Neutral principles application bill falls short in Kansas House

neutralA bill to apply a neutral principles of law analysis to church property disputes was voted down Wednesday (Feb. 26) by the Kansas House of Representatives.

Legislators defeated the House Substitute for Senate Bill 18 by a 64-58 vote when it was taken on the floor after the measure came from the Senate Judiciary Committee unopposed.

The bill, sponsored by 8th District Representative Craig McPherson, was intended to clarify law to give parties seeking to change denominational affiliation an ability to manifest their intent to do so without going through litigation.

The 1979 Supreme Court case of Jones v. Wolf endorsed a neutral principles of law approach to handling church disputes. It allows secular courts to use neutral, secular principles, meaning they can’t use religious or ecclesiastical principles. Courts applying neutral principles focus on official documents – property deeds, local parish charters, national and Mother Church constitutions and state statutes – and try to interpret them in a non-religious manner.

“We thought the bill would pass,” said McPherson, also a member of Stanley Presbyterian Church in Overland Park, Kan. “It’s the right standard most people would choose to apply in such matters because it is a law that, by its principle, leaves the state out of deciding such issues of an ecclesiastical nature.”

Had the bill passed, Kansas would become a neutral principles state with regard to church property, thus allowing congregations to freely associate with the denomination of their choice without giving up their property.

The Texas Supreme Court ruled in late August 2013 that Texas courts must follow neutral principles of law when deciding church property cases when dealing with two suits involving Episcopal Church property.

McPherson said the vote for the proposal came just a couple of weeks after a measure tied to religious freedom made its way through the Kansas House but did not pass in the Senate. House Bill 2453 explicitly protects religious individuals, groups and businesses that refuse services to same-sex couples, particularly those looking to be married. The intent was to prevent religious individuals and organizations from getting sued, or otherwise punished, for not providing goods or services to gay couples – or for not recognizing their marriages or committed relationship as valid.

“There still seems to be tension related to that bill,” McPherson said. “Unfortunately, it got tangled up in this bill even though the two are not related.”


What the neutral principles bill says

The bill, as presented Wednesday, would have required courts in Kansas to apply neutral principles when dealing with church property disputes. The motion read:

AN ACT concerning churches; relating to disputes involving church congregations.

Be it enacted by the Legislature of the State of Kansas:

Section 1. (a) A court shall apply a neutral principles of law analysis to any church property dispute, including, but not limited to:

(1) Any property dispute between members of a church congregation arising out of competing claims to church property; and

(2) any property dispute arising out of a church congregation’s decision to change its denominational affiliation.

(b) A neutral principles of law analysis under subsection (a) may include, but not be limited to, examination of a deed, local church charter, state statute or corporate governance documents in the same manner as would be conducted for any other property dispute  A neutral principles of law analysis under subsection (a) shall rely on objective, well- established concepts of trust and property law. Such an analysis may include examination of a deed, local church charter, state statute or corporate governance documents in a completely secular manner, as would be conducted for any other property dispute.

(c) As used in this section, “church” includes any church, religious sect or organization established on the basis of a community of faith and belief, and doctrines and practices of a religious character.

Section 2. This act shall take effect and be in force from and after its publication in the statute book.


Backing for the bill

Lloyd J. Lunceford, an attorney with Taylor, Porter, Brooks and Phillips LLP in Baton Rouge, La., and vice chairman of the Presbyterian Lay Committee (PLC), provided a general letter endorsing the application of neutral principles of law to resolve church property disputes when asked to do so by McPherson.

“There is an old adage that, ‘There are two things you don’t want to see how they are made, hot dogs and legislation.’ There could theoretically be many reasons that are entirely unrelated to the merits of the bill itself why a bill that would codify the application of neutral principles to church property disputes might be defeated during the legislative process,” Lunceford said. “Confusion, misunderstanding or perhaps misrepresentations about a complex subject could have been a factor. It is also possible that some legislators may have incorrectly thought the bill was a forbidden intrusion by the state into religious affairs. I was not privy to all of the discussions and so I can’t say with certainty what the reasons were. I would have to defer to the bill’s sponsors in the legislature.”

Citing a 1973 Kansas Supreme Court decision in Gospel Tabernacle Body v. Peace Publishers & Co, 506 P.2d 1135,1137 (KA 1973), Lunceford continued, “Regardless of the reasons, though, neutral principles of law should arguably still govern in Kansas courts … . The law recognizes the distinction between the church as a religious group … and the church as a corporation owning real estate. [I]n the latter the activities of the church are subject to the same laws as those in secular affairs.”


Making its way to the floor

The bill was introduced by the Senate Judiciary Committee at the request of Kansas Attorney General Derek Schmidt. It contained provisions related to temporary injunctions and temporary restraining orders.

The House Committee in 2013 amended the language and provided the substitute bill for SB 18 regarding church property disputes after previously holding an informational hearing when verbal proponent testimony was given by McPherson and Colonial Presbyterian Senior Pastor Jim West, as well as written testimony in support of the measure by PLC Chairman Forrest A. Norman, an attorney with Dickie, McCamey and Chilcote P.C. in Cleveland, Ohio. Written testimony against the bill was submitted by a representative from the Presbytery of Southern Kansas.

Additional testimony by the same parties was received in the 2014 House Judiciary Committee hearing.


A case for neutral principles law

The constitution of the Presbyterian Church (USA) holds that a trust clause exists between the denomination and individual congregations, laying a claim that “all property held by or for a particular church … is held in trust … for the use and benefit of the PCUSA.”

The result of such a clause, when given legal effect, shifts control of local church property from the local congregation, whose financial gifts acquired and built the property, to the national governing body.

“When it comes to establishment of a trust, neutral principles establish that both parties knowingly enter into it. It makes matters clear for both sides,” said West, whose congregation went through a similar situation with Heartland Presbytery. “If a church had property in existence before the trust clause was unilaterally added to the PCUSA constitution, a neutral principles application defends that church from losing its property if it seeks to leave the PCUSA. It creates a level playing field for both parties.”

Missouri, Kansas’ neighbor to the east, went through such a legal issue in 2012 when a court ruled that the PCUSA’s trust clause violates state law and awarded the property of Colonial Presbyterian Church to the congregation. The legal battle ensued when Colonial voted to leave the PCUSA for the Evangelical Presbyterian Church (EPC) in 2010, setting off a series of suits and countersuits related to the issue of property ownership.

Heartland Presbytery claimed that a trust existed between the church and denomination, but Judge Justine E. Del Muro cited the neutral principles application and ruled that Colonial was the legal owner of all church property. While the church’s bylaws stated that it was subject to the PCUSA’s constitution, it also showed the congregation was subject to the laws of Missouri, and those state laws pertaining to trust creation superseded the denomination’s Book of Order.

Noting that Missouri has established application of neutral principles law, West said, “Kansas churches are in a different situation than Missouri, and this negative ruling in Kansas is not helping. We were hoping Kansas would step up and adopt a similar approach because that seems only fair. It’s disappointing legislators chose not to. Unfortunately, I think politics won the day.”


Opposing the bill

Barbara Bollier, 21st District Representative in Kansas and former member of the Village Presbyterian Church session, spoke out in opposition to the bill.

“I was opposed because in Kansas we operate under a hierarchical deference law, and all church property is deeded and set up under that law,” she said in an interview with The Layman. “I just happened to be on the session (at Village Presbyterian) when there was testimony from (Colonial Presbyterian Church in Missouri) in a suit against our presbytery (Heartland) because they wanted to leave over the ordination of gays. All of us in the presbytery in Kansas know you can leave, you just don’t get your property. You have to pay for it, or you stay in the PCUSA.”

Bollier also indicated that she did not feel enough legwork had been done to determine the impact of such a law for churches in other denominations, alleging that McPherson was pushing the bill because his church wants to leave the denomination.

“It’s bad to pass laws when you haven’t checked with people. I felt not enough effort had been made to contact other denominations to determine if a change in the law would affect them and how,” Bollier said. “Since then I found out that the representative pushing this bill attends a church that wants to leave, so they want this law changed so they can take their property with them. That’s significant. I didn’t feel this law was in the best interest of all the churches in Kansas at this point.”

Eric Laverentz, senior pastor at Stanley Presbyterian Church, refuted Bollier’s claim.

“Right now our congregation is merely working together with our presbytery (Heartland) to have conversations to help our people understand the many important issues facing the PCUSA” Laverentz responded. “We are letting those play out. To say we are planning to leave is premature and untrue.  There are certainly other valid reasons for wanting to clarify state law.”

Bollier went on to explain that her opposition to the application of neutral principles law had nothing to do with a perceived tie to the Religious Freedom Bill, though she acknowledged a growing perception that the reason churches are leaving the denomination does have something to do with homosexuality.

“The reason Colonial left the presbytery was over gay ordination, but I did not bring up anything about gay issues at all. That would be inappropriate,” Bollier said. “I was concerned because not enough churches had been contacted. I really felt that this had to do with following Presbyterian rules, and this bill was trying to get around doing that. You can always leave the church with the understanding that the property belongs to the PCUSA. It’s always been that way, and that’s my understanding of hierarchical deference.”


Speaking out through Twitter

On his Twitter feed, John Knox Presbyterian Kirk Pastor Chad Herring also spoke out against those backing the proposal, maligning McPherson as the sponsor as well as West and the Presbyterian Lay Committee (PLC) for offering testimony supporting the measure.

Herring wrote, “just found out that @preslayman is trying to change KS law to make it easier for churches to leave pcusa,” adding “That’s exactly what this is: changing the agreed upon way we deal with schism.” Another feed from Herring simply read, “We had no idea. Scandalous. And sinful.”

In response to posts from Herring, Marci Auld Glass, a member of the Presbyterian Mission Agency Board’s Special Offerings Task Force, tweeted, “wow the @preslayman needs to stop promoting schism.”

Herring did not respond to a phone call from The Layman seeking comment about the issue.