Virgina Supreme Court Rules in Favour of TEC’s ownership of Fall Church.

VA Court Says George Washington’s church belongs to TEC
The Falls Church loses in Virginia Supreme Court

Mary Ann Mueller with David W. Virtue
April 18, 2013

The Justices of the Virginia Supreme Court bought The Episcopal Church’s hierarchal claim and Dennis Canon argument and ruled that historic Falls Church indeed belongs to The Episcopal Church based on the court’s understanding of Code § 57-7.1 which deals with implied trusts for hierarchical churches.

In a 42-page ruling, released today (Thursday) Justice Cleo E. Powell overturned an earlier 2008 Fairfax County Circuit Court ruling by Randy I. Bellows.

“In reviewing Code § 57-7.1, we are guided by well-established principles of statutory construction,” the Justice wrote.

“When the language of a statute is clear and unambiguous, we are bound by the plain meaning of that language,” he said quoting the 2002 Industrial Development Authority vs. Board of Supervisors case.

The Virginia Supreme Court Justice put a lot of stock in the Dennis Canon in devising his opinion.

“In the present case, we need look no further than the Dennis Canon to find sufficient evidence of the necessary fiduciary relationship,” he writes, stating that the Dennis Canon merely confirmed the pre-existing relationship between The Episcopal Church, its dioceses, and their parishes.

He cited a number of court cases which hold that position. Rector, Wardens & Vestrymen of Trinity-St. Michael’s Parish, Inc. v. Episcopal Church, a 1993 Colorado ruling; Episcopal Diocese of Mass. v. DeVine, a 2003 Massachusetts Appellate Court ruling; Trustees of the Diocese of Albany v. Trinity Episcopal Church, a 1999 New York Appellate Division ruling; Bishop & Diocese of Colorado v. Mote, a 1986 Colorado ruling; and Protestant Episcopal Church in the Diocese of New Jersey v. Graves, a 1980 New Jersey ruling. The justice took little note of the fact that The Falls Church precedes the establishment of The Episcopal Church. The colonial church was founded in 1732 as a Church of England plant. Even George Washington was a vestry member in 1762 and a warden in 1763 more than a decade before the first volley was fired in the Revolutionary War, which would effectively end the Church of England’s interest in The Falls Church congregation. “Upon joining TEC and the Diocese in 1836, The Falls Church agreed to ‘be benefited and bound . . . by every rule and canon which shall be framed, by any Convention acting under this constitution, for the government of this church in ecclesiastical concerns,'” Justice Powell opinioned, stating that The Falls Church Vestry Manual notes that the congregation is subject to the Constitution and Canons of The Episcopal Church and the Diocese of Virginia. “…it is clear that The Falls Church agreed to be bound by the constitutions and canons of both TEC and the Diocese,” the justice wrote.

Justice Powell also outlined the close ties between The Falls Church and Diocese of Virginia.

“Turning to the course of dealing between the parties, the record clearly demonstrates that The Falls Church allowed the Diocese to play an active role in its overall operations,” he noted specifically pointing out that occasionally the Diocese would veto a clergy hiring, and that for at least100 years The Fall Church sent representation to the Annual Convention and that the Episcopal Bishop of Diocese of Virginia made annual visitations to the parish since 1934.

However, when one considers the constitution and canons, specifically the adoption of the Dennis Canon, and the course of dealing between the parties, The Falls Church, TEC and the Diocese intended, agreed and expected that the property at issue would be held in trust by The Falls Church as trustee for the benefit of TEC and the Diocese. As such, we find that the fiduciary relationship required to impose a constructive trust has been shown to exist,” the justice writes. “The fact that The Falls Church attempted to withdraw from TEC and the Diocese and yet still maintain the property represents a violation of its fiduciary obligation to TEC and the Diocese.”

” …we will reverse the judgment of the trial court with regard to its analysis of Code § 57-7.1 and find that TEC and the Diocese have proven that they have a proprietary interest and impose a constructive denominational trust in the properties,” Justice Powell writes. “However, as the imposition of a constructive denominational trust still requires the conveyance of the property, we will affirm the trial court’s order requiring that The Falls Church convey the property to TEC and the Diocese.”

“With regard to the disposition of personal property acquired by The Falls Church after the vote to disaffiliate, we will reverse the judgment of the trial court and remand for further proceedings consistent with this opinion,” he continues. “We will affirm the remainder of the trial court’s judgment.”

On hearing the news Canon lawyer Allan Haley said the ruling goes all over the place. It says VA follows neutral principles, but then it says the Dennis Canon can be recognized by VA courts, despite the fact that the “trust” that canon created was invalid under VA law in 1979 when it was passed. It says that a hierarchical church – necessarily – has more than just a contractual relationship with its parishes, but that relationship can’t be examined under neutral principles. And it says that it will allow “hierarchical” churches to accomplish, through the vehicle of a court-created “resulting trust,” that which they could not accomplish on their own, through “neutral principles.”

Haley noted that the ruling does return to The Falls Church about $1-2 million in donations made to it after it voted to disaffiliate in 2006.

he Washington Post reported that it was not immediately clear whether there would be an appeal by either side. If there is not, this would end a property dispute that drew global attention starting in 2006 when more than a dozen Virginia congregations voted to leave the Episcopal Church but keep the church properties, arguing that the denomination had “left” by becoming more liberal on homosexuality, the role of women and how God views non-Christians.

Similar disputes have roiled Episcopal churches around the country and other parts of mainline Christianity, not only on questions of gay equality but also on more secular issues related to property rights. The Virginia dispute also became an issue in global Anglicanism – of which the Episcopal Church is part – when one of the breakaway leaders was disinvited to a global Anglican meeting.

Even after their votes, the conservative congregations have remained part of Anglicanism by being taken in by more like-minded Anglican bodies in Africa. They have since formed a U.S. wing that they hope will become a separate Anglican branch like the Episcopal Church.

After the Fairfax County Circuit Court decision, the Episcopal Church and its Virginia Diocese reached agreements with six other congregations involved in the court case to divvy up money and property. Only the Falls Church pursued an appeal.

George Ward, senior warden for the Falls Church Anglican, said that his community was disappointed by the ruling but that it is “thriving.” The Anglican group in the auditorium is far larger than the Episcopal group that won the sprawling property; about 200 Episcopalians come on a typical Sunday, said its rector, the Rev. John Ohmer.

The Rev. Shannon Johnston, the Episcopal bishop of Virginia, said the diocese was “grateful.”

Mary Ann Mueller is a journalist living in Texas. She is a regular contributor to VirtueOnline


“The fact that The Falls Church attempted to withdraw from TEC and the Diocese and yet still maintain the property represents a violation of its fiduciary obligation to TEC and the Diocese.” Justice Cleo E Powell – 

In this determination, the Virginia Supreme Court has ruled that the departing clergy and people of Falls Church, Virginia, have no right to hold on to the property of the Diocese, which, under canon law, belongs to the original owners, The Episcopal Church (TEC). This decision will no doubt disappoint the departed, ex-TEC, parishioners.

Despite the continuing protestations of a lawyer used by the departing entity, Mr Allan Hailey (known in blogging circles as ‘Anglican Curmudgeon’) that the Dennis Canon, which upholds the property rights of TEC in such cases of intentional schism, is still valid; he seems to have misjudged the outcome of this, and other attempts by schismatic entities, to take the property of TEC. Here is Mr. Haley’s opinion : “On hearing the news Canon lawyer Allan Haley said the ruling goes all over the place”.

As a lawyer, perhaps Mr Haley feels he knows better that the Supreme Court officials as to the propriety of what has finally been decided in court. Whatever he now feels about the result, Mr Haley and his advisers will obviously feel greatly disappointed. However, he and they must have had some idea that their plan for alienation of the property of TEC would not work in the long term.

One can only feel for those loyal to TEC who have stayed on in the meantime , hopeful of a positive outcome from the attempt of the departing parishioners and clergy to alienate their building and the property of The Episcopal Church. May they find relief – along with their Bishop Shannon Johnston – that justice has at last been seen to have been done.

Father Ron Smith, Christchurch, New Zealand

About kiwianglo

Retired Anglican priest, living in Christchurch, New Zealand. Ardent supporter of LGBT Community, and blogger on 'Thinking Anglicans UK' site. Theology: liberal, Anglo-Catholic & traditional. regarding each person as a unique expression of Christ, and therefore lovable.
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