Presbytery dismissal policies ‘do great harm to local churches’
September 21, 2009
In the September, 2009 issue of The Layman, and posted Sept. 3 on The Layman Online, there is a story about the dismissal process policy recently adopted by Salem Presbytery in North Carolina. I am sure that some of those involved in the effort to adopt the Salem policy had good intentions. Certainly, it is better than some very draconian policies that have been adopted elsewhere. The Salem policy has some commendable features, such as a pro rata procedure for asset division that correlates with the percentage of a congregational vote on dismissal.
However, Layman readers should be informed that the Salem policy, like presbytery-adopted dismissal policies generally, will still do great harm to local churches.
Let me review some preliminary problems with the Salem policy before turning to the heart of the matter. Whatever the intentions of its promoters, the Salem policy gives a presbytery effective control from the outset over what should at least initially be an internal congregational process of discernment, free of external interference. The Salem policy also leaves unclear whether a 90 percent vote or a 66 percent vote is required to petition for dismissal. (As worded, subparts 2.C and 2.F appear to conflict.) Also, one section of the Salem policy removes any reason for having included in another section extraordinary notice requirements. The Salem policy does this by requiring a minimum two-thirds vote, not of all those present and voting but of all those on the active rolls. That is an extraordinary burden. It varies widely from the usually-governing Robert’s Rules of Order. There is no real need for such a high burden when the congregational meeting is as thoroughly noticed to begin with as the Salem policy calls for.
To illustrate, suppose that a meeting is as thoroughly noticed as the Salem policy imposes – for 30 days, mailed to every member, announced at every service for a month, etc., and there being a proper quorum, the meeting is called to order. Then further suppose that after such extraordinary notice 90 percent of those who cared enough to show up and vote decided to vote for dismissal. Under the Salem policy, if that 90 percent happens to represent 65 percent of the active roll then the motion to petition for dismissal is deemed to have been defeated. Is that a fair outcome, given the great lengths taken to give wide notice of the meeting?
As written, the Salem policy imposes both an extraordinary notice requirement and an extreme approval requirement. Perhaps the former might be justified as a desired safeguard in the absence of the latter, in order to assure that any vote is a true reflection of congregational sentiment. But to require both is excessive. The extraordinary notice requirement gives ample opportunity for all those eligible members who are interested to attend, so there is no real reason to depart from the normal super majority requirement of all those present and voting.
Turning now to the heart of the matter, more troubling is the Salem policy’s allowance for the appointment of an administrative commission by the presbytery any time the presbytery leadership, exercising unfettered discretion, alleges that the local church is not participating in the dismissal process in good faith. In the real world, this translates to a very one-sided negotiating process. A local session or pastor will be hard-pressed to resist or counter the demands (always phrased “pastorally,” of course) made by a “Conciliation Team” or by a “Resolution Team” when doing so risks the appointment of an administrative commission with power to remove the pastor and session and seize control of the property.
At its most fundamental level, presbytery-adopted dismissal policies, whether Salem’s policy or other policies, present a real risk of great harm to any church that decides to use procedures in a presbytery-adopted policy as the way to negotiate. I wish it were not so. Unfortunately, though, presbytery lawyers have made it so. Presbytery lawyers will argue, and have already argued in some courts, that if a church has been participating in a presbytery-approved dismissal process then any local church property protection that Section 6-8 of the PCUS Constitution might have otherwise given is no longer available.
What is Section 6-8, you ask? Section 6-8 gives former PCUS churches the right to decide the disposition of their property without any presbytery permission required, so long as that local church voted for the exception of G-8.0701 in the PCUSA Book of Order within eight years of reunion. Section 6-8, when applicable, negates any property trust.
The logic is inescapable. The unfettered right to control the disposition of one’s property precludes any right by a third party to determine the disposition of that same property. As one trial judge recently wrote, “(A church’s) timely noticed decision to avail itself of Section 6-8 precludes enforcement of the asserted trust under any reasonable interpretation of the denomination’s own governing documents.” In order for 6-8 to apply, the congregation must act as a PCUS church (or as a PCUSA church, the legal successor to the PCUS).
And here is where presbytery lawyers argue a “Catch 22.” Presbytery lawyers are telling courts that if ending the connection with the PCUSA is being contemplated, whether by disaffiliation, dissolution or dismissal, then the local church is not acting as a PCUS (now PCUSA) church. Hence, so the argument goes, the protection of Section 6-8 no longer applies.
Are you scratching your head at this point? If so, you have lots of company. This argument by presbytery lawyers is nonsense. If a PCUS church timely voted on G-8.0701, then Section 6-8 gives it the unfettered right to sell its property, if it has not disaffiliated. But if it exercises that right, or thinks about exercising that right, it loses it? This argument by presbytery lawyers strips Section 6-8 of any meaning. It makes Section 6-8 a sham.
But why even give this argument, nonsensical it may be, to presbytery lawyers to use against your local church in the first place? Why disaffiliate, or begin engaging in a dismissal process, or publicly consider the future possibility of doing so, prior to securing clear title to your local church property? And if your church seeks to secure clear title first but does so without timely getting the protection of a proper restraining order in place, the presbytery, if it does not appoint an administrative commission to take over your church, can vote to dissolve your church and then later argue to the court that your church no longer has the protection of Section 6-8 because it no longer is acting as a PCUSA church.
Those who participated in formulating the Salem policy, or other presbytery dismissal policies, may have been benign in their intentions. Nevertheless, once negotiations reach an impasse (as they often do when it eventually comes down to the presbytery’s financial demands) the presbytery’s lawyers take over. And they will attempt to use a church’s good faith participation in a dismissal process as a weapon against it. This is not speculation. Sadly, it is already happening.
Readers should also be made aware of another club that presbytery lawyers are trying to use against local churches who may have participated in good faith in a presbytery dismissal process.
When the dismissal process reaches an impasse over the presbytery’s eventual financial demands, and the local church is compelled to seek an impartial civil forum to consider its just claims
, presbytery lawyers will allege that the civil court is now interfering with ecclesiastical affairs. Civil court involvement, on the heels of or in the midst of a dismissal process that was under way, will be said by presbytery lawyers to violate the presbytery’s free exercise of religion under state or federal constitutions. Presbytery lawyers will attempt to use the fact that a presbytery dismissal process was being used as a basis for arguing that the civil court is now without power or jurisdiction to help the local church.
There are compelling counter arguments to these assertions. Indeed, the U.S. Supreme Court has said that, far from interfering with a presbytery’s free exercise rights, resort to an impartial civil forum preserves the free exercise rights of the local congregation and avoids an unconstitutional state establishment of the presbytery’s claimed hierarchy. Nevertheless, by engaging in a presbytery-adopted dismissal process in the first place, local churches will have given presbytery lawyers opportunity to exploit that participation and use it against them. Local churches will have provided ammunition that presbytery lawyers can use to muddy the waters, clog the court record, and try to confuse local judges.
Again, I wish it were not so. Unfortunately, the arguments that are already being urged in court by some presbytery lawyers against local churches prove otherwise. To be sure, no court has yet agreed with the presbytery’s arguments, but that has not stopped presbytery lawyers from making them. It drives up legal costs and furthers a strategy of trying to bleed small churches into financial submission.
Evangelicals who participated in drafting and promoting presbytery-based dismissal policies were undoubtedly unaware of how they could be used, and sadly are being used, in court by presbytery lawyers against local churches. Nevertheless, such policies are a major trap for the unwary. If a church wants to negotiate in the hope of avoiding protracted litigation that is commendable. It should of course try. But beware. Negotiations are only successful when the playing field is level. There are much better ways to negotiate than using presbytery-adopted dismissal policies. Knowledgeable counsel can advise your church how.
What a church should not do, though, is naively walk into a trap that can be used against it if at some point during negotiations it concludes that it can no longer dance to more-strident-than-expected presbytery tunes.
Lloyd J. Lunceford
Taylor, Porter, Brooks & Phillips, L.L.P.
Baton Rouge, La.