On October 9, 2013, Judge Thomas H Ortbal of the Adams County Circuit Court entered a final judgment against ECUSA and its (no-longer-existent) “Diocese of Quincy”. The judgment decrees and declares that the Anglican Diocese of Quincy is the sole owner of its real and personal property, including approximately $4 million in its bank accounts that has been frozen ever since ECUSA first wrote a letter to its bank in January 2009.

In order to keep the funds frozen, ECUSA had filed a motion to stay enforcement of the judgment pending its appeal to the Fourth District Court of Appeals. It also filed a motion to substitute, in place of its former “Diocese of Quincy”, the Episcopal Diocese of Chicago, into which the former Diocese of Quincy merged ecclesiastically effective September 1.

In a separate order, also entered October 9, Judge Ortbal denied on technical grounds the motion to substitute in the Diocese of Chicago, and stayed the main judgment as to all but the real property and $1.1 million of the funds on deposit. He did not require any bond from either side.

The judgment as entered makes several key findings of fact:
 

12. There is no provision in TEC’s Constitution or Canons requiring that a diocese receive approval prior to amending its own constitution or canons, nor is there anything in the provisions of TEC’s Constitution which incorporates religious doctrine relating to the ownership of diocesan property which would require deference. 

13. There is no explicit provision in TEC’s Constitution or Canons specifying the office or body having supremacy or ultimate authority over a diocese and there is no explicit or clearly delineated expression in TEC’s governing documents that the General Convention is the ultimate authority or judicatory of TEC. TEC’s own expert witness, Dr. Bruce Mullin, conceded that there is no such express provision in TEC’s constitution. 

14 There is no express provision in TEC’s Constitution or Canons prohibiting a diocese from withdrawing its association with TEC. 

15. The only express statement in TEC’s Constitution or Canons defining the “Ecclesiastical Authority” of a diocese such as DOQ is either the Diocesan Bishop, or in the absence of a Bishop, the Standing Committee. At the time DOQ voted to disaffiliate, the Standing Committee of DOQ was the highest ecclesiastical authority of the Diocese.

In order to keep these findings from binding it (i.e., becoming res judicata, as attorneys put it) in any other case involving a withdrawing diocese, ECUSA is forced to appeal the judgment — even if that were not its policy anyway. And that fact points up the weakness of ECUSA’s strategy of litigating against each and every diocese that elects to withdraw: should any appellate court affirm a judgment with findings like those made by Judge Ortbal, and should the higher courts refuse to review that appellate court decision, then ECUSA will be subject to pleas of res judicata in any subsequent case involving a member diocese.

The findings as made by Judge Ortbal are independent of Illinois law; they involve only a straightforward reading of ECUSA’s own Constitution and Canons. And perhaps that fact is why ECUSA saw fit to adopt this particular canon as part of its Title IV, Canon 19 (with my emphasis added):

Sec. 2. No member of the Church, whether lay or ordained, may seek to have the Constitution and Canons of the Church interpreted by a secular court, or resort to a secular court to address a dispute arising under the Constitution and Canons, or for any purpose of delay, hindrance, review or otherwise affecting any proceeding under this Title.

As we have seen from numerous posts on this blog, not even ECUSA’s General Convention may issue an interpretation of its Canons that is binding on all member Dioceses. (Any such “binding interpretation” could not only be ignored with impunity by the individual dioceses, but it could be altered or reversed by any subsequent General Convention.)

Nor has General Convention ever specifically authorized the Presiding Bishop to go into the secular courts in violation of Canon IV.19.2. (All it has done over the years is to adopt a triennial budget number for “litigation to secure Church property”, which number the Presiding Bishop routinely flouts by multiples of two and three.)

But now the Presiding Bishop’s “go it alone” strategy has resulted in a civil court judgment against the organization which does threaten to bind ECUSA and all of its member dioceses, in a way that no resolution or canon adopted by General Convention ever would. And should that come to pass — whether in Illinois (Quincy), California (San Joaquin), Texas (Fort Worth) or South Carolina, then such a judgment will make it easy for any subsequent diocese to leave ECUSA with impunity — all due to the workings of res judicata in the secular law (the Latin means: “the matter having been [finally] adjudged”). A party which has once litigated an issue to finality in one court may not continue to litigate that same issue again and again in other courts.

The law of res judicata, it should be noted, does not work in reverse against other dioceses, because it binds only the specific parties to each proceeding. Thus if, say, the case in Pittsburgh had ever led to a final judgment saying that dioceses were not free to leave ECUSA, that holding could be cited only as non-binding precedent in another case involving a different diocese in a different State. But since ECUSA is a party to each and every diocesan lawsuit, it will be bound by the first result reached against it in any of the various lawsuits it is pursuing. And given that Quincy’s is the first trial court judgment against it, the odds favor Illinois as being the State that will deliver the coup de grâce to Katharine Jefferts Schori’s misguided scorch-and-burn policy of suing every departing entity, no matter which, and no matter what cost.

Whether or not the Diocese of Chicago may successfully replace the former Diocese of Quincy in the appeal that ECUSA will take will also most probably be decided by the Court of Appeals. ECUSA’s simple claim to Judge Ortbal that the merger of the dioceses had been approved in accordance with the Constitution and Canons of the Church did not satisfy the secular requirements for a party to be substituted under Illinois law.

At common law, no unincorporated association could sue or be sued in court, because its membership was amorphous and undefined: it could change from day to day, and grow at one point and decline at another. Unlike a corporation, the association itself was not seen as a separate entity in its own right, because it existed only through its members and possessed no charter of organization from the State.

Most States have changed the common law by statute, and allow associations to sue and be sued in their own name. But when an association dissolves, the question arises as to what becomes of its property and assets. Absent a decision by the membership itself in the dissolution, the law will regard each former member as possessing a fractional part of each asset, with the result that it becomes virtually impossible to trace the title of that asset subsequent to dissolution.

And that is the conundrum faced by ECUSA in the Quincy lawsuit. Who is the successor, under Illinois secular law, to the property and rights formerly held by its Episcopal Diocese of Quincy? If it is the Episcopal Diocese of Chicago, just how did the transfer of those assets take place by operation of Illinois secular law, as opposed to ecclesiastical law (generally unenforceable in the secular courts)?

Your Curmudgeon is personally involved in these issues, so please take everything I say with a certain grain of salt. Only time will tell if my opinions are correct. But what we are seeing could be the beginnings of an unraveling of ECUSA’s flawed litigation strategy.

Reprinted with the permission of the author.