THE STATUS OF THE LITIGATION, 

A BRIEF REVIEW

The next event in the litigation between the two dioceses is to be The Episcopal Church/The Episcopal Church in South Carolina's response to the Diocese of South Carolina's appeal to the U.S. Supreme Court, due March 29, Thursday of next week. TEC/TECSC had originally chosen to forego a response, presumably on the belief that the court would easily deny DSC's appeal. However, the court requested a written response from TEC/TECSC and gave a due date of Mar. 29.

While we are awaiting the response, I thought it would be a good time to review, at least briefly, the status of the litigation between DSC and TEC/TECSC.

There are three active avenues of litigation at present, the U.S. Supreme Court, the circuit court, and the federal court. Let take them one at a time.

U.S. SUPREME COURT

On Feb. 9, 2018, DSC filed an appeal to SCOTUS. This is what TEC/TECSC must respond to by Mar. 29.

DSC is asking SCOTUS to review the South Carolina supreme court decision of August 2, 2017 that recognized 29 of 36 parishes, and Camp St. Christopher, as under trust control of TEC/TECSC. DSC is claiming that SCSC did not strictly adhere to the neutral principles guideline and that only SCOTUS can clarify how lower courts must handle neutral principles. What DSC wishes, of course, is for SCOTUS to overturn the SCSC decision.

One should recall that on Sept. 1, 2017, DSC petitioned SCSC for a rehearing, for Justice Hearn to recuse herself, and for her part of the Aug. 2 decision to be "vacated" (removed). On Nov. 17, 2017, SCSC denied the rehearing by 2-2 vote and Hearn's recusal unanimously.

What next?

After TEC/TECSC's response, the  clerks of SCOTUS will prepare reviews of the case and circulate them among the justices who will meet and vote on whether to grant "cert," that is, to accept the appeal from DSC. Four of the nine justices must agree. The vote usually comes several weeks after the papers are submitted. If the vote fails, the matter ends for good. The SCSC decision stands as the law. If the justices grant cert, they will hold a hearing in the grand courtroom of the Supreme Court building and then decide the issue by majority vote.

I think chances are very slim that SCOTUS will take the case, for several reasons. In the first place, the DSC lawyers' entire argument in the circuit and state supreme courts was on state law (corporate and property law). SCOTUS is not concerned with state law except as it may impact on important constitutional issues. The constitutional issue involved here is the First Amendment. It strictly forbids the civic state from interfering in a religious institution. Thus SCOTUS tends to be hesitant to get involved in church cases. Indeed, it has turned down one after another of the Episcopal Church cases sent to it over the past several years.

CIRCUIT COURT

On Nov. 19, 2017, just after SCSC denied DSC's rehearing, DSC filed a new lawsuit in the circuit court of Dorchester County, the same court that had handled the trial of July 2014. This time, however, the case was given to Judge Edgar Dickson.

DSC claimed that TEC/TECSC owed money payments to DSC under the "Betterments Statute." This holds that people who occupy property in the mistaken belief they own the property, are due, from the owner, payment for the improvements they made on the property. DSC asked for a jury trial.

TEC/TECSC then asked the court to dismiss the suit on the grounds of untimeliness (filed too late), and the fact that the parish itself is the legal owner of the property. TEC/TECSC are not the deed holders but merely the trust beneficiaries. Besides, the law says that only a Defendant can bring a case under Betterments, not the Plaintiff, which is what DSC was.

There has been not a word from this court in three months. What is going on there is anyone's guess.

My best guess is that the court will hold a hearing then dismiss the suit.

FEDERAL COURT

This is now the center of action in the litigation. This is where the whole business is to be settled.

This is the case vonRosenberg v. Lawrence that TECSC originally filed in March of 2013. The suit claimed that Lawrence was in violation of the Lanham Act, a federal act that protects federally registered trademarks such as those of the Episcopal Church. vonR asked the court to declare himself to be the rightful bishop of the Episcopal diocese and to stop Lawrence from pretending to be the Episcopal bishop. In other words, this suit asked the court to recognize the Church diocese as the legal heir of the pre-schism diocese.

(The SCSC did not address this issue for resolution. It decided only on the parish properties. The second big issue, the legal rights of the old diocese, they left to be settled by the federal court. In the meantime, circuit court judge Goodstein's Injunction of January 2013 recognizing DSC as the legal diocese, remains in place.)

Judge C. Weston Houck handled this case but refused to process it choosing to defer to the ongoing circuit court proceeding. When Houck died last July, he was replaced by Judge Richard Gergel.

On Aug. 30, 2017, Gergel ordered a mediation between the two sides and placed a stay on the federal case in the meantime. The mediation went on from Oct. of 2017 to Jan. of 2018 and failed to reach agreement. TEC/TECSC proposed a protocol for the Church side to meet with the 29 parishes to discuss settlement. Apparently, DSC rejected TEC/TECSC's proposal. Gergel then lifted the stay on Feb. 14, 2018 and the case is now ongoing.

On Feb. 20, 2018, Lawrence filed a motion for dismissal of part of the charges against him. On Mar. 7, 2018, Gergel denied the  motion.

On Mar. 1, TEC/TECSC filed motions virtually to consolidate the whole of the litigation into the federal suit. They asked that the Board of Trustees and the parishes in question be included as parties.

At present, we are awaiting Gergel's response to TEC/TECSC's petitions of Mar. 1.

We can expect a period of several  months of "Discovery." That is the time the lawyers do their homework to prepare for the trial. The trial will be held afterwards, my guess before the end of this year.

Odds are in favor of TEC/TECSC. Federal courts historically favor the national church as a hierarchical institution. Besides, in this particular case, the decisions and opinions of the state supreme court, in favor of TEC/TECSC, are bound to influence Gergel.

In sum, there are three avenues of the litigation at this moment. They are separate but still related. They will be disposed as individual cases.

In my view, DSC's appeal to SCOTUS and suit in the circuit court are weak and most likely to fail.

It looks as if the federal court will indeed finally settle the legal issues between the two sides. 

In the meantime, there are clear signs that DSC has already accepted the loss of the 29 parishes. First and foremost, DSC's suit of Nov. 19, 2017, in the circuit court implicitly recognized TEC/TECSC's rights over the 29 properties. The DSC leadership has been underway since last December on preparing people to move out of their church homes. Bishop Lawrence's address to the diocesan convention earlier this month dripped with the theme of "going out." It appears to me that DSC leaders are doing everything they can to keep people away from TEC and to create churches in exile in order to keep their failed experiment afloat.

One of the two big issues at stake, local property, has been settled for TEC/TECSC, in my opinion, for good. The other big issue, the rights and assets of the pre-schism diocese will be resolved by the federal court. The end is in sight.