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September 10, 2013


Decision in Quincy: ECUSA Has No Rule Keeping Dioceses from Leaving

We have a decision from the trial court in Quincy: Adams County Circuit Court Judge Thomas J. Ortbal entered on September 9, 2013 his Findings, Opinion and Order following a bench trial that stretched over three weeks last April and May. The opinion is about as thorough an analysis as we have to date of the “hierarchical” polity of ECUSA when it comes to matters involving its member dioceses. The judge’s key finding is this (pp.12-14):

DOQ [The Anglican Diocese of Quincy] persuasively argues that when examining TEC’s Constitution and Canons from a secular perspective, they are far from clear or evident, as to identifying the highest court or judicatory having authority over the diocese. There is no explicit provision in TEC’s Constitution or Canons specifying the office or body having supremacy or ultimate authority over the acknowledged Ecclesiastical Authority of a Diocese, i.e., a Bishop or a Standing Committee in the absence of the Bishop.

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.

...

Based upon this record, the court finds that, despite the general hierarchical structure of TEC, the determination that the General Convention is the highest ecclesiastical authority over the disputed property issue is not readily ascertainable. To reach the conclusion sought by TEC, that the actions of the General Convention and Presiding Bishop must be deferred to as the ultimate adjudicatory of the dispute, would require the court to engage in a searching and impermissible inquiry into the historical and theological analysis of the Church’s polity ...

I will have a fuller analysis of the rest of the opinion up later today. For now, this represents a great legal victory (albeit at the trial level) for those dioceses who are facing lawsuits over their actions to remove themselves from membership in ECUSA. And for that reason, ECUSA will almost certainly appeal the ruling. But as Bishop Iker reminded 815 following the decision in favor of his diocese in Texas, it is never too late for 815 to come to its senses, and stop this endless warfare in which Christians everywhere lose.


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32 comments

Why end the litigation now, TEO now has access to millions of dollars of trust funds now that they have launched themselves into little old lady land (formerly known as the UTO and ECW)?

As soon as the coin in the box doth ring, TEO another lawsuit doth sling…

[1] Posted by Eastern Anglican on 9-10-2013 at 01:00 PM · [top]

Mr. Haley,

Based on these two rulings, Ft. Worth and now Quincy, does it now mean that those bishops who signed the amicus briefs were exactly right in their presentation of the structure of TEC, and these two courts have both ruled accordingly?  If so, I’m certain that those bishops will be receiving phone calls and public apologies from Ms. Schori for the manner in which they were treated, and that the case brought against them should never have happened.  Yeah, I’ll be waiting on that too.  Great news for Quincy. 

WM

[2] Posted by Cranmerian on 9-10-2013 at 01:03 PM · [top]

Good momentum for DSJ and our trial scheduled for January. Thank You Lord.

[3] Posted by Fr. Dale on 9-10-2013 at 01:23 PM · [top]

I guess 815 could appeal and say that the court engaged in “an impermissible inquiry” into their hierarchy in order to conclude that there is no hierarchy.

[4] Posted by Undergroundpewster on 9-10-2013 at 01:40 PM · [top]

I have a feeling that things are starting to snowball in the courts; that what is now akin to a small snowball in the hands of a child may soon become a huge one being pushed on a downhill slope and crashing into and demolishing its target.  This decision is great news!

[5] Posted by cennydd13 on 9-10-2013 at 01:54 PM · [top]

Gee!  I thought David Booth Beers had said they had won every lawsuit so far?  Guess David mis-spoke, huh?

[6] Posted by Allen Lewis on 9-10-2013 at 02:21 PM · [top]

I think a succesful way is being developed. Earlier cases concentrated on factual situations as a way out of the Dennis canon. Now the approach seems to ignore the Dennis canon and concentrate on neutral principles (Dennis is church law) and treat these cases like the real estate cases that they are. After all, if the hierarchial church approach is valid there was no need for the Dennis canon. I have thought that the argument should be made that the Dennis canon only applies to entities who joined TEC after 1979.

[7] Posted by Pb on 9-10-2013 at 02:25 PM · [top]

Drop me an email if you want a PDF of the judge’s ruling. .(JavaScript must be enabled to view this email address) Praise the Lord!

[8] Posted by Romkey on 9-10-2013 at 02:52 PM · [top]

Better still, I put it up as a Google shared document.

https://docs.google.com/file/d/0B6z2d-2ZugmYWFJ3V3A5R2FGLTQ/edit?usp=sharing

[9] Posted by Romkey on 9-10-2013 at 02:55 PM · [top]

Excellent point, cranmerian #2.  Those bishops were forced to knuckle under because they supported a view which the courts are now finding was correct.

This is good news!

[10] Posted by Katherine on 9-10-2013 at 03:00 PM · [top]

[2]  I think you may be in for a very long wait.

[11] Posted by cennydd13 on 9-10-2013 at 03:14 PM · [top]

I would appreciate it if Mr. Haley could parse and amplify this statement from the ruling, particularly the reference to historical inquiry:

To reach the conclusion sought by TEC, that the actions of the General Convention and Presiding Bishop must be deferred to as the ultimate adjudicatory of the dispute, would require the court to engage in a searching and impermissible inquiry into the historical and theological analysis of the Church’s polity ...

[12] Posted by Adam 12 on 9-10-2013 at 05:02 PM · [top]

I think there are going to be some late night skull sessions at 815 to try to figure out what to do next, and I wonder what kind of tomfoolery DBB and KJS will dream up next, now that the courts are wising up to their ways?  It does look more and more like the courts will be deciding to rule strictly on neutral principles of law, and they don’t like that.

[13] Posted by cennydd13 on 9-10-2013 at 06:43 PM · [top]

I think it might be more accurate to say that the amicus briefs presented the court with an alternate view of TEC polity that a) was held by a number of bishops currently in TEC, and b) was very commonly held in TEC until very recently- in fact was contained in the textbooks that TEC’s own seminaries used, and no doubt Nashotah and Trinity still do (or use texts with the same information).  That any bishop could hold such a view and still be nominated to the episcopate, and indeed serve in some cases for over a decade, makes a case that TEC is not all of one mind.  The very fact that they could, effectively, be charged with treason for suggesting that what they learned in seminary was accurate, no doubt backfired on TEC.

Do keep in mind that laws very greatly from state to state, so the degree of deference paid to TEC as a church will also very.  But to date, it seems that while a parish may not be able to leave the diocese, in most places, a diocese leaving TEC is clearly a different matter.

I think trust is also a factor.  Unfortunately, in the early going, most departing parishes were quite naive, and sometimes even their attorneys were counseling to trust the local TEC bishop , and jump through whatever hoops and participate in this or that process and all would be well in the end and departure would be amicable.  Then one day, the locks were changed, priests inhibited and lawsuits filed.  Quincy and Fort Worth were under no such illusions.  The bishops might have been respected by many on a personal level, but the days of FiF in TEC were numbered, and the writing was on the wall ever since the Title III canons enforcing WO were written in the 90s.

[14] Posted by tjmcmahon on 9-10-2013 at 07:00 PM · [top]

Romkey,
Thanks for breaking the news on this earlier.  It really made my day (and I was already having a very good day).  Also, apologies to the SF staff for taking over another thread in my excitement to find out what was going on.  Mea culpa.

[15] Posted by tjmcmahon on 9-10-2013 at 07:06 PM · [top]

#7 exactly right. If the church is truly hierarchical then there was no need for the Dennis Canon in the first place. The fact that its there argues against the hierarchical nature of the church.

[16] Posted by gaanglican on 9-10-2013 at 07:19 PM · [top]

PRAISE GOD!!!!  This is great news for someone whose was nutured in the faith by solid, spiritual fathers in Quincy.

[17] Posted by Nikolaus on 9-10-2013 at 07:57 PM · [top]

I think the point the court is making is two-fold.  First, there is nothing in the governing documents that specifically says that a diocese cannot rescind its affiliation with TEC.  And second, the NY offices of TEC are nowhere to be found on the deeds, bank accounts or corporate documents to demonstrate either the direct ownership or some sort of franchise agreement, giving TEC power over the dioceses that are either corporations or other entities organized under state law.  And there is no state law saying that a corporation cannot withdraw its membership in voluntary associations.

There is also nothing in the Constitution of TEC that actually contains wording indicating that GC or any other body is the top of the hierarchy.  And in practice, even recently, TEC seems to have a hard time making up its own mind.  If GC is the final decision making body in TEC, (per the stance of their lawyers in court) how is it that the PB and a small group of “leaders” can directly countermand the will of GC on the UTO, expressed only last year.  Where is the canon giving the PB authority to overrule GC?

Now, if you are still in TEC, the result of these court rulings is that one day soon, your bishop will be around with a bit of paper for your vestry to sign off on, recognizing the Dennis Canon as valid, and that the property belongs to the diocese.

The bishop, in turn, can anticipate a TEC lawyer showing up on his or her doorstep, with a paper for the bishop and standing committee to sign, PERMANENTLY acceding to the Constitution and Canons of TEC, and placing all diocesan assets (including interest in parish assets), into trust for TEC.

The big fight that is yet to come is between the PB, the Pres of HoD, and the Chair of the Board of Trustees of the DFMS, and the chief investment officer of the Trinity Wall Street Trust, over who actually is the top person in TEC.  Stay tuned.

[18] Posted by tjmcmahon on 9-10-2013 at 07:59 PM · [top]

That’s great news for Quincy. Still, it offers little solace to faithful biblically orthodox Anglicans in California, Connecticut, New York, Virginia and other places who’ve already lost their properties through adverse and sometimes illogical court rulings.

[19] Posted by the virginian on 9-10-2013 at 10:50 PM · [top]

Those who filed the amicus brief in Texas had a view of polity that was absolutely correct - theologically, historically and is now affirmed legally.  Will there be apologies to these men who stood up for what they knew to be true…or for that matter, for expressing an opinion that is the right of any free man?  No.  There will also probably not be any apologies from those who publicly criticized these men in a way that required a full-scale assault on history and logic.  And those so-called “schismatic” conservatives have the law on their side now - (never understood the use of this word to describe someone whose only fight is to STAY)....So what next, now that the secular courts have ruled in these cases? By what new means can the garment of Christ be further divided in the name of progressivism?  Is it over yet? I am hopeful that there will be a true move forward now - a step into the future that depended upon these court decisions. I am grateful for the witness of those who dared to speak…and yes, I am hopeful. The future is being written.

[20] Posted by tudorhistorian on 9-10-2013 at 11:02 PM · [top]

They’d better hand out more of those United Thank Offering boxes to the kiddies.

[21] Posted by Jim the Puritan on 9-11-2013 at 12:11 AM · [top]

[18]  I think things are about to get very interesting indeed at 815, and I also can’t wait to see who comes out as Top Dog there.  It should be quite a show!

[22] Posted by cennydd13 on 9-11-2013 at 12:44 AM · [top]

heh, this is interesting. Years ago, one of the “H Twins” was arguing here about how courts were obligated to always side with 815, since to do otherwise would be to impose its theological interpretation upon a church, thus violating the separation of church and state. In other words, she was arguing that to do anything other than defer to 815 meant the government was making ecclesiological determinations, and that was a no-no.

I countered that this was ridiculous. The courts ought to decide on neutral principles, since even to *decide* that 815 was “hierarchical” in the sense that it had the right to prevent dioceses or parishes departing and that property was owned by it no matter who had the deeds, was *already* to meddle in/make theological interpretations about the ecclesiology of the church by the courts.

Looks like the courts agree with me. I wonder how the twins are doing, given the recent decisions re Fort Worth and now Quincy. Don’t burst a blood vessel, guys.

Based upon this record, the court finds that, despite the general hierarchical structure of TEC, the determination that the General Convention is the highest ecclesiastical authority over the disputed property issue is not readily ascertainable. To reach the conclusion sought by TEC, that the actions of the General Convention and Presiding Bishop must be deferred to as the ultimate adjudicatory of the dispute, would require the court to engage in a searching and impermissible in
quiry into the historical and theological analysis of the Church’s polity

[23] Posted by SpongJohn SquarePantheist on 9-11-2013 at 11:52 AM · [top]

For as long as the mind of man remembereth, no diocese ever needed 815’s or GC’s approval when it wanted to sell diocesan property.  It never needed their approval to allow a parish to sell property - or mortgage it or lease it.  It is only after this PB came into office that there began to be employed, selectively, the argument that the Dennis canon created a self-executing trust interest in all property for the benefit of the national entity that required its consent to dispose of that property.  Indeed, eventoday, neither 815 nor GC involves itself in such decdisions unless related to a departing parish or diocese.  How a court can pay lip service to “neutral principles of law” as the basis of deciding these issues without addressing the historic absence of the exercise of any such hierarchical authority is beyond me.  Thank God this Judge has a real understanding of what “neutral principles” really means.

[24] Posted by DaveG on 9-11-2013 at 12:12 PM · [top]

DaveG—I think you are correct. Certainly the one case I was involved in here, where the Bishop ordered some parish property to be sold to the government which the government wanted to condemn.  The parish church wasn’t happy (they wanted to fight the condemnation), but the Bishop had the total say and there was nothing they could do once he said to sell it to the government rather than fight.

[25] Posted by Jim the Puritan on 9-11-2013 at 02:06 PM · [top]

So is this the final ruling on the entire dispute by the trial court, or is it just a finding about one set of facts, while the final decision about property rights etc. remains to be made?

[26] Posted by AndrewA on 9-11-2013 at 03:03 PM · [top]

Ask Mr Haley.

[27] Posted by cennydd13 on 9-11-2013 at 03:41 PM · [top]

This is the final ruling on the DOQ’s initial complaint for declaratory relief as to the ownership of its bank accounts and its diocesan headquarters, AndrewA (#26). It is also the final ruling as to ECUSA’s and the EDOQ’s counterclaims. A judgment is being prepared which will be submitted to the court next week. Once Judge Ortbal signs and enters a judgment, it will become final unless it is appealed within the time Illinois allows for appeals (which is 30 days from the entry of judgment).

[28] Posted by A. S. Haley on 9-11-2013 at 04:40 PM · [top]

So what are the implications for ownership of parish property?  Does this still leave room for TEC to sue all the parishes individually?

[29] Posted by AndrewA on 9-11-2013 at 05:46 PM · [top]

Mr. Haley,

Would I be correct that since TEC itself argued that parishes are ecclesiastically governed by the diocese (and cited case after case in which this had been borne out across the country), that they cannot now argue the other side of their own argument (ie, cannot argue that the parishes are governed by some national entity)?  If so, is there any way that they could prevail OTHER than to appeal the ruling in favor of the Anglican Diocese?

Which leads to- does the Diocese of Chicago have standing in the court, or will TEC have to go it alone, if they choose to appeal?

[30] Posted by tjmcmahon on 9-11-2013 at 06:03 PM · [top]

AndrewA (#29), we do not know at this point what ECUSA or the Diocese of Chicago plans to do with regard to the parishes of DOQ—at the trial, they agreed that they were making no current claims on that score. Perhaps they were expecting to make a further move if they had won, and now that they have lost, they will reassess those plans. We will just have to wait and see.

TJM (#30), as I understand it, before Judge Ortbal’s decision, their argument was that their designees were the rightful officeholders and trustees of the diocesan corporation. If they appeal it, they will still be trying to make that claim, and so any claim to control the parishes (which would be dependent on that earlier claim) could not be made unless and until they get Judge Ortbal’s decision reversed, and a ruling made in their favor on their counterclaims. The Diocese of Chicago would have no way to claim jurisdiction over DOQ parishes unless his decision is reversed, as well—and that is just not going to happen any time soon. So they do not argue that the parishes are subject to the possession and control of the national church, but only to their own local diocese; and for now, they have lost that argument.

As to standing, see my comment on the other Quincy thread.

[31] Posted by A. S. Haley on 9-11-2013 at 07:25 PM · [top]

Mr. Haley
As a possible strategy going forward:
1.  The DOQ and each parish should transfer title to new entities at fair market value taking back notes and mortgages at reasonable rates and customary terms.  If the Judge were to be reversed, the transferees should be protected and continue to own the properties and assets.
2.  For 815 to prevent the transfers, it should have to post one or more bonds pending appeal for substantial amounts, making the litigation that much more expensive for them to pursue,.
3. If the Judge’s decision is affirmed, the selling entities could merge with the transferees - no harm no foul. 
4.  If the Judge is reversed, the Anglican Diocese would still have all of its properties - it would only have to pay for them what they were worth at the time of the transfers.

[32] Posted by DaveG on 9-12-2013 at 10:10 AM · [top]

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