THE STATUS OF THE LITIGATION,

SEPTEMBER 5, 2017

The children are back in school, Labor Day is over, and summer is winding down. This is an appropriate time to stop and take stock of the status of the schism, particularly of the legal issues. How do legal matters stand now and what can we expect in the future?

There are three separate but interrelated aspects of the litigation going on between the two sides, the Episcopal Church (TEC) and the Episcopal Church in South Carolina (TECSC) on one hand and the independent Diocese of South Carolina (DSC) on the other. The three are: 1-state court, 2-federal court, and 3-mediation. Let's take each one separately.

First, let me remind everyone what I offer here is my own opinion as an independent blogger on the Internet. I am not a lawyer. I am not offering advice. I am not representing any religious entity.

1. STATE COURT.

DECISION OF THE STATE SUPREME COURT.

On August 2, 2017, the South Carolina Supreme Court (SCSC) rendered a majority decision largely favoring TEC/TECSC.

The decision dealt with two areas, property and principles.

Property. 

---The majority of justices (Pleicones, Hearn, and Beatty) ruled that 29 of the 36 parishes in question must be returned to the trust interest of TEC/TECSC.

---The majority (P, H, B) said Camp St. Christopher belongs to TECSC.

Principles.

---The majority (P, H, B) said that TECSC is the successor of the pre-schism diocese.

---The majority (P, H, B) said TEC is hierarchical.

---The justices also said that the federal court must decide the applicability of federal copyright law. However, a majority (B, Kittredge, Toal) agreed that DSC had registered the "marks" of the diocese under state law.

PETITION FOR REHEARING.

On September 1, 2017, DSC submitted three petitions for rehearing with the SCSC:

   1-Petition for Rehearing. General reiteration of the points made in the circuit court and in the SCSC. Claimed the Aug. 2 decision erroneous on neutral principles and the Dennis Canon.

   2-Petition for rehearing from Church of the Good Shepherd (Charleston). Petition from one parish; argues against Dennis Canon.

   3-"Motion to Recuse the Honorable Justice Kaye G. Hearn from Participation in the Rehearing Petition; Motion for Vacatur of Opinion of Justice Hearn and Failing That, Motion by Non-Prevailing Parishes and the Diocese to Vacate All Opinions in this Matter; and Motion for Consideration of this Motion by the Full Court and for Other Relief." This asked the full court to vacate (set aside) Hearn's opinion in the August 2 decision. Also asked that Hearn not be permitted to participate in the rehearing. In the alternative, asked the Court to discard the Aug. 2 decision and hold a new hearing. The basic argument against Hearn was that she was a member of a TECSC congregation and of the Episcopal Forum and therefore had a built-in bias in favor of one party.

EXPECTATION.

It seems to me the SCSC will either ask the TEC/ECSC lawyers to submit a response to DSC's three petitions for rehearing, or will deny the petitions for rehearing. If they deny, this will end the litigation in the state court. Upon denial, DSC lawyers may appeal the case to the United States Supreme Court. 

The SCSC is under no time constraint to make a decision about rehearing. Remember it took the Court 22 months to render a written decision.

2. FEDERAL COURT.

The case of vonRosenberg v. Lawrence is active in the United States District Court, in Charleston. Judge Richard Gergel is presiding having taken the case in late July. The federal suit was originally filed on March 4, 2013 when Judge C. Weston Houck took the case. Houck died in July of this year.

In this suit, the TECSC bishop, vonR, charged L with violation of the Lanham Act, a federal law protecting copyright. TEC holds the national copyright on its names. TECSC asked:

 ---DSC to stop using TEC's marks, L claiming to be an Episcopal bishop, and DSC claiming to be the Episcopal diocese.

 ---that vonR be reimbursed for costs and lawyers' fees.

 ---L to file a compliance report within 30 days.

 ---that L make an accounting of all profits made under the false advertising.

In August of 2017, TEC joined the suit alongside TECSC over the objections of DSC.

EXPECTATION.

Judge Gergel has ordered the "Discovery" phase to end in December of 2017. This is the time the lawyers collect the documents, take depositions and get ready for the trial.

Gergel has set the trial for March of 2018.

Gergel ordered mediation on August 30, 2017.

3. MEDIATION.

On August 30, Judge Gergel, in agreement with the two parties, ordered a mediation. He appointed senior U.S. District Judge Joseph Anderson as the mediator.

According to the mediation section of the U.S. District Court rule book:

 ---the two sides are required to take part but are not required to reach an agreement. All talks are confidential.

 ---talks must begin by September 29, 2017.

 ---talks must end by October 29, 2017.

 ---if agreement is reached, the participants will put the terms in writing and sign the document. 14 days may be allowed for the preparation of the agreement document.

 ---if no agreement is reached, the mediation ends and the court litigation continues.

 ---litigation continues during the mediation.

All issues in both state and federal courts are on the table for consideration. This has been confirmed by the lead lawyers on both sides. Any agreement would presumably settle all issues in contention between the two sides.

Both sides have avoided or delayed the news of the mediation, for reasons unapparent. The news was revealed on September 1 in the DSC lawyers' request for a time extension before filing their petitions for rehearing. As an argument for delay, they described the mediation and gave the Aug. 30 court document ordering the mediation. This blog received the lawyers' request to the court and posted the news of the mediation on the Internet. The response was electric. It was a common topic of discussion in church last Sunday. Yet, the officials on both sides ignored the news. They neglected even to announce there had been an order given for mediation.

Finally, on September 4, TECSC posted the news of the mediation in an article on their legal news blog page.

As of this writing, DSC has refused to post any news of the mediation and none of its allied websites and blogs has mentioned the mediation. This raises a question of the reason for ignoring what everyone now knows. The fact of the mediation is common knowledge; and why DSC would want to pretend to ignore what everyone knows is a mystery to me. 

EXPECTATION.

The imminent mediation has the potential of finally resolving all legal disputes between the two sides. This would end all court litigation. On the other hand, the talks could come to nothing.

The talks in the mediation will be private and confidential. We will not know the results until either an agreement is produced, or the mediator announces a failure. As I understand it, once an agreement is produced, it is final. The whole idea of mediation is to reach an agreement. The two sides will feel pressure to come to terms. Agreement presumes compromise. Neither side will get everything it wants. There will have to be give and take. The fear of giving too much is perhaps the cause of so much anxiety these days. Neither side wants to give away too much. This schism, this litigation has gone on for a very long time and people have deep emotional investments that cannot be simply discarded. This is likely to be another hard experience in the history of the schism. If done right, though, it could provide an enormous relief.

Going into the mediation, TEC/TECSC is in the stronger position. It has won in the SCSC and holds a promising position in the federal court. Since the SCSC majority declared that TECSC is the successor of the pre-schism diocese and TEC is hierarchical, the federal court will be under influence to favor the TEC side. Essentially the federal court will have to decide which of the two dioceses is entitled to the legal rights of the old diocese. It appears to me that chances are good for the Church to prevail in federal court.

The question arises then, if mediation means compromise, what can each side reasonably give up to the other? That is the fundamental question, and that is one only the lawyers and the diocesan officials can ultimately resolve. All negotiations will be confidential, that is, in secret. If a deal is reached, it will be written up and signed, and then released to the public. As I understand it, that will be final, and it cannot be undone. Thus, people on both sides will have to trust their lawyers and bishops to reach to best deal they can. Now is the time for prayer and fasting, not after it is done.

No doubt every communicant on both sides will hold what they believe to be non-negotiable and negotiable items. I think it is appropriate for church members to communicate their thoughts to the diocesan authorities now. Now is the time. It will not be appropriate once the mediation begins. Once talks start, the public will be excluded, as they should be. At that point, everyone will have to wait patiently to learn either what the settlement is, or that there is no settlement.

One should bear in mind that the court litigation goes on during the mediation. One great unknown variable is the SCSC. At some time it will have to respond to the DSC's three petitions for rehearing. If they agree to a rehearing, that could mean months more of dealing in the state court. SCSC has no time limit, but the mediation does. According to the rule book, mediation talks must finish in 30 days.

Mediation is going to happen. It is an established fact. Now is the time for church members to make their thoughts about a settlement known. In a few weeks, the mediators will be "locked down" in silence. They will either make a final settlement or not. 

Mediation has great potential. At this point, however, only mediation is a certainty; and the outcome of it is entirely uncertain.