Sunday, May 22, 2016


We are all anxiously awaiting the South Carolina Supreme Court ruling in the Episcopal Church case. Steve Skardon recently reminded us of this in his posting of May 18 at .

Tomorrow, May 23, marks eight months since the hearing of the Church case in the South Carolina Supreme Court (Sept. 23, 2015). Six months is the average length of time between hearing and written decision in that court. Six months is average, meaning many cases run much longer. I have seen written decisions as much as 13 months after the hearing. Given the size and complexity of this particular case, it could even be more than 13 months to get a decision.

The justices take a break from hearings in the months of July and August. However, the court continues to issue written decisions in that time. Last year, more decisions were handed down in July (18) than in another other month. August had the next highest at 13. In short, there is no way to predict when the court will publish its decision on the Episcopal Church case.

Several factors make me think this will be a protracted wait. In the first place, the case before the state supreme court is an appeal of a circuit court decision, Judge Goodstein's "Final Order" of Feb. 3, 2015. First and foremost, the high court will have to address that Order. As we have seen, the justices all but threw Goodstein's Order out the window in the hearing of Sept. 23. Chief Justice Toal and Justice Hearn demolished it on both procedures in the trial and findings in the Order. Not one other justice arose to defend Goodstein's Order. By all appearances, it is dead.

I imagine if the court were going to affirm Goodstein, they would have done so already. Too, if they were ordering the case remanded to her for retrial on certain directions, they probably would have done that too. My guess is the court is following TEC's request of acting de novo, or making a whole new decision. That will require a great deal of time. If the court is split, the minority will be allowed to publish a dissenting opinion either as a group or individually. They have to be allowed time to do this.

In all probability, the justices made their decision in this case in early October of 2015, around two weeks after the hearing. Then, the real work began of writing the majority and minority opinions. No doubt the clerks and the justices will spend a great deal of time on this particular case. My guess is that former Chief Justice Toal will dominate this process as she did the hearing. After all, she has a big stake in this protecting her 2009 All Saints decision.

The circuit court trial in July of 2014 produced a colossal amount of recorded material. The trial lasted 14 days. The transcript ran to 2,523 pages. 61 witnesses took the stand. A whopping 1,342 pieces of written evidence were officially entered into the trial record, some running to hundreds of pages. The total number of pages of all the evidence would run into many thousands, I would guess at least 20,000. This is an enormous amount of material to reexamine. It was by far the largest court proceeding in the nation in any one of the five cases where the majority of a diocese voted to secede from the Episcopal Church.

Too, this case deals with some extremely important and fundamental issues of American constitutional and local law. First of all is the First Amendment requirement of the separation of church and state. A government court is absolutely forbidden from interfering in the internal structure of a religious institution. The basic question here: Is the Episcopal Church hierarchical or congregational in nature? TEC claims hierarchy. DSC claims the opposite. Goodstein ruled very clearly that TEC is congregational. The vast majority of courts have ruled that TEC is hierarchical.

If the Court is going to rule de novo, it has to decide some complicated and difficult issues. For starters, the justices will have to decide whether Goodstein conducted a fair trial, followed neutral principles properly, and arrived at reasonable and justifiable conclusions. In my view, Goodstein did none of this, and I suspect the justices have the same view. Then, a huge factor hanging over the court is its own 2009 All Saints decision. In that, written by Chief Justice Toal, the Court ruled that All Saints parish had legally separated itself from the diocese and that the Dennis Canon could not be applied in this case because the diocese had given the deed to the parish long before the Dennis Canon and the deed holder (the parish) had not made a trust for the diocese or national Church as required by state law. SC law required a deed holder to establish a trust; a trust could not be created by an external interest, only by the title holder. In the new case, the Court must decide on the relationship between the Church and the diocese as well as the function of the Dennis Canon. To be consistent, the Court will have to say that any parish holding its own deed before the Dennis Canon in 1979 and not establishing a trust for the diocese/national Church must be allowed to keep its own property, just as All Saints did. The most perplexing problem for the Court will be to figure out the legal relationship between the Episcopal Church and the Diocese. To say the least, this will not be easy, but it must be done.

South Carolina is the first state in the nation in which the state supreme court is deciding on the legal ties of Church and diocese. There is no precedent for the justices to follow. Of the five cases of seceding dioceses, two (Pittsburgh and Quincy) cases went to state supreme court only to be rejected in favor of lower court rulings. One other, San Joaquin, is now on appeal to the California supreme court, but it is unlikely that court will agree to accept it. The state supreme court that came closest to a decision was Texas.

In 2011, a local state court issued a decision entirely in favor of the Episcopal Church diocese of Fort Worth. The judge found the Church to be hierarchical and the diocese to be subordinate to Church law. This was the opposite of Goodstein's 2015 decision. The breakaway diocese appealed directly to the Texas state supreme court that agreed to take the appeal. That court held a hearing on 16 October 2012 and issued a written decision on 30 August 2013. That is ten and a half months between hearing and written decision (in SC this would put the written decision in early August 2016).

The Texas case took a long time, even though it was a much simpler matter involving a much smaller proceeding. The TX supreme court split 5-4. The majority issued a 13-page order overturning the lower court decision and remanding the case to the lower court for new proceeding under neutral principles. The majority decision was contradictory. It said a diocese had to accede to TEC's Constitution and Canons then said a diocese was free to organize as a separate corporation under state law free to govern itself. Thus, state property law would trump the accession. In a strange twist, the majority said the diocese could revoke the Dennis Canon because there was no provision in the Canon preventing it from being revoked. Under this pretzel logic, any provision of a contract could be thrown out at will by one party unless there were an explicit clause in the provision that it could not be revoked. This is strict construction in the extreme and strains common sense. The whole idea of a contract is to bind two parties together in a legal arrangement that cannot be revoked by one party alone. The irrevocable nature does not have to be expressly written in the contract; it exists in the very form of the contract. The majority directed the lower court to rehear the case under guidelines favorable to the secessionist side. The minority of four justices wrote a dissenting opinion, of 15 pages, holding that the case was not appealable to the state supreme court. This, of course, questioned the motives of why the majority would take the case in the first place.

The case went back to the lower court where the same judge issued a terse one-page decision reversing his first judgment. His last sentence practically called for an appeal. Sure enough, the Church side appealed to the state court of appeals. The recent hearing there showed some leaning toward the Church side, but one cannot tell at this point how this case will wind up.

The point for SC is that Texas does not provide a guideline. In fact, not one of the four other examples of secession have been decided in a state supreme court.

In the end, the SC supreme court has to be mindful of the significance of its work. This decision will define for the nation the relationship between Church and diocese until and unless it is overturned by the court above it, the U.S. Supreme Court. It will tell us whether a diocese has the right to secede from the Episcopal Church and keep the legal rights and property of the old diocese. This is not a question of religious freedom. Anyone can leave any denomination. The question is whether a group can leave and take with them the rights and assets of the previous arrangement.

Here are my best guesses on what has happened/is happening:
---the SC supreme court discarded Goodstein's Order
---the Court is writing a new decision
---the longer this goes on the more it favors the Church side
---the longer this goes on, the more it indicates a split decision with long, different opinions being written by the two sides
---former Chief Justice Toal has dominating the decision
---we are in for a long wait