Wednesday, December 8, 2021




"HOW MANY BITES OF THE APPLE DO YOU GET?"



Justice Kittredge asked Alan Runyan the pertinent question of the day, "How man bites of the apple do you get?" The answer, of course, was as many as the courts would allow until he won. He won in the circuit court, lost in the supreme court, then won again in the circuit court and now, having secured his goal, is calling for the door to close. How convenient.

So, should the SC supreme court agree that the breakaways should have been allowed to keep on biting the apple until they had it all? In other words, should the SCSC decision of 2017 stand as final, or should the circuit court decision of 2020 stand? Sorry to say, on that question, we got nothing but confusion today. I am as baffled as anyone else on the meaning of today's hearing.

In the center of all this confusion was the most puzzling matter of all, Chief Justice Beatty's opinion. Today, Beatty said in 2017 he had agreed only on the disposition of the eight parishes that had not acceded to the Dennis Canon. He said he made no decision on the other churches and added there was "no majority for Hearn and Pleicones." Even more strangely, at the end of the hearing Beatty apologized for  the "confusion" surrounding the 2017 decision and blamed it all on the lawyers who had given him a "pared down" record that did not present enough information. I am still scratching my head.

Frankly, I have no idea what Beatty was talking about today. And so, I went back and re-read his part of the 2017 opinion. Here is what he wrote then about the parishes:

Yet, TEC argues that the parishes' accession to the Dennis Canon created the trust. Assuming that each parish acceded in writing I would agree. In my view, the Dennis Canon had no effect until acceded to in writing by the individual parishes.

Thus, in contrast to the majority, I would find the parishes that did not expressly accede to the Dennis Canon cannot be divested of their property. Because there was writing purporting to create a trust and they took no other legal action to transfer ownership of their property, I believe these parishes merely promised allegiance to the hierarchical national church. Without more, this promise cannot deprive them of their ownership rights in their property. However, I agree with the majority as to the disposition of the remaining parishes because their express accession to the Dennis Canon was sufficient to create an irrevocable trust.

THEIR EXPRESS ACCESSION TO THE DENNIS CANON WAS SUFFICIENT TO CREATE AN IRREVOCABLE TRUST.

It seems perfectly clear that in 2017 Beatty agreed the 29 had acceded to the Dennis Canon and he did join with Hearn and Pleicones to make a majority. So, I do not know what Beatty meant today when he said he made no decision on the 29 and did that Hearn and Pleicones did not have a majority. Something is amiss.

Does Beatty get to "revise" his opinion of 2017 today? I do not think so. As I told my students over the years, I have to grade you by what you have down on the test paper. You do not get to go back and change it later. The 2017 decision says what it says. It became the law of the land. It is fixed. We have to go by what is written in the 2017 decision.

Basically, the lawyers of the two sides argued alternately that the Dickson order should be vacated and affirmed. The Episcopal lawyer, Skip Utsey, said unsurprisingly that the 2017 SCSC decision was final and that the remittitur to the circuit court required implementation without alteration. The Anglican lawyer, Alan Runyan, argued that his side had been deprived of "due process" in the disposition of the parish and Camp properties which had not been argued in the circuit court in 2014. He held that the SCSC had no right to rule on the properties since it had not been part of the lower court trial. (The parish accessions were in fact part of the record that was presented to the SCSC in 2015 even though discussion of such had been omitted from argument in the circuit trial.) Therefore, Judge Dickson was right to consider the accessions in order to give due process on this issue. Dickson's order must be left to stand because it was based on the due process that had been denied in the supreme court. 

Accession to the Dennis Canon was the main point of discussion today with Justice Few going on and on about it musing on the absence or dubiousness of the evidence that the parishes in question had in fact acceded to the Canon. 

I, for one, could not see how the justices could take up the accession question again. The 2017 SCSC decision ruled by majority (4 of 5) that 29 parishes had acceded to the Dennis Canon. The 2020 Dickson decision ruled that no parish had acceded to the Dennis Canon. It has to be one or the other. There is no third way. Whether there was or was not accession has been decided. So, it boils down to whether the supreme court or the circuit court should have the last word. Only one of the five justices today, Kittredge, seemed clearly to defend the integrity of the supreme court decision. Few and James seemed to want to re-litigate the accession issue.

In my view, two justices leaned to upholding the 2017 SCSC decision today, Kittredge and Lockemy. Two seemed to lean to affirming Dickson, Few and James. 

If  there is a 2-2 split, Chief Justice Beatty will, once again, be the pivotal vote, as he was in 2017. As I said, following today's performance, I have no idea how to read Beatty. Although he bristled at any assertion that he had affirmed the accessions of the 29 parishes and had joined in a majority, he seemed ambivalent about Dickson. Early on, Beatty said, "I think the trial judge did exactly what we expected him to do." Later, he said the SCSC decision was remitted to the lower court, and not remanded. Remit would be implementation while remand would mean re-litigation of the issues. Dickson had acted as if the decision was remanded and not remitted. So, bottom line on Beatty, I am at a loss. I have no idea of where he is or where he is going in the impending written decision. This was the most disappointing aspect of today's hearing.

Is it possible that the Chief Justice of the South Carolina Supreme Court would abandon a final decision of his own court in favor of a later contradictory circuit court decision? Surely he, and the other justices, realize the seriousness of such a thing. Allowing Dickson to stand in place of the SCSC decision will set a most dangerous precedent. No SCSC decision would ever be final. Any circuit court could "interpret" a SCSC decision at will. A circuit court could, in effect, veto any SCSC decision. I refuse to believe the five justices today cannot be thinking about these things. The whole integrity of their court is on the line. 

After nearly nine years of litigation, one longs for finality and closure. We did not get that today, and, given the tenor of the day, I am not at all sure we will have it in the near future. We did not even get clarity today. The creek is muddier than ever. On that, I am as disappointed as anyone about today's hearing.    

 





THE HEARING HAS ENDED



The hearing has ended. It lasted longer than expected, about an hour and a half. Here are my initial thoughts.


Apologies. I reported on this blog that the public would not be allowed in the courtroom. There were in fact some ten people in the room today. I do not know who they were or why they were there. I apologize to all  my readers about my false information I presented. I called the Clerk's office on two different occasions and asked about the public's attendance. I was told flatly on both occasions that the public would not be allowed in the room. Obviously that was not correct. I should not have passed on that information and I am sorry for doing it.


James Lockemy is the Acting Justice. He is the Chief Judge of the SC Court of Appeals. He seemed to me to be knowledgeable about the case and comfortable with the Church's position.


I was dismayed by Chief Justice Beatty's comments. I will have to listen to all he said again, but it seemed to me as if he wanted to back away from his participation in the majority decisions of 2017. 


Justice Few talked the most and seemed bothered by the accession question. He seemed to want more factual findings about each parish's accession. I just wonder how such a thing could be done at this point.


Justice Kittredge did not talk much but seemed satisfied with the 2017 decision. At one point the asked Runyan, "How many bites of the apple do you get?" Indeed.


I am going to re-listen to the hearing and try to make more sense of it. At this point, nothing is clear. I do not know how to read any conclusion into today's hearing.

Just off the top of my head, it seemed that Kittredge and Lockemy were satisfied that the 2017 was final. Few, mostly, and James to a lesser degree, were bothered by the 2017 decision. Once again, as in 2017, Beatty is an unknown. In 2017 he wound up siding with the Episcopal side but he sounded today if he were not sure that was the right side. So, who knows how Beatty will move now?




THE ACTING JUSTICE IS

A RENAISSANCE MAN



The Honorable James E. Lockemy, Chief Judge of the South Carolina Court of Appeals, is the Acting Justice in the church case taking the place of recused SC Supreme Court Justice Kaye Hearn. As such, he is one of the five justices participating in the hearing of today, December 8, 2021. It is impossible to imagine a better choice for AJ in this matter.

Lockemy has had a long and highly distinguished career in the law and the state courts of South Carolina. Born on September 23, 1949, he is now 72 years old. According to my information, he must retire as an Appeals Court judge by the end of this year. 

His life story is one fit for a Hollywood movie, the poor boy who made it big. He was born in the Newtown area of Dillon County SC where his parents owned a mom-and-pop store, Lockemy's Grocery. Throughout all the years he both kept to his roots and excelled far above them. According to the blurb on the SC Court of Appeals website he has been:  bagboy, newspaper boy, Captain in the U.S. Army, Colonel in the National Guard, member of the SC state legislature, youth baseball coach, actor in a community theater, lawyer in a local firm, circuit judge, judge on the SC Court of Appeals, Chief Judge of the Court of Appeals, Kiwanian, and adjunct professor of the USC law school. Yet through it all he has remained a son of Dillon County. What a résumé!

In education, he is a man after my own heart: B.A. in History from University of North Carolina, Pembroke; law degree USC; M.A. in History from the Citadel; and presently working on a Ph.D. in History [at age 72!], at USC. Who could not be impressed?

For more insight into his remarkable personal life, see this article from Dillon. The author points out Lockemy is a Native American. The ABA website says he is the first Native American to serve as Chief Judge of the SC Court of Appeals.

Thus, among the five justices in the hearing, one is an African American man, one is a Native American man, and three are white men. What is wrong with this picture? What about the 51% of the population not represented on the court today? The only woman on the SC Supreme Court now was ruthlessly hounded off the case by certain partisan elements in the state. Courts, as juries, should reflect the people of the community they serve. Nevertheless, we have what we have. 

As far as the church case goes, the only hint we have of Lockemy's attitude about it comes from a summary of the 2017 SCSC decision he wrote (page 72 of 89) in 2018 for the state bar annual report. At the end he stated:

While all individuals are guaranteed the freedom of disassociation from a religious body, here the question of the disposition of ecclesiastical property following the disaffiliation from the [Appellants] is a question of church governance, which is protected from civil court interference by the First Amendment. (p. 72 of 89)

If Judge Lockemy still defines the case the same way today (and no one should dare speak for him), I would take this to mean he would see the matter at hand as a First Amendment case. If so, it seems to me if the majority of justices agree this is a First Amendment case, it would follow that they would have to defer to the Episcopal Church to decide its own polity and policies. This was essentially what the majority did in the SCSC decision of 2017 and what the circuit court did not do in 2020. 




GETTING READY



Wednesday, 8 December, 7:00 a.m. EST.

Good morning blog reader. 

Well, we are here. Today is the day we have awaited for a long time. The secessionist party's lawyers first filed suit against the Episcopal Church in state court nearly nine years ago, actually on January 4, 2013. I believe that today's hearing and the subsequent written decision of the South Carolina Supreme Court will settle the issue of which side owns the 29 parishes in question and Camp St. Christopher. If the justices decide to affirm Judge Dickson's Order of June 19, 2020, the secessionists will own the properties. On the other hand, if they decide the Episcopal Church side owns the properties, they will direct the circuit court to implement their decision. This would take time, but would eventually mean the Episcopal bishop would return to St. Michael's, St. Philip's, St. Helena's, Church of the Cross, and twenty-five others now occupied by the schismatic clergy. The Camp would be handed over to the Episcopal trustees. 

A word of caution, however. Remember there are two avenues of litigation, one state and one federal. The federal is still to be resolved. Judge Gergel's 2019 decision recognizing the Episcopal diocese as the only heir of the pre-schism diocese is on appeal with the U.S. Court of Appeals, in Richmond. At the moment, it is on stay awaiting the decision of the SCSC. 


This is what I plan for today on this blog:


---post info about the Acting Justice as soon as the camera reveals the AJ's identity.


---post my initial thoughts about the hearing right after its conclusion.


---later in the day, post another essay about the hearing after I have had a couple of hours to listen to it again (I am recording it), get the quotes down correctly, and spend more time reflecting on what was said.


Meanwhile, I will have my coffee and morning meditation/prayer. If it were not raining, I would go out into my garden to watch the sun rise on a new day. I will also re-read Bishop Woodliff-Stanley's comforting reflection of yesterday which came in email. Peace.


Click HERE for the live-stream, to begin at 9:30 a.m. EST.