Monday, April 22, 2019

22 APRIL 2019 --- NOTES

Now that Lent, Holy Week, and Easter Sunday have passed, we can refocus our attention on the status of the schism. Where do we stand now in the legal war?

At this point, the litigation is a waiting game. There are two separate avenues of the legal combat between the independent Diocese of South Carolina and the Episcopal Church and its diocese, the Episcopal Church in South Carolina: state court and federal court. In essence, the state court is about the ownership of the local parishes while the federal court is about the ownership of the pre-schism diocese.

STATE COURT. Summary:  DSC sued TEC January 4, 2013 claiming the ownership of the old diocese. The circuit court agreed with DSC in an order, Feb. 5, 2015. On August 2, 2017, the South Carolina Supreme Court overturned most of the circuit court decision. The SCSC said 29 of the 36 parishes in question were property of TEC and Camp St. Christopher belonged to TECSC. SCSC denied rehearing; U.S. Supreme Court refused to take up the case leaving the SCSC Aug. 2 decision as final. DSC refused to accept the decision. 

SCSC remitted its Aug. 2 decision to the circuit court for enactment. DSC charged that the decision was vague, conflicted, and unenforceable. It filed three actions in the circuit court, one asking the circuit court to reexamine the issue of the property. TEC/TECSC asked the judge, Edgar Dickson, to implement the decision. Dickson had the case for 15 months and did nothing to enact the SCSC decision whereupon TEC/TECSC asked the SCSC to issue a Writ of Mandamus ordering the circuit judge to carry out the Aug. 2 decision. 

This is where we stand now: we are awaiting the SCSC ruling on whether it will grant or deny a Writ of Mandamus to TEC/TECSC. It took the SCSC 22 months to issue its decision in the church case. Will it take that long again? Doubtful. I have found two instances in which parties petitioned the SCSC for Writ of Mandamus in the past few years. In one, the SCSC released its decision in 3 and a half months. In the other, the SCSC took 6 months. So, my guess is we will have a response from the SCSC between June and September. How will SCSC rule? It is very hard to imagine that SCSC will not stand behind its remittiture of the Aug. 2 decision. The big question mark is whether the SCSC justices will consider 15 months to be sufficient or insufficient time for the circuit court to act. If they think sufficient, they will rule for TEC. If they think insufficient they will side with DSC.

FEDERAL COURT. Summary: In March of 2013, the TECSC provisional bishop sued Bishop Mark Lawrence of DSC charging him with infringement of copyright under the Lanham Act. In essence, TEC/TECSC is claiming the right to inherit the pre-schism diocese which is currently under the control of DSC. The issue here is, Who owns the diocese (titles, rights, assets) as it existed before the schism of Oct. 15, 2012? Both claim to be the legitimate Episcopal diocese.

This suit languished in the U.S. District Court, in Charleston, for several years under Judge Weston Houck although twice the U.S. Court of Appeals, in Richmond, ordered the lower court to act. After Houck's death, the case wound up with Judge Richard Gergel,

Where does this case stand now? Both sides have asked Gergel to render a decision. It is possible he will do so, that is, on his own without further court proceedings. However, he can hold a trial; and he has scheduled a formal trial after May 1, 2019. There has been no word from Gergel in several months. Thus, apparently one of two things will happen in the federal case, either Gergel will rule on his own, or he will hold a trial then render a decision. There is no way to know which of these is more likely. 

What will Gergel decide? Signs so far are favorable to the Church side. Besides, it is just common sense that a diocese cannot leave the Episcopal Church and still claim to be the Episcopal diocese. Either it is the Episcopal diocese or it is not. When the breakaway diocese self-proclaimed its independence from the Episcopal Church, it ceased to be the Episcopal diocese regardless of what it claimed or called itself. I fully expect Gergel to come down on the side of the Episcopal Church in this case. It is just common sense.

Thus, in conclusion, we are in a waiting phase of the legal war. We are waiting on the SC Supreme Court either to tell judge Dickson to act, or to leave him alone. His job is to implement a final decision of the state supreme court. He can delay but he cannot deny. I suspect that even if the SCSC denies the Writ, the justices will remind Dickson of his responsibility to act expeditiously. Dickson has to implement the decision that, contrary to DSC's claim, is clear, direct, and enforceable. 

We are also waiting on the federal judge, Gergel, to issue a decision directly or to hold a trial and then issue a decision. At this moment there is no way to know which of these he will do. However, odds are he will eventually rule in favor of the Episcopal Church.

So, here we are, waiting on the state and federal courts to act. It has been six years and three months since this unfortunate legal war began. The cost has already been between 5 and 10 million dollars. Most of the time has been spent waiting. I wish it were different, but it is what it is, and there is nothing we can do about it. TEC/TECSC several times offered DSC compromise settlement and mediation only to be rebuffed. After such long and bitter quarreling between brothers and sisters, it is understandable that everyone is exhausted and a bit disheartened. This ugliness should not be happening. This schism was unnecessary. It may be hard to believe now, but this tragedy will come to an end one day and when it does everyone should be able to say he and she behaved as the best Christian he or she could. In the end, there will be a time of closure, reconciliation and healing. It will happen.