Protestant Episcopal Church v. Barker

ROTH, P. J.

I dissent.

I accept the conclusion of my colleagues that the so-called implied trust theory, insofar as it is claimed to operate in instances involving disputes among church members over the control of church property, is unacceptable in that it requires courts to interject into the litigation their own notions respecting religious doctrine which attempted application of the theory places in issue.

I likewise am of the view that, in an appropriate case, resolution of such disputes might well be made on the basis of “neutral principles of law,” which, when applied to the particular facts present, require a given result.

What concerns me here and causes me to depart from the majority is the question when the neutral principles theory should be invoked.

In my view, and that of the majority, Jones v. Wolf, in its broadest sense, stands for no more than the proposition that that theory, to the extent it does not itself in operation infringe constitutional principles, is one of several alternatives acceptable for the purpose. But whether it is the alternative best suited for application to a given case seems to me quite another matter.

Here, based upon the conclusion that the declarations respecting the relationship between PECUSA, the Diocese and the local churches as *627 set out in the various articles of at least three of the latter “are a far cry from any express trust in church property” for the benefit of the former, the majority, in effect, looks to the fact record title is held in the names of the appellants and, for the three referred to, grants judgment in their favor accordingly, even though the fact is alluded to that such record title may have been for administrative convenience only.

This determination, presumably, would not be subject to constitution- , al attack and is, then, in that sense, not objectionable.

What is curious to me, however, is that under Jones v. Wolf-—that is to say, insofar as constitutional integrity is concerned—the hierarchical approach would also be acceptable, but in the instant matter would require a diametrically opposite result, i.e., the result reached in the trial court.

Because that is the case, it seems to me essential both to appropriately justify the method used as well as to suggest reasons for rejecting the alternative mode of disposition.

The majority here accomplish the latter seemingly by virtue of the fact that the State of Georgia has availed itself of the neutral principles theory and upon the assertion Presbytery of Riverside v. Community Church of Palm Springs “places California law squarely in the neutral-principles camp.” Without commenting on the persuasiveness of the first of these, it seems to me the second, if not inaccurate, is at least an overstatement.

Justification for use of the neutral principles approach is claimed additionally, because it is the most practicable method of resolving church property disputes. As I have indicated, whether that is so or not should depend on the circumstances.

The findings of fact of the trial court are supported with detailed and undisputed evidence with respect to every step of the long coexistence between the four parishes and respondents. Their relationship literally oozes the clear intention and ambition of each of the four parishes to severally achieve acceptance as a parish within the embrace of PECUSA with full knowledge that such acceptance meant the subordination of each to the constitution and canons of PECUSA and the transfer of the property of each to the Diocese of Los Angeles upon *628 dissolution or other means of disaffiliation. The fact that one of the parishes, Holy Apostles, in one of the documents executed to consummate its relationship with PECUSA crosses enough of the t’s and dots enough of the i’s to restore legal title to PECUSA or the Diocese upon the occurrence of such events does not warrant the nullification of a like requirement for the other three parishes when the record shows the intention of the parties was identical in all four cases.

As I see the question, if it appears conclusively that an express trust exists in favor of one or the other of the contending parties, the judgment must reflect that fact. Where, however, such does not affirmatively appear, there would seem to me to be little to recommend resolution of the question solely on the basis of bare legal title. The better choice in such an instance, in my view, is that approach which comes closest to recognizing those factors which define the nature of the relationship of the parties and therefore are best calculated to indicate what was contemplated by them in arriving at and agreeing upon that relationship. In the case at bench, if it is concluded no express trust affirmatively appears (a proposition I likewise do not accept), the hierarchical structure of PECUSA should be, as it was in the trial court, the controlling consideration.

Finally I am convinced none of the First Amendment rights of appellants have been violated. Each parish and its congregants are free to worship as they may from time to time decide at any place legally arranged for except the respective properties they now severally occupy. These properties they voluntarily and for a solid consideration agreed to transfer to PECUSA for use in accord with its constitution and canons.

I would affirm the judgment.

Petitions for a rehearing were denied March 2, 1981. Roth, P. J., was of the opinion that the petition should be granted. The petitions of appellant Holy Apostles Church and respondents for a hearing by the Supreme Court were denied April 22, 1981.