Wednesday, February 4, 2015

FEBRUARY 2, 2015---2nd Edition (Feb. 4)

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

Even though this tiresome winter may drag on for weeks to come, there is a feeling here in the lower South that spring is in the air, that seasons are changing and time is moving on. Camellias are in bloom.

The U.S. Court of Appeals held its hearing last week. The state circuit court issued a decision on Feb. 3. This is an appropriate moment to pause and review how the legal actions have proceeded and where they stand now in the two-year court war of the two post-schism dioceses:
1-The Diocese of South Carolina (DSC), a.k.a. The Episcopal Diocese of South Carolina, The Protestant Episcopal Church in the Diocese of South Carolina. The majority of the old diocese, who controlled the apparati of the diocese, unilaterally declared diocesan independence from the Episcopal Church on October 17, 2012, retroactive to Oct. 15. They recognized former Episcopal bishop Mark Lawrence as their bishop. At present they have the legal rights to the names and insignia of the old pre-schism diocese.
2-The Episcopal Church in South Carolina, the reorganized Episcopal Church diocese containing the minority of the old diocese who remained with the Episcopal Church. They chose Charles vonRosenberg as their bishop.

The basic issue in all the litigation is legitimacy---which of the two post-schism dioceses is the legal and legitimate Episcopal diocese of South Carolina and therefore rightful proprietor of the properties, other assets, and rights of the pre-schism diocese.

South Carolina is the fifth case of an Episcopal Church diocese declaring its unilateral independence from the church, all in the last eight years. All have been in litigation with four: San Joaquin, Quincy, Ft. Worth, and South Carolina still active in the courts. So far none of the cases has been accepted by the U.S. Supreme Court.

Legal action in South Carolina began on January 4, 2013. There developed two separate, but not unrelated, avenues of litigation in the case of South Carolina: state court and federal court.


PAST:     On January 4, 2013, the DSC filed suit in state circuit court, Dorchester County, St. George SC, asking two orders of the court (Judge Diane Goodstein): 1-a declaratory judgment that DSC is the sole owner of the property of the pre-schism diocese, and 2-an order that the defendants (ECSC) cannot use the names and insignia of the pre-schism diocese. DSC's suit was against The Episcopal Church (and later also against ECSC).

In time this suit by DSC was joined by 35 individual parishes (34 of DSC and St. Andrew's Anglican Church of Mt. Pleasant).

On Jan. 23, 2013, the state court issued a Temporary Restraining Order preventing TEC from using the official names and insignia of the pre-schism diocese. On Jan. 31, 2013, this was expanded into a Temporary Injunction of indefinite duration. It is still in effect. This gave DSC de facto ownership of the pre-schism diocese.

For eighteen months, the state court refused every initiative of ECSC to change the nature of the lawsuit. The South Carolina court of appeals and supreme court also refused ECSC's motions.

The state court trial was held from July 8 to 25, 2014, in the county courthouse, St. George SC, Judge Goodstein presiding. The trial lasted 14 days and produced over 2,500 pages of transcript, over 1,300 pieces of evidence, and over 50 witnesses. On the defense side, Thomas Tisdale represented ECSC with support of several lawyers from TEC. C. Alan Runyan led the plaintiffs' team of over 40 lawyers. Goodstein insisted in proceeding on the "neutral principle" standard and viewing this as a local property dispute to be settled under local property laws rather than as a religious issue. 

On December 10, 2014, Tisdale and Runyan presented their "Orders," or requests for judgment, to Judge Goodstein.

PRESENT:     On Feb. 3, 2015, Judge Goodstein issued a "Final Order" finding all in favor of DSC and against TEC and ECSC. In essence, Goodstein found that the Episcopal Church is a congregational institution where all authority rises from the local parishes and that Episcopal dioceses are completely independent of the national church. Therefore, she ruled the DSC is legally entitled to all the rights of the pre-schism diocese as well as all the property and other assets.

FUTURE: It is possible TEC and ECSC will ask Goodstein for a reconsideration of her decision. It is certain that in time TEC and ECSC will appeal this judgment to the South Carolina Supreme Court.


There were three separate actions in federal (United States) courts, the church insurance case, the Fort Worth appeal to the U.S. Supreme Court, and the Charles vonRosenberg lawsuit against Mark Lawrence.

1---In the insurance case, on Jan. 9, 2014, U.S. District Court Judge Patrick Duffy ordered the Church Insurance Company of Vermont to pay coverage for ECSC. Duffy reaffirmed this. Issue settled.

2---On June 19, 2014, the Episcopal Church Diocese of Ft. Worth filed an appeal with the U.S. Supreme Court against the Texas Supreme Court action remanding the church case to lower court on terms advantageous to the non-Episcopal Church diocese. ECSC joined with an amicus (friend) brief in support of the Church diocese. On Nov. 3, 2014, the U.S. Supreme Court refused to hear the appeal. Issue settled.

3---U.S. District Court/U.S. Fourth Circuit Court of Appeals.

On March 5, 2013, vonRosenberg filed suit in U.S. District Court, in Charleston, against Lawrence asking the court to recognize vonR as the legal and legitimate bishop of the Diocese of South Carolina. On March 7, 2013, this was expanded in a motion for a preliminary injunction to stop Lawrence from acting as the bishop of the Diocese.

On March 28, 2013, Lawrence filed motion with the same court asking for a dismissal or a stay of vonR's suits.

The two sides appeared before U.S. District Judge C. Weston Houck for a hearing on August 8, 2013.

On August 23, 2013, Houck dismissed both of vonR's suits. He abstained in view of the ongoing litigation in the state court. He followed the principal called the Brillhart/Wilton standard. In this, following U.S. Supreme Court decisions, a federal district court has wide latitude to dismiss or stay cases seeking declaratory relief when a parallel case was already underway in state court. Houck viewed the current state court litigation as parallel. However, Houck also said in his order that Lawrence had renounced his ordained ministry and that the Episcopal Church is an hierarchical institution. Houck later reaffirmed his abstention order of Aug. 23.

On Feb. 5, 2014, ECSC filed an appeal of Houck's Aug. 23 order with the U.S. Fourth Circuit Court of Appeal, in Richmond, Virginia.

On January 28, 2015, the Fourth Circuit held a hearing on the appeal. ECSC asked for the case to be remanded to the District Court in Charleston and for an injunction to prevent Lawrence from acting as the bishop of the Diocese. Three judges sat: Judge Diana Motz, chair, Judge James A. Wynn, Jr., and Judge Roger Gregory. Tisdale represented ECSC and Runyan DSC. Motz and Wynn raised numerous questions about the appropriateness of Houck's reliance on the Brillhart/Wilton standard for abstention and raising the Colorado River standard as perhaps the more proper alternative. The Colorado R. standard, following U.S. Supreme Court decisions, allowed a federal court to abstain only on very narrow terms of "exceptional circumstances." Application of Colorado R. rather than Brillhart would probably throw the advantage to ECSC in the District Court as it would require the court to proceed with the case rather than deferring to the state court.

PRESENT:     Awaiting a decision of the Court of Appeals. Decisions in this court take an average of seven months to appear. If so, an order would be issued this summer. Sometimes decisions appear much more quickly as in the same-sex marriage issue in the spring of 2014. The Court gave an order after two months (it was appealed to the U.S. Supreme Court which refused to hear it).

Judging from the hearing, it appears to me that ECSC had the advantage in this court. Therefore, it is likely the court will send the case back to the district court in Charleston to be conducted under the Colorado R. standard. This would give ECSC a much better chance of prevailing than in the state court.

In summary, DSC has won in state court and ECSC in about to win in federal court. Appeals will grind on for years to come. At some point in the future, this broader issue of Episcopal Church/diocese relationship is likely to end up in the U.S. Supreme Court where odds are that court will favor the rights of a national religious institution. Local courts tend to lean to local bodies, federal courts to national ones.

What we can expect at this point is years of expensive and contentious litigation between two bands of brothers and sisters. Surely these good, reasonable and Christian people can find a better way than this. And there is no need in blaming it all on the other side. There is plenty of blame to go around. If after many years, one side "wins," it may preside over a shrunken, wounded and financially bankrupt church with diminished moral authority and little appeal in the lower state of South Carolina.

If anyone should know the catastrophic results of civil war, it would be the people of South Carolina. No state in America suffered more in the great U.S. Civil War than did South Carolina. In 1865 it lay in ruins. Its cities were in ashes. A quarter of all adult white males of draft age had been killed or wounded, the highest casualty rate in the country. Its economy was destroyed. Desolation and despair lay over the state like a shroud. Cannot we learn from history? There has to be a better way for the good people of South Carolina to solve their problems than by self-destruction. Enough of war. May there be peace, healing, and restoration in this little part of the Body of Christ. 

If anyone has information to contribute on what is going on in the mysterious case of the removal of the rector of St. Philip's parish in Charleston, please send along. Why did Lawrence remove McCormick?

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