Reply Brief — Presbytery of the Twin Cities Area, Petitioner v. Eden Prairie Presbyterian Church, dba Prairie Community Church of the Twin Cities

No. 17-582

In the

Supreme Court of the United States

PRESBYTERY OF THE TWIN CITIES AREA,

Petitioner,

v.

EDEN PRAIRIE PRESBYTERIAN CHURCH

D/B/A PRAIRIE COMMUNITY CHURCH

OF THE TWIN CITIES,

Respondent.

On Petition for a Writ of Certiorari to the

Court of A ppeals of the State of Minnesota

REPLY BRIEF

Eric E. Caugh

Rolf E. Gilbertson

Zelle LLP

500 Washington Avenue South

Suite 4000

Minneapolis, MN 55415

(612) 339-2020

Gregory Silbert

Counsel of Record

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, NY 10153

(212) 833-3000

gregory.silbert@weil.com

Christopher J. Cox

Weil, Gotshal & Manges LLP

201 Redwood Shores Parkway

Redwood Shores, CA 94065

(650) 802-3000

Counsel for Petitioner

279769

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I.

Courts Nationwide Are Deeply Divided On

How To Resolve Intra-Church Property

Disputes In Accordance With Jones And

The First Amendment . . . . . . . . . . . . . . . . . . . . . . 2

A. The Lower Courts Have Adopted

Inconsistent Versions Of The NeutralPrinciples Approach . . . . . . . . . . . . . . . . . . . . 2

B. Jones Did Not Sanction Inconsistent

Versions Of Neutral Principles . . . . . . . . . . . 7

II. This Nationw ide Divide In Applying

Jones Deserves This Court’s Attention . . . . . . . . 8

III. Petitioner Has Standing Under Article III . . . 10

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ii

TABLE OF CITED AUTHORITIES

Page

CASES

Bressler v. Am. Fed. Of Human Rights,

44 F. App’x. 303 (10th Cir. 2002) . . . . . . . . . . . . . . . . . 5

Church of God in Christ, Inc. v. Graham,

54 F.3d 522 (8th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . 5

Church of God in Christ, Inc. v.

L.M. Haley Ministries, Inc.,

531 S.W.3d 146 (Tenn. 2017) . . . . . . . . . . . . . . . . 1, 3, 4

E. Lake Methodist Episcopal Church, Inc. v. Trs.

of the Peninsula-Delaware Annual Conf. of

the United Methodist Church, Inc.,

731 A.2d 798 (Del. 1999) . . . . . . . . . . . . . . . . . . . . . . . . 5

Jones v. Wolf,

443 U.S. 595 (1979) . . . . . . . . . . . . . . . . . . . . . . . passim

New Hope Lutheran Ministry v.

Faith Lutheran Church of Great Falls, Inc.,

328 P.3d 586 (Mont. 2014) . . . . . . . . . . . . . . . . . . . . . . . 4

Scotts African Union Methodist Protestant

Church v. Conference of African Union First

Colored Methodist Protestant Church,

98 F.3d 78 (3d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . 4

iii

Cited Authorities

Page

OTHER AUTHORITIES

First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 8

Honorable John E. Fennelly, Property Disputes

and Religious Schisms: Who Is the Church?, 9

St. Thomas L. Rev. 319 (1997) . . . . . . . . . . . . . . . . . . . 6

Jeff rey B. Hassler, A Multitude of Sins?

C o n s t i t u t i o n a l S t a n d a r d s fo r L e g a l

Resolution of Church Property Disputes in

A Time of Escalating Intradenominational

Strife, 35 Pepp. L. Rev. 399 (2008) . . . . . . . . . . . . . . . 6

Michael W. McConnell & Luke W. Goodrich,

On Resolving Church Property Disputes,

58 Ariz. L. Rev. 307 (2016) . . . . . . . . . . . . . . . . . . . . 6, 9

1

INTRODUCTION

There is an entrenched, acknowledged conflict in the

lower courts about how to apply Jones v. Wolf, 443 U.S.

595 (1979). See Pet. 10–21. The conflict implicates billions

of dollars in church property, and incorrect applications

of Jones—as in this case—unconstitutionally restrict free

exercise rights. See Pet. 21–24.

Respondent’s own authorities acknowledge that the

lower courts are divided. See, e.g., Church of God in Christ,

Inc. v. L.M. Haley Ministries, Inc., 531 S.W.3d 146, 168

(Tenn. 2017) (noting “massive inconsistency” among

courts applying Jones’s neutral-principles approach)

(emphasis added)) (cited at Opp. 14, 18). And, in the final few

pages of its brief in opposition, Respondent acknowledges

it too. See Opp. 18 (admitting “variation” among “courts

of different states” when applying neutral principles).

Respondent’s discussion of lower court decisions mostly

just expounds on opinions that Respondent believes are

supportive of its side of the split. But Respondent mistakes

the problem for the solution. Regardless which side is

correct, the state courts are in irreconcilable conflict about

a recurring, important question of First Amendment law,

as interpreted by this Court in Jones.

Respondent attempts to minimize the importance

of the First Amendment issues at stake, arguing that

churches should be required to “play by the same rules

that apply to everyone else.” Opp. 1. The only rule

Petitioner seeks to play by is the one this Court set forth

in Jones—under which a general church can enforce an

express trust clause in its constitution. Had the Minnesota

Court of Appeals applied that rule—as many other states

2

do—it would have enforced the trust clause in Petitioner’s

Book of Order and given effect “to the result indicated

by the parties,” as this Court instructed. Jones, 443 U.S.

at 606. Instead, the lower court disregarded the Book of

Order’s trust clause, in which Respondent had previously

assented. This raises a serious First Amendment issue.

Respondent also attempts to contrive an issue to avoid

review, claiming that Petitioner PTCA lacks standing to

assert injuries to PCUSA. See Opp. 20–21. But Petitioner,

as a presbytery, is the corporate expression of PCUSA

in the Twin Cities Area, and, under the Book of Order,

Petitioner has the sole authority to act for and on behalf

of PCUSA in that district. There is no standing issue.

As the dissenting Justices in Jones observed, the

neutral-principles approach left the state courts to “travel

a course left totally uncharted by this Court.” Jones, 443

U.S. at 616 (Powell, J., dissenting). The lower courts have

followed divergent paths leading out from Jones and have

arrived at different endpoints. This Court should grant

review to restore uniformity in the application of the First

Amendment to church property disputes.

I.

Courts Nationwide Are Deeply Divided On How

To Resolve Intra-Church Property Disputes In

Accordance With Jones And The First Amendment

A.

The Lower Courts Have Adopted Inconsistent

Versions Of The Neutral-Principles Approach

Faced with the same facts, civil courts nationwide have

adopted inconsistent versions of Jones’s “neutral principles

of law.” See Pet. 10–21. Though Respondent attempts to

3

deny the existence of this conflict, Respondent’s own

authorities repeatedly acknowledge it.

The extent of the conflict was discussed at length in

Church of God in Christ, a recent case that Respondent

cited. See Opp. 14, 18. There, the Supreme Court of

Tennessee noted that “massive inconsistency exists

among states adopting the neutral-principles approach,

and courts have reached different results given the same

facts, depending on how the court in question applies the

standard.” Church of God in Christ, Inc. v. L.M. Haley

Ministries, Inc., 531 S.W.3d 146, 168 (Tenn. 2017) (internal

quotation marks omitted) (emphasis added).

As the Tennessee court explained, “two versions of the

neutral-principles approach have emerged”: (1) the “hybrid

neutral-principles approach,” under which Jones-style

language in a church constitution is dispositive “even if it

does not satisfy the formalities that the civil law normally

requires”; and (2) the “strict neutral-principles approach,”

under which the same language in a church constitution is

enforceable only if it “satisf[ies] the civil law requirements

and formalities for imposition of a trust.” Church of God,

531 S.W.3d at 168–69.

These incompatible versions of the neutral-principles

approach will yield different outcomes even in states

where the underlying facts and state law rules are

identical. Take a Jones-style trust clause in a church

constitution that does not satisfy state law requirements

for the creation of a trust. A “strict” neutral-principles

state would deem the failure to meet state law formalities

to be dispositive. A “hybrid” neutral-principles state

would deem it irrelevant. The sole, outcome-determinative

4

difference is how each state interprets the neutralprinciples approach that this Court articulated in Jones.

And while Respondent dances around the conf lict,

ultimately Respondent too acknowledges that “variations

in the specific approach adopted by state courts” have led

to “differing conclusions.” Opp. 19.

The authorities Respondent relies on illustrate these

inconsistent outcomes. See Opp. 11–14. The Tennessee

Supreme Court enforced a Jones-type trust that did

not comply with state law formalities because “the

hybrid approach is most consistent with the analysis the

Supreme Court reviewed and approved as constitutionally

permissible in Jones.” Church of God, 531 S.W.3d at

170. The Third Circuit, in contrast, adopted the strict

approach and set aside a Jones-type trust recited in the

African Union Methodist Protestants’ Book of Discipline

because it conflicted with the local church’s certificate of

incorporation, which had priority under state law. See

Scotts African Union Methodist Protestant Church v.

Conference of African Union First Colored Methodist

Protestant Church, 98 F.3d 78, 95–96 (3d Cir. 1996); see

also New Hope Lutheran Ministry v. Faith Lutheran

Church of Great Falls, Inc., 328 P.3d 586, 600–01 (Mont.

2014) (Jones-type trust did not comply with state law

requirements for express trusts).

Indeed, some of the authority Respondent relies on

suggests an even deeper split, involving courts that consult

not only documents or statutes but also church members’

conduct to resolve property disputes. For example, the

Tenth Circuit considered “the conduct of the relevant

officials of the local and general church” and the degree

of control the general church exercised over the parish,

5

even though the general church’s canons contained a

trust clause that would have been dispositive under a

pure hybrid approach. Bressler v. Am. Fed. Of Human

Rights, 44 F. App’x. 303, 325–26 (10th Cir. 2002) (non

precedential).

Similarly, the Eighth Circuit in Church of God in

Christ noted that while the general church had a Jonestype trust in its constitution, reliance on that clause

was “severely diluted” because the constitution was not

distributed to local pastors. Church of God in Christ,

Inc. v. Graham, 54 F.3d 522, 526 (8th Cir 1995). Though

the court appeared willing to adopt the hybrid approach

and set aside state law formalities in at least some cases,

it ultimately held that “[t]o require the [local church]

congregation to hold its property in trust for another

without proper notice as to that requirement would too

severely distort the application of neutral principles of

Missouri law.” Id. at 526; see also E. Lake Methodist

Episcopal Church, Inc. v. Trs. of the Peninsula-Delaware

Annual Conf. of the United Methodist Church, Inc., 731

A.2d 798, 809–10 (Del. 1999) (considering a Jones-type

trust clause in a church constitution as well as other

evidence such as “the conduct of the members”).1

1. Respondent also acknowledges the existence of this

possible third approach in its discussion of Timberridge and

Episcopal Church Cases. See Opp. 16–18. As Respondent points

out, though the church constitutions in each case contained a

Jones-type trust, both courts appeared to go beyond a pure hybrid

approach and considered additional evidence of the parties’ intent

regarding the ownership of the properties. Id.

6

Legal scholars too have recognized the lower

courts’ conflicting approaches to neutral principles. In a

recent article cited by Respondent, the authors not only

acknowledged that a split existed but provided a tally of

the competing approaches:

The ambiguity in Jones has produced a split

over how the neutral principles approach

should be applied in practice. In the wake of

Jones, 29 states adopted some version of the

‘neutral principles’ approach, while 9 retained

the Watson approach, and 12 are unclear or

undecided. Of the 29 states that adopted the

neutral principles approach, 9 apply the ‘strict’

approach, 9 apply the ‘hybrid’ approach, and 11

are unclear or undecided.

Michael W. McConnell & Luke W. Goodr ich, On

Resolving Church Property Disputes, 58 Ariz. L. Rev.

307, 319 (2016); see also Jeffrey B. Hassler, A Multitude

of Sins? Constitutional Standards for Legal Resolution

of Church Property Disputes in A Time of Escalating

Intradenominational Strife, 35 Pepp. L. Rev. 399, 431–32

(2008) (“[T]he neutral-principles approach has yielded

another result, unforeseen, or at least unmentioned by the

Court in Jones: massive inconsistency in the application

of the doctrine. This variance, which some commentators

predicted shortly after Jones was handed down, stems

primarily from a lack of guidance given by the Court

for the application of the approach.”); Honorable John

E. Fennelly, Property Disputes and Religious Schisms:

Who Is the Church?, 9 St. Thomas L. Rev. 319, 353 (1997)

(“What has emerged is a welter of contradictory and

confusing case law largely devoid of certainty, consistency,

or sustained analysis.”).

7

B. Jones Did Not Sanction Inconsistent Versions

Of Neutral Principles

Respondent suggests that Jones allowed different

outcomes by permitting courts to resolve church property

disputes using “any one of various approaches.” Opp. 19

(citing Jones, 443 U.S. at 602). But only one approach to

these disputes is implicated by this Petition—neutral

principles—and it owes its provenance to this Court’s

decision in Jones. Cf. Opp. 14–15 (“though Jones made

clear that state courts could develop their own approaches

. . . no court has done so”). It is this specific approach, which

this Court articulated, that is being applied inconsistently

in the lower courts.

Jones left no room for the incompatible versions of

neutral principles that have now proliferated. When

the Jones Court discussed how neutral principles would

apply to a general church’s constitution, it was resolving

a problem identified by the dissenting justices. The

dissent argued that abandoning mandatory deference

under Watson “inevitably will increase the involvement

of civil courts in church controversies” and “invite[] the

civil courts” to interfere with “the resolution of religious

disputes within the church.” Jones, 443 U.S. at 611, 613–14

(Powell, J., dissenting). The majority discussed one way

that churches could avoid this impermissible interference

and the parties could ensure “before the dispute erupts

. . . that the faction loyal to the hierarchical church will

retain the church property”—“the constitution of the

general church can be made to recite an express trust in

favor of the denominational church.” Id. at 606.

8

The parties here followed Jones’s instructions to the

letter, but the outcome was the opposite of what Jones

provided. The general church amended the Book of Order

to include a Jones-style trust. Not only that, Respondent’s

by-laws adopted the Book of Order, and Respondent’s

articles of incorporation expressly recognized the trust in

favor of the general church. See Pet. App. 4a–5a. In short,

the parties here did ensure that property would remain

with the hierarchical church in the event of a schism, in

just the way that Jones recommended.

The lower courts held, however, that state law defeated

the previously agreed upon and authoritative resolution of

the dispute within the church. They determined that, under

Minnesota law, the trust created in favor of the general

church was valid but revocable, and that Respondent

validly revoked it before the schism by excising the trust

language from its articles of incorporation. See Pet. App.

19a, 22a. Under the “hybrid” neutral-principles approach

that many states employ, these state-law trust formalities

would be irrelevant. Under the “strict” approach the lower

courts adopted in this case, they were dispositive.

II. This Nationwide Divide In Applying Jones Deserves

This Court’s Attention

The First Amendment issue presented by this Petition

is sufficiently important to warrant review by this Court.

It implicates not only billions of dollars in church property

(millions in this case alone) but also the free-exercise

rights of churches and their members—just as the Jones

dissenters predicted. See Jones, 443 U.S. at 613–14

(Powell, J., dissenting).

9

Guided by Jones and its promise that courts must

give effect to express trusts, many religious institutions

modified their constitutions to include trust clauses.

As a source cited by Respondent explained, they did so

specifically to comply with Jones:

This split has assumed far more practical

importance than anyone could have imagined at

the time of Jones, because several of the nation’s

oldest and largest religious denominations

. . . quickly responded to Jones’s invitation to

amend the ‘constitution of the general church

. . . to recite an express trust in favor of the

denominational church,’ and thereby attempt

to resolve all property disputes with local

congregations in one national move.

McConnell & Goodrich, supra at 319–20.

The lower court decisions disregarding Jones-style

trust clauses place a state-law cloud over valuable church

property. They also “reverse[] the decisions of doctrine

and practice made in accordance with church law,” just as

the Jones dissent feared. Jones, 443 U.S. at 613 (Powell,

J., dissenting). And, as the dissenting members of Jones

explained, “[t]his indirect interference by the civil courts

with the resolution of religious disputes within the church

is no less proscribed by the First Amendment than is the

direct decision of questions of doctrine and practice.” Id.

This case provides a ready example. The lower

courts did not only override the resolution of this dispute

prescribed by the Book of Order and the ruling of “the

ecclesiastical governing body.” Pet. App. 11a. They also

10

explicitly rejected Petitioner’s position that “the property

dispute is a matter of polity or faith.” Pet. App. 15a. In

other words, the strict neutral-principles approach applied

in this case led the courts to decide an intra-church dispute

against the hierarchical church, in what the church itself

views as an ecclesiastical matter.

III. Petitioner Has Standing Under Article III

At the close of its opposition, Respondent makes a

fleeting challenge to standing because “Petitioner’s claim

rests on an assertion that PCUSA suffered an injury

in fact.” Opp. 21. Respondent ignores that Petitioner is

“the corporate expression of PCUSA for congregations

located within PTCA’s district boundaries, which includes

[Respondent].” Pet. App. 30a.

As explained in the Book of Order, PCUSA can act

only with the approval of certain councils. See Add.42 (G3.0101). One such council is a “presbytery,” which serves

as “the corporate expression of the church” within the

presbytery’s geographic district. See Add.51 (G-3.0301).

Each presbytery “is responsible for the government of

the church throughout its district.” Id.

Petitioner is the presbytery for the Twin Cities Area,

and its acts and decisions are considered the acts and

decisions of PCUSA. See Add.42 (G-3.0101). Indeed, under

the Book of Order, Petitioner—and only Petitioner—had

the authority to:

• Dissolve the relationship between Respondent and

PCUSA. See Add.53,56,57 (G-3.0303, G-4.0207);

11

• Review and correct the actions and decisions of

Respondent that are inconsistent with the Book

of Order. See Add.34,35,53 (F-3.0203, F-3.0206,

G-3.0303);

• Take control of Respondent if it is unable or

unwilling to manage its affairs consistent with the

Book of Order. See Add.54 (G-3.0303(e)); and

• Decide the disposition of the property held by

Respondent if Respondent ceases acting as a

congregation of PCUSA, dissolves or becomes

extinct, wants to sell or encumber its property,

or becomes embroiled in an internal schism. See

Add. 56,57 (G-4.0204, G-4.0205, G-4.0206, and

G-4.0207).

Accordingly, when Respondent ceased acting as a

congregation of PCUSA, Petitioner assumed control of the

Respondent’s session, and it determined the disposition

of the property held by Respondent. When Respondent

refused to acknowledge Petitioner’s authority under the

Book of Order, Petitioner filed this action as the corporate

expression of, and relevant governing council for, PCUSA

within the Twin Cities Area. Petitioner, therefore, has

standing under Article III.

12

CONCLUSION

For these reasons, this Court should grant the Petition

for a writ of certiorari and overturn the lower court’s

decision.

Dated: March 23, 2018.

Respectfully Submitted,

Eric E. Caugh

Gregory Silbert

Rolf E. Gilbertson

Counsel of Record

Zelle LLP

Weil, Gotshal & Manges LLP

500 Washington Avenue South 767 Fifth Avenue

Suite 4000

New York, NY 10153

Minneapolis, MN 55415

(212) 833-3000

(612) 339-2020

gregory.silbert@weil.com

Christopher J. Cox

Weil, Gotshal & Manges LLP

201 Redwood Shores Parkway

Redwood Shores, CA 94065

(650) 802-3000

Counsel for Petitioner