Friday, June 20, 2014

Arguing the Quincy Case in Appellate Court

On Wednesday, June 18, your Curmudgeon was present to hear the oral arguments in ECUSA's appeal from the decision of Judge Thomas M. Ortbal last September, which held that the Diocese of Quincy had the ability to leave, and did leave, ECUSA in 2008. Consequently, Judge Ortbal ruled, neither the rump replacement diocese (now merged into the Diocese of Chicago) nor ECUSA itself had any claims to the real property or bank accounts of the (now) Anglican Diocese of Quincy. (The bank accounts, however, remain frozen at the request of ECUSA pending its appeal.)

The Presiding Bishop's Special Assistant for Property Litigation, Mary Kostel, argued the case for the appellant Episcopal Church; the Presiding Bishop's Chancellor, David Booth Beers, was also at her table. Quincy Chancellor Tad Brenner argued the case for the withdrawing diocese and its bishop (whom ECUSA sued personally, as it has in every such case), with Kent Schnack of Quincy assisting him.

The Fourth District Court of Appeals hears cases in a small but ornate third-floor courtroom in downtown Springfield. There were three justices on the panel: Justice Lisa Holder White, Justice M. Carol Pope, who presided for the panel, and Justice Thomas M. Harris, Jr. Apart from the attorneys, the justices and their clerk, the Rev. John R. Spencer of the Anglican Diocese and I were the only other persons present.

You may download the entire argument and listen to it from a link at this page on the Court's Website.
Mary Kostel began with the appellant's argument, which urged that courts must always defer to a "hierarchical" church like ECUSA. She did not get far before Justice White interrupted her with a question: "Do we have to resolve that [ecclesiastical] question [of whether a diocese may leave the Church] before we can resolve who is entitled to this property?"

Ms. Kostel reiterated her view that courts may not resolve that question, because it is purely ecclesiastical in character. Justice White then asked her (echoing Judge Ortbal's ruling) if it was not the case that there was no highest body in the Episcopal Church which had already ruled on whether a diocese may leave, so that there was no decision by the Church on that issue to which the civil courts would have to defer. Ms. Kostel claimed that to the contrary, there were two decisions before Quincy voted to leave in 2008 -- decisions by "the highest body in ECUSA that had been assigned by the General Convention to make these decisions" -- and she clarified that she meant by that the House of Bishops.

This point was typical of how Ms. Kostel's argument picked on elements of the record with which civil judges could not be expected to be familiar. General Convention, of course, has never "assigned" to the House of Bishops the jurisdiction to decide whether or not a Diocese may leave the Church. Judge Ortbal's minute and careful examination of the record had concluded that there was no judicatory body in ECUSA with any jurisdiction over that issue.

But Ms. Kostel was evidently referring to the House of Bishops' illegal depositions of two bishops -- the Rt. Rev. John-David Schofield of San Joaquin and the Rt. Rev. Robert Duncan of Pittsburgh, both of which had occurred before the Quincy vote. In Ms. Kostel's view, you see, voting to depose those bishops for leading their dioceses out of the Church was the same as deciding that a diocese may not leave the Church.

Never mind that the votes were the acts of the dioceses involved, and not of their respective bishops. Never mind also that under ECUSA's peculiarly insular view of holy orders, ECUSA first has to depose any cleric whom it proposes to replace -- and it was certainly necessary to replace Bishops Schofield and Duncan after their dioceses had left the Church, because those bishops left with their dioceses. All this becomes, in Ms. Kostel's ecclesiology, tantamount to a decision by the Church's "highest body" that dioceses may not leave the Church.

Presiding Justice Pope then jumped on Ms. Kostel, and forced her to admit that there was no language in ECUSA's Constitution or Canons that attempted to prohibit member dioceses from withdrawing. She went on to note that had General Convention simply adopted a Supremacy Clause (such as is in the United States Constitution), "we would not be here today." (General Convention, of course, expressly rejected such a Clause at its meeting in 1895, and the topic has not been raised since.)

Undeterred by the questioning, Ms. Kostel continued to advance her own interpretations of the record: she claimed, for instance, that "the accession made by parishes to a diocese is the same as the accession that a diocese makes when it joins the national Church." Again, the technical point may be correct -- "accede" is the word used in both cases. However, Ms. Kostel failed to note that in the vast number of reported cases where a diocese prevailed over a withdrawing parish, the parish bylaws contained language making it "perpetually subordinate" to the diocese, or words of similar import, and that no diocese has ever used any similar words of subordination upon acceding to ECUSA's Constitution.

The panel's questions to Mr. Brenner were relatively mild, and posed no problems for his presentation, which was a comprehensive rebuttal of ECUSA's chief case for deference. He stressed that under "neutral principles of law," which is the rule in Illinois, no deference of any kind is necessary -- the courts simply look at the language in the applicable governing documents, deeds and other instruments, and the state statutes. Under all of those measures, the Diocese of Quincy acted properly in amending its own Constitution so as to remove itself from membership in ECUSA.

You may download the argument from the link above and listen to its full length at your leisure. It makes for a dramatic and succinct synopsis of the differing views of the two sides on the legal issues at stake, and thus will let you know where things stand as the other diocesan cases move forward. (The trial in the South Carolina case starts July 7, and the judge in the Fort Worth case will hear oral arguments on summary judgment motions on December 17. The case in San Joaquin awaits a final decision from the trial judge before there will be an appeal.)

Look for a written decision from the Illinois Court of Appeals by September, or possibly a little earlier.


  1. Unless I'm missing something it seems that Ms Kostel based her entire argument on a denial of a trial court's finding of fact. If true, could she have been any more stupid; if not, what could she have hoped to achieve?

    Two of the justices called her on her strategy. That tells me that the justices aren't buying what she's selling, and that has to be good for Quincy.

    Did the justices really tip their hands, or could their questioning have been merely Devil's advocacy?

  2. I read it the same way, aec. The fact that she spent so much of her argument talking about deference when the trial court had found nothing to which to defer was not exactly the best way to get the court's attention.

  3. What is your take on the rump diocese of Fort Worth appeal to the US Supreme Court?

  4. I have not had time to write about it, Galletta, because of a death in the family. However, I note two things: they are trying to have the Court review a decision that is not final, which reduces their odds from, say, 1 in 300 to about 1 in 3000; and the decision turns mainly on the interpretation of Texas State law, about which the U.S. Supreme Court has nothing to say. So I do not view their chances of securing review as much greater than infinitesimal.