As viewed by the hierarchy of The Episcopal Church, the Dennis canon seems to have a dual personality. Canons I.7.4-I.7.5 read as follows:
Sec. 4. All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.
Sec. 5. The several Dioceses may, at their election, further confirm the trust declared under the foregoing Section 4 by appropriate action, but no such action shall be necessary for the existence and validity of the trust.
On its face, the Dennis canon appears to have the attributes of what I will call the strong version. There is nothing equivocal about it. It states that the property of parishes and missions is held in trust for TEC and the Diocese. The dioceses can confirm this if they wish, but it doesn't matter whether they do or not. The trust exists and is valid.
As is evident from the immediately preceding blog entry, however, there are some problems with the strong version. As a California court observed in 2004, “We know of no principle of trust law stating that a trust can be created by the declaration of a non-owner that the owner holds property as trustee for the non-owner.” California-Nevada Annual Conference of United Methodist Church v. St. Luke’s United Methodist Church, 121 Cal. App. 4th 754 (2004). For these reasons, those arguing the position of the national church have been insistent in maintaining that the Dennis Canon was merely declaratory, or a codification, of an already existing legal structure. I will call the latter view the weak version of the canon.
Competition between the strong and weak versions of the Dennis canon can be illustrated by the following historical note. The Episcopal Church has a quasi-official commentary on its legislative history entitled the Annotated Constitution and Canons (sometimes referred to as White & Dykman). As revised in 1981 by the Standing Commission on Constitution and Canons, the Annotated Constitution and Canons said of the Dennis Canon that it was “considered by some to be declaratory of existing law.” The authoritative commentary offered no support for the position said to be held "by some." The lack of support for the Dennis Canon as declaratory of existing law led a witness in a Connecticut church property case, former New York appellate judge and Chancellor (to the Presiding Bishop) Hugh Jones, to testify that although he viewed the commentary in the Annotated Constitution and Canons as an authoritative work, he “disagreed very strenuously with the suggestion . . . of that text that the Dennis Canon was not declaratory or that it introduced a new concept.” Rector, Wardens and Vestrymen of Trinity-St. Michael’s Parish, Inc. v. The Episcopal Church in the Diocese of Connecticut, 620 A. 2d. 1280, 1288 (Conn. 1993). What seems apparent is a tension between the historical perspective of the chroniclers of the legislative history, and the perspective of the Chancellor serving as witness who realizes how weak ECUSA’s position becomes if the Dennis canon doesn’t reflect existing law.
Some of the desire to advance the weak version can be attributed to the fact that some cases heard after adoption of the Dennis canon involved facts that occurred before passage. (The Connecticut case just mentioned was such a case.) TEC wanted to deflect the argument that passage of the canon meant that there was no trust interest at the times relevant to the facts in the case. Nonetheless the weak version continues to be deployed in cases with facts arising after adoption of the Dennis canon.
Who was right, then—Chancellor Hugh Jones who was sure that the Dennis Canon only reflected a state of affairs legally recognizable as already existing within ECUSA or the less enthusiastic authors of the material in the Annotated Constitution and Canons? In the next post, I plan to examine some history that will shed light on this, including the evolution of the pre-Dennis property canons.
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