EPISCOPAL CHURCH PETITIONS
SC SUPREME COURT
TO ENFORCE THE LAW
Yesterday, March 20, 2019, the Episcopal Church and its local diocese, the Episcopal Church in South Carolina, filed in the South Carolina Supreme Court "Petition for Writ of Mandamus." Find it here . Find the diocesan news release about the filing here . The petition is a remarkable document, and one of the most important in all the six-plus years of litigation since the schism. It deserves much consideration.
I must begin with these caveats: I am not a lawyer or legal expert; I am not an official of any diocese and speak only for myself; and what I offer here is only opinion. These things being said, here are my thoughts about yesterday's action.
WHAT HAPPENED YESTERDAY?
First, what is a "writ of mandamus"? Simply put, it is an order from a superior official or body to a lower official or body to carry out the law.
In this case, TEC/TECSC lawyers are asking the South Carolina Supreme Court to order Judge Edgar Dickson to implement the SCSC decision of August 2, 2017. On the face of it, that is the simple and entire point of yesterday's filing. It is uncomplicated. The lawyers wrote on p. 19:
"Petitioners [TEC/TECSC] seek a Writ of Mandamus directing the Dorchester County Circuit Court, to which the underlying action has been remitted, to enforce the mandate of this Court by effecting the transfer of possession and control of the diocesan property and the property of 29 of the parishes at issue..."
Under SC law, a writ must meet four requirements. The lawyers argued at length in their paper that these were abundantly satisfied in this case.
WHY DID THE TEC/TECSC LAWYERS TAKE THIS ACTION?
They took this action for two reasons: Judge Edgar Dickson has failed to take any measure to enforce the SCSC decision of August 2, 2017, and Dickson is indicating that he is going to re-litigate the issues already settled by the SCSC.
WHAT WAS THE AIM OF YESTERDAY'S PETITION?
The aim is to have the South Carolina Supreme Court order the circuit court (Dickson) to implement the SCSC decision of August 2, 2017.
WAS THE SCSC DECISION OF AUGUST 2, 2017 FINAL?
Yes, it was final. Three factors made it final: 1-the SCSC denied DSC's motion for a rehearing on Nov. 17, 2017; 2-the SCSC remitted its Aug. 2 decision to the circuit court on Nov. 17, 2017; 3-the United States Supreme Court denied an appeal of the SCSC decision, on June 11, 2018. Under the established rules of jurisprudence, a final supreme court decision is the law of the land; it cannot be ignored or altered. A lower court does not have the right to re-litigate the same case.
WHAT WAS THE SCSC DECISION OF AUGUST 2, 2017?
Here is the decision. This is the last page (p. 77) of the decision (click on image for enlargement):
WHY HAS JUDGE DICKSON NOT IMPLEMENTED THE SCSC DECISION?
I wish I knew. This is the great mystery of the day.
There are three areas of concern about Dickson:
1---The SCSC remitted its decision to the circuit court Nov. 17, 2017. A "remit" is an order to carry out a decision (a "remand" is an order to reconsider the case). In January of 2018, Dickson was assigned the case. Time and again, he gathered written arguments from both sides (I counted 23 papers). Finally, eleven months after his assignment, he held a court hearing, on Nov. 19, 2018, to listen to the oral versions of the same written arguments he had before him. He did not issue any decision. This meant no action for fourteen months.
It is true that Dickson had six petitions/motions before him for his consideration. However, in the hearing of Nov. 19, which I attended, he said he was dealing first with only one, the DSC request for clarification. He indicated he would address the rest at some later time.
As I understood him, Dickson indicated in the hearing that the SCSC decision was unclear, lacked direction to him, and was open to (his) interpretation. In fact, as we have seen above, the SCSC was perfectly clear in its order. It specified three directions. It seemed to me that the SCSC decision was clear, was a direct order, and was final. I could not understand why Dickson held a different view. I still do not.
2---Dickson said in the hearing that he would send emails to the two sets of lawyers with questions he wanted answered. Yesterday's petition quoted two emails from Dickson, both on p. 6. These indicated that Dickson might be seeking to re-try the case as to the issue of local property ownership. In fact, this issue was settled by the SCSC in its Aug. 2 decision.
On January 8, 2019 Dickson sent this email to the lawyers:
"There was a chart prepared in the PowerPoint presentation that was shown in Court on November 19, 2018. That chart purported to indicate the issues of agreement among the various justices [standard of review for facts, legal rationale, parish property, Trustees' beneficiary, and service marks]. The Court would appreciate a compilation, with appropriate page citations, quoting from the five opinions, the areas where two or more justices are in agreement and their agreement either supports or does not support your side."
If I had been a TEC/TECSC lawyer, I would have emailed back the last page of the SCSC decision. It speaks for itself. I do not understand how Dickson, or anyone else, for that matter, could say the decision was not precise and concise.
On January 14, 2019 Dickson sent this email to the lawyers:
"The Court would like documents supporting that there was a vote on the Dennis Cannon [sic] on or before September 1979. Also, please provide any accompanying documents which indicate what churches voted and what churches did not vote (i.e. messages[specifically numbers 75 and 76], voting sheets, if presented anywhere previously, please provide this information to the Court (transcript and/or otherwise)."
This is the strongest evidence yet that Dickson might be seriously considering re-litigating this case. In fact, the five SCSC justices went over the documents about parochial accession to the Dennis Canon and handed down a decision and direction on this issue. Four of the five justices agreed that 29 of the 36 parishes in question had indeed acceded to the Dennis Canon (one justice held that a parish could rescind its accession; this left a 3-2 decision that 29 parishes remained under the Dennis Canon and therefore property of the Episcopal Church). As I see it, Dickson has no right to re-open this issue. It is now proper for the SCSC to step in and overrule Dickson.
3---Just a few days ago, Dickson announced that he would hold a courtroom hearing on DSC's Betterments suit on March 27, 2019. He said that at the same time he would consider TEC/TECSC's petition to dismiss Betterments, and DSC's motion for complex case designation. Why Dickson is doing this, and so abruptly, is another mystery. In fact, he said (I was there) in the last November's hearing that he was considering only one issue, DSC's petition for clarification. Here, four months later, has not ruled on clarification, yet is moving on to other issues without explanation.
Yesterday's petition suggests several points about the TEC/TECSC position at this point in the long course of this legal war:
Frustration. The legal combat has been going on for more than six years. Church lawyers have lost patience with Judge Dickson. In fourteen months on the case, he has done nothing to implement the SCSC decision. To the contrary, he has shown willingness to ignore, perhaps even overturn the SCSC decision. Under the long-established judicial system, a lower judge does not have the right to ignore, or alter, a final decision of the state's highest court.
Alarm. Alarm at the suggestions in Dickson's two emails that he is open to re-litigating the issue of the property ownership. This matter was settled, largely in the Church's interest, by a final decision of the SCSC.
Urgency. The petition has an air or urgency in it. All this time has given space to the 29 local parishes to diminish their assets and burden the rightful owners with responsibilities upon physical restoration. No one knows what has been going on in the 29 parishes that will make life more difficult for the Episcopal Church bishop when he returns, as he surely will.
WILL TEC/TECSC PREVAIL IN YESTERDAY'S PETITION?
Probably. The main reason is that the SCSC must preserve the integrity and authority it has held for more than two centuries. As I see it, the SCSC now has three choices: 1-ignore the petition, 2-grant the petition, and 3-reject the petition. Ignoring and rejecting would give Dickson the green light to do as he wishes to re-litigate the case. That, in effect, would be the SCSC agreeing to overturn one of its own final decisions. This would set a very dangerous precedent. From then on, no SCSC decision would be final. Every one could be re-tried by a lower court even upon a "remittitur" rather than a remand. In fact, these two terms would become irrelevant in the judicial system. This would turn the ancient judicial system on its head. It is unthinkable. The only logical outcome is to grant the petition.
There is only one possible reservation to all of this. The present South Carolina Supreme Court is not the same as the court that handed down the decision of August 2, 2017. Two justices (Pleicones and Toal) have retired and have been replaced by new justices elected by the state legislature. This leaves only two (Beatty and Hearn) of the three justices who ruled in favor of TEC/TECSC in 2017. That means there are three justices today who either opposed TEC/TECSC or whose positions are unknown. It is possible that this majority could resolve to undo the decision of Aug. 2, 2017, either by inaction or denial. However, I still think such a scenario is remote because of the overriding issue of judicial hierarchy.
The South Carolina Supreme Court is likely to grant TEC/TECSC's petition of March 20, 2019. If so, Dickson will have no alternative but to accede to the high court's direct order. This means the Episcopal Church bishop will return sooner rather than later to the 29 parishes on the list.