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.