold title to property in order to declare that it is held in trust for the benefit of another or transfer legal title to one person for the benefit of another. The Diocese did not, at the time it recorded the 2000 Notice, have any interest in the congregation’s property. Therefore, the recordation of the 2000 Notice could not have created a trust over the property.

    What the ramifications are I have no idea.

    Andy

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  14. Dah • veed, as Inigo Montoya said, "You keep using that word. I do not think it means what you think it means."

    Justice Blackmun, when writing his opinion in Jones vs Wolfe, simply offered up some advice to denominations who would need to change their bylaws if they wanted to be recognized as hierarchical but that those changes should be made in "legally cognizable form." Unfortunately, the TEC preferred to try to take a shortcut. Numerous dioceses have corrected this and asked parishes to accede individually in writing to the Dennis Canon (Northern California comes to mind), but most have not. The TEC was certainly not acting at the "behest" of the SCotUS or one of its justices.
    -----
    Back OT: any partnership routinely have partners' meeting. Bruce Mullen tries to argue that the the "partners' meeting" takes a life of it own, becoming the apex of a pyramid and the partnership then becomes a hierarchical organization and ceases to be a federation. All must bow to the partners' meeting! Sorry, but no. Partnerships/federations do exist. I am a member of several.

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  15. Is this document hosted at another site? The download gets about a fifth of the way through and freezes on me.

    FrMichael

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  16. Lifting the Rock19/9/09 8:04 AM

    So sad, boys and girls, the Supreme Court of South Carolina ruled that not only is the Dennis Cannon not applicable in SC (probably other states as well - if we can help fund the challenges to get the case heard) but, also, that the Episcopal Church in SC is NOT hierarchical with regard to property claims. Dennis Cannon gone. Diocesan Cannons gone. Pardon me while I dance.

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  17. Stunning how silent the revisionist blogs have become. No rejoinder to the stunning SC Supreme Court ruling? I guess solid reasoning and logic, so tragically absent from the ruling cabal of Her Highness and so very evident in the unanimous ruling of the SCSC, tends to do that doesn't it? A glorious day for the parishes of the entire state of SC. Oh, how I wish to have seen the faces of PB and her Chancellor when this ruling was handed down.

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  18. Dah Veed, you are correct about the term resigned bishops. Article I, Sec. 2 of the TEC constitution uses the term "bishop who by reason of advanced age or bodily infirmity...has resigned a jurisdiction."

    It is not accurate to say that the Dennis Canon was enacted at the behest of (a la instancia de) the U.S. Supreme Court. It is more accurate to say that the Dennis Canon was enacted in light of the Supreme Court's decision in the Jones case that states may (not must) apply neutral principals of law in deciding religious property disputes. This may be just a rare linguistic misunderstanding on the part of someone whose command of English is 1000 times better than my command of Spanish.

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  19. It will be interesting to see whether the State of South Carolina can, in effect, legally impose congregational polity on an hierarchical church.

    christopher+

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  20. Having read the entire document, I found it quite interesting, too. It was clearly written, easy to read, and very well documented. I'm glad I took the time. Despite its being "boring" and "long-winded", I found it much more persuasive than your arguments, Robroy.

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  21. The SC Supreme Court ruling, if you take the trouble to read it, Andy, is based on the terms of the Waccamaw church's original 1745 deed of gift and, more specifically, on the fact that "in 1903, the Trustees of the Diocese signed a quit-claim deed ...... transferring any interest the Diocese may have had in the congregation’s property to All Saints Parish, Waccamaw, Inc.", in consequence of which the court rules that "the Diocese did not retain any interest in the property, reversionary or otherwise". The quit claim deed trumps the Dennis Canon in this case Andy; it most certainly does not "declare it illegal in south carolina" [you by any chance kin to archy the cockroach?]. Read the court ruling, not the comments on the SF thread.

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  22. Note that "Lifting the Rock" posting above is not the proprietor of the blog of that name, but rather an individual trolling under that "handle". She or he was over at Grandmere Mimi's a couple of hours ago. He or she, not to mention Longleaf, might take a break from speaking in tongues to actually READ the SC court ruling, which I linked above.

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  23. Heh. It appears I've touched a nerve with someone, who's now trying a little Black Ops impersonation. Here's a tip on distinguishing the real Lifting the Rock from the faux:
    1 - I can spell 'Canon'
    2 - S/he won't link to the blog (and if s/he now starts to - 'Thank You!')
    2 - if I sound remotely like an 'orthodox' then a) it ain't me and ignore me, or b) it is me and shoot me.
    Thank you

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  24. ps "No archbishop" - Just like the Province of the Southern Cone, eh, RobRoy?

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  25. For the triumphlist "reasserters" (still dancing, are we?), I'd recommend a little caution. The case, as Lapinbizzare says quite accurately, limits its discussion to the Dennis Canon to a short paragraph:
    "It is an axiomatic principle of law that a person or entity must hold title to property in order to declare that it is held in trust for the benefit of another or transfer legal title to one person for the benefit of another. The Diocese did not, at the time it recorded the 2000 Notice, have any interest in the congregation’s property. Therefore, the recordation of the 2000 Notice could not have created a trust over the property."

    In other words, where the Diocese transferred its interest in the property in 1903, it could not create a trust in 1987,or enforce it in 2000.

    I'm not sure that decision is right, in view of the canon and overall polity,but it's not a blockbuster, even if it is.

    Yes, blast it, I am a lawyer.

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  26. Tsk, tsk, tsk boys and girls. Read the document from the SC Supreme Court - it, along with the actions of All Saints Pawleys provides the playbook on how to remove property from TEC - at least in SC. Literally. The SC SC notes exactly what All Saints did, and in what order, to ensure a successful course of action. It is in no way based on a Land Trust limited to Pawleys. I'm sure that by now the chancellors from several DSC parishes have spoken to each other and are quite confident about how to move. +Lawrence knows DSC has time with this ruling so DSC can line up everything it needs to make a coordinated move.
    The nightmare for TEC would be to see just how many would parishes and people would move without the leverage of a lawsuit. Pathetic that the theology of the revisionist crowd is so vapid and offensive that it requires the force of law to ensure compliance. Watch SC. If by the grace of God this is repeated in other States TEC will be exposed for what it truly is and what its former members have declared with their feet for the past 40 years - a deadman's grave.

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  27. Anglocat, I was on the SC Standing Committee many years ago now when +Salmon gave every deed back to the vestries of the parishes in SC. So, every parish now simply need to amend their by laws and articles of incorporation in the manner prescribed by the SC Supreme Court and they, too, shall be able to exit with their property. +Salmon was very wise, and I would not be surprised if he anticipated this day and set the mechanisms in motion all those years ago.

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  28. Thank you Paul Powers. Yes RobRoy, the word does not mean what I thought that it meant. At the suggestion of the SCOTUS would be more accurate.

    But I think some here misread and avidly misinterpret the significance of the SCOSC's decision that involves the Dennis Canon. I do not see a decision that renders the Dennis Canon null and void in SC, but a very narrow ruling regarding the 2000 filing by the Diocese of SC, which it based on the Dennis Canon, in light of the diocese's previous quick claim deed of the property to the congregation.

    This Lifting the Rock is an impostor who is nigh unto illiterate, for he reads what is most certainly not there!

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  29. Lapinbizarre writes, "ps "No archbishop" - Just like the Province of the Southern Cone, eh, RobRoy?"

    Straw man, anyone? Is the province of Southern Cone a hierarchy? I dunno. Does that have any relevance? Is the World Trade Organization a hierarchy? Does that have any relevance? The WTO does have meetings of its members. So I guess it's a hierarchy by Mullins' reasoning.

    Anglocat, numerous (the majority) parishes possess the deed of their property. Thus, the ruling should apply to all those parishes as well. (No, I didn't say would apply.) And certainly if a certain diocese in South Carolina chooses to realign, use of the Dennis "Cannon" by the national church, most likely will be a dud.

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  30. "Straw man" is rich, coming from a "reasserter" in general and from you in particular, RR. I took the single instance as an example, from a post substantially comprised of pointless, less-than-logical emoting. So how about "What no king or queen???" [triple question marks - a pretty good indicator] Which leaves Nigeria and Uganda where, RR? Or is there an "if they've had a monarch within the last half-century" let-out clause, the rest of us are unaware of?

    The orthodite posts here and elsewhere about the SC court decision indicate how many of these folks take the same approach to the law that they take to the Scriptures - any and all facts to the contrary not withstanding, it has to mean exactly what they want it to mean, and only that.

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  31. ps "Canon", RR. Try not to think military.

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  32. Joyful in SC said:

    "Pathetic that the theology of the revisionist crowd is so vapid and offensive that it requires the force of law to ensure compliance."

    Um, yuh, the Nicene Creed and all that...very vapid and offensive, right? Or which other understanding of God in Christ does the Episcopal Church teach? None other.

    Offensive is - and forgive my atypical bluntness everyone - heaping uncharitable, sweeping insults upon others. Offensive is ignoring vows once made and stealing, whether legal loopholes allow it or not. If the strength of one's convictions is *not enough* to take along in leaving a church to which one no longer wishes to belong, then it is this that is pathetic. If only civil law can prevent the theft of Episcopal Church properties in most cases, then, sadly, we will see more lawsuits amongst Christians.

    In the meantime, you yourself appear to be taking great pleasure in the result of one such lawsuit and wishing - by invocation of God no less - that the property of a Church you self-righteously declare a "deadman's grave" be taken from it in other places.

    By all means go, and go with God, but do stop invoking God for purposes of theft and contempt for fellow Christians with whom you disagree on issues that didn't make it into the creeds of orthodox Christianity.

    christopher+

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  33. I think the difference is in the dating--the quitclaim deed in this case was decades before the enactment of the Dennis Canon, which would, I think, render it a breach of trust to make such a quitclaim deed or other transfer of assets now held in trust for TEC (as well as for the Diocese).

    Bishop Salmon was elected, I believe, in 1989, and thus any transfers by him would post-date the Canon.

    Such transfers could be a basis for personal damages claims against the individual bishop for breach of fiduciary duty, as well as, possibly, for fraudulent conversion, if they were performed with intent to alienate the property from TEC.

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  34. Let me try to clarify for Lapinbizarre:

    Mullins argues that because our roots are in a hierarchical church (the CoE is definitely hierarchical) then we are hierarchical. The U.S. has its roots in a monarchy (England), thus we should be a monarchy from Mullin's argument. But we have no king or queen nor does the TEC have an archbishop. The U.S. is not a monarchy nor is the TEC a hierarchy. One can't make a board meeting the apex of power lest every homeowners association is a hierarchy if they hold annual meetings and have a board president.

    One example: When Gene Robinson just so happened to be in England around Lambeth-time, Rowan Williams told him not to celebrate any eucharists. Could 815 make such an edict to, say, the diocese of Western Louisiana? Could the supposed apex of power, the General Convention, make such an edict? No and no.

    Hopefully, that's clear enough.

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  35. I believe you're right Anglocat. It also seems that the question could, for one reason or another, be quite a sensitive one in the diocese of South Carolina. A question - politely and correctly worded - that I posted yesterday at T19, inquiring if, to Kendall Harmon's knowledge, Pere Sud's statement about Bishop Salmon and the deeds is correct, was deleted in toto. No comment, no response. Nothing to show it had ever been there. Seems it might be a touchy subject, attention to which is unwelcome. Quite why - concern as to Salmon's legal liability, or perhaps the possibility that this may, in the near future, be the basis for attempted piecemeal secession from TEC - is unclear. We may learn soon enough. 815, if it is not already aware of Salmon's action - I imagine that it probably is - might well pay attention.

    John B Chilton, posting on the SC Supreme Court ruling at Episcopal Café, quotes the 1979 US Supreme Court Jones v Wolf decision to point out the SC ruling is based on a faulty reading of Jones v Wolf. The USSC ruling specifically states and advises that "the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form". The Dennis canon was adopted to do exactly this. Guess the SC Supremes missed that bit.

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  36. As for Mark's question about whether the ACI will respond to Professor Mullin's affidavit, his affidavit was prepared for use in a court proceeding that is set for October 15, 2009. The deadline for TEC-FW to file it's affidavit was 21 days before that date. The deadline for PSC-FW to file its affidavits is one week before then, or October 8, 2009. Most likely, PSC-FW will file one or more affidavits in response to Professor Mullins'affidavit, but whether they are from someone with the ACI or not remains to be seen.

    Word verification: labdogs. It's not clear whether that means labradors (Yea!) or dogs used in laboratory research (boo!)_

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  37. Lapinbizarre writes, "'...provided it is embodied in some legally cognizable form'. The Dennis canon was adopted to do exactly this. Guess the SC Supremes missed that bit.

    Actually, this was the entire point of the ruling - that the Dennis Canon failed to be a "legally cognizable form". Unilateral declarations that "It's mine, mine, mine" don't pass muster. As I said previously, numerous dioceses have requested parish accessions to the Dennis Canon. I believe Northern California and all the continuing dioceses have done so. These requests, in and of themselves, undermine the attempt to make the Dennis Canon stand on its own.

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  38. Mullins argues that because our roots are in a hierarchical church (the CoE is definitely hierarchical) then we are hierarchical.

    RobRoy, I am not sure what document that you read, because I read Prof Mullin's brief completely, and it does not even come close to anything such as that.

    He states that TEC did indeed come out of a hierarchical church, the Church of England, and that TEC is indeed a hierarchical church, but one which is different in the structure of its hierarchy than the CoE, and very purposely by design so. But because it is different in the structure of its hierarchy, does not make it any less hierarchical.

    "You keep using that word. I do not think it means what you think it means."

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  39. Anglocat writes: "Such transfers could be a basis for personal damages claims against the individual bishop for breach of fiduciary duty, as well as, possibly, for fraudulent conversion, if they were performed with intent to alienate the property from TEC."
    So tell me Anglocat, does every property transfer, every mortgage and every lease for more than a year require the approval of 815? It has never been the case - whether pre Denis canon or post. The only requirement has been the approval of the Diocesan and SC of the Diocese. State stautes in some states specifically require the consent of the Bishop and SC. Is every mortgage made by a parish in TEC invalid because 815 did not approve? Did every Bishop and every SC breach its fiduciary duty by approving such transactions without 815's approval? I, for one, would be glad to see the PB have to approve every such property transaction. She would get the church into much less trouble if she had to spend all of her time on property issues.
    Dan

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  40. I was finally able to download the brief.

    It is definitely a strong brief for TEC as being hierarchical.

    FrMichael

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  41. Dan,

    Sorry for the delayed response. I had a death in the family and a funeral to attend.

    The answer to your question, in my opinion, is no--not every transfer would need to be approved by 815. That's because the benficiary of a trust has a right to rely upon the trustee to exercise good faith jusgment as to preserving the value of the assets. It's only where, as here, there is reason to believe the purpose of the transfers is to deprive the trust beneficiary of the value of the asset that breach of fiduciary duty and conversion become possible.

    That's applying neutral principles of trust law. As to the SC Supreme Court decision, it seems off to me, in that by staying in TEC the parish created a trust with the national church which the Dennis Canon re-stated (if you believe the NY court's analysis) or created, if you believe the SC Court. Either way, the SC Court's shift from deference to neutral principles seems to me to be violative of settled property law expectations and to infringe the right of TEC to rely on Wolf.

    This may be much ado about nothing, though, because the core of the ruling--that the Diocese's 1903 quitclaim deed exempted the property from any trust seems defensible (if not clearly right, for the reasons given above) under neitral principles, that it's hard to get worked up over it.

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OK... Comments, gripes, etc welcomed, but with comment moderation but with some cautions and one rule:
Cautions: Calling people fools, idiots, etc, will be reason to bounce your comment. Keeping in mind that in the struggles it is difficult enough to try to respect opponents, we should at least try.
Rule: PLEASE DO NOT SIGN OFF AS ANONYMOUS: BEGIN OR END THE MESSAGE WITH A NAME - ANY NAME. ANONYMOUS commentary will be cut.