Wednesday, July 22, 2020

JULY 22, 2020

Today, July 22, 2010, the Anglican Diocese of South Carolina, submitted to the United States Court of Appeals, Fourth Circuit, its response brief, in reply to the Episcopal Church's brief of July 1. This should end the filings in this appeal. Here is my summary of the papers in this case:

September 19, 2019. Judge Richard Gergel, of the United States District Court, in Charleston, issued a decision in the case of vonRosenberg v. Lawrence. This case had been filed in March of 2013. In it, the Episcopal Church bishop charged that the schismatic bishop was in violation of the federal Lanham Act that protects federally registered trademarks. In short, the breakaway diocese was claiming to be the Episcopal diocese even though it was not associated with the Episcopal Church.

Gergel issued a 73-page judgment heavily documented with supporting court decisions. The main points:

1-The Episcopal Church diocese is the heir of the historic diocese of South Carolina. This was settled by majority vote of the South Carolina Supreme Court (Pleicones, Hearn, Beatty) "and therefore is precluded from relitigation." As the heir of the historic diocese, the Episcopal Church diocese also owns the state registrations of the trademarks.

2-The South Carolina Supreme Court decision of Aug. 2, 2017 speaks for itself: "The Court therefore is bound by the Justices' actual holding on the ultimate issues..."

3-The Episcopal Church is hierarchical. Therefore, the court must abide by the decisions of the hierarchical church:  "this Court is mandated to accept as binding the decision of the highest ecclesiastical body in a hierarchical religious organization."

4-"The Episcopal Church" is a federally registered trademark and is not generic.

5-An Injunction against the disassociated diocese:  "the Court issues an injunction against further trademark infringement, trademark dilution, and false advertising."

Although the disassociated party, that now styled itself the "Anglican Diocese of South Carolina," did remove some titles from some places, particularly the Internet, they continued to refer to themselves as the historic diocese in clear violation of the Injunction. Therefore, the Episcopal diocese went to court asking for enforcement of the Injunction.

December 18, 2019. Judge Gergel issued a new order denying the ADSC's petition for a stay pending appeal. In the same order, he found numerous examples in which the disassociated party had violated the Sept. 19 Injunction and found them in contempt of court:  "the Court will enforce its findings of civil contempt at this time through an order enjoining the noncompliant acts described above." Gegrel concluded by enumerating a detailed list of terms, phrases, and actions that were banned under the Injunction.

ADSC did clean up a lot, but not all, of their infractions of the Injunction. Even so, I have found three examples recently in which the disassociated diocese still claims to be the historic, Episcopal diocese:  1-the Anglican church on Edisto Island claims to be "Trinity Episcopal Church," , find it here ;  2-the Anglican Diocese still claims to be "the Protestant Episcopal Church in the Diocese of South Carolina" in an online pledge report of 2017-18, , find it here ;  3-Kendall Harmon, an officer of the ADSC, posted on his blog on July 14, 2020:  "Brand new TEC in SC Diocese's Motion for reconsideration in Lawsuit with Historic Anglican Diocese of South Carolina is denied," , find it here . Judge Gergel has already found ADSC in contempt of court one time.  

April 30, 2020. ADSC filed a brief with the U.S. Court of Appeals in its appeal of Judge Gergel's Sept. 19, 2019 decision. In this, the ADSC lawyers argued the SCSC decision of Aug. 2, 2017 did not mean what it said. They made three main points:

1-the disassociated diocese was the historic diocese and had legally left TEC intact; this meant they kept the rights such as state marks; 

2-"episcopal church" is a generic term and as such is not subject to trademark;  

3-ADSC did nothing in violation of the Injunction and should not have been held in contempt of court. 

These were points that had already been litigated. The lawyers offered only weak evidence to support them. 

July 1, 2020. EDSC filed a reply brief to ADSC's brief of April 30. This was really an elaboration of Gergel's original order that spoke powerfully for itself. The EDSC lawyers did not need to add anything new since the ADSC arguments were so weak and unconvincing.

July 22, 2020. ADSC lawyers submitted their reply brief to EDSC's reply of July 1. These were the main points they made:

1-the SCSC decision of Aug. 2, 2017 did not mean what it said. The correct reading of this decision left the All Saints decision as the standard, and that found in favor of the disassociated diocese;  

2-TEC is not hierarchical; and neutral principles must apply; 

3-"episcopal church" is a generic term;  

4-the disassociated diocese was not in contempt of court because it had followed the explicit instructions on marks.

 Along the way, the ADSC lawyers threw in all sorts of supporting material whether it was relevant or not:  its own interpretation of the SCSC decision, Judge Dickson's interpretation of the SCSC decision, the Diocese of Quincy case, and the Fort Worth case. In this layman's opinion, the ADSC case against Judge Gergel's decision is conspicuously weak and unimpressive. I did not see anything here that would lead the appeals judges to change Gergel's work at all.

Now, apparently this ends the preparations for the appeal in the U.S. Court of Appeals. ADSC filed a brief. EDSC filed a counter-brief. ADSC filed a reply. After this, in all probability, a panel of three judges will proceed with the case. Since Judge Motz, Judge Wynn and Chief Judge Gregory signed the denial of a stay on January 14, 2020, I would assume they will be the three to decide this appeal.

As I understand it, the judges can do one of two things at this point: proceed to a decision or call a hearing. If they have a hearing, it will probably be online and will certainly be open to the public. If they hold a hearing, they would issue a written statement some time afterwards. Historically, this appeals court moves rather expeditiously. If there is a hearing, we could expect a decision within several months.

It seems undoubtful to me that the appeals court will uphold Gergel's decision. There are several reasons for this:  common sense understanding of what has already happened (the majority orders in the SCSC are plain for anyone to see); Judge Gergel's decision is masterful and is heavily documented with prior rulings of the Fourth Circuit itself; Gergel's decision is virtually appeal-proof; the ADSC arguments on appeal are thin, sometimes irrelevant, and do not convincingly refute anything Gergel said. Besides, the appeals court (Motz, Wynn, Gregory) have already ruled in this matter twice, both times in favor of the Episcopal Church side.

In an appeal, the burden is on the party making the appeal to prove its case. That has not happened here.

[My usual disclaimer: I am not a lawyer or legal expert, and what I offer here is only a layman's opinion.]