WHATEVER NEXT?
As a bad amusement park ride, the wild twists and turns of the litigation since the schism have left us all with whip lash, six years worth. Today, we are all wondering, with some trepidation, whatever next?
I had planned to expand my history of the schism to include the whole course of the litigation, once everything was resolved. I was going to condense the part (300,000 words) I have already published and add on the rest of the litigation (post August 2, 2017) and publish it as a revised and expanded edition of my history of the schism. However, I have collected such a huge mass of material since the book that I may have to just go to Volume II. What is more, I am meticulously documenting each item because when I turn in my new manuscript, my editor may accuse me of making it all up and refuse publication. He may say it is just too fantastic for people to believe. Sometimes I wonder about that myself. This is one of those times.
This mad-cap non-comedy of errors would be funny if it were not so sad and tragic. It is anything but humorous.
Our present concern is focused on the state courts. Circuit court judge Edgar Dickson suddenly announced on March 19 that he would hold a hearing on Wednesday, March 27. The hearing was to entertain arguments on the breakaway diocese's (DSC) suit for "Betterments." He did this in spite of the fact he had told the hearing of November 19, 2018 (I was there) that he was considering only one motion, DSC's petition for clarification of jurisdiction. The annoucement on the 19th of March meant one week's notice for the lawyers to prepare whatever written and oral arguments they could on Betterments, something they had been told was off the table for the time being. On the next day, March 20, the Church lawyers announced they were filing with the South Carolina Supreme Court, a petition for a Writ of Mandamus (I doubt there was any connection between the Mar. 19 notice of a hearing on the 27th and the petition on the 20th since the petition would have been prepared well beforehand). The petition asked the SCSC to order Judge Dickson to implement the SCSC decision of August 2, 2017. Then, suddenly on Tuesday, March 26, Dickson declared he had cancelled the hearing of the 27th on Betterments. Can you keep this straight? My head is spinning too.
So, what next? According to the SC Judicial Code, the DSC lawyers have twenty days to file a response with the SCSC. Find Rule 245 here . I figure twenty days means the DSC lawyers have to file by the 9th of April.
How will the SCSC handle this petition and reply? Rule 240 gives us the details. Find it here . It says, "Unless otherwise ordered by the court, motions or petitions shall be decided without oral argument" (240, h). This means the SCSC will probably rule on TEC/TECSC's petition without holding a hearing on it.
Can one judge grant or deny the petition? Yes. "Except where these rules require the concurrence of two or more members of an appellate court, an individual judge or justice may grant or deny any motion or petition on behalf of the court. Any review of an order issued by an individual judge or justice shall be by petition for rehearing" (240, j). I interpret this to mean that one SCSC justice could issue a grant or a denial but this could be challenged in a petition to the court for a rehearing. It is hard to imagine that one justice would go off on a limb and take action without support of the other justices. My guess is that the justices will consider both TEC/TECSC's petition for action and DSC's response, then make a majority opinion on a response.
Can one judge grant or deny the petition? Yes. "Except where these rules require the concurrence of two or more members of an appellate court, an individual judge or justice may grant or deny any motion or petition on behalf of the court. Any review of an order issued by an individual judge or justice shall be by petition for rehearing" (240, j). I interpret this to mean that one SCSC justice could issue a grant or a denial but this could be challenged in a petition to the court for a rehearing. It is hard to imagine that one justice would go off on a limb and take action without support of the other justices. My guess is that the justices will consider both TEC/TECSC's petition for action and DSC's response, then make a majority opinion on a response.
What are the chances SCSC will grant TEC/TECSC's petition and order Dickson to implement its Aug 2, 2017 decision? The only appropriate SCSC decision I could locate was The City of Rock Hill v. Michael Dean Thompson. Find it here . This was a decision of the SCSC on February 11, 2002. In this case, the City of Rock Hill had petitioned the SCSC for a Writ of Mandamus ordering a municipal judge to apply a certain law. As I read this as it may apply now to Dickson, TEC/TECSC has to establish that Dickson has a "ministerial duty" to implement the SCSC Aug. 2 decision. In the Rock Hill case, the SCSC said the judge had discretion on how he could apply the law in question and therefore the SCSC could not order him to act in any certain way. Thus, the SCSC denied the City's petition for a Writ of Mandamus.
The question, then, becomes does Dickson have "ministerial duty" and "discretion" in how he can respond to the SCSC decision of August 2, 2017? In my view, he does have ministerial duty and does not have discretion on how he does that. The SCSC clearly listed three majority decisions on the last page of its Aug. 2 decision. On November 17, 2017, the SCSC sent this letter to the circuit court in Dorchester County: "The above referenced matter is hereby remitted to the lower court or tribunal. A copy of the judgment of this Court is enclosed." The operative word was "remitted." This meant it was sent back to the lower court that had tried the case in order the for that court to carry out the decisions of the SCSC. (A "remand" to the lower court would have meant the lower court could reconsider the case.) "Remitted" meant that Dickson had no discretion as to the SCSC decision. I would conclude that the Rock Hill case does not apply to the Church case and that the SCSC must see the judge as bound to act without discretion. This is his "ministerial duty."
So, what happens now? First, we have to wait for the DSC lawyers to present their counter-claim to the SCSC. After that, I rather doubt that the SCSC justices will take very long to act on this matter. I doubt too there will be a hearing on this. I expect the justices to issue a written decision without listening to oral arguments. It is reasonable to conclude that the SCSC will order Dickson to implement its Aug. 2 decision.
As I see it, Dickson has two viable options now. In one, he could proceed and order an implementation of the Aug. 2 decision. He could do this at any time, and on his own. He does not have to hold another hearing. Doing this would save him from the humiliation of a Writ from the high court being served on him, something that is rare. In other words, he could act and render TEC/TECSC's petition moot. In another option, he could wait and see if the SCSC will grant or deny TEC/TECSC's petition for a Writ. This would be a risky gamble. It is possible that the SCSC will deny the petition although, in my view, this is unlikely. If the SCSC does grant the petition and issues a Writ, it will order Dickson to implement this decision. In a way, this would work to his benefit since it would free him from trying to pick apart the thorny issues involved in this case as he seems to be trying to do at the moment. This would take a lot of responsibility off his shoulders. If the SCSC denies the petition, he will be left where he is now.
Given the way Dickson has handled this case so far, I rather doubt he will proceed with the first option. I suspect we will have to wait for the SCSC to respond. If they grant, he will be ordered to implement. If they deny, he will go on grappling with the six motions/petitions before him and we can expect the wild ride to continue.
As they say, "Ya can't make this stuff up."
