TOAL AND HEARN

DEMOLISH GOODSTEIN

Preliminary report on the South Carolina Supreme Court hearing of Sept. 23, 2015. The following is my initial observation of the hearing. I will have a lengthier report later.

Goodstein's Order is dead.

Chief Justice Jean Toal and Justice Kaye Hearn destroyed it by simply pointing out its fatal flaws even without having to drag it out of the lawyers. Toal spoke the most, asking 24 pointed questions. Right off, she slammed Goodstein's decision: "unbalanced," "forbade" one side to give testimony, supposedly followed neutral principles then found the Episcopal Church to be congregational, "How did this happen?" "how was the finding made that this is a congregational church?" Toal also said "it disturbs me" that the circuit court trial went in "one sided way," "they [TEC/ECSC] were completely stopped [in giving testimony]." While returning time and again to denounce the circuit court, Toal also weighed in on the All Saints/Waccamaw decision (which she herself wrote in 2009, giving property to local parish). She declared "There is a big difference between this and All Saints." Toal went on to talk at length about the 2009 decision pointing out the differences between it and the matter at hand. She refused to apply the earlier decision to this case. The chief justice also wondered how Mark Lawrence had the authority to do what he did. She said, how could he give the quit claim deeds after he had made an oath of loyalty to the Episcopal Church? "I have a big question about the bishop's authority," she declared. When the topic of federal judge Houck came up, she seemed a bit annoyed by his passing the buck to the state court yesterday. She mused aloud about whether they had the authority to rule on the Lanham Act. Personally, I was most impressed by Chief Justice Toal. She was well informed, sharp, inquisitive, and knew how to go straight for the important issues at hand. I could not help but think of the contrast to Judge Goodstein. 

Justice Hearn also played a large role in the hearing, asking twenty-six questions overwhelmingly favorable to the Church side and critical of the independent diocese. In my opinion, she made the case for the Church side better than the lawyer (Mr. Blake Hewitt) did. She declared right off: "This [TEC] is a hierarchical church." The All Saints decision she swept aside (in front of the author) as "an outlier" as she pointed out that not one other state in the nation had accepted it. She too eviscerated Goodstein's decision, for instance, telling Runyan to his face that he raised twenty-five objections during the testimony of Church witness McWilliams: "You tried so hard to keep all the evidence out." Some other points Hearn drove home: DSC had its own Dennis Canon years before TEC adopted the Canon; the Dennis Canon trumps state law; DSC cannot take property away from the national Church; DSC incorporated in 1974 "under" the Constitution and Canons of the Episcopal Church; TEC recognizes Charles vonRosenberg as the rightful bishop, so why should not we? Runyan seemed flustered by Hearn's sharp questions and comments and only mumbled his stock answers in reply. It was very clear to him and everyone else that this was not Judge Goodstein's courtroom in St. George, far from it. He was no longer in control. He certainly was not in control of justices Toal and Hearn.

Justice Kittredge also asked numerous questions. He too seemed incredulous at the idea the Episcopal Church could be "congregational." He said if TEC were hierarchical, how could DSC act as it did? How indeed. On the Lanham Act and trademark infringement, he seemed to have no hesitation about ruling on that. At one point he asked Mr. Hewitt: what does TEC/ECSC want from this court? The lawyer said: recognition that ECSC is the true diocese, recognition that the property belongs to TEC and ECSC, and the "marks" of the diocese. Kitteredge seemed to take it all in. Justice Beatty asked only one question. Justice Pleicones asked a few, the most important of which declared that the Dennis Canon was in the governance of the Episcopal Church.

Thus, it seemed to me Chief Justice Toal had great problems with the Goodstein decision, both in what it said and the way it reached what it said. Barring evidence and witnesses from one side and not the other, which Toal declared Goodstein had done time and again, is a prime reason for a higher court to throw out a lower decision. My feeling was that Toal was leading in that direction. Judge Hearn had great problems with the entire case of DSC. Obviously she had already thrown out Goodstein's Order in her own mind. On the other hand, I heard very little of support for the DSC side. Not one justice defended Goodstein's ruling. A lackluster Runyan did an unconvincing job.

My initial reaction is that the hearing was a big victory of the Episcopal Church and the Episcopal Church in South Carolina. Of course, one must not jump to conclusions. The justices could still decide to uphold Goodstein for various reasons not obvious to us today. At any rate, I think the Church side should feel very well about today and the independent side should be worried.