Monday, December 12, 2016



On Friday, December 9, the United States Court of Appeals, Fourth Circuit, in Richmond, Virginia, held a hearing on the Church side's appeal of Judge Houck's decision in the U.S. District Court in Charleston. Houck had ordered a stay in the case pending a ruling by the South Carolina Supreme Court.
Church lawyers originally brought suit in federal court in March of 2013 claiming that Bishop vonRosenberg and not Bishop Lawrence was the rightful bishop of the Episcopal diocese and that Lawrence was in violation of the federal Lanham Act that protects trademarks. U.S. Judge Houck suspended that case pending the state court action. Church lawyers appealed that to the U.S. Court of Appeals which ruled that Houck should have followed the Colorado River principle that required federal courts to adjudicate federal cases with only rare exceptions. A second time, Houck ruled that the two cases, state and federal, were parallel. He deferred again to the state court pending the outcome of the SC Supreme Court decision. It was Houck's second ruling that the Appeals Court discussed on Friday.
Judges Roger L. Gregory, Diana Gribbon Motz, and Richard D. Bennett held the hearing. Attorney Thomas Tisdale spoke for the Church side and Henrietta Golding for the Lawrence side. The hearing lasted 43 minutes with roughly equal time for the two sides, Tisdale first. All three judges asked questions.
The lawyers' arguments were essentially the same as before. The Church asserted that Lawrence could not claim to be the Episcopal bishop after he was removed as bishop and vonRosenberg was installed as the Episcopal Church bishop. The diocesan side pointed out that the state court had issued an injunction preserving the names and rights for the independent diocese.
All three judges seemed mostly interested in understanding how the state court proceedings might impact on the federal Lanham Act. Motz asked the most questions, often going back to how a decision of the SC Supreme Court might impact on the Lanham Act. She wondered that even if the diocese prevailed in SCSC if Lawrence might still be charged in violation of the Act. The basis of Houck's deference to the state courts was his assertion that the cases were parallel. Motz seemed to think that even if they were parallel, the state court could not address the federal Act.
One interesting point arose concerning vonRosenberg's resignation as bishop provisional of the Church diocese. Golding revealed that her side had not made a motion to end the case. Tisdale said that the case continued and that the new bishop would be added as a party.
The judges were primarily concerned with the problem of the interconnection between the state and federal court cases. Colorado River standard holds that a federal court could defer to the state if the cases were parallel. The issue of "parallel" then becomes the sticking point. Judge Houck said they were. The Lawrence side said they were. The Church side said they were not. This issue, it seems, is the one the Appeals court judges must decide before they make a new decision on Houck's ruling.
There is no way to know by listening to this hearing which side the judges favored, but the Church lawyers have good reason to be optimistic.

The first hearing before this court was on January 28, 2014. Judges Motz and Gregory were on that panel. The three judges then issued a unanimous written order on March 31, 2014 directing the lower court to follow the Colorado River standard. If it takes two months this time, we have a decision from the U.S. Appeals court in mid-February of 2017.

What I took away from Friday's hearing was that if the Church prevails in the SC Supreme Court, the federal case will disappear. It will become moot. If the Lawrence side prevails in the SC Supreme Court, there is a good chance the federal case will resume.

A great deal depends on the state Supreme Court decision. Even the federal judges were impatient with the glacial movement of that court. We are all waiting, waiting.