DESPERATION
June 14, 5:00 p.m. The leaders of the Diocese of South Carolina and their allies in war are desperate. They know their dream (or delusion) has failed. They are now left with a handful of local churches, none in Charleston, and are about to lose the legal rights to the old diocese. This reality came crashing down on them on Monday of this week when the United States Supreme Court refused to accept the appeal from the DSC. This means the South Carolina Supreme Court decision of August 2, 2017, is Res judicata, the final law. It cannot be appealed, ignored, or challenged. This decision recognized the Episcopal Church control over 29 parishes and Camp St. Christopher. Although the DSC still has legal control over the entity of the diocese (through the Temporary Injunction issued by Judge Goodstein January 31, 2013), they are likely to lose this too, in the federal court. The federal case will probably come to trial later this year. We can expect the Episcopal Church to regain legal control over the pre-schsim diocese and all that entails. The state supreme court justices have already opined that he Church diocese is entitled to this but left the legal wrap-up to the federal court. It is just a matter of time before TEC regains the old diocese too.
Reeling from what they would see as a catastrophe, the DSC leaders and their comrades in arms began flailing about madly for a meaningful response to the finality of SCSC's decision. They went all over the map. The initial reaction of DSC was denial. Refusing to accept the validity of the SCSC decision, they declared it to be "unenforceable" and suggested they would even go back to the state supreme court, but gave no details. Find their press release here .
DSC clergy spoke out too. At St. Philip's, in Charleston, rector Jeff Miller echoed the denial and suggested to his people that the litigation was still open and the church would go back to court to demand evidence: "we will seek a specific evidentiary inquiry as to whether or not St. Philip's and twenty-eight other parishes actually acceded to the terms of the Dennis Canon." He added the church would "continue the litigation in the state and federal court systems in South Carolina." Find Miller's statement here . Actually, evidence is irrelevant at this point. Any evidence had to be presented during the litigation. The SCSC decision is over. It cannot be reopened.
A few blocks away at St. Michael's, rector Al Zadig reiterated the DSC talking points: "The law and facts of our case still favor us." Find his letter here . Actually, the law and the facts gave the 29 parishes and the Camp to the Episcopal Church. That is not favoring DSC.
Over at Old St. Andrew's, in West Ashley, the rector told his people they were one of the eight safe parishes listed by the state supreme court as not being under the trust. He said he has taken legal action to resolve this. In fact, the court decision did not list OSA as one of the parishes outside the trust.
Out at St. Johns, on Johns Island, the rector told his congregation they had nothing to worry about, at least for a very long time: "there will likely be countless further lawsuits filed and adjudicated over the next years to no uncertain [sic] end...nothing changes for us at St. John's in the near future...some day in the far future we may be asked to vacate..." Find his letter here , June 13. He did not define "far future."
The Charleston Post and Courier took a different tact and called on the Episcopal Church to "compromise," presumably to give up something it had gained in court. This came in an editorial on June 13: "No 'winners' in bitter Episcopal church dispute."
So, here are the responses from DSC and its allies (so far) this week:
---the SCSC decision of Aug. 2, 2017, cannot be enforced.
---the SCSC decision is not valid.
---the circuit court can change the SCSC decision.
---there is much more litigation to come in state and federal courts.
---it will be a long time before the Episcopal Church could repossess the properties.
---the Episcopal Church should "compromise."
Then, today we got the response of a DSC ally, lawyer and blogger Allan Haley aka the Anglican Curmudgeon. Find it here . His popular blog has been very helpful in informing us of the positions and arguments critical of the Episcopal Church. Several years ago, he served as an attorney arguing in court for the independent side in the San Joaquin schism case. The California courts came down entirely in favor of the Episcopal Church. Last year, he was highly vocal on his blog in DSC's campaign against Justice Kaye Hearn in the drive to get a rehearing in the SC supreme court after the decision of August 2. Hoping to overturn the decision, DSC carried on a vigorous public relations campaign to get Hearn to vacate her ruling and recuse herself from the case (thus overturning the decision). They charged conflict of interest (Hearn was a member of an Episcopal Church) and possible ethics violations.
This was true in spite of the fact that the DSC lawyers had not raised this issue before the court decision of Aug. 2. Everyone knew about Hearn's church affiliation. DSC did not ask her to recuse herself before, during or after the hearing of Sept. 23, 2015, that is, until the ruling came out almost two years later. Moreover, Hearn did not write the majority opinion. Justice Pleicones did. Too, she was not the swing vote. Chief Justice Beatty was the vote determining the outcome that went against DSC. Even so, DSC waged a very public campaign against Hearn.
Then, on November 17, 2017, the state supreme court denied DSC's petition for a rehearing. In this, Hearn did not participate. At the same time, the court unanimously rejected DSC's request for Hearn's recusal from the case. And, at the same time, the justices took the unusual step of chastising the DSC side for its treatment of Hearn. Former Chief Justice Toal, who had earlier sided with DSC, said: "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, DSC's excessive criticism of Hearn backfired. In the face of it, the justices took the unusual step of forming a solid union, to defend one of their own. That may well have killed DSC's petition for a rehearing. It certainly did not help. Ironically, DSC's harsh tactic against Hearn actually may have helped the Church side.
If I am reading him right, and I am not at sure I am, Haley seems to be suggesting in today's posting that DSC should take the SCSC decision back to the circuit court and have Judge Goodstein overrule Hearn's opinion. If that is what he means, even I, a non-lawyer, would know that is not going to happen. A circuit court judge does not have the power to overrule a supreme court decision. Anyway, Judge Edgar Dickson is handling the case now. Haley also accuses the Church side of "conspiracy" with Hearn to "obtain the result they wanted." He makes suppositions but offers no evidence.
After all is said and done this week, the fact is the South Carolina supreme court has issued a decision that 29 parishes and Camp St. Christopher remain under control of the Episcopal Church. The United States Supreme Court refused to hear the case. That means the SCSC decision is the final law of the land. It cannot be changed. No amount of legal maneuvers will alter the outcome. The end is in sight.
Moreover, the Church diocese is moving as quickly as it can to repossess the properties. On May 9, it entered a motion with the circuit court for enactment of the SCSC decision. It asked the judge to appoint a Special Master to manage the transition (rather than have the sheriff appear at the door with eviction notices). I expect that will come soon. So, any idea that it will be years before the Church gets the properties back is nonsense. It will happen sooner rather than later. The day of decision is at hand for both the laity and the clergy presently occupying the 29 Episcopal churches.
Why all this mad flailing about? Why all the wild claims about new court actions and long delays and so forth? DSC knows it has lost the war. Perhaps the DSC leaders are going through the stages of grief. After all, their first reaction was denial, the first stage. If so, the last stage is acceptance. They will come to that at some unknown point in the future. All of the DSC leadership has a great deal of emotional involvement in this long and hard-fought war. They have invested so much of themselves. Loss is always hard to take. I think they should have a wide leeway and a lot of time. Peace will come. We are all Christians. We must not be enemies. I think right now, the people on the Church side should try to imagine what it would be like if the outcome had been the reverse.
In answer, here is my theory for this week's reactions. What is at issue is the future of the 13,000 communicants in the 29 parishes in question. That is what the fight is about now. Since the SCSC denial of rehearing last November, the DSC leadership has been busy preparing the people of the 29 parishes to vacate the buildings and go out as DSC congregations to meet elsewhere. This is the only way DSC has any viable future. Part of what is going on now is to demonize the Episcopal Church in order to discourage communicants from staying with the buildings, hence the "theology" and other courses. The biggest part of what is going on is a push to de-legitimize the SCSC decision in the minds of the 13,000: to say it was not legal, not fair, corrupt, and not acceptable. Therefore, people would be perfectly justified in ignoring the decision. This too would discourage people from returning to the Episcopal Church. So, that is my conclusion. What is going on now is DSC's campaign to get their people to stick with their leadership. In view of the way things have gone, that will be getting ever harder to do.
In the foreseeable future, the 29 parishes will return to the Episcopal Church. We will know then how effective DSC's desperate campaign of de-legitimization has been.
What do you think? Your thoughts are important to me. Email me at the address above.
DSC clergy spoke out too. At St. Philip's, in Charleston, rector Jeff Miller echoed the denial and suggested to his people that the litigation was still open and the church would go back to court to demand evidence: "we will seek a specific evidentiary inquiry as to whether or not St. Philip's and twenty-eight other parishes actually acceded to the terms of the Dennis Canon." He added the church would "continue the litigation in the state and federal court systems in South Carolina." Find Miller's statement here . Actually, evidence is irrelevant at this point. Any evidence had to be presented during the litigation. The SCSC decision is over. It cannot be reopened.
A few blocks away at St. Michael's, rector Al Zadig reiterated the DSC talking points: "The law and facts of our case still favor us." Find his letter here . Actually, the law and the facts gave the 29 parishes and the Camp to the Episcopal Church. That is not favoring DSC.
Over at Old St. Andrew's, in West Ashley, the rector told his people they were one of the eight safe parishes listed by the state supreme court as not being under the trust. He said he has taken legal action to resolve this. In fact, the court decision did not list OSA as one of the parishes outside the trust.
Out at St. Johns, on Johns Island, the rector told his congregation they had nothing to worry about, at least for a very long time: "there will likely be countless further lawsuits filed and adjudicated over the next years to no uncertain [sic] end...nothing changes for us at St. John's in the near future...some day in the far future we may be asked to vacate..." Find his letter here , June 13. He did not define "far future."
The Charleston Post and Courier took a different tact and called on the Episcopal Church to "compromise," presumably to give up something it had gained in court. This came in an editorial on June 13: "No 'winners' in bitter Episcopal church dispute."
So, here are the responses from DSC and its allies (so far) this week:
---the SCSC decision of Aug. 2, 2017, cannot be enforced.
---the SCSC decision is not valid.
---the circuit court can change the SCSC decision.
---there is much more litigation to come in state and federal courts.
---it will be a long time before the Episcopal Church could repossess the properties.
---the Episcopal Church should "compromise."
Then, today we got the response of a DSC ally, lawyer and blogger Allan Haley aka the Anglican Curmudgeon. Find it here . His popular blog has been very helpful in informing us of the positions and arguments critical of the Episcopal Church. Several years ago, he served as an attorney arguing in court for the independent side in the San Joaquin schism case. The California courts came down entirely in favor of the Episcopal Church. Last year, he was highly vocal on his blog in DSC's campaign against Justice Kaye Hearn in the drive to get a rehearing in the SC supreme court after the decision of August 2. Hoping to overturn the decision, DSC carried on a vigorous public relations campaign to get Hearn to vacate her ruling and recuse herself from the case (thus overturning the decision). They charged conflict of interest (Hearn was a member of an Episcopal Church) and possible ethics violations.
This was true in spite of the fact that the DSC lawyers had not raised this issue before the court decision of Aug. 2. Everyone knew about Hearn's church affiliation. DSC did not ask her to recuse herself before, during or after the hearing of Sept. 23, 2015, that is, until the ruling came out almost two years later. Moreover, Hearn did not write the majority opinion. Justice Pleicones did. Too, she was not the swing vote. Chief Justice Beatty was the vote determining the outcome that went against DSC. Even so, DSC waged a very public campaign against Hearn.
Then, on November 17, 2017, the state supreme court denied DSC's petition for a rehearing. In this, Hearn did not participate. At the same time, the court unanimously rejected DSC's request for Hearn's recusal from the case. And, at the same time, the justices took the unusual step of chastising the DSC side for its treatment of Hearn. Former Chief Justice Toal, who had earlier sided with DSC, said: "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, DSC's excessive criticism of Hearn backfired. In the face of it, the justices took the unusual step of forming a solid union, to defend one of their own. That may well have killed DSC's petition for a rehearing. It certainly did not help. Ironically, DSC's harsh tactic against Hearn actually may have helped the Church side.
If I am reading him right, and I am not at sure I am, Haley seems to be suggesting in today's posting that DSC should take the SCSC decision back to the circuit court and have Judge Goodstein overrule Hearn's opinion. If that is what he means, even I, a non-lawyer, would know that is not going to happen. A circuit court judge does not have the power to overrule a supreme court decision. Anyway, Judge Edgar Dickson is handling the case now. Haley also accuses the Church side of "conspiracy" with Hearn to "obtain the result they wanted." He makes suppositions but offers no evidence.
After all is said and done this week, the fact is the South Carolina supreme court has issued a decision that 29 parishes and Camp St. Christopher remain under control of the Episcopal Church. The United States Supreme Court refused to hear the case. That means the SCSC decision is the final law of the land. It cannot be changed. No amount of legal maneuvers will alter the outcome. The end is in sight.
Moreover, the Church diocese is moving as quickly as it can to repossess the properties. On May 9, it entered a motion with the circuit court for enactment of the SCSC decision. It asked the judge to appoint a Special Master to manage the transition (rather than have the sheriff appear at the door with eviction notices). I expect that will come soon. So, any idea that it will be years before the Church gets the properties back is nonsense. It will happen sooner rather than later. The day of decision is at hand for both the laity and the clergy presently occupying the 29 Episcopal churches.
Why all this mad flailing about? Why all the wild claims about new court actions and long delays and so forth? DSC knows it has lost the war. Perhaps the DSC leaders are going through the stages of grief. After all, their first reaction was denial, the first stage. If so, the last stage is acceptance. They will come to that at some unknown point in the future. All of the DSC leadership has a great deal of emotional involvement in this long and hard-fought war. They have invested so much of themselves. Loss is always hard to take. I think they should have a wide leeway and a lot of time. Peace will come. We are all Christians. We must not be enemies. I think right now, the people on the Church side should try to imagine what it would be like if the outcome had been the reverse.
In answer, here is my theory for this week's reactions. What is at issue is the future of the 13,000 communicants in the 29 parishes in question. That is what the fight is about now. Since the SCSC denial of rehearing last November, the DSC leadership has been busy preparing the people of the 29 parishes to vacate the buildings and go out as DSC congregations to meet elsewhere. This is the only way DSC has any viable future. Part of what is going on now is to demonize the Episcopal Church in order to discourage communicants from staying with the buildings, hence the "theology" and other courses. The biggest part of what is going on is a push to de-legitimize the SCSC decision in the minds of the 13,000: to say it was not legal, not fair, corrupt, and not acceptable. Therefore, people would be perfectly justified in ignoring the decision. This too would discourage people from returning to the Episcopal Church. So, that is my conclusion. What is going on now is DSC's campaign to get their people to stick with their leadership. In view of the way things have gone, that will be getting ever harder to do.
In the foreseeable future, the 29 parishes will return to the Episcopal Church. We will know then how effective DSC's desperate campaign of de-legitimization has been.
What do you think? Your thoughts are important to me. Email me at the address above.
