Rev. Phil Ashey: Update on court proceedings today for Christ Church Savannah

By The Rev. Phil Ashey, J.D.
AAC email update
posted August 14, 2009

In Prayer and in Court

I am writing from Savannah, Georgia, where I arrived last night to join with 200 people in a prayer vigil at the "Mother Church of Georgia," Christ Church Savannah, in preparation for the hearing today in Chatham County Superior Court.

The sanctuary is holy ground, sanctified by the prayers of the saints and the pulpit of George Whitfield and John Wesley. Last night I saw among the crowd the Vicar-General of the new Anglican Diocese of the Southeast, the Rev. Neil Lebhar, and clergy representing different churches in Savannah-including Episcopal churches-who are standing in solidarity with the people of Christ Church. There were visitors who had driven from as far away as Monroe, Georgia and Jacksonville, Florida just to pray in solidarity with the parishioners of Christ Church. It was a tremendous encouragement to receive personal greetings and words of biblical encouragement from Vicar-General Neil Lebhar and the pastors of churches in Savannah, who expressed great affection for the Rector of Christ Church, the Rev. Marc Robertson, and for the people of Christ Church as they stand for Biblical truth and "the faith once delivered to the saints." Even more encouraging was the list that Senior Warden Mrs. Carol Rogers-Smith shared with the gathering-a list of all the people who were praying at that very hour with Christ Church. Brothers and sisters in Christ from all over the world-Korea, Uganda, the U.K., Malaysia, California, Michigan, Georgia, South Carolina, Ohio, Virginia and more-were praying for Christ Church Savannah.

The vigil itself was beautifully planned by the Rector and his staff, with a combination of greetings, meditations, hymns classical and contemporary, collects from a variety of Anglican prayer books, and silence for personal prayer. It was an honor and a privilege to have been invited to offer the four meditations: on overcoming anxiety, peace in the storm, overcoming bitterness, and winning and losing in the Kingdom of God.

During the vigil, a number of us also had the privilege of pulling aside into the chapel to pray for members of Christ Church's legal defense team, including their Chancellor, Neil Creasy, and co-counsel, Steffen Johnson. Steffen Johnson is among the lead counsel for the legal defense team in the Anglican District Virginia (ADV) cases which are currently on appeal to the Virginia Supreme Court. Steffen is not only a brilliant advocate but he is above all a fully-devoted follower of Jesus Christ who is a passionate prayer warrior. Many in the ADV will know that Steffen and co-counsel have prayer-walked the churches they are defending, and encouraged prayer meetings like the kind we experienced last night.

It is a remarkable thing to be among people who are facing the loss of their church home, and the historic buildings from which the gospel of Jesus Christ has been proclaimed uninterrupted for 300 years. As I looked into people's faces I did not see fear or grief. Instead, I saw faith, hope, a desire to move beyond bitterness, an eagerness to hear God's word and confidence in his promises. As we prayed together in the chapel, voices were raised in loud praise of God and his goodness and faithfulness, in passionate prayer against spiritual strongholds-and not against flesh and blood (Eph 6:13). When we sang, we sang with joy and lifted our voices to the Lord in praise and worship. One had the tangible sense that, even if these hallowed halls are lost to The Episcopal Church (TEC), a deeper victory will have been won for the people of Christ Church as they press on with the work of the Kingdom.

The hearing today in Courtroom F of the Chatham County Superior Court was packed-literally standing room only. Members from Christ Church were in abundance, and there were also members from the "shadow" congregation and the Episcopal Diocese of Georgia, including Bishop Loutit. The audience was subdued, quiet and polite throughout the entire proceedings.

We began at 1:30pm and final rebuttal concluded at 3:45pm.

The Honorable Michael Karpf presided and informed counsel and the audience that the issues were too numerous and complicated for him to issue a ruling today and that they should be patient. He will take the arguments under submission and issue a ruling as soon as his calendar permits. He then invited counsel for the plaintiffs, the Episcopal Diocese of Georgia and TEC, to make their statements.

Without going into every detail, today's hearing was on a motion for summary judgment by plaintiffs (TEC and the Diocese) asking for immediate possession of all real and personal property of Christ Church and an accounting. The arguments centered on the disposition of church property cases by "neutral principles of law" as decided by the United States Supreme Court in Jones v. Wolf. TEC and the Diocese interpret Jones v. Wolf to read that in such a "neutral principles" case, where the governing documents of a hierarchical church are clear, they are decisive. Hence the 1979 Dennis Canon-which unilaterally imposed a trust interest in favor of TEC in the property of each local church-trumps all other principles and the property belongs to the Diocese and/or TEC.

Not so fast, said the Judge. Is this Dennis Canon "severable" from the rest of the TEC canons-including matters of doctrine into which the courts cannot inquire? Does the Dennis Canon trump Diocesan canons that cut in favor of Christ Church? In response to TEC's argument that the Dennis Canon is merely a codification of a "common understanding and practice" that the property of the local church is held in trust for the denomination, Judge Karpf asked if a "mere understanding" not expressly within the governing documents is a neutral principle? What if the rules of procedure governing the passage of a canon by General Convention were violated? What about the unilateral nature of the Dennis Canon and the lack of notice to the local congregation?

Now it was Christ Church's turn to argue against plaintiffs motion for summary judgment and in support of their cross motion for summary judgment against TEC and the Diocese. Counsel for Christ Church argued that the plaintiff's interpretation of "neutral principles" in Jones v Wolf was seriously flawed, and that their arguments ignored both Georgia law and the unique nature of the 1789 Georgia legislature's grant of property to Christ Church prior to the very existence of the Diocese of Georgia.

However, the Judge questioned the efficacy of the 1789 grant after Christ Church's subsequent accession in 1918 to the Constitution and Canons of the Diocese of Georgia. Counsel responded that the accession was limited to the Constitution and Canons at that time, and not in perpetuity to every subsequent amendment (including by incorporation the 1979 Dennis Canon). Counsel also argued that Christ Church amended its charter in 2006 to remove that accession language, and was not required by either Georgia law or the canons of the Diocese to give notice.

Christ Church also took the offensive in challenging the authority of the Dennis Canon. Judge Karpf was troubled by Christ Church's failure to make any objection to the Dennis Canon for almost 25 years, until doctrinal differences with TEC led to their withdrawal in 2007. In response to questions along this line, counsel responded that TEC is a New York corporation. Under New York law, a membership association that asserts a property interest must give its members advance notice of such a claim, and an opportunity to contest or accede to that claim. Obviously, this never happened in the last minute passage of the Dennis canon at GC 1979: it was made effective immediately upon passage, and notice was given (if at all) only after the fact.

Moreover, under principles of Georgia law, TEC and the Diocese would be "estopped" or prevented from taking advantage of Christ Church's failure to object to the Dennis Canon and their subsequent engagement with the Diocese on other matters regarding the property, for lack of adequate and advance notice. Counsel also argued that the Dennis Canon was not merely a codification of an already existing "understood and implied" trust interest, but was rather a massive and unprecedented taking of church property by the creation of a unilateral and implied trust. Counsel cited Bishop White and his commentary on the Constitution and Canons of TEC where he stated unequivocally that the Dennis Canon was a response to Jones v Wolf and not merely a codification of existing practice. When the judge asked if Christ Church had been given adequate notice in advance, could it have objected and left with the property, counsel responded in the affirmative.

It seems that the judge could rule in either one of three ways: (1) Grant TEC and the Diocese's motion for Summary Judgment; or (2) grant Christ Church's motion for Summary Judgment, or (3) deny both motions and set the case for trial. Either way, this case will go on by appeal or trial.

During the prayer vigil, the Rev. Marc Robertson shared a vision he had in his early years as rector of Christ Church. The Lord showed him a "Sherwin-Williams" picture of God's anointing pouring out and flowing over and through Christ Church to the community. This anointing is for the healing of many. Please pray that God will continue to fulfill this great Kingdom vision for Christ Church as they await the next steps.

Yours in Christ,
Phil+

(photo by Raymond Dague)