Posted by ajenkins on February 4, 2010 under Anglican Events | Comments are off for this article

Repost from Virtue OnLine

All Saints Pawleys Island case could liberate church property for the entire country


By David W. Virtue in Greensboro, NC
January 29, 2010

If the U.S. Supreme Court agrees to hear the All Saints Pawleys property case, The Chancellor of All Saints Pawleys Island believes the Dennis Canon will be overturned freeing thousands of church properties from the clutches of The Episcopal Church (TEC) (as well as the Presbyterian and Methodist churches who have their own “Dennis Canons”).

Dr. Ross “Buddy” Lindsay, 59, a trust attorney and canon lawyer, told VOL in an interview that the recent SC Supreme Court decision in favor of All Saints Pawleys insures, once and for all, that neither TEC nor the Diocese of South Carolina have any claim to their property or to the property of any other Episcopal Churches in South Carolina.

Lindsay, a trust lawyer who also holds a master of laws degree (LLM) in canon law from Cardiff University Law School, studied under the distinguished Anglican Communion lawyer, Norman Doe, in Cardiff, Wales. Lindsay said that most church property cases take ten years to reach the Supreme Court.

The All Saints Case began in September 2000 when South Carolina Episcopal Bishop Ed Salmon recorded the Dennis Canon in the Georgetown County, S.C. courthouse.

“At Chuck Murphy’s request, we began an exhaustive title search in 2000. Murphy showed me a quit-claim deed from the diocese dated 1903, and asked me to determine if it was the real deed to the All Saints Pawleys property. The original deed was actually recorded in the Charleston County Courthouse in 1745. However, the S.C. Supreme Court recognized the 1903 deed, and stated that the diocese transferred any interest that it had in the property, if any, to the local congregation at that time.

“When Bishop Salmon got wind of the title search, he asked his chancellor Nick Ziegler to record the Dennis Canon in the Georgetown County, SC courthouse. The Dennis Canon was adopted in 1982 under the previous bishop C. FitzSimons Allison’s watch, but Bishop Allison had instructed the chancellor not to record the Dennis Canon in any county courthouses. According to Bishop Allison, he felt that war would have broken out if the Dennis Canon had been recorded in Charleston County.”

According to Lindsay, “South Carolina is a ‘res state’ (the first one to the courthouse prevails).” Therefore, the Dennis Canon would have no validity in South Carolina until it is recorded in Charleston County. The Dennis Canon has only been recorded in Georgetown County.

The Diocesan Chancellor recorded the Dennis Canon in Georgetown County in September 2000. All Saints Pawleys immediately filed an action for Declaratory Judgment. In October 2000, Judge John Breeden granted Summary Judgment in favor of All Saints Pawleys.

In 2003, the South Carolina Court of Appeals remanded the case back to Georgetown County for a full trial. At that trial, Lindsay testified that TEC had no property canons until 1914 and those canons only dealt with “consecrated property”, sanctuaries. All Saints Pawleys owns 60 acres, but the sanctuaries are located on only one-half acre, according to Lindsay.

The Episcopal Church has argued in other cases that the Dennis Canon merely codified in 1979 what had been “implied” for centuries that all property was held in trust for The Episcopal Church. Lindsay argues that nothing in canon law, from the first property canon that was adopted in 1147 to the Dennis Canon that was adopted in 1979, ever used the term “trust” in connection with church property. The “implied trust” theory is just that, a theory, according to Lindsay. There is simply no evidence in canon law to support it.

After a week long trial, Judge Thomas Cooper also ruled that neither TEC nor the Diocese hold any interest in the All Saints Pawleys property. The Episcopal Church and the Diocese appealed to the SC Supreme Court, which ruled on September 18, 2009, in favor of All Saints Pawleys.

However, according to Lindsay, the SC Supreme Court went a step further than Judge Cooper had. Chief Justice Jean Toal, a Roman Catholic, wrote the opinion in concurrence with other all justices. She ruled that the Dennis Canon could not create a trust for church property in SC because The Episcopal Church didn’t own any church property in SC.

Lindsay, a trust lawyer, explained that trusts are created in two ways. One who owns property can declare that he or she is holding property in trust for another, or one who owns property can transfer that property to another to hold as trustee for one or more beneficiaries. However, in both cases, the Grantor/Settlor of the trust must own the property.

The Episcopal Church does not own any local church property; therefore, it cannot create a trust interest in local church property. The Dennis Canon is a “legal fiction” according to Lindsay, and the SC Supreme Court agreed. Lindsay is confident that other courts will follow SC’s lead, especially those located in the Eleventh Circuit (Georgia, SC, NC, and Virginia).

If this is true, one has to ask why haven’t other courts ruled as the South Carolina Supreme Court did.

Lindsay says, and Justice Toal’s opinion concurs, that the law has evolved since the early church property cases that typically involved parishes split over the slavery issue following the Civil War. Also, the average Episcopal Church in the U.S. has 70 members. They simply cannot afford to pay the $500,000 in legal fees that it takes to get to the Supreme Court. Lindsay stated that he and others at All Saints Pawleys have been praying for years that some other Episcopal Church would take the Dennis Canon issue to the Supreme Court. St. James Newport Beach attempted to last year, but the Supreme Court rejected their Petition for Certiorari.

The All Saints Pawleys case may wind up being the test case for the Dennis Canon because four original Episcopalians who left All Saints Pawleys in 2003 have requested an extension of time until February 15 to file a Writ of Certiorari asking the U.S. Supreme Court to hear the All Saints Pawleys case. Neither TEC nor the Diocese have filed a Writ or requested an extension. They will have 20 days after March 8 to file a petition or they will not be entitled to relief from the Supreme Court, even if Cert is granted and the four loyal TEC parishioners prevail.

If the U.S. Supreme Court agrees to hear the case, it will be heard in September or October of 2010, right on schedule, according to Lindsay.

NOTE: VOL will file Part II to this story on March 8 when the deadline for petitions expires, or before then if anything further develops in the case

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