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QUINCY: Property trial goes to court

QUINCY: Property trial goes to court

By Michael Romkey
Special to Virtueonline
May 5, 2013

On Tuesday, April 30, 2013 I took the day off work and drove 150 miles to the Adams County Courthouse in Quincy, Ill. to observe the trial between the Anglican Diocese of Quincy and the Episcopal Church.

Much has been written about the disagreement between the two parties, and how the Anglican churches in western Illinois voted in 2008 to severe ties with the Episcopal Church in reaction to what it regarded as TEC's increasingly liberal interpretation of scripture. The trial will determine who owns the Anglican Diocese of Quincy's churches and endowments -- the local Anglicans or TEC.

Frustrated at the lack of news coverage -- the press is ignoring the trial -- and lack of news from church channels on either side of the issue, I decided to go see for myself.

Following are some notes on what I observed during a day in court.

* * *

The trial is taking place before Judge Thomas J. Ortbal, an associate circuit judge. Judge Ortbal, a 1975 graduate of Quincy College and a 1978 graduate of Marshall Law School, has been on the bench since 2001.

Judge Ortbal is a trim, balding man in his 50s with a neatly trimmed mustache and goatee. He sits at the bench with an alert and engaged manner, following proceedings intently. He seems to enjoy the intellectual experience of hearing the two sides debate sticky points of law that crop up during the trial.

The case is being heard in Courtroom 2D, the room where the Adams County Board meets. The courtroom is on the second floor at the end of the hall beside the law library, a quiet, out-of-the way part of the courthouse.

Quincy, "the Gem City," was once second-largest city in the state, prosperous during the 19th century, a hub for rail and riverboat transportation. Today, the city is part the state dubbed Forgottonia because of the lack of transportation, infrastructure and federal highway funding.

* * *

The lawyers sat at two tables facing the platform where the judge sits, along with the witness and court reporter on one side and a clerk and bailiff on the other.

To the judge's right was the Quincy legal team: Kent Schnack, from Schnack & Schnack, Quincy, and Tad Brenner, from Staff Brenner & Staff, Quincy. Brenner also serves as Quincy's chancellor, or diocesan lawyer. Also present for Qunicy was Alan Runyan, a lawyer from the Diocese of South Carolina. An assistant from one of the lawyers' firms sometimes helped with exhibits.

No Quincy clergy were present in court.

The TEC legal team sat to the judge's left. Acting as TEC's principal was David Booth Beers, chancellor to Episcopal Presiding Bishop Katharine Jefferts Schori. Assisting Beers with exhibits was another attorney, who did not play an active role during Tuesday's session. The third person at the TEC table, in a cleric's collar and purple bishop's shirt, was John Clark Buchanan, provisional bishop of the Episcopal Diocese of Quincy.

A second TEC bishop sat with the courtroom observers, William Franklin, the bishop of Western New York. Bishop Franklin, former dean of the Berkley Divinity School at Yale, has a Ph.D. in church history from Harvard. He was scheduled to testify at the trial, but Beers' announced Tuesday he had decided not to call Bishop Franklin. Also in court observing was Father Thomas Stone of Peoria, the canon to the ordinary for the Episcopal Diocese of Quincy.

* * *

Though he is not physically large, David Booth Beers' figure looms large in the cases between TEC and dioceses and churches that have left. About 5-foot-5, Beers appears to be somewhere in his 70s. He is left-handed. During recesses, he walks briskly down the hall, leaning purposefully forward at the waist with hands clasped behind.

Beers is of counsel with Goodwin Procter LLP, an 850-lawyer firm with offices in Washington, San Francisco, San Diego, New York City, Los Angeles, London, Hong Kong and elsewhere. His biography from the Goodwin Procter website:

"David Booth Beers is of counsel in the firm's Litigation Department. While principally engaged in environmental, toxic tort and other complex litigation, he regularly enjoys a broad range of corporate, non-profit and individual representations in the United States and abroad. As Chancellor to the Presiding Bishop of the Episcopal Church, Mr. Beers has an extensive non-profit practice that is both national and international in scope. ... Mr. Beers was a partner at Shea & Gardner from 1969 until its combination with Goodwin Procter in 2004. Before that, he was an associate at Ely, Duncan & Bennett, chiefly practicing in the natural resources and antitrust fields. Mr. Beers clerked in the Southern District of California in both San Diego and Los Angeles. ... Mr. Beers is a member of the Supreme Court, District of Columbia, California and Connecticut bars, as well as the bars of several other federal trial and appellate courts where he has tried or argued cases. ... Mr. Beers has been listed in every edition of The Best Lawyers in America."

* * *

TEC's critics say its legal strategy is to "litigate until they capitulate." Regardless of whether that is true, it was evident in court Tuesday that Beers is a fierce litigator. The same could be said about the Quincy lawyers, who showed no signs Beers intimidated them.

* * *

Tuesday's session was scheduled to begin at 8:45 but didn't commence until a little after 9. Members of both teams filtered into the courtroom with cups off coffee. The lawyers fiddled with cellphones, while others are not allowed to bring into the courthouse.

Boxes of files were carried or wheeled into the room and stacked behind either side with other boxes left in court overnight. Apparently FastFile cartons stuffed with folders are an indispensable courtroom accessory. Folders were piled up on desks to be ready for the day's arguments. Each side was also equipped with fat binders of tabbed material.

Nothing happened in court Tuesday without a flurry of paper amongst the lawyers, witness and judge. Each side must have put in a staggering number of hours collecting, collating and analyzing the material.

* * *

Tuesday's session started with a bang, with Brenner and Schnack vigorously objecting to new documents Beers' team introduced to court during Monday's session. The Quincy team was upset over what it believed was a discovery issue. Calling it "trial by ambush," Schnack complained that TEC had presented new documents without giving fair notice.

"This case has been going on for four years," Schnack said, going on to detail the various calls for discovery Quincy had filed and re-filed, calling for TEC's lawyers to present information they might present during trial.

Jumping up to respond, Beers countered that Quincy's initial call for documents was overly broad and had been narrowed by a previous judge.

The Quincy lawyers wanted exhibits 211-245 thrown out.

"They are offered in rebuttal," Beers said, and tossed his reading glasses on the table as if exasperated with the discussion. Rebuttal documents were not discoverable, he told the court.

Schnack said TEC's documents were submitted to rebut a witness who was now 4,000 miles away, a serious complication if Quincy needed to bring him back to the stand to address issues raised by TEC.

When Beers asked for time to make a written submission justifying the material in question, Judge Ortbal shook his head. The judge wanted to settle the matter then and there, while everybody was present.

"We will go through item by item," and determine what was admissible, Judge Ortbal said.

Beers asked for a 30-minute recess to pull together the details. At the end of the recess, Beers said he needed more time. Judge Ortbal later decided to break early for lunch, giving Beers another 90 minutes to prepare. When court resumes at 12:30 p.m., Beers was still pulling together his information.

Judge Ortbal decided to defer the issue until Wednesday and go on to hear testimony from TEC's witness.

* * *

The remainder of Tuesday morning is given to Beers questioning his expert witness, Prof. Bruce Mullin, Ph.D. Mullin teaches church history at General Theological Seminary in New York City, a seminary accredited by the Episcopal Church. He has a doctorate in church history from Yale.

Mullin's testimony centered on a central question: Is the Episcopal Church a hierarchal church? If it is, TEC's argument runs, individuals are free to leave, but the constituent organizational parts -- parishes or, in the case of this trial, a diocese -- may not.

The matter is important because upon it hinges the issue of who owns the churches, endowments and other property in Quincy -- the diocese and its local parishes, or TEC in trust for the continuing Episcopalians in this part of the state.

* * *

One question that does not come up in court Tuesday, and may or may not play a part in this trial though it has come up elsewhere, is how TEC has come to hold a trust interest in deeds to land purchased by individual churches, and buildings parishes have built and maintained without TEC's financial assistance. The assumption on TEC's part seems to be A) this is a hierarchal church, therefore B) you may leave, but the property stays.

The issue would be easier to decide if language in the TEC constitution explicitly stated that it is a hierarchal church with parish and diocese property held in trust for the national church. But it does not.

Mullin testified TEC's constitution lacks language about the national church's hierarchal authority simply because it was obvious to everybody that such was the case.

Quincy's lawyers took the opposite tack, arguing that there always has been disagreement over the degree to which the church is hierarchal, and that if the Episcopal Church was indeed hierarchal, it would say so in the foundational documents.

* * *

At Beers' questioning, Mullin presented testimony that various commentators during the 19th century said the Episcopal Church was hierarchal, and that dioceses did not have the authority to withdraw from their association with TEC.

Mullin discussed the colonial church, which was under the authority of the Church of England until the Revolution, when the American church severed its affiliation with the Britain, which required clergy to swear allegiance to the crown. In coming together after the Revolution, the dioceses forever ceded their independence, Mullin testified.

There was brief discussion about what happened in the church during the Civil War, when the Southern churches left to form their own organization.

Mullin said that none of the 19th century commentary endorsing the hierarchal view had received endorsement from the church. The principle was discussed, he said, but never formally adopted.

During Mullin's cross examination, it became apparent that what was implicit to some in the 19th century was not explicit to all.

* * *

There was a small but noticeable degree of disorder to Tuesday's sessions. Lawyers on both sides sometimes had trouble finding quite the right piece of paper. With so much information at hand, it was hardly surprising.

Beers' announcement that Bishop Franklin, who was sitting in the courtroom, now would not be called to testify came as a surprise to the Quincy lawyers. Brenner and his associates were flying in a witness from Canada to rebut Franklin's testimony. Since the witness was already in the air, it was too late to tell him to cancel. At the end of the day Brenner and Schnack were considering whether he would be called as a rebuttal witness in some other capacity.

During one recess Beers took a call on his cellphone in court. He apologized for the breach of etiquette, explaining that he was coordinating trial travel details. Judge Ortbal didn't say anything but gave Beers a level look that continued some moments.

* * *

Chatting during recess, Father Stone remarked that Mullin was a formidable witness he would not want to take on in court. As Runyan began his cross-examination of Mullin, it became evident that it would be equally uncomfortable to be in the witness chair with the South Carolina lawyer asking questions.

Runyan wore a black suit with a red power tie. He looked directly at the witness and often smiled as he asked detailed questions that tended to present lots of detailed information before asking Mullin whether he agreed or disagreed, or whether in his estimation a statement was true or false. His questioning tended to work around the edges of issues, gradually accumulating information that would lead to an overall conclusion. He worked to bring the witness along with him, following Mullin's answers by remarking, "All right," or "OK then," before going on with his next question. Runyan started off quizzing Mullin on how much money TEC had paid him for expert testimony. Was accurate, Runyan asked, to say that TEC had paid Mullin nearly $900,000 for testimony going back to 2007. Mullin said it was. Mullin said he has an arrangement to be paid $15,000 per month to even out the payments.

Runyan asked Mullin about his practice of annotating bills to keep track of on what he had spent research time. Runyan then put up a slide showing Mullin's billing for his research into the matter of Episcopal Church hierarchy. The billing was concentrated in two years after Mullin became TEC's expert witness. Runyan asked if the slide showing when Mullin's researched focused on hierarchy was accurate. Mullin told Runyan the slide looked about right.

Had Mullin published any peer-reviewed papers on Episcopal Church hierarchy?

Mullin told Runyan nothing he has written on the subject has been published yet.

Runyan asked if the audience for Mullin's research and writings on church hierarchy had been mainly lawyers and judges?

Mullin said yes, that was case.

Runyan knew Mullin's testimony and affidavit in detail, and in the course of Runyan's questioning, Mullin corrected, amended or qualified several points.

Runyan put up slides quoting constitutions from the Roman Catholic and a protestant church, each containing language explicitly stating those churches' hierarchal natures. He asked Mullin why such language wasn't in the Episcopal constitution.

Mullin said such language wasn't present because it was the accepted sense of things.

Runyan asked Mullin about the word "accession" and what it means.

Mullin said that when individual dioceses acceded to the greater Episcopal Church, they ceded the power to later decide to be independent. The dioceses had the power to act independently while forming a union, but once that association was made, it was permanent.

Runyon asked Mullin what TEC acceding to an international Anglican communion organization implied. It was a different kind of accession, Mullin said, one that did not imply TEC surrendering authority.

Runyan recounted Mullin testimony saying that his survey of 19th century commentary provided "an unequivocal and unanimous view of the hierarchical nature of the church and a lack of independence of its dioceses." With a smile, Runyan said that kind of statement was like waving a red flag in front of a lawyer. He then presented a series of slides from 19th century Episcopal sources that seemed to contradict Mullin.

"Furthermore, each diocese is absolutely independent," one said. Another from 1883 said "certain limited powers" were given to the national church, "leaving the respective dioceses independent as to all matters which concern dioceses only."

Mullin took issue with each statement for a variety of reasons, saying one didn't qualify as commentary, and that others were exaggerations or misrepresentations of what the author intended to say.

Testimony was expected to continue through the week with the possibility things will be prolonged for written and oral arguments over the discovery issues that came up Tuesday. After that, it will be up to Judge Ortbal to sift through evidence and write a decision. It does not appear it will be an easy case to call. The two sides are diametrically opposed in their positions, and each time the one side introduces an opinion represented to be factual, true and probative, the other side introduces evidence to contradict it or throw it into doubt.

As Judge Ortbal said at one point with certain resignation while ruling on an objection, "This trial has been nothing but opinions."

Michael Romkey is a newspaper editor in Moline, Ill. He and his family are members of Trinity Anglican Church, Rock Island

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