The Falls Church v. Protestant Episcopal Church ( 2013 )

PRESENT: Kinser, C.J., Goodwyn, Millette, McClanahan and Powell,
JJ., and Koontz and Lacy, S.JJ.
THE FALLS CHURCH, a/k/a
THE CHURCH AT THE FALLS
- THE FALLS CHURCH
OPINION BY
v. Record No. 120919 JUSTICE CLEO E. POWELL
April 18, 2013
THE PROTESTANT EPISCOPAL CHURCH
IN THE UNITED STATES OF AMERICA,
ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Randy I. Bellows, Judge
This appeal has its origin in a protracted and complex
dispute between the plaintiffs, the Protestant Episcopal Church
in the Diocese of Virginia (the “Diocese”) and the Protestant
Episcopal Church in the United States of America (“TEC”), and
the defendants, seven local congregations including The Falls
Church, the appellant in the present case. In this appeal, we
are asked to consider whether the trial court properly applied
neutral principles of law in deciding the ownership of certain
disputed church property, whether that application was
constitutional, and whether the trial court, after applying
neutral principles of law, granted the proper relief. In their
assignment of cross-error, TEC and the Diocese ask us to
consider whether the trial court erred in its application of
Code § 57-7.1.
I. BACKGROUND
Many of the facts in this case were related in exacting
detail in prior proceedings before this Court. See Protestant
Episcopal Church v. Truro Church, 280 Va. 6, 694 S.E.2d 555(2010). Therefore, due to the extensive nature of the
proceedings below, we will recite only the facts necessary for
our resolution of the dispositive issues in this case.
The Falls Church was founded in 1732 as one of two
congregations in Truro Parish. Construction of a church on the
property conveyed to the parish was completed in 1769. TEC is a
hierarchical denomination founded in 1789. Id. at 13, 694
S.E.2d at 558. The Diocese is one of the geographical dioceses
within TEC. Id. at 15, 694 S.E.2d at 559. Although it existed
prior to the founding of TEC or the Diocese, The Falls Church
petitioned to be a part of the Diocese and TEC in 1836. At the
1836 Annual Convention, the Diocese accepted The Falls Church’s
petition.
Following a long-standing conflict within TEC that arose in
2003, the congregation of The Falls Church overwhelmingly voted
to disaffiliate from TEC and the Diocese on December 17, 2006.
The Falls Church and six other congregations in the Diocese
(collectively the “CANA congregations”) subsequently filed
petitions pursuant to Code § 57-9(A), which was the subject of
this Court’s opinion in Truro Church.
2
Shortly after the CANA congregations filed their petitions,
TEC and the Diocese filed complaints asserting that all personal
and real property held by the CANA congregations was actually
held in trust for TEC and the Diocese. In their complaint, TEC
and the Diocese asserted that they directed the trustees of the
CANA congregations to transfer the property to the Diocesan
Bishop, but the CANA congregations had refused to do so. Both
complaints requested that the CANA congregations be ordered to
submit an accounting, be enjoined from further use, occupancy or
alienation of the disputed property, and convey and transfer
control of the property to the Diocesan Bishop. The complaint
filed by the Diocese further requested that the trial court
enter judgment declaring an improper trespass, conversion and
alienation of real and personal property. The CANA
congregations filed a counterclaim seeking a declaration that
TEC and the Diocese had no interest in the disputed property
occupied by the CANA congregations, and asserting claims for
unjust enrichment and for imposition of a constructive trust.
After a trial on the congregations’ Code § 57-9(A)
petitions, the trial court granted the petitions and dismissed
the complaints filed by TEC and the Diocese as legally moot.
This Court reversed, and remanded the case with direction that
the trial court reinstate TEC’s and the Diocese’s declaratory
judgment actions and the CANA congregations’ related
3
counterclaims. Id. at 29, 694 S.E.2d at 567. In so doing, we
stated the trial court was to “resolve this dispute under
principles of real property and contract law.” Id.
On remand, the trial court considered the complaints filed
by TEC and the Diocese as well as the counterclaims filed by the
CANA congregations. Following a 22-day trial, the trial court
ruled that TEC and the Diocese had contractual and proprietary
interests in the property at issue, and enjoined the CANA
congregations from further use of the property. The trial court
denied the entirety of the CANA congregations’ counterclaims.
In a 113-page letter opinion, the trial court articulated
its analysis of the dispute. The trial court explained that it
applied neutral principles of law by considering our statutes,
the language of the deeds conveying the disputed property, the
constitution and canons of TEC and the Diocese, and the dealings
between the parties. See Green v. Lewis, 221 Va. 547, 555, 272
S.E.2d 181, 185-86 (1980) (“we look to our own statutes, to the
language of the deed conveying the property, to the constitution
of the general church, and to the dealings between the
parties”); Norfolk Presbytery v. Bollinger, 214 Va. 500, 505,
201 S.E.2d 752, 756-57 (1974) (“it is proper to resolve a
dispute over church property by considering the statutes of
Virginia, the express language in the deeds and the provisions
of the constitution of the general church”).
4
In considering the applicable statutes, the trial court
found that the adoption of Code § 57-7.1 did not change the
long-standing rule in Virginia that church property may not be
held by a trustee for the general church, and only trusts for
local congregations are recognized. Thus, the trial court found
it unnecessary to address the applicability of Code § 57-7.1.
The trial court further determined that Code § 57-15 allowed it
to order the transfer of property only if the transfer was the
wish of the constituted church authorities of a hierarchical
church.
Turning to its examination of the relevant deeds, the trial
court considered the eleven deeds connected with The Falls
Church. In 1746, the first deed conveyed two acres to “the said
Vestry of Truro parish.” The second deed is to the “trustees of
the Episcopal Church, known and designated as the ‘Falls
Church.’” The third deed is to “Trustees for the Falls Church
Episcopal Church,” and the fourth is to “Trustees of the Falls
Church.” The fifth and sixth deeds are both to “Trustees of The
Falls Church, Falls Church, Virginia.” The seventh through
eleventh deeds are all to “Trustees of the Falls Church
(Episcopal).” The trial court found that the fact that most of
the deeds refer to the church as Episcopal was an indication
that the designated cestui que trust was a unit or component of
TEC. Relying on the circumstances of the times during which the
5
deeds were executed, the trial court found that a reasonable
grantor would have understood that property conveyed to a local
Episcopal church would not be removed from the denomination
without TEC’s or the Diocese’s consent.
In looking at the constitution and canons of the church,
the trial court cited provisions stating that each congregation
was bound by the constitution and canons of the general church
and must acknowledge the jurisdiction of the Bishop; all clergy
must affirm they “conform to the Doctrine, Discipline, and
Worship of the Episcopal Church” to be ordained; all
congregations use the Book of Common Prayer; Bishops must
regularly visit parishes to examine the state of the churches;
and congregations must participate in the Diocesan health care
plan, contribute to the Church Pension Fund, and purchase fire,
casualty and workers’ compensation insurance. The trial court
also noted property canons which prohibited the congregations
from alienating consecrated property without the consent of the
Diocese and allowed the Diocese to declare property abandoned if
it ceased to be used by a congregation of TEC and the Diocese.
The trial court concluded that TEC and the Diocese exercised
pervasive dominion, management, control, supervision and
authority over local church property, in a manner traditionally
associated with ownership and possession.
6
Finally, in considering the course of dealings between the
parties, the trial court cited the fact that the churches became
members of TEC and the Diocese in accordance with the rules of
the Diocese, were known in the community as Episcopal churches,
sought consent from the Diocese to encumber property, were
served by ordained Episcopal priests, used the Book of Common
Prayer, contributed financially to the Diocese and the Church
Pension Fund and were visited every year between 1934 and 2005
by the Bishops of the Diocese.
Based on its consideration of neutral principles of law and
examination of our statutes, the deeds, the constitutions and
canons, and the course of dealings between the parties, the
trial court found that TEC and the Diocese carried their burden
of proving they had contractual and proprietary interests in the
church property at issue. The trial court acknowledged that the
congregations paid for, improved and managed the property on a
daily basis, but found those actions were consistent with a
hierarchical polity and were not dispositive of whether the CANA
congregations or TEC and the Diocese were entitled to the
property. The trial court also found that, under Code § 57-10,
the personal property held by the CANA congregations followed
the disposition of the real property and must also be turned
over to the Bishop.
7
The trial court further stated that there was a point in
time after which it was clear that donations by members of the
CANA congregations were not contributions to Episcopal
congregations. Therefore, the trial court adopted the date TEC
and the Diocese filed the declaratory judgment actions, January
31, 2007, as the proper “point of demarcation,” and ordered that
all personal property acquired before that date be conveyed to
the Diocese and all intangible personal property acquired after
that date remain with the CANA congregations. Tangible personal
property acquired after that date would be conveyed to the
Diocese unless the CANA congregations could demonstrate that it
was purchased with funds acquired after the date.
The Falls Church appeals. 1 TEC and the Diocese cross-appeal
the trial court’s ruling with regard to Code § 57-7.1.
II. COURT REVIEW OF CHURCH PROPERTY DISPUTES
The primary issue in this case is whether TEC and the
Diocese have a proprietary interest in the real and personal
property that was held by The Falls Church. See Code § 57-15;
Norfolk Presbytery, 214 Va. at 503, 201 S.E.2d at 755. In its
first assignment of error, The Falls Church claims that:
The trial court erred in enforcing canon
law, rather than “principles of real
property and contract law” used in all
1
None of the other six CANA congregations appealed the
decision of the trial court.
8
cases, to award [TEC and the Diocese] a
proprietary interest in [The Falls Church’s]
property and to extinguish [The Falls
Church’s] interest in such property, even
though [The Falls Church’s] own trustees
held title and [The Falls Church] paid for,
improved, and maintained the property.
Although it has been recognized that “the First Amendment
severely circumscribes the role that civil courts may play in
resolving church property disputes,” Presbyterian Church in the
United States v. Mary Elizabeth Blue Hull Memorial Presbyterian
Church, 393 U.S. 440, 449 (1969), it is well established that
“there is no constitutional prohibition against the resolution
of church property disputes by civil courts, provided that the
decision does not depend on inquiry into questions of faith or
doctrine.” Norfolk Presbytery, 214 Va. at 503, 201 S.E.2d at
755.
“Civil courts do not inhibit free exercise
of religion merely by opening their doors to
disputes involving church property. And
there are neutral principles of law,
developed for use in all property disputes,
which can be applied without ‘establishing’
churches to which property is awarded.”
Neither the State Constitution nor the First
Amendment deprives church members of their
right to resort to the courts for the
protection of their property rights or their
civil rights. The question is simply
whether the court can decide the case by
reference to neutral principles of law,
without reference to issues of faith and
doctrine.
9
Reid v. Gholson, 229 Va. 179, 187-88, 327 S.E.2d 107, 112 (1985)
(citations omitted).
In Jones v. Wolf, 443 U.S. 595, 602 (1979), the United
States Supreme Court held that “‘a State may adopt any one of
various approaches for settling 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’”
(quoting Maryland & Va. Churches v. Sharpsburg Church, 396 U.S.
367, 368 (1970) (Brennan, J., concurring) (emphasis omitted)).
Referring to such secular approaches as “neutral principles of
law,” the Supreme Court explained:
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.
Id. at 603.
As part of its explanation of the neutral principles of
law, the Supreme Court noted that:
Under the neutral-principles approach, the
outcome of a church property dispute is not
10
foreordained. At any time before the
dispute erupts, the parties can ensure, if
they so desire, that the faction loyal to
the hierarchical church will retain the
church property. They can modify the deeds
or the corporate charter to include a right
of reversion or trust in favor of the
general church. Alternatively, the
constitution of the general church can be
made to recite an express trust in favor of
the denominational church. The burden
involved in taking such steps will be
minimal. And the civil courts will be bound
to give effect to the result indicated by
the parties, provided it is embodied in some
legally cognizable form.
Id. at 606.
Virginia has long applied neutral principles of law when
there is a dispute between a hierarchical church and a local
congregation over the ownership of church property. See Reid,
229 Va. at 188, 327 S.E.2d at 112; Green, 221 Va. at 555, 272
S.E.2d at 185; Norfolk Presbytery, 214 Va. at 507, 201 S.E.2d at
758. We have held that the hierarchical church bears the burden
of proving a proprietary interest 2 in the property at issue by
demonstrating that the local congregation violated either “the
express language of the deeds or a contractual obligation to the
general church.” Norfolk Presbytery, 214 Va. at 507, 201 S.E.2d
at 758. In resolving church property disputes, we have
2
A proprietary right or interest “is a right customarily
associated with ownership, title, and possession. It is an
interest or a right of one who exercises dominion over a thing
or property, of one who manages and controls.” Green, 221 Va.
at 555, 272 S.E.2d at 186.
11
heretofore specifically limited our consideration to certain
aspects of property and contract law. This limitation was
necessitated only by the fact that, in Virginia, hierarchical
churches were prohibited from relying on denominational trusts,
whether express or implied. See Green, 221 Va. at 555, 272
S.E.2d at 185; Norfolk Presbytery, 214 Va. at 507, 201 S.E.2d at
758.
However, in their assignment of cross-error, TEC and the
Diocese argue that the plain language of Code § 57-7.1
demonstrates that the General Assembly has repudiated Virginia’s
historical disdain for denominational trusts. 3 We will first
address whether the trial court erred by holding that “[Code §]
57-7.1 did not change the policy in Virginia, which is that
church property may be held by trustees for the local
congregation, not for the general church.”
A. CODE § 57-7.1
We have long recognized that, for the most part, express
and implied trusts for hierarchical churches “are invalid under
Virginia law.” Norfolk Presbytery, 214 Va. at 507, 201 S.E.2d
3We recognize that, due to the posture of Truro Church, we
were not required to consider TEC’s and the Diocese’s arguments
regarding Code § 57-7.1. On remand, we specifically instructed
the trial court to “resolve this dispute under principles of
real property and contract law,” Truro Church, 280 Va. at 29,
694 S.E.2d at 567, which it properly did. However, now the
issue of the applicability of the Code § 57-7.1 is squarely
before us and therefore we will address it.
12
at 754. However, this limitation on denominational trusts is a
creature of statutory law and, therefore, it is within the power
of the General Assembly to narrow or even eliminate the
limitation, should it so choose. See Trustees of Asbury United
Methodist Church v. Taylor & Parrish, Inc., 249 Va. 144, 152,
452 S.E.2d 847, 851 (1995) (“acquisition and ownership of
property by churches are matters governed by statute.”) (citing
Article IV, § 14 of the Constitution of Virginia). 4
In reviewing Code § 57-7.1, we are guided by well-
established principles of statutory construction. “When the
language of a statute is clear and unambiguous, we are bound by
the plain meaning of that language.” Industrial Dev. Auth. v.
Board of Supervisors, 263 Va. 349, 353, 559 S.E.2d 621, 623
(2002). Furthermore, “[i]n interpreting a statute, we presume
that the General Assembly acted with full knowledge of the law
4
In 1995, the last paragraph of Article IV, § 14 of the
Constitution of Virginia stated: “The General Assembly shall not
grant a charter of incorporation to any church or religious
denomination, but may secure the title to church property to an
extent to be limited by law.” (Emphasis added.) This paragraph
was removed by an amendment proposed and agreed to by the
General Assembly at the 2005 Regular Session (2005 Acts ch. 950)
and the 2006 Regular Session (2006 Acts chs. 68, 945), and
ratified by the people at the general election held November 7,
2006. Code §§ 57-7.1 through -17 demonstrate that, although the
language referring to the method of securing church property has
been removed, the General Assembly still intended for matters
involving the acquisition and ownership of church property to be
governed by statute.
13
in the area in which it dealt.” Philip Morris USA Inc. v.
Chesapeake Bay Found., Inc., 273 Va. 564, 576, 643 S.E.2d 219,
225 (2007). Finally, “statutory construction is a question of
law which we review de novo.” Smit v. Shippers’ Choice of Va.,
Inc., 277 Va. 593, 597, 674 S.E.2d 842, 844 (2009).
Former Code § 57-7 5 specifically validated conveyances,
devises and dedications of land “for the use or benefit of any
5
Former Code § 57-7 stated, in relevant part:
Every conveyance, devise, or dedication
shall be valid which . . . has been made,
and every conveyance shall be valid which
hereafter shall be made of land for the use
or benefit of any religious congregation as
a place for public worship, or as a burial
place, or a residence for a minister, or for
the use or benefit of any church diocese,
church, or religious society, as a residence
for a bishop or other minister or clergyman
who, though not in special charge of a
congregation, is yet an officer of such
church diocese, church or religious society,
and employed under its authority and about
its business; and every conveyance shall be
valid which may hereafter be made, or has
heretofore been made, of land as a location
for a parish house or house for the meeting
of societies or committees of the church or
others for the transaction of business
connected with the church or of land as a
place of residence for the sexton of a
church, provided such land lies adjacent to
or near by the lot or land on which is
situated the church to which it is designed
to be appurtenant; or for use in furtherance
of the affairs of any church diocese, and
the land shall be held for such uses or
benefit and for such purposes, and not
otherwise.
14
religious congregation.” (Emphasis added.) In this context,
this Court has previously explained that the phrase “religious
congregation” was limited, meaning “the local congregation
rather than a larger hierarchical body.” Norfolk Presbytery,
214 Va. at 506, 201 S.E.2d at 757.
However, in 1993, the General Assembly repealed Code § 57-7
and enacted Code § 57-7.1. 6 See 1993 Acts ch. 370. Unlike Code
§ 57-7, Code § 57-7.1 validates conveyances and transfers of
both real and personal property “which [are] made to or for the
benefit of any church, church diocese, religious congregation or
religious society.” (Emphasis added.) The General Assembly’s
inclusion of the phrase “church diocese” in Code § 57-7.1
clearly demonstrates its intention to broaden the scope of
denominational trusts to include all real and personal property
that is conveyed or transferred to or for the benefit of a
hierarchical church. Indeed, we previously recognized that
similar language in another portion of former Code § 57-7
“broadened the scope of [denominational] trusts to include
property conveyed or devised for the use or benefit of a church
6
Code § 57-7.1 states, in relevant part:
Every conveyance or transfer of real or
personal property, whether inter vivos or by
will, which is made to or for the benefit of
any church, church diocese, religious
congregation or religious society, whether
by purchase or gift, shall be valid.
15
diocese for certain residential purposes.” Norfolk Presbytery,
214 Va. at 506, 201 S.E.2d at 757-58. Thus, notwithstanding
Virginia’s long history of invalidating trusts for hierarchical
churches, the General Assembly has expressly allowed such trusts
with the passage of Code § 57-7.1. Accordingly, we agree with
TEC and the Diocese and hold that the trial court erred in its
application of Code § 57-7.1.
B. EXISTENCE OF A TRUST
Having determined that the property could be subject to a
denominational trust, we now examine what effect, if any, Code
§ 57-7.1 has on the present case. TEC and the Diocese contend
that canon I.7.4 of TEC’s canons (the “Dennis Canon”) 7 created an
express trust in “[a]ll real and personal property held by or
for the benefit of any Parish, Mission or Congregation.” The
Dennis Canon was enacted by TEC’s General Convention in 1979.
It was reportedly passed in direct response to the Supreme
7
The Dennis Canon states:
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.
16
Court’s recognition that “the constitution of the general church
can be made to recite an express trust in favor of the
denominational church.” Jones, 443 U.S. at 606.
We have previously explained that, “unless the language
shows a contrary intent, the language of an inter vivos trust
should be construed according to the law in effect at the time
the trust is executed.” McGehee v. Edwards, 268 Va. 15, 20, 597
S.E.2d 99, 102 (2004) (emphasis added); see also Yancey v.
Scales, 244 Va. 300, 303, 421 S.E.2d 195, 196 (1992); Wildberger
v. Cheek, 94 Va. 517, 520, 27 S.E. 441, 442 (1897). In 1979,
when the Dennis Canon was enacted, former Code § 57-7 was the
law in effect. Thus, any express trusts purportedly created by
the Dennis Canon were ineffective in Virginia.
Our analysis does not end here, however. Our holding in
McGehee was clearly limited to express trusts. Therefore, we
next examine whether the property was subject to an implied
trust. Virginia has recognized two forms of implied trusts:
resulting and constructive. See Leonard v. Counts, 221 Va. 582,
588, 272 S.E.2d 190, 194 (1980) (“Resulting and constructive
trusts comprise two categories of trusts by operation of law
arising without any express declaration of trust.”). A
resulting trust “arises when prior to the purchase one person
binds himself to pay purchase money and stands behind his
commitment, but title is conveyed to another.” Id. at 588, 272
17
S.E.2d at 195. It is readily apparent that the record in the
present case does not support the existence of a resulting
trust.
Constructive trusts, on the other hand, are trusts “which
the law creates, independently of the intention of the parties,
to prevent fraud or injustice.” Id.
Certain species of constructive trusts arise
from actual fraud; many others spring from
the violation of some positive fiduciary
obligation; in all the remaining instances
there is, latent perhaps, but none the less
real, the necessary element of that
unconscientious conduct which equity calls
constructive fraud.
Porter v. Shaffer, 147 Va. 921, 929, 133 S.E. 614, 616 (1926)
(citation and internal quotation marks omitted) (emphasis in
original); see also Leonard, 221 Va. at 590, 272 S.E.2d at 196
(“‘[N]ot . . . all constructive trusts are based on “fraud”,
unless that word is used in its broadest sense to include all
conduct which equity treats as unfair, unconscionable and
unjust’”) (quoting George G. Bogert, The Law of Trusts and
Trustees § 471, at 22-23 (2d ed. rev. 1978)).
Moreover,
[i]t is well settled that where one person
sustains a fiduciary relation to another he
cannot acquire an interest in the subject
matter of the relationship adverse to such
other party. If he does so equity will
regard him as a constructive trustee and
compel him to convey to his associate a
proper interest in the property or to
18
account to him for the profits derived
therefrom.
Horne v. Holley, 167 Va. 234, 240, 188 S.E. 169, 172 (1936).
Notably, constructive trusts “will not arise until
explicitly created by a court.” David A. Thomas, 3 Thompson on
Real Property § 27.04(g)(1)(i) (David A. Thomas, ed., 2d ed.
2001 & Supp. 2012). A “court’s action creating a constructive
trust will relate back to the time when the property began to be
wrongfully held.” Id. As previously discussed, Code § 57-7.1
has been in effect since 1993, therefore it was the applicable
law at all times the property in the present case is alleged to
have been wrongfully held.
Thus, the existence of a constructive trust in the present
case turns on the nature of the relationship between the
parties. To determine the nature of the relationship between a
local congregation and a hierarchical church, we look to the
articles of religious governance 8 of the hierarchical church as
8
We recognize that, in previous church property disputes,
we have only referenced the “constitution of the general
church.” See Green, 221 Va. at 555, 272 S.E.2d at 185-86;
Norfolk Presbytery, 214 Va. at 507, 201 S.E.2d at 758. We note
that limiting our examination to only the constitution of the
general church is demonstrably unmanageable, given that each
religion differs in its chosen form of religious governance.
Therefore, we interpret our previous references broadly to
include any articles of religious governance employed by the
general church. Cf., Jones, 443 U.S. at 604 (“The neutral-
principles method . . . requires a civil court to examine
certain religious documents, such as a church constitution”)
(emphasis added).
19
well as the course of dealing between the local congregation and
the hierarchical church.
1. ARTICLES OF RELIGIOUS GOVERNANCE
In the present case, we need look no further than the
Dennis Canon to find sufficient evidence of the necessary
fiduciary relationship. As a number of courts in other states
have noted, the Dennis Canon “merely codified in explicit terms
a trust relationship that has been implicit in the relationship
between local parishes and dioceses since the founding of [TEC]
in 1789.” Rector, Wardens & Vestrymen of Trinity-St. Michael’s
Parish, Inc. v. Episcopal Church, 620 A.2d 1280, 1292 (Conn.
1993); see also Episcopal Diocese of Mass. v. DeVine, 797 N.E.2d
916, 924 n. 21 (Mass. App. Ct. 2003) (“the Dennis Canon merely
confirmed the preexisting relationship between [TEC], its
subordinate dioceses, and the parishes thereunder.”); Trustees
of the Diocese of Albany v. Trinity Episcopal Church, 684
N.Y.S.2d 76, 81 (N.Y. App. Div. 1999) (“the ‘Dennis Canon’
amendment expressly codifies a trust relationship which has
implicitly existed between the local parishes and their dioceses
throughout the history of the Protestant Episcopal Church.”);
Bishop & Diocese of Colorado v. Mote, 716 P.2d 85, 105 n. 15
(Colo. 1986) (“the [Dennis Canon] did nothing but confirm the
relationships existing among [TEC], the diocese and the
20
parish”); Protestant Episcopal Church in the Diocese of New
Jersey v. Graves, 417 A.2d 19, 24 (N.J. 1980) (“[The Dennis
Canon] reflects established customs, practices and usages of The
Protestant Episcopal Church.”).
The Falls Church has argued in this case that it was not
bound by the canons, including the Dennis Canon, as there is no
evidence of mutual assent by The Falls Church with regard to TEC
and the Diocese having any rights to the property. As this
argument relates to the nature of the relationship between the
parties, we will address it here.
We begin by observing that the relationship created by a
local church’s decision to join a hierarchical church is
analogous to a contractual relationship. See, e.g., Norfolk
Presbytery, 214 Va. at 507, 201 S.E.2d at 758 (recognizing that
courts are not “powerless to prevent a hierarchical church from
being deprived of contractual rights in church property held by
trustees of a local congregation”). 9 Therefore, to determine the
issue of mutual assent, we look exclusively to the “expressions
9
We note that, although the relationship between a
hierarchical church and a local church is analogous to a
contractual relationship, we have never held, nor do we now
hold, that all of the traditional concepts of contract law apply
in the context of church property cases. By virtue of their
relationship, the local church is clearly not an entirely
independent entity. Indeed, the local church derives its
identity from its relationship with the hierarchical church.
Clearly, then, the parties are not negotiating at arm’s length.
As such, while some concepts of contract law apply to church
property cases, others do not.
21
of [the parties’] intentions which are communicated between
them.” Lucy v. Zehmer, 196 Va. 493, 503, 84 S.E.2d 516, 522
(1954) (internal quotation marks omitted). Here, the record
clearly establishes that The Falls Church has affirmatively
assented to the constitution and canons. Upon joining TEC and
the Diocese in 1836, The Falls Church agreed to “be benefited
and bound . . . by every rule and canon which shall be framed,
by any Convention acting under this constitution, for the
government of this church in ecclesiastical concerns.”
Moreover, The Falls Church’s Vestry Manual states “The Falls
Church is subject to the constitution and canons of the national
church ([TEC]) and of the Diocese.” (Emphasis added.) Thus,
contrary to its argument, it is clear that The Falls Church
agreed to be bound by the constitutions and canons of both TEC
and the Diocese.
Similarly, The Falls Church’s argument that TEC and the
Diocese acted in a unilateral manner in passing certain canons
is without merit. The record demonstrates that the adoption of
the canons is hardly “unilateral.” The triennial General
Convention, the highest governing body of TEC, adopts TEC’s
constitution and canons. The General Convention is composed of
representatives from each diocese. The legislative body of each
diocese (referred to in Virginia as the “Annual Council”)
selects the representatives that are sent to the General
22
Convention. The Annual Council is composed of representatives
from each of the churches and other congregations within the
Diocese. Thus, it is clear that each canon, including the
Dennis Canon, is enacted through a process resembling a
representative form of government.
Moreover, even if the implementation of the canons were
unilateral, “religious freedom encompasses the ‘power [of
religious bodies] to decide for themselves, free from state
interference, matters of church government as well as those of
faith and doctrine.’” Serbian Eastern Orthodox Diocese v.
Milivojevich, 426 U.S. 696, 721-22 (1976) (quoting Kedroff v.
St. Nicholas Cathedral, 344 U.S. 94, 116 (1952)). Thus, even if
implementation of the Dennis Canon was unilateral, this Court
would be powerless to address any issues of inequity wrought
thereby, as to do so would involve judicial interference with
religion and clearly violate the First Amendment. 10
2. COURSE OF DEALING
10
The Falls Church’s assertion that Virginia law bars
voluntary associations from enacting rules that encumber or
forfeit member’s property is inapposite to the present case.
Notably, as previously stated, there was no “unilateral”
encumbrance or forfeiture of the property in the present case
analogous to the cases cited by The Falls Church. Furthermore,
the cases that The Falls Church relies upon deal with the
limited remedies available under the Condominium Act, Code § 55-
79.39, et seq., (Unit Owners Ass’n. v. Gillman, 223 Va. 752, 292
S.E.2d 378 (1982)) and the creation of private judicial
tribunals that purport to have the power of the sovereign (Davis
v. Mayo, 82 Va. 97 (1886)).
23
Turning to the course of dealing between the parties, the
record clearly demonstrates that The Falls Church allowed the
Diocese to play an active role in its overall operations.
Indeed, the trial court found that on at least two occasions,
the Diocese vetoed the employment of clergy at The Falls Church
and The Falls Church complied with the decision; Bishops of the
Diocese and other Bishops within TEC have visited The Falls
Church every year between 1934 and 2005; and the vestry members
of The Falls Church have regularly “subscribed to the oath or
declaration prescribed by Diocesan Canons.” It is worth noting
that The Falls Church actively participated in the Diocese,
having sent representatives to the Annual Convention every year
for at least 100 years (1909-2010).
In conclusion, neither TEC nor the Diocese can claim a
proprietary interest in the property by way of an express
denominational trust. However, when one considers the
constitution and canons, specifically the adoption of the Dennis
Canon, and the course of dealing between the parties, The Falls
Church, TEC and the Diocese intended, agreed and expected that
the property at issue would be held in trust by The Falls Church
as trustee for the benefit of TEC and the Diocese. As such, we
find that the fiduciary relationship required to impose a
constructive trust has been shown to exist. The fact that The
Falls Church attempted to withdraw from TEC and the Diocese and
24
yet still maintain the property represents a violation of its
fiduciary obligation to TEC and the Diocese. Therefore, equity
dictates that a constructive trust be imposed on the property
for the benefit of TEC and the Diocese.
III. PROPERTY AWARDS
In its remaining assignments of error, The Falls Church
asserts that, notwithstanding the method of determining the
ownership of the property, the trial court’s property award was
in error. These arguments are independent of the trial court’s
application of the neutral-principles analysis and our
constructive trust determination; therefore, we will address
them.
A. CONSTITUTIONALITY
In its second assignment or error, The Falls Church argues
that “[t]he trial court’s award of [The Falls Church’s] property
to [TEC and the Diocese] violates the Religion Clauses of the
U.S. and Virginia Constitutions by enabling denominations to
secure others’ property by means available to no other Virginia
entity.” The essence of The Falls Church’s argument is that the
method of resolving a property ownership dispute between a
hierarchical church and a local church is unconstitutional. In
light of the fact that the trial court’s analysis and the
existence of denominational trusts rely on the application of
neutral principles of law, which has been specifically upheld by
25
the United States Supreme Court in Jones, 443 U.S. at 602-03, we
must disagree with The Falls Church. So long as the dispute was
resolved in a wholly secular manner through the use of neutral
principles of law, as it was in the present case, we cannot say
that the trial court committed constitutional error.
B. PROPERTY ACQUIRED BEFORE 1904
The Falls Church next takes issue with the trial court’s
finding that the Diocese and TEC “had proprietary interests in
[The Falls Church’s] real property acquired before 1904, when
the legislature first referenced denominational approval of
church property transfers.” Specifically, The Falls Church
argues that the trial court erred by “retroactively applying
laws and canons not in force when [The Falls Church] acquired
its initial property or when it joined the denomination.” The
Falls Church claims that the trial court ruled that the 1904
amendment to Code § 57-15 retroactively validated the consent
canons, which were enacted in 1870 when TEC and the Diocese were
incapable of holding any property. Thus, according to The Falls
Church, it is only bound by the laws and canons in effect at the
time it joined TEC and the Diocese.
In light of our above ruling, we no longer need to consider
this issue, as this case is governed by Code § 57-7.1, not Code
§ 57-15. Assuming Code § 57-15 were applicable, however, we
note that contrary to The Falls Church’s argument, the trial
26
court did not hold that Code § 57-15 retroactively validated the
consent canons. Rather, the trial court merely restated our
holding in Norfolk Presbytery as to what must be determined
before Code § 57-15 applies. Thus, nothing in the trial court’s
application of Code § 57-15 was retroactive.
Furthermore, The Falls Church’s interpretation of Code
§ 57-15 ignores the plain language of The Diocesan Constitution
in effect when The Falls Church joined the Diocese, which
provided that The Falls Church agreed to be “benefited and
bound . . . by every rule and canon which shall be framed.”
(Emphasis added.) Under The Falls Church’s interpretation, it
would only be bound by those rules and canons which “have been
framed.” 11 (Emphasis added.) Accordingly, we find no error in
the trial court’s application of Code § 57-15.
C. UNCONSECRATED PROPERTY
The Falls Church next argues that the trial court erred in
deciding to award the Diocese and TEC the unconsecrated property
held by The Falls Church. According to The Falls Church, it was
incorrect for the trial court to rely upon TEC’s canons to
determine ownership of unconsecrated real property. The Falls
Church contends that the canons only apply to consecrated
11
We further note that The Falls Church’s application of
Code § 57-15 would result in an unmanageable patchwork of laws
and canons that would be different for each congregation and,
potentially, each property.
27
property, therefore, it was improper for the trial court to
apply them to any unconsecrated property. However, The Falls
Church never raised this argument before the trial court and
therefore we will not consider it here. See Rule 5:25 (“No
ruling of the trial court . . . will be considered as a basis
for reversal unless an objection was stated with reasonable
certainty at the time of the ruling”).
D. PERSONAL PROPERTY
In its fifth assignment of error, The Falls Church argues
that
[t]he trial court erred in awarding [The
Falls Church’s] personal property to [TEC
and the Diocese] - even though [TEC and the
Diocese] never had any control over [The
Falls Church’s] funds or their use, and [The
Falls Church’s] donors, for religious
reasons, gave on the express condition that
their gifts not be forwarded to [TEC and the
Diocese]- in violation of Va. Code § 57-1
and the Religion Clauses of the U.S. and
Virginia Constitutions.
The Falls Church asserts that the trial court failed to require
TEC to prove an interest in the personal property of The Falls
Church. The Falls Church contends that the trial court ignored
the evidence that its use of its funds was discretionary, as
demonstrated by the fact that TEC had no enforcement system.
Thus, according to The Falls Church, TEC had no dominion over
the personal property of The Falls Church.
28
In making its ruling, the trial court relied exclusively on
Code § 57-10, which states, in relevant part:
When personal property shall be given or
acquired for the benefit of an
unincorporated church or religious body, to
be used for its religious purposes, the same
shall stand vested in the trustees having
the legal title to the land, to be held by
them as the land is held, and upon the same
trusts . . . .
(Emphasis added.)
In light of our above ruling recognizing the existence of a
constructive denominational trust, it is clear that any
contributions or donations or payments of membership dues made
to The Falls Church would also be held in trust for the benefit
of TEC and the Diocese. Indeed, the existence of such a trust
is further demonstrated when Code § 57-10 is considered in
conjunction with Code § 57-7.1, because Code § 57-7.1 explicitly
applies to “[e]very conveyance or transfer of real or personal
property.” (Emphasis added.) The fact that TEC and the Diocese
grant each congregation discretion as to how it distributes any
contributions or donations it receives does not change the fact
that such contributions and donations are held in trust for the
benefit of TEC and the Diocese.
The Falls Church further argues that the trial court failed
to properly consider the donative intent of the congregants.
The Falls Church relies on the fact that, starting in 2003, The
29
Falls Church’s vestry decided it would no longer give money to
TEC or the Diocese. The congregants were informed that they
could contribute directly to TEC and the Diocese if they wished.
According to The Falls Church, any contributions or donations
made to The Falls Church after 2003 must be viewed as
demonstrating the congregants’ donative intent to support only
The Falls Church and not TEC or the Diocese. The Diocese
counters that The Falls Church can only prove donative intent by
tracing the source of the donations and contributions to
specific donors/contributors.
Based on the record before us, we cannot determine the
donative intent of any individual member of the congregation,
much less the congregation as a whole. The Falls Church offered
no evidence, beyond the decision of the vestry, that provides
any support for a finding about the donative intent of the
congregants. It is further worth noting that, contrary to its
stated decision, the vestry continued to give money to the
Diocese, albeit for designated purposes as opposed to the
Diocese’s general operating budget. While we make no decision
as to what level of evidence would sufficiently demonstrate the
donative intent of the congregation as a whole, we hold that
evidence merely documenting the policy of the vestry is
insufficient. Indeed, the decision of the vestry only
30
establishes that it was exercising the discretion granted to it
by TEC and the Diocese.
E. RELIEF SOUGHT
In its final assignment of error, The Falls Church asserts
that “[t]he trial court erred in awarding [TEC and the Diocese]
more relief than sought, including funds given after [The Falls
Church] disaffiliated and funds spent on maintenance, which [TEC
and the Diocese] stipulated [The Falls Church] should keep.”
According to The Falls Church, the Diocese and TEC only sought
the real and personal property The Falls Church acquired prior
to disaffiliation. The trial court, however, ordered The Falls
Church to turn over funds it acquired after it had disaffiliated
from TEC and the Diocese.
In its letter opinion, the trial court identified four
points in time which it considered as the potential demarcation
point at which The Falls Church became an entirely separate
entity from the Diocese and TEC: (1) when The Falls Church began
withholding contributions to the Diocese; (2) when The Falls
Church voted to disaffiliate; (3) when the Diocese declared that
the property was abandoned; or (4) when the Diocese filed its
declaratory judgment action. Ultimately, the trial court
determined that the date that the Diocese filed its declaratory
judgment action against The Falls Church was the proper
demarcation point, explaining that “[a]fter this date, no
31
contribution made, no donation made, no dues paid by a
congregant, could reasonably have been made with the
understanding that the money was going to [an] Episcopal
congregation[].” This was error on the part of the trial court.
As we have previously indicated, The Falls Church’s
decision to withhold donations and contributions to the Diocese
and TEC was clearly within The Falls Church’s discretion and,
ultimately, had no bearing on The Falls Church’s standing as an
Episcopal Church. Similarly, the filing of the declaratory
judgment action had no bearing on The Falls Church’s standing as
an Episcopal Church, as both parties had already taken
affirmative steps that clearly indicated that The Falls Church
was not an Episcopal Church: The Falls Church had voted to
disaffiliate and the Diocese had declared that the CANA
congregations had “severed ties with the Episcopal Church and
the Diocese of Virginia.”
Thus, the proper demarcation point is either when The Falls
Church voted to disaffiliate or when the Diocese declared that
the property was abandoned. The trial court, in its letter
opinion, correctly explained that once a congregation votes to
disaffiliate from a hierarchical church, that congregation no
longer has any rights or interest in any property owned by the
32
general church. 12 A necessary corollary is that once a
congregation votes to disaffiliate from a hierarchical church,
the hierarchical church no longer has any rights or interest in
any property subsequently acquired by the congregation. 13
Furthermore, as the trial court noted, the vote to
disaffiliate necessarily renders the Diocese’s abandonment
declaration a nullity, as the declaration:
did not “extinguish” the CANA Congregations’
“interest” in the seven church properties,
12
However, in its decision to eliminate this as the
demarcation point, the trial court explained that:
it is not the act of taking a vote, or even
the filing of a petition, that renders a
decision to affiliate with a different
denomination final and conclusive – rather
it is the Court’s approval of the petition.
That did not come until January 8, 2009, and
in any event was reversed by the Virginia
Supreme Court.
(Emphasis in original.)
This ruling expressly contradicts the trial court’s earlier
statement that the act of disaffiliation eliminated The Falls
Church’s interest in the property. Additionally, nothing in our
jurisprudence supports the notion that a congregation must
receive court approval to disaffiliate. Indeed, such a
requirement would clearly amount to unconstitutional judicial
interference.
13
During the trial on the CANA Congregations’ Code § 57-9
petitions and after both the Diocese and TEC had filed their
declaratory judgment actions, counsel for TEC conceded that “the
money that [the CANA Congregations have] received due to
contributions since the time that they disaffiliated, and
whatever purchases that they have made with that, the Episcopal
Church and the Diocese haven’t made a claim on that property.”
33
for the CANA Congregations are not in
authorized possession of Episcopal church
property and, therefore, have no “interest”
in the properties capable of being
extinguished.
(Emphasis in original.)
Therefore, we agree that the trial court awarded more
relief than TEC and the Diocese sought. Accordingly, we will
remand this issue to the trial court to reconsider its award
using the date The Falls Church voted to disaffiliate as the
proper demarcation point.
IV. CONCLUSION
For the foregoing reasons we will reverse the judgment of
the trial court with regard to its analysis of Code § 57-7.1 and
find that TEC and the Diocese have proven that they have a
proprietary interest and impose a constructive denominational
trust in the properties. However, as the imposition of a
constructive denominational trust still requires the conveyance
of the property, we will affirm the trial court’s order
requiring that The Falls Church convey the property to TEC and
the Diocese. With regard to the disposition of personal
property acquired by The Falls Church after the vote to
disaffiliate, we will reverse the judgment of the trial court
and remand for further proceedings consistent with this opinion.
We will affirm the remainder of the trial court’s judgment.
Affirmed in part,
34
reversed in part,
and remanded.
JUSTICE McCLANAHAN, concurring.
I agree with the majority as to its disposition of the
property awards in section III. I write separately as to the
majority's neutral-principles analysis in section II, however,
because I believe TEC and the Diocese acquired their interest in
the disputed church property, not merely by a constructive
trust, but rather by an express trust pursuant to the Dennis
Canon, as TEC and the Diocese have consistently argued
throughout this case. 1
After holding that Virginia now allows trusts for
hierarchical churches under Code § 57-7.1 (the successor to Code
§ 57-7), the majority states that "[i]n 1979, when the Dennis
Canon was enacted, former Code § 57-7 was the law in effect.
Thus, any express trusts purportedly created by the Dennis Canon
were ineffective in Virginia." That statement necessarily
assumes that former Code § 57-7 was constitutional as applied to
1
Indeed, given the position of TEC and the Diocese on this
issue both below and on appeal, I do not believe the question of
whether the property is held by The Falls Church for TEC's and
the Diocese's benefit through a constructive trust is before
this Court. See Rule 5:17(c); Commonwealth v. Brown, 279 Va.
235, 239-42, 687 S.E.2d 742, 743-45 (2010); Clifford v.
Commonwealth, 274 Va. 23, 25-26, 645 S.E.2d 295, 297 (2007);
Richardson v. Moore, 217 Va. 422, 423 n*, 229 S.E.2d 864, 865
n.* (1976).
35
the Dennis Canon. In my opinion, that assumption is incorrect.
Under First Amendment law, the prohibition of the enforcement of
an express trust under former Code § 57-7, such as that created
by the Dennis Canon between TEC, the Diocese, and The Falls
Church, was unconstitutional. Legislative recognition of the
same no doubt resulted in the passage of Code § 57-7.1. As
Professor A. E. Dick Howard aptly states in his amicus brief in
reference to the repeal of former Code § 57-7: "[t]he General
Assembly has acted to sweep away that anachronistic and
unconstitutional provision. In enacting Section 57-7.1, the
legislature has done what needed to be done."
Just because former Code § 57-7 was repealed in 1993 (and
replaced with a constitutional provision) does not mean that the
former statute was thereby rendered immune from future
constitutional scrutiny, or that its constitutionality is moot.
Given the potential dispositive impact of former Code § 57-7 on
the issue of whether the disputed church property is being held
in an express trust for the benefit of TEC and the Diocese
pursuant to the Dennis Canon, as these parties assert, the
statute's validity and effect is very much a live issue now
before this Court. See Wessely Energy Corp. v. Jennings, 736
S.W.2d 624, 625-28 (Tex. 1987) (In an action instituted in 1981,
the Texas Supreme Court held that a coverture statute on title
to real property repealed in 1963 was unconstitutional in 1954
36
when the subject deeds were executed, as the statute violated
both the United States and Texas Constitutions); Dunn v. Pate,
431 S.E.2d 178, 179-83 (N.C. 1993) (In an action instituted in
1989, the North Carolina Supreme Court held that private
examination statutes repealed in 1977 were unconstitutional in
1962 when the subject deed was executed, as the statutes
violated both the United States and North Carolina
Constitutions).
The manifest problem with former Code § 57-7, 2 as construed
and applied to hierarchical churches, was that it treated those
churches differently than local congregational churches 3 by
allowing only the latter to hold property in trust in Virginia. 4
2
Former Code § 57-7 provided, in relevant part, that
"[e]very conveyance, devise, or dedication [of land] shall be
valid [when done] for the use or benefit of any religious
congregation."
3
In this context, the term "local congregational church" is
used in reference to an "autonomous congregation" at the local
level not affiliated with a hierarchical church such as
Episcopal and Presbyterian churches, which are "subject to
control by super-congregational bodies." Protestant Episcopal
Church v. Truro Church, 280 Va. 6, 13-14 n.4, 694 S.E.2d 555,
558 n.4 (2010) (citation and internal quotation marks omitted);
see Norfolk Presbytery v. Bollinger, 214 Va. 500, 506-07, 201
S.E.2d 752, 757-58 (1974); Brooke v. Shacklett, 54 Va. (13
Gratt.) 301, 313 (1856).
4
The only exception to this statutory exclusion on
hierarchical churches was implemented by the 1962 amendment to
former Code § 57-7, 1962 Acts ch. 516, which "broadened the
scope of religious trusts to include property conveyed or
devised for the use or benefit of a church diocese for certain
residential purposes. The General Assembly [did] not go[] beyond
37
This was accomplished by use of Virginia's long-accepted but
ultimately unconstitutional construction of the term "religious
congregation" in former Code § 57-7 to mean only a local
congregational church. Virginia's historic animus toward the
accumulation of wealth by churches generally, and hierarchical
churches in particular, was the origin of that disparate
statutory treatment. See Norfolk Presbytery v. Bollinger, 214
Va. 500, 505-07, 201 S.E.2d 752, 757-58 (1974); Gallego v.
Attorney General, 30 Va. (3 Leigh) 450, 477 (1832).
Such application of former Code § 57-7 violated the
Establishment Clause of the First Amendment in conferring a
religious preference to local congregational churches. As a
fundamental limitation of the Establishment Clause, neither a
state nor the Federal Government "can pass laws which . . .
prefer one religion over another." Everson v. Board of
Education, 330 U.S. 1, 15 (1947). Since Everson, the United
States Supreme Court "has adhered to th[is] principle, clearly
manifested in the history and logic of the Establishment
Clause." Larson v. Valente, 456 U.S. 228, 246-55 (1982); see,
e.g., id. at 246 (a state statute imposing registration and
reporting requirements only on those religious organizations
this, however, to validate trusts for a general hierarchical
church . . . ." Norfolk Presbytery, 214 Va. at 506-507, 201
S.E.2d at 757-58 (citing Hoskinson v. Pusey, 73 Va. (32 Gratt.)
428, 431 (1879); Brooke, 54 Va. (13 Gratt) at 312-13)).
38
that solicited more than fifty percent of their funds from
nonmembers worked a "denominational preference" in violation of
the First Amendment); Fowler v. Rhode Island, 345 U.S. 67, 69-70
(1953) (holding that a municipal ordinance violated the First
Amendment when applied to prohibit preaching in a public park by
a Jehovah's Witness but to permit preaching during the course of
a Catholic mass or Protestant church service). The Supreme Court
has called this constitutionally mandated neutral treatment of
religions "[t]he clearest command of the Establishment Clause."
Larson, 456 U.S. at 244.
This command for government neutrality among religious
groups or denominations was thus well established in the law
when the United States Supreme Court decided Jones v. Wolf, 443
U.S. 595 (1979). In Jones, the Court addressed the question of
how, consistent with the First Amendment, a state court may
resolve a dispute between a hierarchical church and one of its
local church affiliates over the ownership of church property.
Id. at 597. In doing so, the Court directed that "[a]t any time
before the dispute erupts" the parties could "ensure" a
resolution of the matter by, inter alia, making the
denomination's governing documents "recite an express trust in
favor of the denominational church." Id. at 606. "[C]ivil
courts will [then] be bound to give effect" to such provisions.
Id.
39
Relying on Jones, TEC enacted the Dennis Canon at its 1979
General Convention (just months after Jones was decided). With
this canon, TEC created an express trust for the benefit of it
and its Dioceses as to all the property then being held by or
for the benefit of its local parishes, missions and
congregations, specifically providing, in relevant part: "All
real and personal property held by or for the benefit of any
Parish, Mission or Congregation is held in trust for [TEC] and
the Diocese thereof in which such Parish, Mission or
Congregation is located."
Based on TEC's enactment of the Dennis Canon pursuant to
the directive in Jones along with the neutrality rule dictated
under the First Amendment, the express trust created by the
Dennis Canon could not be invalidated under Virginia law by
former Code § 57-7. Moreover, this Court is "bound to give
effect" to this express trust under Jones. Id. at 606.
I would therefore hold that former Code § 57-7 was
unconstitutional in its application to the Dennis Canon trust.
That is to say the statute, as I read it, was not
unconstitutional on its face. Rather, it was unconstitutional
because of the historically restrictive construction and
application given to the statutory term "religious congregation"
so as to favor local "congregational churches" and disfavor
"super congregational churches" like TEC and the Diocese. See
40
Volkswagen of Am., Inc. v. Smit, 279 Va. 327, 336, 689 S.E.2d
679, 684 (2010) ("Because our jurisprudence favors upholding the
constitutionality of properly enacted laws, we have recognized
that it is possible for a statute . . . to be facially valid,
and yet unconstitutional as applied in a particular case.").
Accordingly, the statute's prior application to other
circumstances would remain unaffected by holding it
unconstitutional as applied to trusts benefiting hierarchical
churches. See Women's Med. Prof’l Corp. v. Voinovich, 130 F.3d
187, 193 (6th Cir. 1997) (explaining that "[i]f a statute is
unconstitutional as applied, the State may continue to enforce
the statute in different circumstances where it is not
unconstitutional").
Having reached these conclusions, I would join the other
courts that have determined that the Dennis Canon established an
express trust for the benefit of TEC and its Dioceses in their
respective states in the context of the nationwide church
property dispute between TEC, its Dioceses and local Episcopal
congregations. See Protestant Episcopal Church in the Diocese
of Tennessee v. St. Andrew's Parish, 2012 Tenn. App. LEXIS 274,
at *35-41 (Tenn. Ct. App. 2012); Episcopal Church in the Diocese
of Conn. v. Gauss, 28 A.3d 302, 318-28 (Conn. 2011); Episcopal
Church Cases, 198 P.3d 66, 82 (Cal. 2009); Episcopal Diocese of
Rochester v. Harnish, 899 N.E.2d 920, 922-25 (N.Y. 2008); In re
41
Church of St. James the Less, 888 A.2d 795, 807-10 (Pa. 2005);
Episcopal Diocese v. DeVine, 797 N.E.2d 916, 923-24 (Mass.
2003).
For these reasons, I concur.
42