SC LAW ON APPOINTMENT
OF AN ACTING JUSTICE IN CHURCH CASE
It has come to my attention that South Carolina law requires the appointment of a fifth "Acting Justice" in the church case pending before the SC Supreme Court.
There are five justices on the SC Supreme Court. One of the five, Justice Kaye Hearn, has recused herself from the case. This leaves four justices, two of whom are new to the case, that is, were not involved in the SCSC written decision of 2017.
The number of justices is an important issue because the case before the SCSC now is an appeal of a circuit court Order (Judge Dickson's decision of 2019 that purported to ignore the 2017 SCSC decision and to award all to the breakaway side). A reversal of a lower court decision requires a majority vote of the SCSC justices. If there are four justices, an overturn of Dickson would require agreement of three or four justices. A tie of two to two would leave Dickson's Order in place. If a fifth justice is on the bench, there can be no tie. There would have to be a majority of at least three to two.
Thus, the number of justices is potentially crucial. Four justices would lean to the breakaway side's chances while five justices would improve the Episcopal side's chances.
As I read it, the South Carolina Code of Laws requires the court to appoint a fifth acting, or temp judge, to fill out the bench. It is not an option, but a clear requirement. This is in Section 14-3-60 of the 2017 SC Code of Laws. Find it here .
Presumably, Chief Justice Donald Beatty would nominate an Acting Justice who would be approved by the governor, normally a formality. An interesting wrinkle in this is that Beatty has become an important part of the breakaway's attack on the 2017 SCSC decision. As I understood it, the breakaway lawyers argued that Beatty's opinion in the 2017 decision was contradictory and that his explanation of the Dennis Canon really meant he rejected the parishes' accession to the Canon (even though he concluded with the majority that the parishes had irrevocably acceded to the Canon). Thus, it will be fascinating to watch Alan Runyan (presuming he is the ADSC presenter) argue to Beatty's face that his (Beatty's) opinion did not mean what it said.
We will know for sure who the fifth justice is on December 8, 2021 at the hearing. If I learn the identity of the Acting Justice before then, I will relay it here. Meanwhile, it is clear state law requires a fifth, or acting justice, in this instance.
