Wednesday, October 18, 2017

OCTOBER 18 --- 

Five years after the schism, we are finally nearing the resolution of the legal issues between the two sides. The litigation officially began on January 4, 2013 when the independent diocese (DSC) sued the Episcopal Church essentially claiming 1-the legal rights of the old diocese, and 2-the local ownership of the properties. This began the litigation in the South Carolina state courts. Three months later, the Episcopal Church diocesan bishop (of TECSC), sued the bishop of DSC in federal court for violation of the Lanham Act, a federal act protecting copyrights. The Church bishop essentially asked the court to recognize him, and not the DSC bishop, as the legal bishop inheriting the old diocese. This began the litigation in the United States courts.

At present, the litigation is divided into three avenues: state court, federal court, and mediation. Let's look at where matters stand in each.


DSC's suit against TEC and TECSC went to trial in the circuit court of Dorchester County in July of 2014. On Feb. 3, 2015, Judge Diane Goodstein issued a decision awarding all issues to DSC.

In June of 2015, TEC/TECSC offered a compromise settlement. The Church would recognize the 36 parishes' outright ownership of the local properties in return for the entity of the old diocese. DSC flatly rejected this offer.

The South Carolina Supreme Court held a hearing of the appeal of the circuit court decision on September 23, 2015. On August 2, 2017, the Court released its decision. It recognized the trust control of TEC/TECSC over 29 of the 36 parishes and returned Camp St. Christopher to TECSC. Otherwise, it deferred to the federal court. Thus, the state supreme court reversed the bulk of the circuit court decision.

On September 1, 2017, DSC filed three petitions for rehearing in the SC Supreme Court. The major one requested: 1-that Justice Kaye Hearn's opinion (in the Aug. 2 order) be vacated (removed), 2-that Justice Hearn be removed from participating in the petition for rehearing, 3-that if the rehearing without Hearn should be deadlocked, the Chief Justice would appoint a fifth justice to break the tie, and 4-as the alternative to the above three, the court order a new rehearing with new oral arguments before a new court (the present court instead of the court that heard the case on Sept. 23, 2015).

DSC filed a 345-page paper for its petition for recusal of Hearn. It ranged from the silly, quoting Internet blogs, to the serious, affidavits of purported authorities on judicial ethics, Lawrence J. Fox and Nathan M. Crystal. Much of the case against Hearn rested on her membership in the Episcopal Forum and in St. Anne's Episcopal Church, the continuing Episcopal congregation in Conway SC. DSC lawyers said Hearn should have recused herself from the case in view of her conflict of interest.

TEC/TECSC filed a response on September 18 basically making two counter-arguments on Hearn. They said church membership is not grounds for recusal, and DSC lawyers failed "timeliness" (they should have raised the issue to start with, not 22 months after the hearing). 

The next day, Sept. 19, two retired judges in SC filed "Amici Curiae" (friends of the court) briefs defending Justice Hearn's role in the case and denying any infringement of ethics rules.

On Sept. 25, DSC filed in the SCSC, a "Response" to TEC/TECSC's Sept. 18 paper, once again arguing Hearn was in violation of ethics rules, her opinion should be removed, and she herself should be excluded from the case.

On October 13, DSC lawyers filed a "Response" to the two judges' brief of Sept. 19 reiterating their charges against Hearn.

Thus, since August 2, 2017, there have been nine legal actions entered into the SC Supreme Court: the Aug. 2 decision of the Court, DSC petition for time extension on Sept. 1 (denied), DSC's three petitions for rehearing on Sept. 1, TEC/TECSC's response to DSC's three petitions on Sept. 18, TEC/TECSC's Amici Curiae of Sept. 19, DSC's response of Sept. 25 to TEC/TECSC, DSC's response of Oct. 13 to the Amici Curiae. Apparently (at least let's hope) this is the end of the back-and-forth in SCSC. If you are dizzy from all this, you are not alone.

We are now awaiting SCSC's response to DSC's three petitions (Sept. 1) for rehearing in the SCSC.

Will the South Carolina Supreme Court grant a rehearing?

Reminding everyone I am not a lawyer, this is what this layman sees:

Petitions for rehearing in the Sc Supreme Court occur often. The vast majority are denied. However, there was an occasion, this year, in which the SCSC responded to a petition for rehearing. It was in the case of Harleysville Group Insurance v. Heritage Communities, Inc. The court originally heard the case on June 14, 2016, then rendered a written decision on January 11, 2017. Shortly thereafter, there was a petition for rehearing. On July 26, 2017, the court denied the rehearing but at the same time issued a revised written decision to supersede the original one. This was to reflect the new briefs that had been presented. I do not pretend to understand anything about this case as it involved complicated insurance laws, so I cannot say why the justices decided to revise their original decision.

Thus, as I see it, there is precedent for the SCSC to issue a new opinion to replace an old one even if they decide not to have a rehearing. 

I have also found examples in which the court granted petitions for rehearing, but the only ones I have seen dealt with corrections to small technicalities, such as dates. As far as I can tell, the court has not, at least in recent years, granted a rehearing on the issues of a case. 

What DSC is asking is unprecedented. They are requesting of the court much more than a simple rehearing. They are calling for one of the justices to discard her opinion, remove herself from the case, and have the court appoint a tie-breaking justice (who would not have been present for the hearing). And, this demand is appearing for the first time 22 months after the court hearing. This is radical. Can you imagine the precedent this would establish in the court system? If the court accepted this, justices and judges forever after would be subject to threats of retribution for their decisions. The whole integrity of the independent judiciary would be corrupted.

As I see it, it is most unlikely the SC Supreme Court will agree to anything DSC is requesting. Church membership is not grounds for recusal. Hearn was an Episcopalian and a member of the Episcopal Forum. So what? Membership does not prove a thing. In fact, it is erroneous to say that the Forum orchestrated the charges that brought the restriction of Bishop Lawrence. The case against Lawrence in 2012 was drawn up by 24 individuals (neither Hearn nor her husband), communicants of the Diocese of South Carolina. Even if they were members of the Forum, the 24 were acting on their own, not as representatives of the Forum. The Forum as an entity had nothing to do with the Lawrence's restriction or removal. As for the argument Hearn had something to gain by making the decision, where was it? The local DSC parish was one of the seven allowed to remain independent. 

When will we know? Consider the fact it took the court six months to respond to the rehearing in the insurance case this year.


Judge Richard Gergel, of the United States District Court, in Charleston, is handling the case of vonRosenberg v. Lawrence (has been updated to include Bp Adams). In August he set a schedule of end of discovery by December of 2017, and trial in March of 2018. However, on Aug. 30 he ordered a mediation. There is now a "stay," or recess, during the mediation period. If the mediation fails, the stay will be lifted and the process will resume in the federal court.

In this case, the Episcopal Church and the Episcopal Church in South Carolina are essentially asking the court to recognize the Church diocese as the legal heir of the pre-schism diocese (specifically asking that the Episcopal Church bishop be recognized as the Episcopal bishop). The SC Supreme Court decision gave a majority opinion in favor of this, but deferred to the federal court to decide finally since federal trademark takes precedence.


As I understand it, mediation is fairly routine, at least in cases as large and important as this. The federal court rule book says mediation can last up to 30 days with another 14 for the writing of an agreement. The first session has been set for November 6-8 in Columbia guided by Judge Joseph Anderson, the senior federal judge appointed by Judge Gergel.

Both sides have agreed that all issues, state and federal are to be considered. 

Mediation does not require settlement, but it obviously encourages the two sides to try for an agreement. Any settlement would have to be mutually agreeable. This implies compromise, or give-and-take. However, it is not occurring in a vacuum. There is already a body of legal judgment that would have to be considered in any arrangement.

If the sides adhere to the rule book (and they have not so far), we can expect to know by early December if there is not to be a mediated settlement, and late December if there is a written deal. If an agreement is reached in the mediation, it becomes final when written and signed by the parties. Along the way of mediation, all talks are confidential. The public will not know the outcome of the mediation until there is an announcement of failure, or a written agreement is produced. I imagine we can expect one or the other in December.

Between now and Nov. 6, all parties should be engaged in prayerful preparation for the negotiations that could end all of this mess once and for all.

In sum, there are three parts of litigation going on now. In the first, we are awaiting a response from the SC Supreme Court to DSC's petitions for rehearing. I doubt very much the court will agree. If not, DSC has the option of appealing to the U.S. Supreme Court, but it is extremely unlikely SCOTUS would take a case based on state property and corporate law. They deal in national issues.

In the second, the federal case is "on hold" pending the mediation.

In the third, mediation is on and talks are to begin shortly. Whether anything will come of this is anyone's guess. The Church is going in with the much superior position. However, as long as the petitions for rehearing are pending in the state supreme court, neither side will be able to assert its demands well. There will be too much uncertainty. It is hard to see mediation working until the state supreme court issues a decision on rehearing. Given the court's slow process, we have reason to doubt there will be a decision very soon.

Nothing is finally resolved, but we are getting nearer all the time to a resolution of the legal issues of the schism in South Carolina. I still believe that chances are good it will all be over within a year from now. And, at this point, the advantage is with the Episcopal Church and the Episcopal Church diocese.