Fonken v. Community Church of Kamrar

SCHULTZ, Justice

(dissenting)

Because I cannot agree with the use of the compulsory deference approach to resolve church property disputes or the manner in which the neutral principles approach is applied, I respectfully dissent. The majority indicates that they use both the compulsory deference and the neutral principle approaches in resolving this property dispute. They decide that the trial court correctly applied both principles. Although the deference principle was correctly applied, I would reject this approach. Instead, I would resolve church property disputes under neutral principles of law since it does not encompass questions of doctrine or faith nor involve the court in determining ecclesiastical rule, custom or law. I deem that the trial court and the majority, contrary to their assertions, have used a deference approach in their application of the neutral principles. Since our review is de novo, I would hold for the local church.

In the past this court has relied upon the compulsory deference approach in resolving church property conflicts whenever the local congregation is a member of a hierarchical church, such as the UPCUSA. Under this approach a local church that unites with the general association does so with an implied consent to this organization and are bound to submit to it. As the majority indicates, we previously employed an implied-trust-departure-from-doctrine concept. Because this doctrine is now prohibited and the neutral principles of law approach is available, I believe that we should re-evaluate our previous position.

While the neutral principles is also based on a contractual rationale, unlike the implied-consent theory of the deference approach, this approach allows “flexibility in ordering private rights and obligations to *820 reflect the intentions of the parties.” Jones v. Wolf, 443 U.S. 595, 603 , 99 S.Ct. 3020, 3025 , 61 L.Ed.2d 775, 785 (1979). In other words, under neutral principles analysis, courts no longer presume the local church, through blind adherence to hierarchical authority, intended to be bound by all subsequent decisions of the hierarchy regarding its property. Rather, courts must examine the parties’ outward expression of intent to determine whether they agreed to place the right to control the property in somebody other than the formal titleholder. Most importantly, judicial resolution of church property disputes (under this approach) would be based solely on objective well-established concepts of trust and property law familiar to lawyers and judges. Id. Finally, although the supreme court recognized that the application of neutral principles was not wholly trouble free since it requires “a civil court to examine certain religious documents, such as the church’s constitution, for language of trust in favor of the general church.,’' Id. at 604, 99 S.Ct. at 3026 , 61 L.Ed.2d at 785 (emphasis added), the court felt that “the promise of nonen-tanglement and neutrality inherent in the neutral-principles approach more than compensates for what will be occasional problems in its application.” Id.

In conformity with the Wolf decision, a court attempting to resolve church property disputes by the application of neutral principles must examine property deeds, local church charters, relevant state statutes and the central church’s constitution. The object of the inquiry is to ascertain the parties’ intentions and understanding with respect to local church property. In ascertaining these intentions, the court should remain strictly neutral between the parties.

A. Church property deeds. The Kamrar church property was acquired through three conveyances to the local church by warranty deeds. None of these deeds indicate a reservation in favor of the central church. The church was first incorporated in 1881 and subsequently reincorporated in 1944 and 1964. Although there is no evidence church property was reconveyed to these corporations, the parties have assumed that at all times material legal title was vested in the local church corporation. Since legal title to the property is vested in the local church, and nothing in the deeds indicates a reservation in favor of the central church, other sources must be examined to see if they provide a basis for implying a trust of the Kamrar property.

B. Local church charter. As noted earlier, the Kamrar church was first incorporated in 1881. The articles of incorporation stated the church was to be known as the First Presbyterian Church of Kamrar and the “object of which is to worship God according to the forms and ceremonies of said Denomination.” Presumably the denomination refers to the central organization under which it was first organized. These articles also state:

we assume to ourselves . .. [t]he right to acquire by gift, grant, or purchase such real or personal property as the constituted authorities of said church may think best for church purposes.

Although it is not clear whether “said church” means the central organization or the local church, in the subsequent articles of reincorporation, (1944), the same provision was put in and, there, it is clear this language refers to the local church. In addition to this article reserving control over property to the local church, Article XIV of the 1944 corporate charter states:

This association ... [ejxcept as herein modified, adopt as part of its by-laws the discipline of the PRESBYTERIAN CHURCH in the United States of America so far as the same relate to societies of this character and to officers and trustees thereof, and the members of the Association may adopt whatever by-laws to these articles that may seem necessary and desirable.

The final Articles of Incorporation (1966) and the ones in effect when the present dispute arose do not contain a provision similar to the one cited above. Additionally, the stated purpose of the corporation has been somewhat modified from that of the 1881 Articles and 1944 Articles. In particu *821 lar, the stated purpose is to “operate and maintain a Presbyterian Church, affiliated with the General Assembly of the United Presbyterian Church in the United States of America."

If the object of an examination of the local church charter is to ascertain whether the local church intended to hold its property in trust for the central church, none of Kamrar Church’s Articles of Incorporation support such an inference. In all three corporate charters, power over the property is reserved to the corporation and its members.

The only language that remotely supports such an inference is Article II of the 1964 corporate charter dealing with the corporation’s stated purpose to operate and maintain a Presbyterian church affiliated with the UPCUSA. The thrust of this provision, however, is considerably modified by another which allows the corporation to amend, alter, or repeal its Articles of Incorporation in the manner prescribed by Iowa law. Consequently under chapter 504 of the Iowa Code, the local congregation could repeal its stated purpose provision and strike out any reference to the UPCUSA by a majority vote of its members. Iowa Code § 504.19 (1983).

Furthermore, the stated purpose provision of the Kamrar church differs substantially from the corporate charter of two local churches presented to the Maryland courts in a property dispute involving the UPCUSA. Babcock Memorial Presbyterian Church v. Presbytery of Baltimore of United Presbyterial Church in the United States of America, 296 Md. 573 , 464 A.2d 1008 (1983), aff’g 52 Md.App. 428 , 449 A.2d 1190 (1982); Calvary Presbyterian Church of Baltimore City v. Presbytery of Baltimore of the United Presbyterian Church in the United States of America, 39 Md.App. 405 , 386 A.2d 357 (1978).

In both of these cases, the Maryland courts, purportedly applying a neutral principles analysis, found an implied trust of local church property in favor of UPCUSA. The majority opinion cites these cases to support its finding of an implied trust here. While the Maryland courts did rely heavily on hierarchical control in the UPCUSA Book of Order over local church affairs in reaching that result, those cases are not factually similar to the Kamrar situation and should not control our result.

In particular, the local church charter in the Calvary case provided that the church “shall remain forever a Presbyterian Church in doctrine, government, and worship in accordance with standards of the Presybterian Church in the United States of America[n].. . . ” Calvary at 410, 386 A.2d at 360 . Likewise, in the Babcock case, the church charter stated the church was affiliated with the UPCUSA and was under the care of and subject to the jurisdiction of Presbytery of Baltimore and its by-laws shall be subordinate to the Constitution of UPCUSA and nothing herein shall be interpreted to the contrary. Babcock at 438, 449 A.2d at 1195 . On the basis of these local church charters and the UPCUSA constitution, an implied trust was found.

In conclusion, nothing in the Kamrar church charter supports an inference that the local church intended its property to be held in trust for UPCUSA. Of course this does not dispose of the issue since the court must also look to UPCUSA’s constitution to see if any of its provisions provide a basis for implying a trust.

C. UPCUSA constitution. In its neutral principle approach the majority’s analysis does not seem different in kind than the analysis that is employed in a deference approach. In particular, the majority examines the church polity to ascertain where the constitution places control over local church property. Once it establishes that the central church had some say over the uses of local church property in certain specified situations, it finds an implied trust over that property in all situations.

The Wolf decision indicates that the neutral principle method avoids this kind of in-depth analysis of church polity. Specifically, the majority stated in response to the dissenting minority:

*822 The dissent would require the States to abandon the neutral-principles method, and instead would insist as a matter of constitutional law that whenever a dispute arises over ownership of church property, civil courts must defer to the “authoritative resolution of the dispute within the church itself.” It would require, first, that civil courts review ecclesiastical doctrine and polity to determine where the church has “placed ultimate control over the use of the church property.[T]he neutral-principle analysis obviates entirely the need for an analysis or examination of ecclesiastical polity or doctrine in settling church property disputes.

Id at 605-06, 99 S.Ct. at 3026 , 61 L.Ed.2d at 785-86 (citations to the dissenting opinion omitted).

Elsewhere, the Wolf court stresses that this approach relies on secular law rather than religious law or custom. It also specifies how the central church and its affiliates can order their relationships to ensure secular recognition of their respective property rights. Specifically, the court states:

The method relies on objective well-established concepts of trust and property law familiar to lawyers and judges. It thereby promises to free civil courts [f]rom entanglement in questions of religious doctrine, polity and practice.... [TJhrough 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 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 its members.

Id, at 603, 99 S.Ct. at 3025-26 , 61 L.Ed.2d at 785 . (emphasis added).

Finally, the characterization of neutral principles analysis by the Wolf dissenters is also instructive.

Thus, where religious documents such as church constitutions or books of order must be examined “for language of trust in favor of the general church,” “a civil court must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts in determining whether the document indicates that the parties have intended to create a trust.” It follows that the civil courts using this analysis may consider the form of religious government adopted by the church members for the resolution of intrachurch disputes only if that polity has been stated, in express relation to church property, in the language of trust and property law.

Id at 611-12, 99 S.Ct. at 3029-30 , 61 L.Ed.2d at 790 (citations to the majority opinion omitted).

Based on the characterizations of both the majority and dissent in the Wolf decision, the neutral principles analysis is an effort to treat the property relationships of religious societies and its affiliates in purely secular legal terms. It does not depend in the first instance on whether the church government is hierarchical and the local church has submitted to that hierarchical authority. Rather, the thrust of the inquiry is whether, based on a neutral secular analysis of all the relevant documents, the court can find in “legally cognizable language” that the parties intended to create a trust of local church property in favor of the central church. Not that the central church claims an implied trust or even that it has always relied on one. Most importantly, the ultimate inquiry is whether under Iowa’s law of implied trusts the UPCUSA has made a legally sufficient showing to justify impressing a trust upon the Kamrar church property for all purposes and in all situations.

Admittedly, other jurisdictions purportedly applying a neutral principles analysis in church property disputes involving the UP-CUSA and local churches have found an implied trust in favor of the central church. See Calvary Presb. Ch. v. Presbytery of Baltimore, 39 Md.App. 405 , 386 A.2d 357 (1978); Babcock Memorial Presbyterian Church v. Presbytery of Baltimore of UP *823 CUSA, 296 Md. 573 , 464 A.2d 1008 (1983) aff’g 52 Md.App. 428 , 449 A.2d 1190 (1982); First Presbyterian Church of Schenectady v. United Presbyterian Church in the United States, 461 N.Y.S.2d 903, 906 , 92 A.D.2d 164, 169 (1983) (Mahoney, J., concurring) (majority decided property dispute on the basis of compulsory deference). As noted earlier, there are substantial differences between the local church charters in the Maryland cases and the Kamrar corporate charter. Moreover, there is some question whether the Maryland courts are really applying a neutral principles analysis. See dissent’s characterization of the first Maryland case purportedly applying a neutral principles analysis. Wolf at 612 , 99 S.Ct. at 3030 , 61 L.Ed.2d at 790 n. 1.

Additionally, other judges applying neutral principles to property disputes involving the UPCUSA have not found an implied trust. First Presbyterian Church of Schenectady, 92 A.D.2d at 171 , 461 N.Y.S.2d at 907 (Casey, J., dissenting). Lowe v. First Presbyterian Church of Forest Park, 56 Ill.2d 404, 415 , 308 N.E.2d 801 , 807 cert. denied, 419 U.S. 895 , 95 S.Ct. 174 , 42 L.Ed.2d 139 (1974) (Goldenhersh, J., dissenting) (majority applied compulsory deference principle). See also Presbytery of Riverside v. Community Church of Palm Springs, 89 Cal.App.3d 910 , 152 Cal.Rptr. 854 , cert. den., 444 U.S. 974 , 100 S.Ct. 469 , 62 L.Ed.2d.389 (1979).

The jurisdiction with the most experience in applying the neutral principles analysis is Georgia. Where there is an express trust provision, the Georgia courts give it civil effect. In Carnes v. Smith, 236 Ga. 30 , 222 S.E.2d 322 , cert. denied, 429 U.S. 868 , 97 S.Ct. 180 , 50 L.Ed.2d 148 (1976), the local church’s claim of autonomy over its property was rejected on the basis of an express trust provision in the central church’s constitution. Specifically, the constitution provided that all local church property deeds contain a clause that the property was held in trust for both the local and central church. It also provided that, in the absence of a trust clause, a trust was to be implied in favor of the central church if three conditions were met. Thus, although the local church deed did not have the required trust clause, the Georgia court found the three conditions for an implied trust were satisfied and awarded the property to the central church. Id. at 38-9 , 222 S.E.2d at 328 .

Likewise, in Crumbley v. Solomon, 243 Ga. 343 , 254 S.E.2d 330 (1979), the Georgia Supreme Court found a trust of local church property on the basis of the central Association’s constitution which provided in part that the Association “shall hold all church property, regardless if all members vote to change the church to some other faith.” Id. at 345 , 254 S.E.2d at 332 . There, the court held the local church could not now deny the existence of a trust for the benefit of the general church since the local church had participated in making the rule and did not contest its validity for thirty years. Id., at 345 , 354 S.E.2d at 333.

Conversely, Georgia courts consistently have refused to imply a trust on local church property in the absence of an express trust provision in the central church’s constitution when legal title is vested in the local church. See Presbyterian Church in the United States v. Eastern Heights Presbyterian Church, 225 Ga. 259 , 167 S.E.2d 658 (1969), cert. denied, 396 U.S. 1041 , 90 S.Ct. 680 , 24 L.Ed.2d 685 (1970) (where on remand from the supreme court decision, Presbyterian Church v. Hull Church, 393 U.S. 440 , 89 S.Ct. 601 , 21 L.Ed.2d 658 (1969), federally stripping Georgia of its right to decided church property disputes by applying the implied-trust-departure-from-doctrine standard, the Georgia court refused to imply a trust on the basis of the PCUS’s constitution); Jones v. Wolf, 241 Ga. 208 , 243 S.E.2d 860 (1978) (no implied trust of local church property found in favor of PCUS) (decision subsequently appealed to supreme court Jones v. Wolf, supra).

Although both the majority opinion and the UPCUSA contend that differences between the constitution of PCUS and UPCU-SA dictate a different result here, certain statements in UPCUSA’s own documents undermine these contentions. Specifically, *824 the UPCUSA’s Report of the Permanent Committee on Conversation of Property in discussing the supreme court’s decision in Jones v. Wolf states:

This case involved the property of a particular church of the Presbyterian Church in the United States (PCUS) sometimes referred to as the “Southern Presbyterian Church.” Although the constitution of that church is not identical with the Constitution of the United Presbyterian Church in the United States of America (UPCUSA), the polities of the two are sufficiently similar and the language of the opinion is sufficiently far-reaching that this committee is convinced that the case causes confusion for United Presbyterians.

Elsewhere, the report states:

The result in Jones v. Wolf was made possible because the Constitution of PCUS does not state explicitly that all property of each particular church is held in trust for the PCUS as a whole. Neither does the Constitution of UPCUSA contain such an explicit provision.

Thus, the UPCUSA’s own documents support the view that under the neutral principles analysis, the critical determinant is whether the central church’s constitution contains an explicit trust provision. It is one thing to impress a trust upon local church property where the member church knew the central church’s constitution contained such a provision or, alternatively, member churches approved such a provision and quite another to reach the same result in the absence of such a clearly expressed intention by the parties.

In this regard, the failure of an amendment to the central church’s constitution in 1929 is illuminating. This amendment would have required the local church charters of all participating churches to state its property was held in trust for the central organization. Although the majority opinion and the UPCUSA give short shrift to the failure of this amendment, the fact remains that a majority of the “rank and file” (in this case the Presbyteries) either by refusing to vote on the amendment or by voting negatively failed to approve this addition to the central church’s constitution. Since the neutral principles method of resolving church property disputes is an attempt to ascertain the intention of parties (the central church and its local affiliates), the failure of this amendment is highly significant. See First Presbyterian Church of Schenectady, 92 A.D.2d at 174 , 461 N.Y. S.2d at 909 (1983) (Casey, J., dissenting). Although a trust amendment to the UPCU-SA’s constitution was finally approved in 1981, it came into being too late to govern the actions of the parties in the present dispute.

In any event, while all of the cases cited above certainly should be considered, none are binding on this court in applying its own neutral principles analysis. Since this approach requires us to look to our secular legal principles governing trusts and property, Iowa’s law on implied trust determines the resolution of this property dispute. Before the parameters of this law are set out and discussed, a closer look at the provisions of the UPCUSA’s constitution is in order.

The only provision in the constitution that remotely approaches language of a trust is section 62.11 of the Book of Order. This section provides:

When hereafter a particular church is formally dissolved by the presbytery, or has become extinct by reason of the dispersal of its members, the abandonment of its work, or other cause, such property as it may have, both real and personal, shall be held, used, and applied for such uses, purposes and trusts as the presbytery may direct, limit, appoint, or such property may be sold or disposed of as the presbytery may direct, in conformity with the Constitution of the United Presbytery Church in the United States of America.

It should be noted that UPCUSA concedes this provision is not applicable to Kamrar property dispute. Additionally, other judges applying a neutral principles analysis in analogous situations have not relied on this provision to either find or refuse to find an implied trust for UPCUSA. See First Presbyterian Church of Schenectady, *825 92 A.D.2d at 170 , 461 N.Y.S.2d at 906 n. 1 (Mahoney, J., concurring); Id. at 173, 461 N.Y.S.2d at 908 (Casey, J., dissenting). Consequently, the majority’s reliance on this provision to find implied trust in favor of UPCUSA in schism situations where a majority of the local membership votes to disassociate itself from the central church is questionable. Although the Presbytery apparently does have the power to dissolve local churches, section 42.08 of the Book of Order, this provision clearly was not intended to apply to the schism situation presented here. See also Iowa Code sections 504.-23- 24 (1983) (these sections provide the same result as this constitutional provision whenever a religious body is deemed extinct).

The majority has laid out the other pertinent provisions of the UPCUSA constitution dealing with the use of property. At best, the inferences arising from the UP-CUSA provisions concerning the intention of the parties as to local church property are conflicting. For instance, section 41.07 provides that the governing body of the local church (session) has exclusive authority over the uses of church property. This exclusive authority over church property is modified by section 62.12 which requires the session to obtain written permission from the Presbytery before selling, mortgaging or otherwise encumbering any of its real property. Evidence in the record indicates that this provision was adopted during the depression when many member churches were defaulting on their mortgages. Apparently the central organization felt this reflected badly on the whole church body. This interpretation is bolstered by other language in the provision which prohibits local churches from acquiring encumbered or mortgaged real property without permission of Presbytery. Additionally, while permission of Presbytery as to real property may be required when the local church is under its religious jurisdiction, this provision has no impact on a situation in which a majority of local church members have voluntarily removed themselves from the Presbytery’s religious jurisdiction. Also, it is specifically limited to real property and says nothing about a local church’s personal property. Finally, the question is whether under Iowa's law on implied trusts these provisions constitute a legally sufficient showing for impressing a trust on the Kam-rar church property.

Iowa Code section 557.10 provides that “declarations or creation of trusts or powers in relation to real estate must be executed in the same manner as deeds of conveyance; but this provision does not apply to trusts resulting from operation or construction of law.” The language in section 557.10 allowing trusts to arise from operation of law was explained in Dunn v. Zwilling Brothers, 94 Iowa 233, 237-38 , 62 N.W. 746, 747 (1895) in the following manner:

Trusts arising by implication of law are sometimes divided into two classes: First. Those which are said to result by operation or presumption of law from certain acts or relations of parties from which an intention to create trust is supposed to exist, and which are called “resulting” or “presumptive” trusts. Second. Those which exist by construction of law alone, without any actual or supposed intention that a trust should be created, but merely to assert the rights of parties or baffle fraud. They are called “constructive” trusts. Resulting trusts may arise: “First, where a purchaser pays the purchase price, but takes the title in the name of another; second, where a trustee or other fiduciary buys property in his own name, but with trust funds; third, where the trusts of a conveyance are not declared, or are only partially declared, or fail; and fourth, where a conveyance is made without any consideration, and it appears from the circumstances that the grantee was not intended to take beneficially.”

Consequently, implied trusts are creatures of common law in Iowa. They may be of two types: constructive or resulting. Constructive trusts are grounded in principles of equity and available to cure unjust enrichment or fraud. Conversely, resulting trusts depend on whether the acts and relationship between the parties manifest an *826 intention that the titleholder is not entitled to take the property beneficially. Such trusts are implied in fact.

In Iowa, constructive trusts generally require some fraudulent conduct or at least some sort of evidence of unjust enrichment. See i.e., Loschen v. Clark, 256 Iowa 413, 420 , 127 N.W.2d 600, 604 (1964) (constructive trust is an appropriate remedy to cure unjust enrichment even in the absence of some fraudulent conduct); McBain v. Sorenson, 236 Iowa 996, 1004 , 20 N.W.2d 449, 454 (1945) (fraud actual or constructive is essential element of constructive trust). Thus, in absence of some unjust enrichment of the local church at the expense of the UPCUSA or fraudulent conduct by the local membership a constructive trust is not available. The record is clear that all funding to acquire the property and also to support church activities was obtained from the local membership. No monetary support flowed from the UPCUSA to the local church. Furthermore, the party seeking to impress a constructive trust upon the legal titleholder has the burden of proof. Such burden can only be met by clear, satisfactory and convincing proof. See e.g., Groves v. Groves, 248 Iowa 682, 692 , 82 N.W.2d 124, 130 (1957).

A resulting trust seems to be the only available option here. Of the resulting trusts set out in Dunn, supra, the only one remotely applicable to the Kamrar church property is number four where property is transferred without consideration and the grantee was not intended to take beneficially. The three deeds conveying legal title to the Kamrar church only recite nominal consideration. However, a resulting trust will not be presumed. The burden is on the party attempting to establish the trust and it must be proved by clear, satisfactory and convincing evidence. See e.g., Shaw v. Addison, 239 Iowa 377, 384 , 28 N.W.2d 816,820 (1948); Ross v. Ross, 256 Iowa 326, 333 , 126 N.W.2d 369, 374 (1964). No evidence in the record indicates the local church was not intended to take beneficially. Although the original five-acre plot was conveyed by a Presbyterian minister the corporate charter at that time indicated the purpose of the church was to worship according to the forms and ceremonies of the denomination. Nothing is said about perpetual alliance to that denomination or that the central organization was intended to be a beneficial taker of the property.

Only one Iowa case on resulting trusts appears to support an implied trust in favor of the UPCUSA. In that case, the court found that although ⅞⅛ of the members had voted to break their ties with a central Presbyterian organization, “the circumstances surrounding and the relations of the parties to the conveyance sufficiently imply a trust, that the property should be used for the purposes of those adhering to and in subordination to the religious denomination.” The First Constitutional Presbyterian Church v. The Congregational Society, 23 Iowa 567, 574 (1867).

Since the court there seems to contemplate a departure from doctrine aspect in finding an implied trust, this case is not controlling. Moreover, the facts in that case are somewhat different. Specifically, much of the funds for building the church were obtained from the central organization. Id.

D. Statutes governing the holding of church property. As noted earlier, Iowa statutory law would apparently award local church property to the central denomination whenever a local religious society became “extinct.” Iowa Code §§ 504.23 , 504.-24. Certainly under the statutory definition, Iowa Code section 504.11, the Kamrar church is not extinct nor is there any evidence in the record that the Presbyery deemed it extinct. Consequently, these provisions do not provide a basis for impressing a trust on local church property where (as here) a majority of the membership decides to withdraw from the religious jurisdiction of the central church.

In summary, neither the deeds to the property nor the articles of incorporation of the local church support an inference that the property of the local church is held in an implied trust. The inference to be drawn from the provisions of UPCUSA’s *827 constitution specifically dealing with local church property are conflicting. These provisions do not establish an implied trust, by clear and convincing evidence, the standard of proof required by Iowa law. Thus, under the neutral principles analysis, the local Kamrar church holds title free and clear of any implied trust in favor of the UPCUSA.

Determining the local church holds title to the property free and clear of an implied trust does not dispose of this property dispute, however. As noted by the majority, two-thirds of the members present at a church meeting voted to disaffiliate from the UPCUSA while one-third wanted to remain with the organization. Thus, the identity of the local church must be determined. Stated otherwise, under a neutral principles analysis, the court must also decide which of the factions within the local congregation is entitled to control the actions of the titleholder and thus control the use of the property. Again Jones v. Wolf, 443 U.S. 595 , 99 S.Ct. 3020 , 61 L.Ed.2d 775 (1979) is instructive. There the supreme court stated that courts could use a presumptive rule of majority representation in schism situations as long as there was some articulated basis for overcoming this major-itarian presumption. Id. at 607-08 , 99 S.Ct. at 3027 , 61 L.Ed.2d 787 . Thus, I would apply this rule to the Kamrar situation. Further, I would hold this presumption could be overcome by provisions in the central church’s constitution, the local church charter or relevant state statutes which specifically describe how the identity of the church should be determined when there is a split in the local membership. Since none of these sources directly addresses this issue, I would hold the majority faction within the Kamrar congregation is entitled to control the use of the church property. Accordingly, I would reverse.

REYNOLDSON, C.J., and HARRIS, J., join this dissent.