NO IN THE SUPREME COURT OF TEXAS. THE EPISCOPAL DIOCESE OF FORT WORTH, et al., Appellants v. THE EPISCOPAL CHURCH, et al.

Transcription

1 Oral Argument Requested OF TEXAS NO IN THE SUPREME COURT OF TEXAS FILED IN THE SUPREME COURT 12 February 6 P4:07 BLAKE. A. HAWTHORNE CLERK THE EPISCOPAL DIOCESE OF FORT WORTH, et al., Appellants v. THE EPISCOPAL CHURCH, et al., Appellees On Direct Appeal From the 141st District Court of Tarrant County, Texas Cause No APPELLANTS BRIEF Scott A. Brister State Bar No Kendall M. Gray State Bar No Gavin B. Justiss State Bar No ANDREWS KURTH LLP 111 Congress Ave., Ste Austin, TX Tel: (512) Fax: (512) sbrister@andrewskurth.com Shelby Sharpe State Bar No SHARPE TILLMAN & MELTON 6100 Western Place, Ste Fort Worth, TX Tel: (817) Fax: (817) utlawman@aol.com R. David Weaver State Bar No THE WEAVER LAW FIRM, P.C N. Cooper St., Ste. 710 Arlington, TX Tel: Fax: rdweaver@weaverlawfirm.n ATTORNEYS FOR THE EPISCOPAL DIOCESE OF FORT WORTH, et al.

2 IDENTITY OF PARTIES Appellants The Episcopal Diocese of Ft. Worth The Corp. of The Episcopal Diocese Ft. Worth Bishop Jack Leo Iker, Franklin Salazar Jo Ann Patton, Walter Virden, III Rod Barber, Chad Bates, Judy Mayo, Julia Smead Revs. Christopher Cantrell, Timothy Perkins Revs. Ryan Reed, Thomas Hightower St. Anthony of Padua Church (Alvarado) St. Alban s and St. Mark s Churches (Arlington) Church of St. Peter & St. Paul (Arlington) Church of St. Philip the Apostle (Arlington) St. Vincent s Cathedral (Bedford) St. Patrick s Church (Bowie) St. Andrew s Church (Breckenridge) Good Shepherd Church (Brownwood) St. John s Church (Brownwood) Church of St. John the Divine (Burkburnett) Holy Comforter (Cleburne) St. Matthew s Church (Comanche) Trinity Church (Dublin) Holy Trinity Church (Eastland) Christ the King Church (Ft. Worth) Holy Apostles Church (Ft. Worth) Iglesia San Juan Apostol (Ft. Worth) Iglesia San Miguel (Ft. Worth) St. Andrew s and St. Anne s Churches (Ft. Worth) Church of St. Barnabas the Apostle (Ft. Worth) St. John s and St. Timothy s Churches (Ft. Worth) St. Michael s Church (Richland Hills) Church of St. Simon of Cyrene (Ft. Worth) St. Paul s Church (Gainesville) Good Shepherd Church (Granbury) Church of the Holy Spirit (Graham) St. Andrew s Church (Grand Prairie) St. Joseph s Church (Grand Prairie) St. Laurence s Church (Southlake) St. Mary s Churches (Hamilton and Hillsboro) Trinity Church (Henrietta) St. Alban s Church (Hubbard) St. Stephen s Church (Hurst) Church of St. Thomas the Apostle (Jacksboro) Represented by: Scott A. Brister State Bar No Kendall M. Gray State Bar No Gavin B. Justiss State Bar No ANDREWS KURTH LLP 111 Congress Ave., Suite 1700 Austin, Texas Shelby Sharpe State Bar No SHARPE TILLMAN & MELTON 6100 Western Place, Ste Fort Worth, TX R. David Weaver State Bar No THE WEAVER LAW FIRM 1521 N. Cooper St., Ste. 710 Arlington, TX i

3 Church of Our Lady of the Lake (Laguna Park) St. Gregory s Church (Mansfield) St. Luke s Church (Mineral Wells) Church of St. Peter by the Lake (Graford) All Saint s Churches (Weatherford and Wichita Falls) Church of the Good Shepherd (Wichita Falls) Church of St. Francis of Assisi (Willow Park) Church of the Ascension & St. Mark (Bridgeport) Appellees The Episcopal Church Represented by: Sandra Liser State Bar No Naman Howell Smith & Lee, LLP 306 West 7th Street, Suite 405 Fort Worth, Texas Local Episcopal Parties Represented by: Thomas S. Leatherbury State Bar No: Vinson & Elkins LLP 2001 Ross Avenue, Suite 3700 Dallas, TX Local Episcopal Congregations Represented by: Frank Hill State Bar No Hill Gilstrap P.C W. Abram Street Arlington, TX ii

4 TABLE OF CONTENTS ISSUE PRESENTED... xvi STATEMENT OF JURISDICTION... xvi STATEMENT OF FACTS...1 GOVERNING LAW...6 I. TEXAS SHOULD ADOPT THE NEUTRAL PRINCIPLES APPROACH... 9 A. The Two Jones Cases: Neutral Principles or Deference?... 9 B. Almost Every State Has Adopted Neutral Principles C. Texas Courts Have Been Using Neutral Principles D. TEC s Effort To Avoid Neutral Principles Using Identity E. The Advantages Of Neutral Principles II. THE DEFENDANTS ARE THE CORPORATION S FIVE ELECTED TRUSTEES A. Under Texas Law, The Corporate By Laws Determine Trustees B. The By Laws Say Five Defendants Are The Trustees C. The Five Elected Trustees Are Not Ministers III. BISHOP IKER IS THE SIXTH TRUSTEE A. Under Texas Law, An Association's Rules Determine Its Leader B. The Diocese Constitution Says Bishop Iker Is The Sixth Trustee C. The Corporation Itself Says Bishop Iker Is The Sixth Trustee IV. TEC HAS NO TRUST INTEREST A. Under Texas Law, A Realty Trust Must Be Signed By The Settlor B. Any Alleged Trust Was Revoked Twenty Years Ago C. Texas Law Of Cy Pres Does Not Apply Here iii

5 V. THE 2006 AMENDMENTS CANNOT BE ULTRA VIRES A. The Amendments Are Irrelevant B. Plaintiffs Have No Standing To Assert Ultra Vires Claims C. Amended Articles Cannot Be Ultra Vires VI. PLAINTIFFS CANNOT ASSERT TORT CLAIMS FOR THE DIOCESE CONCLUSION...49 iv

6 Table Of Authorities Cases All Saints Parish Waccamaw v. Protestant Episcopal Church in Diocese of, S.C., 685 S.E.2d 163 (S.C. 2009) Avero Belgium Ins. v. American Airlines, Inc., 423 F.3d 73 (2d Cir. 2005) Ayers v. Mitchell, 167 S.W.3d 924 (Tex. App. Texarkana 2005, no pet.) Bell v. Low Income Women of Texas, 95 S.W.3d 253 (Tex. 2002) Best Inv. Co. v. Hernandez, 479 S.W.2d 759 (Tex. Civ. App. Dallas 1972, writ ref d n.r.e.) Bjorkman v. Protestant Episcopal Church in U.S. of America of Diocese of Lexington, 759 S.W.2d 583 (Ky. 1988) Brown v. Clark, 102 Tex. 323, 116 S.W. 360 (1909)...8, 10, 21, 22, 35, 42 C.L. Westbrook, Jr. v. Penley, 231 S.W.3d 389 (Tex. 2007)...5, 13, 14, 22 Chen v. Tseng, No CV, 2004 WL (Tex. App. Houston [1st Dist.] Jan. 8, 2004, no pet.)... 13, 16 Cherry Valley Church of Christ/Clemons v. Foster, No CV, 2002 WL (Tex. App. Dallas Jan. 4, 2002, no pet.) Chu v. Hong, 249 S.W.3d 441 (Tex. 2008) v

7 Church of God in Christ, Inc. v. Cawthon, 507 F.2d 599 (5th Cir. 1975) Coffee v. Wm. Marsh Rice Univ., 408 S.W.2d 269 (Tex. Civ. App. Houston 1966, writ ref d n.r.e.) Citizens Nat. Bank of Breckenridge v. Allen, 575 S.W.2d 654 (Tex. App. Eastland 1978, writ ref d n.r.e.) Conley v. Daughters of the Repub., 156 S.W. 197 (Tex. 1913) Cumberland Presbytery of Synod of the Mid West of Cumberland Presbyterian Church v. Branstetter, 824 S.W.2d 417 (Ky. 1992) De Zavala v. Daughters of the Repub. of Tex., 124 S.W. 160 (Tex. Civ. App. Galveston 1909, writ ref d) Dean v. Alford, 994 S.W.2d 392 (Tex. App. Fort Worth 1999, no pet.) Employment Div. v. Smith, 494 U.S. 872 (1990) Express One Int l, Inc. v. Steinbeck, 53 S.W.3d 895 (Tex. App. Dallas 2001, no pet.) Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194 (Tex. 2011) Foshee v. Republic Nat. Bank of Dallas, 617 S.W.2d 675 (Tex. 1981) Gilbert Texas Const., L.P. v. Underwriters at Lloyd s London, 327 S.W.3d 118 (Tex. 2010)...xvi, 49 Green Westgate Apostolic Church, 808 S.W.2d 547 (Tex. App. Austin 1991, writ denied) vi

8 Grohman v. Kahlig, 318 S.W.3d 882 (Tex. 2010) Hawkins v. Friendship Missionary Baptist Church, 69 S.W.3d 756 (Tex. App. Houston [14th Dist.] 2002, no pet.) Hosanna Tabor Evangelical Lutheran Church v. E.E.O.C., No , 2012 WL (U.S. Jan. 11, 2012)...14, 25, 26, 27 Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743 (Tex. 2006) Interfirst Bank Houston, N.A. v. Quintana Petroleum Corp., 699 S.W.2d 864 (Tex. App. Houston [1st Dist.] 1985, writ ref d n.r.e.)... 6 Jones v. Maples, 184 S.W.2d 844 (Tex. Civ. App. Eastland 1944, writ ref d)...8, 15, 16, 28, 29, 45 Jones v. Wolf, 443 U.S. 595 (1979)... passim Lamont Community Church v. Lamont Christian Reformed Church, 777 N.W.2d 15 (Mich. App. 2009) Libhart v. Copeland, 949 S.W.2d 783 (Tex. App. Waco 1997, no writ) Malooly Bros., Inc. v. Napier, 461 S.W.2d 119 (Tex. 1970)...xvi Manning v. San Antonio Club, 63 Tex. 166, 1884 WL (Tex. 1884)... 5 Martin v. Amerman, 133 S.W.3d 262 (Tex. 2004) Masterson v. Diocese of Nw. Tex., No CV, 2011 WL (Tex. App. Austin Mar. 16, 2011, pet. filed) vii

9 Monday v. Vance, 49 S.W. 516 (Tex. 1899) Nolana Dev. Ass n v. Corsi, 682 S.W.2d 246 (Tex. 1984) Norton v. Green, 304 S.W.2d 420 (Tex. Cir. App. Waco 1957, writ ref d n.r.e.) Original Glorious Church of God In Christ, Inc. of Apostolic Faith v. Myers, 367 S.E.2d 30 (W.Va. 1988) Presbyterian Church v. Hull Church, 393 U.S. 440 (1969) Presbytery of Cimarron v. Westminster Presbyterian Church, 515 P.2d 211 (Okl. 1973) Presbytery of the Covenant, 552 S.W.2d Scotts African Union Meth. Prot. Church v. Conf. of African Union First Colored Meth. Prot. Church, 98 F.3d 78 (3d Cir. 1996) Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976) In re Salazar, 315 S.W.3d 279 (Tex. App. Fort Worth 2010, orig. proceeding)... 4 In re Slusser, 136 S.W.3d 245 (Tex. App. San Antonio 2004, no pet.) Smith v. N. Tex. Dist. Council of Assemblies of God & House of Grace, No CV, 2006 WL (Tex. App. Fort Worth Nov. 30, 2006, no pet.) State v. Rubion, 308 S.W.2d 4 (Tex. 1957) viii

10 Timpte Indus., Inc. v. Gish, 286 S.W.3d 306 (Tex. 2009)... 6 Toledo Soc. for Crippled Children v. Hickok, 261 S.W.2d 692 (Tex. 1953)... 6 Tricentrol Oil Trading, Inc. v. Annesley, 809 S.W.2d 218 (Tex. 1991) Warner v. Florida Bank & Trust Co., 160 F.2d 766 (5th Cir. 1947)... 6 Watson v. Jones, 80 U.S. 679 (1871)... 9, 17 Whitten v. Republic Nat. Bank of Dallas, 397 S.W.2d 415 (Tex. 1965) Wise v. Haynes, 103 S.W.2d 477 (Tex. Civ. App. Texarkana 1937, no writ) Statutes, Regulations, and Rules Tex. Bus. Orgs. Code Tex. Bus. Orgs. Code 1.102(35)(A) Tex. Bus. Orgs. Code Tex. Bus. Orgs. Code (c) Tex. Bus. Orgs. Code (1) Tex. Bus. Orgs. Code (c) Tex. Bus. Orgs. Code , Tex. Bus. Orgs. Code (a) ix

11 Tex. Bus. Orgs. Code Tex. Bus. Orgs. Code Tex. Bus. Orgs. Code (a) Tex. Bus. Orgs. Code (b) Tex. Bus. Orgs. Code Tex. Bus. Orgs. Code Tex. Bus. Orgs. Code Tex. Bus. Orgs. Code (1) Tex. Bus. Orgs. Code (b) Tex. Bus. Orgs. Code Tex. Bus. Orgs. Code , Tex. Civ. Prac. & Rem. Code (b) Tex. Prop. Code (4) Tex. Prop. Code Tex. Prop. Code Tex. Prop. Code , 37 Tex. Prop. Code (a) Tex. Prop. Code (c) Tex. R. Civ. P. 166a(c)... 6 Tex. Rev. Civ. Stat. art (A)(1)... 6 x

12 Tex. Rev. Civ. Stat. art (A)(7) Tex. Rev. Civ. Stat. art (A) Tex. Rev. Civ. Stat. art (B) Tex. Rev. Civ. Stat. art (A) Tex. Rev. Civ. Stat. art (B)... 42, 46 Tex. Rev. Civ. Stat. art (B) Tex. Rev. Civ. Stat. art (D) Tex. Rev. Civ. Stat. art (B) Tex. Rev. Civ. Stat. art (C) Tex. Rev. Civ. Stat. art (D) Tex. Rev. Civ. Stat. art (A) Tex. Rev. Civ. Stat. art Tex. Rev. Civ. Stat. art (A) Tex. Rev. Civ. Stat. art (A)(2) Tex. Rev. Stat. art (A)... 6 Tex. Rev. Stat. art Tex. Rev. Stat. art Tex. Rev. Stat. art , 2(1) xi

13 Miscellaneous Andrew Soukup, Note, Reformulating Church Autonomy, 82 Notre Dame L. Rev (2007) Article I, section 6 of the Texas Bill of Rights Benton C. Martin, Comment, Protecting Preachers From Prejudice, 59 Emory L.J (2010) BLACK S LAW DICTIONARY 15 (9th ed. 2009) BLACK S LAW DICTIONARY 615 (9th ed. 2009) BLACK S LAW DICTIONARY 1391 (9th ed. 2009) BLACK S LAW DICTIONARY 1662 (9th ed. 2009) Lord McNair, THE LAW OF TREATIES 149 (1961) Neutral Principles of Texas law...21, 28, 34, 49 RESTATEMENT (SECOND) CONFLICT OF LAWS 2d (1971) 270(b)... 6 RESTATEMENT (SECOND) CONFLICT OF LAWS (1971) RESTATEMENT (SECOND) CONFLICT OF LAWS (1971) RESTATEMENT (SECOND) OF TRUSTS RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW 312(1) RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW 312(3) Texas Non Profit Corporation Act...6, 21, 24, 42 Texas Trust Act 7 (formerly TEX. REV. CIV. STAT. art. 7425b 7), Act of April 19, 1943, 48th Leg., R.S., ch. 148, 7, 1943 Tex. Gen. Laws , 37 xii

14 Texas Trust Act 7 (formerly TEX. REV. CIV. STAT. art. 7425b 41), Act of April 19, 1943, 48th Leg., R.S., ch. 148, 7, 1943 Tex. Gen. Laws Texas Trust Code... 6, 34 Texas Uniform Unincorporated Nonprofit Association Act... 6 WEBSTER S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 764 (2002) WHITE & DYKMAN, ANNOTATED CONSTITUTION AND CANONS FOR THE GOVERNMENT OF THE PROTESTANT EPISCOPAL CHURCH IN THE UNITED STATES OF AMERICA, 51 (Church Publishing Inc. 1981)... 29, 32 WHITE & DYKMAN, ANNOTATED CONSTITUTION AND CANONS FOR THE GOVERNMENT OF THE PROTESTANT EPISCOPAL CHURCH IN THE UNITED STATES OF AMERICA, 90 (Church Publishing Inc. 1981) xiii

15 REFERENCES TO THE RECORD & THE PARTIES 28CR5926 1SCR7189 Tab A 2 The Record Volume 28 of the Clerk s Record, page 5926 of the sequentially numbered electronic record. 1st Supplemental Clerk s Record, page 7189 of the sequentially numbered electronic record. Document A-2 under Tab A in the Appendix. TEC Local TEC Plaintiffs The Plaintiffs The Episcopal Church. All parties that filed the Local Episcopal Parties Motion for Partial Summary Judgment in this case. See 27CR5814. All parties that filed Notices of Cross-Appeal in this case. See 32CR & 32CR7184. the Diocese the Corporation Bishop Iker the Trustees Defendants The Defendants The Episcopal Diocese of Fort Worth. The Corporation of The Episcopal Diocese of Fort Worth. Bishop Jack Leo Iker. Franklin Salazar, Jo Ann Patton, Walter Virden, III, Rod Barber, and Chad Bates. All parties that filed the Notice of Direct Appeal in this case. See 32CR xiv

16 Statement of the Case Nature of the Case Trial Court A national church association and its adherents sued a Texas church association, its Texas nonprofit corporation, and numerous officers to gain control of more than 60 churches and other property in Fort Worth and the surrounding area. Plaintiffs sought court orders removing the officers elected by the majority of the Texas association, and replacing them with officers selected by a minority group. The Honorable John P. Chupp, 141st District Court, Tarrant County, Texas. Proceedings Both sides filed cross-motions for summary judgment. Disposition The trial granted the Plaintiffs motion in part and denied the Defendants motion on February 8, 2011, ordering the Defendants to surrender control of all property within 30 days of final judgment. See 32CR (Tab A-1). The Order became final and appealable when the trial court severed the summary judgment proceedings on April 5, See 1SCR (Tab A-4). This appeal followed. xv

17 ISSUE PRESENTED On the cross-motions for summary judgment, did the trial court err by granting the Plaintiffs motions in part and denying Defendants motion? 1 STATEMENT OF JURISDICTION The jurisdictional bases for this direct appeal are set out in Appellants Statement of Jurisdiction and Amended Reply filed in this case in June 2011, which are incorporated herein by reference. As the Order at issue here was based on cross-motions for summary judgment, this Court has jurisdiction to consider both sides summaryjudgment evidence, determine all questions presented, and render the judgment the trial court should have rendered. 2 1 See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). 2 Gilbert Texas Const., L.P. v. Underwriters at Lloyd s London, 327 S.W.3d 118, 124 (Tex. 2010). xvi

18 STATEMENT OF FACTS This is the largest church property dispute in the history of Texas. The suit involves control of property rather than title: all parties agree the Corporation holds legal title, 3 but they disagree whose representatives are entitled to sit on its Board of Trustees. 4 The facts are undisputed; the only question is whether the case is governed by: (A) the Corporation s articles of incorporation, by-laws, and applicable state laws, or (B) documents and opinions about the structure, practices, and beliefs of the churches involved. The Diocese. The Episcopal Diocese of Fort Worth ( the Diocese ) was created by division of the Diocese of Dallas, and came into existence at a Primary Convention in November Seven weeks later, it was admitted into union with TEC s governing body, the General Convention, on December 31, The Diocese is a Texas unincorporated association, 7 and is governed by a Constitution and Canons adopted by the Diocese s own Convention. 8 3 See 21CR4337 (TEC s motion stating that The Diocesan Corporation holds title to substantial real and personal property of the Diocese ); 27CR5889 (Local TEC s motion stating the same); see also 28CR5955 (1982 Constitution) & 28CR5981 (2006 Constitution) ( The title to all real estate acquired for the use of the Church in this Diocese shall be held subject to control of the Church in the Episcopal Diocese of Fort Worth acting by and through a corporation known as Corporation of the Episcopal Diocese of Fort Worth. ). 4 See 21CR4338 (TEC motion); 27CR5899 (Local TEC motion). 5 See 28CR6049; 28CR See 28CR See 28CR5961 ( 2). 8 See 28CR (1982 version); 28CR (2006 version).

19 The Corporation. The Corporation of the Episcopal Diocese of Fort Worth ( the Corporation ) holds legal title to all the real and personal property at issue herein, including that of the Diocese and the parishes. 9 The Corporation is a Texas non-profit corporation, 10 and is governed by its articles of incorporation, by-laws, and a Board of Trustees. 11 The articles and by-laws reflect neither control by nor affiliation with TEC. 12 All the property held by the Corporation came either by gift from the Diocese of Dallas or by gifts contributed by local parishioners; TEC contributed neither property nor funds. 13 The Controversy. In recent years, many in the Diocese believed that TEC s actions reflected a substantial departure from the biblical and historic faith. 14 Accordingly, in 2007 an amendment was offered to remove references to TEC from the Diocese s Constitution. At that year s Diocesan Convention, a huge majority (83% of clergy, 77% of lay delegates) voted to adopt the changes. 15 At a second convention in 2008 (as required to amend the Diocese s Constitution 16 ), 9 See 28CR See 28CR5961 ( 2). 11 See 28CR (1983 articles); 28CR (2006 articles); 28CR (2006 by-laws). 12 See 28CR See 28CR ( 16, 21). 14 See 31CR See 28CR See 28CR5985 (1982 Constitution); 28CR6098 (2006 Constitution). 2

20 the changes were approved by similar majorities (79% of clergy, 80% of lay delegates 17 ) and went into effect. The Diocese Attempts Conciliation. Recognizing that a handful of churches dissented, the Diocese adopted procedures for an amicable separation. 18 In February 2009, the Corporation transferred property to three parishes who withdrew from affiliation with the Diocese. 19 These transfers were granted not as a matter of right, but to avoid litigation and reach a peaceful settlement. 20 TEC Files Suit. TEC soon put an end to conciliation. On April 14, 2009, this suit was filed by TEC and 36 individuals drawn from the minority who lost the 2007 and 2008 Convention votes and had withdrawn from the Diocese. 21 The Plaintiffs demanded turnover of more than 60 churches in the Diocese, including 49 churches in which not a single member was willing to appear as a representative Plaintiff. 22 All told, the contested properties have an insured value in excess of $100 million dollars. 17 See 28CR See 31CR (discussing proposed amendment to Canon 32); 31CR6852 (Convention s approval of amendment). 19 See 29CR6281; 31CR6785 (deed to Trinity Episcopal (Fort Worth)); 31CR6790 (deed to St. Luke s Episcopal (Stephenville)); 31CR6801a (deed to St. Martin-in-the-Fields Episcopal (Keller)). 20 See 29CR6281 ( 4). 21 See 28CR5963 (listing 6 former clergy members, 27 former lay members, and 3 who have never been members). 22 See 19CR (listing representative plaintiffs for 12 churches and 49 others without any). See also 21CR4224 ( 106) & (Exhibit A) (listing 80 church-owned properties sought). 3

21 The Mandamus Appeal. The Plaintiffs originally filed suit in the name of the Diocese and Corporation, without authorization from either. Accordingly, the Defendant Diocese and Corporation filed a Rule 12 motion demanding that Plaintiffs counsel show authority from the clients they purported to represent. The trial court denied the motion, but the Second Court of Appeals granted mandamus relief, ordering the trial court to bar Plaintiffs counsel from appearing in this case as attorneys of record for the Corporation or Diocese. See In re Salazar, 315 S.W.3d 279, 287 (Tex. App. Fort Worth 2010, orig. proceeding). The Cross Motions for Summary Judgment. Back in the trial court, both sides moved for summary judgment. The Hon. John Chupp granted the Plaintiffs motion in part and denied the Defendants motion on February 8, 2011, ordering the Defendants to surrender control of the Corporation and all church properties within 30 days of final judgment. 23 That Order became final on April 5, 2011, when the trial court severed the summary judgment proceedings and stayed the remaining claims in the original suit. 24 Defendants filed a supersedeas bond to postpone turnover of the property, and filed a direct appeal in this Court. 23 See 32CR See 1SCR

22 Introduction This suit involves churches from downtown Fort Worth and Arlington to downtown Brownwood and Comanche. TEC filed suit to gain by a hostile takeover that which it had contributed nothing to build. From its early days, this Court has held that a church s rules are binding on all sides, and none can ask the courts to ignore those rules: When, therefore, persons enter into organizations for purposes of social intercourse or pleasure or amusement, and lay down rules for their government, these must form the measure of their rights in the premises, and it is vain to appeal to the Bill of Rights against their own agreements. 25 On precisely this ground, the Court recently rejected a negligent-counseling claim against a pastor because the plaintiff was bound by disciplinary procedures stated in the church s constitution. 26 In this case, the Diocese, the Corporation, and TEC long ago established rules in their constitutions, canons, corporate articles, and by-laws. The Plaintiffs suit asks that all those rules be disregarded on constitutional grounds. But according to the rules everyone agreed to long before, the Defendants are entitled to control of the Corporation and its property. 25 Manning v. San Antonio Club, 63 Tex. 166, 1884 WL 20384, at *5 (Tex. 1884) (emphasis added). 26 See C.L. Westbrook, Jr. v. Penley, 231 S.W.3d 389, (Tex. 2007) (rejecting tort claim based on church disciplinary process to which all members agreed). 5

23 GOVERNING LAW Texas law governs all issues in this appeal, as none of the summary judgment motions asserted any other state s law as grounds. 27 In addition: Law governing the Corporation. As the Corporation was incorporated in Texas, 28 issues concerning its governance are governed by the Texas Non-Profit Corporation Act (Tab D); 29 Law governing the Diocese. As the Diocese was formed and operates in Texas, 30 issues concerning its governance are governed by the Texas Uniform Unincorporated Nonprofit Association Act (Tab E); 31 and Law governing Trusts. As the trust alleged by Plaintiffs includes Texas real property and is administrated by Texas residents, 32 its existence is governed by the Texas Trust Code (Tab F) See TEX. R. CIV. P. 166a(c) ( The motion for summary judgment shall state the specific grounds therefore. ); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) ( [A] trial court cannot grant a summary judgment motion on grounds not presented in the motion. ). 28 See 28CR See TEX. REV. CIV. STAT. art (A)(1) (defining corporation as used in the Act to exclude a foreign corporation ); id. at (A), ; see also RESTATEMENT (SECOND) CONFLICT OF LAWS (1971) 304; TEX. BUS. ORGS. CODE (providing that Texas law governs internal affairs of entities formed by certificate of formation from Texas). 30 See 28CR5967, 28CR See TEX. REV. CIV. STAT. art ; see also TEX. BUS. ORGS. CODE (providing that Texas law governs internal affairs of entities formed in Texas without filing with a governmental authority). 32 See 28CR6002 (requiring trustees to be canonically resident or members of local parishes). 33 Trusts holding Texas land are governed by Texas law. See Toledo Soc. for Crippled Children v. Hickok, 261 S.W.2d 692, 697 (Tex. 1953); Interfirst Bank-Houston, N.A. v. Quintana Petroleum Corp., 699 S.W.2d 864, 877 (Tex. App. Houston [1st Dist.] 1985, writ ref d n.r.e.) ( [A]s a general rule it is held that the administration of a trust imposed on land is governed by the law of the state where the land is located and must be supervised by the courts of that state. ); RESTATEMENT (SECOND) CONFLICT OF LAWS (1971) 278. Trusts administered by Texas trustees are governed by Texas law. See Warner v. Florida Bank & Trust Co., 160 F.2d 766, 771 (5th Cir. 1947) ( Matters of administration are determined by the law of the situs or the seat of the trust, and the domicile of the trustee of intangible personal property including shares of stock is usually the seat of the trust. ); RESTATEMENT (SECOND) CONFLICT OF LAWS 2d (1971) 270(b), comment a. 6

24 The Texas Business Organizations Code does not apply to this case as all actions occurred and suit was filed before January 1, But the Code incorporated the Nonprofit Acts with little change, so parallel citations are included to show that Texas law has not changed. SUMMARY OF THE ARGUMENT If Texas follows the Neutral Principles approach in church property disputes (like almost every other state), the trial court granted the wrong motion. Neutral Principles have been used by Texas appellate courts for some years with no problem. The approach has numerous advantages over the Deference approach urged by the Plaintiffs, including disentanglement from issues about church government in favor of the same laws that apply to all other cases. The Deference approach may also create problems with the Texas Constitution, which bars any preferences in the treatment of one form of religion over another. All the property at issue here is owned by the Corporation. Texas corporate law provides that the election and removal of corporate officers must be governed by the entity s articles of incorporation and by-laws. The Defendant Trustees were elected according to the Corporation s charter provisions; the Plaintiffs ersatz replacements were not. 34 See TEX. BUS. ORGS. CODE ,

25 Similarly, Texas law provides that the election and removal of officers in unincorporated associations must be governed by the association s own rules. The Diocese elected Bishop Iker according to diocese rules; the Plaintiffs did not. Under Jones v. Maples, Texas courts cannot decide which bishop can baptize or preach, but must decide which one sits on the Corporation s board that controls its property. Texas law requires that any trust concerning realty must be written and signed by the settlor. TEC has no trust interest in this property because it contributed nothing to create it, and has no trust instrument signed by anyone who did. Texas law also makes all trusts revocable unless they expressly state otherwise, which no trust alleged by the Plaintiffs does. So even assuming a trust for TEC ever existed, it was revoked in 1989 by express act of the Diocese. Finally, the corporate amendments of which the Plaintiffs complain are irrelevant to the property issues involved here. The Corporation had the right to amend its charters under Texas law, and none of the amendments challenged by the Plaintiffs deprived the Plaintiffs of anything. The trial court disregarded all these statutes on the ground that this Court s 1909 opinion in Brown v. Clark required that Texas courts must enforce whatever TEC commands. This Court should correct that error. 8

26 I. TEXAS SHOULD ADOPT THE NEUTRAL PRINCIPLES APPROACH A. The Two Jones Cases: Neutral Principles or Deference? At the outset, this Court must settle whether Texas law in church property lawsuits is: (A) the same law governing all other property suits, or (B) a special rule applicable only to churches. These two approaches were approved by the U.S. Supreme Court in two cases brought by Presbyterians named Jones. In 1871 in Watson v. Jones (hereafter Watson ), the Supreme Court authorized the so-called Deference approach for church property suits, which states that: in hierarchical churches, property disputes are settled by the highest church judicatory to which the matter has been carried; in congregational churches, property disputes are settled by ordinary legal principles governing associations (usually majority rule). 35 A century later in 1979 in Jones v. Wolf (hereafter Wolf ), the Supreme Court authorized an alternative method, the so-called Neutral Principles approach. 36 This approach simply applies the same legal rules that govern all private property: The method relies exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges. It 35 See Watson v. Jones, 80 U.S. 679, 725, 727 (1871); see also Jones v. Wolf, 443 U.S. 595, 607 (1979) ( Majority rule is generally employed in the governance of religious societies ) U.S. 595, 604 (1979) ( We therefore hold that a State is constitutionally entitled to adopt neutral principles of law as a means of adjudicating a church property dispute. ). 9

27 thereby promises to free civil courts completely from entanglement in questions of religious doctrine, polity, and practice. 37 The states are free to adopt either approach. 38 This Court has not addressed a church property suit since Brown v. Clark in 1909, 39 a full 70 years before the Neutral Principles approach was approved by the U.S. Supreme Court. Yet in applying the Deference rule in Brown, this Court also applied the Neutral Principles rule, deferring to the national church only after analyzing what the church constitution said 40 a key feature of the Neutral Principles approach. 41 In this case, although the Fort Worth court of appeals has twice stated that Texas courts follow Neutral Principles (see part I(C)), the trial judge followed the Deference rule on the ground that Brown was this Court s last pronouncement. If Texas follows Neutral Principles, that was error. 37 Wolf, 443 U.S. 595, Id. at 602 ([T]he First Amendment does not dictate that a State must follow a particular method of resolving church property disputes. ) S.W. 360 (Tex. 1909). 40 See id. at 363 ( The principal question in this case is: Did the General Assembly of the Cumberland Church have authority to consummate the reunion and union of that church with the Presbyterian Church? [T]hat was clearly a question committed to the assembly by that provision of the [church] constitution which authorized it, with the approval of two-thirds of the presbyteries, to change the confession of faith of that church, and, that action having been taken whereby it was declared that the change made in the confession of faith of the mother church removed all obstacles to reunion and union of the two bodies, that decision is final upon the civil courts. Watson v. Jones,. (emphasis added)). 41 Wolf, 443 U.S. 595 at 604 ( The neutral-principles method requires a civil court to examine certain religious documents, such as a church constitution ). 10

28 B. Almost Every State Has Adopted Neutral Principles A majority of states that have decided on a test following Jones have chosen the neutral principles approach for addressing intra-church disputes. 42 Calling this a majority is actually an understatement in the last 20 years every state supreme court that decided a church property dispute has employed the Neutral Principles approach. 43 A table showing the current status of the law in the 49 states (omitting Texas) and the District of Columbia is attached as Tab B of the Appendix. As shown in that table, American courts have overwhelmingly chosen to employ Neutral Principles in church property disputes: 36 have adopted Neutral Principles; 44 1 has rejected it (West Virginia); 45 3 are unclear or in flux; 46 and 42 Benton C. Martin, Comment, Protecting Preachers From Prejudice, 59 EMORY L.J. 1297, 1322 (2010); see also Andrew Soukup, Note, Reformulating Church Autonomy, 82 NOTRE DAME L. REV. 1679, 1692 n.105 (2007) ( Following Jones, most states decided to adopt, in church property disputes, the neutral principles approach. ). 43 See the following states listed in Tab B: Alaska, Arkansas, California, Connecticut, Delaware, District of Columbia, Georgia, Maine, Maryland, Mississippi, Montana, Nebraska, New Hampshire, New York, North Carolina, Pennsylvania, South Carolina, Utah, and Wisconsin. 44 See Tab B. 45 See Original Glorious Church of God In Christ, Inc. of Apostolic Faith v. Myers, 367 S.E.2d 30, 34 (W.Va. 1988). 46 Those are Kentucky (compare Bjorkman v. Protestant Epis. Church, 759 S.W.2d 583, (Ky. 1988) (applying Neutral Principles)) with Cumberland Presbytery v. Branstetter, 824 S.W.2d 417, (Ky. 1992) (applying both rules)); Michigan (Lamont Community Church v. Lamont Christian Reformed Church, 777 N.W.2d 15, 28 (Mich. App. 2009) ( Michigan law provides that courts should generally use the 11

29 10 have yet to address the issue since Wolf. 47 This is no coincidence; there are many reasons why all these courts in red states, blue states, and purple states have uniformly moved toward Neutral Principles (see part I(E)). C. Texas Courts Have Been Using Neutral Principles Until a year ago, courts in Texas all assumed that Neutral Principles applied to church property disputes in Texas too. As the Fort Worth Court of Appeals expressly held in 1999 and again in 2006: Notwithstanding the First Amendment s proscription, courts do have jurisdiction to review matters involving civil, contract, or property rights even though they stem from a church controversy. Neutral principles of law must be applied to decide such matters so that courts do not violate the constitutional prohibition against government established religion. 48 The Second Court of Appeals was not alone; the First, Fifth, Tenth, and Fourteenth Courts of Appeals have held that Texas courts follow Neutral hierarchical method. However, the neutral principles of law method may be appropriate in situations... ); and New Jersey (see Scotts African Union Meth. Prot. Church v. Conf. of African Union First Colored Meth. Prot. Church, 98 F.3d 78, 89-94, 94 n. 6 (3d Cir. 1996) (concluding that New Jersey courts follow the Deference approach but show a decided progression... toward adoption of a neutral-principles approach in resolving intrachurch property disputes ). 47 Those states are Hawaii, Idaho, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, Rhode Island, Vermont, and Wyoming. Some of these have older cases that apply the Deference approach, but have not addressed the issue since See, e.g., Presbytery of Cimarron v. Westminster Presbyterian Church, 515 P.2d 211, 217 (Okl. 1973) (pre-wolf case stating that court was not free to adopt Neutral Principles). 48 Dean v. Alford, 994 S.W.2d 392, 395 (Tex. App. Fort Worth 1999, no pet.); Smith v. N. Tex. Dist. Council of Assemblies of God & House of Grace, No CV, 2006 WL , at *2 (Tex. App. Fort Worth Nov. 30, 2006, no pet.) ( [C]ourts do have jurisdiction to review matters involving civil, contract, or property rights. Neutral principles of law must be applied to decide such matters. ). 12

30 Principles analysis. 49 And in 2007, this Court declined to expand the neutralprinciples approach beyond property cases to personal injury cases. 50 Yet TEC has single-handedly reversed this trend in Texas, convincing three Texas courts recently to return to the Deference approach and defer (unsurprisingly) to TEC. 51 Perhaps the most striking thing about TEC s 64-page motion for summary judgment in this case is that it never mentioned Neutral Principles not even once. And its Response urged complete rejection of the approach: In Texas, the Neutral Principles Test Does Not Apply to Hierarchical Churches. 52 TEC has taken this drastic approach because it cannot win under neutral application of Texas law. The straightforward question in this case is whether Texas should reverse the state and national trends to benefit a single litigant. 49 See Chen v. Tseng, No CV, 2004 WL 35989, at *6 (Tex. App. Houston [1st Dist.] Jan. 8, 2004, no pet.) (applying Neutral Principles and church s by-laws to determine rights to property); Hawkins v. Friendship Missionary Baptist Church, 69 S.W.3d 756, 759 (Tex. App. Houston [14th Dist.] 2002, no pet.) (recognizing Neutral Principles but not apply it as church had no governing documents to construe); Cherry Valley Church of Christ/Clemons v. Foster, No CV, 2002 WL 10545, at *3 (Tex. App. Dallas Jan. 4, 2002, no pet.) (not designated for publication) (recognizing but not applying Neutral Principles as church s articles and by-laws provided for officer selection according to the custom and practices of the church ); Libhart v. Copeland, 949 S.W.2d 783, 793 (Tex. App. Waco 1997, no writ) (applying Neutral Principles to determine entitlement to proceeds from sale of church building). 50 C.L. Westbrook, Jr. v. Penley, 231 S.W.3d 389, 399 (Tex. 2007) (emphasis added) ( But even if we were to expand the neutral-principles approach beyond the property-ownership context as Penley requests, we disagree that free-exercise concerns would not be implicated. ). 51 In addition to the district court in this case, see Masterson v. Diocese of Nw. Tex., No CV, 2011 WL , at *6 (Tex. App. Austin Mar. 16, 2011, pet. filed) and St. Francis on the Hill Church v. The Episcopal Church, Cause No , Final Summ Jdgt., (Dist. Court El Paso [210th Jud. Dist.], Dec. 17, 2010) (30CR ) CR

31 D. TEC s Effort To Avoid Neutral Principles Using Identity TEC labored mightily in the trial court to prove this case is not really a church property dispute, but an identity dispute about the true Bishop of the Diocese and true leaders of the Corporation. 53 That re-classification should be rejected based on a third Jones case this one with the authority of this Court. There are some disputes to which Neutral Principles does not apply. In Westbrook v. Penley, this Court held that church discipline of members was an inherently religious function with which civil courts should not generally interfere. 54 Similarly, the U.S. Supreme Court recently held in Hosanna-Tabor that civil courts generally cannot interfere in a church s decision about hiring or firing its ministers. 55 The exception for inherently religious issues could apply to a property suit in the rare instance when a deed or charter provision incorporates doctrinal standards. 56 But there are no doctrinal standards in the deeds or property provisions here. Moreover, trying to re-cast neutral deeds to create a doctrinal 53 See, e.g., 21CR ( [U]nder Brown and its progeny a church property dispute may be conclusively resolved by focusing on the question of identity - that is, by determining which persons have remained loyal to the hierarchical church, and declaring their right to control the property. ); 27CR5861 ( [T]the identity question answers the property question. ) S.W.3d 389, 399 (Tex. 2007). 55 See Hosanna-Tabor Evangelical Lutheran Church v. E.E.O.C., No , 2012 WL 75047, at *9 (U.S. Jan. 11, 2012). 56 Jones v. Wolf, 443 U.S. 595, 602 (1979) ( [T]he [First] Amendment requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization. ). 14

32 issue would frustrate one of the main obligations the Wolf court sought to encourage, namely the obligation of States, religious organizations, and individuals to structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions. 57 In Wolf, the U.S. Supreme Court rejected a similar effort to turn a property case into an identity case. There, the owner of the property was the Vineville Presbyterian Church, but a schism made it unclear which faction that was. The highest church court to which the dispute had been carried (a regional Presbytery in the hierarchical church) declared that it was a loyal minority group. 58 But the Supreme Court held that Georgia need not defer to the Presbytery s determination of identity, but could decide who got the property based on Neutral Principles of state property law. 59 Almost 70 years ago, this Court used precisely that approach in a third Jones case this one involving a preacher named Jones who was acting as president of a Texas cemetery association. In Jones v. Maples (a writ-refused case bearing the authority of this Court 60 ), it was settled that Texas courts generally do not intervene in disputes about who are the proper officers of a nonprofit 57 Id. at 604 (quoting Presbyterian Church v. Hull Church, 393 U.S. 440, 449 (1969)). 58 See id. at 600; see also id. at 621 (Powell, J., dissenting). 59 Id. at Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 754 n.52 (Tex. 2006). 15

33 association, but they must do so when incident to the question of proper custody of money and property. 61 As the Maples Court stated, civil courts have a duty to enforce an association s right that its own officers, and not others, even though members of the Association, have the custody, control and management of the property. 62 Texas courts have had little trouble making the distinction between property and ecclesiastical claims. For example, in 2004 the First Court of Appeals decided who were the corporate directors entitled to control a Tien Tao temple, but refused to decide who could minister at the temple s altar. 63 Texas law since Maples is clear: courts cannot decide who should hold the keys of the Kingdom, but must decide who should hold the keys of the real property. If Texas courts can decide who controls the Alamo (once a church property and since 1836 something close to it), 64 Texas courts are perfectly capable of deciding this case on the same basis. E. The Advantages Of Neutral Principles In Wolf, the U.S. Supreme Court noted several advantages to the Neutral S.W.2d 844, 848 (Tex. App. Eastland 1944, writ ref d). 62 Id. 63 Chen v. Tseng, No CV, 2004 WL 35989, at *6 (Tex. App. Houston [1st Dist.] Jan. 8, 2004, no pet.) 64 See Conley v. Daughters of the Repub., 156 S.W. 197, 202 (Tex. 1913); De Zavala v. Daughters of the Repub. of Tex., 124 S.W. 160 (Tex. Civ. App. Galveston 1909, writ ref d). 16

34 Principles approach, all of which this Court should consider. Familiarity. Under Neutral Principles, church property suits are decided by construing the deeds, the national and local church charters (e.g., constitution, by-laws, or articles of incorporation), and state statutes. 65 As the Court noted, this approach relies exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges. 66 Implied Consent. The Deference approach is based on implied consent to a church s government. 67 But it is hard to imply consent when a church violates its own charters. Yet the only time Neutral Principles and Deference lead to different results is when a church has done precisely that. In this case, for example, it would not matter whether Deference or Neutral Principles applied but for the fact that TEC must disregard its own charter provisions and those of the Diocese to win. Courts have always been uneasy with the Deference rule in such circumstances; as the late Chief Justice Rehnquist put it: If the civil courts are to be bound by any sheet of parchment bearing the ecclesiastical seal and purporting to be a decree of a church court, they can easily be converted into 65 See Jones v. Wolf, 443 U.S. 595, 603 (1979). 66 Id. 67 See Watson v. Jones, 80 U.S. 679, 729 (1871) ( All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. ). 17

35 handmaidens of arbitrary lawlessness. 68 Flexibility. The Wolf Court noted that Neutral Principles is flexible, allowing parties the freedom to arrange affairs as they wish, thus taking advantage of the peculiar genius of private-law systems. 69 Under Neutral Principles the outcome of a church property dispute is not foreordained by legal rules other than those a church has picked. 70 By contrast, under the Deference approach all outcomes are foreordained: the local majority always wins in congregational churches, and the hierarchy always wins in all the rest. Less Entanglement. Neutral Principles involves less entanglement in matters of religious doctrine. 71 The Deference rule requires civil courts to decide what form of government a church practices and who has final authority on property issues. These questions often require a searching and therefore impermissible inquiry into church polity. 72 For example, even if Deference applied in this case, the record shows that the highest and final authority on property and other issues is not the national church but the local bishop: 68 See Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 727 (1976) (Rehnquist, J., dissenting). The two dissenters in Milivojevich were in the majority in Wolf. 69 Wolf, 443 U.S. at Id. at 603, Id. at Id. at

36 the word Episcopal itself means bishop ; 73 TEC s Constitution and Canons use the term Ecclesiastical Authority more than 150 times, and define it as the Bishop of the Diocese ; 74 TEC s Constitution expressly provides that no one can perform episcopal acts in a diocese except by invitation of the Bishop; 75 and TEC was formed by the dioceses, 76 and can be dissolved by majority vote of the dioceses and their bishops. 77 By contrast, under Neutral Principles courts do not decide whether a church is hierarchical or congregational; they simply apply the same rules to all of them. 78 Diversity. The Deference rule assumes churches come in only two types: hierarchical and congregational. Perhaps that reflected the American religious scene in 1871, but not today. What if a church is hierarchical at the regional level 73 See BLACK S LAW DICTIONARY 615 (9th ed. 2009) ( episcopacy The office of a bishop ); see also WEBSTER S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 764 (2002) ( fr. episcopus bishop... 1: of, being, or suited to a bishop.). 74 See 23CR4829 (TEC Canon IV.15). 75 See 24CR5131 (TEC Const. Art. II, 3: A Bishop shall confine the exercise of such office to the Diocese in which elected, unless requested to perform episcopal acts in another Diocese by the Ecclesiastical Authority thereof.... ); see also 24CR5232 (TEC Canon III.12, 3(e) ( No Bishop shall perform episcopal acts in a Diocese other than that in which the Bishop is canonically resident, without permission or a license to perform occasional public services from the Ecclesiastical Authority of the Diocese in which the Bishop desires to officiate or perform episcopal acts. ). 76 See WHITE & DYKMAN, ANNOTATED CONSTITUTION AND CANONS FOR THE GOVERNMENT OF THE PROTESTANT EPISCOPAL CHURCH IN THE UNITED STATES OF AMERICA, 90 (Church Publishing Inc. 1981) (noting that TEC was formed through the federation of the separate Churches in the several states. ). 77 See 24CR5136 (TEC Constitution, Art. XII) (providing that TEC Constitution can be altered or amended by a majority of all Bishops and by an affirmative vote by a majority of the Dioceses ). 78 See All Saints Parish Waccamaw v. Protestant Epis. Church in Diocese of S.C., 685 S.E.2d 163, 172 (S.C. 2009) ( Church disputes that are resolved under the neutral principles of law approach do not turn on the single question of whether a church is congregational or hierarchical. Rather, the neutral principles of law approach permits the application of property, corporate, and other forms of law to church disputes. ). 19

37 but congregational at the national level? What if a church is hierarchical in some respects but congregational with respect to property? The Deference rule simply does not answer in these cases. The Texas Constitution. Texas may have a special problem with the Deference rule under the state Constitution. Article I, section 6 of the Texas Bill of Rights provides that no preference shall ever be given by law to any religious society or mode of worship. The Deference rule obviously treats hierarchical and congregational churches differently; Neutral Principles treats them the same. When the U.S. Constitution mandated Deference, it did not matter what the Texas Constitution said. But now that either is an option, one must ask whether Deference gives a preference to one form of church organization over another. Simplicity. Neutral Principles is simply easier to apply. This case is a good example: a complete picture of TEC s rules regarding diocese property requires reviewing four provisions; 79 a complete picture of TEC s organization, structure, and operation requires reviewing all 180 pages of them. 80 TEC s motions relied on the Deference rule, so it included a 70-page affidavit about TEC history 81 (rebutted by Defendants equally long affidavit from an equally qualified church 79 See 24CR5166 (Canon I.7.3) (requiring bishop s approval for encumbrance of parish property); 24CR5177 (Canon I.14.2) (Dennis canon); 24CR5189 (Canon II.6.2) (requiring bishop s consent for parishes to hold or encumber property); 24CR5189 (Canon II.6.4) (Dennis canon re consecrated churches). 80 See, e.g., 24CR CR (Affidavit of Dr. Robert Bruce Mullin). 20