All Saints Church Waccamaw – Abuses of the Statute of Uses?

By Eric Von Salzen

In the recent case of All Saints Church Waccamaw v. Protestant Episcopal Church, the South Carolina Supreme Court held that All Saints Church of Waccamaw had lawfully withdrawn from the Episcopal Church and the Diocese of South Carolina and taken its property with it.

As a real estate lawyer, I found this a fascinating case. As a loyalist Episcopalian, I found it disturbing.

The history of All Saints parish goes back to 1745, when Percival and Ann Pawley transferred some 60 acres of land to George Pawley and William Poole “forever in trust for the inhabitants on Waccamaw Neck for use of a chapel or church for divine worship of the Church of England established by law.” All Saints Parish was established on this land in 1767 and has conducted services there ever since.

In August 2003, “prompted by events that are not relevant here,” the Court’s opinion says (but I suppose we can guess), the congregation appointed a committee to recommend whether it should leave the Episcopal Church and the Diocese, and by a two-thirds vote in January 2004, the congregation voted to amend its corporate charter to separate from the larger church. This being America, lawsuits followed.

The state Supreme Court faced two issues. Did the parish own its real estate (so it could take the property out of the Episcopal Church) or did it hold it in trust for the Diocese or the national church? And did the congregation have the corporate power to take the parish out of the Episcopal Church? The trial court had answered both questions in the negative, that is, in favor of the Episcopal Church and Diocese. The Supreme Court reversed and decided in favor of the break-away parish on both issues.

First, the Court had to decide what rules governed these issues. When civil courts are called on to decide disputes involving churches, the courts must tread carefully. Under the First Amendment to the U.S. Constitution, the government may neither “establish” a church nor deny any person the right to freely exercise his/her religion. This means that courts must steer clear of resolving religious disputes on religious grounds – the Court could not decide this case, for example, by determining which side of the dispute was more consistent with Episcopalian doctrine.

The U.S. Supreme Court, according to the South Carolina Supreme Court, has said that there are two valid approaches that the civil courts can use in deciding church disputes: the “deference approach” and the “neutral principles of law approach.” The South Carolina Court described the deference approach as follows:

Under this approach, a court must only determine whether a church is “congregational” or “hierarchical” in nature. If the church is congregational, the court will resolve the dispute by deferring to a majority of the congregation. However, if the congregation at issue is part of a hierarchical organization, the court will defer to the decision of the ecclesiastical authorities.

Under the neutral principles approach, however, the decision does not depend on the organizational structure of the church.

Rather, the neutral principles of law approach permits the application of property, corporate, and other forms of law to church disputes.

Which approach you take in this case is going to determine the outcome: If you use the deference approach, the Diocese and the national church win; if you use the neutral principles approach, the parish wins (for reasons that I’ll get to in a minute). According to the South Carolina Supreme Court, the U.S. Supreme Court has ruled that a state can adopt either approach. This seems strange to me, but I’m not a First Amendment lawyer. If anyone reading this knows anything about this issue, please comment. Also according to the South Carolina Supreme Court, it had adopted the neutral principles approach in a previous case in 1996, and would take that approach in this case.

To apply neutral principles to the property dispute, you start with the deeds on record, of which there were two, one from 1745 and one from 1903. The 1745 deed conveyed the property to George Pawley and William Poole as trustees for the benefit of the inhabitants of Waccamaw Neck. Under an old English law called the Statute of Uses, enacted by Parliament in the reign of Henry VIII, where land is conveyed to one party “for the use of” another party, the title is treated as though it was conveyed directly to the second party. This statute has been incorporated into the real estate law of most U.S. states, including South Carolina. If George Pawley and William Poole had been “real” trustees, with actual duties to perform with respect to the management of the land, the Statute of Uses would not have applied, but the South Carolina court concluded that they weren’t “real” trustees – they had no duties to perform other than holding nominal title to the land - so the Statute of Uses applied. The Court also held that “inhabitants of Waccamaw Neck” meant All Saints Parish, so the 1745 deed gave the parish title to the land in question.

The other deed was issued in 1903, from the Diocese to the parish, and transferred to the parish any interest that the Diocese might have in the parish’s property. With that, I’m not sure the Court even needed to bother with the Statute of Uses (but that’s the sort of arcane material that lawyers and judges can’t leave alone).

So applying “neutral principles” of real estate law, the parish owns its real estate, and the Diocese and the national church have no interest in it. When the Diocese amended its canons in 1987 to declare that all parishes held their land in trust for the Diocese and the national church, and in 2000 recorded notice in the land records to that effect, those actions had no effect because the Diocese had no ownership in the land, and you can’t declare a trust over property that you don’t own.

As for the second issue, the authority of the congregation to amend its charter and withdraw from the Episcopal Church and the Diocese of South Carolina, under neutral principles that becomes a question of corporate law. The parish was incorporated as a non-profit corporation under South Carolina law. It adopted its charter amendment withdrawing from the Episcopal Church in accordance with the non-profit corporation act. Nothing in the articles of incorporation of the parish corporation gave the Diocese or the national church any say in the manner. Although at canon law the parish might be subordinate to the diocese, as a matter of corporate law it was an independent corporation, not a subsidiary.

Thus, applying neutral legal principles, the state Supreme Court held that All Saints Church Waccamaw properly withdrew from the Episcopal Church and could take its real estate with it.

When I was in law school, a classmate and I wrote a song about the ancient doctrines of land law that we were studying. It was set to the tune of Woody Guthrie’s This Land Is Your Land, and the first verse went like this:

This land was your land, but now it’s my land
Thanks to a writ of novel disseisin [*]
And through abuses
of the Statute of Uses
Your land will all belong to me.

[* Don’t Ask.]

As the Episcopal loyalists who used to be congregants of All Saints Church Waccamaw look for a new church home, they may feel that they’ve been abused by the Statute of Uses.

South Carolina Ruling Implications

A recent ruling in South Carolina between the Diocese of South Carolina and TEC and a breakaway parish seems to have been in favor of the breakaway group. The Episcopal Cafe writes:

In the case of All Saints Parish Waccamaw v. The Protestant Episcopal Church, the Supreme Court of South Carolina ruled today against the Episcopal Church and the Diocese of South Carolina. The court said that All Saints Parish is free to separate from the Episcopal Church and the Diocese of South Carolina and join with the Church of Rwanda and the Anglican Mission in America.

I read the ruling, and from what little I understand of its legal language, it seems that this case may have broader implications for many of the churches/parishes currently in the Diocese of South Carolina. I wonder, indeed, if this may pave the way for the Diocese itself to leave the Episcopal Church and take many properties along with them -- if such a decision comes to be made one day.

Presumably, such will be appealed by the Diocese and/or The Episcopal Church all the way to the United States Supreme Court -- as TEC will have to do in the Virginia cases as well.

A Letter from the President of the House of Deputies

Sept. 14, 2009

Dear Deputies and First Alternates,

It has been two months since I brought the gavel down to close the House of Deputies at the 76^thGeneral Convention in Anaheim, but the remarkable spirit of those ten days has stayed with me. During our time together in the House of Deputies, we worshipped and prayed, shared some very deep feelings about the controversial issues that confront our Church, learned new skills through the Public Narrative Project, and acted on an extensive legislative agenda that will shape our Church for decades to come. Watching the sensitive, respectful way that deputies went about their business, observing the efficient committee work, and listening to the well-informed debate made me appreciate once again the wisdom of our founders, who determined that all orders of ministry should share in the governance of our Church.

We are living in difficult times, but the members of the House of Deputies have indicated that they are ready to make even stronger commitments to the work of God’s church. It is my hope that we can bring this new energy to bear on a new set of challenges. During this triennium, we must do more with less. We must determine how our interim bodies—the Commissions, Committees Agencies and Boards on which clergy and lay people have extensive representation—can continue to play a vital role in the governance of the Church. We must create ways to continue essential mission initiatives, even without the Church Center offices that once sustained this work. And we must begin to formulate our response to the Anglican Covenant once the final draft becomes available.

For my own part, I would like to begin the new triennium with three announcements:

1. In response to our financial situation, I have decided to reduce the size of my Council of Advice from 14 members to 8. Each member of the council will have a specific portfolio or project and will be supported by his or her own network of informal advisors whom I will call upon from time to time as the need arises. I believe this is the most cost-effective way for me to remain well-informed and advised.

2. This week I am sending letters to various lay and clergy leaders throughout the Church inviting them to serve on the Commissions, Committees, Agencies and Boards that play an essential role in the governance of the Church. In extending these invitations I paid special attention to balancing the new energy and insights of an emerging cohort of lay and clergy leaders with the experience and institutional memory of veteran deputies. Once the invitees have responded and rosters are complete, they will be posted on the General Convention Office Web site.

3. Circumstances including our impending consideration of the Anglican Covenant and the need to sustain the work of our CCABs in the face of reduced budgets suggest a need to speak clearly and convincingly about the distinctive way in which authority is exercised in our Church. To that end, I am appointing the House of Deputies Study Committee on Church Governance and Polity to examine and explain the history, theology, political structure and practical realities of the ways in which we believe God calls us to govern the Church. This group, whose membership I will announce shortly, may also make recommendations to the next General Convention on strengthening our self-understanding.

After this General Convention, I am more convinced than ever that it makes little sense to speak of governance and mission as two different things. Our Church is able to enlist the energy and talent of every member in building God’s Kingdom precisely because we make room for the Spirit-seeking wisdom of all orders of ministry in the governance of our Church. The relationship is symbiotic, it is a relationship of UBUNTU. I urge you to remember that deputies are deputies even when General Convention is not in session. Please remain involved in the life of your congregation and your diocese, and don’t hesitate to inform me of any developments you find significant. I am always available to you at banderson@episcopalchurch.org. Soon I will reactivate the HOD communications tool in the form of the deputy online forum that served us so well prior to General Convention. We will use it as a place for us to share information and opinions about matters pertaining to our work together as the House of Deputies on behalf of the Church.

As always, you are encouraged to share this communication with all the alternates of your deputation and other people of your diocese and beyond.

Thank you again for your participation in an inspiring General Convention...

Bishop-elect of Georgia

The Rev. Scott Benhase was recently elected on the second ballot by the Diocese of Georgia. He has served for just a short while as rector of St. Alban's in Washington, D.C., and before that here in North Carolina at St. Philip's in Durham. Scott is a very smart fellow, and one who will bring a great deal of solid learning and thinking to the House of Bishops -- if consents are forthcoming (and I cannot imagine why they would not be.)

Here are some of his answers to questions posed before the election by the Diocese of Georgia:

1. What are you passionate about in your ministry, in your personal life, and in the world around you?

I am passionate about leading congregations that begin to see God’s vision for the creation in the Gospel of Jesus, embrace that vision, and then shape their work to be congruent with that vision. The spiritual energy created by such work is contagious. Once a significant number of people in a congregation begin working together for the Gospel (and not for their own agendas) then miraculous results happen. I have seen this happen in each parish I have served and I am humbled by it. It is a holy ground experience. This does not happen every day and my experience tells me it takes years of patient work to see it happen, but because I know it is possible, I remain passionately committed to the Church’s ministry. Some might see the Church as inconsequential to what God is up to in the world. I disagree. The Church is at the heart of what God is up to.

In my personal life I am passionate about my wife, Kelly, and our children. Kelly is just amazing. I am more in love with her now than when we were married 25 years ago. She is my rock and a special blessing from God. Our children are smart, funny, and becoming adults and it is quite entertaining (not all the time, mind you) to watch that process. They are good young adults who care deeply about God’s world. Their spiritual and moral centers are strong.

And I am also passionate about God’s world, even though some might think me naïve, or at least, not paying attention. That may appear pollyannish to some given all the blood in the ink of the headlines. I always try to see the world as God sees it, but that doesn’t mean I’m in denial about the world’s reality. God has never been in denial about the world God created. The cross of Jesus is God’s statement of acceptance of the world as it is. And the resurrection of Jesus is God’s declarative statement that the world (as it is) is unacceptable to God. The cross and resurrection help us all keep God’s big picture in mind, which means we can say with Dame Julian of Norwich that “all things shall be well, and all manner of things shall be well.”

2. Please elaborate on an occasion or experience, during your ministry, of significant personal growth or change.

As Rector of St. Paul’s Church, East Cleveland in 1986, the Bishop gave me the charge of transforming the parish from an older white congregation to one that was predominantly black, reflecting the composition of the neighborhood. The congregation 20 years earlier had been over 1000 and all white. By 1986 the city neighborhood had completely changed and the congregation had dwindled to 40 mostly elderly white folk. My first day the Treasurer placed the parish checkbook on my desk and said: “Goodbye.” The parish was in financial free fall. I had to terminate the secretary and organist because we did not have the funds to pay them. Nothing I had ever trained for or experienced prepared me to deal with this situation. A few days later, six members (most of whom were over 65) came into my office and said: “We love God and we love our Church. We want to be a witness in this community. Whatever you need us to do to make that happen, just let us know.” I was amazed at their selflessness and their willingness to give up power and control for the sake of the Gospel and the witness of the Church. And they were true to their word. I have never met a group of people who were so intentionally committed to the Good News and less concerned with their own agendas. Their act and witness made possible the change and growth of the parish. For the next five years, we became a predominantly black parish. The white leadership humbly took a support role and worked diligently with me to build up new leadership within the parish.

My experience there transformed me personally and taught me a lot about my leadership role in the Church. In order to lead, people have to be willing to follow. In order to follow, people have to trust you and share a consensus with you about where we are headed. And then, we all need to stay focused on the essentials of our shared vision and avoid private agendas. When that happens, the church flourishes. Because this experience happened to me so early in my priesthood, it has stayed with me and been a guide for my leadership in the Church since.

3. What are the touchstones in your faith that will guide your responses to the issues now facing-some would say threatening-the Episcopal Church and the world-wide Anglican Communion?

I’m grounded by a humble faith in Jesus Christ as Lord & Savior of the world. Because Jesus is Lord and God is sovereign, I believe it is not my role to try to manipulate outcomes, especially during the current unpleasantness. Yes, it is messy now, but God is giving us an opportunity. This is a challenging time in the Church and culture. We are experiencing a massive shift. The “modern world” has given way to the “post-modern world.” People are reacting to this change differently. Some are resisting it at all costs. They have drawn a line in the sand and said: “no more.” Others are all too eager to adopt whatever the culture offers with no critical perspective. Still others are just plain stressed out by change.

Like everyone else, we Episcopalians are along for this ride. But we can bring something important to the public square as our culture endures this sea change. And this is where my personal practice of faith guides me. We can live into our common future by being more Elizabethan, that is by helping one another develop a capacity to attend to one another’s differences with a spirit of love (that’s the Anglican Via Media, that Queen Elizabeth helped create). This may be the most important call God is giving us as a Church right now: to stand between the virulent fundamentalists (no matter their religious stripe) and the cultured despisers of religion by witnessing to the reconciling love of Jesus.

I have no illusions about how challenging this is. It will mean that we will have to take seriously what it means to be people grounded in the Gospel. Such a call will have less to do with just trying to be nicer to strangers or more understanding of those who disagree with us. Rather, such a call from God will ask us to wade deep into troubled waters with both friend and stranger.

That’s a Church I want to belong to: a Church that takes Jesus seriously when he teaches us about love for enemies, forgiveness in order to be forgiven, and hospitality to the stranger. Being a disciple of such a Lord will be the hardest work we will ever do. Of course, the alternative for us is forget our Anglican roots and identity, hunker down, and become privatized in our religion; doing our religious ritual on Sundays and trying to pretend that what’s happening around us will go away if we just wait it out. We have the opportunity to be witnesses to a different way of being Christian: one that takes discipleship in Jesus seriously, but also one that is open to the new things the Holy Spirit is up to in the world. My hunch is there are a lot of Georgians who think they have only two choices: adopt the fundamentalist agenda hook, line, and sinker or reject Christianity as being irrelevant. Wouldn’t it be compelling to show them a different way of following Jesus?

Never Forget