Sunday, April 14, 2013

Trial in Quincy Commences

The long-anticipated trial in the case of Diocese of Quincy, et al. v. The Episcopal Church (USA) and the Domestic and Foreign Missionary Society, etc. began last week in Quincy, in the Circuit Court for Adams County, Illinois. The court had set aside three days for the testimony of the plaintiffs' expert historian witness, Dr. Jeremy Bonner, a former resident of Pittsburgh (but now resident once more in his native England). Judge Thomas Ortbal, who earlier had denied ECUSA's motion for summary judgment in the case on the primary claim that it was a "hierarchical" church, presided.

The main body of the trial will resume on April 22 in the same courtroom, and before the same judge. Plaintiffs will call the remainder of their witnesses, and then the defendants and counterclaimants will call theirs -- chiefly Bishops Buchanan and Franklin of ECUSA, and Dr. Robert Bruce Mullin, who is ECUSA's primary (and well-compensated) expert historian witness. (The latest information indicates that his total compensation for all the cases in which he has offered testimony on ECUSA's behalf is now in excess of $1 million.)

Diocesan Chancellor Tad Brenner, and his co-counsel Kent Schnack, both of Quincy, gave opening statements on behalf of their clients. (Mr. Brenner represents Bishop Alberto Morales of the Diocese of Quincy, whom ECUSA and its rump diocese sued as counterclaimants.) David Booth Beers gave the opening statement on behalf of ECUSA and the counterclaimants. Mary Kostel, the Presiding Bishop's special assistant counsel for litigation, cross-examined Dr. Bonner, while your Curmudgeon and Tad Brenner handled his direct and re-direct examination.

At issue in this first phase of the trial was the nature of the organization that is ECUSA, and whether anything in its polity, governing documents or structure prohibits a diocese from withdrawing its affiliation. Dr. Bonner testified for his first time as an expert witness, as well as for his first time ever in any court.

Because the court thus far has heard only Dr. Bonner's views, there is no basis as yet on which to make any predictions about outcome. Nevertheless, the following extract from the concluding portion of his direct examination will serve to indicate the substance of Dr. Bonner's principal opinions (this is the only portion for which a transcript is as yet available):

Q. You've also testified that a number of dioceses -- I believe 25 of them -- continue as full members of ECUSA despite not having appropriate accession clauses in their constitutions. Has General Convention ever tried to do anything about that situation?

A. Again, not that I've seen.

Q. What could it do, if it wanted?

A. It's debatable what it could do under the current non-supremacist arrangements.

Q. Did a recent incident happen with regard to the trial of a bishop where they tried to compel production of documents from a diocese?

A. Yes, it did.

Q. Did that diocese refuse?

A. Yes, it did.

Q. What were they -- What was the court able to do with regard to compelling production of those documents?

A. The court said that the Diocese of Los Angeles was an autonomous body and that they could not compel them to provide information, or words to that effect. ...

Q. So, Dr. Bonner, based on your research and the facts to which you've testified here, how you would characterize then the organization known as ECUSA?

A. An extremely decentralized association of state churches, for want of a better word.

Q. Or dioceses?

A. Or dioceses. I don't like that word even though it's the correct pronunciation.

Q. In your opinion, is the organization itself greater than any of its constituent parts?

A. No, not in the absence of a supremacy clause.

Q. What are the closest models to its form of organization in your opinion?

A. Again, we alluded to them earlier, but the situation -- the political situation under the Articles of Confederation is the most obvious example. The Anglican Consultative Council and the United Nations are [also] analogous but perhaps less obvious.

Q. Does the constitution of ECUSA represent, in your opinion, a form of agreement among its member dioceses?

A. Yes.

Q. Its fifth article governs how additional members will be allowed to join in that agreement?

A. It does.

Q. Is there any article or part of the same constitution which addresses the power of the diocese once admitted into ECUSA to withdraw from ECUSA?

A. No.

Q. How would a diocese accomplish such a withdrawal?

A. It would rescind its existing accession to the constitution and canons of the national church ...

Q. If they rescind it, though, they no longer consent to accede to the constitution and canons; is that correct?

A. Yes.

Q. So accession lasts for how long?

A. As long as consent is given.

Q. What did the Diocese of Quincy do when it amended its accession clause in 1993 with regard to indicating how long its consent would continue?

A. It declared that its continued involvement in the General Convention of the national church was subject to its continuing consent.

Q. What did the diocese of Quincy do with its accession clause in its constitution in 2008?

A. It repealed it. Well, I'm not sure what the correct political, legal language would be, but it revoked it.

Q. Making it what with regard to the polity of ECUSA?

A. An independent, a separate and autonomous entity outside ECUSA.

Q. No longer affiliated with ECUSA?

A. No longer affiliated with it.

MR. HALEY: Thank you, Dr. Bonner. No further questions.
And that's it, for now -- watch for further updates as the trial continues after next week.


  1. If the 25 dioceses referred to in the first question do not have appropriate accession clauses in their constitutions, are they truly members of ECUSA? If so, does that mean that proper accession clauses are optional? When these dioceses applied to join GC, their constitutions and canons had to be approved by GC. It looks like nobody bothered to read them first.

    David Katzakian

  2. I am SO delighted to learn that you are helping defend us! Thank you!!!!!

  3. David K, it's a very good question, and I don't think ECUSA has a very good answer. Only the Dioceses of Maryland and Virginia were part of the original nine founding dioceses, who as founders did not have to accede -- since they wrote and signed the original Constitution document. But the other dioceses really have no excuse -- and the fact that hundreds of years have gone by with nothing done about it puts the lie to the claim that ECUSA is a true "hierarchy."

  4. I've been thinking about the hierarchical issue lately. Is it really the end-all-and-be-all of the case? Certainly the RCC is a hierarchical church, and yet they just lost the property of the Polish parish St. Stanislaus in St. Louis. And didn't some of the original parishes that left to form the Polish National Catholic Church also keep their properties?

  5. You are right, Fr. Matkin -- it is only in ECUSA's trial-book that "hierarchy" is the "end-all-and-be-all of the case," as you put it. And that is because they are trying to win the Diocese-withdrawal cases on the strength of all the old parish-withdrawal victories, before the "neutral principles" approach began to make inroads.

    Under a true "neutral principles" approach, what matters is the actual language of the deeds and governing documents. Under that approach, properly applied, the RCC should ordinarily prevail because its canons use language of true supremacy, whereas ECUSA's do not. If the courts pay more attention to the actual language used, rather than to the recitations of case after older case that applied different law, ECUSA's string of victories should greatly trail off, and the claim to be "hierarchical" be seen for the irrelevant chimera that it is.

  6. Thanks for this post. Doctor Bonner's testimony should be helpful. It's always seemed to me that the phrase used by the national church to the effect that "only individuals may leave the [national] church" is too clever by half, thus raising a question as to whether the use of this phrase by the national church is intended to serve as a diversion from closer examination of legal issues relevant to cases in which the national church is involved. Without doubt, the national church realizes that a close examination of issues relevant to particular disaffected local episcopal entities could result in an application of neutral principles of law with a resultant outcome favorable to such local entities.

  7. Is there a record anywhere of how many parishes left TEC in the 1970s over WO and prayer book rewrites? Certainly, some of the Continuing parishes remained intact, and some kept (or purchased?) their property. Certainly, this was the impetus for the Denis canon. The world was a more cordial place in those days, few priests were deposed, and in some cases, Anglo Catholic priests were able to move back and forth between conservative TEC dioceses and "the Continuum" relatively freely.
    Although this was less than 40 years ago, this relatively recent history seems to be swept under the rug by the New Order of TEC, which is hellbent on depositions and property seizure.

    Prayers for the bishop, clergy and laity in Quincy.

  8. Who would have thought a career as a church historian could be so lucrative? I really messed up choosing medical school.

  9. Interesting AC.

    Does this mean that the Court has published this transcript before the remainder, or that on this occasion you are allowed to publish in advance?

    Is it normal to have transcripts for all Court Hearings?

    I have no idea how we do this in the UK.

  10. Matt Wardman, in the U.S. the transcripts are not published by the court; the lawyers contract for them directly with the court reporters,who give them to the attorneys as soon as they are able to complete them.

    In Quincy, we had three different reporters over two days. The part that I quoted was just from the first one to be made available.

  11. Interesting analogy to the states under the articles of confederation. The implication is that under the articles, states would have been allowed to secede. One argument which leaders in the confederate states made is that the constitution is a contract in which the parties retained authority to withdraw from the contract. Courts have ruled against this view numerous times. What is different between the articles and the constitution that allows states to leave under one but not under the other?

  12. Paul Brannan -- the analogy to the Articles of Confederation is about the fact that it was a union of individual sovereign and autonomous States, who for the most part retained their sovereignty, and did not cede any meaningful powers to the Congress. And like ECUSA, there was no provision for any executive or judicial branch, which made the legislative branch too weak to govern the whole.

    The Articles described the union as "perpetual" -- unlike ECUSA's Constitution, which used no such word. Even then, however, it was a matter of continuing consent, since they had no problem dissolving the Confederacy when they formed the United States. That body's Constitution -- again, unlike ECUSA's -- had all the necessary branches, plus a Supremacy Clause to establish where ultimate power lay.

    Finally, the analogy to the Articles holds when one considers how they treated Canada. They made provision for it -- should it decide to end its dependency on Britain -- to "accede" to the Articles and thereby become a co-sovereign member of the Confederacy. And that was exactly the way ECUSA's Constitution made provision for later dioceses to join the Church.