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Illinois Appellate Court Affirms Judgment for Anglican Diocese

On July 24, 2014 the Illinois Appellate Court for the Fourth District filed its opinion in the appeal taken by the Episcopal Church from a judgment entered against it by the Hon. Thomas J. Ortbal in September 2013.

On July 24, 2014 the Illinois Appellate Court for the Fourth District filed its opinion in the appeal taken by the Episcopal Church (USA) from a judgment entered against it by the Hon. Thomas J. Ortbal in September 2013. The three justices on the panel joined in a twenty-page decision that affirmed Judge Ortbal’s judgment in all respects: the (Anglican) Diocese of Quincy properly amended its governing documents so as to secede from ECUSA and cease being a member diocese in 2008; the real and personal property remained with the withdrawing diocesan corporation under Illinois law, and neither was subject to any express or implied trust claims by ECUSA; and ECUSA could not, after the Diocese had completed its vote to withdraw, purport to remove the diocesan trustees or officers and replace them with people from its remnant group that decided to stay with the national Church.

The opinion by the appellate court is a model of clear reasoning, and needs little commentary to be understandable by a lay person. It begins by explaining precisely how the dispute came about, and traces the facts up to the time of the original lawsuit brought by the Anglican Diocese after ECUSA’s attorneys had persuaded the Diocese’s bankers to put a freeze on all of its funds on deposit with them.

Then the opinion summarizes the proceedings leading to, and evidence offered at, the trial before Judge Ortbal in April and May of 2013. The key testimony was mostly received on the question of whether or not ECUSA could be said to be a “hierarchical” church with respect to its member dioceses.

Readers of this blog have known the answer to that question for a long time. ECUSA, the national Church, likes to claim that dioceses do not exist apart from the national Church; but the truth runs the other way: the national Church would be nothing without its member dioceses — and particularly those pre-existing dioceses corresponding to the former Church of England in each of nine former colonies. Representatives from those nine dioceses (referred to at the time not by the word “diocese”, but rather as, e.g., the “Protestant Episcopal Church in the State of Maryland”) met together in Philadelphia and New York over a five-year period beginning in 1785, and eventually agreed to come together in a General Convention (“calling together”) of all of their nine separate churches in a deliberative body that could adopt uniform standards of worship and discipline to be shared among all of them.

Thus it was individual State churches that brought the national “Church” (denomination) into being, just as it continues to be the individual dioceses (several of which may exist side-by-side in any one State today) that continue to make up its membership, and to send representatives to its triennial national meetings (“General Convention”). The analogy is properly to a conglomerate like the American or National League, made up of the individual teams who are their members; or to the United Nations, a confederation of individual sovereign states; or (on a very local level) to a book club, whose members come together once a month at each others’ homes.

In all such cases, the organization may be viewed as a separate legal entity from its individual members, but the defining characteristic is that the organization would amount to nothing without those individual members. Under our First Amendment, members of such groupings are free to withdraw from membership at any time — and if all members withdrew, the organization would cease to exist.

So it is with ECUSA, ever since its founding in 1789: its members came together initially to agree on the governing documents, called the “Constitution and Canons”; and have met roughly every three years since as a legislature to hear reports from members, and to approve new canons and resolutions as the members may collectively agree upon.

As such, ECUSA has at the top of its structure only a legislative body (General Convention). People who argue that ECUSA at the national level is “hierarchical”, on the model of the United States of America, forget that unlike America, ECUSA lacks both a judicial and an executive branch at the national level. (Its Constitution also lacks — deliberately so — a Supremacy Clause.) And its legislative branch — again unlike America’s — meets for only 8-10 days every three years — which is to say, less than one percent of the whole time for which it is elected.

Once it adjourns, General Convention typically never comes together again in the same form, ever again. It has no powers of enforcement against Dioceses, and no ability to judge a dispute between dioceses, or between a diocese and ECUSA itself. As a legislature, General Convention never sits as a court, to hear evidence and witnesses, or to issue opinions on matters of ecclesiastical and canon law.

So it should not be remarkable that the Illinois appellate court took note, in its opinion, of this expert testimony from Dr. Jeremy Bonner offered at the trial (pp. 8-9):

Q. In your opinion, can a religious organization which lacks a constitutionally established executive and judicial function[, and] which has no language of supremacy in its constitution, function as an hierarchical church?

A. I do not see how.

Q. How can [the Church] then enforce its canons against a member diocese?

A. It can’t. It can express its displeasure and can exert moral outrage and attempt to persuade its dioceses of the need to change, but recent disputes have shown the limitations of that strategy.

And this is precisely the weakness of ECUSA’s strategy as it is being played out in the courts of Texas, California and South Carolina. It pretends to have a “three-tiered, hierarchical structure,” when the reality is that there are just the member dioceses at the top, who act and decide matters through their triennial conventions. The rest of the time (more than 99% of it), the individual dioceses are what makes up the national denomination, and which deal with its day-to-day affairs and interface, through their bishops, other clergy, and manifold parishes, congregations and missions, with the churchgoing public, and with the outside world.

The Illinois appellate court not only found that ECUSA was not “hierarchical” at the topmost level, but because Illinois courts apply “neutral principles of law” to church property disputes, it also found that the issue of “hierarchy” was irrelevant to its decision of the case. The deed to the Diocese’s real property stood solely in its own name ever since it was first granted, in the nineteenth century. And the names of the bank accounts, together with the written custodial agreement between the diocese’s bank and the diocesan corporation, did not have ECUSA anywhere as a party, co-owner, or trustee; nor did they mention ECUSA in any respect.

On this basis therefore, the appellate court had no difficulty in unanimously affirming the Judgment given by Judge Ortbal. Along the way, it also held that ECUSA could not substitute its Diocese of Chicago into the case to replace its former rump group of Quincy, which merged into the Diocese of Chicago just before Judge Ortbal came out with his findings and decision. ECUSA, the court ruled, had not taken an appeal from Judge Ortbal’s denial of the motion to substitute, and so it had no appellate jurisdiction to rule on the matter now.

This aspect of the decision probably diminishes significantly the chance that any further or higher appeals will go anywhere. The one ECUSA group that could have taken title to Quincy’s real property and bank accounts no longer exists, and is no longer a party to the case. (As a New York religious association, originally formed at common law, ECUSA itself cannot hold title to any property, real or personal; it has to do so through its New York corporate counterpart, the Domestic and Foreign Missionary Society.) Thus there is no longer any effective appellate relief that could be granted, and any further attempts to appeal by ECUSA alone should be dismissed as moot.

Of course, that fact will not deter ECUSA from trying. It could ask next for a “petition for rehearing” by the full appellate court, or it could file a petition for leave to appeal the decision to the Illinois Supreme Court (of which only about 4-5% are granted). The former would most likely be quickly denied, given the unanimous panel’s decision, but the Illinois Supreme Court could take from six to nine months to dispose of or dismiss the latter.

At some point, the freeze on Quincy’s bank accounts will be lifted, and the Anglican Diocese will be able to resume its mission without being dragged down by the uncertainties of litigation. The dragon has been slain, and while it may have a few last gaps, its demise is simply a matter of time.

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