PANIC ON COMING STREET?

There is a rising air of desperation, possibly even panic, coming from the independent diocesan headquarters on Coming Street in Charleston. The year 2015 is turning out to be very different than were 2013 and 2014. At two and a half years into the schism, matters are not looking so well for the secessionists these days.

As we have seen in posts on this blog, statistics show there has been a drastic drop in both membership and income of the independent diocese, down a third since Lawrence arrived in January of 2008. Around the time of the schism 10,000 communicants abandoned the diocese, about half staying with the Episcopal Church parishes and missions and half dropping out of the schismatic parishes and missions. Some local secessionist churches have been hit seriously. While income has declined, legal costs have soared. DSC reports spending $2m on legal expenses ($800k is unaccounted for in the annual budgets; where did it come from? where did it go?).

The DSC "Legal Defense Fund," which operates in secrecy and without accountability, recently established the "1785 Society" to raise a new $300k for this year's legal expenses. Obviously, the money has been slow in arriving. In Holy Week, DSC spent several thousand dollars to post snail-mail letters apparently to everyone on the old mailing list (even some loyal Episcopalians) in which Mark Lawrence solicited donations for the Fund. Just today, Jim Lewis, Canon to the Ordinary at DSC, posted a letter (more about that in a moment) calling anew for donations to the 1785 Fund.

The landscape of litigation has changed. DSC began the lawsuits in January of 2013 when its lawyers chose one certain court and sued TEC, then ECSC there. For over two years, DSC controlled the venue of the litigation through a predictably friendly court. Even the federal court judge, Houck, agreed to step aside in view of the convincing performance in St. George. The show in St. George came to a climax in February of this year when Judge Goodstein produced a decision that sounded as if it had been written by Alan Runyan. Then, DSC's luck began to change. In March, the U.S. Fourth Circuit Court of Appeals rejected Judge Houck's decision to abstain and remanded the case to the District Court in Charleston to be reheard following the Colorado River principle. This enhances the Church side in court and makes it much harder for DSC to make its case. As we have already seen, the case may go to another judge in the District Court who is much friendlier to the Episcopal Church. The idea, promoted by some, that the federal court in Charleston now has to follow the state court ruling is nonsense. Federal courts are not beholding to state courts. It is the other way around. State courts must accept the superiority of federal actions. The DSC lawyers are well aware of this. 

On April 14, DSC lawyers appealed to the U.S. Fourth Circuit, in Richmond, to reconsider their decision of March 31. This alone showed their lack of confidence in their own position. If they felt certain of the strength of their arguments, they would allow the case to proceed in Charleston without delay. Anyone who heard the audio recording of the Fourth Circuit hearing in January and read the unanimous decision of Mar. 31 knows it is highly unlikely this court will change its position. I suspect DSC lawyers know this and are only employing a delaying tactic (something they repeated accused ECSC lawyers of doing in 2013-14). It may be DSC lawyers want a judgment from the state supreme court first. This, however, is not likely. The District Court in Charleston will probably take up the case again before the state supreme court makes its ruling.

On April 15, the South Carolina Supreme Court agreed to hear the appeal of Judge Goodstein's ruling (Feb. 3). If their two-page statement gives any hint, it is favorability to ECSC. DSC made a motion to the Court "to expedite" the case. ECSC made a counter motion in opposition. The Court rejected the DSC motion and granted the ECSC motion not to expedite. It set a date of Sept. 23, 2015, for oral arguments. If six months later is a typical time for a written decision, that would put a judgment of the state supreme court in early 2016. This will be the first time in which a state supreme court will take up the issue of the legal relationship between the Episcopal Church and a diocese (PA, TX, and IL state supreme courts left it to lower courts). It will be a historic moment for the Episcopal Church and for South Carolina.

It is possible that DSC lawyers wanted to hurry up the state supreme court in order to have the case decided within Chief Justice Jean Hoefer Toal's term. She is reportedly in her last year in that role. Toal is an active Roman Catholic. Her name was on the famous 2009 All Saints decision. That ruling went against TEC and its diocese in finding the Dennis Canon inoperable in that parish's case (the only case in the U.S. finally settled in favor of a breakaway parish). Since Judge Goodstein strongly relied on the All Saints decision in her Order of Feb. 3, one may assume Chief Justice Toal would want to uphold Goodstein's Order to reaffirm her own work of 2009.

Of the justices' names on the All Saints decision, only two are still in the state supreme court, Toal and Justice Donald Beatty. There are three other justices now on the court who had nothing to do with the 2009 All Saints decision. Justice Costa M. Pleicones is from Greenville and is Greek Orthodox. Justice Kittredge is also from Greenville and is a Presbyterian. Finally, there is Justice Kaye Hearn of Conway. She is an active communicant of the Episcopal church in Conway, St. Anne's, the group of refugees from the schismatic St. Paul's. Her husband, lawyer George M. Hearn, Jr. also a leader in St. Anne's, was subpoenaed by DSC lawyers for a deposition in March of 2014. He was ordered for deposition even though he did not hold an office in the Episcopal diocese.


The five justices of the South Carolina Supreme Court will hear the oral arguments from both sides in court on September 23, 2015 and will draw up a written decision some time afterwards, perhaps in early 2016. Thus, DSC lawyers can no longer control the venue of litigation. The U.S. District Court in Charleston and the South Carolina Supreme Court in Columbia will be nothing like the local circuit court in rural Dorchester County.

Back to Jim Lewis's letter of today (www.diosc.com). Lewis, Lawrence's assistant, is often out front with strong public statements against the Episcopal Church side. In my view, his most outrageous assertion was his ludicrous claim that the schism had nothing to do with homosexuality (It's about God, not gays). See the post here on the causes of the schism, part 2. In his new fundraising missive, Lewis once again declares that God favors DSC: "God has remarkably blessed us throughout this litigation process. We have been the beneficiaries of God's providence repeatedly in countless ways..." Apparently Lewis did not get the message from Mark Lawrence in the recent DSC convention that one must not say the legal actions were predestined by God's will. Obviously, if people think God will determine the outcome of the litigation anyway they might not want to give money from their own pockets.

Lewis made three bold, and dubious, assertions in his letter of today, all without a shred of evidence to back them up. This is nothing new. For years before the schism, DSC used the-best-defense-is-a-good-offense strategy and its leaders employed the tactic of making sweeping generalizations against the Episcopal Church without any supporting evidence. As history showed, this strategy and tactic actually worked very well among the majority of the communicants in the old diocese who naturally preferred to trust the words of their own leaders.

Lewis's first declaration was that DSC was in the middle of negotiations for a settlement when TEC tried to remove Bishop Lawrence in 2012. This is not true. A simple glance over the Chronology post here will reveal that. In fact, the evidence shows that after Bishop Lawrence returned from General Convention in July of 2012, he declared a crisis for the diocese. He met secretly with the Standing Committee and drew up a secret plan of action on August 21, 2012. This plan has never been revealed to the public. He continued to meet secretly with his lawyers and the Committee as they drew up a secret plan to remove the diocese from the Episcopal Church. That conspiracy was enacted by secret resolution of the Standing Committee on October 2. It remained a secret among about twenty people until October 15. It was revealed to the presiding bishop and everyone else on Oct. 17. Meanwhile, in public, Lawrence staged a charade of offering peace with the Episcopal Church. He met with Bishop Waldo, of Upper South Carolina, and the presiding bishop, on Oct. 3 but did not reveal to them the secret resolution of the Standing Committee. Neither did he offer a plan of settlement with the national church, only an agreement to keep talking. However, he refused repeated offers to meet in person with the presiding bishop after Oct. 3. The simple facts of history show that for a long time before the schism DSC was planning a disassociation from TEC, not a settlement with it. Lewis's claim that DSC was trying to make a negotiated settlement with TEC is a myth. Nevertheless, it is one DSC leaders continue to make even in face of the stark facts.

Lewis's second contentious assertion was that TEC has never negotiated a settlement in any of its legal actions. TEC goes to court to enforce its duly established Constitution and Canons just as the United States fought the Civil War to defend its non-negotiable Constitution. The Dennis Canon is not negotiable. It is a law of the Church. The idea that TEC lawyers would cast aside a canon of the Church to make a negotiated settlement with secessionists is absurd and the other side knows it.

Lewis's third charge was that DSC told the TEC lawyers that it would entertain written offers of a negotiated settlement in 2013 but that none ever appeared. Really? Tell us more! Who made the offer? When was it made? To whom was it made? Was Judge Goodstein informed of this? She did not seem to know it in court proceedings. What offer of a negotiated settlement did DSC ever make to the other side? If not, why not? It certainly was not in DSC's interest to make a compromise agreement in a court everyone knew would favor DSC, as it inevitably did.

Lewis's letter of today displayed a rather sad air of desperation, just as DSC actions of the last few weeks. The control DSC has had over litigation has ended. It can no longer fire down on its enemy from the heights to the valley below. It must now wage war on an open field. The fight will be different from now on and Lewis, Lawrence, Runyan et al know it very well. If it's not panic in their camp, it is at least grave concern.