Tuesday, September 10, 2013

Decision in Quincy: ECUSA Has no Rule against Dioceses Withdrawing

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 at StandFirm, and will integrate that analysis with my other Quincy posts at this blog in due course. 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.

20 comments:

  1. Can TEC pass a quickie amendment to their constitution applying the Dennis Cannon to a diocese without admitting that is did not previously?

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  2. Does this mean that the hold on DOQ's endowment funds is lifted?

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  3. Tregonsee, there is no "quickie" process for amending ECUSA's Constitution. Amendments adopted by one General Convention have to be submitted to the dioceses for their review (and they could well shoot down any such amendment trying to tie up their property); then passed again in the exact same form -- no changes or amendments -- at the next General Convention, three years later. And, yes, you are right -- the passing of any such amendment would concede that there was no such application of the Canon earlier.

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  4. Carolyn, yes -- once the court signs a judgment based on its order (and that will be in a few weeks), the freeze on the DOQ bank account will be lifted. If ECUSA decides to appeal the judgment, it would have to post a bond to indemnify the DOQ for the loss of use of its funds pending the appeal.

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    1. Thank you for this article. When will we know if TEC appeals this (and I assume they will, or maybe they can't, because there is no 'Diocese' of Quincy anymore)?

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    2. Under Illinois rules, ECUSA will have thirty days following the entry of a final judgment within which to file its Notice of Appeal -- so by Thanksgiving next month, approximately (the judgment will be submitted to the court next week). On the consequences of the merger of the rump group calling itself "EDOQ" with the Diocese of Chicago, see my comment here.

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  5. Tregonsee,
    That is what got TEC into this mess in the first place- trying the *quickie* approach by trying to to a pass an amendment at the last minute on the last day of General Convention. Oddly whenever it is looked into, no one can find the actual date when it was passed. Was this canon ever passed? Many think that it was highly doubtful that it was ever passed at GC hence the lack of any real evidence for this *canon*.

    The judge has rightly realized that no where in TEC's constitution and canons is there anything about a diocese leaving. There are canons about how a diocese can be admitted. However in the case of SC, Diocese of SC was one of the dioceses that *formed* the national church now known as TECUSA and never had to be admitted. For well over a hundred years, the Diocese of SC had no accession clause- it did not need one as accession clauses are for *new* dioceses being admitted to TECUSA.

    SC Blu Cat lady

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    1. Alexi, Small Farmer in the City wanted to make a reply to your comment, but I have had to edit it because it violated the standards of dialogue here. And you may not feel the need to reply further, as I have responded to another of his comments below, where he tries to make the same irrelevant points, and the same unfounded assertions. At any rate, here is what I will allow of what SFiC wrote in reply to your comment:

      "Thankfully there are all sorts of appellate options open now that Judge Ortbal has made his ruling...I note, SC Blu Cat Lady, that irrespective of its need for an accession clause, TEC Diocese of South Carolina HAS required its bishops (for over a hundred years) to obtain confirmation of the majority of TEC bishops and Standing Committees to assume the episcopate. Even Mr. Lawrence couldn't spring his long-term plan to alienate TEC property in South Carolina until AFTER he received TEC affirmation...true? And wouldn't it be something if TEC bishops and the GC let Archbishop Justin know they refuse to recognize the orders of any clergy connected to the (so-called) Diocese of South Carolina irrespective of legal outcome? Ask folks in the Reformed Episcopal Church how things have gone with them since the 1870s...."

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    2. There are two claims SFiC makes which call for a reply:

      1. You speak of "TEC property in South Carolina" -- please show us any deeds you have, SFiC, of property in the State of South Carolina with TEC's name on them -- otherwise stop assuming facts which are not in evidence.

      2. You ask: "wouldn't it be something if TEC bishops and the GC let Archbishop Justin know they refuse to recognize the orders of any clergy connected to the (so-called) Diocese of South Carolina irrespective of legal outcome?"

      Actually, SFiC, you may be the one who wants to ask "Archbishop Justin" for the reason that, despite Bishop Lawrence's "deposition" by the good folk at ECUSA, the Archbishop saw fit to receive him and another "deposed" ECUSA bishop, the Most Rev. Robert Duncan, at Lambeth Palace. And I am informed that both +Lawrence and ++Duncan wore their purple for this visit, and that the ABC will license them to conduct services in the CoE -- so it doesn't sound to me as though what ECUSA claims about the orders of those it deposes carries any weight at Lambeth.

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  6. After reading the decision in DOQ v. TEC et al., one thing seems to stand out as encouraging with regard to the application of neutral principles of law in litigation concerning property disputes involving religious bodies: When litigation involves property rights of a diocese such as Quincy vis-a-vis TEC, several courts appear to have reached the understanding that it's simply not possibly to find that TEC is hierarchical without getting into consideration of matters which should be beyond a court's reach. TEC's leadership shouldn't feel too rosy about this understanding which appears to stand on solid legal ground.

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    1. Actually, a thoughtful jurist need only ask: "Has the Diocese been operating voluntarily in accordance with the Constitution and Canons of TEC?" "Has the Ecclesiastical Authority of the Diocese been selected and authorized in accordance with the Constitutions and Canons of TEC?" "Has the senior ecclesiastical officer (the Bishop) been raised to the episcopacy having received a majority of assents from Bishops and Standing Committees of Dioceses in good standing in the TEC?" If, as in the case of SC, San Joaquin, Pittsburgh, Fort Worth, and Quincy the answers are yes, guess what? The dioceses are in hierarchical relationship with the larger church (TEC) and they have no standing to remove themselves or alienate Diocesan property.

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    2. SFiC, you can make up your version of the law till the cows come home, but you did not sit through the trial and go through all the thousands of pages of exhibits. Your claim of "hierarchy" is simply irrelevant to a neutral principles analysis, which goes first by the actual language in the documents. And as the judge found, there is no language anywhere that gives GC or any other body in ECUSA the power to tell a diocese what to do. Yes, ECUSA as a whole has to approve the admission of a new bishop to its ranks, but notice how -- unlike the case of the truly hierarchical Catholic Church -- neither GC nor 815 has any power whatsoever to replace Bishop Lawrence upon his removal. Nor can they install their own Standing Committee, or vestries, or any other of the apparatuses of the typical diocese -- only the diocese itself may do that. And that is why the relationship between ECUSA and its dioceses is not "hierarchical" -- any more than is the relationship between the United Nations and its member countries.

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  7. Thanks be to God. Hallelujah! Hallelujah! God is protecting the vine of Quincy for His future work...and Reinhardt feels like he's sailing through the universe.

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  8. There is that sensation one must feel when he is in a free falling elevator, hurtling towards that unfortunate sudden stop at the bottom of the shaft.....when suddenly it slows and comes to a stop....the door opens and the riders are in the gourmet food and wine department, and people are shopping for Thanksgiving Feast goodies.

    El Gringo Viejo

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  9. Thank you, Alan, for your contributions in this case, and Congratulations to DOQ and their attorneys.
    THANKS BE TO GOD.

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  10. Because this decision, which I applaud, is the most recent unfavorable to TEC, I have a question re what might occur if SCOTUS might take up the Falls Church case and the world gets an update of sorts on Jones v. Wolf. I don't think it's unreasonable that the SC could find "hierarchical" needs some clarifying and remodeling and the result winds up with the unincorporated association known as TEC essentially doesn't met the hierarchical test above the diocesan level, consistent with some language in one of the Texas decision and, as I recall, also in the Quincy decision. Then the issue seems to bring up the future of the so-called Dennis Canon. Won't TEC try to get its liberal dioceses to impose local versions of "Dennis" in order to get around some fallout from losing a hierarchical denomination argument in a court? Where dioceses currently don't have Dennis-like provisions its appear parishes would prevail in a property dispute where there would be application of neutral principles of law. However, I don't rule out any efforts by TEC to try to put in place any device which would serve as some basis, however dubious, for arguing that parish x can't depart from TEC because of a putative trust imposed by a local version of "Dennis".

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  11. This has been gnawing at my innards a bit. This wording by Judge Ortbal is refreshingly unequivocal. What is the best opinion of our Shepherd that there is the remotest chance that these people...the Protestant Episcopal Church of America, et al... will actually appeal anything? Is there a particular need for our side to have any financial assistance?

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  12. williamp, we shall have to wait a while before we know whether the Supreme Court will accept The Falls Church case for review, and even longer to find out how they will eventually modify anything if they do take it for review. (All they would have to do is repudiate Justice Blackmun's dictum that a trust expressed in a national constitution would suffice.) Everything that could be said at this point would be speculation.

    Dioceses that try to "impose" their own versions of the Dennis Canon at the local level will still have to convince vestries that they should sign declarations of trust, placing their parish property into a permanent trust. That is a hard sell, particularly if the vestries feel the need to consult with their congregations first. It could lead to a lot more parishioners being pushed out -- which again will be counter-productive.

    El Gringo, yes, if ECUSA stays true to form, it will file an appeal. And yes, the Diocese of Quincy will need contributions to defend that appeal. Once we see what ECUSA is going to do, I shall post appropriate information as to how one can contribute.

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  13. Mr. Haley--I agree that it's advisable not to speculate, in particular re The Falls Church case, and that seems all the more to be true when ECUSA is involved, given the issue of what might be ECUSA's "trende du jour." However, the matter of ECUSA's interest in seeking protection with measures such as the "Dennis Canon" is, I believe, more of a reality than speculative. Given the potential of a changed legal view re the hierarchical status of ECUSA, I can readily see ECUSA seeking the separate adoption by an ECUSA diocese of a provision that would purport to recognize the existence of a trust of ecclesiastical property (including parish property) for the benefit of the diocese in the diocese's capacity as as an ECUSA diocese in good standing.

    I believe it's fair to say that ECUSA hasn't been classified by religious scholars as a conservative or orthodox denomination for a very long time, and my personal observation it's accurate to say that currently a large majority of ECUSA bishops, clergy and non-clerical membership wouldn't be characterized as essentially dissatisfied with recent ECUSA policies and actions. If my impression re the absence of much dissatisfaction is true, the "sell" of a diocesan-instituted trust--even if undertaken originally by 815, may not be that heavily resisted because a proposed measure of this nature would undoubtedly be characterized as something helpful to benefit the entire denomination. And,it appears to me that a diocesan trust would stand a much better chance of being upheld in a court of law in legal proceedings in the future than the present national-in-scope "Dennis canon", a provision which, obviously (and regrettably), hasn't had that rough a run in court.

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  14. On another question, what do we in Tennessee (a very conservative state) have to do to get our judges under control? I can't imagine that most Tennesseans could approve of how the Saint Andrew's case was handled and that their sympathies would be with the congregation rather than some organization acting on behalf of a national entity using an obscure 'cannon' (that no one can prove was passed legally) as 'proof' that a church can give away ownership of its property without any real consent. Where do we start?

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