No. 2--06--0884 Filed: 9-26-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ WIL LI AM BRUSS a

nd MARI ANNE BRU SS, ) Appeal from the Circuit Court

) of Du Pa ge Co un ty. Plaintiff s-Appell ants, ) ) v. ) No. 06--MR--547 ) CHESTER JOHN PRZYBYLO, JOHN ) SUICH, B EVERLY S UICH, J OE VALDEZ, ) CARL SCHAEFFER, BI LL KLASKE, ) DANIEL MORENO, and DELORES ) DOOLEY, ) Honorab le ) Edward R. Duncan, Jr., Defend ants-App ellees. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE O'MAL LEY d elivere d the opini on of the c ourt: Plain tiffs, William and Marianne Bruss, appeal the order of the c ircuit court of Du Pag e County dismissing with p reju dice the ir compla int pursua

nt to two se

parate motions to di smiss brought by defe ndan ts, F athe r Che ster John Pr zy by lo, Joh n Suich, Be

verl y S uich , Joe V alde z, Carl Schaeffer, Bill Klaske, Daniel Moreno, and Delores Dooley , under sections 2--615 and

2--619 of the Code of Civil Pro cedure

(Code) ( 735 I LCS 5/2--615, 2--619 (West 2006)). Plaintiffs contend that the court erred in dismissingtheir complaint, because they

stated property c laims not subject to the ecclesiastical abstention doctrine (see Serbian Eastern Orthodox Diocese for the UnitedStates of America & Canada v. Milivojevich , 426 U.S. 6 96, 49 L. Ed. 2d 151, 96 S. Ct. 2372 (1976)No. 2--06--0884

-2-

(explaining the ecclesiastical abstention doctrine)). Plaintiffs also contend that the trial court abused its discre tion in dismi ssing the

complain t with pre judice. We

affirm. OnApril 18, 2 006, pla

inti ffs filed a three-count complaint for decla ratory a nd other relief againstdefendants. The following facts (take nas true for purposes of our review at this stage in the procee dings (see Abrams v. Watchtowe r Bible & Tract Society

of New York, Inc

. , 306 I ll. App. 3d 1006, 1011 (1999)) are drawn fr om plaintiffs' complaint. Defendants are the pastor ( Father Przyby lo) and members o f the boa

rd of dir ectors ( the rema ining de fendant s) of The

Shrine of Christ the King (Sh

rine), a church l ocated i

n Win fie ld, Illinois, in the diocese of Joliet. The Shrine was established

"to promote, pre serve a

nd extend the use of t

he Tride ntine L atin Mass of the Roman Catholic Church, according to the 1962 or earlier missal and

to fos ter th e accom panying kn owled ge and practices, doctrines, rights and customs at that time of the Roman Catholic Chur ch, and to establish and maintain an independent shrine to ac c omplish these objectives." We infer from the record that the Shrine, while practicing Roman Catholic rites, is an independent congrega

tion and not part of the Roman Catholic Church. Further, the Shrinewas constituted as an Illinois not-forprofit corpo ratio n and n ot as a religi ous corpo rati on. Plaintiffs attached to their complaint an unsigned copy

of the constitution and bylaws of the Shrine. Plaintiffs alleged that they were members of

the Shrine and ha d been membe rs of t he Shr ine's board of directors for many

years. Plaintiffs alleged that the individua l defend ants (except Father Przyby lo) held themselves out as members of the Shrine and members of the Shrine' s board of directors. Plaintiffs allege d that Fa ther Przy byl o purport s to be an ord ained Roma

n Catholic

priest who, beginning in 1996, has been employ ed by the Shrine as its pa stor and a s aRoman Catholic priest. Plaintiffs attached to the complaint a co py o f the employment contra ct between FatherNo. 2--06--0884

1 Faculti es, a term

of historical ecclesiastical law, is defined as"[a]n auth orization g

ranted t o

a perso n to d o what other wise w ould not b e allo wed." Bl ack's Law Dictionary 613 (7th ed. 1999). -3- Przy byl o and the Shrine. The recitals in the employ ment contract

provided that Father Przy bylo was seeking and the Sh

rine was offering employ ment as a Roman Catholic priest and pastor. The employment

contract authorized

Father Przyby

lo to provide daily mass, including Sunday s and other holy days of obligation, and to perform the usual and customary priestly duties for

the congregation. Plaintiffs alleged that Father Przy bylo was not

a member of any

Roman Catholic diocese or religious order recognized by the Roman Catholic Church. They further allege d that Fa

ther Przy byl o did notpossess faculties 1 from the Roman Catholic Church, and specifically from the Bishop of the Diocese of Joliet, to practice the rites the Shrine expected and employ ed him to practice. Plaintiffs al le ge d t ha t F at he r P rz ybyl o was named as a defendant in a civil action in Cook Co un ty, and they

attache d a copy

of the Coo k County

complain t as an exhi

b it . The Cook

County complaint allege d that Fa

ther Przy byl o had sexua

lly molested a

n anony mous minor, the plain

tiff in the Cook County action. Incount I of their complaint, plaintiffs sought to maintai

n a deriv ative action on behalf of the Shrine, notwithstanding the fact that the Shrine was not a name d party, either plaintiff or defe ndant, to th e ac ti on. In co unt I, plaintiffs sought the termination or rescission of the employ ment agreement between Father Przyby

lo and the Shrine. The thrust of count I is tha

t Father Przyby

lo never possessed the quali fication s or abilit y to fulfill the terms of the employment ag reement. Plaintiffs sought the disgor

gement of all co mpensation and benefits received by Father Przyby lo in addition to his termination.No. 2--06--0884

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Incount I I of t heir complaint, plaintiffs sought a declaration that the January 2006 election of the Shrine's board of directors was invalid. The thrust of c ount II ap p ears to be that Father Przy byl o improperly influence d, manipulated, and controlled access to voting membership among the persons of the congrega tion for the purpose of ultimately influe ncing and controlling

who would be electe d to the boa

rd of dir ecto rs of the Shrine. In particular, plaintiffs a lleged that the 2006 elect ion of membe rs of the board of directors of the Shrine was invalid bec ause too many of the voters were no t qualif

iedto be voting members of the Shrine under the Shrine's c onstitution and byl aws. Plaintiffs alleged that, as a result of the improper 2006 elec tion, the board of

directors of the Shrine is neither prope rly constituted nor elected. Plaintiffs sought the following relief: (1) a review of the membership rolls of the Shrine culminating in a determination of the qualifica tions of the voting members of the Shrine; (2) a declara tion that the January 2006 and subseque nt elections

are invalid; ( 3) the ap

pointment o f a temporary receiv er to ove

rse e and sec ure the Sh

rine's assets until valid elections can be held pro pe rly; (4) the holding of a proper election allowing the participation

of all individuals who would have qualified to vote in an election in 1995 or a

ny t ime thereafter; and (5) the removal of Father Przyby lo from the board of directors and his ejection from the rec tory

to allow the Shrine t

o hire a new and qu

alified priest. Incount III, plaintiffs sought the suspension of Fa ther Przyby

lo from his duties with the Shrine. Plaintiff

s' requ est for su spension i s based on the fact th at a complai nt alleging sexual improprieties was filed against Father Przy bylo. Plaintiffs alleged

that it is the practice of the Roman Catholic Church to

suspend its clergy

while charges likethose in the Cook County action are be ing investigated. Plaintiffs alleged th at the remaining defendants brea ched their fiduciary

duties as members of

the Shrine's board

by failing to suspend F ather Przyby lo when the Cook County actionNo. 2--06--0884

-5-

was brought to their attention. As relief, plaintiffs requested that Father Przyby

lo be suspended from his duties pending the Shrine's investigat ion and re solution of the Cook County action. Plaintiffs also sought a

money judgme

nt against the other named defendants for losses or expenses incurred,

or to be i ncurre d, def

endin g F ath er Przy

byl o again st any

claims ar

ising out of the Coo k County action or any similar su

it. OnApril 21, 2006, plaintiffs filed an emergency petition for

a temporary

restraining order and a preliminary injunction. Plaintiffs alleg ed that, at a regularly scheduled

board meeting of the Shrine, defenda

nts imprope

rly amended the minutes of

previous meetings by

removing reference s to certain unspecified actions and statement s. Pla intiffs a lso alleg ed that de fendant s imprope rly removed the secretary

of the board because sheobjected to the improper amendments to the minutes of previous meeting s. Plaintif

fs furthe r alleg ed that de fendant s refuse d to take a ny a ction in re sponse to this l awsuit. Plai ntiffs requested the prevention of further ac tions of the board pending the outcome of this action, the prevention of the removal

of the Shr

ine's monetary

and reli gious as sets, the appointment of a receiver to secure the assets of the Shrine, the suspe nsion of F ather Pr

zyby lo fromhis duties, and the removal of Father Przy bylo from any

property owne d by the Shrine. On April 24, 2006, the trial court denied the petition. OnMay 26, 2006, d

efenda nts filed a motion to strike the sexual misconduct allegations and to impound the

copy of the Coo k County

complain t, conten ding tha t the Cook Cou nty action had been improperly filed, had not be en resolved, and thus amounted to little more than gossip. About

a week later, on

June 1, 2006 , defend

ants file d separa

te motions to dismiss the complaint pursuant to sections 2--615 and 2--619 of the Code. I n the section 2--6 15 motion to dismiss, de fendant s asserted, among other things, that plaintiffs had not included the Shrine as a necessary

party and ha

dNo. 2--06--0884

-6-

notsufficie

ntly pleaded damages to entitle them to relief. I n the section 2--619 motion to dismiss, defendants asserted

that (1) p laintiff

s lacked standing to prosec ute their claims, because they

were notcurrently me

mbers of the Shrine and (2) the ecclesiastical abstention doctrine pre cluded the trial court from decidingth e issues raised in plaintiffs' complaint, because, essentially , they involved matters of church governanc e and doctrine. OnAugust 10, 2006, the trial court heard arg ument on the three pe

nding mot

ions. The trial court granted with prejudice both the section 2--615 and the section 2--619 motions to dismiss and denied defendants' motion to strike and impound. The trial court reasoned that the ecclesiastical a bstention doctrine set forth in Milivojevich , 426 U .S. 696, 49 L . Ed. 2d 151 , 96 S. Ct. 237 2, prohibi ted civil c ourts from resolvin g dispute s involving religious law and polity . The trial court reviewed the relief requested in each of the thre e counts, noting that count I challenged the qualifications of Fathe r Przyby lo and sought to nullify the employment

contrac t; that cou

nt II request e d the trial court to review the membership rolls and determine who was properly a voting member of the Shrine, along with invalidating a ll el ection s beginning with the Jan

uary 2006 elec

ti on; an d that count III requested the trial c ourt to suspend Father Przyby lo from his duties as pastor and as board member of the Shrine. The trial court stated that, in counts I, II, and I

II , the Shrine had disputes with plaintiffs that would require the trial court "to look at [the Shri

ne's] Con stitution a

nd its rule s and app ly

those rules to determine the outcome" of those counts. Additionally, the trial court re as oned that the c ase presented "a matter which I believe is nota readily de cidable issue involving property. *** This [case], howeve r, does involve the interpretation of the congreg ation's Constitution and the inter vention in to its inter nal aff airs, all three counts." The trial court held that the ecclesiastical abstention doctrine precluded it from furtherNo. 2--06--0884

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involvement

in the matter. The trial court fu rther fo und that pl aintiffs

lacked s tanding

to bring the claims in t

he compla

int, owing

to their expulsion from the membe rship of the board of the Shrine and from the membership of the Shrine itself. Thus, the trial court granted with prejudice the sec tion 2--619 motion to di sm iss. Turning to the section 2--615 motion to dismiss, the trial court did not clearly articula te the fa cial def ects in the pleading that it discerned, but it

nevertheless g

ranted w ith prejudice the motion. Plaintiffs' counsel immediately asked the tria l court whether plaintiffs should bother filing

a motion seeking leave to amend the complaint; the trial court stated that such a mot

ion would

be

unava ilin g. Plaintiff

s timely appeal. We note that, on appeal, plaintiffs contend that the trial court erred in denying the

m leave to amend, appare

ntly based on this exchange. We believe, however, that insubstance plaintiffs are actually asserting that the trial court abused its discretion in dismissing the complaint with prejudice, and

we shall proceed with our analy sis of plaintiff s' conte ntions with

this under stand ing. Onappea l, plaint iffs contend that the trial court relied on the affirmative matter s that provided the basis for the section 2--619 motion to dismiss in granting the sect ion 2--61 5 motion to dismiss. Plaintiffs dispute the trial court's fi ndings that the ecclesiastical abstention doctrine bars its involvement and that plaintiffs lacked standing to bring the c omplaint. Plaintiffs also contend that the trial court erroneously dismissed the action with prejudice instead of allowing plaintiffs the opportunity to further plea d. We review de novo a trial c ourt's d ecision to grant a section 2 --615 mot ion to dismis s. Oldendorf

v. General Motors Corp. , 322 Ill. App. 3d 825, 828 (2001). A section 2--615 mo tion to dismiss "attacks the legal sufficienc y of a complaint by

asserting that

it fails to state a c ause of actionNo. 2--06--0884

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uponwhich relief can

be granted." Oldendorf

, 322 I ll. App. 3d at 828. In deciding a section 2--615 motion, the trial court is to consider only those fa cts apparent from

the face of the complaint, matters of which the trial court may

take judicial notice, and any judicial admissions contained in the record. Oldendorf

, 322 Ill. App. 3d at 828. Thetrial court will take as true all well-pleaded facts a lleged in the complaint along with all reasonable inferenc es that may be dr awn from the well-p leade d allega tions; the trial court

is to view the allegations and inferences in the light most favorable to the plaintiff. Oldendorf

, 322 Ill. App. 3d at 828. Si mi la rl y, we re view de novo a trial c ourt's d ecision to grant a section 2 --619 mot

ion to dismiss. Zahl v. Krupa , 365 I ll. App. 3d 653, 657 ( 2006). A s ection 2- -619 motion to dis miss admits the legal sufficiency of the claims but raises defenses or affirmative matters that defe at the claims. Zahl , 365 Ill. App. 3d at 657-58. The questions presen te d on review of a section 2--619 motion to dismiss are whether there are ge nuine issues of material fact and whether the defendant is entit led to judgment as a matter of law. Zahl , 365 Ill. App. 3d at 658. L ike a section 2--615 motion, when con sidering a section 2--619 m

otion, the trial cou rt is to accept as true all well-pleaded facts and to make all reasonable infere nces in favor of the plaintiff. Zahl , 365 Ill. App. 3d at 658. Fi na ll y, whether pursuant to section 2--615 or section 2-- 6 19, a complaint should be dismissedwith prejudice only if it is appar ent that the plaintiff

ca n prove no set of f

acts tha t will

e ntitle him or her to recover. Village of Roselle v. Commonwealth Edison Co. , 368 Ill. App. 3 d 1097, 1119 (2006). Where a claim can be stated, the trial court abuses its discretion if it dismisses the complaint with prejudice and refuses the plaintiff fu rther opportunities to plead. Muirfiel d Vi llage-Vernon

Hills, LLC v. K. Reinke, Jr., & Co. , 349 Ill. App. 3d 178, 195 (2004). We thusNo. 2--06--0884

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revi ew the trial court's decision to dismiss a complaint with prejudice for an abuse of discr etion. Muirf ield V illa ge , 349 Ill. App. 3d at 195. Before commencing our analysis of plaintiffs' complaint with respect to defendants' motions to dismiss, we initially address an arg ument defendants raise on appeal. Defend ants u rge this court to strike all reference to the Cook County action and to strike from the re cord the copy of the Cook County complain t appende d to plainti ffs' c omplaint. We note that defendants did not file a motion inthe trial

court to that effe ct and the y di d not f

ile a cro ss- appeal on that issue. Accordingly, we hold that defendants' request is no t p roperly be fore us on appeal and decline to consider fur ther defendants' contentions on the issue of the Cook County action. Before engaging with the intricac ies of the ecclesiastical abstention doctrine, we briefly dea

l with the trial court' s alterna

te basisfor dismissing the complaint with prejudice pursuant to section 2--619 of the Cod

e: plainti ffs' st

anding . The tria

l court he ld th at plainti ffs lacked s tanding to maintain this action. Below, defendants argued, and the trial court accepted, that plaintiffs pleaded

no direct injuries different from those that other members would have experienced. Plaintiffs concede that they

have attempted to bring

derivative claims on behalf of the Shrine for the conduct they allege d in their

complain t. Defen dants further reasoned that, because pla intiffs were expelled fromthe Shrine, they no l onger had any standing to bring either individual or derivative actions involving the Shrine. The trial court apparently adopted this rationale, holding that plaintiffs lacked

s tanding because

they had bee n expelled

from memb ership of

the Shrine 's boar

d of dire ctors a

n d from membership of the Shrine itself. We find this to be error. Plaintiff s' expulsion occurred, according to the affidavit submitted with defendants' section 2--619 motion to dismiss, in May 2006. This action was filed April 18, 2006, before the expulsionNo. 2--06--0884

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occurred. At the time

the action was filed, plaintiffs were members of both the Shrine and its board of directors. Defendants point to no authority that would r etroactively dive st plaintiffs of standing inlight of actions that defendants had undertaken after a suit had been filed. We hold that plaintiffs had sufficient standing to bring either individual or deri v ative claims and that the trial court erred in di smis sing t his ac tion for pl ainti ffs' la ck of s tandi ng. We now consider the trial court's application of the ecclesiasticalabstention doctrine. The first amendment to the United States Constitution p rovides in part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ***." U.S. Const., amend I. The eccle siastical abstention doctrine is rooted in bot h the free exercise and the establishment

clauses of

the first amendment. See Presbyterian Churc h in the United States v. Mary Elizabeth Blue Hull Memorial Presbyte rian Church , 393 U.S. 440, 449, 21 L. Ed. 2d 658, 665, 89 S. Ct. 601, 606

(1969); J. N owak & R. Rotunda, Constitutional Law §17.12, at 1413 (6th ed. 2000) ("Of course, t he government cannot declare which party is cor

rect in matters of religion, for that would violate the principles of both religion clauses. A judicial declar ation of s uch matte rs would simultane ously

establish one reli gious vie

w as cor rect for the org anization w hile inhibiting the free exercise of the opposing belief"). The first amendment is applicable to the states by its incorpor ation into the due pr

ocess cl ause of the fo

urteent h amendme

nt. U.S. Con st., amen

d. XI V; Employment Division, Department of Hu man Resou

rces v. Sm

ith , 494 U.S. 872, 876-77, 108 L. Ed. 2d 876, 844, 110 S. Ct. 1595, 1598-99 (1990). Illinois has its own constitutional protection of free exercise and prohibition of estab lishment. Se e Ill . Co nst. 1970, art I, §3 ("The f ree exercise and enjoy

ment of religious profession and worship, without discrimination, shall forever be guar anteed ***. No person shall be required to attend or support any ministry or place of worship a

gainst h is consen t,No. 2--06--0884

2 Congregational

polity exists when "a religious congregation ***, by th e nature

of its organization, is st ri ct ly i ndependent of other ecclesiastical associa tions, and so far as church government is concerned, owes no fealty or oblig ation to any higher authori ty." Watson v. Jones , 80 U.S. 679, 722, 20 L. Ed. 666, 674 (1872). Hierarchical polity , on the other hand, exists when "the religious congr

egation *** is but a

subordina

te member

of some g eneral

church organiza

tion in whichthere are superior ecclesia stical tribunals with a general and ultimate power of control more

or less co mplete in some supreme judicatory over the whole membership of that genera l organization." Watson , 80 U.S . at 722 -23 , 20 L. Ed. at 674. Henceforth, by "hierarchical church"

we mean a hi erarchical pol ity, not a n individual congregation within that polity . Thus, when we speak of th e a ut on om y of

a h ie ra rc hi ca l c hu rc h, we me an th e a ut on om y of a h ie ra rc hi ca l p ol it y vis-avis the state. We are not concerned with the autonomy that individual hierarchical churches lack due -11- nor shall any pref

erence be given by

law to any re ligious denomination or mode of worsh ip"). " State courts have the authority to inter pret the ir respe ctive constitutional provisions more broadly than United States Supreme Court interpretations of similar Federal constitu tional pro visions. " People

v. McCauley , 163 Ill. 2d

414, 426 ( 1994). I

llinois cou

rts, howe ver, con strue the

protect ions of ar ticle I, section 3, as coextensive with the corresponding protections of the first amendment. See People

v. Falbe , 189 Ill. 2d 635, 645 (2000) ("any statute whichis valid under the first ame ndment is a

lso valid under the

Constitution

of Il linois") . In in

terpreting the

United Sta

tes Constit

ution, Illinois courts follow, as they must, the United States Supreme Court, the final arbiter of the Constitution. Peoplev. Nally

, 216 Ill. App. 3d 742, 764 (1991). Accordingly, the decisions of the Supreme Court are the touchstone for our understanding of the ecclesiastical abstention doctrine. The parties a

gree t hat the Shr

ine is a cong

regat ional chu rch, inde pendent a nd autono mous. 2No. 2--06--0884

to th e i nt er na l c on st ra in ts of hi er ar ch ic al po li ty.

-12- The parties disagree over

whether the Shrine's polity is itself of consequence to this matter. Plaintiffs claim it is, but do not elaborate. Defendants have the co rrect v iew, con tending that " any churc

h, whether hierarchical or

congregational , has the autonomy [to] select the clerg y." (E mphasis added.) As we dem

onstrate below, if the subject matter of an internal church dispute is not appropriate for state interven tion, then abstention is equally compulsory whether the church is congre gational or hierar chical, and whet

her the d isputehas been addressed by an adjudicatory

body, if any

, within the church. As f

or the subject matter of this dispute, the parties character ize it differently. Plaintiffs claim that the disp ute is ultimately about property rights and therefore abstention is unwarra nted. See, e.g. , Mary

land & Virginia

Eldership of the Churches of God v. Church of God at Sharpsburg , 396 U.S. 367, 368, 24 L. Ed. 2d 582, 584, 90 S. Ct. 499, 500 (1970) (Brennan, J., joined by Douglas and Marshal l, JJ., concur

ring) ( "a State

may adopt any

one of various approaches for settling church propert y disputes so long as it involves no consideration of d octrinal mat ters" (emphasis in original)). Defend ants argue that the dispute is p rincipa lly about Father Przyby

lo's fitness as a pastor and about the qualifications of certain purported voting members of the Shrine. Defendants contend, therefore, that im pr op er st at e i nv ol ve me nt in qu in te ss en ti al ly eccles iastical matters i s inevitab le if this c ase is adjudicated

by o ur courts . See Bell v. Presbyterian Churc h (U.S.A.) , 126 F.3d 328, 331 (4th Cir. 1997) ("It has thus become established that

the decisions of religious entities about the appointment and removal of ministers and pers ons in othe r positions of similar theological significance are beyond the ken of civil c ourts") ; Chase v. Cheney , 58 Ill. 509, 537 (1871) (the "constitution intendedNo. 2--06--0884

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to guara ntee, fr om all inte

rfere nce by the State , not only

each ma n's rel i gious fa ith, but his membership in the church"). We begin our analysis by, first, extracting the g eneral outlines of the ecclesiastical abstention doctrine from the decisions of the Supreme Court and , sec ond, reviewing how lower courts have refined those pri nciples. The Supre

me Court' s major de cisions in t his area all concern hierar chical churche s, but a car

eful re ading o f the ca ses wil l disclo se principles applicable to all manner of ch ur ch po li ty. Our survey beg

ins with Watson v. Jones , 80 U.S. 679, 2 0 L. E d. 666 (18 72), unive rsally regarded by t h e federal co urts as the genesis of the ecclesiastica l abstention doctrine

. Watson derived the doctrine from

federalcommon law, but the Court later incorporated Watson 's principles into its first amendment jurisprudence. See Milivojevich , 426 U.S. at 710, 49 L. Ed. 2d at 163, 96 S. Ct. at 2381 ( applying W atson in a first ame ndment ca se); Scotts Afr ican Union Methodis t Protestant Church v. Conferenceof African Union First Colored Methodist Protestant Church , 98 F.3d 78, 87 (3rd Cir. 1996) ("later Supreme Court opinions have rec ognized [ Watson 's] holding as grounded in concerns of constitutional dimension"). Watson concerned a fracture within the Walnut Street Church, a local congreg ation of the Presby terian Church in the United States (PCUSA), a hierarchicalpolity overseen ultimately by a g eneral assembly , "the highest judicatory " of t he PCUSA. Watson , 80 U.S. at 734, 20 L. Ed. at 678. The real prope rty of the Walnut Street

Church had been deeded to the chu

rch trus tees for

use in kee

ping with the fundamental laws of the PCUSA. InMay 1865, the g eneral assembly of the PCUSA expressed loyalty to the federalgovernment and denounced

slavery. This dec laration led the Walnut Street Church to split into pro- and anti-slavery camps. The pro-slavery

group, the minority

within the

church, claimed t

itle to the church p ropertyNo. 2--06--0884

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because its views were more consistent historically with the PCUSA's beliefs. Fractures along the same lines developed

in the Pre sby

tery of Lo uisville and the Sy

nod of Ke ntucky, the inte

rmediate governing bodies with jurisdiction over the Walnut Street Church. The factions within the Walnut Street C hurch al lie d themselves with their corresponding factions within the Presby tery and the S ynod. The general assembly declared the pro-slavery contingents within the Synod a nd th e Pre sbytery

illegiti mate and excluded t

hem from membersh

ip in the a ssembly . This dec laratio n effec tively

designated the anti-slavery contingent as the true an d legitimate Walnut Street Church and thus the rightful owner of the church prope rty. Watson , 80 U.S. at 722, 20 L. Ed. at 673. The anti-slavery f

actionwithin the Walnut Street Church sued to determine ownership of the church pr op er ty. During the pendency of the suit, the anti-slavery factions of the Presby

tery and the Synod, together with their adherents within theWalnut Stre et Church , formall y separated from the PCUSA and joined a different denomination. Watson , 80 U.S. at 722, 20 L. Ed. at 674. The Supreme Court held that the controversy wa s inap propria

te for a djudicat ion by civil courts. As wit h many of i ts ho ldin gs in t his ar ea, th e Cour t's holding in Watson is couched in terms particular to hierarchical churches, but the core, determinative principles, which admittedly are somewhat

difficult to extract, are not limited to any particular church

poli ty. Facial ly, the C ourt's holding in Watson is based on a rule of deference to a church's own prior

adjudica tion of the dispute brought to the civil courts. This, in short, is "proceduraldeference." Closer examination of Watson , however, di sc lo se s a mo re fu nd am en ta l r ul e o f d ef er en ce ti ed st ri ct ly to the subject matter of a dispute, or "subj ect-mat

ter def erence ." On th e bes t reading of the Supreme Court decisions, a reading supported by lower f

ederal decisions, the e cclesia stical ab stention d octrine fulfills it s aim only if subject-matter

deference is considered the contr olling principle behind the doctrine. WhereNo. 2--06--0884

-15-

the subject matter of a church dispute is not appropriate for secular adjudica tion, cour ts must abst

ain even if the church has not itself taken formal action on the dispute. The Court in Watson began its analy sis by describing how the rule of procedural defere nce operate s based on

the org anization o f the chu rch. The Court beg an with

congr egational chur

ches: "In such cas es wher

e there is a schism

[in a congregational churc h] which leads to a separation

into di stinct and co nflicting bodies, the rights of such bodies to the use of the propert y must be determined by

the ordinary pr

inciples which govern

voluntar y a ssociations. If th e p ri nc ip le of

go ve rn me nt in su ch ca se s i s t ha t t he ma jo ri ty rules, then the numerical majority of m emb ers mu st con tro l t he r igh t t o t he u se o f th e pr ope rty. If there be within the congregation

officers in whom

are vested the powers of such control, then those who adhere to the acknowledged

organism by

which the body is g overned are entitled to the use of the property." Watson , 80 U.S. at 725, 20 L. Ed. at 675. Turning to hierarchical churche s, the Court said: "[I ]n c ases of this character we are bound to look at the fact that the local congreg at ion i s itself but a member of a much larger a nd more important religious organization, and is under its govern

ment and control, and is bound by its orders a nd judgments. There are in the Presbyterian

system of ecc lesiastical government, in regular succession, the Presbytery over the session or

local church, the Syno d over the Presby tery , and the general

assembly over all

. These are c alled, in

the lang uage o f the chu

rch org ans, 'ju

dicator ies,' a nd they enterta i n appeals from the d

ecisions of those below, and prescribe corrective me asures in other cases. Inthis class of cases we think the rule of action which should gove rnthe civil cou

rts, founded [on] a broad and sound view of the relations of church and state under our systemNo. 2--06--0884

3 This is a foreshadowing

of the Court's holding in Jones v. Wolf , 44 3 U. S. 595 , 60 2, 6 1 L. Ed. 2d 775 , 784, 99 S. Ct. 3 020, 3 025 (1 979), quot ing Maryland & Virginia Churches , 396 U.S. at 368, 24 L. E d. 2d at 58 4, 90 S. Ct. a t 500, that the f

irst amendment does not bar courts from

" 'settling church property disputes so long as it involves no considerations of do ctr inal matte rs, wheth er the r itual and li turgy of wo rship or the tenet s of [ the] faith .' " -16- of laws, and supported by a

preponderating weight of judicial authority is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of the se churc h judicat ories to w hich the matter ha s b een carried, the legal tribunals must acc ept such d

ecisions as final, and as bin

ding on them, in the ir applic ation to the case before them ." (Emphasis added.) Watson , 80 U.S. at 727, 20 L. Ed. at 676. The e mphas ized language articulates a r ule of abstention that appears to combine subject-matter deferencewith

procedural deference . The Court mandates abstention in (1) a certain class of cases (2) decided by c

hurch judicatories. But shortly later in the opinion, the Court speaks ofsubjectmatter deference in isolation:

" Inthis count

ry the full and free right

to entertain any r

eligious belief, to practice any religious principle, and to teach any religiou s doctrine which does not violate the laws of morality and pr op er ty, 3 and which does not infringe personal rig hts, is conceded

to all. The lawknows no heresy, a

nd is committedto the support of no dogma, the establishment of no sect. The ri gh t to or

gan ize voluntary religious associations to assist in the expression and dissemination of any

religio us doctri n e, and t o create tribunals for the decision of controverted

questions of faith w

ithin the association, and for the ecclesiastical g overnment of all the individual members, congregations, and officers within the gener

al assoc iation, isNo. 2--06--0884

4 Here again is an allusion to the principle that would be expressly adopted in Jones

. -17- unquestioned. All who unite themselves to sucha body do so with

an implied

consent t o this gover nment, and

are bound to submit to it. But it would be a vain consent and would lead to a total subversion of

such religious bodies, if any one aggrieved by

one of their decisions could appe al to the secular courts and have them rever sed. It is of the essence of thes e religious unions, and of their right to establish tribunals for the decision of questions arising among t hemselves, that those decisions should be binding in all cases of ecclesia stica l

c ognizance, subject only to such appea ls as the organism itself provides for. " (Emphasi s added.) Watson , 80 U.S. at 728-29, 20 L. Ed. at 676-77. The emphasized language at the start of this passag e expresses values that are consistent with a subject-matter

deference that applies without reg ard to ch u rch st ructu re and p rocedu res. T hough proceduralconsiderations occupy the remainder of the passag e, the Cou rt would shortly ag ain speak of subject- matter de ferenc e in isolat ion. Critic izing the

Kentuck y st ate cour t in the case for

holding that sec ular abstention from a church controversy is necessary

only where " the [church] tribun a l acted within its jurisdiction," the Court said: "[I ]t may very well be c oncede d that if the Gener al Assemb ly o f the Pre sby terian Ch ur ch

s hould un dertake to try

one of its members for murder, and punish him with death or imprisonment, its sentence would be of no validity in a civil cou rt or any where e lse. Or if it should at the instance of one of its members entertain jurisdiction as between him and another member as to their in

dividual r ight to propert

y, r eal or pe rsonal, t he righ t in no sens e dependingon eccle siastica l question s, its dec ision would be utter ly d isrega rded by any civil court where it might be set up. 4 ***No. 2--06--0884

5 Likewise, plaintiffs' membership in the Shrine was terminated during the pende

ncy of this lawsuit. However, plaintiffs did not leave voluntarily like the plaintiffs in Watson , but rather were -18- But it is a very

different thing where a subject- matter of dispute, strictly and purely ecclesiastical in its character--a matter over whic h the civil courts exercise no jurisdiction--a matter which concerns theological controver sy, church discipline, eccl esiastic al gove rnment,

or the conformity of the me mbers of the church

to the standa rd of morals required of them--becomes the subject of i ts action. I t may be said her e, also, that no jurisdiction has been confer red on the tribunal t o try the part icular c ase before

it, or that , in

its judgme

nt, it

exce eds the powe

rs confe rred upon it, or tha

t the laws of the ch urch do not auth orize th e particular form of proceed

ing ado pted; and , in a sens e often u sed in the courts, a ll of [these] may be said to be questions of jurisdiction. But it is e asy to see tha t if the ci vil courts are to inquire into all these matters, the whole subject of the doctrinal theology , the us ages a

nd customs, the written laws, and fundamental organ iz ation of every

religious denomination

ma y, and must, be examined into with minuteness and c are , for the y w ould become, in almost every c ase, the criteria by which the validity of the ec clesiast i cal decree would be determined

in the civil court. This principle wou ld deprive these bodies of the right of construing their

own chur ch laws, *** and wo

uld in eff ect tran sfer to the civil co

urts where propert y rights w ere con

cerned the deci sion of al l eccle siastica l question s." (Emphasis added.) Watson , 80 U.S. at 733-34, 20 L. Ed. at 678. Withthis, the Co

urt abru ptly ended its discussion and decided the case on the more prosaic doctrine of standing, ruling that the plaintiffs no longer ha d a sta ke in the property

of the Walnut Street Church because they

had left the PCUSA. Watson , 80 U.S. at 734, 20 L. Ed. at 678. 5No. 2--06--0884

ousted. As we noted above, defendants cite no aut hority that would per

mit them to u

nilatera lly divest pla intiffs of standing after they

filed the ir suit. -19- As we see it, the Court's directive for secular courts to defer to church adjudications of ecclesiastical controve

rsi e s was just the surface holding of the case. Tha t holding was, of course, valid for the facts in Watson because the controversy had been addressed by

a judicatory body

of the PCUSA. Unmistaka

ble sign s of a bro ader hol ding, however, are evi dent in the instances where the Courtenumera

tes the su bjects ina ppropria te for se cular c ourts without sugg estin g that the duty to abstain from those

subjects depends , in any

given c ase, on w

here the controv ersy lies within the proceduralchannels of the church. I n view of thes e pass ages, we cannot believe that the Court would have inte rvened i n the Walnu

t Street Ch

urch con troversy if the gov erning

body of the PCUSA had notpreviously acte d to settle the divi sion with in th e deno minat ion. That i s, th ough the applied holding in Watson invokes subject-matter and procedural considera tions, the Court's larger discussion reveals that the subject-matter considerations bore the weight of the decision and that the PCUSA's action was nonessential to the outcome. The Court's next two decisions in this area, Gonzalez v. Roman Catholic Archbishop , 280 U.S. 1, 74 L. Ed. 131, 50 S. Ct. 5 (1929), and Kedroff v. Saint Nicholas Cathedral of the Rus sia n Orthodox Church in North America , 344 U.S. 94, 97 L. Ed. 120, 73 S. Ct. 143 (1952), are straightforward appli cations of Watson . Like Watson , Gonzalez was dec ided bef ore the f irst amendment

was incorporate d into the f ourteen th amendment. The

plainti ff in G onzalez sued a Roman Catholic archbishop, claiming a right to be appointed a chaplain in the archbishop's di ocese pursuant to a tr ust es tabli shed d ecades earli er by the pl ainti ff's ancestor. The archbishop had refusedNo. 2--06--0884

6 This narrow exception to abstention was later charac terized a s dictum in Milivojevich , 426 U.S. at 71 2, 49 L. Ed. 2d at 164, 96 S. Ct. at 2382. Milivojevich further held that , even if

the Co urt's preced ents could be construed as creating a n exception to ec clesiast i cal abst ention, the first amendment

would not co untenance an "arbitr ariness " excep tion that would entail a court determining whether a churc h "compl ied with [its ] laws and regulat ions." Milivojevich , 426 U.S. at 71 3, 4 9 L. Ed. 2d at 165, 96 S. Ct. at 2382. No Su preme Court case since Milivojevich has discussed an exception to ecclesiastical abstention, leaving lower courts to speculate on the vitality of even the "fraud" and "collusion" aspects of the exception articulated in Gonzalez . See, e.g. , Crowder v. SouthernBaptist Convention , 828 F.2d 718, 725 n.18 (11th Cir. 1987) (the Supreme Court "left open the possibility" of civil court intervention in case s of fraud or collusion ); Abrams , 306 Ill. App. 3d at 1013 (" Milivojevich merely lea ves open, but does not endorse, the possibility that limited review might be available i n ca se s o f f ra ud or co ll us io n" ). Si nc e p la in ti ff s d o n ot cl ai m a ny exception to abstention, we need not determine what remained of the Gonzalez exception after Milivojevich

. -20- to appoint the plaintif

f becau se he did not meet the q ualifica tions of a chaplai n as set f orth in canon law. In a brief discussion, the Court def erred to the archbishop's decision: "Amongthe Church's laws which are t hus claimed to be applicable are those crea ting tribunals for the determination of

eccles iastical

controve rsies. B ecause

the appoi ntment is

a canonical act, it is the fun ction o f the Church authorities to determine what the essential qualifications of a chaplain are and whether the candidate possesses them. I n the absence of fraud, collu sion or ar

bitrariness, 6 the decisions of the proper Church tribunals on matters pu rely ecclesiastical, although affec ting civil rights, are accepted in litiga tion befo re th eNo. 2--06--0884

-21-

secular c ourts as c onclusive , becau se the pa rties in in terest ma de them so

by c ontract

o r otherwise. " Gonzalez , 280 U.S. at 16, 74 L. Ed. at 137, 50 S. Ct. at 7-8. Noting that there was "not even a suggestion that [the archbishop] exercised his authority arb itrarily ," the Court found no ground for intervening. Gonzalez , 280 U.S. at 7-8, 74 L. Ed. at 137, 50 S. Ct. at 8. Procedural and subject-matter considerations are intertwined in the Court's discussion, yet

we cannot imagine that

the Court wou ld have intervened if the plaintiff had gone dire ctly to the courts and the " Church a

uthoritie s" had not previously acted on his petition. Moreover, we believe the Co ur t w ou ld ha ve ju st if ie d i ts ab st en ti on by r ef

er en ce to th e c on te nt of

th e c on tr ov er sy, i.e. , the qu al if ic at io ns of

cl er gy. In Kedroff

, the Court was asked to decide whether the rig htto use and occupy

a cathedralin NewYork was held by

the Russian Orthodox Church, a hierarchical denomina

tion whose

supreme authority was sea ted in Mosc ow, or by

the Amer ican dioc ese of that denomi nation, w hich had t itle to the propert

y. T he issue t urned on the const itutionali ty o f a New Y ork statu

te that pu rported to grant autonomy to the America n diocese, which

had elected its own ruling prelate. The Court found that the statut

e effe ctively

"prohib it[ed] the fr

ee exerc ise of an

eccles iastical right , the C hurch 's choi ce of [auth ority

]" be caus e it " [b]y

fiat *** displace[d] one church administrator with another" and "passe[d] the control of matters strictly e cclesiastical from one church authority to another." Kedroff , 344 U.S . at 119 , 97 L. Ed. at 138, 73 S. Ct. at 156. The Court discussed Watson and quoted from it at length, including

this state ment: "In this country the full and free right to entertain any religious brief, to practice any rel i gious principle, and to teach any religious doctrine which does not violate the laws ofNo. 2--06--0884

7 H ere the Court cited Gonzalez 's fraud/collusion/arbitrariness exception to the abstention doctrine. -22- morality and prope rt y, and which doe s not infringe personal rights, is concede d to all." Watson , 80 U.S. at 728, 20 L. Ed. at 676. According to the Court, Watson :

" radiates *** a spirit of freedom for religious org anizations, anindependence from secular control or

ma nipulation , in short, power to decide f

or themse lves, fr

ee from state interference, matters of church government as we ll as those of faith and doctrine . Freedom to select the clergy, where no improper methods of choice are proven, 7 we think, must now be said to ha

ve fede ral cons ti tutional pro tection as a part of the free exercise of religion againststate inte

rfere nce." ( Emphasisadded.) Kedroff , 344 U.S. at

116, 97 L. Ed. at 136-37, 73 S. Ct. at 154-55. Consistent with Watson , the Cour t also rec ognized t

he State' s specia

l interes t in determining proper ty rights: "There are occasion s when civil courts must draw lines between the responsibilities of church and state for the disposition or use of property . Even in those cases when the propert

y right foll ows as an incident from decisions of the church custom or law on ecc lesiastical issues, the church rul e controls. " Kedroff , 344 U.S. at 120-21, 97 L. Ed. at 139, 73 S. Ct. at 156-57.No. 2--06--0884

-23-

The Court concluded that it should abstain because the dispute was for emost " a matter of ecclesiastical gover

nment" that involved property rig hts only incidentally

. Kedroff , 344 U.S. at 115, 97 L. Ed. at 136, 73 S. Ct. at 154. Here again, the Court's emphasis on what subjects are forbidden to courts was such that we cannot imagine the Court r

ulin g differe ntly had the New Y ork statute purported to confirm rather thanabrog ate the p ower of the Russia

n Orthodo x Ch urch over the American diocese. I n that scenario, the church hierarchy would not be infring ed but the statute no

nethele ss would be

invalid as an attempt by the state to act in matters of church administration. Nex tto Watson , the Court's most quoted decision on ecclesiastical abstention i s Milivojevich

. Milivojevich , like Watson , is a lengthy de cision full of lofty pronounceme nts on the proper stance of the state tow ard church disputes. In Milivojevich , the Holy Assembly of the hierarchicalSerbian Orthodox Chur ch (Mothe

r Church ) remove d the plai

ntif f as bishop of the Mother Church's American-Canadian Diocese (Diocese) on grounds of misconduct and reorganized the Diocese

into three

parts. The plaintif

f asked t he civ il court s to decla

re these actions in

valid because they were

not takenaccording to the Mother Church's constitution and laws. Milivojevich , 426 U.S. at 707-08, 49 L. Ed. 2d at 161-62, 96 S. Ct. at 2379-80. The Court held that abstention was clearly mandatory under

the principles of Watson and its pr og en y. The substance of the dispute, the Court found, was of eccle siastical concern. First, a s to the defrockm e nt of the plaintiff, the Court observed that "questions of church discipline and the composition of the church hierarchy are at the core of

ecclesiastical concern" a nd that "the bishop of a church is clearly

one of the central figures in such a hierarchy." Milivojevich , 426 U.S. at 717, 49 L. Ed. 2 d at 1 67, 96

S. Ct. a t 2384 . Sec ond, t

he re org aniza

tion o f the

Dioc ese " invol

v[ed] aNo. 2--06--0884

8 This, it is generall y held, was the inter nment of th e "arbitrarine ss" component of the Gonzalez exception. See Elvig v. Calvin Presbyteria n Church , 397 F.3d 790, 800-01 (9th Cir. 2005) (" Milivojevich made it

cle ar that there was no arbitrariness exception to the First Amendme nt"); -24- matter of interna l church gover nment, an issue at the core of ecclesiasti cal affairs." Milivojevich , 426 U.S. at 721, 49 L. Ed. 2d at 170, 96 S. Ct. at 2386. The Court did not, however, end its discussion here. The Court consumed a g reat deal of space criti cizi ng the S uprem e Cour t of Illi nois for qu estio ning t he Mot her Ch urch's procedu res. The Illinois court claimed

to apply the "a

rbitrariness" prong of the Gonzalez exception to abstention. The Illin ois court fo

und that the remova

l of the pla

intiff wa s " 'ar

bitrary ' " be cause it

was not " 'i n accordancewith the prescribed procedure of the c onstitution and the penal code of the [Mot her Church]. ' " Milivojevich , 426 U.S. at 718 , 49 L. Ed . 2d at 168, 9 6 S. C t. at 2 384, q uoti ng Serbian Eastern Orthodox Diocese for the United States of America & Cana da v. Milivojevich , 60 Ill. 2 d 477, 503 (1975). According to the C ourt, the I llinois court should have abstained once it was

apparent that the Holy Assembly

was the church body

"in whose sole discretion the au th or it y t o make those ecclesi astical deci sions [w as] vested ." Milivojevich , 426 U.S. at 717-18, 49 L. Ed. 2d at 167, 96 S. Ct. at 2384. T he inquir y of the I llinois cou

rt into whe

ther "the decisi ons of the

highest ecclesiastical tribunal o f a hier archic al churc

h complie d with chu

rch laws and reg ulatio n s" was prohibited

by "the constitutional mandate that civil courts are bound to accept the de cisions of the highest judicatories of a

religious organization of hierarchica l polity on matters of discipline, faith, internal or ganization , or ecclesias tical rule, custom, or law." Milivojevich , 42 6 U. S. at 7 13, 49 L. Ed. 2d at 165, 96 S. Ct. at 2382. 8No. 2--06--0884

Bell , 126 F.3d at 33 1 (same) ; Crow der , 828 F.2d at 725 (same). The Court in Milivojevich still found it appropriate to verify

that the chur ch bo dy t hat took the disputed action was the "final

au th or it y" on "matters of church discipl ine and int ernal organiz ation." Milivojevich , 426 U.S. at 715-16, 49 L. Ed. 2d at 166-67, 96 S. Ct. at 2383-84. At least one Illinois court, the First District in Ervin v. Lily

dale Progressive Missionary Baptist Church , 351 Ill. App. 3d 41 (2004), hasnot been caref ul to distinguish what inquiries are permissible under Milivojevich

. Ervin holds that court s "ca

n decide whether the p roper church aut hority terminated a pastor." Ervin , 351 Ill. App. 3d at 44. This

seems an acceptable paraphra se of Milivojevich , but the Ervin court crosses into error

when it later st at es , w it ho ut qu al if

ic at io n, th at "a ny c hu rc h * ** ha s t he au to no my t o s el ec t t he cl er gy as long as the method of

selection comport s with the church's governing law " and tha

t the "fi rst and f ourteen th amendme nts do not prohibit court intervention when the church f ails to fol low the pr

ocedure s it has, it self, enacted ." (Emphasis added.) Ervin , 351 Ill. App. 3d at 45. This broad license for c ourt interventionis inconsistentwith Milivojevich , which holds that courts may not inquire into whether "the decision s of the hi ghest ecclesias tical tribunal of a hierarchical church c omplied with church laws and regulation s" ( Milivojevich , 426 U.S. at 713, 49 L. Ed. 2d at 165, 96 S. Ct . a t 2 38 2) . Li ke ly, Ervin stray ed beca use of its i

ncautiou s relia

nce on Kedroff' s holding that courts may de termine whether "im pr op er me th od s o f c ho ic e" we re us ed in th e s el ec ti on of cl er gy ( Kedroff

, 344 U.S . a t 116, 97 L. Ed. at 136, 73 S. Ct. at 154). Kedroff was ci ting Gonzalez 's fra ud/collus ion/arbit

rarine ss exception to absten tion, but Milivojevich eliminated the arbitrariness aspect of the exception. -25- Intwo places in the opinion, the Court stated its broader holding. Early in the decision the Court said:No. 2--06--0884

-26-

"For where r esolution of [a] disput

e[] cannot b e made without exten siv e i nquiry by c ivil courts into religious law and p olity , the First and Fo urteent h Amendmen

ts mandate

that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity , but must accept such decisions as binding on them, in their application to the religiou s issues o f doctrine or polity before them ." Milivojevich , 426 U.S. at 709, 49 L. Ed. 2d at 162, 96 S. Ct. at 2380. In the final parag

raph of the case, the Court said: "[T]he First and

Fourtee nth Amendments permit hierarchical religious org anizations to establish

their own

rules and regu lations for interna l discipline and g overnme nt, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and eccles iastical

tribunals are created to decide

disputes over the government and direction of subordina

te bodies , the Consti

tution req uires tha t ci vil courts accept their decisions as binding upon them. " Milivojevich , 426 U.S. at 724-25, 49 L. Ed. 2d at 171, 96 S. Ct. at 2387-88. This passag e might le ad the re ader to c onclude t hat abste ntion fro m a churc

h controversy

is required only where: (1) the controversy concerns a certain subject matter; and (2) the church is hierarchical and its highest tribunals have addressed the controversy . This is not a rea sonable reading in the context of the case. I

n these pa ssages , the Court is not limiting the scope of the abstention doctrine to any particula

r church polity, or r

equiring a prior adjudication by the church as a prerequ isite to abstention. Such would be grossly inconsistent with the several instances elsewhere in the opinion where the Court s tresses, without referenceto any particular kind of church or church procedure , that civilcour ts may not re solve controversies on certain subjects. The Court say s, for instance, thatNo. 2--06--0884

9 The "neutral principles" analy sis for church property

di sputes, adumbrated as early as Watson , would be formally adopted in Jones . See Jones , 443 U.S. at 603, 61 L. Ed. 2d at 784, 99 S. Ct. at 3025. -27- courts must not decide " 'controv ersies over rel igious doct rine and pract ice.' " ( Milivoj e vich , 426 U.S. at 710, 49 L. Ed. 2d at 163, 96 S. Ct . at 23 81, qu otin g Hull Church , 393 U.S. at 449, 21 L. Ed. 2d at 665, 89 S. Ct. at606) or "become entangle d in essentially religious controversies or intervene

onbehalf of groups espousing par ticular doct rinal beli efs" ( Milivojevich , 426 U.S. at 709, 49 L. Ed. 2d at 163, 96 S. Ct. at 2380). What we believe the Court is doing in the above passag es is casting its rejection of

the Gonzalez "arbitr

ariness " except

ion in term s particu

lar to hie rarchi cal chur

ches. The Court is reinforcing the point, which it made in critiquing the I llinois co urt , that civil courts must notinquire "whether thedecisions of the highest ecclesiastical tribunal of a hie rarchical church complied with church

laws and regulat ions" ( Milivojevich , 426 U.S. at 713, 49 L. Ed. 2d at 165, 96 S. Ct. at2382). We cannot read Milivojevich as und ercutt ing th e Cour t's holdings in prior c ases tha

t, where the subject matter of a dispute concerns ecc lesiastical matters, a court must abstain no matter the type of chur

ch polity involved or the prese nce or absence of a prior church a djudication of the

co nt ro ve rs y. We note two other

important aspects of the Court's decision in Milivojevich . First, the Court rejected the Illinois court's purported applica tion of "neutr al princ iples" 9 to the constitutions of the Mother Church and the Diocese. The Illinois court had concluded that these documents granted the Diocese administrative autonomy. The Court re fused to explore the "various church constitutional provisions relevant to [the Illinois court's] conclusion," for the provision s "were

not so express thatNo. 2--06--0884

-28-

the civil cou

rts could enforc e them wit

hout eng aging

in a se arch ing and

theref ore impe rmissible inquiry into church polity." Milivojevich , 426 U.S. at 721 -23, 49 L . Ed. 2d at 170, 96 S. Ct. at 2386- 87. It " suff

ice[d ]" that "the final province" on mattersof ch ur ch po li ty l ay w it h t he Ho ly A ss em bl y. Milivojevich , 426 U.S. at 721, 49 L. Ed. 2d at 170, 96 S. Ct. at 2386. S econd, the Court refused to view the matter as a church pr operty disput e. If the Holy Assembl y's decision s implicat ed prope rty rights, it was "t

he incide ntal eff ect of a n eccle siast ica l determination

that [was] not subject to judicial abrogation, having been reached by

the final church judicatory

in which aut hority to make the d ecision resi des." Milivojevich , 426 U.S. at 720, 49 L. Ed. 2d at 169, 96 S. Ct. at 2385-86. As we have seen, Milivojevich is a somewhat challenging case from which to extract general principles given the Court's repeate d couching of the ecclesiastical abste ntion doctrine in terms of

a particul ar ki nd of

ch ur ch po li ty, na me ly a hi er ar ch y, a nd mo re sp ec if ic al ly a hi er ar ch y w hos e highest tribunal, or judicatory a

uthorities, have ruled on

the matter. So worded, these hol dings say nothing about a du

ty to abstain in

the case of: ( 1) a hierarchical church whose highest judicatory levels the disput

e did not reach before it was brought to the civil cour ts; (2) a congregational churc

h;

or (3) a church, whether hierar chical or congreg ational, that lacks adjudicatory bodies altogether. The question is whether, under the C ourt 's abstention jurisprudence, a church dispute must have reached a certa in position w

ithin the c

hurch po lity

before abstenti on is mand ated, or whether the subject matter of the dispute is a sufficient, and perhaps the only appropriate, ground

for deference. To use th e phras eology we developed above, is procedural defere nce a ne cessar

y or even ap propria te component of the abstention doctrine?No. 2--06--0884

-29-

We believe, as explained above, that Milivojevich itself answers the question in the negative, albeit impliedly. Howev er, some lower courts apply ing the abstention doctrine have given significant

and sometimes decisive weight to the status of a di spute within the particular polity of the church. For

instance, certain decisions have developed a kind of ripeness doctrine that mandates abstentionwhere the dispute has not ye t reached the hig

hest leve l in

a hierarchical church. See, e.g. , First Baptist Ch

urch of Glen Este v . Ohio , 591 F. Supp. 676, 683 (S.D. Ohi o 1983) (" Civil cour ts must insure that an aggrieved chur ch member has exhausted all internal'rights of appeal' be fore any inquiry is made into internal church matters. Only afte

r such appeal rights have been e xhausted can

a court determine that

the highest church judicatory body has spoke

n on the ma

tter") ; Williams v. Palmer , 177 Ill. App. 3d 799, 805 (1988) ("if plaintiff ha s not appea led to hig her chur ch tribunals, that is his remedy. [Citation.] If plaintiff ha s made such appeal and been denied re lief, this court must defer to the decision of the church"). Under First Baptist Church and Williams , if the dis

pute has not made its way throug h the church channels de s ignate d for disp ute reso lution, ab stention is necessary , independently of the subje ct matter of the dispute. One court has used proc edural c onsidera tions to conclude that abste ntion was notwarranted

. In Vann v. Guildfield Missionary Ba ptist Church , 452 F. Supp. 2d 651 (W.D. Va. 2006), the plaintiff sued his ch urch, a congre gation al pol ity, for w rongfu lly termi natin g h im as pastor. The plaintiff alleged that he was fired by

a single church official, contrar y to the church

bylaws that require d such

a decision to be made by

a majority vote of membe rs at a duly ca

lled church meeting. The church urged the court to abstain from the s

uit because it presented an ecclesia stical controversy . The court refused, holding that

the abstentiondoctrine "presupposes that the religious org anization itself has acted before immu nizing th e decision fr om judici al review." Vann , 452 F. Su pp. 2d at 655. TheNo. 2--06--0884

10 Vann seemed not

to apply an exception to abstention so much as conclude that the doctrine had no application in the first instance because no churc h action was involved. -30- cour t acknowledged the Supreme Cour t's admonition in Milivojevich against a secular court' s inquiry "whether the decisions of [the church] complied with chur

ch laws a nd reg ulations" ( Milivojevich , 426 U.S. at

713, 49 L. Ed. 2d at 165, 96 S. Ct. at 2382), but found "an important difference betwe en conductingan inquiry into which part of a religious organization has spoken and asking whether the organization

has spoken at all." Vann , F. Supp. 2d at 656 n.5. The court concluded that abstention

was unwarranted because the plaintiff' s termination, having not been accomplished

by vote of the congregation, "was not the decision of a religious entity or church." Vann , 452 F. Supp. 2d at 656. 10 Vann is without doubt a more radica l use of pr

ocedura l conside rations than is seen in First Baptist Churchand Williams . In these latte r decisions, it was a ssumed tha t a dispute con cerning "matters of discip line, fa ith, inter nal org anization, or eccl esiastic al r ul e, custom, or law" ( Milivojevich , 426 U.S. at 713, 49 L. Ed. 2d at 165, 96 S. Ct. at 2 382) is never appropriate for court interventioneven

where the plaintiff has exhausted all remedies within the church. See First Ba ptist Church , 591 F. Supp. at 683 ("The scope of review i s constitut

ionally limited so that the civ

il courts d o not adjudi cate ec clesiast ical matt ers") ; Williams , 177 I ll. App. 3d at 805 (" Appointm ent [o f ministers ] is undoubtedly an ecc lesiastical matter to which judicial deference is mandated by t he first amendment"). That is, procedural considerations provide independent justification for abstention, and they never w arrant

interve ntion whe re subje ct-matte

r defer ence wo uld not. Under Vann 's appr

oach, by contras t, a cour

t may interve ne if the church has not for

mally acted- -despite

the existence within the church of a genuine controversy ove

r eccles iastical

matters.No. 2--06--0884

-31-

Vann is irreconcilable with any intelligent reading of Watson and its progeny , which flatly proscr ibe court involvement in "matters of discipline, faith, intern al organi zation, or ecclesiastical rule, custom, or law." Milivojevich , 426 U.S. at 713, 49 L. Ed. 2d at 165, 96 S. Ct. at 2382. Vann 's error is in as su mi ng th at , w he re a c hu rc h h as no t f or ma ll y ac te d, th er e i s n o e cc le si as ti ca l c on tr ov er sy. Vann is useful for bringing into sharp relief the e rror in any a

pproach that cond

iti ons abstentionon the proceduralposture within the church of the dispute in question. If it is repug nant to the first

amendme

nt to requ ire a ch urch tohave for

mally acted a t all with r

espect t o the disput

e before abstention is appropriate, it is a fortiori erroneous to require the dispute to have traversed any kind of appellate process within the church before abstention is warranted. Such a tack reduces the first amendment from a substantive p rotecti on of rel igious c onscienc e, shield ing eve n the most informal of churches, to a crude form of res judic ata --a mec hanical procedu ral req uiremen t. Despite their differences, Vann , First Baptist Church , and Williams share the as sumption tha t

a court is permitted to determine when a church has formally

acted ( Vann ) or has t

aken all availab le action( First Baptist Church and Williams ). The risk in this approach is that it may e n tail " a searching and therefore impermissible inq uiry into church po lity" ( Milivojevich , 426 U.S. at 723, 49 L. Ed. 2d at 170, 96 S. Ct. at 2387). We recognize that the Court in Milivojevich reviewed the polity of the Mother Church, finding that the Holy Assembly

was the final authority on matters of discipline and administration. However, the Court emphasized that the Ho ly Assemb ly's preeminence was undis

puted by the part ies, and t he Court is sued a ste

rn warn ing ag ainst the entanglement

that may result from a civil court's study of a church's polity . See Milivojevich , 426 U. S. at 722-23, 49 L. Ed. 2d at 170-71, 96 S. Ct. at 2386-87. Such an inquiry is undesirable, w eNo. 2--06--0884

-32-

believe, even i f its effect is li mite d to p rovid ing supplemental ground s for abs tention tha t is independently compe lled by the subject matter of the dispute. We believe the more circumspect approach is to rest the abstention dec ision entirely on the subject matter of the dispute. We are guided here by several lower federa

l cou rts that have insightf ully explained

that the e cclesia stical abstention doctrine, properl y understood, applies without regard to the polity of the

church from

which the

dispute a rises, or to the stat us of the d

ispute wit hin the chur ch's a djudicat ory channe ls, if any . To arri ve at such conclus ions, thes e courts have ha d to extract the core of the ec clesiast

ical abs tention do ctrine f rom it s enmeshmen t with the facts of Watson , Gonzalez , Kedroff , and Milivojevich , which concerned hierarchical polities. Watson and Milivojevich , of course, were faced pa rticularly with adjudica

tions by thehighest

authoriti es within the hier archie s. In Young v. Northern I llinois Conference of United Methodist Church , 21 F.3d 184 (7th Cir. 1994), the Seventh Circuit Court of App eal s construed this frequently quoted passage from Milivojevich : "[N]o 'arbit rarine ss' exception--in the sense of an inquiry whether the deci sions of th e highe st ecclesiastical tribunal of a hierarchical church complied with church laws and regula tions--is consistent with the constitutional mandate that civilcourts a

re bound to acce pt the decisions

o f the highest judica

tories of a religious org anization o f hiera rchica l polity on matters o f discipline, faith, int

ernal or ganizat ion, or ec clesiast

ical rule , custom, or la

w . " (Empha sis added.) Milivojevich , 426 U.S. at 713, 49 L. Ed. 2d at 165, 96 S. Ct. at 2382. The court said:No. 2--06--0884

11 From the court's description, the Church o f God of Prophecy is a hierarchical church, though the court never labels it as such. -33- "The language 'highest judic atories' is derive d from Watson ***, which referred to the 'highest *** church judi catorie s to which t he matter has been carrie d.' I

n other w ords, it refers to the body internal to the chur ch which made the final disposition of the matter which subseque ntly gave rise to the case at hand. It does not mean that a civil court nee d only defer to the 'highest' decision-making body of the chur

chand may

ignore others. Rather, it means that the civil court must defer to the highest body to whichthe matter had

been carried prior to reaching the civil court." (Emphasis omitted.) Young , 21 F.3d at 186-87 n.2. Accord Lewis v. Seventh Day Adventists Lake Region Confer ence , 978 F.2d 940, 943 (6th Cir. 1992) (defer

ring todecision

of subord inate au thority in hiera rchica l polity because Watson demands defer ence to " 'the highest of the[] church judicatories to which the matter has been carried. ' [Citation.]" (emphasis omitted)). Not only is abstention not conti

ngent on an adjud

ication o f a disput

e by t he high est authority within a church, no formal adjudication at all is necessary . In Nunn v. Black , 506 F. Supp. 4 4 4 (W.D. Va. 1981), a congreg ation of the worldwide Church of God of Prophecy 11 held a meeting and expelled the plaintiffs as members becaus e they falsely claimed to have the gift of glossolalia, or speakingin tongue s. The pla intiffs sued, clai

ming tha t the expulsi on was wr

ongful b ecause the congregation

did not employ

the procedures dictated by the church's governing

law. The plaintiffs also alleged that, because they had contributed

substantial sums of money to the congregation, the expulsion deprive d them of their benefic ial inter

est in the church property . The court held that, noNo. 2--06--0884

12 At least one court has he ld th at a pl ainti ff's interest in court in

volvemen t is "subst antially -34- matter how egregiously

the congregation may

have departed from the proper proc edures, the subject matter of the dispute made abstention compulsory . The court said: "[ I]t is ce rtain that the ecclesiastical issue of the validity of the plaintiffs' speaking by inspiration of the Hol y Spirit pervade s the pre sent cont roversy and removes it from this court 's compete

nce. *** It isthe very na

ture of religious matters that ecclesiastical decisions

are accepted as articles of faith, as opposed to the rational, objective mode of analy sis and procedure used in secular decision-making. Th eref ore, in the present case, constitutional concep ts of due pr

ocess, in volving s ecular

notions of

'funda mental fa irness' or imperm

i s sible objectiv es, are therefore hardly relevant to such matters of ecclesiastical cog nizance. [Citation.] Thus, the plaintiffs' contentions that their due process rights we re violated in that their contribut ions to t he Church were ex propriated b y the expulsion is of no meri t." Nunn , 506 F. Supp. at 448. The court immediately a

dded: "[T]he above conclusion is notvaried by the f act that the Church of God of Prophecy has no structured d ecision-ma king process. " Nunn , 506 F. Supp. at 448. This is an implicit clarification that, though Watson and Milivojevich concerned adjudications by churches with highly

formalized structures, abstention turns on the essence of the dispute brought to the secular

courts. Thus, where the subject matter is forbidden to civil courts, the duty to abstain is in no way

defeat ed or dimin

ish ed by the structure or sophistication of the church, or by the presence or absence of a

ny formal adjudica

tion of the matter within the church itself. 12No. 2--06--0884

lessene d" wher

e the disp ute has be en forma

lly adjudicated by the

church. See Crowder , 828 F.2d at 726. As explained above, we think this approach raises an unacceptable risk of state entanglement in matters of church procedure. -35- Consequent ly, a congregat ional church, whatever its formality , enjoys equal prote ction under the first ame

ndment wit

h a hierarchical church. See Burgess v. Rock Creek Baptist Church , 734 F. Supp. 30, 31 n.2 (D.D.C. 1990) ("the Court can discern no justific ation for

refusin g to app ly the First Amendment

analysis and re asoning of

the Supre me Court a

nd lower federa l court c ase law involving hierarchica l churc hes to [con greg ational c

hurches ]"); First Ba

ptist Churc

h of Glen Este , 591 F. Supp. at 682 ("because the 'ha

nds off' policy

[of Milivojevich ] is of const i tutional dimension, we find it difficul tto justify the application of a diffe rent standard where a cong reg atio nal church is involved"); cf. 1 W. Bassett, Religious Organi zations and the Law §5:48 ( 1997) (" Only rarely do the cou

rts address the problem of entrenched board majorities who continue in off ice for year s at a

time, impervious to recall and unheeding of cong regat ion voice s calling

for res ignation, or new

election s.

*** Where a church is hierarchical in polity the probl em of ent

renche d direct

orships is rare be cause of the po ssibili ty of

app eal fro m t he l oca l co ngr ega ti on f or r edr ess to sup eri or a ut hor it ies . In hierarchicalchurche s the cour ts will usua

lly d efer to the chai nof a uthority . The pro

blem exists,

more properly, in chur

ches of congrega

tional polity. Even here, howe ver , court s will rarely interve ne to order an election"). I n l ight of these principles, we are neither more nor less inclined to abstain given that the Shrine is congregational rather thanpart of a hierarchical polity . Nor is it of moment to us whetherNo. 2--06--0884

-36-

the Shrine has formally a

ddressed or adjudicated plaintiffs' g rievances. The sole determinant here is the subject matter of the dispute, to which we now turn. CountI seeks rescission of the e mployment agr

eement betwe en th e Shrine and Father Przyby lo, on the ground that Father Przy bylo lacks fac

ulties from the local RomanCatholic bishop. Plaintiffs allege that such

facultie s are ne cessar

y f or Fathe r Przy byl o to minister

as a Roman

Catholic priest as specified by the employment contract . Count III alleges that Fa ther Przy byl o has been accused of sexual abuse in an unrelated criminalproceeding. Plaintiffs seek the suspension of Fathe r Przy byl o because (1) the allegations ar e "serious and present

a threat to the continued operations of the [Shrine]"; and (2) it is the policy of the Roman Catholic Church to suspe nd cl er gy s o accused pending disposition of

the char ges. Count II a sks for a declaration that certain individuals approved

as voting members of the Shrine by Father Przy byl o are in fact not qualified for voting membership. CountII also see ks invalid

ation of th

e January 2006 elec

tion of Shr

ine boar d me mbers bec ause individua ls not qualified as voting members cast ballots in the e lection. As is obvious from the complain t, we are directly

called on to judge the qualifications and fitness of Father Przy byl o to be pastor of the Shrine as well as the qualifications of certain individuals to be voting members of the Shrine. Civil courts ma

y not involve themselve s in "matt ers of di scipline, faith, int

e rnal org aniza

tion,

or ecclesiasti cal rule, cust om, or law." Milivojevich , 426 U.S. a t 713, 49 L . Ed. 2d at

165, 96 S. Ct. at 2382. "Religious bodies must be free to decide for the mselves, fre e from sta

te interference, matters which pertain to church government, fa ith and doctrine." Dowd v. Society of St. Columbans , 861 F.2d 761, 764 (1st Cir. 1988). The qualifications of pastors and membersgener ally fall withi n theseproscribed subjects. As for pastors, the Supreme Court said in Gonzalez : "[I]t is the functionNo. 2--06--0884

-37-

of the Church authorities to determine what the essential qualifications of a chaplain are and whether the candidate po ssesses th em." Gonzalez , 280 U.S. a t 16, 74 L . Ed. at 13 7, 50 S. Ct. a t 7 . On e commentator has observed: "The caselaw is almost entirely consistent. Ministerial qualifications and appointme

nts to church offices are essen

tially and entirely doctrinal decisions." 1 W. Bassett, Religious Organizations and the Law §7:25 (1997). This is an accurate summary . See Natal v. Christian & Missionary A lliance , 878 F.2d

1575, 1577 (1st Cir. 1989) ("once a court is called upon to probe into a re ligious body' s selection and retention of cler gy men, the F irst Amendment is imp licated" ); Bell , 126 F.3d at 331 (Fourth Circuit) ("I t has thus become established that the decisions of religious entities about the appointment and re moval of ministers and persons in other positions of similar theological significance are be yond the ken of civilcourts" ); McClure v . Salvation Army , 460 F.2d 553, 558- 59 (5th

Cir. 1972) (" The rela

tionship between an org anized ch

urch and its mi nisters is

its lifeblo od. *** Ma tters touc hing this relation ship must necessarily be recogni zed as of prime e cclesia stical concern" ); Hutchison v. Th omas , 789 F.2 d 392, 396 (6th Cir. 1986) ("The claim here relate s to appellant's status and employment

as a minister of the church. It therefore c oncerns internal church discipline, faith, and organization, all of

which are governed by

ecclesiastical rule, custom, and law"); Young , 21 F.3d at 187 (Seventh Circuit) (" Milivojevich , read in its entire

ty, holds that civil court review of ecclesiastical decisions of church tribu nals, particularly those pertaining to the hiring or firing of cl er gy, are in themselves an 'exte nsive inqu

iry' into religious law and practi ce, and hence forb idden") (emphas is in origi

nal); Kaufmann v. Sheehan , 707 F.2d 355, 358-59 (8th Cir. 1983) ("While there may be some se cular a spects ** * to the pr iesth ood or clergy , it is apparent that the priest or otherNo. 2--06--0884

-38-

member of the clergy

occupies a particularly

sensitive role in any

church organization. Significant responsibility in matters of faith *** and exerc ise of religion characterize such positions"). Equally broad isthe ban on secular review of member qua lifications. See Watson , 80 U.S. at 729, 2 0 L. Ed. a

t 676 ( "All

who u nite t hemse lves t

o [a re ligi ous or

gan izati on] do so wit

h the impliedconsent t

o [its] gove

rnment, a nd are bo und to submi

t to it"); Burge ss , 734 F. Supp. at 33 ("an indispens able part

of any church i s the colle ction of in dividuals who have joined tog ether in

worship and constitute t he church's membership"); Grunwald v. Bornfreund , 696 F. Supp. 838, 840-41 (E.D.N.Y. 1988) ("The mere expulsion from a religious society, with the exclusion from a religious

co mm un it y, is not a har

m for whic

h courts c an gra

nt a remedy "); Nunn , 506 F. Su pp. at 448 ("it is clear that the p lainti ffs have voluntarily submitted to be bound by the decisions of a particular religious society

and that t hey have no r ecourse for rev iew conc erning

the valid ity of their expulsion [from membership] on the i ssue of their g ift of tong

ues"); Chase , 58 Ill. at 537 (the "constitution intended to guarantee, from all interfer ence by the State, not only each

man's religious faith, but his membership in the church"). Plaintiffs do not disput e these propositions, but argue that our defere nce here is limited because this case "involves a property control dispute over the property and assets belonging to the Shrine of Christ the King between factions of the membership of the local congregation." Plaintiffs invoke the S uprem e Cour t's holding that " 'there are neutral principles of law, d evelope d for use

in all property disputes, which c an be applied without "establishing" chu rches to wh ich prope

rty is awarded.' " Jones , 443 U .S. at 599, 6 1 L. Ed. 2 d at 78 2, 99 S . Ct. at 302 3, quo ting Hull Church , 393 U.S. at 4 49, 21 L. Ed. 2d at 665, 89 S. Ct. at 606. Because there are no clear signs in Jones or any other decisionby t

he Court that a neut

ral princ iples ana

lys is is applicable beyond pr operty ca ses, weNo. 2--06--0884

-39-

beli eve it bes t to err on the side of expanding rather than restricting first amendment protection. Thus, we followthe several courts that have categ orically re fused to apply neutra l principles where

a controversy involves " matters of discipline, faith, internal organi zation, or ecclesiastical rule, custom, or law" ( Milivojevich , 426 U.S. at 713, 49 L. Ed. 2d at 165, 96 S. Ct. at 2382). See, e.g. , Hutchison , 789 F.2d at 396 ("The 'neutra l principles' doctrine has never been e xtended to religious controversies in the areas of church government, order and discipline, nor should it be"); Burge ss , 734 F. Sup p. at 3 2 (fol lowi ng Hutchisonand refusing to apply neutral principles to m embersh ip dispute). As this case involves subjects impermissible for court review, we decline to even attempt a neutra l principl es analy

sis. We conclude that the ecclesiastical abstention doctrine preclud es adjudi cation of

plaintiff s' complain t. The complaint was properly dismissedwith prej udice be causeplaintiffs could not plead any set of fa cts settin g forth this controversy tha

t would avoid the application of the ecclesiastical abstentiondoctrine. Vill age of Roselle , 368 I ll. App. 3d at 1119 (a

complain t is properly dismissed with prejudice where it is apparent that the plaintiff can prove no set of facts that will entitle him or her to recover). Moreover, beca use the trial court properly granted defendants' motion to dismis s pursuant to section

2--619 of

the Code, we do not need to consider whether th e trial court al s o properl y granted defendants' motion to dismiss pursuant to section 2--615 of the Code. Even

if the trial court's decision concerning the section 2--615 motion to dismiss were errone ous, it would not affect our ultima

te holding , that the

trial cou

rt prope rly dismissed w

ith prejud

ice plain tiffs' complain t. For the foregoing reasons, the judg ment of the circuit court

of Du Page County

is affirmed. Affirmed.No. 2--06--0884

-40-

GROMETER and JORGENSEN, JJ., concur.