THE DSC LAWYERS' RESPONSE
TO TEC/TECSC'S PETITION
FOR WRIT OF MANDAMUS
On April 11, 2019, the lawyers of the independent Diocese of South Carolina filed with the South Carolina Supreme Court their response to the Petition for Writ of Mandamus that the Episcopal Church and Episcopal Church in South Carolina's lawyers filed with the SCSC on March 20, 2019. The TEC petition essentially asked the justices to order Judge Edgar Dickson to implement the SCSC decision of August 2, 2017.
To help us understand what is happening here and what might reasonably occur in the near future, I am going to provide a timeline of the matter, a summary of DSC's response of 11 April, an analysis of its main points, and projections on what is likely to ensue in the near future. Again, my standard disclaimer: I am not a lawyer, not an official of any diocese, and here giving only my opinions.
TIMELINE
2015, 23 September --- the SCSC held a hearing on the appeal of the Feb. 3, 2015 order of the First Circuit Court. That order found all in favor of DSC.
2017, 2 August --- the SCSC issued its decision. It made three rulings by majority vote. Here is the last page (p. 77) of the decision giving the three rulings (click on image for enlargement):
The decisions: 1-the 8 parishes that did not accede to the Dennis Canon hold title to their properties, 2-the 28 parishes that acceded to the Dennis Canon are properties of the Episcopal Church, and 3-Camp St. Christopher is property of the Episcopal Church diocese.
2017, September 1 --- DSC filed with SCSC for 1-rehearing, and 2-recusal of Justice Kaye Hearn from the case.
2017, November 17 --- SCSC 1-denied DSC's petition for rehearing, 2-denied Hearn's recusal, and 3-issued a remittitur to the First Circuit Court. Here is the Order denying Hearn's recusal:
(I am placing this here because quotes from it formed a major part of DSC's April 11 argument. I will return to this momentarily.)
DSC'S MOTIONS/PETITIONS IN CIRCUIT COURT 2017-18:
Nov. 19, 2017 --- Betterments suit.
Dec. 27, 2017 --- Complex case designation.
Mar. 23, 2018 --- For clarification of jurisdiction.
TEC/TECSC's MOTIONS/PETITIONS IN CIRCUIT COURT 2017-18:
Dec. 15, 2017 --- To dismiss Betterments suit.
May 8, 2018 --- For execution of SCSC decision and appointment of a special master.
July 11, 2018 --- for an accounting.
2018, January 10 --- Chief administrative judge of the First Circuit, Diane Goodstein, appointed Judge Edgar Dickson to administer the case.
2018, February 9 --- DSC filed petition for cert with the U.S. Supreme Court.
2018, June 11 --- SCOTUS denied cert.
2018, July 26 --- Dickson held status conference and asked for lists of requests from both sets of lawyers.
2018, August 2 --- Lawyers submit their lists to Dickson.
2018, Sept. 4 --- Dickson announced a timeline for arguments.
2018, Sept. 24 --- DSC filed 3 sets of arguments with Dickson. TEC/TECSC filed 3 sets of arguments with Dickson.
2018, Oct. 5 --- DSC filed 3 responses with Dickson. TEC/TECSC filed 2 responses to Dickson.
2018, Oct. 12 --- DSC filed 1 reply to the responses. TEC/TECSC filed 1 reply to the responses.
2018, Nov. 19 --- Dickson held a hearing and announced he was considering only one of the six petitions before him, DSC's request for clarification of jurisdiction.
2019, January 14 --- Dickson sent an email asking the lawyers for documents on the parishes' accession to the Dennis Canon.
2019, March 19 --- Dickson set a hearing on DSC's Betterments suit, on 27 March.
2019, March 20 --- TEC/TECSC filed petition for writ of mandamus with the SCSC.
2019, March 26 --- Dickson cancelled Mar. 27 hearing on Betterments.
2019, April 11 --- DSC filed "Intervenors' Return to Petition for Writ of Mandamus," with SCSC, as response to TEC/TECSC's petition for writ, of 20 March.
DSC'S MOTIONS/PETITIONS IN CIRCUIT COURT 2017-18:
Nov. 19, 2017 --- Betterments suit.
Dec. 27, 2017 --- Complex case designation.
Mar. 23, 2018 --- For clarification of jurisdiction.
TEC/TECSC's MOTIONS/PETITIONS IN CIRCUIT COURT 2017-18:
Dec. 15, 2017 --- To dismiss Betterments suit.
May 8, 2018 --- For execution of SCSC decision and appointment of a special master.
July 11, 2018 --- for an accounting.
2018, January 10 --- Chief administrative judge of the First Circuit, Diane Goodstein, appointed Judge Edgar Dickson to administer the case.
2018, February 9 --- DSC filed petition for cert with the U.S. Supreme Court.
2018, June 11 --- SCOTUS denied cert.
2018, July 26 --- Dickson held status conference and asked for lists of requests from both sets of lawyers.
2018, August 2 --- Lawyers submit their lists to Dickson.
2018, Sept. 4 --- Dickson announced a timeline for arguments.
2018, Sept. 24 --- DSC filed 3 sets of arguments with Dickson. TEC/TECSC filed 3 sets of arguments with Dickson.
2018, Oct. 5 --- DSC filed 3 responses with Dickson. TEC/TECSC filed 2 responses to Dickson.
2018, Oct. 12 --- DSC filed 1 reply to the responses. TEC/TECSC filed 1 reply to the responses.
2018, Nov. 19 --- Dickson held a hearing and announced he was considering only one of the six petitions before him, DSC's request for clarification of jurisdiction.
2019, January 14 --- Dickson sent an email asking the lawyers for documents on the parishes' accession to the Dennis Canon.
2019, March 19 --- Dickson set a hearing on DSC's Betterments suit, on 27 March.
2019, March 20 --- TEC/TECSC filed petition for writ of mandamus with the SCSC.
2019, March 26 --- Dickson cancelled Mar. 27 hearing on Betterments.
2019, April 11 --- DSC filed "Intervenors' Return to Petition for Writ of Mandamus," with SCSC, as response to TEC/TECSC's petition for writ, of 20 March.
SUMMARY OF DSC'S RESPONSE
The full text of DSC's response is found here .
These are the main points in DSC's response:
1) There is no coherent guidance, but instead great uncertainty in this case.
(p.3-4), Acting Justice Toal concluded that the "Courts' [sic] collective opinions in this matter give rise to great uncertainty in that we have given little to no coherent guidance in this case. Given our lack of agreement, I have no doubt that the court will see more litigation involving these issues..."
(p. 10), As Acting Justice Toal and Justice Kittredge noted the "Courts' [sic] collective opinions in this matter give rise to great uncertainty in that we have given little to no guidance in this case..."
(p. 17), 5 separate opinions..."give rise to great uncertainty" (Toal, A.J.)"
2) The circuit court must discern the meaning of the SCSC decision of Aug. 2, 2017, and has discretion to do so.
(p. 9), V. The motions before the Circuit Court require the exercise of judicial discretion."
(p. 11), The motions before the Circuit Court arising out of the 5 separate opinions of this Court do not involve "the execution of a specific duty arising from fixed and designated facts...defined by law with such precision as to leave nothing to the exercise of discretion."
3) Writ of Mandamus is improper before a judge has ruled.
(p. 6), Mandamus is not available when the inferior court has not refused to rule on the issue raised by the Petition."
4) a "remittitur" order does not prevent a lower court from considering the issues.
(p. 8), Even where a case is not "remanded," the return of the remittitur to the circuit court re-vests the circuit court with jurisdiction to hear motions seeking further consistent relief."
(reversing circuit court order that dismissed case for lack of subject matter jurisdiction because the matter was remitted rather than remanded, holding that it was a distinction is without a difference).
5) asserts that the parishes and the diocese own their properties.
(p. 12), Third, it is uncontested that no parish expressly agreed to the Dennis Canon.
(p. 14), The Diocese withdrew from TEC with all its property since it followed the same procedures as did the All Saints parish with the same result and since it was admitted the Dennis Canon did not apply to the property of the Diocese.
In sum, DSC argues two major points: 1-the circuit court has discretion, and 2-Writ of Mandamus is improper in this instance because the circuit court has not refused to implement the SCSC decision of Aug. 2, 2017.
2) Discretion is a major issue here. DSC claims the circuit court has discretion while TEC/TECSC says it does not, but has a "ministerial" duty to apply the law. So, the question is, does Judge Dickson have discretion in how he interprets the SCSC decision of Aug. 2?
THOUGHTS ON THE FIVE SUMMARY POINTS
The most glaring part of DSC's response is what is not there. There is no mention of the three orders given by the SCSC on the last page of their August 2, 2017 decision. This is, after all, the whole point of the matter at hand. TEC/TECSC is asking the high court to order the circuit judge to implement the three orders in the SCSC decision. DSC completely ignored the elephant in the room. To my thinking, DSC gave tacit recognition of the three decisions since it did not address them, let alone try to refute them.
1) On the first point, that there is confusion and no coherent guidance. Read the three orders on page 77 again. Someone please tell me what is "confusing" or "incoherent" about any part of these three decisions. They are as clear as they can be. I am lost as to why Judge Dickson, or anyone else for that matter could see these three majority decisions as unclear. They are, in fact, perfectly clear.
Nowhere in the SCSC decision is there a suggestion that the decision is unclear, conflicted, or to be discerned. In fact, the last page gives three direct and clear majority opinions to be enacted.
Then, what about the quote from Toal? Three times the DSC lawyers quoted her implying, at least in my reading, that she saw the SCSC decision as uncertain and lacking guidance. In fact, she did not say that about the Aug. 2 decision. These quotes are seriously made out of context and the TEC/TECSC lawyers should point out this to the SCSC justices.
The quote the DSC lawyers used is actually from the November 17, 2017 Order in which the SCSC denied the recusal of Justice Hearn, and Toal's words are in reference to that. Scroll up on this post and re-read page 3 of the Order. Toal's last paragraph is about the issue of Hearn's recusal, specifically about appointing a justice to replace her. It is not about the Aug. 2 SCSC decision itself. Any suggestion that Toal was referring to the Aug. 2 decision is misleading. When Toal wrote about uncertainty and no coherent guidance, she was talking about the issue at hand, recusal. In the Aug. 2 decision, she did not say anywhere that it was uncertain, unclear, conflicted, or unenforceable, all assertions that DSC made after the fact. Quite the contrary, it was Toal herself who listed the three decisions on the last page. It was Toal who named the 8 parishes outside TEC control, on p. 52, thereby revealing the 28 parishes under TEC control. Therefore, any assertion that Toal saw the SCSC decision as anything but clear and enforceable is unfounded.
The DSC lawyers also made two errors. "Courts'" is actually "court's" in the text quoted. Courts' would mean plural courts while court's would mean one court, in this instance the SCSC.
They also attributed Justice Kittredge to the quote on p. 10 that came only from Toal.
2) Discretion is a major issue here. DSC claims the circuit court has discretion while TEC/TECSC says it does not, but has a "ministerial" duty to apply the law. So, the question is, does Judge Dickson have discretion in how he interprets the SCSC decision of Aug. 2?
The most appropriate case history here is the 2002 City of Rock Hill v. Thompson. In this, the SCSC denied a writ of mandamus requested by the City of Rock Hill holding that the judge in question had discretion on how she applied the law, and had not made a ruling. Find a discussion of this case here .
The SCSC decision of Aug. 2 gave three clear orders. The court remitted their decision to the circuit court without comment. They did not say the lower judge had discretion or that the three decisions needed any interpretation. Since SCSC denied rehearing and SCOTUS denied cert, the SCSC decision of Aug. 2, 2017 became the law of the land. It cannot be altered. It is not open to change. Therefore, a lower judge does not have discretion in how he interprets the decision. It is his sole ministerial job to apply the decisions to the situation at hand. It is not his right to change the decision or to re-try the issues in it. In conclusion, at least in my view, Dickson has no discretion on interpreting what the SCSC decision says.
However, Dickson does have discretion as to when he implements the decision. And, here is the biggest advantage the DSC lawyers have in this argument. Dickson is considering the case. He has not ruled on it. Then, the question becomes when does delay become denial? Dickson has delayed an implementation of the SCSC decision for 15 months. He has issued no decision at all in this time. The question the SCSC justices will now have to answer is whether 15 months is reasonable or excessive. If reasonable, they will deny writ and allow Dickson to continue on in the expectation that he will eventually issue an order. If excessive, that would amount to delay equal to denial of implementation. If the justices see it as excessive, they grant writ and order Dickson to act on implementation. This consideration, I suspect, may actually work to DSC's advantage in the high court which, after all, took 22 months to issue the Aug. 2 decision. On the other hand, TEC/TECSC has an advantage in that Dickson has only to implement a decision, not to resolve very difficult issues. Is 15 months enough time for Dickson to do his job? I think it is reasonable to say so.
3) On the matter of whether mandamus is proper before a judge has ruled, the SCSC justices did say in the Rock Hill case that the judge had not ruled. However, this was not, and is not now, the heart of the issue. The heart is whether a judge has discretion to apply a law differently. This was what cinched it for the justices in the Rock Hill case. Does Dickson have discretion in how to interpret the three orders of the SCSC in its Aug. 2 decision? The three majority opinions are clear. Where would any discretion be for a lower judge? I do not see any. It is his job to implement the decision, not interpret it.
4) Does a "remit" order preclude a lower court from re-trying the issues of the case? I am not a lawyer or legal expert, but it is my understanding that a "remit" is a direct order to implement a decision of the high court. If the SCSC justices had wanted the circuit court to resolve any issues, they would have issued a "remand" order. They did not. They issued a "remittitur" without comment.
5) I found it a bit surprising that the DSC lawyers would make assertions about central issues that have been resolved in the SCSC decision. In fact, four of the five justices of SCSC agreed that 28 (actually 29) of the 36 parishes in question had acceded to the Dennis Canon. The DSC lawyers said the parishes had not "expressly" acceded to the Dennis Canon. Accession is accession whether it was "expressly" or not. The justices said the 28 had acceded. If I am reading this right, I was a bit surprised that the DSC lawyers would question the justices' findings after the fact.
As for the diocese, a majority of the justices found that the Church diocese was the legitimate heir of the pre-schism diocese. This would mean that the secessionist diocese did not leave TEC intact. Four of the five justices found that the 2009 "All Saints" decision did not apply to the case at hand. Only the author of the decision, Toal, said it applied. The majority of the justices did not say that DSC withdrew from TEC with all of its property. So, again, if I am reading this correctly, I found it a bit surprising that the DSC lawyers would question the justices' findings after the decision.
In sum, as I see it, DSC has no case on discretion. Dickson has no discretion on interpreting the SCSC decision. It is his ministerial duty to implement the decision. However, I do see an opening for DSC on the question of timing. Dickson has not refused an implementation in the sense that he has issued a ruling denying implementation. His refusal is in the form of inaction. The SCSC justices may well decide that Dickson needs more time or that they need to wait until Dickson issues a ruling before considering a writ of mandamus.
WHAT NEXT?
My best guess is that TEC/TECCS will submit to SCSC a reply to DSC's response. If so, I expect they will address the issues raised above.
I do not know, but I wonder whether Judge Dickson will make a statement to the SCSC regarding a possible writ. I suppose he could explain to the justices why he has issued no ruling on the Aug. 2 decision in 15 months. On this, we will just have to wait and see.
WHAT IS LIKELY TO HAPPEN CONCERNING A WRIT OF MANDAMUS?
Here is what I see as plausible outcomes of this contretemps:
1-Dickson could order an implementation of the SCSC Aug. 2 decision. This would render moot a writ. In this, he would save face by precluding any risk of an embarrassing, even humiliating, personal criticism from the state high court.
2-SCSC could deny TEC/TECSC's petition for a writ of mandamus. How they do this would make all the difference. If they do it without comment, they allow Dickson to continue on as he wishes.
If they deny with comment, everything would depend on the comment. I suppose they could urge Dickson to implement the SCSC decision expeditiously, or even set a time frame, say 6 months. This denial would actually amount to a grant because it would put irresistible pressure on Dickson to act. I do not see how he would have any choice after that but to enact the decision.
3-SCSC could grant the petition for a writ. Again, this would depend on how they do it. If they do so without comment, Dickson will still be free to go on as he is although he would be under pressure to implement the decision eventually.
Again, if the justices make a comment in the grant, everything would depend on the comment. If it is vague or general, Dickson is still free to take his time. If there is a strong order, or time deadline, Dickson would have no choice but to implement the decision within the constraints.
Finally, we must not lose sight of a tremendously important point. Under permanently established jurisprudence, a final decision of a supreme court is the law of the land. The same case cannot be re-litigated (the same issues but not the same case). The SCSC issued a clear-cut decision on Aug. 2, 2017. It is the law of the land. It is the duty of the lower court to carry out the law. I find it unimaginable that a state supreme court would not defend that bed-rock principle of the judicial system. I expect the South Carolina Supreme Court to see to it that its decisions are honored as they should be.
Bottom line---Just speaking for myself, I see a 60/40 chance the SCSC will grant a writ of mandamus. The big unknown is how they will word it. Even if SCSC denies a writ without comment, the best scenario for DSC, this whole episode will have put new pressure on Dickson to move along. So, a tactical loss for TEC on a writ could actually be a strategic victory on recovering the parish properties.
1-Dickson could order an implementation of the SCSC Aug. 2 decision. This would render moot a writ. In this, he would save face by precluding any risk of an embarrassing, even humiliating, personal criticism from the state high court.
2-SCSC could deny TEC/TECSC's petition for a writ of mandamus. How they do this would make all the difference. If they do it without comment, they allow Dickson to continue on as he wishes.
If they deny with comment, everything would depend on the comment. I suppose they could urge Dickson to implement the SCSC decision expeditiously, or even set a time frame, say 6 months. This denial would actually amount to a grant because it would put irresistible pressure on Dickson to act. I do not see how he would have any choice after that but to enact the decision.
3-SCSC could grant the petition for a writ. Again, this would depend on how they do it. If they do so without comment, Dickson will still be free to go on as he is although he would be under pressure to implement the decision eventually.
Again, if the justices make a comment in the grant, everything would depend on the comment. If it is vague or general, Dickson is still free to take his time. If there is a strong order, or time deadline, Dickson would have no choice but to implement the decision within the constraints.
Finally, we must not lose sight of a tremendously important point. Under permanently established jurisprudence, a final decision of a supreme court is the law of the land. The same case cannot be re-litigated (the same issues but not the same case). The SCSC issued a clear-cut decision on Aug. 2, 2017. It is the law of the land. It is the duty of the lower court to carry out the law. I find it unimaginable that a state supreme court would not defend that bed-rock principle of the judicial system. I expect the South Carolina Supreme Court to see to it that its decisions are honored as they should be.
Bottom line---Just speaking for myself, I see a 60/40 chance the SCSC will grant a writ of mandamus. The big unknown is how they will word it. Even if SCSC denies a writ without comment, the best scenario for DSC, this whole episode will have put new pressure on Dickson to move along. So, a tactical loss for TEC on a writ could actually be a strategic victory on recovering the parish properties.
