Newton Presbyterian Church, et al. v. Smith, et al. (Lawyers Weekly No. 09-015-18)

_ ______ ______ ______ _ 1784CV00804-BLS2
PRESB_Y__T_E_R__I_A_N__ C__H_U__R_C__H_ (USA)
The parties to this lawsuit dispute who is entitled to use and control property
belonging to the Newton Presbyterian Church (“NPC”), which is a member of the
national Presbyterian denomination known as the Presbyterian Church (USA) (the
“PCUSA”). Judge Sanders recently allowed Plaintiffs’ motion for partial summary
judgment, ruling that they are entitled to enforce a ruling by the Presbytery of
Boston that the remaining members of the NPC are entitled to use and control the
disputed property, and that the break-away church members that now call
themselves the Newton Covenant Church are not.
Plaintiffs have now moved for a preliminary injunction that would begin to
enforce Judge Sanders’ dispositive ruling by ordering Defendants to vacate the
church’s real property, return all other property, and refrain from using the NPC
property in a manner inconsistent with the prior determination of the Presbytery.
For the reasons discussed below, the Court concludes that Plaintiffs are entitled to
such relief. It will therefore ALLOW the motion and issue a preliminary injunction
in the form requested by the Plaintiffs.
Plaintiffs will remain free to let Defendants continue to worship in and make
other use of the NPC building, at least for now. But that is for the Plaintiffs to
decide. Defendants have no right to continue their use and occupation of the NPC
property, now that Judge Sanders has determined that the Presbytery’s decision
must be respected and enforced.
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1. Background. A majority of the NPC’s members voted in January 2017 to
break away from the PCUSA and affiliate instead with the Evangelical Covenant
Church. The Presbytery of Boston is the governing body for all PCUSA member
churches in this area. It determined that the loyal Presbyterian members of the
NPC are the true church, and that the break-away majority were no longer
members of the NPC and had no power to take “any action purporting to affect the
ownership, possession, use or status of the church property” or to change NPC’s
name. The break-away majority, led by the Defendants, ignored these directions,
changed the sign outside the church building to read “Newton Covenant Church,”
and has occupied, kept possession, and been controlling use of all church property.
The NPC and the Presbytery of Boston then brought this suit, seeking
declaration “that the ecclesiastical determination of the Presbytery regarding the
true NPC and who among its members is entitled to the use and control over the
NPC property is to be recognized and enforced.” Plaintiffs also seek permanent
injunctive relief consistent with that declaratory judgment and damages for
trespass and for conversion of property.
In November 2017 the court (Sanders, J.) allowed Plaintiffs’ motion for
partial summary judgment on the claim for declaratory judgment. She explained
that under the First Amendment to the United States Constitution the PCUSA’s
decision in this matter cannot be challenged in and must be enforced by civil courts.
Two months later Defendants sought reconsideration of that decision, though for
some reason they styled their request a motion to “vacate” the order granting
partial summary judgment. Judge Sanders emphatically denied that motion,
stating that she “did not regard the issue that I decided as a particularly close one.”
2. Standards. “To obtain a preliminary injunction, the applicant must show
a likelihood of success on the merits of the underlying claim; actual or threatened
irreparable harm in the absence of injunction; and a lesser degree of irreparable
harm to the opposing party from the imposition of an injunction.” Wilson v.
Commissioner of Transitional Assistance, 441 Mass. 846, 860 (2004). “The public
interest may also be considered in a case between private parties where the
applicable substantive law involves issues that concern public interest[s].” Bank of
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New England, N.A. v. Mortgage Corp. of New England, 30 Mass. App. Ct. 238, 246
3. Analysis. This case is unusual because Plaintiffs have already prevailed
on the merits. There is no longer a question of whether Plaintiffs are likely to
succeed in proving that they are entitled to exercise full dominion over NPC’s
property on behalf of the PCUSA. They have already proven that and won summary
judgment on the central issue in this case.
Defendants argue that the Court should give little weight to Judge Sanders’
ruling because it is unlikely to be upheld on appeal. The Court is not convinced.
To the contrary, it appears quite likely that Plaintiffs will prevail in any appeal
from Judge Sanders’ rulings in this case.
It is well established that in a case like this—where a hierarchical church
maintains an internal system of tribunals for resolving disputes, and the highest
ecclesiastical authority in the church has resolved an internal dispute over who has
the authority to act on behalf of a local church and exercise control over its
property—the First Amendment to the United States Constitution bars civil courts
from intervening in the dispute other than to enforce the decision by the church
hierarchy. See Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-710,
724-725 (1976); Episcopal Diocese of Massachusetts v. Devine, 59 Mass. App. Ct.
722, 725-729, rev. denied, 440 Mass. 1109 (2003). As the Supreme Court has
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.
Serbian E. Orthodox Diocese, 426 U.S. at 709, quoting Md. & Va. Churches v.
Sharpsburg Church, 396 U. S. 367, 369 (1970) (Brennan, J., concurring).
The Supreme Court first applied this principle almost 150 years ago in a case
concerning a schism among members of a local Presbyterian church. See Watson v.
Jones, 80 U.S. 679 (1871).
If separate and final judgment were to issue on Count I of the complaint,
Plaintiffs would be entitled not only to declaratory relief but also to a permanent
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injunction in their favor, without having to demonstrate that they would suffer
irreparable harm without such relief or that such harm outweighs any harm to
Defendants from granting the injunction. See generally Borne v. Haverhill Golf &
Country Club, Inc., 58 Mass. App. Ct. 306, 323 (2003) (“In protesting that there has
been no inquiry into who would suffer irreparable harm,” defendant “mistakenly
seeks to graft onto a permanent injunction criteria that apply to preliminary
injunctive relief.”).1
This principle has special force with respect to Plaintiffs’ rights to control the
NPC’s real property. Once a plaintiff establishes that they own or have the right to
control or use some property and that the defendants are unlawfully interfering
with those rights, as in this case, the plaintiff is entitled to a permanent injunction
barring any further interference without regard to whether that order would be
costly, burdensome, or otherwise harmful to the plaintiffs. See Peters v.
Archambault, 361 Mass. 91, 92 (1972) (landowner was entitled to mandatory
injunction compelling neighbor to remove portion of house that encroached on
plaintiff’s land, “even though the encroachment was unintentional or negligent and
the cost of removal is substantial in comparison to any injury suffered by the owner
of the lot upon which the encroachment has taken place”); Brodeur v. Lamb,
22 Mass. App. Ct. 502, 505 (1986) (plaintiff was entitled to permanent injunction
barring obstruction of easement with fences and gates, even though removal of
obstruction would be costly and burdensome).
Since no separate and final judgment has entered, the weighing of
comparative irreparable harms remains a relevant and important criterion. See
Wilson, supra.
1 In federal courts, in contrast, prevailing plaintiffs are typically not entitled to
permanent injunctive relief unless they can “demonstrate: (1) that it has suffered an
irreparable injury; (2) that remedies available at law, such as monetary damages,
are inadequate to compensate for that injury; (3) that, considering the balance of
hardships between the plaintiff and defendant, a remedy in equity is warranted;
and (4) that the public interest would not be disserved by a permanent injunction.”
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156–57 (2010), quoting eBay
Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
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But the fact that Plaintiffs have prevailed on the merits materially alters the
calculus in balancing the harm that will persist if no injunction is issued, on the one
hand, and the harm that may result if the injunction were to be granted, on the
other. “What matters as to each party is not the raw amount of irreparable harm
the party might conceivably suffer, but rather the risk of such harm in light of the
party’s chance of success on the merits.” Siemens Bldg. Techs., Inc. v. Division of
Capital Asset Mgmt., 439 Mass. 759, 762 (2003), quoting Packaging Industries
Group, Inc. v. Cheney, 380 Mass. 609, 616 (1980). Thus, “an attempt to show
irreparable harm cannot be evaluated in a vacuum;” instead, it must be evaluated
as part of a “sliding scale analysis” in which “the predicted harm and the likelihood
of success on the merits [are] juxtaposed and weighed in tandem.” Ross-Simons of
Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 19 (1st Cir. 1996).
Plaintiffs have made an adequate showing that they will suffer irreparable
harm if they are unable to use and control NPC’s property, especially with
regarding to the physical church building and related facilities in Newton. “It is
well-settled law in this Commonwealth that real property is unique;” “that money
damages will often be inadequate to redress a deprivation of an interest in land;”
and that injunctive relief to enforce property rights should therefore be granted to a
prevailing party. McCarthy v. Tobin, 429 Mass. 84, 89 (1999), quoting Greenfield
Country Estates Tenants Ass’n, Inc. v. Deep, 423 Mass. 81, 88 (1996).
In contrast, it is hard to see how Defendants will suffer any legally cognizable
injury if the requested injunction is issued. The PCUSA has determined that
Defendants have no right to use or control the property in dispute. Judge Sanders
has determined that the PCUSA’s ecclesiastical determination must be respected
and enforced by the Court. Defendants have had almost a year since the Presbytery
of Boston ruled against them to leave and return the NPC’s property. Although the
requested injunction would prevent Defendants from continuing to hold of NPC’s
property, and as a result require Defendants to worship elsewhere unless Plaintiffs
give them permission to keep using the NPC facilities for the time being, that is not
the kind of harm that can justify withholding the relief sought by Plaintiffs. See
Peters, supra.
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The Court also concludes, consistent with the requirements of the First
Amendment as discussed above, that issuing a preliminary injunction that enforces
the Presbytery’s determination is consistent with and would promote the public
The Court will therefore exercise its discretion to grant the preliminary
injunction sought by the Plaintiffs. Cf. Lightlab Imaging, Inc. v. Axsun
Technologies, Inc., 469 Mass. 181, 194 (2014) (“Trial judges have broad discretion to
grant or deny injunctive relief.”).
Defendants’ argument that the Court should not grant relief that would alter
the status quo is unavailing. A preliminary injunction granting mandatory relief, in
order to return the parties to something close to the situation that existed before
the defendant acted unlawfully, is permissible under Massachusetts law even if it
has the effect of temporarily granting the plaintiff all that it seeks as final relief.
Such an injunction is appropriate where it is necessary to stop some party from
causing irreparable harm by continuing to engage in unlawful conduct. See, e.g.,
Woods v. Executive Office of Communities and Development, 411 Mass. 599, 601-
602 (1992) (affirming preliminary injunction ordering restoration of certain monthly
housing voucher benefits); Alexander & Alexander, Inc. v. Danahy, 21 Mass. App.
Ct. 488, 502 (1986) (affirming preliminary injunction to enforce contractual
covenant not to compete). Although “[a] preliminary injunction ordinarily is issued
to preserve the status quo pending the outcome of litigation,” Doe v. Superintendent
of Schools of Weston, 461 Mass. 159, 164 (2011) (emphasis added), the availability
of preliminary injunctive relief is not limited to such cases.
“[W]here preserving the status quo will perpetuate harm against the moving
party,” a preliminary injunction “altering the status quo may be appropriate.”
O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 1002
(10th Cir. 2004) aff’d and remanded sub nom. Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). As the United States Court of
Appeals for the Fifth Circuit has explained:
The purpose of a preliminary injunction is always to prevent irreparable
injury so as to preserve the court’s ability to render a meaningful decision on
the merits. It often happens that this purpose is furthered by preservation of
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the status quo, but not always. If the currently existing status quo
itself is causing one of the parties irreparable injury, it is
necessary to alter the situation so as to prevent the injury, either
by returning to the last uncontested status quo between the parties, … by the
issuance of a mandatory injunction, … or by allowing the parties to take
proposed action that the court finds will minimize the irreparable injury.
The focus always must be on prevention of injury by a proper
order, not merely on preservation of the status quo.
Canal Auth. of State of Florida v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974)
(emphasis added; citations omitted). It appears that every United States Court of
Appeals to address the issue agrees. See, e.g.,; Braintree Laboratories, Inc. v.
Citigroup Global Markets, Inc., 622 F.3d 36, 41 (1st Cir. 2010) (quoting Callaway);
Tom Doherty Assocs., Inc., v. Saban Entertainment, Inc., 60 F.3d 27, 34 (2d Cir.
1995); Ortho Pharmaceutical Corp. v. Amgen, Inc., 882 F.2d 806, 814 (3d Cir. 1989);
Aggarao v. MOL Ship Mgmt. Co., Ltd., 675 F.3d 355, 378 (4th Cir. 2012); United
Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Regional Transit
Auth. 163 F.3d 341, 348 (6th Cir. 1998); Chicago United Industries, Ltd. v. City of
Chicago, 445 F.3d 940, 943-944 (7th Cir. 2006); Golden Gate Restaurant Ass’n v.
City and County of San Francisco, 512 F.3d 1112, 1116 (9th Cir. 2008).
Although these cases were all decided under the federal rules of civil
procedure, the same principle applies under Mass. R. Civ. P. 65. See generally
Smaland Beach Ass’n, Inc. v. Genova, 461 Mass. 214, 228 (2012) (judicial
construction of federal rules of civil procedure applies to parallel Massachusetts
rules, “absent compelling reasons to the contrary or significant differences in
content” (quoting Strom v. American Honda Motor Co., 423 Mass. 330, 335 (1996),
and Rollins Envtl. Servs., Inc., v. Superior Court, 368 Mass. 174, 180 (1975)).
Defendants’ further argument that Plaintiffs are not entitled to injunctive
relief because they waited too long to seek it, and in the meantime allowed
Defendants to continue to use the disputed property, is also without merit.
Defendants have known from the time they voted to leave the Presbyterian Church
in order to affiliate with the Evangelical Covenant Church that the Plaintiffs were
disputing Defendants’ assumption of control over NPC’s church building, bank
accounts, and other property. Under these circumstances, Plaintiffs can hardly
complain that they are in an untenable position because Defendants did not seek to
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oust them from the church property fast enough. Someone who “openly defies
known rights, in the absence of anything to mislead him or to indicate assent or
abandonment of intent to oppose on the part of others, is not in a position to urge as
a bar failure to take the most instant conceivable resort to the courts.” Blakeley v.
Pilgrim Packing Co., 4 Mass. App. Ct. 19, 24 (1976), quoting Stewart v. Finkelstone,
206 Mass. 28, 36, 92 N.E. 37 (1910).
Plaintiffs’ motion for preliminary injunctive relief is ALLOWED. The Court
will issue an injunction in the form requested by Plaintiffs.
February 12, 2018
Kenneth W. Salinger
Justice of the Superior Court

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