Petition — Babcock Memorial Presbyterian Church v. Presbytery of Baltimore

Office “Supreme Court, U.S,

83-1051 FILED

DEC 24 1993

No. 83- ALEXANDER L. STEVAS,

CLERK |

In the Supreme Court of the United States

October Term, 1983

BABCOCK MEMORIAL PRESBYTERIAN CHURCH,

a body corporate, et al.,

Petitioners,

VS.

THE PRESBYTERY OF BALTIMORE OF THE UNITED

PRESBYTERIAN CHURCH IN THE UNITED STATES

OF AMERICA, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

WARREN JACKSON WILLIAMSON

(Counsel of Record)

P.O. Box 467

Greenville, Alabama 36037

(205) 382-2635

Mark E. WERNER, II

1102 Court Square Building

Baltimore, Maryland 21202

Davin S. PEARL

1209 Court Square Building

Baltimore, Maryland 21202

Attorneys for Petitioners

——— — ed

E. L. Mexpewnmatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

QUESTION PRESENTED

Whether the First and Fourteenth Amendments to

the United States Constitution prohibit a State Court from

awarding local church property to a parent denomination

with a hierarchical ecclesiastical structure after a due

severance of the denominational connection by the local

church where there is (1) no provision in the denomina-

tion’s constitution prohibiting such a severance or im-

posing any penalty or forfeiture of property upon such

action and (2) no provision in the denomination’s con-

stitution nor in any instrument of title imposing an express

trust on the local church property on behalf of the parent

denomination?

ur

TABLE OF CONTENTS

QUESTIONS PRESENTED .............. I

EE RE 2

a ia

CONSTITUTIONAL PROVISIONS INVOLVED ............ 2

STATEMENT OF THE CASE ...................---.-.--c-ceceoeeeeeeeeee 3

REASONS FOR GRANTING WRIT WW. 11

EN EE 30

APPENDIX A—Opinion Below @22..220.202....22...-c-cceceeceeeeeees Al

APPENDIX B—Order Denying Reconsideration .......... Alg

APPENDIX C—Motion for Reconsideration .................. A22

APPENDIX D—Opinion of Trial Court 0.000000... A39

APPENDIX E—Opinion of the Supreme Court of

Er A57

APPENDIX F—Sections of the Constitutions of The

United Presbyterian Church in The United States

of America and The Presbyterian Church in the

dali tate sein csancenitasitepsenntnaceseene A69

APPENDI§ G—WMortgage from Babcock Memorial

Presbyterian Church to the Presbyterian Church

in the United States of America .............................. A79

TABLE OF AUTHORITIES

Babcock Memorial Presbyterian Church, et al. v. The

Presbytery of Baltimore of the United Presbyterian

Church in the United States of America, et al., Md.,

464 A. 2d 1008 (Opinion of Maryland Court of Ap-

i ianlihiiawicetiesscnnoninencninidstaimessnsccnmues 2, 12, 14, 15, Al

Babcock Memorial Presbyterian Church, et al. v. The

Presbytery of Baltimore of the United Presbyterian

Church in the United States of America, et al., 52

Md. App. 428, 449 A. 2d 1190 (1982) (Opinion’ of

Maryland Court of Special Appeals) 0.2.2.2... 9

Iv

Babcock Memorial Presbyterian Church, et al. v. The

Presbytery of Baltimore of the United Presbyterian

Church in the United States of America, et al., Ap-

pendix D (Opinion of Maryland Trial Court) .......... 9, A39

Foss v. Dykstra, S.D., 319 N.W. 2d 499 (1982) (Original

| ee see 12, 14

Foss v. Dykstra, S.D. (Nov. 23, 1983) (yet unreported)

(Second South Dakota decision) (Appendix E) ........

12, 14, 15, 16, A57

Jones v. Wolf, 443 U.S. 595, 99 S. Ct. 3020, 61 L. Ed. 2d

| RE eee 12, 16, 18, 19, 20, 21, 22, 23,

26, 27, 28, 29

Jones v. Wolf, 241 Ga. 208, 243 S.E. 2d 860 (1978) ...... 20-21

Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S. Ct.

"Me. Oe... ee 22

Kreshik v. St. Nicholas Cathedral, 363 U.S. 190, 80 S.

Ct. 1037, 4 L. Ed. 2d 1140 (1960) 2.2... ee eeeeceeeeees 22

Larkin v. Grendel’s Den, Inc., 74 L. Ed. 2d 297 (1982)

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

vac. 393 U.S. 528 (1969), reaff’d, 254 Md. 162 (1969) 19

Presbyterian Church in the United States, et al., v.

Mary Elizabeth Blue Hull Memorial Church, et al.,

398 U.S. 440, 21 L. Ed. 2d 658, 89 S. Ct. 601 (1969) ...19-20

Presbytery of Riverside v. Community Church of Palm

Springs, 89 Cal. App. 3rd 910, 152 Cal. Rptr. 854

(Ct. App., 4th Dist. 2nd Div., 1979), cert. den. 444

U.S. 974, 100 S. Ct. 469, 62 L. Ed. 2d 389 (1979) ...12, 13

14, 15

Piletich, et al. v. Deretich, et al., Minn., 328 N.W. 2d

Be I eccttistecahinewstcsrsecuicbhieiiapniniihiaaiadnsilaa cei tial 21, 22

Serbian Eastern Orthodox Diocese v. Milivojevich,

426 U.S. 696, 49 L. Ed. 2d 151, 96 S. Ct. 2372 (1976) 21

No. 83-

In the Supreme Court of the United States

October Term, 1983

BABCOCK MEMORIAL PRESBYTERIAN CHURCH,

a body corporate, et al.,

Petitioners,'

vs.

THE PRESBYTERY OF BALTIMORE OF THE UNITED

PRESBYTERIAN CHURCH IN THE UNITED STATES

OF AMERICA, et al.,

Respondents.”

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

1. Petitioners are: Robert B. Louthan, Howard E. Hill as

Pastor and Assistant Pastor of Babcock Memorial Presbyterian

Church; Donald J. Dean, Jr., R. Dale Mershon, Forrest H. Wil-

liams, S. Ralph Reed, Jr., Raymond R. Baker, Bruce B. Burns,

John J. Vanko, Donald P. Childs, Mirvin H. Metzger, Charles H.

Masters, James D. Foote, William E. Cole, James B. Pfeiffer as

members of Session of Babcock Memorial Presbyterian Church;

Kathleen M. Brown, Donald L. Evans, J. Fred Maienshein, Richard

S. Myer, Craig S. Habicht, Donald B. Munro, Robert D. Fagan,

Charles G. Walker, John E. Cyphers, and Marvin H. Stever as

members of Board of Trustees of Babcock Memorial Presbyterian

Church; and Mark E. Werner II, Lawrence P. Steele, Jr., Gary

Armstrong, Harry Fisher, Howard M. Flynn, and Roy Pauley as

members of Session and Board of Trustees of Merritt Boulevard

Presbyterian Church of Dundalk, Inc.

2. Respondents are: The Presbytery of Baltimore of The

United Presbyterian Church in the United States of America, an

unincorporated association; and Richard L. Werley, George R.

Demass, Joseph Hsu, Robert S. Baird, H. Burke Carr, William R.

Hildebrand, Arthur H. Joslin, Jr.. Mary R. Lawrence, Marshal

McCord, W. Bruce Shoemaker, Steven Stevens and Russell C.

Walters, constituting an Administrative Commission of The Pres-

bytery of Baltimore of The United Presbyterian Church in the

United States of America.

2

Babcock Memorial Presbyterian Church, a body corpo-

rate, et al., respectfully petition for a Writ of Certiorari to

review the judgment of the Court of Appeals of Maryland

in the above entitled case.

OPINION BELOW

The Opinion of The Court of Appeals of Maryland is

reported at 464 A. 2d 1008 (Md. 1983) (App. A p. Al).

The Order of The Court of Appeals of Maryland denying

reconsideration is not reported (App. B p. AlQ).

JURISDICTION

The judgment of The Court of Appeals of Maryland

was entered on August 17, 1983. The Order of The Court

of Appeals of Maryland denying a timely Petition for Re-

consideration was entered on September 27, 1983. The

jurisdiction of this Court is invoked under 28 U.S.C. Sec-

tion 1257(3) and 28 U.S.C. Section 2101(c).

CONSTITUTIONAL PROVISIONS INVOLVED

U. S. Const., Amend. I:

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise

thereof * **.

U. S. Const., Amend. XIV, Sec. 1:

* * * nor shall any state deprive any person of life,

liberty, or property, without due process of law * * *.

STATEMENT OF THE CASE

On June 25, 1891, the Park Presbyterian Church of

Baltimore City (later re-named Babcock Memorial Pres-

byterian Church-hereinafter Babcock) was incorporated

under the General Religious Corporations Law of the State

of Maryland. The original Charter contained the following

articles:

Article I: The object of this Corporation shall be

the establishment and maintenance of a Presbyterian

Church in the City of Baltimore.

Article VI: The Park Presbyterian Church of Balti-

more City shall forever remain a Presbyterian Church

in accordance with the Standards of the Presbyterian

Church of the United States.

Babcock Memorial Presbyterian Church’s charter has been

amended several times, including the deletion of Article VI

on March 23, 1981. All the real and personal property of

Babcock is titled in the corporation without any reference

to any denominational affiliation. Other than certain spe-

cific minor donations, all funds used to acquire and maintain

Babcock’s property (both real and personal) resulted from

the efforts and donations of the local congregation and no

funds were given to Babcock by any higher United judi-

catories.

In 1893, the Park Presbyterian Church was enrolled

as a member of the Presbytery of Baltimore of the Pres-

byterian Church in the United States of America (one of

the predecessors of the United Presbyterian Church in

the United States of America-hereincalled United).

United is an association of local United Presbyterian

4

churches organized into and governed by an ecclesiastical

connectional, hierarchical structure consisting of four dis-

trict bodies known as judicatories. The composition, struc-

ture and powers of these judicatories, as well as other pro-

visions relating to the government of and relations within

United are found in the Constitution referred to as the

Book of Order. The judicatories of United in ascending

order of authority according to the powers given or re-

served to them by The Book of Order, are: (1) the

Session of the local church; (2) the Presbytery, composed

of all the United Presbyterian Churches in a geographical

area; (3) the Synod, generally composed of the presbyteries

in a given state or region; and (4) the General Assembly,

the highest governing body within United.

The Book of Order contains several provisions relating

to the powers of the governing bodies of the local church.

These bodies are the Session, the body charged with having

authority over all the affairs of the local church, and the

Trustees, who in Maryland are the members of the corpora-

tion which is the legal residuary of title to the property

of the local church. There are also some provisions in

the Book of Order relating to the ownership of property,

both real and personal, by local churches, and the relation-

ship to such property by the higher judicatories of the

United Presbyterian Church. A brief review of some of

these sections will be instrumental in the Court’s under-

standing of the case.

Section 41.08 (App. F) accords authority over all af-

fairs and activities of the local church to the Session “ex-

cept such matters as may, by this Form of Government,

be specifically accorded to the pastor, to the congregation,

or to a higher judicatory.” This section also places the

Board of Trustees directly under the authority of the

Session.

5

Section 62.04 (App. F) grants to the Board of Trustees

the authority to “receive, hold, encumber, manage and

transfer property, and to facilitate the management of its

civil affairs in such manner as may be directed by the

session of the particular church from time to time and ac-

cording to the Constitution”. The authority granted to the

Board of Trustees is limited by the provisions of Section

62.08 (App. F) which requires that “they shall deal with

such property only as they may be authorized or directed

by the session, and their authority in respect to the selling,

mortgaging, and leasing of real property shall be subject

also to any rights reserved to the congregation by civil

law or by the by-laws of the particular church and to the

permission of presbytery as herein provided. The

Trustees of a particular church shall exercise any other

powers or authorities vested in them by civil law in con-

formity with the actions of the session as conveyed to

them from time to time.”

The circumstances requiring the permission of the

Presbytery referred to in Section 62.08 are enumerated in

Section 62.12, which states:

A particular church shall not sell, mortgage or other-

wise encumber any of its real property . . . without the

written permission of the presbytery transmitted

through the session of the particular church.

A particular church shall not lease its real property

used for purposes of worship, or lease for more than

five years any of its other real property, without the

written permission of the presbytery transmitted

through the session of the particular church.

A final section dealing with the property of a local

church is Section 62.11 which provides as follows:

Whenever hereafter a particular church is formally

dissolved by the presbytery, or has become extinct

by reason of the dispersal of its members, the abandon-

ment of its work, or other cause, such property as it

may have, both real and personal, shall be held, used

and applied for such uses, purposes, and trusts as the

presbytery may direct, limit and appoint, or such

property may be sold or disposed of as the presbytery

may direct, in conformity with the Constitution of

The United Presbyterian Church in the United States

of America.

In the Trial Court this case was submitted on an

“Agreed Statement of Facts” stipulated by the parties.

In this Stipulation the following facts were agreed not to

be in dispute and were deemed admitted by the parties,

to wit:

1. Except for 62.11 quoted above, there is no specific

provision in the Constitution of UNITED or any rel-

evant document of title involved in the case at Bar,

which gives the Presbytery of Baltimore or any higher

judicatory in UNITED, any proprietary or contractual

interests in the real or personal property involved in

this lawsuit. Likewise, on March 14, 1981, and prior to

that date, there was no specific provision in the Consti-

tution of UNITED imposing an express trust on local

church property for the benefit of the presbytery, the

synod, the General Assembly or the denomination as a

whole.

2. On March 14, 1981, and to the present date, Bab-

cock has not been dissolved by the Presbytery or be-

come extinct by reason of the dispersal of the church’s

members, the abandonment of the church’s work or

other cause. Nor has Babcock’s Board of Trustees been

dissolved or its members removed by any action of

the Presbytery.

7

3. There are no express provisions in the Constitution

of UNITED outlining any method or procedure for a

local UNITED Church to change its denominational

affiliation, nor is there any express provision per-

mitting or prohibiting a local church to withdraw from

UNITED. Except as Section 62.11 may apply, there

are no specific provisions in the Book of Order im-

posing a penalty or forfeiture of property upon such

a withdrawal.

4. Both on June 25, 1891, when Park Presbyterian

Church was originally incorporated, and at present,

there was and is no specific provision in the Constitu-

tion of the denomination mandating that a local church

include language in its corporate charter or deeds re-

quiring the local church or its property to always re-

main a part of UNITED.

5. The Board of National Mission of the Presbyterian

Church in the United States of America loaned Bab-

cock $5,000.00 secured by a mortgage dated September

26, 1951. This mortgage contains the following pro-

vision: “Whereas this mortgage and the obligation

which it secures shall become due and payable im-

mediately upon the mortgagor’s severing its denom-

inational connection with the General Assembly of the

Presbyterian Church in the United States of America,

ceasing to exist as an organization, failure to use the

structure erected on the premises described herein as a

church building, or divesting itself to the title to the

premises.” (App. G) (Emphasis supplied).

Certain disputes, ecclesiastical in nature, arose be-

tween Babcock and United, culminating in a decision by

the Session of Babcock that affirmative action be taken.

On March 14, 1981, Babcock’s Session determined that ap-

propriate actions be taken to sever Babcock’s relationship

with United and its constituent bodies. On March 23,

1981 at a duly constituted meeting called by the Session

and Board of Trustees on March 14, 1981, the membership

of the Babcock congregation voted by an overwhelming

majority (228 to 6) to withdraw from United and its con-

stituent judicatories. At that same meeting, the member-

ship of the congregation approved, ratified and adopted

as their action the actions taken by the Session and Board

of Trustees which included the severing of Babcock’s rela-

tion with United and Babcock’s conveying all of its real

and personal property as gifts to Merritt Boulevard Presby-

terian Church of Dundalk, Inc. (hereinafter called Merritt).

Merritt was incorporated in Maryland on April 15, 1980 as

an unaffiliated Presbyterian Church.

On March 22, 1981, the Administrative Commission of

United, which was appointed by Presbytery to replace the

Session at Babcock, took control of the Babcock main church

building and chapel by placing security guards in one or

both buildings. On March 23, 1981, with the assistance of

those security guards, these representatives of United re-

quired certain Babcock congregants to leave the premises

and then changed the locks to the Babcock Church build-

ings. Requests to United for possession of the Babcock

buildings were denied.

Merritt then filed suit in ejectment and trespass to

regain possession of the property against United and its

representatives. United and its representative then filed

a suit in equity inst Babcock, its former »astor, its

former associate or, a number of persons who were

members of the deposed Session of Babcock, the various

individual members of the Board of Trustees of Babcock,

Merritt, and the members of the Session of Merritt. It

sought an interlocutory and permanent injunction against

interference with United and its representatives in the

exercise of its authority over the affairs of Babcock, that

9

Merritt and the members of its Session be ordered to trans-

fer and convey to Babcock the real and personal property

received by it from Babcock, an accounting, and other

relief. Former members of Babcock filed a counterclaim

for release of its personal property.

The cases were consolidated and submitted to the

Circuit Court for Baltimore County on the Agreed State-

ment of Facts. The Trial Court found that United main-

tained a congregational polity with respect to the use and

ownership of local church property and that the original

Babcock Session and its Board of Trustees were legally

entitled to make absolute and irrevocable gifts of that

church’s real and personal property to Merritt (App. D).

An appeal was filed with the Court of Special Appeals of

the State of Maryland, which reversed the decision of the

Trial Court 52 Md. App. 428, 449 A. 2d 1190 (1982).

The Court of Appeals of Maryland granted a Writ of Cer-

tiorari. On hearing the Court of Appeals confirmed the

decision of the Court of Special Appeals (App. A). On

September 27, 1983, the Court of Appeals denied Peti-

tioners’ timely Petition for Reconsideration (App. B). This

Petition for Writ of Certiorari followed.

The federal questions here sought by Petitioners to

be reviewed were raised as follows:

1. In oral argument by Counsel for Petitioners be-

fore the Trial Court, it was stated “Now then, having

dealt then with a little bit of the nature of the church,

this Court is well aware that the First Amendment

to the Constitution of the United States states that

Congress shall, in part, make no law respecting the

establishment of religion or prohibiting the free ex-

ercise thereof. And since now in our system of ju-

risprudence the Fourteenth Amendment has made that

First Amendment applicable to the states, it is ap-

plicable to Maryland, and you might as well say Mary-

10

land can make no law respecting the establishment of

religion nor deny the free exercise thereof. Therefore,

since the parties to this present litigation are religous

organizations, any resolution of the issue in this case

must stand the scrutiny by this civil court of the pro-

hibitions of the First Amendment litigation. So I

want to now spend a little time with this Court dis-

cussing the prohibitions that are developed in the

First Amendment litigation as they apply to this case”.

Then followed a long argument concerning these fed-

eral questions.

2. In Petitioners’ Brief in the Court of Special Ap-

peals of Maryland, the first statement relates to these

federal questions, as follows: “Since the parties to

this litigation are religious organizations, the Trial

Court recognized that any resolution of the issues must

withstand the scrutiny of the judicial principles and

restraints developed in First Amendment litigation

regerding the establishment and free exercise of re-

ligion clauses”. Then follows a long discussion of

these federal questions as they relate to the First

Amendment to the Constitution of the United States.

3. Petitioners raised as one of the Questions presented

in their brief to the Court of Appeals as follows:

“Whether the Court of Special Appeals violated the

First and Fourteenth Amendments to the United States

Constitution. . .”

4. In each of the briefs submitted by Petitioners to

the Trial Court, the Court of Special Appeals and the

Court of Appeals, Amendments 1 and 14 to the Con-

stitution of the United States were mentioned as con-

stitutional provisions involved in this case.

5. Petitioners’ Motion for Reconsideration in the

Court of Appeals of Maryland (App. C) raised these

federal questions throughout.

ll

REASONS FOR GRANTING WRIT

I

THE COURT OF APPEALS OF MARYLAND HAS

DECIDED A FEDERAL QUESTION IN A WAY IN

CONFLICT WITH COURTS OF LAST RESORT IN

CALIFORNIA AND SOUTH DAKOTA INVOLVING

THE WITHDRAWAL OF A LOCAL CONGREGATION

FROM THE UNITED PRESBYTERIAN CHURCH IN

THE UNITED STATES OF AMERICA.

On March 23, 1981 Babcock Memorial Presbyterian

Church (Babcock), by a vote of 228 to 6, in a congrega-

tional meeting duly called for that purpose, voted to with-

draw from the United Presbyterian Church in the United

States of America (United) and its constituent judicatories,

including the Presbytery of Baltimore (Presbytery) and

sought to retain its local church property after the sever-

ance. The Court of Appeals of Maryland held that United

had an interest in the Babcock property and thus refused

to allow the local congregation at Babcock to withdraw and

retain its local church property. Thus the Court of Appeals

of Maryland has awarded an interest in local church prop-

erty titled in Babcock Memorial Presbyterian Church, a

body corporate, to the Presbytery of Baltimore, a judi-

catory of United, after a due severance of the denomina-

tional connection by the local church even though in the

United Constitution there was no provision prohibiting such

a severance or imposing any penalty or forfeiture of prop-

erty upon such action, and no provision imposing an ex-

press trust on the local property on behalf of United; and

there was no language in the instrument by which the local

church acquired the property showing any connection with

United or expressing any trust therein for the denomina-

tion.

12

In the case of Presbytery of Riverside v. Community

Church of Palm Springs, 89 Cal. App. 3rd 910, 152 Cal.

Rptr. 854 (Ct. App., 4th Dist., 2nd Div., 1979), cert. den.

444 U.S. 974, 100 S. Ct. 469, 60 L. Ed. 2d 389 (1979) (Com-

munity Church) the appellate courts of California were

faced with a factual situation almost identical to that in

the case at bar. That case also involved the question of

ownership of local church property by a church which had

formerly been a member of United and withdrawn. The

same Book of Order (church constitution) was presented

to both the California and Maryland courts. The California

Appellate Court held that the local church was the abso-

lute owner of its property, that the local church had a

right to withdraw from United, and that United did not

have any interest in the local church’s property. The

Maryland Court reached the exact opposite conclusion in

Babcock although both Courts were using the neutral prin-

ciples of law approach.

More recently, the South Dakota Supreme Court has

decided, under the neutral principles of law approach de-

veloped in Jones v. Wolf, 443 U.S. 595 (1979), that a local

congregation could withdraw from United and keep its

local church property. The South Dakota Court initially

adopted the neutral principles approach in the case of Foss

v. Dykstra, S.D., 319 N.W. 2d 499 (1982). After that case

had been remanded to the Trial Court for a review in light

of the adoption of the neutral principles approach, the

South Dakota Supreme Court re-examined the same church

constitution presented to the Court of Appeals of Maryland

in Babcock and rendered an opinion on November 23,

1983 (App. E) that this constitution did not contain any

language granting to the denomination any interest in the

local church property and that the local church had a

right to withdraw from United, by majority vote, and

keep its local church property.

13

A comparison of the facts in the California case of

Community Church, and the Maryland case of Babcock will

show the factual similarities between the cases. The facts

in Babcock have been previously set out in the Statement

of the Case. In Community Church we see the following:

1. “It is undisputed, of course, that Community Church

has title to and possession of all the property in dis-

pute both, real and personal”. 89 Cal. App. 3d at

931.

2. “The original Articles of Incorporation of Com-

munity Church recited that it was ‘a church organized

under and adhering to the doctrines and disciplines

of the Presbyterian Church in the United States of

America’ and provided that the corporation ‘shall be |

at all times subject and adhere to the doctrines and

disciplines of the Presbyterian Church in the United

States of America’...”. 89 Cal. App. 3d at 929.

3. “Community Church unilaterally terminated its af-

filiation with UPCUSA”. 89 Cal. App. 3d at 914.

4. “UPCUSA claims ownership and the right to pos-

session of all the real and personal property standing

in the name of Community Church and possessed by

it on the date it terminated its affiliation with

UPCUSA”. 89 Cal. App. 3d at 914.

5. United “is organized in a hierarchical structure of

ascending representation levels of ecclesiastical autho-

rity called judicatories. That part of its constitution

dealing with the system of government is designated

‘the Book of Order’”’. 89 Cal. App. 3d at 915.

6. “The congregants of Community Church, by an

overwhelming majority, voted to withdraw from

United. Then, United appointed an Administrative

Commission to take over Community Church”. 89 Cal.

App. 3d at 918-919.

14

7. “With the exception of a small amount of money

received from the Presbytery of Riverside early in Com-

munity Church’s history, all funds used to purchase

and improve properties of Community Church came

from its members or non-member individuals residing

in or visiting the desert area of Riverside County and

not from or through the efforts of Plaintiffs

(UPCUSA)”. 89 Cal. App. 3d at 929.

Likewise a comparison of the facts in the South Dakota

case of Foss v. Dykstra, and the Maryland case of Babcock

will show the factual similarities between these cases.

In Foss v. Dykstra we see the following:

1. “Record title is vested in local church corporation,

organized and existing under the laws of South

Dakota”. (App. E p. A60).

2. “On November 24, 1980, due to doctrinal differ-

ences, a majority of the members of a Local Church

by vote of 198 to 32 adopted a ‘Resolution of Seces-

sion’ to sever affiliation with UPCUSA”. (App. E pp.

A58).

3. “National Church responded by initiating this

action to obtain, use, control and possession of a Local

Church’s real and personal property”. (App. E p. A58).

4. “The parties agree that the United Presbyterian

Church in the United States of America is a hierar-

chical organization as distinguished from congrega-

tional form of church associations”. 319 N.W. 2d at 499.

5. Local Church borrowed money from United and

gave a mortgage as security. This mortgage contained

a provision that:

“This mortgage and the obligation which it secures

shall become due and payable immediately upon the

15

mortgagor’s severing its denominational connection

with the General Assembly of United Presbyterian

Church in the United States of America. . .”. (App.

E p. A61).

The conclusions reached by the Maryland, California

and South Dakota Courts based on similar factual situa-

tions as they scrutinized and applied neutral principles to

the Constitution of United, are as follows:

A. In Babcock the Maryland Court concluded:

1. ... “that Babcock is not a congregational church

but the relationship here is one that is hierarchical in

nature. Accordingly the Presbytery has an interest

in this property”. (App. A p. Al6).

2. By failing to rule on Babcock’s right-to-withdraw

in its initial opinion (App. A) and denying Babcock’s

Motion for Reconsideration (App. C), the Court in

effect denied Babcock the right, by majority vote, to

withdraw from the ecclesiastical jurisdiction of United

and maintain the ownership and right to control its

local church property.

B. In Community Church the California Court con-

cluded:

1. “It is undisputed that a local church within

UPCUSA may withdraw and terminate its affiliation”.

89 Cal. App. 3d at 924.

2. “The property of a local church, even one that is

part of a general church organization of a hierarchical

structure, is held in trust by a religious non-profit cor-

poration for the benefit of the local church congrega-

tion”. 89 Cal. App. 3d at 927.

C. In Foss v. Dykstra the South Dakota Court con-

cluded:

ae SE ET

16

1. “We determined that Local Church is entitled to

control over this local church property and that Na-

tional Church has no interest therein”. (App. E p. A68).

2. “Here, the majority of members of Ebenezer United

Presbyterian Church voted to withdraw from

UPCUSA. Since there are no express provisions to

overcome this presumption of majority representation,

this majority represents Ebenezer United Presby-

terian Church. Accordingly, we affirm Trial Court’s

decision awarding control of local church property to

a Local Church”. (App. E p. A67).

It is obvious that these State Courts have differing

opinions as to the exact meaning of this Court’s instructions

in Jones v. Wolf, and consequently have rendered conflict-

ing decisions affecting local churches of the same denom-

ination. It is clear that in Jones v. Wolf this Court stated

that unless there is express language of trust in legally

cognizable form in the instruments of title or in the con-

stitution of the denomination, then no such trust can be

inferred or implied through a searching inquiry into the

church constitution. But State Courts continue to render

conflicting opinions on this Federal Question. Not only

have the courts of last resort of the jurisdictions of Mary-

land, California and South Dakota issued contrary opinions

involving the same denomination; but litigation is also

pending at various stages involving local congregations

who have withdrawn from United or The Presbyterian

Church in the United States in the States of New York,’

3. First Presbyterian Church of Schenectady, et al. v.

United Presbyterian Church in the United States and Presbytery

of Albany. This case involves a United church and the United

denomination. Judgment rendered February 12, 1981 in Supreme

Court of New York, Saratoga County awarding property to local

church that had withdrawn from United. Order reversing en-

tered by Supreme Court of New York, Appellate Division of the

Third Judicial Department on March 21, 1983. Case now on

appeal to Court of Appeals of New York.

17

Ohio,‘ Michigan,’ Pennsylvania,’ Missouri,’ Tennessee,*

4. Bernadine Christensen, et al. v. Richard Roumfort, et al.

Opinion and Judgment entered on September 13, 1983 in the

Court of Common Pleas, Case No. C.V. 983, in Mahoning County,

Ohio. This case involves Tabernacle United Presbyterian Church

which voted to withdraw from Eastminster Presbytery of United.

Trial Court concluded that local church could withdraw and keep

its property. Case is on appeal.

5. Calvary Presbyterian Church v. Presbytery of Lake

Huron of the United Presbyterian Church in the United States

of America. This case involves a local church in Flint, Michigan,

which withdrew from the United denomination. On February 28,

1983, the Trial Court, the Circuit Court for the County of Gen-

essee, entered a judgment for the United. Case is now on appeal.

6. The Presbytery of Beaver-Butler of the United Presby-

terian Church in the United States, et al. v. Middlesex Presby-

terian Church, et al. This case involves a United local church

which withdrew from the United denomination. The Trial Court,

the Court of Common Pleas of Butler County, Pa. awarded the

property to the local church. The case is now on appeal in the

Commonwealth Court of Pennsylvania, Docket No. 1740-CD-1982.

The Presbytery of Philadelphia of the United Presbyterian

Church in the United States of America, et al. v. The Tenth

Presbyterian Church, et al. This case involves a United local

church which withdrew from the United denomination. By

Judgment entered July 26, 1983, the Trial Court ruled that the

local church could not withdraw from United and retain control

of its property. Case is on appeal in the Commonwealth Court

of Pennsylvania.

The Presbytery of Donegal v. Wayne Wheatley, et al. in

the Court of Common Pleas of Chester County, Pa., Docket No.

1456 (In Equity, 1981). This case involves Faggs’ Manor Pres-

byterian Church of Cochranville, Pa. which withdrew from the

United denomination. Case being held in Trial Court awaiting

outcome of other similar cases.

The Presbytery of Donegal v. S. Reed Calhoun, et al. in

the Court of Common Pleas of Chester County, Pa., Docket No.

78-80 (In Equity). This case involves Coatesville Presbyterian

Church, a local church, which withdrew from the United de-

nomination. Case being held in Trial Court awaiting outcome of

other similar cases.

Presbytery of Philadelphia, et al. v. J. R. Miller Memorial

Presbyterian Church, et al. in the Court of Common Pleas of

Delaware County, Pa., Docket No. 80-12077. This case involves

a local Presbyterian church which withdrew from the United

denomination. Case is being held in Trial Court awaiting outcome

of other similar cases.

Printer’s Note: Due to the length of the footnotes and the

page, footnotes 7 and 8 can be found on p. 18.

18

Texas.’ Additionally there are many cases pending involv-

ing other denominations on these same issues.

It is of the utmost importance that the First Amend-

ment rights guaranteed under the Constitution be uni-

formly applied throughout the nation. Consequently a

further clarifying opinion from this Court is required.

II

THE COURT OF APPEALS OF MARYLAND IN-

CORRECTLY INTERPRETED THIS COURT’S RUL-

ING IN JONES V. WOLF, IN GRANTING UNITED

AN INTEREST IN THE PROPERTY OF A WITH-

DRAWN..LOCAL CHURCH IN THE ABSENCE OF

TRUST LANGUAGE IN SOME “LEGALLY COG-

NIZABLE FORM” IN FAVOR OF THE DENOMINA-

TION.

In Jones v. Wolf this Court cautioned denominations,

such as United, that they should modify deeds, corporate

charters, or church constitutions to recite an express trust

7. Presbytery of Eligah Parish Lovejoy, et al. v. Memorial

Presbyterian Church of St. Louis, et al. This case involves a

local church which withdrew from the United denomination. The

Trial Court the Circuit Court of the City of St. Louis, Missouri

on December 16, 1982 held that under the rule of deference of

Watson v. Jones, 80 U.S. 679 (1871), which has been followed

by Missouri, the denomination was entitled to the local church’s

property. Case is now on appeal in the Missouri Court of Ap-

peals, Eastern District, Docket No. 46810.

8. Presbytery of Middle Tennessee, et al. v. The Madison

Presbyterian Church, Inc., et al. This case involves a local

church which withdrew from the PCUS denomination (same de-

nomination in Jones v. Wolf case). On August 5, 1983 the Trial

Court in the Chancery Court for the State of Tennessee, 9th

Division, Davidson County, rendered an opinion awarding the

property to the local church under the Jones v. Wolf decision.

Case is on appeal to Supreme Court of Tennessee.

9. Grace Union Presbytery, Inc. v. Casa Linda Presbyter-

ian Church, Cause No. 81-3584J in the 191st District Court of

Dallas, Texas. This case involves UPCUSA-PCUS Union Pres-

bytery and church. Case is pending on motion for summary

judgment in the Trial Court.

19

if the denomination expected to exert control over local

church property; and therein this Court stated that if such

trust language existed, civil courts would be bound to

enforce it provided it was contained in some “legally

cognizable form”. 443 U.S. at 606. In Jones v. Wolf this

Court continued by cautioning state courts that adopted

the neutral principles approach for resolving church prop-

erty disputes to review religious documents using “special

care to scrutinize the document in purely secular terms”

to determine if the parties intended to create a trust. 443

U.S. at 604. The Courts of the State of Maryland were one

of the originators of the neutral principles approach in such

disputes, Maryland and Virginia Eldership v. Church of

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

vacated 393 U.S. 528, reaff’d, 254 Md. 162, 254 A. 2d 162

(1969), appeal dismissed, 396 U.S. 367 (1970), and the Court

of Appeals of Maryland acknowledged the continued use of

that approach in the present case (App. A p. Al7). How-

ever it is obvious that the Court of Appeals of Maryland

erred in its attempt to apply the neutral principles analy-

sis, as refined by this Court in Jones v. Wolf, to the facts

presented in the present case.

The Court of Appeals of Maryland apparently held

that United, or its affiliate the Presbytery of Baltimore,

had an interest in this local church property for two

separate reasons. First, the Court held that because

United was “hierarchical in nature” the Presbytery had an

interest in the local church property. The Court noted as

follows:

... that Babcock is not a congregational church but

the relationship here is one that is hierarchial [sic] in

nature. Accordingly, the Presbytery has an interest

in this property (App. A p. Al6).

This reasoning is diametrically opposed to that contained

in this Court’s opinions in Presbyterian Church v. Hull

20

Church, 398 U.S. 440, 21 L. Ed. 2d 658, 89 S. Ct. 601 (1969)

and in Jones v. Wolf. In this Court’s initial enunciation

of the neutral principles approach in Hull, the Court noted

that the denomination there involved, Presbyterian Church

in the United States (PCUS), was “hierarchical”. 21 L.

Ed. 2d at 661. Also, in Jones v. Wolf, this Court noted in its

initial paragraph that the denomination there involved,

PCUS, was a “hierarchical church organization”. 443 U.S.

at 597. The denominational similarities between PCUS

and United were demonstrated by their merger in June

1983 to form the denomination known as the Presbyterian

Church in the United States of America (PCUSA). In

neither Hull nor Jones v. Wolf was the mere fact that the

denomination was “hierarchical” alone sufficient to de-

termine that the presbyteries there involved had any in-

terest in the local church property. For a court to make

such a determination without a review of the particular

portions of the church constitution involving property

would be a clear violation of the Establishment Clause of

the First Amendment. In the very first sentence of Jones

v. Wolf, this Court wrote:

This case involves a dispute over the ownership of

church property following a schism in a local church

affiliated with a hierarchical church organization. 443

U.S. at 597 (emphasis added).

If the mere fact that the structure of the denomination

was “hierarchical” had been sufficient to give the denomi-

nation an interest in the property, then Jones v. Wolf

would have ended with that first sentence. If this Court

had applied the judicial principle in Jones v. Wolf that the

Maryland Court applied in the case at bar, then the local

church property would have been awarded to the denomi-

nation rather than to the majority faction of the local

church. But when Jones v. Wolf was remanded to the Su-

21

preme Court of Georgia in the light of this Court’s decision,

the Supreme Court of Georgia held:

The Trial Court found that the Vineville Presbyterian

Church had been a connectional church within the

Augusta-Macon Presbytery and the Presbyterian

Church in the United States but correctly held that

more than a mere connectional relationship between

the local church and the general church must exist

to give rise to property rights in the general church.

243 S.E. 2d at page 864.

The Court of Appeals of Maryland obviously violated the

Establishment Clause of the First Amendment and mis-

applied the neutral principles approach by granting to the

Presbytery an interest in this local church property sim-

ply because the denomination was “hierarchial [sic] in

nature”.

The dangers of such an approach were pointed out in

the recent case of Piletich v. Deretich, Minn., 328 N.W. 2d

696, decided by the Supreme Court of Minnesota on De-

cember 30, 1982. That case involved the same Serbian

Eastern Orthodox denomination that was involved in the

case of Serbian Eastern Orthodox Diocese v. Milivojevich,

426 U.S. 696 (1976) decided by this Court. In Piletich the

factual situation is similar to the case at bar; and there the

Minnesota Court warned against deciding these types of

cases on structure alone. After recognizing that mere

structure alone is insufficient to give the denomination an

interest in the property, the Minnesota Court then looked at

the majority rule principle as set out in Jones v. Wolf. The

Minnesota Court found that the Constitution of the denom-

ination gave church congregations the power to “acquire

and hold either personal or real properties, and have all

the rights and obligations in that capacity.” 328 N.W. 2d at

702. That Court then found that the presumptive rule of

22

majority representation must result in a judgment for the

majority in the local church under the deeds, local charter,

and the Constitution of the denomination following the

directions of this Court in Jones v. Wolf. In speaking of

the reasons the neutral principles approach is a better

approach than other approaches, the Minnesota Supreme

Court stated:

This approach obviates consideration of what litigants

belong to a “hierarchical church”, an area fraught

with constitutional pitfalls and provides a forum even

for members of a hierarchical church which has not

developed effective rules for settling property disputes

among members. 328 N.W. 2d at 701.

On cross-motions for summary judgment, the Minnesota

Supreme Court in Piletich unanimously rejected the mi-

nority’s trust argument and held that the local church cor-

poration could retain its property. The Court recognized

that judicial resolution of church property disputes must

be “contract-based” with courts “deferring to decisions of

church hierarchy only when the church rules or constitu-

tion. . . specifically require.” 328 N.W. 2d at 701.

Thus to give a denomination an interest in local church

property simply on the basis that the denomination is

“hierarchical” is to “establish a religion” in direct violation

of the prohibition in the First Amendment to the U. S.

Constitution. Such would violate the mandates of this

Court in the cases of Kedroff v. St. Nicholas Cathedral,

344 U.S. 94 (1952) and Kreshik v. St. Nicholas Cathedral,

363 U.S. 190 (1960) which held that a State cannot do,

by either legislative action or judicial fiat, for the parties

what the parties have not first provided for between them-

selves in their contract with each other. Hence in the case

at bar, the binding of the local property to the denomination

is solely by virtue of state action (judicial in this instance)

23

and clearly constitutes an establishment of religion of the

denomination and denial of the free exercise of religion to

the members of the local congregation.

Secondly, the Court of Appeals of Maryland appar-

ently refused to let this local church withdraw from this

denomination and retain its property because:

The Trustees of Babcock were bound by their own

by-laws to follow the established mandates of United

(App. A p. Al7).

Indeed, both Article I, Section 2 and Article V, Section 3

of Babcock’s corporate by-laws acknowledge the affiliation

of this local church corporation with United and that the

corporation was “subject to” and “subordinate to” the Con-

stitution of United. Obviously, all these by-law provisions

do is refer the parties and the courts back to the Consti-

tution of United to determine the respective rights of the

parties in this local church property. It is undisputed that

all parties in this church property dispute are bound by

the terms of United’s Constitution as contained in its Book

of Order. However, your Petitioners respectfully show

that it was stipulated by the parties in this case that noth-

ing in that Book of Order prohibits this local church from

withdrawing from this denomination and retaining its

local church property, and there was no express trust lan-

guage in United’s Constitution that grants to the denomina-

tion any interest in this property under the facts pre-

sented in the case at bar.

Six sections of United’s Constitution are cited in the

Maryland Court of Appeals’ decision. These are Sections

41.08, 41.15, 62.04, 62.08, 62.11 and 62.12. (Sections com-

parable to 41.08, 41.15, 62.04, 62.08 and 62.11 were in the

PCUS Constitution which was before this Court in Jones

v. Wolf and are contained in Appendix F.) Section 62.11

and 62.12 deal specifically with property and were the

24

ones most relied upon by the Maryland Court. These sec-

tions must be read in the light of the stipulations in this

case. The parties stipulated as follows:

Except for 62.11 quoted above, there is no specific

provision in the constitution of United or any relevant

document of title involved in the case at bar, which

gives the Presbytery of Baltimore or any higher judi-

catory in United, any proprietary or contractual in-

terest in the real or personal property involved in

this lawsuit. Likewise, on March 14, 1981, and prior

to that date, there was no specific provision in the

Constitution of United imposing an express trust on

local church property for the benefit of the presbytery,

the synod, the General Assembly or the denomination

as a whole.

There are no express provisions in the Constitution

of United outlining any method or procedure for a

local United Church to change its denominational af-

filiation, nor is there any express provision permitting

or prohibiting a local church to withdraw from United:

Except as Section 62.11 may apply, there are no spe-

cific provisions in the Book of Order imposing a pen-

alty or forfeiture of property upon such a withdrawal.

* * *

On March 14, 1981, and until the present date, Bab-

cock has not been dissolved by the Presbytery, or

become extinct by reason of the dispersal of the

church’s members, the abandonment of the church’s

work or other cause.

From these stipulations it can be seen that United admits

that no express trust is contained in its Constitution, with

the possible exception of 62.11, and that United’s Consti-

tution gives no proprietary or contractual interest in the

25

local church’s property to the Presbytery of Baltimore or

any higher church court of United. When read in light

of these stipulations, it is clear that Section 62.12 is a

permissive rather than a proprietary grant. The denomi-

nation received no property interest through this section

nor has the denomination claimed that this section granted

them any property interest in the local church property.

It was merely a provision included in the Book of Order

to prevent a local church from becoming financially over-

burdened by overencumbering its real property. It grants

to the Presbytery a veto over certain situations but

does not grant the Presbytery any property interest. Fur-

ther, it is to be noted that Section 62.12 does not purport

to deal with all local church property. For example, it

deals only with the real property and does not deal with

personal property. It does not restrict a local church in

buying real property not subject to an encumbrance, nor

does it entitle Presbytery to any money or proceeds of a

sale when local church property is sold. Additionally, it

does not cause Presbytery to incur legal obligations to pay

the debt of the local church simply by granting permission

to the local church to mortgage its property. Accordingly,

Section 62.12 is permissive and supervisory only.

If any trust interest is created in the Book of Order it

must be found in Section 62.11. While Section 62.11 of the

Book of Order does provide for a trust in favor of United in

the property of a local church, far from creating a general

trust, it does so only in the very limited circumstances set

out in the section. In order to invoke the trust powers of

this section it is necessary that there either be a formal dis-

solution of the local church by the Presbytery or the ex-

tinction of the local church by reason of the dispersal of

its members, the abandonment of the local church’s work

or other cause. As the foregoing stipulation clearly in-

dicates, the criteria required for the operation of Section

26

62.11 are not present in the case at bar. It is specifically

stipulated that Babcock has not been dissolved by the

Presbytery nor has it become extinct by reason of the

dispersal of its members, the abandonment of its work

or for other cause. Therefore, since it was expressly stipu-

lated that when Babcock withdrew from United there was

no express trust on local church property in favor of the

denomination nor did United have any proprietary interest

in Babcock’s property, either express or implied, except

by virtue of Section 62.11, and it is further stipulated that

the factors necessary to invoke Section 62.11 have not oc-

curred in the case at bar, it is clear that neither United

nor any of its constituent judicatories have any property

interest in this local church property.

As was pointed out in the case at bar, United attempted

to pass an amendment to its Constitution in 1929 which

would have imposed an express trust on local church

property for the denomination. This amendment failed.

It is the only time in the history of United that an attempt

was made to impose such an express trust until after

Jones v. Wolf. Recognizing that it had not developed

effective rules for settling property disputes among its

members, United then went to work to propose such a

property amendment to its Constitution which would im-

pose an express trust on local church property for the

denomination. This amendment did pass and became a

part of United’s Constitution in May 1981, after the con-

troversy in the subject case arose. So at the time the

dispute arose in the instant case, there was no trust in

local church property for the denomination as has been

stipulated by the parties in the Agreed Statement of Facts.

Hence, it is clear that there is no language in “legally

cognizable form” in the documents affecting the title to

the property of Babcock nor in the documents affecting

27

the relationship of Babcock to United that create any

interest for United in the property of Babcock. By grant-

ing such an interest to United, the Maryland Court is in

direct conflict with this Court’s decision in Jones v. Wolf.

Two main questions were before the Maryland Court,

to wit:

1. Could Babcock give its property to Merritt?

2. When a majority of the members of Babcock

severed their ecclesiastical affiliation with United, did

this majority retain the right to the ownership, use

and possession of the property belonging to Babcock?

(App. C p. A22).

The Maryland Court answered the first question by

stating that the gift from Babcock to Merritt was void. At

this point we do not wish to argue with this conclusion. It

is the Maryland Court’s answer to the second question that

we raise specifically in this Petition. There the Maryland

Court denied the majority of the members of Babcock

their right to sever their ecclesiastical affiliation with

United and retain the ownership, use and possession of

Babcock’s property. This judgment by the Maryland Court

was in spite of Stipulations in the Agreed Statement of

Facts by the parties, to which we have previously pointed,

that there was no method or procedure in United’s Con-

stitution outlining any specific way or procedure for

a local United church to change its denominational af-

filiation nor was there any express provision permitting

or prohibiting a local church from withdrawing from United

nor was there any specific provision imposing a penalty

or forfeiture of property upon such withdrawal, except

as might be found in Section 62.11. We have further

pointed to the mortgage on the disputed property given

by Babcock in 1951 to the Board of National Missions of

United (App. G) specifically stating that “this mortgage

28

and the obligation which it secures shall become due and

payable immediately upon the mortgagor’s severing its

denominational connection with the General Assembly of

the Presbyterian Church in the United States of Amer-

ica...” In Jones v. Wolf, this Court stated that in order

for a civil court to enforce a trust on local church prop-

erty on behalf of a denomination there must be language

in some document in a “legally cognizable form”. We

submit that this same reasoning would apply to the right

of a local church to withdraw from a denomination. We

submit that the above language clearly shows that the

parties recognized the right of the local church to withdraw

from the denomination and the right of the local church to

its property upon a withdrawal. We believe this language

should be as binding in favor of the local church as

would language of trust in the documents be binding in

favor of the denomination. The Maryland Court therefore

incorrectly interpreted this Court’s ruling in Jones v. Wolf

in denying Babcock the right to withdraw and keep its

property in the light of this clear language “in legally

cognizable form” as a part of the contract between the

parties.

Finally, we believe this Court’s reasoning in Larkin

v. Grendel’s Den, Inc., 74 L. Ed. 2d 297 (decided De-

cember 13, 1982) applies to the case at bar. Therein,

this Court made an excellent analysis of the prohibitions

of the Establishment Clause of the First Amendment to

the U. S. Constitution. One such prohibition is to avoid

“an excessive government entanglement with religion’.

In discussion of the Establishment Clause of the First

Amendment Chief Justice Burger wrote:

As these and other cases make clear, the core rationale

underlying the Establishment Clause is preventing

“a fusion of governmental and religious functions.”

29

The Framers did not set up a system of government

in which important, discretionary governmental

powers would be delegated to or shared with religious

institutions. 74 L. Ed. 2d at 307.

The Maryland Court’s ruling in favor of United violates

the test applied in Larkin. The unrebutted evidence shows

that United’s internal laws did not give United a trust

in Babcock’s property at the time Babcock disaffiliated;

nor did those laws give any organ of United power to arbi-

trate property disputes with disaffiliating churches. The

Maryland Court’s decision would strip the members of

Babcock of their property, regardless of whether the con-

tract from which United draws its rights-the Book of Order-

gives it such power. Giving a religious body civil power

over members beyond those powers assented to by the

members is nothing but a pro tanto delegation of govern-

mental powers to that religious body. Such a delegation of

power is flatly forbidden by Larkin. Such a delegation is

even more indefensible, when as is the case here, the per-

sons over whom the religious body seeks to assert power

are no longer members of the religious body. Indeed, the

Maryland Court’s ruling in this case would be even more

egregiously violative of the Establishment Clause than the

statute in Larkin for there is not even a colorable secular

interest in so ruling. There can be no secular reason for

a court to interfere with the contract formed by the in-

ternal laws of United for all to read in the Book of Or-

der. Larkin thus confirms that the Maryland Court vio-

lated the Establishment Clause of the First Amendment

to the Constitution of the United States in granting to

United an interest in this local church’s property.

For all these reasons, we submit that the Court of

Appeals of Maryland incorrectly interpreted this Court’s

ruling in Jones v. Wolf in granting United an interest in

30

the property of a withdrawn local church in the absence

of trust language in some “legally cognizable form” in

the favor of the denomination and in denying the right of

a local church to withdraw and keep its property in the

absence of the “legally cognizable” language prohibiting

the same in the contract between the parties.

CONCLUSION

We respectfully urge the Court, for all of the reasons

set forth above, to grant a Writ of Certiorari and to re-

verse the decision below.

Respectfully submitted,

WARREN JACKSON WILLIAMSON

(Counsel of Record)

P.O. Box 467

Greenville, Alabama 36037

(205) 382-2635

Mark E, WERNER, II

1102 Court Square Building

Baltimore, Maryland 21202

Davin S. PEARL

1209 Court Square Building

Baltimore, Maryland 21202

Attorneys for Petitioners

Al

APPENDIX

APPENDIX A

Filed: August 17, 1983

OPINION OF THE COURT OF APPEALS

OF MARYLAND

OPINION OF COURT OF APPEALS OF MARYLAND

September Term, 1982

Babcock Memorial Presbyterian Church, et al.

v.

The Presbytery of Baltimore of The United Presbyterian

Church in the United States of America, et al.

Docket No. 102

Reported - 464 A.2d 1008

Opinion by Smith, J.

In this case involving a dispute as to ownership and

control of church property we shall affirm the decision

of the Court of Special Appeals in Presbytery v. Babcock

Mem. Pres. Ch., 52 Md. App. 428, 449 A.2d 1190 (1982).

Judge Thompson stated for the Court of Special

Appeals:

“Certain disputes, ecclesiastical in nature, arose

between Babcock [Memorial Presbyterian Church]

and the higher judicatories of [The] United [Presby-

terian Church in the United States of America], and

A2

at an August 5, 1980 meeting, the Session [of Bab-

cock] voted to recommend to the congregation that ap-

propriate actions be taken to sever Babcock’s relation-

ship with [the] Presbytery [of Baltimore] and United.

On September 18, 1980, the Presbytery, at its regular

monthly meeting, established an Administrative Com-

mission to investigate the alleged disorders at Bab-

cock and to recommend to the Presbytery whether

Babcock’s Session should be dissolved and replaced

with the Administrative Commission as provided in

The Book of Order.* Meetings were held between the

Commission and leadership and congregation of Bab-

cock without resolution of the problem. The Session,

on March 14, 1981, made an ‘absolute and irrevocable

gift’ of the subject property to Merritt.‘ On March 16,

1981, after the deed of the real property had been

recorded in the Land Records of Baltimore County, a

letter advising of the gift transfers was hand delivered

to Presbytery. On March 23, 1981, at a meeting called

by the Session and Board of Trustees of Babcock, the

membership voted by a majority of those present

(228-6) to withdraw from United and its constituent

judicatories. The membership further ratified and

adopted as their action, the acts of the Session and the

Board of Trustees in conveying the property as gifts to

Merritt.

“In late March 1981, the Administrative Commis-

sion assumed possession of the Babcock property and

required Babcock congregants to leave the premises.

On several occasions thereafter, members of Merritt

attempted to gain access to the church for purposes of

a congregational meeting, but were denied by the ap-

pellants. Merritt thereafter filed suit in ejectment

and trespass to regain possession of the property and

ee

A3

the Presbytery and members of the Commission

brought suit to have the deeds to Merritt set aside.”

“3. Section 41.15 of The Book of Order provides:

“*15. Whenever, after a thorough investigation,

and after full opportunity to be heard has been ac-

corded to the session in question, the presbytery of

jurisdiction shall determine that the session of a par-

ticular church is unable or unwilling to manage wisely

the affairs of its church, the presbytery may appoint

a commission composed of ministers and ruling elders,

with the full power of a session. This commission shall

take the place of the existing session, if any, which

shall cease to act until such time as the presbytery

shall otherwise direct.’

“4. Merritt Boulevard Presbyterian Church of

Dundalk, Inc., was incorporated on April 15, 1980 as

an unaffiliated Presbyterian Church. It has fourteen

members and its principal place of worship is in Dun-

dalk, Maryland.” 52 Md. App. 431-33.

Merritt Boulevard Presbyterian Church of Dundalk,

Inc., filed a suit in ejectment against the Presbytery of

Baltimore of The United Presbyterian Church in the United

States of America and the Administrative Commission des-

ignated by it relative to Babcock. The suit sought to gain

possession of real property at 8240 Loch Raven Boulevard

in Baltimore County, said to have been conveyed to Mer-

ritt by the Session and the Board of Trustees of Babcock.

The Presbytery and its Administrative Commission than

filed a suit in equity against Babcock, its former pastor, its

former associate pastor, a number of persons who were

members of the deposed Session of Babcock, the various

A4

individual members of the Board of Trustees of Babcock,

Merritt, and the members of the Session of Merritt. It

sought an interlocutory and permanent injunction against

interference with the Administrative Commission in the

exercise of its authority over the affairs of Babcock, that

Merritt and the members of its Session be ordered to trans-

fer and convey to Babcock the real and personal property

received by it from Babcock, an accounting, and other

relief. Former members of Babcock filed a counterclaim

for release of its personal property. The cases were sub-

mitted to the Circuit Court for Baltimore County on an

agreed statement of facts.

We are further informed by the agreed statement of

facts:

“Approximately 50 to 75 members of the Babcock

congregation who remain members of UNITED met

at Faith Presbyterian Church, 5400 Loch Raven Boule-

vard, until June 21, at which time they resumed

UNITED worship services and other related activities

in the church building at 8240 Loch Raven Boulevard.

Approximately 250 to 300 of those who have with-

drawn from UNITED are meeting at the Loch Raven

Elementary School. Babcock has not been dissolved

by the Presbytery or become extinct by reason of the

dispersal of its members, the abandonment of its work

or other cause.”

The trial court found “that ‘United’ maintains a con-

gregational polity with respect to the use and ownership

of local church property” and that the original Babcock

Session and its Board of Trustees were legally entitled to

make absolute and irrevocable gifts of that church’s real

and personal property to Merritt. An appeal followed to

the Court of Special Appeals which reversed. We granted

a writ of certiorari.

A5

I

The Park Presbyterian Church of Baltimore City was

incorporated in 1891. Art. VI of its charter provided that

it should “forever remain a Presbyterian Church in ac-

cordance with the Standards of the Presbyterian Church

of the United States.” It began as a mission of Brown

Memorial Presbyterian Church, a member of the Presby-

tery of Baltimore, under the leadership of that church’s

pastor, the Rev. Maltbie D. Babcock. It was originally

located at North and Madison Avenues in Baltimore City

on a lot purchased by funds provided as a part of Brown

Memorial’s mission effort. Assistance in the erection of its

church building was provided by friends of Dr. Babcock

at Brown Memorial and by Brick Presbyterian Church in

New York City. Virtually from its inception Park was a

member of the Presbytery of Baltimore. The Presbytery

of Baltimore was part of The Presbyterian Church in the

United States of America which later merged with The

United Presbyterian Church of North America to form the

church now known as The United Presbyterian Church

in the United States of America.

Park was incorporated under our general religious

corporation law now embodied in Maryland Code (1975)

$§ 5-301 to -313, Corporations and Associations Article.'

Relative to what was then Code (1957) Art. 23, §§ 256 to

270, upon which those sections are based, Judge Barnes

commented for the Court in Md. & Va. Eldership v. Sharps-

burg, 249 Md. 650, 657, 241 A.2d 691 (1968) (Eldership I),

1. At the time of Park’s incorporation the General Assembly

had not enacted legislation relative to Presbyterian churches such

as that relative to the United Presbyterian Church in the United

States of America now found in Code (1975, 1982 Cum. Supp.)

§§ 5-329 to -332, Corporations and Associations Article. We do

not consider those sections in reaching our decision here. If we

were to do so it would reinforce our conclusions.

A6

vacated, 393 U.S. 528, reaff’d, 254 Md. 162, 254 A.2d 162

(1969) (Eldership II), appeal dismissed, 396 U.S. 367

(1970), that the statute “is based upon and largely follows

the original legislation on this subject, ie., the Act of

1802, chapter 111.” We know not what the law of the

Church was at the time of Park’s incorporation but today

§ 62.04 of United’s Book of Order requires each local church

to be incorporated unless forbidden by state law.

Despite inferences to the contrary which may be drawn

from corporate names of some churches, “[u]nder the

Maryland system of incorporating religious societies the

trustees and not the congregation constitute the corpora-

tion.” Phillips v. Insley, 113 Md. 341, 349, 77 A. 850 (1910),

citing Bethel Church v. Carmack, 2 Md. Ch. 143 (1849),

and Stubbs v. Vestry of St. John’s, 96 Md. 267, 275, 53 A.

917 (1902). Phillips was quoted in Gildenhorn v. Columbia

R.E. Title, 271 Md. 387, 404, 317 A.2d 836 (1974).

Numerous other states follow a similar procedure for

church corporations. See C. Zollmann, American Church

Law § 106 (1933).

In 1901 the name of Park was changed to Babcock

Memorial Presbyterian Church of Baltimore City. That

name, after relocation at 8240 Loch Raven Boulevard, was

changed to Babcock Memorial Presbyterian Church.

At the time of the move to Loch Raven Boulevard the

Presbytery made available to Babcock residual funds of

Olivet Presbyterian Church of Canton. A plaque me-

morializing that fact appears in the narthex of Babcock.

In 1968 Babcock adopted a set of by-laws, Article 1,

§ 2 of which provides:

“This church is affiliated with the United Presby-

terian Church in the United States of America and

is under the care of and subject to the jurisdiction

A7

of the Presbytery of Baltimore. These By-Laws shall

be subordinate to the Constitution of the United Pres-

byterian Church and nothing contained herein shall

be interpreted to the contrary.”

The original deed to Babcock for the Loch Raven

Boulevard land is to “The Babcock Memorial Presbyter-

ian Church of Baltimore City, a corporation of the State

of Maryland ....” Neither in the granting clause nor

in the habendum clause is there any restriction of any

kind. On May 15, 1980, the Board of Trustees and the

Session of Babcock conveyed the land in question, without

consideration, to Conduit, Inc., which in turn reconveyed

the land in question to the named trustees of Babcock “for

the uses and purposes and with the powers and subject

to the limitations hereinafter set forth ....” In the

habendum clause it is specified that the conveyance to

the trustees is “in trust for the following uses and trust

purposes and with the powers and subject to the limita-

tions hereinafter set forth’ which include that they are

to “hold title to the property .. . for the use and benefit

of the majority of the active communicant members of

that congregation presently identified as the congregation

of the [sic] The Babcock Memorial Presbyterian Church,”

with further provisions as to who shall be members, for

election of trustees, and notices of meetings. The trustees

joined in the deed from Conduit “for the purpose of evi-

dencing the assent of said church to the provisions [t]here-

of” and also “for the express purpose of consenting to

and accepting the trust and confidence imposed upon

them.” No consent of the Presbytery was obtained for

the deed to Conduit or the deed to Merritt although § 62.12

of The Book of Order of United provides that a church

shall not sell, mortgage or encumber its real property

without the Presbytery’s consent.

A8

II

In arguing for a reversal of the decision of the Court

of Special Appeals, Babcock and Merritt contend that the

latter court failed to employ the neutral principles of law

doctrine as enunciated by this Court in Eldership I and

II, that in awarding the property of the local church to

the denomination the court followed the theory of im-

plied trust declared by this Court in Eldership I “as not

being the law of this state,” that it erred in awarding

the property to the Presbytery “in the absence of a spe-

cific finding that the deeds, local church charter, or

constitution of the United Presbyterian Church contained

language in a ‘legally cognizable form’ expressing a trust

or causing a reverter or forfeiture of the property of

the local church to United in the event of a schism or

withdrawal by the local church,” and that it failed to

comply with Maryland Rule 1086 in reviewing the findings

of fact of the trial court. Since there was a stipulation

between the parties as to the facts, there was no error on

the latter point.

III

In Eldership I, 249 Md. 650, Judge Barnes said for the

Court:

“In considering questions in regard to the use of

church property it is usually important, in the absence

of express language in the deed conveying the prop-

erty or making the gift, to consider the ‘polity’ or

form of church government which the particular de-

nomination has. In the note in 75 Harv. L. Rev., at

pages 1143-4, the three general types of church polity

are defined as follows:

‘At least three kinds of internal structure, or

“polity,” may be discerned; congregational, pres-

A9

byterial, and episcopal. In the congregational

form, each local congregation is self-governing.

The presbyterial polities are representative, au-

thority being exercised by laymen and ministers

organized in an ascending succession of judica-

tories - presbytery over the session of the local

church, synod over presbytery, and general as-

sembly over all. In ‘the episcopal form power

reposes in clerical superiors, such as bishops.

Roughly, presbyterial and episcopal polities may

be considered hierarchical, as opposed to congre-

gational polities, in which the autonomy of the

local congregation is the central principle.’ (Foot-

notes omitted. )

“In many of the hierarchical churches there may

be provisions in their Constitutions, Canon Law or

other controlling documents or statutes which make

it clear that the property is held in trust for the uses

of the parent church and its discipline and appoint-

ments. See, for example, Article 23, Section 313 (e)

in regard to the holding of property-in the Methodist

Church. There may be a requirement that the local

church include provisions in the deeds to its property

that it is held in trust for the parent church in con-

formity to its worship, doctrine and discipline and,

upon a departure therefrom, the property will revert

to the hierarchical body. Even in the absence of such

an express provision in the deeds to the local church

property, there may be an implied consent by the

local church that the local property is so held if the

constitution, by-laws, canon law or statute provide

to that effect. It thus appears that there are three

methods by which a hierarchical denomination may

maintain control of local church property:

Al0

“1. It may require reverter clauses in the deeds

to the property of the local churches.

“2. It may provide in its constitution or by some

other authoritative source for the reverting of the

local church property to the hierarchical body upon

withdrawal by a local congregation with an implied

consent by tne local church to this provision.

“3. It may obtain from the General Assembly an

act providing for such a result.” 249 Md. at 662-63.

Judge Thompson stated for the Court of Special Ap-

peals:

“United is organized and operated under a con-

stitution which consists of two parts: ‘The Book of

Confession’ and ‘The Book of Order.’ The Book of

Order contains three parts, namely: the ‘Directory

of Worship,’ the ‘Form of Government,’ and the ‘Book

of Church Discipline.’ That part of the constitution

at issue is the ‘Form of Government.’ United is an

association of local United Presbyterian churches or-

ganized into a hierarchical structure consisting of four

distinct bodies known as judicatories (tribunals of ec-

clesiastical authority). These tribunals in ascending

order of authority, according to the powers given or

reserved to them by The Book of Order, are: (1) the

Session, which has authority over all the affairs and

activities of the particular church, (2) the Presbytery,

composed of all of the United Presbyterian Churches

in a geographic area, (3) the Synod, generally com-

posed of the Presbyteries in a given state or region,

and (4) the General Assembly, the highest governing

body within United.

“The Presbytery of Baltimore is a non-profit, un-

incorporated association, its principal office being in

All

the City of Baltimore. Its jurisdiction entails the su-

pervision and care of those United Presbyterian

Churches located in the City of Baltimore, central and

western Maryland.” 52 Md. App. at 430-31.

“The relationship of the hierarchical format of the

Presbyterian form of government to ownership of

church property was discussed in Annot., 52 A.L.R.3d

(1973) where it was stated at 417:

‘Although the Presbyterian form of church

government is without question hierarchical, there

has been a considerable amount of litigation over

the right of local Presbyterian churches to with-

draw from the general church and retain the use

and control of loca’ church property.... [T]his

right is uniformly denied, on the ground that the

local Presbyterian Church stands in a hierarchical

relationship to the general church, with respect

to property matters as in other areas.’ (footnote

omitted).

“United’s hierarchical structure is set out in The

Book of Order. The tribunals are organized in as-

cending order into (1) the church Session, composed

of the elders of local church, (2) the Presbytery,

composed of several churches in a geographical area,

(3) the Synod, generally composed of all presbyteries

within a state, and (4) the General Assembly, the

highest governing body. See, Jones v. Wolf, 443 U.S.

595, 621, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979).

“In Chapter XI of Section 41.08 of ‘Form of Gov-

ernment’ it is provided, in pertinent part:

‘8. The church session shall have authority

over all of the affairs and activities of the par-

Al2

ticular church, except such matters as may, by

this Form of Government, be specifically accorded

to ...a higher judicatory. The session may from

time to time delegate administrative responsi-

bilities in respect to the care and management of

church properties and in respect to the financial

affairs of the church either to the board of trustees

or to the board of deacons or in part to one and

in part to the other, subject always to the su-

perior authority and direction of the session.’

“Thus, the Session is the overseer of the church

property subject to a higher judicatory if The Book of

Order extends that authority to the higher judicatory.

Calvary Pres. Church v. Presbytery, 39 Md. App. 405,

386 A.2d 357, cert. denied, 283 Md. 731 (1978). That

the Presbytery is given this superior authority with

respect to church property is shown by the following

provisions of The Book of Order:

‘62.11 11. Whenever hereafter a_ particular

church is formally dissolved by the presbytery,

or has become extinct by reason of the dispersal

of its members, the abandonment of its work, or

other cause, such property as it may have, both

real and personal, shall be held, used, and applied

for such uses, purposes, and trusts as the presby-

tery may direct, limit, and appoint, or such prop-

erty may be sold or disposed of as the presbytery

may direct, in conformity with the Constitution

of The United Presbyterian Church in the United

States of America.

‘62.12 12. A particular church shall not sell,

mortgage or otherwise encumber any of its real

property and it shall not acquire real property

Al3

subject to an encumbrance or condition without

the written permission of the presbytery trans-

mitted through the session of the particular church.

‘A particular church shall not lease its real

property used for purposes of worship, or lease for

more than five years any of its other real property,

without the written permission of the presbytery

transmitted through the session of the particular

church.’

“These provisions establish that while many mat-

ters, including the management of church property

are initially committed to the Session and congregation

of the local church, the actions on this local level

remain subject to review by the Presbytery. Jones

v. Wolf, supra, 443 U.S. at 621.” 52 Md. App. 434-36.

As was observed by the Supreme Court of Delaware in

Pencader P. Church v. Gibson et al., 26 Del. Ch. 375, 385,

22 A.2d 782 (1941), “The denominational character of the

religious society or congregation was plainly intended to

affect the legal nature of the corporation authorized to be

formed.”

The Supreme Court of Illinois said in Lowe v. First

Presbyterian Church, 56 Ill. 2d 404, 308 N.E.2d 801, cert.

denied, 419 U.S. 895 (1974):

“The United Presbyterian Church is one of two

substantial Presbyterian church bodies in this country.

(Annot., 52 A.L.R.3d 324, 418 n. 20, citing G. Weigel,

Churches in North America (Schocken Books 1965,

p. 34).) There are other smaller Presbyterian church

bodies, all of similar governmental structure. That

structure consists of a series of ascending bodies called

Judicatories. At the lowest level is the Session com-

posed of trustees, deacons and other members of the

local congregation. At the secondary level is a Pres-

666

Al4

bytery made up of many local Presbyterian churches

such as the Presbytery of Chicago, one of the plain-

tiffs here. At the third level is a Synod comprised

of a number of Presbyteries, and the supreme govern-

ing body is the General Assembly, the actions of which

are controlling at all lower levels. Plaintiffs’ allega-

tion that this is the structure of the United Presby-

terian Church is not contested, and the nature of the

Presbyterian church governmental structure has been

demonstrated in a series of cases collected in the

annotation in 52 A.L.R.3d 324, at 417-423. It is clear

that the United Presbyterian Church is hierarchical in

governmental form in that each judicatory has control

of those below it. The significance here of this struc-

ture is that each member Presbyterian church is

subject to the rules and directions of its Presbytery,

Synod and Assembly.” 56 Ill.2d 411-12.

In Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L. Ed.

(1872), the Supreme Court said:

“The questions which have come before the civil

courts concerning the rights to property held by ec-

clesiastical bodies, may, so far as we have been able

to examine them, be profitably classified under three

general heads, which of course do not include cases

governed by considerations applicable to a church es-

tablished and supported by law as the religion of the

state.

“1, The first of these is when the property which

is the subject of controversy has been, by the deed or

will of the donor, or other instrument by which the

property is held, by the express terms of the instru-

ment devoted to the teaching, support, or spread of

some specific form of religious doctrine of belief.

“2. The second is when the property is held by

a religious congregation which, by the nature of its

Al5

organization, is strictly independent of other ecclesi-

astical associations, and so far as church government is

concerned, owes no fealty or obligation to any higher

authority.

“3. The third is where the religious congregation

or ecclesiastical body holding the property is but a

subordinate member of some general church organiza-

tion in which there are superior ecclesiastical tribunals

with a general and ultimate power of control more or

less complete, in some supreme judicatory over the

whole membership of that general organization.” 80

U.S. at 722-23.

Article V, § 3 of Babcock’s by-laws provides:

“The Board of Trustees shall be the body politic

or corporate to act as Trustees in the name and behalf

of the Babcock Memorial Presbyterian Church to man-

age the estate, property, interest and inheritance of the

same, and to exercise all powers granted to religious

corporations by the laws of the State of Maryland sub-

ject to the provisions of the Constitution of the United

Presbyterian Church in the United States of America.”

It is obvious that the case at bar falls in the third

class set forth in Watson. Babcock was organized as a

Presbyterian Church. Virtually from its inception it has

continued as an integral part of a larger church body. It

has been the recipient as a Presbyterian Church of gifts

by virtue of its affiliation. It has recognized the authority

and control of the higher judicatories of United. In Elder-

ship I, 249 Md. 650, Judge Barnes said for the Court:

“What was intended was to provide for the formation

of religious corporations for local congregations which

would hold, control and have power to dispose of the

property of the religious corporations. The Act of

1802 and its successor acts in no way sought to establish

ee

Al6

any ecclesiastical polity. This was left to the corpora-

tions themselves. By the nature of the law in regard

to the formation of corporations generally, the religious

corporation formed under it is controlled by trustees

elected by the local membership. This is true of all

member corporations. This does not mean that the

religious corporation thus formed may not by contract

- express or implied - adopt a presbyterial or episcopal

polity and, if this is done, may provide for the holding

of the local church property subject to the provisions

of the constitution, charter or by-laws of a denomina-

tion and the action of the authoritative agencies of

such a denomination. This, however, is accomplished

by the will and action of the local corporation and is

in no way imposed by the State through its General

Religious Corporation Law.” 249 Md. 673-74 (em-

phasis in original).

In Art. I, § 2 of its by-laws Babcock recognized its af-

filiation with The United Presbyterian Church in the

United States of America. In that section and in Art. V,

§ 3 it recognized that it is subject to the constitution of

United and its trustees are to exercise their powers

subject to that constitution. In Art. I, § 2 of those by-laws

Babcock recognized that it is “under the care of and

subject to the jurisdiction of the Presbytery of Baltimore.”

Thus by contract Babcock has adopted a presbyterial polity.

We conclude, therefore, that the Court of Special Appeals Po

did not err in its determination that Babcock is not a con-

gregational church but the relationship here is one that

is hierarchical in nature. Accordingly, the Presbytery has

an interest in this property.

Eldership I, 249 Md. 650, has been recognized or noted

as the key neutral principles of law doctrine case. See

Jones v. Wolf, 443 U.S. 595, 602-03, 99 S. Ct. 3020, 61 L.

Ed. 2d 775 (1979). Under it we are obliged to apply neu-

Al7

tral principles of law in determining the outcome of this

controversy. Under the neutral principles of law doctrine

we are not concerned with any dispute as to church doc-

trine. Under the neutral principles of law doctrine in

Eldership I and II the Court examined the deed, the local

church charter, the State statutes governing the holding of

church property, and the provisions in the constitution of

the general church concerning the ownership and control of

church property.

In Eldership I, 249 Md. at 664, the Court noted that the

constitution of the parent church body there contained

no provision relative to control of local church property

by the parent church. Here there is such a provision.

Zollman, op. cit., § 154 states relative to by-laws:

“Since by-laws validly passed are a part of the law

governing the corporation and its members, they must

be obeyed by all concerned. Where a committee,

therefore, is empowered only to expend such sums

of money as the society shall place at its disposal, such

committee cannot incur large obligations in employ-

ing counsel to unmask the unfitness of its pastor.

“A person who voluntarily joins a church, tacitly

agrees to be bound by all the rules and regulations of

such church, and will not afterwards be allowed

wholly to ignore and disregard such rules and regula-

tions. As to all matters pertaining to the church, he

is clearly bound by the rules and regulations of the

church, unless the same are clearly illegal.” Id. at

157.

The trustees of Babcock were bound by their own by-laws

to follow the established mandates of United. It will be

recalled that under § 62.12 of the Book of Order of United

a church may not sell, mortgage or otherwise encumber

any of its real property without the written permission

Als

of the Presbytery transmitted through the Session of the

particular church nor may it lease its real property used

for the purposes of worship or lease for more than five

years any of its other real property without the written

permission of the Presbytery transmitted through the

Session of the particular church. Section 62.08 also refers

to obtaining permission from the Presbytery to sell, mort-

gage, or lease church property. We regard the restriction

as equivalent to saying that property could not be alien-

ated by a local church without permission of the Presby-

tery. To hold otherwise is to permit accomplishing by

subterfuge what could not be done directly. We conclude

that if the local church under United’s Book of Order could

not sell property without permission, it could not give it

away. More importantly, however, applying neutral prin-

ciples of law, the church corporation lacked power under

Maryland corporation law to make the gift. It is ele-

mentary that a corporation has only such powers as are

expressly granted by its chapter or by statute and such as

may impliedly be derived from its corporate purposes.

Babcock was granted no power by its charter to dispose of

all or any part of its assets by gift. The attempted gift

here was not in accord with the corporate purpose of

Babcock. The action here is analogous to that referred to

in a somewhat different context in Fairmount Pres. Ch.

v. Presbytery of Holston, 531 S.W.2d 301, 306 (Tenn. App.

1975), of “a corporation, for example, .. . chartered for the

purpose of promoting the interest of boys, in accord with

the standards of the Boy Scouts of America” which might

attempt to divert its property “to the use of Boys’ Clubs

or Girl Scouts, or any other organization.” Cf. Polen v.

Cox, 259 Md. 25, 267 A.2d 201 (1970).

It follows that the Court of Special Appeals was correct

in its decision.

JUDGMENT AFFIRMED;

APPELLANTS TO PAY THE COSTS.

Alg

APPENDIX B

[Dated: September 27, 1983]

ORDER OF THE COURT OF APPEALS

OF MARYLAND

Denying Motion for Reconsideration.

COURT OF APPEALS OF MARYLAND

Courts of Appeal Building

Annapolis, Md. 21401-1699

269-3341

Washington Area 261-2999

September 28, 1983

Mark E. Werner, II, Esquire

Attorney ati ”

1102 Court Sx, uare Building

Baltimore, Maryland 21202

Re: Babcock Memorial Presbyterian Church et al. v.

The Presbytery of Baltimore of the United Presby-

terian Church in the United States of America et al.

No. 102 - September Term, 1982

Dear Mr. Werner:

This is to advise that your motion for reconsideration

filed in the above entitled case was denied by the Court

on September 27, 1983.

A20

A copy of the mandate is enclosed herewith and the

record is being returned to the Court of Special Appeals

this date.

Very truly yours,

/s/ Alexander L. Cummings

Clerk

ALC/mjm

Encl.

ce. David S. Pearl, Esq.

W. J. Williamson, Esq.

Richard W. Kiefer, Esq.

In The Court of Appeals of Maryland

No. 102

September Term, 1982

BABCOCK MEMORIAL PRESBYTERIAN CHURCH et al.

and MERRITT BOULEVARD PRESBYTERIAN CHURCH

OF DUNDALK, INC.

Vv.

THE PRESBYTERY OF BALTIMORE OF THE UNITED

PRESBYTERIAN CHURCH IN THE UNITED STATES

OF AMERICA et al.

MANDATE

TO THE HONORABLE THE JUDGES OF THE COURT

OF SPECIAL APPEALS OF MARYLAND:

WHEREAS the case of Babcock Memorial Presbyterian

Church et al. and Merritt Boulevard Presbyterian Church

of Dundalk, Inc. v. The Presbytery of Baltimore of the

United Presbyterian Church in the United States of Amer-

ica et al. came before you and wherein the judgment of the

said Court of Special Appeals of Maryland was duly en-

A21

tered on the eighth day of September, 1982 as appears from

the transcript of the record of the said Court of Special

Appeals of Maryland which was brought into the Court of

Appeals of Maryland by virtue of a writ of certiorari dated

October 26, 1982; and

WHEREAS in the September Term, 1982 the said cause

came on to be heard before the Court of Appeals of Mary-

land;

ON CONSIDERATION WHEREOF, it was ordered and

adjudged on August 17, 1983 by this Court that the judg-

ment be affirmed; appellants to pay the costs.

NOW, THEREFORE, THIS CAUSE IS REMANDED

to you in order that such proceedings may be had in the

said cause in conformity with the judgment of this Court

above stated as accord with right and justice, and the

Constitution and laws of Maryland, the said writ notwith-

standing.

WITNESS the Honorable Robert C. Murphy, Chief

Judge of the Court of Appeals of Maryland, this twenty-

eighth day of September, 1983.

/s/ Alexander L. Cummings

Clerk

Court of Appeals of

Maryland

Costs:

Petition filing fee $ 20.00

Appellants’ brief 1,205.86

Appellees’ brief 996.48

Appellants’ reply brief 171.03

Motion for reconsideration 10.00

September 16, 1983: Motion for reconsideration filed by

appellants.

September 27, 1983: Motion for reconsideration denied.

A22

APPENDIX C

MOTION FOR RECONSIDERATION

IN THE COURT OF APPEALS OF MARYLAND

September Term, 1982

NO.: 102

BABCOCK MEMORIAL PRESBYTERIAN

CHURCH, et al.,

Appellants,

V.

THE PRESBYTERY OF BALTIMORE OF THE UNITED

PRESBYTERIAN CHURCH IN THE UNITED

STATES OF AMERICA, et al.,

Appellees.

MOTION FOR RECONSIDERATION

Appellants, BABCOCK MEMORIAL PRESBYTER-

IAN CHURCH, et al., by MARK E. WERNER II, their at-

torney, and THE MERRITT BOULEVARD PRESBYTER-

IAN CHURCH OF DUNDALK, INC., et al., by DAVID

S. PEARL and W.J. WILLIAMSON, their attorneys, pur-

suant to Maryland Rule 850, move this Honorable Court

for Reconsideration of its Opinion filed August 17, 1983,

and as for grounds therefor, present the following:

POINT 1

Two main questions were before this Court on this

Appeal, to wit:

1. Could Babcock give its property to Merritt?

A23

2. When a majority of the members of Babcock sev-

ered their ecclesiastical affiliation with United, did this

majority retain the right to the ownership, use and posses-

sion of the property belonging to Babcock?

The Court answered the first of these questions but

failed to answer the second. The Court dealt with the

right of Babcock to give the property to Merritt and held:

We regard the restriction as equivalent to saying

the property could not be alienated by a local church

without the permission of the Presbytery. To hold

otherwise is to permit accomplishing by subterfuge

what could not be done directly. We conclude that

if the local church under United’s Book of Order could

not sell property without permission, it could not

give it away... . the attempted gift here was not in

accord with the corporate purposes of Babcock. (Opin-

ion page 18).

The second question, which the Court failed to answer,

is whether or not Babcock had the right, by majority vote,

to withdraw from the ecclesiastical jurisdiction of United

and maintain the ownership and right to control its local

church property. A decision on this issue is necessary in

order to resolve the issues between the parties raised by

this lawsuit, especially since the net effect of the Court’s

decision is to place full ownership and control of the

disputed property back in the hands of the corporation

Babcock Memorial Presbyterian Church, and there are still

two groups (Appellants, Babcock, and Appellees, Presby-

tery) claiming ownership and control of that corporation.

As this Court has consistently recognized, resort must

be had tc the various documents of title and to the docu-

ments (contracts) defining the relationships of the denomi-

nation (United) and local church (Babcock), both as to

A24

each other and as to the property disputed. Therefore, the

Court must scrutinize the deeds, corporate charter, and

Constitution of United to see how the parties structured

those relationships. See, for example, Maryland and Vir-

ginia Eldership V. The Church of God at Sharpsburg, (El-

dership), 249 Md. 650, 241 A. 2d 691 (1968), vac & remanded

393 U.S. 528 (1969), reaff’d 254 Md. 162, 254 A. 2d 162

(1969); Polen V. Cox, (Polen), 259 Md. 25, 267 A. 2d 201

(1970); and Smith V. Church of God at Locust Valley, etc.

Maryland, (Smith), D.C. M.D. 1971, 326 F.Supp. 6. The

documents needed are before the Court in this Appeal and

the parties have made various stipulations of facts as to

what those documents do and do not say and do, as found

in the Agreed Statement of Facts and its two Supplements.

Both Appellants and Appellees agree that at the time

this controversy arose they were both bound by the Con-

stitution of United. The question is what inquiry can

this Court make into that Constitution without violating

the rights and prohibitions guaranteed by the First Amend-

ment to the Constitution of the United States. In its last

expression on this subject the Supreme Court of the United

States in Jones V. Wolf, (Jones), 443 U.S. 595, 99 S. Ct.

3020, 61 L. Ed. 2d 775 (1979) reaffirmed its position:

It is also clear, however, that the First Amendment

severely circumscribes the role that civil courts may

play in resolving church property issues, 443 USS.

at 602.

In a number of decisions over the past decade, the

United States Supreme Court has clearly defined some

of the areas in which the First Amendment severely cir-

cumscribes the role that civil courts may play in resolving

church property disputes. One of these areas is the de-

gree of inquiry which a civil court may make into the

A25

constitution of a denomination. The United States Su-

preme Court has clearly held that if a civil court makes

a searching or extensive inquiry into church polity, such

civil court violates the prohibition of the First Amendment,

Justice Blackmun, for the Court, reaffirmed this rule in

Jones, supra:

In such cases, the suggested rule would appear

to require a searching and therefore impermissible

inquiry into church polity. 443 U.S. at 605.

In Jones, supra, the United States Supreme Court de-

fined the limits of such an inquiry as follows:

The neutral-principles method, at least as it has

evolved in Georgia, requires a civil court to examine

certain religious documents, such as a church con-

stitution, for language of trust in favor of the general

church. In undertaking such an examination, a civil

court must take special care to scrutinize the docu-

ment in purely secular terms, and not to rely on

religious precepts in determining whether the docu-

ment indicates that the parties have intended to create

a trust. 443 U.S. at 604. (Emphasis added)

Even the four dissenting justices in Jones, agreed with

this rule of inquiry. Mr. Justice Powell writing for them

stated the rule:

The object of the inquiry where the title to the

property is in a local church is to determine whether

there is any basis for a trust in favor of the general

church. Thus, where religious documents such as

church constitutions or Books of Order must be ex-

amined ‘for language of trust in favor of the general

church’, ‘a civil court must take special care to scru-

tinize the document in purely secular terms and not

A26

to rely on religious precepts in determining whether

the document indicates that the parties have intended

to create a trust.’ It follows that the civil courts using

this analysis may consider the form of religious gov-

ernment adopted by the church members for the

resolution of intra-church disputes only if that polity

has been stated, in express relation to church prop-

erty, in the language of trust and property law. 443

U.S, at 611-012

This Court can and should look at the Constitution

of United to determine what vote it takes to control

in decisions made by a constituent body within the de-

nomination. United’s Book of Order provides under

Chapter V, entitled “Of Church Government” at Section

35.01: “... that a majority shall govern....”’ Likewise,

Section 98.58 is also instructive, stating that:

Members ought not, without weighty reasons, to

decline to vote, as this practice might leave the de-

cision of very interesting questions to a small propor-

tion of the judiciary. Silent members, unless ex-

cused from voting, must be considered as acquiescing

with the majority.

At a duly called congregational meeting of Babcock

in March, 1981 “a majority of those present voted to

withdraw from UNITED and renounced the jurisdiction

of Presbytery by a vote of 228-6” (E.87). This fact was

a part of the Agreed Statement of Facts by the parties.

This is as far as this Court should and needs to go

in its inquiry relating to the Constitution of United in

order to settle this issue between the parties. This Court

properly held that, as it scrutinized the deeds in purely

secular terms, it found no property interest stated therein

for United:

A27

The original deed to Babcock for the Loch Raven

Boulevard land is to “The Babcock Memorial Pres-

byterian Church of Baltimore City, a corporation of

the State of Maryland. . .”. Neither in the granting

clauses nor in the habendum clause is there any

restriction of any kind. (Opinion page 7).

This Court properly found that “under the Maryland

system of incorporating religious societies the trustees

and not the congregation constitute the corporation.”

(Opinion page 6) By definition, the trustees are holding

the property in trust for someone or for some body and

the question that still must be answered is for whom the

Trustees of the Corporation hold the property in trust?

The fact that it was not held in trust for United is settled

in the Agreed Statement of Facts where the parties

stipulated:

Likewise, on March 14, 1981, and prior to that

date, there was no specific provision in the Constitu-

tion of UNITED imposing an express trust on local

church property for the benefit of the Presbytery,

the Synod, the General Assembly or the denomination

as a whole. (E-74)

Since the Constitution gives United no trust in the

property, it must be held in trust for the local members

of Babcock.

This exact same question came up in the case of

Presbytery of Riverside V. Community Church of Palm

Springs, 89 Cal. App. 3rd 910, 152 Cal. Rptr. 854 (Ct. App.,

4th Dist., 2nd Div., 1979), Cert, den. 444 U.S. 974, 100

S. Ct. 469, 62 L. Ed 2d 389 (1979) which was also a dispute

over withdrawal and retention of property by a local

church of this same denomination, UNITED. There, the

California Court stated at pages 926-927 of Cal. App. 3rd:

A28

The present dispute concerns the uses for which

the property is held, the identity of the beneficiaries

of the trust - the congregants of the local church, or

the general church and/or perhaps, its congregants.

., . the property of a local church, even one that is

part of a general church organization of hierarchical

structure, is held in trust by the religious nonprofit

corporation for the benefit of the local church con-

gregation.

Thus the question still remains: Did not the majority

members of Babcock have a right to take the action they

took in March, 1981 in severing their ecclesiastical juris-

diction with United? If so, United lost all its jurisdiction

over Babcock. The title to the property is in Babcock.

The majority of the members of Babcock are entitled

to control the property.

As to the right of Babcock to sever its ecclesiastical

affiliation with United, the parties’ Agreed Statement

of Facts stipulated:

There are no express provisions in the Constitution

of UNITED outlining any method or procedure for a

local UNITED Church to change its denomination af-

filiation, nor is there any express provision permitting

or prohibiting a local church to withdraw from United.

(E-75)

The issues of the right of a local church to withdraw

from United has been conclusively decided by the Cali-

fornia Court of Appeals in the case of Presbytery of River-

side V. Community Church of Palm Springs, 89 Cal. App.

3rd 910, 152 Cal. Rptr. 854 (Ct. App., 4th Dist., 2nd Div..,

1979), Cert. den 444 U.S. 974, 100 S. Ct. 469, 62 L.Ed.2nd

389 (1979). There, the Court held:

A29

It is undisputed that a local church within

UPCUSA may withdraw and terminate its affiliation

(89 Cal. App. 3d at page 24).

Since the two Eldership decisions cited above, in this

State, following the dictates of this Court in Eldership, it

is required that there be an express provision prohibiting

withdrawal or the local church has that right. Likewise,

since Eldership, it is required in this State that there be

an express provision imposing a forfeiture or penalty of

property (or imposing a trust in favor of the denomination )

in the event of schism or withdrawal or the local church

(here, Babcock) retains ownership, use and possession of

its property upon withdrawal. The parties stipulated that:

Except for 62.11 quoted above, there is no specific

provision in the Constitution of UNITED or any rele-

vant document of title involved in the case at Bar,

which gives the Presbytery of Baltimore or any higher

judicatory in UNITED, any proprietary or contractual

interests in the real or personal property involved in

this lawsuit. Likewise, on March 14, 1981, and prior

to that date, there was no specific provision in the

Constitution of UNITED imposing an express trust on

local church property for the benefit of the presby-

tery, the synod, the General Assembly or the denomi-

nation as a whole. (E-74)

There are no express provisions in the Constitu-

tion of UNITED outlining any method or procedure

for a local UNITED Church to change its denomina-

tional affiliation, nor is there any express provision

permitting or prohibiting a local church to withdraw

from UNITED. Except as Section 62.11 may apply,

there are no specific provisions in the Book of Order

imposing a penalty or forfeiture of property upon

such a withdrawal. (E-75)

A30

Thus, if there is no express trust in the property for

the denomination as stipulated by the parties and no re-

striction in the deed to Babcock as found by this Court,

then the Trustees of the Babcock Corporation hold the

property in trust for the benefit of the members of the

local church. The majority members of the local church

have severed their connection from United; and United

has no more authority or jurisdiction over them. Since

the majority controls, the majority have the right to con-

trol and possession of the subject property. To deny the

majority this right would be a clear denial to them of their

right of free exercise of their religion as protected by the

First Amendment to the Constitution of the United States.

In order to resolve the issues involved in this litiga-

tion, this Court must address and resolve this question of

the right of Babcock to withdraw and to retain the owner-

ship, use and possession of its property.

POINT 2

This Court held that “the Presbytery has an interest

in this property” (Opinion page 16). This holding is in

diametric opposition to the Agreed Statement of Facts by

the parties and the law of the State of Maryland.

In the Agreed Statement of Facts, the parties stip-

ulated:

Except for 62.11 quoted above, there is no specific

provision in the Constitution of UNITED or any rele-

vant document of title involved in the case at bar,

which gives the Presbytery of Baltimore or any higher

judicatory in UNITED any proprietary or contractual

interests in the real or personal property involved in

this lawsuit. (E-74)

A31

§62.11 mentioned is a provision which provides that a

Presbytery can dissolve a local church or a local church

can become extinct by reason of the dispersal of its mem-

bers, the abandonment of its work, or other cause. In such

event, the property of the local church will be applied as

the Presbytery may direct. But twice in the Agreed State-

ment of Facts, the parties stipulated that 62.11 was not

applicable to the case at Bar:

On March 14, 1981, and to the present date, Bab-

cock has not been dissolved by Presbytery or become

extinct by reason of the dispersal of the church’s mem-

bers, the abandonment of the church’s work or other

cause. (E-75)

Babcock has not been dissolved by the Presby-

tery or become extinct by reason of dispersal of its

members, the abandonment of its work or other cause.

(E-88)

Thus the parties stipulated that the Presbytery of

Baltimore had no interest in the subject property; and this

Court found such an interest in direct contravention of the

facts in this case.

POINT 3

This Court found that Presbytery has an interest in

this property even though the parties stipulated to the con-

trary. This Court found that this interest arose because

“Babcock is not a congregational church but the relation-

ship is one that is hierarchical in nature” (Opinion page

16). Thus this Court concluded that the structure of

United, not by express provision but by implication, cre-

ated a property interest in local church property in the

denomination. To do so it made an extensive, searching

inquiry into the polity of United in clear violation of the

A32

premier prohibition of the First Amendment to the Con-

stitution of the United States. The United States Supreme

Court in Jones V. Wolf, supra, clearly found that “structure

alone” is insufficient to create a property interest. The

property interest must be created in the documents in

language of trust in “legally cognizable form”. As has been

pointed out, the parties to this litigation stipulated in the

Agreed Statement of Facts that no such language existed

in the documents affecting this property. In the very

first sentence of Jones V. Wolf, supra, Mr. Justice Black-

mun wrote:

This case involves the dispute over the owner-

ship of church property following a schism in a local

church affiliated with a hierarchical church organiza-

tion. (440 U.S. at 597)

If the mere fact that the structure of the denomination

was “hierarchical”, as Justice Blackmun stated, had been

sufficient to give the Presbytery an interest in the property,

then the case would have ended with that first sentence.

But to give the denomination an interest in the local church

property simply on the basis that the denomination is

“hierarchical” is to “establish a religion” in direct violation

of the prohibition in the First Amendment to the U.S. Con-

stitution.

In Jones, supra, both the structure of the denomination

and the facts are almost identical to the case at Bar. It is

true that the local church in Jones was a member of

PCUS and not United. But these two denominations are

so similar in their Constitutions that in June 1983 they

united to form one denomination. As a matter of fact, the

PCUS Book of Church Order contains almost identical pro-

visions with all those provisions of the United Book of

Order cited by this Court in its opinion. Justice Black-

A33

mun sets out in his opinion those facts which clearly show

the identical character of the two denominations. In Jones,

he wrote:

In the same year it was organized, the Vineville

church was established as a member church of the

Augusta-Macon Presbytery of the Presbyterian

Church in the United States (PCUS). The PCUS has

a generally hierarchical or connectional form of gov-

ernment, as contrasted with a congregational form.

Under the polity of the PCUS, the government of the

local church is committed to its Session in the first

instance, but the actions of this assembly or “court”

are subject to the review and control of the higher

church courts, the Presbytery, Synod, and General As-

sembly, respectively. The powers and duties of each

level of the hierarchy are set forth in the constitution

of the PCUS, the Book of Church Order, which is part

of the record in the present case. (443 U.S. at 597-598).

A reading of the description of the structure of United

in this Court’s opinion, when compared to the above re-

citation by Justice Blackmun, shows clearly the identical

structure of the two denominations,

Look at the facts in Jones as recited by Justice Black-

mun in his opinion:

On May 27, 1973, at a congregational meeting of

the Vineville Church attended by a quorum of its duly

enrolled members, 164 of them, including the pastor,

voted to separate from the PCUS. Ninety-four mem-

bers opposed the resolution. The majority immedi-

ately informed the PCUS of the action, and then

united with another denomination, the Presbyterian

Church in America. Although the minority remained

on the church rolls for three years, they ceased to

A34

participate in the affairs of the Vineville church and

and conducted their religious activities elsewhere.

In response to the schism within the Vineville con-

gregation, the Augusta-Macon Presbytery appointed

a commission to investigate the dispute and, if possible,

to resolve it. The commission eventually issued a

written ruling declaring that the minority faction con-

stituted “the true congregation of Vineville Presby-

terian Church,” and withdrawing from the majority

faction “all authority to exercise office derived from

the PCUS.” (443 U.S. at 598)

It can thus be seen that both the structure and the

facts in Jones are identical to the structure and the facts

in the case at Bar. If the United States Supreme Court

had applied the judicial principle that this Court applied

in the case at Bar to Jones, then the local church property

would have been awarded to the denomination rather than

to the majority faction of the local church. But when

the Jones case was remanded to the Supreme Court of

Georgia in the light of this U.S. Supreme Court decision,

the Supreme Court of Georgia held:

The Trial Court found that the Vineville Presby-

terian Church had been a connectional church within

the Augusta-Macon Presbytery and the Presbyterian

Church in the United States but correctly held that

more than a mere connectional relationship between

the local church and the general church must exist

to give rise to property rights in the general church.

(243 S.E. 2d at page 864)

This issue has been further clarified in the recent

case of Piletich V. Deretich, 328 N.W. 2d 696, decided by

the Supreme Court of Minnesota on December 30, 1982,

with the rehearing denied on February 14, 1983. Inter-

estingly involved in that case is the same Serbian Eastern

A35

Orthodox denomination that was involved in the case of

Serbian Orthodox Diecese V. Milivojevich, 426 U.S. 696

(1976) cited by both sides to this litigation numerous

occasions. The Minnesota Supreme Court recognized the

U. S. Supreme Court decision in Serbian, supra, holding as

follows:

The First Amendment requires that civil courts

defer to adjudications by the highest tribunal in a

“hierarchical” church organization on issues of religi-

ous doctrine or polity (form of government) ....

A later decision of the highest court reiterates the prin-

ciple that matters clearly committed by church law

or state law to tribunals of hierarchical churches may

not be reviewed by civil courts. 328 N.W.2d at 699

(Emphasis added)

It is this principle which this Court of Appeals had

sought to invoke in its opinion when it quoted at length

from Watson V. Jones, 80 U.S. 679. But what Serbian held

is that this principle applies “on the issues of religious

doctrine or polity”; but it does not apply to issues of the

civil rights of ownership and control of real and personal

property. In the case at Bar, this Court then concluded

that ‘‘the Trustees of Babcock were bound by their own

By-Laws to follow the established mandates of United.”

(Opinion page 17) (Emphasis added). This Court obvi-

ously concluded that due to the mere structure of United,

Babcock was then bound to follow the “mandates” of the

denomination. The charter of Babcock provided that it

would remain in accordance with the “standards” of United.

The By-Laws of Babcock provided that Babcock would be

subject to the provisions of the Constitution of United.

No one denies these facts. But there is nothing in the

Constitution of United that says that the denomination

may mandate the right to ownership and control of local

church property. While Babcock was a member of United

A36

it complied with and was subject to all of the provisions

of the Constitution. There is no contention here that

Babcock violated the Constitution. Now that Babcock

has severed its ecclesiastical affiliation with United, it is no

longer subject to its jurisdiction. There is a vast difference

between following the provisions of the Constitution of

United and following its mandates. It is the contract be-

tween Babcock and United that controls. That contract is

the Constitution, United cannot mandate that it has an

interest in local church property when the Constitution

does not give it such an interest in “legally cognizable

terms”.

After recognizing that mere structure alone is insuf-

ficient to give the denomination an interest in property,

the Minnesota Court in Piletich V. Deretich, supra, looked

at the majority rule principle as set out in Jones, supra,

and stated:

The Court in Jones also observed that “majority

rule is generally employed in the governance of reli-

gious societies ... Furthermore, the majority faction

generally can be identified without resolving any ques-

tion of religious polity. (328 N.W.2d at 702)

The Minnesota Supreme Court found that the Consti-

tution of the Mother Church gave church congregations

the power to “acquire and hold either personal or real

properties, and have all the rights and obligations in that

capacity”. (328 N.W. 2d at 702). That Court then found

that the presumptive rule of majority representation must

result in a judgment for the majority in the local church

under the deeds, the local charter and By-Laws and the

Constitution of the Mother Church.

In speaking of the reasons the neutral principles ap-

proach is a better approach than other approaches, the

Minnesota Supreme Court stated:

es,

A37

This approach obviates consideration of whether

the litigants belonged to a “Hierarchical church”, an

area fraught with constitutional pitfalls and provides

a forum ever for members of a hierarchical church

which has not developed effective rules for settling

property disputes among members. 328 N.W. 2d at

page 701.

As has been pointed out in the case at Bar, United

attempted to pass an amendment to its Constitution in

1929 which would have imposed an express trust on local

church property for the denomination. This amendment

failed. It is the only time United in its history has at-

tempted to impose such an express trust until after Jones

V. Wolf, supra. Recognizing that it had not developed

effective rules for settling property disputes among its

members, United then went to work to propose such a

property amendment to its Constitution which would im-

pose an express trust on local church property for the

denomination. This amendment did become a part of its

Constitution in May, 1981, after the controversy in the

subject case arose. So, at the time the dispute erupted in

the instant case, there was no trust or property interest

in local church property for the denomination, as has been

stipulated by the parties in the Agreed Statement of Facts.

To hold that simply because this Court has determined

that United was a “hierarchical church” gives the Pres-

bytery a property interest is to “establish a religion” in

violation of the First Amendment prohibition that the

State must not “establish a religion.”

To award this property to the Presbytery or the de-

nomination in the case at Bar on the basis of the “hier-

archical” structure of United, based on an extensive and

searching inquiry into its Constitution, is a clear violation

of both the “free exercise” clause and the “establishment

A38

of religion” clause of the First Amendment to the Consti-

tution of the United States.

WHEREFORE, Appellants pray that this Honorable

Court reconsider its opinion filed on August 17, 1983, mod-

ifying it as needed and expanding it to resolve all the

issues involved in the case, or that, in the alternative, the

case be remanded to the Trial Court on the question of

right to withdrawal and retention by Babcock of the own-

ership, use and possession of its property and the corpora-

tion for further proceedings and findings of fact.

Respectfully submitted,

/s/ Mark E. Werner II

Mark E. Werner, II

Attorney for Appellants, Babcock

Memorial Presbyterian Church,

et. al

/s/ David S. Pearl

David S. Pearl

and

/s/ W. J. Williamson

W. J. Williamson

Attorneys for Appellants, The

Merritt Boulevard Presbyterian

Church of Dundalk, Inc., et. al.

I HEREBY CERTIFY that on this 16th day of Septem-

ber, 1983, copies of the aforegoing Motion for Reconsid-

eration were hand-delivered to Richard W. Kiefer, Esquire

and Dorothy M. Beaman, Esquire, Hooper, Kiefer & Cor-

nell, 343 North Charles Street, Baltimore, Maryland 21201,

Attorneys for Appellees.

/s/ Mark E. Werner II

Mark E. Werner, II

A39

APPENDIX D

Filed: November 17, 1981

OPINION OF CIRCUIT COURT

FOR BALTIMORE COUNTY

Babcock Memorial Presbyterian Church, et al.

v.

The Presbytery of Baltimore of The United Presbyterian

Church in the United States of America, et al.

Case No. 108725

Opinion by William R. Buchanan, Sr., Judge

IN THE CIRCUIT COURT FOR BALTIMORE COUNTY

AT LAW

CASE NO. 106725

THE MERRITT BOULEVARD PRESBYTERIAN CHURCH

OF DUNDALK, INC.

VS

THE PRESBYTERY OF BALTIMORE OF THE UNITED

PRESBYTERIAN CHURCH IN THE UNITED STATES

OF AMERICA, an unincorporated association, et al

A40

IN THE CIRCUIT COURT FOR BALTIMORE COUNTY

IN EQUITY

CASE NO. 108725

THE PRESBYTERY OF BALTIMORE OF THE UNITED

PRESBYTERIAN CHURCH IN THE UNITED STATES

OF AMERICA, an unincorporated association, et al

Vs

BABCOCK MEMORIAL PRESBYTERIAN CHURCH,

a body corporate, et al

CROSS BILL |

BABCOCK MEMORIAL PRESBYTERIAN CHURCH,

a body corporate, et al

VS

THE PRESBYTERY OF BALTIMORE OF THE UNITED

PRESBYTERIAN CHURCH IN THE UNITED STATES

OF AMERICA, et al

MEMORANDUM OPINION

The above captioned cases came before the Court on

October 2, 1981 on Motions for Summary Judgment. In

Law Case No. 106725, Plaintiff, The Merritt Boulevard

Presbyterian Church of Dundalk, Inc., hereinafter called

“Merritt”, has filed a Motion for Summary Judgment and

the Defendant, The Presbytery of Baltimore of the United

Presbyterian Church in the United States of America, et

al, hereinafter called “Presbytery”, has also filed a Mo-

tion for Summary Judgment. In Equity Case No. 108725,

Plaintiff, “Presbytery”, has filed a Motion for Summary

Judgment as have the Defendants, Babcock Memorial

Presbyterian Church, et al, hereinafter called “Babcock”.

Further, “Merritt”, as a defendant in the Equity Case,

A4l

has also filed a Motion for Summary Judgment. The

Court has considered the exhaustive memoranda, the argu-

ments of counsel, and the significant case law which is

applicable to the issues presented in these cases.

For purposes of clarity, the Court will first address the

motions filed in the Law Case before proceeding to a

discussion of the motions filed in the Equity Case.

In the Law Case, “Merritt” has brought an action in

ejectment against the “Presbytery” for possession of cer-

tain real property known as 8240 Loch Raven Boulevard.

Further, “Merritt” asks the Court to order the “Presbytery”

to return certain personal property.

The factual circumstances from which these cases

arise is set out in an Agreed Statement of Facts which

has been submitted by the parties. Therefore, the facts

will not be set out here, but will be referred to liberally.

A Plaintiff, in order to prevail in an action in eject-

ment, must establish three basic tenets. First, Plaintiff

must recover on the strength of its own title; second, Plain-

tiff must show that it has legal title; third, Plaintiff must

have a right of possession. These requirements have been

referred to as the three “cardinal rules” of ejectment law.

Janoske v. Friert@y 261 Md. 358, 275 A.2d 474 (1971).

Further, if a Plaintiff is to prevail in an action for

trespass to chattels, it must prove that at the time of the

trespass it must either have possession of the property or

title to same with the immediate right of possession. Poe

Section 232.

In examining the issues before the Court, it is clear

that resolution of this dispute requires this Court to deter-

mine one central issue—who owns the property in ques-

tion? “Merritt”, in claiming ownership of the property

ats

A42

in dispute, relies on its record title to the property as re-

flected by the deeds recorded in the Land Records Office

for Baltimore County. (Plaintiff's Exhibit 1 and Exhibit

6). However, the dispute in this case requires the Court

to determine whether “Babcock” had the power to convey

its real and personal property, by irrevocable gift, to “Mer-

ritt”. If the Court determines that “Babcock” had the ca-

pacity to make the conveyances it must then determine

whether said conveyances were fraudulent and should be

set aside. Therefore, this Court must first set out the

means by which a civil court may determine the owner-

ship of church property where such ownership is in dis-

pute, and then, through those means, determine ownership

of the property in this case.

“Thou shall not delve deeply into jurisdictional dis-

putes among churches.” Calvary Presbyterian Church of

Baltimore City v. Presbytery of Baltimore of the United

Presbyterian Church in the United States of Amerca, 39

Md. App. 405, 406, 286 A.2d 357 (1978), cert. den., 283 Md.

731 (1978). The Supreme Court, since the landmark case

of Watson v. Jones, 80 U.S. 679 (1871), has held that civil

courts may not adjudicate ecclesiastical matters when con-

fronted with disputes involving churches. However, civil

courts are permitted to resolve disputes concerning church

property if done in a manner which is not prohibited by

the First and Fourteenth Amendments of the federal Con-

stitution.

One of the permissible methods by which courts may

resolve or adjudicate church property disputes is to predi-

cate its decision upon ‘neutral principles of law’. Jones

v. Wolf, 99 S. Ct. 3020 (1979). The Court of Appeals of

Maryland adopted the ‘neutral principles of law’ approach

in Maryland and Virginia Eldership v. Church of God at

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

A43

and remanded, 393 U.S. 528, reaff’d, 254 Md. 162, 254 A.2d

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

Jones v. Wolf, supra, the most recent decision of the

Supreme Court with respect to the issues presented here,

has redefined or clarified the concept of ‘neutral principles

of law’. Mr. Justice Blackmun, writing for the majority,

stated:

The primary advantage of the neutral principles

approach are that it is completely secular in operation

and yet flexible enough to accommodate all forms of

religious organization and polity. The method relies

exclusively on objective, well-established concepts of

trust and property law familiar to lawyers and judges.

It thereby promises to free civil courts completely from

entanglement in questions of religious doctrine, polity

and practice. Jones v. Wolf, 99 S. Ct. at 3025.

Mr. Justice Blackmun also set out the measures by which

churches could insure that in the event of a dispute as

to the ownership of church property, the resolution of

that dispute will comport with the intentions of the parties:

Through appropriate reversionary clauses and trust

provisions, religious societies can specify what is to

happen to church property in the event of a particular

contingency or what religious body will determine

the ownership in the event of a schism or doctrinal

controversy. Jones v. Wolf, 99 S. Ct. at 3025-6.

It is clear that under the ‘neutral principles of law’

approach, a court is permitted to consider the language

of the deeds, the terms of the local church’s charter, state

statutes governing the holding of church property and the

provisions of the Constitution of the General Church con-

cerning the ownership and control of church property.

Through its examination, the court may ascertain whether

A4t4

the parties have set out or enumerated the process by

which the court may resolve a dispute concerning church

property.

At any time before the dispute erupts, the parties

can insure, if they so desire, that the faction loyal

to the hierarchical church will retain the church prop-

erty. They can modify the deeds or corporate charter

to include a right of reversion or trust in favor of

the general church. Alternatively the constitution of

the general church can be made to recite an express

trust in favor of the denominational church. The bur-

den involved in taking such steps will be minimal

and civil courts will be bound to give effect to the

result indicated by the parties, provided it is em-

bodied in some legally cognizable form. Jones v.

Wolf, 99 S. Ct. at 3027.

It is with these guidelines and rules that this Court

must make a determination in this case as to who owns

the property, real and personal.

An examination of the deed by which “Babcock” ac-

quired the real property known as 8240 Loch Raven Boule-

vard discloses that there is no language in the deed which

creates either an express trust for the benefit of the

“Presbytery” or a reversionary interest in the “Presby-

tery”. The Agreed Statement of Facts states that all of

the funds used to acquire and maintain ‘“Babcock’s”

property came from the local congregation and that there

were no financial contributions from a higher judicatory

in the United Presbyterian Church in the United States of

America, hereinafter called “United”, with one exception.

The Board of National Mission loaned “Babcock” $5,000.00

which was secured by a mortgage on the property, said

mortgage having been released in 1966.

A45

Therefore, the Court finds that there is no legally cog-

nizable , in fact there is no language, in the deed

from which Court can find that “Babcock” held the

property in trust for the “Presbytery”.

Article VI of “Babcock’s” Charter provides that: The

Park Presybterian Church of Baltimore City (renamed

“Babcock”) shall forever remain a Presbyterian Church

in accordance with the standards of the Presbyterian

Church in the United States.

The “Presbytery” argues that under the holding in

Calvary Presbyterian Church v. Presbytery, supra, this

Court can find that “Babcock”, by the above cited pro-

vision in its charter, agreed or consented to be bound by

“United’s” Form of Government. It is clear from reading

the Calvary case that Judge Gilbert’s opinion relied on

Calvary’s charter in finding that Calvary had, in fact,

consented to be bound by ‘“‘United’s” Form of Government.

Calvary’s charter provided:

The Calvary Presbyterian Church of Baltimore

City shall forever remain a Presbyterian Church in

doctrine, government and worship in accordance with

the standards of the Presbyterian Church in the United

States of American (sic) and in ecclesiastical connec-

tion with the Presbytery of Baltimore in accordance

with its organization by said Presbytery . . . Calvary

Presbyterian Church v. Presbytery, 39 Md. App. at 410.

A comparison of the two charter provisions indicates

that Judge Gilbert’s finding in Calvary Presbyterian

Church v. Presbytery, supra, was buttressed by plain and

unequivocal language. The Calvary charter expressly

pledges allegiance to “United’s” Form of Government

and its “connection” to the Presbytery in Baltimore. The

“Babcock” charter lacks the plain and unequivocal lan-

_x<x<« OC

A46

guage found in the Calvary charter. Further, in order to

ascertain whether or not “Babcock” had remained a Pres-

byterian Church in accordance with “the standards of the

Presbyterian Church in the United States”, this Court

would be required to conduct an impermissible inquiry

into matters of faith or ecclesiastical rule, custom or law.

Therefore, this Court finds that there is no legally

cognizable language in “Babcock’s” charter which would

operate to create a trust, express or implied, in “Bab-

cock’s” property for the benefit of the “Presbytery”. Fur-

ther, this Court finds that there is no legally cognizable

language in “‘Babcock’s” charter which creates a rever-

sionary interest in the “Presbytery” with respect to “Bab-

cock’s” property. Based on these findings, the Court must

hold that the “Presbytery” has no interest or right in

“Babcock’s” property by virtue of “Babcock’s” Charter.

A third source to which civil courts may turn for

guidance in resolving church property disputes is the pro-

visions in the constitution of the general church that gov-

ern ownership and control] of church property. The pro-

visions of “United’s” constitution which are applicable in

this case are contained in the Book of Order, specifically

the Form of Government.

Initially this Court must determine the internal struc-

ture or polity that “ United” adheres to. The “Presbytery”

argues that “United” is a hierarchical church in all re-

spects and, therefore, the ultimate authority in all matters,

including civil property rights, resides in the higher judi-

catories, Under the hierarchical structure, the local church

is subordinate to the higher bodies within the structure

in all matters. “Merritt” argues that under Maryland and

Virginia Eldership v. Church of God at Sharpsburg, supra,

a church is not precluded from maintaining more than one ©

form of internal structure or polity. While conceding that

A47

in ecclesiastical matters, “United” adheres to a presbyterial

or hierarchical structure, “Merritt” argues that with re-

spect to use and control of property, “United” is congre-

gational. Under the theory put forth by “Merritt”, the

local church would be autonomous with respect to the

local church property, subject to any specific restrictions

in the constitution of the general church. Therefore, this

Court must examine the constitution of “United” to deter-

mine what polity is employed with respect to the owner-

ship and use of property by the local churches.

“United’s” constitution is specific with respect to the

acquiring, holding and disposal of property by the local

church:

Each particular church shall be incorporated,

cause a corporation to be formed and maintained, or

in states forbidding the incorporation of religious

bodies elect from its members individual trustees to

receive, hold encumber, manage and transfer prop-

erty, and facilitate the management of its civil affairs

as may be directed by the Session of the particular

church from time to time and according to this Con-

stitution. (62.04).

Under Section 41.08, the session of the local church

has authority over all of the affairs and activities of the

local church except those matters which are “specifically

accorded . . . to a higher judicatory” by the Form of Gov-

ernment. Further, Section 62.08, in addressing the re-

sponsibility of the trustees of the local church with respect

to the church property provides:

They shall deal with such property only as they

may be authorized or directed by the session, and

their authority in respect to the selling, mortgaging,

and leasing of real property shall be subject . . . to

the permission of the Presbytery as herein provided.

A48

The “Presbytery” cites Sections 41.06, 41.07, 42.01

and 42.08 in support of its argument that “United” is an

hierarchical church with respect to all matters. However,

an examination of these provisions and Calvary Presbyte-

rian Church v. Presbytery, supra, does not compel this

Court to find that “United” is hierarchical with respect

to ownership and use of property. Further, there are

other provisions in the Book of Order that are indicative

of a congregational polity with respect to the church

property.

The Book of Order, in Section 62.12, provides that a

particular church shall not, “sell, mortgage or otherwise

encumber any of its real property and it shall not acquire

real property subject to an encumbrance or condition

without the written permission of the Presbytery trans-

mitted through the session of the particular church.” The

“Presbytery” argues that this provision of the Book: of

Order renders the deed of the real property to “Merritt”

invalid as the gift violates the constitution of “United”.

Therefore, this Court must determine whether an irrev-

ocable gift is prohibited by Section 62.12.

It is clear that an irrevocable gift is neither a sale

nor a mortgage. Whether “Babcock” has otherwise “en-

cumbered” its property must be determined according to

objective, well-established concepts of trust and property

law. Black’s Law Dictionary defines ‘encumber’ as making

the land, “subject to a charge or liability. Encumbrances

include not only mortgages and other voluntary charges,

but also liens, lites pendentes, registered judgments and

writs of execution.” An irrevocable gift is not an encum-

brance on the property; therefore, this Court finds that

Section 62.12 of the Book of Order does not render the

gift of “Babcock’s’ real property to “Merritt” invalid.

Further, Section 62.12 has no effect with respect to the

A49

transfer of “Babcock’s” personal property to “Merritt”

as by its terms only real property is affected.

The “Presbytery” argues that although a gift of all

of the church property was not envisioned by “United”

or the “Presbytery”, this Court should find that it is

prohibited by Section 62.12. In Jones v. Wolf, supra, the

Supreme Court found that the general church could insure

the disposition argued for by the “Presbytery” through

the inclusion of appropriate language in the Constitution.

Specifically the Court stated; “The burden in taking such

steps will be minimal and civil courts will be bound to

give effect to the result indicated by the parties, provided

it is embodied in some legally cognizable form.” Jones

v. Wolf, 99 S. Ct. at 3027. The absence of such language

in the constitution of ‘‘United” compels this Court to find

that the irrevocable gift by “Babcock” is not prohibited.

A provision of the Book of Order which is particularly

germane to the issues presented in this case and is relied

upon by the “Presbytery” in its argument that it now

controls the “Babcock” property is Section 62.11. That

section provides:

Whenever hereafter a particular church is for-

mally dissolved by the Presbytery, or has become

extinct by reason of the dispersal of its members,

the abandonment of its work, or other cause, such

property as it may have, both real and personal, shall

be held, used and applied for such uses, purposes,

and trusts as the Presbytery may direct, limit and

appoint or such property may be sold or disposed of

as the Presbytery may direct in conformity with the

Constitution of the United Presbyterian Church in

the United States of America.

This provision was cited by Judge Gilbert in Calvary

Presbyterian Church v. Presbytery, supra, and the “Pres-

A50

bytery” argues that application of Section 62.11 to the

facts of this case compels this Court to rule as Judge

Gilbert ruled and decide that the property at issue is

under the control and direction of the “Presbytery”.

However, the facts presented here and the facts which

existed in Calvary Presbyterian Church v. Presbytery,

supra, are different in several significant aspects.

In the Calvary case, the local church voted to sever

its relationship with “United” but continued to possess

and exercise control over its property. The “Presbytery”,

acting pursuant to Section 41.15 of the Book of Order,

dissolved Calvary’s session and appointed an Administra-

tive Commission to take the place of Calvary’s session.

A reading of the trial judge’s (Judge Sullivan) opinion

in the Calvary case reveals that his finding that the Ad-

ministrative Commission was entitled to control of Cal-

vary’s property was based on Section 41.08 of the Book

of Order because the Administrative Commission was then

functioning as the session of Calvary. Judge Sullivan,

in holding that “United’s” constitution established the

basis upon which the ‘‘Presbytery” could assume control

of Calvary’s property, noted that “United” had not ob-

tained an act from the legislature which would automat-

ically revert the church property back to “United” upon

the secession of a local church. Further, Judge Sullivan

stated that had the “Presbytery” dissolved the Calvary

Church, the real and personal property of Calvary would

have come under the direct control of the “Presbytery”

under Section 62.11 of the Book of Order.

This Court finds that Section 62.11 of the Book of

Order did not operate to cause “Babcock’s” personal and

real property to revert to the “Presbytery” and further

that Calvary Presbyterian Church v. Presbytery, supra,

does not compel a finding by this Court that the “Pres-

A51

bytery” owns or controls the property at issue in this

case.

Section 62.11 only operates to create a trust in or

cause a reversion of the local church property upon the

occurrence of specific contingencies. The parties have

submitted an Agreed Statement of Facts in which it is

stated that none of the specific contingencies had or has

occurred. Therefore, this Court must find that there

has been no trust created in or reversion of the personal

and real property of “Babcock” to the “Presbytery” under

Section 62.11 of the Book of Order.

The crucial fact which distinguishes this case from

the Calvary case is that ‘“Babcock’s” decision to sever its

relationship with “United” was preceded by the convey-

ance, by irrevocable gift, of its real and personal property

to “Merritt”. Therefore, the action of the “Presbytery”

in dissolving the session of “Babcock” and appointing an

Administrative Commission to take the place of “Bab-

cock’s” session came after the property had been conveyed

to “Merritt”. When the Administrative Commission took

the place of ‘“‘Babcock’s’” session, it could not assume

control of “Babcock’s” property because at that point

“Babcock” had no property over which the Administrative

Commission could assume control. It is clear that if

“Babcock” had voted to disassociate or sever its relation-

ship with “United” and sought to retain control of its

property, the “Presbytery” may have been able to assume

control over “Babcock’s” property. However, that is not

the situation presented to this Court.

Calvary Presbyterian Church v. Presbytery, supra,

also contains language which appears to hold that MD.

CORP. & ASS’NS. CODE ANN. Section 5-331(a) (Cum.

Supp.) could act alone to create a trust for the benefit

of the “Presbytery” in the property of a local church or

A52

cause a reversion of said property to the “Presbytery”

upon the local church’s secession from the general church.

As stated previously, Judge Sullivan, in his memorandum

opinion, stated that “United” had not obtained an act

from the legislature which would automatically revert

the church property back to “United” upon secession of

the local church. However, Section 5-331(a) when read

in conjunction with Calvary’s charters, can be interpreted

as affirming Calvary’s previous pledge to “forever remain

a Presbyterian Church in... government... in accor-

dance with the standards of the Presbyterian Church in

the United States of America ... and in ecclesiastical

connection with the Presbytery of Baltimore.” The man-

date of Section 5-331(a) would, therefore, operate to

renew Calvary’s pledge with respect to “United”.

When Section 5-331(a) is read in conjunction with

“Babcock’s” charter, it is clear that the statute operates

to affirm “Babcock’s” promise to remain “a Presbyterian

Church in accordance with the standards of the Presbyte-

rian Church in the United States”. Therefore, it can

accurately be stated that after the enactment of Section

5-331(a) “Babcock” was to remain a Presbyterian Church

in accordance with the standards of the United Presbyte-

rian Church in the United States of America. However,

it cannot be stated that the operation of Section 5-331(a)

requires a finding that “Babcock” held its property in

trust for the benefit of the general church or that “‘Bab-

cock’s” property would revert to the “Presbytery” upon

secession or withdrawal. Further, if the constitution of

“United” (Book of Order) does not contain provisions

prohibiting the conveyances from “Babcock” to “Merritt”,

Section 5-331(a) cannot prohibit those conveyances by

its mere enactment. As stated above, this Court has

found that there are no provisions in the Book of Order

A53

which prohibit the making of an outright and irrevocable

gift by a local church of its real and personal property.

Another argument asserted by the “Presbytery” con-

cerns “Babcock’s” enactment of a By-Law in 1968 which

States:

This church is affiliated with the United Presbyterian

Church in the United States of America and is under

the care of and subject to the jurisdiction of the

Presbytery of Baltimore. These By-Laws shall be

subordinate to the constitution of the United Pres-

byterian Church and nothing contained herein shall

be interpreted to the contrary.

As stated above, there being no legally cognizable lan-

guage in the Book of Order establishing a trust for the

benefit of “United” in “Babcock’s” property, this Court

will not hold that this By-Law creates, either expressly

or impliedly, of its own force that which is not in the

Book of Order.

Therefore, this Court finds that ‘‘United” maintains

a congregational polity with respect to the use and owner-

ship of local church property and that “Babcock’s” Board

of Trustees, with the concurrence of the session, was

legally entitled to convey the real and personal property

of “Babcock” to “Merritt” by irrevocable gift. The Court’s

finding that “United” maintains a congregational polity

with respect to the use and ownership of local church

property is based on two basic premises. First, the pro-

visions of the Book of Order set out above do not operate

to prohibit the conveyances in dispute. Second, the in-

stances in which the “Presbytery” or some other higher

judicatory may interfere with the use or ownership of

local church property are expressly delineated in the

Book of Order. Stated another way, the local church is

A54

free to use its local property as it pleases, subject to

specific limitations set out in the Book of Order. The

ability of the local church to so utilize its property, in-

cluding a gift of all of the property to a third party, is

more consistent with a congregational polity than a hier-

archical polity.

For the reasons set out above, the Court finds that

“Babcock”, through its Board of Trustees and session,

possessed the legal ability to convey the real and personal

property of “Babcock” to “Merritt” by irrevocable gift,

vesting legal title in such property in “Merritt”. The

“Presbytery” argues that these conveyances were fraud-

ulent and asks this Court to declare the deeds invalid.

The “Presbytery” argues that the conveyances at issue

here arise under circumstances to which ‘badges of fraud’

attach. The finding of several ‘badges of fraud’ is strong

evidence that fraud exists. The basis of the “Presby-

tery’s” argument is that “Babcock” utilized the gifts to

“Merritt” as a means by which it could avoid the impli-

cations of Calvary Presbyterian Church v. Presbytery,

supra. Further, it is argued that “Babcock” never relin-

quished control of the property and that “Merritt” was

merely a conduit utilized as part of the ‘scheme’ to de-

prive the “Presbytery” of its property.

The Court is not persuaded by the argument that

these conveyances were fraudulent. When an individual

or corporation has the legal capacity to dispose of its prop-

erty in a certain manner and then proceeds to do so,

the Court should not declare such actions invalid in the

absence of express and legally cognizable language that

the interest of some third party will be prejudiced. As

stated above, the general church had both the authority

and ability to dictate the result argued for by the “Pres-

bytery” in this case. Its failure to do so or to create

A55

a contractual or proprietary interest in the “Babcock”

property requires this Court to hold that it cannot now

complain that a fraud has been perpetrated upon it.

Therefore, in Law Case No. 106725, the Court finds

that there being no genuine dispute as to any material

fact, the Plaintiff, ‘“Merritt” is entitled to judgment as

a matter of law. It has established the three prerequi-

sites that entitle a party to prevail in an action in eject-

ment, namely, legal title, right to possession and Plaintiff

has recovered on the strength of its own title. “Merritt”

has also established, with respect to the personal property,

that at the time of the trespass, it had title to the property

with the immediate right of possession. The Plaintiff

“Merritt’s” Motion for Summary Judgment is GRANTED,

to wit, the Defendant “Presbytery” is permanently en-

joined from interfering with the right of possession of

Plaintiff in the real property located at 8240 Loch Raven

Boulevard, Baltimore County, Maryland, and the personal

property located in the buildings on said property. The

Court declines to award damages because of the special

nature of this case.

Accordingly, the Motion for Summary Judgment filed

by the Defendant, ‘‘Presbytery” is DENIED.

Counsel for all parties have previously agreed that

the resolution of the Law Case would also resolve the

Equity Case.

Therefore, in Equity Case No. 108725, the Plaintiff,

“Presbytery’s”, Motion for Summary Judgment is DE-

NIED.

The Motion for Summary Judgment filed by the De-

fendant, “Merritt”, is GRANTED.

The Motion for Summary Judgment of “Babcock” on

its counterclaim is GRANTED, to wit, all personal prop-

A56

erty, including corporate documents, the proceeds of a

bank account with T. Rowe Price Prime Reserve Fund,

and all mail addressed to “Babcock Memorial Presbyte-

rian Church” shall be returned to the appropriate per-

son(s). With regard to the use of the name “Babcock

Memorial Presbyterian Church”, the Court holds that the

name may be used by the corporate entity so long as

it exists.

Counsel for “Merritt” and “Babcock” should submit

appropriate Orders in accordance with this Opinion.

/s/ Wm. R. Buchanan, Sr.

William R. Buchanan, Sr.

‘ Judge

November 16, 1981

APPENDIX E

Filed: November 23, 1983

OPINION OF THE SUPREME COURT

OF SOUTH DAKOTA

John Foss, et al.

v.

Virgil Dykstra, et al.

Appeal from the Circuit Court of the First Judicial

Circuit, Lincoln County, South Dakota.

#13678, #14006

MORGAN, Justice.

These actions arise from the Ebenezer United Pres-

byterian Church’s withdrawal from the denomination of

the United Presbyterian Church in the United States of

America (UPCUSA). The faction of the Ebenezer Church

remaining loyal to UPCUSA and the South Dakota Pres-

bytery initiated this action against the schismatic faction

consisting of named defendants and the Ebenezer Church

corporation, seeking control of the local church’s prop-

erty.’ For the purposes of this opinion, we will refer

to the former loyalist group and Presbytery as National

Church and to the latter schismatic group as Local Church.

1. This case was before this court in Foss v. 7

nee 499 (S.D. 1982). saee, Leeet See ee eS

car crane ih tron oe i Church. This

to the trial court to determine

A58

In the course of the proceedings below, one trial

judge entered an order that Local Church had violated

a temporary injunction by paying out money from the

church account for attorney fees and entered a judgment

against the members of Local Church in favor of National

Church. Pursuant to our remand, another trial judge

subsequently awarded possession and control of the local

property to Local Church. Both Local and National

Churches appeal from the respective orders and we affirm

in part, reverse in part and remand.

Local Church was organized in 1889 and became a

nonprofit corporation in 1945. At that time, Local Church

was affiliated with the denomination known as the Pres-

byterian Church in the United States of America. In

1958, that denomination merged with another denomina-

tion to form UPCUSA. On November 24, 1980, due to

doctrinal differences, a majority of the members of Local

Church by vote of 198 to 32 adopted a “Resolution of

Secession” to sever affiliation with UPCUSA. National

Church responded by initiating this action to obtain use,

control, and possession of Local Church’s real and per-

sonal property. At the first trial, the trial court entered

judgment for National Church. This court reversed and

remanded with instructions to the trial court. Foss v.

Dykstra, 319 N.W.2d 499 (S.D. 1982). At the rehearing,

the trial court entered a judgment for Local Church. Na-

tional Church appeals, raising three issues: (1) whether

the “neutral principles of law” approach should be used

when the church involved is a hierarchical organization;

(2) whether the trial court correctly applied the “neutral

principles of law” approach; and (3) whether National

Church is entitled to the use and control of the local

property.

A59

The first issue raised on this appeal, whether the

“neutral principles of law” approach should be applied

herein, was thoroughly briefed and argued the first time

this case was before this court. Foss v. Dykstra, supra.

Our decision adopted the general rule that when a hier-

archical church is involved in a property dispute that the

neutral principles of law approach applies. Jones v. Wolf,

443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979). Na-

tional Church argues that for this court to proceed under

the “neutral principles of law” approach is, in effect, in-

terfering with the free exercise of religion. This conten-

tion, however, was settled by the United States Supreme

Court in Jones, supra. Moreover, since this issue was

thoroughly briefed and argued and disposed of on the first

appeal, we decline the invitation to again address it,

The second and third issues as stated by National

Church can be combined into one issue: whether the

trial court correctly applied the neutral principles of law

approach. This court described that approach in Foss,

supra, as follows:

The neutral-principles approach calls for a completely

secular examination by civil courts into church docu-

ments, deeds to the property in question, state statutes

and other relevant evidence to determine ownership.

The key to the neutral-principles approach is that

such determination is to be made “exclusively on ob-

jective, well-established concepts of trust and prop-

erty law familiar to lawyers and judges.”

319 N.W.2d at 500 quoting from Jones, 443 U.S. at 603, 99

S.Ct. at 3025, 61 L.Ed.2d at 785. According to the United

States Supreme Court, this approach requires that “a civil

2. For 1 discussion of ae pia

lca church 4 py at oy oe 4 2 ALR 3d 324

— = wi

A60

court must take special care to scrutinize the document in

purely secular terms, and not to rely on religious precepts

in determining whether the document indicates that the

parties have intended to create a trust.” Jones, 443 U.S.

at 604, 90 S.Ct. at 3024, 61 L.Ed.2d at 785 (emphasis

added).

The trial court made certain significant findings of fact

which we summarize as follows. Local Church acquired

certain real and personal property and no agency or court

of UPCUSA above local level made any financial con-

tribution thereto. Record title is vested in the local church

corporation, organized and existing under the laws of South

Dakota. National Churcn has no proprietary or contractual

interest in the property under the provisions of the

UPCUSA constitution or relevant documents of title.

Neither Local Church’s articles of incorporation nor two

amendments thereto mention any denominational affilia-

tion. Prior to the adoption of the resolution of secession

there was no provision in UPCUSA’s constitution pro-

hibiting withdrawal of a local church or imposing any

penalty or forfeiture of property on withdrawal, nor any

provision imposing a trust on local church property in

favor of National Church.

The trial court concluded as a matter of law that there

was neither any express or implied trust in favor of Na-

tional Church giving it control over the property; that

Local Church was free to sever ecclesiastical connections

with UPCUSA without penalty or forieiture of the prop-

erty; and that all civil indicia evince ownership of the prop-

erty in Local Church.

Our examination of the deeds to the local property

shows a number of conveyances to the Ebenezer Presby-

terian Church of Lennox. None of these deeds indicate any

interest or trust relationship in National Church.

A6l

Two mortgage instruments are contained in the record.

The oldest mortgage, which has been paid and satisfied, was

by Local Church to UPCUSA. This previous mortgage,

dated November 17, 1960, contained a provision that:

This mortgage and the obligation which it secures

shall become due and payable immediately upon the

mortgagor’s severing its denominational connection

with the General Assembly of the United Presbyterian

Church in the United States of America... .

If this action had occurred while this mortgage was in

effect, the only right National Church would have had was

to accelerate the balance due. Of course, Local Church

could then have paid the balance due and kept the prop-

erty. Significantly, the trial court found the language of

this provision to be a recognition by UPCUSA of the right

to withdraw. We agree. The current mortgage on the

property is not to UPCUSA nor does the current mortgage

mention UPCUSA. Thus, as with the deeds, examination

of the current mortgage does not indicate any interest in

National Church.

The articles of incorporation of Local Church show

that it was incorporated in 1945 as the Ebenezer Presby-

terian Church of Lennox; South Dakota “for the purpose of

maintaining and promoting religious worship according to

the general usages of the Ebenezer Presbyterian Church.”

(Emphasis added.) The articles of incorporation show no

connection between Local Church and UPCUSA. National

Church contends that a name change by Local Church in

1974 to Ebenezer United Presbyterian Church (emphasis

added) demonstrates a close relationship between Local

Church and UPCUSA. Since the denominational change to

UPCUSA occurred in 1958, the name change by Local

Church sixteen years later does not demonstrate the close

relationship alleged by National Church. Further, the

ae

A62

name change certainly does not give rise to a trust rela-

tionship between UPCUSA and Local Church.

SDCL chs. 47-22 through 47-28 govern the affairs of

nonprofit corporations such as Local Church. None of

these statutes create a trust relationship between National

Church and Local Church.

The last source we examine to determine the exis-

tence of a trust relationship between National Church

and Local Church is UPCUSA’s constitution, the Book of

Order. National Church points to four provisions in the

Book of Order which it claims give it an interest in Local

Church’s property. Section 41.07 of the Book of Order

states that the Session (comprised of the minister and

trustees of Local Church) shall have exclusive authority

over the church property.’ Section 41.15 of the Book of

Order provides that a Presbytery (comprised of the Presby-

terian local churches in the area) may appoint a commission

to replace the Session of a local church.‘ Section 62.11

3. Sec

This text is long and has been trimmed here. Open the source document for the complete record.