Opposition Brief — Martin v. Godinez (No. 07-704)

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Ab n>) e _ FILED toe

ETT T 2007

Tn The | SIGE OF THE CLERK |

Supreme Court of the @ Tite RROET US: |

PASTOR LARRY MARTIN,

Petitioner,

v.

SALVADOR GODINEZ, as Executive Director of the

Cook County Department of Corrections, THOMAS DART,

as Cook County Sheriff, and JUDGE KATHLEEN M.

PANTLE, Judge of the Circuit Court of Cook County,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The Supreme Court Of Illinois

+

OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

°

WILLIAM T. BARKER

Counsel of Record

DAVID R. GEERDES

SONNENSCHEIN NATH &

ROSENTHAL LLP

233 South Wacker Dr., Ste. 7800

Chicago, [llinois 60606

(312) 876-8000

Attorneys for the Plaintiffs

(Prevailing Parties) in Marsaw

v. Richards, No. 01 CH 16442

(Cir. Ct. Cook County)

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether this Court has jurisdiction to review

a denial of a motion for leave to file a motion for

habeas corpus when the petitioner has subsequently

been released from jail and purged of contempt and

fines.

2. Whether this Court has jurisdiction to review

a state supreme court’s order denying a motion for

leave to seek an original writ of habeas corpus when

the record does not indicate any federal question was

presented or decided, the movant chose not to take an

appeal of right, and state law provides that an origi-

nal writ is discretionary extraordinary relief.

3. Whether habeas corpus with respect to a

contempt sanction may be used to make a collateral

attack on the underlying judgment when direct

appeals from the underlying judgment have been

exhausted and an attempted petition for certiorari

regarding that judgment was untimely.

4. Whether a civil court may incarcerate a

nonparty for civil contempt of court when the non-

party was acting in active concert with parties to the

action and had actuai notice of the order.

ii

LIST OF PARTIES

TO THE PROCEEDING BELOW

Pursuant to U.S. Supreme Court Rule 12.6,

Plaintiffs in Marsaw, et al. v. Richards, et al., No. 01

CH 16442 (Cir. Ct. Cook County) (the “Marsaw

Group”) are also parties in this underlying matter. In

addition to the parties listed in the caption, the

Marsaw Group was the prevailing party in the action

which gave rise to the contempt order challenged in

the Martin v. Godinez, et al., No. 105116 (Ill. 2007).

Illinois Supreme Court Rule 381(c) allows the prevail-

ing party in such an underlying action to file appro-

priate papers, and the Marsaw Group did file an

opposition to the motion for leave to seek an original

writ of habeas corpus.

lil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............... cece cceeeees i

LIST OF PARTIES TO THE PROCEEDING

EIR RRE SSE aA ACEO BC eR om il

KAUR ae SO LF TRI EE ETI wv snascnssesscscaccscsesovensensens vii

STATEMENT OF THE CASE.................cccccesseeeeees 1

REASONS FOR DENYING THE WRIT ............... 14

I. THERE IS NO JURISDICTION TO RE-

VIEW THIS MATTER, WHICH IS MOOT

AND NOT CAPABLE OF REPETITION,

AS PETITIONER HAS BEEN RELEASED

FROM JAIL AND PURGED OF CON-

ERDAS © PRDEED FF AEOMNED hisnciasecsensssdenceiscanivessenes 14

II. THERE IS NO JURISDICTION TO RE-

VIEW THE ILLINOIS SUPREME

COURT'S ORDER BECAUSE (1) NO

FEDERAL CLAIM WAS PRESENTED

BELOW AND (2) THERE ARE ADEQUATE

AND INDEPENDENT STATE GROUNDS

FUER EERIE SOAP dass schtissvtoiacarsnstnbcinerndsess 15

III. DIRECT APPEALS FROM THE UNDER-

LYING JUDGMENT HAVE BEEN ExX-

HAUSTED AND AN ATTEMPTED PETI-

TION FOR CERTIORARI WAS UNTIMELY;

PETITIONER MAY NOT USE THE

INSTANT ACTION TO COLLATERALLY

ATTACK THE UNDERLYING JUDG-

iV

TABLE OF CONTENTS -— Continued

Page

IV. THE CIRCUIT COURT HAD PROPER

PERSONAL AND SUBJECT MATTER

JURISDICTION TO ENTER AN ORDER

OF CONTEMPT AGAINST PETITIONER,

WHO WAS ACTING IN ACTIVE CON-

CERT WITH PARTIES TO VIOLATE THE

PRAM Te ROM Sodas icodennsan sitacbesion Winsiweasa's 19

SRNR ois at nabhoasudisncsaiavciseess taveisauouuenians 21

10.

APPENDIX

Turnover Order of Illinois Circuit Court,

Cook County, County Department, Chan-

cery Division, June 12, 2007 ..............eeeeeeeeeeeeee

Order of Indirect Civil Contempt of Illinois

Circuit Court, Cook County, County De-

partment, Chancery Division, July 19,

Amended Order of Indirect Civil Contempt

of Illinois Circuit Court, Cook County,

County Department, Chancery Division,

EN i icccaceinssssandcicsveskcannonneaneneveisene

Order of Commitment of Illinois Circuit

Court, Cook County, County Department,

Chancery Division, July 25, 2007.....................

Amended Order of Commitment of Illinois

Circuit Court, Cook County, County De-

partment, Chancery Division, September

Release Order of Illinois Circuit Court,

Cook County, County Départment, Chan-

cery Division, September 12, 2007 ...................

Office of the Sheriff Eviction Form for 12

S. Oakley dated September 14, 2007................

Office of the Sheriff Eviction Form for 2236

W. Monroe dated September 14, 2007 ..............

Office of the Sheriff Eviction Form for 2204

W. Washington dated September 14, 2007.......

Office of the Sheriff Eviction Form for 114

N. Leavitt dated September 14, 2007...............

11.

12.

13.

vi

APPENDIX — Continued

Order of Illinois Circuit Court Purging

Martin of Contempt, Cook County, County

Department, Chancery Division, Septem-

UAE SUIT Wo cictehantucndkntscuvatesaiabuittenstiiabesniiassesne

Rule to Show Cause of Illinois Circuit

Court, Cook County, County Department,

Chancery Division, July 5, 2007..................00.

Unreported Order of Appellate Court of

Illinois First Judicial District, November

PPI is nisik resdatadinxctovasiensvsdsouihsscndiad onnssanabiinmades

Vil

TABLE OF AUTHORITIES

Page

CASES

Federal Trade Commission v. Stroiman, 428

Be I I OE Nisan nennccnibicceeasndtnehetnnnncctnt 14

Harris v. Reed, 489 U.S. 255 (1989)............0csescccssseess 15

In re Campbell, 628 F.2d 1260 (9th Cir. 1980) .......... 14

Iron Arrow Honor Soc. v. Heckler, 464 U.S. 67

ARASINESE ae Ser A SPSS verted or ESTE 14

Bil th Ce, BEL TT. DS CEG os cnncsine csccsicnsssercessess 14

Lynch v. New York, 293 U.S. 52 (1934)... eee 16

Maggio v. Zeitz, 333 U.S. 56 (1948) .0... ee eetenes 18

Maness v. Meyers, 419 U.S. 449 (1975)... eee 18

Marshall v. Whittaker Corp., 610 F.2d 1141 (3d

RE ORR ES iy Ree anes San ea NP 14, 15

Matter of Berry, 521 F.2d 179 (10th Cir.), cert.

ON RE BER 8, SRR nn 14

Murrell v. United States, 253 F.2d 267 (5th Cir.

REESE tara hv re ET aG Peiy ee ERC SOI OR are 14

People ex rel. Kazubowski v. Ray, 272 N.E.2d

NN I ii i a a 17

People ex rel. Scott v. Master Barbers & Beauty

Culturists Ass’n, 293 N.E.2d 393 (Ill. App. Ct.

Securities and Exchange Commission v. Laird,

Se cee Re CEE GE, LT ncn ninncescessciciicvccceseiass 15

viii

TABLE OF AUTHORITIES — Continued

Page

Securities and Exchange Commission v. Sloan,

535 F.2d 679 (2d Cir. 1976), cert. denied, 430

Fe RANE Fahd nlasti as Siicodapis dik onidelbde escanda ghceviniceasdtvennes 14

Sibron v. New York, 392 U.S. 40 (1968) ..................... 14

Stavros v. Karkomi, 349 N.E.2d 599 (Ill. App.

OAR, ID Wiicicah.cccabhactiancudan tease wabbuiccnsndedeenadaiacesiiaanaiin 20

Stotler & Co. v. Able, 870 F.2d 1158 (7th Cir.

| ___BURSaE eoteprebsesee OC Rale te chr rer eat Seer ee Pdr: Se Oa MER MPT efx 20

United States v. Watson Chapel School District

No. 24, 446 F.2d 933 (8th Cir.), cert. denied,

I i I ora bie tcdikaktieicissiaccovestuabeiuassiannars 14

CONSTITUTIONAL PROVISIONS

Ill. Const. Art. §§ 4({a) and 16.......... heehaivdabialeiaieanlin 16

STATUTES

I i od liad cutecanuiiuuianl 19

MN: UN I Nose opicrl ts Vaan nannccednnis naan usoincanansed 16

OO a Fe ee cand aan gueeniectaloukcue 20

1

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Petitioner Larry Martin was found in civil con-

tempt of court in Marsaw v. Richards, No. 01 CH

16442 (Cir. Ct. Cook County) (“Marsaw”), for acting in

concert with the refusal of defendants (“the Richards

Group”) to turn over all property of the Bethlehem

Healing Temple Church to plaintiffs (“the Marsaw

Group”).' When he refused to purge himself of con-

tempt, Martin was committed to the Cook County

Jail.” Martin chose not to appeal the orders of the

circuit court and instead filed a motion with the

Illinois Supreme Court for leave to seek an original

writ of habeas corpus, a motion the Supreme Court

denied on August 27, 2007.*° Thereafter, Martin was

released from jail, the Richards Group was evicted

from the Church’s real property, Martin was purged

of his contempt, and the daily fines previously as-

sessed were discharged.* Neither the finding of con-

tempt nor Martin’s incarceration has any continuing

collateral consequences.

' Turnover Order, a copy of which is included in Respon-

dents’ Appendix (“RA”) la; Contempt Order, RA 4a; Amended

Contempt Order, RA 6a.

* RA 16a, 18a.

* Petitioner’s Appendix (“PA”) 32a.

* Release Order, RA 22a; Eviction Receipts, RA 24a-30a;

Purging Order, RA 32a.

2

The underlying judgment in Marsaw was af-

firmed by the Illinois Appellate Court’ and the IIli-

nois Supreme Court denied review on March 28,

2007;° the time for filing a petition for certiorari in

this Court expired on June 26, 2007. The Turnover

Order required delivery of the Church property on

June 29, 2007.’ Martin was held in contempt on July

19, 2007° and committed to jail on July 25, 2007.’ On

August 2, 2007, the Richards Group attempted to file

a petition for certiorari in this Court, which the Clerk

rejected as untimely. The Richards Group moved for

an order directing the Clerk to accept the petition or

for leave to file the petition out of time. This Court

denied that motion. Richards v. Marsaw, No 07M10

(Oct. 1, 2007).

Martin was released from jail on September 12,

2007, based on his agreement to assist the Marsaw

Group in obtaining possession of Church property.”

On September 14, 2007, his assistance became un-.

necessary, when the Cook County Sheriff evicted the

Richards Group from the Church’s real property.'' On

September 27, 2007, the circuit court entered an

> PA 1la-19a.

° PA 20a.

" RA la.

* RA 5a, 7a.

* RA 16a.

'° RA 22a.

" RA 24a-30a.

3

order vacating all fines against Martin and purging

him of his contempt.”

A. The Proceedings Below.

As the opinion of the appellate court reflects,

Marsaw was a contest for corporate control of Bethle-

hem Healing Temple Church and, thereby, of the

properties it owns.” From August, 2001 until they

were evicted by the Cook County Sheriff on Septem-

ber 14, 2007, the Richards Group had physical control

of all church properties.“ The appellate court has

described the “arduous and contorted path” of this

litigation as “[rjeminiscent of the Israelites flight

from Egypt.” Extensive proceedings, including two

appeals and a trial, resulted in an opinion and judg-

ment on September 23, 2004, that (1) the Richards

Group had never been lawful officers or directors of

Bethlehem and (2) candidates supported by the

Marsaw Group had won a court-ordered election and

were entitled to control Bethlehem’s properties.” As

noted above, that judgment was affirmed.

RA 32a.

'’ PA la.

* PA 2a.

PA la.

© PA 23a.

4

B. The Turnover Order and the Refusal

to Comply.

On June 12, 2007, the circuit court entered a

Turnover Order that ordered Defendants to “deliver

all personal and real property owned by Bethlehem to

the control of the lawful board of directors” including

“12 South Oakley, deeds and keys to properties” at

noon on June 29, 2007."

Having appeared at various proceedings to

contesi the Turnover Order, respondents to the Mar-

saw contempt proceedings (including Martin) were

well aware of the order. Martin was also personally

served with a copy of the Turnover Order.

Martin claims under and through the Marsaw

Defendants and is legally identified with them.

Martin’s trial testimony established that he and

Defendant Marcenia Richards “work[ed] together”

and “share[d] the responsibility of ministering.” After

this litigation began, he became a purported member

of the board and purported co-pastor of Bethlehem,

along with Defendant Marcenia Richards. The two of

them shared responsibilities which, by Martin’s own

testimony, included having “absolute authority to

make decisions regarding the business, the spiritual

life, the gathering of the congregation, and the inter-

action with the community.”

'” RA la-3a.

5

In a June 14, 2007, article in the Chicago De-

fender, Martin was featured prominently as the

pastor of Bethlehem Healing Temple and through the

use of “we” and “us,” identified himself as subject to

the June 12, 2007 Turnover Order. Martin was quoted

in the Chicago Defender article as saying, “Per the

court order, at 12 p.m. on June 29, we are to turn

everything over to them and after that I can’t come

back in there. I’m not walking out.” He went on to

say, “[j]ust because the court said to do this, we’re not.

They may have to bring the sheriff out to remove us.”

At noon on June 29, 2007, the court-declared

board and counsel went to receive control of Church

Property, including the church at 12 South Oakley.

Entry to 12 South Oakley was barred by Martin and

some of the defendants. William Barker, counsel for

the Marsaw Group, told Martin that they were there

to receive possession in accordance with the Turnover

Order. Martin responded that the Richards Group

would not give possession. Mr. Barker asked Martin

whether he was familiar with the Turnover Order,

and handed him a copy. Martin responded that he

was familiar with the Turnover Order and that it

would effectively evict the Richards Group from the

Church, He read the order and reiterated that they

would not comply. Marcenia Richards concurred.

Martin acted in active concert with defendants in

refusing to comply with the June 12, 2007 Turnover

Order, actually taking the lead in asserting that

refusal.

6

C. The Contempt Proceedings.

On June 29, 2007, the Marsaw Group filed a

Verified Petition for Rule to Show Cause in the circuit

court, asking that court to issue a rule to show cause

why Defendants and Martin should not be held in

contempt for refusing to comply with the June 12,

2007 Turnover Order. Or July 5, 2007, the circuit

court entered a Rule to Show Cause ordering Martin

and each other Respondent to “appear personally

before the Court [on July 19, 2007] and show cause

why he should not be held in civil contempt for the

violations of [the June 12, 2007 Turnover Order] and

committed to County Jail until he complies.”"* Martin

was personally served with a copy of this executed

Rule to Show Cause on July 13, 2007.

On July 19, 2007, Martin appeared before the

circuit court for an evidentiary hearing to determine

whether he and the other contempt respondents were

in contempt for not complying with the Turnover

Order. At all times during the contempt proceedings

and the hearings that followed, Martin was repre-

sented in the circuit court by counsel. After all evi-

dence and arguments were heard and after Martin

had been given a chance to fully present his case, the

circuit court entered an order (a) finding Martin, his

co-pastor Marcenia Richards, and Marie Oliver in

indirect civil contempt and (b) imposing a daily fine

'* RA 35a.

7

until they complied with the Turnover Order.” A

status was set for July 23, 2007 to determine whether

the contemnors had yet complied. On July 23, 2007,

Martin and Oliver again appeared before the circuit

court. At the July 23, 2007 hearing, Richards did not

appear and a body attachment was issued for her.

She has not yet been apprehended. Oliver purged

herself of contempt by testifying that she could not

compel compliance with the Turnover Order. Martin,

however, was unsuccessful at purging himself of

contempt and was ordered to appear again on July

25, 2007 to determine whether he had yet complied.

On July 25, 2007, the circuit court found that

Martin had not yet complied with the Turnover Order

and committed him to the custody of the Cook County

Sheriff until such time as he complied with the Turn-

over Order.” A status hearing was held July 26, 2007

to see if Martin had yet complied. At that time, coun-

sel for Martin argued that Martin did not have the

power to comply with the Turnover Order and re-

quested a hearing. A status hearing was set for July

27, 2007 to establish whether Martin had the power

to comply and whether he had yet complied.

On July 26, counsel for Martin filed a motion to

discharge Martin. Allegedly, Martin was improperly

held in contempt or had purged the contempt because

(1) Martin was not a party to the Marsaw case and

'* RA 5a, 7a.

* RA 16a, 20a.

8

was not ordered to do anything and (2) Martin had no

ability to comply.

When asked what efforts he had made to comply

with the Turnover Order or to persuade others to do

so, Martin testified that he met with Marcenia and

suggested compliance, but she objected. No one else

was consulted. He testified that only the board could

authorize compliance but admitted that no meeting

had been called. He admittedly had the keys after

June 12, but left them in his office when he no longer

wanted the responsibility for them. He admitted that

he drives a Mercedes furnished to him as pastor. He

admitted that a title admitted in evidence appeared

to be the title to that car. That title showed Richards

and Bethlehem Healing Temp!e Church as co-owners.

Martin admittedly had the keys until shortly before

he was incarcerated. He admittedly never offered to

turn them over.

On redirect, Martin testified to not having known

that the church was a co-owner of the Mercedes. After

evading questions about whether he would then turn

it over, if ordered to do so, he finally said “I suppose

”

SO.

The Marsaw Group called Loncie McCray who

testified that, on the evening of June 19, she had seen

Martin unlock the church at about 10:00 p.m.

The circuit court ruled that Martin had not

purged his contempt. He still had the ability to com-

ply, and even if he had relinquished that power when

he left the keys, a voluntary relinquishment of the

9

power to comply would not discharge the obligation to

do so. The court specifically commented that, even

when his own lawyer asked Martin to agree to turn

over the car, it was like pulling teeth to get an

equivocally affirmative answer.

D. Background of the Dispute.

This litigation began as a suit against the late

Bishop Arcenia C. Richards, then pastor of Bethle-

hem, and others (including his daughter, Marcenia

Richards) whom he purported to have appointed as

directors of Bethlehem. Plaintiffs sought, inter alia,

an election of directors in accordance with Bethle-

hem’s Articles and a declaration that certain “bylaws”

purportedly adopted by the Richards Group were

void.

The Richards Group initially persuaded the

circuit court to dismiss for want of jurisdiction.” The

Appellate Court disagreed, and remanded for factual

findings of fact. and to apply “‘neutral principles’”

analysis to determine which group should control

Bethlehem.”

The Marsaw Group relied on Bethlehem’s Arti-

cles, which the Appellate Court’s unreported prior

" PA 2a.

* PA 2a.

eel

10

opinion sometimes referred to as the “original consti-

tution.” The Articles provide that the directors are

to be elected by the “members of the church.”” The

Richards Group relied on a set of purported bylaws,

which the Appellate Court’s unreported prior opinion

sometimes referred to as the “2000 constitution.” The

Appellate Court mandated that the circuit court

“determine whether the original constitution remains

in effect or if the 2000 constitution was validly passed

and supersedes the original constitution.”” After a

two-week bench trial, the circuit court determined, in

rulings that were not appealed, that Bishop Richards’

appointment of the “board” that purportedly adopted

the “bylaws” was unauthorized and its actions void:

There is no authority that enables the pastor

... to unilaterally appoint directors. ... This

Court agrees with plaintiffs that the July

llth appointment of directors by Bishop

Richards was null and void. Consequently,

the subsequent actions of that board are also

null and void.”

* * *

.... The 1980 Articles of Incorporation

are the only valid document that determines

* RA 49a.

“ RA 39a; Articles of Incorporation, Pls.’ Ex. 1, at 10.

* RA 49a.

* PA 25a.

11

control of Bethlehem and the purported 2000

constitution is void.”

The circuit court then rejected claims that cer-

tain members of the Marsaw Group were the lawful

directors.” In the absence of any current lawful

directors, the court ordered an election.” Plaintiffs’

candidates were declared to be the lawful board,

entitled to possess Bethlehem’s properties.”

As the opinion of the Appellate Court reflects, the

Bethlehem congregation was founded in 1932 by the

late Bishop Charles E. Poole and his wife Evangelist

Mattie B. Poole as a church in the Pentecos-

tal/Apostolic tradition.” Bethlehem quickly acquired

a following of hundreds of people, and, in 1961,

acquired its current home at 12 South Oakley Boule-

vard.”

Bishop Poole and other church leaders incorpo-

rated Bethlehem on June 20, 1980, as the “Bethlehem

Healing Temple Church,” under the General Not-for-

profit Corporation Act.” The Articles named an initial

board of directors, and provided that “the business of

7 PA 27a.

* PA 27a.

* PA 27a.

*° PA 29a.

* Church History in Bishop Poole’s Funeral Program, Jan.

21, 1984, Pls.’ Ex. 65 at 2.

* Id. at 2-3.

* Articles 1-3.

12

the church (corporation) shall be managed by its

board of directors."“ “An annual meeting of the

members of the church shall be held on the second

Tuesday in July of each year for the purpose of elect-

ing directors.”” Special meetings “of the members of

the church” for the purpose of filling vacancies in the

board could be called by the board or by not less than

one-fifth of all the members.” The board may desig-

nate the place for any annual or special meeting. The

board could fix a record date to determine the “mem-

bers of the church” entitled to vote.’ Membership

rosters were required to be maintained by “[t]he

officer having charge of the membership records of

the corporation (church)” and made available for

inspection.” “In all elections for directors, every

member shall have the nght to vote” using cumula-

tive voting.”

The evidence is undisputed that, prior to 2001 no

one in the congregation (other than the incorporators,

Bishop Richards, and the few ciose associates Bishop

Richards told) knew the corporation existed, there

were no meetings of the members of the church to

* Articles 2, 10.

* Articles 8.

* Articles 8.

* Articles 8.

* Articles 9.

* Articles 10.

13

elect directors, and the board of directors never

functioned.”

In 1984, Bethlehem’s founder and pastor, Bishop

Poole, died.“* The congregation organized an election,

constructing an agreed roster of members entitled to

vote.” Bishop Richards was elected to become the

new pastor.” As the circuit court noted, “[hlad Bishop

Poole engaged in nepotism and appointed a family

member as his successor, Bishop Richards would

never have become pastor.”“ Rather, Bishop Richards

became pastor by the authority of a congregational

vote.

In 2001, a dispute arose over church finances,

and, in May, 2001, the congregation voted 192-20 to

remove Bishop Richards as pastor.” He refused to

step down, and this litigation ensued. Before his

death in August, 2001, Bishop Richards purported to

appoint his daughter Marcenia to succeed him as

© PA 4a.

“ PA 3a.

* PA 3a; Report of Proceedings (“RP”) Vol. 17 at 47:4-22;

Pls.’ Ex. 24.

* PA 3a.

“ PA 25a.

“ PA 3a.

* PA 3a.

14

REASONS FOR DENYING THE WRIT

I. THERE IS NO JURISDICTION TO REVIEW

THIS MATTER, WHICH IS MOOT AND

NOT CAPABLE OF REPETITION, AS PE-

TITIONER HAS BEEN RELEASED FROM

JAIL AND PURGED OF CONTEMPT AND

FINES.

“[T]hose who seek to invoke the jurisdiction of

the federal courts must satisfy the threshold re-

quirement imposed by Art. III of the Constitution by

alleging an actual case or controversy.”* Moot cases

do not satisfy the case or controversy requirement

because a judicial decision can no longer grant any

favorable relief.“ A criminal case is moot upon the

convict’s release unless collateral consequences will

be imposed on the basis of the conviction.” This

principle holds even stronger for civil contempt once

the contempt has been purged.” “Unlike a criminal

“ L.A. v. Lyons, 461 U.S. 95, 101 (1983).

* Iron Arrow Honor Soc. v. Heckler, 464 U.S. 67, 70 (1983).

* Sibron v. New York, 392 U.S. 40, 57 (1968).

° In re Campbell, 628 F.2d 1260, 1261 (9th Cir. 1980) (“A

long line of precedent holds that once a civil contempt order is

purged, no live case or controversy remains for adjudication.”)

(citing Marshall v. Whittaker Corp., 610 F.2d 1141 (3d Cir. 1979);

Securities and Exchange Commission v. Sloan, 535 F.2d 679 (2d

Cir. 1976); cert. denied, 430 U.S. 966 (1977); Matter of Berry, 521

F.2d 179 (10th Cir.), cert. denied, 423 U.S. 928 (1975); United

States v. Watson Chapel School District No. 24, 446 F.2d 933 (8th

Cir.), cert. denied, 404 U.S. 1059 (1971); Federal Trade Commis-

sion v. Stroiman, 428 F.2d 808 (8th Cir. 1970); Murrell v. United

(Continued on following p.ge)

15

conviction or involuntary commitment to a mental

hospital, an adjudication of civil contempt carries

with it no possibility of collateral deprivations of civil

rights or other specifically legal consequences.””

Though he was incarcerated for civil contempt,

Martin has been released from custody, has fully

complied with the circuit court’s order, and has had

all fines vacated and contempt purged. The contempt

order is moot as to Martin.

II. THERE IS NO JURISDICTION TO REVIEW

THE ILLINOIS SUPREME COURT’S OR-

DER BECAUSE (1) NO FEDERAL CLAIM

WAS PRESENTED BELOW AND (2) THERE

ARE ADEQUATE AND INDEPENDENT

STATE GROUNDS FOR THAT ORDER.

It is well established that this Court does not

have jurisdiction to review state court orders “if that

judgment rests on a state-law ground that is both

‘independent’ of the merits of the federal claim and an

‘adequate’ basis for the court’s decision.”” Moreover,

in order for this Court to have jurisdiction, the record

must affirmatively show not only that a federal

question was presented, but that the state court's

decision of the federal question “was necessary to the

States, 253 F.2d 267 (5th Cir. 1958); Securities and Exchange

Commission v. Laird, 598 F.2d 1162 (9th Cir. 1979)).

*' Marshall, 610 F.2d at 1145.

* Harris v. Reed, 489 U.S. 255, 260 (1989).

16

determination of the cause, and that it was actually

decided or that the judgment as rendered could not

have been given without deciding it.”” “[I]f it does not

appear upon which of two grounds the judgment was

based, and the ground independent of a federal

question is sufficient in itself to sustain it, this Court

will not take jurisdiction.”™

The decision that is the subject of the instant

petition is that of the Illinois Supreme Court denying

a motion brought by Martin pursuant to Sections 4(a)

and 16 of Article VI of the Illinois Constitution and

under Illinois Supreme Court Rule 381. Martin pled

solely pursuant to Illinois law and did not plead

pursuant to any federal statute or federal constitu-

tional right. Martin’s failure to assert any federal

claim means that none was adjudicated below, unless

the Illinois Supreme Court raised and decided such

an issue sua sponte.

Illinois state law does provide for original actions

relating to habeas corpus, but Rule 381 merely allows

for a motion requesting leave to file, giving the Illinois

Supreme Court discretion whether to allow the filing of

a complaint.” An original action for habeas corpus is

not only discretionary, it is also an “extraordinary

“ Lynch v. New York, 293 U.S. 52, 55 (1934) (citations

omitted).

“ Td. (citations omitted).

* Tl. Sup. Ct., R. 381.

17

remedy” which “may not be used to perform the

functions of an appeal.””

In the instant case, Martin chose not to take an

appeal of right in the appellate court, but instead

filed a discretionary extraordinary writ in the Illinois

Supreme Court. As such, state law provided the

Illinois Supreme Court with adequate and independ-

ent state-law grounds to exercise its discretion and

deny Martin’s motion.

The decision of the Illinois Supreme Court is

silent as to the grounds on which it based its decision,

and nothing in the record affirmatively shows that

the Illinois Supreme Court relied on federal law in

denying Martin’s motion for leave to seek an original

writ of habeas corpus pursuant to Illinois law. Absent

an affirmative showing that this decision was based

on federal law, the Court should not take jurisdiction,

given the state grounds that are adequate and inde-

pendent.

* People ex rel. Kazubowski v. Ray, 272 N.E.2d 225, 227 (Ill.

1971).

18

Ill. DIRECT APPEALS FROM THE UNDERLY-

ING JUDGMENT HAVE BEEN EXHAUSTED

AND AN ATTEMPTED PETITION FOR

CERTIORARI WAS UNTIMELY; PETI-

TIONER MAY NOT USE THE INSTANT AC-

TION TO COLLATERALLY ATTACK THE

UNDERLYING JUDGMENT.

Even if ultimately ruled incorrect, court orders

must be obeyed until overruled on appeal.” “[{A]

contempt proceeding does not open to reconsideration

the legal or factual basis of the order alleged to have

been disobeyed and thus become a retrial of the

original controversy.”” In his petition, Martin tries to

raise issues regarding the action underlying the

Turnover Order, but raising this in a review of the

Illinois Supreme Court habeas corpus order is a

collateral attack and should be barred.

The underlying decision in Marsaw has been

completely litigated and should not be relitigated in

these proceedings. The opportunities to appeal the

judgment have been exhausted. The Richards Group

appealed to the Illinois Appellate Court and lost. It

filed a petition for leave to appeal in the [Illinois

Supreme Court and was denied. Rather than file a

timely petition in this Court, it sought leave to file a

motion of reconsideration in the Illinois Supreme

Court twice and was denied both times. When the

*” Maness v. Meyers, 419 U.S. 449, 458 (1975).

* Maggio v. Zeitz, 333 U.S. 56, 69 (1948).

19

Richards Group did attempt to file a petition for writ

of certiorari in this Court, it was properly denied as

untimely.

All direct appeals from the Marsaw judgment

have been exhausted, making that judgment final.

Martin may not attack that judgment in the instant

petition.

IV. THE CIRCUIT COURT HAD PROPER

PERSONAL AND SUBJECT MATTER JU-

RISDICTION TO ENTER AN ORDER OF

CONTEMPT AGAINST PETITIONER, WHO

WAS ACTING IN ACTIVE CONCERT WITH

PARTIES TO VIOLATE THE COQURT’S OR-

DER.

The Illinois Code of Civil Procedure establishes

that “[elvery order granting an injunction ... is

binding ... upon the parties to the action ... and

upon those persons in active concert or participation

with them who receive actual notice of the order by

personal service or otherwise.”” This proposition also

applies to affirmative injunctions such as the one at

issue in the underlying case.”

* 735 ILCS 5/11-101 (emphasis added).

* People ex rel. Scott v. Master Barbers & Beauty Culturists

Ass'n, 293 N.E.2d 393, 396-97 (Ill. App. Ct. 1973) (holding that a

nonparty not served with process could still be in contempt for

not complying with an injunction because he had met with the

enjoined party and took actions that aligned with the enjoined

(Continued on following page)

20

While Martin was not a party to the Marsaw

action, he was very closely affiliated with the Rich-

ards Group prior to and at the time he was held in

contempt. On June 29, 2007, Martin took the lead in

refusing to obey the Turnover Order. Martin's actions

in concert with the Richards Group and his knowl-

edge of the Turnover Order subjected him to the

jurisdiction of the circuit court for purposes of enter-

ing a contempt order.

There can be no serious claim that Illinois law

authorizing contempt proceedings against nonparties

is unconstitutional. Rule 65(d) of the Federal Rules of

Civil Procedure likewise allows a court to hold “a

nonparty in contempt if that person has ‘actual

knowledge’ of the court order and ‘either abets the

{party named in the court order] or is legally identi-

fied with him.’””

Martin had actual knowledge of the Turnover

Oider. He was quoted in the June 14, 2007 issue of

the Chicago Defender acknowledging the existence of

the order and stating the intent to defy it. He was

present in court on June 19, 2007, accompanying

Marcenia Richards when she presented a motion to

vacate the Turnover Order. On June 29, 2007, he

acknowledged familiarity with the order, and a copy

of the order was exhibited to him. Nonetheless, he

party’s interests); see also Stavros v,. Karkomi, 349 N.E.2d 599,

606 (Ill. App. Ct. 1976).

*" Stotler & Co. v. Able, 870 F.2d 1158, 1164 (7th Cir. 1989).

21

repeatedly refused to comply. Accordingly, the circuit

court had jurisdiction to hold him in civil contempt

for refusing to comply with the Turnover Order.

©

CONCLUSION

For the foregoing reasons, the petition for certio-

rari should be denied.

Respectfully submitted,

WILLIAM T. BARKER

Counsel of Record

DaviD R. GEERDES

SONNENSCHEIN NATH &

ROSENTHAL LLP

233 South Wacker Dr., Ste. 7800

Chicago, Illinois 60606

(312) 876-8000

Attorneys for the Plaintiffs

(Prevailing Parties) in

Marsaw v. Richards,

No. 01 CH 16442

(Cir. Ct. Cook County)

la

IN THE CIRCUIT COURT OF COOK COUNTY

COUNTY DEPARTMENT,

CHANCERY DIVISION

)

)

CLARENCE BROWNLOW, )

LONCIE McCRAY, and )

EUGENE PRICE, Directors )

of Bethlehem Healing )

Temple Church, Inc.; )

GEORGE GIBSON, )

Member of Bethlehem )

Healing Temple Church; _)

LIVING WITNESSES OF )

THE APOSTOLIC FAITH, )

INC.; and CLORD JORDAN, )

Presiding Bishop ofthe _) Case No. 01 CH 16442

Living Witnesses of the ) Judge

Apostolic Faith, and

Administrator of Bethlehem Kathleen M. Pantle

Healing Temple Church,

Plaintiffs,

)

)

)

)

)

Vv. )

MARCENIA J. RICHARDS, )

LELA WALKER, MARIE )

OLIVER, MICHAEL )

MORRIS, A.C. RICHARDS, )

JR. and BETHLEHEM +»)

HEALING TEMPLE

CHURCH, INC.,

)

Defendants.

2a

Turnover Order

This Court having previously entered an Order

recognizing the legitimate Board of Directors elected

on September 21, 2004 and an Order of Possession on

October 1, 2001, the Board of Directors having de-

cided that Defendant-Appellants should not retain

control of church assets,

The Illinois Supreme Court having (1) entered a

stay of the proceedings in this Court pending the

outcome of Defendants petition for leave to appeal, (2)

denied Defendants petition for leave to appeal, (3)

denied Defendants subsequent motions for reconsid-

eration, and (4) issued the Mandate to the Appellate

Court,

The Appellate Court having issued the mandate

to this Court,

IT IS HEREBY ORDERED THAT:

a) At noon on June 29, 2007, or at such earlier

time as the parties may agree, at 12 South Oak-

ley or at such other place as the parties may

agree, Defendants shall deliver all personal and

real property owned by Bethlehem to the control

of the lawful board of directors including such in-

dividuals as the lawful board of directors, or a

majority of its members, directs to manage or

control the property. Defendants shall vacate

all Bethlehem property except that which they

occupy exclusively as a residence. Defendants

shall take all steps necessary to facilitate the

transfer of all Bethlehem property including all

real and personal property including 2204 West

3a

Washington, 114 North Leavitt, 2236 West Mon-

roe, 12 South Oakley, deeds and keys to proper-

ties, buildings, equipment, records, vehicles,

vehicle keys and titles, post office box keys, safe

deposit box keys, computers, bank accounts, in-

surance policies, utility accounts, and any assets

or accounts of any kind owned by Bethlehem.

b) Defendants shall cooperate fully with the

transition of power that is hereby ordered.

c) Plaintiffs’ request for an award of costs is de-

ferred for separate consideration.

Issues regarding Plaintiffs’ demand for an ac-

counting remain to be decided. But this Court found

that there was no just reason to delay enforcement or

appeal of its September 23, 2004 Order, which this

Order enforces, pending resolution of that issue.

Accordingly, this Order is enforceable immediately.

Entered: Kathleen M. Pantle

Judge Kathleen M. Pantle

Date: June 12, 2007

4a

IN THE CIRCUIT COURT OF COOK COUNTY

COUNTY DEPARTMENT -

CHANCERY DIVISION

ROOSEVELT MARSAW, +)

et al, )

Plaintiffs,

Vs. ) No. 01 CH 16442

MARCENIA RICHARDS, _)

et al.,

Defendants. )

ORDER OF INDIRECT CIVIL CONTEMPT

This matter comes to be heard on Plaintiffs’

Petition for a Rule to Show Cause; Defendants Mar-

cenia Richards, Larry Martin, and Marie Oliver

having been properly served and appearing in open

court; the Court having subject matter jurisdiction; IT

IS HEREBY FOUND AND ORDERED:

This Court entered a lawful Order on June 12,

2007 (“turnover Order”) commanding defendants to

turn over property belonging to Bethlehem Healing

Temple Church (“Bethlehem”) to plaintiffs by noon on

June 29, 2007.

Each defendant has been properly served with

the turnover Order of June 12, 2007. Defendants and

each of them have violated this Order by failing to

turn over the property belonging to Bethlehem as set

forth in the Order.

5a

Defendants and each of them have been given a

reasonable opportunity to comply with this Order,

including, but not limited to an encounter between

plaintiffs and plaintiffs’ counsel on June 29, 2007,

shortly after 12:00 p.m.

Defendants’ refusal to comply is willful and

contumacious.

Accordingly, an adjudication of civil contempt is

hereby entered, and sanctions are imposed as follows:

Each defendant shall be fined $200.00 per day

every day until the court Order of June 12, 2007 is

complied with. The fine shall be paid to the Clerk of the

Circuit Court of Cook County. Any monies belonging to

Bethlehem shall NOT be used for this purpose. Only

personal monies belonging defendants shall be used.

Defendants may purge themselves of this con-

tempt by delivering to plaintiffs or plaintiffs’ counsel,

the law firm of Sonnenschein Nath & Rosenthal,

L.L.C., the property of Bethlehem.

This matter is set for further status on July 23,

2007 at 1:30 p.m. at which time this Court will con-

sider further sanctions should the Order not be

complied with by that date and time.

DATE: July 19, 2007

Kathleen M. Pantle

Kathleen M. Pantle

6a

IN THE CIRCUIT COURT OF COOK COUNTY

COUNTY DEPARTMENT,

CHANCERY DIVISION

ROOSEVELT MARSAW, )

et al, )

viasneegeti No. 01 CH 16442

7" ) Judge

MARCENIA J. RICHARDS, ) Kathleen M. Pantle

et al., )

Defendants. )

AMENDED ORDER OF

INDIRECT CIVIL CONTEMPT

On July 19, 2007, this Court entered an Order of

Indirect Civil Contempt, based upon oral findings and

oral statements of the conduct required to purge the

contempt, all which were transcribed by a court

reporter; this Amended Order is entered nunc pro

tunc to memorialize those oral findings and oral

statements.

This matter comes to be heard on Plaintiffs’

Petition for a Rule to Show Cause; Defendants Mar-

cenia Richards, Larry Martin, and Marie Oliver

having been properly served and appearing in open

court; the Court having subject matter jurisdiction; IT

IS HEREBY FOUND AND ORDERED:

The oral findings of this Court, attached hereto,

made at the close of the Jul:- 19, 2007 hearing on a

7a

rule to show cause, are hereby incorporated into this

Order.

This Court entered a lawful Order on June 12,

2007 (“Turnover Order”) commanding defendants to

turn over property belonging to Bethlehem Healing

Temple Church (“Bethlehem”) to plaintiffs by noon on

June 29, 2007.

Each defendant has been properly served with

the Turnover Order of June 12, 2007. Respondents

and each of them have violated this Order by failing

to turn over the property belonging to Bethlehem as

set forth in the Order.

Respondents and each of them have been given a

reasonable opportunity to comply with this Order,

including, but not limited to an encounter with plain-

tiffs and plaintiffs’ counsel on June 29, 2007, shortly

after 12:00 p.m.

Respondents’ refusal to comply is willful and

contumacious.

Accordingly, an adjudication of civil contempt is

hereby entered, and sanctions are imposed as follows:

Each defendant shall be fined $200.00 per day

every day until the court Order of June 12, 2007 is

complied with. The fine shall be paid to the Clerk of

the Circuit Court of Cook County. Any monies belong-

ing to Bethlehem shall NOT be used for this purpose.

Only personal monies belonging to Respondents shall

be used.

8a

Respondents may purge themselves of this

contempt by delivering all corporate property to

plaintiffs, plaintiffs’ counsel, the law firm of Sonnen-

schein Nath & Rosenthal, LLP, or one of the lawful

directors of Bethlehem, Loncie McCray, Clarence

Brownlow, James Ketchum, Chester Hudson, or

Eugene Price, the property of Bethlehem.

Date: September 6, 2007

Entered: Kathleen M. Pantle

Judge Kathleen M. Pantle

Attorneys for Plaintiffs

William T. Barker

Terrance A. Norton

David R. Geerdes

Sonnenschein Nath

& Rosenthal LLP

8000 Sears Tower

Chicago, Illinois 60606

(312) 876-8000

9a

STATE OF ILLINOIS )

} SS:

COUNTY OF COOK )

IN THE CIRCUIT COURT OF

COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT — CHANCERY DIVISION

ROOSEVELT MARSAW, )

CHESTER HUDSON, CLARENCE )

BROWNLOW, LONCIE McCRAY, )

and EUGENE PRICE, Directors )

of Bethlehem Healing Temple )

Church, Inc; GEORGE GIBSON, )

Member of Bethlehem Healing )

Temple Church; LIVING WIT- )

NESSES OF THE APOSTOLIC _)

FAITH, INC.; and CLORD )

JORDAN, Presiding Bishop of the _ )

Living Witnesses of the Apostolic)

Faith, and Administrator of Beth- ) No. 01 CH 16442

lehem Healing Temple Church, )

)

)

)

)

)

)

)

)

)

)

Plaintiffs,

vs.

MARCENIA J. RICHARDS, LELA

WALKER, MARIE OLIVER,

MICHAEL MORRIS, A.C.

RICHARDS JR., and

BETHLEHEM HEALING

TEMPLE CHURCH, INC.,

Defendants.

10a

REPORT OF PROCEEDINGS had at the hearing

of the above-entitled cause before the Honorable

KATHLEEN M. PANTLE, Judge of said Court, in

Room 2410, Richard J. Daley Center, Chicago, Illi-

nois, on the 19th day of July, 2007, at the hour of 1:30

o’clock p.m.

PRESENT:

SONNENSCHEIN NATH & ROSENTHAL LLP

BY: MR. ANTHONY T. ELISEUSON

MR. DAVID R. GEERDES

8000 Sears Tower

Chicago, Illinois 60606

Appeared on behalf of the Plaintiffs;

RICHARDSON & MACKOFF

BY: MR. TRAVIS RICHARDSON

400 South Dearborn Street

Chicago, Illinois 60605

Appeared on behalf of the Defendants.

REPORTED BY:

KIMBERLY WINKLER CHRISTOPHER, CSR, RPR

CERTIFICATE NO. 084-00275

[117] Thank you, your Honor.

THE COURT: Okay. Having heard all the

evidence, the arguments of both sides, my findings

are as follows: That this matter has come to be heard

on plaintiffs’ verified petition for a rule to show cause.

Marie Oliver, Marcenia Richards, and Larry Martin

having been properly served with the petition and

lla

appearing here in open court. The court does have

subject matter jurisdiction over these proceedings.

This court entered a lawful order dated June

12th, 2007, ordering the defendants to turn over

property belonging to Bethlehem Healing Temple

Church by noon on June 12th — I’m sorry — June 29th,

2007. Each defendant has been properly served with

a copy of this court order.

I believe the court order is clear, though there

may be some -— the court order is clear. It asks for

deeds and keys to the property. There’s no dispute

about what is meant by that. Buildings, records,

vehicles, vehicle keys and titles, post office box keys,

safety-deposit box keys, computers, bank accounts,

insurance policies, utility accounts.

[118] The defense argues that equipment may be

construed to be vague, assets and accounts of any

kind may be construed to be vague. The problem I’m

having here is that, first of all, I don’t think that in

and of themselves are vague; but in any event, noth-

ing has been turned over. If it was just a failure to

turn over equipment and any assets and accounts,

you know, that would be one thing. But it’s not. It’s a

flat-out refusal to turn anything over. And the court

order has spelled out with specificity what exactly the

plaintiffs are looking for and what they’re entitled to.

But this court order is based on previous rulings

by Thomas Quinn of the Circuit Court of Cook

County, which ruling was affirmed by the appellate

court. PLA was denied by the Illinois Supreme Court.

12a

The defendants Oliver, Richards, and Martin have

violated this court order by failing to turn over the

property belonging to Bethlehem; that they were

given reasonable opportunities to turn over the

properties, specifically on June 29th, 2007.

After 12:00 p.m. when plaintiffs — that [119]

being the board of directors, which was lawfully

elected -— and plaintiffs’ counsel William Barker

appeared and asked for the property, the defendants

without any justification contumaciously and willfully

refused to turn over the property to the lawful board

of directors, that being the plaintiffs.

Lela Walker is not going to be included in this

contempt order because I don’t have any evidence

that she’s been served, and it’s my understanding

she’s an elderly woman with some health problems

here. And also Pastor Hudson testified that he wasn’t

sure that she was there. So just to be clear, this order

refers to defendants Oliver, Richards, and Martin.

But the defendants have had the opportunity to

comply; that they have refused to comply; that there

have been several court dates. They have had all this

time. It’s now July 19th. They could comply at any

time merely by turning the property over to the

lawful board of directors.

There is an adjudication of civil contempt; that

the defendants Oliver, Richards, [120] and Martin are

found in contempt; that they have refused — willfully

refused to obey the lawful order of the court. This is

beyond the point of negotiation.

13a

Judge Quinn’s order was entered in 2004. I

understand that there was an appeal. I don’t have a

problem with the order being stayed pending the

appeal. Obviously that was lawful. But the mandate

has issued some time ago. The order was entered

some time ago. This is beyond the point of negotia-

tion.

So at this point sanctions are as follows: Each

defendant will pay a 200-dollar per day fine for every

day that they refuse to turn the property over, the

payments to be made to the Clerk of the Circuit Court

of Cook County.

The funds are not to be taken from church funds.

If funds are taken from any monies belonging to the

church, that being Bethlehem Healing Temple

Church, this court will contact the Cook County

State’s Attorney office to initiate criminal contempt

proceedings and possibly theft proceedings. That

would be the recommendation of the court.

[121] So now obviously the Cook County State’s

Attorney’s office — the State’s Attorney being the

elected prosecutor, it’s up to them whether or not to

file the charges. But in any event, the court will

contact the State’s Attorney’s office and recommend

that they initiate criminal contempt proceedings at

the very Jeast against the defendants if any monies

from the church are used.

Defendants may purge themselves of this fine by

turning over the property to any one of the members of

the board of directors or to plaintiffs’ counsel, any — if

l4a

they want to drop the keys off at the offices of Son-

nenschein Nath & Rosenthal, that’s fine with me.

They don’t even have to turn them over to Mr. Barker.

They can turn them over to any attorney at Sonnen-

schein.

We are going to give this a status date of Monday,

July 23rd. If defendants have not purged themselves

of the contempt on that date, then I will take up the

issue of other sanctions. And other sanctions can

include time at the Cook County Jail; that being that

the defendants at that point could be ordered to the

custody of the Cook County Sheriff until they purge

themselves.

[122] So from today until Monday it’s a 200-dollar

a day per fine, fine per day until they purge them-

selves. If they haven’t purged themselves by Monday

morning at 9:30, then at that point the court will

consider other sanctions, including time at the Cook

County Jail.

The defendants are not to leave the courtroom.

The sheriff is directed to keep them there until they

are — do you have a draft order or do you think we

need to type one up?

MR. ELISEUSON: I think we'll need to

type one up.

THE COURT: Okay. I'll go — you don’t have

a draft order?

MR. GEERDES: Not for fines.

15a

MR. ELISEUSON: We can probably —

THE COURT: Can I see your order because

we can amend the order you have.

MR. RICHARDSON: [Id like to see it, too,

before that happens.

Your Honor, for the record, I understand the per

diem is not each individual but —

THE COURT: Yes. It’s $200 a day per

defendant.

16a

IN THE CIRCUIT COURT OF

COOK COUNTY, ILLINOIS

MARSAW, ET AL. Plaintiffs

Vv. No. 01 CH 16442

RICHARDS, ET AL., Defendants.

ORDER OF COMMITMENT*

After a hearing on a rule to show cause,*

It is found that respondent Larry Martin is guilty

of willful contempt for refusing to comply with this

Court’s Turnover Order dated June 12, 2007.

It is ordered that the sheriff take and keep

custody of Larry Martin until such time as he

chooses to comply with this Court’s Turnover Order

dated June 12, 2007 or until released by process

of law. (The Sheriff is directed to brifrig Larry Martin

back to the Court at 3:00 on June 26, 2007.] Fhe

eommitment shal net tHtegtbte+

July 25, 2007

Kathleen M. Pantle 1775

Judge Judge’s No.

Atty. No.: 90784

Name: David R. Geerdes

Atty. for: Plaintiffs

Address: 233 S. Wacker Dr., Ste. 7800

* Delete if inapplicable.

17a

City/State/Zip: Chicago, IL 60606

Telephone: (312) 876-8000

18a

IN THE CIRCUIT COURT OF COOK COUNTY

COUNTY DEPARTMENT,

CHANCERY DIVISION

ROOSEVELT ) No. 01 CH 16442

MARSAVW, et al., ) Judge

Plaintiffs, ) Kathleen M. Pantle

: }

MARCENIA J. )

RICHARDS, et al., )

Defendants. )

AMENDED ORDER OF COMMITMENT

After a hearing on a rule to show cause held on

July 19, 2007, IT IS HEREBY FOUND AND OR-

DERED:

On July 19, 2007, this Court found Respondent

Larry Martin in indirect civil contempt based upon

transcribed oral findings, which are memorialized in

an Amended Order of Indirect Civil Contempt, dated

September 6, 2007, the contents of which are incorpo-

rated in this order by reference.

On July 25, 2007, at a hearing where Martin was

represented by attorneys Travis Richardson and

Clarence Burch, this Court found that Martin had not

purged himself of contempt and was then unwilling to

deliver possession to the lawful board of Bethlehem

Healing Temple Church (Bethlehem) or to assist the

lawful board in obtaining possession. Accordingly, this

Court entered an order committing Martin to the

19a

custody of the sheriff until such time as he chooses to

comply with the June 12, 2007 Turnover Order.

On July 27, 2007, Martin, again represented by

Messrs. Richardson and Burch, appeared before this

Court for a hearing, seeking to purge himself of

contempt. At that time, this Court found that Martin

had acted in concert with the defendants in refusing

to comply with the June 12, 2007 Turnover Order.

This Court found that Martin has been co-pastor at

Bethlehem for four years. Martin conversed with the

lawful board of directors of Bethlehem and plaintiffs’

counsel on June 29, 2007 around noon, the time by

which defendants were ordered to turn over Bethle-

hem property to the lawful board. At that time,

Martin refused to turn over any Bethlehem property.

Martin testified that he did not, at that time or

since, have possession of the keys to any of Bethle-

hem’s properties. But he admitted that this was

because, after entry of the Turnover Order, he had

voluntarily left those keys in his office in the Church

at 12 South Oakley, obtaining entry thereafter by

having a custodian open the property. Martin had

previously refused to tell this Court the name of the

custodian or to direct the custodian to allow the

lawful board of directors to enter and take possession.

Moreover, Martin admitted that he had had posses-

sion of a car owned 50% by Bethlehem, which he

claimed not to have known was corporate property.

When asked by his own lawyer whether he would

now turn over the car, if ordered to do so, the most

20a

affirmative response Martin could manage was “I

suppose so.”

Martin has not shown that he made reasonably

diligent efforts to comply with this Court’s Turnover

Order or that he is now willing to do so. Martin had

the power to comply with the Turnover Order, but

had repeatedly refused to do so and continued to

refuse. He still has the ability to comply, and even if

he had relinquished that power when he left the keys,

a voluntary relinquishment of the power to comply

would not discharge the obligation to do so.

Respondent Larry Martin is guilty of willful

contempt for refusing to comply with this Court’s

Turnover Order dated June 12, 2007. It is ordered

that the sheriff keep custody of Larry Martin until

such time as he chooses to purge himself of contempt

by delivering to plaintiffs, plaintiffs’ counsel, the law

firm of Sonnenschein Nath & Rosenthal, LLP, or one

of the lawful directors of Bethlehem; Loncie McCray,

Clarence Brownlow, James Ketchum, Chester Hud-

son, or Eugene Price, the property belonging to Beth-

lehem Healing Temple Church (“Bethlehem”)

identified in this Court’s June 12, 2007 Turnover

Order or until released by process of law.

Date: September 6, 2007

Entered: Kathleen M. Pantle

Judge Kathleen M. Pantle

Attorneys for Plaintiffs

William T. Barker

Terrance A. Norton

ef:

2la

David R. Geerdes

Sonnenschein Nath & Rosenthal LLP

8000 Sears Tower

Chicago, Illinois 60606

(312) 876-8000

22a

IN THE CIRCUIT COURT OF

COOK COUNTY, ILLINOIS

Marsaw, et al

Plaintiffs

Vv. No. 01 CH 16442

Richards, et al

Defendants

ORDER

This matter having come before this Court on

status and the Court being fully advised on the

premises IT IS HEREBY ORDERED:

eustedy-on September 12-2007.

Judge Pantle orders the release of Larry Martin

from the custody of the Cook County Sheriff’s De-

partment from 26th and California and the Daley

Center immediately today on September 12, 2007.

ENTERED:

Dated: SEP 12, 2007

Kathleen M. Pantle 1775

Judge Judge’s No.

Atty. No.: 90784

Name: David Geerdes

Atty. for: Plaintiffs

Address: 7800 Sears Tower

23a

City/State/Zip: Chicago, IL 60606

Telephone: 312-876-8000

24a

[LOGO] Office of the Sheriff [LOGO]

of Cook County

Thomas J. Dart, Sheriff

By order of the Circuit Court of Cook County, posses-

sion of the real property located at:

12. S Oakly Chgo, Cook County, _ Illinois

(Street Address) (City)

has been tendered to Roosevelt Marsaw,

(Printed Name of Plaintiff/

[Agent for Plaintiff})

Plaintiff /|Agent for Plaintiff|

(Circle One)

The Sheriff of Cook County has removed all persons

from the real property. Absent any furnishings and/or

appliances provided by the landlord, the property left

inside the premises is the personal property of the

persons evicted. The plaintiff understands and agrees

the defendant and/or any other interested third party

shall be afforded a reasonable time to claim his/her

personalty and to have the property removed from

the premises. The removal of personal property will

be at the discretion of the plaintiff and does not

require the plaintiff to allow the defendant into the

premises. The plaintiff understands that depriving

persons of their personal property may be actionable

both criminally and civilly under the laws of the State

of Illinois and the United States of America.

25a

Sheriff's Number: 118272 Case Number: 01CH16442

Possession tendered to: /s/ X David R.Geerdes 9/14

Signature of Date

Plaintiff/Agent

for Plaintiff

By Deputy Sheriff: /s/ [Illegible] 5125 9/14

Signature of Star Date

Deputy Sheriff Number

26a

[LOGO] Office of the Sheriff [LOGO]

of Cook County

Thomas J. Dart, Sheriff

By order of the Circuit Court of Cook County, posses-

sion of the real property located at:

2236 W Monroe Chgo, Cook County, Illinois

(Street Address) (City)

has been tendered to Roosevelt Marsaw,

(Printed Name of Plaintiff/

Agent for Plaintiff)

Plaintiff] /|Agent for Plaintiff|

(Circle One)

The Sheriff of Cook County has removed all persons

from the real property. Absent any furnishings and/or

appliances provided by the landlord, the property left

inside the premises is the personal property of the

persons evicted. The plaintiff understands and agrees

the defendant and/or any other interested third party

shall be afforded a reasonable time to claim his/her

personalty and to have the property removed from

the premises. The removal of personal property will

be at the direction of the plaintiff and does not re-

quire the plaintiff to allow the defendant into the

premises. The plaintiff understands that depriving

persons of their personal property may be actionable

both criminally and civilly under the laws of the State

of Illinois and the United States of America.

27a

Sheriff's Number: 118306 Case Number: 01CH16442

Possession tendered to: /s/ X David R.Geerdes 9-14

Signature of Date

Plaintiff/Agent

for Plaintiff

By Deputy Sheriff: /s/ [Illegible] 4965 9-14

Signature of Star Date

Deputy Sheriff Number

28a

[LOGO] Office of the Sheriff [LOGO]

of Cook County

Thomas J. Dart, Sheriff

By order of the Circuit Court of Cook County, posses-

sion of the real property located at:

2204 _ W Washington Chgo, Cook County, [Illinois

(Street Address) (City)

has been tendered to X Chester Hudson,

(Printed Name of Plaintiff/

Agent for Plaintiff)

Plaintiff / Agent for Plaintiff

(Circle One)

The Sheriff of Cook County has removed all persons

from the real property. Absent any furnishings and/or

appliances provided by the landlord, the property left

inside the premises is the personal property of the

persons evicted. The plaintiff understands and agrees

the defendant and/or any other interested third party

shall be afforded a reasonable time to claim his/her

personalty and to have the property removed from

the premises. The removal of personal property will

be at the direction of the plaintiff and does not re-

quire the plaintiff to allow the defendant into the

premises. The plaintiff understands that depriving

persons of their personal property may be actionable

both criminally and civilly under the laws of the State

of Illinois and the United States of America.

29a

Sheriff's Number: 118271 Case Number: 01CH16442

Possession tendered to: /s/ Chester Hudson 9-14-07

Signature of Date

Plaintiff/Agent

for Plaintiff

By Deputy Sheriff: /s/ [Ilegible] 5125 9-14-07

Signature of Star Date

Deputy Sheriff Number

30a

[LOGO] Office of the Sheriff [LOGO]

of Cook County

Thomas J. Dart, Sheriff

By order of the Circuit Court of Cook County, posses-

sion of the real property located at:

114 N Leavitt Chgo, Cook County, Illinois

(Street Address) (City)

has been tendered to X Chester Hudson,

(Printed Name of Plaintiff/

Agent for Plaintiff)

Plaintiff / Agent for Plaintiff

(Circle One)

The Sheriff of Cook County has removed all persons

from the real property. Absent any furnishings and/or

appliances provided by the landlord, the property left

inside the premises is the personal property of the

persons evicted. The plaintiff understands and agrees

the defendant and/or any other interested third party

shall be afforded a reasonable time to claim his/her

personalty and to have the property removed from

the premises. The removal of personal property will

be at the direction of the plaintiff and does not re-

quire the plaintiff to allow the defendant into the

premises. The plaintiff understands that depriving

persons of their personal property may be actionable

both criminally and civilly under the laws of the State

of Illinois and the United States of America.

3la

Sheriff's Number: 118270 Case Number: 01CH16442

Possession tendered to: /s/ X Chester Hudson 9/14/07

Signature of Date

Plaintiff/Agent

for Plaintiff

By Deputy Sheriff: /s/ [Mlegible] 5125 9/14/07

Signature of Star Date

Deputy Sheriff Number

<=

32a

IN THE CIRCUIT COURT OF

COOK COUNTY, ILLINOIS

Marsaw, et al

Plaintiffs

Vv. No. 01 CH 16442

Richards, et al

Defendants

ORDER

This matter coming to be heard on status, the

Court being fully advised, IT IS HEREBY OR-

DERED:

All fines assessed against Defendant Oliver and

Respondent Martin are vacated.

This matter is set for further status on Tuesday,

October 16, 2007 at 10:00 a.m. in Room 2410 without

further notice.

ENTERED:

Dated: SEP 27, 2007

Kathleen M. Pantle 1775

Judge Judge’s No.

Atty. No.: 38643

Name: Travis Richardson

Atty. for: Def.

Address: 407 S. Dearborn Ste 1310

33a

City/State/Zip: Chicago, IL 60605

Telephone: 312 296 9706/312 922 5206

34a

IN THE CIRCUIT COURT OF COOK COUNTY

COUNTY DEPARTMENT,

CHANCERY DIVISION

ROOSEVELT MARSAW, i)

CHESTER HUDSON, )

CLARENCE BROWNLOW, )

LONCIE McCRAY, and )

EUGENE PRICE, Director )

of Bethlehem Healing )

Temple Church, Inc.; )

GEORGE GIBSON, )

Member of Bethlehem )

Healing Temple Church; )

LIVING WITNESSES OF _)

THE APOSTOLIC FAITH, )

INC.; and CLORD JORDAN, )

Presiding Bishopofthe _) Case No. 01CH 16442

Living Witnesses of the ) Salle

Apostolic Faith, and )

Administrator of Bethlehem ) #thleen M. Pantle

Healing Temple Church, )

Plaintiffs,

¥. )

MARCENIA J. RICHARDS, )

LELA WALKER, MARIE )

OLIVER, MICHAEL )

MORRIS, A.C. RICHARDS, )

JR., and BETHLEHEM s+)

)

)

)

HEALING TEMPLE

CHURCH, INC.,

Defendants.

35a

Rule to Show Cause

This matter coming before the Court on the

attached Plaintiffs’ Verified Petition For Rule To

Show Cause Why Defendants Should Not Be Held In

Contempt and the attached supporting declaration,

Defendants and each of them except Michael

Morris are ordered to appear personally before the

Court on July 19, at 1:30 _.m., in Room 2410 Daley

Center, and show cause why each of them should not

be held in civil contempt for the violations of this

Court’s order alleged in the Petition and committed to

County Jail until they comply. Larry Martin is or-

dered to appear personally before the Court at that

same time and place and show cause why he should

not be held in civil contempt for the violations of this

Court’s order alleged in the Petition and committed to

County Jail until he complies.

Plaintiffs shall personally serve each Defendant,

except Michael Morris, and Larry Martin with this

order and provide proof of service to this Court.

FAILURE TO APPEAR AS ORDERED BY

THE COURT MAY RESULT IN A FINDING OF

CONTEMPT AND A COURT ORDER FOR YOUR

ARREST BY THE SHERIFF.

Entered: Kathleen M. Pantle

Judge Kathleen M. Pantle

Date: July 5, 2007

36a

CERTIFICATE OF ATTORNEY

I certify that I am an attorney of record in the

above cause and that the foregoing is a true and

correct copy of the Order entered by the Court on the

above date.

/s/ David R. Geerdes

Attorney

William T. Barker

Terrance A. Norton

David R. Geerdes

Sonnenschein Nath & Rosenthal LLP

8000 Sears Tower

Chicago, Illinois 60606

(312) 876-8000

Firm No. 90784

37a

SIXTH DIVISION

November 22, 2002

No. 1-01-3164, 1-02-1346 (consolidated)

IN THE APPELLATE COURT

OF ILLINOIS

FIRST JUDICIAL DISTRICT

DEACON CLARENCE ) Appeal from

BROWNLOW, DISTRICT __? the Circuit Court

ELDER CHESTER HUDSON, ? of Cook County

ELDER EUGENE PRICE and ?

SISTER LONCIE MCCRAY,

Plaintiffs-Appellants

: No. 01 CH 09038

BISHOP A.C. RICHARDS,

MARCENIA J. RICHARDS,

LELA WALKER, MARIE } Honorable

OLIVER, MICHAEL MORRIS } John K. Madden,

and A.C. RICHARDS, JR. ‘ Judge Presiding

Defendants-Appellees. )

38a

ROOSEVELT MARSAW, __? Appeal from

GEORGE GIBSON, LIVING? the Circuit Court

WITNESSES OF THE APOS- ? of Cook County

TOLIC FAITH, INC, and

CLORD JORDAN,

Plaintiffs-Appellants,

No. 01 CH 16442

Vv.

MARCENIA J. RICHARDS,

LELA WALKER, MARIE

OLIVER, MICHAEL 5 Hhatiaiiabite

MORRIS, A.C. RICHARDS, _) Thomas P. Quinn,

JR. and BETHLEHEM _) Judge Presiding

HEALING TEMPLE

CHURCH, INC.,

Defendants-Appellees. )

eee eee ee”

ORDER

The parties to this consolidated appeal are en-

gaged in a bitter and prolonged battle over control of

the Bethlehem Healing Temple Church in Chicago.

For the reasons set forth below, we reverse and

remand these two cases to the trial court.

This court recently issued an opinion in a related

case in which we partially describe the basis for this

appeal. Brownlow v. Richards, 328 Ill. App. 3d 833

(2002). However, in the interests of completeness and

proper context, we begin our statement of the facts

anew. Bethlehem Healing Temple Church, Inc.,

(Bethlehem) was incorporated in 1980 under the

Illinois General Not For Profit Corporation Act (the

39a

Act) (now 805 ILCS 105/101.01 et seq. (West 1987)).

According to the original articles of incorporation,

Bethlehem’s incorporators and first board of directors

included Charles Poole, who founded the Bethlehem

Church in 1932, and Roosevelt Marsaw, among

others. The articles, along with several pages of

accompanying “special provisions,” state that church

directors were to be appointed annually at a meeting

of church members held for that purpose on the

second Tuesday in July.’ Bethlehem’s annual reports

for 1981 to 1983 list Charles Poole as president and

pastor. Annual reports filed from 1984 through 2001

list Bishop A.C. Richards as pastor.’

The cases in this consolidated appeal both arise

from allegations that Richards altered the organiza-

tion of Bethlehem’s governance to transform the

church into a “family business” and to ensure that his

daughter, Marcenia Richards, would succeed him as

pastor without interference.

' The special provisions refer to church members as mem-

bers of the “corporation.”

* Bethlehem’s members also organized a national group

called the Living Witnesses of the Apostolic Faith, Inc., (LWAF),

a governing body for member churches. Filed in 1984, the LWAF

articles of incorporation list Richards and Brownlow as two of

the seven original directors. Richards was LWAF’s presiding

bishop until shortly before his death in August 2001, when Clord

Jordan succeeded him.

40a

The Brownlow litigation (Case No. 1-01-3164)

In June 2001, plaintiffs Clarence Brownlow, a

deacon of Bethlehem, Chester Hudson, a district

elder, Eugene Price, a church elder, and Loncie

McCray, a minister of the church, (to whom we refer

collectively as the Brownlow plaintiffs) filed an

amended complaint against defendants Richards,

Marcenia Richards and others. The complaint re-

ferred to the July 11, 2000, meeting of defendants

during which defendants adopted a new constitution

and bylaws (the 2000 constitution) giving Richards

the power to appoint members of Bethlehem’s board

of directors and stating, inter alia, that regular

meetings of the board “may be held without notice” at

a time and place of Richards’ determination. The

Brownlow plaintiffs contended they did not receive

notice of the July 2000 meeting and that, in conflict

with Bethlehem’s original constitution, the 2000

constitution vested in the newly formed board of

directors the voting rights that were formerly held by

church members.

Citing section 103.10(1) of the Act, the Brownlow

plaintiffs asked the trial court to declare the 2000

constitution invalid as inconsistent with the special

provisions. Plaintiffs requested a meeting in July

2001 for the election of directors and asked the trial

court to order an accounting of church funds received

and spent in the past 10 years and also asked the

court to enjoin defendants from spending church

funds.

4la

According to the record, the amended complaint

followed an April 2001 order of the trial court requir-

ing Richards to call a general meeting for the adop-

tion of bylaws and the election of officers and a new

pastor before May 11, 2001. Also in April 2001, Rich-

ards filed an annual report that listed him as Bethle-

hem’s president and listed the other defendants in

this action as Bethlehem’s secretary, treasurer and

directors. The Brownlow plaintiffs later filed an

amended annual report listing them as the board of

directors and asking the state to “disregard any other

filings.”

In June 2001, Brownlow and other church mem-

bers sought a temporary injunction barring A.C.

Richards from disrupting religious services at Beth-

lehem and compelling the turnover of Bethlehem’s

bank records and an accounting of “all funds contrib-

uted by the membership and other sources to Bethle-

hem Healing Temple.” After Richards’ death in

August 2001, Marcenia Richards succeeded her father

as pastor under the 2000 constitution.

Defendants moved to dismiss the Brownlow

plaintiffs’ amended complaint pursuant to sections 2-

619(a)(1) and (a)(9) of the Code or Civil Procedure

(735 ILCS 5/2-619(a)(1), (a)(9) (West 2000)), arguing

that the trial court lacked jurisdiction to resolve a

religious dispute and that defendants were the right-

ful officers and board of “said corporation.” The trial

court granted defendants’ motion to dismiss with

prejudice, stating that the government should not

interfere with religious affairs.

42a

On appeal to this court, the Brownlow plaintiffs

contend that this case involves the application of

neutral principles of law, not a determination of

religious doctrine. They ask this court to remand the

case to the trial court for further proceedings.

The Marsaw litigation (Case No. 1-02-1346)

After the trial court dismissed the Brownlow

litigation, several church members who were not

involved in those proceedings brought an action

against Bethlehem and the defendants in Brownlow

requesting an election of a new board of directors

under the procedure described in Bethlehem’s origi-

nal articles of incorporation. The plaintiffs included

Marsaw, who was one of Bethlehem’s original direc-

tors, Jordan, the LWAF presiding bishop, George

Gibson, a member of Bethlehem, and LWAF (referred

to herein as the Marsaw plaintiffs). This case was

heard in the trial court by a different judge than the

judge who ruled on the Brownlow litigation.

In the trial court, the Marsaw plaintiffs con-

tended that Marsaw continued to be a director of

Bethlehem because no valid election had been held

since the original board of directors was chosen in

1980. Defendants moved to dismiss plaintiffs’ com-

plaint pursuant to sections 2-619(a\(3) and (a)(4),

which allow dismissal if an action is already pending

between “the same parties for the same cause” or is

“barred by a previous judgment.” In a four-page

written order, the trial court stated that defendants

43a

were correct that the Brownlow and Marsaw cases

sought the same relief of stopping defendants from

controlling Bethlehem. The court granted defendants’

motion to dismiss the complaint and stayed its ruling

pending the appeal of the Brownlow litigation, noting

if that case was reversed and remanded, the Marsaw

plaintiffs could join in the Brownlow action on re-

mand. Alternatively, the court stated, if the dismissal

of the Brownlow action is affirmed on appeal, the

Marsaw litigation also should be dismissed.

On appeal, the Marsaw plaintiffs contend that

the resolution of Brownlow would not bar their claim

under res judicata or collateral. estoppel and that

their litigation is warranted by material changes in

circumstances since this court decided Brownlow.

They ask that this court reverse the stay of their case

and remand for further proceedings or vacate the stay

and remand the case for reconsideration under the

proper res judicata analysis.

Analysis

We have consolidated the Brownlow and Marsaw

appeals. Both actions were dismissed pursuant to

section 2-619, and our review of such dismissals is de

nova. Benedict v. Federal Kemper Life Assurance Co.,

325 Ill. App. 3d 820, 823, 759 N.E.2d 23, 26 (2001). A

motion to dismiss under section 2-619 admits the

legal sufficiency of the complaint and raises defects,

defenses or other affirmative matters which appear

on the face of the complaint or are established by

44a

external submissions which act to defeat the claim.

LaSalle National Bank v. City Suites, Inc., 325 Ill.

App. 3d 780, 789, 758 N.E.2d 382, 389 (2001). This

court must construe the allegations in the light most

favorable to the plaintiffs and determine whether

they have alleged sufficient facts to establish a cause

of action and whether a genuine issue of material fact

exists to preclude dismissal. Benedict, 325 Ill. App. 3d

at 823, 759 N.E.2d at 26.

This court must determine whether it can con-

sider the issues raised in both appeals. Although the

First Amendment to the United States Constitution

prevents civil courts from resolving church property

disputes by examining matters of religious doctrine

and practice, states have a legitimate interest in

providing a forum for the peaceful resolution of

internal church disputes, and civil courts have gen-

eral authority to resolve controversies involving

control or ownership of church property. Jones v. Wolf,

443 U.S. 595, 602, 61 L. Ed. 2d 775, 784, 99 S. Ct.

3020, 3025 (1979). A civil court may only determine, a

church’s polity if that determination can be made

easily and without intrusive scrutiny. Werling uv.

Grace Evangelical Lutheran Church of River Forest,

139 Ill. App. 3d 496, 499, 487 N.E.2d 990, 992 (1985).

A state is free to adopt an approach for settling

church property disputes as long as that method does

not involve consideration of a church’s doctrine.

Jones, 443 U.S. at 602, 61 L. Ed. 2d at 784, 99 S. Ct.

at 3025.

45a

In Jones, the Supreme Court expressly adopted

the “neutral principles of law” approach, which allows

a court to determine property ownership by applying

general principles of property law and examining the

local church charters and constitution, in addition to

state statutes governing the holding of church prop-

erty. Jones, 443 U.S. at 604, 61 L. Ed. 2d at 785, 99

S. Ct. at 3026. The court noted that the neutral

principles method “relies exclusively on objective,

well-established concepts of trust and property law

familiar to lawyers and judges.” Jones, 443 U.S. at

603, 61 L. Ed. 2d at 785, 99 S. Ct. at 3025. “If in such

a case the interpretation of the instruments of owner-

ship would require the civil court to resolve a reli-

gious controversy, then the court must defer to the

resolution of the doctrinal issue by the authoritative

ecclesiastical body.” Jones, 443 U.S. at 604, 61

L. Ed. 2d at 785, 99 S. Ct. at 3026.

Since Jones, several Illinois courts have em-

ployed the neutral principles analysis with differing

outcomes. See Abrams v. Watchtower Bible and Tract

Society of New York, Inc., 306. Ill. App. 3d 1006, 1011,

715 N.E.2d 798, 802 (1999) (complaint involved

ecclesiastical principles and doctrines, thus preclud-

ing court’s analysis); People ex rel. Muhammad uv.

Muhammad-Rahmah, 289 Ill. App. 3d 740, 744, 682

N.E.2d 336, 339 (1997) (in case involving quo war-

ranto claim, appellate court held that trial court was

not asked to interpret religious doctrine or rule on

ecclesiastical question; appellate court remanded for

trial court to utilize neutral principles approach in

46a

interpreting corporate documents and applicable

statutes); Aglikin v. Kovacheff, 163 Ill. App. 3d 426,

433, 516 N.E.2d 704, 709 (1987) (remanding to trial

court for “findings of fact relevant to a ‘neutral prin-

ciples’ analysis”); Grace Evangelical Lutheran Church

of River Forest v. Lutheran Church Missouri Synod,

118 Ill. App. 3d 151, 156, 454 N.E.2d 1038, 1042

(1983) (court could not consider whether option

contract may be exercised, since option provision was

subject to whether certain religious precepts were

taught).

The neutral principles theory can be applied to

disagreements involving ownership of church prop-

erty and those relating to control of the property.

Aglikin, 163 Ill. App. 3d at 432, 516 N.E.2d at 708.

Where a split exists among members of the local

congregation, the court may objectively analyze the

applicable statutes, common law, pertinent church

charters, constitutions, bylaws and other evidence

that would be relevant in a secular dispute to deter-

mine who has legal control over the corporation or

voluntary association. Jones, 443 U.S. at 604, 61

L. Ed. 2d at 785, 99 S. Ct. at 3026. See also Muham-

mad, 289 Ill. App. 3d at 744, 682 N.E.2d at 339;

Aglikin, 163 III. App. 3d at 431, 516 N.E.2d at 707.

“In this manner the court determines who owns or

controls church property in much the same manner

that it would decide a secular property dispute.”

Aglikin, 163 Ill. App. 3d at 431, 516 N.E.2d at 707.

The Brownlow and Marsaw appeals involve a

dispute over the control of Bethlehem. The Brownlow

47a

plaintiffs contend that despite defendants’ attempts

to inject religious doctrine into plaintiffs’ claims, this

court must direct the trial court to analyze Bethle-

hem’s articles of incorporation and the Act to deter-

mine the church’s proper leadership, as it would for a

nenreligious corporation. Plaintiffs argue that the

articles vest control of Bethlehem’s property in a

board of directors elected by the church members and

that the record does not support Richards’ claims of

ecclesiastical authority.

Defendants respond that this appeal necessarily

involves an inquiry into Bethlehem’s religious doc-

trine. They argue Bethlehem has always been under

the hierarchical control of its pastor, who has “eccle-

siastical control” over the church, and that Bethle-

hem’s failure to observe corporate formalities requires

this court to recognize the pastor as the church’s sole

authority.

After reviewing the substance of the Brownlow

appeal, we agree with plaintiffs and conclude that the

appeal does not ask this court to delve into religious

ideology.’ Therefore, we find that the trial court erred

* Defendants argue that Bethlehem observes a “hierarchi-

cal” model of governance, with the pastor serving as the sole

decision maker, and that LWAF has no authority to determine

the church’s members. Plaintiffs respond that if this court finds

the case involves religious doctrine, the court must defer to

the highest LWAF authority and that although Richards, as

presiding bishop, claims to be the LWAF leader, the record

reflects a question of fact as to that point. However, because we

can resolve the Brownlow plaintiffs’ claims without examining

(Continued on following page)

48a

in ruling that the resolution of Brownlow requires a

consideration of religious doctrine. As stated in Jones,

under the neutral principles of law analysis, a court

can review statutes and common law, as well as

pertinent church charters, constitutions, bylaws and

other evidence, to determine which party has legal

control over a church corporation. The controversy at

bar involves the validity of Bethlehem’s constitution

and defendants’ actions in creating a new constitution

in 2000. Bethlehem was incorporated in 1980 under

this state’s General Not For Profit Corporation Act.

Annual reports were filed with the state every year

through 2001. According to the “special provisions”

attached to the original articles of incorporation,

members of the church were to meet on the second

Tuesday of July to elect directors. The provisions also

describe a method to determine the church members

who would receive notice of that meeting and be

allowed to vote. Those provisions refer to the church

as a corporation.

Defendants adopted a new constitution in July

2000 giving Richards the sole power to appoint board

members and dictate the time and place of board

meetings. They argue that for 22 years, Bethlehem

has ignored the formal procedures set out in the

religious doctrine, we need not address the hierarchy issue. See

Aglikin, 163 Ill. App. 3d at 430, 516 N.E.2d at 707 (“[w)hen

doctrinal or polity issues arise in the determination of a property

dispute, the courts must defer to the resolution reached by the

church’s highest ecclesiastical authority.”)

49a

articles of incorporation and related provisions and

contend that the history of the pastor’s autonomous

governance of the church had the effect of supersed-

ing the original articles of incorporation.

In light of these assertions, we remand Brownlow

to the trial court for findings of fact necessary to a

neutral principles analysis and a determination of

whether plaintiffs or defendants should control

Bethlehem. The court should determine whether the

original constitution remains in effect or if the 2000

constitution was validly passed and supersedes the

original constitution. A neutral principles analysis

requires the court to consider the church’s articles of

incorporation, original constitution, bylaws and the

previously discussed “special provisions,” annual

reports and minutes from annual meetings. In addi-

tion, the court should consider the provisions of the

Act under which the church was incorporated.

Because we are remanding the Brownlow case for

an analysis of the merits, we also reverse the trial

court’s granting of the Marsaw defendants’ motion to

dismiss the Marsaw plaintiffs’ claims and also re-

mand that case to the trial court for further censid-

eration under the neutral principles test. Because the

central issue in Marsaw also involves the validity of

the current directors of Bethlehem, it would serve the

interests of judicial economy and finality if Brownlow

and Marsaw were consolidated upon remand and the

claims in those cases were heard in the same proceed-

ing.

50a

Accordingly, the rulings of the trial courts in case

no. 1-01-3164 and in case no. 1-02-1346 are reversed

and remanded for further proceedings consistent with

this order.

Reversed and remanded.

GALLAGHER, J. with O'BRIEN, PJ. and

O’MARA FROSSARD, J. concurring.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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