MEDIATION APPARENTLY ENDS

Be sure to read Steve Skardon's posting of today. Find it here . Although, owing to the gag order of mediation we cannot be absolutely sure, all signs indicate the mediation has ended. There were three meetings that apparently accomplished nothing. The last one (Jan. 12) ended without a date to meet again. By deduction, I think the following are probably true:

1. TEC wanted to implement the SCSC decision of Aug. 2, 2017. DSC stalled.

2. DSC used the mediation to play for time. During the mediation, the federal case was on "stay." This delayed the federal case by at least four months. No doubt the original trial date in March will have to be moved back for months.

3. If this is true, which I suspect it is, the question is: Why did DSC stall for time? The only logical explanation is to rally as many people in the 29 parishes as possible to leave the buildings as ongoing congregations. The DSC leaders know well they have lost the 29 parish properties and Camp St. Christopher. This leaves them 6 parishes. They have little future unless they can extract viable congregations from the large parishes as churches in exile. 

(Mark Lawrence's old church in Bakersfield successfully did this. After years of a rising hostility to TEC, the vast majority of St. Paul's left as an "Anglican" congregation, first met in a Lutheran church, then built a new facility of their own as Trinity Anglican Church on the western side of Bakersfield. Lawrence's son Joseph is the assistant rector there. See here .)

Can the Bakersfield model be translated to South Carolina? Probably not; and for a host of reasons not the least of which is that there is no available space in peninsular Charleston.

4. DSC is obviously using every delaying tactic it can find to put off the implementation of the SCSC Aug. 2 decision. It introduced a new lawsuit in the circuit court against the Church diocese and asked the court to put it too on stay pending their appeal to the U.S. Supreme Court (the circuit court judge has not yer responded; TEC has asked for dismissal). Thus, DSC lawyers have used two delaying tactics, one in federal court, one in circuit court. How much more evidence do we need that the DSC leaders are dragging this out as long as possible? Do they not know, or care, about the pain all this is inflicting on people, and the very ones they claim to represent?

The hard, cold fact is that the SC supreme court has ordered 29 parishes back to TEC. This will happen. It is just a matter of time.

There is the problem. It may take much more time. On January 18, 2018, the Church diocese's lawyers filed "Notice of Motion and Motion for Pro Hac Vice Admission" with the circuit court. This was to admit David Booth Beers and Mary Kostel into the litigation, again. They had represented TEC in the circuit court trial of July 2014.


Yet, amid the smoldering ruins all around them, Bishop Lawrence and his inner circle found reason to celebrate. It was for the tenth anniversary of his consecration as bishop (Jan. 26, 2008). Find it here . They presented him with a "banner...filled with superlatives." His devotees showered him with praise. In reality, in the ten years, the diocese lost 44% of its members and a third of its budget (more considering inflation), not to mention its membership in the Anglican Communion. It is losing communicants steadily, no doubt many from terminal "lawsuit fatigue." It has wasted millions of dollars of its people's money in a futile attempt to change history. Along the way, DSC became a fundamentalist-oriented sect on the fringe of the Anglican world. This is reason to celebrate?


So, where do matters stand now in the schism? The SC supreme court decision will be carried out but DSC is delaying this just as long as possible. They have three avenues left: the circuit court suit, the appeal to the U.S. Supreme Court, and the federal court trial. It appears they will use every tactic to drag these out as long as possible. The last one, the federal, can be appealed to the U.S. Court of Appeals delaying matters even more.

Bottom line: Today, I see no reason to be optimistic that the end of the litigation will happen anytime soon. The people who made this scandal seem resolved to carry it to total exhaustion. Sadly, there is much more pain to come before that day arrives.

NEW DEVELOPMENTS 
IN THE LITIGATION

There have been two recent developments in the ongoing litigation between the two dioceses. Background:

---Nov. 6-7, 2017. The first round of mediation. Ended early on second day.

---Nov. 19, 2017. Diocese of South Carolina filed a new lawsuit in the circuit court of Dorchester county claiming payments from TEC/TECSC under the "Betterments Statute."

---Dec. 4, 2017. Second meeting of mediation. Ended abruptly.

---Dec. 15, 2017. TEC/TECSC filed a motion in the circuit court of Dorchester County to dismiss DSC's Nov. 19 lawsuit.


TWO NEW DEVELOPMENTS;

---Dec. 27, 2017. DSC filed "Motion to Establish Complex Case Designation." This asked the court for an order "designating this case as complex." It gives an anticipated time to try the case as three weeks.

     (The chief administrative judge (Goodstein) may choose to designate the case as complex, or may hold a hearing before deciding. If complex status is granted, time is guaranteed, and one judge is assigned to handle the case to completion. See here .)

---January 10, 2018. Release of an order given by Judge Diane Goodstein (made December [27?] 2017), as the Chief Administrative Judge of the circuit court of Dorchester County, designating Judge Edgar Dickson as the judge for the case "for administrative purposes."

(Find the two new documents on the website of Dorchester County First Judicial Circuit Public Index, Case # 2017CP1801909.)


Today, Jan. 12, 2018, the third round of mediation occurred. No information about what happened was released. No date to meet again was announced.

Judging from the ongoing litigation in the circuit court, it is reasonable to assume that DSC is choosing to pursue the differences with the Episcopal Church in the courts rather than in mediation.

It seems that Judge Dickson will be handling the case in the circuit court (there are only two judges in the circuit court of Dorchester, Goodstein and Dickson). . He has two motions before him, one is the Complaint from the DSC claiming "betterments." The other is TEC/TECSC's motion to dismiss the DSC suit.


So, what are we ordinary people sitting on the sidelines supposed to make of all this mish-mash of litigation? We are in our sixth year of this legal showdown. With the exception of Afghanistan, the church war in SC has lasted longer than any American war. Speaking for myself, I feel exhaustion and sadness.

There are two big currents going on now, mediation and litigation. I see not one shred of evidence the mediation is working. I see no evidence that DSC wants it to work. I see plenty of evidence that DSC is finding every delaying tactic possible. From my vantage point, I can only conclude the war will drag on and on. Even if TEC/TECSC gets DSC's frivolous lawsuit thrown out of the circuit court, which I think is likely, DSC can kill time by appealing to the U.S. Supreme Court. By dragging out mediation, as they are doing, they are also delaying the start of the federal trial which will almost certainly have to be moved back months from the original date of March 2018. Mediation has been going on for over three months without the first sign of any progress. In fact, we do not even have a date for the next meeting, or even if there will be a next meeting. However, DSC cannot put off the federal case forever. When that trial finally does occur, DSC stands a good change of losing everything including the 7 parishes now outside of Church trust control. If I were in one of these 7 churches, I would be demanding DSC to cut a deal asap.

It seems to me DSC is fighting to the bitter end in this legal war. They know they have lost the fundamental issue. They are now fighting only a rear guard action delaying the final surrender as long as possible. Their actions since the Aug. 2 SCSC decision have revealed this loudly and clearly. They are throwing up every roadblock and using every delaying tactic available trying to stave off the inevitable. The inevitable will come. They cannot prevent that. And when it does come it is likely to be the end that they made for themselves in their spectacularly bad decisions. The casualties will be the people-in-the-pews who put their faith in leaders who failed them.

ANNOUNCEMENT 

OF CHUCK MURPHY'S DEATH

Announcement was made yesterday of the death of the Rt. Rev. Charles Hurt Murphy III. Find it here . (reportedly died Jan. 8, of brain cancer.)

People who have lived in South Carolina a long time, or who have read my history of the schism will be familiar with the life and work of Chuck Murphy. He played a big and crucial role in the history of the dissolution of the old Episcopal Diocese of South Carolina. 

Murphy became rector of All Saints Waccamaw, Pawleys Island SC, in 1982. He also became an outspoken leader in DSC against TEC's reforms in favor of homosexuals and was the original driving force of the secessionist movement in South Carolina calling and leading the First Promise session in 1997, in the aftermath of the TEC General Convention of that year which conservatives believed opened the door to the eventual blessings of same-sex unions. In 2000 he was a leader in the formation of the Anglican Mission in the Americas and was consecrated a bishop in a highly irregular service in Singapore that included retired Bishop Allison, of SC. AMiA, under the auspices of the Anglican primates of Rwanda and Southeast Asia, initiated the practice of foreign primatial intervention in America. By 2004, All Saints Waccamaw (Pawleys Is.) declared its independence from the diocese setting up the template for secession from TEC. The parish and diocese went to court, all the way to the SC supreme court. In its famous All Saints decision of September 2009, the court recognized the parish's right to independence and the property. This was a crucial precursor to the diocesan schism of 2012.

Murphy had rather tumultuous relationships with other church authorities. He had a falling out with his primate, of Rwanda and left (find it here ). AMiA drifted here and there. Finally, the parish of All Saints held a vote on whether to join the Anglican Church in North America, against Murphy's wishes. He had another well-publicized falling out with Archbishop Duncan, of ACNA (find it here ). The majority of All Saints voted against Murphy. He withdrew with a hundred or so loyal followers and started his own church, the Abbey, in Pawleys Island.

Looking back, few people were more important in the long history of the schism in South Carolina than Chuck Murphy.  

NEW YEAR, OLD SCHISM

It is a new year, 2018.

Best wishes to all of my readers. May you and yours have a wonderful new year.  

It may be a new year on the calendar, but it is an old year in the schism. We are now in the sixth year of the Episcopal Church division in South Carolina. The break occurred on October 15, 2012. In a few days we will start the sixth year of the legal war between the two adversaries. On one side is the Church (TEC) and its diocese, the Episcopal Church in South Carolina (TECSC). On the other is the independent diocese, called the Diocese of South Carolina (DSC). The opening shot of the conflict (the firing on Ft. Sumter) came on January 4, 2013, when DSC entered a lawsuit in circuit court against TEC for ownership of the pre-schism diocese. This scandalous and shameful war has been going on ever since leaving everyone wondering, how much longer?

One of the biggest myths promulgated by the DSC leadership to keep the support of the faithful in the schism was the claim that TEC assaulted the DSC. This forced DSC to go to court to "protect" itself and the parishes against an attempted "hijack" by TEC. This assertion was not true. In fact, documents showed that Bishop Lawrence met with lawyer Alan Runyan and the DSC standing committee all day on November 6, 2012. This was apparently the initial meeting of the DSC leadership to plan an aggressive legal war against the Episcopal Church. On that day, the committee passed a secret resolution authorizing the lawyers of the diocese "to take whatever measures they deem appropriate and necessary to protect the Diocese and its property." November 6th was two and a half months before the Church diocese had a chance to reorganize, and well before the DSC special convention (Nov. 17) resolved to affirm the schism made by the standing committee on Oct. 15. Moreover, the same people who met on Nov. 6, assembled again on November 20. This time, the standing committee passed another secret resolution authorizing the DSC lawyer "to file at a time and place of his choosing a lawsuit on behalf of the Protestant Episcopal Church in the Diocese of South Carolina against TEC for a declaratory judgment." The standing committee resolutions of Nov. 6 and Nov. 20 were to remain secret until the documents were turned over to the Church lawyers in 2013 in the run-up to the circuit court trial. They were known only to the cabal that made them, no more than two dozen people in the leadership of DSC, which happened to be the same bunch who had secretly planned and enacted the schism in October of 2012. The TEC diocese was in limbo after Lawrence announced the schism to Jefferts Schori on Oct. 17, 2012. It did not meet for reorganization until January 26, 2013. In the meantime, TEC had shown no intention of making a lawsuit against DSC. Yet, to this day, DSC continues to repeat the demonstrably false claim that it was TEC that "assaulted" DSC and started the lawsuits. The indisputable fact is that DSC started the legal war in SC. 

And what a war it has been! It has been fought with full fury on five battlefields so far: the state circuit court, the South Carolina Court of Appeals, the South Carolina Supreme Court, the U.S. District Court, and the U.S. Court of Appeals. In a scan of the officially-filed legal actions in all of these courts, I counted 93 separate documents. These would be motions, complaints, briefs, counter-claims, responses, judges' decisions and the like. DSC entered 27, TEC/TECSC made 35, and the judges of the courts issued 31 decisions. In addition, there were numerous examples of hearings, affidavits, subpoenas, and service of papers. There were two highly watched court proceedings, the circuit court trial from July 8 to 25, 2014, and the SC Supreme Court hearing of Sept. 23, 2015. It is no wonder there is widespread "lawsuit fatigue." Only the DSC leaders seem to be oblivious to this debilitating condition. 

So now, at the start of 2018, how close are we to a final settlement? Unfortunately, it is hard to say. As for a peaceful negotiated settlement, there have been at least four opportunities. Not one has shown any positive outcome. The first came in July of 2013 when Judge Diane Goodstein asked the two sides if they would make a mediated settlement. The Church lawyers, Thomas Tisdale, for TECSC, and David Beers, for TEC, agreed but the DSC lawyers refused. That ended the first chance at a negotiated settlement. The second chance came in June of 2015 when the Church side offered DSC a compromise of swapping the diocese for the parishes. The Church would recognize the independence and property ownership of the parishes in return for the legal entity of the pre-schism diocese. DSC leaders flatly rejected that offer. If they had taken it, the litigation would have ended and today the 29 parishes would be on their own. The third opportunity came on November 6-7, 2017, in the first meeting of the federal court-ordered mediation. It ended quickly, early on the second day. Under the court's gag rule, no one involved is allowed to tell us what happened. The fourth chance came at the second meeting of mediation, on December 4. Apparently that session ended tout de suite. Again, under the rules, no one can tell us what happened. All we really know is that the two mediation meetings ended abruptly. It is reasonable to read this as an unwillingness on one or both parts to make a compromise settlement. So, who is at fault for the failure of settlement? All we know for sure is that DSC initiated the lawsuits and refused negotiated settlements. 

It seems to me the two sides are approaching mediation entirely differently. The Church side has made it clear it wants mediation to work out the arrangements to enact the August 2 state Supreme Court decision that returned 29 parishes and Camp St. Christopher to the Church side. The DSC lawyers meanwhile have moved headlong into two new legal actions plainly showing they have no interest in a negotiated settlement. DSC launched a new lawsuit against TEC/TECSC and announced plans to appeal the Aug. 2 decision to the U.S. Supreme Court. Both of these contradicted the point and purpose of the mediation, to make a compromise agreement to end the litigation. DSC shows no sign of a willingness to end the legal war.

________________________________________

WHAT CAN WE EXPECT IN 2018?

There are four legal actions pending:

1. Mediation.

The third round of mediation is scheduled for Jan. 11-12. Given the record of the first two attempts and DSC's attitude, it is difficult to be optimistic about mediation. 

2. New lawsuit. 

DSC's lawsuit of November 19 against TEC/TECSC claiming payments under the "Betterments Statute." This has two main points, demand for payments from TEC/TECSC apparently for the full value of the diocesan and parish properties, and a stay of the suit pending the appeal to the U.S. Supreme Court. 

This is a frivolous lawsuit that has serious issues of standing. In all likelihood, it will be dismissed by the circuit court. It is another DSC delaying tactic.

3. U.S. Supreme Court. 

DSC announced its plan to appeal to the U.S. Supreme Court. DSC has until Feb. 15 for the filing. 

The chance that SCOTUS will accept DSC's appeal is remote. Again, what else could this be but another DSC delaying tactic?

4. The federal case.

The Church side's lawsuit of March 2013 in the U.S. District Court, in Charleston, is pending. In vonRosenberg v. Lawrence, the Church asked the federal court to recognize the Church bishop as the rightful Episcopal bishop of the diocese citing the Lanham Act that protects federally registered trademarks. 

In August, Judge Richard Gergel scheduled this case for trial in March. However, the mediation has put a stay on the proceedings leaving a trial date uncertain. 

Historically, federal courts routinely side with the Episcopal Church and its dioceses against breakaway elements. Chances are strong that the Church diocese will prevail in this case too. If so, DSC could stand to lose all, including the 7 parishes left out of the Aug. 2 decision. 

One factor to bear in mind is that the losing party can appeal a decision of the federal court in Charleston to the U.S. appeals court in Richmond thus dragging out the end even longer. 

____________________________________

The basic settlement has been made by the SC supreme court. It is that the bulk of the parish properties are to be returned to the Episcopal Church. All the rest of it is just sweeping up. However, it seems that DSC is throwing every roadblock imaginable to stave off the inevitable. This is a dangerous gamble. Their chance of winning in the end is slim indeed. Their chance of losing everything is real. Surely, the DSC leadership would be better off cutting the best deal they can sooner rather than later and going on with what they have.

This headlong rush to self-destruction should not be too surprising. One should remember the big picture here. The leaders of DSC believe they are in a great culture war to defeat the forces of secular humanism they believe have taken over the Episcopal Church. They are not ones to give up or compromise in what they see as a war for righteousness. It is right or wrong, with no room in-between. Moreover, DSC is an authoritarian regime where decisions are made at the top and passed down to the clergy and laity. The ordinary people-in-the-pews have no power in deciding what the diocese will do. So far, the DSC leadership has shown only a go-for-broke attitude. 

And look at DSC's record of making consequential errors. Reviewing the history of the five years of litigation, one can see serious mistakes the DSC side made: the one-sided conduct of the circuit court trial that resulted in a universally-ridiculed and rejected decision, the failure to request the recusal of Justice Kaye Hearn early on, the off-handed rejection of the Church's attempts at generous settlement, and the bitter attempt to remove Justice Hearn from the case after the fact. Looking back, all of these were costly errors in judgment. It should not be surprising then that the DSC leaders would continue on in this vein.

DSC has lost the Battle of Waterloo (or Gettysburg). What they are doing now is only a rear guard skirmish in retreat. It is a scorched earth strategy using delaying tactics in all of the courts available. Or, to use another analogy, it is rearranging the deck chairs on the Titanic. Unfortunately, the victims of all of this will be the thousands of trusting souls who put their fates in the hands of misguided and misguiding authoritarian leaders. The end of this demolition derby cannot come soon enough even though there is more pain ahead.

Since the basic conflict between the two sides has been settled, what is important now is the future of the 13,000 communicants in the 29 parishes that will be returned to the Episcopal Church bishop.

_________________________________________

One last thought in reflection on the year 2017:

In the course of the schism, two landmark events occurred in the year 2017. One was the resolution of the fate of the 36 parishes in question. The Episcopal Church regained control over 29 of them.

The other great occurrence of the year was really more fundamental to the schism. It was the collapse of DSC's claim of God's favor. All along, the DSC leaders promoted the assertion that since DSC was the "orthodox" side, God naturally favored them. For instance, soon after the schism, as he was trying to raise more money to pay lawyers, Bishop Lawrence called the Church side "the spiritual forces of evil" (find it here , p. 2, lower left). In the course of the litigation, DSC spokesmen touted each and every victory as a sure sign of God's favor. They had many victories in the four and a half years between the start of litigation, Jan. 4, 2013, and the SCSC decision of Aug. 2, 2017. Perhaps the DSC leaders' most unrestrained claim to God's will came on Feb. 6, 2015, the day after Judge Goodstein's sweeping ruling in their favor. Lawrence issued a letter to the diocese (find it here ) including lines such as: "Most grateful for the Might Hand of God throughout the whole ordeal...our God-given dreams and missions...grateful for God's grace, and seeking that God's love 'be poured into our hearts through the Holy Spirit which has been given to us.'" The Rev. Jim Lewis also posted a letter (find it here ): "It is God's grace that has brought us to this day. Legal counsel has affirmed that they have experienced God's grace at work in this litigation from start to finish."

Discerning God's will is always risky business. Human beings cannot know the mind of God. It is far beyond human comprehension. Even our language is inadequate to describe God since it is constrained by the bounds of human self-consciousness. We can know from scripture, tradition, and reason the general moral and ethical guides to human behavior. We know what God expects of us. Beyond that, speaking for God and saying this or that is God's will is beyond presumptuous. Adam's original sin was to put himself in the place of God. Daring to speak for God is dangerously close to Adam's primal error. So, people need to be very careful when they claim to interpret God's will.

This makes three great failures the DSC leaders delivered to their faithful after the schism; and they all became clear in the year 2017:

1-The first was not gaining the independence of the 29 parishes that now are to be returned to the Episcopal Church.

2-The second was not removing the pre-schism diocese from the Episcopal Church legally and with the assets in hand. The SCSC declared the Church diocese, and not DSC, to be the heir of the pre-schism diocese.

3-The third great failure of the DSC leaders was in presuming to claim divine partiality. They led their people to believe God would guide and defend the independent diocese, even in court.

By claiming God's will in the court actions before Aug. 2, the DSC leaders painted themselves into a corner. After the SCSC decision of Aug. 2, and reaffirmation on Nov. 17, in favor of the Episcopal Church, to be consistent they had to make one of two choices. On one hand, they could say that God willed the return of the 29 parishes to TEC. On the other, they could say that God does not control the court decisions. They cannot have it both ways, that some legal decisions are God's will and some are not. No one in his right mind would dare to decide which legal actions were sanctioned by God and which were not. (Do not misunderstand what I am saying here. I am not claiming that God is on either side. I am simply pointing out that the DSC leaders have fallen into a trap of their own making by declaring God's will in the legal actions before Aug. 2.) What the DSC leaders have done since Aug. 2 is to fall silent about God's will.

To be blunt, the DSC bishop and his lawyers failed to deliver what they promised their people in the schism. 

Discerning the right course of action is the most serious of all the considerations that the 13,000 communicants in the 29 parishes have to confront in the near future. The DSC leaders' claim, or at least implication, to their faithful followers that the schism was God's will, has now been shown to be hollow. This is a great deal for the 13,000 communicants in the 29 parishes to process, but they must do it, and sooner rather than later. The harsh, stark reality that 2017 brought out into the open was that the schism in South Carolina has been a failure on many levels.

Let us return to the question of what the year 2018 will bring for the schism. Last year brought the turning point and beginning of the end of the litigation. Today it appears most likely that the state court actions will become exhausted this year as the circuit court dismisses DSC's nuisance lawsuit and the U.S. Supreme Court denies "cert." This leaves the federal case ongoing. It appears mediation will fail leaving the federal court to proceed with a trial, probably in the year 2018. The decision there can be appealed to the U.S. Court of Appeals and that could easily move into 2019 and perhaps even beyond.

Most regrettably and most unfortunately, reason forces me to conclude that at this point it seems likely the legal war between the two sides will drag on beyond this year.

So, what next? The next scheduled event in the ongoing litigation is the mediation session set for January 11-12, 2018. This will be an important meeting. If it comes to nothing, as the first two tries did, I would see no reason to hope that mediation will settle the legal issues. Three strikes and you are out. No mediation settlement would mean all the remaining legal issues will have to be settled in the courts.


[NOTE. Agree? Disagree? Information to share? Ideas for new blog posts? Please send them along in emails. I value every one. This blog is widely read--115,000 "views" in the year 2017.]