Case 3:13-cv B Document 24 Filed 09/30/13 Page 1 of 5 PageID 401 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

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1 Case 3:13-cv B Document 24 Filed 09/30/13 Page 1 of 5 PageID 401 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION HIGHLAND PARK PRESBYTERIAN CIVIL ACTION NO. CHURCH INC., Plaintiff, 3:13-CV-3813 v. GRACE PRESBYTERY, INC., Defendant. PLAINTIFF S REBUTTAL TO DEFENDANT S SUR-REPLY Plaintiff, Highland Park Presbyterian Church ( HPPC ), files this Rebuttal to Defendant s Sur-Reply (Doc 14) in support of its Emergency Motion to Extend Temporary Restraining Order, and in support shows the Court the following: ARGUMENT AND AUTHORITY 1. Defendant Grace Presbytery s Sur-Reply to Plaintiff s Emergency Motion to Extend (Doc 14) offers little that it has not said before. Generating more heat than light, Grace Presbytery merely restates its conclusory arguments with greater vehemence. 2. Grace Presbytery s Sur-Reply finally acknowledges the existence of Jones v. Wolf and Masterson but fails to tell the Court that in Wolf on remand the Georgia courts awarded the property to the locate Vinevill Presbyterian Church applying Georgia state law, and that in Masterson the Texas Supreme Court expressly rejected the hierarchical (identity) method that Grace Presbytery now essentially advocates, noting that the denomination s identification of the true church was not determinative of property rights under Texas state law applying neutral principles. PLAINTIFF S REBUTTAL TO DEFENDANT S SUR-REPLY PAGE 1

2 Case 3:13-cv B Document 24 Filed 09/30/13 Page 2 of 5 PageID Grace Presbytery s Sur-Reply also continues to confuse mere mention of imminent constitutional violations or limitations with the actual state law cause of action and basis on which relief is prayed for in HPPC s petition. In further rebuttal, this Court is directed to the Report of the U.S. Magistrate Stephen Reidlinger, attached to Plaintiff s Brief in support of its Motion for Remand as Exhibit C. 4. Grace Presbytery suggests that any claim by HPPC of imminent harm is speculative. It is not speculative, though, that Grace Presbytery has adopted a policy allowing just a few insiders to appoint an administrative commission without a normal vote of the full presbytery, and has applied that policy already to seize the property of another local, dissenting church. If Grace Presbytery has no aim to do the same to HPPC it should have no objections to an extension of the Temporary Restraining Order until a hearing on a preliminary injunction can be held. Grace Presbytery wants the Temporary Restraining Order to lapse, though, precisely because it wants to take action against HPPC property. Grace Presbytery s Sur-Reply acknowledges as much in objecting to a Temporary Restraining Order that enjoins Grace Presbytery s decisions [that would] effectively determine property issues. Sur-Reply at p Much of Grace Presbytery s Sur-Reply complains that it is being prevented from treating HPPC as a purported, subordinate entity under the PCUSA s alleged system of ecclesiastical governance. However, the applicable neutral principles of law obviates entirely the need for an analysis or examination of ecclesiastical polity or doctrine Wolf at 605. Grace Presbytery obviously does not like that, and would prefer that courts just defer to whatever it says, but that is not the law. Grace Presbytery s citations to and mischaracterizations of Westbrook v. Penley, Hossana-Tabor, Falls Church, and Timberridge are simply inapt and effectively ignore the holdings of Jones v. Wolf and Masterson. PLAINTIFF S REBUTTAL TO DEFENDANT S SUR-REPLY PAGE 2

3 Case 3:13-cv B Document 24 Filed 09/30/13 Page 3 of 5 PageID Finally, Grace Presbytery s Sur-Reply quotes Masterson and Penley to the effect that judicial deference to the national denomination is appropriate when ownership is ordered in such a way that the denomination s decisions on religious questions effectively determine civil property issues. What the Defendant is referring to, though, is carve out from or exception to neutral principles that is triggered when ownership or control of the property is made dependent on a religious determination as was the case in Milivojevich, where the identity of the Bishop determined property control. But this is the exception, not the rule. If it were the rule, there would be no place for the general application of the neutral principles of law method it would just be converted into a de facto version of the deference method. In the case at bar, Grace Presbytery points to nothing whatsoever in the deeds or local church Articles of Incorporation or Texas state law that in any way makes HPPC property ownership or control dependent on the identity of the pastor, for example. Instead, Grace Presbytery simply points to the Book of Order and asks the Court to accept it as definitive. Instead of pointing to anything specific in the Articles, deeds or state law that makes property rights dependent on a question of religious doctrine, Grace Presbytery instead concludes its Sur-Reply by positing a theological argument (the organic nature of the invisible, catholic, i.e. universal, church) and astonishingly asks this Court to rule on the basis of theology rather than law. This is nothing more than a reversion to the unconstitutional English rule. This theological appeal by Grace Presbytery only underscores the weakness of its legal position. CONCLUSION For the reasons stated above, Plaintiff Highland Park Presbyterian Church Inc. prays that this Court grant its emergency Motion to Extend Temporary Restraining Order and further that this Court set a Hearing on Highland Park Presbyterian Church, Inc. s request for preliminary injunction, subject to and without waving HPPC s Motion to Remand. PLAINTIFF S REBUTTAL TO DEFENDANT S SUR-REPLY PAGE 3

4 Case 3:13-cv B Document 24 Filed 09/30/13 Page 4 of 5 PageID 404 Respectfully submitted, /s/ Kent C. Krause Kent C. Krause Texas Bar No kkrause@cdklawfirm.com Eric L. Lindstrom Texas Bar No CRADDOCK DAVIS & KRAUSE LLP 3100 Monticello Avenue, Suite 550 Dallas, Texas (fax) And Lloyd J. Lunceford lloyd.lunceford@taylorporter.com TAYLOR, PORTER, BROOKS & PHILLIPS, L.L.P. 451 Florida Street, 8 th Floor Baton Rouge, Louisiana (fax) ATTORNEYS FOR PLAINTIFF PLAINTIFF S REBUTTAL TO DEFENDANT S SUR-REPLY PAGE 4

5 Case 3:13-cv B Document 24 Filed 09/30/13 Page 5 of 5 PageID 405 CERTIFICATE OF SERVICE I hereby certify that on September 30, 2013, I electronically filed the foregoing with the Clerk of Court and also sent notification of such filings by electronic mail to the following: William D. Sims, Jr. bsims@velaw.com Thomas S. Leatherbury tleatherbury@velaw.com Daniel L. Tobey dtobey@velaw.com Robert P. Ritchie rritchie@velaw.com VINSON & ELKINS LLP 2001 Ross Avenue, Suite 3700 Dallas, Texas /s/ Kent C. Krause Kent C. Krause PLAINTIFF S REBUTTAL TO DEFENDANT S SUR-REPLY PAGE 5