NASHVILLE, TN: St. Andrew's Battles TEC's Legal and Canonical Maneuverings
A VOL EXCLUSIVE
By Mary Ann Mueller with David W. Virtue
September 1, 2010
St. Andrew's is a spiritually vibrant parish with a long history of problems involving its church building. The Episcopal congregation was founded in 1889 during the height of the Reconstruction Era in the post-Confederate south. St. Andrew's, an Anglo-Catholic parish, is one of 13 spiritual daughters of Christ Church, the mother church in Nashville, which eventually became the cathedral church of the Episcopal Diocese of Tennessee.
St. Andrew's Anglo-Catholic leanings began with the Rev. Donald Mowery who was ordained to the Episcopal priesthood by Bishop John Vander Horst. He implemented daily Eucharist celebrations, a tradition which continues to this day under the spiritual leadership of the Rev. James Guill, SSC.
The growing Episcopal mission was finally granted parish status in 1960, nearly a century after its humble beginnings and multiple moves. In 1963, the Rev. Edwin Conly stepped into St. Andrew's pulpit as rector. Under his leadership, the congregation made one more move, this time to 3700 Woodmont Blvd. at Lynnbrook Rd. in the upper class Green Hills neighborhood. The thriving congregation moved into the old Robert Cheek mansion of Maxwell House Coffee fame.
"In 1966 we bought this current location from the Diocese with a Warranty Deed which absoluted this property," Fr. Guill told VOL in a telephone interview.
He explained that the final move to the Woodmont location benefited both the Diocese and the congregation. "There had been a large mansion on this property for a mission that had failed and the mansion was quite expensive to keep up so we bought the property for $15,000 cash and the assumption of some debt on the property."
St. Andrew's built another new church, parish hall and education space. Later a preschool was started as a part of its mission to the greater Nashville community. The old Cheek mansion finally succumbed to the wrecking ball in 1992.
Fr. Guill, a Nashotah House graduate, is also a member of the Society of the Holy Cross and is the second vice president of Forward in Faith-North America. He has been the rector at St. Andrew's since 1999. However the priesthood is a second career for Fr. Guill. His first was as an attorney. Thirty years ago he graduated from Emery Law School, and for 10 years practiced law.
The shift in St. Andrew's diocesan and provincial allegiance came early in the 21st Century following two theologically reprehensible actions on the part of The Episcopal Church -- the consecration of V, Gene Robinson in New Hampshire, in 2003, followed by the 2006 election of Katharine Jefferts Schori, as the Episcopal Church's Presiding Bishop. Fr. Guill saw the handwriting on the wall as he witnessed The Episcopal Church continued plunge into a spiritual morass.
After prayer and careful consideration of the issues, he lead his orthodox Anglo-Catholic Episcopal congregation into the protection and spiritual episcopal oversight of Bishop Keith Ackerman through association with the Diocese of Quincy and the primatial oversight of Archbishop Gregory Venables of the Anglican Province of the Southern Cone.
"In 2006, after the election of Jefferts Schori, we passed a resolution by our vestry and signed by the congregation that we wanted alternative primatial oversight," said Guill. "We asked then out-going Bishop Bertram Herlong to let us to have Bishop Ackerman in Quincy provide us with oversight and go through a different Primate because we would not able to be in communion with Jefferts Schori."
At that point, he switched his sacerdotal allegiance to the Diocese of Quincy. He no longer considered himself, or his congregation, to be a part of the Episcopal Diocese of Tennessee. He no longer attended the Diocese of Tennessee's Annual Conventions nor submitted parochial reports to the new Bishop of Tennessee, the Rt. Rev. John C. Bauerschmidt. St. Andrews' parochial reports were submitted to the Diocese of Quincy.
The Rev. Harold Camacho, the secretary to the Diocese of Quincy, confirmed that St. Andrew's was canonically a part of the Illinois diocese, which has now folded into the Anglican Church in North America.
"Bishop Herlong did nothing with the resolution," Fr. Guill recalled, adding that the church then sought to work with the new incoming Bishop of Tennessee.
"Then the new bishop (John) Bauerschmidt came on board and for two or three years we worked with him. We hoped that, based on the clarity of St. Andrew's Warranty Deed, the new bishop would work out an equitable solution with property transference." Guill had hoped that he and his congregation could peaceably depart the Episcopal Diocese of Tennessee with their property intact.
Bishop Bauerschmidt is a Communion Partner bishop.
Fr. Guill believed that some progress was being made in his deliberations with his new bishop. When Bauerschmidt attended a March 2009 House of Bishops' meeting in North Carolina, everything changed.
"When Bishop Bauerschmidt returned from a House of Bishops' meeting in at the Kanuga Conference Center in North Carolina, he said he was going to 'pump' us about our situation. The subject turned to money and the pressure was on."
Guill was then called on the carpet for not filing parochial reports with Bauerschmidt. He had also not attended any of the Diocese of Tennessee's annual conventions since Bishop Bauerschmidt had been elected bishop.
"I kept telling him we are not coming back to Convention or filing parochial reports. As far as we were concerned we were under the Diocese of Quincy and their provision at that time for parishes. I am fully acknowledged as a resident in the Diocese of Quincy. We are a parish in good standing with the Diocese of Quincy under their Constitution that provides for non-geographic parishes."
The Diocese of Tennessee did not see it that way. St. Andrew's Church is still listed as a congregation in the Diocese's weblist of parishes. However, all that is listed is the church name, address, phone and fax numbers as well as Fr. Guill's name. Neither St. Andrew's web address nor its E-mail are listed.
The Diocese of Tennessee is now going to court to use the Dennis Canon as a quasi-legal club to overturn the provisions of St. Andrew's Warranty Deed. The bishop is also making a move against Fr. Guill, but he is not using the standard "Abandonment of Communion" option regularly used against former Episcopal clergy who realign with another Anglican province.
"This is so bizarre and banal," the priest said. "It's all because I failed to follow this bishop's directive to file parochial reports. That's it. That's all you need if you if you don't follow the letter of the law or the bishop's orders. It has not been an 'abandonment of communion' [issue]."
Guill opined that Jefferts Schori is calling the shots. He said he realized that after the change in the bishop's demeanor and attitude following the March 2009 House of Bishops' meeting.
"Bishop Bauerschmidt would like to act like he is in charge, but we know that all the shots are being called by 815 in spite of what the Diocese might think," said Guill.
In October 2009 the diocese and Bauerschmidt filed a lawsuit in the Davidson County Chancery Court against St. Andrew's Church and the current rector, as well as individual vestry members, wardens, board of director trustees as well as former wardens, vestrymen and trustees in a bid to take back the property.
"On October 30th, , the Bishop and the Diocese of Tennessee will bring a Complaint for Declaratory Judgment in Chancery Court in Davidson County against the Rector, Wardens, and Vestry of St. Andrew's Parish, Nashville. I take this action with a heavy heart, conscious of the gravity of such an action, but convinced that in doing so I am discharging my responsibilities as bishop after having exhausted all other possibilities that are in keeping with my office," Bishop Bauerschmidt posted on his Diocesan website.
"This leaves us with no other option than to acknowledge the decisions made by the leadership of St. Andrew's, and to follow through with our responsibilities to the Church in Tennessee. By leaving the Diocese, parish leadership has forfeited property held in trust by the Diocese for the use of The Episcopal Church, a condition freely agreed to by parish leadership at the time of the assignment of the deed."
Tennessee is one of four states, along with Mississippi, Delaware and New Jersey, which have Chancery Courts as a court of equity rather than a court of law. The Chancery Court concept comes over from English law and practice. Basically, a Court of Chancery is a civil court dealing with civil matters rather than a criminal court dealing with lawbreakers.
St. Andrew's legal position claims the church property is not held in trust because a fee simple Warranty Deed was executed, signed and accepted by the then-bishop of the Diocese of Tennessee, Bishop Vander Horst in 1966, more than a dozen years before the development of the Dennis Canon in 1979.
St. Andrew's Warranty Deed states in part: that the rector, wardens and vestrymen of St. Andrew's parish are "to have and to hold the aforesaid real estate [at 3700 Woodmont Blvd.] together with all the appurtenances and hereditaments thereunto belonging or in any way appertaining unto the said party of the second part [the rector (Edwin Conly), wardens and vestrymen of St. Andrew's parish] its successors (Fr. Guill and current Vestry) or assigns in fee simple forever; and the party of the first part [the Diocese of Tennessee] does hereby covenant with the said party of the second part [St. Andrew's] that it is lawfully seized in fee of the afore described real estate [at 3700 Woodmont Blvd.] ... that the same is unencumbered; and that the title and quiet possession thereto it will warrant and forever defend against the lawful claims of all persons ..."
In plain terms "fee simple" means absolute, full, total, unfettered and unencumbered ownership and use of real estate property, but that property would still be subject to city zoning statutes. Also a "warranty deed" is designed to guarantee that the title to the warranted property is free and clear of any and all encumbrances including liens and trusts. "Forever" simple means until the end of time. Once time ends, property ownership is not important.
Guill explained "... our Warranty Deed clearly states that there is no reservations to The Episcopal Church or nobody else in the world. In fact during the negations with Bishop Vander Horst his chancellor removed such language and he signed the deed free and clear."
As far as Guill is concerned, the Warranty Deed is crystal clear in its language and that even The Episcopal Church cannot lay claim to St. Andrew's property by trying to make the 1979 Dennis Canon retroactive to 1966 when the Warranty Deed was originally signed and accepted by the Diocese.
Also up for grabs is St. Andrew's five acres of prime land in the coveted west Nashville upscale Green Hills neighborhood. Should the church lose its land and the Diocese sell it -- because it cannot find enough Episcopalians left in that part of town to support an Episcopal parish -- developers could easily slice the acreage up into 15 McMansion-sized lots according to Guill.
Since last October, the lawsuit against St. Andrew's had been chugging through the Chancellery Court system in Davidson County, Tennessee. In January the Chancellor (the judge in the case) Carol McCoy dismissed all claims against individuals in lawsuit reducing the scope of the lawsuit to two principal corporations only -- the Convention of the Diocese of Tennessee and St. Andrew's Parish.
In April, the Chancellor granted the Diocese a summary judgment meaning that the Judge ruled in favor of the Diocese's claim to the land, believing the hierarchical argument that all properties are held in trust for the Episcopal Church.
"A 'summary judgment' means that the judge puts an end to the case without a trial," Allen Haley told VOL in an E-mail communiqué. "The party moving for summary judgment has to show to the court that all the key facts are not in dispute, and that there is nothing left for the court to do but apply the law to the undisputed facts."
Haley is an attorney in California who is carefully tracking all law suits The Episcopal Church files against departing congregations and dioceses. He is also known as "The Anglican Curmudgeon."
"The only way to have the Court see this is as a straight property trust issue rather than a religious dispute," explained Bob Smietana, a reporter with "The Tennessean" newspaper. "It really does come down to the Church seeing this as a property dispute and the Diocese seeing it as an internal religious dispute." The reporter noted that the State of Tennessee has been very reluctant to get involved in a religious land dispute.
"We requested a rehearing as an opportunity to stay on the property pending an appeal by posting a bond," Guill explained after the summery judgment was issued. "She (Chancellor McCoy) refused our motion for a rehearing, but she did allow us to stay on the property with a posted cash bond."
In May, the Chancellor required St. Andrew's to pay the Diocese of Tennessee a $82,000 bond to stay on its property, keep its established preschool in operation and the church doors open until the appeal process could be played out.
"We are in the process of court appeals," Guill explained. "She (Chancellor McCoy) ruled on a narrow issue. There were many issues of material fact. The case should not have been decided on summary judgment at that level."
Guill is confident that eventually the court of appeals will send his case down to the evidentiary court for a proper determination of the issues.
The Diocese is hoping that the Court's Chancellor will saddle the church with a $12,000 monthly bond, but that would financially cripple St. Andrew's.
The "Nashville Post" reports that the $12,000 figure was suggested because the Diocese determined that it could lease the coveted Green Hills neighborhood property for that much if the Diocese were in control. A $5 million price tag has been batted around although the property, along with its buildings has been valued at about the $3 million.
Currently St. Andrew's is the spiritual home to about 50 souls on a Sunday morning.
"We have lost membership since 2003," Guill explained. "We have lost half our membership and a third of our attendance. We have lost people over the years because of what has been going on generally in The Episcopal Church."
The priest stated that nothing has changed at St. Andrews. "The Gospel is being preached, the Sacraments are being celebrated, and daily prayer is rising to the throne of God. However, some of his parishioners are fed up with the continued prolonged struggle with shifting theology and court legalities so that they have decided to go on to Rome and the Orthodox Church as well as to Asbury, the Methodist church.
"It's hard for them to understand why, when they own the property and have built all these buildings, we may have to walk away from them."
Guill observed that if the bishop is determined to "come in and try to close us down we're all walk out of here together and there will be nobody here to support him." Contingency plans are already in the works for that scenario with friendly Roman Catholics offering to share their worship space if need be.
On the canonical side, things are heating up for the St. Andrew's priest. On September 27. Guill has been ordered by the Diocese to appear for sentencing by the Diocesan Ecclesiastical Trial Court on the charge that he has not filed parochial reports.
"The argument seems to be that since I have not followed the bishop's directives then I will be disciplined in some way. They will either admonish me, suspend me, or dispose me," Guill told VOL. "I am not worried about it. I have more important things to do... I'm not going to be attending anyway."
"Bishop Bauerschmidt ordered me to file parochial reports, which I have not done," Guill noted. "The Diocese has now gone through the Ecclesial Court process and found me 'guilty' of not following a 'national directive'."
The priest said he did not participate in The Diocese of Tennessee's Ecclesiastical Trial Court against him.
"The trial judge is an old friend of mine and I wrote to him and told him: 'I would no longer be involved because I am no longer in that jurisdiction.' There will be a sentencing on Sept 27."
Guill is baffled by all the attention his failing to file parochial reports has caused.
"They (the Diocese) have hired counsel, they have filed memorandums and motions and affidavits ..." he explained. "There is an extraordinary amount of money they are spending on this. I'm not even bothering to appear. I'm a non-practicing attorney. I could care less."
The priest noted that should he be deposed he would wear his "ecclesial sentence as a badge of honor. The Diocese has inhibited other priests who make up the "honor roll".
"I have not been inhibited, but it doesn't matter. We are not a part of their diocese anymore or their church," he said.
---Mary Ann Mueller is a journalist living in Texas. She is a regular contributor to VirtueOnline
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