Thursday, February 15, 2018



The Episcopal Church in South Carolina has just announced (find it here ) that on February 14, 2018, Judge Richard Gergel, of the United States District Court in Charleston, lifted the stay in the case of vonRosenberg v. Lawrence. The stay, or suspension, had been in place since August 30, 2017. This means the case in federal court between the two rival dioceses now resumes with proceedings of discovery moving toward a trial.

The stay had originally been imposed at the start of the mediation process. Mediation was first ordered by Gergel on Aug. 30, 2017. All issues in state and federal courts were to be on the table for negotiations with an eye toward a settlement. Such an agreement would have ended all litigation and brought peace between the warring sides. 

The mediation meant that a stay has been in place for five and a half months thus holding back the proceeding of the federal case for that length of time. The mediation process was to be confidential. This meant all participants were to keep the proceedings secret.

In the mediation, the first meeting between the two parties was on Oct. 4, 2017. This was an organizational session. It set up the first working conference between the two sides as Nov. 6-7, 2017.

The two parties met on Nov. 6, then abruptly adjourned at 10:45 on Nov. 7.

They met again on Dec. 4, 2017 only to quit suddenly.

The third meeting was on Jan. 12, 2018. It too adjourned abruptly. Obviously nothing substantial came of the three mediation meetings.

On January 25, 2018, the two parties submitted a "Joint Status Report" to Judge Gergel. It was made public since it was a submission to the court. Bishops vonRosenberg and Adams, on the Church side, and Bishop Lawrence, on the independent side, agreed that mediation would continue but that no progress had been made. They did reveal that, on Jan. 23, the Church side had submitted a proposal of a protocol for Bishop Adams to meet with the 29 parishes in question to discuss "settlement." According to this Report, Lawrence had until Feb. 2 to make a response to the proposal. We cannot know the response because it is covered by the cloak of secrecy surrounding the mediation. 

However, given the fact that Gergel lifted the stay 12 days later, it is reasonable to assume there was no progress in the idea of discussions for settlement. Apparently, Adams will not meet with the 29 congregations.

Thus, it seems that the mediation has ended for all intents and purposes if not in name. This means three avenues of litigation remain. 

1---DSC's "Complaint" of Nov. 19, 2017, in the (state) circuit court of Dorchester County. This suit demands payments from TEC/TECSC under the "Betterments Statute." In this, DSC gives tacit recognition that the 29 parishes belong to the Episcopal Church and its diocese but that these must pay for the "improvements" the occupants made on the properties.

DSC asked for a jury trial. They also asked the case to be put on stay pending a response from the appeal to the United States Supreme Court.

In response, TEC/TECSC filed a motion in the circuit court to dismiss DSC's Complaint.

The case was assigned to Judge Edgar Dickson, rather than Diane Goodstein. As of this writing, there has been no response from the court to the Complaint or to the Motion to Dismiss.

2---DSC's appeal to the U.S. Supreme Court, filed on Feb. 9, 2018. This asked the court to consider the SC supreme court decision of Aug. 2, 2017, that recognized TEC/TECSC control over 29 parishes and Camp St. Christopher and judged TEC to be an hierarchical institution.

Interestingly enough, the 7 parishes that the SCSC allowed to remain outside of the Church trust control officially informed the U.S. Supreme Court (find the document here ) that they were not parties in the appeal:

Christ the King, Pawleys Island
St. Matthew's, Darlington
St. Andrew's, Mt. Pleasant
St. John's, Florence
St. Matthias, Summerton
St. Paul's, Conway
Prince George Winyah, Georgetown

What are we to make of this? This says to me that the 7 parishes lack confidence in the appeal to the U.S. Supreme Court. If they believed DSC would win, surely they would have helped their side. It seems to me the 7 are protecting themselves, a smart move.

3---vonRosenberg v. Lawrence. This is the federal case that was initiated in March of 2013. It is now before Judge Gergel in the U.S. District Court, in Charleston. One will recall this case has had a tumultuous history. Judge C. Weston Houck handled it until his death in 2017 only to refuse to litigate it, even after he was ordered twice by the appeals court in Richmond to proceed.

In this suit, the Church side is arguing that Mark Lawrence is in violation of the Lanham Act that protects federally registered trademarks. The Episcopal Church is under trademark. In essence, the Church side is asking the federal court to recognize the Episcopal Church as an hierarchical institution and as such has the right to recognize the legitimate bishop of the local diocese. At the time of the schism, and ever since, Lawrence has claimed to be the legal and legitimate bishop of the Episcopal Diocese of South Carolina even though he also claimed the diocese left the Episcopal Church on Oct. 15, 2012. 

The circuit court judge, Diane Goodstein, issued a restraining order and an injunction in January of 2013 recognizing Lawrence's claim. 

The SC supreme court decision of Aug. 2, 2017, did not address this issue, thus leaving in place Goodstein's ruling, but looked forward to the federal court settling the issue as part of the vonR case. The SCSC settled the property issue but deferred on the diocesan legal rights issue.

Thus, the question of the ownership of the legal rights of the pre-schism diocese is now before Judge Gergel.

So, where do we stand now? In my opinion, the fundamental issue of the litigation between the Church and the breakaway diocese has been settled. The Episcopal Church holds rights over 29 of the 36 parishes. This essentially validates the Church's claim to the properties under the Dennis Canon.

The other great issue is still pending, that is, which of the two dioceses holds the legal rights of the pre-schism diocese. This would include titles, marks, assets, and other diocesan owned entities (as headquarters and bishop's residence). 

What is the outlook? The federal court will probably rule in favor of the Church. Federal courts have overwhelmingly sided with the national institution of the Episcopal Church and her attendant dioceses. Of the 100 or so cases of breakaway parishes claiming the local property, only one has been settled finally on the side of the secessionists. That one happened to be in SC, the famous All Saints case in which All Saints parish, of Pawleys Island, wound up with the property and rights in opposition to the diocese. Moreover, the U.S. Supreme Court is unlikely to take the present appeal from DSC, in my opinion, because DSC is arguing that TEC is not hierarchical and that state laws should determine the outcome of this case. This is a weak case.

What DSC is doing now is buying time. Why drag this out? To rally the 29 congregations to leave the buildings as DSC churches beyond the walls. With only 6 parishes now legally in DSC, the viability of the diocese in the future is in jeopardy. DSC needs all the people it can muster. Under the present scenario of litigation, they have at least another two years to do this.

The unknown element at this point is whether the Church lawyers will go to court to move the enactment of the state supreme court decision on the 29 parishes. Only time will tell if they act to enforce the decision. The SCSC decision of Aug. 2 is not on stay pending the appeal to the U.S. Supreme Court. I see no reason why the Church lawyers could not get enforcement of the state supreme court decision. If they were to get it enforced, the Episcopal Church bishop would resume control over the 29 parishes in question.