A RESPONSE TO ROBERT MERRILL, PNNE, PC(USA)

I am a sinner who finds it hard to resist temptation. I was in that very predicament after reading a series of comments posted by Reverend Robert Merrill of the PC(USA)'s Presbytery of Northern New England over at The Reformed Pastor (http://reformedpastor.wordpress.com/) at an April 16, 2008 post entitled "Memorial Park, Presbytery Settle."

I had resisted pretty well until Rev. Merrill’s last comment led me to take pen to paper—or bits and bytes to the electronic universe.

For the PC(USA),the strenuous attempts to coerce congregations into staying and to punish congregations that are called by the Master to labor in some other part of His Vineyard are founded in the so-called property trust of the PC(USA)’s Book of Order. It is interesting to note that the PC(USA) is the only presbyterian denomination that asserts such a claim. Mr. Merrill and his cohorts at PNNE are dancing to Louisville’s tune.

He says:

In the case of Memorial, Presbytery owned the property. Always did, going back a 100 or so years varing (sic) rendetions (sic) of the BO, and it was strongly implied even before this. This was the northern practice. This is not “ransom” it is the purchase of a piece of property from one owner to new owner. The presbytery had every right to sell or not sell for a price of their own choosing. Is this not the same when you sell your own home?

If Mr. Merrill speaks for PNNE, then the members of the churches in that presbytery ought to be shaken to their roots. He claims a unilateral and unfettered right of the presbytery to sell any church’s property at any time for any reason.

Happily, he is wrong as a matter of PC(USA) polity and of the law of many States and Commonwealths.

The statement above is full of rampant error and wishful thinking.

First and foremost, Chapter VIII of the Book of Order has never claimed that a Presbytery “owns” the property of a member church. Rather, the Book of Order acknowledges that most churches hold title to their property in fee simple. Chapter VIII states as its aspiration, that the congregation holds that property “nonetheless” in trust for the national denomination, not the Presbytery.

Because of fatal defects in Chapter VIII, the trust alleged is aspirational only, unless the owner of the property (the local congregation) has taken affirmative steps to place that property in trust for the national denomination.

The claim that a trust has existed for a hundred or more years is false. The so-called trust is a modern creation, dating from May 23, 1981 when the Form of Government of the United Presbyterian Church in the United States of America (UPCUSA) was amended by adding the language that is now Section G-8.0202 of the Book of Order of the PC(USA). While the denominational bureaucracy, probably in recognition of the unenforceability of the so-called trust, has adopted the big lie principle, all the talk in the world cannot unilaterally convert the wishes and dreams of Louisville into an enforceable reality. (The “big lie” principle is simply stated "If you tell a lie long enough and loud enough, the people will come to believe it is true." It is frequently resorted to by tyrants and despots.)

The assertion of a long-standing “property trust” is also belied by the modern judicial record. If such a trust “has always been part of the Presbyterian theology and practice,” there was no need for the General Assembly of the PCUSA to attempt to amend its constitution to include an express trust provision in the late 1920s. That attempt failed of ratification in the presbyteries, Minutes, 142nd General Assembly at 54-55, 59 (1930); accord, Presbytery of Beaver-Butler v. Middlesex, 489 A.2d at 1325. So, as late as 75 years ago, the historical record affirmatively confirms that in the American presbyterian church, the presbyteries wanted no part of a property trust.

The trust provision proposed by the 141st General Assembly (1929) declared

Each particular church shall cause a corporation to be formed and maintained under the laws of the state where it is located, so as to enable it to receive, hold, and transfer property and to facilitate the management of its temporal affairs. The charter or articles of incorporation shall declare that its property is held in trust under the constitution of and for the Presbyterian Church in the United States of America.

This proposed amendment was rejected, having failed to receive the affirmative votes of a majority of the presbyteries. It is interesting to note that the “trust” provision was apparently mandatory, placing the onus on the congregations and corporations to take some affirmative action to create the trust (“[t]he charter or articles of incorporation shall declare. . .”).

A comparison of the 1930 and 1980 proposals is telling. The 1930 proposal required individual congregations to affirmatively act to place their property in trust for the denomination. The 1980 amendment (now G-8.0201, et seq.) simply and unilaterally asserted the existence of an aspirational trust. This may reflect a recollection by the UPCUSA that a demand to congregations that they place their property in trust would lead to another rejection of the proposed amendment.

As discussed below, it was the failure of the denomination to obtain the affirmative consent of the legal owners of the property, the church corporations, that led several courts to hold that no trust existed. See, e.g., Presbytery of Donegal v. Calhoun, 99 Pa. Cmwlth 300, 513 A. 2d 531 (1986); Presbytery of Donegal v. Wheatley, 99 Pa. Cmwlth 312, 513 A. 2d 538 (1986). See, also, First Presbyterian Church of Schenectady v. United Presbyterian Church, 62 N.Y.2d 110, 120-121, 476 N.Y.S.2d 86, 464 N.E.2d 454, cert. denied, 469 U.S. 1037, 105 S.Ct. 514, 83 L.Ed.2d 404 (1984).

Chapter VIII was adopted in an attempt to obtain some interest in property that the denomination had never before perfected. Inserted in response to Jones v. Wolf, 443 U.S. 595, 603 (1979), it seeks to impose constraints on the ability of churches to exercise their legal rights in their property for no reason other than to preserve an otherwise voluntary association of congregations. The idea that a trust provision could unilaterally impress a trust upon property purchased prior to the adoption of the constitutional amendment has been recently rejected by at least one court.

"In the first instance, we note that a member of a voluntary association is bound by the amendments to the association’s rules so long as the amendments (1) are duly enacted; and (2) do not deprive the member of vested property rights without the member’s explicit consent."In re: Church of St. James the Less, 888 A.2d 795, 807-808 (Pa. 2006) (citing, Leatherman v. Wolf, 240 Pa. 557, 564 (1913); Marshall v. Pilot’s Ass’n, 206 Pa. 182, 183 (1903)).

The so-called trust provision of §G-8.0200 cannot be said to be a perfected trust. With respect to property owned by a congregation or its corporation, “. . .a trust may be created by . . . a transfer inter vivos by a property owner to another person as trustee for one or more persons. . . .” Restatement Third, Trusts, § 10 (emphasis added). Thus, unless the owner of the property, the congregation, transfers the property into the trust, there is no trust. Neither the PC(USA) nor any of its presbyteries can do so because they are not the owners of the property.

Accordingly, having stated its desired result, it was incumbent upon the PC(USA) and its presbyteries to complete the process by obtaining from the individual corporations trust deeds or other instruments manifesting their respective intent to transfer their property into a trust for the benefit of the PC(USA). Id. at § 13. Until that event occurred, the property remained the sole property of the entity holding title to it. See, e.g., Presbytery of Donegal v. Calhoun, 99 Pa. Cmwlth 300, 513 A. 2d 531 (1986); Presbytery of Donegal v. Wheatley, 99 Pa. Cmwlth 312, 513 A. 2d 538 (1986). See, also, First Presbyterian Church of Schenectady v. United Presbyterian Church, 62 N.Y.2d 110, 120-121, 476 N.Y.S.2d 86, 464 N.E.2d 454, cert. den'd., 469 U.S. 1037, 105 S.Ct. 514, 83 L.Ed.2d 404 (1984) (“it is settled law that even though members of a local [church] belong to a hierarchical church, they may withdraw from the church and claim title to real and personal property, [held in the name of the local church,] provided that they have not previously ceded property to the denominational church”) (internal citations omitted).

In an attempt to defend Chapter VIII, the PC(USA) has recently invented the theory that the concept of a property trust has been a part of presbyterian theology and practice since the 16th Century. See, e.g., M. Tammen, Esquire and E. Granninger, Esquire, “Statement on church property, resources.” (“Real and personal property used by congregations and governing bodies of the Presbyterian Church (U.S.A.) is held in trust for the whole church. This has been a basic precept of Presbyterianism (sic), grounded in the polity of the church, since its inception in the 16th Century.”) Presbyterian Outlook on line, 5/14/2007. In support of this proposition, it relies upon the post-Civil war case of Watson v. Jones, 80 U.S. (13 Wall.) 679 (1872)

Watson stands for no such broad proposition! The dispute arose out of the passions of the aftermath of the Civil War. A PCUSA congregation in Louisville, Kentucky experienced a significant division over the issue of ordination standards. The church (and its presbytery) split over the General Assembly’s addition of a standard that forbade ordination, and even church membership, to any person “found . . .guilty of voluntarily aiding the war of the rebellion [i.e., the Confederate States].” 80 U.S. at 690-691.

At the conclusion of the War, a majority of the session favored calling one particular pastor (McElroy), while a majority of the congregation favored another candidate. The majority of the session persisted in its extension of a call to McElroy. At the request of the majority of the congregation, the synod then formed a committee with power to call a congregational meeting for the purpose of electing additional ruling elders. Id. at 684-685.

The real issue in Watson was which trustees composed the board of trustees of the corporation? Which trustees were acting to faithfully carry out the will of the congregation that had elected them? “This case shows two contesting organizations, each asserting itself to be the true Walnut Street Church mentioned in the deed and charter. The question for decision, therefore, is strictly one of identity and of lawful organic succession.” 80 U.S. at 703.

Searching for guidance, the Court found that the best source of instruction in matters of presbyterian property was, not surprisingly, Scottish law. “The great field for litigation of this nature has undoubtedly been Scotland, the native home of the Presbyterian faith and form of government.” Id. at 703.

The Court then found that prior to 1813, there had been no settled rule by which church controversies, including property controversies were to be adjudged. It was only with the decision in Craigdallie v. Aikman, 2 Bligh, 529; 1 Dow., 1, that a principle was announced “which was at once recognized and has since been uniformly accepted as the true governing rule in all cases of this nature.” 80 U.S. at 704.

That property conveyed for the use of a society for purposes of religious worship, is a trust, which is to be enforced for the purpose of maintaining that religious worship for which the property was devoted, and the event of a schism (the deed making no provision for such case), its uses are to be enforced, not in behalf of a majority of the congregation, nor yet exclusively in behalf of the party adhering to the general body, but in favor of that part of the society adhering to and maintaining the original principles upon which it was founded.
Id. at 705.

In other words, there is a trust, but that trust runs to those members of the congregation who remain faithful to the purposes for which the congregation was originally created and the principles in force at the time of the creation of the congregation.

There are four points that become evident upon a detailed reading of Watson v. Jones:

1. The concept of a property trust in presbyterianism can be traced back only as far as 1813. The suggestion that it is an ancient or well-established principle is false.

2. To the extent that a trust exists, it exists in favor of the entity which originally purchased the property and its members who adhere to the religious doctrines and principles in force at the time that the property was purchased.

3. That in the event that a congregation splits over purely doctrinal matters, the civil courts must defer to the ecclesiastical courts on issues of doctrine.

4. Nonetheless, the civil courts retain jurisdiction with respect to issues that are purely civil, such as issues of corporate accountability and real property ownership.

As anyone who has taken the time to work through Watson v. Jones can attest, it is a convoluted and oft-times confusing exposition of the law. Nonetheless, the inclusion of ecclesiastical issues into what might otherwise be an easily decided civil matter caused some courts to have grave concerns. Thus, Jones v. Wolf.

The decision by both the UPCUSA and the PCUS to add property trust provisions to their respective constitutions was a direct response to the U.S. Supreme Court’s decision in Jones v. Wolf, 443 U.S. 595 (1979). It was in this decision that the Court adopted the “neutral principles” doctrine. See, Report of the Permanent Committee on Conservation of Property, Minutes, 192nd General Assembly of the UPCUSA at 104 (1980) (the addition of a new chapter unilaterally declaring the existence of a property trust [now chapter VIII of the Book of Order of the PC(USA)]”is prompted by, and in reliance upon . . .” Jones v. Wolf).

Jones v. Wolf is an elegant recognition that not all “church” disputes are doctrinal or ecclesiastical. In particular, it recognizes that the civil courts have an obligation to treat all corporations, even religious corporations, equally when the issues presented are susceptible to such equal treatment.

The primary advantages of the neutral-principles approach are that it is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity. The method relies exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges. It thereby promises to free civil courts completely from entanglement in questions of religious doctrine, polity, and practice. Furthermore, the neutral-principles analysis shares the peculiar genius of private-law systems in general – flexibility in ordering private rights and obligations to reflect the intentions of the parties.

443 U.S. at 603.

Accordingly, it is clear that until 1981, the “northern church” had specifically rejected the concept of a property trust. Additionally, the language of the 1929-30amendment demonstrates that the current Chapter VIII “trust” is purely aspirational. Unlike the amendment considered in 1929-30, the amended adopted by the UPCUSA in 1981 did not affirmatively require churches to place their property in trust for the national denomination.

Mr. Merrill continues

In the case of Londonderry, at least 1/3rd desired to maintain their evangelical witness within the PCUSA (sic). When the Presbytery sought to reach an agreement about the property, the EPC side would not talk. Since the EPC side had brought civil suit against the Presbytery, there was no choice but for the PCUSA (sic)congregation but to join in the countersuit.

The vote was 72% to 28% in favor of disaffiliation, closer to one-fourth than one-third. But even assuming that Mr. Merrill is correct, under PC(USA) polity that he so deeply loves, that one-third was insufficient to carry the day. The meeting at which the congregation exercised its permissive power (G-7.0304a(5)) in favor of disaffiliation, 294 members of the congregation, representing 66% of the active members on the rolls of the congregation at that time participated. That is 6.5 times the quorum for a congregational meeting mandated in the PC(USA)’s Book of Order.

Seventy-two percent of those present voted to disaffiliate. Under the Book of Order, incorporating as it does Roberts Rules of Order, that was nearly a third again the required vote to approve disaffiliation, Roberts providing for a simple majority of 50% plus one. The PC(USA) Book of Order is silent as to any other requirement for either a super quorum or a super majority, although a number of Presbyteries have attempted to unilaterally and unconstitutionally amend the Book of Order by adopting “dismissal” processes containing both super quora and super majorities.

Interestingly, although 82 members voted against disaffiliation, the group that planted the new PC(USA) congregation in Londonderry has only managed to average about 75 persons(including members, representatives of PNNE and guests) in attendance at Sunday worship in the 24 weeks after the September 30 vote. Thus, it appears that not even all the 82 members who voted in the negative saw fit to leave Londonderry Presbyterian Church when it was received into the EPC.

Mr. Merrill also objects to the decision of the trustees of LPC, Inc.to file a declaratory judgment action seeking a declaration of the respective rights of the corporation and the PC(USA) in the corporation’s property, as well as obtaining a temporary restraining order preventing PNNE from carrying into effect the scheme secretly created and distributed to Presbyteries by the PC(USA) which have come to be known (with a nod to Toby Brown) the “Louisville Papers.”

Mr. Merrill continues

Now isn’t all of this very disheartening? I find it so. When all is said and done, maybe $1,000,000 will be wasted by funding the livelihood of NH lawyers. Certainly they and the judge have better things to do. I know our Presbytery does and I imagine the EPC Londonderry congregation does as well.

Mr. Merrill’s concern about legal fees rings hollow. Both PNNE and the PC(USA) church plant in Londonderry have steadfastly refused to even consider settlement negotiations. On at least one occasion, when the judge (who Mr. Merrill states “has better things to do”) asked the parties to attempt to settle the matter, PNNE flatly refused to even consider such a resolution.

Finally, Reverend Merrill says

I should also add that at the time Londonderry “disaffiliated” the church was without a pastor (the EPC congregation still does not have a pastor). An interim of over two years had left three months prior. The Session decided not to call a new interim. The Presbytery appointed a moderator, a retired statesman/pastor who is a well-known evangelical in the PCUSA (sic). During his three months serving as moderator and ½ time pulpit supply, the Session met without his knowledge, hired attorneys, and progressed with their plans.

First, Mr. Merrill fails to state why LPC had been without a pastor for such a long time. PNNE refused to consider LPC’s CIF unless and until LPC affirmatively voted to stay within the PC(USA) and to affirmatively ratify the Chapter VIII trust. In the six and one-half months since the vote to disaffiliate, the church has moved steadily to the point that it will likely call a pastor before the middle of May, less than 9 months after it was received into the EPC.

Second, Mr. Merrill is once again flat out wrong when he says that in the three months prior to the disaffiliation vote, the Session met without his knowledge, hired attorneys, and progressed with their plans.”

In fact, the Session did not meet. It was the trustees of the New Hampshire corporation that met, the trustees of the New Hampshire corporation that retained counsel, and the trustees of the corporation that recommended to the Session that the Session call a congregational meeting on the issue of disaffiliation from the PC(USA). Thus, the only action taken by the “Session” was to call the meeting of the congregation.

Once again, under Roberts Rules of Order, the Session was well within its rights to do so. There was no objection by the congregation to the call of the meeting, or that the business to be considered was out of order. And had the interim pastor (who presided over the meeting) ruled the meeting or the subject matter thereof to be out of order, Roberts Rules provide for a member of the body to appeal that ruling to the body itself. Based on the results of the disaffiliation vote, it is highly likely that the appeal would have been granted and the meeting would have progressed.

Finally, Mr. Merrill states

The Presbytery did not become aware of the Session’s intentions until two weeks prior to the vote to “disaffiliate.” An AC was appointed to work with the Session to bring resolution to this crises. Before the AC could meet, either as a group or with the Session, the Session took the Presbytery to court. Ten or so days later on September 30, the congregation voted and about 71% approved disaffiliation. The AC never was given a chance to even speak with the Session until after the vote had been taken, and they immediately renounced jurisdiction. By that point the entire matter was taken out of the hands of the church (where it was never given a chance), and placed in the hands of a secular judgment.

Where to begin with the many misstatements contained in this paragraph?

First, once again, the Session did not take the Presbytery to court. The trustees of a New Hampshire corporation who held title to its property sought a declaratory judgment from a New Hampshire court regarding the respective interests in that property of the corporation and the Presbytery (as agent for the national denomination).

Second, on September 16, 2007, the Administrative Commission was invited to speak to a gathering of the congregation to lay out its position with respect to the desire of the congregation to disaffiliate and to answer any questions which the congregation might have. The Administrative Commission was also present at the congregational meeting to disaffiliate. In a brief, informal meeting prior to calling the congregational meeting to order, the moderator correctly observed that because the meeting was a congregational meeting, only members of the congregation would be permitted to speak, unless a question was directed to the representatives of the Presbytery, at which time they would be permitted to respond to that question. Only one such question was posed, and a representative of the Presbytery answered that question.

Furthermore, when a local mental health counselor who is an ordained minister of Word and Sacrament in the PC(USA) who had worshipped at LPC attempted to speak, the moderator correctly ruled that, as a member of the Presbytery, and not of the congregation, he was not entitled to speak as a matter of right. Upon appeal, the congregation voted to allow the individual to speak, and he did so for approximately two minutes. It should be noted that the same individual had spoken at great length during the September 16 gathering of the congregation and that that individual is now the pastor of the PC(USA) new church plant in Londonderry.

Perhaps the greatest and most glaring misstatement in Mr. Merrill’s comments is this:

The AC never was given a chance to even speak with the Session until after the vote had been taken, and they immediately renounced jurisdiction.

No such renunciation was either requested nor asserted at the meeting that followed the congregational meeting. When the Session, the Administrative Commission, and the corporation’s attorney (at the request of the trustees of the corporation) retired to a separate room to meet at the request of the AC, the chair of the Commission opened the very brief meeting with the comment that “Well, I don’t know where we go from here.” or words to that effect. It was clear to all present that the AC was stunned at the overwhelming vote of the congregation.

At no time were any members of the Session asked if they had renounced the jurisdiction of the PCUSA or the PNNE. Because the vote was taken by secret written ballot, there was no way for the AC to know how the various members of the Session had voted. I must reiterate: at no time during that meeting was the issue of renunciation ever raised by either side, and the word “renunciation” was never uttered in that meeting.

Finally, the complaint that the matter was placed in the hands “of a secular judge” points out that Mr. Merrill’s objections are unfounded. The issue in front of the court is one which even the PC(USA) concedes is a matter of state law. That is the core of the fear of Mr. Merrill and PNNE. They recognize that as soon as the Court finds, as a matter of New Hampshire law, that the property is owned by the corporation free and clear of the so-called Chapter VIII trust, they have no means whatsoever to coerce the congregation of LPC to remain within the PCUSA.

For PNNE and the PC(USA),this has never been about theology, Christology, the authority of Scripture, or any of the other subjects on which the PC(USA) refuses to take a stand. Rather, it is simply about the exercise of raw power through the coercive assertion of an unenforceable property trust. Mr. Merrill and those of his stripe recognize that they can no longer convince an orthodox, Scripturally faithful congregation of the orthodoxy of the PC(USA). Thus, they are forced to resort to coercion and the in terrorem effect of that trust.