Real Estate Disputes Between Church and Parish

Over the last several years, there have been a number of cases involving the Episcopal Church and/or its dioceses and/or its parishes and disputes over ownership of church property. Specifically, as the Episcopal Church as a whole has become more theologically/doctrinally progressive, various parishes and dioceses that espouse a more conservative view have been breaking off from it and, sometimes, attempting to take their real estate with them.

There have been some local disputes in the Episcopal Church in the Montgomery County Court of Common Pleas (e.g.: Moyer v. Bennison, Case No.: 2002-07147; Moyer v. Bennison, Case No.: 2002-16553; In re the Church of the Good Shepard Rosemont, Pennsylvania, Case No.: 09-0609) regarding the property and employment dispute between the parish of Good Shepherd in Rosemont, Pa., and its priest, Father David Moyer, against the Episcopal Diocese of Pennsylvania, and in Philadelphia Court of Common Pleas regarding the property of the Church of Saint James the Less (e.g.: In re Church of Saint James the Less, 585 Pa. 428 (2005). In these matters, the court ruled in favor of the diocese under the long-standing precedent that property of a parish is ultimately owned by the hierarchical church.

Two of these recent property disputes between parishes and their dioceses have finally reached the U.S. Supreme Court, one from Georgia and another from Connecticut. The matter from Connecticut (Episcopal Church v. Gauss, Case No.: UWY-CV08-4020456-S, in Waterbury, New Haven County Court) is an interesting one, as it involves the parish of Bishop Seabury Anglican Church, which was formed before the establishment of the Episcopal Church itself. Its argument was essentially that, as it was formed before the existence of the Episcopal Church, voluntarily entered the Episcopal Church and never received contributions from either its local diocese or the national Episcopal Church, it should own the real estate the parish uses. Therefore, due to its virtual independence, it argued that it should remain independent and free to disaffiliate with its property in tow. The Connecticut courts, like the Pennsylvania court above, ruled against the parish, holding that the parish is owned by the diocese. The parish appealed to the U.S. Supreme Court and, in early June 2012, the Supreme Court declined to hear the case, cementing the lower court’s decision that Bishop Seabury Anglican Church does not own its property and cannot take it when it separates from its diocese and the Episcopal Church.

The type of litigation described above has unique circumstances elevating the dispute beyond the parish and diocese in a matter involving the Episcopal Diocese of Pittsburgh. As opposed to individual parishes seeking to disaffiliate from the Diocese of Pittsburgh, the diocese itself is seeking to separate from the Episcopal Church. Although there is significant precedent as to the relationship of a parish’s property to its diocese, the question of the relationship of a diocese’s property to the national Episcopal Church is generally a matter of first impression. As the Diocese of Pittsburgh and other dioceses (e.g.: the Diocese of San Joaquin, Calif., and the Diocese of Fort Worth, Texas) weigh their litigation options, it is clear that this area of the law is developing rapidly and it will be interesting how the courts will ultimately resolve these property disputes.

Originally published in The Legal Intelligencer Blog and can be found here.

Episcopalian Evicted and Vestry Vacated

As he was leaving Canterbury Cathedral on December 29, 1170, King Henry II of England, frustrated with Archbishop of Canterbury St. Thomas à Becket, mumbled under his breath those fateful words [w]ill no one rid me of this turbulent priest? Four knights who accompanied the King heard his grumble and, later that same day, returned to the Cathedral and martyred the great Saint on the stairs leading to the quire. Fortunately for the Rt. Rev. (now Bishop) David Moyer (Bp. Moyer), the Episcopal Diocese of Pennsylvania was able to rid itself of him in a much less bloody way, but it took a rather impressive amount of litigation to do it.

Over the last decade or so, due to theological division, with the Episcopal Church (Episcopal Church or National Church) choosing to proceed down a wide and liberal road and the orthodox within it choosing to proceed down a narrow and traditional road, a variety of civil litigation has emerged across the country between the Episcopal Church and the orthodox within it. The litigation has mostly regarded the status of church property held by an orthodox congregation within a liberal diocese, the status of an orthodox diocese within the liberal National Church, or the status of an orthodox clergyman relative to a liberal bishop above him.

The issues described above in general have been raging since about 2002 specifically in Montgomery County Court between Bp. Moyer, who was once an orthodox Episcopal priest and rector of the parish Church of the Good Shepherd in Rosemont (Good Shepherd), and the liberal Episcopal Diocese of Pennsylvania (the Diocese) and its equally liberal diocesan bishop, Rt. Rev. Charles E. Bennison (Bp. Bennison). I have written about the above issues and the litigation between Good Shepherd, Bp. Moyer, and the Diocese and/or Bp. Bennison previously in Upon Further Review. With regard to the issue of property ownership, my January 9, 2009, article National Church v. Regional Diocese: Property Ownership by a Religious Institution (which can be found here), described the legal issues surrounding the property disputes within the Episcopal Church. My March 9, 2009, article Episcopalian In-Fighting Spreads to Montgomery County Courthouse (which can be found here), described the legal issues surrounding the defrocking of Bp. Moyer by Bp. Bennison.

Although the precise issues in the above cited articles are slightly beyond the scope of the instant article, they certainly can help the reader get a clearer picture of the legal landscape over which Good Shepherd, the Episcopal Church, the Diocese, Bp. Moyer, and Bp. Bennison have trod in Montgomery County Court to set the tone for the matter described below, In Re: the Church of the Good Shepherd Rosemont, Pennsylvania Incorporated, No.: 09-0609. Suffice it to say here that the Court has essentially ruled that Bp. Moyer is no longer an employee of the Diocese and has no right to engage in clerical functions within the context of the Diocese and/or the Episcopal Church. The matter before the Court in In Re: the Church of the Good Shepherd Rosemont, Pennsylvania Incorporated is the determination of who has rightful control over the property of Good Shepherd and whether Bp. Moyer may reside in the its rectory.

The Diocese and the Episcopal Church (Petitioners) filed a Petition for Citation against Good Shepherd, Bp. Moyer, and members of Good Shepherds parish Vestry (the layman’s governing body) for possession of the Good Shepherd property and the removal of both Bp. Moyer and the Vestry members for attempting to obstruct and/or remove Petitioners from possession and/or control of the aforesaid property. After a complex web of responsive pleadings, including a series of opposing preliminary objections, the Petitioners filed for Summary Judgment against Good Shepherd and it is in the context of summary judgment that Judge Stanley Ott entered the Order at issue herein.

The Court reviewed the history of Good Shepherds property. Good Shepherd was incorporated in 1870 and in the charter for the parish it declared that it was a member of both the National Church and Diocese. The charter is consistent with the canons and constitutions of both the Diocese and National Church which mandate that parish property is held in trust for the Diocese and, in turn, the National Church. The canons and constitutions also prohibit parish property from being alienated without the consent of the Diocese. The deed to the parish was transferred to the Diocese in 1910 but was subsequently deeded back to the parish in 1967 with the proviso that it be used for worship according to the doctrine and discipline of the National Church.

The primary issue addressed by Judge Ott is who or what controls Good Shepherds property. In support of its petition, Petitioners set forth six (6) arguments: (1) Good Shepherd announced that it is no longer a part of the Diocese and/or National Church and was seeking affiliation with another denomination; (2) Good Shepherd continued to employ Bp. Moyer despite his defrocking in 2002 and the Diocesan canons requiring parishes to only employ clergy licensed by the Diocese; (3) Bp. Moyer entered Holy Orders in another denomination; (4) Good Shepherd has employed other priests not licensed by the Diocese; (5) Good Shepherd has used parish assets to support activities to subvert the Episcopal Church and/or the Diocese; and (6) the diocesan canons authorize the bishop, with consent of the Standing Committee (the Diocese’s layman’s governing body), after a determination has been made that a parish ceased to act in accordance with the Diocese’s constitution and canons, to take necessary measures to take over the parish’s property. The Diocese, through both its Standing Committee and bishop, believed that due to the actions of Bp. Moyer and the members of the Vestry, Good Shepherd had ceased to act within the canons and constitution of the Diocese and were taking necessary measures to take over its property.

Good Shepherd, in response to the Petition, answered the above six (6) arguments as follows: (1) it denied that it has determined to sever ties with the National Church or Diocese; (2) it alleged Bp. Moyer, though not licensed in the Diocese, was licensed by other Dioceses of the Episcopal Church, Anglican Communion, and the Archbishop of Canterbury; (3) it alleged parish assets are still used for the benefit of the Episcopal Church; (4) it denied that the Episcopal Church was hierarchical; (5) it denied that Bp. Moyer entered Holy Orders in a different church; and (6) it alleged the applicable canons and constitutions, when read in concert, do not indicate parish property is held in trust. Finally, Good Shepherd provided various arguments that the Diocesan Bishop of Pennsylvania did not have authority, under the canons and constitution, to bring the action against it.

As an initial matter, the Court, due to the United States Constitutions First Amendment guarantee of the freedom to practice ones religion, ruled that it could not inquire into the propriety of the internal governance or administration of the Church at issue. Further, it also refused, on the same grounds, to rule as to whether Bp. Moyer, who received Holy Orders in another branch of Anglicanism, can still be deemed an Episcopal priest. Regardless of the preceding, the Judge did not believe that either of the above was necessary to make a ruling on the Petition at issue. The Court ruled that although a church was involved, neutral legal principles could be applied to resolve the property dispute raised in the Petition without directly engaging any religious issues.

After all of the above were considered, the Diocese elected to restrict the relief it sought simply to a determination that the rector (Bp. Moyer) and the Vestry members be removed. Presumably the Diocese believed that all of the property dispute issues would be moot if it could successfully oust the rector and Vestry members who they believed were actively engaged in separating Good Shepherd from the Diocese and/or the National Church.

In analyzing the Episcopal Church’s structure, the Court found that it is hierarchical in nature, with a National Church having authority over a diocese which, in turn, has authority over a parish. The Court found that the Vestry of Good Shepherd could be viewed as having taken action to attempt to sever Good Shepherd from both the Diocese and the Episcopal Church. The Court, in the previous case, also found that Bp. Moyer had been defrocked in 2002 and is without license to function as a priest in either the Diocese or the Episcopal Church. With consideration of the above findings, the Judge ruled that it is the will of the Petitioners to evict both Bp. Moyer and the Vestry members and that they had authority to do it. The Petitioners decided to oust Bp. Moyer and the Vestry members because of the very divergent theological and ecclesiastical views between the parties and the Court refused to get involved in those issues. As Bp. Moyer is no longer employed by either the Diocese or National Church, and the Diocese, within an hierarchical church, having control over its property, the Diocese simply has the authority to evict Bp. Moyer out of Good Shepherds rectory and remove the Vestry members from their positions.

Due to the Courts ruling, Bp. Moyer must vacate the rectory immediately, and the Vestry members must immediately step down. Like the knights who martyred St. Thomas, the Petitioners herein, with reference to Bp. Moyer and the Vestry members, can say “let us away this fellow will arise no more.”

Originally published on November 9, 2011 in “Upon Further Review” and can be found here.

Episcopalian In-fighting Spreads to Montgomery County Courthouse

In October 2008 a Montgomery County jury ruled in favor of former Episcopal Bishop of Pennsylvania, Charles E. Bennison, Jr., and against the Rev. David Moyer, Rector of the Episcopal Church of the Good Shepherd in Rosemont, Pennsylvania.

Fr. Moyer and Bp. Bennison have had long-standing theological differences with Fr. Moyer being a traditional Episcopalian and Bp. Bennison holding to extremely liberal theological positions.  Their dispute was more than a private one, but also affected their professional relationship.  For example, Fr. Moyer prevented the Bishop from visiting his Parish, as required by the Canons, because Fr. Moyer believed such action was necessary to defend the faith he swore to adhere to in his ordination vows, as he believed the Bishop would inevitably preach things outside the bounds of traditional Episcopal faith.

Their dispute came to a head in 2002 when Bp. Bennison deposed (i.e. defrocked) Fr. Moyer from the priesthood without a trial.  Bp. Bennison deposed Fr. Moyer under a church Canon allowing for removal of a priest based upon “abandonment of communion”.  This Canon does not provide for a church trial before removal.  It essentially permits a Bishop to summarily remove a priest if certain criterion are met that signify that the priest is no longer in communion with his bishop.  The essence of Fr. Moyer’s claim was that the Bishop’s removal of him as Rector and as a priest in the Episcopal Church was fraudulent when the Bishop used the “abandonment of communion” Canon as opposed to a more typical Canon such as “conduct unbecoming of clergy,” which requires a church trial before the removal of a priest. Fr. Moyer asserted that he never abandoned the communion of the church, and that the Bishop had a personal vendetta against him and was intent on removing him by any means possible. Fr. Moyer, finding no relief under Church Canons, in regard to his removal, brought a civil suit against the Bishop for the alleged fraud, among other things.

Along with the fraud claims, Fr. Moyer also attempted to turn his deposition from the priesthood by his ecclesiastical superior into a case of unlawful termination from his position by his employer, the Episcopal Church.  In so doing, the issue could be framed not as an interchurch squabble over obscure, perhaps medieval, Canons, but rather as an employment matter between an employee and employer and the work rules that govern their relationship. Work rules, handbooks, or work policies are generally viewed as terms of a person’s employment and violation of the same by an employer allows an employee to bring a claim against that employer for the said violation.  It could be argued that as a priest is merely an employee of a diocese (and, by extension, the national church), his bishop is his “boss” and the church Canons are analogous to work rules.  As a result, if one finds this sort of framing convincing, the dispute between Fr. Moyer and Bp. Bennison was not a dispute between a priest and his prelate over church Canons, but between an employee and his employer over work rules.

Despite attempting to frame this issue as an employment issue, the fact remains that the review of interchurch rules, policies, and decisions are protected by the free exercise clause of the First Amendment.  In order to ensure adequate protection under the First Amendment, while also allowing a Plaintiff such as Fr. Moyer an opportunity for redress, the fraud claim was established as the gateway claim.

Although Montgomery County Court Judge Joseph Smyth voiced his concern  that the lawsuit crossed the line from civil to church issues protected by the First Amendment, he permitted the case to proceed out of respect for the judge previously assigned to the case who had permitted the lawsuit to continue.  Although Fr. Moyer brought a variety of employment and civil claims against the Bishop in addition to the fraud claim, Judge Smyth, due to his First Amendment concerns, instructed the jury that if Fr. Moyer’s evidence did not meet the fraud burden of proof, all of his remaining claims must be dismissed.  Indeed, the Judge indicated that fraud had to “pervade” the Bishop’s decision-making process to depose Fr. Moyer in order for some or all of Fr. Moyer’s other claims to be successful.

After deliberation, the jury found that there was insufficient evidence that the Bishop committed fraud in his deposition of Fr. Moyer.  The jury’s decision can be interpreted as determining that the Bishop acted well within his rights under the Canons, despite the evidence presented by Fr. Moyer that the Bishop had a personal vendetta against him.

The conclusion to be reached from this lawsuit is that the First Amendment protects the actions taken within a religious body and the actions of the Bishop in deposing Fr. Moyer were not so egregious that the protections provided by the First Amendment would be insufficient.

This article was originally published in “Upon Further Review” and can be found here and on my website here.

National Church v. Regional Diocese: Property Ownership by a Religious Institution

One of the oldest religions in the United States is at the forefront of the development of property and First Amendment law. In 1607, with the celebration of Holy Eucharist on a fallen log under a tent in Jamestown Virginia, the Episcopal Church found its beginning as the American branch of the worldwide Anglican Communion. Today, under the leadership of Rt. Rev. Robert Duncan, the Bishop of Pittsburgh, the seeds of the demise of the Episcopal Church as we know it have been planted as the synods of the Dioceses of Pittsburgh, PA, San Joaquin, CA, Quincy, IL, and Fort Worth, TX, and potentially more to follow, have voted themselves out of the Episcopal Church. The Episcopal Diocese of Pennsylvania (which consists of the Philadelphia five county area) is the fifth largest Diocese in the Episcopal Church. If a critical mass of the faithful formed a sufficiently significant voting bloc, the Diocese of Pennsylvania could be another diocese that departs from the Episcopal Church in 2009.

Over the last forty years, there has been a slowly growing movement of liberal theology within the Episcopal Church causing many faithful Episcopalians to lose faith in the National Church to adequately preach, maintain, and defend the historic Christian faith. As a result, Episcopalians have been leaving the Episcopal Church in greater numbers with each successive year, reaching a peak in 2008 with the departure of entire dioceses. The departure of dioceses from the National Church has raised as yet unanswered questions about the nature of the property ownership by a religious institution. Specifically, what entity owns church property, the National Church or the diocese?

Of course, property disputes among religious bodies and their members are hardly new. Over the last century and a half, Courts from around the country have generally used two overarching guidelines when ruling on such cases: (1) avoid involvement into inter-church politics as much as possible and (2) church property in a hierarchical church is owned by the diocese (or presbytery, etc). The distinctive issue that has arisen, in contrast to previous cases, is that now entire dioceses, as opposed to individual parishes/congregations, have attempted to leave the National Church.

Supporters of the National Church keeping the properties cite to the so-called Dennis Canon. The Dennis Canon (Title I.7.4 of the Episcopal Church canons), allegedly passed by the 66th General Convention of the Episcopal Church in 1979 states that “[a]ll 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.” Therefore, under the Dennis Canon, those seceding from the National Church must abandon their property, as it remains the property of the National Church. Supporters of the dioceses seceding from the National Church argue that the Dennis Canon was never actually passed by General Convention and none of the records surviving from the General Convention indicate that it ever passed. Suffice it to say, the court is loath to inject itself into this sort of interchurch squabble. Instead, when such issues are litigated in a civil court, the court will analyze the matter based upon property ownership and the corporate relationship between parish, diocese, and national church.

If the Diocese of Pennsylvania, at its next Diocesan Convention, votes to disassociate itself from the Episcopal Church, it would be very likely the National Church would bring an action against the Diocese for possession of diocesan property, including the real estate and all personal property owned by the diocese, such as the fixtures, prayer books, hymnals, and vestments, as well as the ejectment of parochial authorities, like rectors or perhaps even vestries. Supporters of the National Church would assert that the National Church is the top of the hierarchy for which all dioceses hold their property in trust and such a view is consistent with the spirit and tenor of existing case law. Those in favor of seceding from the National Church would assert that the National Church is an association that dioceses freely joined and from which can just as freely withdraw. For example, dioceses in the American South withdrew from the National Church along with the states in which they are situated when they seceded from the United States before the Civil War. These dioceses withdrew from the National Church without objection from the same, and were freely readmitted after the War. Furthermore, it is worth noting that properties within dioceses are virtually always deeded to the diocese itself and not the National Church.

2008 saw the departure of four dioceses from the Episcopal Church and 2009 could see further departures. A concerted movement among traditional Episcopalians in the Philadelphia area could lead to the introduction of legislation at the next Diocesan Convention to move the Dioceses out of the National Church. If successful, significant civil litigation by the Episcopal Church against those seceding is likely. At present the Episcopal Church is weighing its options regarding the withdrawn dioceses. Many expect protracted, expensive, wide spread, and large scale litigation. However, as more parishes and dioceses withdraw, litigation may prove to be prohibitively expensive as with each withdrawn parish or diocese is withdrawn tithers to the National Church causing it to lose more revenue with each successive withdrawal. Although lawyers may be interested to see how courts may rule in a matter such as this, perhaps the best, and most Christian, way forward would be an amicable separation allowing each side to go its separate ways taking its property along with it.

This article was originally published in Upon Further Review on January 9, 2009 and can be found here or on my website here.