The Rt. Rev. John-David Schofield, 1938-2013: Requiescat in pace

October 29, 2013

Dear Brothers and Sisters in Christ,

It is with a heavy heart but a joyful spirit that I must share with you the passing of our beloved brother, the Rt. Rev. John-David Schofield. Bishop Schofield died peacefully at home sometime last night sitting in his favorite green chair and was found this morning by friends. My heart is heavy because I am selfish and desire my brother by my side, but also joyful because I know that at this moment he has heard the words of our Lord, "Well done good and faithful servant." I can picture +John-David sitting at the banquet table of our Lord with his sister and parents who have gone before him.

As I write this note to you all I am in Rome with my wife, but will be returning home as soon as humanly possible. Dean Carlos Raines has anointed Bp. Schofield and begun the sad task of making funeral arrangements. We have nothing specific to share with you at this moment, but will let you know as soon as possible what the arrangements are for Bp. Schofield's funeral.

God Bless you all!


Bishop Eric Menees

Oh God, whose mercies cannot be numbered: Accept our prayers on behalf of thy servant John-David, Bishop, and grant him an entrance into the land of light and joy, in the fellowship of thy saints; through Jesus Christ thy Son our Lord, who liveth and reigneth with thee and the Holy Spirit, one God, now and for ever. Amen.

[From here.]

[UPDATE 11/04/2013: The Rev. Canon Phil Ashey shares his reminiscences of Bishop Schofield.]

Quincy Funds Frozen Again; Defense Fund Needs Help

As I explained in this earlier post, the Anglican Diocese of Quincy was successful in obtaining a judgment that it had sole title to its bank accounts and real property. The Episcopal Diocese of Quincy had already merged into the Episcopal Diocese of Chicago by the time the judgment was entered, so the only adverse party left before the court was the Episcopal Church (USA), represented by the Presiding Bishop's Chancellor, David Booth Beers, and by her Special Assistant for Litigation, Mary Kostel, as well as by local counsel Thomas B. Ewing, of Lewistown. They filed a motion to stay the effect of the judgment, i.e., to keep the Diocese of Quincy's funds in National City Bank in Peoria frozen pending appeal.

It should be noted that ECUSA never went through the formal steps to attach the Diocese's funds. It never submitted a motion for prejudgment attachment, or a declaration of hardship and necessity, and it never posted any bond. Mr. Beers simply wrote a letter to National City Bank purporting to advise it of the Church's claim on the funds, and stating that the Church would "hold [National City Bank] accountable for any dispositions made ... of such funds ...". The Bank responded by putting a hold on all of Quincy's accounts pending an order of court.

Thus the Diocese of Quincy was forced to file a lawsuit against ECUSA in order to try to recover the use of its operating and trust funds. That was in January 2009 -- nearly five years ago, when there was approximately $2.3 million in National City Bank. By the time judgment was entered, the untouched funds had grown (due to accumulated interest and appreciation) to about $4.1 million.

After Judge Ortbal heard ECUSA's motion for a stay pending appeal, he ordered that the judgment be stayed as to all except the sum of $1.1 million, which he directed the Bank to release so that the Diocese could pay deferred expenses, including its local counsel's legal fees. However, ECUSA objected even to this amount being released, and took its case to the Fourth Appellate District Court of Appeals in Springfield, Illinois.

It filed an emergency request for stay with that Court, citing the need to act before Judge Ortbal's limited stay could be carried into effect. Notwithstanding that the appeal had not yet been docketed with that Court, and notwithstanding that there was no opportunity for the Diocese of Quincy to file any kind of response to ECUSA's request, the Court of Appeals obliged, and issued a blanket stay on all funds of the Diocese pending the outcome of the appeal.

The Diocese's attorneys filed a motion to reconsider with the Court of Appeals, and pointed out that they had not been given a chance to be heard; nor had the Court required ECUSA to post any kind of bond for the stay -- all standard requirements for the issuance of any stay. On October 24, the Court summarily denied the motion for reconsideration without holding a hearing.

Needless to say, these summary actions by a single motions judge on the Court of Appeals are troubling, due to the lack of due process and fair play which they evince. And the consequences to the Diocese of Quincy, which had looked forward to being able to pay some of its bills, are considerable. ECUSA has no lack of funds to pay its attorneys during the appeal, but Quincy does not enjoy that luxury. Ever since 2009, it has had to survive on current donations. And ever since 2009, its local attorneys have gone largely unpaid for all their work.

Now the Diocese has put out an appeal for contributions to its Defense Fund in order to provide for some payment for the ongoing work of the appeal. (Note: your Curmudgeon has donated all of his legal time and expenses to the Diocese, and does not stand to benefit in any manner from the Quincy Defense Fund.) If the reader of this post is in any position to help with a contribution to the fund, which is administered by the American Anglican Council, he or she may send a check made payable to that organization (with a memo: "Quincy Defense Fund") to:

Mark Gamage

3914 W Crimson Road

Dunlap, IL 61525

On behalf of the Diocese of Quincy and its hard-working attorneys, I thank all those who can help, and ask the rest of you for your ongoing understanding and support.

Finally - a Clear Explanation of What's Unfixable about Obamacare

For weeks now, I have been reading accounts from all corners of the Web about why the Obamacare Website is not functional: there were too many people attempting to use it all at once; there were 500 million lines of code, and they couldn't all be tested before rollout; the code produces a "denial of service attack" on the site itself, etc., etc. All the result of partial guesses, but not the whole truth.

Now from a comment left at a site called Marginal Revolution by a certain Dan Hanson (h/t: Powerline blog, who [following an incorrect link at the MR site, wrongly credits the comment to Dan "Weber"]), there emerges clarity about the fatal flaw behind Obamacare. For the site to be able to give the would-be purchaser of insurance accurate pricing information, it first has to connect with a series of government and private servers:

The real problems are with the back end of the software. When you try to get a quote for health insurance, the system has to connect to computers at the IRS, the VA, Medicaid/CHIP, various state agencies, Treasury, and HHS. They also have to connect to all the health plan carriers to get pre-subsidy pricing. All of these queries receive data that is then fed into the online calculator to give you a price. If any of these queries fails, the whole transaction fails.  

Most of these systems are old legacy systems with their own unique data formats. Some have been around since the 1960′s, and the people who wrote the code that runs on them are long gone. If one of these old crappy systems takes too long to respond, the transaction times out.

In other words, the Obamacare site crashes because it can't get timely responses from some of the much older computers serving government agencies, which use completely different code, data formats and processing. So fixing the Obamacare site will actually mean fixing the older computers? Others at the MR site suggest that one can incorporate "timeout" failures into the coding, requiring purchasers to check back in later, but Mr. Hanson says that will not solve the main problem:

When you even contemplate bringing an old legacy system into a large-scale web project, you should do load testing on that system as part of the feasibility process before you ever write a line of production code, because if those old servers can’t handle the load, your whole project is dead in the water if you are forced to rely on them. There are no easy fixes for the fact that a 30 year old mainframe can not handle thousands of simultaneous queries. And upgrading all the back-end systems is a bigger job than the web site itself. Some of those systems are still there because attempts to upgrade them failed in the past. Too much legacy software, too many other co-reliant systems, etc. So if they aren’t going to handle the job, you need a completely different design for your public portal.  

A lot of focus has been on the front-end code, because that’s the code that we can inspect, and it’s the code that lots of amateur web programmers are familiar with, so everyone’s got an opinion. And sure, it’s horribly written in many places. But in systems like this the problems that keep you up at night are almost always in the back-end integration. 

The root problem was horrific management. The end result is a system built incorrectly and shipped without doing the kind of testing that sound engineering practices call for. These aren’t ‘mistakes’, they are the result of gross negligence, ignorance, and the violation of engineering best practices at just about every step of the way...

"Horrific management" does not begin to describe the problems with Obamacare. They began with a bill that was passed solely by Democrats in Congress, in violation of the rules and without any opportunity to read what was in it, and that had been drafted mostly by the lobbyists for, among a myriad of special interests, Big Insurance and Big Pharmaceutical -- who wanted to ensure that their clients would gain, and not lose, from the politically popular (but financially very costly) changes being made in coverage requirements.

They continued with a hare-brained scheme to subsidize the huge increase in costs by forcing everyone to purchase the new insurance, so that premiums paid by the young and healthy would offset the premiums for those with pre-existing conditions and other health disabilities. Enforcement would also be supported by the fact the insurance companies would have to cancel millions of existing policies in order to replace them with ones having all the fillips and curlicues required by Obamacare.

Example: a 61-year-old single male has his perfectly adequate health insurance policy canceled because Obamacare requires that he purchase a new policy which includes maternity coverage.

The law is so bad that Obama has already riddled it with exemptions for political cronies -- including Congress itself -- and now is talking about extending the deadline for the mandate to purchase coverage. (Never mind that he has no power to do that under the current law, and never mind that if he does so, the insurance companies will find themselves in an unsustainable position.)

What more proof is needed that Big Government should be kept away from health care? But the liberals in Congress who brought about this disaster aren't interested in proofs. They are interested only in wielding more power. They never admit to being the cause of failure. Instead, the more the failures mount, the more they will clamor for Government simply to take it all over, and eliminate the need for private insurance of any kind.

This is why the 2014 Congressional elections will be critical. Currently, the liberals have the White House and a majority of the Senate, but not the House. My hope is that, due to systemic and structural faults in Obamacare that will be irreparable before those elections, the liberals will be given their walking papers by an increasingly infuriated electorate. Or is Obama already ahead of us, and will H.L. Mencken once again prove him to be right?

Where All Our Money Has Gone

Two headlines today explain how government is failing as we reach the point of unsustainable welfare levels (click to enlarge):

Under President Obama, the country has been run without a budget, and nearly five times as much has been spent on welfare than together on education, transportation and NASA.

And what have we got to show for all this largesse? Just this:

Americans who were recipients of means-tested government benefits in 2011 outnumbered year-round full-time workers, according to data released this month by the Census Bureau.

They also out-numbered the total population of the Philippines.

There were 108,592,000 people in the United States in the fourth quarter of 2011 who were recipients of one or more means-tested government benefit programs, the Census Bureau said in data released this week. Meanwhile, according to the Census Bureau, there were 101,716,000 people who worked full-time year round in 2011. That included both private-sector and government workers.

Read the rest of the story at CNS News.

With more people on the dole than there are working to pay taxes, our country has reached the point that President Grover Cleveland foresaw so long ago, when in a message vetoing a welfare bill from Congress he posed the classic rhetorical question:

"If the government supports the people, who will support the government?"

ECUSA Parties Move for Rehearing in Texas Supreme Court

Having been granted extensions of time within which to file, the Episcopal Church (USA), its Diocese of Northwest Texas and its pseudo-Diocese of Fort Worth (never having been formally admitted into union with General Convention) have now filed motions for a rehearing of their cases with the Texas Supreme Court. The motion in the Fort Worth case may be downloaded here; the motion in the Northwest Texas (Church of the Good Shepherd) case may be downloaded here.

Both motions have one ground in common: they argue that the Court's approval of the "neutral principles" approach to resolving church property disputes came as a surprise, and that applying that approach retroactively to their respective cases infringes upon the "free exercise" of their religion, in violation of the First Amendment.

In addition, the motion in the Fort Worth case asks the Court, which had reversed the entire judgment below, to reinstate that portion of it which had declared that the pseudo-diocese was entitled to the name "the Episcopal Diocese of Fort Worth." The motion in the Good Shepherd case asks the Court to withdraw the portions of the majority's opinion which provided guidelines for the trial court on remand -- including the observation that the Dennis Canon was ineffective to create an irrevocable trust under Texas law.

The main argument of the motions is problematic, to say the least. Just how does the Supreme Court's adoption of "neutral principles" infringe on the ability of the Episcopal Church (USA) to practice the Christian religion? (All right, never mind the catcalls -- we all know that what ECUSA practices these days is anything but the Christian religion -- see the remarks being made at the current GAFCON meeting in Nairobi.)

In other words, how does the Church's attempt to claim title to the property and bank accounts of departing parishes and dioceses comport with the tenets of the Christian faith? And how does the manner in which the Church claims to hold title to real and personal property amount to a form of Godly worship?

The motions do not spell out exactly how the Church's free exercise of its religion has been harmed by the Court's adoption of neutral principles, and given the difficulties just referenced, that is not a surprise. But there are other inconsistencies with the argument. For instance, the Church adopted its Dennis Canon in response to the United States Supreme Court's endorsement of neutral principles in the case of Jones v. Wolf in 1979. So how can it say with a straight face that ever since it has been relying on the older deference standard?

The failure of the briefs to specify just how the decision harms the Church's ability freely to exercise its religion is probably fatal to their chances of success. Making just the claim of "infringement" is not enough, but as usual, the Church simply wants its case to be presumed.

The subsidiary arguments are also not well taken. In the Fort Worth case, Judge Chupp applied the deference standard, not neutral principles, in ruling that the pseudo-Diocese was entitled to the name and all the assets of Bishop Iker's Diocese. Asking the Court to preserve part of that ruling, when the Court has announced that the deference standard is no longer applicable, makes no sense.

As for the Diocese of Northwest Texas, it has little to complain about in the minimal guidance offered by the Supreme Cour to the trial court following remand. The law of Texas is what it is with regard to revocable trusts, and the Court did not break any new ground in what it opined. Moreover, there were four dissenters, out of the nine total on the Court. Who can say that the same lineup will recur if and when the case ever comes back to it?

The Court will not grant the motions without first asking the prevailing parties to file a response. But it does not have to ask for any response before deciding to deny the motions outright. So stay tuned -- I will update this post as soon as the Court does anything.

[UPDATE 10/24/2013: Early this morning, the Court updated its dockets in the two cases linked above to reflect the fact that it has requested Bishop Iker and the Church of the Good Shepherd to file responses to the motions for rehearing on or before November 7, 2013. So there will be no disposition of the motions before then, but probably shortly afterward.]

Sic semper republicae

Our Constitution took effect on March 4, 1789; the first ten amendments (the Bill of Rights) followed in 1791.

It has taken only 224 years to stand the Constitution on its head.

The 1789 version of the Constitution called for three co-equal branches of government: executive, legislative, and judiciary. Each had a role to play in the government's functions, and there were an abundance of checks and balances to keep any one of them from dominating the others.

The 2013 version of the Constitution has the government now dominated by its executive branch. Like Rome's Senate during the Empire period, the legislative branch stands idly by, assembling now and then to add a rubber stamp of approval to whatever the President decides to do, or not to do -- to spend, or not to spend (such as on the National Parks, during a so-called shutdown). The judiciary defers to the legislature's follies, and lets the executive branch mostly do as it pleases.

What has driven this transformation? I will tell you, in just two words: paper money.

Our paper money is, as I explained in this earlier series of posts, not money, properly speaking. It is debt  -- once (long ago) a promise of redemption in silver, but now (take out a dollar bill and read what it says) just a promise to be redeemed by more paper: a "Federal Reserve Note," which you can exchange only for an identical one. What kind of promise is that? One paper dollar backs another, which backs another . . . it is, to paraphrase the old joke, "paper all the way down."

We are now, as of the first weekend since the government resumed full operations, $17+ trillion in debt, and counting. The first day of operations took care of all the backlog that built up during the months leading to the shutdown, and with the help of some Congressional earmarks, piled $328 billion on top of the $16.7 trillion that was already there. (In just one day, the Obama administration borrowed more than half as much as it had in the entire previous fiscal year.)

Take the rough numbers: $17 trillion equals $17 x 10¹². There are around 300 million men, women and children in the United States, or 3 x 10⁸ people. Divide the latter number into the former: the result is (with rounding, because we are dealing in rough numbers) $6 x 10⁴ -- that is sixty thousand dollars per person, for every last one of us, that we owe in debt.

But it's just paper money, right? And we can print as much of it as we need to keep going, right? It's not as though we had to have $17+ trillion in gold and silver standing behind it, right? -- because that would be more gold and silver than has ever been mined since the beginning of the world, including all that has been lost to dross and wastage over the years. (1,411,475 metric tons of silver @ $1 million per metric ton = $1.411 trillion; 166,500 metric tons of gold @ $59 million per metric ton = $9.8 trillion; $1.4 trillion plus $9.8 trillion = $11.2 trillion for all the gold and silver ever mined, while we owe $17+ trillion right now, and counting.)

Wrong. While we may be privileged to print paper money for the time being, the paper behind it is good only for so long as someone else will take it in exchange for goods or services. Washington D.C. seems to think that we can never run out of money, and look how right they have proved with regard to everything else -- starting with the cost of Obamacare.

So we lurch from debt ceiling to debt ceiling, ever raising it, and never, ever lowering it. But now, with the latest legislation, Congress abdicated its Constitutional responsibility (Art. I, sec. 8) "to pay the Debts ... of the United States."

Instead of imposing a new ceiling on debt, Congress authorized the Treasury to borrow whatever amount is necessary to keep the government operating through next February 7, using a formula that is based on current spending. This lets the President alone determine the debt ceiling, in effect, by what his administration spends between now and February. Congress can try to pass a bill to restrict spending in that period, but the President can veto it, and both Houses would need a two-thirds majority to block any such raise by overriding his veto. (When was the last time that two-thirds of both Houses ever agreed on anything?)

After February 7, the ceiling will kick in again at whatever limit has been reached by then, and Congress will once again need to authorize any future increase. The expectation is that Congress will cave, however, and permanently allow the President to increase the spending level thereafter as he deems fit, subject to its theoretical power to override any veto by a two-thirds vote in both Houses. And once that happens, Congress will have relinquished its last and best control over the purse strings.

Just one hundred years ago, in 1913, Congress abdicated its constitutionally-granted power to coin money (Art. I, sec. 8 again) to the Federal Reserve Bank. Since that time, the Fed has printed so much paper money that the value of the dollar in 1913 has steadily shrunk: even using the official (and rather dubitable) inflation rates, it would require $23.62 to be able to buy what you could purchase for just $1 in 1913.

Never in the history of the world has the paper money phenomenon turned out differently. It always results in a devaluation, and never the other way around. The trick of the Federal Reserve has been to stretch out this devaluation over a century, so that the people from one generation to the next barely notice it.

Another characteristic of the paper-money phenomenon, however, is the tendency for the rate of devaluation to increase as the currency nears the point of total collapse. And with our national debt having tripled in just the last twelve years, what do you think has been happening to the rate of devaluation? You guessed it -- and what is worse, the increase in the rate is intentional.

I know what the politicians are thinking -- they hope not to be around when the entire paper machine collapses. (Just as Ben Bernanke plans not to be around when his successor has to start taking away the punchbowl.) But what are we thinking, who send such people to Washington to act for us?

The country has not operated on a budget ever since Obama's second year in office. Question: how is it possible to bring deficit spending under control without a budget? Operating the government by "continuing resolution" is a recipe for continuing to operate at the same deficit as before (depending on tax revenues) -- except that now the President gets to raise the ceiling for cumulative deficits any time he wants to, so there is no downside to spending more and more.

In California, voters finally got fed up with the legislature's budget shenanigans. They passed a Constitutional amendment that suspends legislative salaries for every day that a (balanced - hah!) budget is not enacted. But getting such an amendment passed at the national level would be impossible, because (unlike California, with its power of initiative) it would take the legislators' cooperation to refer an amendment out to the States for passage. (The other method of amendment -- having two-thirds of the State legislatures propose a convention -- is even more impractical.)

Are we, then, locked in on the current course of destruction? Not entirely -- there still will be elections every two years, and if the voters applied themselves, all those who voted to continue business in Washington as usual could be turned out. Given the media's unflagging support for the spenders, however, it will take a lot more grass-roots effort than at any time ever before.

The Greeks had our number long, long ago: they had already observed that governments of the people, by the people and for the people end in ruin once they discover the ability to vote themselves other people's money. A strong figure on a white horse rides into the resulting chaos and disorder and promises to restore "good government" if handed sufficient power, and a tyranny then replaces the people's government.

Ah, well -- Rome's republic lasted for 465 years. But that was then, and this is now, with the effects of every transaction greatly accelerated. Ours will be lucky to see its 250th.

Judgment in Quincy; Chicago Denied Substitution; $1.1 Million Released [UPDATE: Now Frozen Again]

On October 9, 2013, Judge Thomas H. Ortbal of the Adams County Circuit Court entered a final judgment against ECUSA and its (no-longer-existent) "Diocese of Quincy". The judgment decrees and declares that the Anglican Diocese of Quincy is the sole owner of its real and personal property, including approximately $4 million in its bank accounts that has been frozen ever since ECUSA first wrote a letter to its bank in January 2009.

In order to keep the funds frozen, ECUSA had filed a motion to stay enforcement of the judgment pending its appeal to the Fourth District Court of Appeals. It also filed a motion to substitute, in place of its former "Diocese of Quincy", the Episcopal Diocese of Chicago, into which the former Diocese of Quincy merged ecclesiastically effective September 1.

In a separate order, also entered October 9, Judge Ortbal denied on technical grounds the motion to substitute in the Diocese of Chicago, and stayed the main judgment as to all but the real property and $1.1 million of the funds on deposit. He did not require any bond from either side.

The judgment as entered makes several key findings of fact:

12. There is no provision in TEC's Constitution or Canons requiring that a diocese receive approval prior to amending its own constitution or canons, nor is there anything in the provisions of TEC's Constitution which incorporates religious doctrine relating to the ownership of diocesan property which would require deference. 

13. There is no explicit provision in TEC's Constitution or Canons specifying the office or body having supremacy or ultimate authority over a diocese and there is no explicit or clearly delineated expression in TEC's governing documents that the General Convention is the ultimate authority or judicatory of TEC. TEC's own expert witness, Dr. Bruce Mullin, conceded that there is no such express provision in TEC's constitution. 

14 There is no express provision in TEC's Constitution or Canons prohibiting a diocese from withdrawing its association with TEC. 

15. The only express statement in TEC's Constitution or Canons defining the "Ecclesiastical Authority" of a diocese such as DOQ is either the Diocesan Bishop, or in the absence of a Bishop, the Standing Committee. At the time DOQ voted to disaffiliate, the Standing Committee of DOQ was the highest ecclesiastical authority of the Diocese.

In order to keep these findings from binding it (i.e., becoming res judicata, as attorneys put it) in any other case involving a withdrawing diocese, ECUSA is forced to appeal the judgment -- even if that were not its policy anyway. And that fact points up the weakness of ECUSA's strategy of litigating against each and every diocese that elects to withdraw: should any appellate court affirm a judgment with findings like those made by Judge Ortbal, and should the higher courts refuse to review that appellate court decision, then ECUSA will be subject to pleas of res judicata in any subsequent case involving a member diocese.

The findings as made by Judge Ortbal are independent of Illinois law; they involve only a straightforward reading of ECUSA's own Constitution and Canons. And perhaps that fact is why ECUSA saw fit to adopt this particular canon as part of its Title IV, Canon 19 (with my emphasis added):

Sec. 2. No member of the Church, whether lay or ordained, may seek to have the Constitution and Canons of the Church interpreted by a secular court, or resort to a secular court to address a dispute arising under the Constitution and Canons, or for any purpose of delay, hindrance, review or otherwise affecting any proceeding under this Title.

As we have seen from numerous posts on this blog, not even ECUSA's General Convention may issue an interpretation of its Canons that is binding on all member Dioceses. (Any such "binding interpretation" could not only be ignored with impunity by the individual dioceses, but it could be altered or reversed by any subsequent General Convention.)

Nor has General Convention ever specifically authorized the Presiding Bishop to go into the secular courts in violation of Canon IV.19.2. (All it has done over the years is to adopt a triennial budget number for "litigation to secure Church property", which number the Presiding Bishop routinely flouts by multiples of two and three.)

But now the Presiding Bishop's "go it alone" strategy has resulted in a civil court judgment against the organization which does threaten to bind ECUSA and all of its member dioceses, in a way that no resolution or canon adopted by General Convention ever would. And should that come to pass -- whether in Illinois (Quincy), California (San Joaquin), Texas (Fort Worth) or South Carolina, then such a judgment will make it easy for any subsequent diocese to leave ECUSA with impunity -- all due to the workings of res judicata in the secular law (the Latin means: "the matter having been [finally] adjudged"). A party which has once litigated an issue to finality in one court may not continue to litigate that same issue again and again in other courts.

The law of res judicata, it should be noted, does not work in reverse against other dioceses, because it binds only the specific parties to each proceeding. Thus if, say, the case in Pittsburgh had ever led to a final judgment saying that dioceses were not free to leave ECUSA, that holding could be cited only as non-binding precedent in another case involving a different diocese in a different State. But since ECUSA is a party to each and every diocesan lawsuit, it will be bound by the first result reached against it in any of the various lawsuits it is pursuing. And given that Quincy's is the first trial court judgment against it, the odds favor Illinois as being the State that will deliver the coup de grâce to Katharine Jefferts Schori's misguided scorch-and-burn policy of suing every departing entity, no matter which, and no matter what cost.

Whether or not the Diocese of Chicago may successfully replace the former Diocese of Quincy in the appeal that ECUSA will take will also most probably be decided by the Court of Appeals. ECUSA's simple claim to Judge Ortbal that the merger of the dioceses had been approved in accordance with the Constitution and Canons of the Church did not satisfy the secular requirements for a party to be substituted under Illinois law.

At common law, no unincorporated association could sue or be sued in court, because its membership was amorphous and undefined: it could change from day to day, and grow at one point and decline at another. Unlike a corporation, the association itself was not seen as a separate entity in its own right, because it existed only through its members and possessed no charter of organization from the State.

Most States have changed the common law by statute, and allow associations to sue and be sued in their own name. But when an association dissolves, the question arises as to what becomes of its property and assets. Absent a decision by the membership itself in the dissolution, the law will regard each former member as possessing a fractional part of each asset, with the result that it becomes virtually impossible to trace the title of that asset subsequent to dissolution.

And that is the conundrum faced by ECUSA in the Quincy lawsuit. Who is the successor, under Illinois secular law, to the property and rights formerly held by its Episcopal Diocese of Quincy? If it is the Episcopal Diocese of Chicago, just how did the transfer of those assets take place by operation of Illinois secular law, as opposed to ecclesiastical law (generally unenforceable in the secular courts)?

Your Curmudgeon is personally involved in these issues, so please take everything I say with a certain grain of salt. Only time will tell if my opinions are correct. But what we are seeing could be the beginnings of an unraveling of ECUSA's flawed litigation strategy.

[UPDATE 10/17/2013: Word was received today that ECUSA made an emergency request to the Fourth District Court of Appeals for a stay of Judge Ortbal's decision, and that the Court granted the request -- without opposition or argument. This means that even the $1.1 million released by Judge Ortbal will not be available to the Diocese until further action by the Court of Appeals. Your Curmudgeon is trying to learn further details, and will write more as they become available.]