REFLECTIONS
ON TWO RECENT COURT ACTIONS
-PART I-
-PART I-
After hearing nothing from the courts for weeks on end, we received two important announcements from them in recent days. On June 28, 2019, the South Carolina Supreme Court issued an order denying the Episcopal Church in South Carolina and the Episcopal Church's petition for a writ of mandamus to order Judge Edgar Dickson, of the circuit court, to implement the SCSC decision of August 2, 2017. On July 2, 2019, word came that circuit court Judge Dickson had scheduled a hearing on the Betterments suit. It is to be held in the Calhoun County courthouse, in St. Matthews SC, on July 25, 2019 at 9:30 a.m. Let us consider what these announcements might mean for the schism, and take them one at a time. (My usual disclaimer---I am not a lawyer or legal expert and what I offer here is opinion.)
SCSC Denial of the Petition for a writ
The denial came in the form of a three-page Order of the SCSC dated June 28, 2019. Find it here . The Court said:
Petitioners [TECSC/TEC] state they filed a petition to enforce the judgment that has been pending in the circuit court since May 2018.
...
Because Respondent [Judge Dickson] is in the process of scheduling hearings on the matters filed in the circuit court, we are confident that Respondent will resolve the petition to enforce the judgment, as well as any related matters that are pending, in an expeditious manner.
It is crucial to note the wording here. In the first quote, the SCSC justices pointed out the Church's petition to the circuit court, of May 2018. In the second quote, the justices referred back to this petition as they said they were confident Dickson "will resolve the petition to enforce the judgment." This implied very clearly that the SCSC justices recognized that Dickson would implement the SCSC decision of Aug. 2, 2017.
Thus, the TECSC/TEC "petition to enforce," of May of 2018, to which the justices referred, is the issue at stake here. Let us return to this petition. On May 8, 2018, TECSC and TEC filed, in the circuit court, "Defendants' Petition for Execution and Further Relief on Declaratory Judgments of the South Carolina Supreme Court and for the Appointment of a Special Master." Find it here . In essence, the Church lawyers asked Judge Dickson to carry out the SCSC decision of August 2, 2017:
The Episcopal Church and the Associated Diocese [TECSC] seek the intervention of this Court to effect an orderly transition of possession and control of the property to which they are entitled by the judgement of the South Carolina Supreme Court (p. 3)
Therefore, the Court should enforce the August 2, 2017 Opinion of the South Carolina Supreme Court, by transferring title to the parish property from the parish corporations to The Episcopal Church and the Associated Diocese, by requiring Plaintiffs [DSC] to execute any necessary deeds or instruments of title, or issuing the same by Court order. (p. 8)
The SCSC Aug. 2, 2017 ruling listed three majority decisions on its last page (77):
1) with regard to the eight church organizations which did not accede to the Dennis Canon, Chief Justice Beatty, Justice Kittredge and I [Toal] would hold that title remains in the eight plaintiff church organizations;
2) with regard to the twenty-eight church organizations which acceded to the Dennis Canon, a majority consisting of Chief Justice Beatty, Justice Hearn, and Acting Justice Pleicones would hold that a trust in favor of the national church is imposed on the property and therefore, title is in the national church;
and 3) with regard to Camp St. Christopher, Chief Justice Beatty, Justice Hearn, and Acting Justice Pleicones would hold title is in the trustee corporation for the benefit of the associated diocese [TECSC]...
As anyone can see, the August 2, 2017, SCSC decision explicitly recognized that 28 parishes were property of the Episcopal Church.
The Aug. 2 decision became final law after the SCSC denied DSC's petition for a rehearing and the United States Supreme Court denied cert.
On November 17, 2017, the SCSC sent an order of remittitur to the circuit court. A "remit" is a direction to the lower court to implement the decision. This is different than a "remand" order which would have directed the lower court to reconsider the case. Under the remittitur, the lower court has no discretion to reconsider the state supreme court decision. The SCSC Aug. 2 decision is final and must be implemented by the lower court.
In the circuit court, Judge Edgar Dickson was assigned the case in January of 2018.
On May 8, 2018, TECSC filed its Petition for Execution (above) to Dickson who ignored this petition for the next ten months. It was this petition that the TECSC had in mind when, in March of 2019, they asked the SCSC to issue a writ of mandamus directing Dickson to enforce the Aug. 2 order. It was TECSC's May 2018 petition to the circuit court that the SCSC justices had in mind when they denied the request for a writ.
One curious point in the June 28 denial was the justices' use of the word "expeditious." They felt sure Dickson would resolve the matter in an "expeditious manner." Unfortunately, the justices did not define what they meant by "expeditious." A common definition of expeditious would be with speed and efficiency. Dickson has had this case for eighteen months. Evidently the justices concept of speed and efficiency runs into years rather than months. In my layman's view, a year and a half of doing nothing is the opposite of expeditious.
To no one's surprise, the reactions of the two dioceses to the SCSC denial of a writ were entirely different. Find the TECSC news release here . The Church diocese gave a straightforward announcement of the high court's denial of a writ. On the other hand, the independent diocese issued a Trumpesque pretzel of truth, untruth, half truth, and misinterpretation. Find it here . It includes this:
The intent of the Petition requested by TEC was to have the Supreme Court require the Circuit Court to interpret the Supreme Court's August 2, 2017 ruling as TEC wished it interpreted. The Parishes and the Diocese opposed the Petition essentially arguing that the issues were before Judge Dickson who was using the discretion afforded him by state law to resolve them.
Baloney. The SCSC decision of Aug. 2, 2017 explicitly lists three orders. This is the law of the land. The circuit court has no "discretion" to change the SCSC order. Judge Dickson cannot retry this case. DSC is continuing to mislead its people with the myth that the SCSC did not settle the church case. In fact, the case was settled and ended on Aug. 2, 2017.
The DSC creation goes on:
At its core, the Petition was an attempt to end run Judge Dickson's exercise of his discretion in interpreting the August 2, 2017 decision in a manner that may differ from TEC's interpretation. However, the Supreme Court refused to tell Judge Dickson how he should rule in interpreting the August 2 decision...
Double baloney. The three orders explicitly given in the August 2 decision are not matters of "interpretation." They are direct and perfectly clear. Dickson has no "discretion" as to the meaning of the three orders. His only discretion is in how to implement the orders. The SCSC justices did not tell Dickson to implement the August 2 decision because they have already done that (Nov. 17, 2017 remittitur). It would have been redundant. In the June 28 Order, the justices very clearly implied that Dickson was to implement the Aug. 2 decision and to do so in an "expeditious manner."
Unfortunately, the DSC leaders are still misinforming their people on what is happening in the courts. They are promoting the fiction that the property decision is unresolved and therefore the breakaway congregations may still keep the properties they are currently occupying. The truth is that the SCSC has settled the property issue by recognizing that 28 (or 29) local churches belong to the Episcopal Church. No amount of spin or deception can Trump this reality.
Why has DSC refused to accept the final law of the land? Good question. Obviously it is to use the legal processes to delay the transfer of the properties as long as possible which might actually be years to come. There is some logic to this strategy. Besides, it is the only card they have left to play. However, this is not the way any of the other five cases of dioceses that voted to leave TEC acted. In Pittsburgh and San Joaquin, the schismatics accepted the final court decisions. In those cases the state supreme court did not issue a decision, just to let the lower court orders stand. In South Carolina, the state supreme court actually issued a ruling on the church case, the only example in the U.S in which a state supreme court ruled on an Episcopal Church schism. Even so, DSC refused to accept it making it unique among the breakaways.
Regardless of all of DSC's wild public relations spins and ongoing delays, the basic dispute of the schism has been settled by the law. The Episcopal Church is the legal owner of the 29 parishes in question and the Camp. It is just a matter of time before the law is carried out and the Episcopal Church regains its property. DSC can deny and delay until the cows come home but they cannot undo the law.
Next, we will take up the Betterments suit.
To no one's surprise, the reactions of the two dioceses to the SCSC denial of a writ were entirely different. Find the TECSC news release here . The Church diocese gave a straightforward announcement of the high court's denial of a writ. On the other hand, the independent diocese issued a Trumpesque pretzel of truth, untruth, half truth, and misinterpretation. Find it here . It includes this:
The intent of the Petition requested by TEC was to have the Supreme Court require the Circuit Court to interpret the Supreme Court's August 2, 2017 ruling as TEC wished it interpreted. The Parishes and the Diocese opposed the Petition essentially arguing that the issues were before Judge Dickson who was using the discretion afforded him by state law to resolve them.
Baloney. The SCSC decision of Aug. 2, 2017 explicitly lists three orders. This is the law of the land. The circuit court has no "discretion" to change the SCSC order. Judge Dickson cannot retry this case. DSC is continuing to mislead its people with the myth that the SCSC did not settle the church case. In fact, the case was settled and ended on Aug. 2, 2017.
The DSC creation goes on:
At its core, the Petition was an attempt to end run Judge Dickson's exercise of his discretion in interpreting the August 2, 2017 decision in a manner that may differ from TEC's interpretation. However, the Supreme Court refused to tell Judge Dickson how he should rule in interpreting the August 2 decision...
Double baloney. The three orders explicitly given in the August 2 decision are not matters of "interpretation." They are direct and perfectly clear. Dickson has no "discretion" as to the meaning of the three orders. His only discretion is in how to implement the orders. The SCSC justices did not tell Dickson to implement the August 2 decision because they have already done that (Nov. 17, 2017 remittitur). It would have been redundant. In the June 28 Order, the justices very clearly implied that Dickson was to implement the Aug. 2 decision and to do so in an "expeditious manner."
Unfortunately, the DSC leaders are still misinforming their people on what is happening in the courts. They are promoting the fiction that the property decision is unresolved and therefore the breakaway congregations may still keep the properties they are currently occupying. The truth is that the SCSC has settled the property issue by recognizing that 28 (or 29) local churches belong to the Episcopal Church. No amount of spin or deception can Trump this reality.
Why has DSC refused to accept the final law of the land? Good question. Obviously it is to use the legal processes to delay the transfer of the properties as long as possible which might actually be years to come. There is some logic to this strategy. Besides, it is the only card they have left to play. However, this is not the way any of the other five cases of dioceses that voted to leave TEC acted. In Pittsburgh and San Joaquin, the schismatics accepted the final court decisions. In those cases the state supreme court did not issue a decision, just to let the lower court orders stand. In South Carolina, the state supreme court actually issued a ruling on the church case, the only example in the U.S in which a state supreme court ruled on an Episcopal Church schism. Even so, DSC refused to accept it making it unique among the breakaways.
Regardless of all of DSC's wild public relations spins and ongoing delays, the basic dispute of the schism has been settled by the law. The Episcopal Church is the legal owner of the 29 parishes in question and the Camp. It is just a matter of time before the law is carried out and the Episcopal Church regains its property. DSC can deny and delay until the cows come home but they cannot undo the law.
Next, we will take up the Betterments suit.
