Monday, September 18, 2017



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.