Petition for Writ of Certiorari — Kenneth Shelton, Petitioner v. Anthonee Patterson

No. _________

IN THE

KENNETH SHELTON,

v.

Petitioner,

ANTHONEÉ PATTERSON,

Respondent.

On Petition for a Writ of Certiorari

to the Commonwealth Court of Pennsylvania

PETITION FOR WRIT OF CERTIORARI

STRADLEY RONON STEVENS & YOUNG, LLP

Mark E. Chopko

1250 Connecticut Ave., N.W.

Suite 500

Washington, D.C. 20036

(202) 419-8410

mchopko@stradley.com

Danielle Banks

Counsel of Record

Adam D. Brown

Brandon M. Riley

2005 Market Street

Suite 2600

Philadelphia, PA 19103

(215) 564-8116

dbanks@stradley.com

abrown@stradley.com

briley@stradley.com

Counsel for Petitioner, Bishop Kenneth Shelton

i

QUESTION PRESENTED

This Court has made plain that States may

adjudicate disputes that arise within religious

communities, so long as they can be resolved on

“neutral principles.” Jones v. Wolf, 443 U.S. 595, 602

(1979). But Wolf cautioned that where the resolution

of a controversy even under a “neutral principles”

approach requires the evaluation and interpretation

of a religious matter, broadly construed, the civil

courts must defer to the religious community on

those issues, applying Serbian Eastern Orthodox

Diocese v. Milivojevich, 426 U.S. 696, 710 (1976). And

then, in Hosanna-Tabor Evangelical Lutheran

Church & School v. E.E.O.C., 565 U.S. 171, 195 n.4

(2012), this Court opined that church disputes over

ministry are not per se exempt from judicial scrutiny

under church autonomy principles, and that they

should instead be treated as affirmative defenses,

leading to further confusion in the application of this

precedent in the lower courts.

After nearly a quarter century of litigation, the

court below—ostensibly following “neutral principles”

as contemplated by Wolf—has directed that a nonmember of a religious community be installed in the

highest leadership position of the Church of the Lord

Jesus Christ of the Apostolic Faith, displacing its

duly elected leader. The case below thus presents a

matter for plenary review related to the inconsistent

application of this Court’s precedent:

Whether this Court should clarify Jones

v. Wolf and Hosanna-Tabor v. E.E.O.C.,

given the doctrinal uncertainty and

unpredictability reflected in inconsistent

ii

application in federal and state courts,

and limit the ability of courts to disregard

core church autonomy principles in the

adjudication of intra-church disputes.

iii

LIST OF PARTIES

The Petitioner, Bishop Kenneth Shelton, was the

defendant below. The Respondent, plaintiff below, is

Anthoneé Patterson.

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

LIST OF PARTIES .................................................... iii

APPENDIX .................................................................vi

TABLE OF CITED AUTHORITIES ....................... viii

PETITION FOR WRIT OF CERTIORARI ................. 1

OPINION BELOW ...................................................... 1

JURISDICTION .......................................................... 1

CONSTITUTIONAL PROVISIONS

INVOLVED .................................................................. 2

STATEMENT OF THE CASE .................................... 2

A. Factual Background as to the Church ................... 2

B. Proceedings Below .................................................. 5

C. The Commonwealth Court’s 2017 Opinion ............ 9

REASONS FOR GRANTING THE

PETITION ................................................................. 12

A. The Court Should Grant Certiorari To

Determine Whether The First Amendment

Bars Civil Courts From Adjudicating

Disputes About Who Is the Rightful Leader

Of A Church, When The Leader Was Duly

Elected According To That Church’s

Ecclesiastical Doctrine. ........................................ 13

B. The Court Should Grant Certiorari To

Resolve The Split In Authority In The

Lower Courts Over Whether Church

Autonomy Principles Act As A

v

Jurisdictional Bar Or An Affirmative

Defense. ................................................................ 19

C. The Court Should Grant Certiorari To

Revisit And Clarify Its Ruling In Jones v.

Wolf To Address Federal And State Courts’

Inconsistent Application Of Its Holding. ............ 26

CONCLUSION .......................................................... 32

vi

APPENDIX

APPENDIX A – OPINION AND ORDER OF THE

COMMONWEALTH COURT OF PENNSYLVANIA,

DATED NOVEMBER 29, 2017 . . . . . . . . . . . . . APP-1

APPENDIX B – CLARIFYING ORDER OF THE

COMMONWEALTH COURT OF PENNSYLVANIA,

DATED DECEMBER 22, 2017 . . . . . . . . . . . . APP-16

APPENDIX C – ORDER OF THE

COMMONWEALTH COURT OF PENNSYLVANIA

DENYING REARGUMENT, DATED JANUARY 16,

2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APP-18

APPENDIX D – ORDER OF THE SUPREME

COURT OF PENNSYLVANIA DENYING PETITION

FOR ALLOWANCE OF APPEAL, DATED JULY 31,

2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APP-19

APPENDIX E – ORDER OF THE COURT OF

COMMON PLEAS OF PHILADELPHIA COUNTY,

DATED JANUARY 10, 2006 . . . . . . . . . . . . . . APP-20

APPENDIX F – OPINION OF THE

COMMONWEALTH COURT OF PENNSYLVANIA,

DATED JANUARY 31, 2008 . . . . . . . . . . . . . . APP-22

APPENDIX G – OPINION OF THE

COMMONWEALTH COURT OF PENNSYLVANIA,

DATED DECEMBER 18, 2015 . . . . . . . . . . . . APP-44

vii

APPENDIX H – BYLAWS OF THE CHURCH OF

THE LORD JESUS CHRIST OF THE APOSTOLIC

FAITH. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APP-72

APPENDIX I – ARTICLES OF INCORPORATION

OF THE TRUSTEES OF THE GENERAL

ASSEMBLY OF THE CHURCH OF THE LORD

JESUS CHRIST OF THE APOSTOLIC FAITH, INC.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APP-82

APPENDIX J – PROCLAMATION OF THE

CHURCH OF THE LORD JESUS CHRIST OF THE

APOSTOLIC FAITH, DATED AUGUST 31, 2006

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APP-86

APPENDIX K – COMPLAINT, ANTHONEE

PATTERSON V. KENNETH SHELTON & ERIK

SHELTON, NO. 2945, JULY 1995, IN THE COURT

OF COMMON PLEAS OF PHILADELPHIA

COUNTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APP-87

APPENDIX L – ARBITRATION ADJUDICATION,

DATED APRIL 26, 2006. . . . . . . . . . . . . . . . . . APP-99

viii

TABLE OF CITED AUTHORITIES

Page

CASES

Bible Way Church of Our Lord Jesus

Christ of the Apostolic Faith of

Washington, D.C. v. Beards,

680 A.2d 419 (D.C. 1996) ..................................... 20

Bilbrey v. Myers,

91 So.3d 887 (Fla. Dist. Ct. App.

2012) ..................................................................... 21

Bishop & Diocese of Colo. v. Mote,

716 P.2d 85 (Colo. 1986)............................ 29, 30-31

Bryce v. Episcopal Church in the

Diocese of Colo.,

289 F.3d 648 (10th Cir. 2002) ......................... 23-24

Celnik v. Congregation B’Nai Israel,

131 P.3d 102 (N.M. Ct. App. 2006) ...................... 23

Church of God in Christ, Inc. v. L.M.

Haley Ministries, Inc.,

531 S.W.3d 146 (Tenn. 2017) ......................... 21, 24

In re Church of St. James the Less,

888 A.2d 795 (Pa. 2005) ....................................... 29

Conlon v. InterVarsity Christian

Fellowship,

777 F.3d 829 (6th Cir. 2015) ................................ 20

ix

Connor v. Archdiocese of Philadelphia,

975 A.2d 1084 (Pa. 2009) ............................... 14, 21

Doe v. First Presbyterian Church U.S.A.

of Tulsa,

421 P.3d 284 (Okla. 2017) .................................... 24

In re Episcopal Church Cases,

198 P.3d 66 (Cal. 2009) ........................................ 29

The Episcopal Church in the Diocese of

Conn. v. Gauss,

28 A.3d 302 (Conn. 2011) ..................................... 29

Episcopal Diocese of Rochester v.

Harnish,

899 N.E.2d 920 (N.Y. 2008) ................................. 29

Falls Church v. Protestant Episcopal

Church in U.S.,

740 S.E.2d 530 (Va. 2013) .................................... 30

Gonzalez v. Roman Catholic Archbishop

of Manila,

280 U.S. 1 (1929) .................................................. 18

Greater Fairview Missionary Baptist

Church v. Hollins,

160 So.3d 223 (Miss. 2015) .................................. 21

Hosanna-Tabor Evangelical Lutheran

Church & School v. E.E.O.C.,

565 U.S. 171 (2012) ...................................... Passim

x

Hubbard v. J. Message Grp. Corp.,

325 F. Supp. 3d 1198 (D.N.M. 2018) ............. 22–25

Jefferson Woodlands Partners, L.P. v.

Jefferson Hills Borough,

881 A.2d 44 (Pa. Commw. Ct. 2005) ...................... 8

Jones v. Wolf.

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

Kedroff v. St. Nicholas Cathedral of

Russian Orthodox Church in Am.,

344 U.S. 94 (1952) ................................................ 18

Kirby v. Lexington Theological

Seminary,

426 S.W.3d 597 (Ky. 2014) ................................... 24

Lee v. Sixth Mt. Zion Baptist Church of

Pittsburgh,

903 F.3d 113 (3d Cir. 2018).................................. 20

Maryland & Virginia Eldership of

Church of God v. Church of God at

Sharpsburg, Inc.,

396 U.S. 367 (1970) .............................................. 13

Masterson v. Diocese of Northwest

Texas,

422 S.W.3d 594 (Tex. 2013) ..................... 28, 30–31

Patterson v. Shelton (“Patterson I”),

Nos. 1967 C.D. 2006, 1968 C.D. 2006,

2008 WL 9401359 (Pa. Commw. Ct.

Jan. 31, 2008) ............................................... Passim

xi

Patterson v. Shelton, 963 A.2d 471

(Pa. Oct. 14, 2008) .................................................. 9

Patterson v. Shelton (“Patterson II”),

No. 2147 C.D. 2014, 2015 WL

9260536 (Pa. Commw. Ct. Dec. 18,

2015) ............................................................. Passim

Patterson v. Shelton, 137 S.Ct. 297

(Oct. 11, 2016) ........................................................ 9

Patterson v. Shelton (“Patterson III”),

175 A.2d 442 (Pa. Commw. Ct. 2017) .......... Passim

Presbyterian Church in U.S. v. Mary

Elizabeth Blue Hull Mem.

Presbyterian Church,

393 U.S. 440 (1969) .............................................. 13

Presbyterian Church U.S.A. v. Edwards,

---S.W.3d---, No. 2016-SC-000699MR, 2018 WL 4628449

(Ky. Sept. 27, 2018) .............................................. 24

Presbytery of Beaver-Butler of United

Presbyterian Church in U.S. v.

Middlesex Presbyterian Church,

489 A.2d 1317 (Pa. 1985) ............................... 14, 26

Serbian E. Orthodox Diocese for U.S. of

Am. & Canada v. Milivojevich,

426 U.S. 696 (1976) ...................................... Passim

Watson v. Jones,

80 U.S. 679 (1871) ........................................ Passim

xii

STATUTES

28 U.S.C. § 1257 .......................................................... 1

42 Pa. C.S.A. § 7341 .................................................... 8

Pennsylvania Nonprofit Corporation

Law Sections 5553 and 5793(b) ................... 6, 8, 21

OTHER AUTHORITIES

Ashley Alderman, Note, Where’s the

Wall?: Church Property Disputes

Within the Civil Courts and the Need

for Consistent Application of the

Law, 39 GA. L. REV. 1027 (2005) .......................... 28

Jeffrey B. Hassler, Comment, 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 (2008) ...................... 28

Kent Greenwalt, Hands Off! Civil Court

Involvement In Conflicts Over

Religious Property, 98 COLUM. L.

REV. 1843 (1998)................................................... 27

PETITION FOR WRIT OF CERTIORARI

Petitioner, Bishop Kenneth Shelton, respectfully

prays that a writ of certiorari issue to review the

judgment and opinion of the Commonwealth Court of

Pennsylvania, No. 1312 C.D. 2016, filed on November

29, 2017.

OPINION BELOW

The most recent opinion of the highest state

court to review the merits, the Commonwealth Court

of Pennsylvania, is reported at 175 A.3d 442, and

appears at Appendix A (App. 1–15). The

Commonwealth Court’s December 22, 2017 Clarifying

Order appears at Appendix B (App. 16). The denial of

the Application for Rehearing appears at Appendix C

(App. 18). The Supreme Court of Pennsylvania’s

order denying review is reported at 190 A.3d 592 (no

published opinion) (July 31, 2018), and appears at

Appendix D (App. 19).

JURISDICTION

The Commonwealth Court of Pennsylvania

issued the decision for which Bishop Shelton seeks

review on November 29, 2017. (See App. at 1–15.) On

December 13, 2017, Bishop Shelton timely filed an

application for rehearing, which was denied on

January 16, 2018. (See App. at 18.) The Supreme

Court of Pennsylvania denied Bishop Shelton’s timely

Petition for Allowance of Appeal on July 31, 2018.

(See App. at 19.) On October 22, 2018, pursuant to

Rule 13.5, Justice Samuel A. Alito granted Bishop

Shelton’s application to extend the time to file this

petition to and including December 28, 2018. This

Court has jurisdiction under 28 U.S.C. 1257(a).

2

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the United States

Constitution provides, in pertinent part:

Congress shall make no law respecting

an establishment of religion, or

prohibiting the free exercise thereof[.]”

U.S. Const. amend. I.

STATEMENT OF THE CASE

This case always has been and still is about the

efforts of Respondent, Anthoneé Patterson, to have

the civil courts depose the duly elected leader of the

Church, Petitioner, Kenneth Shelton, in favor of

Patterson, who is neither clergy nor a member of the

Church. No civil court has authority to do that. Yet,

that is the result of the decision for review here.

A.

Factual Background as to the Church

1. The Church of the Lord Jesus Christ of the

Apostolic Faith (the “Church”) was founded in 1919

by Bishop S.C. Johnson and its headquarters is

located at “Apostolic Square,” at 22nd and Bainbridge

Streets in Philadelphia, Pennsylvania. The Church’s

organization is hierarchical in nature and has more

than 50 satellite local churches throughout the

continental United States. The “Trustees of the

General Assembly of the Church of the Lord Jesus

Christ of the Apostolic Faith, Inc.” (the “Church

Corporation”) was incorporated as a Pennsylvania

nonprofit corporation in 1947. As an article of faith,

the Church community has one “Bishop” (spiritual

leader for his lifetime) who must be elected as the

General Overseer by the Church body at its annual

General Assembly meeting. The General Overseer is

3

entrusted with the care and custody of the Church’s

property for the good of the Church. Thus, even

though the Church created the Church Corporation

to hold all of the Church’s property in trust for the

benefit of the Church, it has continued to embrace

the special role of the General Overseer with respect

to the Church’s property.1

The Church’s General Overseer, the highest

spiritual and adjudicatory authority in the Church,

manages all of the Church’s affairs. According to the

Church’s Bylaws, and as noted above, the General

Overseer is elected by the General Assembly2 and is

expected to serve for the rest of his life in that office.

(See Bylaws at Article VII; App. at 75–76.) The

Church Corporation’s assets are managed by the

President of the Board of Trustees and the Board of

Trustees. Under the Church’s Bylaws, whoever

serves as the General Overseer of the Church also

serves as the President of the Board of Trustees of

The Church’s Bylaws appear at Appendix H (App. at 72.) The

Church Corporation’s Articles of Incorporation appear at

Appendix I (App. at 82).

1

The “General Assembly” is an annual session of the Church

congregation at which matters of ecclesiastical governance and

doctrine are reviewed and enacted. The General Assembly is

also the name of the congregation. The Church’s Bylaws provide

that “[a]ny session called by the General Overseer shall also be

designated as a general assembly and have all the rights and

powers and authority of the annual general assembly.” (Bylaws

at Article I; id. at 72.) The Bylaws further provide that the

“quorum for the transaction of business before the General

Assembly shall be fifty members voting before matters of the

General Assembly.” (Bylaws at Article IV; id. at 73.)

2

4

the Church Corporation, also for the rest of his life.

(Bylaws at Article XIV; id. at 78.) All other trustees of

the Church Corporation are elected annually, and

they hold their offices until their successors are

elected by the General Assembly. (Id.)

From his election in 1947, Bishop S.C. Johnson

was the General Overseer of the Church and

President of the Board of the Church Corporation.

Following Bishop Johnson’s death in 1961, Bishop S.

McDowell Shelton served as General Overseer and

President of the Board of Trustees of the Church

Corporation. When Bishop S. McDowell Shelton died

in October 1991, a dispute arose over who was the

rightful successor to the office of General Overseer.

2. At the September 1992 annual meeting of the

General Assembly, following a series of internal

disputes, Kenneth Shelton was duly elected General

Overseer by a majority of approximately 5,000

Church members in attendance, in accordance with

the Church’s Articles of Incorporation and its Bylaws.

Since 1992, Bishop Shelton has served as the General

Overseer of the Church and President of the Board of

the Church Corporation. Bishop Shelton has provided

steadfast spiritual leadership and guidance to his

parishioners, who have filled the pews in the

Church’s sanctuary every Sunday for decades. By all

accounts, the Church is a thriving congregation that

has enthusiastically coalesced around Bishop

Shelton, depends on his leadership, and has no wish

to disrupt the harmonious status quo.

3. Patterson is a former member of the Church

who lives in Florida. Patterson was a member of a

minority faction that in 1992 decided to dispute

Bishop Shelton’s proper election to the offices of

5

General Overseer and President of the Church

Corporation.3 Since 1995, Patterson has waged what

can only be described as a crusade against Bishop

Shelton, relentlessly pursuing duplicative and

abusive legal actions across the country in an ongoing

attempt to oust Bishop Shelton and gain control of

the Church, the Church Corporation, and its assets.

B.

Proceedings Below

1. As a result of Patterson’s ceaseless campaign

to seize control of the Church, for nearly a quarter

century the parties have been at odds about Bishop

Shelton’s election as the General Overseer of the

Church, both in and out of the courts. But despite the

numerous procedural twists and turns, for purposes

of this case, this Court need not concern itself with

the entire course of dealing and litigation—the only

Notwithstanding Patterson’s claim to have been duly elected

himself as General Overseer in 1994, that claim was never

sustained, and the courts affirmatively recognized (based on the

record in the litigation) that Bishop Shelton is the duly elected

leader. Moreover, over twelve years ago, on August 31, 2006, the

Church Council of Priests issued a Proclamation declaring that

the Church “will not accept Anthonee Patterson or any of those

who aid, abet or associate with him as members or officers of

this Church, as they have demonstrated that they hold religious

and doctrinal views contrary to our own.” The Proclamation

appears at Appendix J (App. at 86.) Among other significant

religious differences between the Church and Patterson, the

Church recognizes Jesus Christ as the living Son of God, while

Patterson does not; the Church endorses Christmas

celebrations, while Patterson does not; and the Church observes

Easter as the holy recognition of the Resurrection of Jesus

Christ, while Patterson does not.

3

6

matters that are germane are the original complaint

and the 2006 arbitration, the 2008 vacatur of the

arbitration decision as ultra vires, the 2015 dismissal

of the case because the First Amendment deprives

the courts of jurisdiction, and the 2017 decision to

vacate the Commonwealth Court’s 2008 opinion, on

stated jurisdictional grounds.

2. In a 1995 Complaint, Patterson demanded,

inter alia, (1) the appointment of a receiver to take

control of the assets of the Church held by the

Corporate Trustee; (2) an order requiring Bishop

Shelton to issue annual financial reports for the

years 1991 – 1994; (3) an accounting; (4) an order

removing Bishop Shelton and substituting Patterson

as General Overseer; and (5) an order that the

Church hold elections for certain Church offices.4

Issue 4 is at the heart of the instant dispute.

3. In December 2005, after a decade of litigation

in the Pennsylvania courts, the parties submitted

Patterson’s claims under Pennsylvania’s Nonprofit

Corporation Law (“NPCL”) to arbitration. The

Church’s Bylaws are silent on the use of arbitration

or other alternative dispute resolution mechanisms.

But, to attempt to move the then-10-year-old case

forward, Bishop Shelton consented to arbitrate the

NPCL issues. Patterson’s NPCL claims (Issues 1-3

above) were ordered into arbitration and the case was

dismissed.5 From April 2006 to April 2007, the

Patterson’s 1995 Complaint appears at Appendix K (App. at

87).

4

The Court of Common Pleas of Philadelphia County’s January

10, 2006 Order referring Patterson’s 1995 Complaint to

5

7

arbitrator issued a series of adjudications, ultimately

finding that Patterson “acted in harmony with the

laws, usages, and customs of the General Assembly,”

and awarding Patterson the office of President of the

Church Corporation.6 Tacitly acknowledging the First

Amendment’s restrictions on the authority of civil

magistrates, the arbitrator recognized that he could

not displace the Church’s General Overseer, and that

he could adjudicate only matters related to the

operation of the Church Corporation. What the

arbitrator failed to recognize is that the presidency is

an office explicitly reserved, ex officio, to the duly

elected General Overseer of the Church. In effect,

and in violation of Church doctrine, the arbitrator

transferred control of the Church’s assets and

property to a non-member of the Church who was

never elected to any such office by the Church’s

officers. That non-member was Patterson.

4. The parties had agreed that a final

determination in the arbitration would not be subject

to review except on the limited statutory grounds set

forth under Pennsylvania law for common law

arbitrations, including whether the arbitrator had

exceeded his authority.7 Bishop Shelton petitioned to

arbitration appears at Appendix E (App. 20.) See also note 7,

infra.

The April 26, 2006 Arbitration Adjudication appears at

Appendix L (App. 99–118).

6

Under Pennsylvania law, common law arbitration awards may

not be vacated “unless it is clearly shown that a party was

denied a hearing or that fraud, misconduct, corruption or other

irregularity caused the rendition of an unjust, inequitable or

7

8

vacate the arbitration adjudication on that ground,

explaining to the court that the arbitrator’s authority

did not extend to the governance of the Church or the

Church Corporation, both in fact and as a matter of

law, especially given the protected religious nature of

the question of Church leadership. In January 2008,

the Commonwealth Court of Pennsylvania agreed

with Bishop Shelton and vacated the arbitration

adjudications as ultra vires. The court further

ordered that Patterson’s claims under the NPCL be

remanded for trial. See Patterson v. Shelton, Nos.

1967 C.D. 2006, 1968 C.D. 2006, 2008 WL 9401359,

(Pa. Commw. Ct. Jan. 31, 2008) (Patterson I, or the

“2008 Opinion”); App. at 34–43.8 In so ruling, the

court explained that “the only relief obtainable [in

the arbitration], if Patterson prevailed . . . was the

relief he sought pursuant to Sections 5553 and

5793(b) of the Nonprofit Corporation Law. . . [which

was] an accounting for the years [1991 to 1994], and

a determination as to whether Kenneth Shelton had

misappropriated assets during that time period and

an order requiring Kenneth Shelton to issue financial

unconscionable award.” 42 Pa. C.S.A. § 7341. A common law

arbitration award may also be vacated, where, as here, “the

arbitrator exceeds the scope of his authority.” Jefferson

Woodlands Partners, L.P. v. Jefferson Hills Borough, 881 A.2d

44, 48 (Pa. Commw. Ct. 2005).

8

The 2008 Opinion appears at Appendix F (App. 22–43).

9

reports for the years [1991 to 1994].” See Patterson I,

App. at 35–36.9

5. On remand to the trial court, Bishop Shelton

renewed his motion to dismiss Patterson’s claims for

lack of subject matter jurisdiction, on the ground that

resolution of Patterson’s NPCL claims would

impermissibly entangle the court in ecclesiastical and

doctrinal matters. The trial court agreed and

dismissed the complaint and, in December 2015, the

Commonwealth Court affirmed that ruling. See

Patterson v. Shelton, No. 2147 C.D. 2014, 2015 WL

9260536 (Pa. Commw. Ct. Dec. 18, 2015) (Patterson

II, or the “2015 Opinion”) (App. at 58–71).10 Patterson

proceeded to exhaust all available appeals of the 2015

Opinion, effectively disposing of any and all

remaining claims and fully and finally concluding the

litigation. See Patterson v. Shelton, 137 S.Ct. 297

(Oct. 11, 2016) (denying Patterson’s petition for writ

of certiorari of the 2015 Opinion). Or, at least, so

Bishop Shelton thought.

C.

The Commonwealth Court’s 2017 Opinion

1. In May 2016, Patterson filed a motion with the

trial court on the closed docket of the original (twice

dismissed and terminated) case, seeking to strike the

Commonwealth Court’s 2008 Opinion and order

vacating the arbitration adjudications. The trial court

Patterson exhausted his appeals of the 2008 Opinion. See

Patterson v. Shelton, 963 A.2d 471 (Pa. Oct. 14, 2008) (denying

9

Patterson’s petition for allowance of appeal of 2008 Opinion.)

10

The 2015 Opinion appears at Appendix G (App. 44–71).

10

denied Patterson’s motion. But then, in November

2017, the Commonwealth Court reversed the trial

court, and struck its own ten-year-old order holding

that the First Amendment deprives the courts of

jurisdiction. See Patterson v. Shelton, 175 A.2d 442,

449–50 (Pa. Commw. Ct. 2017) (Patterson III, or the

“2017 Opinion”) (App. 13–15).

2. Rather than simply dismiss the entire case

again as an unconstitutional exercise, the

Commonwealth Court resurrected the vacated

arbitration award, retroactively validating the

award, but not the vacatur of the same award that it

had ordered on statutory grounds in 2008. Id. If no

court had the juridic authority to entertain a case

about selecting a religious leader, the parties never

would have agreed to submit the matter to

arbitration, because the entire case was barred at the

outset. Specifically, as the Commonwealth Court

correctly reasoned in its holding below (id.):

[A]fter the arbitrator ruled in

Patterson’s favor, . . . this Court

reversed the trial court’s decision,

vacated the arbitration award, and

remanded to the trial court for further

proceedings related to these [NPCL]

claims. However, because this Court

affirmed the trial court’s decision

concluding that it lacked subject

matter jurisdiction over his remaining

[NPCL] claims on the basis that

resolution of the same would require

the trial court to interpret religious

doctrine, something it was prohibited

from

doing

under

the

First

11

Amendment, any prior decisions

relating to the same are null and void.

If the court below had stopped there, then the result

and the rationale would both have been correct. But,

in a befuddling subsequent passage of its opinion,

the court made a remarkable about-face, holding

(id.):

As a result, the only valid,

remaining determination in this case

is the binding arbitration award, as

agreed to by the parties in November

2005, and confirmed by the trial court.

As noted above, the trial court, by

order dated July 10, 2006, confirmed

the arbitrator’s award and entered

judgment in favor of Patterson and

against Shelton. Thus, Patterson’s

remedy lies with enforcement of that

judgment.

3. Patterson has interpreted the 2017 Opinion

and the Commonwealth Court’s December 22, 2017

Clarifying Order (App. 16) as permitting him to

execute retroactively upon the award of the Church

Corporation’s presidency in 2006, and he has

attempted to seize control of the Church and transfer

the Church’s property to himself.11 As a result—and

As set forth above, Bishop Shelton applied for both

reargument with the Commonwealth Court and review to the

Pennsylvania Supreme Court, but both applications were

denied. He has also challenged the renewal of proceedings in the

trial court and the denial of that relief is on appeal to the

Commonwealth Court.

11

12

despite having been otherwise victorious over the

course of this litigation—Bishop Shelton and the

Church he has led since 1992 are facing the very real

possibility that they could lose the Church to

Patterson.

REASONS FOR GRANTING THE PETITION

Although this decades-long litigation has a

lengthy, labyrinthine history with dozens of twists

and turns, the core dispute has always been a simple

one: whether Patterson can use the civil courts to

depose Bishop Shelton and transfer control of the

Church to himself. But though the answer to that

question should be straightforward under this

Court’s First Amendment jurisprudence—that courts

lack the subject matter jurisdiction or competence to

adjudicate

such

ecclesiastical

disputes—the

application of that doctrine in the federal and state

courts has not been clear. These profound

constitutional issues are central to church autonomy

and governance and to the centuries-old bedrock

principle that civil courts cannot encroach upon those

areas of protected free exercise. This case therefore

presents a rare opportunity for the Court to clarify its

rulings, provide guidance to the lower courts on

issues of widespread importance, and reconcile

disparate, inconsistent views on whether, when, and

how courts can enter the religious thicket.

13

A.

The Court Should Grant Certiorari To

Determine Whether The First Amendment

Bars Civil Courts From Adjudicating Disputes

About Who Is the Rightful Leader Of A

Church, When The Leader Was Duly Elected

According To That Church’s Ecclesiastical

Doctrine.

1. Recognizing that “the First Amendment

prohibits civil courts from resolving church property

disputes on the basis of religious doctrine or

practice,” the Court sanctioned a “neutral principles”

approach for resolving religious property disputes in

Jones v. Wolf. 443 U.S. at 602 (citing Serbian E.

Orthodox Diocese for U.S. of Am. & Canada v.

Milivojevich, 426 U.S. 696, 710 (1976); Maryland &

Virginia Eldership of Church of God v. Church of God

at Sharpsburg, Inc., 396 U.S. 367, 368 (1970);

Presbyterian Church in U.S. v. Mary Elizabeth Blue

Hull Mem. Presbyterian Church, 393 U.S. 440, 449

(1969)). The Court set forth a “general outline” for

application of neutral principles that permits courts

to examine “the language of the deeds, the terms of

the local church charters, the state statutes

governing the holding of church property, and the

provisions in the constitution of the general church

concerning ownership and control of church

property.” Id. at 602–03. The Court also explained

that application of neutral principles:

requires a civil court to examine

certain religious documents, such as a

church constitution, for language of

trust in favor of the general church. In

undertaking such an examination, a

civil court must take special care to

14

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. In addition, there may be cases

where the deed, the corporate charter,

or the constitution of the general

church incorporates religious concepts

in the provisions relating to the

ownership of property. If in such a

case the interpretation of the

instruments of ownership would

require the civil court to resolve a

religious controversy, then the court

must defer to the resolution of the

doctrinal issue by the authoritative

ecclesiastical body.

Id. at 604 (citing Serbian Orthodox, 426 U.S. at 709).

Thus, the Court allowed state courts to adopt a

neutral-principles approach to resolving church

property disputes, to the extent it is “consistent with

the foregoing constitutional principles.” Id. at 602.

But, when in the course of such review a court

encountered a religious issue, it was supposed to

defer to the church’s decision. Id. at 604.

Pennsylvania is a neutral-principles state but it

follows a deference rule whenever a neutral review

collides with a religious question. See, e.g., Connor v.

Archdiocese of Philadelphia, 975 A.2d 1084, 1095–96

(Pa. 2009); Presbytery of Beaver-Butler of United

Presbyterian Church in U.S. v. Middlesex

Presbyterian Church, 489 A.2d 1317, 1323 (Pa. 1985).

Importantly, the religious question does not have to

15

be Biblical or eschatological but can be something as

basic as who is a faithful member or duly elected

leader, as long as such issues are infused with

religious meaning by the community of faith. See

Patterson II, App. at 69 (“The Rules and the By-Laws

of [the Church] make it clear that the Appellee as the

General Overseer of the Church, is the highest

spiritual leader in the church and has absolute

discretion to make decisions regarding the use of

Church funds.”).

As the quoted passage above from Wolf makes

clear, the stated goal of neutral-principles review is

to allow courts and churches to review and resolve

property disputes consistently and in accord with, not

contrary to, a Church’s beliefs. There is tension in

these issues, not just between Wolf and Serbian

Orthodox, but also in how to draw lines between the

religious and the secular, which is evident in the

confused and inconsistent application of these rules

in the Commonwealth Court’s own decisions below.

2. While Patterson’s original 1995 Complaint has

faded from view, the relief he seeks has been the

same from the outset—Patterson wants the

Pennsylvania courts to replace Bishop Shelton as

General Overseer of the Church and President of the

Board of the Church Corporation. (See Patterson’s

1995 Complaint, App. at 97.) As this Court first

recognized more than 150 years ago in Watson v.

Jones, no court is competent to replace the head of a

Church. 80 U.S. 679, 726 (1871) (“The rule of action

which should govern the civil courts . . . is, that,

whenever the questions of discipline, or of faith, or

ecclesiastical rule, custom, or law have been decided

by the highest of these church judicatories to which

16

the matter has been carried, the legal tribunals must

accept such decisions as final, and as binding on

them, in their application to the case before them.”).

As explained above, in the year following Bishop

S. McDowell Shelton’s death in 1991, a majority of

the General Assembly of approximately 5,000 Church

members elected Kenneth Shelton as their General

Overseer. When he was confirmed as General

Overseer, Bishop Shelton automatically became

President of the Board of the Church Corporation

under the Bylaws. (See Bylaws at Article XIV, App.

at 78.) In the lawsuit he filed against Bishop Shelton

in 1995, Patterson sought to undo these valid

General Assembly election results. Patterson claimed

in his 1995 Complaint, among other things, that

Bishop Shelton had violated several provisions of the

NPCL and, consequently, he ought to be replaced as

General Overseer (not corporate president) by

Patterson. (See App. at 97.)

When the parties agreed to submit Patterson’s

NPCL claims to arbitration in January 2006, the only

issues before the arbitrator were whether there

should be an accounting of the Church Corporation’s

financial dealings from 1991 to 1994, whether Bishop

Shelton misappropriated assets during that time

period, and whether Bishop Shelton should be

ordered to issue financial reports for 1991 to 1994.

See Patterson I, App. at 35–36. The parties plainly

could consent to arbitration of those claims under the

rubric of “neutral principles” described above. The

arbitrator, of course, clearly went beyond that scope,

ordering the removal of the control of Church assets

and property from the current Board of Trustees and

17

Bishop Shelton and into Patterson’s hands. Id. at 36–

38.

3. The Commonwealth Court is wrong about the

nature of the constitutional objection and its role in

the application of “neutral principles” under Wolf.

The court had previously recognized that the 2006

arbitration adjudications were ultra vires under a

neutral statutory principle, and that no court could

properly adjudicate the underlying issues about

leadership and succession. Id.; see also Patterson II,

App. at 58–71 (applying deference to the issue of

succession even though Pennsylvania is a “neutral

principles” state). But the 2017 Opinion eviscerates

the neutral principles regime by holding that,

because it was required to defer to the Church’s

ecclesiastical doctrine under the First Amendment,

no court could rule on the validity of the 2006

arbitration adjudications. According to the 2017

Opinion, therefore, the trial court orders confirming

those adjudications are the “last valid judgments in

this case.” Patterson III, App. at 15. That such

contradictory results could obtain under the same set

of constitutional principles is an issue warranting

review by this Court.

That language in the Commonwealth Court’s

2017 Opinion appears to put the parties back where

they were immediately after the arbitrator’s ultra

vires adjudications, with Patterson—a non-member—

attempting to wrest control of the Church and its

property away from its duly elected General

Overseer, Bishop Shelton, through enforcement of the

arbitration adjudications by the Pennsylvania courts,

in violation of the Church’s Bylaws, which (1)

mandate that the General Overseer control the

18

Church’s property, as President of the Church

Corporation; and (2) provide explicitly that the

Church Corporation holds the Church’s property in

trust for the benefit of the Church and its members.

See Patterson III, App. at 13–15.

4. What led both the arbitrator and the court

below astray is the lack of clarity about the

application of Wolf and Serbian to resolve property

claims without contradicting doctrinal rules.

Fundamentally, the arbitrator’s orders and the 2017

Opinion purporting to retroactively resurrect them

violate both the Free Exercise Clause and the

Establishment Clause of the First Amendment. See

Kedroff v. St. Nicholas Cathedral of Russian

Orthodox Church in Am., 344 U.S. 94, 106–08 (1952)

(statute purporting to transfer control of New York

cathedral church from central governing hierarchy to

opposing faction violated the Free Exercise Clause).

It is settled law that “the decisions of the proper

church tribunals on matters purely ecclesiastical,

although affecting civil rights, are accepted in

litigation before the secular courts as conclusive.”

Gonzalez v. Roman Catholic Archbishop of Manila,

280 U.S. 1, 16 (1929). Wolf is to the same effect. 443

U.S. at 602 (“[T]he [First] Amendment requires that

civil courts defer to the resolution of issues of

religious doctrine or polity by the highest court of a

hierarchical church organization.”) (citing Serbian

Orthodox, 426 U.S. at 724–25 and Watson v. Jones,

80 U.S. 679, 733–34 (1871)). The contrary conclusion

below turns settled principles of this Court’s First

Amendment jurisprudence on their heads, while

paying mere lip service to their application.

19

B.

The Court Should Grant Certiorari To Resolve

The Split In Authority In The Lower Courts

Over Whether Church Autonomy Principles

Act As A Jurisdictional Bar Or An Affirmative

Defense.

The decision below also magnifies and

exacerbates the split in the lower courts concerning

whether the church autonomy doctrine12 operates as

a jurisdictional bar or as a (potentially) waivable

affirmative defense. In its 2017 Opinion, the court

below appears to have focused on the parties’

agreement to arbitrate Patterson’s NPCL claims

“with no right to appeal.” Patterson III, App. at 14.

The Commonwealth Court explained that, when the

trial court ordered certain issues to arbitration in

January

2006

and

dismissed

the

case,

“[n]evertheless, after the Arbitrator ruled in

Patterson’s favor, Shelton filed a petition to vacate

the arbitration award with the trial court.” Id. Thus,

the court continued, “the only valid, remaining

determination in this case is the binding arbitration

award, as agreed to by the parties in November 2005,

and confirmed by the trial court.” Id. The court

ignored the application of Pennsylvania law to the

arbitration in 2008 (a neutral principle), and any

objections to the substitution of leaders (in violation

of the Church’s own rules) as a form of (waivable)

Illustrative of the confusion, in some jurisdictions, the “church

autonomy doctrine” is referred to instead as the “religious

autonomy doctrine,” the “deference rule,” or “ecclesiastical

abstention.” The terms are used interchangeably; consequently,

this petition does as well.

12

20

affirmative defense, rather than a (non-waivable)

jurisdictional bar. The court appeared implicitly to

rule that, once the case was referred to arbitration,

all objections on all issues disappeared in

Pennsylvania.

But that ruling is sharply contradicted by the

general principle that a party’s ability to raise a

fundamental constitutional bar is never waived,

because it goes to the scope of a court’s authority and

competence to decide disputes consistent with the

First Amendment. See, e.g., Lee v. Sixth Mt. Zion

Baptist Church of Pittsburgh, 903 F.3d 113, 118 n.4

(3d Cir. 2018) (recognizing that the ministerial

exception affirmative defense is not waivable because

it is “rooted in constitutional limits on judicial

authority”); Conlon v. InterVarsity Christian

Fellowship, 777 F.3d 829, 836 (6th Cir. 2015)

(explaining that a “constitutional protection is not a

personal one; it is a structural one that categorically

prohibits federal and state governments from

becoming

involved

in

religious

leadership

disputes.”).13 Indeed, since Watson v. Jones, when

In fact, absent legislation, it is unconstitutional even to apply

generally accepted administrative and secular rules

involuntarily to a church that does not embrace them itself. See

Patterson II, App. at 67 (citing Bible Way Church of Our Lord

13

Jesus Christ of the Apostolic Faith of Washington, D.C. v.

Beards, 680 A.2d 419, 430–431 (D.C. 1996) (“Because the

complaint does not adequately allege indisputable, universally

applicable rules of accounting and financial reporting, the trial

court could not have had subject matter jurisdiction unless the

church itself had formally adopted the particular standards the

[plaintiffs] seek to enforce through civil court action.”.) Nothing

in the Church’s Bylaws provides for disputes to be decided by

21

this Court has addressed the issue directly, it tends

to treat a violation of a church’s core governance as a

threshold jurisdictional issue. Most, but not all, lower

courts across the country—including the Supreme

Court of Pennsylvania—similarly hold that, because

it is rooted in a civil court’s constitutional

competence, deference is a result of a threshold

jurisdictional inquiry whether civil courts are

competent to hear religious disputes. See, e.g.,

Connor, 975 A.2d at 1095–96; Church of God in

Christ, Inc. v. L.M. Haley Ministries, Inc., 531

S.W.3d 146, 156–58 (Tenn. 2017); Greater Fairview

Missionary Baptist Church v. Hollins, 160 So.3d 223,

232–33 (Miss. 2015); Bilbrey v. Myers, 91 So.3d 887,

890–91 (Fla. Dist. Ct. App. 2012). Accordingly, since

a jurisdictional bar can be raised at any time, it

cannot be waived.

Yet, other lower courts have made the same

mistake the Commonwealth Court of Pennsylvania

way of arbitration or mediation. (See generally Bylaws, App. at

72–81.) Consequently, Bishop Shelton’s assent was required to

submit the issue of whether he should remain as General

Overseer to the arbitrator—assent that he did not give, as the

Commonwealth Court recognized in its 2008 Opinion. See

Patterson I, App. at 35–36 (“[T]he only relief remaining that

was obtainable [in the arbitration], if Patterson prevailed, when

this matter was reinstated was the relief he sought pursuant to

Sections 5553 and 5793(b) of the Nonprofit Corporation Law. . . .

[which were] an accounting for the years [1991 to 1994], and a

determination as to whether Kenneth Shelton had

misappropriated assets during that time period and an order

requiring Kenneth Shelton to issue financial reports for the

years [1991 to 1994].”).

22

appears to have made, treating the deference rule as

an affirmative defense that could possibly be waived,

rather than a jurisdictional bar that never could be.

The lower courts’ confusion stems from a misreading

of this Court’s opinion in Hosanna-Tabor Evangelical

Lutheran Church & School v. E.E.O.C., where the

Court opined in a footnote (on a question not

presented or briefed in the case) that the ministerial

exception “operates as an affirmative defense to an

otherwise cognizable claim, not a jurisdictional bar

[because] the issue presented by the exception is

whether the allegations the plaintiff makes entitle

him to relief, not whether the court has power to hear

the case.” 565 U.S. 171, 195 n.4 (2012) (citation and

internal quotation and alteration omitted). Properly

understood, that ruling does not allow a civil court to

substitute one church leader for another or compel a

church to accept someone whom the community itself

has rejected. While the majority of lower courts have

not conflated the ministerial exception’s application

as an affirmative defense with the church autonomy

doctrine’s jurisdictional bar, several others courts

have, presenting a square split in authority and

threatening religious autonomy through civil

litigation, just as the Commonwealth Court’s 2017

Opinion has below.

Recently, for example, the District Court in

Hubbard v. J. Message Grp. Corp. highlighted the

confusion among the lower courts as to whether the

church autonomy doctrine functions as an affirmative

defense or a jurisdictional bar. 325 F. Supp. 3d 1198,

1208–09 (D.N.M. 2018). “On one hand, several courts

continue to rely on Watson and Milivojevich (which

were discussed approvingly in Hosanna-Tabor) for

23

the proposition that the church autonomy doctrine

precludes a court’s subject matter jurisdiction over

ecclesiastical matters.” Id. (collecting cases). Relying

instead, however, on the Tenth Circuit Court of

Appeals’ opinion in Bryce v. Episcopal Church in the

Diocese of Colo., 289 F.3d 648 (10th Cir. 2002), and

the New Mexico Court of Appeals’ opinion in Celnik

v. Congregation B’Nai Israel, 131 P.3d 102 (N.M. Ct.

App. 2006)—as well as the Court’s citation with

approval to Bryce in Hosanna-Tabor—the Hubbard

court concluded that “under the particular

circumstances of this case—in which Plaintiff’s

claims . . . are premised [ ] on [defendant’s]

communications . . . about the state of Plaintiff’s

soul—that Defendant’s church autonomy argument

actually challenges this Court’s jurisdiction in the

manner of Watson and its progeny.” Id. at 1209.

“Nevertheless,” the court continued, “insofar as it is

reasonable to assume (if not decide) that the

Supreme Court’s citation to Bryce in footnote 4 of the

Hosanna-Tabor decision reflects the Supreme Court’s

implicit determination that the church autonomy

doctrine, like the ministerial exception, operates as

an affirmative defense; and considering that the

Defendants have raised and briefed the issue in a

motion to dismiss under Rule 12(b)(6), the Court

shall analyze the matter accordingly.” Id. Although

the Hubbard court ultimately reached the correct

result—that it lacked subject matter jurisdiction over

the religious dispute—its analysis predicated upon

guesswork about the reach of footnote 4 in the

24

Court’s Hosanna-Tabor opinion underscores the

uncertainty among courts about how to apply the

church autonomy doctrine and the need for

intervention by this Court.14

The Supreme Court of Tennessee likewise

emphatically expressed its uncertainty concerning

whether to apply the ecclesiastical abstention

doctrine (another name for “church autonomy”) as an

affirmative defense or a jurisdictional bar in Church

of God in Christ, Inc. v. L.M. Haley Ministries, Inc.,

531 S.W.3d 146 (Tenn. 2017). There—after a survey

of several lower court decisions in a subsection of its

opinion entitled “The Ecclesiastical Abstention

Doctrine: Subject Matter Jurisdictional Bar or

The Supreme Court of Oklahoma also viewed the church

autonomy doctrine as an affirmative defense rather than a

jurisdictional bar, based on a similar reading of the Court’s

citation to Bryce in Hosanna-Tabor. See Doe v. First

Presbyterian Church U.S.A. of Tulsa, 421 P.3d 284, 291 n.11

(Okla. 2017.) The Oklahoma Supreme Court’s opinion is the

subject of a petition for a writ of certiorari currently pending

before the Court. And the Supreme Court of Kentucky decided

similar cases in opposite directions applying the ministerial

exception on whether to dismiss or allow a case into discovery.

Compare Kirby v. Lexington Theological Seminary, 426 S.W.3d

597, 602 (Ky. 2014) (adopting the ministerial exception but

ruling that, despite ministerial relationship with employee,

employment contract precluded summary judgment) with

Presbyterian Church U.S.A. v. Edwards, ---S.W.3d---; No. 2016SC-000699-MR, 2018 WL 4628449, at *3 (Ky. Sept. 27, 2018)

(reversing trial court’s broad grant of discovery and holding that

the trial court is only authorized to conduct the limited

discovery necessary to determine whether the ministerial

exception or ecclesiastical abstention doctrine bars the case).

14

25

Affirmative Defense?”—the court explained that this

Court cited Watson with approval in Hosanna-Tabor,

and “[n]o language in Hosanna-Tabor alters the wellestablished principle stated in Watson that civil

courts have no jurisdiction over matters purely

ecclesiastical in character.” Id. at 156–58. Reaching

the opposite conclusion from that of the Hubbard

court, however, the Church of God court held that

“until and unless the United States Supreme Court

declares otherwise, the ecclesiastical abstention

doctrine, where it applies, functions as a subject

matter jurisdictional bar” that can be invoked at any

time. Id. at 158–59.

If the church autonomy principle, under its

various names, operates as a threshold jurisdictional

issue that concerns the court’s power to hear the

case, then Bishop Shelton could never have waived

his jurisdictional defenses to Patterson’s 1995

Complaint, and the trial court never had the

authority to issue any order, including the January

10, 2006 Order referring the matter to arbitration.

Thus, when the Commonwealth Court determined in

its 2015 Opinion that neither the trial court nor any

other Pennsylvania court has subject matter

jurisdiction over the dispute(s) at issue, every order

in this case was void as having been issued without

jurisdiction, including the arbitration order. That the

Commonwealth

Court

in

2017

reached

a

contradictory (and erroneous) conclusion under both

Pennsylvania law and the decisions of this Court lays

bare the square split in authority and doctrinal

uncertainty about whether Hosanna-Tabor altered

the principles in Wolf and Serbian Orthodox. Plainly,

the courts are divided on whether objections rooted in

26

constitutional competence are an affirmative defense

or a jurisdictional bar. Only this Court can resolve

that issue, and the instant case is a uniquely suitable

vehicle for it to do so.

C.

The Court Should Grant Certiorari To Revisit

And Clarify Its Ruling In Jones v. Wolf To

Address Federal And State Courts’

Inconsistent Application Of Its Holding.

1. The Commonwealth Court’s 2017 ruling

demonstrates the uncertainty in the lower courts

over the proper application of the Court’s ruling in

Jones v. Wolf. In the more than three decades since

the Wolf decision, state and federal courts have heard

scores of church property disputes. But regardless of

whether the dispute occurs in a jurisdiction applying

the “neutral principles” approach, the “polity”

approach, or a hybrid of the two, inconsistent results

abound, even on identical sets of facts.

Indeed, the Commonwealth Court’s opinion

below is a prime example. As noted above, the

Supreme Court of Pennsylvania adopted the neutralprinciples approach for church property disputes in

1985, in its opinion in Presbytery of Beaver-Butler of

United Presbyterian Church in U.S. v. Middlesex

Presbyterian Church, 489 A.2d 1317 (Pa. 1985). The

NPCL claims in the case were referred to arbitration

and, applying a neutral statutory principle, the

arbitrator’s awards were vacated. It was not until

November 2014—almost 20 years after Patterson

filed his 1995 Complaint—that the Pennsylvania

courts finally (if only provisionally given the 2017

Opinion) determined that any adjudication of

Patterson’s core complaint about leadership would

27

require the courts to construe the Church’s religious

doctrine

concerning

the

General

Overseer’s

ownership of Church property under the Church’s

governing documents, as well as the powers granted

to the General Overseer as President of the Board of

the Church Corporation. See Patterson II, App. at

62–71. As a result, in 2015, the Commonwealth Court

held that Patterson’s core claims could not be

adjudicated using neutral principles, and it affirmed

the trial court’s opinion dismissing the action for lack

of subject matter jurisdiction. See id.

The Pennsylvania courts failed to address

whether they could adjudicate Patterson’s 1995

Complaint using neutral principles of law for almost

twenty years. But if they had done so—as Bishop

Shelton urged and as is the court’s duty if the church

autonomy doctrine operates as a jurisdictional bar—

then this decades-long litigation could potentially

have been avoided. Instead, Bishop Shelton is faced

with a situation where the Commonwealth Court

has, in the name of that same neutrality principle,

and despite the lack of subject matter jurisdiction

over Patterson’s claims, decided it can retroactively

resurrect certain prior orders and judgments in the

case, but not others. The cause of this problem is

fairly traceable to the absence of more definitive

doctrinal guidance from this Court.

2. The inconsistent application of Jones v. Wolf in

the lower courts has attracted considerable scholarly

attention. See, e.g., Kent Greenwalt, Hands Off! Civil

Court Involvement In Conflicts Over Religious

Property, 98 COLUM. L. REV. 1843, (1998) (explaining

that the

significant

neutral-principles approach “reveals

variance in judicial attitudes, and

28

suggests how variable the results in similar cases

may be under courts employing neutral principles in

different ways”); Jeffrey B. Hassler, Comment, 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 (2008) (“While the particular

promises of the Jones majority may have been

fulfilled . . . the 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.”);

Ashley Alderman, Note, Where’s the Wall?: Church

Property Disputes Within the Civil Courts and the

Need for Consistent Application of the Law, 39 GA. L.

REV. 1027, 1029 (2005) (“Because the Court has left

much freedom to the states, one state court might

award church property to the general church, while

another state court, working under a similar factual

situation, might award the property to the local

church.”).

As these scholarly articles have elucidated, lower

courts applying neutral principles often reach

differing results on similar (if not identical) facts. The

inconsistent results in the cases involving the schism

in the Episcopal Churches is a paradigmatic example

of the doctrinal disarray. For example, in Masterson

v. Diocese of Northwest Texas, a local Episcopal

church voted to disassociate from the national

Episcopal Church. 422 S.W.3d 594, 598–99 (Tex.

2013), cert. denied, 135 S. Ct. 435 (2014). In doing so,

the local church also voted to revoke any trusts that

may have existed in favor of the national church. Id.

The local church’s real property was titled in its

29

name; nevertheless, the national Episcopal church

claimed that one of its governing religious tenets—

the Dennis Canon—imposed an irrevocable trust in

the national church’s favor for the local church’s

property. Id. at 610–11. The Supreme Court of Texas,

while acknowledging that several others states’ high

courts hold that “an express trust canon like [the

Dennis Canon] precludes the disassociating majority

of a local congregation from retaining local parish

property after voting to disaffiliate from the

Church,”15 held instead that “[w]e do not read Jones

as purporting to establish substantive property and

trust law that state courts must apply to church

property disputes.” Id. at 611–12.16 Thus, even

though the national Episcopal Church’s sincerely

held religious beliefs (in the form of canon law)

prohibited the local church from revoking property

rights bestowed by the irrevocable trust embodied in

the national church’s religious law, the court ruled

that “[t]he Episcopal Leaders do not cite Texas law to

support their argument that under the record before

us [the local church] corporation was precluded from

See, e.g., The Episcopal Church in the Diocese of Conn. v.

Gauss, 28 A.3d 302 (Conn. 2011); In re Episcopal Church Cases,

198 P.3d 66 (Cal. 2009); Episcopal Diocese of Rochester v.

Harnish, 899 N.E.2d 920 (N.Y. 2008); In re Church of St. James

the Less, 888 A.2d 795 (Pa. 2005); Bishop & Diocese of Colo. v.

Mote, 716 P.2d 85 (Colo. 1986) (en banc).

15

As the Supreme Court of Virginia recognized infra, the

national Episcopal church enacted the Dennis Canon and

established express trusts for the property of the local parishes

in favor of the national denomination in response to the Court’s

opinion in Wolf.

16

30

revoking any trusts actually or allegedly placed on its

property.” Id. at 612. Simply put, the Supreme Court

of Texas concluded that application of Wolf and

neutral principles permitted a result that was

contrary to the church’s religious doctrine and its

sincerely held beliefs.

The Supreme Court of Virginia, in contrast, on a

nearly identical set of facts, reached the opposite

conclusion in Falls Church v. Protestant Episcopal

Church in U.S., 740 S.E.2d 530 (Va. 2013), and held

that the national Episcopal church’s canon law

established a trust in favor of the national church.

There, like the local church in Masterson, the local

church held title to its real property. Falls Church,

740 S.E.2d at 534. And, like the local church in

Masterson, the local church voted to disaffiliate with

the national Episcopal church. Id.

The Supreme Court of Virginia, recognizing that

the national Episcopal church had codified the

Dennis Canon in response to this Court’s opinion in

Wolf, held “we need look no further than the Dennis

Canon to find sufficient evidence of the necessary

fiduciary relationship” to support the express trust in

favor of the national Episcopal church as it relates to

the local church’s property. Id. at 539–40.17

Two decades earlier, the Supreme Court of Colorado in Bishop

and Diocese of Colorado v. Mote, highlighted the state courts’

17

difficulties with determining whether an express trust existed

in favor of the national church in the wake of the Court’s

opinion in Wolf: “On facts similar to those now before us, other

courts have found a trust relationship or some other legal

relationship divesting the local church of control of its property

31

2. Although these disparate opinions represent

only a tiny fraction of the lower courts’ inconsistent

and contrary application of Wolf, they are emblematic

of the need for this Court to clarify its ruling in that

case. The Masterson court concluded that, despite the

national church having enshrined in its religious law

its intent to create an express trust in the local

property favoring it (as this Court had recommended

in Wolf), that it was nonetheless insufficient under a

neutral-principles review to have done so. The Falls

Church court, on the other hand, applying Wolf and

the same “neutral principles,” reached the exact

opposite conclusion on an identical set of factual

circumstances. Most important for purposes of this

case, however, the Commonwealth Court has likewise

reached inconsistent results within the same case

while applying Wolf. The court concluded in its 2015

Opinion that it could not adjudicate Patterson’s

claims without interfering with the Church’s

autonomy. But then, in its 2017 Opinion, it held that

application of Wolf could mean that Patterson could

enforce arbitration adjudications that purport to

replace Bishop Shelton as leader of his Church, even

though he was duly elected according to the Church’s

governing documents. As the Court knows, and as

explained above, no civil court can do that. The Court

should therefore grant Bishop Shelton’s petition to

based upon a neutral-principles analysis.” 716 P.2d at 109

(citing eight cases from different states.) “As well, other courts

have applied a neutral principles analysis to more or less

similar facts and have not found a trust relationship.” Id. (citing

six cases from different states).

32

correct this obvious misapplication of Wolf and to

remedy the uncertainty surrounding the application

of its opinion in the lower courts.

CONCLUSION

The Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

Mark E. Chopko

STRADLEY RONON STEVENS &

YOUNG, LLP

1250 Connecticut Ave. N.W.

Suite 500

Washington, D.C.

20036-2652

(202) 419-8410

mchopko@stradley.com

Danielle Banks

Counsel of Record

Adam D. Brown

Brandon M. Riley

STRADLEY RONON STEVENS

& YOUNG, LLP

2005 Market Street

Suite 2600

Philadelphia, PA 19103

(215) 564-8116

dbanks@stradley.com

Counsel for Petitioner Bishop Kenneth Shelton

December 28, 2018