In the Supreme Court of Georgia - Clover...

No. S10C1909

In the Supreme Court of Georgia

The Rector, Wardens and Vestrymen of Christ Church in Savannah, et al.,

Defendants-Petitioners

v.

Bishop of the Episcopal Diocese of Georgia, Inc.,

The Episcopal Church, Christ Church Episcopal, and

The Rector, Wardens and Vestry of Christ Church Episcopal,

Plaintiffs-Respondents

On Petition for a Writ of Certiorari to

the Court of Appeals of Georgia, Case No. A10A1375

BRIEF AMICUS CURIAE FOR

THE AMERICAN ANGLICAN COUNCIL

IN SUPPORT OF PETITION FOR CERTIORARI

SCOTT J. WARD

(Virginia Bar No. 37758)

TIMOTHY R. OBITTS


Gammon & Grange, P.C.

8280 Greensboro Drive, 7th Floor

McLean, VA 22102-3807

(703) 761-5000

HUGH B. McNATT

(Georgia Bar No. 498300)

McNatt Greene & Peterson

602 Church Street

P. O. Drawer 1168

Vidalia, GA 30475

(912) 537-9434

Counsel for Amicus Curiae American Anglican Council

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TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................ i

TABLE OF AUTHORITIES .................................................................................... ii

INTRODUCTION AND STATEMENT OF INTEREST ......................................... 1

STATEMENT OF THE CASE .................................................................................. 3

STATEMENT OF THE FACTS ............................................................................... 3

ARGUMENT ............................................................................................................. 3

I. THIS COURT SHOULD GRANT REVIEW TO CORRECT THE LOWER

COURT‘S UNWARRANTED EXPANSION OF O.C.G.A. § 14-5-46 INTO A

MECHANISM TO SUBJECT ALL CONGREGATIONAL PROPERTY TO

DENOMINATIONAL DISCIPLINE, RATHER THAN A MECHANISM TO

SECURE PROPERTY FOR UNINCORPORATED ASSOCIATIONS AND TO

PROVIDE FOR SUCCESSOR TRUSTEES. ............................................................... 5

II. THIS COURT SHOULD GRANT REVIEW BECAUSE EVEN IF O.C.G.A.

§ 14-5-46 MADE RESPONDENTS‘ DENOMINATIONAL DISCIPLINE

OTHERWISE APPLICABLE, THAT DISCIPLINE WOULD BE INSUFFICIENT

TO CREATE A LEGALLY COGNIZABLE TRUST INTEREST UNDER

GEORGIA LAW. ............................................................................................... 15

A. The Court of Appeals Erred in Finding a Legally Cognizable

Express Trust Under Georgia Law. .....................................................16

B. The Court of Appeals Erred in Finding a Legally Cognizable

Implied Trust Under Georgia Law. .....................................................21

III. THIS COURT SHOULD GRANT REVIEW BECAUSE THE DECISION BELOW

RAISES SERIOUS ESTABLISHMENT CLAUSE CONCERNS. ................................. 24

CONCLUSION ........................................................................................................ 27

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TABLE OF AUTHORITIES

Cases

All Saints Parish Waccamaw v. Protestant Episcopal Church, 685 S.E.2d

163 (S.C. 2009) ..............................................................................................16

Central of Georgia Ry. Co. v. State, 31 S.E. 531 (Ga. 1898) ..................................12

Crumbley v. Solomon, 243 Ga. 343 (1979) ..............................................................23

Davis v. United States, 495 U.S. 472 (U.S. 1990) ...................................................11

Jones v. Wolf, 443 U.S. 595 (1979) .................................................................. 15, 21

Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982) .......................................... 24, 26

Presbyterian Church v. Eastern Heights Church, 225 Ga. 259, 167 S.E.2d

658 (1969) ............................................................................................... 21, 22

Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 726-27 (1976)

(Rehnquist, J., dissenting) ..............................................................................26

Statutes

O.C.G.A. § 14-5-46 .......................................................................................... passim

O.C.G.A. § 53-12-130 ....................................................................................... 21, 22

O.C.G.A. § 53-12-131 ..............................................................................................22

O.C.G.A. § 53-12-132 ....................................................................................... 21, 22

O.C.G.A. § 53-12-20 ................................................................................................16

O.C.G.A. § 53-12-22 ................................................................................................16

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Other Authorities

1 G. BOGERT, TRUSTS AND TRUSTEES § 2 (1935) ....................................................11

1 GA. JUR. PROPERTY § 3:11 (2008) ........................................................................... 9

3 GA. REAL ESTATE LAW & PROC. § 26-66 (6th ed. 2009) ......................................10

C. ZOLLMANN, AMERICAN CIVIL CHURCH LAW (1917) .........................................8, 9

C. ZOLLMANN, AMERICAN LAW OF CHARITIES (1924) ............................................... 8

Joel A. Nichols, Religious Liberty In The Thirteenth Colony: Church-State

Relations In Colonial and Early National Georgia, 80 N.Y.U.L. REV.

1693, 1734-51 (Dec. 2005) ............................................................................10

Paul G. Kauper & Stephen C. Ellis, Religious Corporations and the Law, 71

MICH. L. REV. 1500, 1505 (1972-73) .............................................................. 9

POWELL ON REAL PROPERTY § 7.01[2] (Supp. 2010) ..............................................10

RESTATEMENT (THIRD) OF TRUSTS § 2 (2003) ................................................ 15, 16

Thomas E. Buckley, After Disestablishment: Thomas Jefferson's Wall of

Separation in Antebellum Virginia, 61 J. SO. HIST. 445 (Aug. 1995) ............. 8

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INTRODUCTION AND STATEMENT OF INTEREST

Pursuant to Rule 23 of the Rules of the Supreme Court of Georgia, Amicus

American Anglican Council submits this brief as Amicus Curiae in support of the

Petition for Certiorari filed with this Court by Petitioner Christ Church Savannah

(―CCS‖).

Amicus respectfully requests that the Court grant the Petition and reverse the

decision of the Court of Appeals. That decision has implications for every church

in Georgia—including every Anglican church—that is affiliated with a religious

denomination. If not reversed, the decision threatens to upset Georgia church

property law, and to create an untenable situation in which internal church rules are

a one-way ratchet giving denominations unchecked power over property titled in

member congregations‘ names. Indeed, it is not an exaggeration to say that the

decision permits denominations to change their rules regarding property ownership

without regard to the principles upon which the denomination was founded or even

whether member congregations had an opportunity to participate in the creation of

the rule at issue. That decision is inconsistent with Georgia ―neutral principles‖

doctrine, and cannot stand.

The American Anglican Council, a nonprofit religious corporation founded

in 1996, is uniquely suited to provide the Court with an additional perspective on

the issues presented in the Petition. The Council is a network of individuals (lay

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and clergy), parishes, dioceses, and ministries who affirm biblical authority and

Christian orthodoxy within the Anglican Communion. Through advocacy and

counsel, leadership development, and equipping the local church, the Council

seeks to build up and defend ―Great Commission‖ Anglican churches in North

America and worldwide. The Council regularly assists Anglican churches in

distress who are the subject of litigation by The Episcopal Church and its dioceses.

The Council also monitors such litigation and reports on it to the broader Anglican

Communion. The Council seeks to represent the important perspective of local

Anglican and other congregations in church property litigation where incorrect

interpretations of the law could have a significant adverse impact upon

congregational property rights.

Consistent with its mission, the Council has a strong interest in seeing that

Georgia courts remain free to apply the State‘s neutral rules of trust and property

law to resolve church property disputes, rather than being required to apply the

Court of Appeals‘ erroneous expansion of O.C.G.A. § 14-5-46 into a broad

mechanism for permitting denominational discipline, however enacted, to create

enforceable trust interests in congregational property. The Council is particularly

concerned that the Court of Appeals‘ decision will have a significant chilling effect

upon the ability of individual congregations–not only within the Anglican tradition

but across a broad range of denominations–to acquire, maintain, and develop

3

property, to use that property to carry out their important religious and charitable

missions within the State of Georgia, and to affiliate with denominational entities

on clear and unshifting terms and conditions.

STATEMENT OF THE CASE

The Amicus adopts and incorporates by reference the Statement of the Case

set forth in the Briefs of the Petitioner.

STATEMENT OF THE FACTS

The Amicus adopts and incorporates by reference the Statement of the Facts

set forth in the Briefs of the Petitioner.

ARGUMENT

The decision below, if left untouched, would work a broad change in the law

of this State regarding the ownership of congregational property and would thereby

alter longstanding relationships between congregations and denominational entities

regarding ownership of congregational property. Most significantly, the decision

below would allow any religious denomination to claim congregational property

simply by the unilateral actions of denominational authorities. And this would be

possible even if such actions were contrary to the conditions under which the

congregations that comprise the denomination (or pre-existed the denomination, as

CCS did here) joined it. This drastic restructuring of Georgia statutory, trust, and

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property law—which could have severe effects for congregations in Georgia—

should be reviewed by this Court.

The Council submits this brief to emphasize three separate aspects of the

ruling below that have widespread implications for all Georgia congregations, and

that therefore support review.

First, the Court of Appeals erroneously interpreted and applied O.C.G.A.

§ 14-5-46. That statute was designed not to subject all congregational property to

denominational discipline, but rather to secure property for an unincorporated

religious congregation and to provide for the appointment of successor trustees to

hold such property in trust for the congregation. This purpose is plainly evident

from the statute‘s text, the circumstances in which it was enacted, and its

application prior to the decisions below.

Second, the Court of Appeals erred in determining that under ―neutral

principles‖ of Georgia trust and real property law, ECUSA‘s denominational

discipline is sufficient to create express and implied trusts in CCS‘s congregational

property.

Third, the decision below runs afoul of the Establishment Clause of the First

Amendment to the United States Constitution, by delegating to purportedly

hierarchical religious denominations the power to unilaterally declare trusts in their

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own favor—a grant of power that no other voluntary organization in Georgia,

religious or secular, enjoys over its members.

Each of these reasons is a sufficient basis for this Court to grant the petition

and review the decision below.

I. THIS COURT SHOULD GRANT REVIEW TO CORRECT THE LOWER COURT’S

UNWARRANTED EXPANSION OF O.C.G.A. § 14-5-46 INTO A MECHANISM

TO SUBJECT ALL CONGREGATIONAL PROPERTY TO DENOMINATIONAL

DISCIPLINE, RATHER THAN A MECHANISM TO SECURE PROPERTY FOR

UNINCORPORATED ASSOCIATIONS AND TO PROVIDE FOR SUCCESSOR

TRUSTEES.

Amicus agrees with petitioner CCS‘s arguments regarding the correct

interpretation of the text of O.C.G.A. § 14-5-46. But even more fundamentally,

Amicus submits that the Court of Appeals‘ erroneous interpretation of O.C.G.A.

§ 14-5-46 expands the statute far beyond the intent of the General Assembly. That

statute was carefully crafted by the General Assembly with a narrow focus – to

ensure that gifts of property made to an unincorporated association would not fail

for the lack of a legally cognizable donee, by empowering such unincorporated

associations to appoint trustees and successor trustees.

This design and purpose of the statute are clear from its text and its historical

context. And for the first 175 or so years following its enactment, O.C.G.A. § 14-

5-46 and its predecessors were never used in the manner advocated by the Court of

Appeals. But the Court of Appeals‘ reading, if consistently applied, would

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substantially expand the statute to allow denominational discipline, however

enacted, to create an enforceable trust interest in congregational property, contrary

to the deeds and title records for such property. This judicial transformation of

O.C.G.A. § 14-5-46 has serious, unintended, and unforeseen consequences for all

religious denominations and associated congregations. Such a significant change

requires review by this Court.

O.C.G.A. § 14-5-46 was initially adopted in 1805, and now reads as follows:

All deeds of conveyance executed before April 1, 1969, or thereafter

for any lots of land within this state to any person or persons, to any

church or religious society, or to trustees for the use of any church

or religious society for the purpose of erecting churches or meeting

houses shall be deemed to be valid and available in law for the intents,

uses, and purposes contained in the deeds of conveyance. All lots of

land so conveyed shall be fully and absolutely vested in such church

or religious society or in their respective trustees for the uses and

purposes expressed in the deed to be held by them or their trustees for

their use by succession, according to the mode of church government

or rules of discipline exercised by such churches or religious societies.

Id. (Emphasis added). By its terms, therefore, the statute is expressly limited in

application only to ―lots of land‖ transferred ―for the purpose of erecting churches

or meeting houses‖ by ―deeds of conveyance.‖ Yet the decision below

significantly expanded O.C.G.A. § 14-5-46 in multiple ways, including (but not

limited to) the following.

First, the Court of Appeals interpreted O.C.G.A. § 14-5-46 as applying to all

church property – all real and even personal property – rather than being specific to

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―lots of land . . . for the purpose of erecting churches or meeting houses.‖ Second,

the Court of Appeals ignored the established meaning of ―deeds of conveyance‖

and interpreted the statute as applying to property transferred by any means – not

only by any type of ―deed‖ but even by legislative land grant. Third, rather than

applying the denominational ―discipline‖ language simply to the appointment of

successor trustees, as the grammar of the passage indicates, the Court of Appeals

interpreted the phrase as applying to all aspects of holding or using such property.

The implications of this expansion for congregations throughout Georgia are

substantial and severe, and thus warrant this Court‘s review on certiorari.

The plain logic of the statutory text is strongly reinforced by much more

than Justice Holmes‘ proverbial ―ounce of history.‖ All of the available historical

evidence regarding the historical context, purposes, and uses of the statute – none

of which is addressed in the decision below – contradicts the Court of Appeals‘

interpretation of the statute.

Although there is no direct legislative history regarding the enactment of the

predecessor of O.C.G.A. § 14-5-46, the historical context for the statute is quite

clear. The Georgia General Assembly in 1805 was not addressing a unique issue,

but rather one that most states in the young republic faced during this period

following independence. Because there were no general state incorporation

statutes (or state corporation commissions), incorporation required a specific

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legislative act. Consequently, most congregations, in Georgia and in other states,

were established as unincorporated voluntary associations; only a few were

incorporated. Under the common law, unincorporated voluntary associations had

no cognizable legal existence. They therefore were seen by the law as ―indefinite

beneficiaries‖ and were unable to receive and hold title to any form of property.1

This meant that unincorporated congregations and religious societies to whom real

property had been directly conveyed would be unable to hold title to such property.

See C. ZOLLMANN, AMERICAN CIVIL CHURCH LAW (1917), at 142-144; C.

ZOLLMANN, AMERICAN LAW OF CHARITIES (1924), at 246-247.

Most states attempted to solve this problem in two ways. First, state

legislatures would grant legislative charters to specific congregations (and other

voluntary associations), incorporating the congregation and/or the congregation‘s

trustees as a corporate entity and fixing title to property in the incorporated church

or trustee corporation. This was the approach that had been employed with regard

to state-established churches in the colonies outside New England prior to

independence and disestablishment. See Paul G. Kauper & Stephen C. Ellis,

1 In Virginia, for example, a constitutional provision prohibiting incorporation of

churches, coupled with the absence of any statutory provision for appointment of

trustees, meant that specific legislative acts were required for each conveyance of

any church property. See Thomas E. Buckley, After Disestablishment: Thomas

Jefferson's Wall of Separation in Antebellum Virginia, 61 J. SO. HIST. 445, 451-54

(Aug. 1995).

9

Religious Corporations and the Law, 71 MICH. L. REV. 1500, 1505 (1972-73).

Second, many states implemented systems, initially through decisions by courts of

equity but ultimately by enactment of legislation, providing for the appointment of

trustees to receive such conveyances and to hold title to such property on behalf of

and in trust for an unincorporated church or other voluntary association. See C.

ZOLLMANN, AMERICAN CIVIL CHURCH LAW, at 142-144.

Accordingly, in Georgia prior to 1805, a church that had been incorporated

by legislative charter would have been able to receive and hold title to real

property under its charter.2 But a transfer of property to an unincorporated church

(rather than to trustees, if the church had any) would fail for lack of a proper

donee, absent a specific act of the General Assembly empowering the

unincorporated congregation to receive each conveyance of property. See, e.g., 3

2 See 1 GA. JUR. PROPERTY § 3:11 (2008) (―Incorporated religious societies

generally have capacity to acquire and hold property.‖). This is the method by

which CCS held title to property, beginning in pre-revolutionary times and

continuing to the present. But Petitioner CCS also introduced below several

historical examples of legislative acts to incorporate churches and authorize them

to directly hold title to land, such as the 1801 act of the General Assembly

incorporating a Baptist church at Powell‘s Creek and vesting its trustees with ―all

manner of property both real and personal‖ that they may acquire ―by gift, grant,

purchase, or otherwise.‖ (This legislative act was attached as Exhibit 46 in

Defendants’ Appendix of Evidence, which was filed in the Superior Court on

July 2, 2009, as part of CCS‘s Memorandum in Support of Defendants’ Cross-

Motion for Summary Judgment and Opposition to Plaintiffs’ Motion for Summary

Judgment. This filing is included in the trial court record beginning at R-1311.

Because Amicus does not currently have access to the trial court record, Amicus is

unable to provide more specific citations to that record, but will refer to this filing

hereinafter as ―Defs. App.‖.)

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GA. REAL ESTATE LAW & PROC. § 26-66 (6th ed. 2009) (―In the absence of statute,

unincorporated churches or societies are incapable of taking title to realty, and a

deed to such society would pass no legal title‖); POWELL ON REAL PROPERTY

§ 7.01[2] (Supp. 2010). The obvious inequities in such an arrangement would only

have been magnified by the substantial growth in the number of ―dissenting‖

churches and adherents in the second half of the eighteenth century and the

increasing influence of dissenters in the state‘s political system. See, e.g., Joel A.

Nichols, Religious Liberty In The Thirteenth Colony: Church-State Relations In

Colonial and Early National Georgia, 80 N.Y.U.L. REV. 1693, 1734-51 (Dec.

2005). Most small dissenting churches, of course, would not have been

incorporated, so the burden of an inability to hold property would have fallen

disproportionately on such churches.

Georgia‘s solution to this widespread problem was the adoption of the

predecessor to O.C.G.A. § 14-5-46. The statute addressed two fact patterns, i.e., a

deed of conveyance: (i) ―to any church or religious society‖ or (ii) ―to trustees for

the use of any church or religious society.‖ The statute provided that such deeds

would be valid and available in law for the intents, uses, and purposes ―contained‖

in the deeds. It provided that title in such cases would be ―fully and absolutely

vested in ―such church‖ in the case of a deed ―to any church‖ or in ―their

respective trustees‖ in the case of a deed ―to trustees for the use of any church.‖ It

11

further provided that such property was ―to be held by them or their trustees‖ in

accordance with the rules of discipline and mode of government of ―such churches

or religious societies‖, i.e., the church or religious society named in the deed. It is

therefore clear the statute validates deeds ―to churches‖ as absolutely vesting title

in such churches, and deeds to trustees ―for the use of‖ any church as vesting title

in the trustees in trust for the named church.

This interpretation is strengthened by the statute‘s emphasis on the actual

wording of the deed of conveyance, referring to ―such church,‖ purposes

―contained in the deeds,‖ and ―expressed in the deed.‖ Further, in 1805 the phrase

―for the use of‖ was essentially synonymous with the expression ―in trust for‖ in

modern usage.3 The fact that the General Assembly employed the phrase ―for the

use of‖ in the statutory language ―to trustees for the use of any church‖ manifestly

confirms that the trusts contemplated by the statute are express trusts for the

benefit of the church named in the deed, created in the ordinary way, that is, by a

settlor who holds title to the property at the time the trust is created. Thus, when

the statute speaks of a deed ―to trustees for the use of any church,‖ it is referring to

a deed conveying property to trustees in trust for a specific church.

3 See, e.g., Davis v. United States, 495 U.S. 472, 481 (1990) (―From the dawn of

English common law through the present, the word ‗use‘ has been employed to

refer to various forms of trust arrangements. . . . The phrases ‗to the use of‘ or ‗for

the use of‘ were frequently used in describing trust arrangements.‖); 1 G. BOGERT,

TRUSTS AND TRUSTEES § 2, p. 9 (1935) (―The words ‗use‘ and ‗trust‘ are employed

as synonyms frequently by writers and judges‖).

12

As the title of the statute demonstrates, the purpose of O.C.G.A. § 14-5-46

has always been ―to secure to Churches or Religious Societies, the lots of land

conveyed to them for erecting Churches and Meeting Houses.‖ But the statute was

not needed for, and thus did not apply to, congregations that had been incorporated

prior to 1805, such as CCS. The General Assembly already had secured for such

congregations title to their property by legislative act. And, as legal entities

expressly recognized by legislative act, and thus cognizable under the common

law, they would be capable of both receiving and conveying land. Indeed, there is

nothing in the text of the statute that would suggest that the General Assembly in

any way intended it to apply to such previously-incorporated congregations, and

there would be no need to secure title for congregations whose titles had already

been secured through legislative charters. See Central of Georgia Ry. Co. v. State,

31 S.E. 531, 534 (Ga. 1898) (legislature is presumed not to engage in unnecessary

or meaningless legislative acts). Further, had the statute been intended to have the

effect given it by the Court of Appeals, it would have contradicted and implicitly

repealed the Act of 1789 granting CCS‘s real estate to CCS, but it is inconceivable

that the General Assembly would have revoked its earlier Act in so oblique a

manner.

The fact that the General Assembly enacted O.C.G.A. § 14-5-46 to solve this

focused problem–enabling unincorporated congregations to receive and have a

13

method for holding title to land conveyed to them for churches and meeting

houses–is confirmed by the legislature‘s acts during the following half-century.

That history is inconsistent with the Court of Appeals‘ conclusion that the

legislature intended O.C.G.A. § 14-5-46 to impose upon all churches, even

previously incorporated churches, the requirement that all ownership of church

property is subject to denominational discipline. It reinforces Petitioner‘s

arguments that the language in the statute regarding the denomination‘s discipline

or mode of governance applies only to the appointment of trustees.

Among other things, a number of these legislative corporate charters adopted

after enactment of the 1805 statute imposed specific requirements that the vestry‘s

or the trustees‘ right to make regulations must comply with the rules of the

affiliated denomination. Petitioner introduced below copies of corporate charters

granted by the General Assembly to three Presbyterian and Methodist churches

between 1838 and 1840 that required that any bylaws that would be made must not

be repugnant to the discipline of their respective denominations. Similarly, the

General Assembly granted charters to two Episcopal churches in 1834 and 1842

that conditioned the right of the church wardens to make bylaws, rules, and

regulations for the governance of the churches on the requirement that such

governing standards ―shall not be repugnant to the laws and constitution of this

State, or to the canons of the Protestant Episcopal Church in the diocese of

14

Georgia.‖4 There is no such restrictive language in the legislative charter for CCS.

In fact, the charter secures to CCS the right to govern its own property and make

its own rules. And if the predecessor to O.C.G.A. § 14-5-46 already imposed a

general limitation on the ability of congregations to adopt regulations regarding the

use of their property, there would be no need for these sort of conditions to be

included in any corporate charters after the statute‘s enactment in 1805. These

later legislative acts thus confirm that the statute was not so broad, and that the

legislature acted in a careful and consistent manner in approving charters

incorporating churches.

In summary, both pre- and post-enactment historical evidence regarding

O.C.G.A. § 14-5-46 clearly demonstrate that the law was carefully and narrowly

crafted by the General Assembly simply to ensure that gifts of property made to an

unincorporated association or to trustees for a named unincorporated church would

not fail for the lack of a legally cognizable donee, by empowering such

unincorporated associations to appoint trustees and successor trustees. The

decision below ignores this history, expands this deliberate narrow focus, and in

doing so substantially intrudes upon the rights of all congregations in Georgia to

own and control their own property. Review by this Court is needed to correct this

unwarranted expansion of the law.

4 See Exhibits 55 to 57 of Defs. App., R-1311 et seq.

15

II. THIS COURT SHOULD GRANT REVIEW BECAUSE EVEN IF O.C.G.A. § 14-5-

46 MADE RESPONDENTS’ DENOMINATIONAL DISCIPLINE OTHERWISE

APPLICABLE, THAT DISCIPLINE WOULD BE INSUFFICIENT TO CREATE A

LEGALLY COGNIZABLE TRUST INTEREST UNDER GEORGIA LAW.

As explained by the Supreme Court, ―neutral principles of law‖ requires that

any alleged denominational trust interest in congregational property must be

established in ways that are ―legally cognizable‖ under standard principles of state

trust and real property law. Jones v. Wolf, 443 U.S. 595, 606 (1979). Application

of neutral principles of Georgia trust law demonstrates that ECUSA‘s

denominational ―discipline‖ is utterly insufficient to create a legally cognizable

trust interest.

A trust ―is a fiduciary relationship with respect to property, arising from

a manifestation of intention to create the relationship and subjecting the person

who holds title to the property to duties to deal with it for the benefit of charity or

for one or more persons.‖ RESTATEMENT (THIRD) OF TRUSTS § 2 (2003). There

are three ways that a trust can be created under Georgia law: an express trust, a

constructive (implied) trust, or a resulting (implied) trust. The Court of Appeals

found that both an express trust and an implied trust existed here. But as explained

further below, that ruling distorts well-established principles of Georgia trust law

and grants religious denominations rights that no secular entity in Georgia enjoys.

16

A. The Court of Appeals Erred in Finding a Legally Cognizable

Express Trust Under Georgia Law.

Both Georgia law and general trust law are quite clear: a trust must arise

from an action by the settlor expressing clear and unambiguous intent to create a

trust for another. See O.C.G.A. § 53-12-20; RESTATEMENT (THIRD) OF TRUSTS § 2

(2003). An express trust cannot be created by the mere declaration of the would-be

beneficiary; only persons or entities with the legal capacity to transfer title to the

property have the capacity to create a trust. O.C.G.A. § 53-12-22. Moreover, an

express trust must be created by a writing from which it is ―ascertainable with

reasonable certainty‖ that there is an ―intention by a settlor to create a trust.‖

O.C.G.A. § 53-12-20 (emphasis added). As the South Carolina Supreme Court

recently held in a unanimous decision, ―[i]t is an axiomatic principle of law that a

person or entity must hold title to property in order to declare that it is held in trust

for the benefit of another.‖ All Saints Parish Waccamaw v. Protestant Episcopal

Church, 685 S.E.2d 163, 174 (S.C. 2009).

Here, both ECUSA and the Diocese admit that the legal titleholder to all

CCS property is CCS—not ECUSA or the Diocese. See R-1491-1515. Neither

ECUSA nor the Diocese could therefore create an express trust in CCS‘s property.

It is also undisputed that CCS has never transferred nor agreed to any transfer of

any interest in its property to ECUSA or the Diocese. And it is undisputed that

neither ECUSA nor the Diocese has ever contributed financially to CCS‘s purchase

17

or maintenance of its property. There is thus no evidence of any intention by CCS

as settlor to create an express trust.

Despite this undisputed evidence, the Court of Appeals found that a so-

called ―express trust‖ was created because ECUSA passed, and CCS ―acceded to

the National Episcopal Church‘s express trust‖ embodied in, ECUSA‘s Dennis

Canon.5 Op. at 16. This is simply insufficient under Georgia law to create an

express trust.

At the most basic level, the enactments of these canons were not actions by

CCS, the purported settlor, but rather by ECUSA and by the Diocese of Georgia,

the purported beneficiaries. See ECUSA Canon I.7.5. Indeed, at the national level,

the General Convention of the Episcopal Church, which adopts the Episcopal

Church‘s canons, does not even include representation of congregations; rather, it

represents only dioceses, through their bishops and diocesan deputies. See ECUSA

Const., art. I.2 & I.4. See also Diocese Canon 8. The annual Diocesan Convention

of the Diocese of Georgia consists of all clergy canonically resident in the Diocese

(whether or not they are connected with a congregation), various ex officio

members, and the lay representatives of each of dozens of congregations. See

5 Respondents contend that CCS not only acceded to the canons in effect at the

time CCS affiliated with the denomination, but to all future amendments of those

canons. But this contention is itself premised upon future amendments, as

Respondents cite to and rely upon their current canons, not the canons that were in

effect when CCS affiliated in 1918, for the relevant language regarding future

amendments. See Resp. Opp. at 4, 9.

18

Diocese Const. Art. III; Diocese Canon 3. The actions of such bodies simply do

not manifest an intention of any particular congregation.

Further, the record below shows that CCS had no advance warning and

played no role whatsoever in the Dennis Canon‘s enactment, factually or

otherwise. ECUSA Const., Art. I.4; Diocese Const., Art. VIII.1. Indeed, the

Diocese has stated that it did not even receive advance notice that the Dennis

Canon would be proposed (let alone voted on) at the 1979 General Convention:

―The Diocese does not believe that it notified its parishes and missions that the

Dennis Canon would be voted on at the 1979 General Convention for the reason

that it does not believe it was aware that the Dennis Canon would be voted on at

such Convention.‖ See R-1718, R-1766.

The opinion below thus turns trust law on its head, using what amounts to

nothing more than a purported lack of manifestation of an intention not to have

one‘s property encumbered as somehow affirmatively manifesting an intention that

it be encumbered. The decision below in essence reasons that CCS plainly

manifested an intention to encumber its property by inaction—by failing to

withdraw from the denomination and its activities. But continued association and

participation is not the ―reasonable certainty‖ that the law requires for encumbering

one‘s property with a trust, let alone in the absence of actual notice.

19

Among other things, the Court of Appeals‘ holding puts congregations in a

―heads you lose, tails I win‖ position with regard to the denomination, as it would

still require disassociation after the canon had taken force, yet treats such

disassociation as ineffective. Neither ECUSA nor the Diocese declared their

alleged trust interests by amending their constitutions. In both instances, this

would have required affirmative votes at two separate General Conventions or

diocesan Conventions before it was approved, and thus at least theoretically

allowed a period in which to opt out—three years in the case of ECUSA and more

than one year in the case of the Diocese. See ECUSA Const., art. XII; Diocese

Const., Art. II, Sec. 1, and Art. XII. Instead, they used canons, and the ECUSA

General Convention specially provided that the Dennis Canon would take

immediate effect, contrary to its usual procedures. See ECUSA Canon V.1.6. So it

is not clear how continued association followed by departure in 2007 could differ

materially in substance from departure the year after enactment. But under the

opinion below, the legal effect would have been the same, and thus it is clear that

continued association with the denomination is simply irrelevant.

Even failure to opt out when given a true opportunity to do so cannot be the

basis for imposing a trust under the secular law. Such an argument is no different

than if the Rotary Club‘s governing body adopted a bylaw granting itself a

beneficial interest in all of its members‘ properties, and then claimed that the

20

members somehow manifested an intention to agree to the encumbrance if they did

not quit the club. It is no different than if one‘s employer adopted an internal

policy creating a trust in the homes of all employees who did not quit. And it is

also no different than if a local congregation adopted a bylaw giving itself a trust

interest in all continuing members‘ property. Indeed, the logical implication of the

decision below is that a denomination could unilaterally obtain a trust interest in

the homes of the continuing individual members of its congregations, using the

same means that the denomination used here for the properties of the

congregations to which such members belong. Yet in none of these situations

would the secular law recognize a manifestation of intention by the purported

settlor. Such organizations might expel members unwilling to affirmatively

encumber their property, but could not plausibly claim an interest in it by

members‘ failure to withdraw on their own.

None of this evidence evinces any intent by the titleholder and alleged

settlor to create a trust. To allow the purported beneficiary to unilaterally create

such an express trust, as the Court of Appeals did here, would have a widespread

impact on congregations throughout Georgia and would severely inhibit

congregations in acquiring, maintaining, and developing properties, to their

detriment and that of the communities that they serve.

21

B. The Court of Appeals Erred in Finding a Legally Cognizable

Implied Trust Under Georgia Law.

Nor is there any basis for an implied trust to be recognized here. Most

importantly, this Court has previously ruled – and the United Supreme Court has

expressly recognized – that Georgia does not recognize implied trusts in church

property. Presbyterian Church v. Eastern Heights Church, 225 Ga. 259, 260, 167

S.E.2d 658 (1969). As the United States Supreme Court noted in Jones v. Wolf,

―[o]n remand, the Georgia Supreme Court concluded that, without the departure-

from-doctrine element, the implied trust theory would have to be abandoned in its

entirety. In its place, the court adopted what is now known as the ‗neutral

principles of law‘ method for resolving church property disputes.‖ 443 U.S. 595,

600 (1979) (citation omitted). The reason for this is simple: the ―implied trust‖

theory was based upon a quid pro quo – that is, the denomination committed that it

would not depart from the doctrine in existence at the time the congregation

affiliated and the congregation agreed that the denomination would have an

implied trust in its real property. As both Supreme Courts recognized, when the

first element of this quid pro quo was invalidated for First Amendment reasons, the

second element likewise ceased as well.

Nor is there sufficient factual or legal basis here to establish either of the two

types of implied trusts—resulting trusts and constructive trusts—recognized under

Georgia trust law. See O.C.G.A. § 53-12-130; O.C.G.A. § 53-12-132.

22

Resulting Trusts. A resulting trust is one implied by law for the benefit of

the settlor—that is, the previous owner—where it is clear that the settlor intended

to give beneficial use of the property to someone other than the legal titleholder.

O.C.G.A. § 53-12-130. A ―purchase money‖ resulting trust will also be implied

where a person pays for legal title to be transferred to a third-party. O.C.G.A.

§ 53-12-131. In CCS‘ case, ECUSA neither purchased nor sold any of CCS‘s

property, nor provided any funds to purchase or develop CCS‘s property, see

Louttit Tr. 94:12-95:1, R-2315-2316; Mullin Tr. 118:3-8, R-2195, and there can

thus be no resulting trust. See also Presbyterian Church, 225 Ga. at 260 (no trust

in favor of general church may be implied under Georgia trust laws where no funds

are donated to purchase and develop the local church property by the general

church).

Constructive Trusts. ―A constructive trust is a trust implied whenever the

circumstances are such that the person holding legal title to property, either from

fraud or otherwise, cannot enjoy the beneficial interest in the property without

violating some established principle of equity.‖ O.C.G.A. § 53-12-132(a). Such a

trust was implied in Crumbley v. Solomon, where the Court found that not only the

church association but also the specific local church both participated in creating

an express trust through their passage of a provision in the church discipline. See

Crumbley v. Solomon, 243 Ga. 343, 345 (1979). Moreover, in that case the Court

23

noted the property was deeded to ―Franklin Tabernacle of the Holiness Baptist

Church,‖ and thus named both the local church and the denomination. 243 Ga. at

346. In any event, Crumbley was a 4-3 decision, and its facts are quite distinct

from those in this record. As discussed in Section II.A. above, neither

congregations nor congregational representatives participate in ECUSA‘s General

Convention, where the ―Dennis Canon‖ was purportedly adopted. It is undisputed

that no advance notice of the canonical amendment was provided by ECUSA to the

Diocese or by either ECUSA or the Diocese to CCS, and that neither CCS nor the

Diocese were aware that General Convention was going to adopt a canon claiming

a trust interest in all congregational property. See R-1718, 1766. Nor were they

alone – the irregularities of the Dennis Canon‘s passage provide ample reason that

virtually all congregations affiliated with ECUSA were unaware until after (in

many cases, years after) the 1979 General Convention that the Dennis Canon was

going to be considered. It is not the failure to imply such a trust that would violate

equity; rather, it is recognizing such an implied trust, as did the Court of Appeals

did, that would violate principles of equity and be manifestly unjust not only to

Petitioner CCS but to other congregations throughout Georgia.

24

III. THIS COURT SHOULD GRANT REVIEW BECAUSE THE DECISION BELOW

RAISES SERIOUS ESTABLISHMENT CLAUSE CONCERNS.

There is a third reason that this Court should review and reverse the decision

below. Subsequent to Jones v. Wolf, the United States Supreme Court has recognized

that the Establishment Clause is implicated if governments delegate to religious

institutions authority over the rights of third parties. The decision of the Court of

Appeals thus itself in fact creates a constitutional violation under the

Establishment Clause.

In Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 123 (1982), the Supreme Court

rejected a state law that gave churches a veto over neighboring applications for

liquor licenses, because the law ―vest[ed] discretionary governmental powers in

religious bodies.‖ The Court held that in passing this law, the Massachusetts

legislature granted churches a special benefit — the ―power to veto certain liquor

license applications.‖ Id. at 122. The Court determined that the measure violated the

Establishment Clause because it advanced religion by allowing churches to act as

government land-use regulators, in a manner that gave the churches unilateral

power over the property of third parties. Id. at 119-20.

The same problem would arise if church denominations were granted unique

authority to establish themselves as beneficiaries of unilaterally declared property

trusts. Here, a trust of this nature would supplant Georgia‘s well-developed trust

law and offer any purportedly ―hierarchical‖ churches—and no other

25

organizations—the power to create for themselves a beneficial interest in the

property of any member congregation . Correspondingly, it is inconceivable that

the special rights that a denomination seeks here would be extended to secular

organizations.

Such an outcome was struck down in Larkin even though there was a well

drafted statute authorizing the churches to exercise this governmental authority and

thus giving third parties prior notice of this possibility. Such a delegation of

authority is even more troubling where, as here, there is no such statute—nor a

signed written instrument, nor a trust or lien recorded in public title or land

records, nor any other legally cognizable and recorded action giving third parties

notice of the denomination‘s purported trust interest in a congregation‘s property.

Moreover, the power granted to churches under the decision below is even greater

than that enjoyed by the churches in Larkin. There, churches could only veto one

particular use of neighboring parcels; here, the denomination can unilaterally take

property, and without compensation, which not even the government can do.

Not only could such a power of a purportedly ―hierarchical‖ church usurp

governmental authority, but it also would open the door to the Larkin Court‘s fear

that ―[t]he churches‘ power . . . could be employed for explicitly religious goals.‖

Id. at 125. Here, that would be the goal of imposing the denomination‘s

religious views on a dissenting congregation. Granting purportedly ―hierarchical‖

26

religious bodies such untrammeled authority over property rights poses this exact

risk, especially when the local churches have not expressly yielded such authority.

The power to decide who owns property — a core power of civil government —

would be vested in religious bodies. As then-Justice Rehnquist once warned, that

power could readily be employed for hierarchies‘ own particular purposes, such as to

enforce their views of orthodoxy and to stifle religious dissent, without regard to

ordinary property rights. See Serbian E. Orthodox Diocese v. Milivojevich, 426

U.S. 696, 726-27 (1976) (Rehnquist, J., dissenting).

The result in Larkin would no doubt have been different if the churches‘

veto power had been included in local covenants, conditions, and restrictions that

were voluntarily agreed upon by the surrounding property owners, just as an

express trust is. Under those circumstances, the churches would have enjoyed

veto power under neutral principles of contract law, and those rights would have

been equally available to secular organizations. But nothing of the sort has

happened here.

In sum, the decision below, in allowing religious organizations to

unilaterally declare trusts in their own favor, unconstitutionally delegates

governmental authority to religious institutions. This delegation also amounts

to a grant of power to religious denominations that no other organizations enjoy

27

over their members. Such delegation and preferential treatment violates the

Establishment Clause.

CONCLUSION

For all of the foregoing reasons, Amicus American Anglican Counsel

respectfully requests that this honorable Court grant the Petition and review and

reverse the decision of the Court of Appeals.

Respectfully submitted this 23rd

day of September, 2010.

By ________________________

SCOTT J. WARD


TIMOTHY R. OBITTS


Gammon & Grange, P.C.

8280 Greensboro Drive, 7th Floor

McLean, VA 22102-3807

(703) 761-5000

HUGH B. McNATT

(Georgia Bar No. 498300)


602 Church Street

P. O. Drawer 1168

Vidalia, GA 30475

(912) 537-9434

Counsel for Amicus Curiae American Anglican Council

28

CERTIFICATE OF SERVICE

I, Hugh B. McNatt, certify that on this day a copy of the foregoing BRIEF

AMICUS CURIAE FOR THE AMERICAN ANGLICAN COUNCIL IN

SUPPORT OF PETITION FOR CERTIORARI was sent by ordinary mail to the

following counsel:

Gordon A. Coffee, Esq.

Steffen R. Johnson, Esq.

Winston & Strawn, LLP

1700 K Street N.W.

Washington, DC 2006

Paul W. Painter, Jr., Esq.

Post Office Box 9946

Savannah, Georgia 31412

William P. Ferranti, Esq.

Winston & Strawn LLP

35 West Wacker Drive

Chicago, Illinois 60602

Neil A. Creasy, Esq.

7393 Hodgson Memorial Dr.

Suite 102


James L. Elliott, Esq.

Elliott, Blackburn, Barnes &

Gooding, P.C.

3016 N. Patterson Street

Valdosta, Georgia 31602

Thomas A. Withers, Esq.

Gillen, Withers & Lake LLC

Post Office Box 10164


David Booth Beers, Esq.

Richard A. Arculin, Esq.

9th Floor East

901 New York Avenue, N.W.

Washington, DC 20001

Mary E. Kostel, Esq.

The Episcopal Church

110 Maryland Avenue, N.E.

Washington, D.C. 20002

So certified this 23rd

day of September, 2010.

_____________________

Hugh B. McNatt

Georgia Bar No. 498300


602 Church Street

P. O. Drawer 1168

Vidalia, GA 30475

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