Petitioners Reply Brief — Jones v. Wolf

FOR ARGUMBNE

Supreme Court, U. 8.

FILED

JAN 4 1979

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IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM 1978

No. 78-91

R. W. JONES, SR., et al.,

Petitioners,

v.

CHARLES T. WOLF, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA

PETITIONERS’ REPLY BRIEF

E. BARRETT PRETTYMAN, JR.

ALLEN R. SNYDER

WALTER A. SMITH, JR.

CAROL ANNE MUTTER

815 Connecticut Avenue,

N.W.

Washington, D.C. 20006

JOHN B. HARRIS, JR.

T. REESE WATKINS

1200 Georgia Power Building

Macon, Georgia 31201

H. T. O’NEAL, JR.

1001 American Federal

Building

Macon, Georgia 31201

Attorneys for Petitioners

.

TABLE OF CONTENTS

1. Determination of the Identity of the True

Congregation of VPC Is Necessary in

Order To Resolve This Dispute

2. The Watson-Serbian Deference Rule Is

Constitutionally Required..........................

8. PCUS Is a Hierarchical Church, and Thus

— Watson - Serbian Rule Is Applicable

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ii

TABLE OF AUTHORITIES

Adickes v. Adkins, 264 S.C. 394, 215 S.E.2d

442, cert. denied, 423 U.S. 913 (1975)............

Gonzales v. Archbishop, 280 U.S. 1 (19299

Kedroff v. Saint Nicholas Cathedral, 344 U.S.

D acc vastiuhdasNshanvaideseeieon

Maryland and Virginia Eldership of the

Churches of God v. Church of God at Sharp-

sburg, 249 Md. 650, 241 A.2d 691 (1968),

vacated and remanded, 393 U.S. 528, rea/-

firmed, 254 Md. 162, 254 A.2d 162 (1969),

appeal dismissed, 396 U.S. 367 (1970) ..........

Mills v. Baldwin, 362 So, 2d 2 (Fla. 1978)

Mills v. Baldwin, Civ. Action No. 73-100

r ci csnadntcicrnenictads dooxenssocsorsoecee

Presbyterian Church in the United States v.

Mary Elizabeth Blue Hull Memorial Pres-

byterian Church, 398 U.S. 440 (1968)

Presbytery of the Covenant v. First Presby-

terian Church, 552 S.W.2d 865 (Tex. Civ.

App. 1977) Nee ee ee eee ee vans

Serbian Eastern Orthodox Diocese v. Milivoje-

vich, 426 U.S. 696 (1976)))));ßꝛl

State ex rel. Morrow v. Hill, 51 Ohio St.2d 74,

F Doc csccciactncowarsppotsecdsssees:

Watson v. Jones 90 U.S. (13 Wall.) 679 (1872)

7

9,10

2,3, 4,5

8,9,10

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IN THE

Supreme Court of the Anited States

OCTOBER TERM 1978

No. 78-91

R. W. JONES, SR., et al.,

Petitioners,

v.

CHARLES T. WOLF, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA

PETITIONERS’ REPLY BRIEF

The Brief for Respondents (“Resp. Brief“) re-

veals just how far apart the parties are concerning

the key questions of law in this case. Petitioners

believe that their earlier Brief anticipated and re-

sponded to most of Respondents’ arguments, and we

wish to add only a few short points in reply:

1. Determination of the Identity of the True Congre-

gation of VPC Is Necessary in Order To Resolve

This Dispute.

It is important to note that Respondents

acknowledge that PCUS had authority to determine

2

which of the competing factions constituted the true

congregation of VPC. Resp. Brief at 5 n.9. Respon-

dents assert, however, that “(t]he identity of the

‘true congregation’ has never been an issue in this

case.“ Id., accord, e.g., id. at 14-15.

The plain fact, however, is that—regardless of

the legal rule they selected to resolve this con-

troversy—the courts below were required to deter-

mine who constitutes the congregation of VPC in

order to decide the property questions raised in this

case. As we set forth in detail in our earlier Brief for

the Petitioners (‘“Pet. Brief“), at 7, 16-17, the prop-

erty at issue here is held in trust for the “use, benefit

and behoof” of the congregation of VPC. Both Peti-

tioners and Respondents claim to represent the true

congregation of VPC. Thus, whether the civil courts

defer to the church court determination on this point,

or whether they use some other legal rule to choose

between the two groups, resolution of the conflicting

This case is hardly unusual in presenting a conflict be-

tween two groups each claiming to be the rightful congregation

of a local church. See, e. ., State ex rel. Morrow v. Hill, 51 Ohio St.

2d 74, 364 N.E.2d 1156, 1158 n.2 (1977); Presbytery of the

Covenant v. First Presbyterian Church, 552 S.W.2d 865, 869-872

(Tex. Civ. App. 1977). Indeed, instances inevitably arise in

church disputes where one faction contests the procedure used,

or some other aspect of the decision purportedly putting the

other faction in control of the congregation. Petitioners con-

tend that in a hierarchical church the Watson-Serbian deference

rule means that such issues should be resolved by the appropri-

ate church court. It is unclear how civil courts could deal with

such questions under the so-called “neutral principles/formal

title approach” urged by Respondents—at least absent a full

— in the civil courts on the merits of each such religious

ispute.

Se ee . — — ——— —

— 4

3

property elaims demands a decision as to which group

is in fact the “true congregation” of VPC. :

Indeed, the “formal title“ approach urged by

Respondents leads only to the conclusion that title is

in the local congregation—a proposition never dis-

puted by anyone in this case. The further question of

who properly represents the congregation was a

fundamental element of the issue presented to and

necessarily decided by the lower courts. It cannot be

avoided under any approach to the case.

2. The Watson-Serbian Deference Rule Is

Constitutionally Required.

Petitioners argued in their earlier Brief that

First Amendment principles required the lower

courts to defer to the hierarchical church court deci-

sion on the question of who constitutes the true

congregation of VPC. See Pet. Brief at 11-17.

Respondents argue, however, that the rule set forth

in Watson v. Jones, 80 U.S. (18 Wall.) 679 (1872), and

its progeny, requiring deference to hierarchical

church court decisions, has been “eliminated” in

Georgia, Resp. Brief at 11, and is “not of con-

stitutional dimensions.“ Jd. at 19.3 Respondents’ posi-

tion simply ignores the opinions of this Court to the

contrary.

2Indeed, Respondents themselves note that the VPC

trustees must “take their instructions solely from the local

congregation.” Resp. Brief at 24.

3 Respondents seem to equate the state law implied trust

principle with the constitutional deference rule first referred to

in Watson. See Resp. Brief at 11 & n.15. This is a basic

misconception. The deference rule arises out of the structure

and rulings of the mother church and the local congregation’s

binding itself to abide by that structure and rulings. Whether

or not state law principles call for an implied trust in favor of

the mother church is simply irrelevant to application of the

constitutionally mandated deference rule.

4

While Watson initially was decided without ref-

erence to the First Amendment, this Court subse-

quently held that the Watson rule is of constitutional

dimension. Kedroff v. Saint Nicholas Cathedral, 344

U.S. 94, 115-116 (1952). In Serbian Eastern Orthodox

Diocese v. Milivojevich, 426 U.S. 696, 710-711 (1976),

this Court quoted approvingly the following

language from Watson, and noted that it has “a clear

constitutional ring“:

It is of the essence of these | hierarchical ]

religious unions, and of their right to estab-

lish tribunals for the decision of questions

arising among themselves, that those deci-

sions should be binding in all cases of

ecclesiastical cognizance, subject only to such

appeals as the organism itself provides for.

The Serbian Court went on to state that “the Watson

rule has been held to be mandated by the First

Amendment.” 426 U.S. at 712. Contrary to Respon-

dents’ contention that the Watson deference rule is

not constitutionally required, this Court in Serbian

summarized the First Amendment rule in terms

precisely applicable to the instant case:

[The First and Fourteenth Amendments

permit hierarchical religious organizations

to establish their own rules and regulations

for internal discipline and government, and

to create tribunals for adjudicating disputes —

over these matters. When this choice is

exercised and ecclesiastical tribunals are

created to decide disputes over the govern-

ment and direction of subordinate bodies,

the Constitution requires that civil courts

— ee e

—

5

accept their decision as binding upon them.

[426 U.S. at 724-725]

3. PCUS Is a Hierarchical Church, and Thus the

Watson-Serbian Rule Is Applicable Here.

Perhaps recognizing the weakness of their other

arguments, Respondents seem to contend that no

PCUS church rules call for church control over a

matter such as that decided by the church court here.

Respondents suggest that perhaps PCUS in fact is

not hierarchical after all, at least with regard to this

issue. See Resp. Brief at 27-28. The fundamental

flaw in that argument is that the lower courts made

no such finding,’ nor could they under the circum-

stances here.

It should be noted at the outset that this Court

has held on two separate occasions that PCUS is a

hierarchical church. See Watson, supra, 80 U.S. at

722, 726-729; Hull, supra, 393 U.S. at 441-442. Nu-

merous other courts have reviewed the PCUS Book of

Church Order and come to the same conclusion. See,

e.g., Mills v. Baldwin, 362 So.2d 2, 5, 7 (Fla. 1978);

Mills v. Baldwin, Civ. Action No. 73-100 (Fla. Cir. Ct.

1975), reprinted at Pet. App. 20a, 23a (The Presby-

terian Church U.S. is not congregational in organiza-

tion, but is clearly hierarchical or representative.“);

Adickes v. Adkins, 264 S.C. 394, 215 S.E.2d 442, cert.

4 Watson has also been cited with approval in Presbyterian

Church in the United States v. Mary Elizabeth Blue Hull Me-

morial Presbyterian Church, 393 U.S. 440, 445-447 (1968), and

Gonzales v. Archbishop, 280 U.S. 1, 16 (1929). Only the dictum in

Watson allowing civil courts to inquire into the “arbitrariness”

of church decisions has ever been overruled, or even questioned.

5 It is interesting to note that Respondents suggest what

they believe the lower court findings were, [although not

stated in these terms.” Resp. Brief at 14 n.19.

6

denied, 423 U.S. 918 (1975); Presbytery of the Cov-

enant, supra, 552 S.W.2d at 868, 870.

Indeed, no other finding would be possible. The

Brief for the Presbyterian Church in the United

States as Amicus Curiae in Support of Petitioners

(“PCUS Brief”) sets out in some detail the provisions

of The Book of Church Order and other governing

church rules that clearly give PCUS church courts

jurisdiction over a controversy concerning who con-

stitutes the true congregation of a local church. Id. at

8-15. See also Pet. Brief at 6 n.3. Nothing in

Respondents’ Brief even suggests the inapplicability

of these provisions.

The Book of Church Order emphasizes that a local

congregation, or church session, is “not separate and

independent” from the higher church courts, but

rather is subject to their “review and control.” JA 49-

50. PCUS General Assembly rulings substantially

pre-dating the instant controversy were explicit in

holding that local congregations must use their prop-

erty in accordance with the PCUS Constitution, and

that in case of disputes the church courts retain the

power to decide who is the true congregation entitled

to continued control of church property. PCUS Brief

at 11-12, 14:

The beneficial ownership of the property

of a particular church of the Presbyterian

Church in the United States is in the con-

gregation of such church and title may prop-

erly be held in any form, corporate or other-

wise, consistent with the provisions of civil

law in the jurisdiction in which such proper-

ty is situated. * * * In every instance nothing

7

in the manner of tenure of such property or

the use thereof shall be in violation of the

obligation of such congregation to the body of

the Presbyterian Church in the United States

as established by the Constitution of such

Church. (Emphasis added.)

Disposition of the property of a particu-

lar church rests in the will of the congrega-

tion of that church. The congregation is that

body of persons recognized as members of that

particular church by the respective courts of

the church. (Assembly’s Digest, p. 76)

(Emphasis added.)

It takes more than a name to become a

Presbyterian Church, U.S. It takes more

than to profess the same faith as the Presby-

terian Church, U.S. professes to become a

Presbyterian Church, U.S. It takes a profes-

sion of that faith and subjection to the gov-

ernment of that Church to make a Presby-

terian Church, U.S.

A Presbyterian congregation, with its

officers, pastor, elders and deacons, is a com-

plete organization in itself, but it is not

independent. [preface to the Form of Govern-

ment, IH, 1, 5.] It is a part of an extended

whole, living under the same ecclesiastical

constitution, and therefore subject to the

inspection and control of the Presbytery,

whose business is to see that the standards of

doctrine and rules of discipline are adhered to

8

by the particular churches under its care. It

is the court of review and control, over all the

sessions of the particular churches within its

bounds.

Moreover, numerous sections of The Book of

Church Order require that local church members and

officials must take oaths to submit to the supervision of

PCUS church courts and to abide by PCUS governing

rules. See The Book of Church Order §§ 4-1(2), 24-5,

27-6(4), 29-8, 210-5(c)(5), 219-1, 224-7, JA 33, 73,

83, 89, 145-146, 155, 159.

Thus, there simply can be no question that PCUS

is a hierarchical church and that its members have

agreed to abide by its constitution and church court

rulings.* These rules, of course, do not prevent indi-

viduals like Respondents from withdrawing as mem-

bers of PCUS or joining a new denomination; the

rules simply prevent Respondents from ignoring de-

cisions by the properly constituted church court as to

the true congregation, and from taking the church

property with them in the face of a ruling that they

do not represent the true congregation.

The foregoing discussion indicates why Respond-

ents are incorrect in their argument (Resp. Brief at

o This Court has noted that those who unite with a local

church that is part of a hierarchical system do so with implied

consent to the government of the hierarchical church and are

bound to submit to that government. Watson, supra, 180 U.S. at

728-729, quoted with approval in Hull, supra, 398 U.S. at 446.

Here, however, Petitioners need not rely upon an implied

acquiescence in PCUS’s form of government, including its

church courts, because, as noted above, Respondents themselves

took specific oaths to be bound by PCUS’s form of government.

9

20-24) that the Sharpsburg case’ is analogous to the

present dispute. This Court dismissed the second

appeal in Sharpsburg only after the state court had

made a finding® that the structure of the Church of

God is congregational, and not hierarchical, with

regard to the matters at issue. See 249 Md. 650, 663,

241 A.2d 691, 699, 705.° That finding made the

Maryland and Virginia Eldership of the Churches of God v.

Church of God at Sharpsburg, 249 Md. 650, 241 A.2d 691 (1968),

vacated and remanded, 393 U.S. 528, rmed, 254 Md. 162, 254

A.2d 162 (1969), appeal dismissed, 396 U.S. 367 (1970).

8 As Mr. Justice White noted in concurrence in Serbian,

under the Watson-Serbian deference rule it is a threshold

question for the civil court to determine whether the church

government is indeed hierarchical. 426 U.S. at 725. If the church

is not hierarchical with regard to the matter at issue—as in

Sharpsburg—then the First Amendment does not command

deference to any church court decision on that matter. Thus, the

hypothetical question posed by the Amicus Curiae Brief of the

Anglican Catholic Church, at 5, is completely answered by

Sharpsburg: an otherwise hierarchical church, with an explicit

charter provision giving local congregations exclusive power

over certain matters, would not be deemed hierarchical with

regard to such matters, and thus the Watson-Serbian deference

rule would not apply.

It is also noteworthy that in Sharpsburg the mother church

refused to recognize any right of secession and attempted to

enforce that position in the civil courts by asking that those

attempting to withdraw be enjoined from doing so. See 241 A.2d

at 694. Such a ruling by a civil court would have been an obvious

violation of the First Amendment since, as noted above, every

member of a church or synagogue has an unfettered right at

any time to disassociate himself or herself from any particular

religious faith, doctrine or denomination.

o Indeed, the Maryland Court of Appeals found over-

whelming evidence that the Church of God intended that its

congregations be totally independent with regard to questions

such as determining the identity of the congregation entitled to

use of the property. See 249 Md. 650, 659, 241 A.2d 691, 697

(charter provision that the “congregation of this Church shall

be and remain an independent congregation * * * [and] such

(footnote continued )

10

Watson-Serbian deference rule inapplicable, since the

rule applies only to hierarchical churches. In the

instant case, no such finding was made, or could have

been made, concerning PCUS, and thus the Sharps-

burg decision is completely distinguishable. Instead,

the reasoning and holdings of Watson and Serbian

are completely applicable to this dispute and should

have commanded the civil courts to defer to the

church court ruling, rather than improperly reexam-

ining the ecclesiastical question of which faction

constitutes the “true congregation” of VPC.

(footnote continued )

associations [with a national church denomination) shall in no

wise effect [sic] this Corporation in its ownership and control of

its real and personal property, which shall be and remain in the

properly constituted officers of this corporation.”); id., 249 Md.

at 666, 241 A.2d at 700 (expert testimony that church govern-

ment of Church of God “is not strictly speaking analogous to

that of the Presbyterian denomination”).

The differences between the Church of God government,

reviewed in Sharpsburg, and the PCUS structure could hardly be

more striking. As discussed at pp. 6-8, above, PCUS rules

expressly state that local congregations are not independent,

that they are subject to PCUS church court review and control,

and that one of the PCUS church courts’ powers is determina-

tion of the identity of the “true congregation” in case of a

property dispute. This is also made clear by the various oaths

which members and officials must take. See p. 8, supra.

11

CONCLUSION

For the foregoing reasons, as well as those

expressed in their earlier Brief, Petitioners respect-

fully urge this Court to reverse the decision below.

Respectfully submitted,

E. BARRETT PRETTYMAN, JR.

ALLEN R. SNYDER

WALTER A. SMITH, JR.

CAROL ANNE MUTTER

815 Connecticut Avenue, NW

Washington, D.C. 20006

JOHN B. HARRIS, JR.

T. REESE WATKINS

1200 Georgia Power Building

Macon, Georgia 31201

H. T. O’NEAL, JR.

1001 American Federal

Building

Macon, Georgia 31201

Attorneys for Petitioners