THE MORNING AFTER

Yesterday, September 1, 2017, was a blockbuster day in the history of the schism in South Carolina. I am still trying to process the news and sort out what it all may mean. Here are the three big events of yesterday:  1-news arrived that the two sides of the schism have agreed to mediation under a federal judge, 2-the South Carolina Supreme Court denied the independent Diocese of South Carolina's lawyers' motion for an extension of time before filing a Petition for Rehearing, and 3-request came from DSC lawyers that Justice Kaye Hearn be recused retroactively from the case and her opinion of August 2 be vacated. This is a lot to absorb. Let's look at each.

1. MEDIATION. We learned in the DSC's motion of September 1 to the SCSC that Judge Richard Gergel, upon agreement of the two sides, has ordered a mediation process under another U.S. District Judge. I have searched the websites of both dioceses and have found not a word about this. So far, the Episcopal Church in South Carolina has posted nothing about yesterday's events. The Diocese of South Carolina has posted a great deal about yesterday but nothing, that I have found, about mediation. Obviously both sides are keeping this quiet. The only way we know about it is from the DSC lawyers' court paper of yesterday. The lawyers used the mediation news as a reason for a time extension. 

I am not a lawyer or legal expert, but it stands to reason that mediation means the two sides will engage in give and take in private trying to reach a mutually agreeable settlement. According to yesterday's court paper, this will cover all issues both state and federal. This kind of talking is best done out of the public eye.

In thinking of examples in history of negotiations in private and in public, the best examples that come to mind are these. An excellent case of private was the constitutional convention of 1787. The states' representatives went into the hall in Philadelphia and closed the windows in spite of the stifling heat (this was long before air conditioning or even electric fans), to hammer out what must be the greatest political document in the history of the world. Without a leak (unimaginable today), they hashed out what came to be a masterpiece, flawed to be sure, but still a monumental work of compromise. It has lasted very well.

On the other hand, arguably the worst case of negotiation was the Versailles peace conference of 1919. Out in public, in the glare of the world's attention, the victorious powers of the World War cobbled together what must be the worst peace treaty in history. The French on one side demanded virtual destruction of Germany while the Americans wanted a gentle peace. President Wilson gave in to all sorts of vindictive demands in order to get everyone to agree on his imaginary panacea, the League of Nations. Twenty years later, through no small fault of the Versailles Treaty, the Second World War began. It made the First one look like a warm-up. The peace treaty of 1919 has gone down in history as the worst imaginable.

The moral of the story is:  negotiations are best done in private. And, that is what I think we should respect here. As mediation begins between the Episcopal Church side and the Diocese of South Carolina side, I think we should leave it alone and await the outcome. Outside speculation along the way is likely to do more harm than good. I suggest we all set this issue aside and await the mediation's result.

(The court document describing the mediation is in "Second Motion for Enlargement of Time to File Petition for Rehearing," Appellate Case No. 2015-000622. September 1, 2017. The document can be found here .)

2-DENIAL OF TIME EXTENSION. On yesterday, the DSC lawyers asked the SCSC for a time extension to September 18 before submitting their petition for rehearing. The SCSC immediately denied the extension. I have seen no reason for the denial. We do know that the lawyers had already been granted a 15 day extension, to Sept. 1.

Upon denial, the DSC lawyers then rushed to turn in, before the end of the day, three petitions for rehearing to the Court. One dealt with only one parish (Good Shepherd, of Charleston). Another was a petition for rehearing apparently restating their earlier arguments to the court. The third paper was a request that Justice Kaye Hearn be recused from the case and her opinion be vacated, or voided.

I do not know, but I am guessing the Church lawyers will be given the same time period the DSC lawyers had, 30 days, in which to file a response. They will ask the justices to deny a rehearing. This would leave the Church side with the August 2 decision that returned 29 parish properties to the Church.

3-REQUEST FOR RECUSAL OF JUSTICE HEARN AND VACANCY OF HER OPINION. Yesterday, the DSC lawyers submitted a voluminous paper holding that Justice Kaye Hearn should be recused, or removed, from the case, and that her part in the August 2 opinion be vacated, or set aside. Apparently, the basis of the request was that she was a member of a congregation in the Church diocese and of the Episcopal Forum, and therefore could not a fair and impartial judge in the matter at hand. If the DSC lawyers get this and Hearn's opinion is set aside, the SCSC's August 2 decision would fall to a 2-2 tie. That would leave Judge Goodstein's Feb. 3, 2015 Order in place as the final decision. One will recall that this decision gave everything to the independent diocese. Thus, by removing Hearn from the case in the state supreme court, DSC would wind up with total victory in the state courts.

From this layman's viewpoint, this is a weak tactic that is not likely to work. The biggest problem with it is that the DSC lawyers, who knew all about Hearn all along, apparently did not mention recusal before this point. I have seen no evidence that anyone in authority ever asked Hearn to recuse herself before the hearing of September 23, 2015. The justices on the court and the DSC lawyers did not ask Hearn to step aside before the hearing. In light of this, how can they ask her to recuse herself retroactively? It does not make sense to me.

The whole thing has an air of desperation. It appears to me to be throw in everything but the kitchen sink and hope something works strategy. In my view, it is not a sensible move and is not likely to impress the state supreme court justices.

In my opinion, the idea that Hearn could not be impartial because she was an Episcopalian and member of the Forum is not convincing. That is like saying Robert Mueller is a Republican (he is)---President Trump is a Republican---Mueller cannot be an impartial investigator in Trump's background. No one would believe that. Besides, the strongest defense of the Episcopal Church position in the SCSC did not come from Hearn. It came from Justice Pleicones. Moreover, the deciding vote did not come from Hearn. It came from Chief Justice Beatty. So, any assertion that she made all the difference in the outcome of the decision is not supported by the known facts.

Where does all this leave us now? It appears to me that the legal struggle between TEC and the breakaway diocese has moved onto two tracks, private mediation and public litigation in state and federal courts. I imagine the SCSC will reject DSC's petitions for rehearing and leave their August 2 decision standing. I suppose the federal court will continue moving along with an eye toward a trial in March of 2018. However, talks will soon begin between the two sides under the guidance of a federal judge. We can have no way of knowing what is going on there, and we should not know. Sometimes it is best we do not know the future; and that is the case here. So, let us wait and see what comes of the mediation.