Synod of So. CA & Hawaii v. Kim 8/19/08 C2/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B191806

Case Date: 11/12/2008

Preview:Filed 8/19/08 Synod of Southern California and Hawaii v. Kim CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

SYNOD OF SOUTHERN CALIFORNIA AND HAWAII, et al., Plaintiffs and Respondents, v. KYUNG SUH KIM et al., Defendants and Appellants.

B191806

(Los Angeles County Super. Ct. No. BC308786)

APPEAL from a judgment of the Superior Court of Los Angeles County, Lee Smalley Edmon, Judge. Affirmed. Penner, Bradley & Buettner, Peter Sean Bradley and Randall M. Penner for Defendants and Appellants. Law Offices of George S. Burns and George S. Burns for Plaintiffs and Respondents. _____________________

INTRODUCTION The main issue in this appeal concerns how to resolve a dispute between a national denomination and an affiliated local church about ownership and control of property of the local church, Korean Hope Christian Church (Hope Church). This in turn involves the meaning of Corporations Code section 91421 and whether its provisions authorize the imposition of a trust on local church property in favor of the national denomination. Defendants, the former pastor and former elders and members of the Hope Church, appeal a judgment imposing a trust on that church's real property in favor of the national denominational church, Presbyterian Church (U.S.A.) (PCUSA), quieting title in PCUSA, and awarding injunctive relief. We conclude that, applying neutral principles of law to this property dispute, substantial evidence supports the judgment. Moreover, section 9142, subdivision (c)(2) applies to this case as a neutral principle of law, and the trial court properly found that a trust was impressed on the assets of Hope Church in favor of PCUSA. We further find that the trial court properly deferred to the determination of the ecclesiastical body, PCUSA and its Hanmi Presbytery and Hope Administrative Commission, of who constituted the true church of Hope Church. Finally, we find that defendants have not shown that the proceedings of the Hope Administration Commission denied them due process. We affirm the judgment. FACTUAL and PROCEDURAL HISTORY On January 7, 2004, plaintiffs Synod of Southern California and Hawaii, Presbytery of Hanmi, Hope Church, a California non-profit religious corporation, and Mark Hong filed a complaint against Kyung Suh Kim (Rev. Kim) and other defendants who were elders and members of Hope Church. Although the complaint alleged 10 causes of action, only the first cause of action to enforce an express trust, the third cause of action to enforce the terms of a constructive trust, and the fifth cause of action to quiet

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Unless otherwise specified, statutes in this opinion will refer to the Corporations

Code.

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title went to trial. The trial court entered judgment in favor of plaintiffs and against Rev. Kim and the other defendants, who appeal. 1. The PCUSA, its Organizational Hierarchy, and its Constitution: PCUSA , the national religious denomination, was formed in 1983, when the United Presbyterian Church in the United States of America and the Presbyterian Church in the United States of America merged. The General Assembly is its highest governing body. PCUSA has 16 regional synods, one of which is plaintiff Synod of Southern California and Hawaii (Synod). Within each synod are presbyteries; the Synod has 8 presbyteries, one of which is Hanmi Presbytery, a non-geographic, Korean-language presbytery organized to assist the Presbyterian Church in its ministry to Korean immigrants. Below a presbytery are local church sessions, which are composed of elected elders who govern a local congregation as the equivalent of a board of directors. The session, not a local church pastor, has responsibility to carry out instructions from the presbytery. The session, ministers, and church elders are required to follow the PCUSA Constitution, and PCUSA member churches are required to accept the PCUSA Constitution as their governing instrument. PCUSA has a written constitution with two parts, a Book of Confessions (collecting doctrinal confessions of the church) and a Book of Order. The Book of Order has three parts, the "Form of Government," the "Directory for Worship," and the "Rules of Discipline." Chapter 8 of the Book of Order contains provisions concerning the property of a local church, and provides that all property of the local church is held in trust for the PCUSA denomination.2 Upon becoming a member of PCUSA, a church's property is transferred into trust for PCUSA. A local congregation may incorporate and hold property, and normally the name of the local congregation is on the deed to its Book of Order G-8.0201 states: "All property held by or for a particular church, a presbytery, a synod, the General Assembly, or the Presbyterian Church (U.S.A.), whether legal title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in programs of a particular church or of a more inclusive governing body or retained for the production of income, is held in trust nevertheless for the use and benefit of the Presbyterian Church (U.S.A.)." 3
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property, as permitted by Book of Order section G-7.0402. As stated, the Book of Order establishes a trust relationship for a local church's property and states that the trustee is the session (or trustees accountable to the session) of the local congregation. Pursuant to section G-8.0201, trustees hold church property for the entire PCUSA denomination. If the session fails to carry out its responsibilities, the presbytery is the successor trustee. When a local church ceases to use church property in accordance with the PCUSA Constitution, Book of Order section G-8.0300 requires that property to be held, used, applied, transferred, or sold as provided by the presbytery. Section G-8.0500 prohibits a local church or session from encumbering, mortgaging, selling, or leasing church property without the presbytery's written permission. Book of Order section G-8.061 states that "[t]he relationship to the [PCUSA] of a particular church can be severed only by constitutional action on the part of the presbytery. (G-11.0103i) If there is a schism within the membership of a particular church and the presbytery is unable to effect a reconciliation or a division into separate churches within the [PCUSA], the presbytery shall determine if one of the factions is entitled to the property because it is identified by the presbytery as the true church within the [PCUSA]. This determination does not depend upon which faction received the majority vote within the particular church at the time of the schism." Book of Order section G-9.0500 gives sessions, presbyteries, synods, and the General Assembly the power to appoint administrative commissions, which have defined authority over the next lower governing body. Pursuant to section G-9.0502, the appointing body defines the duties and powers given to an administrative commission when it is created. The scope of an administrative commission's powers can include receiving all power to act for the lower governing body; the administrative commission can, for example, take over and exercise the power of a local church session. 2. Rev. Kim, the Hope Church, and its Membership in PCUSA: Rev. Kim, former pastor of Hope Church, received an undergraduate degree from Seoul National University in 1959, a Master of Divinity from Seoul Presbyterian Seminary in 1961, and a Doctorate in Ministry from Claremont University School of 4

Theology in 1983. In 1964 the Korean Presbyterian Church at Pyong Yang Presbytery in Korea ordained Rev. Kim as a minister. After coming to the United States in 1965, Rev. Kim was an associate minister at Los Angeles United Church, an independent Presbyterian church, from 1965 to 1971. In 1971 he became pastor of Hope Church, which was not affiliated with any national denomination. Hope Church was first established in 1971. Rev. Kim was elected the president of Hope Church in 1971; there has been no election of a church president since then. The church was registered with the State of California in 1973. Originally based in Hollywood, the Hope Church is now located in Cerritos. Although the congregation has a meeting in January of each year, Rev. Kim had no minutes of those meetings and no corporate resolutions before 2003. Rev. Kim testified that the session gave him absolute authority to act for the benefit of Hope Church. On July 20, 2003, the Board of Trustees of the Hope Church by resolution delegated all its powers to Rev. Kim, at his discretion, to decide all matters of the church. The Hope Church Articles of Incorporation filed in 1973 stated that By-Laws would set forth the number and qualifications of corporation members, different classes of members, members' property, voting, and other rights and privileges, and members' liabilities to dues and assessments and the method of collecting them. Although a "BYLAWS, RULES AND REGULATIONS" document was produced at trial, it was unsigned. Dong Chul Cho was a member of the Hope Church since 1993, was very active in the church, and became a member of the Session in 1999. When Cho joined the church, Rev. Kim told him the church belonged to him, stating that just as a company belongs to its president, the pastor owns the church. During a dispute about election of church elders in 1994, Cho asked to see the by-laws for Hope Church, but Elder Byung Kwan Min told him there was no set of by-laws. Cho never saw written minutes of session meetings when he was a session member from 1999 to 2003. 3. Real Property of Hope Church: The original grant deed of the Cerritos real property at issue to Hope Church was dated May 24, 1987. By a grant deed dated March 5, 1990, Hope Church granted the real 5

property to Rev. Kim and his wife as joint tenants. Rev. Kim signed the grant deed as President of the Hope Church. Two years later he learned that the County levied property tax of $20,000 to $30,000 because the church property, having been transferred to individuals, no longer qualified for a tax exemption. Rev. Kim then caused the real property to be transferred back to Hope Church by a grant deed of October 27, 1992. For the years the property was in his name, Rev. Kim caused the church to pay property taxes of $10,632.99 for 1990, and also caused the church to pay property taxes for 1991 and 1992. Hope Church acquired an additional adjacent property on May 1, 1996. 4. Hope Church Joins PCUSA: Dong Chul Cho testified that after he joined Hope Church, he heard many rumors from other church members about Rev. Kim, about the difficulty of finding a youth pastor, and that there were no rules applied to any church elections. In early 1993, 40 people from the Korean Independent Presbyterian Church (KIPC) joined Hope Church. KIPC was a PCUSA church. Cho and other church members heard about how PCUSA handled church elections, concluded that PCUSA church elections were valid, and wanted Hope Church to join PCUSA. Cho also heard discussions that the PCUSA had a constitution and that PCUSA members were required to abide by its rules. In the months before October 1995, church members frequently discussed the idea of joining PCUSA, and on many occasions discussed PCUSA's rules that member churches were required to follow. Cho and other church members concluded that joining the PCUSA would benefit the Hope Church. Cho talked with other church members to the effect that when a church joins PCUSA, its property is subject to PCUSA's control and supervision. Members were concerned that because it was possible for Rev. Kim to place church property in his name, it was necessary to join PCUSA to obtain the protection of PCUSA rules. According to Cho, everyone liked the idea of joining PCUSA, and there were discussions about how PCUSA rules would be applied to church elections and discussions of how church property would be treated if the church joined PCUSA. Cho heard other members state that once the church joined PCUSA, church property would belong to PCUSA so Rev. Kim would no longer attempt to own church property and 6

could not sell it without PCUSA's permission. Church members who had come from KIPC knew about the PCUSA property rules. Cho testified that the other congregants unanimously agreed that they wanted PCUSA to own Hope Church. A church member who came from the KIPC told how the KIPC pastor tried to secede from PCUSA with church property, but PCUSA rules prevented that pastor from carrying out his plan. Until 1995, the Hope Church was independent and not affiliated with any national denomination. In 1995, Rev. Kim submitted an application for Hope Church to join Hanmi Presbytery, Synod of Southern California and Hawaii, and PCUSA. In October 1995, Hope Church joined PCUSA. Also in 1995 Rev. Kim applied for a minister's admission to the Hanmi Presbytery. Hanmi Presbytery received Rev. Kim as a minister on September 5, 1996. Rev. Kim testified that he proposed to the Hope Church Session that the church join PCUSA. When the church applied to join Hanmi Presbytery, Rev. Kim was aware that PCUSA had a Constitution and a Book of Order whose rules governed PCUSA member churches. He also testified that he knew that Hope Church would become subject to the PCUSA Constitution, and he intended that the church would abide by and be guided by the PCUSA Constitution. Later, on June 15, 2000, Rev. Kim signed a "Covenant Between Active Members and Elders of Hanmi Presbytery and The Presbyterian Church (U.S.A.)" stating that he promised that he would "abide and be guided by the Constitution of the PC(U.S.A.)." 5. As Moderator of Hanmi Presbytery, Rev. Kim Relies on the Book of Order and Its Trust Clause in Matters Involving Local Church Property: Margaret Wentz, Corporate Secretary for the Synod, testified that a "moderator" is the most senior office of Hanmi Presbytery, acts as chief presiding officer, has the power of appointment, and serves on other important committees. Rev. Kim was interim moderator of Hanmi Presbytery in 1999 and 2000. During this period Rev. Kim abided by and relied on the Book of Order, and as moderator acted to enforce its provisions in several proceedings. In March and May of 2000, Rev. Kim presided over meetings in which the Hanmi Presbytery created an 7

administrative commission for the Young Eun Presbyterian Church to address a pastor's attempt to sell church property without authority and to address an improperly called congregation meeting. In another matter involving the Orange County Presbyterian Church, a dispute had arisen between church elders, who believed that church funds were held in a restricted bank account as a building fund to acquire a church property; the church's pastor, however, had used that money from that account as operating funds. On April 20, 1999, on behalf of Hanmi Presbytery, Rev. Kim sent written instructions to the California Korean Bank in Garden Grove to freeze the $60,000 account of Orange County Presbyterian Church and stating that the funds belonged to the Hanmi Presbytery. On May 17, 1999, Rev. Kim participated in a Hanmi Presbytery Administration Commission decision to authorize a civil suit to prevent the pastor of Orange County Korean Presbyterian Church from using church building funds for operating expenses. Rev. Kim verified a complaint filed by the Synod and Hanmi Presbytery against Orange County Korean Presbyterian Church, alleging that this church was subject to the PCUSA Book of Order and to its provision that local church property was held in trust for the use and benefit of PCUSA. On behalf of the Hanmi Presbytery as moderator, Rev. Kim signed a May 20, 1999, letter requesting the cooperation of California Korea Bank to safeguard disputed church funds to permit resolution of the matter "consistent with the rules governing [PCUSA]." 6. During Disputes Within Hope Church and Among Its Members, Rev. Kim Again Relies on the Book of Order and Requests Intervention by Hanmi Presbytery: In an August 5, 2001, letter to a Synod Executive, seven elders of Hope Church reported that when Rev. Kim ignored a petition from the congregation requesting that the session hold a congregational meeting, a majority of session members announced a congregational meeting. The elders' letter requested that the Synod and Hanmi Presbytery intervene on the congregation's behalf and provide a moderator for a congregational meeting to: (1) effectuate the retirement of Rev. Kim as pastor and establish him as Pastor Emeritus; (2) form a committee to search for the next pastor; and (3) remove Rev. Kim and two elders as authorized signers of church checks. Rev. Kim 8

responded in letters to the Committee of Ministry Chair, with copies to Hanmi Presbytery and Synod officials. Rev. Kim notified them that the session had deleted three individuals from the Hope Church membership roll according to The Book of Order, G-10.0302b(4). Rev. Kim testified that he requested Hanmi Presbytery to come to Hope Church and tell other church members to stop holding meetings in violation of the Book of Order. Rev. Kim made other attempts to stop Hope Church members from conducting what he considered to be an illegal congregational meeting. In a November 26, 2001, letter, Rev. Kim stated that Presbyterian churches and members should faithfully observe the Book of Order, and asked the Presbytery and Synod to show the Hope Church session how it should treat members' illegal activities. 7. The Hanmi Presbytery Forms the Hope Administrative Commission to Resolve a Dispute Between Rev. Kim and Rev. Oh: In January 2002, Bethel Presbyterian Church in Norwalk, California, and its pastor, Rev. Oh, agreed to merge with Hope Church. Rev. Oh acted as a minister at Hope Church for a period, but a dispute arose. In late 2002, Hanmi Presbytery received a complaint from Rev. Oh that he was unfairly asked to leave, and that Hope Church no longer paid his salary since he ceased to act as minister in September 2002. The Presbytery Committee on Ministry investigated Rev. Oh's complaint. On January 3, 2003, Rev. Kim wrote an "Accusation" letter to the Hanmi Presbytery. It alleged that pursuant to Book of Order section D-10.0102, Rev. Oh committed a series of offenses: failing to transfer $100,000 in Bethel Presbyterian Church assets to Hope Church; falsifying Rev. Oh's personal history; making defamatory statements on a Radio Korea broadcast; and claiming to be a minister of Hope Church after he ceased to work there. Rev. Kim's "accusation" requested referral of these allegations to an investigation committee pursuant to Book of Order section D-10.0101. Rev. Kim testified that when he wrote this letter, the Hanmi Presbytery had authority to investigate Rev. Oh, to obtain the Bethel Presbyterian Church assets, and to expel Rev. Oh from Hope Church. Under Book of Order section D-10.0102, subsection (a), Rev. Kim considered himself and Rev. Oh under PCUSA jurisdiction. 9

When the Presbytery Committee on Ministry investigating Rev. Oh's complaint did not receive Rev. Kim's cooperation, it asked the Synod Administrative Commission to form the Hope Administrative Commission. The Hope Administrative Commission tried to mediate the dispute between Rev. Kim and Rev. Oh. When the Hope Administrative Commission was impaneled on March 23, 2003, Hope Church had not notified the Hanmi Presbytery that it had left PCUSA. When the Hope Administrative Commission interviewed Rev. Kim on May 6, 2003, Rev. Kim had not informed that Commission that he had renounced the PCUSA's jurisdiction or that Hope Church had left Hanmi Presbytery and PCUSA. From July through September 2003, Rev. Kim did not inform the Hope Administrative Commission that he had left the PCUSA's jurisdiction. In a complaint filed on June 3, 2003, Rev. Kim and Hope Church sued Rev. Oh for breach of contract, embezzlement and/or conversion of church funds, and other causes of action. That complaint identified Hope Church as "a member of [PCUSA]." Rev. Kim testified that this allegation in the complaint was true as of June 3, 2003. The mediation continued, but as of November 23, 2003, Rev. Kim ceased to respond to the Hope Administrative Commission's requests or its offer to meet with him, and did not provide the membership, financial, and business records the Commission requested. Rev. Kim did not attend a January 18, 2004, hearing and congregational meeting convened to hear the positions of Revs. Kim and Oh. The Hope Administrative Commission eventually concluded that he had not cooperated. Rev. Kim never provided a set of Hope Church by-laws. On December 17, 2002, Rev. Kim filed a complaint with the Permanent Judicial Commission of the Synod, alleging that Hanmi Presbytery violated Book of Order section G-11.0404(e) because Rev. Oh did not furnish satisfactory evidence of having been removed as a minister from the prior denomination with which he was associated, and the Hanmi Presbytery violated Book of Order section D-6.0202a by failing to correct this irregularity after receiving notice of it from Rev. Kim.

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8. Rev. Kim Begins Efforts to End Hope Church's Relationship With PCUSA: Previously in January 2003, Rev. Kim had caused numerous Hope Church members to sign written statements approving termination of the relationship between the Hope Church and PCUSA. Rev. Kim told members who signed these termination statements that they needed to preserve and protect the Hope Church, which was more than 30 years old. Rev. Kim, however, never delivered the members' termination statements, and continued to take the position that Hope Church was still within PCUSA. Hope Church members later signed declarations explaining why they had signed the termination statements, and raised new allegations about Rev. Kim's unauthorized attempt to sell church property for $2.5 million. After Rev. Kim received notice of the complaint Rev. Oh lodged with Hanmi Presbytery, in January 2003 Rev. Kim informed his congregation that the presbytery might create an administrative commission to resolve the dispute with Rev. Oh. Church members knew that such an administrative commission might cause Rev. Kim to lose control of Hope Church. 9. Hanmi Presbytery Authorizes the Hope Administrative Commission to Act as the Session of Hope Church: On March 25, 2003, Hanmi Presbytery authorized the Hope Administrative Commission to act for and on behalf of Hope Church, including acting as that church's session. On April 4, 2003, the Hope Administrative Commission by resolution confirmed that the prior Session of Hope Church was dismissed effective March 25, 2003, that the authority of all previous Hope Church representatives and authorized bank account signatories was revoked and ineffective, and that the Hope Administrative Commission assumed responsibilities of the Session and authorized and ratified all necessary actions to safeguard records and assets of the Hope Church for PCUSA. The Hope Administrative Commission elected a new moderator and president and a new secretary and treasurer, who became the only current officers of Hope Church. On April 1, 2003, an attorney purporting to represent Hope Church advised officials of Hanmi Presbytery, the Synod, and PCUSA that by a unanimous vote of its 11

board of directors and a majority of its membership, Hope Church terminated its affiliation and relationship with Hanmi Presbytery, the Synod, and PCUSA. Nonetheless in a September 30, 2003, letter to the Hope Administrative Commission and to the Synod Administrative Commission, counsel for Rev. Kim stated that Rev. Kim had not renounced jurisdiction of PCUSA. In 2003 Rev. Kim attended meetings of the Hope Administrative Commission, and did not inform that Commission that he had renounced PCUSA jurisdiction. On April 18, 2003, Rev. Kim leased the Hope Church property to a third party without authority from the board. Rev. Kim testified that he accepted no rent checks pursuant to the lease and never intended the lessees to occupy the leased property, and that he entered into the lease to obtain an advantage in his dispute with the PCUSA. Rev. Kim also testified that he entered into a contract to sell the Hope Church parking lot for $2.5 million, and a grant deed transferring that property to the Victorville Sarang Church was recorded on June 13, 2003. The grant deed stated that the transfer of the property "is a bonafide gift and grantor received nothing in return[.]" Rev. Kim testified that he received nothing for the transfer of this property, and that by transferring the property to the Victorville Sarang Church he intended to put the property beyond the reach of PCUSA. 10. The Hope Administrative Commission Dissolves Rev. Kim's Pastoral Relationship With Hope Church: On November 25, 2003, the Hope Administrative Commission made a preliminary decision to dissolve the pastoral relationship between Hope Church and Rev. Kim. On January 7, 2004, the Synod of Southern California and Hawaii, Presbytery of Hanmi, Hope Church, and Rev. Mark Hong (Moderator of the Hope Administrative Commission) filed the initial complaint in this action against Rev. Kim and other defendants. Before making a final determination, on January 18, 2004, the Hope Administrative Commission held a hearing and congregational meeting to hear the positions of pastors, members, and other interested persons. Although invited to attend and respond to concerns expressed at the meeting, Rev. Kim did not attend or respond.

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On January 27, 2004, the Hope Administrative Commission dissolved the pastoral relationship between Hope Church and Rev. Kim, effective February 1, 2004. Judgment: After trial by the court, on June 13, 2006, the trial court entered judgment for plaintiffs and against defendants. As part of the judgment, the trial court issued a declaratory judgment finding that as of March 1995, all right, title or interest in any real or personal property held in the name of or intended for Hope Church was and continued to be held in trust for the use and benefit of PCUSA, to be used and applied as directed by the Hope Administrative Commission and Hanmi Presbytery. Hope Corp. (Korean Hope Christian Church, a California non-profit religious corporation) was shown on legal title to real property known as 19319 and 19333 Carmenita Road, Cerritos, California. Any right, title, or interest of Hope Corp. in the property and real property of Hope Church was, and at all times since October 1995 had been, held in trust for the benefit of PCUSA. As of March 25, 2003, the disposition and management of the Hope Church property and real property were subject to the exclusive direction and disposition of the Hope Administrative Commission and Hanmi Presbytery. The judgment also declared Hanmi Presbytery to be the fee simple owner of property and real property of Hope Church. The judgment therefore quieted title to the Hope Church property and real property in Hanmi Presbytery, and stated that no defendants had any estate, right, title, interest, or claim, either legal or equitable, in or to property or real property of the Hope Church. The judgment also awarded injunctive relief to plaintiffs, permanently enjoined defendants from interfering with the actions of Hanmi Presbytery and its Hope Administrative Commission, including without limitation acting as the session or board of directors of defendant Hope Corp., and from encumbering or attempting to encumber the Hope Church property or real property. The judgment ordered all defendants to give up possession of the Hope Church property and real property to the control of the Hope Administrative Commission. Appeal: Rev. Kim and other defendants filed a timely notice of appeal.

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ISSUES Defendants claim on appeal that: 1. Plaintiffs failed to meet their burden in demonstrating that a trust existed in favor of PCUSA, and the trial court erred in so holding; 2. As a matter of law, Hope Church had the power to leave the PCUSA and once it had done so, the PCUSA did not have secular power over Hope Church; 3. Defendants were denied due process, as they received no right to be heard by the Hope Administrative Commission as required by the Book of Order. DISCUSSION 1. Civil Courts Resolve Church Property Disputes by Neutral Principles of Law The main issue in this appeal concerns how to resolve the dispute concerning ownership and control of Hope Church property. This in turn involves the question in what circumstances the civil court will enforce rules and regulations found in ecclesiastical governing instruments. It also involves the meaning of section 9142 and its effect on assets of a religious corporation. We first set forth the principles applicable to church property disputes. These principles derive from Jones v. Wolf (1979) 443 U.S. 595 and Protestant Episcopal Church v. Barker (1981) 115 Cal.App.3d 599 (Barker). The property dispute in Barker resulted from a controversy about church doctrine. Dissatisfied with how the national church's general convention resolved this controversy, four local church congregations seceded from regional and national church bodies, but kept possession of local church property they held as local membership corporations created under the California nonprofit corporation law. The national church and the regional diocese sued the local churches to obtain title to and possession of their properties. The issue was whether local church organizations could keep church property held in their own names or whether they had to surrender it to regional and national church organizations as property held in trust for the general church. (Barker, supra, 115 Cal.App.3d at pp. 604-605.)

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After first citing the rule that an owner of legal title is presumed to be the owner of full beneficial title to real property,3 Barker analyzed three possible theories by which the general church organizations could try to rebut this presumption. First, under the hierarchical theory, centralized church control over church property supersedes civil law disposition of such property, and the centralized church's governing rules override state law disposition of local church property. (Barker, supra, 115 Cal.App.3d at p. 605.) Second, under the implied trust theory, "a local church accepts and holds local church property for the benefit of the entire membership of the general church" with which it is affiliated. The local church holds its church property as a charitable trust to benefit the specific religious use in effect when it acquired the property. The local church is prohibited from applying the church property to a different religious use, and if it does so "the property reverts to a trustee who must apply it to its original religious purpose." (Barker, supra, 115 Cal.App.3d at p. 606.) Third, express trust theory "relies on title deeds, articles of incorporation, canons and rules of the organizations concerned and statutes, to establish that a local church holds property under an express trust for the benefit of the general church membership as embodied in its regional and national organizations." (Barker, supra, 115 Cal.App.3d at p. 606.) Barker evaluated these three theories against the constitutional principal that "under the First Amendment a civil court is not allowed to adjudicate church property disputes by interpreting religious doctrine and practice and then relying on its own interpretation of doctrine to allocate control over church property." (Barker, supra, 115 Cal.App.3d at p. 612.) However, Barker held that courts charged with resolving church property disputes can use " `neutral principles of law, developed for use in all property disputes,' " without violating the First Amendment by "establishing" churches See Evidence code section 662: "The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof." 15
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found to be entitled to the property. (Ibid.) Barker cited the United States Supreme Court's approval of the state courts' use of "neutral principles of law" to settle church property disputes by examining "title deeds, statutes, corporate charters, and constitution, rules, and regulations of the general church." (Id. at pp. 612-614, citing Jones v. Wolf, supra, 443 U.S. 595.) Because it is difficult to separate issues of control over church property from issues of church authority over doctrinal controversy, "neutral principles of law promise to free a court from the necessity of inquiry into church doctrine, polity, and practice, and allow it to rely on objective, well-established concepts of trust and property law to dispose of disputed church property." (Barker, at p. 613.) Barker concluded that California law rejected use of the hierarchical theory to resolve church property disputes, and instead adopted the "neutral principles of law" in its place. (Barker, supra, 115 Cal.App.3d at p. 614-615.) Barker also concluded that difficulties associated with the "use of the implied trust theory, once evaluation of theology and doctrine has been forbidden, remain insurmountable[,]" and thus found that "the implied trust doctrine provides no valid basis for transferring church property from the congregation in whose name the property is held to the general church." (Barker, supra, 115 Cal.App.3d at p. 620.) By contrast, the third theory, whether an express trust in local church property existed for the benefit of the general church, could be determined by the same neutral principles of law used to resolve property disputes between secular entities. (Barker, supra, 115 Cal.App.3d at p. 621.) "In determining the presence or absence of an express trust in specific church property a court will look at four general sets of facts: (1) the deeds to the property, (2) the articles of incorporation of the local church, (3) the constitution, canons, and rules of the general church, and (4) relevant state statutes, if any, governing possession and disposition of such property." These four general sets of facts are applied together, not singly, in determining whether an express trust on local church property has been created in favor of the general or denominational church. (Ibid.; Korean United Presbyterian Church v. Presbytery of the Pacific (1991) 230 Cal.App.3d 480, 510, disapproved on an unrelated ground, Moreheart v. County of 16

Santa Barbara (1994) 7 Cal.4th 725, 743.) Subsequent cases have adopted these neutral principles of law to resolve church property disputes. (Korean United Presbyterian Church v. Presbytery of the Pacific, supra, at p. 498; Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1081; Guardian Angel Polish Nat. Catholic Church of L.A., Inc. v. Grotnik (2004) 118 Cal.App.4th 919, 930; Concord Christian Center v. Open Bible Standard Churches (2005) 132 Cal.App.4th 1396, 1408; but see California-Nevada Annual Conf. of the United Methodist Church v. St. Luke's United Methodist Church (2004) 121 Cal.App.4th 754, 766-772.) As we discuss further post, the use of neutral principles of law to resolve church property disputes has a concomitant principle. The 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." (Jones v. Wolf, supra, 443 U.S. at p. 602.) "[A] state court may resolve disputes over church property through use of neutral principles of law . . . but if the civil court is required to resolve a religious controversy, it must then defer to the resolution of the doctrine issue by the authoritative ecclesiastical body." (Korean United Presbyterian Church v. Presbytery of the Pacific, supra, 230 Cal.App.3d at p. 498.) 2. Section 9142, Subdivision (c)(2) The Barker decision came before an important statutory change. In 1982, the California Legislature amended section 9142 by adding subdivisions (c) and (d). Section 9142 is part of the Nonprofit Religious Corporation Law (

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