Tuesday, 22 September 2009

news from South Carolina

Updated yet again Wednesday evening

A very long-running lawsuit in South Carolina has reached a decision. This one goes back to 2000 when the Diocese of South Carolina first tried to record its interest in the parish property of All Saints, Pawleys Island. That parish decided in October 2003 that it wished to leave the Diocese of South Carolina and affiliate with what is now the Anglican Mission in the Americas.

At the time of writing, there is still no report of this decision on any of the websites linked above.

The actual decision is a PDF file, available here. (I have been unable to reach this site, but was kindly sent a copy of the file.)

Episcopal Café has reported it with the headline Ruling on Pawleys Island: TEC and DioSC lose, and has also published a very helpful further article, Putting the South Carolina decision into perspective which includes comments made at the TitusOneNine blog.

Late last week the Supreme Court of South Carolina issued a ruling in the ongoing legal battle between the Episcopal Diocese of South Carolina and Bishop Chuck Murphy (of the Anglican Mission in America) and Vestry of All Saint’s, Pawley’s Island. The property dispute stems from the decision of then Rector Murphy and the Vestry to leave the Episcopal Church and become part of the AMiA (connected to the Anglican Province of Rwanda and now associate with the ACNA).

The Supreme Court ruled that the Dennis Canon, which says that diocesan and parish property are all held in trust for the Episcopal Church is not valid in this case.

There are a couple of reasons that this decision is unique. First, the parish in question, like a few others on the East Coast, predates the foundation of the Episcopal Church in 1789 so it has been argued that the Episcopal Church is more a creation of the parish than the parish of the Episcopal Church.

Second, the Supreme Court has decided to decide based primarily on neutral principles of law rather than by being guided by deference to denominations being allowed to create their own internal governance structures…

The Charleston Post and Courier reports the story: see Court rules in favor of Pawleys Is. congregation by Dave Munday.

A Pawleys Island congregation, embroiled in litigation ever since it left the Episcopal Church in 2004, has won a major court battle over land and assets that could have wide implications for others looking to break away.

The S.C. Supreme Court unanimously ruled Friday that All Saints Church at Pawleys Island belonged to the independent corporation All Saints Parish, Waccamaw Inc. and not to the Episcopal Diocese of South Carolina, which had staked a claim to the property.

“When a vestry of a parish in the diocese votes to take action to leave the church, they cannot then hold an office as a vestry of the church from which they have voted to depart,” wrote then-Bishop Edward L. Salmon Jr. soon after All Saints’ vestry voted to break its ties with the Episcopal Church and modify its 1902 parish charter.

But last week, the state’s highest court repudiated the diocese’s claims, overturning an earlier Circuit Court verdict.

The court rejected the Episcopal Church’s claim that “all real and personal property” used by a congregation, mission or parish “is held in trust for this church.” That rule, codified in 1979 and called the Dennis Canon, makes it impermissible for congregations to assume ownership of church property. The Episcopal Church long has argued that when individuals choose to leave the church, dioceses and parishes remain intact and available to others who choose to remain, even if they constitute a minority of the congregation…

Note that the quote in this article originally attributed to Kendall Harmon has now been corrected to show that it comes from this article by A.S. Haley.

And the Georgetown Times has Historic church property goes to Anglican Mission.

The Living Church has S.C. Decision Could Have Far-Reaching Impact.

Still no report on the websites of the parish, the diocese, or AMiA. However, Episcopal News Service now has a report: SOUTH CAROLINA: State Supreme Court rules in long-running Pawley’s Island case by Mary Frances Schjonberg:

The South Carolina Supreme Court has overturned a lower court decision in favor of the minority of the members of the parish of All Saints, Waccamaw in Pawley’s Island, South Carolina who remained loyal to the Episcopal Church and the Diocese of South Carolina.

The Supreme Court said in its September 18 opinion that the majority of the parish members could retain the parish’s property after they left the Episcopal Church and the diocese in 2003 to affiliate with the breakaway Anglican Mission in America (AMiA).

A statement issued by the Presiding Bishop’s office said that the opinion was “particularly disappointing in the light of the long struggle in which the Episcopal Church and the Diocese of South Carolina have worked cooperatively to preserve the property of this parish for the mission of the church and the diocese.”

“Time has not permitted a careful analysis of the opinion or of the options that confront the church and the diocese at this point,” the statement said.

South Carolina Bishop Mark Lawrence said that “there’s a long wisdom of tradition in the scriptures, and counsel in the book of Ecclesiastes that there is a time to keep silent and a time to speak, and as picked up in the letter of James, where James says, ‘Know this my beloved brothers and sisters, let everyone be quick to hear and slow to speak.’ I believe this is such a time.”

Religious Intelligence US dioceses ‘free to secede’ by George Conger

he Sept 18 decision in the case of In Re: All Saints Parish, Waccamaw ends nine years of litigation over the mother church of the Anglican Mission in the Americas (AMiA), and is the second major legal defeat for the Episcopal Church in a week.

While the ruling only affects the state of South Carolina, the legal analysis the court used in rejecting the ‘Dennis Canon’ —- the 1979 property canon that states that parish property is held in trust by congregations for the diocese and national church —- will likely have an unfavourable impact upon the dozens of other pending parish property suits prosecuted by the Episcopal Church across the nation…

Posted by Simon Sarmiento on Tuesday, 22 September 2009 at 8:00am BST | TrackBack
You can make a Permalink to this if you like
Categorised as: ECUSA

It would seem that 'All Saint Parish Waccamaw Inc' is, indeed, an incorporated business entity, and therefore not strictly accountable to TEC's governance. One hopes that the Episcopal Church will take proper steps to ensure that all other individual parish structures within TEC are safe from the possible depradation of other African and South American Provincial Churches which have established their hegemony over congregations in the U.S.A. One wonders what would happen if the boot were to be on the other foot?

This judicial outcome, though disturbing for TEC, seems to be a 'one-off', and provided TEC takes steps to secure its interest in other parochial and diocesan structures, there should not be too great a dispruption to the ongoing legislative procedures in other parishes and dioceses.

We are still praying for justice to be done, and that could still bring surprises!

Posted by: Father Ron Smith on Tuesday, 22 September 2009 at 10:10am BST

The South Carolina Supreme Court ruling appears to be based on a flawed reading of the 1979 US Supreme Court Jones v Wolf judgment. In the comments on the Episcopal Café piece that you link, John B Chilton quotes the advice of the US Supreme Court in Jones v Wolf, 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. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, 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". This is exactly what the Episcopal Church did when it enacted the Dennis canon in the same year that Jones v Wolf was handed down. The SC Supreme Court chose to ignore this informing their decision, valid grounds for appealing the case to the US Supreme Court.

Posted by: Lapinbizarre on Tuesday, 22 September 2009 at 10:12am BST

On another aspect of this, "Pere Sud", posting on Mark Harris's "Professor Mullin on the Polity of The Episcopal Church" thread, states "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". https://www.blogger.com/comment.g?blogID=10326675&postID=4098828612004804111

In light of the SC Supreme Court ruling, if the court intended to invalidate the Dennis canon - and there is no clear indication that this is what they intended - this has the potential to completely alter the ground rules in South Carolina. Assuming that what Pere Sud claims is true, Salmon's action must postdate the Dennis canon by some years, since he was elected bishop of SC in 1989. Any amendment contrary to the corporate interests of TEC subsequent to that date would be of very questionable legality, regardless of the SC ruling (check the quote from the US Supreme Court Jones v Wolf ruling in my post above).

It will be interesting to see if the "return of the deeds" forms a part of the diocese of SC's strategy in the coming days. A question that I posted a couple of days ago to T19, asking politely if Pere Sud's claim was correct, was promptly deleted. I would be curious to know why. Seems Bishop Salmon's action may be a sensitive issue in the diocese of SC.

Posted by: Lapinbizarre on Tuesday, 22 September 2009 at 10:41am BST

"There are a couple of reasons that this decision is unique. First, the parish in question, like a few others on the East Coast, predates the foundation of the Episcopal Church in 1789 so it has been argued that the Episcopal Church is more a creation of the parish than the parish of the Episcopal Church."

While I understand the thinking here, I am bothered that a parish can agree to be part of a diocese and national church, and partake of all that means--visits from the bishop for confirmations, financial support when necessary, etc.--and then, at will, decide that the canons and rules it agreed to when it became part of the diocese (whether the parish preceded the diocese and church or not) no longer apply to it.

Analogy: My existence as a human being precedes my decision to move to Pennsylvania. Am I then to be permitted to ignore the laws of PA?

"Second, the Supreme Court has decided to decide based primarily on neutral principles of law rather than by being guided by deference to denominations being allowed to create their own internal governance structures…"

This one I don't get at all. What happened to the First Amendment?

Posted by: Pat O'Neill on Tuesday, 22 September 2009 at 11:25am BST

It's back to the Old Anglican School again...


Posted by: Pluralist on Tuesday, 22 September 2009 at 1:22pm BST

Simon quotes from the commenter at T19 as linked to by Episcopal Cafe. For me this was the nub of that comment:

"the decision simply assumes (without considering the matter) that South Carolina can switch from being a ‘deference’ state to a ‘neutral principles’ state without thereby interfering with anybody’s established property rights."

Posted by: John B. Chilton on Tuesday, 22 September 2009 at 4:22pm BST

I think the point that Lapinbazarre and FRS missed is that the SC Supreme court found that, rather like a court in FW recently found that the dioceses form the national church, not the other way round, so too individual church's properties are vested in the individual congregations who built and maintain them, not in the diocese (on behalf of the national church).

TEC is not a heirarchical church. This was even made clear by DioSC around 1900 when it lodged a document stating that the building belonged to the local church, not the diocese. Whether a church is congregational or heirarchical is, surely, a matter of fact - not something that a self-proclaimed "center" can assert.

If a national church is congregational, rather than heirarchical, then the non-interference method, upholding the 1st amendment, is to use neutral principles of law, rather than enforcing (alleged but non-documented) rules that a national organization has made without the local congregation's consent. How could the "Dennis Canon" be applied without the consent of the local congregation?.

ps If I move to Pennsylvania and bring my property with me, or acquire some while I live there, Pennsylvania state will not suddenly claim that it owns the property if I decide to leave! (unless I vested it in the state for the benefit of others). I can sell it, or continue use it myself.

Posted by: davidwh on Tuesday, 22 September 2009 at 5:02pm BST

Many Church of England buildings pre-date the creation of Anglicanism. Presumably Roman Catholics will now want them back.

Posted by: Fr David on Tuesday, 22 September 2009 at 5:03pm BST

In my comment above, the phrase after the colon should be in quotes -- it's from Dale Rye. (I made the mistake of thinking italics would show in the comments.)

SS adds: quotes now added, sorry we don't allow italics...

Posted by: John B. Chilton on Tuesday, 22 September 2009 at 5:52pm BST

I think the one thing that makes this case unique is not that the parish predates the formation of TEC, but rather, that the diocese explicitly renounced all claims to the property in a 1903 quit claim deed. If you read the decision in it's entirety, this is the key event from which the rest flows.

Posted by: ruidh on Tuesday, 22 September 2009 at 6:16pm BST

davidwh, the court in Fort Worth has not yet decided the case on merits, and has not so far decided that "dioceses form the Church, and not the other way around." He has stated that there are two diocesan entities (but we knew that); and that Bishop Iker's diocesan entity didn't hire the attorneys for the diocese of the Episcopal Church. However, neither those attorneys or the Episcopal Church claimed that. Bishop Iker hoped to assert that there was only one diocesan entity, or at least only one that might call itself "the Episcopal Diocese of Fort Worth," and so argue that those attorneys had no standing to represent the diocesan entity on Fort Worth that is part of the Episcopal Church. Indeed, he acknowledged his own ignorance of the polity of the Episcopal Church. Presumably with the Mullins afadavit and with whatever response the Iker entity offers, the judge will feel more informed, and so be able to issue an opinion; but we haven't seen that opinion yet. And since the judge did acknowledge there are two diocesan entities, he didn't decide that the attorneys in question couldn't the entity that had actually hired them.

Posted by: Marshall Scott on Tuesday, 22 September 2009 at 7:06pm BST

"...the dioceses form the national church, not the other way round...."

Except that, of course, when a NEW diocese is created--as in, specifically, the instances of Fort Worth and San Joaquin (both formed within the last 50 years), it IS the national church that does the creating, by breaking the new diocese off from an existing one.

In fact, even the diocese of South Carolina was created by the national church...because before the formation of the Episcopal Church after the revolution, there were no dioceses in what were then the colonies.

"TEC is not a heirarchical church. "

Hmmm, let's see. We have local parishes, which are subject to the canons of their dioceses; we have dioceses, which are subject to the canons of the national church. Sounds like a heirarchy to me.

Posted by: Pat O'Neill on Tuesday, 22 September 2009 at 7:38pm BST

If your assertion about Salmon's return of the deeds is true, it may create problems for Mark Lawrence if he tries to take the diocese out of TEC. If parishes have sole control of their property, they can decide to follow Lawrence to ACNA (or wherever he goes), stay with TEC, or join CANA, AMiA, or any other group, and he may wind up as a bishop without much of a diocese (since one parish has already taken steps to leave).

Ruidh is quite right, that the date of the foundation of All Saints has nothing to do with the outcome of the case. The result would have been the same if the parish had been incorporated as a new parish in 1902.

Posted by: Jim Pratt on Tuesday, 22 September 2009 at 7:58pm BST

The church in question was to be held in perpetuity for the Church of England. As the Church of England only recognises the Episcopal church as its legitimate Anglican successor...this judgement is a travesty and reflescts the conservative natuure of the SC Supreme Court. I hope an appeal is made.

If the Episcopal Church lets this slip, they might as well give up with the Virginia cases

Posted by: Robert Ian williams on Tuesday, 22 September 2009 at 9:08pm BST

Because the three guys with a web page had their lawyer friend pen an uninformed position paper stating that the Episcopal Church (TEC) is not a hierarchical church, I guess the orthodite intention is to now repeat this mantra at every opportunity, in hopes that other less informed folks will assume that it is true, as we see @ davidwh above.

I have read the court's decision in Fort Forth. The judge did not find that the dioceses form the national church. The only finding in which he ruled was concerning two lawyers, and who they do or do not represent, no more, and confusingly, no less.

I think that ruidh has illuminated the crux of this case. Had the diocese not enacted the quick cliam deed, there may well have been a different out come. But as Dale Rye commented @ Episcopal Café, the SCoSC has modernly changed course on something upon which every church in the state has previously relied for a couple of centuries.

Posted by: David | Dah•veed on Tuesday, 22 September 2009 at 9:08pm BST

David WH appears to think along the same lines as the discussion group featured on the recent *Stand Firm* debate - 'Property Decisions in Fort Worth and South Carolina'. One of the debating participants - Sarah Hey, from Greenville, S.C., -even calls TEC (of which she confesses to being a member) "a corrupt and grossly heretical dnomination", while yet saying that, for the meantime, she will be staying with TEC.

One of the contributing legal advisers, Allan Haley (who blogs under the apt title 'Anglican Curmudgeon') states that the South Carolina Court has opted to make its judgement on behalf of the AMiA parish - on the basis of its policy of the 'Neutral Principles of Law', which requires, in this case, proof that TEC actually holds the title deeds to the property being claimed by the parish. Owing to the fact that title deeds were handed back to the parishes in the Diocese by one-time Bishop Salmon, it would seem that the parish is claiming de facto ownership of its property.

What transpires out of all of this is that parishes claiming title to their own property are acting as independent Congregational churches - which is in direct opposition to the Anglican tradition, of which TEC is a part. Probably nowhere else in the Anglican Communion could such an independent stance be upheld.

Posted by: Father Ron Smith on Wednesday, 23 September 2009 at 1:30am BST

davidwh may assert what ever he wants, but I want to make it clear for readers of these comments that it is just NOT TRUE that "a court in FW recently found that the dioceses form the national church, not the other way round." davidwh is repeating claims that Iker made about what the court said.

That court's ruling actually said merely that Bishop Gulick's lawyers do not represent Bishop Iker's -- something that Gulick never claimed. The court essentially decided we have two parties who claim to be the real diocese of FW and there will now be hearing after which point the court will rule on which one it thinks is right.



and come to your own conclusions.

Posted by: John B. Chilton on Wednesday, 23 September 2009 at 2:59am BST

Thank goodness the Church of England is the Established Church. It is salutary to see where Dis-Establishment would lead.

Posted by: Terence Dear on Thursday, 24 September 2009 at 9:03am BST

Well, Terence, if the conservative evos of the CofE are successful in foisting their way, disestablishment is bound to follow.

Posted by: Kurt on Thursday, 24 September 2009 at 3:12pm BST

George Conger's SPIN is breath-taking! :-0

Posted by: JCF on Friday, 25 September 2009 at 2:10am BST

Can there even be a "neutral" application of civil law that disregards the canon law governing a national denomination and effectively mandates congregational church polity within a particular, secular jurisdiction?

Posted by: christopher+ on Sunday, 27 September 2009 at 8:44pm BST
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