Friday, January 30, 2015

3rd Edition (Jan. 30)

By Ronald J. Caldwell, PhD, Professor of History, Emeritus

Jan. 27:     Wednesday, January 28, 2015, will be a day of destiny for everyone involved in the disastrous schism of the Episcopal Church in South Carolina. The U.S. Fourth Circuit Court of Appeals, in Richmond, will hear oral presentations in the case of vonRosenberg v Lawrence. The case comes from the appeal by the Episcopal Church in South Carolina of the August 2013 decision of U.S. District Judge C. Weston Houck to defer to the state circuit court in the war for legitimacy between the independent diocese and the Episcopal Church diocese. 

In March of 2013, Charles vonRosenberg, bishop of the Episcopal Church diocese of South Carolina, filed action in the U.S. District Court in Charleston charging former bishop Mark Lawrence with violating the federal Lanham Act by trademark infringement and false advertising (by claiming to be the legitimate bishop of the Episcopal Diocese of SC). In addition, vonRosenberg asked the Court for a preliminary injunction to stop Lawrence from acting as the bishop of the Episcopal Diocese of South Carolina. Lawrence responded by filing a motion to dismiss or stay proceedings in view of the currently active state circuit court litigation. On August 23, 2013, Judge Houck issued a ruling in which he essentially refused the complex and complicated case and deferred to the state circuit court where proceedings had been underway since January 4, 2013. Houck also refused to grant vonRosenberg an injunction against Lawrence.

Judge Houck's decision to opt-out, while coming down on Lawrence's side, also contained two very important points that passed under the radar of most people. The first pointed out, as any sensible person would have, that Lawrence had indeed renounced his ordained ministry: "In November 2012, Bishop Lawrence issued his own, similarly postured, public statement renouncing his ordained ministry with TEC" (p.2-3). As everyone knows, Lawrence has said repeatedly he did not renounce his ministry. Judge Houck said differently. The second great point Houck made in his August 23rd decision was that the Episcopal Church is hierarchical: "TEC, as a hierarchical religious organization..." (p.3). He made a footnote there citing two landmark federal cases, Dixon v Edwards and Hiles v Episcopal Diocese of Massachusetts. Both of these declared the Episcopal Church to be hierarchical. Lawrence and his lawyers hold that the Episcopal Church is not hierarchical and that individual dioceses are sovereign entities free to act on their own. Houck had a different view, as any reasonable person would have. No federal court has ever ruled that the Episcopal Church is not a hierarchical institution.

Following Judge Houck's rejection of their motions, ECSC filed a request for reconsideration with Houck on September 16, 2013. Houck denied the request on January 14, 2014 thus clearing the way for an appeal to the U.S. Fourth Circuit Court of Appeals. On April 7, 2014, lawyer Thomas S. Tisdale filed a 53-page brief in the Court laying out ECSC's case charging that Houck had erred in his decision. Tisdale asked the Court to reverse Houck's order dismissing vonRosenberg's claim of Lanham jurisdiction and rejecting the injunction against Lawrence. If the Court grants Tisdale's request, it will send the matter back to the U.S. District Court in Charleston to be litigated. The order may be simple or it may contain directive explanations.

It is impossible to predict (as opposed to state circuit court) how the Fourth Circuit Court of Appeals will rule. Nevertheless, there are some tantalizing clues around. Most of the fifteen judges of the Court were appointed by Democratic presidents, many by Obama. In recent years, the previously conservative Fourth Circuit has grown decidedly liberal. Its most famous recent action rocked the country. The Court upheld a lower court ruling favoring same-sex marriage and declaring unconstitutional Virginia's law against it. That was appealed to the U.S. Supreme Court which allowed the Fourth Circuit decision to stand. As a result, South Carolina, and all the other states in the Fourth Circuit had to adopt legal marriage for same-gender couples.

As for the Episcopal Church, it was the Fourth Circuit Court of Appeals that issued the famous Dixon v Edwards ruling in 2002 (see above). The Court said explicitly that the Episcopal Church is a hierarchical institution and that civil courts are severely restricted in jurisdiction over religious matters which must be left to the internal authorities of the hierarchical institutions following the First Amendment of the Constitution.

The way the Circuit Court of Appeals works is that three of the fifteen judges are assigned to a case at random. The names of the judges are not revealed until the morning of the hearing, which incidentally is always open to the public. The three judges sit for the lawyers' oral arguments, but as in the U.S. Supreme Court, they are likely to use the time grilling the lawyers about questions they, the judges, have already formed. Tisdale will start with 15 minutes. Runyan will get 20 minutes, then Tisdale with 5 minutes for rebuttal. The hearing is just that. It is not a trial. Afterwards, the judges will weigh the written arguments (briefs) and oral presentations and issue an order, typically within several months (the Court website says an average of seven months). No video recording of the hearing is allowed, but an audio recording is made and will be available to the public two days after the hearing. It will be posted on the Court website: .

The Fourth Circuit decision, which we should have by this summer, has the potential of being the game-changer in the awful and shameful civil war between two bands of brothers and sisters. Up to now, that advantage has been heavily on the independent diocese's side. Everyone expects Judge Goodstein to rule soon in Lawrence's favor. That is certain to be appealed to the state Supreme Court. If the Fourth Circuit rules in favor of ECSC, the U.S. District court in Charleston will have to proceed with the matter as a federal case. Essentially what the ECSC is asking is for the court to declare vonRosenberg the legal and legitimate bishop of the Episcopal Diocese of South Carolina. The Episcopal Church will have the decided advantage in a federal court. One has only to review the hundred or so Church cases in the last decade to see that.

Curiously enough, the two sides have treated the case in the Fourth Circuit Court of Appeals entirely differently. The ECSC has been informative and forthcoming about it all along, even posting many of the court papers on its website (thank you Holly). The Lawrence side, following its penchant for secrecy, has kept it completely hidden. There has not been a hint of it on their website. Their train of loud and angry Greek chorus echoing their words on the Internet has been strangely silent about it. Runyan's brief to the court has been withheld from the public. The reasons for this mysterious black-out remain unknown to myself.

The U.S. Circuit Court of Appeals is the second highest court of the land, under only the U.S. Supreme Court. What they say matters, and matters very much. What they say in the Episcopal Church in South Carolina case will matter very much too, whether anyone wants to recognize it or not.

Addendum Jan. 29:  The three judges forming the panel hearing the case on January 28 were: Judge Diana Gribbon Motz (chair), Judge Roger L. Gregory, and Judge James A. Wynn, Jr. All three were appointed by Democratic presidents. Motz (b. 1943) was graduated from Vassar and U. of Virginia Law School and served as assistant state attorney general of Maryland. She was appointed by Pres. Clinton in 1994. Gregory (b. 1953) is an alumnus of Virginia State U. and University of Michigan law school and has been in private practice. He was appointed by Pres. Clinton in 2000. Wynn (b. 1954) was graduated from U. of North Carolina, Marquette law school, and U. of Virginia law school and has served as a judge in the North Carolina Court of Appeals and the North Carolina Supreme Court. He was nominated by Pres. Obama in 2009.

The audio recording of the hearing of Jan. 28 should be available on the Court website tomorrow, Friday, Jan. 30:

Addendum Jan. 30:The audio recording of the Jan. 28 hearing is now available on the website noted just above. 

I have listened to the recording, and these are my impressions: 

Tisdale spoke first and clarified the issue---whether the U.S. District Court (Judge Houck) acted properly in abstaining from a decision. He said the action of ECSC in the District Court is not parallel to the action in the state circuit court; and he asked for a temporary injunction from the Fourth Circuit Court of Appeals and for return of the case to the U.S. District Court (in Charleston) for action; in the least, to send the case back to Charleston.

Runyan spoke next and maintained that vonRosenberg had not established the fact that he is the bishop of the diocese and therefore could not take action against Lawrence. He pointed out the earlier action in the state circuit court which he called parallel. (U.S. District Judge Houck had followed the Brillhart/Wilton standard in which a federal court can dismiss a declaratory judgment action that had already been filed in state court.) He was interrupted often by the chair, Judge Motz, and by Judge Wynn. Motz said that she saw a "mixed standard" for abstention in Houck's ruling and that she could not find any record in judicial history for a mixed standard. She asked repeatedly for the correct abstention standard. (The Colorado River standard, opposite to Brillhart/Wilton, would allow the federal court to exercise jurisdiction over federal issues even if action had already been started in state court.) Runyan seemed unable to answer the questions directly. Wynn implied that if the court found that the wrong standard for abstention had been applied, the Court would grant Tisdale's request and send the case back down to the District Court. Motz and Wynn seemed to imply that Houck had not used the proper standard in his decision to abstain and that the Colorado River case precedent should have been the appropriate one to follow.

It seemed to me the three judges were unconvinced by Houck's reasoning for Brillhart/Wilton and were leaning to sending the case back to Charleston. If they do send the case back to district court in Charleston a great deal would depend on how the judges word their order. If they demand that the Colorado River standard be applied, the Church would clearly benefit as that would require the district court to treat the matter entirely as a federal case separate from the state court. This would give the advantage to the Episcopal Church side. 

The above are my impressions. You should listen to the hearing and make your own assessment.

I think the ECSC side came out on the stronger ground in this hearing than did DSC. Of course, one should not read too much into the judges questions. We will just have to wait until their decision is issued, hopefully by summer. Meanwhile, everyone is waiting anxiously for Judge Goodstein's decision in the state circuit court. It has been more than six months since that trial concluded.