Jones v. Wolf

PETITIONER:R. W. Jones, Sr., et al.
RESPONDENT:Charles T. Wolf et al.
LOCATION:Vineville Presbyterian Church

DOCKET NO.: 78-91
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: Supreme Court of Georgia

CITATION: 443 US 595 (1979)
ARGUED: Jan 16, 1979
DECIDED: Jul 02, 1979
GRANTED: Oct 10, 1978

ADVOCATES:
E. Barrett Prettyman, Jr. – for petitioners
Frank C. Jones – for respondents

Facts of the case

Vineville Presbyterian Church was organized in 1904 and first incorporated in 1939. Its property was purchased using funds contributed entirely by local church members. The year it was organized, Vineville was established as a member of the Augusta-Macon Presbytery of the Presbyterian Church in the United States (“PCUS”). Under the PCUS’s hierarchical structure, the actions of the government of a local church were subject to the review and control of the higher church courts: the Presbytery, Synod, and General Assembly. The powers and duties of each court were set forth in the constitution of the PCUS, the Book of Church Order.

On May 27, 1973, 164 members of Vineville’s congregation voted to separate from the PCUS and join the Presbyterian Church in America; ninety-four members opposed the resolution. The Augusta-Macon Presbytery appointed a commission to investigate and resolve the dispute. This commission eventually ruled that the minority faction at Vineville was the true congregation of Vineville, withdrawing all authority from the majority faction, which took no part in the commission’s inquiry.

The minority faction brought a class action in state court, seeking declaratory and injunctive orders establishing their right to exclusive possession and use of Vineville’s property. The trial court, relying on Georgia’s “neutral principles of law” approach to church property disputes, found for the majority faction. The Supreme Court of Georgia affirmed the ruling, holding that the trial court correctly applied Georgia law and rejecting the minority faction’s claims under the First and Fourteenth Amendments.

Question

Did the First Amendment require the district court to defer to the Augusta-Macon Presbytery commission’s ruling that a minority faction constituted the “true congregation” of Vineville Presbyterian Church?

Warren E. Burger:

We’ll hear arguments next in Jones against Wolf.

Mr. Prettyman, you may proceed whenever you’re ready.

E. Barrett Prettyman, Jr.:

Mr. Chief Justice and may it please the Court.

I’m Barrett Prettyman, Jr. and I represent the petitioners in this case who in turn represent a class claiming to be the true congregation of the Vineville Presbyterian Church in Macon, Georgia.

Since 1904, that church has been a member of the Augusta-Macon Presbytery which in turn is a part of the Presbyterian Church in the United States which I will call PCUS in shorthand for the purposes of this argument.

As this Court noted in the Hull case and as the trial court held in this case, PCUS is a hierarchal church.

It has an ascending order of judicatories beginning with the local church session made up of the minister and its elders then proceeding up to the Presbytery which includes ministers and elders from a number of churches and then the Synod which includes a number of Presbyteries and finally, the General Assembly, the single group that is the highest court and represents all the churches under PCUS.

Each of these bodies is called a Church Court and each has the power under the PCUS constitution to review and overrule the actions of the court below it.

Moreover, each can appoint a commission to act in its place —

William J. Brennan, Jr.:

May I ask Mr. Prettyman.

That means that the session is the court of first instance, is that it?

E. Barrett Prettyman, Jr.:

I’m sorry.

William J. Brennan, Jr.:

The session is the court of first instance?

E. Barrett Prettyman, Jr.:

Yes, sir.

William J. Brennan, Jr.:

And that’s composed of?

E. Barrett Prettyman, Jr.:

That is composed of the minister and elected elders of the local church.

Now, each of these courts can appoint a commission to act in its place and to report to it and every member, this is important, every member who joins PCUS in any of its churches takes a vow or an oath to be bound by the PCUS structure and constitution which is principally embodied in the Book of Georgia — Church Order which is part of the record in this case.

Back in May 1973, certain members voted at a meeting, 164 — oh, I’m sorry, 165 to 94 to adopt the resolution separating the Vineville Presbyterian Church from the Augusta-Macon Presbytery and from PCUS and to be an independent church.

The respondents here represent a class made up of that majority vote and my clients, the petitioners represent a class of the minority in that vote.

The majority struck the minority members’ names from the roles and refused them to use — to let them use the church property as a unit of PCUS.

And the majority subsequently joined the Presbyterian Church in America which is an entirely separate group totally unrelated to PCUS.

The majority also notified the presbytery of PCUS of their action and the minister wrote to the presbytery relinquishing his membership in the denomination.

I might add here that all of these facts had been stipulated.

The presbytery appointed a commission as it had a right to do under its constitution to investigate this situation which it did.

And the commission made three basic findings.

First, it found and declared that those members of the Vineville Presbyterian Church who held to their original vows and did not renounce their affiliation with PCUS were the true congregation of the church.

Secondly, they withdrew all authority from the minister and officers who agreed to the statement of withdrawal.

And finally, it found that the church session of the Vineville Presbyterian Church was unable to act.

It did that because that gave the power to not only make these findings but made it certain further suggestions to the Presbyterian.

William J. Brennan, Jr.:

Mr. Prettyman, assume that the resolution had been adopted unanimously, the May resolution, what is your view as to what the status of the ownership of the church would have been then?

E. Barrett Prettyman, Jr.:

The unanimous vote in my view Your Honor would have had no effect and it has been so held in various state courts.

There was a —

John Paul Stevens:

And who would have owned the church then?

E. Barrett Prettyman, Jr.:

Then the — under the constitution, it would have reverted to the presbytery itself.

William H. Rehnquist:

Mr. Prettyman, supposing that the commission appointed by the — is it — was the possession you’re referring to that made these three findings?

E. Barrett Prettyman, Jr.:

That — that’s the commission appointed by the presbytery.

William H. Rehnquist:

The commission appointed by the presbytery had a member who was financially interested in the outcome of this particular dispute.

And the Book of Order nonetheless provided that he was not disqualified but the State of Georgia had a general rule that in all voluntary associations, it would enforce their bylaws except requiring that any member to have sit in a private adjudication like this should not have a financial interest in the outcome.

Would you say that the State of Georgia in a case that was perhaps involving the ought lodge would be prevented from applying that?

E. Barrett Prettyman, Jr.:

The question of where a — what happens when a church commission acts improperly is one that is somewhat up in the air as a result of this Court’s decision.

You will recall originally back in Gonzales, the rule was that if there was fraud collusion or arbitrariness, the courts could look into it.

William H. Rehnquist:

That wasn’t really my question.

I’m assuming that the church counsel acted entirely properly.

E. Barrett Prettyman, Jr.:

I thought you were suggesting that somebody had a financial interest in the outcome.

William H. Rehnquist:

Well, but I’m also assuming that the Book of Order says that’s no problem.

E. Barrett Prettyman, Jr.:

Well, if the Book of Order says that’s no problem, I — my own view is that a civil court cannot look into that under the ruling under the Serbian.

William H. Rehnquist:

Even though with respect to all other voluntary associations the state can apply its rule that says no voluntary association can afford that or can apply that sort of rule.

E. Barrett Prettyman, Jr.:

That’s correct but I must —

William J. Brennan, Jr.:

I gather that unless the situation falls within the Gonzales fraud or collusion.

E. Barrett Prettyman, Jr.:

Exactly.

William J. Brennan, Jr.:

Otherwise —

E. Barrett Prettyman, Jr.:

Exactly.

That’s what you said in Serbian.

You in effect eliminated the arbitrariness standard and said that you could not go behind the church rulings.

But I want to emphasize very strongly that that’s not this case because here, there has at no point than any challenge to the commission’s ruling and in fact, I think your job is made much easier by the fact that the respondents have admitted that the PCUS does have authority to determine the true denomination of the church.

Byron R. White:

When you tell us what basis you have for saying it’s the property follows the denomination.

I’m sure of that —

E. Barrett Prettyman, Jr.:

I will tell you what Your Honor, I’m sorry.

Byron R. White:

What basis you have for saying that the property follows the true congregation.

E. Barrett Prettyman, Jr.:

Yes.

E. Barrett Prettyman, Jr.:

Well, that’s based on the constitution of PCUS and the fact that it allows commissions to be appointed to determine true denominations.

Byron R. White:

Well, I know the true congregation but you determine who the true congregation is but why does that determine the ownership of the property?

E. Barrett Prettyman, Jr.:

Everyone in this case agrees Your Honor that the title to this property is in certain trustees who hold it for the benefit of the church which is made up of the congregation so that the congregation owns this property —

Byron R. White:

Would you think the —

E. Barrett Prettyman, Jr.:

— and consequently, the only question is who is the congregation?

Byron R. White:

And then — why did the Supreme Court of Georgia disagree there?

E. Barrett Prettyman, Jr.:

Well, the Supreme Court of Georgia quite frankly misunderstood the argument in this case and I’ll be very candid.

I think the respondents have to.

The Supreme Court of Georgia thought that this was the Hull case.

And in Hull, it was argued that there was an implied trust in favor of the mother church.

The mother church was a party in that case.

The mother church is not even a party in this case although it is agreed to be bound by the result.

And in that case, it was argued both in the Georgia Courts and in this Court that there was an implied trust in favor of the mother church.

This Court rule as you recall that the problem with the implied trust was that it incorporated the doctrine as you couldn’t depart from church doctrine when you struck that down.

When it went back to the Georgia courts they said, “Well, if we’re going to strike down part of our implied trust, we’ll strike it all out and there is no implied trust”.

But the courts below treated this case as if it was an implied trust case.

If you look at the complaint, you will find nothing about an implied trust.

Harry A. Blackmun:

May I get to something perhaps more direct.

E. Barrett Prettyman, Jr.:

Sure.

Harry A. Blackmun:

Now, what about the title documents?

E. Barrett Prettyman, Jr.:

The title documents —

Harry A. Blackmun:

But look it — may I just ask.

E. Barrett Prettyman, Jr.:

Sir?

Oh, excuse me.

Harry A. Blackmun:

Exhibit G, is that a sample of all the title documents involved here?

E. Barrett Prettyman, Jr.:

All of the title documents except one place the property in the names of trustees.

Harry A. Blackmun:

Well, I’m reading here.

Present trustees for Vineville Presbyterian Church and their successors in office as such trustees.

E. Barrett Prettyman, Jr.:

Yes.

Harry A. Blackmun:

Is that the way all the members —

E. Barrett Prettyman, Jr.:

That’s typically except one.

There is one that gave the church property directly to the church —

Harry A. Blackmun:

Now, in other words —

E. Barrett Prettyman, Jr.:

Of course the property directly to the church but the others all gave it to trustees and virtually all that immunes the word —

Byron R. White:

Who the trustees for?

E. Barrett Prettyman, Jr.:

Pardon me.

Byron R. White:

Do any of the deed say who the trustees hold for?

E. Barrett Prettyman, Jr.:

Yes, the deed say normally say for the use, benefit and behoove of the congregation, of the church which of course —

Byron R. White:

Of the church?

E. Barrett Prettyman, Jr.:

Of the church which of course is the congregation.

William J. Brennan, Jr.:

Well, I don’t find that permissible.

Byron R. White:

Well, I don’t know.

I just wondered if the church wouldn’t be deemed that group of people who within the corporation manage to control it.

E. Barrett Prettyman, Jr.:

Well, under Section 2-3 of the Book of Church Order, it reads that visible church catholic includes the local congregations or particular churches.

This is in accord with scriptural teaching.

In other words, it is a part of the religious belief of this organization as set forth in its constitution that the congregations and churches are an integral part of PCUS and that is what the members vow to, swear to when they become members of the church so they will follow that.

William J. Brennan, Jr.:

What if that state law simply said that in churches in taking property shall take the property in the name of the religious corporation and that’s the end of it and whoever controls a religious corporation controls the property.

Would you think that would be invalid?

E. Barrett Prettyman, Jr.:

No, not necessarily because here, that would follow what happens here.

The trustee —

William J. Brennan, Jr.:

Yes, but you have to put in some power in them in the presbytery to overrule the majority — the rule of majority rule inside of the corporation.

E. Barrett Prettyman, Jr.:

Well, Your Honor, there are all kinds of — there are at least six different provisions in here that in my judgment gives the presbytery power to say who the congregation is.

William J. Brennan, Jr.:

But may I get back a moment bit Mr. Prettyman —

E. Barrett Prettyman, Jr.:

Sure.

William J. Brennan, Jr.:

There was a religious corporation organized here, was there not?

E. Barrett Prettyman, Jr.:

Yes.

It was a corporation.

That is correct.

William J. Brennan, Jr.:

A corporation.

E. Barrett Prettyman, Jr.:

Organized in 1950.

William J. Brennan, Jr.:

Now — and it had a 35 year life.

E. Barrett Prettyman, Jr.:

Yes, sir.

William J. Brennan, Jr.:

And the — it — that 35 years expired in — when was it, 19 —

E. Barrett Prettyman, Jr.:

Well, I forget the date but there a lapse of years because the church —

William J. Brennan, Jr.:

Alright.

E. Barrett Prettyman, Jr.:

— I didn’t realize it had —

William J. Brennan, Jr.:

Right and the as I understand it, there was a petition for we incorporate.

E. Barrett Prettyman, Jr.:

That’s correct and that was granted.

William J. Brennan, Jr.:

And it was granted and that gave it another 35 years.

E. Barrett Prettyman, Jr.:

That’s correct.

William J. Brennan, Jr.:

And that expired in 1970.

E. Barrett Prettyman, Jr.:

I —

William J. Brennan, Jr.:

As the entire

E. Barrett Prettyman, Jr.:

I was on the impression that the church is presently incorporated Your Honor.

William J. Brennan, Jr.:

Oh, that’s — so I can’t find in the record.

That’s what —

E. Barrett Prettyman, Jr.:

Well, I —

William J. Brennan, Jr.:

— I’ve been looking for.

E. Barrett Prettyman, Jr.:

I — I can’t account to that.

William J. Brennan, Jr.:

And my question was who does it on the title now, is there — if there’s no longer a corporation?

E. Barrett Prettyman, Jr.:

Oh, I understand that under Georgia law, corporations are not perpetual.

That’s the reason that it was —

William J. Brennan, Jr.:

Oh, I see.

In terms —

E. Barrett Prettyman, Jr.:

I’ve been advised by —

William J. Brennan, Jr.:

— of —

E. Barrett Prettyman, Jr.:

— the Georgia counsel.

Potter Stewart:

— documented record indicate it had a 35 of your life.

E. Barrett Prettyman, Jr.:

No.

Apparently, you do not need to keep reincorporating now and that’s the reason that the church is presently considered incorporated.

E. Barrett Prettyman, Jr.:

And as — and as a matter of fact, the trial court has so referred to it and the commission and so forth treated the court as an incorporated court.

Potter Stewart:

Now, that petition for reincorporation, the 1938 one, wasn’t it?

That had a provision in it and whether petitioner show further that they are the successors of the original corporation that they have been duly authorized by a resolution of the session of said church.

We said that session is the court of first instance in the hierarchy.

E. Barrett Prettyman, Jr.:

Yes.

The sesion is elected by the —

Potter Stewart:

In which has vested the legal supervision of the affairs of said church to make this application for a vital and renewal said charter as it will appear from the duly certified resolution of the session of the church.

E. Barrett Prettyman, Jr.:

Yes.

Potter Stewart:

Now, what I’m trying to get out is.

That reference to session deals with the — who is the corporation, does it?

E. Barrett Prettyman, Jr.:

Yes.

That the session appoints the trustees from time to time who hold title for the benefit of the congregation, the church which of course is the congregation.

Potter Stewart:

But — you’re not suggesting that the session and the corporation wanted the same thing.

E. Barrett Prettyman, Jr.:

Well, I’m suggesting — no, wait, no, I’m not.

I’m suggesting that the corporation is more of the church, the legal — that holds the legal title in the church.

The session determines who the trustees are and of course, the session can be overruled anytime by the presbytery and on up the judicatory scale.

Byron R. White:

I take that your submission would be then that if the church — if the church rule is that when a local congregation affiliates, it becomes bound by a set of hierarchical rules in the sense that — in the sense that the presbytery has control of the — has the decision making power over who the congregation is.

E. Barrett Prettyman, Jr.:

There’s no question about it.

Byron R. White:

If a state — your submission, I take it is that a state may not disregard that once the affiliation has been made.

E. Barrett Prettyman, Jr.:

Absolutely.

Byron R. White:

Yes.

E. Barrett Prettyman, Jr.:

There are at least 11 different O’s set forth in the Book of Church —

William J. Brennan, Jr.:

Yes, well, I — but — more simply than that.

If in fact, these documents indicate to some coincidence between the legal corporate form and the session then automatically, you bring in the hierarchical definitions in the Book of what do you call it, kind of prayer?

E. Barrett Prettyman, Jr.:

Yes, I — in view of the fact that the — these — the various deeds and so forth.

The only effect of them —

William J. Brennan, Jr.:

Well, really what I’m trying to get at if you would have make that argument now then why wouldn’t you be making the argument that these were simply neutral principles dealing with the title of real estate.

E. Barrett Prettyman, Jr.:

Well, I don’t — the reason that I don’t have to make that argument is that everyone —

William J. Brennan, Jr.:

Well, I think it’s much simpler than the one you’re making.

E. Barrett Prettyman, Jr.:

Well, I’ll be happy to make that one then Your Honor if you —

Harry A. Blackmun:

But you’re making a half of a neutral principles argument in the sense that right on the face of the documents you say titles in the congregation.

E. Barrett Prettyman, Jr.:

Neutral —

Harry A. Blackmun:

And — then you just merely have to determine who the congregation is.

E. Barrett Prettyman, Jr.:

That’s the point.

And even if we were to use neutral principles which we say you don’t really get to but even if you have to use them, all it does is get you right back to the beginning again that the title is in the local church which is made up of its congregation and there —

Harry A. Blackmun:

I mean, (Voice Overlap) the congregation —

E. Barrett Prettyman, Jr.:

— and therefore who is the congregation?

Harry A. Blackmun:

— which is the session, isn’t it?

E. Barrett Prettyman, Jr.:

And the church has properly ruled on the question of who —

William H. Rehnquist:

Well, you used the neutral principles that suit you and the other ones that you pay from the church law.

E. Barrett Prettyman, Jr.:

I don’t use any neutral principles at all.

All I’m saying is that if you used neutral — so-called neutral principles under the state law, all you would get is a ruling that this particular church properly try — property belongs to the local church or its congregation and that’s all it would do for you.

Thurgood Marshall:

But isn’t the —

William H. Rehnquist:

But why didn’t the Supreme Court of Georgia rule in your favor?

E. Barrett Prettyman, Jr.:

Because the Supreme Court of Georgia thought that this case was a Hull case in which we were trying to assert an implied trust in favor of the mother church and it said, since Hull, there is no implied trust in Georgia.

And consequently, the property is in the church but then it went on to say without citing any reason for it at all composed of the majority and it could — that the majority could rule.

It didn’t give any reason for that.

It didn’t look to our book, the church — Book of Church Order to see if that was proper and it totally ignored, refused to give any credence to this administrative authority.

Byron R. White:

But the Georgia Court had said — they realized — they had looked at the book and said, “We know the book says the presbytery has this power but we under the Supreme Court’s cases are privileged to disregard that and just to apply neutral — so-called neutral principles.

You would say they were disentitled to do that.

E. Barrett Prettyman, Jr.:

Oh, you ruled in Kedroff and Gonzales and Serbian and in all of these cases that of course they have to follow that.

It’s a proper church ruling.

Let me show you where I think they went off right in the beginning and the reason — and if you look at the respondent’s brief, I think it’s the same thing.

What the trial court said was, “PCUS had no authority by resolution to constitute plaintiffs as trustees or as the two congregation for the purpose of creating a trust relationship with respect to the church property of EPC when none previously existed.

They thought this was an implied trust case.

And we have never claimed an implied trust on behalf of the mother church here.

What we have said is that we decided one question and one question only that’s pertinent and that is that the true congregation of this church is the minority.

William J. Brennan, Jr.:

Mr. Prettyman, when I asked you at the beginning if there were no — if the vote had been unanimous, I asked you where would the title be and you said it would have been in the mother church.

Isn’t that an implied trust theory?

E. Barrett Prettyman, Jr.:

That — no.

E. Barrett Prettyman, Jr.:

That’s because of a particular provision in the — of what happens in the Book of Church Order Your Honor.

In 6-3, you’ll find that there is — if — let me just read it to you here.

If a church is dissolved by the presbytery or otherwise ceased to exist and no disposition have been made of its property, those who hold the title of the property shall — this is — I’m sorry, joint Appendix 36 — shall deliver and convey and transfer to the presbytery.

So this would be by I think under those circumstances if you had unanimous vote so that the entire congregation walked out in effect the church would be standing there ceasing to exist.

It certainly is a congregation and I think under 6-3, you could say that the church property would revert to the presbytery.

But here, I don’t think, you know, you have no such problem because you did not have a majority vote and what they found was in effect that the church does still cease to exist.

It session cannot act but it does have a congregation and the congregation is the minority.

Now, I must say in all candor Mr. Justice Brennan that I think some of the confusion in this case has arisen because of a misreading of your concurrence in —

William J. Brennan, Jr.:

You mean the Chaps —

E. Barrett Prettyman, Jr.:

In Chaps versus — and I’d like to make three points about that.

The misreading of course is that you can pick neutral principles even in the face of a direct court ruling on a subject.

You can just ignore the court ruling and apply so-called neutral principles.

In the first place, your language carefully read simply doesn’t say that.

Secondly, such a reading would be directly contrary to what you wrote Mr. Justice in your concurrence in Abington School District.

And thirdly, and finally, such a reading simply is that it would fly squarely in the face of this Court’s rulings in other cases both before in Sharpsburg.

If the mother court has made a judgment and a civil court can simply ignore it and decide the case on some general principles of property law, that court has effectively overruled the church and that is precisely what this Court has repeatedly said that civil courts may not do.

We believe that what you meant and this is certainly the way I read your language is that absence a court ruling on the point in issue that it — I meant church ruling on the point in issues that the state court is free to look —

William J. Brennan, Jr.:

But assuming it’s a hierarchical.

E. Barrett Prettyman, Jr.:

Yes, assuming it’s hierarchical and there is no question here that the trial court held were hierarchical that the state court can then turn to statutes or turn to neutral principles or whatever.

But as I’ve said, neutral principles even if they crept into the case in some fashion, I don’t think do respondents any good because it gets you back to the basic question of who is the congregation.

And whether you say that’s a question of polity or a church administration or internal organization or church government or internal discipline or a faith or whatever, it comes within what this Court in Watson, Kedroff and Serbian have said that the mother church can decide for itself.

It goes to the very root of the Presbyterian structure and its faith because of the reasons that I’ve already indicated.

Now, why it — what — why do respondents admit that we can determine who the true congregation is?

They say it’s irrelevant because Watson — the Watson rule is not applicable in Georgia.

Well, that can’t be.

The Georgia — the Watson rule, this Court has said is of constitutional dimensions even though it was not when it was originally decided.

And the Watson rule is very simply that when you do have a — in a hierarchical structure as you have here and you have a proper church court decision on an issue that the civil courts must give due deference to it.

That is a constitutional rule.

Of course, it’s the rule of the majority —

Warren E. Burger:

Isn’t it a little more than deference?

E. Barrett Prettyman, Jr.:

Pardon me?

Warren E. Burger:

Is it a little more than deference?

E. Barrett Prettyman, Jr.:

It must absolutely abide by it and I use deference —

Warren E. Burger:

That is in deference.

E. Barrett Prettyman, Jr.:

— and that you’re absolutely right.

I think it’s been referred to Your Honors the deference rule.

That’s the reason I say that but of course it’s more than deference.

It’s absolutely binding.

We think this case is like you said in —

William J. Brennan, Jr.:

Now, where did you find in Sharpsburg the suggestion that it’s only where there isn’t any church —

E. Barrett Prettyman, Jr.:

Because you said —

William J. Brennan, Jr.:

— court decision?

E. Barrett Prettyman, Jr.:

— or after you referred to neutral principles, you then said — again, however, general principles of property law may not be relied upon if their application requires civil courts to resolve doctrinal issues.

And that’s what you would do here.

You would have to have a civil court saying, “Oh no, we override this resolution of this proper church body and say that that’s not the true congregation”.

And when you referred to statutes you said, “In a manner that precludes state interference in doctrine, such statutes must be carefully drawn till they — you control of ecclesiastical polity as well as doctrine to church governing bodies”.

So in each instance, it seems to me you said in effect, you can use this neutral principles and so forth only if it does not involve you in church polity as you’re immediately involved in here if you tried to apply them.

In Kedroof, this Court said there is no problem of title.

It is in the appellee corporation.

The issue is the right of use.

That’s what the issue is here.

The title is in the local church as to the use that’s in the congregation.

As to the congregation that has been decided by the mother church.

It’s the petitioners and that we respect should end the matter.

Byron R. White:

But Mr. Prettyman —

E. Barrett Prettyman, Jr.:

I’d like to save —

Byron R. White:

Suppose the church law was that the title to church property shall be in taking the name of the congregation or for the benefit of the congregation but the state law says —

E. Barrett Prettyman, Jr.:

So long as this —

Byron R. White:

The state law says, title to property shall be taken in the name of the board of directors of a religious — of the religious corporation or in the name of the corporation alone and that’s the end of it.

That’s just —

E. Barrett Prettyman, Jr.:

There is nothing wrong with any state law that so long as it does not intrude upon the system setup within the hierarchical —

Byron R. White:

Yes, but the state — under the state law, the — under the state — but according to the state law, the property is not held for the benefit of the congregation.

It just says it’s in the name of the corporation or in the name of it or in the name of board of directors.

E. Barrett Prettyman, Jr.:

Well, it —

Byron R. White:

And that whoever the board of directors happens to convey it off to, that’s the end of it.

E. Barrett Prettyman, Jr.:

Well, the board of directors could do nothing under the PCUS constitution that is not reviewable under the PCUS constitutional —

Byron R. White:

So you would say then — you would say that the state law may not give that board of directors that church power to convey the property contrary to church law.

E. Barrett Prettyman, Jr.:

Absolutely, sure.

I hope that’s quite clear.

William J. Brennan, Jr.:

Mr. Prettyman before you sit down let me ask you probably a stupid question but you phrased the question as whether or not the decision that your clients are the con — or the congregation is reviewable and they agree that who the congregation is.

I’m trying to figure out what is the issue as you see it.

If they’ve answered the question you put the same way you answer it, what is the question that separates you?

How would you frame that?

E. Barrett Prettyman, Jr.:

They would say that it is — if I understand them —

William J. Brennan, Jr.:

What do you say?

Don’t tell me what they say.

What do you say the issue is?

E. Barrett Prettyman, Jr.:

Alright.

William J. Brennan, Jr.:

Once they’ve conceded —

E. Barrett Prettyman, Jr.:

What I say —

William J. Brennan, Jr.:

— that if you can pick the congregation.

E. Barrett Prettyman, Jr.:

I say the issue is the church — this hierarchical church having properly decided who the congregation is and everybody agreeing that the congregation owns the property, we, the petitioners —

William J. Brennan, Jr.:

Well, but they don’t agree to that.

I guess the issue then is whether or not the congregation has the property, is that it?

E. Barrett Prettyman, Jr.:

No.

I don’t think they disagree with that.

I don’t think they disagree with that as to — as — what they say is that we have no business saying who the congregation is.

William J. Brennan, Jr.:

No.

They start out saying they agree you are the congregation.

E. Barrett Prettyman, Jr.:

Well, then they say that at least the Georgia Court is right.

E. Barrett Prettyman, Jr.:

And so, here the majority can decide and I out — I have to be very —

William J. Brennan, Jr.:

Decide what?

E. Barrett Prettyman, Jr.:

I have to be very candid with you Mr. Justice.

I’m not sure I fully understand their argument.

I’m going to be interested to hear it because it seems to me that they really are saying in effect when they say we can decide who the congregation is and the title is in the congregation but that — we should be agreeing with each other and that’s why I don’t quite understand their position.

William J. Brennan, Jr.:

So you don’t know what the issue is either?

E. Barrett Prettyman, Jr.:

But it — I do know they say that the Watson rule is not the rule in Georgia and I do know that that’s wrong so maybe that’s the issue.

Warren E. Burger:

Mr. Jones, before you continue, I think at this time it’s clear that we will be occupied until three o’clock and Mr. Auberly and Mr. Lou Coff are free to retire and return at 10 in the morning if you wish.

Mr. Jones you may proceed when you’re ready.

Frank C. Jones:

Mr. Chief Justice and may it please the Court.

This is a church property dispute that involves rural property in Macon, Georgia.

The Courts of Georgia simply applied neutral principles of law in ruling that the respondents and not the petitioners hold title and were entitle to prevail.

It is not a religious controversy.

No question of religious doctrine or practice or polity was raised by the pleadings or it was considered or decided by the trial court or the Supreme Court of Georgia.

The decision of the Supreme Court is in full accordance with this Court’s decisions in Hull, Sharpsburg and Serbian.

And with an earlier decision of the Supreme Court of Georgia which was not even cited in the petitioners’ brief, Carnes versus Smith that I will refer to in just a moment.

Harry A. Blackmun:

Mr. Jones, you referred to Carnes that involved the Methodist church.

Frank C. Jones:

Yes, Your Honor.

Harry A. Blackmun:

Why do you think there is an amicus brief here by the appropriate body of a Methodist Church opposing your position?

Frank C. Jones:

Your Honor, I find that somewhat difficult to understand and I’d like to answer it in this way if I may.

Carnes versus Smith was decided in 1976 by the Georgia Supreme Court and as you’ve observed, it involved the United Methodist Church.

That case ruled four of the denomination applying neutral principles of law.

The Georgia Court simply looked to the Book of Discipline which is the Methodist counterpart of the Book of Church Order and found clear cut provisions saying that local church property in the United Methodist Church is held in trust for the use of the ministry and members of the church.

And based upon the application of mutual principles in Carnes versus Smith, just as the Maryland Court of Appeals had done in Sharpsburg, it was held that the denomination was entitled to prevail.

I can’t answer the question other than to speculate that perhaps the position being urged by petitioners here would go even farther than that.

And would accomplish what would amount as I would time it to a 100% deference rule and would say that in all events neutral principles cannot be applied if any body of the church regardless of what’s in the Book of Discipline or the Book of Church Order has issued a ruling, a judgment or an order as existed here.

Byron R. White:

But do you agree that the property is held for the benefit of the congregation?

Frank C. Jones:

No, sir.

This case Your Honor —

Byron R. White:

What if you did — then would Mr. Prettyman’s result follow or not?

Frank C. Jones:

Let me answer it this way.

Immediately prior to the controversy arising, it might be —

Byron R. White:

Well, is there a yes or no answer to that or not?

Frank C. Jones:

Your Honor, I disagree with the conclusion reached by Mr. Prettyman.

Byron R. White:

I know but assume that the property were held for the congregation, would his result follow?

Frank C. Jones:

No, sir.

Immediately prior to May of 1973, the property was held in the name of a corporation under the Book of Church Order, trustees of that corporation or acted and were appointed.

Under the Book of Church Order, the majority of the Congregation was entitled to control the property.

As I will point out a little more detail later, the Book of Church Order is absolutely explicit in making it clear that there is no right whatever in the presbytery, a session in the Synod or in the General Assembly or in any commission or committee of the church to have anything to do with local church property.

To the contrary, in Section 6.1 and 6.2 of the Book of Church Order which deal with local church property is expressly —

Potter Stewart:

Mr. Jones, this is an argument in disagreement with Mr. Prettyman’s reading of the Book of Church Orders?

Frank C. Jones:

Yes, sir.

Potter Stewart:

While I have you interrupted, may I ask this question?

Frank C. Jones:

Yes, sir.

Potter Stewart:

Oh, what are the title deeds which led the Supreme Court of Georgia to reach the result it did?

Frank C. Jones:

Your Honor, the title deeds are — there are three tracks.

Potter Stewart:

Yes.

Frank C. Jones:

Two of the tracks are to trustees of the local church —

Potter Stewart:

This is —

Frank C. Jones:

— and their successor.

Potter Stewart:

It’s either I referred to earlier?

Exhibit G —

Frank C. Jones:

Your Honor, there are actually a total of six deeds I believe and —

Potter Stewart:

Yes, well, I think — I thought this was just a sample.

Frank C. Jones:

They — all six appear in the appendix.

Potter Stewart:

Well, this one is a conveyance to the present trustees for Vineville Presbyterian Church and their successors enough?

Frank C. Jones:

Yes, sir.

Potter Stewart:

And is that the way the others —

Frank C. Jones:

That’s typical.

There is one deed that goes to the corporation itself, I believe Your Honor.

Potter Stewart:

Now the Supreme Court of Georgia relied on these deeds.

Frank C. Jones:

Yes, sir.

Potter Stewart:

And then what next?

Frank C. Jones:

They relied on four things Your Honor.

They relied first of all on the deeds to the property.

They relied next on the corporate charter which provided that only the local church would have the right to control the local church property.

They next looked at some state statutes and concluded that those statutes did not in and of themselves give any rights to the denomination.

And finally, they looked to the Book of Church Order itself.

Potter Stewart:

Now, where — was there any definition of local church in any of these papers?

Frank C. Jones:

Yes, sir.

The — either the trustee is of the local church or the corporation itself was the local church.

The point that I would make that radically differ us from Mr. Prettyman.

There is no question that the title was in the local congregation immediately prior to the date in May of 1973 when the controversy arose.

But on that date by a vote of approximately two to one, the respondents in this case voted to withdraw from the denomination and to control their property independently of the denomination.

They did this on the basis of these provisions in the Book of Church Order.

Warren E. Burger:

Now, before you get to that —

Frank C. Jones:

Yes, sir.

Warren E. Burger:

— at that point there is — that’s the beginning of the controversy, isn’t it?

Frank C. Jones:

Yes, sir.

Warren E. Burger:

And under the Church orders, under the law of the church, who resolves disputes?

Frank C. Jones:

Solely the local congregation.

Your Honor, this —

Potter Stewart:

Well, may I — I thought one thing that — if anything, Hull and all the other cases stood for is that courts including this one, whatnot got into resolving controversies of the kind apparently exist between you and Mr. Prettyman over the meaning of the Book of Church Order that that’s something that the church courts decide —

Frank C. Jones:

Your Honor that is —

Potter Stewart:

— and just take whatever the courts — church courts decide, don’t they?

Frank C. Jones:

That is certainly true if it involves an in depth analysis but as the Maryland Court of Appeals held in Sharpsburg and this Court approved, a facial or superficial examination is permitted under the application of mutual processes of law.

Byron R. White:

That’s right but not in the — not in the — not in opposition to a contrary judgment of the — if what everybody agrees is a higher authority in the church.

Frank C. Jones:

Your Honor, I’m coming to that in just a moment.

Byron R. White:

The presbytery certainly doesn’t agree with you —

Frank C. Jones:

We take the position that this —

Byron R. White:

— as to what that book means.

Frank C. Jones:

Your Honor, let me reply to that in some detail if I may.

Byron R. White:

Oh, yes, alright, its alright.

Frank C. Jones:

It’s a terribly important question.

Byron R. White:

I don’t think it is.

Frank C. Jones:

First of all, the Book of Church Order itself in Section 6.1 and 6.2, one deals with an unincorporated church, the other one is an incorporated church.

In each instance, it provides that the local congregation solely shall have a right to buy, sell own, dispose, hold otherwise deal with real property.

There is no accountability by the local congregation to anyhow a body — there is no right of review by anyhow — a body with respect —

Byron R. White:

But who would —

Potter Stewart:

Then becomes important to define who or what is the local congregation.

Frank C. Jones:

Well, Your Honor, this controversy when it arose of course resulted in two factions.

Potter Stewart:

Yes.

Frank C. Jones:

And this Court from the very outset has never or this case has never been concerned with the identity of the true congregation.

Potter Stewart:

Well, if the local — if under the law, the local congregation owns the property then it’s vital to determine and define what or who was the local congregation.

Frank C. Jones:

Well, Your Honor, there was — this is a typical local church property dispute where there are two factions and the question is —

Potter Stewart:

Well, I understand that fact —

Frank C. Jones:

— does this faction or that faction have title to the property under the neutral principles —

Potter Stewart:

And —

Frank C. Jones:

— or formal title doctrine, —

Potter Stewart:

And that —

Frank C. Jones:

— which this Court has approved in —

Potter Stewart:

And that depends upon who was the local or what is the local congregation.

Isn’t that — isn’t it — doesn’t that — is this so evident?

Frank C. Jones:

Your Honor, I would respectfully disagree.

That issue was not raised in the trial court —

Potter Stewart:

Well, that is the issue, isn’t it?

Frank C. Jones:

— or the Supreme Court and it was not decided by this Court.

Potter Stewart:

If the local congregation owns that property then in order to determine who owns the property it’s essential to determine who is the local congregation.

Doesn’t that follow just as a matter —

Frank C. Jones:

Your Honor, may I answer it two ways.

Potter Stewart:

Well, yes.

Frank C. Jones:

I would respectfully say that’s not the issue but I would like to give a full answer to it.

I think the issue in this case is which faction of the church is entitled under the formal title doctrine, the neutral principles of law approach to hold the title.

But secondly, in any event, if it be viewed as it has been stated in that question, nevertheless we look to the Book of Church Order as it existed in May of 1973 to determine how the local congregation acts, how it determines what happens to property.

And that’s the point I was about to address a moment ago.

The Book of Church Order says that the local congregation itself is the sole and exclusive body or a group that has the right to say what happens to real property.

And secondly says that the local congregation acts by a majority vote which has what happened in this instance.

Now this administrative commission that was appointed is not appointed to — pursuant any provision in the Book of Church Order which gives authority to a presbytery, a Synod, the General Assembly, a commission or a committee any right to review or to consider a local church property dispute.

Byron R. White:

The presbytery thought otherwise, didn’t they?

Frank C. Jones:

They are contending otherwise obviously Your Honor.

So I just —

Byron R. White:

So they disagree with you on the reading of the book.

Frank C. Jones:

Your Honor, I — no citation appears to the Book of Church Order that gives any such authority.

Obviously, the contention is being made.

And there’s another point I would make in this connection that I think is extremely important.

The petitioners’ reply brief at pages six to nine, it seems to us recognizing that there is simply as an absence of any provision in the Book of Church Order that authorizes the administrative commission to exercise jurisdiction or that gives power to anyone other than the local congregation as to local church property.

Quotes from a so-called ruling of the general assembly or the Presbyterian church —

John Paul Stevens:

What page was that?

Frank C. Jones:

At pages — beginning at page 6 Your Honor of the petitioners’ replied brief.

John Paul Stevens:

Yes.

I’d like to make three points about that as to why I think they should be totally disregarded.

First of all, the so-called ruling which begins to be quoted at page 6 is not in the record in this case.

That is a quotation from an amicus brief that was filed by the denomination.

And the denomination itself quoted from things which are not a part of the record in this case.

The second point is that it is contrary to the stipulation of the parties.

There is a stipulation in this case which appears at page 316 of the appendix which provides that this case will be decided on the basis of the pleadings, the stipulation of the parties and the exhibits to the pleadings and to the stipulation.

The Book of Church Order as it existed in its entirety in 1973 when this controversy arose is a part of the appendix.

The ruling which is referred to beginning at page 6 of the petitioners’ reply brief is not in the Book of Church Order.

It’s not in the appendix, it’s not in the record and it’s contrary to the stipulation.

And third and finally, in any event even if the so-called ruling had been in the record, it is not a part of the Book of Church Order which I think is a fundamental importance.

John Paul Stevens:

The Book of Church Order can only be amended or changed by a three-step process.

First of all, there must be the adoption of a proposed amendment by the general assembly, the highest body of the Presbyterian Church.

Secondly, that must be recommended to the presbyteries of which there are 72 I believe and must be consented to by at least the majority of them.

And third and finally, the general assembly following consent by the presbyteries must then adopt and approve again.

None of that has been done as to any ruling, rule, opinion, anything of that kind which is cited for the first time in this case in the reply brief of petitioners.

And we would respectfully ask that that be disregarded by this Court.

It’s not in the record.

It’s contrary to the stipulation.

It’s not in the Book of Church Order.

William H. Rehnquist:

What if the Book of Order provided just as it did with respect to amendments to the Book of Order but had an additional provision that only a session of the general assembly shall be entitled the question of the validity of an amendment that’s adopted?

Frank C. Jones:

Your Honor, I suppose it would simply be a different amending process.

Now, the point is that no amending process was followed or whatever it might be in this case.

Perhaps, I misunderstood the thrust of the question.

William H. Rehnquist:

Well, can a denomination prescribe a method for amending its fundamental charter which in this case I think is the Book of Order and say that challenges to the method by which the amend — for a particular amendment was adopted may only be raised in the canonical church or before the canonical session?

Frank C. Jones:

Probably so.

I think that would be a matter of church government or polity.

In any event, that issue is not in this case because it’s not contended that there’s been any amendment to the Book of Church Order that incorporates the ruling or any of the other matters that are referred to beginning at page 6 of the petitioners’ brief.

Potter Stewart:

Well, do I — I want to be sure I understand your argument that — and is it that we cannot consider in this case the fact that the presbytery made a final decision that the petitioners were the true congregation?

Frank C. Jones:

Your Honor, we do not question the right of the presbytery to decide —

Potter Stewart:

Well, no.

But no, no, no, no — perhaps I didn’t state my question very well.

May we consider in this case the fact and I gather is the fact that the presbytery which is the church court made a final decision in favor of the petitioners?

Frank C. Jones:

Your Honor, that maybe considered —

Potter Stewart:

You’re certainly — since that’s not within the stipulation, we may not consider it in this case.

Frank C. Jones:

No, sir.

The administrative commission ruling is in the appendix — is in the record of the case, there’s no question of that and I did not mean to suggest otherwise.

What I’m saying that the so-called ruling which has nothing to do with this case, it’s a rule — it’s an interpretation of the Book of Church Order or it’s a proposed amendment to the Book of Church Order that appears at page 6 never materialized into the form of an amendment.

It never became a part of the Book of Church Order.

Byron R. White:

But it’s the kind of a saying that the — it’s a — that the commission was carrying out?

Frank C. Jones:

No, sir.

Frank C. Jones:

The commission did not propose to act pursuant to what’s quoted at page 6.

Byron R. White:

But did it — do you say that it was powerless to do what it purported to do?

Frank C. Jones:

Your Honor, we say it had full power to do everything that it did except for the final act.

The — there’s no question whether the commission and the presbytery which appointed it has the power to make determinations about membership and about faith and about doctrine and matters of the —

Byron R. White:

And as to who the true congregation is?

Frank C. Jones:

They have the right to decide for themselves who will be recognized by the denomination as the loyal or true members of the denomination.

There’s no question as to that.

That’s never than a question in this case.

But when the commission tries to go one step farther and to declare as they did that property rights are forfeited.

That’s the last sentence that appears in this commission finding.

They cite no basis in the Book of Church Order for an attempted forfeiture of property rights.

It then becomes proper and appropriate under the application of the neutral principles doctrine for a civil court to look at least superficially or in a beginning manner at the Book of Church Order and say, “Is there anything?”

Is there anything in the Book of Church Order that says that anybody other than the local congregation has the right to do anything with respect —

Byron R. White:

But we just —

Frank C. Jones:

— to local church property?

Byron R. White:

We just skipped over the point that — we’ve done that several times here.

If the commission has the authority to determine who is the congregation and it determined who is the congregation then the only question left is, well — does — is the — does the property — was the property really being held for the congregation or wasn’t it?

If it was which I thought you said it was, why shouldn’t the congregation as determined by the hierarchy had the property?

Frank C. Jones:

Well, Your Honor, I don’t mean to be evasive.

I’m attempting now — we have a fundamental difference as to the issue in the case obviously.

The determination by the commission was four months after the controversy had arose and the vote had been taken.

Warren E. Burger:

Well, it’s always going to be after the event, isn’t it?

Frank C. Jones:

Yes.

Warren E. Burger:

As a lawsuit is always subsequent to the controversy —

Frank C. Jones:

Certainly Your Honor.

But the question is, what were the relatively rights of the denomination on the one hand and the local congregation which would authorized the act by majority vote on the other on the date on which the vote was taken.

And according to the Book of Church Order, the local congregation was congregational.

It was not hierarchical with respect to the use and the disposition of local church property on the date that the majority vote was taken.

Byron R. White:

Well, obviously, the presbytery and the commission read that church book differently than you do on the — in terms of that last step you were talking about.

That took — they think the property follows the congregation under the church law.

Frank C. Jones:

No, sir.

I think the sole basis for the claim is made by the petitioners at least in the trial court is the ruling of the administrative commission.

Nothing was pointed to elsewhere in the Book of Church Order that will justify any claim by the denomination.

Absent to action of the administrative commission, this would be like any other voluntary association which by majority vote had voted two to one that the property should be used in a certain way.

The sole basis for the petitioners claim is that an administrative commission was appointed and the administrative commission recognized the minority as being loyal to the denomination.

We have no quarrel with that whatever.

The denomination —

Potter Stewart:

Mr. Jones, I gather that your position relies upon the same documents that the — that Mr. Prettyman relies on, does he?

Namely the deeds —

Frank C. Jones:

Your Honor, other than the documents that are outside the record to which I alluded a moment ago —

Potter Stewart:

Well, I — yes, I mean — but — what I mean, the deeds, the Book of Church Order, correct?

And — as to which as my Brother White has suggested at least the church courts have made a different interpretation than the one that you suggest.

Frank C. Jones:

They made no interpretation Your Honor as far as the record reveals.

There was simply a blanket assertion that —

Warren E. Burger:

But they reached a conclusion or did they not?

Frank C. Jones:

Your Honor, they had reached the conclusion that the minority were true to the denomination.

That’s on the question, yes sir.

Byron R. White:

Well, didn’t they order somebody to turnover some property?

Frank C. Jones:

They declared — no, sir.

They were —

Byron R. White:

What did they declare?

Frank C. Jones:

This was an ex parte proceeding incidentally that was not participated in by the respondents.

The commission simply issued an edict and they said that the property rights of the majority of the members of the local congregation are hereby forfeited.

They cited no provision in the Book of Church Order that authorized such action.

William J. Brennan, Jr.:

Mr. Jones, just before the resolution was adopted, is it correct that the property was owned for the benefit of the congregation?

Frank C. Jones:

Yes, by a trustees —

William J. Brennan, Jr.:

Did it in some point in time —

Frank C. Jones:

— and the corporation.

William J. Brennan, Jr.:

— ceased to be owned for the benefit of the congregation?

Frank C. Jones:

I’m sorry sir, I didn’t hear that.

William J. Brennan, Jr.:

At some point in time did the property ceased to be owned for the benefit of the congregation?

Frank C. Jones:

Yes, sir.

The moment that the vote was taken two to one and two factions were created then by virtue of the majority per vote provision in the Book of Church Order, at that time the title was in the majority of 165 who voted to withdraw from the church and to hold the property independently of the denomination.

William J. Brennan, Jr.:

As a matter of state law did the property owned —

Frank C. Jones:

A matter of state law.

William J. Brennan, Jr.:

Property ownership changed just by adopting a resolution.

Frank C. Jones:

Well there being nothing in the Book of Church Order to the contrary.

And since the Book of Church Order expressly said that the local congregation acts by majority vote and that it has the sole and exclusive power to buy, sell, mortgage, own and dispose a property that in the moment —

Potter Stewart:

But that’s in the charity of the local congregation.

First of all, you have to decide who — you have to determine who — what is the local congregation, isn’t that correct?

Frank C. Jones:

Obviously, I’m certain.

Byron R. White:

What is the congregation —

Frank C. Jones:

If I could answer —

Byron R. White:

— and when they adopted the resolution and then immediately after they adopted the resolution, is it not true, I think you’ve conceded this that the 95 were then the local congregation.

Frank C. Jones:

No, sir.

Byron R. White:

Well, but you —

Frank C. Jones:

The 95 at that point Your Honor —

Byron R. White:

You said that in your brief.

You say you don’t dispute the fact that the minority is and always has been the true congregation.

Frank C. Jones:

Your Honor —

Byron R. White:

Maybe you didn’t mean it but you say it.

Frank C. Jones:

I — I don’t think we answered it — we stated in that word, what we — I believe said and certainly intended to say is that the denomination has the unquestioned right to determine for itself who it will recognize as being true or loyal members in that denomination’s eyes.

We have never acknowledged that the denomination had any right whatever with respect to local church property.

If I may answer these several questions —

Byron R. White:

Let me ask —

Frank C. Jones:

— a little more fundamentally to go back —

Byron R. White:

Would you tell me before you’re through what you understand the issue to be.

Frank C. Jones:

Yes, sir.

I understand this to be the issue.

In a state such as Georgia that has adopted the neutral principles approach which is one of the three approaches that this Court has recognized as being constitutionally permissible.

Frank C. Jones:

Where the neutral principles approach is applied by looking simply at deeds, state statutes, the corporate chart of the local church and the applicable provisions of the denomination’s government and well, by using neutral principles, it found the title is in the majority that voted to withdraw as a result of the resolution of withdrawal and no religious question is involved.

Nevertheless, is it requisite that a civil court differ to an ex parte administrative commission which is appointed by the denomination and which issues an ex parte finding or declaration that the property rights of the majority are forfeited under those circumstances?

If I may go back more fundamentally, this case is absolutely identical with what the Maryland Court of Appeals did in the Sharpsburg situation.

Your Honors will recall that that case first came up and was then remanded in the light of Hull for further consideration in the light of what was held in that case.

The Maryland Court of Appeals then wrote a second opinion in which they reviewed in great detail what have been done earlier.

In short, four things were done.

First of all, they looked at the deeds.

The deeds were identical and result to the deeds to the Georgia property in this case.

Secondly, they looked at the local corporation chart which as here provided that title was held by the local congregation and it had the right to buy and sell and so forth the property.

Third, they looked at state statutes which just as here did not give any rights to the denomination.

And finally, they looked to the Book of Church Government of the Church of God and just as here, just as the Book of Church Order, they found nothing that gave any rights other than to the local congregation.

So applying the neutral principles of law which this Court has recognized can be applied if it doesn’t involve going into questions of doctrine in Hull again using one of the three constitutionally permissible methods that Mr. Justice Brennan singled out in his concurring opinion in Sharpsburg in which this Court unanimously in Sharpsburg upheld in the case of the Maryland situation.

And again, following the neutral principles —

Potter Stewart:

What church was it in Sharpsburg?

Frank C. Jones:

Church of God.

Potter Stewart:

And wasn’t there a determination first that that was not a hierarchical church that it was a congregational church and was that an absolute key to the decision in that case?

Frank C. Jones:

I would respectfully say, “No, Your Honor”.

There were — there was a statement that it is not totally hierarchical but there is also a statement that is primarily presbyterial in nature which is one of the forms of hierarchical churches.

The significance I would submit is that it was found in the Church of God case that as to local property that it was indeed congregational.

That is, that it was not hierarchical as to that matter.

Potter Stewart:

And that was quite essential to the decision of that case, isn’t it?

Frank C. Jones:

A very important fact.

Yes, sir.

And I would call the attention to Footnote 8 in the petitioners’ reply brief and which is acknowledged in this case that if even in a hierarchical church, the Book of Church Government says that as to certain matters that it is not hierarchical then that result of course obtains.

Well, that’s precisely what the Book of Church Order does in the present case as to local church property.

It says that local church property shall be subject to the sole and exclusive power of the local congregation and that is identical to the Church of God situation.

It meant in short that neither the presbytery or the Synod nor the General Assembly nor any commission or committee of any of them had any claim of any kind to local church property.

I would say in conclusion, may it please the Court that we feel that this is simply a local church property dispute in which the neutral principles of law or doctrine has been properly applied by this — by the Supreme Court of Georgia.

Whereas in Carnes versus Smith the denomination prevailed because it had in its discipline appropriate provisions with respect to local church property.

In this case, the denomination did not prevail because of a complete absence of any right or power in anyone other than the local congregation with respect to local church property.

Thurgood Marshall:

But you still say in your own papers that the local congregation is the petitioners.

Frank C. Jones:

No, sir.

The local con — the minority of the local congregation are the petitioners Your Honor.

Thurgood Marshall:

Do you — and didn’t you say repeatedly that they — is the congregation?

Frank C. Jones:

No, sir.

If I said so, I’ll retract that statement.

William J. Brennan, Jr.:

You said so in Footnote 9 of your brief.

Frank C. Jones:

I’m afraid my time is running out.

What we have sought to say and I would clarify it if we have created the contrary impression, is that we recognize that on matters of faith and membership, there’s no question whether the denomination has the right to recognize who ever it sees fit for its purposes to recognize.

But we have never acknowledged that as far as property rights are concerned —

William J. Brennan, Jr.:

Even if it’s perfectly clear that the purpose for which they adopted this or made this decision was for the purpose of trying to decide who own the property.

That’s the only reason they got involved in this, isn’t it?

Frank C. Jones:

That obviously was the ultimate result that was solved.

There’s no question of that but nothing Your Honor was cited as a basis for such a finding in the Book of Church Order itself.

And we have never acknowledge that the —

William J. Brennan, Jr.:

But you’d be — if I read your brief correctly, you didn’t challenge anything in the find — in their finding except the ultimate conclusion that the ownership followed the congregation.

Frank C. Jones:

Your Honor, it’s difficult for me to reply to that in the time that remains other than to say that our position we believe has consistently been that the petitioners represent only the minority of the local congregation.

And that the denomination has only the right to recognize the minority as being true as far as membership is concerned but not with respect to property rights.

Property rights are determined by what was in the Book of Church Order on the date that the schism took place.

And on that date, the Book of Church Order said that by majority vote, the local congregation had the right to withdraw from the congregation and hold its property independently of the denomination.

E. Barrett Prettyman, Jr.:

Do I have any time to make —

Warren E. Burger:

You have three minutes.

It will take you one minute overtime.

E. Barrett Prettyman, Jr.:

Thank you very much.

First, my opponent has said that there is no question of religion raised by the pleadings.

I would simply call your attention to the complaint which was based squarely, totally, completely on this church ruling as to who the congregation was.

Secondly, I agree with the thrust that some of the questions that we really probably shouldn’t be arguing about in an interpretation of the Book of Church Order.

It’s not for us to do.

But at least to give you some comfort, I would impose upon you to make a note if you would of three sections, 114, 16-7 and 19-3 which clearly show that even as to property, the presbytery and each ascending judicator has not only a right but the duty every year to review the acts of the next lower court.

And to change anyone, anyone of any nature that goes among other things against the best interest of the mother church.

Potter Stewart:

But Mr. Prettyman, —

E. Barrett Prettyman, Jr.:

And finally —

Potter Stewart:

— would you not agree that on the date they adopted the resolution that the congregation — majority of the congregation could have conveyed a good title to this property —

E. Barrett Prettyman, Jr.:

I agree.

Potter Stewart:

— without the consent of their people in the central church?

E. Barrett Prettyman, Jr.:

I agree that they could have sold it but the money would have been held in trust for the congregation of the church as determined by the mother church when the mother church reviewed that action.

I doubt if they could have gotten title back because you have a third innocent party.

But — but there’s no question about that, the money would have been held subject to review.

And when the presbytery came around if they said if that property should not have been sold, that was not in the best interest of the church, they could have sought — said where that money should have gone.

My last point is in regard to Sharpsburg, it’s very interesting that Maryland at that time had a statute.

Remember that that was a congregational case but Maryland had a statute which said such Presbyterian Churches, and we’re now referring to the Presbyterian Church in United States maybe incorporated only in conformity with the provisions of the Constitution of the Presbyterian Church in the United States of America.

In other words, Maryland recognize even the Sharpsburg situation that you had a different situation from the Church of God than you did in the Presbyterian Church which was hierarchical in nature.

Thank you very much.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.