Board of Church Extension v. Eads

Flowers, Justice,

dissenting:

I respectfully dissent to the holding of the majority in this case. Having carefully examined the majority writer’s footnotes and the opinion attached thereto, I find my objections to be rather comprehensive, going to both the substance and form of the opinion.

*962 In matters of substance, the majority has reversed a trial court without any conclusion that its factual findings were clearly wrong, has impermissibly and unconstitutionally muddled the law as to the rights of churches, and has incredibly reached a decision on the merits of the case and then concluded that the litigant was disqualified from bringing the suit in the first place.

As to form, the opinion deals casually with important and controlling precedent, overruling at least part of the leading West Virginia authority deep within a lengthy footnote, and disposes of points of error in the same fashion. Further, in citing the West Virginia Code, the year “1965” is inserted after numerals indicating a code section. The West Virginia Code of 1931, as amended, is the official codification of the statutes of this State, and a “1965” code will not be found by even the most diligent researcher.

More serious and significant than the differences as to form are the deficiencies in the substance of the majority opinion.

First, the majority has reversed the factual findings of the trial court without a precedent determination that they are clearly wrong. Rule 52 of the West Virginia Rules of Civil Procedure; Lewis v. Dils Motor Co., 148 W. Va. 515 , 135 S.E.2d 597 (1964). This Court has consistently accorded a lower court special respect due to its unique position in having seen and heard the witnesses. State Farm Mutual Automobile Ins. Co. v. American Casualty Co., 150 W. Va. 435 , 146 S.E.2d 842 (1966).

The findings of fact and conclusions of law made by the patient and able trial judge are correct. It is error for this Court to dismiss such findings simply because an examination of the record will support an alternate conclusion.

Next, the majority concludes that the Church of God is not a hierarchical church, therefore, it is not entitled to the freedom to direct its own affairs which it would *963 otherwise enjoy. This is contrary to the plain import of Brady v. Reiner, 157 W. Va. 10 , 198 S.E.2d 812 (1973), and is an impermissible and unconstitutional excursion by the judicial branch of the State into affairs properly belonging to the church.

“* * * 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.’ Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 .” Syllabus Point 2, Serbian Eastern Orthodox Diocese v. Milivojevich, 44 U.S.L.W. 4927 , 4928 (U.S. June 21, 1976). (emphasis added)

This is not the usual church property dispute. The question here is not “Who will get the property?”. We know who will get the property. The only factors which we do not know are when and how the plaintiff will gain title. The deed specifically names the plaintiff as the recipient of the property upon the occurrence of an event. That event, the cessation of “fellowship and doctrinal unity with the Church of God * * *” at Anderson, Indiana, has occurred. No one can very solemnly contend that it has not. The intention of the local congregation was uncontrovertably demonstrated when they sought to unilaterally relieve themselves of the reverter clause in the deed through a straw party transaction.

The majority does not very vigorously contest this. They say simply that since the Church of God is not an hierarchical church, we must use the “500 white doves” theory and require that body to operate in a way which this court understands and approves. We have no such authority. Both recent and historic precedent forbid our entry into such dictation to religious bodies.

“ * * [T]he [First] Amendment * * * commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine.’ Ibid. This principle applies with equal force to church disputes over church *964 polity and church administration.” Serbian Eastern Orthodox Diocese v. Milivojevich, supra at 4931. (emphasis added)

Here the Church of God established, to the satisfaction of the trial judge and at least a minority of this Court, that their own procedures call for all matters of church property to be handled by the Executive Council.

That procedure was followed and the plaintiff, Board of Church Extension, was instructed to bring this suit. The Executive Council operates as the business arm of the General Assembly. The General Assembly considers no resolutions or business matters but the majority of this Court would instruct them to change that. Though the Church of God authored the reverter clause used here and tailored it to their own way of administering church affairs, the majority has denied them the protection of our courts because they are held not to qualify as “hierarchical.”

“The form of church polity or government, the ecclesiastical law regarding property, the discipline, customs and usages of a church, written or not, are vital integral parts of doctrine, the interpretation of which is forbidden to the civil courts by the West Virginia and United States Constitutions.” Syllabus Point 6, Brady v. Reiner, 157 W. Va. 10 , 198 S.E.2d 812 (1973). (emphasis added)

Finally, the majority writer diffidently relies upon the disqualification of the plaintiff as a litigant to reinforce his conclusion on the merits. We are told that this element is “not necessary for the resolution of the dispute” but its adjudication will “provide guidance for future litigation ...” Such an adjudication, however, renders a decision on the merits superfluous persiflage. An appellate court should not decide questions immaterial to a proper disposition of the case. House v. Universal Crusher Corp., 115 Va. 558 , 79 S.E. 1049 (1913). See Muldoon v. Kepner, 141 W. Va. 577 , 91 S.E.2d 727 (1956); Smith v. City of Bluefield, 132 W. Va. 38 , 55 S.E.2d 392 (1948).

*965 Nevertheless, we are told that the plaintiff, Board of Church Extension, may not maintain this suit because it is a “church” and because it is a nonqualified foreign corporation.

The ingredients which make the Board of Church Extension a church in the eyes of the majority are that it “is directly responsible to the General Assembly of the Church of God” 1 , “has general responsibility in the area of home missions and work among American Indians and minority groups ... makes loans to congregations who are building ... takes conditional deeding of church property; and ... has responsibilities in the area of evangelism and building fund campaigns.”

The Board of Church Extension is no more a “church” than the PTA is a school. The Board is a supporting auxiliary organization which a more careful reading of Wilson v. Perry, 29 W. Va. 169 , 1 S.E. 302 (1886), will substantiate. If the Board of Church Extension went out of “business” — and I use the latter characterization without fear of blasphemy as suggested by the majority — no one in the Church of God would be without a place to worship. In the essentials of their church life, no member identified with the Church of God anywhere in the world, would be without a “church” for even one Sunday.

This Court at an early date will have to reconsider this definition or else exclude from our courts generally the charitable, educational and business activities that in corporate form are pursued by all the major religious denominations within our boundaries. The only fortunate thing about the conclusion of the majority on this point is that it renders dicta its earlier conclusions on the merits.

The majority licenses their attack upon the plaintiff corporation by adherence to Powell v. Dawson, 45 W. Va. *966 780 , 32 S.E. 214 (1899). If Powell is a correct statement of the law, it is clearly distinguishable. Stump v. Sturm, 254 F. 535 (4th Cir. 1919), is not an incorrect interpretation of West Virginia law by a federal court.

The majority afflicts the plaintiff with the further plague of not being qualified to do business in the State at the time when suit was brought. This is an easily cured defect /or one who has not already been disqualified as a “church” and is a “defect” which the statute has now removed from being a bar to judicial access in West Virginia. W. Va. Code, 31-1-49(b)(1), as amended. Under Section 49, the maintenance or defense of a legal action is not considered doing business in the State. Its enactpient was subsequent to the judgment rendered by the trial court but prior to our consideration and decision of this appeal. An appellate court should apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or constitute a departure from the mandates of statutory direction or legislative history. Bradley v. School Board, 416 U.S. 696 , 40 L.Ed.2d 476 , 94 S.Ct. 2006 (1974).

“ ... [I]f subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. ... [T]he Court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.” United State v. Schooner Peggy, 1 Cranch 103, 110 (1801).

Thus, there is no legal mandate to force the plaintiff’s obedience to the former law.

Like the thrashing wind from the ascendancy of his “500 white doves,” the majority writer has disrupted principles of church law which have been carefully moulded in that historic era between William III, King *967 of England (1702) and Rosetta King of Gilboa (1975) — an era to which the author pays scant attention. Rather than trusting that the “white dove” principle has become the guiding church law of West Virginia, I would commend continued reliance upon the thorough and well-reasoned opinion of former Chief Justice Haden in Brady v. Reiner, supra, and I would dedicate the majority opinion herein to the general animal species used to illustrate its rationale.

I am authorized to state that Chief Justice Berry joins in this dissenting opinion.

The Board, however, is apparently not sufficiently “responsible” to the General Assembly for the majority to conclude that an “hierarchy” exists.