Friday, 10 May 2013

Los Angeles court rules against Newport Beach church

Episcopal News Service reports: Court orders return of Newport Beach property to Los Angeles diocese

Orange County Superior Court Judge Kim G. Dunning today reaffirmed her May 1 final orders that property occupied by St. James Church, Newport Beach, is held in trust for the current and future ministry of the Diocese of Los Angeles and the wider Episcopal Church.

“All the church property acquired by and held in the name of St. James Parish is held in trust for the Episcopal Church and the diocese, which have the exclusive right to possession and dominion and control,” Judge Dunning ordered. “The diocese is entitled to enforce the trust in its favor and eject the current occupants.”

This is the fourth and final case involving congregations in which a majority of members, having voted to disaffiliate from the Diocese of Los Angeles and the Episcopal Church, sought to retain church property for themselves. In each instance, however, courts have ruled that the property rightfully belongs to the diocese and Episcopal Church…

The congregation issued this press release and a prominent conservative lawyer issued this analysis of the decision.

Anglican Mainstream issued this Letter of support to St James Newport Beach:

The following letter was sent to the rector and congregation of St James’ Newport Beach and read out at the three main services on Sunday May 5.

To the Rev Richard Crocker and people of St James, Newport Beach

Dear Friends and Fellow Christians

We were very disturbed and saddened to read the news that legal proceedings against you by other Anglicans mean that you may soon be deprived of your property at St James and have to find alternative accommodation.

We wish first to assure you of our fellowship with you as you continue to take your stand on biblical and orthodox Anglican teaching. We share with you a passion to proclaim the gospel of our risen Lord Jesus Christ and affirm you in your faithful discipleship.

Although we have not experienced the depth of hostility that has led some people with responsibility in the Church of Christ to act in this way against you, we do want to assure you of our love, our prayers and our support. You are not alone: anyone who touches you, touches us.

This further evidence of continuing litigious acts against those whose only “wrongdoing” is to stand firm on biblical and orthodox Anglican teaching should convince all those in authority in the Churches of the Anglican Communion that your stance is the mark of authentic Christian discipleship and fellowship. For this reason we are copying our letter to Archbishop Justin Welby and Archbishop Eliud Wabukala.

With warmest greetings in our risen victorious Lord

Dr Philip Giddings (Convenor, Anglican Mainstream)
Bishop John Ellison (Chairman, Anglican Mission in England Panel of Bishops)
Rev Paul Perkin, (Chairman, Fellowship of Confessing Anglicans (UK and Ireland))
Canon Dr Chris Sugden (Executive Secretary, Anglican Mainstream)

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Comments

A true 815 'own goal.' Watch what you ask for.

Wait for lawsuits from donors; title companies; property holders whose titles are unclear.

The implications of this ruling are almost absurd. Now any property conveyance must get an OK from 'national church' or General Convention' or whatever.

I hope Bishops Borsch and Griswold are having a drink and looking back on the good ol' days.

Posted by: cseitz on Friday, 10 May 2013 at 9:26pm BST

Can't wait for Dr. Seitz try to explain this one as actually being a ruling against the Dennis Canon.

Posted by: Pat O'Neill on Friday, 10 May 2013 at 10:40pm BST

“The diocese is entitled to enforce the trust in its favor and eject the current occupants.”

It's important to note that what TEC (DioLA) is legally *entitled* to do, and what it has always wanted to do, are very different (seeking not ejection, but RECONCILIATION).

Posted by: JCF on Friday, 10 May 2013 at 10:49pm BST

Anglican Mainstream's objection that TEC is being litigious seems pretty ridiculous frankly.

Posted by: Alastair Newman on Friday, 10 May 2013 at 11:00pm BST

That's not a terribly impressive list of Anglican Mainstream
signatories.

Posted by: Concerned Anglican on Saturday, 11 May 2013 at 12:47am BST

One is not surprised to read the signatories of this letter of solidarity with the dissidents who have removed themselves from The Episcopal Church in the U.S.A. in their efforts to take the property with them when they left.

Mr. Sugden, et al, may well try to emulate the behaviour of the ex-TEC Dissenters, when their colleagues in the so-called 'Anglican Mission in England', AMiE, make a similar attempt to alienate the property of the Church of England - aided and abetted by their GAFCON sponsors.

Perhaps the Church of England will take note of the underground exploits of people like Chris Sugden, whose intent in identifying with the schismatic elements in North America could well signify their intentions in other Provinces of the Anglican Communion (maybe, the C.of E. ?).

Posted by: Father Ron Smith on Saturday, 11 May 2013 at 1:31am BST

The Anglican Mainstream reference to "your property" is both comic and sad. Er, no, the court decided it was not their property.

Posted by: Simon Taylor on Saturday, 11 May 2013 at 8:53am BST

'Thou shalt not steal.'
'Thou shalt not bear false witness.'

Posted by: Laurence Roberts on Saturday, 11 May 2013 at 10:47am BST

Mr O'Neill, I wrote a comment that was not published. I'll try again.

This is a true TEC 'own goal.' Do you have any idea what this nonsense ruling will occasion?

1. it would mean that all future property transactions will require 'national church' approval; and those that have occurred are now in question;
2. it will unleash lawsuits from donors whose money has been fraudulently used (Bishop MacPherson testified that he and +Borsch approved the no-Dennis exemption/clarification;
3. it will create title company havoc in CA.

I can only imagine +Borsch and +Griswold looking on and shaking their heads. +Bruno now has a pile of looming lawsuits facing him.

ED: original comment had gone into spam; retrieved and now published.

Posted by: cseitz on Saturday, 11 May 2013 at 12:54pm BST

"That's not a terribly impressive list of Anglican Mainstream
signatories."

It's probably their entire membership.

Posted by: Interested Observer on Saturday, 11 May 2013 at 2:40pm BST

This is what the Dennis Canon actually says:

"All real and personal property held by or for the benefit of any Parish, Mission, or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons."

The last sentence states that the Dennis Canon does not in any way limit the local congregation's power over the property -- which would include the power to buy and sell -- so long as the the local congregation remains part of The Episcopal Church. The Dennis Canon only applies when a congregation tries to leave The Episcopal Church and take the property with them.

I think Dr. Seitz's hope for property-law chaos and a "pile of looming lawsuits" is mostly wishful thinking.

Posted by: dr.primrose on Saturday, 11 May 2013 at 5:42pm BST

Articles 37 and 38 of 39 articles (1801 version as in US prayer book):

XXXVII. Of the Power of the Civil Magistrates.
The Power of the Civil Magistrate extendeth to all men, as well Clergy as Laity, in all things temporal; but hath no authority in things purely spiritual. And we hold it to be the duty of all men who are professors of the Gospel, to pay respectful obedience to the Civil Authority, regularly and legitimately constituted.

XXXVIII. Of Christian Men's Goods, which are not common.
The Riches and Goods of Christians are not common, as touching the right, title, and possession of the same; as certain Anabaptists do falsely boast. Notwithstanding, every man ought, of such things as he possesseth, liberally to give alms to the poor, according to his ability.

So I take this to mean that it is biblical and orthodox Anglican teaching to respect property decisions of properly conducted courts of law.

Posted by: Bernard Silverman on Saturday, 11 May 2013 at 5:59pm BST

Dr. Seitz:

This would only be the case if the property transactions violate the Dennis Canon. A transaction in which land is sold, but the proceeds remain in the hands of the parish, still held in trust for the diocese and TEC, would not do so. OTOH, a "transaction" in which the property is simply "taken" or "given away" by or to an entity not affiliated with the diocese or national church would require scrutiny.

Posted by: Pat O'Neill on Saturday, 11 May 2013 at 6:29pm BST

Pat, the church had signed documents from the Bishop/diocese saying the diocese would not have trust over the property. The judge said that wasn't good enough; they needed National Church authority signatures because the Dennis Canon is a national rule, so the local bishop doesn't have the right to break it. So, any property agreement must have General Convention permission. How's that going to work? Frankly, the fact they had signed documents and the current bishop ignored what the previous incumbent had done/agreed to proves to me that no agreement, promise, etc. in TEC is worth anything and "Never trust anyone" is a terrible way to run a church.

Posted by: Chris H on Saturday, 11 May 2013 at 9:10pm BST

Parishes only had limited authority over their property, long before the Dennis Canon. Church property cannot be sold or alienated without the permission of the bishop and standing committee. The parish may hold title, but it does not own the property free and clear. It was a trust relationship, long before the Dennis Canon clarified the matter in explicit terms, per the suggestion of the US Supreme Court.

These legal principles of institutional trusteeship go all the way back to Henrician statutes, so it is surprising that some seem to think it all devolves to the Dennis Canon. The Anglican separatists are asserting allodial title when in fact the relationship to the church is feudal (permission to alienate property must be granted from a higher authority). There is nothing new here.

Posted by: Tobias Haller on Saturday, 11 May 2013 at 11:41pm BST

"Church property cannot be sold or alienated without the permission of the bishop and standing committee."

Have you not read the case? St James deferred precisely to this principle (which you hold up as a 'Henrician' gold standard). They accepted the clear authority of the Bishop. They sought a clarification from +Borsch and his Canon to the Ordinary drew one up with his approval. The latter swore under oath that they meant what they said.

"some seem to think it all devolves to the Dennis Canon" -- some do not think this, including the principals in CA who arranged with legal situation with the parish.

+Borsch and +Griswold must look on all this with sadness or disdain.

Posted by: cseitz on Sunday, 12 May 2013 at 11:21am BST

"That's not a terribly impressive list of Anglican Mainstream signatories."

All men. How shocking. Yawn.

Such efforts, and all for the purposes of oppressing, demeaning, and excluding people in the name of the Living and Loving Christ.

Posted by: Cynthia on Sunday, 12 May 2013 at 5:17pm BST

Yes, cseitz, I have read the decision. Did you read what I wrote? The significant missing factor in your reply is the needful action of the Standing Committee, which did not take place in the case of Bp Borsch's agreement. As the court found, Bishops cannot waive the trust relationship enjoyed by all church property _on their own_. As the canons have long provided, property can be alienated with the joint permission of the Bishop and Standing Committee. This has nothing to do with the Dennis Canon, and is not in conflict with it; and as I say, this proviso has been on the canonical books for many years. This kind of permissive sale has happened in a number of situations involving the departure of congregations from TEC, in which arrangements have been made for the departing body to purchase the property. That did not happen in the case of St James.

It is also worth noting the portions of the decision which point to the fact that the "gentleman's agreement" is also contrary to the bylaws and corporate documents of St James Parish itself. So the whole "agreement" was essentially a nullity. I would not like to think either side was intentionally duplicitous, but clearly they were acting without sound legal advice.

It is a simple matter: church property is not allodial. The proper superior authority, as defined by canon (Bishop AND Standing Committee), must consent to its alienation.

Posted by: Tobias Haller on Sunday, 12 May 2013 at 9:18pm BST

Dr. Seitz, please read the judgment. The judge made it very clear that the 1991 letter only applied---and only could apply---to the third piece of property, which was being purchased in 1991; it did not---and could not---apply to the two other pieces of property which were purchased many years earlier. Further, even with respect to the third piece of property, the letter only spoke to the EPISCOPAL Parish of St. James, whose bylaws required it to be---and to continue to be---part of the Episcopal Church. In other words, one cannot leave the Episcopal Church and take its property with you.

Posted by: copyhold on Monday, 13 May 2013 at 3:28am BST

I struggle to make sense of the claims now being made about this.
The judge's reasoning appears fine.

I can see no great problem has now been created for TEC.
"St James Parish was always entitled to own and control all property to which it held title, but only as long as it were part of the Episcopal Church."
That seems perfectly clear to me.

I have no idea how this new Super Trust has been created.

There are Churches who run like this though. Some overcome the potential problems of delay by delegating real authority to a sub group.

But unless I have missed something important, I understand this judge is saying that the parish is subordinate to the diocese and the diocese is subordinate to the Church acting together through General Convention. Sounds just a tad like an hierarchical Church to me.

Posted by: Martin Reynolds on Monday, 13 May 2013 at 9:24am BST

Copyhold: Here is the proper phrasing: "One cannot have a Bishop agree to the arrangements he set forth without something called a 'national church' suing to have the real estate so funded enclosed as their own."

This means, one must presume, that from here on out every property conveyance in CA (rectories, parishes, parking lots, and why not clergy exemptions for housing) are subject to GC or 815 review; and all those that have been undertaken need new titles.

This is not a 'hoped for outcome' -- it is what the Judge has wrought.

Mr Reynolds is correct: in one particular state (CA), for now, we get a glimpse at what a hierarchical church in the US would look like. It would look like a legal nightmare. Bishops would be suffragens of a GC or a newly defined '815' with legal standing in ever state.

One wonders whether GC wants this new duty or could ever undertake it. It does not even review the constitution and canons of Dioceses!

"I have no idea how this new Super Trust has been created."

You don't, and neither does anyone else know, and so we have a state by state legal juggernaut costing enormous sums.

Posted by: cseitz on Monday, 13 May 2013 at 12:11pm BST

No, I have NO sense of this judgment creating such a Super Trust.

The trust remains properly operated and controlled by the parish as long as they remain able and willing to operate the trust as part of The Episcopal Church and to its benefit.

I have come accross charitable trusts where trustees have subverted the Trust and they ended up in prison. But in this case it is clear that when the Priest and vestry joined another denomination they ceased to have any interest. They are, at best, squatters.

Posted by: Martin Reynolds on Monday, 13 May 2013 at 1:46pm BST

Precedent is set by appellate court decisions. Trial court decisions, like this one, have limited--if any--precedential value. The judge's reasoning, if adopted by the California Court of Appeal or the California Supreme Court, could cause some unintended headaches for California dioceses and for loyal parishes in those dioceses. For example, a parish that wanted to donate property to a worthwhile organization would presumably have to get approval not only from the diocese, but also from TEC. But who in TEC has the authority to grant or withhold that authority: the Presiding Bishop? The Executive Council? General Convention?

At this point, we don't know whether the ejected congregation will appeal, and if there is an appeal, the appellate courts might uphold the ruling without necessarily approving all aspects of the trial court's reasoning. So, these potential headaches may never come to pass.

Posted by: Paul Powers on Monday, 13 May 2013 at 2:04pm BST

"But who in TEC has the authority to grant or withhold that authority: the Presiding Bishop? The Executive Council? General Convention?"

Precisely.

I'd imagine that donors operating on the basis of +Borsch's agreement will want their money back, with interest.

Posted by: cseitz on Monday, 13 May 2013 at 2:25pm BST

Dr. Seitz: I do not see the sentence you quote in the Court's judgment.

Nor does the Court's judgment create any operational problem for parishes' dealing with property in their name---provided the parish remains part of the Episcopal Church. What the judgment does underline is that persons cannot leave the Episcopal Church and take with them property which is held in trust for the Episcopal Church for their own, other use.

Posted by: Copyhold on Monday, 13 May 2013 at 5:30pm BST

Dr. Seitz's arguments are beside the point, for a very good reason. He is salvaging what he can from the ruins of a very large-scale failure. The ACI's legal reasoning, regarding the status of breakaway members of Episcopal churches and dioceses, has not been accepted by any US court. All court decisions have ultimately gone against the breakaways, as they did in similar breakaway attempts after 1977.

The actual effects of this decision are well detailed in the news stories, such as, for example, the following: http://www.sanluisobispo.com/2013/05/07/2499178/judge-property-belongs-to-episcopal.html

"Orange County Superior Court Judge Kim G. Dunning on Monday reaffirmed an earlier ruling, possibly ending a nine-year legal battle between the St. James congregation and the larger church, The Orange County Register reported Tuesday.

"The ruling marks the latest in a string of decisions in California ordering breakaway congregations to return property to the six-county diocese ... "

Posted by: Charlotte on Monday, 13 May 2013 at 7:14pm BST

Copyhold: Please see Paul Powers' question. Are you now asking General Convention to serve as legal agent in property affairs in dioceses? +Borsch's agreement was voided by a court at the request of those favoring a different understanding and one legal operatives in TEC are seeking to sue for. The days of +Griswold and +Borsch leaving matters to Diocesans and Dioceses is coming to a close, at least in one state, so who will now step into the breach to nationally enforce a nationally lodged authority?

As we await the ruling in Texas and Quincy--next in the queue--one can but pray that this adventure in CA will remain sui generis (and likely appealed, as Powers intimates above).

Posted by: cseitz on Monday, 13 May 2013 at 7:30pm BST

I would have thought that the whole point of being a trustee is that the trustee is empowered to make certain decisions.

And in making those decisions, the trustee does not need the approval of the beneficiary (that is, in this instance, the [inter]national TEC).

This is fairly basic stuff in the law of trusts.

Posted by: Jeremy on Monday, 13 May 2013 at 10:09pm BST

Yes, and such trustees are entitled to hold and control all the property for as long as they remain valid trustees.
That's just what the judge says.

Posted by: Martin Reynolds on Monday, 13 May 2013 at 10:40pm BST

So +Borsch was a false trustee and the donors will be getting their money back?

I am happy to await the decisions in TX and Quincy, Charlotte. They are the only two cases ACI has had any role in. Quincy proceedings were two weeks ago and we should not have to wait long. TX could be any day now.

Posted by: cseitz on Monday, 13 May 2013 at 11:36pm BST

Dr. Seitz, I have not "intimated" that the ousted congregation will appeal. I don't know any of the parties, and I have no idea whether they are planning to appeal or not.

Posted by: Paul Powers on Tuesday, 14 May 2013 at 2:01am BST

In the Quincy trial expert testimony Bruce Mullin (who teaches at GTS) was asked how much he had been paid for his work since 2007. $900,000.

He also testified in the California case.

ACI has done all its work pro bono.

Posted by: cseitz on Tuesday, 14 May 2013 at 12:01pm BST

Especially for non-TEC readers, let’s put this into the land of where people really live. The Church of the Incarnation (Uptown Dallas) has completed a successful capital campaign as of last week. $25M has been raised to build an entirely new complex. What percentage of the donors would be stunned to be told that their gifts are to build a church that will be the legal property of something called ‘the national church’ or ‘General Convention’ or the Executive Committee of TEC? I’d put it at 95% or higher. So, should they all be given a letter from ‘the national church’ to that effect? Maybe, but it won’t likely happen. Now in the meantime the Texas Supreme Court (along with Quincy and other regions of the US) is about to make a decision whether Ft Worth was legally able to withdraw from association with TEC dioceses. A lot is in the balance. If the Supreme Court rules in favor of Ft Worth, will the donors who have given money to build a church in Dallas be placed firmly and finally in a different place than those in Newport Beach when they gave funds to build property? Or, if the Supreme Court rules against Ft Worth, should the donors be alerted immediately before a spade goes into the ground so they can reassess whether they want to build a church which will be ‘owned’ by someone in NY State? This isn’t the Anglican Church in Wales, about the size of a large TX county. Incarnation and St Michaels and All Angels have more people in church on Sunday morning than many provinces. At issue is whether people believe they are giving money to build a church that in fact they will not own, which in turn will be subject to changes and chances they will be unable to control. It might be wise for the ‘national church’ in such cases to state clearly what they believe to be true. The problem is that this is presently in the hands of secular courts, and the decisions will have major ramifications.

Newport Beach only ups the ante on decisions pending elsewhere and hard choices needing to be made by churches that are in fact growing.

Posted by: cseitz on Tuesday, 14 May 2013 at 2:11pm BST

What a lot of fuss, feathers and distraction-- the dissenters lost and did not get to take the spoils of war with them - so what?? let them leave and let us not parse the results so finely that we seem to care about TEC when actually we are not at all in agreement with them ---- Dr. Seitz, your time and your energy are best expended elsewhere - you seem only shrill in some comments

Posted by: ettu on Tuesday, 14 May 2013 at 5:52pm BST

Dr. Seitz confuses the issue by speaking in terms of donors and ownership. First, when people give to support the church, they have done just that, given to support _the church_. They have not become shareholders in a condo or co-op. Second, the issue is not ownership or title, but the freedom to alienate property from its original use, which is limited by the Bishop and Standing Committee. If money is given to build an Episcopal parish, and the members at some point choose no longer to be Episcopalian, they are free to leave, but the property remains. (On a smaller scale, would it be right for an individual disaffected with her parish to remove the stained glass window she donated?)

This all goes back long before the Dennis Canon. An instructive case is that of the Atonement Friars and Sisters. When they decamped for Rome in 1909-10, the Friars were able to take their property because it was owned personally by the founder, and he never vested it in the diocese or the church (he did not have to, I hasten to add, since this was not a parish.) But the Sisters lost their property because it had been given explicitly for the foundation of a Sisterhood within the Episcopal Church.

Posted by: Tobias Haller on Tuesday, 14 May 2013 at 8:08pm BST

"At issue is whether people believe they are giving money to build a church that in fact they will not own, which in turn will be subject to changes and chances they will be unable to control."

Sounds a bit like Ananias and his wife Sapphira (Acts 5:1-10) to me -- it's always a bit dangerous to try to keep control over one's gifts.

Posted by: dr.primrose on Tuesday, 14 May 2013 at 10:11pm BST

"[S]o they can reassess whether they want to build a church which will be ‘owned’ by someone in NY State?"

This is just silly.

If anyone "owns" TEC, it is General Convention. In which Texas is well represented.

Posted by: Jeremy on Tuesday, 14 May 2013 at 10:18pm BST

At this point it is all in the secular courts that 'a national church' has appealed to. So we can wait and see what is decided.

General Convention 'owning churches' is one of the bigger inanities of our season.

May God have mercy.

Posted by: cseitz on Tuesday, 14 May 2013 at 11:24pm BST

The ownership of the property in Dallas lies with The Episcopal Church of which the community is a very thriving part.

Why would anyone think differently?

I am afraid there is no reasoned argument here, just heat and invective.
My point has always been that if the Rector of this Dallas Church has told the congregation and donors that the money raised was not a gift to the Episcopal Church, he has lied and misled the donors, they should sue him.

Too often good and innocent people have been misled by those who want to seize the property and their hearts have been broken.

Posted by: Martin Reynolds on Wednesday, 15 May 2013 at 10:41am BST

'General Convention 'owning churches' is one of the bigger inanities of our season.'

The property is held in trust for TEC. Therefore TEC is the beneficiary of the trust.

The trustee is the legal owner, and TEC is the equitable owner.

This is 'inan[e]' . . . how, exactly? It's basic to the law of trusts.

Posted by: Jeremy on Thursday, 16 May 2013 at 7:40pm BST
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