Protestant Episcopal Church in the Diocese of South Carolina v. Episcopal Church

JUSTICE KITTREDGE:

Because I believe the proper application of “neutral principles of law,” as enunciated in Jones v. Wolf,30 demands that all thirty-six local parishes retain ownership and control of their property, I would affirm the trial court in result.31

*252This Court may—indeed, must—resolve this property dispute on the basis of civil law, without regard to religious doctrine or practice.32 I first address the twenty-eight local churches that acceded in writing to the 1979 Dennis Canon. Justice Toal presents a scholarly analysis of South Carolina trust law. I take no exception to her presentation of general trust-law principles, and I join Justice Toal in result. However, for reasons I explain below, it seems to me that Jones v. Wolf creates some uncertainty as to what “neutral principles of law” means in the context of a church property dispute. As a result, I am not persuaded that a court may, within constitutional boundaries, simply apply general state trust law to decide this case. As best as I can interpret and apply Jones v. Wolf, it is my view that a trust was created as to the property of the local churches that acceded to the 1979 Dennis Canon. In what appears to be a pure application of neutral principles of law, Justice Toal would hold that accession to the 1979 Dennis Canon “was not a legally binding action to impose a trust under South Carolina law.” While I agree the national church could not unilaterally declare a trust over the property of the local churches, I would join Chief Justice Beatty and hold that the local churches’ accession to the 1979 Dennis Canon was sufficient to create a trust in favor of the national church. See Jones v. Wolf, 443 U.S. 595, 606, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979) (noting that courts must give effect to churches’ intent when churches structure property arrangements “in some legally cognizable form”).

I focus my comments on express trusts in light of First and Fourteenth Amendment considerations, for that is the basis on which the national church seeks to acquire control over the property of the local churches. I do not depart from Justice Toal’s position lightly, for she faithfully interprets South Car*253olina’s trust law as it applies to typical property disputes. Were the Court in the instant case permitted to apply the law of express trusts as we ordinarily would, the suggestion that any of the thirty-six local churches created a trust in favor of the national church would be laughable. Yet I find Jones v. Wolf teaches that a court must treat religious organizations differently in accordance with constitutional limitations and considerations. The burden the law imposes on a religious organization in creating a trust is reduced.

In resolving church property disputes, we learn from Jones v. Wolf that “neutral principles of law” is a bit of a misnomer, for it is not really “neutral” after all. If it were, why would the Supreme Court have taken pains to mandate that the burden imposed on a religious organization be “minimal”? See id. at 606, 99 S.Ct. 3020. And why would the Supreme Court have specified ways churches could establish an express trust, without indicating concern for whether those methods were valid under any state’s existing trust law? See id. at 603, 99 S.Ct. 3020. I believe where there is a dispute involving a local church’s property rights vis a vis a national religious society and an affiliated local religious body, constitutional considerations require courts to analyze and resolve the property dispute through the framework of a “minimal burden” on the national religious organization. See id. at 606, 99 S.Ct. 3020.

Two passages from Jones v. Wolf lead me to this conclusion. First, the Court in Jones v. Wolf spoke forcefully about the many advantages of the neutral principles of law approach:

The primary advantages of the neutral-principles approach are that it is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity. The method relies exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges. It thereby promises to free civil courts completely from entanglement in questions of religious doctrine, polity, and practice. Furthermore, the neutral-principles analysis shares the peculiar genius of private-law systems in general—flexibility in ordering private rights and obligations to reflect the intentions of the parties. Through appropriate reversionary clauses and trust provisions, religious societies can specify what is to happen to church property in the event of a particular *254contingency, or what religious body will determine the ownership in the event of a schism or doctrinal controversy.

Id. at 603, 99 S.Ct. 3020 (emphasis added).

If this were the sum total of what Jones v. Wolf said about neutral principles, I would without hesitation join Justice Toal in full. But the Jones v. Wolf Court went further. Specifically, the majority in Jones v. Wolf addressed the dissent, which preferred a rule of compulsory deference.33 In declining to mandate a rule of compulsory deference, the Court rejected the dissent’s argument that the neutral-principles method would frustrate the free-exercise rights of the members of a religious organization. The Court explained:

The neutral-principles approach cannot be said to “inhibit” the free exercise of religion, any more than do other neutral provisions of state law governing the manner in which churches own property, hire employees, or purchase goods. Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal, And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.

Id. at 606, 99 S.Ct. 3020 (emphasis added). It is this passage in particular that causes me to part company with Justice Toal’s adherence to the normal rules of the road concerning the creation of express trusts.

*255As I interpret the above passages, Jones v. Wolf imposes a minimal burden on a national religious institution in the creation of what courts must recognize as an express trust over the property of an affiliated local church. Thus, while general principles of law mark the starting point in resolving a church property dispute, the harder question is determining where to draw the finish line—just how much of the general law must a religious organization follow?

Here, as Justice Toal forcefully points out, the national church turns the law of express trusts on its head, as no local church (as “settlor”) took steps to create a trust, but merely responded to (“acceded” to) changes to church governance documents proposed by the national church. Nonetheless, given the Supreme Court’s imprimatur concerning the minimal burden that may be imposed on a religious organization, I conclude that a trust was created in favor of the national church over the property of the twenty-eight local churches that acceded in writing to the 1979 Dennis Canon,

The next question is whether these twenty-eight churches were irrevocably bound by the 1979 Dennis Canon. The national church accepted the invitation of Jones v. Wolf and created the equivalent of an express trust with a minimal burden. If the national church had followed state law as described by Justice Toal and actually created an express trust in the normal course, the national church would have a strong argument on the issue of revocability. But the national church cannot escape the method and manner in which it chose to create a trust, that is, by placing the trust provision in a church governance document that is inherently amendable.

Justice Hearn invokes what she calls the “common law default rule of irrevocability” to argue that the local churches were eternally bound by the 1979 Dennis Canon. However, this “default rule” is a presumption that is susceptible of evidence of a contrary intent. In my judgment, as explained below, the circumstances here overcome the presumption of irrevocability.

“If the meaning of the trust instrument is uncertain or ambiguous as to whether the settlor intended to reserve a power of revocation, evidence of the circumstances under *256which the trust was created is admissible to determine its interpretation.” Restatement (Second) of Trusts § 330 cmt. b (1959). Among the factors that could indicate a settlor intended to reserve a right of revocation are the character of the trust property, the relationship between the settlor and the beneficiary, and the reasons that induced the settlor to create the trust. E.g., id. §§ 330 cmt. c, 332 cmt. a (1959). I believe these factors militate in favor of the trust’s revocability.34 The disputed property includes land and buildings to which the local churches have long held title, in some cases for centuries. And the impetus to create the trust came not from the settlors (the local churches), but the beneficiary (the national church). Furthermore, I would not myopically invoke the common law presumption of irrevocability where, as here, the national organization seeking to impose the trust placed the trust language in a document that is by its very nature subject to amendment. As the legislature observed in a comment to the South Carolina Trust Code, “An unrestricted power to amend may also include the power to revoke a trust.” S.C. Code Ann. § 62-7-602 reporter’s cmt. (Supp. 2016).

In my view the circumstances described above—a trust provision drafted by a beneficiary and placed in an amendable church governance document—combine to overcome the common law presumption of irrevocability. As a result, I would hold as a matter of South Carolina law that under these facts the local churches were not forever bound by the trust provision, and they retained the authority to withdraw their accession to it.35 That is precisely what they did—through proper *257action, by those with proper authority, the Diocese and local churches withdrew their accession to the 1979 Dennis Canon in accordance with state law prior to the filing of this litigation.36 Therefore, I would affirm the trial court in result and hold that those churches that had previously agreed to the 1979 Dennis Canon are no longer bound by it.37

I turn now to the eight churches that never acceded to the 1979 Dennis Canon. Today, this Court allows (by a three-to-*258two vote with Chief Justice Beatty casting the deciding vote) the eight churches that were never subject to the 1979 Dennis Canon to keep their property. That is remarkable, for by a single vote the rule of law is preserved and property ownership is protected.

Prior to today’s opinion, the national church’s focus in this property dispute has been whether the 1979 Dennis Canon imposed an express trust on the property of the local churches. The national church throughout this litigation has relied on the 1979 Dennis Canon and the law of express trusts to support its claim of ownership over the church property of the thirty-six local parishes in question. But it is undisputed that eight of the local parishes were never subject to the 1979 Dennis Canon. Yet two members of this Court would go further and transfer to the national church ownership of the property of the eight churches that never agreed to the Dennis Canon. That is stunning. The effort by two members of this Court to strip the property from these eight churches confirms Justice Toal’s observation concerning their motivation to “reach[ ] a desired result in this ease.”

I first address the concurrence’s view that the Court may not even consider the status of the eight non-acceding churches on issue preservation grounds. The answer to this assertion is simple: “The appellate court may affirm any ruling, order, decision or judgment upon any ground(s) appearing in the Record on Appeal.” Rule 220(c), SCACR (emphasis added). The local churches, as winners at trial and respondents on appeal, were not required to play “what if we lose” in their briefs or during oral argument.

Moreover, as Justice Toal points out, the national church itself brought up the non-acceding churches. The national church acknowledged to this Court that only some of the thirty-six local churches involved in this litigation “made express promises in their governing documents to comply with the [njational [cjhurch’s rules” after the national church adopted the 1979 Dennis Canon.38 That obviously makes an *259issue out of the churches that did not make such promises, Although the concurrence may feign surprise at a majority of this Court addressing the status of the eight non-acceding churches, the national church surely cannot.

As to the merits of the national church’s claim to the property of the eight non-acceding churches, in my judgment the dissent on this issue (Justices Pleicones and Hearn) misreads the Supreme Court’s observation in Jones v. Wolf that complying with state property and trust laws would not impose an undue free-exercise burden on religious organizations as a command that states completely ignore their existing laws to placate hierarchical national churches. Properly applied to the non-acceding churches, there is no neutral principle of law that supports the conclusion Justices Pleicones and Hearn desire. As Chief Justice Beatty and Justice Toal note in their respective opinions, the framework set forth in Jones v. Wolf makes clear that, because of well-established South Carolina law, an express trust39 cannot be imposed on the property of those eight churches that never adopted the Dennis Canon. See S.C. Code Ann. § 62-7-401(a)(2) (Supp. *2602016) (stating that express trusts in real property “must be proved by some writing signed by the party creating the trust”); see also Beckham v. Short, 298 S.C. 348, 349, 380 S.E.2d 826, 827 (1989) (noting that under the then-applicable statute, “trusts in lands not manifested and proved by some writing signed by the party declaring the trust are utterly void and of no effect” (citation and internal quotation marks omitted)).

Nonetheless, the national church, with two members of this Court in support, desires the property of these eight churches by virtue of a “trust” the churches never acceded to. In short, these eight churches have never agreed to anything in a “legally cognizable form” indicating the slightest intention of transferring ownership of their property. Yet if Justices Plei-cones and Hearn had their way, these eight local churches would lose their property today. Under this approach, the 1979 Dennis Canon was unnecessary, for the national church would control the property of all local churches simply because the national church “said so.” Perhaps this explains the wisdom of the Jones v. Wolf majority in rejecting the rule of compulsory deference that Justices Pleicones and Hearn invoke today.

By a single vote, these eight local churches retain ownership of their property. The message is clear for churches in South Carolina that are affiliated in any manner with a national organization and have never lifted a finger to transfer control or ownership of their property—if you think your property ownership is secure, think again.

I dissent in part (concerning the twenty-eight churches) and concur in part (concerning the eight non-acceding churches).

. 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979).

. I join Justice Toal’s opinion, save for Part II.C.l’s conclusion that no trusts were created as to the twenty-eight churches that acceded to the 1979 Dennis Canon.

. By framing the issue before the Court as being which diocese is the "true” diocese of the national church, the lead opinion and concurrence preordain the result, for that is a question this Court clearly lacks authority to answer. See id. at 602, 99 S.Ct. 3020 ("[T]he First Amendment prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice.”). Moreover, quoting from a case cited by Justice Hearn, “recognizing the Episcopal Church as hierarchical does not resolve a property dispute such as the one here.” Diocese of San Joaquin v. Gunner, 246 Cal.App.4th 254, 202 Cal.Rptr.3d 51, 63 (2016).

. In my view, Justices Pleicones and Hearn cast their votes based on the rule of compulsory deference that was rejected in Jones v. Wolf. See id. at 604-05, 99 S.Ct. 3020 (noting the dissent in that case “would insist as a matter of constitutional law that whenever a dispute arises over the ownership of church property, civil courts must defer to the authoritative resolution of the dispute within the church itself" (internal quotation marks omitted)).

. I note that there is significantly less justification for adhering to the common law presumption of irrevocability where, as in this case, it is not consistent with the rationale behind the presumption—“[t]he theory ... that most trusts are created by way of gift and a completed gift may not be rescinded by the donor merely by reason of a change of mind.” Mary F. Radford, George Gleason Bogert & George Taylor Bogert, The Law of Trusts and Trustees § 998, at 235 (3d ed. 2006). Here, the trust was clearly not intended to effectuate a gift to the beneficiary (the national church); rather, the trust was drafted by the national church (the beneficiary) to benefit the national church. In addition, the settlors (the local churches) retained ownership of and continued to exercise exclusive control over the property.

. I reject any argument that the national church would be required to consent to any amendment of the trust provision, for the national *257church would never consent and the result would be a de facto irrevocable trust. Chief Justice Beatty accurately describes the national church as "nothing more than a demanding scrivener.” Allowing the national church to invoke the "minimal burden” approach of Jones v. Wolf in the creation of a trust is not a license to completely turn our back to neutral principles of law. If it is determined that a settlor retains the right to revoke a trust and the manner of revocation is not specified, the trust may be revoked " 'in any manner which shows a clear and definite purpose on the part of the settlor of the trust to revoke the same.' ” Peoples Nat’l Bank of Greenville v. Peden, 229 S.C. 167, 171, 92 S.E.2d 163, 165 (1956) (emphasis added) (quoting Broga v. Rome Tr. Co., 151 Misc. 641, 272 N.Y.S. 101, 106 (Sup. Ct. 1934)); see also S.C. Code Ann. § 62-7-602 reporter’s cmt. ("Where the right to revoke [is] reserved and no particular mode [is] specified, any mode sufficiently showing an intention to revoke [is] effective.”).

. There is no question that Bishop Lawrence and the local churches had the legal authority at the time to take the actions they did. Justice Hearn’s reliance on Diocese of San Joaquin v. Gunner is misplaced. In that case the attempted transfers of diocesan property by Bishop Schofield were ineffective because they “occurred after Schofield had been removed as bishop of the Diocese.” Diocese of San Joaquin, 202 Cal.Rptr.3d at 59. Not only that, but the entity to which Bishop Schofield attempted to transfer the property did not exist because he lacked authority under California law to change the diocese’s corporate name. Id. at 65-67. Conversely, notwithstanding the unrelenting vilification of Bishop Lawrence, it is manifest that Bishop Lawrence was duly ordained, appointed, and authorized to act at the time the property transfers and corporate amendments occurred, and they were conducted in accordance with South Carolina law.

. Despite Justice Hearn's claim to the contrary, reaching this conclusion does not require me to ignore the Nonprofit Corporation Act’s exception for religious organizations. See S.C. Code Ann. § 33-31-180 (2006). Section 33-31-180 grants supremacy to a religious corporation’s governing documents only "to the extent required by the Constitution of the United States or the Constitution of South Carolina.” Id. Therein lies the nub of this dispute, as ”[t]he exact scope of constitutional PJimitations is less than clear and is subject to debate.” Id. § 33-31-180 official cmt. (2006). Justice Hearn and I simply disagree as to what the Constitution requires.

. The national church acknowledged in its brief that "29 of the 36 parishes made express promises in their governing documents to comply with the [njational [cjhurch's rules after those rules had been amended to include the Dennis Canon in 1979.” Brief of Appellants at *25938. The same point was repeated by the national church's counsel during oral argument.

. I do not address constructive trusts, because that issue is not preserved for our review. The national church has relied exclusively on the law of express trusts throughout this litigation. The national church mentioned the term constructive trust just once in its fifty-one-page brief and not at all in its twenty-five-page reply brief. The sole reference to a constructive trust was a conclusory statement that “South Carolina's Trust Code and common law of constructive trusts” require the Court to enforce the Dennis Canon against all thirty-six parishes. Accordingly, the law of constructive trusts cannot serve as a basis to reverse the trial court. See, e.g., Brouwer v. Sisters of Charity Providence Hosps., 409 S.C. 514, 520 n.4, 763 S.E.2d 200, 203 n.4 (2014) (refusing to consider an argument in the appellant's brief that was "conclusory” and “not supported by any authority”); First Sav. Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994) (noting a claim is deemed abandoned when the appellant fails to support it with arguments or citations to authority); cf. I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 421-22, 526 S.E.2d 716, 724 (2000) (stating that although an appellate court may affirm a decision on any ground appearing in the record, "[a]n appellate court may not, of course, reverse for any reason appearing in the record”). I add that the phrase "constructive trust” was never mentioned in the approximately hour-long oral argument before this Court. In any event, Justice Toal correctly explains why the law of constructive trusts provides no lifeline to the national church.