Breaking: Circuit Court rules on Quincy

UPDATED: Comment from Tobyn Leigh of the former Episcopal Diocese of Quincy (now part of the Diocese of Chicago). Leigh is Senior Warden of Grace Episcopal Church, Galesburg, IL, a congregation currently removed from its property and meeting in a Congregational Church building. She was a member of the Quincy steering committee to reorganize the diocese in 2009, and served on the Diocese of Quincy Standing Committee from April 2009 until Sept. 1, 2013, when we reunited with the Diocese of Chicago, and a Deputy to General Convention in 2009 and the chair of the deputation in 2012:

“The people of the former Diocese of Quincy, (now Chicago) are resilient. Although we are deeply disappointed in Judge Ortbal’s ruling, we move forward, keeping our eyes on the Lord and the work He has set for us to do. For we are convinced that nothing, certainly not a court ruling, will be able to separate us from the love of God, that is in Christ Jesus our Lord.”

The Eighth Judicial Circuit Court, Adams County, Illinois has ruled on the property dispute between the Episcopal Diocese of Quincy (TEC) and the Diocese of Quincy (DOQ). From the Conclusion:

Based upon the foregoing, the court finds in favor of DOQ on its complaint for declaratory relief and against TEC and EDQ on their counterclaim for declaratory relief. The court directs the attorneys for DOQ to submit a proposed declaratory judgment order within seven days of the date of this opinion and order.

The court has concluded that the supreme and ultimate authority of the General Convention over the property of the DOQ cannot be constitutionally determined.

From p. 15

The court finds, therefore, that the declaratory relief that TEC seeks and the deference to the actions of the General Convention, Presiding Bishop and Bishop Buchanan cannot be legally enforced in this action.

As stated above, the court finds that DOQ met its burden of proof, in its case in chief, that it has title and ownership of the accounts and deed titled in the Trustees. Reviewing its actions under neutral principals of law, DOQ established its withdrawal from association with TEC was compliant with the applicable corporate charter, bylaws, as amended, as well as the not for profit corporation laws.

.

Category : The Lead

Comment Policy
Our comment policy requires that you use your real name and provide an email address (your email will not be published). Comments that use non-PG rated language, include personal attacks, that are not provable as fact or that we deem in any way to to be counter to our mission of fostering respectful dialogue will not be posted

32 Comments
  1. Ronald Caldwell

    This is a very strict constructionist view of the Constitution and Canons of the Episcopal Church that denies any implied powers therein. It is certain to be appealed tout de suite.

  2. At this point, would it not be better to discuss dividing up the diocesan assets between the ACNA diocese and the Peoria Deanery, based on current ASA?

    Currently, the only beneficiary of the litigation is Goodwin Proctor. An appeal almost certainly guarantees a Pyrrhic victory for the winner.

  3. Eric Bonetti

    I remain deeply troubled by decisions that ignore the contract formed when parishes and dioceses enter TEC, in which they offer their unqualified accession to the constitution and canons of the church. This is both a serious legal and ethical issue, as failure to uphold this contract threatens our First Amendment right to structure the organization in the manner we wish.

  4. In the interests of full disclosure, there are actually two other beneficiaries of the present litigation, Dr. Mullin and myself.

    Eric,

    The solution to the problem you raise is embodied in the revised Constitution put forward in 1895, approved by the House of Bishops and (apparently) tabled by the House of Deputies, which would have declared the General Synod (a renamed General Convention) to be “the Supreme Legislative Authority in this Church” and stated that “no Diocese of Province shall by its legislation contravene this Constitution or any Canon of the General Convention enacted in conformity therewith.”

    It’s hard to see how such legislation could have been proposed if the General Convention already enjoyed supreme authority. As things stand, accession, whether qualified or unqualified, is revocable.

  5. tobias haller

    Dr. Bonner, it is not at all hard to see how unnecessary and redundant resolutions are proposed, as it happens regularly ever three years. Often such resolutions are rejected in committee and never reach more than a vote to dismiss from consideration.

    It may well be that the explicit clause you cite was considered not to be necessary; the documentary history of the foundation of the church, including the requirement that dioceses were bound to follow the C&C even if their deputations were not at the session, the language of the Oath of Conformity, the procedure for the ratification of the election of bishops, and so on, amply demonstrate both the central authority of the “General” Convention. (The word “general” alone is indicative of its authority.)

    I will side with Dr. Mullins in this, even if the court has, for the time being, decided otherwise. I imagine this will press on for a bit.

  6. Ronald Caldwell

    Mr. Bonner, I disagree. Accession is not unilaterally “revocable.” It is the inherent nature of a contract to bind all parties together under the same terms. No one party may alter the terms except by mutual agreement or under terms otherwise specified in the original document. The U.S. Constitution does not explicitly prohibit a state from seceding, nor does it include many other things which have become accepted. The U.S. has been able to function all these years because the Supreme Court time and again has ruled that the Constitution has implied powers. The new decision from the IL 8th is extreme strict constructionism which time and again uses conditional words as “explicit” and “express” as if every term must be spelled out very clearly in advance. The fact is that dioceses are under the Constitution and Canons of the Episcopal Church. After all Mark Lawrence became bishop of SC only by approval of TEC, and the Presiding Bishop suspended him and removed him from office under the same. If that is not hierarchical, nothing is.

  7. Eric Bonetti

    Dr. Bonner,

    I also take issue with the notion, prevalent throughout both the litigation and American culture, that a person’s word means nothing when it proves inconvenient. Call me old-fashioned, but I believe that a man’s (and woman’s) word is his/her honor. Unqualified accession means just that.

    Additionally, as I have said many times here and in other fora, the notion that the present occupants of a diocese or parish can cart off assets on a whim — assets that were paid for by generations of loyal Episcopalians — does violence to the express intent of those forebears and the system of self-governance we have adopted, as is our right under the First Amendment. And I know of very few clergy who are so old as to not have been ordained under the Dennis Canon. Thus, those involved knew what they were ascribing too when then took their ordination oaths.

  8. Fr. Haller,

    the requirement that dioceses were bound to follow the C&C even if their deputations were not at the session

    This is actually the provision that General Convention legislation does not need to be ratified by a diocese to be effective. That’s a different issue from whether or not national legislation has priority over everything else.

    the language of the Oath of Conformity

    The Declaration of Conformity is not an oath of submission. Jonathan Gray’s article in the Journal of Episcopal Church Canon Law Vol 1 (available online at http://www.vts.edu/canonlaw) is very illuminating on this point.

    the procedure for the ratification of the election of bishops

    A bishop is chosen for the Church as a whole, but a diocese can still function without one, as New York did after poor Bishop Onderdonk was deposed.

    Mr. Caldwell,

    The US Constitution has a Supremacy Clause; the TEC Constitution does not. James Duane and John Jay were involved in drafting both and they knew the implications of not adding a supremacy clause to the TEC Constitution.

    As noted above, even assuming that the deposition of Bishop Lawrence was entirely proper, it did not affect diocesan sovereignty.

    Mr. Bonetti,

    I take your point, but again that assumes (a) that the Declaration of Conformity is an oath of submission to the General Convention (when, in practice, the submission by a priest is to his or her diocesan bishop) and (b) that what is occurring in the seceding dioceses is analogous to the Ellen Cooke affair.

    Frankly, I find appeals to the intentions of past generations a futile exercise, whether made by conservatives or liberals. Unless an endowment is governed by specific instructions, it is up to whoever holds it currently to oversee its disposition. Anything else is a recipe for chaos.

    We now have conflicting court rulings as to the validity of diocesan withdrawal, so both sides have grounds for arguing that their interpretation is the correct one. I can appreciate that from your side it would be galling to reach a settlement, but I would ask again if it’s worth it to appeal?

  9. Ronald Caldwell

    Mr. Bonner, dioceses are not sovereign. Sovereignty rests in TEC as a whole, with authority vested in the C and C of TEC. A diocese must accede to the C and C of TEC. If dioceses were sovereign there would be no reason to have any central authority. We would have only local, independent entities each going its own way. In short, there would be no Episcopal Church.

  10. Joemonk1964

    Mr. Caldwell,

    The dioceses are most certainly sovereign, just as each individual state is sovereign.

    The GC was formed by the dioceses and therefore any sovereignty of GC is derived from the sovereignty of the diocese.

    Those are the simple facts, like them or not.

  11. J. W. McRee

    Mr. Caldwell, I agree with “joemonk 1964″ and Mr. Bonner. TEC’s constitution has no supremacy clause. Dioceses came together to form the Episcopal Church, not the other way around.

  12. Fr. Will McQueen

    One other thing to consider regarding diocesan supremacy or TEC hierarchical supremacy deals with how we are organized communally as well. When invitations are extended to the Lambeth Conferences, they are not extended at the provincial level, but rather at the diocesan level. The diocese is the highest level of hierarchy within TEC. That is clearly what the courts saw in SC, Ft. Worth, and now Quincy. Dioceses form first and assimilate into TEC, not the reverse as stated above by Mr. Monk and Mr. McRee.

  13. If dioceses were sovereign there would be no reason to have any central authority.

    Mr. Caldwell,

    Of course there’s reason for a national organization to exist, if only to articulate “mind of the Church” resolutions and plan missionary strategy.

    The Southern Baptists have no trouble with this cocnept.

  14. J. W. McRee

    Mr. Caldwell,

    The uncanonical deposition of Bishop Lawrence came after the Diocese disassociated from TEC, not before. Please refrain from spinning it otherwise.

  15. Ronald Caldwell

    Mr. Bonner: Even the Southern Baptist Convention, a relatively localized denomination, has its central sovereignty. Recently, a local SB church was expelled from the Convention because it dared to ordain women as deacons.

    Mr. McRee, all of us already know the line put out by the departing group.

  16. This is the first time I have heard someone suggest that the SBC didn’t have a congregationalist polity :)

    The issue isn’t whether an organization can choose who belongs to it; of course it can. In the case you cite, however, the Convention didn’t get to dissolve that church or depose its leaders and appoint persons more to its liking.

  17. Ann Fontaine

    The Episcopal Church IS hierarchical with General Convention and its Constitution and Canons as final word. So far as cases have gone to higher courts and out of local courts the court has also ruled in this way. When dioceses became part of the Episcopal Church they assented to this system. Bishops vow before God to uphold it. Here is a church history scholar’s paper that rebuts those who would argue that TEC is not. There is another paper out there is another document that goes into this even more deeply.

  18. tobias haller

    Dr. Bonner, you respond that “does not need to be ratified by a diocese to be effective. That’s a different issue from whether or not national legislation has priority…” Just what is “effective” if dioceses can ignore or nullify the actions of the General Convention?

    You observe that the Oath of Conformity is not “submission” — that is, it is not a personal submission to the personal authority of a bishop — but it is most definitely a commitment to abide by the laws of the church, which laws are determined ultimately by the General Convention.

    The absence of a “supremacy clause” from the Constitution of the Episcopal Church was not an oversight, but a decision that such a clause was not necessary in a church that had a “General” Convention. The word “General,” in common use at the time, implied control over the whole, as opposed to “local” or “sectional.” The OED helpfully notes its use for deliberative bodies, and provides an apposite citation from Geo Washington: “The States individually are omitting no occasion to intermeddle in matters which belong to the general government.” There are also cites from Jay and Jefferson that indicate their understanding of “general” in this way as concerning the whole. So the clause, “There shall be a General Convention of this Church…” is sufficient in and of itself to establish the supremacy of that body in all matters affecting the whole church.

    As to the history, I commend reading the fulsome memoirs of William White, who offers many helpful insights into the early years of the church, and what the founders thought they were doing when they created a body not “of” the states, but “in” the states — which is to say, not a mere assemblage of independent bodies, but a “union” (their word) bound together organically.

  19. the Rev. Marcus Kaiser, former Episcopalian

    Fr. Haller,

    From Bishop White’s essay, “The Case of the Episcopal Churches in the United States Considered,” one may find his thoughts on association. That document is here: http://anglicanhistory.org/usa/wwhite/case1782.html

    The conclusion of his opening chapter reads in part as follows:

    “All former jurisdiction over the churches being thus withdrawn, and the chain which held them together broken, it would seem, that their future continuance can be provided for only by voluntary associations for union and good government.”

    Yours in Christ,

    the Rev. Marcus Kaiser, Diocese of South Carolina

  20. tobias haller

    Fr. Kaiser, “voluntary” has to do with the creation of the “union” — once created, that union was intended, as in marriage, to be indissoluble.

    The “Case” is an interesting and valuable document; however, it is a discursive proposal from 1782, and does not fully reflect what actually took place. This is why I suggest reading White’s Memoirs or Perry’s history of the General Convention. Both provide a very clear description of what the founders were about in the formative years between 1784 and 1789 — which was the formation of a national church: not the loose confederation of “dioceses” (as if such even existed) but a union of “the church in the several states.”

  21. Fr. Haller,

    Bishop Perry is hardly an authority that you should want to invoke.

    In his The General Ecclesiastical Constitution of the American Church: Its History and Rationale (New York: Thomas Whittaker, 1891), Perry argued that “each Church in each independent State of the federal union, where organized agreeably to its own pleasure, deemed itself, and was regarded by each independent Church in the other States respectively, as an independent branch of the Catholic Church of Christ, lacking, indeed, a perfect organization while the Episcopate was wanting, but fully competent to seek that perfecting order and to organize for this purpose and for such other purposes as the present need seemed to require.” (99)

    He also maintained that Article II of the Constitution recognized “Diocesan or State independence” (246) and that by Article V of the Constitution, “our fathers proposed to secure the perpetuation of Diocesan independence.” (262) So Perry edited the early journals and still came away with what you perceive as an erroneous understanding of Episcopal Church polity.

    Normally, all this would simply be the stuff of dry academic debate and nobody except the academics would really care. Judge Ortbal himself said at one point during the trial that it had been nothing but opinions and to some extent he was right.

    I do think it’s a little hard though that the voices of bishops like Perry, Vail and Lawrence (Massachusetts not South Carolina) apparently count for nothing and the opinions of ecclesiastical lawyers like Burgwin and Hoffman count for everything, even though the latter never wrote any of their opinions at the behest of the General Convention (indeed, Hoffman’s attempt in 1862 to get enacted a Canon that would allow the Presiding Bishop to depose disloyal bishops and appoint loyalist Standing Committees went down in flames).

  22. Ronald Caldwell

    There seems to be much interest on the question of supremacy and hierarchy in TEC. I suggest we follow Ann’s advice (above) and consult the sources who are far better informed on this than are we.

    On the anti-TEC side: Mark McCall “Is the Episcopal Church Hierarchical?” Anglican Communion Institute, September 2008.

    On the pro-TEC side: Joan R. Gundersen, “A Response to Mark McCall’s ‘Is the Episcopal Church Hierarchical?'” htto://progressiveepiscopalians.org/html/mccall.pdf.

  23. Ronald Caldwell

    Mr. Bonner, thank you for pointing out these articles. I, for one, was not aware of them. I have looked at them and I recommend them. The McCall article, however, seems to be nothing new, a rehash of his ACI 2008 article.

    While I have not read the court proceedings, I assume the DOQ side presented at length in court the anti-TEC theories refuting hierarchy and central sovereignty. My guess is that their explanations are so long, complicated, obtuse, and convoluted as to present an impenetrable smoke screen to bewilder a judge who might throw up his hands in despair at ever untangling the mess. Perhaps this was the DOQ strategy all along.

  24. Joemonk1964

    “My guess is that their explanations are so long, complicated, obtuse, and convoluted as to present an impenetrable smoke screen to bewilder a judge who might throw up his hands in despair at ever untangling the mess.”

    You mean like this?

    “It is simply inconceivable that such a concept of a general convention was intended to include supremacy over the state churches when the largest of those churches was legally prohibited even from meeting and could not agree to the “least alteration whatever” to the government of their state-controlled church.”

    Or maybe this?

    “From Virginia, Dr. Griffith was present by permission. He could not sit as a delegate,

    because Virginia (a State which, through its whole ecclesiastical history since the

    Revolution, has always asserted its independent diocesan rights) had forbidden by law

    her clergy to interfere in making changes in the order, government, worship, or doctrine

    of the Church. Virginia asserted the entire independence of the Church within her limits

    of all control but her own.”

  25. tobias haller

    Dr. Bonner, I think the Perry citations make my point, though they do require some context and familiarity with the history, which the judge in question may not have had at hand. (One of the notable features of McCall’s work, for instance, is the tendency to anachronism.)

    To take but one example, the citation from p 99 refers to the pre-formative period: when the church was admittedly “lacking, indeed, a perfect organization while the Episcopate was wanting, but fully competent to seek that perfecting order and to organize for this purpose and for such other purposes as the present need seemed to require.” Obviously, this echoes the language of the Preface to the 1789 BCP, that with political independence of the States, the church was at liberty to organize itself in any manner it chose without the interference of any secular authority. The point is that this “liberty” or “independence” was used by the formative bodies to create a binding Constitution (and Canons) for Ecclesiastical Union, authorized to establish doctrine, discipline and worship for the whole church.

    One of the “fundamental principles” included the notion that this “general” body would not manage all affairs of the local church; so a degree of “independence” certainly remained in the exercise of functions best carried out at the local level, or governed by local law (such as the nature of vestries, to cite just one example). But it would be to little purpose to create a “general” entity with national scope, if its decisions could be nullified by those who had joined into union with it. One needs to parse the word “independence” with that in mind – it is a liberty in some matters, but clearly not in others, else what could the Oath of Conformity (for example) be referring to in terms of doctrine, discipline and worship, if not that which was held in common, and by common agreement, by the whole church?

    So I do not think Perry misunderstood the situation of the balance between local and national authority. To this day dioceses have a great deal of independence in matters not governed by the Constitution and Canons. But in all matters so governed, that independence is conditioned and limited.

  26. Fr. Haller,

    I tend to feel that there is a distinction between “independence” and what you are describing, but neither of us are probably going to convince the other of the contrary position.

    However, I would note several observations of more recent date:

    Committee on Amendments to the Constitution of the House of Deputies (1928):

    It was the Dioceses who created the General Convention and adopted the Prayer Book.

    Joint Commission on Aided Dioceses of the General Convention (1934):

    A Diocese is an ecclesiastical sovereign state and no action can be imposed upon it without its consent.

    Committee on Voting Procedures to the General Convention (1976):

    An indispensable ingredient of [the Compromise of 1789] was the concept of the House of Deputies as a confederation of dioceses and, not as in the revised national government structure, a body of representatives of the Church constituencies in the Diocese . . . The concept of confederation has persisted and survived repeated efforts to substitute a body representative of and proportional to the Church membership. It is the polity of the Church.

    I’m sure that these can be explained too, but such statements promulgated by – one assumes – well-informed members of General Convention fly in the face of what has maintained by the national church since the era of litigation began.

  27. Ronald Caldwell

    Mr. Bonner, I am curious to know what happened to the two committee reports and one Joint Commission report you mention. Were they brought up in a general convention? Were they voted on (if so what was the vote)? What were the arguments on both sides?

  28. tobias haller

    No, Dr. Bonner, citing the odd comment from a committee report will not likely convince me of the truth of such statements as, “It was the Dioceses who created the General Convention.” There were no “dioceses” in the formative period, and even on the eve of formation, only three bishops. I can point to reports of the House of Bishops Theology Committee that contain grave theological errors! In a free society, all sorts of things will make their way into print — or phosphor or LED.

    In any case, the point is about what those who formed PECUSA intended it to be, and what it became, not what “it” was before. This is shown in the documents to which they put their hand as a body. They agreed upon a “general ecclesiastical constitution” for the “government” of the church, to be ratified by the existing State conventions, requiring accession to the “articles of this union” for any later-developed churches in other states, and once ratified or acceded to, to be held as “fundamental” and “unalterable by… the Convention of the Church in any State” that ratified or acceded to it. (1785 first draft of the Constitution, preamble and Arts. VII and XI.)

    Once again to pick up the analogy of marriage — which must have been in the minds of those who so often used the word “union” — a couple is of course the “constituency” of which the marriage is made; but once made, the marriage is not easily dissolved (some would say it is indissoluble).

  29. Ronald Caldwell

    Mr. Bonner and Mr. Haller, I for one am profiting from your discussion. Could we back up a moment to the argument between Mark McCall and Joan Gundersen that occurred in 2008? It boiled down to the definition of one word “bound.” (“Is the Episcopal Church Hierarchical?” Mark McCall, Anglican Communion Institute, 2008; “A Response to Mark McCall’s ‘Is the Episcopal Church Hierarchical?'” Progressive Episcopalians of Pittsburgh, Sept. 17, 2008; and “Fatal Flaws: A Response to Dr. Joan Gundersen” Anglican Communion Institute, Sept. 19, 2008).

    Gundersen cited the GC statement of 1789 “the Church in such state shall nevertheless be bound by the acts of such Convention” as proof of hierarchy and the sovereignty of the General Convention over the separate parts. In his argument that TEC is not hierarchical and sovereignty rests in the individual dioceses, McCall disputed the meaning of the word “bound” in the Eighteenth Century to hold a loose sense, not an authoritative one. I say Gundersen has the side of common sense, then and now. Just wondering what new insights you two might give us on that point.

  30. tobias haller

    Mr Caldwell, a quick check of the OED reveals that “bound” is in use by the 15th century to mean “under obligation, of duty… (b) having entered into contract binding to service, as a ‘bound’ apprentice.”

    Frankly, McCall’s arguments fly in the face of reality, from 1785 on. Assertions of “sovereignty” or “independence” seem specious in the face of the fact that — apart from the very early period in which bishops were obtained more or less on suffrance — a “state” or a diocese can not obtain a bishop without the approval of the rest of the church’s episcopal and clerical and lay leadership. Can one imagine a circumstance in which a “sovereign” State of the the US would have to gain the approval of the governors in office and the legislatures of a majority of the states (or of Congress) in order to place their own elected governor into office? The Episcopal Church is more hierarchical than the Federal Government. It is not a confederation, but unitary — ultimately the General Convention is the final authority, and the Oath of Conformity “binds” all clergy to the doctrine, discipline and worship of the Church as determined by the General Convention; and diocesan conventions are not permitted to alter the General Constitution on their own, nor are they given a direct voice in its composition or amendment, save through their deputies to the General Convention — as the Constitution states at present, and as was proposed in 1785, ratified in 1789. Amendments are sent to the dioceses and their conventions for information, not approval, and ratified (or not) at the next session of the General Convention.

    Doubtless when the term “sovereign” was used in some contexts in relation to the dioceses, it was to affirm that some powers are in fact exercised locally — which I’ve mentioned above. But this is a very limited sort of “sovereignty” as it is of “independence.”

  31. JRG

    Jeremy, You need to check the actual journals of General Convention. In fact, John Jay was not present at the 1785 General Convention and arrived at the 1786 Convention on June 25 AFTER discussion of the constitution had concluded on June 24. He was rather busy at the time as Secretary of Foreign Affairs for the U.S. Thus whatever Jay’s views were, he was not the active writer of the TEC constitution you would like him to be.

    As for the clause in the 1789 constitution binding states (dioceses) to acts of General Convention whether present or not, that article has nothing to do with states ratifying acts of General Convention. Article 2 is about representation at General Convention. Here is the full part that talks about states being bound: ” If the Convention of any State should neglect or decline to appoint Clerical Deputies, or if they should neglect or decline to appoint Lay Deputies, or if any of those of either Order appointed should neglect to attend, or be prevented by sickness or any other accident, such State shall nevertheless be considered as duly represented by such Deputy or Deputies as may attend, whether lay or clerical. And if, through the neglect of the Convention of any of the Churches which shall have adopted, or may hereafter adopt this Constitution, no Deputies, either Lay or Clerical, should attend at any General Convention, the Church in such State shall nevertheless be bound by the acts of such Convention.” It is clear that what these sentences were intended to do is ensure that ABSENCE from General Convention did not provide an excuse to ignore acts of the General Convention. The underlying assumption is that General Convention’s actions bound EVERYONE in the church.

    JRG

Write a Reply or Comment

Your email address will not be published. Required fields are marked *