Friday, October 2, 2015


What will the South Carolina Supreme Court decide in the church dispute? When will they let us know? These are the questions on everyone's mind nowadays. And apparently it is everyone as this blog has had over 4,000 visits since the hearing of September 23.

We have had the hearing. So, what happens next? There are five justices with equal votes on the Court. They will meet in private for deliberations on this case and will vote on a decision. The majority rules. Thus, 3, 4 or 5 justices must agree on a position. One justice in the majority is assigned to write a decision, but the others may contribute to it. If there is a minority, those justices are allowed to write a dissenting opinion giving their reasons for opposition to the majority. That statement carries no weight of law. The majority opinion will have force of law. When the justices are satisfied their work on the case is done, the Court will issue their written decision to the public.

The "when" question is easier to answer than the "what" part of the above questions. The typical gap between hearing and published decision is six months. However, Chief Justice Toal is retiring on December 31, 2015. Since she was the dominant personality in the hearing, I can only assume she will either write the decision herself, if she is in the majority, or will have a lot of input into it. If so, we may get the decision before Christmas. However, the Court is under no time constraint. It can issue a decision whenever it chooses. My own feeling is that we may well have the decision before the end of this year.

The "what" part is much harder to know, in fact, impossible to know. What will the Court decide? All we can do at this point is speculate about an outcome. What good is that? Certainly no good to the Court which makes its decision in private and is accountable to no one. However, speculation is a harmless game that might help us pass the time as we all anxiously await the decision. It might even be good therapy. Besides, after this is over, we can all look back and have a good chuckle at how far off base our predictions were. We will all need a good laugh by then. So, with that in mind, let's speculate.

Now, I think Chief Justice Toal is the most important person in this matter although she has only one vote among the five. We all saw in the hearing that she "owns" this case. Certainly, she will be a powerful voice in the private deliberations. What she will say we can only guess, but we can see the outlines of her thinking in her remarks in the hearing. Her remarks are our best guide to the tracks she may take in the decision making process.

In the hearing, Toal focused on three problems, albeit overlapping ones: 1-the ownership of the parish properties, 2-Bishop Lawrence's authority to act, and 3-the rights of a non-profit corporation under state law. 

On the first, the question of the local properties, she said early on that under state law, the settlor (the one who holds the deed, in this case the parish) must create an express trust for the property. A trust cannot be created by any outside force such as the Dennis Canon. Only the settlor, that is the title holder, can create a trust. The implication of this is that neither the diocese nor the national church could have any legal claim on the local properties.

On the second, Toal wondered aloud if Bishop Lawrence had the authority to do what he did, specifically issue the quit claim deeds. Lawrence issued the quit claim deeds in November of 2011. He served as bishop of the Episcopal Church diocese until December 5, 2012. I must admit, I could not quite follow her logic in this line. If the settlor actually owned the property and had not established an express trust for a beneficiary (diocese or Church), what difference would it make if Lawrence had authority or not? He would not be giving the parishes anything they did not already have. Perhaps the point she was making was that Lawrence might not have had the freedom to act outside the Constitution and Canons of the Episcopal Church. 

It was on the third point that Toal seemed most interested. If the diocese were duly incorporated as a non-profit corporation under state law, did it not have freedom to act independently of the mother church? Did it not have the right to separate from the mother church as long as it followed state law? It seemed to me that Toal might have been moving to focus this case into a fine point of corporate rights under state law.

Thus, it appeared to me that Toal was trying to define the case as the very narrow issues of state law on titled property and corporate rights. If so, her next job will be to convince the majority of justices of her reasoning. In this scenario, she will face a very strong challenger in Justice Hearn who is obviously resolved to defend the Church's claims.

The problem for Toal that I saw was not so much Hearn, but Judge Goodstein and Alan Runyan, the lawyer for Lawrence. Goodstein's Order and Runyan's argument on the  2009 All Saints decision went well beyond the narrow focus of property and corporate rights to spill over into religious issues, for instance, Goodstein's stunning declaration that the Episcopal Church is congregational. Toal's impatience in the hearing, even apparent irritation, with Runyan was clear to me. The introduction of religious issues has forced the Court to broaden its considerations beyond a narrow focus. They will have to deal with questions that came up in the hearing such as hierarchy, the bishop's authority, and obligations of the diocese to the national church. The problem with this track is that the Court cannot go far into the structure of a church. Ruling on the internal working of a church would be a violation of the First Amendment. The justices know they must tread lightly on religious matters because there is only a vague line between neutral principles and deference. If they go too far, they would have to declare for deference. That would end the case on the Episcopal Church side. It seems to me, that may well be what Toal was trying to avoid.

All of that speculation being made, I am ready to move on to predictions. For whatever they are worth, here are what I see as possible decisions of the Court:  (Of course, I reserve the right to change my mind at any minute. Consistency is not necessarily a virtue.)

1. The Court will uphold and validate Goodstein's Order of Feb. 3, 2015.

Bottom line: absolutely not. Out of the question. I have never seen such complete rejection among a panel of judges for a lower court trial and decision. 

2. The Court will remand the case to Judge Goodstein with directions for new proceedings.

Only slightly more likely than #1. Does anyone really think this is possible? One has only to watch the video or read the transcript of the hearing to know Toal and Hearn demolished Goodstein's decision both for its courtroom method and for its findings. I think there is zero chance of remand. I fully expect the Court to act de novo, that is, write a new decision to replace Goodstein's.

3. The Court will make a compromise decision to give something for each side. 

This is possible, but I have a hard time coming up with what a sensible compromise would be. I suppose the logical settlement would be along the lines of attorney Thomas Tisdale's offer in June of 2015 in which he suggested trading the local parish properties for the legal rights to the diocese. So, I'm wondering if the Court might agree with Toal that the local parishes hold titles to their properties, and since none had established an express trust in the property for the diocese or the national church, their ownership of the properties could not now be challenged. Recognize that the local parishes have the properties. Then, give the Episcopal Church the rights to the diocese under the claim that its incorporation was conditional on its operating under the Constitution and Canons of the Episcopal Church. It could not unilaterally alter its corporate documents because of this overriding condition. Thus its purported disassociation from the Episcopal Church was illegal, null and void.

The problem I see with this track is, if the Court recognizes the Episcopal Church would not it also have to recognize the effectiveness of the Church's Dennis Canon? The Canon declared a trust over the local properties. Perhaps the Court could say South Carolina law did not allow such; so that part of the Church's rights would have to be overruled. I suppose such a compromise is possible, but it seems strained to me and I doubt the U.S. Supreme Court would follow the logic of recognizing some rights of the Church and not others.

Bottom line, I doubt there will be a "compromise" decision.

4. The Court will rule that the independent diocese (DSC) owns the legal rights of the old diocese and the parishes own their properties. Total victory for DSC.

I could see this happening if Toal, if indeed she wants the narrow approach, does succeed in getting the justices to focus only on the fine issues of state property law and corporate law. Of course, I'm sure this would lead to a titanic fight in deliberations between Toal and Hearn. I think those two would do their best to sway the other three justices to their sides. My guess is that Justice Beatty might follow Toal since he was a signatory of the 2009 All Saints decision. That would leave Justices Pleicones and Kittredge in the middle. Toal would have to persuade one of them. Hearn would have to bring over both of them to get a majority. It seemed to me that in the hearing, both Pleicones and Kittredge leaned to the Church side.

Bottom line on #3, I think a decision for DSC is unlikely.

5. The Court will rule that the Episcopal Church and its diocese (ECSC) are entitled to the rights, assets, and properties of the pre-schism diocese. Total victory of TEC/ECSC.

To make this happen, the Court will have to go beyond the narrow focus of state law on property and corporations and deal with some religious issues. They will have to see the diocese as at least somewhat dependent on the national church. Since this was the direction I think they were going in the hearing, it is reasonable to assume they will continue that in private conference. In this case, Hearn's position would have the strength. To make this unanimous, Toal and Beatty would have to agree with the broader scope. If these two refuse to agree and the other three do unite behind the Church's position, there would be a 3-2 split decision for the Church side. Toal would go into retirement in defeat on what may turn out to be the defining Court decision of her tenure. She would have this on top of the virtually universal rejection of her All Saints decision.

The problem in this scenario is what the Court would do about the parish properties. It has already ruled a trust can be created only by the title holder. How they resolve that with the Dennis Canon would be interesting to see.

Bottom line, I think there is a slightly better than even (but not overwhelming) chance the Court will arrive at a decision favoring TEC/ECSC, probably unanimously, if not, 3-2.

Alright, dear reader, I have had enjoyed speculating about the Court's upcoming decision. Now tell me what you think.