EPISCOPAL CHURCH PRESENTS ITS CASE TO THE SOUTH CAROLINA SUPREME COURT

Lawyers for the Episcopal Church and its diocese of South Carolina presented their written arguments to the South Carolina Supreme Court on November 12, 2020. The Church side is appealing Circuit Court Judge Edgar Dickson's Order of June 19, 2020. In August, the SCSC agreed to hear the appeal.

A brief recap of this case:

1-On Feb. 5, 2015, circuit court judge Diane Goodstein issued an order denying the interest of the Episcopal Church in the local and diocesan properties of the old (pre-schism) diocese. The order found all in favor of the new (breakaway) diocese. 

2-On August 2, 2017, the SCSC issued a majority decision essentially reversing Goodstein and recognizing the Episcopal Church ownership of 28 (really 29) local parishes and the diocesan Camp, St. Christopher.

3-On Nov. 19, 2017, the SCSC sent its decision back down to the court of origin, the circuit court at Dorchester County, with a Remittitur to enforce the decision. (The SCSC denied a rehearing; the U.S. Supreme Court denied an appeal.)

4- On June 19, 2020, Judge Edgar Dickson, of the circuit court, issued an Order reversing the SCSC decision. He ruled that the Episcopal Church had no interest in the local properties, thus returning essentially to the Goodstein decision of 2015.

5-The Episcopal Church side appealed Dickson's Order to the SCSC where the case is now. The Brief of 12 November is the written argument in the appeal.

WHAT DOES THE EPISCOPAL CHURCH WANT THE SCSC TO DO NOW?

The Church side is asking the SCSC to overturn Dickson's Order of June 19, 2020 and to issue instructions to the circuit court to enact the SCSC decision of Aug. 2, 2017:

Appellants [TEC] request the Court vacate the Dickson Order and remand with instructions for the Circuit Court to take actions consistent with the Supreme Court Ruling that issued a declaration of rights in Appellants' favor, including granting the specific relied requested in Appellants' Petition for Execution and Petition for Accounting (p. 34).

If the SCSC agrees with TEC's request, the Episcopal Diocese of South Carolina will regain possession of the 29 parishes in question and the Camp.

WHAT ARGUMENTS DID THE CHURCH SIDE PRESENT IN ITS BRIEF?

Here are the main points that I found in the brief:

---Dickson's Order sought to overturn the SCSC decision.

---Dickson's Order sought to reinstate the Goodstein Order (in place of the SCSC decision).

---The majority of the justices of the SCSC voted to reverse Goodstein and to recognize TEC ownership of 29 of the 36 parishes in question as well as Camp St. Christopher.

---The SCSC decision is the "law of the case." The law is not open to reinterpretation. Yet, Judge Dickson followed the opinion of the dissenting justices that was not the law of the case.

---Dickson's Order sought to nullify the SCSC decision:

Rather than following and enforcing the final judgment, the Circuit Court instead nullified this Court's ruling (p. 21).

---The circuit court (Dickson) did not have the authority to "clarify" (reinterpret) a SCSC decision, only to enforce it:

When this Court remitted the judgment, the Circuit Court obtained jurisdiction and authority only to enforce the judgment, not to clarify or to rehear it (p. 20).

The Court remitted this case to the Circuit Court...It did not remand the case with instructions. On remittitur, the "Circuit Court acquires jurisdiction to enforce the judgment and take any action consistent with the Supreme Court ruling (p. 22).

---The circuit court declared it had the right to discern the "intent" of the SCSC justices in disregard of the final decisions. In fact, supreme court decisions are always recognized by the result, not the intent. It is the vote that counts, not the reasoning that led to the vote. The process of making a decision is irrelevant to the force of the decision. The circuit court erred in following intent rather than result.

---The circuit court had no authority to reverse the SCSC decision on the properties. In the SCSC, four of the five justices ruled that the 29 parishes had acceded to the Dennis Canon. Yet, Dickson directly contradicted the court declaring that the 29 parishes had not acceded to the Dennis Canon. Dickson had no right to overrule a majority factual decision of the state supreme court. It was this error that led to Dickson's rejection of the SCSC's decision on the local properties. 

     If Dickson's Order is left to stand, it will create a dangerous precedent in which lower courts can overrule higher courts. This will strip the SCSC of its authority and lead to endless litigation without finality.

---"It is legally impossible" for the circuit court or the SCSC to reconsider this case. It has been settled as law:

The Supreme Court Ruling---the result of which was the majority's reversal of the Goodstein Order---is the law of the case and is not subject to further review by this Court (p. 20).

This brief sets out in detail all of the issues of this matter. It is compelling. This is an open and shut case of judicial authority. The SCSC has ruled and established the law on the ownership of the local properties. The circuit court had no right to reverse the higher court decision. Judge Dickson's Order apparently seeks to reinstate, essentially, Judge Goodstein's decision that awarded all to the disassociated diocese even though the state supreme court had explicitly reversed Goodstein's decision on the properties. I see two fundamental issues here. In one, the supreme court makes the law of the case. It is the highest court and its decisions are not subject to alteration. It is a question of law. In another, the structure of the judicial system is at stake. If lower courts are allowed to reverse higher court decisions, this will lead to anarchy in the entire court system. Litigation would go on forever and no finality would be possible. The issue is the integrity of the hierarchy of the state court system. 

Will the SCSC overturn the Dickson order and order enforcement of its Aug. 2, 2017 decision? On the face of it, this should be a no-brainer. Of course the highest court should defend itself and maintain the necessary integrity of the court system. Of course it should not allow a lowly circuit judge to reverse a decision of the supreme court. This is just common sense.

However, matters may not be quite that simple today. One should keep in mind the big picture of the church case. This is an important part of the culture war that has been going on in America for a half-century. From the start of the Great Democratic Revolution after the Second World War, the Episcopal Church enthusiastically engaged to promote the equality and inclusion of all people in church and in society. It championed blacks, women, homosexuals and others who had been discriminated against and excluded. However, the majorities in five dioceses voted to reject this democratic revolution and to leave the Church. South Carolina was the fifth and last. After the schism of 2012, the breakaway faction explicitly rejected equal rights for homosexual persons. It also denied to women offices of authority over men. Homophobia and sexism are parts of the backlash against the Great Democratic Revolution in which the Episcopal Church played, and still plays, a significant part. Thus, what is happening in the litigation now is very much a part of the culture war in America. 

As everyone knows, South Carolina is a highly conservative state. Just look at the election results. Political elements associated with the reactionary side of the culture war won across the board in South Carolina. On the presidential, senatorial, and representative levels, candidates associated with the democratic revolution side were soundly defeated by the voters of South Carolina. The majority of the people of this state have made their feelings about change known clearly.

So, what the SCSC will do now boils down to whether the justices see the Church case as an issue of law or the culture war. If they see it primarily as a matter of law, they will have to defend the SCSC decision and order the return of the properties to the Episcopal Church. On the other hand, if they see the Church fight primarily as a matter of culture, they may bend so far to conservatism that they find some construction to allow the Goodstein/Dickson position to prevail as a way of weakening the revolutionary forces of the culture war in the state of South Carolina.

As of now, we have no way to know which way the SCSC will move. We do know that two of the five justices who wrote the 2107 decision are no longer on the court, Pleicones and Toal. We also know that one of five justices, Hearn, has been recused from the case. Moreover, we know that two new justices have joined the court since the 2017 decision and one of them, Few, has been married in St. Philip's, of Charleston, after permission of the bishop of one side in this case. 

Thus, there are four active justices handling this case. It is possible the court would bring in an "acting justice" to become the fifth vote (I have no knowledge that they have done this). If it winds up that there are four votes, the Church side will need three or four votes to overturn Dickson. A tie vote, 2-2, would mean Dickson's Order would stand. If there is a fifth, an acting justice, the Church would still need three or more votes of the five to overturn Dickson.

So, what should be an open and shut case is not that simple. There is a good deal involved in how the SCSC will make its decision and not all of it is favorable to the Episcopal Church.

Still, after all is said, I cannot see a state supreme court rejecting one of its own final decisions and elevating lower judges to judicial supremacy. It just does not make common sense. I for one will be very surprised if the SCSC rules in favor of Goodstein/Dickson and the breakaway side.

For more information and commentary on last week's brief see the Episcopal diocese's press release (with a link to the brief) here and scepiscopalians' article here . One may also find this posting helpful, "Circuit Judge Orders Nullification of State Supreme Court Decision," of 19 June. Find it here . My usual disclaimer: I am not a lawyer or legal expert and what I offer here is only opinion.