THOUGHTS ON 

THE SCSC'S DENIAL OF REHEARING

On Friday, November 17, 2017, the South Carolina Supreme Court denied the independent Diocese of South Carolina's petition for rehearing of the SCSC's August 2, 2017 decision that awarded 29 of 36 parishes in dispute and Camp St. Christopher to the Episcopal Church diocese. Find that decision here . At the same time, the court issued another decision, this one regarding Justice Kaye Hearn and DSC's petition for her recusal. Find that Order here .

The second Order, on recusal, is most interesting. DSC had asked that Hearn be recused, or removed, from participating in the court decision on the petitions for rehearing. In addition, DSC had asked that Hearn's opinion in the August 2 decision be vacated, or removed (that would have left a tie decision, 2-2; a tie would have left in place Goodstein's decision of Feb. 3, 2015). In the second Order of Nov. 17, the five justices unanimously agreed to deny the motion of recusal, and added scathing comments about it boot. What is more, the harsh words against DSC came from the justices who were the best friends of the DSC lawyers. All of the justices agreed that the petition had to be discarded because of timeliness:  "Timeliness is essential to any recusal motion. To be timely, a recusal motion must be made at counsel's first opportunity after discovery of the disqualifying facts." In other words, the justices said it was disingenuous of the DSC lawyers to challenge a justice after more than two years in which they could have and did not. They had five months before the SCSC hearing, and twenty-two months afterwards.

DSC had asked that Hearn recuse herself from the court decision on rehearing. She did. The decision on rehearing was made by the other four justices. Two decided for rehearing, and two against. Lacking a majority, the petition for rehearing was denied. So, it would not have mattered even if Hearn had joined in the decision. The request for rehearing was turned down anyway.

In the Order denying recusal, Justice Kittredge and former Chief Justice Toal took the highly unusual steps of speaking out strongly in defense of Hearn even though these two had voted against her on the issue of rehearing. Kittredge wrote, "Justice Hearn has elected, to her great credit, to recuse herself prospectively and not to participate in the resolution of the rehearing petitions."

Toal, famous for her "controlled aggression," could hardly contain her ire at the DSC lawyers. She declared, "While I make no criticism of the respondents' lawyers for filing the motions to recuse and for vacatur, I am disappointed in the tone of these filings. They are unreasonably harsh criticisms of a highly accomplished judge and a person of great decency and integrity. The respondents' legal points could have been made without such unnecessary language."

Thus, just as I suspected, the DSC attempt at character assassination of Justice Kaye Hearn backfired. It actually made all of the other four justices rush to her defense. An attack on one justice was an attack on all of them. So, the DSC lawyers succeeded in unifying the SCSC, for the only time in this whole business. Every one of the other four justices rushed to Hearn's defense.

Here are some opinions I have about the two SCSC decisions of Nov. 17. These are just my views. I am speaking for no one else:

---This signals the beginning of the end of the legal war between the secessionist diocese and the Episcopal Church. The major decisions have been made. It is only a matter of time before the final arrangements are made.

---The Episcopal Church won a stunning victory, DSC a bitter defeat in the state courts. The state courts were the best hope DSC had of winning the legal war.

---The independent diocese's attempt to leave the Episcopal Church with the diocese intact and with the local properties in hand has failed.

---The Nov. 17 decisions clear the way for the mediation to work if it is going to do so. 

---DSC would be wise to make the best deal it can in the mediation and call an end. The federal case is set to go to trial in the next few months. Federal courts have almost invariably sided with the Episcopal Church. If the federal decision comes down entirely against the secessionists, DSC could possibly lose everything and wind up paying even more.

---The 29 parishes in question and Camp St. Christopher will return to the Church diocese.

---The DSC lawyers can delay a final settlement by appealing to the U.S. Supreme Court. There is virtually no chance that SCOTUS would take this case of SC law. DSC can, however, buy time by using this delaying tactic.

---The 13,000 communicants in the 29 parishes and the 104 clergy who abandoned the Episcopal Church had better be considering their futures. The future is very near.

---DSC's vicious attack on Hearn may well have been meant not to change the court decision, but to de-legitimize it in the minds of the faithful. 

---The DSC lawyers, otherwise brilliant attorneys, made several fatal mistakes in conducting their legal actions against TEC. Two of their biggest mistakes involved women. One was to try their circuit court case before Judge Diane Goodstein. Here they were too clever by half. The conduct of the trial and Goodstein's decision were so partisan, the supreme court justices openly ridiculed both. Chief Justice Toal lashed DSC lawyer Alan Runyan. She had wanted a nice, neat little decision to reaffirm her signature All Saints decision of 2009. What she got in the Goodstein decision was a stew of competing issues. As it turned out, Toal was the only justice to defend her All Saints decision. Even Justice Donald Beatty, who had signed the decision, abandoned her. 

Perhaps the worst mistake of all that the DSC lawyers made was the vicious post-Aug. 2-decision attack on Justice Hearn. It unified the court against DSC. Who Knows? Perhaps a more judicious and "decent" approach to Hearn would have produced a decision in favor of a rehearing. My guess is the DSC lawyers went for broke in attacking Hearn. I suppose they must have thought they had nothing left to lose. If so, it may indeed have broken them.

The challenges now facing the two sides are entirely different. In order to remain a viable entity, DSC must salvage what it can from this mess. It has 6 parishes. The DSC leaders' big challenge now is to move as many communicants and clergy out of the 29 parishes to form congregations in exile. This is enormously problematical in Charleston with its scarcity of available properties, even in the near suburbs.

The challenge facing the Church diocese is to find ways to make the best reconciliation possible. No doubt there will be communicants staying with the buildings, however unhappily. The diocese must reach out to them and calm their uncertainties. It must also reach out to the undecideds, the people who are not committed to one side or the other. They must be given every reason to remain with the buildings and return to the Church.

Has it occurred to you that the SCSC released its two orders, against DSC, on November 17? Nov. 17, 2017 is exactly five years after the special convention met in St. Philip's Church, in Charleston, and affirmed the schism that the DSC leaders' had made on October 15, 2012. Five years of waste. What did it accomplish other than a lot of division, hard feelings, pain, and expense? Who lost? Both sides. Who won? The lawyers.