Protestant Episc. Church, Diocese of NJ v. Graves ( 1980 )

SCHREIBER, J.,

dissenting.

At the heart of this case is a dispute between a central church and members of a parish over the ownership and control of parish property. The legal question is what is the proper methodology to be applied to resolve that dispute. We are not being called upon to solve a controversy between rival factions of the same congregation or a religious dispute between members of a parish and a central church.

The First Amendment to the federal Constitution prohibits Congress from making any “law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”

This Amendment has been incorporated into the Fourteenth Amendment, so that the states may not establish a religion or prohibit its free exercise. See Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 1218 (1940). The “establishment” and “free exercise” clauses complement each other. See Abington School Dist. v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 1571, 10 L.Ed.2d 844, 858 (1963). Thus, courts may not support the tenets of any one religion and must respect the right of every person to choose his own course with reference to religious observance. To comply fully with these propositions courts should apply neutral principles in deciding controversies arising out of church disputes.

The Supreme Court has pronounced certain basic guidelines which states must follow in answering church property questions. They were summarized most recently in Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979). The first is that civil courts may not resolve church property disputes on the basis of religious doctrine and practice. Id. at 602, 99 S.Ct. at 3025, 61 L.Ed.2d at 784. Accordingly, the Court has rejected the “English approach” of resolving property disputes in hierarchical churches. Under that approach, local church property was impliedly held in trust for the general church so long as the general church adhered to the tenets of faith and practice existing at the time of affiliation by the local church. See Presbyterian Church v. Hull Church, 393 U.S. 440, 443 n.2, 89 S.Ct. 601, 603 n.2, 21 L.Ed.2d 658, 662 (1969). If the general church departed from those tenets of faith and practice, the trust failed and ownership vested solely in the local unit. Civil courts would necessarily be called upon to decide what the religious tenets were and whether a meaningful change had occurred. This decision-making would enmesh the courts in questions of religious dogma, a prohibited area. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710, 96 S.Ct. 2372, 2381, 49 L.Ed.2d 151, 163 (1976). Thus, it is impermissible for civil courts to resolve property disputes in this fashion. It follows that, when seeking to decide a particular religious matter involving a hierarchical church, courts must defer to the decision of the church’s supreme authority on that matter. Serbian E. Orthodox Diocese, 426 U.S. at 724-725, 96 S.Ct. at 2387, 49 L.Ed.2d at 171.

The second basic constitutional guideline is that states are free to adopt any approach to adjudicate church property disputes “ ‘so long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith.’ ” Jones v. Wolf, 443 U.S. at 602, 99 S.Ct. at 3025, 61 L.Ed.2d at 784 (quoting Md. & Va. Eldership v. Sharpsburg Church, Inc., 396 U.S. 367, 368, 90 S.Ct. 499, 500, 24 L.Ed.2d 582, 584 (1970) (Brennan, J., concurring) (emphasis added)). The Supreme Court has approved one method, the application of “neutral principles of law.” Jones v. Wolf, 443 U.S. at 602, 99 S.Ct. at 3025, 61 L.Ed.2d at 784. This method relies on objective, traditional concepts of trust and property law familiar to lawyers and judges. The analysis used is that generally followed in private law. As applied in Md. & Va. Eldership, the neutral principles approach resolved a local church property dispute on the basis of the language employed in the deeds, terms of the local church charters, state statutes governing the holding of church property, and provisions in the constitutions of the general church and of the Maryland and Virginia Eldership concerning the ownership and control of church property. The neutral principles of law analysis is completely secular in its operation. Though it may involve examination of some religious instrument, such as a church constitution, that examination must be performed “in purely secular terms” without relying “on religious precepts in determining whether the document indicates that the parties have intended to create a trust.” Jones v. Wolf, 443 U.S. at 604, 99 S.Ct. at 3026, 61 L.Ed.2A at 785.

The neutral principles of law approach “free[s] civil courts completely from entanglement in questions of religious doctrine, polity, and practice.” Ibid. It is a method with which courts are familiar, and contains the “peculiar genius of private-law systems in general—flexibility in ordering private rights and obligations to reflect the intentions of the parties.” Ibid.

Despite these characteristics, the majority has chosen not to apply the neutral principles of law methodology where a “hierarchical” church is involved. It holds that when a hierarchical organization exists, civil courts must defer to the higher ecclesiastical authority in resolving a property dispute between a local parish and the general church. Both the trial court below and the majority rely on Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L.Ed. 666 (1872), for this proposition. They assert that Watson v. Jones established the rule that the existence of a hierarchical church organization conclusively establishes that a local property dispute must be resolved in favor of the religious doctrine or tenet advocated by the central church. Watson v. Jones does not stand for that broad proposition, and, if it did, would violate the Establishment Clause of the First Amendment. In Watson v. Jones, the dispute arose within a local church when the central church body, the General Assembly of the Presbyterian Church of the United States, condemned slavery. The majority of the Walnut Street Presbyterian Church of Louisville, the local church, sided with the central body. The dissidents in the congregation did not. The issue presented to the trial court was which set of trustees and elders elected by competing factions of the Walnut Street church should serve the congregation. The matter turned on the power of the General Assembly to prescribe qualifications for local church office and the question presented essentially concerned the extent of a particular church’s ecclesiastical authority. In that context the Supreme Court formulated the principle of compulsory deference by courts to decisions of ecclesiastical authorities in hierarchical churches over religious matters which had been committed to them. Watson v. Jones did not involve the right of a local parish to secede from the central organization, taking its property with it. This is the precise point which the majority herein misses.

There have been occasions when the resolution of a doctrinal controversy affected control of property. However, in those situations the crucial subject matter in dispute was of an ecclesiastical nature. If the central body has been authorized to decide the ecclesiastical question, its determination would be final and binding on the civil courts. Thus, in Serbian E. Orthodox Diocese, suspension and defrockment of a bishop were religious issues to be decided by ecclesiastical and not civil tribunals. Resolution of the religious dispute incidentally determined control of property because the bishop was the principal officer of the corporation which owned the property. However, the Court noted:

Thus, this case essentially involves not a church property dispute, but a religious dispute the resolution of which under our cases is for ecclesiastical and not civil tribunals. [426 U.S. at 709, 96 S.Ct. at 2380, 49 L.Ed.2d at 163]

In contrast, in Jones v. Wolf, the majority of the local parish sought to secede from the general church taking the local property with them. The dissidents who were in the minority sought a judicial declaration of their right to exclusive possession and use of the church property. Thus, the central issue projected was the right of the local church to withdraw its property.¹ By applying neutral principles to resolve the property question, the Jones v. Wolf Court recognized that the answer to an underlying but separate ecclesiastical question by a hierarchical body did not foreclose the civil court from resolving the property dispute.

In this case, the core issue concerns control over the property which is in the name of St. Stephen’s. The complainants are the Protestant Episcopal Church in the Diocese of New Jersey, its bishop and the Trustees of Church Property of the Diocese. They seek a declaration that all the real and personal property of St. Stephen’s is impressed with a trust in favor of the Diocese of New Jersey.² The plaintiffs claim equitable ownership and control over the property. The court has not been requested to resolve a dispute between two factions within the St. Stephen’s parish. None of the dissidents in St. Stephen’s is a party to this action. None has intervened.

Contrary to the majority’s assertion, the dispute before us is not “doctrinal in nature,” ante at 581, even though it arose as a result of controversies over church doctrine and practice. None of the plaintiffs, the Diocese of New Jersey, the Trustees of Church Property of the Diocese of New Jersey, and the Bishop of the Diocese, has sought the ouster of the present wardens and vestrymen of St. Stephen’s Church. The plaintiffs do not seek to transfer control of the parish property to a loyal group of parishioners; nor do they seek to maintain an orthodox parish by appointing a new rector. The Diocese is seeking to gain control of the property for itself. Thus, unlike in Serbian E. Orthodox Church, upon which the majority relies, the issue before this Court is primarily one of property law: whether the Diocese has equitable ownership and the right to control the property of St. Stephen’s Church.³ The type of primarily religious dispute that led to complete judicial deference in Serbian E. Orthodox Diocese and Watson v. Jones is not present here.⁴

Even if the question is projected as the majority suggests, namely that when a hierarchical institution exists civil courts must defer to ecclesiastical authority to resolve property disputes, the Watson v. Jones rule must be applied consistently with the principles contained in Jones v. Wolf. In Jones v. Wolf, both the majority and dissent, unlike the majority in this case, recognized that the hierarchical form of the church’s organization did not per se resolve an intra-church dispute over control of church property.⁵ Since a hierarchy could exist as to ecclesiastical matters and not as to others, the first question to be addressed according to the Jones v. Wolf dissent is, “where within the religious association the rules of polity, accepted by its members before the schism, had placed ultimate authority over the use of the church property.” 443 U.S. at 618, 99 S.Ct. at 3032, 61 L.Ed.2d at 794 (Powell, J., dissenting). The object of that inquiry is to determine whether the local church has unreviewable authority to withdraw with its property from the general church. The assumption that a local church has necessarily given up the power to control its property by affiliating with a hierarchical church is unsound. It assumes the existence of a provision to that effect in the agreement that in fact may not exist. Moreover, by not ascertaining who the parties had agreed should decide the question of property control in the event of a schism, the court might effectively contravene the First Amendment. The court might then be compelling, without consent of the owner, the appropriation of its property for use by another for religious purposes. See “Church Property Disputes,” 31 Mercer L.Rev. at 577.

The majority in Jones v. Wolf points out that to ascertain who has the authority to resolve the church property dispute requires an examination of the polity and administration of the church. In some cases this might not be difficult. If the locus of control is ambiguous, however, a careful scrutiny of the constitutions, canons, other documents, past practices and customs, would be necessary. Such searching would constitute an “ ‘impermissible inquiry into church polity.’ ” Jones v. Wolf, 443 U.S. at 605, 99 S.Ct. at 3026, 61 L.Ed.2d at 786 (quoting Serbian E. Orthodox Diocese, 426 U.S. at 723,96 S.Ct. at 2387,49 L.Ed.2d at 170). As Justice Brennan wrote in Md. & Va. Eldership, 396 U.S. at 369-370, 90 S.Ct. at 500, 24 L.Ed.2d at 584 (concurring opinion) (footnote omitted):

To permit civil courts to probe deeply enough into the allocation of power within a church so as to decide where religious law places control over the use of church property would violate the First Amendment in much the same manner as civil determination of religious doctrine. Similarly, where the identity of the governing body or bodies that exercise general authority within a church is a matter of substantial controversy, civil courts are not to make the inquiry into religious law and usage that would be essential to the resolution of the controversy. In other words, the use of the Watson approach is consonant with the prohibitions of the First Amendment only if the appropriate church governing body can be determined without the resolution of doctrinal questions and without extensive inquiry into religious polity.

Reliance on Watson v. Jones in this case would involve just such an impermissibly extensive inquiry into religious polity.

The parties have not identified any constitutional provisions or canons that address the right of a local parish to withdraw, what happens to its property when that occurs, or who is authorized to resolve a property dispute when a local body secedes. In the absence of clear expressions on these issues a searching inquiry would have to made into the historical practices and rules of the Protestant Episcopal Church in the United States of America and the Protestant Episcopal Church in the Diocese of New Jersey. (In fact, there is sharp disagreement among experts on canon law and church history. One expert testified in the companion St. Mark’s case, Diocese of Newark v. Burns, 83 N.J. 594 (1980), that parishes have the ultimate control and may withdraw their property, while another testified that they may not secede and take their property.) An inquiry of this type and its resolution by a civil court would constitute an “ ‘establishment of religion’ with a vengeance . .” Md. & Va. Eldership v. Sharpsburg Church, Inc., 254 Md. 162, 175, 254 A.2d 162, 170 (Ct.App.1969), dismissed for want of substantial federal question, 396 U.S. 367, 90 S.Ct. 499, 24 L.Ed.2d 582 (1970).

The majority refers to only one canon in support of its position, Title I, Canon 6, Section 3, which provides that no body authorized by civil or canon law to hold real property for any parish shall encumber or alienate the same without the written consent of the Bishop and Standing Committee of the Diocese.⁶ Though indicating a measure of control over the local unit while it is part of the hierarchy, that canon, like other provisions governing a member local unit, would not be effective upon disaffiliation. No reverter or other provision transfers the property to the general church when no longer used in accordance with the doctrine, discipline or worship of the Protestant Episcopal Church in the United States of America. The measure of control embodied in Title I, Canon 6, Section 3, does not create an express or an implied trust in favor of the general church.

Likewise, the constitution and canons of the national church and the Diocese disclose nothing which “in purely secular terms” provided that the St. Stephen’s property was being held in trust, expressly or impliedly. If anything, the .diocesan canons indicate a contrary intent.

Canon 17, Section 3, provides:

The title to all real estate and endowment funds of a parish receiving financial assistance from the Diocese for the support of the rector in accordance with this canon, unless otherwise directed by the Trustees of the Diocesan Foundation, shall be vested in the Trustees of Church Property of the Diocese of New Jersey, to be held by them in trust until such time as the parish may again be self-supporting.

Canon 21, Section 8, reads:

The title to real estate^ given to or purchased by the Mission for Church purposes, unless otherwise ordered by the Board of Missions, shall be vested in the Trustees of Church Property of the Diocese of New Jersey, to be held by them until such time as the said property may be sold pursuant to Section 6 of Canon 9, or until such time as the Mission shall become duly incorporated as a Parish and admitted into union with the Convention, when the title may be transferred to the Church corporation if it shall so elect. Mission Advancement, Inc. may be authorized by the Trustees of the Diocesan Foundation to acquire, mortgage, sell, lease, or otherwise deal with property for mission purposes.

Canon 37, Section 4, Plan B(2)-Paragraph 4(a), referring to a Parochial Chapel, states:

The title to all real property shall be vested in the Trustees of Church Property of the Diocese of New Jersey.

These three canons exhibit an intent that under some limited circumstances title to property shall be in the central church. They also demonstrate that when property was to be vested in the central church, provisions to that effect were made in clear and unambiguous language. Indeed, absent financial indebtedness to the Diocese, under Canon 17, Section 3, title to all parish real estate is in the local unit. In light of the canons, the power to control the financial and property affairs of the parishes belongs virtually exclusively to the local body.

The Supreme Court in Jones v. Wolf suggested:

Through appropriate reversionary clauses and trust provisions, religious societies can specify what is to happen to church property in the event of a particular contingency, or what religious body will determine the ownership in the event of a schism or doctrinal controversy. In this manner, a religious organization can ensure that a dispute over the ownership of church property will be resolved in accord with the desires of the members. [443 U.S. at 603, 99 S.Ct. at 3025, 61 L. Ed.2d at 785]

After this litigation arose and Jones v. Wolf was decided, the national church modified Title I, Canon 6, Section 4, to provide that all property of the local church is held in trust for the general church. The church has thereby made it clear that the withdrawing congregation is not entitled to the local church property. This clarity is found by a secular approach and safeguards civil courts from fostering the interests of one religious group over another by engaging in a dialogue of religious dogma or practice in violation of First Amendment principles.

Jones v. Wolf recommended that property disputes be settled by neutral principles of law. Completely secular in operation, the method relies on objective, established concepts of trust and property law. The local parishioners of St. Stephen’s purchased the land and buildings with their funds. Deeds to the properties have always been in St. Stephen’s. St. Stephen’s has maintained the property through the years. No trust in favor of the general church can be found when the neutral principles of law are applied to the facts. No instrument expresses that a trust, express or implied, has been created in favor of the general church. Nothing can be found in St. Stephen’s corporate charter and nothing exists in the constitution of the general church creating a trust, express or implied, in favor of the general church. Following the precise instructions in Jones v. Wolf, I am satisfied that no trust has been created in the local church property.

This result is fair and just. St. Stephen’s was organized as a separate entity by people who believed in the Protestant Episcopal Church. They and their successors advanced the funds to purchase and maintain the land and buildings. St. Stephen’s voluntarily joined the Protestant Episcopal Church in the United States of America. It has decided to withdraw from that organization. In the absence of having dedicated its property to that central body or having agreed that someone else would decide in the event of a schism what would happen to its property, it should be permitted to retain that property. Though there had been some disagreement among the congregants (the vote was 44 to 8 to withdraw), the dissenters are not parties to or intervenors in this action and apparently have acceded to the will of the majority. At the time of the motion hearings before the trial court, there were approximately 200 members in the parish, all of whom supported the defendants.

I would reverse and remand.

For affirmance—Chief Justice WILENTZ and Justices SULLIVAN, CLIFFORD and POLLOCK—4.

For reversal and remandment—Justices PASHMAN, SCHREIBER and HANDLER—3.

1 A secondary question involved resolution of the intrachurch dispute between the two factions in the local church.

2 The trial court’s summary judgment order recited only that control of all property of St. Stephen’s be placed in the hands of the Trustees of Church Property of the Diocese and that the Rev. Stanwood E. Graves be evicted from the rectory and enjoined from entering the church or parish house.

3 See note 2 supra.

4 The arguments made by counsel on the motion for summary judgment, the exhaustive opinion of the trial court, the Appellate Division opinion, and the briefs of counsel have not addressed the problem in terms of the status of defendants as wardens and vestrymen. This proposition has surfaced for the first time in the majority opinion. The parties have not been given the opportunity to develop a record or argue that issue. In Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973), we wrote:

It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available “unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.” Reynolds Offset Co., Inc. v. Summer, 58 N.J.Super. 542, 548 (App.Div.1959), certif. den. 31 N.J. 554 (1960).

I do note here, for example, that in connection with this new issue the defendant wardens and vestrymen were duly elected and/acting as such when the local parish corporation held its meeting to disaffiliate, that no specific canon has been brought to the court’s attention empowering the central church to remove wardens and vestrymen from their offices and declare them vacant. Even if such a power exists, there is no showing that it has been exercised. The majority quotes from an affidavit of the Venerable Canon Russell Abbott Smith to the effect that the wardens and vestrymen are not entitled to hold office. This conclusory statement conflicts with the affidavit of the Senior Warden Donald S. Moore that he continues to have that status and has “never been notified by plaintiffs that they no longer consider me to be one of the wardens of the parish.” See American Primitive Society v. Pilling, 24 N.J.L. 653 (Sup.Ct.1855), holding that duly elected trustees of the local church corporation did not lose their offices when the congregation voted to disassociate from the central church, that the local church corporation continued to exist, and that the trustees remained in their offices until ousted. Moreover, the question would remain whether the property placed in the name of the local corporate entity for the membership belongs to the membership when it disaffiliates from the central institution.

5 a similar recognition may be found in New Jersey opinions which dealt with hierarchical churches. In Vargo v. Vajo, 76 N.J.Eq. 161 (Ch.1909), secession was sanctioned where the hierarchical polity applied to ecclesiastical matters but the jurisdiction as disclosed in the church constitution did not “include the management and control of the church property . . . .” Id. at 170. St. John’s Greek Catholic Hungarian Russian Orthodox Church v. Fedak, 96 N.J.Super. 556 (App.Div.1967), certif. den. 50 N.J. 406 (1967), held that the parish had never surrendered control over local temporal affairs including the authority to secede.

The comment “Church Property Disputes: The Trend and the Alternative,” 31 Mercer L.Rev. 559, 575 (1980) (“Church Property Disputes”) points out that membership in a hierarchical organization does not necessarily mean that the local church cannot be congregational as far as control of local church property is concerned.

6 To a similar effect, see N.J.S.A. 16:12-4 which, like Title I, Canon 6, Section 3, indicates control over property only while the local unit is part of the general hierarchy.