Friday, July 25, 2014

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 (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.



Monday, July 21, 2014

S. Carolina Day 10: When Will ECUSA Start to Play by the Rules?

Why are ECUSA and its attorneys so incapable of following the rules? Could it be that the lawlessness of 815, as aided and abetted by its attorneys, has now infected ECUSA's ability to present a civil case under the rules of court in South Carolina?

From first appearances, that would seem to be the only conclusion to draw from today's proceedings. First, let me use the account from the Episcopal Diocese's Press Office to provide the necessary background for what I shall go on to explain, and then I will put things into context:

DAY 10: DIOCESE OF SC v. THE EPISCOPAL CHURCH

TEC Attorney Admits TEC Constitution Does Not Prevent a Diocese From Leaving the Denomination

Judge Refuses to Consider Evidence about Whether TEC is Hierarchical


ST. GEORGE, SC, JULY 21, 2014 – An attorney for The Episcopal Church on Monday acknowledged that – despite TEC’s repeated claim that dioceses may not leave the denomination – there is nothing in the group’s constitution that specifically prohibits such a disassociation.

“It’s true it doesn’t say whether a diocese in the U.S. can or cannot [leave],” said Mary Kostel, attorney for TEC. “It’s arguably ambiguous.” [Ed. Note: Ms. Kostel could scarcely expect that such an outlandish remark on her part should be allowed to pass without editorial comment. What she is saying is that the absence of a specific prohibition in a governing document makes it somehow ambiguous as to whether or not the drafters still meant to prohibit the act they specifically did not prohibit. Example: The First Amendment does not contain any express language about a person's "freedom to disassociate from a group." So such a "right" must be "ambiguous" -- because it was not made express in the language of the Amendment -- and thus whether such a right actually exists is up to Congress to decide. Contrary to Ms. Kostel, what the courts have always held is that the First Amendment's "freedom to associate" necessarily embraces a corresponding "freedom to disassociate." The question of "ambiguity" in such a case does not even rise to the point of being debatable.]

The comment came during the 10th day of trial in suit to prevent TEC from seizing the property of the Diocese of South Carolina and its parishes. Much of the morning was spent in a discussion between attorneys and Judge Diane S. Goodstein about the admissibility of testimony by historian Walter Edgar, a professor at the University of South Carolina.

Though Edgar was not identified as an expert witness [my emphasis -- Ed.], TEC wanted him to testify about his expertise and provide opinions on the hierarchical nature of TEC and to demonstrate that it has authority over its dioceses and parishes. But Judge Goodstein denied that he would be allowed to.

This is the second time in this trial that TEC failed to follow the rules on the use of witnesses. “When he shifts from saying ‘this is what it says,’ to ‘this is what it means’ we’ve crossed into expert testimony,” she said.

Judge Goodstein acknowledged that she understands TEC’s attorneys want to introduce the idea of a hierarchical denomination in order to pave the way for an expected appeal. However, she made clear that the claim is irrelevant to the case under South Carolina law.

“Let me be very clear that in every way the defendants [TEC attorneys] have done everything within their ability to establish the hierarchal nature of this church. I accept that,” she said. “Our courts have said we will not enforce the hierarchical decisions. We’re a neutrality state.” [Ed. Note: The Judge is on solid ground here. The Supreme Court of Carolina, in the All Saints Waccamaw decision, came down clearly against deference to hierarchical tribunals (i.e., as in Watson v. Jones), and in favor of the more recent "neutral principles" standard of Jones v. Wolf. ECUSA's attempt to put South Carolina back into the earlier deference camp is a non-starter. As a trial court Judge, Judge Goodstein is required to follow the Supreme Court's precedents -- she has no discretion if those precedents are on point. ECUSA itself had a full opportunity to argue for its "deference" standard in the Waccamaw case -- and it lost that argument at the highest level. So how can it possibly hope to persuade Judge Goodstein to acquiesce in its attempt to disregard what the South Carolina Supreme Court decided -- in a case, I repeat, in which ECUSA had full opportunity to argue as it is trying to do now? One of the hallmarks of the law is that, unlike a popular audience, it does not listen to you when you keep trying to go back to the same losing argument over and over again.] The afternoon was spent with Edgar literally reading highlighted excerpts from numerous journals of the Diocese of South Carolina [see his report linked earlier], showing that the Diocese participated in TEC activities and adhered to its rules while the Diocese was a member of the denomination. The diocese has never disputed that fact.

In fact, during the morning discussion before Edgar even began his testimony, Diocese of South Carolina attorney Henrietta Golding said, “If you’re a member of a club or fraternity, you abide by the laws. …There’s no relevance that the Diocese followed the Constitution and Canons. They were together at that time. There’s no significance because a party to this action followed the rules. We were members then.”

Edgar also spent some time testifying about individual financial contributions TEC had sent to the diocese and its parishes through the years. While he never mentioned a total number, after reading page after page of excerpts, it was clear that the denomination had provided several thousands of dollars.

However, when asked in cross-examination by Alan Runyon, lead attorney for the Plaintiff, Dr. Edgar testified that he had not been asked to, nor did he attempt to, see how much money the diocese had voluntarily given to TEC during the same time TEC says the Diocese received grants and loans "It could even be 900 percent more than you testified TEC has given over the same period and you do not know because you did not ask?" Runyan said.
I am still shaking my head over this report. I find it difficult to believe that ECUSA, the ECSC, and their collective attorneys could think that they would be allowed to call another witness to the stand to give "expert" opinions after they had failed to disclose him as an expert witness to their opponents, or to Judge Goodstein.

Professor Walter Edgar is an acknowledged authority on South Carolina history. The report he prepared for "disclosure" to the plaintiffs is replete with passage after passage he has pulled from historical documents pertaining to the Diocese of South Carolina, in order to demonstrate how, in his view, the Diocese always took note of, and followed the Constitution and Canons of what was then the Protestant Episcopal Church in the United States of America, or PECUSA.

But at the end of his expert report, there comes this amazing passage:
I will use my expertise as a professional historian to give a proper analysis and interpretation of any of the voluminous documents that are involved in the factual history I have been asked to present. I will render an expert opinion whenever necessary to explain the context of the history of the Diocese as it relates to these matters.

It would be impossible for me to list each and every expert opinion I might be required to render because such will depend upon issues raised by the Court and counsel in search of correct interpretations of the documents I am asked to inspect.
In effect, this passage asks the court to extend the witness carte blanche to render any opinions he sees fit to give -- without the necessity of alerting the other side in advance, so as to allow them to prepare for his cross-examination.

Needless to say, those are not the rules. The purpose of expert discovery in the first place is to (a) pin down the other side's expert to specific, articulated opinions -- which may then be subjected as necessary to the cross-examination required to test their merit; and (b) to avoid any element of surprise at trial when the expert does testify.

Apparently ECUSA did not bother to disclose Prof. Edgar as an expert, and represented that he would simply catalog an entire litany of historical facts, taken from the various diocesan and other records, for the Court to consider. Well, he was allowed to do that -- but he was stopped when it came to expressing his opinions about those facts, because he had not previously disclosed just what those "opinions" would be.

I am accordingly in some doubt about ECUSA's game strategy. Were they counting on the plaintiffs' lawyers waiving, or being ignorant of, the relevant rules? That's hardly a winning strategy.

Did they count upon the good graces of the Judge to excuse their ineptness? Again, after they flouted her orders to disclose the names and opinions to be rendered by all experts, how could they reasonably expect any quarter from her corner?

The case for ECUSA and ECSC has now lost any momentum it ever had. Instead, the case flounders as counsel struggle to put on what evidence they can after they are required to follow the same rules that everyone else in South Carolina must.

This is not the way to impress a trial judge who expressed herself as eager to be guided through the historical documents, and who looked forward to hearing from qualified experts for that purpose (see the beginning of the account for Day 9 at the link just given). This is not to deny that Prof. Edgar might well have been just such a capable expert. Instead, however, the opinions he might have offered have gone to the trash heap of "what might have been."

All that remains, as the diocesan press release notes, is a litany of instances where the Diocese of South Carolina, while it was a member in good standing of the national Church, diligently followed all the then rules to be a member in good standing.

But evidence that one followed the rules when one was a member of the club is not evidence that one agreed to permanent membership in the club. The two issues are entirely different, and evidence of the one is no proof of the other. (Nor is the evidence that the national Church gave a few ten thousands to the Diocese over the years, while the Diocese itself gave millions back to the national Church. That is evidence only of the good relationship that once existed between them, but which is no more as a result of the national Church's (and its SC followers') ham-handed insistence on seeing Bishop Lawrence illegally removed from his position.

In other words, evidence that everyone abided by the rules becomes irrelevant once one side proclaims that it does not intend to follow them any longer.

[I note that the ECSC website now has its account of the day's proceedings up -- but one reads it in vain to find out just why Prof. Edgar was prevented from offering opinion testimony as to the documents he highlighted. This must be why ECUSA cannot learn its lessons: from the highest level at 815, on down to the laborers in the ECSC trenches, all talk about following laws and rules, about playing the game fair and square, falls on deaf ears. They are interested in one thing, and one thing only: can they jawbone, or bully the court into letting them run things the way they want? When they are held to following the rules, it's all the other side's fault for insisting on those rules -- and the Judge is being "partial" and "biased" because she decides to enforce them.

I almost never link to this site because of its many factual and legal distortions, all dressed up in rather spiteful bias, but today I shall make an exception. Steve Skardon has on his Website a remarkable first-person account of how yesterday went, viewed from the standpoint of a remnant Episcopalian who senses that things are not going well, and is struggling to understand why. If he could just see how ECUSA and its attorneys behave as though "the rules are made for other folk, not for us," he might -- in light of his own personal experience with Judge Goodstein which he recounts for the reader's benefit -- begin to get a glimmer of why that attitude does not sit well in her courtroom.

I will have more to say about this brazen strategy in a separate post. For now, let us be content to observe that it has profited ECUSA and its rump group nothing. ]

Wednesday, July 16, 2014

Huge Setback for ECUSA at South Carolina Trial -- Their Expert Concedes the Case

Yesterday, July 15, was the seventh day of the ongoing trial involving Bishop Lawrence's Episcopal Diocese of South Carolina and thirty-four of its parishes, as plaintiffs, seeking to quiet the title to their real and personal property against the claims made by ECUSA and its rump group, the "Episcopal Church in South Carolina" ("ECSC"). The defendants say that the Diocese and its parishes all forfeited their property when the Diocese voted to amend its governing documents so as to make it no longer a constituent member of ECUSA.

According to the official line promulgated by ECUSA, "people may leave, but dioceses may not." ECUSA claims to be made up of 110 dioceses (actually, now 109 following the merger of Quincy into the Diocese of Chicago), but four of them are not true dioceses -- they are the rump groups set up by 815 to act as plaintiffs (or, in some cases, when they cannot organize fast enough, as defendants and counterclaimants) in the lawsuits brought to recover the bank accounts and real properties that belonged to the dioceses and their member parishes that voted to withdraw. Those rump groups, although each newly organized, have never formally been admitted as proper "dioceses" into union with General Convention, as required by ECUSA's own Constitution.

And one sees right away why: if ECUSA were to go through the formalities necessary to admit them as new dioceses, it would give away its argument that "dioceses cannot leave." Instead it has the rump groups pretend to be the ongoing original dioceses, and then has General Convention recognize them as such and seat their deputies.

Thus far, only two trial courts -- one in Pittsburgh, and the other in Fresno, California -- have been taken in by this ruse. Judges in Texas and in Illinois, meanwhile, have not. (A ruling is expected any day now from the Illinois Court of Appeals which will affirm a lower court's judgment that the [now Anglican] Diocese of Quincy properly amended its own governing documents so as to remove itself from ECUSA.)

And now ECUSA may have shot itself in the foot in South Carolina, as well. Let's have the Press Office of the Episcopal Diocese tell us what happened on Day 7 of the trial, with ECUSA and ECSC putting on their portion of the case (I have added some explanatory notes, taken from my daily postings on the trial over at StandFirm):

DAY SEVEN: DIOCESE OF SC v. THE EPISCOPAL CHURCH 
TEC Witness Admits Diocesan Constitution, Canons Trump Those of the National Church

ST. GEORGE, SC, JULY 16, 2014 –An expert witness for The Episcopal Church (TEC) undermined claims by the denomination that its rules supersede those of local dioceses in the Diocese of SC, during day-long testimony in the trial to protect local diocesan and church property from seizure by TEC and its local subsidiary, The Episcopal Church in South Carolina (TECSC). 
Martin McWilliams, a law professor at the University of South Carolina, was called by TEC and TECSC to testify as an expert witness. 
McWilliams spent considerable time explaining his credentials as a corporate governance expert and said that because the Episcopal Diocese of South Carolina incorporated the constitutions and canons of the national church in its own corporate charter, it is governed by those constitutions and canons. [Ed. Note: I am unaware of any language in the Diocese of South Carolina's Constitution and Canons that ever purported to incorporate the national Constitution and Canons, as opposed to merely acceding (agreeing) to them. Perhaps that is all the witness intended to say: by acceding to the national Constitution and Canons, the Diocese agreed to go along with, and be subject to, them. But accession, as I noted earlier, involves consent, and consent is at the will of the one consenting: it may be withdrawn at any time, unless the consent is expressly stated to be "perpetual", "forever binding", or words to that effect. (The Articles of Confederation, for example, described the Union so formed as "perpetual" -- and that was one of the reasons why the Supreme Court held, following the Civil War, that States could not unilaterally withdraw from the United States.) Here, the accession by South Carolina was never made "binding", "perpetual", or anything similar -- it was simply an accession for as long as the Diocese should continue to consent to what ECUSA did.] 
However, on cross examination by the diocese’s attorneys, Alan Runyan and Henrietta Golding, he acknowledged that the diocese – while it may incorporate the national rules – is, in fact, governed by its own documents. 
He further acknowledged there is no rule in either the national canons and constitutions, nor in the diocese’s own constitutions and canons that prohibits the diocese from amending its corporate documents. [My emphasis -- Ed.]
He also said that the diocese was within its legal rights to amend its articles of incorporation. [Ed. Note: Well, that pretty much concedes the whole case. Under the ruling in the All Saints Waccamaw case, which is binding on Judge Goodstein, if the Diocese followed its own Constitution and procedures in amending its documents so as to make it no longer capable of being part of ECUSA, then the national Church has nothing to say about those amendments: it reserved in its own Constitution no power to restrict the ability of a diocese to amend its governing documents, and had no language requiring a "perpetual" union.] 
McWilliams was the only witness called.
And no wonder -- his testimony on cross-examination must have thrown the ECUSA attorneys into consternation. (There is no mention of any attempt to rehabilitate the witness by a re-direct examination.) The shock and surprise may also be seen by the fact that as of the time I am posting this (which is around 2:30 a.m. Eastern Daylight Time on July 17), no account of the day's proceedings has yet appeared on the ECSC website.

* * * *

[UPDATE 07/17/2014: The ECSC has now put up its account of Prof. McWilliams' testimony, and given the earlier one provided by the DSC as quoted above, it is a doozy. Notice how it completely omits any and all reference to the testimony on cross-examination which was so devastating to the Defendants' case:
Wednesday, July 16 (Day 7)

The law professor who helped to write South Carolina’s nonprofit corporation law told the court that changes to the governing documents of the Diocese of South Carolina that purported to remove the diocese from The Episcopal Church were beyond the legal powers of Mark Lawrence and other diocesan officials, and were not valid. [Ed. Note: Apparently he did so testify on direct, given the six-page summary of his opinions which the ECSC has referenced on its Website. However, this account of his direct testimony has to be qualified by the concessions he made on cross-examination. If, as the DSC reports, he admitted that the DSC "was within its legal rights to amend its articles of incorporation," then he contradicted his opinion of invalidity.]

Martin C. McWilliams Jr., Professor of Law at the University of South Carolina since 1983, testified on Wednesday as an expert witness for The Episcopal Church in South Carolina. He was Co-Reporter of the South Carolina Nonprofit Corporation Act of 1994 and co-author of the South Carolina Reporters’ comments to the act. [Ed. Note: Now we see why the ECSC called him as an expert witness.]

Prof. McWilliams had reviewed and analyzed the documents pertaining to the original 1973 corporate charter of “The Protestant Episcopal Church in the Diocese of South Carolina” as a nonprofit corporation. He also reviewed later documents that purported to withdraw the diocese from The Episcopal Church. His opinions are summarized in a six-page Expert Report submitted to the court.

On Wednesday, Prof. McWilliams’ testified that:

• The 1973 corporate charter is the “initial, seminal, fundamental, founding document” of the nonprofit corporation that is the diocese.

• The stated purpose of the corporation in the charter is “to continue the operation of an Episcopal Diocese under the Constitution and Canons of the Protestant Episcopal Church in the United States of America.” [Ed. Note: The stated purpose was as quoted, until the Charter was amended in 2012 -- see below.]

• By becoming a nonprofit corporation, the diocese came under the regulatory control of the Nonprofit Corporation Act, and at the same time incorporated by reference the Constitution and Canons of the national church.

• Under the Nonprofit Corporation Act, when state regulations come into conflict with the Constitution and Canons of the church [Ed. Note: this should read "of the church or of the diocese" -- see Prof. McWilliams' report, p. 2], the church laws trump. In the case of the diocese, that means that the Constitution and Canons effectively become neutral principles of corporate law.

• The language of the charter identifies “all” directors, managers, officers and trustees. The persons named were three individuals and their titles: “Bishop” (the Rt. Rev. Gray Temple) and two others identified as “Secretary” and “Treasurer.” By default, the “Bishop” is the designated director.

• No other directors are named in the charter. The designation goes with being a bishop, and passed from bishop to bishop. “It goes down to Bishop Lawrence, and I would argue, Bishop vonRosenberg, in an unbroken line of designated directors,” the professor said. [Ed. Note: This made the diocesan corporation the equivalent of what California and other states recognize as a "corporation sole" -- a special form of religious corporation in which the Bishop is the sole officer and director, and the incumbency passes from each bishop to his successor.]

• The charter can place limitations on the powers of the directors, and the Constitution and Canons became such a limit on the powers of the Bishop to amend the charter. “Any attempt by the Bishop to amend this charter in a way that’s inconsistent with the Constitution and Canons would be outside his powers,” he said. [Ed. Note: This opinion was a stretch when it was offered on direct. It succumbed completely to Prof. McWilliams' admissions on cross-examination -- but you won't read about that moment in this account from the ECSC.]

“The Bishop is, after all, the creature of the national church,” Prof. McWilliams said. “You can’t be a bishop unless the national church makes you a bishop.” He pointed out that although Mark Lawrence was elected at two different diocesan conventions, South Carolina was not permitted to consecrate him as its bishop until he met the requirements of the national church, such as receiving consents from other dioceses and bishops of The Episcopal Church. [Ed. Note: The Professor is a bit out of his league here -- or shall we say (using one of my favorite words), ultracrepidarian. If the bishop must first of all be elected by a diocese, how does that make him exclusively "the creature of the national church"? The truth is that a bishop is "created" for two purposes: (1) to be the chief priest and pastor for his diocese; and (2) to be his diocese's ecclesiastical representative to the rest of the denomination, and to the outer religious world. The first function recognizes his election by his own diocese; the second is given meaning by his endorsement by the whole church of which he is a part.]

Professor McWilliams also reviewed purported amendments to the corporate charter in 2010, signed by Mark Lawrence. “In this case, he has not signed as Bishop, he has signed as President. And it doesn’t say president of what.” New bylaws that were adopted in 2010 also were done without legal authority, and were inconsistent with church law. [Ed. Note: "President" is the title given to the presiding officer of both secular and religious corporations, as Prof. McWilliams well knows. If the document is an amendment to the corporate charter, it had jolly well be signed by the person who is the head of that organization, whether he signs as "president" or as "bishop." As for the amendments supposedly being "inconsistent with church law," see my earlier remarks. The Professor undercut that opinion with his admissions on cross.]

Attorneys for the breakaway group known in court as “the Plaintiff Diocese” interrupted with numerous objections throughout the day, aimed at keeping the professor’s findings from being presented. Many objections were overruled, however, and Prof. McWilliams testified on direct examination until about 3:05 p.m.

As cross-examination began, plaintiff’s attorney Henrietta Golding stood up and immediately began shouting at the professor seated in the witness chair, jabbing her finger in the air: “I think you need to tell the court where you go to church! …Or is this something you want to hide?” Counsel for the defense objected; Judge Goodstein did not intervene. “I don’t think she’s being impolite,” the judge said.

Prof. McWilliams attends St. Martin in the Fields Episcopal Church in Columbia. He later testified that he had wanted to state that fact at the beginning, but the question was inadvertently omitted during his initial testimony. Without the question being asked, he could not offer the information. [Ed. Note: This goes to the witness' bias. An expert is not supposed to have a bias, but nearly all of them do, because nearly all of them are being paid to give their opinions. By being a member of a parish in a diocese that has chosen to stay with ECUSA rather than follow Bishop Lawrence and his Diocese, the Professor would naturally have tended to form the opinions he did.]

At the conclusion of his testimony, court adjourned and will reconvene at 9:30 a.m. Thursday. Judge Goodstein indicated that the trial will need to extend into the week of July 21, as the defense has several more witnesses to present.
Remarkable, is it not? One needs to put the two accounts together to get the whole picture. As I say, it would appear that the good Professor's honesty forced him to admit that his opinions expressed on direct (and in his report) were not as strong as they may have seemed, and were subject to qualification. Nevertheless, the proper assessment of what actually happened will have to await my receiving a copy of the transcript of his full testimony. Then I shall probably have more to say. But for now, I have to conclude that the Professor conceded away on cross-examination the value of whatever he testified to on direct examination. And indeed, he may have conceded away ECUSA's whole case. Watch for ECUSA to call its in-house, million-dollar-expert Dr. Robert Bruce Mullin to try to save the day (hint: he won't, and can't).]

Does this mean that ECUSA's own million-dollar house expert, Prof. Robert Mullin, will be called in to try to rescue the case? He does not have the legal qualifications that Prof. McWilliams has -- but that does not deter him from offering his opinion that dioceses are bound permanently to the national Church, and may not leave on their own. However, he offers that view as an historian of the Church, and readily concedes that there is no language in the Constitution or Canons which says that a diocese may not withdraw once it has joined. It is all a matter of "interpretation", you see.

Nevertheless, any such opinion, even if Dr. Mullin is flown in to offer it, cannot stand beside that of a corporate law expert like Prof. McWilliams. The latter's is based on a neutral analysis of all of the governing documents -- exactly as the South Carolina courts are required to analyze them under the holding in All Saints Waccamaw.

So Day 7 could prove to have been the decisive day of this trial. Stay tuned for more as the trial progresses.