DID THE 28 PARISHES ACCEDE

 TO THE DENNIS CANON?

The question of the day:  Did the 28 parishes accede to the Dennis Canon?

The Diocese of South Carolina is now claiming that no parish acceded to the Dennis Canon and, therefore, no parish will lose its property. This has become the major talking point making the rounds in the Lawrence diocese, such as the three wardens letter to the editor last Sunday. DSC is promoting the idea among its faithful that the DSC will keep control of the property and the Episcopal Church will not be returning.

In last week's "Frequently Asked Questions," ( find it here ) the DSC spokesman wrote this:

As just one example, the deciding vote (Justice Beatty) said only parishes that "acceded in writing to the Dennis Canon" created a trust. No parish acceded in writing to the Dennis Canon. On that basis, what that ruling actually says is that no congregation should lose their property.

As we saw in yesterday's blog piece, the SCSC decision of Aug. 2, 2017 was explicit on which of the 36 parishes in the suit were to be returned to Episcopal Church control and which were not. The basis of that decision was whether or not the individual parishes had acceded to the Dennis Canon.

The Episcopal Church adopted the Dennis Canon in 1979. The Diocese of South Carolina explicitly adhered to the Canon in 1987. In 2010, a diocesan convention voted to revoke DSC's accession to all of the canons of the Episcopal Church. The legality of this is at least debatable. Thus, even DSC leaders agree the DSC adhered to the Dennis Canon from 1987 to 2010.

As we have seen, all five justices agreed on which ones of the 36 parishes were on the list to be returned to TEC and which were not to be returned. Former chief justice Jean Toal spelled this out in footnote 49, on page 52. She did this even though she disagreed that the Dennis Canon was effective in the state. Thus, there was unanimous agreement among the five justices of which parishes were still under TEC control and which were not.

Looking at the justices individually, we can see this unanimity.

PLEICONES. Justice Costa Pleicones was of the opinion that the Dennis Canon automatically went into effect in the state as part of the structure of an hierarchical institution. He would have put all 36 parishes under the Canon, and, therefore, still under TEC control:

I would therefore reverse the circuit court's order to the extent it declined to accept TEC's recognition of the Associated Dioceses [TECSC] as the true Lower Diocese of South Carolina (p. 20).

HEARN. Justice Kaye Hearne agreed with Pleicones and added more explanation.

Thus, I join the lead opinion [Pleicones] in departing from 'All Saints' to the extent it held that the Dennis Canon and subsequent acquiescence by individual parishes were insufficient to establish a trust in favor of the National Church (p. 28).

Hearn pointed out that there was documentation at hand for the 28 (29) parishes:

I fear the dissent mischaracterizes the National Church's argument regarding the twenty-nine parishes with documentation reaffirming their allegiance to the National Church (p. 30).

That the National Church could locate twenty-nine reaffirmations made after the enactment of the Dennis Canon simply serves to point out the magnitude of the trial court's inexplicable error in finding no express trust was ever created by any of the parishes (p. 31).

BEATTY. Chief Justice Donald Beatty said he found that 28 parishes had expressly acceded to the Dennis Canon:

I would find those parishes that did not expressly accede to the Dennis Canon should retain ownership of the disputed real and personal property (p. 36).

Yet, TEC argues that the parishes' accession to the Dennis Canon created the trust. Assuming that each parish acceded in writing, I would agree. In my view, the Dennis Canon had no effect until, acceded to in writing by the individual parishes.

Thus, in contrast to the majority, I would find the parishes that did not expressly accede to the Dennis Canon cannot be divested of their property. Because there was no writing purporting to create a trust and they took no other legal action to transfer ownership of their property, I believe these parishes merely promised allegiance to the hierarchical national church. Without more, this promise cannot deprive them of their ownership rights in their property. However, I agree with the majority as to the disposition of the remaining [28] parishes because their express accession to the Dennis Canon was sufficient to create an irrevocable trust (pp. 37-38).

Toal confirmed Beatty's position in her summary of the decision on the last page:

Chief Justice Beatty would do so because he believes all but eight of the plaintiffs acceded to the Dennis Canon in a manner recognizable under South Carolina's trust law (p. 77).

KITTREDGE. Justice John Kittredge argued that the Dennis Canon did become effective in South Carolina and that 28 of the parishes acceded to it. However, he parted from the majority by declaring that the parishes had the right, and legally exercised that right, to revoke their accessions to the Dennis Canon. The important point here is that Kittredge agreed with Pleicones, Hearn, and Beatty that 28 parishes had acceded to the Dennis Canon:

I join Justice Toal's opinion, save for Part II. C. I's conclusion that no trusts were created as to the twenty-eight churches that acceded to the 1979 Dennis Canon (f.n. 31, p. 34).

I conclude that a trust was created in favor of the national church over the property of the twenty-eight local churches that acceded in writing to the 1979 Dennis Canon (p. 42).

I turn now to the eight churches that never acceded to the 1979 Dennis Canon (p. 44).

TOAL. Former chief justice Jean Toal was the lone dissenting vote against the effectiveness of the Dennis Canon in South Carolina. Toal had written the 2009 All Saints decision that followed a very strict interpretation of the state laws and found that the local parish held ownership of the property, under state property laws, as opposed to control of the diocese, and had legally separated from the diocese under state corporation laws. In the Aug. 2 decision, Toal continued on this train. She wrote a long and impassioned defense of the All Saints decision, which had been heavily criticized in Pleincones' lead opinion. She insisted still that state property and corporate laws defended the local parties' rights to independence and property. So, it was somewhat ironic that it was she alone who enumerated the eight parishes that the court found to be outside of TEC trust control (p. 52). So, even Toal recognized that the court had found explicitly the parishes which had acceded to the Canon and those which had not. This made the agreement on the list unanimous.

So, back to the question at hand, Did the 28 parishes accede to the Dennis Canon?

Evidently, the Church lawyers provided the supreme court justices with ample documentation showing the accession to the Dennis Canon among the 28 parishes and admitted to the court that the remaining 8 parishes had not acceded to the Canon. Obviously, the weight of this documentation was strong enough to convince the justices. So, the effective answer is, Yes.

At the same time, apparently, the DSC lawyers did not address this issue. We know they did not raise it in the oral arguments before the court on Sept. 23, 2015. Nor did they mention the accession issue in their Sept. 1, 2017 petition to the court for a rehearing. At that time they placed all their chips on one single bet---Justice Hearn. They risked all that they could overturn the decision by raising a major campaign to remove Hearn's opinion, force her off the case, and have her replaced by a more friendly new justice. It was a breath-taking colossal gamble. It failed spectacularly. It had the exact opposite effect because it made the court rally to Hearn's defense, and quite possibly destroyed DSC's chance of a rehearing. Along the long road of litigation the DSC lawyers made many mistakes, but this was arguably the most costly.

Even in DSC's appeal to the U.S. Supreme Court of Feb. 9, 2018, the accession issue was missing. There the DSC lawyers wagered all on enforcement of "neutral principles." This ploy too was a major failure as SCOTUS did not even consider it as an important case.

In conclusion, I would raise two points about the issue of the day.

1-The TEC lawyers presented highly convincing evidence to the state supreme court proving the 28 parishes had acceded to the Dennis Canon. Four of the five justices accepted this very clearly as shown in the wording of their opinions. Even the fifth, Toal, accepted, indeed publicized, the list of the 28 and 8. There was absolutely no disagreement on which parishes were in which group.

2-This is a moot question because the court has ruled very clearly on the disposition of the 36 parishes in the suit. The SCSC decision of Aug. 2 2017 is the law of the land. Disagreements and opinions about it now are irrelevant. It does not matter what criticisms DSC may raise about the decision. 

As I have said repeatedly on this blog, I do not think this controversy over the SCSC decision is really about the decision. It is about preparing 13,000 communicants in 29 parishes to vacate the buildings and continue on as DSC congregations meeting elsewhere. Thus the campaign of disinformation against the SCSC decision is part of a long-range strategy for the future. As part of this, DSC will throw up every obstacle possible to delay the inevitable. I feel certain we are in for much more along the lines that we are seeing now. That is the nature of the problem we are now dealing with and have been dealing with for longer than any of us wants to remember.