Opposition Brief — Conference of African Union First Colored Methodist Protestant Church v. Mother African Union First Colored Methodist Protestant Church

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———

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: SEP 17 YOR

No. 91-291 | oie _——

In The

Supreme Court of the United States

October Term, 1991

THE CONFERENCE OF AFRICAN UNION FIRST

COLORED METHODIST PROTESTANT CHURCH

and DELBERT L. JACKSON,

Petitioners,

Vv.

MOTHER AFRICAN UNION FIRST COLORED

METHODIST PROTESTANT CHURCH,

MORRIS A. COMEGYS, and SARA B. GARDNER,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF DELAWARE

BRIEF IN OPPOSITION TO THE PETITION

FOR A WRIT OF CERTIORARI

Thomas Stephen Neuberger

Counsel of Record

Paulette Sullivan Moore

Thomas S. Neuberger, P.A.

200 West Ninth St., Suite 702

Wilmington, Delaware 19801

(302) 655-0582

Attorneys for Respondents

September 17, 1991

Balmar Legal Publishing Division, Washington, D.C. 20005 (202) 659-3610

TABLE OF CONTENTS

Page

TPR Oe FE CUD ove cecccesveserses il

os Ceres ees eee en veh aeey 1

PR RE ay ee Od ae ete ne 2

DUP RMITE SOE BUMS GAR on ew ce cicrcecessess 3

SUMMARY OF ARGUMENT .................. 4

PBR ET CT PP EO ee rere eee eee 3

I. THE COURT BELOW CORRECTLY

APPLIED THE NEUTRAL PRINCIPLES

OF LAW TEST TO A CHURCH PROPERTY

IRS a ls ar a kp ee ee cate ese W's 3

I]. CERTIORARI SHOULD NOT BE

GRANTED BECAUSE THERE IS NO

FINAL JUDGMENT BELOW. ........... 9

Ill. THE PETITION CONTAINS

PERCEIVED MISSTATEMENTS

oe sy ae 12

SAE acon case ever cne oehrtahean ene tes 15

Ps PT OP Eee eer EE re Te erry fy Pe A-1

li

TABLE OF AUTHORITIES

A. CASES

Bjorkman v. Protestant Episcopal Church,

FI9 S.W.20 SOB. (Ky. 1988) once cstccceess 7

Blonder-Tongue Laboratories, Inc. v. University of

Illinois Foundation, 4 2 U.S. 313 (1971) ..... 8

Board of Commissioners of Tippecanoe County v.

Lucas, 93 U.S. 108 (1876) ................ 9

Cleaver v. Conference of African Union First

Colored Methodist Protestant Church,

OO F BRST (DL, Cir. 19S6) cs ccciseeces 8

Cox Broadcasting Corp. v. Cohen, 420 U.S. 469

(RREED 0x05 takes specs leer eae 10, 11

Foltz v. Pullman, Inc., 319 A.2d 38 (Del. 1974) .... 8

Georgia Ry. & Power Co. v. Town of Decatur,

Oe Vis AIS (IGE): ooo ones eee ta

Gibbons v. Ogden, 6 Wheat. (19 U.S.) 448 (1821)... .

Gibson v. Trustees of Pencader Presbyterian

Church, 10 A.2d 332 (Del. Ch. 1939),

affirmed, 22 A.2d 782 (Del. 1941) .......... 7

Jones v. Wolf, 443 U.S. 595 (1979) ......... S$, 4, 12,13

Kedroff v. St. Nicholas Cathedral,

Pee Wis POCRRE) 0in 60k weease seinen 7

Keegan v. University of Delaware, 349 A.2d 14

(Del. 1975), cert. denied 424 U.S. 934

COPPER. s.8 ss 34066454443 4s eee 7

Local No. 438 Construction & General Laborers’

Union v. Curry, 371 U.S. 542 (1963) ........ Y

Minnick v. California Department of Corrections,

SIR Uae MEP UNOOR) 660k cexrisneeeee 33,32

Montgomery Bldg. & Construction Trades

Council v. Ledbetter Erection Co..,

ee ee 9,10

Moses v. The Mayor, 15 Wall. (82 U.S.) 387 (1872) .. e)

North Carolina R. Co. v. Story, 268 U.S. 288 (1925) .. 9

Pennsylvania Manufacturers Association Insurance

Co. v. Home Insurance Company, 584 A.2d

eee 8

Reddall v. Bryan, 24 How. (65 U.S.) 420 (1860) ... 9

Trustees of Delaware Annual Conference v. Ennis,

me ee re canee, OR. 1962)... 2 eee 7

Trustees of Pencader Presbyterian Church v.

Gibson, 22 A.2d 782 (Del. 1941) ........... 7

Verden v. Coleman, 18 How. (59 U.S.) 86 (1855) .. Y

Watson v. Jones, 80 U.S. 679 (1871) ............ 7

Younger v. Harris, 401 U.S. 37 (1971) ........... 3

B. STATUTES

U.S. Constitution, First Amendment............. passim

Cg EN) ee 2,9

Supreme Court Rule 10.1(b) .................-. 2,8

a) eee 12

ca vee trees eeecece ee 3

Eo) 14

C. OTHER AUTHORITIES

Note, “The Finality Rule For Supreme Court Review

Of State Court Orders,” 91 Harv. L.Rev. 1004

ge 10, 11

No. 91-291

In The ~

Supreme Court of the United States

October Term, 1991

THE CONFERENCE OF AFRICAN UNION FIRST

COLORED METHODIST PROTESTANT CHURCH

and DELBERT L. JACKSON,

Petitioners,

We

MOTHER AFRICAN UNION FIRST COLORED

METHODIST PROTESTANT CHURCH,

MORRIS A. COMEGYS, and SARA B. GARDNER,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF DELAWARE

OPINIONS BELOW

The Temporary Restraining Order issued on April 19th,

1991, is not reported and is printed in the Appendix, p. A-1.

The Memorandum Opinion of the Court of Chancery is not

officially reported and is printed in the Appendix, p. A-6.

The June 25th, 1991, Order of the Supreme Court of the

State of Delaware is set out in Petitioners’ Appendix, p. A-1.

The May 10th, 1991, Order of the United States District

Court for the District of Delaware is not reported and is printed

in the Appendix, p. A-3.

The oral ruling of The Honorable Jane Roth of the United

States District Court for the District of Delaware, dated May

10th, 1991, is set out in the Appendix, p. A-S.

2

The June 11, 1991, three-page ruling of the Court of

Chancery, denying Motions to Dismiss and to Dissolve the

Preliminary Injunction, is printed in the Petitioners’ Appendix,

p. A-4a.

JURISDICTION

The allegation of jurisdiction is disputed. Jurisdiction does

not exist under 28 U.S.C. sec. 1257(a) to pursue an interlocutory

appeal from the grant of a preliminary injunction. Nor should

discretion be exercised pursuant to Rule 10.1(b) since no

decision has been made on a federal question which in any way

conflicts with a decision of this or any other court.

STATEMENT OF THE CASE

The underlying action is one for injunctive relief to remedy

the wrongful exclusion from its church building and other

property of the entire congregation of a 178 year old church.

Petitioners have seized property of a Delaware religious cor-

poration and they also have prevented the use of that property

for religious worship and other religious purposes.

Contemporaneous with the filing of the Verified Complaint

on April 18, 1991, respondents filed a motion for a temporary

restraining order. After a lengthy hearing, and upon the posting

of a nominal bond, the Court entered a temporary restraining

order on April 19th, A-1, and orally ruled from the bench.

On May 6th the Court held another full hearing on

respondents’ motion for a preliminary injunction. The tem-

porary restraining order then was extended until the Court ruled

on May 15th, when it issued a Memorandum Opinion and a

preliminary injunction. A-6.

That decision from the respected Delaware Court of Chan-

cery analyzed in detail both the factual and legal issues involved

3

in this case. The facts are set out in the opinion and need not be

repeated here. Appendix, A-6-24. On the legal issues, the

Delaware Court applied the “neutral principles of law” standard

to avoid any infringement of First Amendment freedoms. A-16.

Pending trial, the Court then issued preliminary injunctive relief

and struck “an appropriate interim balance between the

legitimate interests of both sides.” A-23.

Prior to the Court’s ruling, agents of the petitioners filed a

civil action, in the United States District Court for the District

of Delaware, seeking effectively to enjoin the state court

proceedings below. The District Court, by the Honorabie Jane

R. Roth, denied a motion for a temporary restraining order in

light of the obvious violation of the terms of the order issued by

the Vice Chancellor. A-5. The Court confirmed this oral ruling

in a written order. A-3.!

Prior to the hearing in federal court, two lengthy hearings

had been held in the Court of Chancery. Extensive deposition

testimony also liad been submitted, together with legal briefs.

Under the Younger v. Harris, 401 U.S. 37 (1971), doctrine,

Judge Roth denied the motion for a temporary restraining order

because it was an attempt to interfere with an ongoing state court

proceeding. She also suggested that sanctions might be ap-

propriate, under F.R.Civ.P. 11, against counsel who had filed

the action in federal court.”

Back in the state court, Petitioners’ Motions to Dismiss and

to Dissolve the Preliminary Injunction were denied in a three-

page ruling dated June 11, 1991. Petitioners’ Appendix, A-4a.

Therein the Court pointed out that the petitioners had “never

formally advanced or supported an argument that the plaintiffs’

Judge Roth has since been elevated to the United States Court of

Appeals for the Third Circuit.

2 Because of the elevation of Judge Roth to the Third Circuit that case

is presently awaiting reassignment. In that case a motion to dismiss and to

impose sanctions has been briefed and is awaiting a decision.

eee eee rere eS

4

complaint fails to state a legally valid claim for relief.” /d.

A-4b.

On June 17, 1991, petitioners sought an untimely inter-

locutory appeal to the Delaware Supreme Court. A transcribed

hearing in Chancery Court was held on this application and on

June 19th it was denied orally. The Court therein also ruled that

no jurisdictional issue ever had been raised by the petitioners.

An appeal of these decisions was taken to the Delaware

Supreme Court. Respondents placed a 67 page brief before the

Court which contained over 20 pages of analysis of the “neutral

principles of law” standard which had been applied in this case.

The Delaware Supreme Court then declined to accept an inter-

locutory appeal from the grant of a preliminary injunction and

noted that a final ruling on the title to real property remained to

be determined at trial. Petitioners’ Appendix, A-3. The Court

also observed that the application for an interlocutory appeal

was untimely since it was filed too late. /d.

SUMMARY OF ARGUMENT

There is no conflict with any decision of this or any other

Court since the Court below correctly applied a neutral prin-

ciples of law analysis. Under that doctrine a church property

dispute can be resolved by examination of deeds, corporate

charters, the law of trusts and other neutral documents, such as

those relied upon below.

Jurisdiction does not exist in this Court because: (1) the

prc...Minary injunction is not a final judgment and no exception

to the finality rule applies to this case, (2) the interlocutory

appeal was untimely because it was filed too late, and (3)

jurisdiction does not exist from the denial of a motion to dismiss.

This case is not an appropriate vehicle to revisit the neutral

principles of law method of resolving church property disputes

because there are numerous misstatements of both fact and law

5

in the Petition. These misstatements create conflicts over the

record before this Court.

ARGUMENT

I. THE COURT BELOW CORRECTLY APPLIED

THE NEUTRAL PRINCIPLES OF LAW TEST

TO A CHURCH PROPERTY DISPUTE.

The Delaware Court of Chancery correctly relied upon the

rule of law set forth in Jones v. Wolf, 443 U.S. 595, 603 (1979),

to avoid First Amendment difficulties in this case. A-16. In

Jones a Presbyterian church dispute arose in an admittedly

hierarchical organization. /d. at 597. The question presented

was whether the First Amendment required the courts to defer

the resolution of a church property dispute to an authoritative

tribunal of a hierarchical church or whether a State may resolve

such a dispute on the basis of neutral principles of law. Jd. This

Court then held that a State may constitutionally adopt neutral

principles of law as the means of resolving a church property

dispute, even in a hierarchical church, and that it need not remit

the parties to self-help. /d. at 604.

On the facts, the denomination in that case preexisted the

local church which had been incorporated in 1915. /d. at 597.

But record title to realty resided in the local corporation, and

funds for its purchase came from the local congregation. /d.

Then, at a congregational meeting attended by a quorum of duly

enrolled members, 164 voted to secede and 94 opposed. The

majority ruled and the minority filed a state court class action.

Id. at 598.

In reviewing Georgia law, this Court noted that in one case

the Georgia Supreme Court, applying neutral principles of law,

looked at two deeds, state statutes dealing with implied trusts,

and the book of church order. /d. at 600.3 In another case it

> The Chancery Court examined similar documents in the present case.

a

6

looked at deeds, the corporate charter, state statutes dealing with

implied trusts and the church constitution. In the instant case

the Georgia court looked at deeds, state statutes dealing with

implied trusts, the corporate charter and the constitution of the

denomination and still failed to find any language of trust for

the benefit of a denomination. Jd. at 602.

In stating the law, this Court observed that the State has an

obvious and legitimate interest in providing a forum for the

peaceful resolution of property disputes. Jd. at 603. The State,

however, must be careful to avoid First Amendment violations,

such as analyzing religious doctrine and practice. Id. Since

neutral principles of law relies on objective well established

concepts of trust and property law, this Court held that its use is

consistent with the First Amendment and can be used by state

courts to resolve church property disputes. Jd. at 603. Since this

is what the court below did, there was no error in its decision to

apply this doctrine as it is presently defined. A-16.

The basic flaw in the petition for certiorari is that it relies

upon legal authority decided 35 or more years ago before this

Court developed its neutral principles of law doctrine and related

standards. For example, the beauty of neutral principles of law

is that a trial court does not have to resolve any factual dispute,

if one exists, as to whether a denomination is hierarchical or not.

In the present case respondents vigorously dispute that the

Conference is hierarchical. They even have offered expert

testimony as to the intentions of the founder of the corporation,

Peter Spencer, who sought to form a congregational church.

The deposition testimony of petitioner Jackson also established

that the entire Conference consists of less than 10,000 members.

To contrast this with the hierarchical churches on which some

cases are based, raises serious doubts as to whether the Con-

ference is a hierarchical organization. The churches in those

cases have existed for centuries, since the Reformation in the

1500’s, the split between East and West in 1054, or even from

7

the first century, A.D. These churches have well developed

bodies of appeal, case law, tribunals, etc. Respondents dispute

whether the Conference fits any of these norms. But the courts

will not have to decide this dispute because of the application

of the neutral principles of law doctrine. The petitioners instead

would have the courts enmesh themselves in a determination of

hierarchical versus congregational governance. This the

Delaware courts are not required to do and they have chosen not

to enter this thicket.

It does not appear that the Delaware Supreme Court has

had a recent direct opportunity to apply neutral principles of law.

Undoubtedly it would do so because the Delaware Supreme

Court has always followed and adopted First Amendment

Religion Clause doctrine as promulgated by the United States

Supreme Court. See e.g., Keegan v. University of Delaware,

349 A.2d 14 (Del. 1975), cert. denied 424 U.S. 934 (1976) (free

exercise and establishment clause principles applied). Indeed,

in many of their earlier decisions the Delaware courts have in

effect followed neutral principles of law by looking to the first

category found in Watson v. Jones, 80 U.S. 679, 722-23 (1871),

that of deeds, trusts, etc. See e.g., Trustees of Pencader Pres-

byterian Church v. Gibson, 22 A.2d 782, 789 (Del. 1941);

Trustees of Delaware Annual Conference v. Ennis, 29 A.2d 374,

377 (Del. Ch. 1942); Gibson v. Trustees of Pencader Pres-

byterian Church, 10 A.2d 332, 337-38 (Del. Ch. 1939), af-

firmed, 22 A.2d 782 (Del. 1941).4

More specifically, in reply to the argument that respondents

“lacked standing to bring the suit,” Petition at 17, this is plainly

wrong since this Court decided this issue in Kedroff v. St.

* Other State Supreme Courts have followed the suggestion of the

United States Supreme Court and have adopted neutral principles of law as _.

the governing standard so that a forum can be provided to resolve church

property disputes. Otherwise the parties are left to self-help which is not a

socially desirable consequence. See e.g., Bjorkman v. Protestant Episcopal

Church, 759 S.W.2d 583, 585-86 (Ky. 1988).

8

Nicholas Cathedral, 344 U.S. 94, 113 (1952). The Court there

observed that a member of a church has standing to claim a

beneficial interest in church property and can sue to obtain

proper use of the property.

* Defendants’ reliance on Cleaver v. Conference of African

Union First Colored Methodist Protestant Church, 240 F.2d 57

(D.C. Cir. 1956), and the unreported proceedings of the trial

court, is misplaced. Firstly, concerning the law which was

applied, Cleaver was not decided on the application of the

neutral principles of law doctrine but by deference to an alleged-

ly hierarchical organization. Secondly, on the facts, the case

went to a full trial but the record is unknown. Moreover, nothing

in the record before that court apparently bears any similarity to

the factual record presently before this Court. A comparison of

the detailed preliminary factual findings of the Court of Chan-

cery below with the extremely brief findings in Cleaver establish

that the cases are not factually the same. Nor has a trial record

yet been developed in the present case. Lastly, again on the law,

if by somehow citing this decision the petitioners are relying

upon principles of res judicata or collateral estoppel, they have

made no showing that the requirements for the application of

either doctrine have been met. There has been no showing that

the same parties or their privies are before this Court. Blonder-

Tongue Laboratories, Inc. v. University of Illinois Foundation,

402 U.S. 313 (1971); Pennsylvania Manufacturers Association

Insurance Co. v. Home Insurance Company, 584 A.2d 1209

(Del. 1990); Foltz v. Pullman, Inc., 319 A.2d 38 (Del. 1974).

Consequently, a grant of certiorari is improper under Rule

10.1(b) since there is no conflict with any other pertinent

decisions on a federal question. Instead, the trial court has

applied the governing law.

9

II. CERTIORARI SHOULD NOT BE GRANTED

BECAUSE THERE IS NO FINAL JUDGMENT

BELOW.

As was explained by the Chancery Court, at a late date the

petitioners filed a motion to dismiss but, since they failed to brief

the issue in any fashion, the motion was denied. Petitioners’

Appendix, A-4b. An appeal cannot be taken to this Court, under

28 U.S.C. sec. 1257(a), from a judgment denying a dismissal.

Such a judgment is not a final judgment, even if the question

involves the jurisdiction of a state court. North Carolina R. Co.

v. Story, 268 U.S. 288, 291 (1925); Board of Commissioners of

Tippecanoe County v. Lucas, 93 U.S. 108, 113-114 (1876).

The Petitioners also sought to file an interlocutory appeal

from this denial and from the grant of a preliminary injunction.

Unfortunately, the initiation of that appeal was untimely under

local procedural] rules. Petitioners’ Appendix A-3.

But, even if the appeal was timely, Congress has not

enacted interlocutory review of the grant or denial of a prelimi-

nary injunction in a state court. Such interlocutory injunction

rulings are not final and are normally not appealable in this court.

Montgomery Bldg. & Construction Trades Council v. Ledbetter

Erection Co., 344 U.S. 178, 179 (1952), explained in Local No.

438 Construction & General Laborers’ Union v. Curry, 371

U.S. 542, 552 (1963); Georgia Ry. & Power Co. v. Town of

Decatur, 262 U.S. 432 (1923); Moses v. The Mayor, 15 Wall.

(82 U.S.) 387, 390 (1872); Reddall v. Bryan, 24 How. (65 U.S.)

420 (1860); Verden v. Coleman, 18 How. (59 U.S.) 86 (1855);

Gibbons v. Ogden, 6 Wheat. (19 U.S.) 448 (1821). In

Montgomery Bldg. & Construction Trades Council, supra, at

180, this Court noted that from the earliest days it has refused

to accept jurisdiction of interlocutory appeals from state court

preliminary injunctions. In Local No. 438, supra, at 552, the

Court observed that this rule is both “salutary and long-stand-

ing.” Because of judicial development of the body of federal

10

labor law, the result in this latter case was different from that in

Montgomery Bldg. & Construction Trades Council, supra. But

no such recent development in the law relating to church proper-

ty disputes creates an exception in the present case to the rule

barring appeal from the grant of a preliminary injunction.

The same result is dictated applying the four exceptions to the

finality rule found in Cox Broadcasting Corp. v. Cohen, 420 U.S.

469 (1975). There the Court examined the very few exceptions to

the finality rule. See generally, Note, “The Finality Rule For

Supreme Court Review Of State Court Orders,” 91 Harv. L.Rev.

1004 (1978). “In the first category are those cases in which there

are further proceedings-even entire trials-yet to occur in the state

courts but where for one reason or another the federal issue is

conclusive or the outcome of further proceedings preordained.”

420 U.S. at 479. In such cases “the case is for all practical purposes

concluded” and the judgment is final. Jd. But nothing has been

conclusively determined in the present case. The Chancery Court

has granted respondents limited use of the property at issue in order

to maintain the status quo. But the Court made it clear that it was

not deciding any final property rights. Those rights remain to be

determined at trial, together with issues relating to who governs the

corporations involved. A-23-24, 16. Consequently, no federal

issue has been conclusively determined or the outcome of any trial

preordained.

The second exception consists of cases “in which the

federal issue . . . will survive and require decision regardless of

the outcome of future state court proceedings.” Jd. at 479-80.

This exception does not apply because there is no guarantee that

the alleged federal issue asserted by the petitioners will even

survive and require a decision regardless of the outcome of the

trial. The petitioners simply could win their trial. Then there

will be no federal issue for them to present.>

> The petitioners are in effect seeking an advisory opinion from this

Court on an issue that may never present itself.

11

The third category involves cases “where the federal claim

has been finally decided, with further proceedings on the merits

in the state courts to come, but in which later review of the

federal issue cannot be had, whatever the ultimate outcome of

the case.” Jd. at 481. In such a case, if the petitioners were to

lose on the merits, governing state law would not permit them

to present a federal claim for review by a higher court. This is

not the case herein. The petitioners, if they lose a trial on the

merits, will have plenary review of any claim that governing

First Amendment law was violated.

The last exception permits interlocutory review only when

(a) “reversal of the state court on the federal issue would be

preclusive of any further litigation on the relevant cause of

action,” id. at 482-83, and (b) failure to consider the state court

decision immediately “might seriously erode federal policy.”

Id. at 483. The present case does not fall within this exception.

See, Note, supra, at 1023-26. Quite simply, there has been no

erosion of federal policy by the proceedings below. In Jones v.

Wolf, supra, this Court directed that state courts may apply the

neutral principles of law standard to decide church property

disputes. The proceedings to date have done nothing but apply

neutral principles of law to maintain the status quo. There has

been no showing that neutral principles of law will not be

applied in the trial in this case, so no federal policy is being

eroded.

Consequently, review cannot be had in this Court because

(1) jurisdiction does not exist from the denial of a motion to

dismiss, (2) the interlocutory appeal was filed several days too

late and was untimely, and (3) in the particular circumstances of

this case, the preliminary injunction is not a final judgment. In

Minnick v. California Department of Corrections, 452 U.S. 105

(1981), this Court noted that often times a judgment is not final

because “we are not persuaded that the outcome of further

proceedings in the trial court can be characterized as ‘certain’

12

or that those proceedings will not have a significant effect on

the federal constitutional issues presented by the certiorari peti-

tion.” Jd. at 120. In a case full of “ambiguities in the record”

and presenting issues in a highly abstract form, id. at 123, the

Court refused to grant review but remitted the case to full and

complete development of the record. /d. at 127. Similarly, the

outcome of the trial below is not “certain” and the development

of the record will have a significant effect on the highly abstract

and theoretical legal issues which the petitioners are attempting

to present in this Court. The petition thus should be denied.

lil. THE PETITION CONTAINS PERCEIVED

MISSTATEMENTS OF FACT AND LAW.

Rule 15.1 requires counsel to identify perceived misstate-

ments of law or fact found in the petition. Such perceived

misstatements are numerous.

(1) The ruling below is not in direct conflict with this

Court’s prior church property decisions. Petition at 3. Instead

the ruling applies the rule of Jones v. Wolf, supra, and is based

on application of the neutral principles of law doctrine. The

Court carefully avoided all potential First Amendment entangle-

ments. A-16, 20 n.11.

(2) There is absolutely no record support for the

defamatory material about an alleged affair by one member of

the Board of Trustees. These allegations were the subject of a

hearing before the Court on June 19th, 1991. The charge was

alleged to be scandalous, defamatory per se, and designed for

no other purpose but to embarrass, threaten and to intimidate

parties in litigation. On questioning by the Court counsel ad-

mitted “there are not specific facts in the record that support all

of the allegations.” Transcript at 10.

Because of the nature of this material, the Court ordered

that the allegation be sealed and stated -

13

It is admitted that the alleged adultery that is discussed

in paragraphs 5 and 6 of the application is not sup-

ported by the record. Based on my knowledge of the

case, those facts are not related to any substantive

issue involved in this case. Nor is it necessary by any

legal theory of which I am aware pertaining to

Supreme Court Rule 42 to bring up these facts in an

application for certification of an interlocutory ap-

peal, even if those facts were supported by evidence

in the record.

Therefore, I conclude that it was totally improper to

include those facts in an application of this kind, and

that will be the basis for sealing this application.

Transcript at 13-14.

~ (3) _ It is incorrect to claim that the federal question

presented in the Petition was raised in the brief filed at the TRO

hearing. Petition at 16. The question now presented is diametri-

cally opposite to that presented at the TRO hearing. Petitioners

in that brief argued that Jones v. Wolf applied “and under the

neutral-principles analysis ownership of the disputed property

turns on whether there is an express trust in favor of the general

church.” Defendants’ Answering Brief In Opposition To

Plaintiffs’ Motion For A Temporary Restraining Order, at 5.

The question now presented seeks to ignore the neutral-prin-

ciples analysis permitted in Jones v. Wolf, supra, and which

Petitioners invited, and instead argues that a per se rule of

hierarchical church ownership should be imposed. This is in-

correct as a matter of law. It also misstates the fact that the

petitioners now have changed their legal theory.

(4) Itis incorrect to argue that there is a due process issue

in this case which was presented to the courts below. Petition

at 24. At least three hearings were held before the Court of

Chancery, the matter was reviewed by a panel of the Delaware

14

Supreme Court and by a distinguished U.S. District Court judge.

More than due process was given.

(5) There is no record support for the contention that

“[{n]umerous popular and scholarly publications, several of them

in evidence in the Chancery Cc~rt, show that” the corporate

charter involved is that of the denomination. Petition at 6. No

popular or scholarly publication in evidence supports this

proposition.

(6) The allegation that there was no quorum for the

membership meeting below is an incorrect statement of the facts

and law. Petition at 14. The only quorum requirement found in

the Delaware law relating to religious societies and corporations

requires that a vote be taken “by a plurality of votes of the

members present.” See 27 Del. C. sec. 105 (1989). By a margin

of almost 7 to 1, a plurality of members present endorsed the

actions below.

(7) Itis incorrect to state that the court below “chose not

to address the First Amendment issue.” Petition at 17. The

Memorandum Opinion explicitly chose to apply the neutral

principles of law standard. A-16.

(8) There is no record support for the contention that

other church congregations have undertaken similar legal action

and that the alleged denomination is being torn apart by its

members. Petition at 21,31. This is an appeal to emotion which

is without any record basis.

(9) Nor is there record support for the contention that the

alleged denomination is hierarchical or even has 40 churches.

Petition at 22, 7. Plaintiffs have vigorously disputed that an

alleged denomination, consisting of less than 10,000 members

meets the historical and factual requirements for a hierarchical

denomination.

(10) Lastly, there is no legal support for the contention

that the decision of the Chancery Court below is in direct conflict

15

with earlier Chancery Court decisions. Petition at 30. No legal

authority is cited in support of this claim. Instead, the decision

is consistent with the neutral principles of law doctrine and any

earlier Delaware decision.

CONCLUSION

For the above stated reasons the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

Thomas Stephen Neuberger

Counsel of Record

Paulette Sullivan Moore

Thomas S. Neuberger, P.A.

200 West Ninth St., Suite 702

Wilmington, Delaware 19801

(302) 655-0582

Attorneys for Respondents

APPENDIX

A-1

C. A. No. 12055

IN THE COURT OF CHANCERY

OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

MORRIS A. COMEGYS and SARA B. GARDNER,

individually and on behalf of all others similarly situated,

Plaintiffs,

v.

DELBERT L. JACKSON,

Defendant.

TEMPORARY RESTRAINING ORDER

This 19th day of April, 1991, upon presentation of

plaintiffs’ verified complaint and documents in support thereof,

and it appearing that the defendant was given notice of this

application for a temporary restraining order, and the Court

having considered the record before it including the pleadings,

affidavits, documents, briefs, and arguments of all parties, and

it further appearing that if the defendant is not restrained plain-

tiffs will be irreparably injured because they will be denied their

freedom to worship God at a place of their choosing;

NOW, THEREFORE, IT IS ORDERED THAT:

(a) The defendant, and his agents, employees, officers,

successors, assigns, and all others acting in concert with him are

hereby enjoined and restrained from interfering with the quiet

title, operation, use, enjoyment and governance of The Church

facility located at Ninth and Franklin Streets, Wilmington,

Delaware, by the duly elected trustees of the Mother African

Union First Colored Methodist Protestant Church or by its

members during the following times, as represented by plaintiffs

in this action:

A-2

(1) Sunday from 9:00 A.M. to 4:00 P.M.

(2) Wednesday from 5:00 P.M. to 10:00 P.M.

(3) Thursday from 5:00 P.M. to 10:00 P.M.

(4) Friday from 7:00 P.M. to 9:00 P.M.

(5) Saturday, April 27, 1991, from 6:00 A.M. to

11:00 A.M.

(b) The defendant may maintain security guards posted

at the church but shall turn over a set of keys to plaintiffs’

counsel for use by the plaintiffs who shall not make a copy of

these keys.

(c) The defendant, and his agents, employees, officers,

successors, assigns, and all others acting in concert with him

shall permit access for the conduct of funerals and weddings as

requested by the plaintiffs.

(d) The defendant shall provide a key to the day care, the

key shall not be duplicated and shall be used to provide access

to the facility (including the kitchen), for use by the existing

daycare during its normal hours of operation.

(e) Plaintiffs shall post a bond in the amount of ONE

THOUSAND DOLLARS ($1,000.00) without surety as

security for the payment of such costs and expenses as may be

incurred or suffered by the defendant if it should be determined

that he has been wrongfully enjoined or restrained.

(f) | This order shall become effective upon execution

provided that the above mentioned bond without surety is filed

with the Court no later than 5:00 P.M. on Saturday, April 20th,

1991.

(g) A hearing on plaintiffs’ application for a preliminary

injunction shall be held on May 6th, 1991, at 2:00 P.M.

ls/ JACK B. JACOBS

VICE-CHANCELLOR

A-3

C. A. No. 91-272-JRR

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

ST. PAUL’S AFRICAN UNION FIRST

COLORED METHODIST PROTESTANT

CHURCH OF WASHINGTON, D.C.,

Plaintiff,

v.

MORRIS A. COMEGYS, et al.,

Defendants.

ORDER

The Court having conducted a hearing on May 10, 1991,

with K. Kay Shearin, Esquire, representing plaintiff, and

Thomas S. Neuberger, Esquire and Paulette Sullivan Moore,

Esquire, representing defendants,

IT IS ORDERED THAT:

1. For the reasons stated at the hearing, Plaintiff's Motion

for a Temporary Restraining Order is hereby denied.

2. The Court admonishes plaintiff to carefully consider

whether it is covered by the temporary restraining order issued

by the Court of Chancery of the State of Delaware on Aprii 19,

1991, in Morris A. Comegys, et al. v. Delbert L. Jackson, C.A.

No. 12055 (Del Ch. 1991), which binds Defendant Delbert L.

Jackson “and his agents, employees, officers, successors, as-

signs, and all others acting in concert with him.” The Court will

closely review this matter both on the issue of whether absten-

tion is appropriate under Younger v. Harris, 401 U.S. 37 (1971)

and Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987), and on the

A-4

question of whether Rule 11 sanctions may be appropriate as

suggested by defendants.

/s/ JANE R. ROTH

UNITED STATES

DISTRICT JUDGE

Date: May 10, 1991

. A-5

The following is an excerpt from a hearing held 5/10/91

before Judge Roth in Civil Action 91-272.

THE COURT: Okay.

Well, I am prepared to rule on the motion for a temporary

restraining order, because I do not see that I am capable of

coming in, under Younger or under Pennzoil, and issuing an

order which has the impact which is what you have just stated

on the record is what you are asking.

The four standards for issuing a temporary restraining

order are as Mr. Neuberger stated. I see many areas which

would militate again... my issuing a temporary restraining order.

First of all is the abstention, that I should not step in and

issue an order which would negate either the temporary restrain-

ing order or the preliminary injunction of the Court of Chancery.

There has not been a sufficient showing that the plaintiffs

here can’t get their rights protected in the state court, either

through intervention or appeal. And I think it is not appropriate

.for this Court, under the circumstances and the facts of record

in this case, to step in and issue a temporary restraining order

which would have the effect that the plaintiffs here are asking for.

I am also concerned by the equities of the situation in that,

as Ms. Shearin has described, the role of St. Paul’s Church in

the Conference, and as I reviewed the language of the temporary

restraining order issued by the Court of Chancery, I would find

that it would seem very likely that St. Paul’s Church would fall

into the category of all others acting in concert with Bishop

Jackson. Therefore, | think there is a strong argument to be

made that the plaintiffs here are in contempt of the temporary

restraining order issued by the Court of Chancery. That, in the

area of equities, would also be a persuasive factor in not issuing

the temporary restraining order out of this court.

So for the reasons I have stated, | am going to deny the

motion for a temporary restraining order.

A-6

Civil Action No. 12055

IN THE COURT OF CHANCERY OF THE STATE OF

DELAWARE IN AND FOR NEW CASTLE COUNTY

MOTHER AFRICAN UNION FIRST COLORED

METHODIST PROTESTANT CHURCH,

a Delaware Corporation,

MORRIS A. COMEGYS and SARA B. GARDNER,

individually and on behalf of all others similarly situated,

Plaintiffs,

Vv

THE CONFERENCE OF AFRICAN UNION FIRST

COLORED METHODIST PROTESTANT CHURCH,

a Delaware corporation,

and DELBERT L. JACKSON,

Defendants.

MEMORANDUM OPINION

Date Submitted: May 7, 1991

Date Decided: May 15, 1991

Paulette S. Moore, Esquire, of DOROSHOW, PASQUALE &

LINARDUCCLI, Wilmington, Delaware; Thomas S. Neuberger,

Esquire, Wilmington, Delaware; Attorneys for Plaintiffs.

K. Kay Shearin, Esquire, Wilmington, Delaware; Attorney for

Defendants.

JACOBS, Vice Chancellor

A-7

At issue on this motion for a preliminary injunction are the

ownership rights to a church building and other properties that

until recently were titled in the name of Mother African Union

First Colored Methodist Protestant Church ("Mother Church"),

a Delaware corporation. The competing claimants to those

properties are the Mother Church and its Trustees, who are the

plaintiffs; and The Conference of African Union First Colored

Methodist Protestant Church (the “Conference”), a Delaware

corporation, and its Bishop, Delbert L. Jackson ("Bishop Jack-

son"), who are the defendants. !

Plaintiffs filed this lawsuit on April 18, 1991 to remedy

certain actions taken by or at the direction of Bishop Jackson

On April 9, 1991, a majority of those persons present at a special

congregational meeting voted to disaffiliate the Mother Church

from the Conference.* The complaint alleges that, in response,

Bishop Jackson wrongfully caused the locks to be changed on

the church building, posted security guards at the church build-

ing, and barred members of the Mother Church from using the

building as a place of worship. The plaintiffs claim that neither

Bishop Jackson nor the Conference have any ownership rights

in, Or right to control, the properties at issue, and that such rights

reside solely in the Mother Church and its Trustees. The plain-

tiffs ask this Court to so declare. :

The complaint also alleges that on April 6, 1991, after

Bishop Jackson learned of the scheduled April 9, 1991 special

meeting to consider seceding from the Conference, he caused

The original parties were the Trustees and Bishop Jackson. As a result

of a suggestion made by the Court, the Mother Church and the Conference

were later joined as parties plaintiff and defendant, respectively, to enable

the Court to afford effective relief.

: Unfortunately the terminology is somewhat confusing, because the

“Conference” is used to refer not only to the corporate defendant of which

defendant Jackson is the Bishop, but also to describe the larger religious

association with which certain local churches, including the Mother Church,

were affiliated. See Part I, infra, of this Question.

A-8

deeds transferring the Mother Church’s properties to the Con-

ference to be executed and recorded. The plaintiffs further

allege that those deeds were not authorized or executed by the

plaintiff Trustees, and on their face are fraudulent and a cloud

on the Mother Church’s title. As a consequence, the plaintiffs

seeks an order removing all existing clouds on the title to the

Mother Church’s properties, enjoining the defendants from

further clouding the title, and from otherwise interfering with

the plaintiffs’ quiet title, use, and enjoyment of those properties.

At the time they filed their complaint, the plaintiffs also

moved for a temporary restraining order and a preliminary

injunction restoring their (and their congregation’s) access to the

church properties pendente lite. On April 19, 1991, after a

hearing, the Court entered a temporary restraining order

prohibiting the defendants from ‘interfering with the quiet title,

operation, use, enjoyment and governance of the [Mother]

Church facilities located at Ninth and Franklin Streets, Wil-

mington, Delaware by [the Conference}” during the particular

days of the week and the times specified in that Order.

On May 6, 1991, after expedited discovery and briefing, a

hearing was held on the plaintiffs’ motion for a preliminary

injunction. Supplementary memoranda were submitted on May

7, 1991.3 This is the decision of the Court on that motion.

I.

The core issue on this motion is which corporation — the

Mother Church or the Conference — owns and is legally entitled

to control the contested properties. That issue turns importantly

on two subsidiary questions: (1) which corporation holds legal

title to those properties, and (2) if the Mother Church holds title,

3 Thereafter, on May 8, 1991, the defendants submitted a large box of

documents to the Court, unsolicited and with no cover letter explaining their

relevance. The Court attempted to examine those materials, but has found

nothing that sheds further light on the issues pertinent to this motion.

whether it has ceded to the Conference its ownership rights or

its power to control the use and disposition of those properties.

The facts now recited pertain to those questions. Except where

noted, those facts are based upon uncontested documents, and

A-9

are undisputed.

The Mother Church was incorporated as the “African

Union Church” on September 18, 1813. (Jackson Dep., Exh. 9;

A-150).* Article 2nd of that corporation’s 1813 certificate of

incorporation reads as follows:

The said Corporation shal! have, hold, possess and

enjoy the temporal property which they have at this

time or shall hereafter acquire. In trust for the

Religious uses of the Ministers and Preachers of the

said “Union Church” for them and their African

Brethren and their descendants of African Race, and

also for the Ministers and Teachers of the African

Brethren duly licensed and ordained according to the

Discipline adopted by this corporation.

Article 4th of that certificate delineates specific require-

ments that must be satisfied before any property of the corpora-

tion can be transferred or encumbered:

The said Trustees nor their Successors shall not by

deed or otherwise dispose of any part or portion of the

Estates, real or personal, which may be vested in the

said Corporation; nor Mortgage nor Pledge the same

for payment of any Debts by them Contracted to any

person or persons whomsoever, unless the same shall

be done with the consent of two thirds of the regular

Members of the said Corporation. (Emphasis added).

4

“A__” refers to the Appendix to the Plaintiffs’ Opening Brief in

Support of their Motion for a Preliminary Injunction.

A-10

Article 5th provides that an election shall be held for the

membership to vote for Trustees of the corporation. One new

Trustee will be elected each year, and that Trustee shall then

serve a term of seven years. Article Sth further provides that:

[T]he said Trustees and their successors shall have the

entire direction and disposal of the temporal revenues

and concerns of the said Church. .. ."

On July 14, 1924, the Mother Church’s certificate of incor-

poration was amended to change the corporate name to “Mother

African Union First Colored Methodist Protestant Church,” i.e.,

the Mother Church. (A155-157). Insofar as the record reveals,

that amendment is the only one ever made to the 1813 certificate

of incorporation; and it left unaffected the remaining provisions

of the original 1813 certificate, including Articles 2nd, 4th, and

5th, which remain in force today.

The plaintiffs are the Trustees of the Mother Church, and

the duly elected successors to the Trustees named in the original

1813 certificate. There is no claim or evidence that the plaintiffs

were not duly elected as Trustees in accordance with the proce-

dures spelled out in that certificate.

There also is no dispute that until April 6, 1991, the Church

owned three properties in Wilmington, Delaware ("the proper-

ties"): (i) the church building, located at West Ninth and

Franklin Streets, which was deeded to the Church on November

4, 1969 (A19-21); (ii) the Pastor’s home, located at 125 West

38th Street, which was deeded to the Church on October 22,

1969 (A23-24); and (iii) Mount Olive Cemetery, located on

Lancaster Avenue.

There is no evidence of record that the plaintiff Trustees

ever transferred the properties to, or for the benefit of, any other

person or entity, or that two-thirds of the corporation’s regular

members ever assented to any such transfer. Indeed, three of

the Trustees, including the oldest living Trustee, have testified

A-11

by affidavit that the Trustees never authorized or executed a

document, ratified by two-thirds of the corporation’s members,

that placed any asset of the Church in trust for the benefit of any

other entity or organization. (A127-135). That evidence stands

uncontroverted.

The other party litigant that claims ownership rights in the

aforementioned properties is the Conference. For many years,

the Mother Church has had a relationship of some kind with the

Conference respecting their common spiritual enterprise. How-

ever, from a strictly corporate standpoint, the Conference and

the Mother Church have always been Separate entities. Al-

though the defendants contended at oral argument that the

Conference was the corporation founded in 1813 as the “African

Union Church,” the record shows otherwise. The Conference

was incorporated on September 19, 1941 as the “African Union

First Colored Methodist Protestant Church.” On March 10,

1953 its certificate of incorporation was amended to change the

corporate name to “The Conference of African Union First

Colored Methodist Protestant Church,” i.e., the Conference.

Article THIRD of the 1941 certificate recites that one of

the corporation’s purposes was:

To incorporate and unite the Church Government

of the Colored Methodist Protestant Churches under

the Doctrine and discipline of the African Union First

Colored Methodist Protestant Church of the United

States of American or elsewhere as particularly set

forth in its Sixteenth Revised Printed Edition of said

Doctrine and Discipline published at Wilmington,

Delaware, September 8-14, 1926, and the Amend-

ments and additions thereto as afterwards made.

Article THIRD also provides that the corporation was

“created solely for Religious and educational purposes,” and

Article SEVENTH provides that the Conference’s temporal

affairs shall be conducted by that corporation’s Trustees who:

A-12

[S]hall have control of the disposal of the property of

the Corporation, [and] shall also have power to make,

amend, alter or rescind the By-laws of their respective

Churches ... subject, nevertheless to the Rules of

Discipline of the General Conference, which General

Conference shall in itself be created and established,

and its membership shall be composed as set forth in

the Rules of Discipline of said Church as hereinbefore

referred to. (Emphasis added).

Consistent with Article SEVENTH, Article NINTH

provides that:

There shall be a general conference whose time and

places of meeting and membership shall be as prescribed

in the Book of Discipline and Doctrine of said Church,

and the authority of such Conference shall be superior to

that of the Trustees and Members of the individual

Church and shall control and direct such Trustees and

Members as is more fully from time to time prescribed

in said Book of Discipline and Doctrine.

The precise relationship between the Conference and its

member churches is anything but clear. What can be gleaned

from the record is that the Conference was created as a corporate

vehicle to carry out the purposes of an earlier-formed voluntary

union, association, or affiliation of the various African Colored

Methodist Protestant Churches in a spiritual and religious

enterprise. That enterprise, which was formed in 1866, is some-

times described as the “Conference” or the “General Con-

ference.” The record further indicates that the terms and

conditions of that union, association, or affiliation, are governed

at least in part by the Book of Discipline, the 1990 version of

which has been placed of record.°

5 The full title of that document is The Book of Discipline of The African

Union First Colored Methodist Protestant Church and Connection in the

United States of America and The World.

A-13

The Historical Preface to the 1990 Book of Discipline

recites that a General Convention was held in Baltimore,

Maryland on August 25, 1866. That Convention founded a

General Conference and created a Book of Discipline. The

preface goes on to state that the representatives of the African

Union Church and the First Colored Methodist Protestant met

in General Convention on November 25, 1865 and that the

Convention resolved to adopt:

[A] platform to unite the two branches of Zion into

one Church, to be known and distinguished by the

name of the African Union First Colored Methodist

Protestant Church of the United States of America, or

elsewhere.

And to consummate this Union the General Con-

vention does hereby constitute a General Conference,

to consist of an equal number of delegates from each

Church, to be held in the city of Wilmington,

Delaware, on the morning ofthe 25th day of August

A.D., 1866.

From the foregoing the following may be concluded, at

least preliminarily: (a) The Conference is a corporation entirely

distinct and separate from the Mother Church, having been

incorporated 128 years after the Mother Church was formed, in

order to carry out the spiritual and religious objectives of the

© The record does not evidence the authenticity or authorship of that

resolution, or that the Mother Church formally assented to its provisions. The

plaintiffs concede, however, that the Mother Church was, while affiliated

with the Conference, subject at least spiritually to the Book of Discipline.

A-14

General Conference that was established in 1866; (b) The two

corporations have not merged, and their relationship, while not

easily characterized, is defined at least in part by the Book of

Discipline which, since its adoption in 1866, has been amended

several times; and (c) However the relationship between those

corporations may be characterized, there is no evidence that it

supplants the power of the Mother Church’s Trustees and mem-

bership to control the disposition of that Church’s physical

properties.

The instant litigation is the apparent culmination of a

dispute between Bishop Jackson and the late Reverend Maynard

Smith, the former Pastor of the Mother Church. According to

Bishop Jackson, Reverend Smith was expelled from the Con-

ference. (Jackson Aff., para. 13). When Reverend Smith died,

the Bishop or some other agent of the Conference attempted to

prevent the funeral from being held at the church building. The

Trustees refused to accept that ruling, and allowed Reverend

Smith’s funeral to take place at the church building.

That and other disputes eventually led the Trustees of the

Mother Church to convene a special meeting of the membership

on April 9, 1991, to vote on whether to secede and disaffiliate

from the Conference. At that meeting, 82 of the approximately

185 members of the congregation attended, and by a vote of 68

to 10 (with 4 abstentions), the members determined to secede

from the Conference. The Trustees also voted to secede.

(A133, 136).

In anticipation of, or in response to, those actions, Bishop

Jackson and/or the Conference took certain measures. They

were as follows: —

a) On April 6, 1991, Bishop Jackson witnessed eight

quitclaim deeds that were recorded with the New Castle County

Recorder of Deeds. One of those deeds purported to transfer the

-contested properties from the Mother Church to the Conference.

(A28-35). The deed was not signed or authorized by the plaintiff

A-15

Trustees. According to Bishop Jackson, the deeds were ex-

ecuted pursuant to authority granted by resolutions adopted at

Conference meetings held on January 12, 1991 and April 6,

1991. (Jackson Aff., paragraphs 21-23). However, no minutes

or other document evidencing the proceedings at those meetings

were ever placed of record.

b) On April 8, 1991, Bishop Jackson removed then-Pas-

tor Gunther, and replaced him by appointing Thomas E. Moon

as Pastor of the Mother Church.

c) On April 10, 1991 the Bishop and/or agents of the

Conference purported to remove the plaintiff Trustees “as trus-

tees and as members of the Church, according to church law as

Set forth in the Book of Discipline and in the April 6th resolution

-..." (Jackson Aff., para. 14). Apparently that was done, in

part, because the Trustees had refused to accept Reverend Moon

as the Pastor.

d) On April 14, 1991, Reverend Moon asked three per-

sons to be the new Trustees of the Mother Church.7 ~

After the April 9, 1991 secession vote, Reverend Moon,

with Bishop Jackson’s permission, caused the locks on the

Church building to be changed and posted security guards

outside. (Moon Aff., paragraphs 4-5). Asa result, and until this

Court issued its temporary restraining order, the members of the

congregation were forbidden access to the church building and

prevented from worshiping there.8

This litigation followed.

In his affidavit, Reverend Moon states that his Trustee-designees were

elected by a “congregation.” (Moon Aff., para. 7). That statement is,

however, conclusory and contains no specific facts as to who comprised that

“congregation” or by what process that election took place.

8 Itis also claimed that Bishop Jackson attempted to remove funds from

the Mother Church’s bank accounts and to put the Church’s properties up for

sale. Those claims are, however, disputed and need not be decided on this

motion.

Il.

This case represents but one aspect of a larger and highly

regrettable controversy: a church divided. That lamentable

circumstance inevitably leaves in its wake a host of spiritual and

social problems, in addition to those purely legal. Who is now

the minister of the congregation? Who are the irustees? Who

are and are not members of the Mother Church?? Of these

questions this Court is competent to address only the legal, and

even then only within the constraints of the First Amendment to

the United States Constitution as interpreted by decisions of the

United States Supreme Court.

Those decisions forbid civil courts from deciding church

property disputes on the basis of religious doctrine and practice.

Such courts may — indeed must — resolve such disputes only

on the basis of “neutral principles of law,” without considering

doctrinal matters such as the “ritual and liturgy or the tenets of

- faith.” Jones v. Wolf, 443 U.S. 595, 603 (1979) (quoting

Maryland & Va. Churches v. Sharpsburg Church, 396 U.S. 367,

368 (1970)); accord Presbyterian Church v. Hull Church, 393

U.S. 440 (1969); Serbian Orthodox Diocese v.M ilivojevich, 426

U.S. 696 (1976). Under a neutral principles approach, a civil

court may consider, and resolve church property disputes on the

basis of, sources such as state statutes, church corporate charters

and constitutions, and the language of trusts, deeds and similar

granting instruments. If, however, the interpretation of instru-

ments of ownership would require the court to resolve a religious

controversy, the court must defer that doctrinal decision to the

authoritative ecclesiastical body. Jones v. Wolf, 443 U.S. at 604;

Serbian Orthodox Diocese, 426 U.S. at 709.

9 To the extent this Court is empowered to answer those questions, the

answer must await a final hearing. The questions are complex and cannot be

decided at this preliminary stage. Indeed, neither counsel has fully briefed

these questions.

A-17

Mindful of these highly sensitive concerns, the parties have

cast their dispute largely on the basis of Delaware corporate and

property law principles. And while the defendants have based

certain of their preliminary injunction arguments upon the Book

of Discipline, those arguments do not require this Court to

interpret or determine religious doctrine. Essentially what must

be decided at this preliminary Stage is which corporation — the

Mother Church or the Conference — owns the disputed proper-

ties. The remaining issues raised by the complaint (to the extent

they are constitutionally cognizable) must await the final hearing.

The criteria on a motion for preliminary injunction are well

established. The moving party must show probable success on

the merits, imminent irreparable harm that will occur absent the

injunction, and that the irreparable harm that would result if

injunctive relief is denied outweighs the harm that would occur

if relief is granted. Ivanhoe Parters v. Newmont Mining Corp.,

Del. Supr., 535 A.2d 1334, 1341 (1987); Robert M. Bass Group,

Inc. v. Evans, Del. Ch., 552 A.2d 1227, 1238 (1988).

In this case the harm threatened to the plaintiffs clearly will

be imminent and irreparable if injunctive relief is denied. Such

harm will also outweigh any likely harm to the defendants if

relief is granted. What the plaintiffs will be deprived of is the

unfettered use of their property, including their congregants’

right to use the church building as a place of worship. Moreover,

the defendants, by executing and recording the April 6, 1991

deed purporting to transfer the disputed properties to the Con-

ference have seriously clouded the Mother Church’s title to

these properties. The harm occasioned by these acts is immedi-

ate and substantial, and it cannot be remedied except by an

injunction. Nor is there any Showing that granting preliminary

injunctive relief would harm the defendants more than denying

relief would harm the plaintiffs. The defendants intimate that

the balance of equities favor their position, but offer no reasoned

argument or any evidence to support their suggestion.

A-18

Consequently, this motion turns solely upon whether the

plaintiffs have demonstrated that they will probably succeed on

the merits after 2 final hearing. For the reasons now discussed,

I find that they have, and that a preliminary injunction must issue.

Il.

Any analysis of the claims pertinent to this motion must

begin with certain fundamental, undisputed facts. Before April

6, 1991, title to the disputed properties resided in the Mother

Church. On April 6, 1991, the defendants executed a deed

purporting to transfer title to those properties to the Conference.

The question, simply put, is whether that April 6, 1991 deed was

authorized by persons lawfully entitled to act on behalf of the

Mother Church. If so, then no basis for injunctive relief exists;

if not, then injunctive relief must be granted. As discussed in

Part III A, infra, only the Mother Church’s Trustees, with the

formal concurrence of two-thirds of the members, are em-

powered to transfer those properties, and those persons never

authorized the April 6, 1991 deed. The defendants contend,

nonetheless, that despite the authority vested in the Mother

Church’s Trustees and membership, the Book of Discipline and

certain purported amendments thereto give the Conference su-

perior, overriding authority over the disputed properties. For

the reasons discussed in Part III B, infra, I find that the

defendants’ position has no probable merit.

A.

Article 4th of the Mother Church’s certificate of incorpora-

tion provides that the Trustees “shall not by deed or otherwise

dispose of any part or portion of the Estates, real or personal,

which may be vested in the said Corporation . . . unless the same

shall be done with the consent of two-thirds of the regular

Members of the said Corporation.” (Emphasis added). It is

A-19

undisputed that the plaintiff Trustees have never deeded any of

the disputed properties to the Conference. Nor have two-thirds

of the Mother Church membership ever approved any such

property transfer or the execution of the April 6, 1991 deed.

Thus, based on the Mother Church’s most fundamental

corporate document — its certificate of incorporation — I find

at the threshold that (a) the Mother Church owns the properties

at issue, and (b) the April 6, 1991 deed purporting to transfer

those properties to the Conference was void ab initio. For those

reasons the plaintiffs have established a high probability of

success on the merits of their claims, unless the defendants can

demonstrate a superior claim of entitlement to the disputed

properties. The defendants assert that they have demonstrated

such a superior, overriding claim, arguing that (1) the Mother

Church had always held the properties in trust for the Con-

ference, and (2) representatives of the Conference possessed the

requisite authority to transfer the properties on behalf of the

Trustees.!° I now address those contentions.

B.

The defendants premise their claim of superior entitlement

upon their contention that the Conference is a hierarchical

organization whose members (i.e., the local churches, including

the Mother Church) occupy a subordinate position that makes

* ti addition to their substantive contentions, the defendants raise two

procedural defenses that, they urge, mandates the denial of injunctive relief.

Defendants argue that the plaintiffs have no standing to seek relief because

they are no longer members of the Mother Church. That argument, however,

has been mooted by the joinder of the Mother Church as a party plaintiff.

The defendants also contend that the Bishop is not a proper party defendant,

because no relief would be effective as against him. That argument is mooted

by the joinder of the Conference as a party defendant; moreover, the Bishop

is a proper party defendant because the complaint, fairly read, alleges that

the acts complained of were committed by him or by others acting under his

control. Accordingly, neither procedural defense has colorable merit.

A-20

them subject to direction by the Conference in accordance with

the Book of Discipline. The defendants rely upon two docu-

ments that, they claim are resolutions adopted by the Conference

on January 12, 1991 and April 6, 1991, respectively, and con-

stitute amendments to the Book of Discipline. The January 12,

1991 document pertinently provides that “titles to all properties

held . . . by a local church . . . shall be held in trust for [the

Conference].” (Jackson Dep., Exh. 3, p. 1). The April 6, 1991

document provides that “the ministers in charge of said [local]

churches shall be empowered to sign official documents pertain-

ing to the individual local church and the Conference. .. .”

(Jackson Dep., Exh. 4). Based upon those documents, the

defendants conclude that the April 6, 1991 deed transferring the

properties to the Conference was valid, because (i) those proper-

ties were held in trust for the Conference, and (ii) the local

minister had the authority to execute a deed transferring the

Mother Church’s property, notwithstanding the Trustees’ and

the members’ authority conferred by the 1813 certificate of

incorporation.

These arguments have no merit for several reasons.

First, while a hierarchical relationship between the Mother

Church and the Conference may arguably exist in the religious

and spiritual realms,'! no such relationship has been shown to

exist in the temporal realm that governs the ownership and

control of the Mother Church’s properties. The Mother

Church’s 1813 certificate of incorporation expressly provides

the procedure by which any transfer of the corporation’s assets

must take place. To validly cede to another entity the Mother

Church’s power to dispose of its assets, the 1813 certificate

provision mandating that procedure would have to be amended

in an appropriate way. That has never occurred.

11

The Court expressly disclaims making any finding as to whether a

hierarchical relationship exists in the religious and spiritual realms. Even if

such a finding were within this Court’s sphere of competence, it is unneces-

sary to a resolution of the pending motion.

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Second, it is undisputed that neither the plaintiff Trustees

nor their predecessors have ever executed any document,

ratified by two-thirds of the Mother Church’s members, placing

any of the Mother Church’s assets in trust for the benefit of any

other entity. Nor has any other evidence of a trust arrangement,

particularly evidence that would satisfy the evidentiary require-

ments of the Statute of Frauds, been submitted. See 6 Del. C.

sec. 2714(a). See also 76 Am. Jur. 2d, Trusts, sec. 44 at 290-91,

294 (1975).

Third, by the defendants’ own characterization, those

documents occupy, at best, the status of By-laws of the Mother

Church. Assuming without deciding the validity of that charac-

terization,!* the January 12th “by-law” placing local church

properties “in trust” for the Conference runs afoul of the prin-

ciple that where a by-law conflicts with the provisions of the

charter, the by-law is a nullity. 8 Del. C. sec. 109(b); Centaur

Partners v. Nat. Intergroup, Inc., Del. Supr., 582 A.2d 923, 929

(1990); Burr v. Burr Corp., Del. Ch., 291 A.2d 409, 410 (1972).

The January 12th document conflicts with the 1813 certificate

of incorporation, because Article 2nd of the certificate states that

the land is held in trust for the religious uses of the “said Union

Church,” which is now the Mother Church — not the Con-

ference.!3_ The April 6th document (which purports to em-

power the minister to transfer church property on behalf of the

12 For present purposes, the Court simply accepts arguendo Bishop

Jackson’s characterization that the Book of Discipline contains the current

rules of the Church, which are the “by-laws of the corporation.” (Jackson

Aff., para. 9). Defendants’ counsel also advocated that characterization at

oral argument.

13 At oral argument, defendants’ counsel relied upon Article 2nd of the

1813 certificate of incorporation, which states that the church properties are

held in trust for the religious uses of the “said Union Church.” Counsel

argued that the “Union Church” and the Conference were one and the same.

However, the evidence shows precisely the contrary: the Conference (as an

association) did not come into existence until 1866, and it did not take a

corporate form until 1941. The 1813 certificate could not possibly have

created a trust relationship in favor of an organization that did not then exist.

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Trustees) conflicts with the certificate of incorporation, because

Article 4th prohibits any disposition of Church assets without

the approval of the Trustees and two-thirds of the corporation’s

members. Again, no such consent was given here.

Fourth, the documents, by their own terms, do not create

any superior title or claim of title in the Conference. Section II

of the January 12th document states that “All provisions of the

Discipline relating to property . . . and relating to the formation

and operation of any corporation . . . are conditioned upon their

being in conformity with the local laws, and in the event of

conflict therewith [sic] the local laws shall prevail... .” (Jackson

Dep., Exh. 3, p. 3). “Local law” is defined to include “the laws

of the county, state, or other like political unit within the

geographical [sic] bounds of which the church property is

located.” Jd. Thus, by its own terms, the January 12th “by-law”

trust provision gives way to local law. Under local law, the

Mother Church clearly owns the properties. See Part III A,

supra. And while the April 6th document purports to empower

the minister in charge to sign official documents pertaining to

the individual local church, it does not authorize the minister to

do so without the consent, or over the opposition, of the Trustees

‘in matters where Trustee approval is required.

Fifth, the January 12th and April 6th documents do not

constitute credible evidence that the Conference ever took the

actions that the defendants attribute to it. Neither document

appears on the stationery of the Conference: the letterhead is of

an organization having a different name. The record contains

no minutes or other documents evidencing official action taken

by the Conference on those dates — only the Bishop’s con-

clusory affidavit testimony is offered. Indeed, the Court is

uncertain as to what these documents truly represent and the

basis of their authenticity. Are they resolutions? Of what body?

Are they part of the Book of Discipline? By what authority?

While answers to these questions may well be forthcoming at

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the trial stage, no answers have been provided here. On the

present record these documents appear to be self-serving and,

in all events, are unpersuasive.

IV.

Having determined that the plaintiffs are entitled to

preliminary injunctive relief, the Court must next decide what

form that relief should take. One alternative is to continue the

temporary restraining order in effect until this action is finally

determined on its merits. The other alternative, which the

plaintiffs ad: »cate, is to enter an order that would effectively

restore to the plaintiffs unrestricted control of the properties,

pendente lite.

Because of the Court’s preliminary rulings and of the issues

still remaining to be determined at final hearing, there are several

open questions that concern the governance of the Mother

Church, and, consequently, the management of its property and

affairs. These questions include the identity of the lawful Trus-

tees and congregation, and whether the Mother Church has

lawfully disaffiliated from the Conference. Should those ques-

tions be resolved in favor of the Conference, one result may be

to empower the defendants to influence in some (as yet un-

defined) manner the management and disposition of the Mother

Church’s properties.

Given these uncertainties, the Court is persuaded that a

form of interim injunctive relief that would altogether exclude

the defendants from access to the Mother Church’s properties at

this stage is inadvisable. It would risk irreparably prejudicing

the defendants’ position before the case has been adequately

presented and decided. That observation is not intended in any

way to suggest my view of the ultimate outcome, but only to

strike an appropriate interim balance between the legitimate

interests of both sides. That balance, in my view, is best struck

A-24

by (i) continuing the temporary restraining order in effect until

this action is finally determined on the merits, and (ii) scheduling

a final hearing on an expedited basis, consistent with this Court’s

other commitments. That result will permit both sides of the

dispute to have access to the church building until this litigation

is resolved, and will minimize the risks inherent in giving either

side unfettered control of the properties at this preliminary stage.

Accordingly, the plaintiffs’ motion for a preliminary in-

junction is granted. The temporary restraining order previously

entered shall remain in effect until further order of the Court.

Counsel shall promptly confer with each other, and then with

the Court to schedule expedited discovery and trial.

IT IS SO ORDERED.