NEWS UPDATE ---

SEPTEMBER 26, 2017

A great deal has happened in the schism since the South Carolina Supreme Court's (SCSC) August 2 decision siding with the Episcopal Church (TEC). Much of importance has occurred in just the last week or so. This is an opportune time to consider the latest events in the ongoing unhappy saga of the schism in South Carolina. In a way, matters are worse, and in a way they are better. First, let's take the worst.

THE CAMPAIGN AGAINST JUSTICE KAYE HEARN

We have reached a new low in the history of the schism. This is the darkest hour, and that is saying a lot. The independent diocese (DSC) is conducting an all-out, last-ditch campaign to reverse the state supreme court decision of August 2. Their goal is to overthrow the unwelcomed decision that went against them. Their desire to reverse the decision is understandable. It is the way they are going about it that I see as the problem. DSC is accusing Justice Kaye Hearn, who happens to be an Episcopalian, of unethical conduct and bias from a conflict of interest, charges that could be devastating to a justice of a supreme court. A justice or judge has to survive on an reputation for being judicial, that is, fair and unbiased. I see DSC's campaign against Hearn as having the effect, intended or not, of character assassination. If one has to win by destroying another person, is the winning worthwhile? I think not. For what shall it profit a man, if he shall gain the whole world, and lose his own soul? (Mark 8:36). 

We should all remember that one day all of this ugliness will be over; and then everyone will have to look in the mirror and say to himself or herself, I behaved as the Christian I claimed to be, I did the best I could for everyone involved. I think we will look back and see the awful smear campaign against Hearn as the moment that put every Christian to the test. I know, I know, we are called to forgive and I will one day, but I am sorry to say I am not there yet. I need more time. I am profoundly disappointed in the DSC leaders who felt that had to do this to Hearn. It is most unseemly.

Why is DSC going after Hearn? The stated goal is to reverse the August 2 decision that awarded 29 of the 36 parishes, and Camp St. Christopher, to the Episcopal Church and the Church diocese. The strategy is to nullify Hearn's part of the Aug. 2 SCSC decision and to remove her from future adjudication of the case. The decision was 3-2 in favor of TEC/TECSC against DSC. If Hearn's part is thrown out, that would leave the decision at a 2 (Pleicones, Beatty) to 2 (Kittredge, Toal) tie. A tie would mean that the Goodstein decision of Feb. 3, 2015 would stand as the final word. As we all know, Goodstein gave everything and then some to the DSC side. Thus, by kicking out Hearn's part, DSC would reverse the SCSC decision and leave Goodstein's ruling as the law. The chosen tactic for that strategy is to hound Hearn to recuse herself under charges of ethical violations and conflict of interest. DSC said since she was an active Episcopalian and member of the Episcopal Forum, she could not be an unbiased, impartial judge in this case. 

To my knowledge, such a strategy and tactic has never occurred in the South Carolina Supreme Court. What the DSC lawyers are doing is simply unprecedented. What makes their case even shakier is they never mentioned recusal before now. The DSC lawyers did not bring it up before the hearing of Sept. 23, 2015, during the hearing, or after the hearing for twenty-two months. How they think the demand would work now is beyond me. It just does not pass the common sense test. It is obvious they brought it up only now because the decision went against them.  If they had won on August 2, would they be raising the issue of recusal now? Of course, not.

I understand that the DSC side is extremely disappointed, dejected, and desperate after the Aug. 2 SCSC decision. They lost most of the properties after they had promised their people they could leave the Episcopal Church with the properties in hand. They failed to keep their promises. As 13,000 people stand to be have their church buildings returned to the Episcopal Church, DSC is desperate to keep as many of these people as they can for their diocese. It will be a hard task. One way they can keep the people with them is to de-legitimize the state supreme court decision in the public perception. That, I think, is the bottom line of this sorry episode. It seems to me the campaign against Hearn is really a campaign to turn the communicants of DSC against the SCSC decision and keep them with the independent diocese. 

Moreover, one needs to bear in mind that the DSC leaders see themselves as fighters in a culture war. They are trying to preserve what they consider true religion, that is, a narrow faith that abhors inclusion of and equality for non-celibate homosexuals and for women. This is what led them to the schism from the Episcopal Church, a body they had come to see as hopelessly infected with secular humanism.

Aiding DSC as allies in this culture war are the Palmetto Family Council and The Daily Caller, well-known right-wing political organizations. The PFC is a highly conservative political action committee in South Carolina devoted to opposing rights for homosexuals and for women. One may recall that PFC participated in, or perhaps led, a successful campaign early this year to block attorney Blake Hewitt from being elected to the bench of the state appeals court. See the article here . This was reprisal for Hewitt's role in representing TEC in the state supreme court. On August 29, PFC turned their guns on Hearn: "Thousands of SC Christians to be Displaced Due to Judicial Bias." Read the article here . At the end of the article, PFC called on readers to appeal to their state legislators to get Hearn to recuse herself. It is not going to happen.

Along the way, DSC decided to frame the issue as one of religious liberty. That became the rallying cry in September. On September 16, 2017, the Rev. Jeff Miller, published in the Charleston Post and Courier an op-ed, "Court Ruling Imperils Freedom of Worship, Sanctions Confiscations." Read it here . It was an ill-disguised continuation of denunciation of Hearn:  "Freedom of worship hangs in the balance, in the hands of a court tainted by personal bias."

On the next day, PFC published an op-ed in Columbia's The State newspaper. It included this zinger: "The deciding vote was cast by a justice who belongs to a parish, diocese and national denomination that stand to gain tremendously from the outcome." Three days later, DSC bought a full-page ad in The State to reprint the op-ed and to list some 100 people who had endorsed it, a whole lot of Baptists as it turned out (112 signatures by Sept. 25). See the announcement of this here . 

While PFC was busy fighting against rights for homosexuals and women, The [like-minded] Daily Caller stepped in to help. To be honest, I had never heard of The Daily Caller. I know about it now. See the Wikipedia article on it here . As it turned out, it was a right-wing "news" fountain founded by Fox News personality Tucker Carlson and Neil Patel. It was originally funded by Foster Freiss. He is the highly conservative donor to social and cultural campaigns probably best known for his remark on live TV. To newswoman Andrea Mitchell, he said: "And this contraceptive thing, my gosh, it's so---it's such---inexpensive, you know, back in my days, they used Bayer Aspirin for contraception. The gals put it between their knees and it wasn't that costly." For the first time in her life, Mitchell was rendered speechless (I happened to be watching). Tucker Carlson, who apparently runs The Daily Caller, is actually a cradle Episcopalian. He says he stays in the Church for the liturgy.

On September 19, The Daily Caller joined in the fray with this article . Two days later, DSC brought attention to the article and asked people to spread it on social media.

The next, day, September 22, Steve Skardon unmasked The Daily Caller: "Breakaways Courting Alt-right News Media in War against the Church." As it turns out, The Daily Caller is in the far-right fringe media with the likes of Breitbart News. Skardon also reported that DSC has apparently hired a PR firm to spread its message against TEC. Read Skardon's troubling and revealing article here . 

In sum, DSC is conducting a fierce campaign against Hearn. It seems to me this is meant to diminish respect for the state supreme court decision in an attempt to keep communicants with the breakaway diocese as the buildings return to TEC. 

LITIGATION

1. TEC/TECSC filed a "Return" with the SCSC on September 18, 2017. Read it here . This was a response to DSC's three petitions for rehearing of Sept. 1. It was in two large parts. The first dismissed DSC's arguments as a rehash. The second defended Hearn against the demand for recusal. It said church membership is not grounds for recusal.

2. The next day, September 19, TEC/TECSC filed with the SCSC a friend of the court brief: "Amici Curiae Brief of The Honorable (retired) William T. Howell and The Honorable (retired) H. Samuel Stilwell in Opposition to Respondents' Motion to Recuse." Here, two retired judges wrote that Hearn was within her rights to remain on the case and had broken no ethics rules. Along with the judges' paper were two addenda. One was "Affidavit of Rebecca Lovelace." This refuted the words of the Rev. Tripp Jeffords regarding Hearn's role in the local church of Conway. The second was "Affidavit of Expert Opinion of Dr. Gregory B. Adams." Adams was a University of SC law professor and expert on judicial ethics. He too testified that Hearn was perfectly within her rights and had broken no rules of ethics. See the amici brief here .

3. On September 25, DSC filed a reply to TEC/TECSC's "Return" of Sept. 18. Read it here . It was mostly a defense of "timeliness," that is, why DSC waited so long to raise the issue of recusal.

The Supreme Court of South Carolina now must decide whether to grant DSC's petitions for rehearing. We are awaiting a decision. If they deny the petitions, the case is over in state court. DSC then would have the choice of appealing to the U.S. Supreme Court but it is highly unlikely SCOTUS would take the appeal. 

MEDIATION

U.S. District Judge Joseph Anderson, the mediator, has called the two sides to a meeting on October 4, to set up the structure for the mediation process. The federal court has a rule book online. It requires the mediation to start within thirty days after the order of mediation. That would have put it at September 29. Obviously the court does not strictly adhere to the rule book. The mediation is supposed to go on no more than thirty days with another fourteen days if there is a long written agreement. Perhaps the mediation will end in mid to late November. If there is an agreement, it will be put in writing and signed by the two parties. If there is no agreement, the mediation ends and the two sides continue litigation in court (which goes on anyway during the mediation talks). 

The mediation is give and take. Both sides will have to give something to the other. No one side will wind up with everything. Now is the time for communicants to be communicating their thoughts of what is and is not negotiable to their officers. Once October 4 arrives, the two sides cannot discuss the talks. They are private and confidential. The next the public will hear is at the end, whether there is an agreement or not. If there is an agreement, it will be presented to the public as a fait accompli. Since all issues, state and federal, are on the table, the agreement conceivably could end all litigation once and for all. 

We are awaiting a response from the SCSC. It is important that a response appear either before or during the mediation so as to clarify the settlement in the state court. Traditionally, SCSC responds within a few weeks to petitions for rehearing.

For some reason(s) completely unknown to me, the DSC side has ignored all mention of the mediation. The DSC website and the related "orthodox" sites have yet to say a word about the mediation. The whole world knows there is about to be a mediation. Why one side wants to pretend it does not exist makes no sense to me.

What happens now?

As for the SCSC, it seems to me there is virtually no chance DSC will get its wish to reopen the case. What it is asking is radical in the extreme. I call it "The Nuclear Option." It would blow up the court and rattle the whole state government. It has never happened. I expect within the next few weeks SCSC will deny DSC requests for rehearing. It is unimaginable those five justices would want to touch that radioactive case ever again. And, asking a justice to throw out her decision and to recuse herself retroactively is, well, to be charitable, far-fetched.

The mediation is another story. The deal is entirely up to the lawyers and authorities of the two sides. No one else can know what is going on there. How about a day of prayer and fasting on October 3, the day before the mediation process begins? That would be a good idea. It would be ideal if the two sides could come together as brothers and sisters and make a reasonable agreement good for both sides and leave as friends. 

Let us not forget that, after all, the two sides claim to be Christian churches. When this is all over, both sides had better be able to say we behaved as the Christians we claimed to be. 

I sense that we are getting close to the end of this long and sad saga of the schism in South Carolina. I believe we are at the most critical moment in the history of the schism. However, exactly what the end will be remains a mystery at this point. 

A NOTE --- SEPTEMBER 25

For the past week, I have not made any postings on this blog as I have been away from my computer. On last Thursday, I gave a talk on the history of the schism to the Third Thursday luncheon at Grace Church Cathedral in Charleston. The people in charge said the crowd was the largest ever for this monthly event. There are photos on Facebook---Episcopal Church in South Carolina---September 21. The link to Facebook is here . I was impressed by how well-informed people were. The questions and discussions were excellent. I think I learned as much from the attendees as they learned from me. Everyone was kind and gracious, as Charlestonians always are. Of course, I thoroughly enjoyed it all. I also enjoyed visited family and friends in Florence.

The Grace Church Cathedral bookstore has sold out of my new book for the moment, A History of the Episcopal Schism in South Carolina, but new copies will be arriving soon. One may also order it online at the publisher's website here . 

Concerning the schism, a great deal has happened in the past week. I am sorting through it all and will return as soon as possible to relay news and commentary on the various turns of events in the past few days. There is much to cover. The schism is reaching a critical point. I will return asap.

BREAKING NEWS---

CHURCH LAWYERS SLAM

BREAKAWAYS' PETITIONS FOR REHEARING

On today, September 18, 2017, lawyers for the Episcopal Church and the Episcopal Church in South Carolina officially refuted all of the claims made in the independent diocesan lawyers' three petitions for rehearing of September 1, 2017. At that time, the breakaway diocese asked the South Carolina Supreme Court to rehear the case in an attempt to reverse the Court's decision of August 2, 2017, that awarded 29 of the 36 parishes in question, and Camp Saint Christopher, to the Church diocese. Today the Church lawyers filed a "Return" with the state high court rejecting the other side's arguments of Sept. 1. See the document here .

Two of the three petitions for rehearing dealt with opposition to the Dennis Canon and with neutral principles. Today, the Church lawyers said this was nothing new, only a "rehash" except for parts that were indeed new. New issues cannot be admitted in the case at this point.

By far the biggest and most serious of the independent diocese's three petitions for rehearing called for the dismissal of Justice Kaye Hearn's opinion of August 2, and her recusal from the case. In today's paper, the Church lawyers dismissed the breakaways' position on this.

Here are some excerpts of the Church lawyers' presentation:

Respondents allege a member of this Court and her husband "were personally involved in the entire schism" and that her husband "was a critical player in the underlying events of this case," which is utterly and totally baseless.

Respondents say George Hearn was a material witness, yet he was not called as a witness and his deposition was not introduced at trial. 

.....

Respondents amazingly claim a member of this Court is a party to the case by virtue of membership in The Episcopal Church. This ludicrous and baseless argument does not merit a response.

.....

Religious affiliation is not a recognized ground for recusal.

.....

The motion for recusal is untimely. In fact, the timing if the motion indicates it is not offered in good faith. If Respondents desired a member of this Court's recusal, they should have requested recusal at the first opportunity... The motion is remarkable: conspicuously advertising as its basis information Respondents themselves admit knowing since before the trial in this case occurred. Yet, Respondents said nothing about recusal when the parties jointly sought to transfer the case to this Court. They said nothing about recusal when the parties filed their appellate briefs. They said nothing about recusal before the oral argument or in the nearly two years between the oral argument and publication of the Court's decision. Respondents never gave any indication they had an issue with the Court's composition---until they lost.

.....

Timeliness requirements preclude litigants from lying in wait and keeping evidence of purported bias up their sleeve to use as an ace card in the event the court rules against them.

.....

Justice Hearn's opinion is legally sound and follows the overwhelming number of other jurisdictions. Her religious beliefs and those of her husband are not grounds for recusal. Respondents knew she was an Episcopalian from the beginning yet they waited until they lost to raise the issue and they are now asking for a re-do. This is an abuse of the judicial system.

In my opinion, the Church lawyers are absolutely right. Asking Hearn to recuse herself for the first time and to do so retroactively is groundless, and to me, does not even make common sense.

As I did research in the history of the schism one of the biggest mysteries that stood out to me was why the independent diocesan lawyers did not ask Justice Hearn to recuse herself before the hearing, or even after the hearing. They knew all along she was a loyal Episcopalian. Remember they had 22 months to do so before the Court issued its decision on August 2. All that time the lawyers said nothing about recusal. I suppose only the lawyers can clear up that mystery. The only conclusion I could reach that sounded plausible was over-confidence. Coming off Judge Goodstein's sweeping award, perhaps the diocesan lawyers were counting on Chief Justice Jean Toal to extend her 2009 All Saints decision to cover the new case. Thus, they did not need to worry about Hearn's lonely opposition. Toal would bring along the majority of the Court and give them victory, just as Goodstein had done. If that were the lawyers' thinking, it was a fatal miscalculation. Toal, as it turned out, was the only one of the five justices to adhere to the All Saints decision.

It seems to me it is most unlikely the Court will grant any one of the three petitions for rehearing from the independent diocese. In my non-lawyer's view, the three petitions are unconvincing. However, we shall just have to wait and see. Let us hope the wait is not another 22 months. After all, the lawyers need closure in the state courts as the two sides are about to go into mediation in federal court. The mediation conferences are to begin no later than September 29 and conclude no later than October 29. It is crucial for the mediation that the South Carolina Supreme Court make a judgment on the motions for rehearing as soon as possible. 

LEGAL UPDATE

On September 1, the independent Diocese of South Carolina filed three petitions for rehearing with the South Carolina Supreme Court in an attempt to change the Court's August 2 decision awarding 29 parishes and Camp St. Christopher to the Episcopal Church diocese, the Episcopal Church in South Carolina.

On September 7, the Court asked lawyers for TECSC to submit a response to the petitions for rehearing and to do so within 10 days (Sept. 17). Presumably TECSC will ask the Court to deny a rehearing.

After TECSC files its response, the Court will consider whether to grant or deny the petitions for rehearing. There is no time frame for this although it is doubtful that the Court would take another 22 months to make a decision.

FOUR YEARS

This web log began four years ago today, on September 11, 2013. As I sit at my computer now, a storm is bearing down with pelting rain and menacing wind. How appropriate in more ways than one. This is a day to remember man-made and nature-made disasters, present and past. 

As for man-made, everyone recalls where he or she was on 9-11, sixteen years ago. I was in Charleston, at my desk as the assistant head of the South Carolina Room of the Charleston County Library. The library remained open but a dead zone of zombies. At the end of the day, I walked the few blocks over to the Cathedral of St. Luke and St. Paul for a memorial service. As I suppose everyone else, I saw it as one of the worst days of my life.

In another man-made disaster, the Episcopal Church schism had been going on for nearly a full year and the two sides were locked in bitter opposition in civic courts, both state and federal. Little did we know then just how bitter and long this legal war would be. We still do not know four years later.

I started this modest blog on my own as an independent source of information and opinion hoping people, particularly in South Carolina, would find it helpful in understanding what was going on around them. Since I was not connected to either diocese, I was free to give a perspective the official sources of information were not free to give. For years, Steve Skardon, at scepiscopalians had borne the herculean task of keeping people informed of the troubles in the pre and post schism diocese(s). I was simply trying to supplement his indispensable blog.

Apparently, people did find this blog useful. In the four years, it has had 229,000 "hits," with 29,000 coming in just the past seven weeks. Some posts have even been given as "exhibits" in the state supreme court, in a purpose for which they were never conceived.

Along the way I finished my history of the schism. A History of the Episcopal Church Schism in South Carolina was published last month by Wipf and Stock of Eugene OR. As those of you who have seen it know, it is a long, detailed, thorough, and painstakingly documented narrative of the causes, events, and aftermath of the 2012 schism. To add to the difficulties, in the last six months of working on the book, I had to undergo radiation treatments, but I was resolved to finish the manuscript on time, and I did. I am pleased with the outcome (of both the treatments and the book---thank God for modern technology).

When I think back over the past four years, I am both distressed and hopeful. It is sad to see so much destruction and waste, none of which was necessary, none of which had to happen, all of which could have been avoided. A once great diocese of a major Christian denomination lies broken in pieces. A long darkness descended. 

But, there is light in the darkness. It appears that we have turned the corner on the litigation. The state supreme court has finally issued its decision, at long last the federal case is moving along expeditiously, and, in the next few weeks, the two sides will start mediation talks that may well bring an end to all legal disputes between the two sides. If the talks fail, all other signs indicate the litigation will conclude in the foreseeable future, perhaps in a year or so. We are within sight of resolution and peace.

Looking at the history of South Carolina, and of the diocese, I believe that reconciliation of the two sides will come eventually. The state has had more than its share of difficulties, natural and man-made, yet has survived and even benefited from a great deal of conflict resolution. The diocese has had two major crises, the division from the national church in the Civil War, and the white racist Schism of 1887 that took a full century to resolve. So, I am left here today in hope and confidence that one day, all will be well and peace and good will will return to the men and women of lower South Carolina who have far more in common than in difference.    

THE STATUS OF THE LITIGATION,

SEPTEMBER 5, 2017

The children are back in school, Labor Day is over, and summer is winding down. This is an appropriate time to stop and take stock of the status of the schism, particularly of the legal issues. How do legal matters stand now and what can we expect in the future?

There are three separate but interrelated aspects of the litigation going on between the two sides, the Episcopal Church (TEC) and the Episcopal Church in South Carolina (TECSC) on one hand and the independent Diocese of South Carolina (DSC) on the other. The three are: 1-state court, 2-federal court, and 3-mediation. Let's take each one separately.

First, let me remind everyone what I offer here is my own opinion as an independent blogger on the Internet. I am not a lawyer. I am not offering advice. I am not representing any religious entity.

1. STATE COURT.

DECISION OF THE STATE SUPREME COURT.

On August 2, 2017, the South Carolina Supreme Court (SCSC) rendered a majority decision largely favoring TEC/TECSC.

The decision dealt with two areas, property and principles.

Property. 

---The majority of justices (Pleicones, Hearn, and Beatty) ruled that 29 of the 36 parishes in question must be returned to the trust interest of TEC/TECSC.

---The majority (P, H, B) said Camp St. Christopher belongs to TECSC.

Principles.

---The majority (P, H, B) said that TECSC is the successor of the pre-schism diocese.

---The majority (P, H, B) said TEC is hierarchical.

---The justices also said that the federal court must decide the applicability of federal copyright law. However, a majority (B, Kittredge, Toal) agreed that DSC had registered the "marks" of the diocese under state law.

PETITION FOR REHEARING.

On September 1, 2017, DSC submitted three petitions for rehearing with the SCSC:

   1-Petition for Rehearing. General reiteration of the points made in the circuit court and in the SCSC. Claimed the Aug. 2 decision erroneous on neutral principles and the Dennis Canon.

   2-Petition for rehearing from Church of the Good Shepherd (Charleston). Petition from one parish; argues against Dennis Canon.

   3-"Motion to Recuse the Honorable Justice Kaye G. Hearn from Participation in the Rehearing Petition; Motion for Vacatur of Opinion of Justice Hearn and Failing That, Motion by Non-Prevailing Parishes and the Diocese to Vacate All Opinions in this Matter; and Motion for Consideration of this Motion by the Full Court and for Other Relief." This asked the full court to vacate (set aside) Hearn's opinion in the August 2 decision. Also asked that Hearn not be permitted to participate in the rehearing. In the alternative, asked the Court to discard the Aug. 2 decision and hold a new hearing. The basic argument against Hearn was that she was a member of a TECSC congregation and of the Episcopal Forum and therefore had a built-in bias in favor of one party.

EXPECTATION.

It seems to me the SCSC will either ask the TEC/ECSC lawyers to submit a response to DSC's three petitions for rehearing, or will deny the petitions for rehearing. If they deny, this will end the litigation in the state court. Upon denial, DSC lawyers may appeal the case to the United States Supreme Court. 

The SCSC is under no time constraint to make a decision about rehearing. Remember it took the Court 22 months to render a written decision.

2. FEDERAL COURT.

The case of vonRosenberg v. Lawrence is active in the United States District Court, in Charleston. Judge Richard Gergel is presiding having taken the case in late July. The federal suit was originally filed on March 4, 2013 when Judge C. Weston Houck took the case. Houck died in July of this year.

In this suit, the TECSC bishop, vonR, charged L with violation of the Lanham Act, a federal law protecting copyright. TEC holds the national copyright on its names. TECSC asked:

 ---DSC to stop using TEC's marks, L claiming to be an Episcopal bishop, and DSC claiming to be the Episcopal diocese.

 ---that vonR be reimbursed for costs and lawyers' fees.

 ---L to file a compliance report within 30 days.

 ---that L make an accounting of all profits made under the false advertising.

In August of 2017, TEC joined the suit alongside TECSC over the objections of DSC.

EXPECTATION.

Judge Gergel has ordered the "Discovery" phase to end in December of 2017. This is the time the lawyers collect the documents, take depositions and get ready for the trial.

Gergel has set the trial for March of 2018.

Gergel ordered mediation on August 30, 2017.

3. MEDIATION.

On August 30, Judge Gergel, in agreement with the two parties, ordered a mediation. He appointed senior U.S. District Judge Joseph Anderson as the mediator.

According to the mediation section of the U.S. District Court rule book:

 ---the two sides are required to take part but are not required to reach an agreement. All talks are confidential.

 ---talks must begin by September 29, 2017.

 ---talks must end by October 29, 2017.

 ---if agreement is reached, the participants will put the terms in writing and sign the document. 14 days may be allowed for the preparation of the agreement document.

 ---if no agreement is reached, the mediation ends and the court litigation continues.

 ---litigation continues during the mediation.

All issues in both state and federal courts are on the table for consideration. This has been confirmed by the lead lawyers on both sides. Any agreement would presumably settle all issues in contention between the two sides.

Both sides have avoided or delayed the news of the mediation, for reasons unapparent. The news was revealed on September 1 in the DSC lawyers' request for a time extension before filing their petitions for rehearing. As an argument for delay, they described the mediation and gave the Aug. 30 court document ordering the mediation. This blog received the lawyers' request to the court and posted the news of the mediation on the Internet. The response was electric. It was a common topic of discussion in church last Sunday. Yet, the officials on both sides ignored the news. They neglected even to announce there had been an order given for mediation.

Finally, on September 4, TECSC posted the news of the mediation in an article on their legal news blog page.

As of this writing, DSC has refused to post any news of the mediation and none of its allied websites and blogs has mentioned the mediation. This raises a question of the reason for ignoring what everyone now knows. The fact of the mediation is common knowledge; and why DSC would want to pretend to ignore what everyone knows is a mystery to me. 

EXPECTATION.

The imminent mediation has the potential of finally resolving all legal disputes between the two sides. This would end all court litigation. On the other hand, the talks could come to nothing.

The talks in the mediation will be private and confidential. We will not know the results until either an agreement is produced, or the mediator announces a failure. As I understand it, once an agreement is produced, it is final. The whole idea of mediation is to reach an agreement. The two sides will feel pressure to come to terms. Agreement presumes compromise. Neither side will get everything it wants. There will have to be give and take. The fear of giving too much is perhaps the cause of so much anxiety these days. Neither side wants to give away too much. This schism, this litigation has gone on for a very long time and people have deep emotional investments that cannot be simply discarded. This is likely to be another hard experience in the history of the schism. If done right, though, it could provide an enormous relief.

Going into the mediation, TEC/TECSC is in the stronger position. It has won in the SCSC and holds a promising position in the federal court. Since the SCSC majority declared that TECSC is the successor of the pre-schism diocese and TEC is hierarchical, the federal court will be under influence to favor the TEC side. Essentially the federal court will have to decide which of the two dioceses is entitled to the legal rights of the old diocese. It appears to me that chances are good for the Church to prevail in federal court.

The question arises then, if mediation means compromise, what can each side reasonably give up to the other? That is the fundamental question, and that is one only the lawyers and the diocesan officials can ultimately resolve. All negotiations will be confidential, that is, in secret. If a deal is reached, it will be written up and signed, and then released to the public. As I understand it, that will be final, and it cannot be undone. Thus, people on both sides will have to trust their lawyers and bishops to reach to best deal they can. Now is the time for prayer and fasting, not after it is done.

No doubt every communicant on both sides will hold what they believe to be non-negotiable and negotiable items. I think it is appropriate for church members to communicate their thoughts to the diocesan authorities now. Now is the time. It will not be appropriate once the mediation begins. Once talks start, the public will be excluded, as they should be. At that point, everyone will have to wait patiently to learn either what the settlement is, or that there is no settlement.

One should bear in mind that the court litigation goes on during the mediation. One great unknown variable is the SCSC. At some time it will have to respond to the DSC's three petitions for rehearing. If they agree to a rehearing, that could mean months more of dealing in the state court. SCSC has no time limit, but the mediation does. According to the rule book, mediation talks must finish in 30 days.

Mediation is going to happen. It is an established fact. Now is the time for church members to make their thoughts about a settlement known. In a few weeks, the mediators will be "locked down" in silence. They will either make a final settlement or not. 

Mediation has great potential. At this point, however, only mediation is a certainty; and the outcome of it is entirely uncertain.

     

THE MEDIATION PROCESS,
with Addendum on Sept. 4

Since news of the mediation between the two sides broke on September 1, there have been numerous questions about what mediation is and what it may involve.  We know that both sides have agreed to mediation, that the U. S. District Judge Richard Gergel, handling the case of vonRosenberg v. Lawrence, has ordered mediation, and that Judge Joseph Anderson, senior U.S. District Judge in Columbia, has been assigned as the mediator.  

Fortunately, the U.S. District Court in South Carolina has posted on the Internet its very clear and helpful guidebook of rules including much information on the process of mediation:  "Local Civil Rules for the United States District Court District of South Carolina (with revisions through January 2012)." Find it here .

The section on mediation is found on pages 17 to 22.

I am not a lawyer or legal expert, but these are some of the points in these pages that seemed most important:

---DEFINITION. 16.04 (A). "An informal process in which a third party mediator facilitates settlement discussions between parties. Any settlement is voluntary. In the absence of settlement, the parties lose none of their rights to trial by judge or jury."

Important points --the settlement is voluntary; --if the mediation fails, litigation continues.

---FIRST  CONFERENCE. 1607. (A). Within 30 days of the Mediation Order. In this case, by September 29, 2017.

---COMPLETION. 16,07 (A). Mediation to be completed within 30 days after the first mediation conference. In this case, by October 29, 2017.

---CONTINUING LITIGATION. 16.07 (B). Mediation does not delay proceedings in court except by court order.

---PRIVACY. 16.07 (C). Mediation is in private and is confidential.

---ATTENDANCE. 16.08 (A). Attendance is required of the parties. Penalties may be assessed for non-attendance (16.09).

---AGREEMENT. If agreement is reached, it is to be put in writing and signed. This is to be done within 14 days of the mediation conference of agreement.

---MUTUAL CONSENT. 16.10 (B) (8).  All agreements are to be reached by mutual consent of the parties.

---FAILURE. 16.10 (G). The mediator may declare an impasse and end mediation. The mediator alone may make this determination.

Again, I am not a lawyer, but it appears to me from the rules booklet that we may expect the mediation to begin by September 29 and end by October 29. By my calculation, unless there is some time extension, counting the 14 days after agreement for a final written document, we should know if there is to be a mediated settlement by November 12, 2017 at the latest. All communications between the parties will be private and confidential. If they reach mutual agreement, they will sign the deal. If they fail to reach agreement, the mediation ends and the litigation continues in court. This is how it appears to me. I encourage you to read the pages and reach your own understanding of the court rules.

At any rate, this court guidebook on the Internet greatly clarifies for us laypeople what the mediation process is and how it works. Mediation seems to be a reasonable way to try to settle differences, but it does not force or require a settlement. Mediation may fail, and if it does, the court litigation goes on.

One other point, the DSC lawyers said in their September 1 motion for time extension that all issues of both state and federal courts were on the table in the mediation. I can only wonder what effect a decision of the state supreme court on a rehearing would have on the mediation providing the mediation is ongoing.


ADDENDUM (Sept. 4):   The Episcopal Church in South Carolina has publicly announced its participation in the mediation. Mr. Thomas Tisdale, the chancellor of the diocese, has confirmed that both state and federal issues will be included in the talks, just as Mr. Runyan, the DSC lawyer. had said on Sept. 1. In the ECSC announcement of today linked below, you can find the Mediation Order and Runyan's comment in the first designated link "motion for an extension."

See the ECSC announcement here .

THE MORNING AFTER

Yesterday, September 1, 2017, was a blockbuster day in the history of the schism in South Carolina. I am still trying to process the news and sort out what it all may mean. Here are the three big events of yesterday:  1-news arrived that the two sides of the schism have agreed to mediation under a federal judge, 2-the South Carolina Supreme Court denied the independent Diocese of South Carolina's lawyers' motion for an extension of time before filing a Petition for Rehearing, and 3-request came from DSC lawyers that Justice Kaye Hearn be recused retroactively from the case and her opinion of August 2 be vacated. This is a lot to absorb. Let's look at each.

1. MEDIATION. We learned in the DSC's motion of September 1 to the SCSC that Judge Richard Gergel, upon agreement of the two sides, has ordered a mediation process under another U.S. District Judge. I have searched the websites of both dioceses and have found not a word about this. So far, the Episcopal Church in South Carolina has posted nothing about yesterday's events. The Diocese of South Carolina has posted a great deal about yesterday but nothing, that I have found, about mediation. Obviously both sides are keeping this quiet. The only way we know about it is from the DSC lawyers' court paper of yesterday. The lawyers used the mediation news as a reason for a time extension. 

I am not a lawyer or legal expert, but it stands to reason that mediation means the two sides will engage in give and take in private trying to reach a mutually agreeable settlement. According to yesterday's court paper, this will cover all issues both state and federal. This kind of talking is best done out of the public eye.

In thinking of examples in history of negotiations in private and in public, the best examples that come to mind are these. An excellent case of private was the constitutional convention of 1787. The states' representatives went into the hall in Philadelphia and closed the windows in spite of the stifling heat (this was long before air conditioning or even electric fans), to hammer out what must be the greatest political document in the history of the world. Without a leak (unimaginable today), they hashed out what came to be a masterpiece, flawed to be sure, but still a monumental work of compromise. It has lasted very well.

On the other hand, arguably the worst case of negotiation was the Versailles peace conference of 1919. Out in public, in the glare of the world's attention, the victorious powers of the World War cobbled together what must be the worst peace treaty in history. The French on one side demanded virtual destruction of Germany while the Americans wanted a gentle peace. President Wilson gave in to all sorts of vindictive demands in order to get everyone to agree on his imaginary panacea, the League of Nations. Twenty years later, through no small fault of the Versailles Treaty, the Second World War began. It made the First one look like a warm-up. The peace treaty of 1919 has gone down in history as the worst imaginable.

The moral of the story is:  negotiations are best done in private. And, that is what I think we should respect here. As mediation begins between the Episcopal Church side and the Diocese of South Carolina side, I think we should leave it alone and await the outcome. Outside speculation along the way is likely to do more harm than good. I suggest we all set this issue aside and await the mediation's result.

(The court document describing the mediation is in "Second Motion for Enlargement of Time to File Petition for Rehearing," Appellate Case No. 2015-000622. September 1, 2017. The document can be found here .)

2-DENIAL OF TIME EXTENSION. On yesterday, the DSC lawyers asked the SCSC for a time extension to September 18 before submitting their petition for rehearing. The SCSC immediately denied the extension. I have seen no reason for the denial. We do know that the lawyers had already been granted a 15 day extension, to Sept. 1.

Upon denial, the DSC lawyers then rushed to turn in, before the end of the day, three petitions for rehearing to the Court. One dealt with only one parish (Good Shepherd, of Charleston). Another was a petition for rehearing apparently restating their earlier arguments to the court. The third paper was a request that Justice Kaye Hearn be recused from the case and her opinion be vacated, or voided.

I do not know, but I am guessing the Church lawyers will be given the same time period the DSC lawyers had, 30 days, in which to file a response. They will ask the justices to deny a rehearing. This would leave the Church side with the August 2 decision that returned 29 parish properties to the Church.

3-REQUEST FOR RECUSAL OF JUSTICE HEARN AND VACANCY OF HER OPINION. Yesterday, the DSC lawyers submitted a voluminous paper holding that Justice Kaye Hearn should be recused, or removed, from the case, and that her part in the August 2 opinion be vacated, or set aside. Apparently, the basis of the request was that she was a member of a congregation in the Church diocese and of the Episcopal Forum, and therefore could not a fair and impartial judge in the matter at hand. If the DSC lawyers get this and Hearn's opinion is set aside, the SCSC's August 2 decision would fall to a 2-2 tie. That would leave Judge Goodstein's Feb. 3, 2015 Order in place as the final decision. One will recall that this decision gave everything to the independent diocese. Thus, by removing Hearn from the case in the state supreme court, DSC would wind up with total victory in the state courts.

From this layman's viewpoint, this is a weak tactic that is not likely to work. The biggest problem with it is that the DSC lawyers, who knew all about Hearn all along, apparently did not mention recusal before this point. I have seen no evidence that anyone in authority ever asked Hearn to recuse herself before the hearing of September 23, 2015. The justices on the court and the DSC lawyers did not ask Hearn to step aside before the hearing. In light of this, how can they ask her to recuse herself retroactively? It does not make sense to me.

The whole thing has an air of desperation. It appears to me to be throw in everything but the kitchen sink and hope something works strategy. In my view, it is not a sensible move and is not likely to impress the state supreme court justices.

In my opinion, the idea that Hearn could not be impartial because she was an Episcopalian and member of the Forum is not convincing. That is like saying Robert Mueller is a Republican (he is)---President Trump is a Republican---Mueller cannot be an impartial investigator in Trump's background. No one would believe that. Besides, the strongest defense of the Episcopal Church position in the SCSC did not come from Hearn. It came from Justice Pleicones. Moreover, the deciding vote did not come from Hearn. It came from Chief Justice Beatty. So, any assertion that she made all the difference in the outcome of the decision is not supported by the known facts.

Where does all this leave us now? It appears to me that the legal struggle between TEC and the breakaway diocese has moved onto two tracks, private mediation and public litigation in state and federal courts. I imagine the SCSC will reject DSC's petitions for rehearing and leave their August 2 decision standing. I suppose the federal court will continue moving along with an eye toward a trial in March of 2018. However, talks will soon begin between the two sides under the guidance of a federal judge. We can have no way of knowing what is going on there, and we should not know. Sometimes it is best we do not know the future; and that is the case here. So, let us wait and see what comes of the mediation.

 TWO  SIDES AGREE

TO MEDIATION

September 1, 2017. 5 p.m. EDT.     Word arrived today that the two sides in the Church case and United States District Judge Richard Gergel have agreed to set up a mediation process. This means the Episcopal Church and the Episcopal Church in South Carolina on one side and the Diocese of South Carolina on the other will discuss possible resolutions of the legal issues at stake. 

In today's motion for extension of time to file a Petition for Rehearing in the SC Supreme Court, the lawyers for the independent Diocese of South Carolina wrote this:

Judge Richard Gergel has, with the parties' consent, ordered that this matter be mediated by Judge Joseph Anderson, and the parties have agreed to mediate all issues, both federal and state.

The lawyers attached the order from Judge Gergel:

TEXT ORDER: With the consent of the parties, the Court hereby appoints Senior United States District Judge Joseph F. Anderson, Jr. as the mediator in this matter. Judge Anderson will communicate with the counsel to initiate the mediation process. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M. Gergel on 8/30/17.

This is all we know at the moment: on August 30, Judge Gergel ordered a mediation to which the two sides had already agreed, Judge Anderson will mediate, and apparently all issues state and federal are on the table for settlement. 

I will keep you posted as I get more information about the mediation process. 


The mediation order is in the document entitled  "Second Motion for Enlargement of Time to File Petition for Rehearing" Sept. 1, 2017. 11 p. Find the Second Motion here .