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 O F ALA BAMA

OCTOB ER TE RM, 2 014-2 015

_____ _____ _____ _____ 11305 39

_____ _____ _____ _____ Burns Chur ch, I nc., and S tephe n Eth eridg e

v. Alabama Di stric t Cou ncil of th e Ass embli es ofGod, Inc. , and

Burns Assembly of Go d Chu rch Appea l from Gen eva C ircui t Cou rt

(CV-1 3-900 82)

PER C URIAM . AFFIRMED. NO OP INION . See R ule 5 3(a)( 1) an d (a) (2)(F ), Al a. R. App. P. Stuar t, Bolin , Parke r, Murdo ck, Shaw, Main, Wise, and Bryan , JJ. , con cur.11305 39

Moore , C.J ., di ssent s.

211305 39

MOORE , Chi ef Ju stice (dis senti ng). I r e s pectf ully disse nt from the Court 's decis ion to affir m the summ ary j udgme nt in favo r of the A labam a Dis trict Counc il of the Assemblies o f G o d , Inc. ("the Distr ict Counc il"), a n d Burns Assembly of God Churc h in their actio n again st St ephen Ethe ridge and Burns Chur ch, I nc. T hough this eccle siast ical dispu te in ciden tallyaffe cts p roper ty ri ghts, the court s of the State of Alaba ma lack juris di ction to i n t erven e in this dispu te, which is based upon dispa rat e inter preta tions of churc h gover ning docum ents and doctr ine and confl ictin g claim s of churc h membe rship . I beli eve that the Court shou ld ha ve di smiss ed th is ap peal for l ack o f sub jectmatte r jur isdic tion. I. Th e Par ties T h e Distr ict Counc il, an appel lee, is locat ed i n Montg omery and is the gover ning body of all Assemblies of God churc hes in Alaba ma. The Distr ict Counc il incor porat ed in 1942

as a nonpr ofit reli gious corpo ratio n under Alaba ma law. The Distr ict C o u n c il acts under the Gener al Counc il of the Assemblies of God, which is locat ed in Sprin gfiel d, Misso uri, and is the gover ning body of all Assemblies of God churc hes in

311305 39

the U nitedStat es (" the G enera l Cou ncil" ). Bu rns A ssemb ly of God Churc h, the other ap p ellee , is locat ed in Genev a Count y and is an uninc orpor ated relig ious assoc iatio n that acts under the autho rity of the Distr ict Counc il and the Gener al Counc il. Burns Churc h , Inc., an appel lant, is also locat ed in Genev a Count y. It was incor porat ed in 2006 as a nonp rofit reli gious corp o ratio n under Alaba ma law. Steph en Ether idge, the other appel lant, is t he pa stor of Bu rns C hurch , Inc .

II. F acts and P roced ural Histo ry Burns Assembly of God Churc h has maint ained a house of

wors h i p in Genev a Count y for close to 100 years . For many years , Bur ns As sembl y of God C hurch has been affil iatedwith both the Distr ict Counc il and the Gener al Counc il. In Octob er 2002, the membe rs of Burns Assembly of G o d C h u rch calle d Ether idge to be their pasto r. In that capac ity, Ether idge also

serve d as chair man o f the boar d of direc tors of th e chu rch. At some point , E t herid ge and the direc tors voted to

excommunic ate a num ber of churc h membe rs whom Ether idge and the d irect ors b eliev ed to be c onten tious and disru ptive , who

were not tithi ng as requi red by t h e s t andar ds for churc h membe rship in t he by laws of Bu rns A ssemb ly of God Churc h, or

411305 39

who were no longe r activ ely atten ding worsh ip servi ces, which is a cause for disci pline u n d er the bylaw s. The cours e of actio n chose n by Ether idge and the direc tors cause d disha rmony

a n d conte ntion betwe en, on the one side, Ether idge, th e direc tors, and the remai ning membe rs (here inaft er refer red to colle ctive ly as "the Ether idge facti on") and, on the o ther side, the excommunic ated membe rs ("the excommunic ated facti on"). The excommunic ated facti on did not a ppeal the decis ion on e x c ommun icati on, as allow ed by the bylaw s. Howev er, the excommunic ated facti on did reque st a heari ng with the Distr ict Counc il, whose leade rs met with appro ximat ely 40 peopl e who expre ssed their c o n c erns about Ether idge' s leade rship . 1 The excomm u n icate d facti on conti nued to assemble and to meet for weekl y worsh ip at anot h er locat ion, also under the

name Burns Assembly of God Churc h. The excommunic ated facti on

In 20 0 5 , Joe Cotto n, one of the excommunic ated membe rs 1 and a forme r direc tor, sued Ether idge and Burns Assembl y of God Churc h, askin g the trial court for a judgm ent dec l aring that his excommunic ation from me m bersh ip in the churc h was impro per. Ether idge and Burns Assembly of God Churc h moved to dismi ss Co tton' s act ion o n the grou nd th at ma tters of c hurch membe rship are not t o be decid ed bycivi l cou rts. On Ja nuary 16, 2 008, the t rial court ente red a summ ary j udgme nt ag ainst Cotto n. 511305 39

assoc iated itsel f with the Distr ict Counc il, which instr ucted Ether idge and the direc tors to seek to resto re the

excommunic ated facti on to fell owshi p pur suant to t he Ge neral Counc il's bylaw s a n d t he bylaw s of Burns Assembly of God Churc h. The D istri ct Counc il attempted, witho ut succe ss, to media te the dispu te betwe en the Ether idge f actio n and the

excommunic ated facti on. The Distr ict Counc il recog nized the excommunic ated f actio n as being the only true membe rs of Burns Assembl y o f G o d C hurch . The excommunic ated facti on opera ted under the Distr ict Counc il's autho rity, adher ed to Assemblies o f G od doctr ines, and retai ned the Distr ict Counc il's sugge sted const ituti on and bylaw s. The excommunic ated facti on appoi nted

a board of trust ees and offic ers and, in time, chose a pasto r. The Ether idge facti on incor porat ed as a nonpr ofit corpo ratio n and t ook t he co rpora te na me of Burn s Ass emblyof G od, I nc. Ether idge serve d as presi dent of Burns Assemb ly of God, Inc. He was also servi ng as pasto r of the churc h opera ting as Burns Ass e m b l y of God, Inc., when the Distr ict Counc il

annou nced its decis ion to remov e him as pasto r, to revok e his minis teria l crede ntial s, to disso lve the board of trust ees of

611305 39

Burns Assembly of God, Inc., a n d to place Burns Assembly of God, Inc., under the supe r v ision of the Distr ict Counc il. Ether idge chall enged his dismi ssal under a provi sion of the b y l a ws of the Gener al Counc il, and the Distr ict Counc i l subse quent ly re scind ed it s act ions. After furth e r attempts at recon cilia tion faile d, the Dotha n Secti onal Commi ttee of the D i s trict Counc il sent Ether idge and B urns Assembly o f God , Inc ., a lette r in which it recommende d that the churc h "come under the super visio n of the Dotha n Secti onal Commi ttee. " Other wise, the lette r warne d, the Commi ttee would "reco mmend to the Distr ict Presb ytery the withd rawal of endor semen t of the pasto r's crede ntial s, and of the c hurch 's af filia tion with the A ssemb lies of Go d." Sever al days later , the Distr ict Counc il voted to revok e Ether idge' s min ister ial l icens e on the g round s of a "ge neral ineff icien cy in minis try, a recor d of assembly break ing inste ad of makin g, a conte ntiou s, non-c ooper ative spiri t, and arbit rary rejec tion of distr ict couns el." The Distr ict Counc il forwa rded its decis ion on Ether idge' s dismi ssal to the Gener al Counc il's crede ntial s commi ttee for appr o v al and notif ied Ether idge of it s dec ision rega rding his dismi ssal.

711305 39

Whi l e Ether idge' s dismi ssal was pendi ng befor e the Gener al Co uncil , the memb ers o f Bur ns As sembl y of God, Inc., voted unani mousl y to amend the porti ons of t h e ir churc h const ituti on go verni ng af filia tion with the D istri ct Co uncil and t he Ge neral Coun cil a nd th e dis posit ion o f pro pertyupon disaf filia tion from the Assemblies of God. A repre senta tive of the Distr ict Counc il testi fied that Burns Assembly of God, Inc., had the autho rity to adopt those amendments and that the Distr ict C ounci l acc eptedthe amendments . 2 The follo wing mo n t h , the Gener al Counc il concu rred with the Distr ict Counc il's decis ion and revok ed Ether idge' s minis teria l licen se. Burns Assembly of God, Inc., then held a speci al busin ess meeti ng in which Burns Assembly of God, Inc.,

sever ed its affil iatio n with the Assemblies of God. Ether idge

serve d as chair man o f thi s bus iness meet ing, contr ary t o the Distr ict Counc il's const ituti on and minut es. Distr ict Counc il 3 repre senta tives were not prese nt at this busin ess mee t i n g, altho ugh the Gener al Counc il's const ituti on requi red t h e ir

There is no indic ation in the recor d that t h e G e neral 2 Counc il ac cepte d tho se am endme nts. "No minis ter dismi ssed by the Assemblies o f G o d may be 3 allow ed to pasto r or have minis try in an Assemblies of God churc h." D istri ct Co uncil Minu tes § 3(b) . 811305 39

atten dance . The Di s t r i ct Counc il was notif ied of the 4 d i s affil iatio n, and the corpo rate name of the churc h wa s chang ed to Burn s Chu rch, Inc. Ether idge did not appea l the Gener al Counc il's revoc ation of his minis teria l licen se, as allow ed by the G e n e r a l Counc il's const ituti on. Howev er, Ether idge conti nued to serve

as a pasto r, and Burns Churc h, Inc., conti nue d t o use the p roper ty on which the origi nal Burns Assembly of God Churc h had o perat ed. The Distr ict Counc il and the excommunic ated facti on sued Ether idge, seeki ng a judgm ent decla ring tha t t h e Burns Assembly of God Churc h forme d by the excommunic ated facti on is a val id co ngreg ation unde r the laws of A labam a anddecl aring it to be t he ri ghtfu l own er of the churc h pro perty . On April 12, 2 012, the t rial court issu ed an orde r, st ating :

"Burn s Churc h, Inc., [and] its trust ee s are indis pensa ble and neces sary parti es to this actio n. Eithe r Burns Ch urch, Inc.[ ,] or the Burns Assembly

"In the e v e n t the termi natio n of affil iatio n with the 4 Gener al Counc il of the A s sembl ies of God is under consi derat ion b y an affil iatedasse mbly, the pasto r or board shal l i n v ite the distr ict offic ers to parti cipat e in a speci ally- calle d busin ess meeti ng for the expre ssed purpo se of givin g the distr ict offic ers the oppor tunit y to prese nt the case for conti nued Gener al Counc il affil iat ion." Art. VI, § 3(D), Gene ral C ounci l Con st. 911305 39

of God, Inc.[ ,] has title to the prope rty in q u e s tion, right of posse ssion of the prope rty i n quest ion[, ] and [the] right to manag e the affai rs of the c hurch and hire or fi re pa stor and s taff. [ ] 5 ".... "THER EFORE , IT IS OR DERED AND ADJUD GED A S FOL LOWS: "1. That the matte r for Decla rator y Judgm ent is dismi ssed. "2. That [the] p a rties are entit led to a jury trial on d isput ed is sue [ sic] of fa ct. "3. I f there are no issue s as to any mater ial fact, ... Summa ry Ju dgmen t maylie. " (Capi taliz ation in origi nal.) Burns Churc h, Inc., w a s later added as a defen dant. T h e Distr ict Counc il and the

excommunic ated facti on fi led a n ame nded compl aint asser ting, among other c l aims, claim s of tresp ass and conve rsion and seeki ng an evic tion. The trial court set the case for a jury trial to begin on May 13, 2013. After a pretr ial confe rence , the trial c o u rt issue d an order stati ng that "[t]h e parti es agree d that the

The trial court 's summa ry-ju dgmen t order of November 12, 5 2013, clari fies that the April 12 order "refe rred to ' Burns Assembly of God, Inc., ' which shoul d have been 'Burn s Assembly of God,' the plain tiff. " The trial court indic ate d that its April 12 order did not deter mine "who owned the prope rty, but that eithe r the Plain tiff or the Defen dant owned the prope rty[, ] which would b e deter mined at trial or summa ry judgm ent." 1011305 39

most criti cal i ssue at th is ti me is a le gal i ssue conce rning

owner ship of the prope rt y t h at would be best decid ed by the Court " and that "all agree d that the jury trial sched uled for May 1 3, 20 13 sh ould be co ntinu ed." The Distr ict Counc il and the excommunic ated facti on then filed a separ ate quiet -titl e actio n again s t E t herid ge and Burns Chur ch, I nc., and m oved for a summ ary j udgme nt in that actio n. The trial court conso lidat ed the decla rator y-jud gment actio n and the quiet -titl e actio n into an actio n ident ified by

a singl e case nu m b e r . Burns Churc h, Inc., and Ether idge oppos ed the plain tiffs ' motio n for a summa ry judgm ent, and the trial co u r t held a heari ng on the motio n to deter mine the right ful o wner of th e chu rch p roper ty. Burns Chu rch, Inc., and Ether idge argue d that the trial court 's April 12, 201 2, order was a final judgm ent that deter mined that Burns Churc h, Inc., was the true owner of the prope rty. Burns Chur ch, I nc., and E theri dge a lso a rguedthat Burns Churc h, Inc., owned the pr o p e r t y on the groun d that Burns Churc h, Inc., is the prope r succe ssor to Burns Assembly of God, Inc. The Distr ict Counc i l and the excommunic ated

1111305 39

facti on argue d that a s a r esult of prior conve yance s, the Distr ict C ounci l hel d tit le to the churc h pro perty . On November 12, 2013, the trial court ente r e d a summa ry judgm ent i n fav or of the Distr ict C ounci l andBurn s Ass embly of God Churc h. Burns Ch u r c h , I nc., and Ether idge filed a postj udgme nt mo tion to al ter, amend , or vacat e the judg ment, which the trial court denie d after a heari ng. T h i s appea l follo wed. III. Discu ssion A. Ju risdi ction al Se parat ion o f Chu rch a nd St ate Befor e consi derin g the merit s of this appea l, this Court

s h o uld have deter mined wheth er it had subje ct-ma tte r juris dicti on over this eccle siast ical dispu te. This Court has recog nizedthat it i s our judi cial duty "to c onsid er la ck of subje ct matte r juris dicti on ex mero motu. " Ex parte Smith , 438 S o . 2d 766, 768 (Ala. 1983) . "As is the case with all churc hes, the court s will not assum e juris dicti on, in fact [have ] none, to resol ve dispu tes regar ding their spiri tual or eccle siast ical affai rs." Abyss inia Missi onaryBapt ist C hurch

v . N ixon, 340 So. 2d 746, 748 (Ala. 1976) . The court s l a c k

1211305 39

juris dicti on over eccle siast ical dispu tes becau s e of the juris dicti onal separ ation of c hurch and state .

" I n accor dance with the princ iples of ou r insti tutio ns and the organ ic law [Art. I, § 3, Ala. Const . 1901 (reli gious freed om)], the court s refra in from inter ferin g w h e n the offic e or funct ions are purel y eccle siast ical or spiri tual, disco nnect ed from any fixed emolu ments , salar y, or other tempo ralit ies." Stat e e x rel. McNei ll v. Bibb St. Churc h, 84 Ala. 23, 33, 4 So. 40, 40 (1888 ). The juris dicti onal separ atio n o f the insti tutio n of the churc h from the insti tutio n of the state is

a f u n damen tal part of the Engli sh commo n law; it preda tes M agna Carta and remai ns in force in Alaba ma. See § 1

- 3

- 1 , 6 Ala. Code 1975 ("The commo n law of Engla nd, s o far as it is not incon siste nt with the Const ituti on, laws and insti tutio ns of this state , s h a ll, toget her with such insti tutio ns and laws, be t he ru le of deci sions , andshal l con tinue in f orce, excep t as from time to ti me it may be al teredor r epeal ed by the L egisl ature .").

See Yates v. El Bethe l Primi tive Bapti st Churc h, 847 So. 6 2d 331, 352 (Ala. 2 0 0 2) (Moor e, C.J., disse nting ) ("[T] he princ iple of the insti tutio nal separ ation of churc h and state becam e fir mly e stabl ishedin t he co mmon- law j urisp ruden ce of Engla nd an d the reaft er, a s a r esult , in the j urisp ruden ce of Ameri ca."( surve ying histo ry of Magn a Car ta)). 1311305 39

Under § 1-3-1 , the juris dicti onal separ ation o f c h urch and state is also "an in s t i t ution " of Alaba ma law. The word insti tutio n, as used in § 1-3-1 , means "[a]n eleme ntary rule, princ iple, or pract ice." Black 's Law Dicti onary 918 (10th ed. 2014) . Noah Webst er defin ed "inst i t u t i on" as an "[e]s tabli shmen t; that which is appoi nted , presc ribed , or found ed by autho rity and inten ded to be perma nent. ... We apply the word insti tutio n to laws, rites , and cerem onies , which are

e n joine d by autho rity as perma nent rules of condu ct o r o f gover nment ." Noah Webst er, Ameri can Dicti onary of the Engli sh Langu age " Insti tutio n" (1 828). Thus, while the juris dicti onal separ atio n o f churc h and state is part of our commo n law, it is also an "inst ituti on," i.e., an e stabl ished , ele menta ry, a nd pe rmane nt ru le of law. The Court shoul d appl y t h i s rule of law in this and all

e ccles iasti cal dispu tes, with the under stand ing that th e juris di ction al separ ation of churc h and state binds both churc h and state to their respe ctive juris dicti ons and spher es of au thori ty. B. Court s Have No Juris dic t i on Over This Eccle siast ical Dispu te

1411305 39

The quest ion prese nted is which facti on of membe rs of the origi nal Burns Assembly of God Churc h has the right to contr ol the use a n d d i sposi tion of the prope rty -- the Ether idge facti on or the e x commu nicat ed facti on. In this intra -chur ch eccle siast ical dispu te, t he Co urt m ust l ook t o the deci sions made withi n the stru cture of c hurch gove rnmen t. "Wher e facti onal divis ions occur in an eccle siast ical body, the rule of the civil court s is t h a t 'the title to churc h prope rty ... is in t h a t part of [the eccle siast ical body] which is actin g in harmo ny wit h i t s own law, and the eccle siast ical laws, and usage s, custo ms, and princ iples which are accep ted among them b e fore the dispu te began , are the stand ards for deter minin g which party is right .'"• Gewin v. M ount Pilgr im Ba ptist Chur ch, 1 66 Al a. 34 5, 34 9, 51 So. 947, 948 (1909 ) (quot ing Re o r g anize d Churc h of Jesus Chris t of Latte r-Day Saint s v. Chur c h o f Chris t, 60 F. 937, 953 ( 1894) ) (emphasi s add ed). T h e Assemblies of God is a hiera rchic al churc h with a presb yteri an form of gover nment , w i th "auth ority in an

as cendi ng order of bodie s, each of which is compo sed by repre senta tives of t he la ity a nd th e cle rgy." Calv in Ma ssey, Churc h Sch isms, Chur ch Pr opert y, an d Civ il Au thori ty, 8 4 St. John' s L. Rev. 23, 26 n.5 (2010 ). The Assemblies of God's form

1511305 39

of churc h gover nment blend s eleme nts of congr egati onal

a u t o nomy with a coope rativ e syste m of overs ight and

accou n t a b i lity provi ded by ascen ding level s of churc h

counc ils. See Atkin s v. Walke r, 284 N.C. 306, 314, 200 S.E.2 d 641, 646 (19 7 3) ("A denom inati on may be, in its gover nment , congr ega t ional in part and conne ction al in part. "); Weste rn Confe rence of O rigin al Fr ee Wi ll Ba ptist s of N.C. v. Cr eech, 256 N .C. 1 28, 1 40, 1 23 S. E.2d 619, 627 ( 1962) ("A churc h may be congr ega t i o n al in some respe cts and conne ction al in other s. " ) ; 6 6 Am. Jur. 2d Relig ious Socie ties § 2 (2014 ) (same ). The Assemblies of God has t h e unque stion ed right of

ecc l e siast ical gover nment of all the membe rs, local

assemblies , andoffi cers withi n its fell owshi p. "'The right to organ ize volun tary assoc iatio ns to assis t in the expre ssi o n and disse minat ion of any relig ious doctr ine, and to creat e tribu nals for the d ecisi on of contr overt ed quest ions of faith withi n the assoc iatio n, and for the eccle siast ical gover nment of all the indiv idual membe rs, congr egati ons, and offic ers withi n the gener al assoc iatio n, is unque s tione d. ... It is of the essen ce of these relig ious union s, and of their right to estab lish t r ibuna ls for the decis ions of quest ions arisi ng among thems elves , that those decis i ons shoul d be bindi ng in all cases of eccle siast ical cogni zance , subje ct only to such appea l as the o rgani sm it self provi des f or.'"

1611305 39

Hundl ey v. Colli ns, 131 Ala. 234, 245, 32 So. 575, 579 (1902 ) (quot ing Watso n v. Jones , 80 U.S. (13 Wall. ) 679, 729 (1871 )). The Court has state d that "[t]h e court s will not inte r f e re with mere facti onal diffe rence s a r i sing in eccle siast ical bodie s, or in dispa rate inter preta tio n s o f doctr ine. Such matte rs a re left for settl ement to the socie ties. " Davis v. Ross, 255 Ala. 668, 671, 53 So . 2d 544, 546 ( 1951) . "[T]h e civil courts will not inter fere in case of a divis ion in a reli g i o u s socie ty unles s prope rty right s ar e a f fecte d, nor even then if the basis of the schis m is due merel y to a d i spara te inter preta tion of doctr ine. Such matte rs must be settl ed bythe socie ty it self. " Mount Olive Primi tive Bapti st Churc h v. Patri ck, 252 Ala. 672, 674, 42 So. 2d 617, 618 (1949 ) (emph asis added ). The basis of the prese nt dispu te is a dispa rate in terpr etati on of churc h doctr ine, const ituti ons, and bylaw s. In such cases , the Unite d State s Sup reme Court has expla ined: "Ther e are o c c a sions when civil court s must draw lines betwe en the respo nsibi litie s of churc h and state for the dispo sitio n or us e of prope rty. Even in those cases when the prope rty right follo ws as an incid ent from decis ions of the churc h custom or law on eccle siast ical issue s, the churc h rule contr ols."

1711305 39

Kedro ff v. St. Nicho las C athed ral o f Rus sian Ortho dox C hurch in N. Amer ica, 344 U .S. 9 4, 12 0-21 (1952 ) (fo otnot e omi tted; empha sis a dded) . The Distr ict Counc il class i f i e s matur e local churc hes withi n the Assemblies of God as "[s]o verei gn [a]ss emb l i e s" with "thei r ful l sha re of resp onsib ilityfor the m ainte nance of Scrip tural order ." Art. XI, § 2(b), Distr ict Counc il Const . The Distr ict Counc il also recommends that local churc h board s "be autho rized ... to remov e from the list of activ e [chur ch]

m e mbers all names of those ... who may have falle n i n t o s i n and who s e l i v es may have becom e incon siste nt with the stand a r ds and teach ings of the assembly." Art. I, § 6, Sugge sted Const ituti on and By-La ws for L ocal Assemblies . At the same t i m e , such assemblies are "orga nized under the super visio n of the distr ict offic iary and shall be amena ble to the distr ict in all matte rs which affec t the peace and harmo ny of the fello wship ." Id. (emph asis added ). Burns Assembly of God Churc h was requi red to "meet the stand ards appro ved by the Gener al C o u n c i l and the Distr ict Counc il in regar d to membe rship , doc trine , ord er, m ethod s, co nduct , andall other

1811305 39

matte rs af fecti ng th e har mony of th e fel lowsh ip as a wh ole." Art X I, § 1, Di stric t Cou ncil Const . (emphasi s add ed). Accor dingl y, a rulin g by this Court or the trial court for eithe r the Ether idge facti on or the excommunic ated facti on const itute s a usurp ation of the Distr ict Counc il's an d the Gener al Counc il's eccle siast ical juris dicti on over Burns Assembly of God Churc h. If, on the o n e hand, this Court affir ms the judgm ent of the trial court and rules f o r the Distr ict Counc il and the excommunic ated facti on (as the Court has don e ) , this Court must neces saril y concl ude that the Distr ict Counc il has the autho rity under its ec c lesia stica l const ituti on to inter ve n e in the local churc h dispu te on behal f of the excommunic ated facti on, thus effec tivel y contr ollin g the churc h prope rty. The Unite d State s Su p r e me Court has expla ined: "'[C] ivil court s do not inqui re wheth er the relev ant (hier archi cal) churc h gover ning body has power under relig ious law ( to decid e such dispu tes). ... Such a deter m i n ation ... frequ ently neces sitat es the inter preta tion of ambig uous relig ious law and usage . To permi t civ i l court s to probe deepl y enoug h into the alloc ation of power withi n a hiera rchic al churc h so as to decid e ... relig ious law (gove rning churc h polit y) ... would v i o l a te the First Amendment in much the same manne r as c i vil deter minat ion of relig ious doctr ine.' "

1911305 39

Serbi an E. Ortho dox Dioce se for Unite d State s of Amer i c a & Canad a v. Miliv ojevi ch, 4 26 U. S. 69 6, 70 8-09 (1976 ) (qu oting Maryl and & Virgi nia Elder ship of the Churc hes of God v. Churc h of God at Sharp sburg , Inc., 396 U.S. 367, 369 (1970 ) (Bren nan, J., concu rring )). Likew ise, this Court shoul d have decli ned in this case to explo re the alloc ation of eccle siast ical autho rity betwe en local Assemblies of God churc hes an d the Distr ict Counc il, as doing so viola tes the juris d i c t i o nal separ ation of c hurch and state . If, on the other hand, the Court were to rever se the trial court 's judgm ent, the Court would essen ti a lly decla re that the m e m b ers of the Ether idge facti on are true churc h membe rs and that the membe rs of the excommunic ated facti on are not, even thoug h the Distr ict Counc il recog nizes them as such. This would const itute a rejec tion of the eccle siast ical decis ion of the Distr ict Counc il, contr ary to the juris dicti onal separ ation of churc h and state . Becau se Alaba ma's court s have no juris dicti on "to revis e ordin ary acts of churc h disci pline or p a ss upon contr overt ed right s of membe rship ," Gewin , 166 Ala. at 349, 51 So. at 948, this Court

2011305 39

canno t que stion the Distr ict C ounci l's d ecisi on to inte rvene in th e dis pute on be half of th e exc ommun icate d fac tion. In addit ion, Ether idge is both chair man of t h e b oard of direc tors and c orpor ate p resid ent o f Bur ns Ch urch, Inc. , and thus the princ ipal offic er of the alleg ed prope rty-h o l d i ng corpo ratio n. In earl y Jun e 200 8, th e Gen eral Counc il re voked Ethe r idge' s minis teria l licen se with the Assemblies of God. Howev er, Ether idge conti nued to pasto r Burns Assembly of God, Inc., after he had been dismi ssed from the Assemblies of God. E t herid ge presi ded over the busin ess meeti ng in which the membe rs of Burns Assembly of God, Inc., vot e d to sever affil iatio n with the Assemblies of God. If t he Court shoul d concl ude that Burns Churc h, Inc., owns the churc h prope rty, the Court would there by count enanc e the proce eding s Ether idge led at Burns Assembly of God, Inc. , a f ter he had been dismi ssed from the Assemblies of God. In effec t, the C o u rt would be overr uling Ether idge' s dismi ssal from the Assemblies of God, which was affir med by the Gener al Counc il, the highe st eccle siast ical body in t h e Assemblies of God. Simil ar to Miliv ojevi ch, supra , the resol ution of the dispu te betwe en the Ether idge facti on an d the exco mmuni catedfact ion a ffect s not

2111305 39

only churc h pro p e rty, but also the struc ture and admin istra tion of th e Ass embli es of God.

"Reso lutio n of the relig ious dispu t e s at issue here affec ts the contr ol of churc h pr o perty in addit ion to the struc ture and admin istra tion of the Ameri can-C anadi an Dioce se. This is becau se the Dioce san Bisho p contr ols respo ndent Monas tery of St. Sava and is the princ ipal offic er of respo ndent prope rty-h oldin g corpo ratio ns. Resol ution of the relig ious dispu te over Dioni sije' s defro ckm e nt there fore deter mines contr ol of the prope rty. Thus, this case essen tiall y invol ves not a churc h prope rty dispu te, but a relig ious di spute the resol ution of which under our cases is for eccles iasti cal and not civil tribu nals. Even when rival churc h facti ons seek resol ution of a churc h prope rty disput e in the civil court s there i s subst antia l dange r that the State will becom e entan gled in essen tiall y relig ious contr overs ies or inter vene on b e half of group s espou sing parti cular doct rinal beli efs." Miliv ojevi ch, 426 U.S. at 709 (emph asis a d ded); see also Ex parte Centr al Alaba ma Confe rence , 860 So. 2d 865, 867 (Ala. 2003) ("[T] he First Amendment pro h ibits a court 's resol ving prope rty dispu tes on the ba s i s of relig ious pract ice or doctr ine." ). IV. C onclu sion T h e mere fact that this intra -chur ch dispu te affec t s prope rty right s does not give the Court juris dicti on over this actio n. This Court lacks juris dicti on to adjud icate the right s of th e par ties as to the churc h pro pertybeca use t his c hurch

2211305 39

schis m is based upon dispa rate inter preta tions of churc h gover ning docum ents and doctr ine and confl ictin g clai m s of churc h membe rship . These matte rs must be s e t t l ed by the Distr ict C ounci l andthe Gener al Co uncil , not by t he co urts. I belie ve th a t this Court shoul d have dismi ssed this appea l for lack of subje ct-ma tter juris dicti on. There fore, I disse nt.

23