Mississippi congregation wins first civil court ruling in property case

Mississippi congregation wins first
civil court ruling in property case

By John H. Adams
The Layman Online
Friday, December 15, 2006

A Chancery Court jurist in Mississippi has signed a stipulated preliminary injunction that prevents the Presbytery of Mississippi from staking a claim on the property of J.J. White Memorial Presbyterian Church in McComb.

Mississippi property policy

In its new property policy, the presbytery says it:

"Trusts its particular churches to make their own decisions concerning how best to use their property to accomplish the Great Ends of the Church;

"Resolves that property has not been, is not, and shall not be a basis for our unity or an opportunity for division among us;

"Recognizes that many of its particular churches believe they hold clear title to their own property;

"Recognizes all its particular churches as having the ability to sell, lease, mortgage, or otherwise encumber any of their real property without further written permission of the Presbytery;

"Recognizes all its particular churches as having the ability to acquire real property subject to an encumbrance or condition without further written permission of the Presbytery;

"Resolves that it shall take no action to enforce any general trust interest claimed by any higher governing body against any property, real or personal, held by any of its particular churches while they remain under its jurisdiction;

"Resolves that it will not resist any particular church of the Presbytery of Mississippi which would ask the courts of the State of Mississippi to clear its property of any claims made by higher governing bodies against that property; and

"Resolves that nothing contained within this policy statement shall abrogate the authority and responsibility of Presbytery under sections G-8.0401 and G-8.0601 of the Book of Order …"

Thursday's decision was the first civil court test of the new Mississippi Presbytery policy not to "resist any particular church of the Presbytery of Mississippi which would ask the courts of the State of Mississippi to clear its property of any claims made by higher governing bodies against that property."

Attorneys for the presbytery and the congregation agreed to the preliminary injunction, which prohibits the presbytery or any person on its behalf "from filing any documents in the mortgage and conveyance records of Pike County to assert ownership, or right to determine ownership to any property titled in the name of J.J. White Memorial Church …"

The session of the McComb congregation initiated the civil court action as a step toward gaining clear title to the 300-member congregation's property without any incumbrance by the presbytery or the denomination.

Stewart Robison, an elder at White Memorial and the attorney for the congregation, said the congregation is not considering leaving the PCUSA but that that the congregation wants to be permitted to make property transactions without having to seek the presbytery's authorization.

That authorization is supported in the new property policy, which says the presbytery will "not resist any particular church of the Presbytery of Mississippi which would ask the courts of the State of Mississippi to clear its property of any claims made by higher governing bodies against that property."

William dePrater, the presbytery's executive, attended the hearing in Chancery Court accompanied by Wayne Dowdy, a McComb lawyer who is chairman of Mississippi's Democratic Party. Dowdy and Robison signed the stipulated temporary injunction today.

White Memorial's filing listed the presbytery as the only defendant. The only reference in the preliminary injunction to the Presbyterian Church (USA) as a denomination was the stipulation that the presbytery was enjoined from enforcing "a general trust interest claimed by any higher governing body …"

Earlier this month, White Memorial began its civil proceeding by submitting to the Chancery Court, which handles all equity claims in Mississippi, a 23-page "Petition for Temporary Restraining Order, Preliminary Injunction and Declaratory Judgment."

Chancellor Deborah K. Halford, the jurist for the Chancery Court, bypassed ruling on the restraining order and went directly to the preliminary injunction. She scheduled a hearing on the declaratory judgment on April 4, 2007.

In its request for a declaratory judgment, White Memorial asks the court to declare that "all property held by or titled in the name of the petitioner, and any improvements thereon, whether real or personal, is held without trust for the use and benefit of the PCUSA or any other national denomination, or any of its regional administrative units such as the Presbytery of Mississippi, and that the petitioner holds all property titled in its name, or the name of its Trustees … in full and complete fee simple ownership."

While the Mississippi Presbytery's policy cedes ownership right to local congregations, it does not cede the presbytery's authority when there are property disputes resulting congregational divisions.

The policy says the presbytery retains its authority under two sections in the property chapter of the Book of Order:

G-8.0401 "Whenever a particular church is formally dissolved by the presbytery, or has become extinct by reason of the dispersal of its members, the abandonment of its work, or other cause, such property as it may have shall be held, used, and applied for such uses, purposes, and trusts as the presbytery may direct, limit, and appoint, or such property may be sold or disposed of as the presbytery may direct, in conformity with the Constitution of the Presbyterian Church (U.S.A.)."

G-8.0601 "The relationship to the Presbyterian Church (U.S.A.) of a particular church can be severed only by constitutional action on the part of the presbytery. (G-11.0103i) If there is a schism within the membership of a particular church and the presbytery is unable to effect a reconciliation or a division into separate churches within the Presbyterian Church (U.S.A.), the presbytery shall determine if one of the factions is entitled to the property because it is identified by the presbytery as the true church within the Presbyterian Church (U.S.A.). This determination does not depend upon which faction received the majority vote within the particular church at the time of the schism."

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