REPOST ON 23 AUGUST:



29 JULY 2019 --- NOTES

This afternoon, the Episcopal Church in South Carolina posted on its website two items of interest in the ongoing litigation. Find the press release here . The first is that the two parties have agreed on a mediator, attorney Thomas J. Wills IV, of Charleston. He has been a certified mediator since 1993. The first session of mediation will be on 4 September 2019, in Charleston.

The second bit of news is that TECSC lawyers will meet with representatives of the Church Insurance Company of Vermont on 5-6 September 2019, in New York.

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Now, turning to another matter. Some people have asked why the Episcopal Church does not evict the illegal occupants of the 29 parishes and repossess the properties that way. After all, the state supreme court recognized the 29 as property of the Episcopal Church.

My usual disclaimer---I am not a lawyer or legal expert and what I offer here is only opinion.

While I am not an attorney, I can read and understand the English language and the South Carolina Code of Laws is freely available for everyone to read on the Internet. So, I looked up the sections on trustees and on eviction. This is what I found:

On trustees, see Section 62-7-706 "Removal of trustee" here .

Under the Dennis Canon, a parish or mission may own its own property but it does so in a trust as long as the local church remains in the Episcopal Church. The beneficiaries of the trust are the Episcopal Church and the Church diocese. If the local congregation leaves TEC, it breaks the trust and the beneficiaries become the property owners. 

In its Aug. 2, 2017 decision, the South Carolina Supreme Court ruled that 29 parishes acceded to the Dennis Canon. When they left TEC, the Church became the property owner per the trust provision in the Canon. In other words, the local congregation forfeited its role as trustee.

The SC Code, 62-7-706 provides for removal of trustee. Section (a) says that a beneficiary may request the court to remove a trustee. Part (b) says the court may remove a trustee if (a) the trustee has committed a serious breach of trust. Reading this, it seems to me, as an ordinary layman, that TEC/TECSC, being the beneficiaries, could petition a court for an order removing trustee status of the local congregation that broke the terms of the Dennis Canon. The catch is that TEC would have to go through a court and get an order, I suppose for each of the 29.

As for eviction, it seems to me the relevant part of the SC Code is Section 27-37-10 to 27-37-160. Find it here . This reads as applicable to a landlord-tenant relationship, so I am not sure it would be appropriate for the church case. In this, the landlord has to go to a magistrate and get a "written rule" ordering the tenant to evacuate the property or be ejected in 10 days. The tenant, however, may demand a jury trial. If the finding is against the tenant, the sheriff's deputy will visit the property and serve the tenant an order to vacate withing 24 hours. If the tenant refuses, the deputy may enter the premises by force and eject the tenant.

Can you imagine 29 separate trials? Can you imagine the sheriff's deputy physically removing the rectors of St. Philip's and St. Michael's, and 27 others? Just think of the optics of this on the local TV news.

In my opinion, neither removal of trustee nor ejection of the tenant is a desirable solution, for TEC, of the problem at hand in this circumstance. I expect such heavy-handiness would do TEC more harm than good, at least among the local communicants who might want to return to TEC. It would certainly play into the victimization theme that DSC established before the schism (that it was the innocent local victim of malevolent forces from off). 

I imagine the best approach for TEC at this point is to try mediation (they have to anyway). If that fails, as I expect it will, the matter will go back to Judge Dickson. Presumably he will issue rulings at some point. The losing side is certain to appeal this or these to the South Carolina Court of Appeals. That court will uphold the state supreme court decision of Aug. 2, 2017, no doubt about it. It is unthinkable that the second highest court in SC would discard a final decision of the highest court in SC. So, the sooner TEC and TECSC get a final order from the Court of Appeals, the better. As I see it, this approach is preferable to forcibly evicting the officers now illegally occupying the 29 parishes.