Saturday, December 5, 2015

2nd Edition (Dec. 6)

Will the South Carolina Supreme Court give us a decision on the Church case this month? That is certainly the question on everyone's mind these days. This blog has been barraged with hits in the last few days, I suppose by people seeking information on this. So, for whatever it is worth, here is my take on where we stand now.

At the time of the hearing, September 23, I thought there was a good chance the court would issue its opinion before the end of the year mainly because the Chief Justice, Jean Toal, is retiring on December 31 and she had shown herself to be very much in control of this case. This may well be the signature decision for which she will be remembered in her long career on the bench. Moreover, she had authored the All Saints/Waccamaw decision of September 2009 in which the court recognized the local property for the parish since the diocese had granted the parish a quit claim deed before the Dennis Canon was created. The diocese, led by Bishop Lawrence, did not appeal that decision to the U.S. Supreme Court. The decision still stands as the only final court ruling in the U.S. favoring the local entity in a property dispute with the Episcopal Church/diocese (others are on appeal). Not one other state in the nation has recognized the validity of the All Saints decision which is rarely ever cited in courts around the U.S.

Two major points came out of the Sept. 23 hearing. First, the court dismissed the Goodstein decision of Feb. 3 both for the way the trial of July 2014 had been conducted and for the conclusions of the Order. Second, Toal made it clear the All Saints decision did not necessarily apply to the present case. The Church lawyers had asked the court to act de novo, that is, anew to discard Goodstein's order and write a new decision on the case. That seemed to be the court's attitude.

The court could issue its decision at any time. It is under no time constraint. The gap time between oral argument and written decision varies widely from a year to a few months. This depends on many factors such as the size and complexity of the case.

The Church case is probably the largest, most complicated, most difficult and most important case this court has faced in many years. It involves fundamental issues of constitutionality as well as complicated questions of corporate and property law. No doubt it will require a great deal of work on the parts of the justices and clerks to finish a thorough review and write a proper decision. The justices need to get it right, as opposed to the embarrassing failure of the 2009 All Saints decision. This should not be a rushed-up decision.

As far as time of the disposal of cases goes, a quick survey of the last three months (September 1-Dec. 2) shows us some interesting trends. The court has rendered 28 decisions. Some of them were relatively quick formalities. For disbarment or reprimand of lawyers, 5 cases were settled, all unanimous against the lawyers in questions. For dismissal of certiorari, 8 cases were settled, all unanimous. That means only 15 others cases were settled by written decision. The time gap between oral argument and written decision varied from 1 year to 3 months. The larger and more complicated the case, the longer the time. It is interesting too to look at the agreement/disagreement ratio among the justices. The vast majority of the cases settled were by unanimous agreement. When dissent occurred, it was often from Justices Pleicones and Kittredge. The Chief Justice, Toal and Justice Hearn disagreed only once. This is important given the similarity of their views in the Sept. 23 hearing. 

What about the backlog of cases? The court website lists the cases heard in court and also the cases settled by written opinion. If we look at the cases heard from April 1, 2015, to the time of the Church hearing on Sept. 23, and still pending in the court, we find 45. In other words, there are at my count 45 cases ahead of the Church case just going back to April 1. There would certainly be more before that still pending. Of course some of the ones pending are relatively simple formalities.

All of us are anxious to get a decision  There is an enormous amount riding on the outcome. However, it seems to me at this point there is a better than even chance we will not get a decision soon. Three months after the hearing is not a long time in court life. The average length of time between hearing and decision is 6 months. Given the nature of this case, one can reasonably expect the justices to take longer than that. 

After all, we want the court to get it right. This will be a highly important decision not just for the parties in South Carolina, but for the whole nation. This will be the first time a state supreme court has ruled on the question of the relationship between the Episcopal Church and a local diocese. It will stand as law until and unless it is superceded by a U.S. Supreme Court decision. The South Carolina Supreme Court has on its shoulders a huge responsibility. Not only are we watching and waiting, so is the nation, and to some extent the world.

The court posts its decisions on its website, on Wednesdays. The next posting will be Wed., December 9. The address is: .

SECOND EDITION (Dec. 6).    Chief Justice Jean Toal is receiving a good deal of attention on the eve of her retirement. Here are two articles that may incidentally shed some light on the Church case:

"'Force of Nature,' SC Supreme Court Chief Jean Toal Strode through History," by John Monk, The State, Dec. 5, 2015. .

"Jean Toal: Lawyer, Legislator, Chief Justice-Mentor," The State, Dec. 4, 2015. .

Both articles describe a new book about Toal, Madame Chief Justice, Jean Hoefer Toal of South Carolina. USC Press. 189 p. This is a collection of 23 essays. One was written by Blake Hewitt. Remember him? he was the young man who presented the Church's oral argument before the court. Turns out he was once a clerk of Toal. At the time I wondered why he had been chosen to make the case. Alan Runyan is not the only one who can come up with clever tactics. Another article was co-written by Walter Edgar. One may recall in the Sept. 23 hearing, as Toal shredded Goodstein's decision, she seemed particularly offended by the shabby treatment to which Edgar had been subjected in Goodstein's courtroom. Edgar is almost universally revered as the greatest living historian of South Carolina (he is also a devout and loyal Episcopalian). 

My observation of the hearing, and a brief review of the decisions of the last several months, suggests to me a close working relationship between the two women justices, Toal and Hearn. Of the 28 decisions the justices handed down from Sept 1 to Dec. 2, they were together on 27 and apart on 1. Toal, Beatty, and Hearn were most often together. The other two, Pleicones and Kittredge showed a more independent spirit. As everyone saw in the hearing, Hearn is strongly on the Church side. If the Toal-Beatty-Hearn bond holds up, that bodes well for the Church case. It is inconceivable that Hearn would agree to anything against the Church's interest.

Regardless, one point is absolutely clear. This is Toal's case. She was in control of the hearing from first to last. Toal was the dominant personality in the entire courtroom. She spoke more than anyone. She had obviously prepared very well and had mastered a great deal of the mountain of complicated material in the background. She asked the most questions, made the most comments. One can only assume she dominated the private discussions about the decision too. Even if the decision comes out long after she retires, it will reflect her "force of nature" personality. This will be her last great opinion as Chief, and possibly the most consequential one she has ever handled.