REL:10/24/2014




Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.




          SUPREME COURT OF ALABAMA
                           OCTOBER TERM, 2014-2015
                            ____________________

                                    1130539
                             ____________________

              Burns Church, Inc., and Stephen Etheridge

                                           v.

Alabama District Council of the Assemblies of God, Inc., and
                Burns Assembly of God Church

                    Appeal from Geneva Circuit Court
                              (CV-13-90082)



PER CURIAM.

      AFFIRMED. NO OPINION.

      See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.

     Stuart, Bolin, Parker, Murdock, Shaw, Main, Wise, and
Bryan, JJ., concur.
1130539

    Moore, C.J., dissents.




                             2
1130539

MOORE, Chief Justice (dissenting).

    I respectfully dissent from the Court's decision to

affirm the summary judgment in favor of the Alabama District

Council    of   the   Assemblies      of    God,   Inc.   ("the     District

Council"), and Burns Assembly of God Church in their action

against Stephen Etheridge and Burns Church, Inc. Though this

ecclesiastical dispute incidentally affects property rights,

the courts of the State of Alabama lack jurisdiction to

intervene in this dispute, which is based upon disparate

interpretations of church governing documents and doctrine and

conflicting claims of church membership. I believe that the

Court should have dismissed this appeal for lack of subject-

matter jurisdiction.

                             I. The Parties

    The    District     Council,      an    appellee,     is   located     in

Montgomery and is the governing body of all Assemblies of God

churches in Alabama. The District Council incorporated in 1942

as a nonprofit religious corporation under Alabama law. The

District   Council    acts    under       the   General   Council    of   the

Assemblies of God, which is located in Springfield, Missouri,

and is the governing body of all Assemblies of God churches in


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the United States ("the General Council"). Burns Assembly of

God Church, the other appellee, is located in Geneva County

and is an unincorporated religious association that acts under

the authority of the District Council and the General Council.

Burns Church, Inc., an appellant, is also located in Geneva

County. It was incorporated in 2006 as a nonprofit religious

corporation under Alabama law. Stephen Etheridge, the other

appellant, is the pastor of Burns Church, Inc.

              II. Facts and Procedural History

    Burns Assembly of God Church has maintained a house of

worship in Geneva County for close to 100 years. For many

years, Burns Assembly of God Church has been affiliated with

both the District Council and the General Council. In October

2002, the members of Burns Assembly of God Church called

Etheridge to be their pastor. In that capacity, Etheridge also

served as chairman of the board of directors of the church.

    At some point, Etheridge and the directors voted to

excommunicate a number of church members whom Etheridge and

the directors believed to be contentious and disruptive, who

were not tithing as required by the standards for church

membership in the bylaws of Burns Assembly of God Church, or


                              4
1130539

who were no longer actively attending worship services, which

is a cause for discipline under the bylaws. The course of

action chosen by Etheridge and the directors caused disharmony

and contention between, on the one side, Etheridge, the

directors, and the remaining members (hereinafter referred to

collectively as "the Etheridge faction") and, on the other

side,     the    excommunicated   members        ("the    excommunicated

faction"). The excommunicated faction did not appeal the

decision    on   excommunication,        as   allowed    by   the   bylaws.

However, the excommunicated faction did request a hearing with

the District Council, whose leaders met with approximately 40

people     who   expressed   their       concerns   about     Etheridge's

leadership.1

    The excommunicated faction continued to assemble and to

meet for weekly worship at another location, also under the

name Burns Assembly of God Church. The excommunicated faction


    1
     In 2005, Joe Cotton, one of the excommunicated members
and a former director, sued Etheridge and Burns Assembly of
God Church, asking the trial court for a judgment declaring
that his excommunication from membership in the church was
improper. Etheridge and Burns Assembly of God Church moved to
dismiss Cotton's action on the ground that matters of church
membership are not to be decided by civil courts. On January
16, 2008, the trial court entered a summary judgment against
Cotton.

                                     5
1130539

associated itself with the District Council, which instructed

Etheridge    and   the    directors         to     seek   to    restore   the

excommunicated faction to fellowship pursuant to the General

Council's bylaws and the bylaws of Burns Assembly of God

Church. The District Council attempted, without success, to

mediate the dispute between the Etheridge faction and the

excommunicated faction.

    The     District     Council   recognized         the      excommunicated

faction as being the only true members of Burns Assembly of

God Church. The excommunicated faction operated under the

District Council's authority, adhered to Assemblies of God

doctrines,   and   retained     the       District    Council's    suggested

constitution and bylaws. The excommunicated faction appointed

a board of trustees and officers and, in time, chose a pastor.

The Etheridge faction incorporated as a nonprofit corporation

and took the corporate name of Burns Assembly of God, Inc.

    Etheridge served as president of Burns Assembly of God,

Inc. He was also serving as pastor of the church operating as

Burns   Assembly   of    God,   Inc.,       when    the   District   Council

announced its decision to remove him as pastor, to revoke his

ministerial credentials, to dissolve the board of trustees of


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1130539

Burns Assembly of God, Inc., and to place Burns Assembly of

God, Inc., under the supervision of the District Council.

Etheridge challenged his dismissal under a provision of the

bylaws of the General Council, and the District Council

subsequently rescinded its actions.

    After further attempts at reconciliation failed, the

Dothan    Sectional   Committee   of       the     District   Council   sent

Etheridge and Burns Assembly of God, Inc., a letter in which

it recommended that the church "come under the supervision of

the Dothan Sectional Committee." Otherwise, the letter warned,

the Committee would "recommend to the District Presbytery the

withdrawal of endorsement of the pastor's credentials, and of

the church's affiliation with the Assemblies of God."

    Several days later, the District Council voted to revoke

Etheridge's ministerial license on the grounds of a "general

inefficiency    in    ministry,   a       record    of   assembly   breaking

instead of making, a contentious, non-cooperative spirit, and

arbitrary rejection of district counsel." The District Council

forwarded its decision on Etheridge's dismissal to the General

Council's credentials committee for approval and notified

Etheridge of its decision regarding his dismissal.


                                      7
1130539

      While   Etheridge's    dismissal   was   pending   before   the

General Council, the members of Burns Assembly of God, Inc.,

voted unanimously to amend the portions of their church

constitution governing affiliation with the District Council

and the General Council and the disposition of property upon

disaffiliation from the Assemblies of God. A representative of

the District Council testified that Burns Assembly of God,

Inc., had the authority to adopt those amendments and that the

District Council accepted the amendments.2

      The following month, the General Council concurred with

the   District   Council's    decision   and   revoked   Etheridge's

ministerial license. Burns Assembly of God, Inc., then held a

special business meeting in which Burns Assembly of God, Inc.,

severed its affiliation with the Assemblies of God. Etheridge

served as chairman of this business meeting, contrary to the

District Council's constitution and minutes.3 District Council

representatives were not present at this business meeting,

although the General Council's constitution required their

      2
     There is no indication in the record that the General
Council accepted those amendments.
      3
     "No minister dismissed by the Assemblies of God may be
allowed to pastor or have ministry in an Assemblies of God
church." District Council Minutes § 3(b).

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1130539

attendance.4    The   District    Council    was     notified    of    the

disaffiliation, and the corporate name of the church was

changed to Burns Church, Inc.

     Etheridge did not appeal the General Council's revocation

of   his   ministerial   license,     as   allowed    by   the   General

Council's constitution. However, Etheridge continued to serve

as a pastor, and Burns Church, Inc., continued to use the

property on which the original Burns Assembly of God Church

had operated.

     The District Council and the excommunicated faction sued

Etheridge,     seeking   a   judgment   declaring     that   the      Burns

Assembly of God Church formed by the excommunicated faction is

a valid congregation under the laws of Alabama and declaring

it to be the rightful owner of the church property. On April

12, 2012, the trial court issued an order, stating:

          "Burns Church, Inc., [and] its trustees are
     indispensable and necessary parties to this action.
     Either Burns Church, Inc.[,] or the Burns Assembly

     4
     "In the event the termination of affiliation with the
General Council of the Assemblies of God is under
consideration by an affiliated assembly, the pastor or board
shall invite the district officers to participate in a
specially-called business meeting for the expressed purpose of
giving the district officers the opportunity to present the
case for continued General Council affiliation." Art. VI, §
3(D), General Council Const.

                                  9
1130539

    of God, Inc.[,] has title to the property in
    question, right of possession of the property in
    question[,] and [the] right to manage the affairs of
    the church and hire or fire pastor and staff.[5]

           "....

           "THEREFORE, IT IS ORDERED AND ADJUDGED AS FOLLOWS:

         "1. That the matter for Declaratory Judgment is
    dismissed.

         "2. That [the] parties are entitled to a jury
    trial on disputed issue [sic] of fact.

         "3. If there are no issues as to any material
    fact, ... Summary Judgment may lie."

(Capitalization in original.) Burns Church, Inc., was later

added     as   a   defendant.   The    District   Council   and   the

excommunicated faction filed an amended complaint asserting,

among other claims, claims of trespass and conversion and

seeking an eviction.

    The trial court set the case for a jury trial to begin on

May 13, 2013. After a pretrial conference, the trial court

issued an order stating that "[t]he parties agreed that the

    5
     The trial court's summary-judgment order of November 12,
2013, clarifies that the April 12 order "referred to 'Burns
Assembly of God, Inc.,' which should have been 'Burns Assembly
of God,' the plaintiff." The trial court indicated that its
April 12 order did not determine "who owned the property, but
that either the Plaintiff or the Defendant owned the
property[,] which would be determined at trial or summary
judgment."

                                  10
1130539

most critical issue at this time is a legal issue concerning

ownership of the property that would be best decided by the

Court" and that "all agreed that the jury trial scheduled for

May 13, 2013 should be continued."

    The District Council and the excommunicated faction then

filed a separate quiet-title action against Etheridge and

Burns Church, Inc., and moved for a summary judgment in that

action. The trial court consolidated the declaratory-judgment

action and the quiet-title action into an action identified by

a single case number. Burns Church, Inc., and Etheridge

opposed the plaintiffs' motion for a summary judgment, and the

trial court held a hearing on the motion to determine the

rightful owner of the church property.

    Burns Church, Inc., and Etheridge argued that the trial

court's April 12, 2012, order was a final judgment that

determined that Burns Church, Inc., was the true owner of the

property. Burns Church, Inc., and Etheridge also argued that

Burns Church, Inc., owned the property on the ground that

Burns Church, Inc., is the proper successor to Burns Assembly

of God, Inc. The District Council and the excommunicated




                             11
1130539

faction argued that as a result of prior conveyances, the

District Council held title to the church property.

      On November 12, 2013, the trial court entered a summary

judgment in favor of the District Council and Burns Assembly

of God Church. Burns Church, Inc., and Etheridge filed a

postjudgment motion to alter, amend, or vacate the judgment,

which the trial court denied after a hearing. This appeal

followed.

                        III. Discussion

A. Jurisdictional Separation of Church and State

      Before considering the merits of this appeal, this Court

should    have   determined   whether   it   had   subject-matter

jurisdiction over this ecclesiastical dispute. This Court has

recognized that it is our judicial duty "to consider lack of

subject matter jurisdiction ex mero motu." Ex parte Smith, 438

So.   2d 766, 768 (Ala. 1983). "As is the case with all

churches, the courts will not assume jurisdiction, in fact

[have] none, to resolve disputes regarding their spiritual or

ecclesiastical affairs." Abyssinia Missionary Baptist Church

v. Nixon, 340 So. 2d 746, 748 (Ala. 1976). The courts lack




                               12
1130539

jurisdiction   over   ecclesiastical   disputes   because   of   the

jurisdictional separation of church and state.

    "In   accordance   with   the  principles   of   our
    institutions and the organic law [Art. I, § 3, Ala.
    Const. 1901 (religious freedom)], the courts refrain
    from interfering when the office or functions are
    purely ecclesiastical or spiritual, disconnected
    from any fixed emoluments, salary, or other
    temporalities."

State ex rel. McNeill v. Bibb St. Church, 84 Ala. 23, 33, 4

So. 40, 40 (1888). The jurisdictional separation of the

institution of the church from the institution of the state is

a fundamental part of the English common law; it predates

Magna Carta and remains in force in Alabama.6 See § 1-3-1,

Ala. Code 1975 ("The common law of England, so far as it is

not inconsistent with the Constitution, laws and institutions

of this state, shall, together with such institutions and

laws, be the rule of decisions, and shall continue in force,

except as from time to time it may be altered or repealed by

the Legislature.").



    6
     See Yates v. El Bethel Primitive Baptist Church, 847 So.
2d 331, 352 (Ala. 2002) (Moore, C.J., dissenting) ("[T]he
principle of the institutional separation of church and state
became firmly established in the common-law jurisprudence of
England and thereafter, as a result, in the jurisprudence of
America."(surveying history of Magna Carta)).

                               13
1130539

     Under § 1-3-1, the jurisdictional separation of church

and state is also "an institution" of Alabama law. The word

institution, as used in § 1-3-1, means "[a]n elementary rule,

principle, or practice." Black's Law Dictionary 918 (10th ed.

2014).    Noah       Webster     defined      "institution"    as     an

"[e]stablishment; that which is appointed, prescribed, or

founded by authority and intended to be permanent.... We apply

the word institution to laws, rites, and ceremonies, which are

enjoined by authority as permanent rules of conduct or of

government." Noah Webster, American Dictionary of the English

Language "Institution" (1828).

     Thus, while the jurisdictional separation of church and

state is part of our common law, it is also an "institution,"

i.e., an established, elementary, and permanent rule of law.

The Court should apply this rule of law in this and all

ecclesiastical       disputes,   with   the   understanding   that   the

jurisdictional separation of church and state binds both

church and state to their respective jurisdictions and spheres

of authority.

B.   Courts   Have    No   Jurisdiction    Over   This   Ecclesiastical

Dispute


                                   14
1130539

    The question presented is which faction of members of the

original Burns Assembly of God Church has the right to control

the use and disposition of the property -- the Etheridge

faction or the excommunicated faction. In this intra-church

ecclesiastical dispute, the Court must look to the decisions

made within the structure of church government.

    "Where    factional    divisions   occur    in    an
    ecclesiastical body, the rule of the civil courts is
    that 'the title to church property ... is in that
    part of [the ecclesiastical body] which is acting in
    harmony with its own law, and the ecclesiastical
    laws, and usages, customs, and principles which are
    accepted among them before the dispute began, are
    the standards for determining which party is
    right.'"•

Gewin v. Mount Pilgrim Baptist Church, 166 Ala. 345, 349, 51

So. 947, 948 (1909) (quoting Reorganized Church of Jesus

Christ of Latter-Day Saints v. Church of Christ, 60 F. 937,

953 (1894)) (emphasis added).

    The Assemblies of God is a hierarchical church with a

presbyterian   form   of   government,   with   "authority   in   an

ascending order of bodies, each of which is composed by

representatives of the laity and the clergy." Calvin Massey,

Church Schisms, Church Property, and Civil Authority, 84 St.

John's L. Rev. 23, 26 n.5 (2010). The Assemblies of God's form


                                15
1130539

of   church    government     blends      elements    of    congregational

autonomy      with   a   cooperative       system     of    oversight     and

accountability       provided   by     ascending      levels    of    church

councils. See Atkins v. Walker, 284 N.C. 306, 314, 200 S.E.2d

641, 646 (1973) ("A denomination may be, in its government,

congregational in part and connectional in part."); Western

Conference of Original Free Will Baptists of N.C. v. Creech,

256 N.C. 128, 140, 123 S.E.2d 619, 627 (1962) ("A church may

be   congregational      in   some   respects       and    connectional    in

others."); 66 Am. Jur. 2d Religious Societies § 2 (2014)

(same).

     The Assemblies of God has the unquestioned right of

ecclesiastical       government      of    all   the       members,     local

assemblies, and officers within its fellowship.

     "'The right to organize voluntary associations to
     assist in the expression and dissemination of any
     religious doctrine, and to create tribunals for the
     decision of controverted questions of faith within
     the   association,   and   for  the   ecclesiastical
     government   of    all   the   individual   members,
     congregations, and officers within the general
     association, is unquestioned. ... It is of the
     essence of these religious unions, and of their
     right to establish tribunals for the decisions of
     questions arising among themselves, that those
     decisions should be binding in all cases of
     ecclesiastical cognizance, subject only to such
     appeal as the organism itself provides for.'"

                                     16
1130539

Hundley v. Collins, 131 Ala. 234, 245, 32 So. 575, 579 (1902)

(quoting Watson v. Jones, 80 U.S. (13 Wall.) 679, 729 (1871)).

The Court has stated that "[t]he courts will not interfere

with mere factional differences arising in ecclesiastical

bodies, or in disparate interpretations of doctrine. Such

matters are left for settlement to the societies." Davis v.

Ross, 255 Ala. 668, 671, 53 So. 2d 544, 546 (1951).

    "[T]he civil courts will not interfere in case of a
    division in a religious society unless property
    rights are affected, nor even then if the basis of
    the   schism  is   due   merely  to   a   disparate
    interpretation of doctrine. Such matters must be
    settled by the society itself."

Mount Olive Primitive Baptist Church v. Patrick, 252 Ala. 672,

674, 42 So. 2d 617, 618 (1949) (emphasis added). The basis of

the present dispute is a disparate interpretation of church

doctrine, constitutions, and bylaws. In such cases, the United

States Supreme Court has explained:

    "There are occasions when civil courts must draw
    lines between the responsibilities of church and
    state for the disposition or use of property. Even
    in those cases when the property right follows as an
    incident from decisions of the church custom or law
    on ecclesiastical issues, the church rule controls."




                             17
1130539

Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church

in N. America, 344 U.S. 94, 120-21 (1952) (footnote omitted;

emphasis added).

      The District Council classifies mature local churches

within the Assemblies of God as "[s]overeign [a]ssemblies"

with "their full share of responsibility for the maintenance

of Scriptural order." Art. XI, § 2(b), District Council Const.

The District Council also recommends that local church boards

"be authorized ... to remove from the list of active [church]

members all names of those ... who may have fallen into sin

and   whose    lives   may   have       become   inconsistent     with       the

standards     and   teachings      of   the   assembly."   Art.    I,    §    6,

Suggested Constitution and By-Laws for Local Assemblies. At

the same time, such assemblies are "organized under the

supervision of the district officiary and shall be amenable to

the district in all matters which affect the peace and harmony

of the fellowship." Id. (emphasis added). Burns Assembly of

God Church was required to "meet the standards approved by the

General   Council      and   the    District     Council   in     regard      to

membership, doctrine, order, methods, conduct, and all other




                                        18
1130539

matters affecting the harmony of the fellowship as a whole."

Art XI, § 1, District Council Const. (emphasis added).

    Accordingly, a ruling by this Court or the trial court

for either the Etheridge faction or the excommunicated faction

constitutes a usurpation of the District Council's and the

General   Council's    ecclesiastical   jurisdiction    over   Burns

Assembly of God Church. If, on the one hand, this Court

affirms the judgment of the trial court and rules for the

District Council and the excommunicated faction (as the Court

has done), this Court must necessarily conclude that the

District Council has the authority under its ecclesiastical

constitution to intervene in the local church dispute on

behalf    of   the   excommunicated   faction,   thus   effectively

controlling the church property. The United States Supreme

Court has explained:

    "'[C]ivil courts do not inquire whether the relevant
    (hierarchical) church governing body has power under
    religious law (to decide such disputes).... Such a
    determination ... frequently necessitates the
    interpretation of ambiguous religious law and usage.
    To permit civil courts to probe deeply enough into
    the allocation of power within a hierarchical church
    so as to decide ... religious law (governing church
    polity) ... would violate the First Amendment in
    much the same manner as civil determination of
    religious doctrine.'"


                                 19
1130539

Serbian E. Orthodox Diocese for United States of America &

Canada v. Milivojevich, 426 U.S. 696, 708-09 (1976) (quoting

Maryland & Virginia Eldership of the Churches of God v. Church

of God at Sharpsburg, Inc., 396 U.S. 367, 369 (1970) (Brennan,

J., concurring)). Likewise, this Court should have declined in

this    case    to   explore   the        allocation     of    ecclesiastical

authority between local Assemblies of God churches and the

District Council, as doing so violates the jurisdictional

separation of church and state.

       If, on the other hand, the Court were to reverse the

trial court's judgment, the Court would essentially declare

that the members of the Etheridge faction are true church

members and that the members of the excommunicated faction are

not, even though the District Council recognizes them as such.

This    would   constitute     a   rejection     of     the    ecclesiastical

decision       of    the   District        Council,     contrary       to   the

jurisdictional       separation      of     church     and    state.   Because

Alabama's courts have no jurisdiction "to revise ordinary acts

of church discipline or pass upon controverted rights of

membership," Gewin, 166 Ala. at 349, 51 So. at 948, this Court




                                      20
1130539

cannot question the District Council's decision to intervene

in the dispute on behalf of the excommunicated faction.

      In addition, Etheridge is both chairman of the board of

directors and corporate president of Burns Church, Inc., and

thus the principal officer of the alleged property-holding

corporation. In early June 2008, the General Council revoked

Etheridge's ministerial license with the Assemblies of God.

However, Etheridge continued to pastor Burns Assembly of God,

Inc.,   after he had been dismissed from the Assemblies of God.

Etheridge presided over the business meeting in which the

members    of   Burns   Assembly   of   God,   Inc.,   voted   to    sever

affiliation with the Assemblies of God. If the Court should

conclude that Burns Church, Inc., owns the church property,

the Court would thereby countenance the proceedings Etheridge

led   at   Burns   Assembly   of   God,   Inc.,   after   he   had    been

dismissed from the Assemblies of God. In effect, the Court

would be overruling Etheridge's dismissal from the Assemblies

of God, which was affirmed by the General Council, the highest

ecclesiastical body in the Assemblies of God. Similar to

Milivojevich, supra, the resolution of the dispute between the

Etheridge faction and the excommunicated faction affects not


                                   21
1130539

only     church   property,   but   also   the   structure    and

administration of the Assemblies of God.

            "Resolution of the religious disputes at issue
       here affects the control of church property in
       addition to the structure and administration of the
       American-Canadian Diocese. This is because the
       Diocesan Bishop controls respondent Monastery of St.
       Sava and is the principal officer of respondent
       property-holding corporations. Resolution of the
       religious dispute over Dionisije'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. Even when rival church factions
       seek resolution of a church property dispute in the
       civil courts there is substantial danger that the
       State will become entangled in essentially religious
       controversies or intervene on behalf of groups
       espousing particular doctrinal beliefs."

Milivojevich, 426 U.S. at 709 (emphasis added); see also Ex

parte Central Alabama Conference, 860 So. 2d 865, 867 (Ala.

2003) ("[T]he First Amendment prohibits a court's resolving

property disputes on the basis of religious practice or

doctrine.").

                         IV. Conclusion

       The mere fact that this intra-church dispute affects

property rights does not give the Court jurisdiction over this

action. This Court lacks jurisdiction to adjudicate the rights

of the parties as to the church property because this church

                               22
1130539

schism is based upon disparate interpretations of church

governing documents and doctrine and conflicting claims of

church membership. These matters must be settled by the

District Council and the General Council, not by the courts.

I believe that this Court should have dismissed this appeal

for lack of subject-matter jurisdiction. Therefore, I dissent.




                             23
