PROTESTANT EPISC. CHURCH, DIOCESE OF N.J. v. GRAVES, 83> <N.J>. <572 (1980)

THE PROTESTANT EPISCOPAL CHURCH IN THE DIOCESE OF NEW JERSEY, THE TRUSTEES

OF CHURCH PROPERTY OF THE DIOCESE OF NEW JERSEY, AND THE RIGHT REVEREND

ALBERT W. VAN DUZER, PLAINTIFFS-RESPONDENTS, v. THE REVEREND STANWOOD E.

GRAVES, GEORGE ROUSSEAU, ALPHEUS OAKES, JOANNA CHILD, GORDON GRISWOLD,

HOWARD OAKLEY AND WALTER K. SMITH, DEFENDANTS, AND DONALD S. MOORE, CAROLYN

B. LORINCZ, WILLIAM E. VACTOR, SR., MICHAEL BROWN, JOHN HOOK, CHARLES

CURTIS, ARNOLD GARDNER, AND THE RECTOR, WARDENS AND VESTRYMEN OF SAINT

STEPHEN'S PARISH OF PLAINFIELD, NEW JERSEY, DEFENDANTS-APPELLANTS.

The Supreme Court of New Jersey.

Argued April 21, 1980 —

Decided July 24, 1980.

Appeal from Superior Court, Appellate Division.

Page 573

Daniel J. Matyola and William B. Ball, a member of the

Pennsylvania bar, argued the cause for appellants (Wharton,

Stewart & Davis, attorneys; Daniel J. Matyola and William B.

Ball and Philip J. Murren, members of the Pennsylvania bar, on

the brief).

John Wood Goldsack argued the cause for respondents (King,

King & Goldsack, attorneys).

The opinion of the Court was delivered by SULLIVAN, J.

This case involves a dispute over control of local church

property. The denomination involved is the Protestant Episcopal

Church. Plaintiffs are the Protestant Episcopal Church (Church)

in the Diocese of New Jersey (Diocese), the Trustees of Church

Property of the Diocese and the Diocesan Bishop. Defendants are

St. Stephen's Parish of Plainfield, New Jersey, and its rector,

wardens and vestrymen.

Page 574

The essential facts are not in dispute. St. Stephen's was

incorporated on January 11, 1895 as an affiliate member of the

Protestant Episcopal Church.[fn1] Its corporate title was and

still is "The Rector, Wardens and Vestrymen of St. Stephen's

Church in Plainfield." For a number of years after its

incorporation St. Stephen's did not own any church property.

However, in 1935 it purchased the chapel which it had been using

for services and the property on which the chapel was situated.

In 1967 and in 1970 additional property was purchased for use as

a parish hall and school building. In each case the purchase was

made with local funds without Diocesan financial assistance. The

deeds run to the parish corporation and do not contain any words

of trust or reverter in favor of the Diocese.

Defendants concede that from 1895 until 1976, when the local

parish became embroiled in a doctrinal dispute with the Diocese

of New Jersey and The Protestant Episcopal Church, St. Stephen's

operated as an affiliated member of the Diocese and the Church,

adhering to long-established Protestant Episcopal customs and

usages including submission to Diocesan authority. The parish

used the standard prayer book of the Episcopal Church and in 1928

accepted the new Book of Common Prayer. Substantial changes in

the canons of the Church were also followed. Annual Diocesan

assessments and missionary quotas were regularly paid and

delegates regularly sent to the Diocesan Convention. When the

parish decided to sell its old rectory and place a mortgage on

the new one in 1973 it sought and obtained Diocesan approval in

compliance with the requirements of N.J.S.A. 16:12-4, part of a

1901 supplement to the 1829 statute

Page 575

regulating the affairs of the Protestant Episcopal Church in this

State. In short, the undisputed facts demonstrate that from the

time of its incorporation, St. Stephen's was an integral part of

the hierarchical structure of the Church and submitted to the

Church's authority in all matters connected with parish affairs.

The present controversy between the Diocese and St. Stephen's

involves doctrinal disputes concerning, inter alia, the

ordination of women, and changes in the 1928 Book of Common

Prayer. In September 1976 the vestrymen of St. Stephen's wrote to

Bishop Van Duzer claiming the actions were "heretical" and

stating that the parish had decided to suspend its affiliation

with the Diocese and the Church, withhold payment of assessments

and not participate in Diocesan affairs or accept Diocesan

authority.

In April 1977, at a special meeting attended by about 29% of

St. Stephen's adult parishioners, a majority of those present

voted to sever the parish relationship with the Diocese. As a

result, Bishop Van Duzer "inhibited"[fn2] Rev. Mr. Graves, the

rector of St. Stephen's, from performing any priestly duties.

Despite the ban, Rev. Mr. Graves continued to conduct services

and a substitute priest sent by the Diocese to St. Stephen's was

denied permission to officiate at parish services. The present

suit followed seeking essentially to bar Rev. Graves from

conducting services at St. Stephen's and to restrain defendants

from putting parish property to any use not sanctioned by the

Diocese.

After the commencement of suit, Rev. Mr. Graves responded to

the certificate of inhibition by characterizing the facts alleged

as grounds for inhibition as "false." Bishop Van Duzer, however,

considered the response to be insufficient, and when Rev. Mr.

Graves failed to submit a further response, he was "deposed"

Page 576

by formal action of Bishop Van Duzer. The relief sought was then

expanded to include removal of Rev. Mr. Graves from the church

rectory.

Cross-motions for summary judgment were submitted accompanied

by numerous affidavits and documents. The trial judge granted

plaintiffs' motion and entered a declaratory judgment that the

parish property could not be used for any purpose not sanctioned

by the Diocese. All assets of St. Stephen's were placed under the

control of the Trustees of Church Property of the Diocese of New

Jersey until the proper Church authorities decided otherwise. The

judgment also ordered that Rev. Mr. Graves be removed from the

church or parish house except to attend worship services or

social events approved by the Diocese.[fn3] 161 N.J. Super. 230

(Ch.Div. 1978). On appeal, the Appellate Division upheld the

judgment for the reasons expressed by the trial judge. 167 N.J.

Super. 563 (1979). Defendants-appellants filed an appeal with

this Court as of right alleging the existence of a substantial

constitutional issue. See R. 2:2-1(a). We affirm for the

following reasons.

In this country, courts have been repeatedly admonished not to

attempt to decide ecclesiastical doctrinal controversies. It has

been often stated that "[t]he law knows no heresy, and is

committed to the support of no dogma, the establishment of no

sect." Watson v. Jones, 13 Wall. 679, 728, 20 L.Ed. 666,

676 (1872). However, subject to certain limitations, a civil

court can be called upon to resolve a church property dispute.

The United States Supreme Court has held that the First

Amendment does not dictate that a state must follow a particular

method of resolving church property disputes and any one of

various approaches may be adopted so long as it does not involve

consideration of doctrinal matters. Jones v. Wolf,

443 U.S. 595,

Page 577

99 S.Ct. 3020, 61 L.Ed.2d 775 (1979). One acceptable method

of approach was outlined in Watson v. Jones, supra, which

repudiated the English rule that church property was the subject

of an implied trust in favor of those who truly adhered to church

doctrine. The Supreme Court held that our basic constitutional

requirement of the separation of Church and State prevented

courts from using the departure from doctrine approach in the

adjudication of church property disputes. In the absence of

specific trust provisions in the deed, will or other instrument

by which the property is held, Watson made inquiry as to where

the particular church body had placed ultimate authority over the

use of church property. Two broad types of church government were

recognized. In a congregational church, church authority and

control over church property rested completely in the local

congregation and its elected elders. In a hierarchical church,

however, the local church is an integral and subordinate part of

the general church and subject to its authority. Watson,

therefore, held that in a hierarchical situation where there was

a property dispute between a subordinate local parish and the

general church, civil courts must accept the authoritative ruling

of the higher authority within the hierarchy.

The Watson rule, although admittedly not exclusive, has been

modified to the extent that a civil court may inquire into fraud,

collusion or arbitrariness in the ecclesiastical disposition.

Gonzales v. Archbishop, 280 U.S. 1, 50 S.Ct. 5, 74 L.Ed.

131 (1929).

The Watson principle was followed in Serbian Orthodox

Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49

L.Ed.2d 151 (1976). There, in a hierarchical church dispute

over the removal of a bishop with its incidental effect on the

adjudication of property rights, the United States Supreme Court

reversed a state court ruling that had rejected the decisions of

the highest ecclesiastical tribunals of the hierarchical church

upon the issues in dispute. In so doing, the Supreme Court ruled

that the First and Fourteenth Amendments permit hierarchical

religious organizations to establish their own rules and

regulations for internal discipline and government and to create

tribunals for adjudicating disputes over these matters.

Page 578

The Supreme Court held that when this choice has been exercised

and ecclesiastical tribunals have been created to decide disputes

over governmental direction of subordinate bodies, the

Constitution requires that civil courts accept their decisions as

binding upon them. 426 U.S. at 724-725, 96 S.Ct. at 2387. The

Court also declared in Serbian that where the resolution of a

church property dispute may be a consequence of an ecclesiastical

determination, "[c]ivil courts must accept that consequence as

the incidental effect of an ecclesiastical determination that is

not subject to judicial abrogation, having been reached by the

final church judicatory in which authority to make the decision

resides." 426 U.S. at 720, 96 S.Ct. at 2385. Thus, Watson's

holding with respect to the appropriate role of civil courts

remains unchanged even where a church property dispute is

incidentally resolved by an ecclesiastical determination.

Another acceptable method of resolving church property disputes

is the neutral principles of law approach enunciated by the

United States Supreme Court in Presbyterian Church v. Hull

Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969).

This approach, as evolved in succeeding cases, calls for the

completely secular examination of deeds to the church property,

state statutes and existing local and general church

constitutions, by-laws, canons, Books of Discipline and the like

to determine whether any basis for a trust in favor of the

general church exists. In Jones v. Wolf, supra, the most recent

decision in this area, the Supreme Court reaffirmed its approval

of the neutral principles of law doctrine as one of the various

approaches for settling church property disputes. The Jones

decision involved a church property dispute between the local

church and the general church in which the Georgia courts had

examined the property deeds, state statutes, local church

charter, the general church constitution and Book of Church

Order. When the examination failed to reveal any language of

trust in favor of the general church, the Georgia courts ruled

that more than a mere connectional relationship between the local

and general church must be shown to give rise to property rights

in the general church. Accordingly, it was held that legal title

to the church property

Page 579

was vested in the local church congregation. The United States

Supreme Court approved this neutral principles of law approach as

an acceptable method of resolving the particular dispute.

Prior to the United States Supreme Court decision in Watson,

the New Jersey cases had also recognized the distinction between

congregationally structured churches and hierarchical churches.

With respect to hierarchical church organization, it has been

held that local church bodies were subject to the established

discipline and authority of the central church body. American

Primative Society of Paterson v. Pilling, 24 N.J.L. 653

(Sup.Ct. 1855); Den v. Bolton, 12 N.J.L. 206 (Sup.Ct. 1831).

After the Watson decision, a church property dispute was

presented in Kelly v. McIntire, 123 N.J. Eq. 351 (Ch. 1938).

In Kelly, the Presbyterian Church in the United States of

America and one of its local member parishes became involved in a

doctrinal dispute. The local parish had declared its severance

from the parent church and repudiated the authority of the parent

church. In a suit brought by members of the local church "loyal"

to the parent church, the court held that "a congregation

belonging to a religious denomination and subject to the

constitution, faith and doctrines thereof, cannot use its

property for a purpose other than that sanctioned by the

denomination." Id. at 361. The court rested its ruling on

statutory provisions of this State relating to the acquisition,

holding and use of local church property. Rev. 1877, p. 959,

as amended by P.L. 1898, p. 397, 3 Comp.Stat., p. 4309;

P.L. 1881, p. 256, 3 Comp.Stat., p. 4312, § 12d. Reference

was also made to the statute regulating the incorporation of

local Presbyterian parishes. P.L. 1905, p. 254, 3

Comp.Stat., p. 4343, § 81. In addition, the court quoted

extensively from Watson and appears to have also relied on that

holding in determining the property dispute.

More recently, in St. John's Greek Catholic Church v. Fedak,

96 N.J. Super. 556 (App. Div. 1967), certif. den. 50 N.J. 406

(1967), a church property dispute involved a hierarchically

structured national church (Metropolia) and a local parish which

had never formally affiliated with the Metropolia but had

participated on a voluntary basis. It was held that the evidence

of relationship

Page 580

was insufficient to establish sufficient affiliation to make the

local parish an integral part of the Metropolia. St. John's,

however, stated that "[i]n the case of property belonging to a

particular ecclesiastical organization which is part of a larger

general church organization, a majority cannot secede from that

organization and transfer the property of the church to another

use." 96 N.J. Super. at 577.

Against this decisional background we consider the present

matter. The Protestant Episcopal Church in the United States of

America is a hierarchically structured organization which by

virtue of its constitution and canons exercises pervasive control

over its constituent parishes and missions. It is undisputed that

St. Stephen's was a member church of the Protestant Episcopal

Church and remained affiliated with the national church and

subject to hierarchical discipline and authority until the

present dispute.

In the absence of express trust provisions, we conclude that

the hierarchical (Watson) approach should be utilized in church

property disputes in this State. Only where no hierarchical

control is involved, should the neutral principles of law

principle be called into play. Here it has been established that

the Protestant Episcopal Church is a completely integrated

hierarchical body, the ecclesiastical determination of which

incidentally resolves the question of control over local church

property. This is dispositive of the case.

St. Stephen's Church was incorporated as an affiliated member

of the Protestant Episcopal Church. This incorporation has never

been changed and the local church organization and its property

are subject to the hierarchical authority of the parent church as

indicated in the constitutions and canon law of the national

church and its dioceses. Under the Watson rule, therefore,

plaintiffs were entitled to the relief sought.

However, even using the neutral principles of law approach, we

reach the same result. St. Stephen's, as heretofore noted, came

into existence under the 1829 statute relating to incorporation

of religious societies "worshipping according to the customs

Page 581

and usages of the Protestant Episcopal Church," as supplemented.

The latest supplement, L. 1901, c. 62, now N.J.S.A. 16:12-1

et seq.,[fn4] specifically provides in section 4, that the

sale, conveyance or mortgage of real estate belonging to an

incorporated parish of the Protestant Episcopal Church is subject

to the consent of the bishop of the diocese. St. Stephen's

recognized the authority of this statutory provision since it is

not disputed that when the parish decided to sell its old rectory

and place a mortgage on the new one in 1973, it sought and

obtained Diocesan approval. The constitution and canons of the

national church in Title 1, Canon 6, Sec. 3 require the same

consent. Under canon law of the Protestant Episcopal Church, the

Rector, Wardens and Vestrymen of a local parish must be members

of The Protestant Episcopal Church.

In addition, section 4 of Canon 6 of the national church,

adopted after this litigation commenced, now specifies that all

parish property is held in trust for the national church and the

diocese in which the parish is located. It is true that this

express trust provision was not a part of the written canons when

St. Stephen's decided to sever its relationship with the Diocese

and the national church. Nevertheless, it reflects established

customs, practices and usages of The Protestant Episcopal Church.

The basic dispute herein is unquestionably, doctrinal in

nature, the ecclesiastical determination of which incidentally

affects the control over local church property. Serbian, supra.

The critical fact is that title to the property remains in the

Rector, Wardens and Vestrymen of St. Stephen's Church in

Plainfield. St. Stephen's was and still is incorporated as an

affiliated member of The Protestant Episcopal Church. The Rev.

Mr. Graves has been ecclesiastically deposed as Rector of St.

Stephen's. The other individual defendants have disaffiliated

themselves from The Protestant Episcopal Church and thereby

automatically

Page 582

terminated their eligibility to hold office as Wardens and

Vestrymen of St. Stephen's. They lack standing to dispute the

hierarchical assertion of control over St. Stephen's church

property. In this connection the (Venerable Canon) Russell Abbott

Smith, an expert in the Canon Law of the Protestant Episcopal

Church, in his affidavit filed in the cause, after summarizing

the happenings at St. Stephen's Church, said:

Under the circumstances prevailing at Saint

Stephen's at the present time, it is impossible for

the orderly management of parish affairs to be

conducted. Those persons who claim to be Wardens or

Vestrypersons openly and avowedly have disclaimed

their allegiance to the Episcopal Church and now

embrace the faith of a new Church. Under all

canonical practices and traditions, these people are

not entitled to vote nor to hold office in an

Episcopal parish.

The individual defendants are free to disassociate themselves

from St. Stephen's and The Protestant Episcopal Church and to

affiliate themselves with another religious denomination. No

court can interfere with or control such an exercise of

conscience. The problem lies in defendants' efforts to take the

church property with them. This they may not do. In this regard

Watson stated the following:

[T]he appellants in the case presented to us have

separated themselves wholly from the church

organization to which they belonged when this

controversy commenced. They now deny its authority,

denounce its action and refuse to abide by its

judgments. They have first erected themselves into a

new organization, and have since joined themselves to

another totally different, if not hostile, to the one

to which they belonged when the difficulty first

began. Under any of the decisions which we have

examined, the appellants, in their present position,

have no right to the property, or to the use of it,

which is the subject of this suit. (emphasis added).

[20 L.Ed. at 678]

For the reasons stated, we conclude that the ruling in favor of

plaintiffs was correct in all respects and is hereby affirmed.

[fn1] The parties and the trial judge assumed that the

incorporation was had under the general statute governing the

incorporation of religious societies and congregations now

N.J.S.A. 16:1-1 et seq. However, the language of the

certificate of incorporation and the procedure used indicate that

the incorporation was had under "An Act to incorporate religious

societies, worshipping according to the customs and usages of the

Protestant Episcopal Church," Laws of New Jersey, Act of February

17, 1829, as supplemented. See "An Act to incorporate trustees of

religious societies," §§ 27-38, approved April 9, 1875; and as

supplemented by L. 1877, c. 56 and L. 1901, c. 62 (now

N.J.S.A. 16:12-1 et seq.)

[fn2] Under canon law of the Protestant Episcopal Church, an

inhibited minister is given six months to retract, or to declare

the falsity of the facts asserted in the certificate of

inhibition. If such retraction or declaration is not made, it is

the duty of the Bishop to depose the minister. See Title IV,

Canon 10 of The Canons of the Episcopal Church.

[fn3] Rev. Mr. Graves is no longer involved in this matter,

having left St. Stephen's and the Protestant Episcopal Church and

become a priest and pastor in another religious denomination in

New York. His affidavit filed in the cause states that he no

longer represents any interest in conflict with the interests

which the plaintiffs seek to protect.

[fn4] This statute is appended to the official copy of the

Constitution and Canons of The Protestant Episcopal Diocese of

New Jersey and is referred to as "governing the same."

SCHREIBER, J., dissenting.

At the heart of this case is a dispute between a central church

and members of a parish over the ownership and control of parish

property. The legal question is what is the proper methodology to

be applied to resolve that dispute. We are not being called upon

to solve a controversy between rival factions

Page 583

of the same congregation or a religious dispute between members

of a parish and a central church.

The First Amendment to the federal Constitution prohibits

Congress from making any "law respecting an establishment of

religion, or prohibiting the free exercise thereof. . . ." This

Amendment has been incorporated into the Fourteenth Amendment, so

that the states may not establish a religion or prohibit its free

exercise. See Cantwell v. Connecticut, 310 U.S. 296, 303, 60

S.Ct. 900, 903, 84 L.Ed. 1213, 1218 (1940). The

"establishment" and "free exercise" clauses complement each

other. See Abington School Dist. v. Schempp, 374 U.S. 203,

222, 83 S.Ct. 1560, 1571, 10 L.Ed.2d 844, 858 (1963). Thus,

courts may not support the tenets of any one religion and must

respect the right of every person to choose his own course with

reference to religious observance. To comply fully with these

propositions courts should apply neutral principles in deciding

controversies arising out of church disputes.

The Supreme Court has pronounced certain basic guidelines which

states must follow in answering church property questions. They

were summarized most recently in Jones v. Wolf, 443 U.S. 595,

99 S.Ct. 3020, 61 L.Ed.2d 775 (1979). The first is that civil

courts may not resolve church property disputes on the basis of

religious doctrine and practice. Id. at 602, 99 S.Ct. at

3025, 61 L.Ed.2d at 784. Accordingly, the Court has rejected

the "English approach" of resolving property disputes in

hierarchical churches. Under that approach, local church property

was impliedly held in trust for the general church so long as the

general church adhered to the tenets of faith and practice

existing at the time of affiliation by the local church. See

Presbyterian Church v. Hull Church, 393 U.S. 440, 443 n. 2,

89 S.Ct. 601, 603 n. 2, 21 L.Ed.2d 658, 662 (1969). If the

general church departed from those tenets of faith and practice,

the trust failed and ownership vested solely in the local unit.

Civil courts would necessarily be called upon to decide what the

religious tenets were and whether a meaningful change had

occurred. This decision-making would enmesh the courts in

questions of religious dogma, a prohibited area. Serbian E.

Page 584

Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710, 96

S.Ct. 2372, 2381, 49 L.Ed.2d 151, 163 (1976). Thus, it is

impermissible for civil courts to resolve property disputes in

this fashion. It follows that, when seeking to decide a

particular religious matter involving a hierarchical church,

courts must defer to the decision of the church's supreme

authority on that matter. Serbian E. Orthodox Diocese, 426

U.S. at 724-725, 96 S.Ct. at 2387, 49 L.Ed.2d at 171.

The second basic constitutional guideline is that states are

free to adopt any approach to adjudicate church property disputes

"`so long as it involves no consideration of doctrinal matters,

whether the ritual and liturgy of worship or the tenets of

faith.'" Jones v. Wolf, 443 U.S. at 602, 99 S.Ct. at 3025,

61 L.Ed.2d at 784 (quoting Md. & Va. Eldership v. Sharpsburg

Church, Inc., 396 U.S. 367, 368, 90 S.Ct. 499, 500, 24

L.Ed.2d 582, 584 (1970) (Brennan, J., concurring) (emphasis

added)). The Supreme Court has approved one method, the

application of "neutral principles of law." Jones v. Wolf, 443

U.S. at 602, 99 S.Ct. at 3025, 61 L.Ed.2d at 784. This

method relies on objective, traditional concepts of trust and

property law familiar to lawyers and judges. The analysis used is

that generally followed in private law. As applied in Md. & Va.

Eldership, the neutral principles approach resolved a local

church property dispute on the basis of the language employed in

the deeds, terms of the local church charters, state statutes

governing the holding of church property, and provisions in the

constitutions of the general church and of the Maryland and

Virginia Eldership concerning the ownership and control of church

property. The neutral principles of law analysis is completely

secular in its operation. Though it may involve examination of

some religious instrument, such as a church constitution, that

examination must be performed "in purely secular terms" without

relying "on religious precepts in determining whether the

document indicates that the parties have intended to create a

trust." Jones v. Wolf, 443 U.S. at 604, 99 S.Ct. at 3026,

61 L.Ed.2d at 785.

Page 585

The neutral principles of law approach "free[s] civil courts

completely from entanglement in questions of religious doctrine,

polity, and practice." Ibid. It is a method with which courts

are familiar, and contains the "peculiar genius of private-law

systems in general — flexibility in ordering private rights and

obligations to reflect the intentions of the parties." Ibid.

Despite these characteristics, the majority has chosen not to

apply the neutral principles of law methodology where a

"hierarchical" church is involved. It holds that when a

hierarchical organization exists, civil courts must defer to the

higher ecclesiastical authority in resolving a property dispute

between a local parish and the general church. Both the trial

court below and the majority rely on Watson v. Jones, 80 U.S.

(13 Wall.) 679, 20 L.Ed. 666 (1872), for this proposition. They

assert that Watson v. Jones established the rule that the

existence of a hierarchical church organization conclusively

establishes that a local property dispute must be resolved in

favor of the religious doctrine or tenet advocated by the central

church. Watson v. Jones does not stand for that broad

proposition, and, if it did, would violate the Establishment

Clause of the First Amendment. In Watson v. Jones, the dispute

arose within a local church when the central church body, the

General Assembly of the Presbyterian Church of the United States,

condemned slavery. The majority of the Walnut Street Presbyterian

Church of Louisville, the local church, sided with the central

body. The dissidents in the congregation did not. The issue

presented to the trial court was which set of trustees and elders

elected by competing factions of the Walnut Street church should

serve the congregation. The matter turned on the power of the

General Assembly to prescribe qualifications for local church

office and the question presented essentially concerned the

extent of a particular church's ecclesiastical authority. In that

context the Supreme Court formulated the principle of compulsory

deference by courts to decisions of ecclesiastical authorities in

hierarchical churches over religious matters which had been

committed to them. Watson v. Jones did not involve the right

of a local parish to secede from the central organization, taking

its property

Page 586

with it. This is the precise point which the majority herein

misses.

There have been occasions when the resolution of a doctrinal

controversy affected control of property. However, in those

situations the crucial subject matter in dispute was of an

ecclesiastical nature. If the central body has been authorized to

decide the ecclesiastical question, its determination would be

final and binding on the civil courts. Thus, in Serbian E.

Orthodox Diocese, suspension and defrockment of a bishop were

religious issues to be decided by ecclesiastical and not civil

tribunals. Resolution of the religious dispute incidentally

determined control of property because the bishop was the

principal officer of the corporation which owned the property.

However, the Court noted:

Thus, this case essentially involves not a church

property dispute, but a religious dispute the

resolution of which under our cases is for

ecclesiastical and not civil tribunals. [426 U.S. at

709, 96 S.Ct. at 2380, 49 L.Ed.2d at 163]

In contrast, in Jones v. Wolf, the majority of the local

parish sought to secede from the general church taking the local

property with them. The dissidents who were in the minority

sought a judicial declaration of their right to exclusive

possession and use of the church property. Thus, the central

issue projected was the right of the local church to withdraw its

property.[fn1] By applying neutral principles to resolve the

property question, the Jones v. Wolf Court recognized that the

answer to an underlying but separate ecclesiastical question by a

hierarchical body did not foreclose the civil court from

resolving the property dispute.

In this case, the core issue concerns control over the property

which is in the name of St. Stephen's. The complainants are the

Protestant Episcopal Church in the Diocese of New Jersey, its

bishop and the Trustees of Church Property of the Diocese. They

seek a declaration that all the real and personal property of St.

Stephen's is impressed with a trust in favor of the Diocese

Page 587

of New Jersey.[fn2] The plaintiffs claim equitable ownership and

control over the property. The court has not been requested to

resolve a dispute between two factions within the St. Stephen's

parish. None of the dissidents in St. Stephen's is a party to

this action. None has intervened.

Contrary to the majority's assertion, the dispute before us is

not "doctrinal in nature," ante at 581, even though it arose

as a result of controversies over church doctrine and practice.

None of the plaintiffs, the Diocese of New Jersey, the Trustees

of Church Property of the Diocese of New Jersey, and the Bishop

of the Diocese, has sought the ouster of the present wardens and

vestrymen of St. Stephen's Church. The plaintiffs do not seek to

transfer control of the parish property to a loyal group of

parishioners; nor do they seek to maintain an orthodox parish by

appointing a new rector. The Diocese is seeking to gain control

of the property for itself. Thus, unlike in Serbian E. Orthodox

Church, upon which the majority relies, the issue before this

Court is primarily one of property law: whether the Diocese has

equitable ownership and the right to control the property of St.

Stephen's Church.[fn3] The type of primarily religious dispute

that led to complete judicial deference in Serbian E. Orthodox

Diocese and Watson v. Jones is not present here.[fn4]

Page 588

Even if the question is projected as the majority suggests,

namely that when a hierarchical institution exists civil courts

must defer to ecclesiastical authority to resolve property

disputes, the Watson v. Jones rule must be applied consistently

with the principles contained in Jones v. Wolf. In Jones v.

Wolf, both the majority and dissent, unlike the majority in this

case, recognized that the hierarchical form of the church's

organization did not per se resolve an intra-church dispute

over control of church property.[fn5] Since a hierarchy could

exist as to

Page 589

ecclesiastical matters and not as to others, the first question

to be addressed according to the Jones v. Wolf dissent is,

"where within the religious association the rules of polity,

accepted by its members before the schism, had placed ultimate

authority over the use of the church property." 443 U.S. at

618, 99 S.Ct. at 3032, 61 L.Ed.2d at 794 (Powell, J.,

dissenting). The object of that inquiry is to determine whether

the local church has unreviewable authority to withdraw with its

property from the general church. The assumption that a local

church has necessarily given up the power to control its property

by affiliating with a hierarchical church is unsound. It assumes

the existence of a provision to that effect in the agreement that

in fact may not exist. Moreover, by not ascertaining who the

parties had agreed should decide the question of property control

in the event of a schism, the court might effectively contravene

the First Amendment. The court might then be compelling, without

consent of the owner, the appropriation of its property for use

by another for religious purposes. See "Church Property

Disputes," 31 Mercer L.Rev. at 577.

The majority in Jones v. Wolf points out that to ascertain

who has the authority to resolve the church property dispute

requires an examination of the polity and administration of the

church. In some cases this might not be difficult. If the locus

of control is ambiguous, however, a careful scrutiny of the

constitutions, canons, other documents, past practices and

customs, would be necessary. Such searching would constitute an

"`impermissible inquiry into church polity.'" Jones v. Wolf,

443 U.S. at 605, 99 S.Ct. at 3026, 61 L.Ed.2d at 786

(quoting Serbian E. Orthodox Diocese, 426 U.S. at 723, 96

S.Ct. at 2387, 49 L.Ed.2d at 170). As Justice Brennan wrote

in Md. & Va. Eldership, 396 U.S. at 369-370, 90 S.Ct. at

500, 24 L.Ed.2d at 584 (concurring opinion) (footnote omitted):

To permit civil courts to probe deeply enough into

the allocation of power within a church so as to

decide where religious law places control over the

use of

Page 590

church property would violate the First Amendment in

much the same manner as civil determination of

religious doctrine. Similarly, where the identity of

the governing body or bodies that exercise general

authority within a church is a matter of substantial

controversy, civil courts are not to make the inquiry

into religious law and usage that would be essential

to the resolution of the controversy. In other words,

the use of the Watson approach is consonant with the

prohibitions of the First Amendment only if the

appropriate church governing body can be determined

without the resolution of doctrinal questions and

without extensive inquiry into religious polity.

Reliance on Watson v. Jones in this case would involve just

such an impermissibly extensive inquiry into religious polity.

The parties have not identified any constitutional provisions

or canons that address the right of a local parish to withdraw,

what happens to its property when that occurs, or who is

authorized to resolve a property dispute when a local body

secedes. In the absence of clear expressions on these issues a

searching inquiry would have to made into the historical

practices and rules of the Protestant Episcopal Church in the

United States of America and the Protestant Episcopal Church in

the Diocese of New Jersey. (In fact, there is sharp disagreement

among experts on canon law and church history. One expert

testified in the companion St. Mark's case, Diocese of Newark v.

Burns, 83 N.J. 594 (1980), that parishes have the ultimate

control and may withdraw their property, while another testified

that they may not secede and take their property.) An inquiry of

this type and its resolution by a civil court would constitute an

"`establishment of religion' with a vengeance. . . ." Md. & Va.

Eldership v. Sharpsburg Church, Inc., 254 Md. 162, 175,

254 A.2d 162, 170 (Ct.App. 1969), dismissed for want of substantial

federal question, 396 U.S. 367, 90 S.Ct. 499, 24 L.Ed.2d

582 (1970).

The majority refers to only one canon in support of its

position, Title I, Canon 6, Section 3, which provides that no

body authorized by civil or canon law to hold real property for

any parish shall encumber or alienate the same without the

written

Page 591

consent of the Bishop and Standing Committee of the Diocese.[fn6]

Though indicating a measure of control over the local unit while

it is part of the hierarchy, that canon, like other provisions

governing a member local unit, would not be effective upon

disaffiliation. No reverter or other provision transfers the

property to the general church when no longer used in accordance

with the doctrine, discipline or worship of the Protestant

Episcopal Church in the United States of America. The measure of

control embodied in Title I, Canon 6, Section 3, does not

create an express or an implied trust in favor of the general

church.

Likewise, the constitution and canons of the national church

and the Diocese disclose nothing which "in purely secular terms"

provided that the St. Stephen's property was being held in trust,

expressly or impliedly. If anything, the diocesan canons indicate

a contrary intent.

Canon 17, Section 3, provides:

The title to all real estate and endowment funds of

a parish receiving financial assistance from the

Diocese for the support of the rector in accordance

with this canon, unless otherwise directed by the

Trustees of the Diocesan Foundation, shall be vested

in the Trustees of Church Property of the Diocese of

New Jersey, to be held by them in trust until such

time as the parish may again be self-supporting.

Canon 21, Section 8, reads:

The title to real estate, given to or purchased by

the Mission for Church purposes, unless otherwise

ordered by the Board of Missions, shall be vested in

the Trustees of Church Property of the Diocese of New

Jersey, to be held by them until such time as the

said property may be sold pursuant to Section 6 of

Canon 9, or until such time as the Mission shall

become duly incorporated as a Parish and admitted

into union with the Convention, when the title may be

transferred to the Church corporation if it shall so

elect. Mission Advancement, Inc. may be authorized by

the Trustees of the Diocesan Foundation to acquire,

mortgage, sell, lease, or otherwise deal with

property for mission purposes.

Canon 37, Section 4, Plan B(2)-Paragraph 4(a), referring to a

Parochial Chapel, states:

Page 592

The title to all real property shall be vested in

the Trustees of Church Property of the Diocese of New

Jersey.

These three canons exhibit an intent that under some limited

circumstances title to property shall be in the central church.

They also demonstrate that when property was to be vested in the

central church, provisions to that effect were made in clear and

unambiguous language. Indeed, absent financial indebtedness to

the Diocese, under Canon 17, Section 3, title to all parish real

estate is in the local unit. In light of the canons, the power to

control the financial and property affairs of the parishes

belongs virtually exclusively to the local body.

The Supreme Court in Jones v. Wolf suggested:

Through appropriate reversionary clauses and trust

provisions, religious societies can specify what is

to happen to church property in the event of a

particular contingency, or what religious body will

determine the ownership in the event of a schism or

doctrinal controversy. 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. [443 U.S. at

603, 99 S.Ct. at 3025, 61 L.Ed.2d at 785]

After this litigation arose and Jones v. Wolf was decided, the

national church modified Title I, Canon 6, Section 4, to provide

that all property of the local church is held in trust for the

general church. The church has thereby made it clear that the

withdrawing congregation is not entitled to the local church

property. This clarity is found by a secular approach and

safeguards civil courts from fostering the interests of one

religious group over another by engaging in a dialogue of

religious dogma or practice in violation of First Amendment

principles.

Jones v. Wolf recommended that property disputes be settled

by neutral principles of law. Completely secular in operation,

the method relies on objective, established concepts of trust and

property law. The local parishioners of St. Stephen's purchased

the land and buildings with their funds. Deeds to the properties

have always been in St. Stephen's. St. Stephen's has maintained

the property through the years. No trust in favor of the general

church can be found when the neutral principles of law are

applied to the facts. No instrument expresses that a trust,

Page 593

express or implied, has been created in favor of the general

church. Nothing can be found in St. Stephen's corporate charter

and nothing exists in the constitution of the general church

creating a trust, express or implied, in favor of the general

church. Following the precise instructions in Jones v. Wolf, I

am satisfied that no trust has been created in the local church

property.

This result is fair and just. St. Stephen's was organized as a

separate entity by people who believed in the Protestant

Episcopal Church. They and their successors advanced the funds to

purchase and maintain the land and buildings. St. Stephen's

voluntarily joined the Protestant Episcopal Church in the United

States of America. It has decided to withdraw from that

organization. In the absence of having dedicated its property to

that central body or having agreed that someone else would decide

in the event of a schism what would happen to its property, it

should be permitted to retain that property. Though there had

been some disagreement among the congregants (the vote was 44 to

8 to withdraw), the dissenters are not parties to or intervenors

in this action and apparently have acceded to the will of the

majority. At the time of the motion hearings before the trial

court, there were approximately 200 members in the parish, all of

whom supported the defendants.

I would reverse and remand.

For affirmance — Chief Justice WILENTZ and Justices SULLIVAN,

CLIFFORD and POLLOCK — 4.

For reversal and remandment — Justices PASHMAN, SCHREIBER and

HANDLER — 3.

[fn1] A secondary question involved resolution of the intrachurch

dispute between the two factions in the local church.

[fn2] The trial court's summary judgment order recited only that

control of all property of St. Stephen's be placed in the hands

of the Trustees of Church Property of the Diocese and that the

Rev. Stanwood E. Graves be evicted from the rectory and enjoined

from entering the church or parish house.

[fn3] See note 2 supra.

[fn4] The arguments made by counsel on the motion for summary

judgment, the exhaustive opinion of the trial court, the

Appellate Division opinion, and the briefs of counsel have not

addressed the problem in terms of the status of defendants as

wardens and vestrymen. This proposition has surfaced for the

first time in the majority opinion. The parties have not been

given the opportunity to develop a record or argue that issue. In

Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973),

we wrote:

It is a well-settled principle that our appellate

courts will decline to consider questions or issues

not properly presented to the trial court when an

opportunity for such a presentation is available

"unless the questions so raised on appeal go to the

jurisdiction of the trial court or concern matters

of great public interest." Reynolds Offset Co.,

Inc. v. Summer, 58 N.J. Super. 542, 548

(App. Div. 1959), certif. den. 31 N.J. 554 (1960).

I do note here, for example, that in connection

with this new issue the defendant wardens and

vestrymen were duly elected and acting as such when

the local parish corporation held its meeting to

disaffiliate, that no specific canon has been brought

to the court's attention empowering the central

church to remove wardens and vestrymen from their

offices and declare them vacant. Even if such a power

exists, there is no showing that it has been

exercised. The majority quotes from an affidavit of

the Venerable Canon Russell Abbott Smith to the

effect that the wardens and vestrymen are not

entitled to hold office. This conclusory statement

conflicts with the affidavit of the Senior Warden

Donald S. Moore that he continues to have that status

and has "never been notified by plaintiffs that they

no longer consider me to be one of the wardens of the

parish." See American Primitive Society v. Pilling,

24 N.J.L. 653 (Sup.Ct. 1855), holding that duly

elected trustees of the local church corporation did

not lose their offices when the congregation voted to

disassociate from the central church, that the local

church corporation continued to exist, and that the

trustees remained in their offices until ousted.

Moreover, the question would remain whether the

property placed in the name of the local corporate

entity for the membership belongs to the membership

when it disaffiliates from the central institution.

[fn5] A similar recognition may be found in New Jersey opinions

which dealt with hierarchical churches. In Vargo v. Vajo,

76 N.J. Eq. 161 (Ch. 1909), secession was sanctioned where the

hierarchical polity applied to ecclesiastical matters but the

jurisdiction as disclosed in the church constitution did not

"include the management and control of the church property. . .

." Id. at 170. St. John's Greek Catholic Hungarian Russian

Orthodox Church v. Fedak, 96 N.J. Super. 556 (App. Div. 1967),

certif. den. 50 N.J. 406 (1967), held that the parish had never

surrendered control over local temporal affairs including the

authority to secede.

The comment "Church Property Disputes: The Trend and the

Alternative," 31 Mercer L.Rev. 559, 575 (1980) ("Church

Property Disputes") points out that membership in a hierarchical

organization does not necessarily mean that the local church

cannot be congregational as far as control of local church

property is concerned.

[fn6] To a similar effect, see N.J.S.A. 16:12-4 which, like

Title I, Canon 6, Section 3, indicates control over property only

while the local unit is part of the general hierarchy.

Page 594