Thursday, September 22, 2016

Reflections on the SC Supreme Court
Hearing a Year Later
September 23, 2016, marks one year since the Supreme Court of South Carolina held a hearing on the Church case. We are all still anxiously awaiting the Court's decision. 
In the last few days, I have gone over again the hearing transcript and the documents around it. Here are my thoughts about what has happened and what is happening in the Court. I offer these only as my opinions.
---The case before the Court is an appeal of Judge Diane Goodstein's circuit court decision of February 3, 2015. In short, that ruling was: --the Episcopal Church (TEC) is congregational, --the Diocese (DSC) is an independent self-governing entity, --the parishes are the owners of the properties, --DSC properly amended its corporate documents to legally withdraw from TEC. This was a total victory for DSC. 
---DSC asked the state Supreme Court (SCSC) to affirm Goodstein's decision. TEC/ECSC asked SCSC to reject the decision and write a new one.
---The five justices of SCSC conducted the hearing for about an hour before noon on September 23, 2015. The proceeding was led and dominated by the Chief Justice, Jean Toal. Other justices were Donald Beatty, Costa Pleicones, John Kittredge, and Kaye Hearn.
---Soon after the hearing, perhaps the same day, the five justices met in private and voted on a decision. One justice had already been assigned to lead the case. My guess it was Toal, who came loaded with documents to the hearing and dominated the entire hearing from start to finish. The majority then started writing their decision and the minority, if there were any, started writing their dissenting opinions either together or separately. Along the way and while the decisions were being drawn up, justices could change their votes, so that the majority/minority dynamic could change. Only when all justices were satisfied would they release the written opinions.
These are my best guesses at the moment.
---The justices unanimously rejected Goodstein's decision. This was clear during the hearing. Toal and Hearn eviscerated it. Not one justice had one word of support for it. They had two problems with it 1-the very lopsided way Goodstein had conducted the trial and 2-the injudicious written decision. Toal and Hearn were particularly appalled at the way the revered experts professors Edgar and McWilliams had been treated in the trial. Thus, the court rejected DSC's request to uphold the decision and granted TEC/ECSC's request for a new opinion.
---Another choice of the justices was to agree with parts and disagree with other parts of Goodstein's order and remand it to her for re-adjudication under certain guidelines. If they were going to do this, I think we would know it by now. I doubt that remand was their choice.
---The justices probably decided to write a whole new decision, and that is where the internal divisions showed up. What would the new decision be?
---In the hearing the justices were in unanimous agreement that Goodstein's decision was unacceptable. That is all they agreed upon.
---Toal and Hearn took their objections down entirely different paths. They became the competing  leaders for the new decision.
---Toal seemed to be primarily interested in local corporate and property rights. I saw two main points of hers: 1-the "settlor" (property title holder) must establish in writing  a trust for another party (the implication was that TEC could not impose a trust by itself), 2-a body incorporated under the state laws of SC is protected independently by the state laws.
Toal excoriated DSC lawyer Alan Runyan perhaps for getting the courts entangled in what she considered issues of lesser importance. After she raked him over the coals about what she apparently saw as Runyan's misuse of the 2009 All Saints decision, just before the end of the hearing she brought him back and spoon-fed him apparently what she saw as his two main arguments. She asked of Runyan: "They [DSC] withdrew their accession to the national church and as a corporation they had the authority to do that, that's your argument, isn't it?" "If we see it as a matter of corporation law, and don't get tangled up in all the doctrinal issues, as a matter of corporate law they legitimately filed papers accomplishing that, that's your argument?"
When Hewitt made his brief closing rebuttal, she hammered home the same issues. She said to him: "So once the, let me see if I get you, you want us to declare that the corporate law of South Carolina is that once you put a purpose clause in your charitable corporation you are forever bound to that purpose clause and, it can never be changed even if your constitution and other operational documents are properly amended to do so?" "What corporate, what constitutional documents were violated by amending the purpose to withdraw their accession from the national church?"
Thus, it seemed to me that Toal was trying to settle this case under state corporate law, in favor of DSC. It must be remembered that she was the author of the 2009 state Supreme Court decision called All Saints. In that, she had made two main points: All Saints parish was the owner of the property under a 1903 quit claim deed, and All Saints had properly amended its corporate documents to withdraw legally from the diocese.
Justice Beatty made only two brief comments in the hearing. He was the only other justice there who had been part of the All Saints decision. He had joined in it and had signed it. My guess is that he remained with Toal on this one.
---In the hearing, Justice Hearn advocated strongly and relentlessly for the Church side: TEC is hierarchical, there is no inherent conflict between hierarchy and neutral principles, the Dennis Canon was in effect as part of the accession to the Constitution and Canons of the Episcopal Church, and the court should defer to TEC as a hierarchical religious institution.
---If the scenario of a Toal-Beatty v. Hearn split is true, this left two justices as the deciding factors, Pleicones and Kittredge. At least three justices were required for a majority decision. Toal-Beatty had to bring over one of them. Hearn had to sway both of them.
---Which way did Pleicones and Kittredge lean in the hearing? This is difficult to answer because each said relatively little. It seemed to me that Pleicones probably favored the Church side. He was a Greek Orthodox and certainly understood hierarchical institutions. (Of course, Toal, a devout Roman Catholic also understood all of the meanings of hierarchy.) Pleicones made four comments that may have revealed a pro-Church attitude. As soon as Hewitt opened his presentation to the court, Pleicones broke in to raise the issue of whether the Episcopal Church was hierarchical. Later he asked how the case was different than that of All Saints. At another time he questioned the effect of a trust on parish property. Perhaps Pleicones's most important remark came when Runyan declared: "The Dennis Canon is not religious doctrine. It's purportedly declaring an interest in property." Pleicones responded, "It's a governance measure though, is it not?" This seemed to indicate that Pleicones might have had a favorable attitude toward the Dennis Canon. My guess is that Pleicones probably joined Hearn.
---To me the biggest mystery of all was Justice Kittredge. He made more comments in the hearing than Beatty and Pleicones. He was mostly concerned with clarifying the issues and the positions of the two sides. As Pleicones, he wondered about hierarchy and the relevance of the All Saints decision. Once when Runyan was defending the parishes' right to control their property, Kittredge asked him, "I'm just wondering if, does your analysis there, is it impacted if we determine that this is a hierarchical church? Could your clients unilaterally take the steps they took if it's determined to be a hierarchical church?" Runyan said hierarchy was completely irrelevant. It did not seem to be irrelevant to Kittredge. Toward the end, he made the most enigmatic remark of all in response to Toal's question to Hewitt about amending corporate documents. Kittredge said, "If they are properly amended. I have no problem with it. What you're [Hewitt] saying is, it's got to be amended in accordance with the rules regarding amendment?" 
The problem was in deciding whether the Diocese had amended its corporate documents "properly." That got down to a basic difference. The Church side argued that the DSC was incorporated in 1973 explicitly "under" the Constitution and Canons of the Episcopal Church. The DSC lawyers argued that DSC had the right to amend its corporate charter to unilaterally withdraw its recognition of the Constitution and Canons of TEC regardless of what it said in 1973. The question then that the justices had to decide was whether DSC had the right to remove itself at will from TEC. I do not see how they could decide such until they had determined whether or not TEC was hierarchical. By discarding Goodstein's decision off hand, they indicated a leaning away from the congregational interpretation.
One very important event has happened since the hearing that will certainly impact on the justices' decision(s). On April 5, 2016, a California court of appeals ruled in favor of the Church in the San Joaquin case. That court made two major points relevant to SC: 1-the Episcopal Church is hierarchical, and hierarchy is not incompatible with neutral principles (the CA courts followed neutral principles), and 2-the earlier decision in the Diocese of Quincy case in Illinois was irrelevant to California. The state courts in Illinois had ruled in favor of the local entity. The breakaway side declared the Illinois decision to be the law of the land. The problem was that state courts have jurisdiction only in that state. The California court ruled that the Illinois decision had no bearing in California because the state laws were different. Thus, unless the state laws in South Carolina are identical to those of Illinois, the Quincy decision in favor of the breakaway diocese would have no relevance to South Carolina. The California decision of April 5 could have had a major impact on the writing of the supreme court decisions in South Carolina. If so, it would be in favor of the Church side.
Bottom Line----my wild guess is that the reason for the long delay in a decision is that SCSC split. Toal-Beatty were for DSC and Hearn-Pleicones were for the Church. The big question mark then is how Kittredge came down. It is impossible to tell from his remarks in the hearing.
When will we know? It is unusual for the court to go for more than a year. However, given the size and complexity of this case that involves the most basic principles of the Constitution, it should not be surprising that it will take a long time to settle. I think chances are we will have a decision before the end of this year. But then, your guess in all of this is as good as mine.