PREPARING FOR THE
SOUTH CAROLINA SUPREME COURT HEARING

In a few days, the South Carolina Supreme Court will hold a hearing in the case of the appeal of the Episcopal Church (TEC) and the Episcopal Church in South Carolina (ECSC). Anticipation is building. This will be the most important legal event in the schism since the two sides split in October of 2012. TEC and ECSC are asking the state supreme court to overturn a circuit court ruling. On February 3, 2015, Judge Diane Goodstein, of the state circuit court in Dorchester County (St. George), issued her decision called the Final Order. She found all in favor of the schismatic side called the Diocese of South Carolina (DSC).

The hearing will occur on Wednesday, September 23, at 10:30 a.m. in the Courtroom of the state supreme court building in Columbia. As far as we know, all five justices will be in attendance. To my knowledge, Justice Kaye Hearn has not recused herself from this case, nor has she been asked to do so. Hearn is an active member of St. Anne's Episcopal Church in Conway, the local church in ECSC. She is the only Episcopalian on the bench.

The purpose of the hearing is to consider Goodstein's Final Order of Feb. 3. The TEC/ECSC side is asking the court to overturn the decision. The DSC side is asking the court to uphold the decision.

The set-up of the hearing is to give one side 20 minutes to present its case to the five justices, to give the other side 20 minutes, then 10 minutes for rebuttals. The verbal interchange is only between the lawyers and the five justices.

What can we expect in the hearing? The lawyers will make a prepared "presentation" to the judges, but the judges can interrupt them and ask any question they wish of the lawyers making the presentation. The questions the judges ask are crucial in sensing the direction they will go in their decision-making process. Listen very carefully to the questions themselves and the tones in which they are asked. Be aware too of what topics the judges emphasize as well as what they do not ask. Also, notice if the justices show any opposition to each other.

ISSUES

The issues in this case are clear and have been spelled out in the several briefs and counter-briefs both sides have issued since February 3.

1. What is the structural relationship between the Episcopal Church and a diocese?

DSC---TEC is not hierarchical. Dioceses are "autonomous" and self-governing entities.

TEC/ECSC---TEC is hierarchical. Dioceses are bound to the Church by the Constitution and Canons; clergy are bound to the Church by vows.

Goodstein's Final Order found DSC to be an independent entity entitled to all legal rights under state law. In fact she declared TEC to be a congregational institution organized from the bottom up.

2. Is this a religious or a property dispute?

DSC---property only. "Neutral principles" must be applied and have been applied properly by the circuit court in its Final Order.

TEC/ECSC---religious. Relationship of DSC to TEC was an issue internal to the Episcopal Church. The U.S. Constitution and the laws prohibit a court from interfering in the internal matters of a church. Court must follow "deference" in this case.

Goodstein's Final Order declared it followed "neutral principles" but then gave a long list of judgments on the relationship between the Episcopal Church and its local diocese. She saw this as only a property dispute while going beyond that.

3. Did TEC and its diocese own the properties of the parishes in question?

DSC---No, because a trust was never established for the properties. State law requires that.

TEC/ECSC---Yes, because TEC established the Dennis Canon, and DSC adopted the Canon. The Canon said all local property was held for the diocese and the Episcopal Church.

Goodstein saw no interest of the national Church in the local properties.

4. What is the relevance of the All Saints/Waccamaw decision of 2009 (the SC Supreme Court decision recognized property owned by a local parish)?

DSC---proves Dennis Canon is not applicable in the state of South Carolina an that all local property is owned by the local parishes.

TEC/ECSC---decision applied to one parish only. In this case DSC argued in court that it was part of a hierarchical church, therefore DSC cannot now argue it is not part of a hierarchical church.

Goodstein cited the All Saints decision four times in her Final Order. Later she declared the case had no relevance to the matter at hand.

JUSTICES

What to look for among the five judges.

Chief Justice Jean Toal wrote the All Saints/Waccamaw decision of 2009. Listen carefully to her references to this decision in the questions she asks. How relevant does she see it to this case? How defensive will she be of her own earlier decision? Judges are usually highly reluctant to revise earlier decisions, let along reverse them. If Toal becomes very defensive of the All Saints decision, that could be a favorable sign for the DSC side. If she questions the relevance of All Saints to the present case, that would bode well for TEC/ECSC.

The next most important judge to watch is Hearn since she is an active Episcopalian. Pay attention to how many questions she asks, to whom she directs them, what she asks, and the tone of her words.

Then, Justice Beatty is the next to watch since he is the only justice presently on the court other than Toal to have signed the All Saints decision of 2009. As with Toal, pay attention to his attitude to the references to the All Saints case. Will he see relevance? Will he defend the 2009 decision in this case?

The other two justices, Kittredge and Pleicones, are new to the court and had no connection to the All Saints case and have no connection to either side in this appeal. Coming from this disinterested background, it will be important to see what issues they think are the important ones here. One should pay close attention to their words too.

It is just my conjecture, but I could see these last two as the "swing" votes on the bench. I can envision a scenario where Toal and Beatty side with DSC to defend their earlier decision while Hearn sides with TEC/ECSC. If that is the case, the other two justices will decide the outcome as the decision will be by majority vote among the five. One side has to get at least three votes to carry the court's decision. Toal and Beatty would have to convince one "swing" vote, but Hearn would have to persuade both "swing" votes.

HOW DO THE TWO SIDES COMPARE?

We can expect all 40+ lawyers for DSC to appear as well as attorneys for TEC and ECSC, presumably the same who took part in the circuit court trial of July 2014.

TEC/ECSC has the harder task in that they must convince a majority of the justices that something is fatally flawed in Goodstein's Final Order. They must make a convincing case of the errors or commission and omission in the Order. They cannot simply disagree with the decision. They must demonstrate why it is not acceptable either by wrong principles used or the faults in how those principles were carried out. Bottom line, they must show why this is a religious dispute and not just a property one. If it is religious, then the court would have to follow "deference" and that would be to the advantage of TEC/ECSC.

No doubt it will be months before we get the written decision of the state supreme court in this case. However, we should have a good idea of the attitudes of the five judges by the end of the hearing on next Wednesday. That will give us some indication of how the case will move into the decision phase.

DSC is praying for God's help. They have declared that God is on their side. I rather doubt that God choose sides like that. Let's all pray that God will be with everyone in the Courtroom, judges, lawyers, and spectators alike. We are all in the same boat whether we are crowding in opposite ends or not. We are all Christians and we ought to behave like it.