As my readers on the topic know, I’ve been closely following the case of Good Shepherd Rosemont in Pennsylvania. This is an Episcopal Church parish that I maybe visited one time in the late 1980′s. They are having difficulties with the Episcopal Diocese of Pennsylvania. “Difficulties” might be a bit of a euphemism, actually. The Diocese is calling them trespassers, suing for something called conversion, and trying to grab the property out from under the parishioners.
As a tangent to this, some of my interest stems from my own pro se litigation back in the day, Frederick W. Gundlach v. Peter Laister, and the follow-up cases, Frederick W. Gundlach v. Barry E.B. Swain, and In re: St. Clement’s Church. (I think this last one is 687 A.2d 11.)
I am rooting for the Rosemont people, because I think they are being the victims of fraud, much the same I was in the early 1990′s. Church fraud is big business nowadays, and a way for those who are dishonest enough to engage in it to get an income—either directly by stealing it like national treasurer Ellen Cooke did in the mid 1990′s—or by trustee malfeasance or even misfeasance.
In the Rosemont case, it’s obvious that the Diocese wants the Good Shepherd Rosemont property and they want whatever is left of the trust funds. I think this was a multi-million dollar set of trust funds in 1990. St. Clement’s in Philadelphia had about $2.3 million, and Rosemont was said to have much more. There’s been a slew of litigation in Rosemont, so it’s not clear that that “much more” is all that much. But there must be a real number out there, and that’s the number that the Diocese of Pennsylvania wants its hands on.
So the Diocese is saying that the Rosemonters have “left the denomination” and are, in effect, trespassers who have taken the property for their own (non-Episcopal) use. Remember in most protestant denominations the parishes are organized along association lines, where the local parish forms either a nonprofit corporation or an unincorporated entity, and they affiliate with government of the denomination under a set text of bylaws (canons).
What makes Rosemont unique is that it’s one of the first cases where an Episcopal Diocese is going after a parish that never voted to disaffiliate from the denomination. It’s simply a matter that the Standing Committee of the Diocese doesn’t “feel” that the Rosemont people are good enough Episcopalians anymore to hold on to the property. And so, therefore, the Standing Committee “feels” that they have converted the property to personal use. That is, they are no longer holding it as proper trustees for the benefit of any and all Episcopalians.
Meanwhile, in the same Diocese, I am dialoguing with Mary E. Kohart, the Drinker Biddle partner who is an attorney, the “assistant chancellor”, for the Pennsylvania Diocese. Last November, I received an answer to one of the main questions in Gundlach v. Laister (Gundlach v. Swain, In re: St. Clement’s Church, etc.), which is: Who decides membership in a parish?
The fraud that had been spun in the early 1990′s were that cases involving religious societies were not able to be brought into a civil court at all. This is lie, but it sounds right. And as you know, with Pennsylvania judges, many of them operating on 25-watt bulbs and all of them elected judges none-the-less, the stupid answer that sounds right is what is going to be the holding in the case.
Let me go into this a bit:
The actual rule is represented by dicta in the U.S. Supreme Court case, Watson v. Jones, 80 U.S. 679 (1871), and that is: “Religious corporations come before us in the same attitude as other voluntary associations.” What this means is that the civil courts are always open to cases involving church parishes.
The limiting factor is something called the Deference Rule, which is from the same case. What the Deference Rule says is:
In this class of cases we think the rule of action which should govern the civil courts, founded in a broad and sound view of the relations of church and state under our system of laws, and supported by a preponderating weight of judicial authority is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.
A later case, Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1 (1929) added a “fraud, collusion, or arbitrariness” exception to the Deference Rule.
Later cases in the 1970′s further confused religious society law by calling into question the “arbitrariness” exception (Milivojevich) and by pointing out that the original Watson case had a whole alternative scheme of “neutral principles of law” resolution to religious society matters (Watson v. Jones). Dummy courts believe that “neutral principles” are only used for cases involving the deed of a church itself; the more sophisticated ones realize that denomination members always have a beneficial interest in property in one way or another, and so apply church rules as neutral principles.
Where Mary Kohart and the Diocese of Pennsylvania are taking this with Rosemont, interestingly, is to say that whatever the Diocese decides as a religious matter, the civil court in Montgomery County must accept as the law governing the church property. Regardless if there is absolutely no support for the position in the real church canons! So simply, if the Bishop or the Standing Committee decide that the Rosemont worshippers are trespassers, then that is that.
But there is no support for this view anywhere in the written rules of Episcopalianism. And this is where Deference Rule Running Wild is taking Pennsylvania religious society law. I was just astounded on the phone call, when Ms. Kohart kept repeating that the Rosemont people were trespassing because they had converted the property for their own use.
But meanwhile, the St. Clement’s Philadelphia people who:
- have their own rule about membership in the parish that is not the rule in Canons
- do not use the 1979 Prayer Book, which Canons say is the only valid book for community worship in the Episcopal Church
- have previously told the trustee of one of the trusts where they held a beneficial interest that they were funding a “seminarian” who was actually the high school student son of an influential parishioner
are somehow not converting assets held in trust for the denomination to their individual use!
Which is it? To me, it sounds like if the Rosemonters are trespassers and converters, then the St. Clement’s people are also trespassers and converters. Especially with St. Clement’s, as there is hard evidence that they include or exclude persons from membership based on rules that are not consistent with what the National Church official(s) say the canons are.
If you want to talk about a group of people who have basically been stealing for their own use, it would be the St. Clement’s people, not the Rosemont people! But for some reason, Good Shepherd Rosemont is an issue for the Standing Committee of the Diocese, and St. Clement’s isn’t even on the radar. Hmmmm.
It might be because of something called the “voluntary assessment”. In order to fund the Diocese, the Diocese has to collect money from individual parishes, from the individuals within the parish. Each parish is assessed an amount based on what the rest of the Diocese thinks that parish can afford to pay in.
Is the parish compelled to pay in? No. But if the parish doesn’t pay in, then it doesn’t get a vote in the Diocesan Convention. (I think these votes go one for each parish, whether the assessment is $25 or $25,000. The twenty-five thousand parish does not get 1,000 times more votes.)
Well? St. Clement’s pays in, but Rosemont does not!
So really, it’s some of that smelly, soft corruption. Because the Diocese of Pennsylvania can’t shake down the Good Shepherd for some dough, the Diocese calls them trespassers in their own church. The St. Clement’s gang can make up a prayer book, run a private club or chapel essentially with property dedicated for general use, and the Diocese will look the other way because they’ve been paid (off).
What does this say about the applicability of canons? If the canons are optional, they really aren’t rules, aren’t bylaws. The Deference Rule is not a rule of lawlessness. It says that a civil court is supposed to look to the internal rules of a denomination in resolving a dispute. I should think that part of that would be to ask, “is this really a rule”? And any evidence that suggests it’s not a rule raises the question of whether fraud is being perpetrated.
The Rosemont parishioners haven’t done anything wrong. Maybe the vestry has an issue, because the current rector, David Moyer, doesn’t have a license to preach in the Diocese of Pennsylvania. [See comment below, though.] But the individual parishioners have no control over that. Vestry hires the rector. If there aren’t contested vestry elections, there is no way to change vestry. And no one is compelled to serve on vestry–no one is forced to challenge a wayward vestry. (Heck, look what happened to me when I challenged a tortious vestry!)
So I think Mary Kohart has really built quite a fraud in that court case, [i.e. she is asserting things that simply aren't true.] There is no trespass where the parishioners have no control over the governance and can only “object” in what Kohart herself would say is a “nonjusticiable” manner. But since Rosemont can control its membership and there are no objections to what is going on, why is the Diocese interfering with Rosemont?
There has been an objection with St. Clement’s and the Diocese steadfastly refused to interfere.
[Update 9/25/10: Of course, St Clement’s hosting Bishop Bennison during his inhibition has probably given it a leg up on the Rosemont people as well.]
[Update 9/19/11: Someone has pointed out to me that how I am describing what the Diocese asked for, through Ms. Kohart, is not the same as what the Diocese seemed to be asking for according to Judge Ott's final decision last month (August 2011). Well, if you notice, this blog post is from 2010. And in the filings of that time, what I described is exactly what the Diocese was looking for. Apparently, things changed over the course of a year--probably because the Diocese realized it was trying to grab too much. I think some commentary out there points out that, in fact, the Diocese had dialed back what they wanted as a "win" in this uncomfortable situation.]