The Importance of the Quincy Decision
Just how important is the ruling handed down yesterday in the Diocese of Quincy litigation? As a precedent binding on other courts—both in Illinois and other states—it is of little significance, because it is the opinion of a trial court, and therefore binding only on the parties to it.
But as a roadmap for other judges—both trial and appellate judges—the decision is of enormous importance. The reason is that most judges have very little time to devote to any one case. (Appellate judges by design have more time, but even they, it has been estimated, spend at most about four hours, on average, in considering any one case.)
In this instance, Judge Ortbal of the Adams County Circuit Court spent literally hundreds of hours presiding over pretrial proceedings and the trial itself, together with another hundred or more hours going patiently through the mountain of exhibits introduced at trial and the post-trial briefs of the various parties. Indeed, it is probably accurate to say that at this point, the Hon. Thomas J. Ortbal is the most knowledgeable judge in the entire United States on the history and polity of the Episcopal Church (USA).
His 21-page Findings, Opinion and Order reflect that fact. After hearing days of opinion testimony from various church expert witnesses, Judge Ortbal faced at the outset a crucial question: given that he had determined at an earlier stage in the case that the courts of Illinois applied neutral principles of law in resolving disputes over church property, just how much “deference” was the court required to show to ECUSA, as a putatively “hierarchical” church? The first three-and-a-half pages of his decision are devoted to drawing out, from earlier U.S. Supreme Court and Illinois opinions in church property cases, the guiding rules for resolving just that question.
The Anglican Diocese (“DOQ”) had argued that, under neutral principles, the court need not delve into ECUSA’s polity, or resolve just how “hierarchical” it was. They contended that the issue of ownership of the diocesan bank accounts—which had been frozen (upon ECUSA’s request to the bank, before the litigation began) pending the outcome of the dispute—could be decided simply by examining the papers showing who opened the accounts, and who was on the last operative signature cards.
ECUSA, however, made its now-standard “automatic ejector seat” argument. For ECUSA’s attorneys, Canon I.17.8 (as in effect at the time the diocesan synod voted to change its governing documents so as to be no longer a constituent member of ECUSA) provided an internal standard that automatically invalidated any vote to withdraw from the Church. That Canon read (and still reads):
Any person accepting any office in this Church shall well and faithfully perform the duties of that office in accordance with the Constitution and Canons of this Church and of the Diocese in which the office is being exercised.
A delegate (or “deputy”) to a diocesan synod who votes in favor of withdrawal, argued the ECUSA attorneys, is not “well and faithfully perform[ing] the duties of that office.” Indeed, the very act of voting against ECUSA and for withdrawal makes that delegate no longer fit or qualified to hold office in the Church. The disqualification is—so they argued—instantaneous under ECUSA’s governing polity, and thus the delegate’s vote for withdrawal cannot be counted in the total.
Obviously, the effect of that argument is to impose, sub silentio, a rule that no Diocese may ever vote to withdraw from the Church. The very attempt by its synod to do so is self-invalidating. Pretty clever argument, is it not? (Previously, it had succeeded in two California appellate cases, which I discussed in this post and this one.)
Until it ran into Judge Ortbal, that is. He noted, first of all, that Canon I.17.8 contains no automatic provision for removal of an office-holder who violates it; it simply expresses a standard of fiduciary performance. Then he carefully examined all of ECUSA’s governing documents and precedents to see if anything in them gave the officers at 815 Second Avenue in New York City the power and authority to reach out to a non-profit religious corporation, organized and operating under Illinois law, and remove its officers and directors without going through the procedures for their removal as provided in the Illinois statutes. And what he found was that the argument itself was self-defeating, at least in a secular court of law:
As TEC poses the principal issue before the court, however, the legality of the action of the Directors and Trustees of DOQ necessarily is intertwined with TEC’s polity and governance. It maintains that the very act of attempting to withdraw or withdrawing the diocese from TEC raises questions of doctrine and polity. In short, TEC claims that DOQ’s actions raise issues which a civil court is precluded from resolving, because they are dependent upon doctrine and polity.
This turns ECUSA’s argument against itself. The argument claimed that disloyal officers, directors and delegates were automatically removed from office due to ECUSA’s unique polity and principles of governance, and that such polity and principles were not open to re-examination by the secular courts. However, because there were no written provisions for such automatic removal in any of ECUSA’s governing documents, the very determination of whether ECUSA had such a polity, and principles of governance, itself would require the secular courts to engage in a searching inquiry into them which was impermissible under First Amendment’s requirement that the States and the federal government stay out of such matters.
And that is a pretty neat response to a too-clever argument.
After engaging in this initial skirmish, Judge Ortbal states (p. 4) that the threshold questions before him are three in number:
First, does the property dispute between DOQ and TEC involve a question of religious doctrine or polity, or can it be resolved purely upon application of neutral principles?
Second, if it does involve church polity and doctrine, is TEC clearly hierarchical, and is the DOQ a clearly subordinate constituent to that hierarchical structure?
Third, if TEC is hierarchical in character, what is the “highest court” that has ruled on the question of the property dispute, to which this court must defer?
There is that word “hierarchical” again. What is that doing in an opinion that is applying “neutral principles of law”? Why should it matter whether, under neutral principles of law, ECUSA is “hierarchical”?
The reason, again, is the First Amendment. Under certain decisions by the U.S. Supreme Court, if a church has a “hierarchical” structure, and if the “highest judicatory body” under that structure has already delivered a decision on a disputed church question, the secular civil courts cannot re-examine, or reverse, that decision, but must defer to it—even under neutral principles of law. And that is the back door by which questions of hierarchy still enter into neutral principles cases.
At issue in the Quincy case, states Judge Ortbal, is “who has title to or is entitled to control ... the bank account of the diocese and real estate which is titled in DOQ and used for [its] administrative offices ...” (that would be the Diocesan House, in Peoria, Illinois). And the question is: does the resolution of that issue involve any aspect of church governance or polity?
After noting the DOQ’s arguments that it does not—that the officers and directors of the entity which has title to and control over the bank account and Diocesan House may be determined simply by examining the corporate books, deeds and records—Judge Ortbal carefully notes (bottom of p. 6) that it is “arguable” that the issue “raises questions that are related to the subordinate or superior relationship between the parties, and therefore presents one of the rare instances where the governing documents cannot be read in a purely secular light, forcing the court to look at the issue of church polity.”
So ECUSA’s arguments to Judge Ortbal forced him to look into its polity. Will ECUSA be happy with the result of his examination? Let us see how carefully he does it.
He starts with the classic definition of a “hierarchical church” as given by the U.S. Supreme Court over 140 years ago in Watson v. Jones, 80 U.S. 679, 722-23 (1871):
[W]here the religious congregation or ecclesiastical body holding the property is but a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with a general and ultimate power of control more or less complete, in some supreme judicatory over the whole membership of that general organization.
Note those words “superior ecclesiastical tribunals” (my emphasis). They will be crucial in the outcome of Judge Ortbal’s analysis.
Then he notes the two sides’ differing contentions as to how this passage from Watson should be applied to the facts of this case (p. 7):
TEC asserts this definition sets forth a two part test, namely, (1) is the denomination structured in ascending tiers? and (2) do the higher tiers exercise authority over the lower tiers? The court believes DOQ more accurately counters that the Watson test involves a 3 part test, which TEC bears the burden of proving. As DOQ outlined it, in its written Response, TEC was required to establish the following:
1. DOQ was a subordinate member of TEC.
2. TEC has “superior ecclesiastical tribunals” and
3. Those tribunals have “general and ultimate power of control more or less complete, in some supreme judicatory over the whole membership.”
Judge Ortbal concedes that previous court decisions throughout the country have recognized that ECUSA has a three-tier structure “with General Convention at the top of the hierarchy.” But then he observes (pp. 7-8):
The court has reviewed the cases cited in TEC ‘s brief in support of this proposition. They certainly contain language supportive of TEC’s position. But the court notes a number of factors that render the holdings in these cases distinguishable from the present case. All of these cases involved disputes between a parish or congregation and a diocese of the Episcopal Church. DOQ does not dispute the hierarchical nature of that relationship and, as discussed below, it is undisputed that the bishop of a diocese is identified as highest ecclesiastical authority of a diocese. As DOQ notes in its reply brief, in virtually all of these cases the issue of hierarchical relationship as between a parish and the diocese or general church was uncontested. These distinctions lead the court to find them less persuasive as far as the circumstances and issues presented by this case.
Next, Judge Ortbal disposes of three supposed “precedents”, the citation of which showed ECUSA grasping, as it were, at straws. The first was the trial court’s initial decision on summary judgment in the San Joaquin case, which—as Judge Ortbal notes—was reversed by the Court of Appeal. He finds little to assist ECUSA in the decision reversing the trial court’s judgment, which the Court of Appeal found was based on the lower court’s improperly having ventured to resolve what in fact were non-justiciable “ecclesiastical determinations.”
The second decision was the trial court’s decision in the Fort Worth case, another one based on pure deference, and which was rendered moot by the Texas Supreme Court’s decision reported last week (which Judge Ortbal did not have before him). And the third case was the unreported decision of the appellate court in the Diocese of Pittsburgh case, which turned upon the interpretation of language in a stipulation between the parties. None of ECUSA’s cited cases, therefore, offered any assistance to Judge Ortbal. Nor did any of its citations to Illinois decisions—none of which involved the withdrawal of a diocese from the national church (pp. 9-10).
Next, Judge Ortbal turns to the various provisions of its Constitution which ECUSA cited to him as proof of General Convention’s “supreme authority” over the Church. (These are Articles 2, 3, 4, 5, 7 and 8.) As opposed to those, the DOQ cited Art. II, Sec. 3, limiting the exercise of authority by any bishop to his own diocese, and Canon IV.15, providing that the Standing Committee of a diocese serves as its Ecclesiastical Authority when there is no bishop, without any action required by General Convention.
On balance, Judge Ortbal finds these provisions do not establish unequivocally the authority of General Convention over its member dioceses. (See the quotation provided in my earlier article.)
He next turns to an Illinois precedent which he does find helpful (p. 13):
Grace Evangelical Lutheran Church v. Lutheran Church-Missouri Synod (1983), 118 Ill.App.3 151, cited and relied upon by both parties, provides relevant and instructive precedent. Grace did hold that a church property dispute is properly resolved by a court determining the polity of the church organization and then deferring to the authoritative determination of the conflict by the highest authority within that organization. This, as Grace further held, however, can be the solution only when the highest ecclesiastical authority is easily determined. TEC ‘s reliance on Grace merely begs the question. As Grace also noted a church organization may consist of both hierarchical and congregational aspects. That question is at the heart of the dispute between DOQ and TEC.
Very similar to the facts here, in Grace, the record consisted of voluminous conflicting evidence, which included not only church governing documents, minutes of meetings, as well as opinions from church officials and church historians. The court concluded that as a result of the voluminous, conflicting evidence, it could not constitutionally undertake the extensive inquiry and evaluation necessary to determine the polity of the Synod with the respect to doctrinal issues. Grace, 118 Ill.App.3d 151, 163). This court concludes that it is similarly constitutionally constrained.
He concludes this part of his analysis as follows:
As noted initially, it is debatable whether TEC’s constitution even incorporates religious concepts in provisions relating to the ownership of church property in a manner which would invoke the deference standard referenced in Jones. Regardless, based upon the principles in Maryland Churches and Grace, the court here cannot constitutionally determine the highest judicatory authority or the locus of control regarding the property dispute to which it would be required to defer.
The court finds, therefore, that the declaratory relief that TEC seeks and the deference to the actions of the General Convention, Presiding Bishop and Bishop Buchanan cannot be legally enforced in this action.
Having concluded that there is no determination by any “highest judicatory body” within ECUSA to which he is required to defer, Judge Ortbal then proceeds to analyze and decide the property issues based solely on the normal principles of corporate law and land titles applicable in Illinois. And here he finds not only that the DOQ met its burden of proof in its primary case for declaratory relief, but that ECUSA’s “ejector-seat” argument has no precedent under State law:
As stated above, the court finds that DOQ met its burden of proof, in its case in chief, that it has title and ownership of the accounts and deed titled in the Trustees. Reviewing its actions under neutral principals of law, DOQ established its withdrawal from association with TEC was compliant with the applicable corporate charter, bylaws, as amended, as well as the not for profit corporation laws.
... While there are circumstances in governmental law where an office is automatically rendered vacant by a particular disqualifying event, the court could not find any similar principles applicable in the corporate law context. The Not for Profit Corporation Act provides a procedure for removal of directors (805 ILS 105/108.35). That action has never taken place. TEC’s request that the court declare the action void appears to invite the court to improperly inject and rule upon TEC’s doctrine and discipline.
Then he addresses the final question presented by this record: the question of whether any kind of trust imposed upon the DOQ’s property would compel it to hand over its property to ECUSA’s designate, regardless of the lawfulness of its vote to withdraw from that body (pp. 16-20). He notes that the Church property canons relied upon by ECUSA apply, first, only to property that has been consecrated—none of which is involved here. And as for the Dennis Canon, its literal language applies only to the property of parishes, and not of dioceses. (Even ECUSA’s attorneys had to concede in their post-trial brief that diocesan property is only “implicitly included in [the Dennis Canon’s] reach.”)
Nor was ECUSA a party to the agency agreement between DOQ and National City Bank, the custodian of its funds; the agreement also contains no language referencing any kind of trust in favor of a third party, and ECUSA had no involvement in “any deposits, withdrawals, use or administration of the account” (p. 18).
Citing the opinion by the Georgia Supreme Court in the Christ Church Savannah case, ECUSA tried to argue that the long historical relationship between it and the DOQ established that the diocese’s property was subject to an “implied trust” in ECUSA’s favor, due to the various benefits derived by the diocese from its long association. But Judge Ortbal finds the dissent in that case to be more persuasive than the majority’s reasoning, again on First Amendment grounds:
This extensive historical investigation was, in part, the basis of the critical analysis by the dissent in Christ Church in Savannah, which this court frankly finds to be more persuasive. The majority reached its decision by admittedly reviewing the local and general church documents as they were created, amended, and followed over the course of the quarter millennium that Christ Church interacted with the parent denomination. As the dissent noted, and this court agrees, such reliance upon the historical narration and discussion of the local church documents to discern their relationship is fraught with danger of overstepping the First Amendment proscriptions against consideration of doctrinal issues.
And under Illinois law itself, Judge Ortbal found that there was insufficient evidence of the DOQ having “subordinated itself” to ECUSA so as to subject its own property to an implied trust. With that last step, Judge Ortbal concludes his decision as follows:
Based upon the foregoing, the court finds in favor of DOQ on its complaint for declaratory relief and against TEC and EDQ on their counterclaim for declaratory relief. The court directs the attorneys for DOQ to submit a proposed declaratory judgment order within seven days of the date of this opinion and order.
From this more detailed analysis, the true significance of this decision for future ECUSA property litigation—particularly in the cases of the Dioceses of San Joaquin, Fort Worth and South Carolina—is evident. The decision provides a step-by-step road map for penetrating the thicket of ECUSA’s “ecclesiastical deference” arguments, on which it continually hangs its hat—since it has no express language it can cite otherwise. (It was so confident of its approach that it called only two witnesses for its case in chief: Professor Mullin of GTS in New York—who admitted that ECUSA has paid him over $1 million in expert witness fees in all the cases in which he has testified to date—and the provisional bishop of the former rump diocese, the Rt. Rev. John Buchanan.)
It would indeed appear that the tide may be turning, and that State court judges now have the tools at hand with which to dispose of ECUSA’s hand-waving and many red herrings offered in the place of substantive court precedents and real evidentiary facts that can affect outcomes.
The recent absorption of the rump diocese into the Diocese of Chicago may present a thorny question for any planned appeal of Judge Ortbal’s decision. ECUSA may certainly appeal it, but what is left of the original counterclaimants in the case? There is no longer any Provisional Bishop or Standing Committee of the “Episcopal Diocese of Quincy”, and even the Dennis Canon could not be used to argue that property of the DOQ was really held in trust since 1979 for the benefit of the Diocese of Chicago. So stay tuned for further developments.
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