Case 3:13-cv B Document 12 Filed 09/20/13 Page 1 of 11 PageID 290 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

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1 Case 3:13-cv B Document 12 Filed 09/20/13 Page 1 of 11 PageID 290 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION HIGHLAND PARK PRESBYTERIAN CHURCH INC., Plaintiff, CIVIL ACTION NO. 3:13-CV-3813 v. GRACE PRESBYTERY, INC., Defendant. DEFENDANT GRACE PRESBYTERY S RESPONSE TO PLAINTIFF S EMERGENCY MOTION TO EXTEND TEMPORARY RESTRAINING ORDER Defendant Grace Presbytery, Inc. ( Grace Presbytery ) respectfully submits this brief in opposition to the motion of Plaintiff Highland Park Presbyterian Church Inc. ( Plaintiff or Highland Park Presbyterian or HPPC ) to extend the temporary restraining order ( TRO ) granted ex parte by the state court prior to removal. SUMMARY The TRO that HPPC asks this Court to extend was issued absent any indication of imminent harm and is patently unconstitutional on its face, as it purports to enjoin a church from conducting its own internal ecclesiastical affairs a fact that the trial court would have been informed of had HPPC not acted ex parte. This unconstitutional TRO was void when issued and cannot and should not be extended. BACKGROUND On September 10, 2013, without consulting their congregation, five trustees of HPPC, a congregation of the Presbyterian Church (USA) ( PCUSA ), sought an ex parte TRO against Grace Presbytery, the regional governing council of the Presbyterian Church (USA). HPPC is a ORDER - Page 1

2 Case 3:13-cv B Document 12 Filed 09/20/13 Page 2 of 11 PageID 291 congregation within the bounds of Grace Presbytery and is subject to its jurisdiction. This TRO purports to enjoin Grace Presbytery from initiating any disciplinary... action against the employees, officers, ministers or members of HPPC or dissolving HPPC or appointing or initiating processes leading to the appointment of an administrative commission to assert original jurisdiction, directly or indirectly, over HPPC in order to assume or effect control over the ownership, use, or disposition of the personal or real property.... See Sept. 10, 2013 Order. Not only was there no showing of imminent harm the TRO was based on what Presbyteries purportedly have begun doing elsewhere (see Pet. at 57) this injunction flies in the face of basic, bedrock First Amendment principles. [Q]uestions of church discipline and the composition of the church hierarchy are at the core of ecclesiastical concern. Serbian Eastern Orthodox Diocese for the United States & Canada v. Milivojevich, 426 U.S. 696, 717 (1976). [T]he First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them. Id. at (emphasis added). The injunction purporting to prohibit a hierarchical church from managing its own internal affairs and governing its subordinate bodies is void on its face, without effect, unconstitutional to the core, and should not be extended. There should be no confusion as to what this case is really about. After the filing of HPPC s lawsuit, the Senior Pastor of HPPC had this to say this is a contest between two parties with ever growing differences about what should be proclaimed from the pulpit and believed in the pew! See (last visited September 20, 2013). And after twice verifying that its complaints arise under the First and Fourteenth Amendments, HPPC now seeks remand by claiming the opposite, a telling reversal ORDER - Page 2

3 Case 3:13-cv B Document 12 Filed 09/20/13 Page 3 of 11 PageID 292 and hasty retreat that is both estopped after they used these arguments to secure their ex parte TRO and improper in light of their verification. It is also wrong on the law, and the case belongs in federal court for obvious reasons, which will be detailed in Grace Presbytery s response to the motion to remand. The TRO is a meritless infringement of a church s right to manage its own internal affairs. The motion to extend an unconstitutional TRO should be denied. LEGAL STANDARD Plaintiff has not and cannot meet its burden to secure a TRO. Plaintiff s request to extend the TRO should, therefore, be denied. A TRO may be issued only if the applicant has supplied specific facts in an affidavit or a verified complaint [that] clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition. FED. R. CIV. P. 65(b)(1)(A); see also Fernandez v. U.S. Immigration Dept., No. 3:01 CV 0318 L, 2001 WL , *2 (N.D. Tex. April 30, 2001) (Boyle, J.) (so holding). To obtain a TRO, furthermore, an applicant must also satisfy the requisite elements for obtaining a preliminary injunction. Fernandez, 2001 WL at *2. To obtain a preliminary injunction, plaintiff must show (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not issued; (3) that the threatened injury outweighs any damage the order might cause to the respondent; and (4) that the injunction will not disserve the public interest. Id. [I]f a party fails to meet any of the[se] four requirements, the court cannot grant the temporary restraining order or preliminary injunction. Alliance Wireless Technologies, Inc. v. Casella-Wiseman, No. 3:13 CV 245 L, 2013 WL , *1 (N.D. Tex. July 16, 2013) (emphasis in original). Indeed, a TRO or a preliminary injunction is considered an ORDER - Page 3

4 Case 3:13-cv B Document 12 Filed 09/20/13 Page 4 of 11 PageID 293 extraordinary and drastic remedy, [and] it is not granted routinely, but only when the movant, by a clear showing, carries the burden of persuasion. Id. This standard applies with full force when a party asks the Court to extend a state-court issued TRO. If an order issued by a state court would not be supportable under federal law, a federal court cannot affirmatively extend it; to do so would give the order the extra life prohibited by the Supreme Court in Granny Goose Foods. Gonzalez v. Wells Fargo Bank, N.A., No. 5:12 CV EJD, 2012 WL , *2 (N.D. Cal. August 7, 2012) (citing Granny Goose Foods, Inc. v. Brotherhood of Teamsters Local No., 415 U.S. 423, 437 (1974)). Here, Plaintiff has failed to meet this burden of persuasion. Moreover, Plaintiff s use of the civil court system in ex parte fashion to try to prevent Grace Presbytery from governing its own internal affairs and polity and thereby enforcing its property rights is unconstitutional. Plaintiff s motion should therefore be denied. FACTS On September 10, 2013, Plaintiff filed suit alleging that it is entitled to relief as a result of Grace Presbytery s alleged violations of free speech rights guaranteed by the First and Fourteenth Amendments to the United States Constitution, the religion clauses of the First Amendment to the United States Constitution, [and] the due process guarantees of the Fourteenth Amendment to the United States Constitution. (Pet. at 64.). With full knowledge of how they could contact Grace Presbytery to notify it of this action and any upcoming hearings, and without notice to their own congregation, the purported trustees of Highland Park Presbyterian next obtained an ex parte temporary restraining order against Grace Presbytery. The TRO inhibits the Presbytery from initiating internal Church disciplinary proceedings against Highland Park Presbyterian s ministers, officers, or other agents, or taking action to ORDER - Page 4

5 Case 3:13-cv B Document 12 Filed 09/20/13 Page 5 of 11 PageID 294 assert control over church property. The order enjoined Grace Presbytery from initiating any disciplinary... action against the employees, officers, ministers or members of HPPC or dissolving HPPC or appointing or initiating processes leading to the appointment of an administrative commission to assert original jurisdiction, directly or indirectly, over HPPC in order to assume or effect control over the ownership, use, or disposition of the personal or real property.... See Sept. 10, 2013 Order. In support, Highland Park Presbytery pleaded: A temporary restraining order and temporary injunction while this suit is pending is [sic] necessary to stay the hand of Grace Presbytery from appointing an administrative commission that would, without just cause, usurp and replace the authority of the pastor, the session, or the board of trustees in order to effect control of the property. (See Pet. at 62.). Highland Park Presbyterian has since confirmed that this preemptive legal action was to facilitate potential secession from the denomination, and was specifically designed to prevent the Church from initiating its defined, internal procedure for when a congregation acts to leave the denomination. See Letter of Ben Brown, Clerk of the Session, to Highland Park Presbyterian Church, (last visited September 18, 2013) ( Allowing the presbytery to control HPPC s discernment process and potentially to take direct control of the church presents too grave a risk for HPPC. First, there is the possibility of presbytery attempting to take control of HPPC through an Administrative Commission, which could claim to have the power to remove pastors, dismiss the session of HPPC, and control communications with the congregation. ); see also (last visited September 18, 2013) ( This court order provides a shield, a safe environment, for the Session and congregation to ORDER - Page 5

6 Case 3:13-cv B Document 12 Filed 09/20/13 Page 6 of 11 PageID 295 have an open discussion of what is God s will for the future of HPPC s relationship with the PC(USA). ). And Highland Park Presbyterian has confirmed that the dispute is not really about property but a contest between two parties with ever growing differences about what should be proclaimed from the pulpit and believed in the pew! (last visited September 20, 2013); see also (last visited September 18, 2013) ( On Tuesday I learned about the decision and action by our Trustees to file a request for a Temporary Restraining Order against Grace Presbytery, which was granted. I was aware they were pondering the best way to protect the congregation s use of our property, which includes the voice in the pulpit! ); see also Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 132 S. Ct. 694, 705 (2012) (quoting Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 115 (1952) ( [T]he controversy over the right to use the cathedral was strictly a matter of ecclesiastical government, the power of the Supreme Church Authority... to appoint the ruling hierarch of the archdiocese.... ). ARGUMENT Plaintiff secured an ex parte Temporary Restraining Order against its Presbytery without demonstrating any imminent harm, but rather based on claims about what Presbyteries have begun doing elsewhere. Pet. at 57; see also id. at 61. There are no facts evidencing a threat that Grace Presbytery will take any immediate action against Plaintiff. Plaintiff has failed to put forth any specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition. FED. R. CIV. P. 65(b)(1)(A). This does not meet the standard for imminent harm ORDER - Page 6

7 Case 3:13-cv B Document 12 Filed 09/20/13 Page 7 of 11 PageID 296 or injunctive relief. As a matter of law, therefore, Plaintiff s motion for an extension of the statecourt TRO should be denied. In addition, the TRO that Plaintiff requests is unconstitutional on its face, void and/or voidable, and should be dissolved and rejected. [Q]uestions of church discipline and the composition of the church hierarchy are at the core of ecclesiastical concern. Serbian Eastern Orthodox Diocese for the United States & Canada v. Milivojevich, 426 U.S. 696, 717 (1976). [T]he First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them. Id. at (emphasis added). In Milivojevich, the Supreme Court rejected a court action under purported neutral principles for resolving property disputes, id. at 721, which purported in effect to reinstate [a] Diocesan Bishop, on the ground that the proceedings resulting in his removal failed to comply with church laws and regulations. Here the Plaintiff s request is further afield: to prevent a Church from using its own laws and regulations for internal governance and discipline. Hosanna-Tabor, 132 S. Ct. at 705 (quoting Milivojevich, 426 U.S. at 708) (internal quotation marks omitted). Only the Church can determine who its members are, both lay and clergy, and enforce such decisions through internal church discipline and governance. Courts cannot second-guess or enjoin churches on matters concerning theological controversy, church discipline, ecclesiastical government, or the conformity of the members of a church to the standard of morals required of them. Masterson v. Diocese of Northwest Texas, --- S.W.3d ----, 2013 WL , *6 (Tex. 2013) (citing Milivojevich, 426 U.S. at ) (internal quotation marks omitted). Whether [a church hierarch] was authorized to form a parish and recognize its ORDER - Page 7

8 Case 3:13-cv B Document 12 Filed 09/20/13 Page 8 of 11 PageID 297 membership, whether he could or did authorize that parish to establish a vestry, and whether he could or did properly recognize members of the vestry are ecclesiastical matters of church governance. Id. at *12. Civil courts must defer[] to [the hierarchical church s] exercise of ecclesiastical authority on those questions, id., and accept such decisions as final, and as binding on them, in their application to the case before them. Milivojevich, 426 U.S. at 710 (quoting Watson v. Jones, 80 U.S. 679, 726 (1871)). HPPC tries to justify its unconstitutional restraint on internal church governance by suggesting that here acts of internal church governance will affect property. But this argument turns the core First Amendment holding of the U.S. Supreme Court in Milivojevich on its head. In Milivojevich, [t]he [United States] Supreme Court rejected the Illinois Supreme Court s purported reliance on neutral principles of law, Westbrook v. Penley, 231 S.W.3d 389, 399 (Tex. 2007) (discussing Milivojevich, 426 U.S. 696), holding: [T]he Diocesan Bishop controls respondent Monastery of St. Sava and is the principal officer of respondent property-holding corporations. Resolution of the religious dispute over [the Diocesan Bishop s] defrockment therefore determines control of the property. Thus, this case essentially involves not a church property dispute, but a religious dispute the resolution of which under our cases is for ecclesiastical and not civil tribunals. Milivojevich, 426 U.S. at 709. HPPC tries to rehabilitate its flawed and unconstitutional ex parte TRO by claiming that the issue is not whether the TRO should have been granted, but whether there is good cause to extend its unconstitutional TRO. There is not. HPPC fails to cite the explanation of good cause in its own cited case: The injunction should continue or not based on its merits, not as a result of strategy. Xtria, LLC v. Intern. Ins. Alliance, Inc., 2009 WL , *5 (N.D. Tex. 2009) (internal citations and quotation marks omitted). As HPPC s own cited case notes, pre-removal ORDER - Page 8

9 Case 3:13-cv B Document 12 Filed 09/20/13 Page 9 of 11 PageID 298 state-court rulings cannot set the law of the case in federal court, [but] they are entitled to some deference during post-removal proceedings. Id. Here, where a patently unconstitutional ex parte TRO was secured without the benefit of argument or response from the other side, that deference is diminished. If an order issued by a state court would not be supportable under federal law, a federal court cannot affirmatively extend it; to do so would give the order the extra life prohibited by the Supreme Court in Granny Goose Foods. Gonzalez, 2012 WL , *2 (citing 415 U.S. at 437 (1974)). This unconstitutional TRO satisfies none of the elements of a proper injunction. There is no likelihood of success on the merits where the requested TRO is void on its face. The injunction is patently unconstitutional, and there was never any showing of imminent harm. The requested relief irreparably harms Defendant s First Amendment rights and disserves the public interest. As the Texas Supreme Court observed, citing the U.S. Supreme Court: [I]t would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. Westbrook, 231 S.W.3d at 397 (quoting Watson, 80 U.S. at 729) (internal quotation marks omitted). Plaintiff utterly failed to meet its burden for the extraordinary and drastic remedy of a TRO. This Court should deny Plaintiff s motion. CONCLUSION Grace Presbytery prays that Plaintiff s Emergency Motion to Extend Temporary Restraining Order be denied and that Grace Presbytery obtain all additional relief to which it is entitled. ORDER - Page 9

10 Case 3:13-cv B Document 12 Filed 09/20/13 Page 10 of 11 PageID 299 Respectfully submitted, /s/ William D. Sims, Jr. William D. Sims, Jr. Texas Bar No Thomas S. Leatherbury Texas Bar No Daniel L. Tobey Texas Bar No Robert P. Ritchie Texas Bar No VINSON & ELKINS LLP 2001 Ross Avenue, Suite 3700 Dallas, Texas Tel: Fax: Attorneys for Defendant Grace Presbytery, Inc. ORDER - Page 10

11 Case 3:13-cv B Document 12 Filed 09/20/13 Page 11 of 11 PageID 300 CERTIFICATE OF SERVICE I hereby certify that on September 20, 2013, I served a true and accurate copy of the foregoing document on the following counsel via the Court s electronic filing system and/or certified mail: Kent C. Krause CRADDOCK DAVIS & KRAUSE LLP 3100 Monticello Avenue, Suite 550 Dallas, Texas and Lloyd J. Lunceford TAYLOR, PORTER, BROOKS, & PHILLIPS, L.L.P. 451 Florida St, 8 th Floor Baton Rouge, Louisiana US v.2 /s/ William D. Sims, Jr. Counsel of Record ORDER - Page 11