U.S. COURT OF APPEALS REJECTS THE INDEPENDENT DIOCESE'S MOTION

FOR A REHEARING

On April 29, the U.S. Court of Appeals in the Fourth Circuit, in Richmond, issued an Order denying the independent diocese's appeal for a rehearing of the case vonRosenberg v. Lawrence. Lawyer Alan Runyan had made the appeal to the Court on April 14. The Court had issued its decision to remand the case to the U.S. District Court in Charleston on March 31. This means the federal court in Charleston will have to reconsider Judge Houck's decision of August 2013. Houck had abstained from the case in deference to the earlier action in the state circuit court which he said was parallel. The three judge panel in the Fourth Circuit court said on Mar. 31 that Houck had used the wrong standard for abstention. They said he should have used the Colorado River standard that makes it extremely difficult for a federal court to abstain from a case in deference to a state court.

The three sentence Apr. 29 Order of the U.S. Appeals Court in Richmond reveals that not one of the judges of the Court asked for a vote on Rule 35. This Rule says that one judge of the court may call for a vote on the question of whether the court should hear a case "en banc" (the entire bench, that is, all the judges of a court). If more than half of the judges vote in agreement, they will hear the case "en banc." In this instance, not one of the judges even cared to call for a vote, let alone discuss the merits of the case.

The Apr. 29 Order suggests several points:

---Since not one judge called for a vote, the case was cut-and-dried to them. All of the judges gave recognition to the clear-cut unanimous decision of the three judge panel (Motz, Gregory, Wynn).

---Judge Goodstein's highly controversial decision of Feb. 3 had absolutely no influence on the federal judges in Richmond. The three judges issued their ruling on Mar. 31 and the whole court rejected DSC's appeal on April 29. The federal judges in Richmond had no concern whatsoever for the previous state court litigation.

---The judges of the U.S. Fourth Circuit rejected DSC's appeal in just 15 days. Within one month, the three judge panel unanimously directed the U.S. District Court in Charleston to reconsider the case and the whole court sustained that order.

The independent diocese issued a press release and posted this on their website yesterday. It continues DSC's longstanding blame-it-all-on-the-Episcopal Church (conveniently omitting that DSC started the lawsuits) as well as its recent attitude of desperation while misrepresenting the litigation and the powers of the courts. The statement implies that federal courts must abide by state court decisions. In fact, federal courts have superiority over state courts. Moreover, as the Fourth Circuit judges made plain, federal courts almost always MUST adjudicate cases involving federal law. A federal court can abstain only in very rare instances. It was obvious that the federal judges in Richmond believed the federal court in Charleston should hear this case.

Thus, the litigation in South Carolina continues along two tracks, state court and federal court. Soon, the two sides should present their briefs, or arguments, to the South Carolina state supreme court. The date for the oral hearing there has been set for Sept. 23. Meanwhile, we can await word from the U.S. District Court in Charleston on how it will proceed with the remanded case of the bishops. It has two choices: abstain or proceed to a judgment. In order to abstain, a heavy burden will be placed on the court to explain the very narrow and compelling reasons it sees justifying the abstention. It will have to follow the Colorado River principle that makes it extremely difficult to abstain from a case involving federal law (in this case the Lanham Act). If the court cannot find overwhelming reasons for abstention, it must proceed with adjudicating the case.

Feb. 3 was the high point in DSC's litigation. Judge Goodstein gave them everything they wanted and then some. Since then, however, legal matters have not looked so good for the independent diocesan side. They know very well the judges they will face in the high courts of Columbia and Charleston will be a far cry from what they have enjoyed so far.