THOUGHTS ON

THE SOUTH CAROLINA

SUPREME COURT HEARING

INTRODUCTION

Immediately after the hearing on September 28, I made a posting on this blog giving my initial reaction to the event. In the days since, I have reheard the recorded proceeding and made a written transcript for study. After several days of reflection, I can confirm my initial reaction. Now, I have some additional thoughts to offer my readers. Bear in mind I am an ordinary layman, neither a lawyer nor an expert on legal history. I have no connection to either party in this dispute. These are my own thoughts as a student of the history of the schism, for whatever they are worth, which may be nothing. Yet, I can only assume readers are interested. I have had over 3,000 hits on my blog since the hearing.

The hearing started at 10:55 a.m., on Wednesday, September 23, 2015, in the Courtroom of the South Carolina Supreme Court building in Columbia. It lasted 56 minutes and 38 seconds. Two lawyers made presentations to the court, Blake Hewitt for the appellants, the Church side (TEC/ECSC), and Alan Runyan for the respondents, the independent diocesan side (DSC). All five justices were present and all spoke. Chief Justice Jean Toal presided. The other justices were Costa Pelicones, Donald Beatty, John Kittredge, and Kaye Hearn. In all, 7 persons spoke in the hearing. The first block of time went to Hewitt, the second to Runyan, and a rebuttal time to Hewitt. The Chief Justice allowed the attorneys all the time they desired to use. Although both lawyers prepared formal "presentations" for the court, neither got far before the justices broke in for numerous questions. The time was about evenly divided between the justices' questions and comments and the lawyers' responses.

The arguments the two lawyers presented were exactly as I had expected. Right off, Hewitt raised the issue of the loyalty of the diocese to the national Church stressing the bond between diocese and Church under the Constitution and Canons of TEC. The diocese, and authorities in it, he said, had power only under the governance of the Episcopal Church. He also said this was a religious and not just a property dispute. He talked much about the importance of the Dennis Canon and the problem of the quit claim deeds. On the other side, Runyan stressed the sovereignty of the diocese as an independent entity unto itself, not dependent on the national Church, and insisted two separate parties were at dispute here. As a corporate body under state law, the diocese could act as it pleased towards the Episcopal Church. He stressed also this was only a property dispute that must be settled only under local property laws. He said the issue of whether the Episcopal Church is hierarchical was irrelevant in this instance just as it was in the All Saints case of 2009.

WHAT DO WE KNOW FOR SURE NOW?

As a result of the hearing, several points stand out as certainties that we can take away from the event:

1. Judge Diane Goodstein's decision in the circuit court trial has been discarded. DSC had asked the court to uphold the decision; TEC/ECSC had asked the court to overturn it. Score: win for TEC/ECSC.

The demolition came from Toal with a lot of help from Hearn. Only a few minutes into Hewitt's presentation, Toal jumped in to denounce Goodstein's opinion: "It may have been very unbalanced to have made the rulings that were made below that allowed one side's experts...to testify very fulsomely and forbade your side's two experts from getting at all in the issue...hierarchical versus congregational." This was the first of the 40 interjections the Chief Justice made (Hearn had the next highest at 34). This was only Toal's first arrow into Goodstein, but it alone conveyed the unmistakable doom of death. To Runyan, she said, "This case was tried in a rather one-sided way on that particular issue [hierarchy]. You all were allowed to put in an expert to discuss in detail his opinions about whether hierarchical matters...Now, the other side had Dr. Walter Edgar and Professor McWilliams for two that were prepared to delve into specifically matters of hierarchy and so forth and they were completely stopped from arguing that, from presenting evidence about that and then the judge said we are not going to make a finding about hierarchical and then the order comes out and finds that this church is a congregational church. How did all that happen with the way this case was tried? Toal's body language conveyed agitation, but she was not finished. After a rather stunned Runyan got out a response about the Church having no right to control the diocese, Toal exploded: "They [TEC/ECSC] were not permitted to put in any evidence on that point. That's the reason I'm asking the question. And then, and then the judge said I'm not getting into that, she termed it, we are not a hierarchical state as a kind of odd thing because we discussed both principles in All Saints but she said, this, none of this information is going to be considered by me because we are neutral principles. How in the world if that is the framework that was used was a finding made specifically that this is a congregational, that the Episcopal Church is a congregational church?" Runyan, reeling, mumbled, "Your Honor, I know it surely does read that way..." Toal shot back: "It's exactly what it says!" But she was still not through with Goodstein. A few seconds later, she launched into Runyan again: "I mean there's a different side to that and a different set of arguments...in terms of your now getting into this hierarchical/congregational dispute and trying to use the perceived status of the Episcopal Church as a congregational church when your own expert explicated in detail the apostolic succession of your bishops beginning with the apostles and yet this judge finds that it's a congregational church, I'm struggling with that as a means of justifying this Order." There was no justifying the Order. At that point Goodstein's Order of Feb. 3 expired. Everyone knew it. The dominant voice had spoken. Not one other justice spoke up to defend Goodstein's decision.

2. The court dismissed the relevance of its own 2009 All Saints decision to the present case.

It was not just Goodstein's decision that riled up the Chief Justice. Runyan's use of the 2009 All Saints decision did too, perhaps even more so. Since she was the author of that very decision, Toal had a unique protective attachment, perspective, and understanding of the case (Judges are famously protective of their own decisions). Runyan made All Saints a major part of his presentation calling on the court to apply the same principles to the present case.

A bristling Toal would have none of it. The author of the decision broke in to deliver the longest speech of the entire hearing. She dismissed Runyan's claim of relevance and gave a long discourse on the differences between the two cases. (This was my biggest surprise of the day) Patience wearing thin, she lectured the lawyer: "Remember, recall, Mr. Runyan, that in All Saints there wasn't any dispute about the bishop's control of at least some personal interest in All Saints's property...No question about the bishop's authority. Serbian church, no question about the bishop's authority. Here, BIG question about the bishop's authority...but also big questions about whether the diocese, whether the bishop, has any ownership interest at all to deal with because of the Dennis Canon, so big difference between the case and All Saints where they wasn't any question about the bishop's ability to quit claim, would you agree?" End of matter. The very author of the All Saints decision snatched the rug from under Runyan's feet. In my view, Toal's decisive demolition of the Goodstein Order and dismissal of the relevance of the All Saints decision were her two primary contributions to the hearing. Both were stunning victories for the TEC/ECSC side and humiliating setbacks for the opposition.

3. Justice Hearn was completely committed to the TEC/ECSC side.

She was their intrepid advocate, doing, in my opinion, a better job of it that the lawyer. Hearn was the second most vocal justice, interjecting 37 times. This steel magnolia gave no quarter and pulled no punches, of course always with the consciously genteel and polite good manners so common in the Low Country. Hearn was the second justice to speak, denouncing Goodstein's decision and declaring the Episcopal Church hierarchical. She asserted that neutral principles and hierarchy are not mutually exclusive, that the Dennis Canon created a trust, and that DSC had its own Dennis Canon before the national church. She also pointed out, perhaps daringly to the face of the author, that the All Saints decision was an "outlier" because not one other state in the union had accepted it. Although she gave Hewitt plenty of help, she saved her energy for Runyan. The tension in the string of exchanges between Hearn and Runyan was palpable. And this came after Runyan had just suffered through Toal's withering barrage on All Saints. Runyan and Hearn started interrupting each other through nine exchanges until Hearn finally commanded: "Stop there just a minute" to assert the Dennis Canon would trump any state law. Of course, Hearn could not resist adding to Toal's demolition of Goodstein. At one point she confronted Runyan: "This was a non-jury trial and yet I counted over twenty-five objections to Professor McWilliams's testimony in a non-jury trial. You all tried to hard to keep any of that evidence out, and then the Order is issued and low and behold there is a finding that this church is a, controlled by the bottom, that the parishes are really in charge rather than the national church."

4. Chief Justice Toal was the dominant person in the room. There could be no doubt. This was her court. This was her case. It should be remembered that she took this case on appeal to bypass the appeals court. She dominated the conversation in the hearing literally and figuratively. I can only assume all this assertiveness means she will write the court's decision, if she is in the majority, that is.

5. All five justices were outwardly supportive of each other. I detected not a hint of tension among them during the hearing. This could point toward a unanimous decision.

6. Runyan encountered a good deal of overt hostility, especially from Toal and Hearn.

WHAT QUESTIONS REMAIN UNANSWERED?

 

1. The fundamental question in the whole case is, What approach will the Court use in resolving this case? If we can assume the Court has discarded Goodstein's Order and will write a new decision, what criteria will the Court use to make their ruling? We can only guess at the answer by looking at various words of the justices in the hearing.


As a word of warning, we should not jump to the conclusion that discarding Goodstein's Order and All Saints also discards their conclusions. It could be that the court will reach the same conclusion for DSC by other means. I think there was a good possibility in the hearing that Toal was trying to do that by often redirecting the discussion back to the property rights of a state chartered non-profit corporation. 

Although the Chief Justice insisted that the 2009 All Saints decision was not relevant to the present case, she and the other present signatory, Justice Beatty, may possibly want to continue their earlier attitude of favoring the local entity. There were parts in the hearing that might have indicated that. At one point, Toal said to Hewitt in reference to the hierarchical issue: "In the final analysis, specifically with reference to the property determination, the title determination, what difference does it make?" Property rights became Toal's common theme. Then, after chastising Runyan on Goodstein's Order and on All Saints, she propped up the reeling lawyer by feeding him his position: "All these organizations started to file articles of incorporation with the secretary of state including this diocese and there is nothing in those articles that are filed that forbids the corporation that we are talking about, which is your client, from disassociating or deaccessioning from the national church their corporation, they legally changed their purpose. They withdrew their accession to the national church and as a corporation they had the authority to do that, that's your argument, isn't it?" She then added: "If we see it as a matter of corporation law, and don't get tangled up in all the doctrinal issues, as a matter of corporate law they legitimately filed papers accomplishing that, that's your argument?" At the end, during Hewitt's rebuttal, Toal threw him some confrontational hardballs such as: "There is nothing in the corporation law of this state that forbids a corporation, if it does it correctly and according to the law, from changing its purpose, is there?" She continued, "You want us to declare that the corporate law of South Carolina is that once you put a purpose clause in your charitable corporation you are forever bound to that purpose clause and, it can never be changed even if your constitution and operational documents are properly amended to do so?" Then, Toal challenged Hewitt: "What corporate, what constitutional documents were violated by amending the purpose to withdraw their accession from the national church?" The lawyer answered, the Constitution and Canons of the Episcopal Church. Toal retorted, "And are you saying that the national church, once you join it, you can never unjoin it, unless the national church lets you unjoin it? Alright, what principle governs that, the Dennis Canon?" Hewitt answered, the General Convention.

If the focus in deliberations is on narrow corporate rights over the local property, the DSC will have the edge. In order for TEC/ECSC to win, the focus must move to the obligation of the diocese to the national church. Toal seemed to want to make the issue a local corporate authority one. If she does, she can expect a strong opposition from Hearn. If that happens, I can envision an irreparable split on the court. I would guess Toal and Beatty would be on one side while Hearn, Pleicones and Kittredge would be on the other. That would give a 3-2 majority decision for the Church side.

2. What effect will the issue of Bishop Lawrence's authority have on deliberations? Another surprise I had was to hear the discussion about whether Bishop Lawrence had the authority to do what he did. Hearn had no hesitation about rejecting Lawrence's authority and recognizing vonRosenberg as the legitimate bishop of the diocese. Toal, however, seemed only perplexed by the question and gave no answers.

3. What effect will the issue of trademark infringement have on deliberations? Toal seemed annoyed by Judge Houck's decision to defer to the state supreme court and wondered aloud whether they could consider the issue. Kittredge offered that they could. If trademarks are added to the mix, that should strengthen the Church's hand since federal trumps state.

4. What effect will past political maneuverings among the justices have on their deliberations in this case?

On Feb. 5, 2014, the South Carolina General Assembly elected Toal to another term as chief justice (in South Carolina, judges are justices are elected by the legislature). She defeated Pleicones by a vote of 95 to 74 after a reportedly controversial campaign. She stood for reelection even though she would have only a year to serve on the 10 year term since state law requires a chief justice to retire at the end of the year in which he or she turns 72. In May of this year, the Assembly elected Pleicones chief justice without opposition. After Toal retires on Dec. 31, 2015, he will become chief justice but will have just one year to serve as he will have to retire on Dec. 31, 2016. Although both publicly profess to being nothing but good friends, one has to wonder what lingering feelings Pleicones might have about Toal's blocking his election in 2014 leaving him with only one year as chief justice. Toal has been chief justice since 2000, more than any chief justice in modern history.

5. What effect will Toal's view of her historic legacy have on the impending decision?

Toal will have been chief justice for 15 years, the first woman and the first Roman Catholic to hold that position. She must be concerned about her legacy. How will future generations view her place in history? As the author of the landmark 2009 decision on the All Saints' property, she would certainly want to protect that. She knows how poorly that decision has been received in the nation. In fact, no other state has accepted it. This must be something of an embarrassment for her.

The present case will perhaps be her final legacy. She will want to get it right. I would guess she would want a unanimous decision clearly giving a standard the whole nation would accept. After all, this will be the first state supreme court in the United States to rule on a dispute between the Episcopal Church and a local diocese. This decision may well be her greatest legacy. (It strikes me as ironic that of all states, South Carolina may be the one to decide the national standard on whether a diocese can secede from the union.) 

I am certain a decision favoring DSC will not be unanimous. It is inconceivable Hearn would go along. On the other hand, a decision for TEC/ECSC would either probably be unanimous or a 3-2 split with Toal in defeat. Would she want defeat to be her final legacy?

6. Is there an ideological split on he court that would affect the outcome of deliberations? On this I would have to defer to someone who is familiar with the historic inner workings of this particular panel of justices. I saw no apparent split in the hearing, but that does not mean it does not exist. One would need to study the decisions handed down by this particular panel of justices to know that.

SOME FINAL THOUGHTS

The reactions of the two sides after the hearing tell us much about how the hearing went. The DSC issued a press release that was factual and straightforward without their usual spin. Typically, if DSC is pleased it declares victory as God's will. This time they did not. The quasi-official voice of DSC, Kendall Harmon's website, has been almost silent on the subject, only posting what others said and with almost no comment. Very vocal, as usual, was Alan Haley, the lawyer and blogger a.k.a. "The Anglican Curmudgeon." This time he turned all guns on Justice Hearn for her "blatant bias" and "unprofessional" behavior. He called for her to be investigated under the ethics codes. Ladson Mills III echoed that on Virtueonline claiming she had too many ties to the Episcopal Church. Thus, the reactions of the DSC side tell us they sense they are in trouble in the state supreme court. If they were confident of victory they would be behaving otherwise, and certainly not vilifying one of the justices who is about to rule on their case.

On the other side, the reactions are a mixture of relief and jubilation. You have only to read Steve Skardon's blog, scepiscopalians to know that.

Will this decision be appealed to the U.S. Supreme Court? Maybe. The loser certainly will have the right to ask SCOTUS to take the case. I expect TEC would do that if they lose. DSC has indicated they may not appeal if they lose.

If DSC winds up losing this case, I think it will be because their lawyers made certain serious errors. The first was to get a circuit court trial relentlessly one-sided with a decision that was so over the top it was dead on arrival at the higher court. A more balanced trial, a more judicious decision that still reached the same conclusion would have had a much better chance of success. There is such a thing as too much of a good thing. The excess of the circuit court turned out to be its own self-destruction. A second mistake the DSC lawyers made was to try to spread the 2009 decision on All Saints parish to the whole diocese. They overplayed their hand and the author of that very decision slapped them down for it. A third mistake I see was not to challenge Justice Hearn to recuse herself. I know of no evidence they did that. Complaining after the fact does no good. Perhaps the decision not to challenge Hearn was made by the same DSC lawyer who thought it was a good idea, in early 2013, to subpoena the spouse of a state supreme court justice. How to account for these misjudgments?Overconfidence? 

Before the hearing, I ended my last posting on this blog with a sorrowful lament on the lowest point in the long and great history of a premier diocese of the Episcopal Church. I still believe that. However, it is always darkest before the dawn, and I have a feeling, and it may just be wishful thinking I know, but I have a feeling that a tiny glimmer of dawn may be breaking way off on the horizon. A long, dark and terrible night might just possibly be coming to an end. One side will win and one side will lose. Even in losing, that side will be a step closer to fulfilling its mission. If TEC loses, it can appeal to SCOTUS for a definitive decision for the nation. Upon defeat, DSC leaders can reorganize and move forward on their self-proclaimed mission of making biblical Anglicans for the twenty-first century until that inevitably runs its course, homophobia fades away and the prodigal sons and daughters return to the loving arms of their ancestral home. So, I think whatever happens in the state supreme court will be for the greater good of both sides. It is just that none of this should ever have happened. It did not have to happen. It is a scandal and a shame, but I know all will be well somewhere down the road.