REFLECTIONS ON THE BETTERMENTS HEARING OF 23 JULY 2019

On July 23, Judge Edgar Dickson held a hearing on the Betterments lawsuit that the Diocese of South Carolina brought against the Episcopal Church and its diocese, the Episcopal Church in South Carolina, on November 19, 2017. The hearing was in the Calhoun County courthouse, St. Matthews SC. 

For an informative review of the hearing, see the TECSC press release here . For an interpretation of the meeting, see the commentary of scepiscopalians here . For the schismatic diocese's take on the hearing see their press release here .

I attended the hearing. Here are my impressions of what happened in the courtroom and what may happen next. My usual disclaimer---I am not a lawyer or legal expert, and what I say here is only opinion. My observations of the hearing and its meaning may vary from other first-hand accounts.

THE HEARING.

For the first hour and fifty minutes (10:50a.m.-12:40p.m.), the lawyers made their arguments to the judge who asked a few questions. The TEC/TECSC side presented their position seeking dismissal of DSC's Betterments suit. Thomas Tisdale, the TECSC chancellor, argued three reasons for dismissal: 1-DSC is suing the wrong party. The parish is the trustee of the property. A trustee cannot sue itself.  2-The property issue was settled by the SC supreme court in its Aug. 2, 2017 decision.  3-Timeliness. The suit was not filed withing 48 hours after the judgment as the law requires. Mary Kostel, attorney for TEC, added that under Betterments the occupants must have been under the mistaken belief they owned the property. These parishes knew that when the congregation left the Episcopal Church, the Dennis Canon meant the transfer of ownership of the local property to TEC. They knew they did not own the property. 

The DSC lawyers, Alan Runyan and Henrietta Golding argued that the 29 parishes in question never acceded to the Dennis Canon but if the court decided they did, DSC wanted reimbursements for the improvements made on the properties. They maintained the 29 owned their local properties, but in case the court decided otherwise they wanted payments. They arguments were rather short and unpersuasive because of the obvious contradiction. 

The only outcome of this period was an agreement among the two sides and the judge that the 7 or 8 parishes named in the SCSC decision as outside the Dennis Canon trust control would be legally recognized as owning their own properties.

An hour and fifty minutes into the hearing, Judge Dickson surprised everyone by suddenly bringing up the topic of mediation. He asked if there had been any mediation. Tisdale and Runyan responded that there had been mediation with Judge Joseph Anderson guiding but the effort had ended after a few meetings with no agreement. Dickson told the lawyers they would be "better served by mediation than continued appearances in court." He added, "Mediation is the only way you are going to resolve this thing." The judge asked the two sides to choose a mediator, and if they could not agree on one, he would name one. Dickson made it plain he wanted all of the issues before him to be included in the talks. There are six petitions at hand, three from DSC and three from TEC/TECSC. With this, Judge Dickson adjourned the hearing.

OBSERVATIONS.

Judge Dickson seems highly reluctant to deal with the six petitions before him. He has had this case before him for eighteen months. He has moved from one topic to another and has made no decision at all. By asking for mediation, he is hoping the two sides themselves will settle the issues at hand.

The original purpose of the case in the circuit court was to implement the South Carolina Supreme Court decision of August 2, 2017. The SCSC remitted the decision to the lower court for enforcement on Nov. 17, 2017. (The decision was finalized when the SCSC refused a rehearing and SCOTUS refused cert.) However, two days after the remittitur order, DSC filed their Betterments suit in the circuit court. TEC/TECSC filed for dismissal of the Betterments suit. DSC petitioned for clarification of jurisdiction essentially asking Dickson to disregard the SCSC decision and decide on the issues anew. Later, TEC/TECSC asked for enactment of the remittitur under a special master and a financial accounting of the returning parishes. Thus, there were two big issues before Dickson: implementation of the SCSC decision and Betterments.

Dickson did nothing for months before asking for arguments from both sides. Finally, a year after the remittitur, he held a hearing on DSC's petition for clarification of jurisdiction (i.e. disregard the SCSC decision). Nothing came of the hearing. 

TECSC lawyers grew tired of waiting on Dickson to enforce the SCSC decision and petitioned the SCSC for a writ of mandamus which would order the circuit court to apply the law. The SCSC rfefused to grant a writ. This essentially left Dickson to do as he pleased.

Then, out of the blue, Dickson announced a hearing on the Betterments suit, and voilà, the meeting on the 23rd. In the hearing, DSC asked him to accept the suit while TEC/TECSC asked him to dismiss the suit. He did neither. As I just said, he called for mediation instead. Thus, Dickson has made no decision in the eighteen months he has had this matter.

THE PROPERTY.

There is polar opposition on ownership of the 29 parishes in question.

TEC and TECSC say the SCSC decision of Aug. 2, 2017, settled the issue of the property, once and for all. By majority vote, the SCSC recognized TEC as owner of the parishes. Ownership came through the Dennis Canon. Four of the five justices (Pleicones, Hearn, Kittredge, and Beatty) held that the 28 (or 29) parishes acceded to the Dennis Canon. One of them, Kittredge, backed out and said the parishes revoked their accession at the schism. The other three maintained the accessions were irrevocable. This left a majority (3-2) opinion that TEC became the owner as the beneficiary of the trust held by the parishes which were the trustees. The parishes lost the properties when they broke the terms of the trust by breaking their ties to TEC.

In the view of TEC/TECSC, Judge Dickson has only one big job, to implement the SCSC decision. 

On the other hand, DSC has refused to accept the SCSC decision of Aug. 2, 2017. They said it was fractured, conflicted, and unenforceable. They petitioned Judge Dickson to decide himself on the issues involved which they had been left unresolved by the SCSC decision. As substantiation, DSC lawyers have insisted all along (again last Tuesday) that the parishes never acceded to the Dennis Canon. Therefore, they cannot be under the terms of the Canon. Since they are not under the Canon, the parishes remain the owners of their local properties. 

Nevertheless, as back up, DSC filed its Betterments suit which recognized TEC ownership of the properties. However, they made this conditional, that is, to go into effect only if the court decided TEC owned the properties. They argued for this last Tuesday.

Bottom line on property---TEC says it owns the parishes, end of story. DSC says the parishes own their own properties because the SCSC decision is non-enforceable.

The ownership of the local properties remains the crux of the issue between the two parties.

MEDIATION.

It is easy to see why Judge Dickson wants mediation. However, it is most unlikely to reach what he wants, a settlement. Here is why:

Any settlement would have to be by compromise. Both sides see the crucial issue as non-negotiable. They both claim the 29 local parishes. Neither shows any sign of budging on this.

Mediation usually begins early on in a case as the sides see if they can resolve their differences peacefully. If he wanted mediation, Dickson could have had it eighteen months ago. Why now after all this time when the positions of the sides have hardened? The two sides have been in legal war for six and a half years.

The two sides have had at least three occasions to settle their differences. In the circuit court trial, in the offer of June 2015, and the federal court-ordered mediation of October 2017-January 2018. DSC refused all offers of settlements. In June of 2015, TEC offered to give DSC all of the 36 parishes in question in return for the entity of the diocese. The DSC leaders promptly rejected this. In the mediation of 2017-18, TECSC asked for Bishop Adams to be able to visit the 29 parishes in question. DSC flatly refused. Apparently there has been no negotiation since then. If these efforts at mediation utterly failed, why would a new round work? What has changed? Nothing that one can see. 

It seems to me given the whole package of factors involved, out-of-court settlement by voluntary negotiation is highly unlikely. It is worth a try, but I for one have no expectation of a positive outcome.

If mediation fails again, the matter will go back to Judge Dickson who will eventually have to decide what to do about the petitions before him. However he rules, the losing party will no doubt appeal to the South Carolina Court of Appeals. It is certain that this court will uphold a decision of the state supreme court. It is unimaginable that a final decision of the state supreme court would be discarded. So, the best outcome may be to get the mediation effort over asap, go back to Dickson, hope to get a ruling (or rulings) from him, and get it finally settled by the Court of Appeals. This, of course, assumes Dickson will issue a decision at some point in time, not something I would necessarily bet on today.

As for Judge Dickson's implementation of the SCSC decision of Aug. 2, 2017, it is reasonable to be highly doubtful of such, at least from our perspective today. In other words, TEC should not automatically expect Dickson to enact the SCSC decision.

This probably leaves everything about the properties up in the air for a long time to come. I wish it were not that way. It should not be that way. This whole business is a scandal that should never have happened. 

As I sat in that beautiful courtroom on Tuesday, a sense of sadness fell over me. There were two groups of former friends strictly divided by the center aisle. The Church people sat on the right behind their lawyers. The independent diocesan people sat on the left behind their lawyers. I saw no one cross the aisle, no one speak to anyone on the other side. Dozens of people came and went speaking only to their friends, on their side. One of the original nine dioceses of the Episcopal Church lies broken and bleeding of self-inflicted wounds. This is a shame and a scandal.