Illinois Supreme Court denies TEC Petition

I have just learned that, with its denial of petition for certiorari, the Illinois Supreme Court has declared Diocese of Quincy vs. The Episcopal Church et al (2013) to be the law in the state of Illinois. A precedent for diocesan disaffiliation now exists in a state previously presumed to favor deference to the hierarchical argument. Interesting times!

Update: November 27

The following are revealing extracts from the Illinois Supreme Court ruling. The reference to the telling "concession" regarding the national church's lack of involvement in diocesan assets in ¶ 50 is revealing about how the courts adjudicate this sort of dispute. While at this remove I am a somewhat hazy as to what I actually said, my point in ¶ 54 was that the legislative history and the language of the Dennis Canon have nothing to say about dioceses. No one arguing the national church position has yet introduced testimony that the implications of the Dennis Canon for diocesan property were discussed at the time of its enactment (Walter Dennis died in 2003 and - apparently - left nothing to indicate what he - as drafter of the canon - intended). Given that most of Dr. Mullin's affidavits have been filled with references to canons mandating dioceses to do something, if dioceses were to be governed by the Dennis Canon surely it would have said so?            

¶ 39 Contrary to the Church’s position, this is not a “documents only” case. In addition to reviewing numerous exhibits, the trial court heard an extensive amount of conflicting testimony and argument from the parties and made factual findings therefrom. Although determining whether to apply a deference or neutral-principles approach may, on its face, appear to be strictly a question of law, the court had to weigh the evidence presented in doing so. As the trier of fact, the trial judge was in a superior position to judge the credibility of the witnesses and determine the weight to be given to their testimony. Buckner v. Causey, 311 Ill. App. 3d 139, 144, 724 N.E.2d 95, 100 (1999). When contradictory testimony that could support conflicting conclusions is given at a bench trial, an appellate court will not disturb the trial court’s factual findings based on that testimony unless a contrary finding is clearly apparent. Buckner, 311 Ill. App. 3d at 144, 724 N.E.2d at 100.

¶ 50 The property in question in this case consists of the funds in the National City account and, although not emphasized by the Church on appeal, a deed to a piece of real property referred to by the Diocese as the “Diocesan House.” The deed has been included in the record on appeal. It is undisputed the Church is not a party to the deed. Instead, the deed reflects title to the property is held by the Trustees. The language of the deed does not provide for an express trust in favor of the Church. The “Discretionary Agency Agreement,” which is the contract between the Trustees and National City, is also contained in the record on appeal. Like the deed, it is undisputed the Church is not a party to that agreement. A review of the agreement does not indicate otherwise. It is also undisputed the Church has never had any involvement with the account, i.e., it never made any deposits or withdrawals, never authorized distributions, and never exercised any type of control over the account at all. In fact, in its brief on appeal before this court, the Church clearly states it “has never asserted that it owns those funds or any of the Diocese’s assets, but rather has consistently asserted that they belong in the hands of the Episcopalians who are the proper leaders of the Diocese.” This is no small concession.

¶ 51 The Church also fails to cite any relevant legal authority to support the removal and substitution of the diocesan corporations’ directors. Instead, it emphasizes the provisions of the Religious Corporation Act (805 ILCS 110/0.01 to 51 (West 2012)), which imposes certain requirements on the incorporating body with regard to trustee membership. See, e.g., 805 ILCS 110/46d (West 2012) (a trustee may be removed from office for, inter alia, abandonment of the denomination). However, it is undisputed the diocesan corporations were not organized under the Religious Corporation Act. Thus, its requirements have no application here.

¶ 52 Moreover, Dr. Mullin, the Church’s own witness, testified he knew of nothing to prevent a diocese from incorporating. Indeed, the Church does not argue the Diocese could not incorporate or was required to do so under the Religious Corporation Act. See 805 ILCS 110/35 (West 2012) (organizations formed for the purpose of religious worship may become incorporated under the Religious Corporation Act). In fact, religious organizations in Illinois may incorporate under either the Religious Corporation Act or the General Not For Profit Corporation Act of 1986 (Not-for-Profit Act) (805 ILCS 105/103.05(a)(8) (West 2012)). While the Not-for-Profit Act provides for the removal of corporate directors, the Church did not attempt any such removal under that act. See 805 ILCS 105/108.35 (West 2012); People ex rel. Muhammad v. Muhammad-Rahmah, 289 Ill. App. 3d 740, 742-43, 682 N.E.2d 336, 338 (1997). (In fairness, it likely lacked any authority or standing with which to do so as it is not a member of either the Trustees or Diocese of Quincy corporations.)

¶ 53 The trial court also found the evidence did not demonstrate the funds were held by National City in trust for the Church. The neutral-principles approach can involve examination of religious documents such as a church constitution for language of a trust in favor of the central church. Jones, 443 U.S. at 604; Maryland & Virginia Eldership of the Churches of God, 396 U.S. at 368 (Brennan, J., concurring, joined by Douglas and Marshall, JJ.). Under a neutral-principles analysis: “the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.” Jones, 443 U.S. at 606.

¶ 54 An examination of the evidence reveals nothing to demonstrate an express trust, an implied trust, or any other interest vested in the Church. As stated, neither the deed nor the Discretionary Agency Agreement provides for an express trust in favor of the Church. Further, our review of the Diocese’s constitution and canons does not suggest diocesan assets were ever impliedly held in trust for the Church. After Jones, the Church adopted a trust canon (Title I.7.4, referred to by the parties as the Dennis Canon). That canon provides parish property is held in trust for the Diocese and Church and restricts a parish’s ability to dispose of its property. However, it appears undisputed the Church’s canons do not contain similar language with respect to diocesan property being held in favor of the Church. In addition, Bonner testified the Dennis Canon does not apply to property owned by a diocese. Our review of the record reveals nothing to suggest the opposite conclusion. Accordingly, the trial court’s findings in this regard are not against the manifest weight of the evidence.

¶ 55 In sum, the evidence presented demonstrates title to the funds and real property lies with the Diocese. Following our review of the record, we cannot say the trial court’s findings were arbitrary, unreasonable, or not otherwise based on the evidence. Nor can we say the opposite conclusion is clearly apparent in this case. As a result, the court did not err in finding in favor of the Diocese. We commend the trial court for its detailed order, which we found quite helpful in reviewing this matter.

Quincy Appeal Affirms Lower Court Decision

The Fourth District of the Illinois Appellate Court has just upheld Judge Ortbal's ruling in The Diocese of Quincy vs. The Episcopal Church. In their ruling, the justices commend the lower court for its "detailed order," and express concurrence with the view that the Dennis Canon may impose restrictions on a Parish's ability to dispose of its property but impose no comparable restriction on the freedom of a Diocese. "A review of the evidence presented in this case, including testimony from Dr. Mullin, the Church's own witness, does not clearly demonstrate the existence of a hierarchical relationship between the Diocese and the Church," declares the court. "Indeed, the Church's authority is not readily ascertainable without an impermissible investigation into matters of polity." (Para. 48)

¶ 19 During the three-week trial that followed, 11 witnesses testified. We will recount only what is necessary to resolve the issues raised on appeal.

¶ 20 Dr. Robert Bruce Mullin testified for the Church as an expert regarding its structure and history. Mullin opined the Church was hierarchical. When asked the basis for his opinion, Mullin responded, "Because it is self-evident from evidence itself, you know, that all you have to do is look at the structure of the Episcopal Church and history of the Episcopal Church and it is a hierarchical church. No one is going to question the Episcopal Church is hierarchical before 2008." Mullin then testified in detail regarding the history of the Church.

¶ 21 However, on cross-examination, Mullin agreed his opinion the Church is hierarchical is not expressed in the Church's constitution. He also agreed neither the Church's constitution nor its canons specifically reference a three-tiered form of governance. Mullin further agreed the Church's constitution and canons do not prevent a diocese from withdrawing from the Church. Mullin was unaware of any attempt under Illinois law to remove the members of the Trustees from their offices. While Mullin testified the members of the Diocese forfeited their offices by leaving the Church, he could not point to the "magic moment" when they did so. He also agreed the Church cannot compel a diocese to contribute any money. Instead, the Church suggests what should be contributed. Historically, the lack of support from the dioceses has been a "frequent problem." Mullin also admitted the Church's constitution and canons do not provide for the discipline of a diocese.

¶ 22 Dr. Jeremy Bonner, a specialist in Church history, testified for the Diocese. According to Bonner's testimony, the Church is "an extremely decentralized association" of state churches or dioceses. The Church's constitution lacks a supremacy clause and a mechanism to enforce its canons or legislation against a diocese. According to Bonner, the most striking characteristic of the Church is its lack of any supreme judiciary. During his testimony, the following colloquy took place:

"Q. In your opinion, can a religious organization which lacks a constitutionally established executive and judicial function 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."

¶ 23 Bonner also testified he was unaware of any canon that purports to give the Church authority to assert control over a diocese's property. He explained while the so-called "Dennis Canon" (Title I.7.4) purports to declare a trust in parish property to restrict a parish's ability to dispose of it, that canon does not apply to property owned by a diocese.   

Neutral Principles Rule!

There is no provision in TEC's Constitution or Canons which require prior approval of a diocesan constitution or its canons. There is no express prohibition against withdrawal of a diocese. In sum, reviewing the governing documents from a secular perspective, there is no explicit or clearly delineated expression of TEC's claim that the General Convention is the ultimate authority or judicatory of the Church. 

Observations of the Quincy Trial, April 2013

Now that proceedings are concluded, I wish to share such portions of the transcript as are currently available. Reading what I actually said is a salutary reminder of how new the adversarial process is to me; it's far removed even from a stormy academic debate.

First we have Allan Haley's attempt - on behalf of the Diocese of Quincy (ACNA) - to set the history of TEC in a broad context on April 9:

Then we have Mary Kostel's cross-examination on behalf of TEC on April 10:


Finally we have a most intriguing report by Mike Romkey of my academic counterpart, Dr. Robert Bruce Mullin, on the stand on April 30:

Chatting during recess, Father Stone remarked that Mullin was a formidable witness he would not want to take on in court. As Runyan began his cross-examination of Mullin, it became evident that it would be equally uncomfortable to be in the witness chair with the South Carolina lawyer asking questions.

Runyan wore a black suit with a red power tie. He looked directly at the witness and often smiled as he asked detailed questions that tended to present lots of detailed information before asking Mullin whether he agreed or disagreed, or whether in his estimation a statement was true or false. His questioning tended to work around the edges of issues, gradually accumulating information that would lead to an overall conclusion. He worked to bring the witness along with him, following Mullin's answers by remarking, "All right," or "OK then," before going on with his next question. Runyan started off quizzing Mullin on how much money TEC had paid him for expert testimony. Was accurate, Runyan asked, to say that TEC had paid Mullin nearly $900,000 for testimony going back to 2007. Mullin said it was. Mullin said he has an arrangement to be paid $15,000 per month to even out the payments.

Runyan asked Mullin about his practice of annotating bills to keep track of on what he had spent research time. Runyan then put up a slide showing Mullin's billing for his research into the matter of Episcopal Church hierarchy. The billing was concentrated in two years after Mullin became TEC's expert witness. Runyan asked if the slide showing when Mullin's researched focused on hierarchy was accurate. Mullin told Runyan the slide looked about right.

Had Mullin published any peer-reviewed papers on Episcopal Church hierarchy?

Mullin told Runyan nothing he has written on the subject has been published yet.

Runyan asked if the audience for Mullin's research and writings on church hierarchy had been mainly lawyers and judges?

Mullin said yes, that was case.

Runyan knew Mullin's testimony and affidavit in detail, and in the course of Runyan's questioning, Mullin corrected, amended or qualified several points.

Runyan put up slides quoting constitutions from the Roman Catholic and a protestant church, each containing language explicitly stating those churches' hierarchal natures. He asked Mullin why such language wasn't in the Episcopal constitution.

Mullin said such language wasn't present because it was the accepted sense of things.

Runyan asked Mullin about the word "accession" and what it means.

Mullin said that when individual dioceses acceded to the greater Episcopal Church, they ceded the power to later decide to be independent. The dioceses had the power to act independently while forming a union, but once that association was made, it was permanent.

Runyon asked Mullin what TEC acceding to an international Anglican communion organization implied. It was a different kind of accession, Mullin said, one that did not imply TEC surrendering authority.

Runyan recounted Mullin testimony saying that his survey of 19th century commentary provided "an unequivocal and unanimous view of the hierarchical nature of the church and a lack of independence of its dioceses." With a smile, Runyan said that kind of statement was like waving a red flag in front of a lawyer. He then presented a series of slides from 19th century Episcopal sources that seemed to contradict Mullin.

"Furthermore, each diocese is absolutely independent," one said. Another from 1883 said "certain limited powers" were given to the national church, "leaving the respective dioceses independent as to all matters which concern dioceses only."

Mullin took issue with each statement for a variety of reasons, saying one didn't qualify as commentary, and that others were exaggerations or misrepresentations of what the author intended to say.

Testimony was expected to continue through the week with the possibility things will be prolonged for written and oral arguments over the discovery issues that came up Tuesday. After that, it will be up to Judge Ortbal to sift through evidence and write a decision. It does not appear it will be an easy case to call. The two sides are diametrically opposed in their positions, and each time the one side introduces an opinion represented to be factual, true and probative, the other side introduces evidence to contradict it or throw it into doubt.

As Judge Ortbal said at one point with certain resignation while ruling on an objection, "This trial has been nothing but opinions."

Read the whole thing at Virtueonline.

No Summary Judgment for TEC in Quincy!

I suspect that there's not a little irritation currently being voiced at 815 and Goodwin Proctor, and I'm afraid I can't help but find that thought somewhat gratifying.

Update: The Anglican Curmudgeon naturally has some thoughts on the matter.

Update 2: My dear wife last night reminded me of the dangers of hubris and, on reflection, I stand suitably rebuked. My continued hope - which I know is also that of the ACNA legal team in Quincy - is that this ruling will be the precursor to a negotiated settlement that allows both sides to pursue their mission honorably and effectively, one that does not include the sort of stipulations prescribing membership in ACNA that are currently bedeviling the situation here in Pittsburgh. Further litigation will do no one any good.

The Quincy Litigation

The following affidavit was submitted into evidence on October 4, 2011. It has an interesting history in that the first draft (involving four months of intensive review of General Convention records) was prepared in response to three separate affidavits, two of them submitted by my counterpart, Dr. Robert Bruce Mullin of General Theological Seminary.

At the eleventh hour, the legal team for TEC in Quincy scrapped the original affidavits and produced a new – and much less detailed – affidavit to which the present affidavit responds.

Not only did TEC sacrifice all the money paid to Dr. Mullin for his opinion, but so last minute was their resubmission that the judge in the case ordered that the costs associated with revising my expert witness testimony be borne by TEC.

Since my affidavit contains executive summaries of TEC’s position, I am not posting a copy of the TEC Statement of Facts (as I did for Fort Worth).