Saturday, December 17, 2011

ECUSA Denied Summary Judgment in Quincy: Court Finds a Triable Dispute Whether Church Is in Fact "Hierarchical"

In a ruling released yesterday afternoon by the Eighth Judicial Circuit Court in Adams County, Illinois, Judge Thomas J. Ortbal denied motions for summary judgment brought by ECUSA and its rump diocese of Quincy, which had intervened to join in ECUSA's counterclaim against certain clergy and laity who held property and funds in trust for the (now missionary) Diocese of Quincy in ACNA.

To my knowledge, this is the first summary judgment motion lost by ECUSA, or by any of its rump dioceses, in their attempts to seize the property of the four dioceses which have thus far realigned with the Anglican Province of the Southern Cone and with the Anglican Church in North America ("ACNA").

It is thus very much worth analyzing in detail. As explained at this background page, the realigning Diocese of Quincy had originally filed suit against ECUSA in Adams County Circuit Court when ECUSA, following its by now standard tactics, managed to persuade the Diocese's bank that it should freeze all the funds which the Diocese had on deposit there. This put a crimp in diocesan operations, and has forced the realigning Diocese to relegate itself to missionary status in ACNA. (Meanwhile, the rump diocese has fared no better, and is dependent on continuing subsidies voted by ECUSA's Executive Council to survive, so as to be able to participate in ECUSA's lawsuit. Talk about the hoary offense of champerty!)

The Episcopal Church counterclaimed against the Very Rev. Canon Edward A. Den Blaauwen of Christ Church Cathedral in Moline, and others serving as trustees of the Diocese's funds and property. It alleged that they were wrongfully withholding those funds and property from ECUSA and what it recognized as its "legitimate" (rump) diocese, i.e., the small minority who chose to remain affiliated with ECUSA. To satisfy ECUSA's pattern in these cases, the rump diocese then joined the litigation as a counterclaimant together with ECUSA against the diocesan trustees, and both together then filed motions for summary judgment on their respective counterclaims. They also filed for summary judgment against the original complaint filed by the ACNA Diocese.

The court's job on a motion for summary judgment is to decide whether or not there are any important facts which are in dispute. If there are none, then the court is free to apply the applicable law to the undisputed facts, and deliver a judgment in the case without the necessity of a trial. But if the court finds even one such "material" disputed fact, then it must deny the summary judgment, and allow the disputed fact(s) to go before a jury (or, in some instances, the judge sitting without a jury) to decide which version of the disputed facts is supported by the weight ("preponderance") of the evidence.

Thus the court on a motion for summary judgment cannot evaluate, or weigh, the credibility of the evidence offered by each side. That is the job of the jury (or judge sitting alone) at the trial, if there is one. Instead, the judge looks at what are claimed to be the "undisputed material facts", takes the evidence in support for each such fact at face value, and determines whether or not the opposing side has offered evidence which controverts the moving party's evidence, i.e., disputes it, and so turns that particular fact from a claimed "undisputed" one into a "disputed material fact."

The chief fact at issue on ECUSA's and its rump diocese's motions was whether or not ECUSA is a "hierarchical" church, i.e., a church in which, as the United States Supreme Court expressed it in its 1872 decision in Watson v. Jones, 80 U.S. (13 Wall.) 679, 722-723 (with italics added):
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.
Under the jurisprudence developed by the courts following Watson v. Jones in the ensuing 130 years, so many consequences favorable to ECUSA itself follow from its fitting within this described paradigm that the Church has spent literally millions and millions of dollars (including over $700,000 in "expert" fees paid to one such witness alone) trying to prove this single characteristic, in court after court. It is in the cases against realigning parishes that ECUSA has had each of its successes. (Shortly I will put up a post bringing current all of the litigation for which ECUSA has been responsible, or involved, for the last twelve years.)

Realigning dioceses, however, are a different kettle of fish. While many parishes have adopted articles or bylaws which expressly state that they are subordinate to the national and diocesan constitutions and canons, only a minority of dioceses have done so. ("Acceding" to the national constitution and canons does not mean subordinating oneself to them, any more than the United States of America, by acceding to Charter of the United Nations, places itself under the absolute governance of that body.)

The reason is simple: dioceses do not have to choose subordination to the national Church unless they voluntarily want to be subordinate. By law, they join the Church as equal members, and unless they have expressly surrendered their autonomy in so joining, they maintain that autonomy within the wider organization. The only requirement in ECUSA's Constitution (the version since 1982, but not any earlier versions) is that dioceses express their "unqualified accession" to it. But as just noted, "accession" (expressing consent), even if not qualified by any reservations withholding consent to certain provisions, is by no means the legal equivalent of "subordination" (voluntarily agreeing to be inferior). In ECUSA's fantasy world, however, "accession" is no different from "submission in perpetuity."

In the Quincy litigation, therefore, ECUSA and its rump diocese put on their best show, initially with affidavits from their most highly paid expert, Prof. R. Bruce Mullin, contending that ECUSA was "hierarchical as a matter of law" -- i.e., according to Prof. Mullin, there could be no honest factual dispute as to whether ECUSA was "hierarchical" in respect to its member dioceses. Subsequently, however, instead of relying solely upon their paid expert, ECUSA changed tactics and provided the judge with all the citations to the many cases involving departing parishes in which ECUSA had purportedly been "found" to be "hierarchical as a matter of law."

And that show went down in flames in Adams County, Illinois, thanks in no small part to the skilled efforts of the Diocese's counsel, as well as to the contributions by Prof. Jeremy Bonner of Pittsburgh, retained by the ACNA Diocese as an expert to counter Professor Mullin. In his ruling yesterday, Judge Ortbal summarized the competing testimonies as follows:
TEC and TEC Diocese argue that as a matter of law the court must find that TEC is conclusively a hierarchical institution and that Diocese of Quincy is subordinate and submits to its highest ecclesiastical authority. It further argues that the issues presented in this lawsuit are solely related to the polity and governance of the subordinate institutions, namely the Diocese of Quincy, which under the authorities and cases relied upon prohibit this court from considering.

Plaintiffs/Counterdefendants [the realigning parties] respond that there are disputed issues of fact regarding the hierarchical structure of TEC and in particular the relationship between the national church and the dioceses. They further contend that the real dispute does not involve ecclesiastical questions of doctrine or polity, but rather control of the property of the not-for-profit corporate entities (the Plaintiffs).
The judge then notes how reasonable minds could draw opposite conclusions from ECUSA's preferred version of the facts:
The documentary evidence relied upon by TEC and TEC Diocese is certainly supportive of their position. However, confirmation and proof of their construction and interpretation of the church Constitution and canons and its supremacy necessarily involves inferences to be drawn from the evidence. The inferences they ask the court to draw are reasonable.

Nevertheless, Plaintiffs/counterdefendants [ACNA parties], contend that contrary inferences can reasonably be drawn from the same undisputed documents and facts, as detailed in their briefs and oral argument. Viewing the evidence as it must, in the light most favorable to the [ACNA parties], the court finds that reasonable persons could draw different inferences from the undisputed facts. This is further the case considering, that to varying degrees, all of the parties have introduced and rely on historical documents and conduct between the national or general church and the diocese.
Once he concluded that reasonable minds could differ as to the inferences to be drawn from ECUSA's so-called "undisputed facts", the motions were lost for ECUSA and its rump diocese. For that is the test of the need for a jury trial: if reasonable minds could differ over the facts, then let each side present its best case to the jury, and allow the jury to resolve the differing versions, under appropriate instructions from the court. "Summary judgment" -- bypassing the jury in a case -- is appropriate only when there would be no point to convening a jury, because their "reasonable minds" (as the law supposes) could draw only one set of conclusions from the undisputed facts.

Next, Judge Ortbal disposed of ECUSA's somewhat arrogant attempt to dismiss or minimize the significance of the opposition's evidence, by showing how that argument should best be made to a jury, and not on summary judgment, where there can be no "weighing" of the evidence (I have added the closing italics for emphasis):
[ACNA parties] further argue that the affidavits submitted in their response raise issues of fact on this record. TEC and TEC Diocese dismissively counter that their affidavits represent merely the opinion of one man or the opinions of a minority, dissenting faction of church Bishops. No motions were filed directed to the admission of the affidavits. Essentially TEC and TEC Diocese ask the court to discount or give this evidence no weight in ruling on their motion. Weighing of evidence is generally improper in a summary judgment proceeding. (See, In re Estate of Alfaro (1998), 301 Ill.App.3d 500; Schulenburg v. Rexnord Inc. (1993), 254 Ill.App.3d 445). Without weighing this evidence, they do raise genuine issues of material fact as to the precise nature of the relationship between the diocese and the general or national church and hence the validity of the actions which are at the heart of this dispute.
Judge Ortbal then turned to the many cases from other jurisdictions cited by ECUSA to "prove" it was "hierarchical as a matter of law":
TEC and TEC's Diocese cite numerous cases, involving similar church, property disputes, which they assert mandate acceptance of their position in this case and granting of their motion for summary judgment. The court has reviewed the cases, but does not find it is bound by them. Further it finds the cases distinguishable on different levels and does not find them conclusively persuasive as to the record before it. For example, the vast majority of the cases involve disputes between local parishes and dioceses and/or the national church. These cases appear very fact driven and many involved concessions or stipulations as to matters which are disputed on this record. Many involve specific religious corporation and/or other state statutes not applicable in the present case.
Thus unlike the highest (and best-paid) justices in New York, Connecticut, New Jersey, Pennsylvania, Georgia, Colorado and California, a lower court judge in Illinois has no difficulty in piercing through ECUSA's film-flam and hyperbole, and actually reading through those many cases to see how they are based on different facts, and different statutes, from those involved in the case at bar. Too many justices (and judges, too, of lower courts) are easily swayed by a "parade of precedent", which presents a hallucinatory judicial bandwagon onto which they can metaphysically jump, and then take a sort of self-induced comfort from the fact that there are so many other justices and judges who are apparently in their company. This intellectual copout represents an abdication of the judicial function. It leads to all kinds of bad law, which is difficult to change after the rubber stamps have become permanent, published cases in the law books.

But Judge Ortbal demonstrates that he is a true judge of the law, able to see through ECUSA's enticements and parade of precedents, and to apply what Illinois law there is to this particular set of facts, following "neutral principles" (my italics are again added for emphasis):
Finally, even if ultimately it is determined that TEC is hierarchical and the Diocese of Quincy a subordinate, dependent constituency and whose leadership is an ecclesiastical issue to which this court must defer, that would not entirely resolve the dispute. The circumstance of the hierarchical structure of government of a church does not preclude a civil court decision respecting a property dispute even under Watson v. Jones (1872), 80 U.S.679, 20 L.Ed. 666, provided the decision can be made without intrusion into the ecclesiastical domain. (York v. First Presbyterian Church of Anna (1984), 130 Ill.App.3d 611).

The court finds that the "neutral principles of law" standard sanctioned by Jones v. Wolf (1979), 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775, has been adopted in Illinois and is applicable to the present case. (York v. First Presbyterian Church of Anna (1984), 130 Ill.App.3d 611; Aglikin v. Kovacheff (1987), 163 Ill.App.3d 426). TEC and TEC Diocese would have the court end the inquiry regarding this dispute by deferring to the ecclesiastical issue of the determination of the leadership of the diocese (assuming its subordinate status to the hierarchical General Convention). However, as in York, that would not necessarily resolve the question of whether the property, held by the Diocese and the Trustees in this case, was subject to a clear right to denominational appropriation by the national church. That appears to the court to be the very heart of the disputed factual issues presented by this record as described above, namely, who as between the competing parties is entitled to control and possession of the assets.

For the foregoing reasons summary judgment is inappropriate at this stage and on this record and is, therefore, denied.
Well done, Judge Ortbal, well done. Thank you for sticking to the law of summary judgments, and for not jumping on to ECUSA's phony bandwagon.

[UPDATE 12/17/2011: I am informed by hearsay that Judge Ortbal also awarded sanctions against ECUSA and in favor of the ACNA parties, in the form of reimbursement for attorneys' fees wasted in opposing the former's legal papers before they were, after several attempts, put into a proper form of which the court could take legal cognizance (and after they had run up the ACNA parties' legal costs in order to oppose Prof. Mullin, whose expert support they then decided to jettison in their final filings with the court). If this turns out to be correct, I shall report on the details here just as soon as I have confirming facts at hand.]


  1. Within this battle in Illinois, could an ultimate victory by the ACNA do much to divert or undermine the ECUSA's "parade of precedent"?

  2. Huge and if a good and true judgement finally comes from this, a devastating loss for TEc!

  3. It certainly could, Nickie Goomba -- at least in cases involving realigning dioceses. The cases involving parishes all turn more or less upon the Dennis Canon, which does not apply to the property of dioceses. However, both types of case turn upon whether or not ECUSA, as a claimed "hierarchical" church, can simply impose its will on its member dioceses and their parishes. So if the courts in Illinois rule that ECUSA is not hierarchical with respect to dioceses, there would be no way that ECUSA could still insist that it was "hierarchical" with respect to parishes -- and that would be huge.

  4. At long last, a jurist who is actually plainly interested in enforcing the law, rather than in attempting to avoid making a well reasoned decision. The plot has most decidedly thickened. The faithful dioceses may just have begun to succeed in turning the tide.

    Pax et bonum,
    Keith Töpfer

  5. Very good news for those of us in Quincy. Thanks for your excellent summary. I, too, have heard that ECUSA has been ordered to pay legal fees.

  6. Further, I'm told the judge released the hold on our bank accounts and trust funds.

  7. Excellent news, if correct.

    After all, I wonder just how many people would ever have contributed to these churches if they had known that the Church could change its beliefs, and then eject the people who built the churches and seize the parish funds?