Opposition Brief — The v. Protestant Episcopal Church (No. 08-1579)
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© 579 } Supreme Court, US.
FILED
In The
Supreme Court of the Gni
¢
AUG 2 6 2009
Senx |
THE RECTOR, WARDENS, AND
VESTRYMEN OF ST. JAMES PARISH IN
NEWPORT BEACH, CALIFORNIA, ET AL.,
Petitioners,
Vv.
THE PROTESTANT EPISCOPAL CHURCH IN
THE DIOCESE OF LOS ANGELES, ET AL.,
Respondents.
e
On Petition For A Writ Of Certiorari
To The Supreme Court Of California
¢
BRIEF IN OPPOSITION
+
JOHN R. SHINER DAVID BOOTH BEERS
Counsel of Record HEATHER H. ANDERSON
BRENT E. RYCHENER JEFFREY D. SKINNER
HOLME ROBERTS & OWEN, LLP GOODWIN PROCTER LLP
800 West Olympic Blvd., 901 New York Ave., N.W.
4th Floor Washington, D.C.
Los Angeles, California 20001-4432
90015-1367 (202) 346-4000
(213) 572-4300
Counsel for Respondent
FREDERIC D. COHEN The Episcopal Church
JEREMY B. ROSEN
Horvitz & LEvy, LLP
15760 Ventura Blvd.,
18th Floor
Encino, California 91436-3000
(818) 995-0800
Counsel for Respondents
The Protestant Episcopal
Church in the Diocese of
Los Angeles, et al.
Counsel for Respondents
COCKLE LAW BRIEF PRINTING CO (800) 225 6964
OR CALL COLLECT (402) 342-2831
CORPORATE DISCLOSURE STATEMENT
The Episcopal Church is an _ unincorporated
association with no parent corporation or stock.
The Protestant Episcopal Church in the Diocese
of Los Angeles is a diocese of The Episcopal Church
and a nonprofit corporation formed under the laws of
the State of California with no parent corporation or
stock.
ll
TABLE OF CONTENTS
3
A. FRancGarihh Sa ea cidiecnccscccecnssscesccsvsecesese 3
1. Structure of the Church........................ 3
2. Canons governing property................... 5
3. History of St. James Parish.................. 7
B. Procure tases... 8
REASONS FOR DENYING THE PETITION ....... 11
I. NO JURISDICTION EXISTS TO REVIEW
PES Er ee ir ceehiedenicncsticescses sesssscoes.. 11
A. No Final Judgment or Decree Has
Been Rendered for Purposes of Section
1257(a), and No Recognized Exception
to the Finality Rule Applies.................. 11
B. The Decision Below Is Adequately
Supported By Independent State
6 REO Sea ee 15
1. Apart from. section 9142, the
opinion is independently supported
by the California Supreme Court’s
neutral principles analysis .............. 15
2. The judgment is independently
supported by the court’s_inter-
pretation of California’s “anti-
I oii ccassscssccvess sees. 18
II.
Il.
ill
TABLE OF CONTENTS — Continued
Page
THE CALIFORNIA SUPREME COURT’S
INTERPRETATION OF SECTION 9142
DOES NOT RAISE ANY UNRESOLVED
CONSTITUTIONAL ISSUES .......000..0000022..
A. Jones v. Wolf Recognized the Enforce-
ability of Denominational Trust Pro-
RD ovscsciccasnniccndiand cobeccha cbeaneaneberd tasbanicens
B. The Court Did Not Adopt an
Unconstitutional Interpretation of Cor-
porations Code Section 9142.................
1. The California Supreme Court did
not decide any questions of religious
CHOOUTEING GP IEE ose cnn cvccencasncvisasnenesss
2. Section 9142 does not award an
unconstitutional preference to hier-
archical religious organizations.......
a. Enforcement of Church Canons
under section 9142 is consistent
with how California courts treat
all voluntary associations, sec-
ular and religious .......................
b. Enforcement of Church Canons
under section 9142 is consistent
with generally applicable Cali-
fornia state law concerning
CRAFICH OIG CRUBEE oi. ..n0cccdsceccncosvasa.
THERE 1S NO CONFLICT AMONG
STATE COURTS THAT SUPPORTS RE-
VERS WY EOS TRB Ci einss sn ccsnosecesnceczssevecsscansss
20
20
23
25
27
28
30
lv
TABLE OF CONTENTS — Continued
Page
A. There Is No Split Among State Courts
Regarding Enforcement of the Epis-
copal Church’s Trust Interest in Parish
PE i css cic cibsnasnchdencsapee aoesdtanbaaenae 33
B. State Courts Agree the Neutral
Principles Approach Approved in Jones
v. Wolf Is a Permissible Method of
Analysis, and General Church Rules
Should Be Considered Under That
FRI ican kccccbuen Vabsha nace aceon 34
1. There is no dispute that “neutral
principles” are constitutionally per-
missible............ cesieigan baaicibeksy doatiamiad 34
2. There is ne dispute general church
rules should be considered under
“TREO DTRIICI TIN. onc nsciacexcsscnccseovess 36
C. The Alleged Conflict Between the
Appellate Courts of California and
Arkansas Is Easily Reconciled.............. 37
CIF aD 6iicicciss tp dentasvntsiataretsindeatnkinphadestiatnueds 40
Vv
TABLE OF AUTHORITIES
Page
CASES
Am. Ctr. for Ed., Inc. v. Caunar, 80 Cal. App. 3d
Be Fe Ne Riidics ss ah cas caaceusevssesasrenbdesiectuntesies 31
Ark. Annual Conference of AME Church, Inc. v.
New Direction Praise & Worship Ctr., Inc.,
ee a I iid bscvcascacauctdnvereivalensndecsonsinss 38, 39
Bennison v. Sharp, 329 N.W.2d 466 (Mich. Ct.
I INE Fs. s5.cs dba sasilcouseenauebeduenapnsdunecisamaeleivaebenes 27, 33
Berthiaume v. McCormack, 891 A.2d 539 (N.H.
SUI idecins isis vas sks ta cuduiobpurieseuveevaadsanyerainnnsaieietaeen 36, 37
Bishop & Diocese of Colo. v. Mote, 716 P.2d 85
I 33, 39
Bjorkman v. Protestant Episcopal Church, 759
are nics ds cs cn cecienscavecencavabachoateds 17, 34
Brown v. Mem. Nat’l Home Found., 162
Cal. App. 26 S13 (Ct. App. 1958) ..................20....000 31
Cal. Dental Ass’n v. American Dental Ass’n, 23
See EE is ciirciicta ci Acasngextosipabemigassxancuenunns 28
Carnes vu. Smith, 222 S.E.2d 322 (Ga. 1976).............. 21
Church of God of Madison v. Noel, 318 S.E.2d
ES NIE, 2 «cs sone sagiduakdennediescaabeseehedowotansances 35
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469
I a hess cud rh os viens oncashiaauvesedcmaniocseneeeten passim
Cumberland Presbytery v. Branstetter, 824
ERY CHEE BEE? one sccccicesescecsisncssteiosnhedeiense 23, 34
vi
TABLE OF AUTHORITIES — Continued
Page
Daniel v. Wray, 580 S.E.2d 711 (N.C. Ct. App.
ARERR REESE RR pe 26, 33
Dixon v. Edwards, 172 F. Supp. 2d 702 (D. Md.
hc oe i Les ecumnesagnapnen sees 26
Episcopal Diocese of Mass. v. DeVine, 797
N.E.2d 916 (Mass. App. Ct. 2003) .................0e 26, 33
Episcopal Diocese of Rochester v. Harnish, 899
I EO, IED ccnscccsecccccoveccovosssensccsesnces 26, 33
Equilon Enterprises v. Consumer Cause, Inc.,
BR MU IY voc vcsccnvascscccccsconassesecsossonecosesoevan 18
Florida v. Thomas, 532 U.S. 774 (2001)...............006 15
Peyme ©, CORED, SEL ULB. SES C1GG1).....cccecrerccsccesescovesens 14
Gear v. Webster, 258 Cal. App. 2d 57 (Ct. App.
Si ndl chcuncibivad ke vbsbachathditeibontisdssbeketcucedebocusnaeies 28
Herb v. Pitcairn, 324 U.S. 117 (1945) .................. 15, 19
In re Church of St. James the Less, 888 A.2d
sic. i ans ch dageacaaeiaaaiensnmumiemaciaineas table 33, 39
Johnson v. California, 541 U.S. 428 (2004)............... 14
Jones v. Wolf, 443 U.S. 595 (1979) ........... ee. passim
Korean United Presbyterian Church v.
Presbytery of the Pacific, 230 Cal. App. 3d
I BOTY aca cssceacesnescsacocerecorcssvereceevens 23
Miss. & Kan. Interurban Ry. Co. v. City of
PEE IEE PsAPs BOO CREED voce svccesvecsevaceresonseecovecces 19
Moses v. Diocese of Colo., 863 P.2d 310 (Colo.
PRL CE aid h ica, cupcivakndsuntedsancsacdaeenedolesscaeealeeewnbaenl 27
Vii
TABLE OF AUTHORITIES — Continued
Page
Most Worshipful Sons of Light Grand Lodge v.
Sons of Light Lodge No. 9, 118 Cal. App. 2d
ee a I I vc nikdoksncnsentantinccadvdaiiibioninisntssneecces 29
Navellier v. Sletten, 29 Cal. 4th 82 (2002)................. 18
New v. Kroeger, 167 Cal. App. 4th 800 (Ct. App.
PNNEScadicrdes Na sansediaidacicniniumlemeboubetauiel cavities sasadienbioncens 26
Nike, Inc. v. Kasky, 539 U.S. 654 (2003)..................2. 15
Original Glorious Church of God in Christ, Inc.
v. Myers, 367 S.E.2d 30 (W. Va. 1988) .................... 35
Pac. Home v. County of Los Angeles, 41 Cal. 2d
PIR ici) 4 tecdiccucsc ha Gndenusuabnikskuxncatasueeuse ban sieeveonaies 31
Parish of the Advent v. Protestant Episcopal
Diocese of Mass., 688 N.E.2d 923 (Mass.
MEET T ihn shdisnvaakehitadnceostnatsteaseamanacashad dasetioteiiidesciasrseve 26
Petrell v. Shaw, 902 N.E.2d 401 (Mass. 2009)........... 26
Protestant Episcopal Church in the Diocese of N.2J.
v. Graves, 417 A.2d 19 (N.J. 1980)........... 27, 33, 35, 39
Rector, Wardens & Vestrymen of Trinity-Saint
Michael’s Parish, Inc. v. Episcopal Church in
the Diocese of Conn. 620 A.2d 1280 (Conn.
BIE 55 sds csinvhcocerauenesatactaceduindieatenticaaeciaale 27, 33, 39
Tea v. The Protestant Episcopal Church in the
Diocese of Nev., 610 P.2d 182 (Nev. 1980)......... ai. ae
Thatcher v. City Terrace Cultural Ctr, 181
Cal. App. 2d 433 (Ct. App. 1960) ....................cceceees 29
Vlil
TABLE OF AUTHORITIES — Continued
Page
Trustees of the Diocese of Albany v. Trinity
Episcopal Church, 684 N.Y.S.2d 76 (N.Y.
I BD vihcnscsncncaductnbgascanttamndeusesenpsehanmaied 26, 39
United States v. Int'l Bhd. of Teamsters, 968
a ee Ce Ns EG oak koi divyvn ca deadssccasctsacnvechcasps 26
STATUTES
28 U.S.C.
b> Cy er Fa NS OO POET PRO ALON Pa 3,11, 12, 19
Cal. Bus. & Prof. Code
ee Dc concncsursnonsdnecdescnensepecsed 31
California Civil Procedure Code
ye UE I ED nc ccecccnccecceescserecseceees 9, 18, 19
California Corporations Code
ee I IIT 6 icine csccnsccvcsscccccexsdcceececccscees passim
1
INTRODUCTION
Apart from raising no substantive issues that
warrant review, the Petition for a Writ of Certiorari
should be denied on jurisdictional grounds because
trial court proceedings remain ongoing and no final
judgment will be entered until those proceedings
have run their course. Petitioners acknowledge this,
but seek to overcome this jurisdictional defect by
relying on the fourth exception to the finality rule
described in Cox Broadcasting Corp. v. Cohn, 420
U.S. 469 (1975). This exception does not apply
because reversal on the grounds asserted in the
Petition would not end the litigation, and declining
immediate review would not “seriously erode” federal
policy. Moreover, the California Supreme Court based
its decision on independent state grounds.
Even were jurisdiction not lacking, there is no
basis for granting certiorari:
¢ The neutral principles approach em-
ployed by the California Supreme Court to
resolve this church property dispute was
endorsed by this Court in Jones v. Wolf and
has been adopted consistently by state courts
to resolve similar disputes.
¢ The California Supreme Court's inter-
pretation of California Corporations Code
section 9142 follows existing United States
Supreme Court authority enabling states to
enact statutes governing church property
disputes.
2
¢ There is no conflict among state courts
regarding the constitutionality of section
9142 or any similar state statute. Nor is
there any conflict among state courts as to
whether general church rules should be
considered in the application of neutral
principles of law to a church property
dispute.
¢ No clarification of the Court’s holding in
Jones v. Wolf is required here to address the
question of how to determine whether a
religious denomination is hierarchical or con-
gregational because the California court did
not characterize or analyze the nature of
The Episcopal Church’s governing structure.
Based on St. James’ own written commit-
ments, the court concluded the Parish was
bound by the rules of The Episcopal Church.
In any event, there is no real dispute over
whether The Episcopal Church is _hier-
archical. This has been repeatedly confirmed
in a long, unbroken chain of judicial deci-
sions.
¢ This case provides no occasion to address
the question of whether courts should en-
force denominational trust rules “unilater-
ally create[d]” and imposed by “canon fiat.”
Pet. 10, 20. The Episcopal Church’s General
Convention adopted Canon I.7.4 in 1979 by a
majority vote through a democratic process
involving delegates representing each parish,
including St. James, 25 years before the
dispute arose.
3
¢ Similarly, this case does not raise the
question of whether a hierarchical church
may receive favorable treatment not afforded
secular organizations. The California Su-
preme Court’s decision employed rules that
apply equally to secular voluntary as-
sociations and charitable trusts.
¢ Finally, by upholding The Episcopal
Church’s trust interest, the decision reaches
precisely the same result as the six other
state courts of last resort that addressed this
issue.
JURISDICTION
No jurisdiction exists to review the decision
under 28 U.S.C. §1257(a). No final judgment or
decree has been rendered, and the parties continue to
litigate in the trial court. The fourth exception to the
finality rule described in Cox Broadcasting Corp. does
not apply. See infra Part I.A. Moreover, the decision is
adequately supported by independent state grounds.
See infra Part I1.B.
STATEMENT OF THE CASE
A. Factual Background
1. Structure of the Church.
The Episcopal Church (“Church”) consists of ap-
proximately 7,600 worshipping congregations created
4
to carry out the Church’s mission. New congregations
are usually first formed as “missions.” 1 A.A. 131; 3
A.A. 371; 4 A.A. 705-06.' If a mission meets criteria
specified by its diocese, the diocese may admit it as a
“parish” of the Church. 4 A.A. 709-12. Each parish is
a subordinate part of the Church and the diocese in
which it is located. 3 A.A. 371-72, 415, 427-28, 432,
435; 4 A.A. 701-02, 709-10.
All parishes are subject to the Church’s three-
tiered polity. Parishes are governed by a “vestry,”
consisting of the rector (an ordained Episcopal priest)
and lay persons elected by the parish. 3 A.A. 371.
Each parish is a part of the diocese in which it is
located. Each diocese is governed by an “Annual
Convention” of elected clergy and lay representatives
from each parish. This body adopts and from time to
time amends a diocesan Constitution and Canons,
and elects a “diocesan bishop” who is the ecclesi-
astical authority within that diocese. 3 A.A. 371, 693-
98, 700-01. All dioceses together make up the Church.
The Church is governed by a “General Convention”
composed of most of the Church’s bishops and other
representatives elected by each diocese. The General
Convention has adopted and amends the Church’s
Constitution and Canons. 3 A.A. 371, 415-17, 424-26.
‘ Respondents recognize the Court does not possess the full
appellate record, but have included citations to Appellant’s
Appendix filed by The Episcopal Church in the California Court
of Appeal and California Supreme Court.
5
The national and diocesan Constitutions and
Canons are binding. 3 A.A. 371. Diocesan Constitu-
tions require parishes to accede to the rules of the
Church and dioceses as a condition of their formation.
3 AA. 419; 4 A.A. 701-02. All clergy at ordination
commit in writing to “solemnly engage to conform to
the Doctrine, Discipline, and Worship of the Episcopal
Church.” Vestry members are required by Canon to
“well and faithfully perform the duties of [their] office
in accordance with the Constitution and Canons of
this Church and of the Diocese in which the office is
being exercised.” 3 A.A. 421, 432.
2. Canons governing property.
The Church’s Constitution and Canons govern
both temporal and spiritual matters. Thus, the Can-
ons contain numerous provisions restricting the use
and control of parish property and governance of
parishes to ensure that both the parish and its prop-
erty will be used for their intended purpose—the
Church’s mission.
Aspects of the Church’s policies regarding parish
property are expressed in numerous canons. Canons
II.6.2 and .3, adopted in 1868, prohibit parishes from
“encumberling] or alienatling]” or “otherwise dis-
posling] of” consecrated property without consent of
the diocese. 3 A.A. 375, 435. Canon II.6.1, added in
1871, makes clear that all consecrated property must
be “secured for ownership and use by a Parish,
Mission, Congregation, or Institution affiliated with
6
this Church and subject to its Constitution and Can-
ons.” 3 A.A. 374-75, 435. Canon I[.7.3, adopted in
1940, provides that a parish may not encumber or
alienate real property, consecrated or unconsecrated,
without consent of the diocese. 3 A.A. 375-76, 429.
Further tying parish property to the Church’s
mission, Canon III.9.5(a)(2), adopted in 1904, pro-
vides that “[fJor the purposes of the office [of rector]
and for the full and free discharge of all functions and
duties pertaining thereto, the Rector shall, at all
times, be entitled to the use and control of the Church
and Parish buildings together with the appurte-
nances and furnishings....” 3 A.A. 374. Canon
III.9.5(a)(1) makes clear the rector’s responsibilities
must be carried out subject to “the Book of Common
Prayer, the Constitution and Canons of this Church,
and the pastoral direction of the Bishop.” 3 A.A. 452.
Finally, in 1979, in response to Jones v. Wolf, 443
U.S. 595 (1979), which invited hierarchical churches
to adopt “express trust” provisions in their governing
documents to ensure, in the event of a dispute, that
local church property would remain with the denomi-
nation and its members, the Church adopted Canon
I.7.4. It states, “All real and personal property held
by or for the benefit of any Parish, Mission or
Congregation is held in trust for this Church and the
Diocese thereof in which [it] ... is located.” 3 A.A.
376, 429.
7
3. History of St. James Parish.
St. James was founded as an Episcopal mission
in 1946. 4 A.A. 757-58. In 1947, the mission peti-
tioned the Diocese of Los Angeles (“Diocese”) for
recognition as a parish, promising in writing that it
would:
be forever held under, and conform to and be
bound by, the Ecclesiastical authority of the
Bishop of Los Angeles, ... the Constitution
and Canons of the [Episcopal] Church ... ,
and the Constitution and Canons of the
Diocese of Los Angeles.
The Diocese accepted the petition and established St.
James Parish. 3 A.A. 488.
Consistent with Diocesan requirements, St.
James’ Articles cof Incorporation provided the Parish
would:
form a constituent part of the Diocese of Los
Angeles in ... the ... Episcopal] Church ... ;
and ... that the Constitution and Canons,
Rules, Regulations and Discipline of said
Church ... and the Constitution and Canons
in the Diocese of Los Angeles, for the time
being shall... always form a part of the By-
Laws and Articles of Incorporation ... and
shall prevail against and govern anything
herein contained that may appear repugnant
to such Constitutions, Canons, Rules, Regu-
lations and Discipline.
8
3 A.A. 503-04 (emphases added). In 1991, St. James
amended its Articles, retaining provisions incor-
porating the Constitutions and Canons of the Church
and Diocese. 3 A.A. 489, 511-12. Until the present
dispute arose, St. James operated as a subordinate
part of the Church, in conformity with the Constitu-
tions and Canons. 3 A.A. 489, 517-626.
In August 2004, St. James’ vestry and a majority
of members at a congregational meeting voted to
disaffiliate from the Church. 4 A.A. 760. On August
18, 2004, the Diocesan Bishop prohibited St. James’
clergy from functioning as Episcopal priests, ap-
pointed a Priest-in-Charge, and recognized the
Parish’s remaining Episcopal members as St. James’
continuing congregation. 3 A.A. 633-41, 654. Al-
though they left the Church, the individual peti-
tioners and other disaffiliated members, despite their
earlier promises, sought to retain St. James’ property
for their own use as part of a different denomination.
4 A.A. 761.
B. Proceedings Below
On September 7, 2004, the Diocese and an
individual member of St. James filed suit to recover
the Parish property. The Church was granted leave to
intervene and filed its complaint on October 18, 2004.
On petitioners’ motion, the trial court struck the
Diocese’s complaint under California’s “anti-SLAPP”
9
statute, California Civil Procedure Code section
425.16.° Cal. Civ. Proc. Code § 425.16 (West 2004).
The court also sustained petitioners’ demurrer to the
Church’s amended complaint without leave to amend.
Consolidating the separate appeals initiated by
the Church and Diocese, the Court of Appeal re-
versed. The California Supreme Court affirmed the
Court of Appeal, using a somewhat different analysis.
The California Supreme Court first decided a
preliminary procedural question—whether California
Code of Civil Procedure section 425.16 governed the
action. It concluded petitioners failed to prove the
lawsuit arose from any activity protected by the
statute, and therefore the trial court erred in dis-
missing the Diocese’s complaint. Pet. App. 8a-10a.
The court then addressed the merits of the
church property dispute. It first concluded California
courts should follow the “neutral principles of law”
approach approved by this Court in Jones v. Wolf.
Employing that approach, the court observed that
“St. James Parish agreed from the beginning of its
existence to be part of a greater denominational church
and to be bound by that greater church’s governing
2
SLAPP” stands for “Strategic Lawsuit /.gainst Public
Part’ <ipation.” The anti-SLAPP statute affords a mechanism to
obtzin early dismissal of suits brought to chill protected First
Amendment activity and having no likelihood of success on the
merits.
10
instruments.” Pet. App. 30a. The court noted Canon
1.7.4 expressly states that local church property is
“held in trust” for the Church and the Diocese (Pet.
App. 24a), and further that “earlier-enacted canons
... [also] impose substantial limitations on the local
parish’s use of church property and give the higher
church authorities substantial authority over that
property” (Pet. App. 28a). Taken together, these
“instruments make clear that a local parish owns
local church property in trust for the greater church
and may use that property only so long as the local
church remains part of the greater church.” Pet. App.
30a.
The court held that this conclusion, reached un-
der the neutral principles analysis, also was sup-
ported by California Corporations Code section 9142.
Cal. Corp. Code §9142 (West 2006). “[I]t would
appear that this statute also compels the conclusion
that the general church owns the property now that
defendants have left the general church.” Pet. App.
29a-30a. Finally, the court rejected petitioners’
challenge to the constitutionality of section 9142,
stating that “as applied here, the section is fully
consistent with Jones v. Wolf, supra, 443 U.S. at page
606, and promotes the free exercise rights of persons
to form and join a religious association that is
constructed and governed as they choose.” Pet. App.
35a.
ll
REASONS FOR DENYING THE PETITION
I. NO JURISDICTION EXISTS TO REVIEW
THE DECISION.
A. No Final Judgment or Decree Has Been
Rendered for Purposes of Section
1257(a), and No Recognized Exception
to the Finality Rule Applies.
Petitioners concede the California Supreme
Court’s decision below is not final for purposes of
section 1257({a). They assert, however, this Court has
jurisdiction over one narrow portion of the California
ruling—its interpretation of California Corporations
Code section 9142—under the fourth category of
exceptions to the finality rule set forth in Cox Broad-
casting Corp., 420 U.S. at 482-83. Pet. 3. The
Petition, however, fails to fully describe the fourth
category of exceptions. This Court’s complete descrip-
tion of the proffered exception follows, with the
portion omitted by petitioners in italics.
Lastly, there are those situations where the
federal issue has been finally decided in the
state courts with further proceedings
pending in which the party seeking review
here might prevail on the merits on ron-
federal grounds, thus rendering unnecessary
review of the federal issue by this Court, and
where reversal of the state court on the
federal issue would be preclusive of any
further litigation on the relevant cause of
action rather than merely controlling the
nature and character of, or determining the
admissibility of evidence in, the state
12
proceedings still to come. In these circum-
stances, if a refusal immediately to review the
state court decision might seriously erode
federal policy, the Court has entertained and
decided the federal issue, which itself has
been finally determined by the state courts for
purposes of the state litigation.
Cox Broadcasting Corp., 420 U.S. at 482-83
(emphasis added). Clearly, this exception to the
finality rule does not apply.
At the outset, it is not clear the California
Supreme Court’s interpretation and application of
California Corporations Code section 9142 is “final”
for purposes of section 1257(a). Over respondents’
protests, the parties continue to litigate this matter
in the California Superior Court. On July 10, 2009,
the trial court ruled petitioners are entitled to pursue
their affirmative defenses and a cross-complaint.’
In so doing, the trial court accepted petitioners’
argument the California Supreme Court decided
nothing more than California’s “anti-SLAPP” statute
does not apply. Petitioners contend in the trial court
that section 9142 does not apply at all, and the
Church and Diocese must still prove the Church is a
* The Church and Diocese believe the trial court erred and
they are entitled to judgment in their favor based on the Cali-
fornia Supreme Court’s decision. In response to the trial court’s
decision, they have filed a petition for writ of mandate in the
California Court of Appeal seeking final judgment. The petition
remains pending as of the date this Brief in Opposition was
filed.
13
“superior religious body” for purposes of the statute.
Petitioners’ post-remittitur arguments, and the trial
court’s subsequent ruling, directly contradict peti-
tioners’ finality argument for purposes of jurisdiction
in this Court.
Moreover, petitioners make no attempt to meet
Cox Broadcasting Corp.’s prerequisites that “reversal
of the state court on the federal issue would be pre-
clusive of any further litigation on the relevant cause
of action” and that allowing the decision to stand with-
out immediate review could “seriously erode federal
policy.” Cox Broadcasting Corp., 420 U.S. at 482-83.
First, if the Court were to find section 9142
unconstitutional, this would not preclude further
litigation because the California Supreme Court's
ruling rested on neutral principles wholly apart from
the statute. Pet. App. 27a-28a (“Thus, the high court’s
discussion in Jones v. Wolf ... , together with the
Episcopal Church’s adoption of Canon I.7.4 in
response, strongly supports the conclusion that, once
defendants left the general church, the property
reverted to the general church.”).
Second, denying immediate review of the state
court decision would not “seriously erode federal
policy.” Cox Broadcasting Corp., 420 U.S. at 483. The
federal government has no “policy” concerning the
manner in which religious denominations or their
congregations hold or control property—nor could it.
Furthermore, the result reached below, under both
neutral principles approved by this Court and inde-
pendently under section 9142, is entirely consistent
14
with decisions rendered over the past three decades
by the highest courts in Nevada (1980), New Jersey
(1980), Colorado (1986), Connecticut (1993), Pennsy]l-
vania (2005), and New York (2008), as well as
California. See infra Part III.A. Given the thirty-year
history of uniformity, this Court’s declining imme-
diate review of the decision could hardly erode any
existing “policy.” See, e.g., Flynt v. Ohio, 451 U.S. 619,
622 (1981) (“The resolution of this question can await
final judgment without any adverse effect upon im-
portant federal interests.”); Johnson v. California,
541 U.S. 428, 431 (2004). The Petition does not
suggest otherwise.
Petitioners also ask the Court to “clarify Jones uv.
Wolf and provide the lower courts with further guid-
ance on the significant constitutional questions impli-
cated when the scope and nature of the hierarchy is
itself a disputed question,” and to review Jones’
“inclusion of a denomination’s constitution in the
litany of sources of neutral principles of law ... .” Pet.
25, 34. For purposes of the finality rule, these issues
go well beyond the scope of whether section 9142 is
unconstitutional, and instead relate directly to the
analysis of this matter under “neutral principles of
law”—an analysis which petitioners do not contend
has been finally resolved in the state courts. The Cox
Broadcasting Corp. exception simply does not apply
to these issues.*
‘ In any event, even if the Court were to accept petitioners’
invitation to tinker with the evidentiary framework for church
(Continued on following page)
15
B. The Decision Below Is Adequately
Supported By Independent’ State
Grounds.
As this Court has explained, its “power is to
correct wrong judgments, not to revise opinions. We
are not permitted to render an advisory opinion|[.]”
Herb v. Pitcairn, 324 U.S. 117, 125-26 (1945). Thus, a
petition for certiorari will not be granted if “the same
judgment would be rendered by the state court after
we corrected its views of federal laws.” Jd. In this
case, adequate and independent grounds support the
California Supreme Court’s opinion reversing the
trial court’s dismissal of the Church’s and Diocese’s
complaints.
1. Apart from section 9142, the opin-
ion is independently supported by
the California Supreme Court’s
neutral principles analysis.
As noted above, the California Supreme Court
adopted the neutral principles of law approach
property disputes established in Jones, a reversal of the Cali-
fornia Supreme Court’s decision would not preclude further
litigation. As in Jones, any articulation of a new constitutional
framework would require remand for further proceedings. The
Petition does not suggest otherwise and thus fails to satisfy any
recognized exception to the finality rule. See Nike, Inc. v. Kasky,
539 U.S. 654, 658-59 (2003); Florida v. Thomas, 532 U.S. 774,
780 (2001). In fact, the Petition recognizes a new framework
would require evidentiary questions to be “tested in the crucible
of litigation under .. . state law.” Pet. 34.
16
approved by this Court in Jones v. Wolf as the method
of analysis for resolving church property disputes in
California. Pet. App. 23a-24a. The court examined the
facts of this case under that approach and concluded,
“St. James Parish agreed from the beginning of its
existence to be part of a greater denominational
church and to be bound by that greater church’s
governing instruments.” Pet. App. 30a. The court
noted the Church’s Canon I.7.4 expressly states local
church property is “held in trust” for the Church and
the Diocese, and further that “earlier-enacted canons
[also] impose substantial limitations on the local
parish’s use of church property and give the higher
church authorities substantial authority over that
property.” Pet. App. 28a. Taken together, these “in-
struments make clear that a local parish owns local
church property in trust for the greater church and
may use that property only so long as the local church
remains part of the greater church.” Pet. App. 30a.
The court’s opinion makes clear these facts alone
support its conclusion under the neutral principles
analysis, concluding:
In short, St. James Parish agreed from
the beginning of its existence to be part of a
greater denominational church and to be
bound by that greater church’s governing
instruments. Those instruments make clear
that a local parish owns local church prop-
erty in trust for the greater church and may
use that property only so long as the local
church remains part of the greater church.
Respect for the First Amendment free
17
exercise rights of persons to enter into a
religious association of their choice, as delin-
eated in Jones v. Wolf, supra, 443 U.S. 595
(as well as the provisions of section 9142)
requires civil courts to give effect to the
provisions and agreements of that religious
association.
Pet. App. 30a-31a. “This conclusion,” the court further
explained, “is bolstered by a review of out-of-state
cases that involved similar church property disputes
within the Episcopal Church.” Pet. App. 3la.
Although none of the cited cases involved a state
statute similar to section 9142, they nevertheless,
“with near unanimity, awarded the disputed property
to the general church.” Jd.
To be sure, the court held its conclusion also was
supported by section 9142. Pet. App. 28a. It is beyond
doubt, however, the court would have reached the
same conclusion even in the absence of the statute.
See Pet. App. 30a-31a; see also Pet. App. 147a (“To the
degree that section 9142 alters the common law rule
enunciated by [then-current California Supreme Court
* The one exception the court recognized, Bjorkman ov.
Protestant Episcopal Church, 759 S.W.2d 583 (Ky. 1988), arose
before the Church’s trust canon was adopted, “did not mention
[that Canon], and ... has not been followed by other juris-
dictions.” Pet. App. 32a-33a. Consistent with the California
Supreme Court’s observations, every appellate decision
addressing a dispute within the Church after adoption of Canon
1.7.4 has enforced the Canon in favor of the general church. See
infra Part III.A.
18
precedent], that alteration duplicates the result
required under the common law given the facts of this
case.”) (original emphasis). The court’s determination
is adequately supported on an independent state
ground that petitioners concede is not yet ripe for
review.
2. The judgment is independently
supported by the court’s interpre-
tation of California’s “anti-SLAPP”
statute.
Review by the California Supreme Court oc-
curred within the framework of a state procedural
statute—the “anti-SLAPP” statute, California Civil
Procedure Code section 425.16. Pet. App. 8a. In ruling
on an anti-SLAPP motion under section 425.16, a
California court decides first whether the defendant
has made a threshold showing that the challenged
cause of action is one arising from protected activity.
Equilon Enterprises v. Consumer Cause, Inc., 29
Cal. 4th 53, 67 (2002). “If the court finds such a
showing has been made, it then determines whether
the plaintiff has demonstrated a probability of
prevailing on the claim.” Jd. “Only a cause of action
that satisfies both prongs of the anti-SLAPP
statute—i.e., that arises from protected speech or
petitioning and lacks even minimal merit—is a
SLAPP, subject to being stricken under the statute.”
Navellier v. Sletten, 29 Cal. 4th 82, 89 (2002). The
court must deny an anti-SLAPP motion if it fails on
either prong.
19
Here, the California Supreme Court affirmed the
intermediate appellate court’s conclusion the anti-
SLAPP statute does not apply because petitioners
failed to satisfy the first prong of the statute. Pet.
App. 9a-10a. In other words, petitioners did not prove
the complaint arose from activity protected by section
425.16. Id. The court’s affirmance of the intermediate
appellate court’s reversal of the judgment rests upon
an independent state ground that is adequate to
support its decision. See Herb, 324 U.S. at 125-26.
On remand to the tria! court, petitioners not only
acknowledged their failure to satisfy the first prong of
section 425.16 constituted an independent basis for
the California Supreme Court’s decision, they argued
the court’s decision was based solely on section 425.16
because “this was all [it] could do on appeal from the
grant of a preliminary motion.” In its July 10, 2009
order, the trial court agreed, ruling “(i]t was the anti-
SLAPP motion alone that provided the mechanism by
which the case was appealed.”
The California Supreme Court’s interpretation of
a state procedural statute constitutes an independent
state ground adequate to support its decision, and its
interpretation is not subject to review by this Court.°
* The Church’s complaint-in-intervention was dismissed
after a demurrer was sustained. An appellate ruling reversing
judgment based on a demurrer is not a final ruling for purposes
of section 1257(a). Miss. & Kan. Interurban Ry. Co. v. City of
Olathe, 222 U.S. 185, 186 (1911). Moreover, there is no part of
the California Supreme Court’s epinion that applies solely to the
(Continued on following page)
20
Il. THE CALIFORNIA SUPREME COURT’S
INTERPRETATION OF SECTION 9142
DOES NOT RAISE ANY UNRESOLVED
CONSTITUTIONAL ISSUES.
A. Jones v. Wolf Recognized the En-
forceability of Denominational Trust
Provisions.
In Jones v. Wolf, the Court was called upon to
decide whether Georgia’s specific approach to re-
solving church property disputes, which Georgia
courts called the “neutral principles approach,” was
constitutional. Under that approach, courts looked to
deeds, local church articles and bylaws, the constitu-
tion and rules of the denomination, and relevant state
statutes to determine whether any of those sources
demonstrated the property at issue was held for the
denomination. See Jones, 443 U.S. at 599-601 (de-
scribing Georgia’s approach in detail). If courts found
a provision in any of those sources restricting local
church property for use by a denomination and
conferring a right to the property on the broader
Church and not to the Diocesan plaintiffs as well, and the court’s
decision in the Diocese’s favor alone fully reinstates all of the
substantive claims in the case. The decision permits the Dioce-
san plaintiffs to seek a final judgment from the trial court
concerning the use and control of the disputed property, in-
cluding the same declaration sought by the Church—that the
property held by St. James is held in trust for the Church and
Diocese. The California Supreme Court’s decision is fully and
adequately supported by its interpretation of the anti-SLAPP
statute.
21
church, they enforced it. See, e.g., Carnes v. Smith,
222 S.E.2d 322 (Ga. 1976) (cited and discussed in
Jones, 443 U.S. at 600-01, and enforcing express trust
provision in Methodist Church’s Book of Order).
Where they found no such restriction in any of the
sources identified, as in Jones itself, they ruled in
favor of the local church. Jones, 443 U.S. at 608-09.
This Court in Jones approved that specific method of
analyzing church property disputes.
The Court reaffirmed the First Amendment “re-
quires that civil courts defer to the resolution of
issues of religious doctrine or polity by the highest
court of a hierarchical church organization,” and held
that the “neutral principles” approach under review
was “consistent with the foregoing constitutional
principles.” Jones, 443 U.S. at 602. The neutral prin-
ciples analysis was “flexible enough to accommodate
all forms of religious organization and polity” because
it offered “flexibility in ordering private rights and
obligations to reflect the intentions of the parties.” /d.
at 603. It allowed religious societies to “specify what
is to happen to church property in the event of a
particular contingency, or what religious body will
determine the ownership [of property] in the event of
a schism or doctrinal] controversy” through “rever-
sionary clauses and trust provisions.” Jd.
Jones explained the neutral principles approach
“cannot be said to ‘inhibit’ the free exercise of
religion” because the general church can take steps,
“fajJt any time before the dispute erupts,” to ensure
“*4;at. the faction loyal to the hierarchical church will
22
retain the church property.” Jones, 443 U.S. at 606.
One such step, specifically endorsed in Jones, is that
“the constitution of the general church can be made to
recite an express trust in favor of the denominational
church.” Id. (emphasis added). Jones did not dictate
that any particular method must be used to amend
the general church’s governing documents. As the
California Supreme Court observed, “[rjequiring a
particular method to change a church’s constitution
... would infringe on the free exercise rights of relig-
ious associations to govern themseives as they see
fit.” Pet. 27a (original emphasis).
Jones further clarified that “any rule of majority
representation can always be overcome, under the
neutral principles approach, either by providing, in
the corporate charter or the constitution of the gener-
al church, that the identity of the local church is to be
established in some other way, or by providing that
the church property is held in trust for the general
church and those who remain loyal to it.” Jones, 443
U.S. at 607-08 (emphasis added). “In this manner a
religious organization can ensure that a dispute over
the ownership of church property will be resolved in
accord with the desires of the members.” Jd. at 603-
04.
At the very least, then, this Court made clear
that states may constitutionally recognize and enforce
23
denominational trust provisions, as California has
7
done.
B. The Court Did Not Adopt an Uncon-
stitutional Interpretation of Corpora-
tions Code Section 9142.
California Corporations Code section 9142 is fully
consistent with Jones’ explicit guidance. The statute
provides:
(c) No assets of a religious corporation are
or shall be deemed to be impressed with any
trust, express or implied, statutory or at
" For the past 30 years, religious denominations throughout
the country have relied upon Jones’ pronouncements in this
regard. As petitioners acknowledge, “many mainline Protestant
churches” have since adopted canons to explicitly confirm or
establish the denomination’s trust interest in local church
property. Pet. 19; see, e.g., Cumberland Presbytery v. Branstetter,
824 S.W.2d 417, 422 (Ky. 1992) (“[T]he Cumberland Presbyterian
denomination followed to a T the suggestion of the U.S. Supreme
Court in Wolf as to a method of insuring ‘that the faction loyal to
the hierarchical church will retain the church property.’”);
Korean United Presbyterian Church v. Presbytery of the Pacific,
230 Cal. App. 3d 486, 512 (Ct. App. 1991) (“[T]he United States
Supreme Court in Jones, invited the very type of provision now
found in the Book of Order.”). State courts have applied the
neutral principles test endorsed in Jones and enforced those
provisions. See infra Part III.A. If the Court were to accept
petitioners suggestion to recede from the clear guidance
provided in Jones, chaos would result, not only for The Episcopal
Church, but for numerous religious denominations that have
structured their governing rules in reliance upon Jones over the
past three decades.
24
common law unless one of the following
applies: [(Q]...
(2) Unless, and only to the extent that, the
articles or bylaws of the corporation, or the
governing instruments of a superior religious
body or general church of which the corpora-
tion is a member, so expressly provide. [{]...
(d) Trusts created by paragraph (2) of sub-
division (c) may be amended or dissolved by
amendment from time to time to the articles,
bylaws, or governing instruments creating
the trusts... .
(Emphasis added.)
As the California Supreme Court ruled, section
9142 “appears to be the type of statute the United
States Supreme Court had in mind when it approved
reliance on ‘provisions of state statutory law gov-
erning the holding of property by religious corpora-
tions ....’ (Md. & Va. Churches v. Sharpsburg Ch.,
supra, 396 U.S. at p. 367, fn. omitted.).” Pet. App.
29a. In addition, like Jones, section 9142 by its plain
terms provides that denominational trust provisions
may be enforced. The California Supreme Court held
Canon I.7.4 creates the type of express trust
contemplated by section 9142, and the statute there-
fore “also compels the conclusion that the general
church owns the property now that defendants have
left the general church.” Pet. App. 30a.
Petitioners argue the California Supreme Court
adopted an unconstitutional interpretation of sec-
tion 9142, in two respects. First, they assert the
25
interpretation impermissibly requires courts to
determine, “as a threshold inquiry under Section
9142(c), whether one religious body is ‘superior’ to
another, or whether a church is ‘general’ or not.” Pet.
17. Petitioners state this analysis requires courts to
resolve property disputes based on core religious
doctrine and practice. Pet. 22-23. Second, they allege
the court’s interpretation of section 9142 gives
general church associations the ability to unilaterally
create trusts for themselves, thus favoring certain
kinds of religious organizations over secular associa-
tions and other types of religious organizations. Pet.
12, 14. Neither point has merit.
1. The California Supreme Court did
not decide any questions of relig-
ious doctrine or polity.
The court did not decide any questions about the
structure of the Church or its religious doctrine. It
merely concluded, based on St. James’ own express
written promises confirming the Church’s Constitu-
tions and Canons would “‘forever’” form part of the
Parish’s governing documents, that the Parish is
bound by the Church’s rules. Pet. App. 4a, 30a.
Whether the Church and Diocese are superior to the
Parish from a theological perspective was irrelevant
to the court’s analysis of these documents, and ‘ts
interpretation of written instruments does not raise
constitutional issues.
In any event, the supposed difficulty of character-
izing the governing structure of different religious
26
organizations is purely hypothetical as it pertains
here—The Episcopal Church is undisputedly hierar-
chical, as that term has been defined and applied by
civil courts.* Numerous courts have so held, and there
are no decisions to the contrary. See, e.g., Dixon uv.
Edwards, 172 F. Supp. 2d 702, 715 (D. Md. 2001)
(“Courts have repeatedly and invariably recognized
that the [Episcopal] Church is hierarchical. Indeed,
there appears to be no case to the contrary and
Defendants have noted none.”), aff’d in part and
remanded in part on other grounds, 290 F.3d 699 (4th
Cir. 2002).°
* The term “hierarchical” easily accommodates a range of
church polities, including many that have various democratic or
representational elements or delegate some decision-making
authority to local church bodies. The only real question is
whether the local church is subject to some higher authority
that has taken action on the subject at hand. This is a
determination civil courts are well equipped to make, and
routinely do in the context of secular associations. See, e.g.,
United States v. Int’l Bhd. of Teamsters, 968 F.2d 1506, 1511 (2d
Cir. 1992) (distinguishing between affiliates “whose authority is
derived from their hierarchical association with the inter-
national union” and other locals which are “independent
entities”).
* For a sampling of the numerous decisions uniformly
holding the Church is hierarchical, see, e.g., Petrell v. Shaw, 902
N.E.2d 401, 403 (Mass. 2009); Episcopal Diocese of Rochester v.
Harnish, 899 N.E.2d 920, 921 (N.Y. 2008); New v. Kroeger, 167
Cal. App. 4th 800, 808 (Ct. App. 2008); Episcopal Diocese of
Mass. v. DeVine, 797 N.E.2d 916, 921 (Mass. App. Ct. 2003);
Daniel v. Wray, 580 S.E.2d 711, 714 (N.C. Ct. App. 2003);
Trustees of the Diocese of Albany v. Trinity Episcopal Church,
684 N.Y.S.2d 76, 78 (N.Y. App. Div. 1999); Parish of the Advent v.
(Continued on following page)
27
Given the absolute uniformity of these decisions,
there is no legitimate dispute, and certainly no
conflict among state courts, regarding the hierar-
chical nature of the Church.
2. Section 9142 does not award an
unconstitutional preference to hier-
archical religious organizations.
Petitioners contend the approach adopted by the
California Supreme Court is unconstitutional in that
it grants special benefits to hierarchical churches
that secular associations and other forms of religious
organizations do not enjoy. Pet. 13-14, 17-18. The
premise of this contention is simply incorrect.
Enforcement of the Church’s trust interest is consis-
tent with how California courts treat all similarly
situated associations, both secular and religious, and
application of those rules here comports with the
neutral principles doctrine.
Protestant Episcopal Diocese of Mass., 688 N.E.2d 923, 931
(Mass. 1997); Moses v. Diocese of Colo., 863 P.2d 310, 325 (Colo.
1993); Rector, Wardens & Vestrymen of Trinity-Saint Michael’s
Parish, Inc. v. Episcopal Church in the Diocese of Conn., 620
A.2d 1280, 1285 (Conn. 1993); Bennison v. Sharp, 329 N.W.2d
466, 473 (Mich. App. Ct. 1982); Protestant Episcopal Church in
the Diocese of N.J. v. Graves, 417 A.2d 19, 24 (N.J. 1980); Tea v.
The Protestant Episcopal Church in the Diocese of Nev., 610 P.2d
182, 183 (Nev. 1980).
28
a. Enforcement of Church Canons
under section 9142 is consistent
with how California courts treat
all voluntary associations, secu-
lar and religious.
Under California state law, the constitution and
rules of a private secular voluntary association consti-
tute a contract between the association and its mem-
bers, and the law assumes members have voluntarily
submitted themselves to the terms of that contract.
Cal. Dental Ass’n v. American Dental Ass’n, 23
Cal. 3d 346, 353 (1979) (“‘[T]he rights and duties of
the members as between themselves and in their
relation to [a private voluntary] association, in all
matters affecting its internal government and the
management of its affairs, are measured by the terms
of [its] constitution and by-laws’”). California law
applicable to secular voluntary associations also holds
an organization’s rules are binding on all members
regardless of when they were enacted. See, e.g., Gear
v. Webster, 258 Cal. App. 2d 57, 61-62 (Ct. App. 1968)
(““This relation [between a voluntary association and
its members] is to be determined, however, by a consi-
deration of the entire body of the rules governing the
association, and is not limited to those existing at the
time the individual became a member. Unless the
rules at that time placed a limitation upon the nvower
of the association to make any change or amendment
therein, any amendment or change adopted in accor-
dance with the mode provided by the association
therefor is binding upon each of the members.’”).
29
Accordingly, California courts have enforced a
superior organization’s dictates regarding property
held by subordinate chapters or members under cir-
cumstances similar to this case.
When a schism has occurred in a ... bene-
volent association, which has united with
and assented to the control and supervision
of a general organization, and acquired prop-
erty since its union and assent to the
government of the general organization, ...
the title to the property remains in the name
of the association, and that faction which has
remained loyal and adhered to the laws,
usages, and customs of the general orgeniza-
tion constitutes the true association, and is
alone entitled to the use and enjoyment of
the association’s property. This rule applies
whether the subordinate association be a
corporation or simply a voluntary associa-
tion, and regardless of whether the majority
or minority of the entire membership consti-
tute the faction adhering to and observing
the laws, usages, and customs of the general
organization ....
Most Worshipful Sons of Light Grand Lodge v. Sons of
Light Lodge No. 9, 118 Cal. App. 2d 78, 85 (Ct. App.
1953); see also Thatcher v. City Terrace Cultural Ctr.,
181 Cal. App. 2d 433, 453 (Ct. App. 1960) (“‘Local
lodges come into being, not as independent organiza-
tions existing solely for the benefit of their members,
but as constituents of the larger organization, the
grand lodge, organized for specific purposes, most of
which can be accomplished only through subordinate
30
bodies, the local lodges. .. . The property so acquired
by the local lodge becomes impressed with the group
purpose of a fraternal benefit society.’”).
Nor does the court’s interpretation of section
9142 prefer hierarchical over congregational
churches—it affords equal treatment to each form of
church organization by respecting the governing
structure adopted by its members, and by giving due
consideration to the governing rules adopted by the
appropriate authority within that structure.
Enforcing a general church’s trust provision
against that church’s members and constituent enti-
ties under section 9142 is consistent with long-
standing California law applicable to all private
voluntary associations, secular or religious.
b. Enforcement of Church Canons
under section 9142 is consistent
with generally applicable Cali-
fornia state law concerning
charitable trusts.
Petitioners assert the California Supreme Court’s
interpretation of section 9142 is unconstitutional be-
cause it exempts hierarchical denominations from
general principles of state trust law. Pet. 26-27. The
statute, however, is consistent with California state
law governing charitable trusts.
“|Alssets of charitable corporations are deemed to
be impressed with a charitable trust by virtue of the
31
declaration of corporate purposes,” and may not be
diverted to other uses, charitable or otherwise. Am.
Ctr. for Ed., Inc. v. Cavnar, 80 Cal. App. 3d 476, 486
(Ct. App. 1978); see also Brown v. Mem. Nat’l Home
Found., 162 Cal. App. 2d 513, 521 (Ct. App. 1958)
(“[A]ll the assets of a corporation organized solely for
charitable purposes must be deemed to be impressed
with a charitable trust by virtue of the express
declaration of the corporation’s purposes... . In other
words, the acceptance of such assets under these
circumstances establishes a charitable trust for the
declared corporate purposes as effectively as though
the assets had been accepted from a donor who had
expressly provided in the instrument evidencing the
gift that it was to be held in trust solely for such
charitable purposes”) (quoting Pac. Home v. County of
Los Angeles, 41 Cal. 2d 844, 852 (1953)). It is not nec-
essary that the charitable organization agree in
writing to hold its assets in trust—accepting the
donated property establishes this duty as a matter of
law. Id.; see also Cal. Bus. & Prof. Code § 17510.8
(West 2008).
St. James’ Articles of Incorporation state the Par-
ish was formed for the explicit purpose, “To establish
and maintain a Parish which shall form a constituent
part of the Diocese of Los Angeles in the branch of the
Holy Catholic Church now known as the Protestant
Episcopal Church in the United States of America,”
forever held under the “Ecclesiastical authority of the
32
Bishop of Los Angeles” in conformity with the Consti-
tutions and Canons of the Episcopal Church.
Generations of faithful Episcopalians donated money
to St. James based on this expressed purpose—that of
being an Episcopal parish. California law on chari-
table trusts provides that St. James’ property cannot
be diverted from this declared purpose.” Again,
section 9142 is consistent with California trust law
applicable to similarly situated charitable trusts.
lil. THERE IS NO CONFLICT AMONG STATE
COURTS THAT SUPPORTS REVIEW IN
THIS CASE.
Petitioners contend the Court must clarify its
holding in Jones because state courts have not ap-
plied that decision consistently. Again, this argument
does not support review in this case. There is no
conflict among state courts of last resort concerning
the constitutionality of California Corporations Code
section 9142 or any similar state statute, and
* Some amici posit that church members mean for their
donations to support only the local church, not the larger denom-
ination. As the California Supreme Court observed in response
to the same argument,
[t]he only intent a secular court can effectively discern
is that expressed in legally cognizable documents. In
this case, those documents show that the local church
agreed and intended to be part of a larger entity and
to be bound by the rules and governing documents of
that greater entity.
Pet. App. 37a.
33
petitioners point to none. As this is the only allegedly
“final” portion of the opinion supporting jurisdiction
in this Court, there is no need for review. Nor, as
shown below, is there any conflict among state courts
that would theoretically support review of any other
issue addressed in the California court’s opinion.
A. There Is No Split Among State Courts
Regarding Enforcement of the Epis-
copal Church’s Trust Interest in Parish
Property.
Every state court of last resort addressing the
issue has enforced the Church’s express trust interest
in parish property in accordance with the constitu-
tional framework established in Jones. See Episcopal
Diocese of Rochester, 899 N.E.2d 920; In re Church of
St. James the Less, 888 A.2d 795 (Pa. 2V05); Rector,
Wardens & Vestrymen of Trinity-Saint Michael’s
Parish, Inc., 620 A.2d 1280; Bishop & Diocese of Colo.
v. Mote, 716 P.2d 85 (Colo. 1986); Protestant Episcopal
Church in Diocese of N.eJ., 417 A.2d 19; Tea, 610 P.2d
182."
11
In addition, every intermediate state appellate court to
consider the Church’s express trust Canon has similarly en-
forced the Canon, and the Church’s trust interest in parish prop-
erty, in accordance with the guidelines established in Jones. See,
e.g., Episcopal Diocese of Mass., 797 N.E.2d 916; Daniel, 580
S.E.2d 711; Bennison, 329 N.W.2d 466.
34
This unbroken line of cases enforcing the
Church’s trust interest in parish property, spread
over the last three decades, negatcs any notion there
is a division among state courts that merits review or
that any additiona! guidance from this Court is
required on these facts.”
B. State Courts Agree the Neutral Princi-
ples Approach Approved in Jones uv.
Wolf Is a Permissible Method of Analy-
sis, and General Church Rules Should
Be Considered Under That Analysis.
1. There is no dispute that “neutral
principles” are constitutionally per-
missible.
In Jones, this Court held that, subject to certain
First Amendment limitations, states may utilize dif-
ferent methods for analyzing and resolving church
property disputes. “(T]he First Amendment does not
dictate that a State must follow a particular method
of resolving church property disputes.” Jones, 443
“ Petitioners cite Bjorkman, 759 S.W.2d 583, where the
court declined to find a trust interest in favor of the
denomination when the disaffiliation occurred prior to the
denomination’s adoption of an express trust provision. As the
Kentucky Supreme Court explained in a subsequent decision,
‘In Bjorkman we had no _ general church constitutional
pronouncement adopted before the dispute erupted, mandating
expressly that all property was to be held in favor of the
denominational church.” Cumberland Presbytery, 824 S.W.2d at
422.
35
U.S. at 602. As noted above, this Court then held the
particular neutral principles analysis developed in
Georgia, and now adopted by the California Supreme
Court, was constitutional. Although petitioners assert
there is a dispute among state courts concerning
whether the Watson v. Jones “deference” approach is
constitutionally compelled, this Court should not
grant certiorari simply to restate the precise point
already made in Jones v. Wolf. Nor would the exis-
tence of such a dispute warrant review of the decision
here, where the court plainly understood and cor-
rectly held the neutral principles analysis was a
constitutionally acceptable option. In any event, there
is no dispute among state courts.”
‘ Petitioners erroneously assert West Virginia and New
Jersey hold a hierarchical deference approach is “constitu-
tionally compelled.” Pet. 30 (citing Church of God of Madison v.
Noel, 318 S.E.2d 920, 923 (W. Va. 1984) and Protestant Episcopal
Church in Diocese of N.J., 417 A.2d at 24). In fact, the West
Virginia Supreme Court made clear its understanding that
“another form of judicial review which meets constitutional
considerations is the more scrutinizing ‘neutral principles of law’
test approved by the United States Supreme Court for property
disputes.” Original Glorious Church of God in Christ, Inc. v.
Myers, 367 S.E.2d 30, 34 (W. Va. 1988). Similarly, the New
Jersey Supreme Court explicitly recognized the neutral
principles of law approach is “another acceptable method of
resolving church property disputes.” Protestant Episcopal
Church in Diocese of N.J., 417 A.2d at 23.
36
2. There is no dispute general church
rules should be considered under
“neutral principles.”
In another attempt to create the appearance of
conflict, petitioners allege the New Hampshire
Supreme Court adopted an approach which does not
permit any consideration of church constitutions or
canons. Pet. 35. But, again, petitioners are incorrect.
There are no cases holding, as petitioners would have
this Court decide, that a denomination’s governing
documents should not be reviewed or enforced in a
property dispute like the one at bar.
In Berthiaume v. McCormack, 891 A.2d 539 (N.H.
2006), the court considered a case brought by a few
individual members of the Roman Catholic Church,
who sought to reverse their bishop’s decision to con-
solidate three existing parishes and sell the parish
church in which the plaintiffs had previously wor-
shipped. /d. at 541-43. The property at issue was
titled in the name of the Catholic diocese. Jd. at 548.
Plaintiffs argued the bishop had a duty rooted in the
Canons to preserve the parish church building for
them. /d. The bishop, on the other hand, argued that
to consolidate the three parishes and sell off the
excess property was within his canonical and
ecclesiastical authority. Jd. at 543-44.
The New Hampshire Supreme Court affirmed the
lower court’s decision in favor of the bishop, ex-
plaining the deed vesting title in “Dennis M. Bradley,
Bishop of Manchester” in combination with a New
37
Hampshire statute specifying that deeds to “Dennis
M. Bradley, Bishop of Manchester” were to be
interpreted as vesting property in “the Roman
Catholic Bishop of Manchester,” conclusively resolved
the dispute before it. Berthiaume, 891 A.2d at 548,
550-51. There was no need to review or seek to define
the extent of the bishop’s canonical authority in the
absence of any clearly worded canon specifically ad-
dressing that situation, and the court declined to do
so. Id. Nor did the court address the issue of whether
clearly expressed denominational rules restricting the
use and control of local church property could or
should be ignored.
C. The Alleged Conflict Between the
Appellate Courts of California and
Arkansas Is Easily Reconciled.
Petitioners further suggest there is a split of
authority between this case and a recent Arkansas
case. Pet. 25-26. Petitioners overlook the reality that
the neutral principles analysis by its nature is a fact-
specific inquiry. For that reason, it is hardly sur-
prising that courts applying the analysis to different
records involving different denominations might
reach different conclusions as to which side should
prevail in any given case.
Indeed, the Arkansas and California cases are
easily reconciled. The Arkansas Supreme Court expli-
citly stated it did not consider the denomination’s
post-Jones adoption of an express trust provision
38
because counsel for the denomination had failed to
raise the argument in the lower courts. Ark. Annual
Conference of AME Church, Inc. v. New Direction
Praise & Worship Ctr, Inc., 375 Ark. 428, 436 n.1
(2009), petition for cert. filed, 77 U.S.L.W. 3634 (Apr.
30, 2009) (No. 08-1352) (“At oral argument, counsel
for AME stated ... the Book of Discipline was later
amended to include [an express trust] provision. ..
[Clounsel conceded that AME did not make this
argument before the circuit court.”). In addition, the
court emphasized that “[n]o testimony or documents
were introduced by any party regarding the formation
of [the local church] or its initial connection with the
[denomination],” and the evidence showed the local
church “did not associate exclusively or even
primarily with other [denominational] churches.” /d.
at 432.
In contrast, the California Supreme Court’s deci-
sion rested upon the following facts, absent in the
Arkansas case—‘St. James Parish agreed from the
beginning of its existence to be part of a greater
denominational church and to be bound by that
greater church’s governing instruments.” P<*. App. 30a.
Nor is there a conflict among state courts on
which version of a general church’s rules should be
considered in the application of neutral principles—
those in force when the local church was formed, or
those in effect at the time of the dispute. See Pet. 27.
The answer may vary depending upon the facts of
each case and evidence in the record, and likely
cannot be uniformly resolved by this Court as a
39
matter of federal or constitutional law. As noted
above, it appears the parties in the Arkansas case
presented only an older version of that denomina-
tion’s rules, and the denomination failed to argue to
the trial court that it should prevail based upon the
rules in effect at the time of the conflict. Ark. Annual
Conference, 375 Ark. at 436 n.1.
In any event, this case does not present an
appropriate vehicle for addressing or resolving this
timing issue. Every appellate decision has held that
Canon 1.7.4 did not create a new rule regarding
property ownership, but merely restated and con-
firmed the Church’s pre-existing policy. See, e.g., In re
Church of St. James the Less, 888 A.2d at 810; Rector,
Wardens & Vestrymen of Trinity-Saint Michael’s
Parish, Inc., 620 A.2d at 1292; Bishop & Diocese of
Colo., 716 P.2d at 105 n.15; Protestant Episcopal
Church tn Diocese of N.J., 417 A.2d at 24; Trustees of
the Diocese of Albany, 684 N.Y.S.2d at 81; see also Pet.
App. 28a, 32a (noting that a strong argument exists
that Canon I.7.4 restated existing policy and citing
numerous cases so holding).
Thus, whether this Court were to consider Canon
1.7.4 or those Canons predating the acquisition of the
local church property at issue here, the result would
be the same. In addition, the California Supreme
Court noted St. James had amended its Articles in
1991, well after enactment of Canon I.7.4, incor-
porating all the Canons of the Church. Pet. App. 5a.
In California, members of voluntary associations are
generally bound by organizational rules as they are
40
amended over time. See supra Part II.B.2(a). This,
too, would justify application of Canon I.7.4 to
St. James, even if the Canon were deemed a “new
rule” adopted in 1979.
CONCLUSION
The Petition should be denied.
Respectfully submitted,
JOHN R. SHINER DAVID BOOTH BEERS
Counsel of Record HEATHER H. ANDERSON
BRENT E. RYCHENER JEFFREY D. SKINNER
HOLME ROBERTS & OWEN, LLP GOODWIN PROCTER LLP
800 West Olympic Blvd., 901 New York Ave., N.W.
4th Floor Washington, D.C.
Los Angeles, California 20001-4432
90015-1367 (202) 346-4000
(219) 972-4900 Counsel for Respondent
FREDERIC D. COHEN The Episcopal Church
JEREMY B. ROSEN
Horvitz & LEvy, LLP
15760 Ventura Blvd.,
18th Floor
Encino, California 91436-3000
(818) 995-0800
Counsel for Respondents
The Protestant Episcopal
Church in the Diocese of
Los Angeles, et al,
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.