A Letter to Kansas State Representative Barbara Bollier regarding House Substitute for Senate Bill No. 18

Loren Golden
Overland Park, Kansas

Barbara Bollier, MD
Kansas State Representative, 21st District
State Capitol
Topeka, Kansas 66612

Dear Representative Bollier:

It has recently come to my attention that on February 26, 2014, the Kansas House of Representatives debated a bill (House Substitute for Senate Bill No. 18) introduced by Representative Craig McPherson of the Eighth District that would have replaced the Hierarchical Deference approach to resolving church property disputes with the Neutral Principles of Law approach recommended by the U.S. Supreme Court in the 1979 Jones v. Wolf decision.

It has also come to my attention that you, as my elected representative in the Kansas Statehouse, argued and voted against this bill.

It is my considered opinion that the Hierarchical Deference approach currently enshrined in Kansas property law does not well serve the citizens of the state of Kansas, let alone the citizens of the 21st House District, whereas the Neutral Principles approach does.

Recently, as I am sure you are aware, my own congregation, Colonial Presbyterian of Kansas City, of which I have been a member for seventeen years, went through a legal struggle with Heartland Presbytery of the Presbyterian Church in the United States of America (PCUSA), with which Colonial was formerly affiliated, over the issue of the ownership of Colonial’s property, both in the state of Missouri and in the state of Kansas.  Now, Colonial is organized as a Public Benefit Non-Profit Corporation in the state of Missouri, and its Articles of Incorporation state, “Any property held by or for the Corporation or titled in the name of the Corporation shall be for the exclusive use and benefit of the Corporation only in furtherance of the purposes set forth herein, without a trust in favor of any other entity; provided, however, that any property deemed to be held in trust shall be held in a revocable trust, unless expressly stated otherwise in a written instrument describing said trust, and accepted and agreed to in writing by the Trustees of the Corporation.” (emphasis added)

From its incorporation in 1953 until 1983, Colonial was voluntarily associated with the Presbyterian Church in the United States (PCUS), and from 1983 until August 22, 2010, it was voluntarily associated with the PCUSA.  In the early 1980s, prior to its union with the United Presbyterian Church (USA), the PCUS amended its Book of Order to add a Trust Clause, similar to that found in the PCUSA Book of Order at the time Colonial voted to terminate its voluntary association with the PCUSA and instead to voluntarily associate with the Evangelical Presbyterian Church: §G-8.0201: “All property held by or for a particular church, a presbytery, a synod, the General Assembly, or the Presbyterian Church (U.S.A.), whether legal title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in programs of a particular church or of a more inclusive governing body or retained for the production of income, is held in trust nevertheless for the use and benefit of the Presbyterian Church (U.S.A.).”  Needless to say, Colonial’s Articles of Incorporation and the PCUSA Book of Order’s Trust Clause are at odds.

Colonial’s property was purchased and has been (and still is) maintained by the donations of its members.  Colonial’s Articles of Incorporation do not state that Colonial’s property “is held in trust…for the use and benefit of the (PCUSA)”.  Indeed, as stated above, Colonial’s Articles of Incorporation as a Missouri Public Benefit Non-Profit Corporation do not recognize “a trust in favor of any other entity.”  Now the Missouri Circuit Judge who heard Colonial’s case against Heartland Presbytery, declared that “the language ‘for the use and benefit’, confers only a right to use the property, it does not confer ownership of the property.  The (PCUSA) Book of Order is a unilateral document created by the (PCUSA) as beneficiary of said trust and not by (Colonial), the grantor.  It is not signed by (Colonial).  The above clause in the Book of Order refers to property, generally.  Missouri law requires that in order for a trust to be created, the subject matter must be definite. … The above clause does not describe the property with any specificity.  Missouri law also requires that an express trust be created by the ‘direct or express words of a grantor or settler, or by the intentional act of the party having dominion over the property.’ … The above clause is drafted by the beneficiary and not the grantor contrary to and in violation of Missouri law.  For these reasons, the court finds that the above clause does not create a trust over (Colonial’s) property.” (Colonial Presbyterian Church v. Heartland Presbytery, Case No. 1016-CV24909, Division 4)  In other words, the PCUSA has no legal standing (at least in the state of Missouri) to unilaterally impose a trust on property owned by another corporation, even if said corporation, as an ecclesiastical body, is under the ecclesiastical oversight of the PCUSA, as Colonial was until August 22, 2010.  The Johnson County, Kansas, District Court (which has civil oversight over the property that Colonial owns in Johnson County, Kansas) and the Missouri Western District Appellate Court concurred.

The ownership of property is the purview of civil, not ecclesiastical, law.  Just because the PCUSA in its Book of Order asserts that all property of a particular congregation under its ecclesiastical oversight is held in trust for the benefit of the PCUSA does not mean that the particular congregation is thus bound to legally recognize that claim.  To quote from Colonial’s Bylaws: “These bylaws (the ‘Bylaws’), in like manner and consistent with the Articles, address themselves to civil matters, such as corporate governance and property.  It is recognized that the Church (as defined in the Articles; herein the ‘Church’) and its members are subject to ecclesiastical jurisdiction of church governing bodies (congregation, session, presbytery, synod, General Assembly, and the like) which jurisdiction extends only to spiritual matters and spiritual oversight; not temporal or civil matters.”

The Hierarchical Deference approach considers the denomination’s constitution in matters of church property ownership and not just those secular documents related to the actual ownership, such as the deed, charter, state statutes, and corporate governance documents.  In the case of the PCUSA Book of Order, the PCUSA intends to assert its ownership over the physical property of the congregations under its ecclesiastical oversight by means of the Trust Clause included in its Book of Order, regardless of whether or not the secular documents related to the actual ownership do, in fact, convey the ownership of the individual congregation’s property to the denomination by means of an agreed-upon trust explicitly stated in said secular documents.  However, for the civil courts to thus consider the denomination’s constitution (e.g., the PCUSA Book of Order) in property disputes is tantamount to the state enforcing ecclesiastical law in violation of the First Amendment prohibition of the establishment of religion.

Thus, for the civil courts, by reason of the Hierarchical Deference approach to church property law, to divest a congregation of its property when said congregation has not conveyed its property to its parent denomination by means of an explicit trust included in its Articles of Incorporation, By-Laws, or property deed, solely upon the denomination’s inclusion of a Trust Clause in its constitution, is an unjust violation of that congregation’s rights under the First Amendment.  Such a violation is not in the best interests of the citizens of the state of Kansas or of the citizens of the 21st House District.  For this reason, the defeat of House Substitute for Senate Bill No. 18 was also contrary to the best interests of the citizens of the state of Kansas and of the citizens of the 21st House District.

Therefore, I am writing to express my disappointment that you, as my elected representative to the Kansas Statehouse, both argued and voted against House Substitute for Senate Bill No. 18.  I would hope that in the future, should such a bill come up as a subject for debate and consideration on the House floor, that you would vote to approve it in consideration of the best interests of the citizens of the state of Kansas and of the citizens of the 21st House District.

Loren Golden