FACTS AND ALTERNATIVE FACTS ABOUT THE STATE SUPREME COURT DECISION
The Diocese of South Carolina is still busy spreading "alternative facts," i.e., untruths, about the South Carolina Supreme Court decision of August 2, 2017. They are saying the decision is meaningless because it is divided, has no clear-cut majority opinion, and thus cannot be enforced. They claim this will lead to a great deal of further litigation that will, in effect, forestall any possible enactment of the decision indefinitely. In short, they are telling their people the Episcopal Church will not be repossessing the buildings in the foreseeable future.
At the very same time, the DSC leaders are also promoting a far different message: get ready to evacuate the buildings. They have been preparing congregations to leave their church homes and relocate in other quarters since last December. This obvious contradiction of messages is lost on no one. It seems to me the deliberate confusion is part of the game here.
Thus, it is useful at this point to revisit the real facts about the state Supreme Court decision and what it means for the 13,000 communicants in the 29 parishes. So, I will simplify the legal steps that have occurred:
1-On August 2, 2017, the South Carolina Supreme Court issued its decision on the church case. Find it here .
There were, in fact, five separate opinions, one by each of the justices. Former Chief Justice Jean Toal presided over the case from the start. One will recall that she completely dominated the hearing of September 23, 2015. She also wrote the longest opinion in the Aug. 2 document. At the end, she summarized what the decisions of the court were. This came on the last two pages, in Footnote 72. I present it here verbatim:
As I stated at the outset, this is unfortunately a difficult case leading us to five different, strongly-held opinions. Because we all write separately, my summary of my undestanding of the Court's holdings is as follows. A majority of the Court---consisting of Chief Justice Beatty, Justice Kittredge, and me---agree that Pearson and All Saints (and their progeny) remain good law in this state, and that in secular church disputes, our state courts should apply neutral principles of law to resolve the case. As it relates to this particular case, the same majority would find this is a secular church dispute, and the Court must therefore apply longstanding trust law to resolve the questions before us. I would find the parties' actions did not comply with the formalities required to create a trust in this state. In short, I believe the parties did not embody their intentions to create a trust in favor of the defendants in a "legally cognizable form." Justice Kittredge would find the parties created a revocable trust in favor of the national church, but t5he plaintiffs later took steps to revoke their accession to the trust. Therefore, both Justice Kittredge and I would declare all of the disputed titles in favor of the individual plaintiffs, with no trust formed in favor of the defendants. However, we are in the minority, because a different majority of the Court---consisting of Chief Justice Beatty, Justice Hearn, and Acting Justice Pleicones---would reverse the trial court and transfer title of all but eight of the plaintiffs' properties to the defendants. While Justice Hearn and Acting Justice Pleicones would do so because they believe this is an ecclesiastical dispute and the Court must therefore defer to the national church's decision on the matter. 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. Thus, the result reached on title is: 1) with regard to the eight church organizations which did not accede to the Dennis Canon, Chief Justice Beatty, Justice Kittredge, and I would hold that title remains in the eight plaintiff church organizations; 2) with regard to the twenty-eight church organizations whcih acceded to the Dennis Canon, a majority consisting of Chief Justice Beatty, Justice Hearn, and Acting Justice Pleicones would hold that a trust in favor of the national church is imposed on the property and therefore, title is in the national church; and 3) with regard to Camp St. Christopher, Chief Justice Beatty, Justice Hearn, and Acting Justice Pleicones would hold title is in the trustee corporation for the benefit of the associated diocese, whereas Justice Kittredge and I would hold that the trustee corporation holds title for the benefit of the disassociated diocese.
As to the second issue on appeal, involving the plaintiffs' claims for service mark infringement, Chief Justice Beatty, Justice Kittredge, and I would find the marks are validly registered under state law, but leave the ultimate resolution of the parties' conflicting claims to the pending federal case.
Thus, Toal's summary of the court's decisions is clear. It is concise and precise. There is no doubt about what the court said and meant. To make this crystal clear, Toal numbered the four majority decisions:
1-the 8 churches are outside TEC control. (Toal enunerated the 8 in Footnote 49.)
2-the 28 churches are under TEC control.
3-Camp St. Christopher is under TEC control.
4-the circuit court order on ownership of the old diocese in favor of DSC is confirmed, but this is pending the ultimate ruling of the federal court.
So, DSC's alternative fact that the state supreme court decision does not say what it says is ridiculous on its face. The real fact is that the decision is as clear as possible.
OTHER REAL FACTS:
1-Appeal to SCSC for rehearing.
On Sept. 1, 2017, DSC appealed to the SCSC for a rehearing on the Aug. 2 decision. It also asked for Justice Hearn's opinion to be vacated, for her to be recused from the case, and for her to be replaced by another justice.
On Nov. 17, 2017, SCSC denied DSC's Sept. 1 petitions.
2-On Nov. 20, 2017, SCSC issued a "Remittitur" remitting its Aug. 2 decision to the circuit court of Dorchester County:
Dear Clerk of Court:
The above referenced matter is hereby remitted to the lower court or tribunal. A copy of the judgment of this Court is enclosed.
"Remitted" meant the SCSC sent its decision back down to the lower court of origin for enforcement. "Remand" is another term; it means a decision is sent back down to the lower court to be changed. It is important to note the SCSC issued a Remittitur (cannot be changed) and not a Remandment (must be changed).
The lower court must enact the 4 decisions of the SCSC. It cannot ignore, discard, or alter the SCSC decisions. The notion that DSC can throw up roadblocks in the circuit court to keep the SCSC ruling from being enforced is false. The lower court cannot refused the supreme court order.
3-On Feb. 9, 2018, DSC petitioned the U.S. Supreme Court for a writ of certiorari, that is, to review the SCSC decision. On June 7, 2018, SCOTUS denied DSC's request. This left standing the SCSC decision as the final law of the land.
4-On May 8, 2018, the Episcopal Church and the Episcopal Church in South Carolina submitted to the circuit court a petition for the execution of the SCSC decision. In it, they asked for a Special Master:
The relief requested herein involves the transfer of a substantial amount of real and personal property, involving many parties. Petitioners believe that the orderly transfer of the property and the resolution of any disputes and controversies that might arise in the execution of such matters will be greatly enhanced by the appointment of a Special Master who will be able and authorized to enhance an orderly and expeditious resolution of all such issues. Accordingly, the appointment of a Special Master, with experience in complex property matters and with the capacity to dedicate the necessary time and attention to this matter, is appropriate.
We respectfully request that the parties be given the opportunity to propose available, qualified, and impartial candidates for the Court to consider as it selects and appoints a Special Master for these purposes.
Bottom line: DSC's charges against the state supreme court decision are false. In fact, the SCSC decision is clear and enforceable. The Episcopal Church has regained control over 28 of the 36 parishes involved in the lawsuit. It is just a matter of time before the circuit court enacts the decision.
It is fair to ask, then, why is DSC putting out contradictory messages to its people (the SCSC decision will not enforced v. the SCSC decision will be enforced)? I think one has to look at what people do rather than what they say. Talk is cheap. Action is another story. What DSC is saying is that TEC will not repossess the buildings. What DSC is doing is preparing people for the time when TEC will regain control over the buildings. What they are doing trumps what they are saying. Then, if they are preparing people to leave, why are they telling the people TEC will not regain the buildings? My theory is that this is part of a concerted campaign on DSC's part to demonize the Episcopal Church as a way of discouraging people from remaining in their church homes. Fundamentalism is based on an oppositional dualism of good and evil. That is the worldview DSC is now promoting, and has been promoting all along, in its community. They are trying to force people into a binary choice, us or them. If so, this is most regrettable, not surprising, but still unfortunate for the 13,000 communicants.
The people caught in the middle of this mess would be well to review the facts of the case at hand. As hard as it may be, it is best to know the truth.
(As a personal aside, I can attest to the importance of truth. Last year my doctor told me bluntly, you have cancer and it is about to spread. Believe me, a diagnosis of cancer is about the most shocking fact anyone can hear. But in the next breath, he told me here is what we are going to do about it... New tests this year showed the treatments were completely effective. If I had not been told the truth to begin with, I would probably now be dead [at age 12, I watched my beloved grandfather die of this kind of cancer]. Moral of the story---it is best to know the truth no matter how hard it may be to take.)
As to the second issue on appeal, involving the plaintiffs' claims for service mark infringement, Chief Justice Beatty, Justice Kittredge, and I would find the marks are validly registered under state law, but leave the ultimate resolution of the parties' conflicting claims to the pending federal case.
Thus, Toal's summary of the court's decisions is clear. It is concise and precise. There is no doubt about what the court said and meant. To make this crystal clear, Toal numbered the four majority decisions:
1-the 8 churches are outside TEC control. (Toal enunerated the 8 in Footnote 49.)
2-the 28 churches are under TEC control.
3-Camp St. Christopher is under TEC control.
4-the circuit court order on ownership of the old diocese in favor of DSC is confirmed, but this is pending the ultimate ruling of the federal court.
So, DSC's alternative fact that the state supreme court decision does not say what it says is ridiculous on its face. The real fact is that the decision is as clear as possible.
OTHER REAL FACTS:
1-Appeal to SCSC for rehearing.
On Sept. 1, 2017, DSC appealed to the SCSC for a rehearing on the Aug. 2 decision. It also asked for Justice Hearn's opinion to be vacated, for her to be recused from the case, and for her to be replaced by another justice.
On Nov. 17, 2017, SCSC denied DSC's Sept. 1 petitions.
2-On Nov. 20, 2017, SCSC issued a "Remittitur" remitting its Aug. 2 decision to the circuit court of Dorchester County:
Dear Clerk of Court:
The above referenced matter is hereby remitted to the lower court or tribunal. A copy of the judgment of this Court is enclosed.
"Remitted" meant the SCSC sent its decision back down to the lower court of origin for enforcement. "Remand" is another term; it means a decision is sent back down to the lower court to be changed. It is important to note the SCSC issued a Remittitur (cannot be changed) and not a Remandment (must be changed).
The lower court must enact the 4 decisions of the SCSC. It cannot ignore, discard, or alter the SCSC decisions. The notion that DSC can throw up roadblocks in the circuit court to keep the SCSC ruling from being enforced is false. The lower court cannot refused the supreme court order.
3-On Feb. 9, 2018, DSC petitioned the U.S. Supreme Court for a writ of certiorari, that is, to review the SCSC decision. On June 7, 2018, SCOTUS denied DSC's request. This left standing the SCSC decision as the final law of the land.
4-On May 8, 2018, the Episcopal Church and the Episcopal Church in South Carolina submitted to the circuit court a petition for the execution of the SCSC decision. In it, they asked for a Special Master:
The relief requested herein involves the transfer of a substantial amount of real and personal property, involving many parties. Petitioners believe that the orderly transfer of the property and the resolution of any disputes and controversies that might arise in the execution of such matters will be greatly enhanced by the appointment of a Special Master who will be able and authorized to enhance an orderly and expeditious resolution of all such issues. Accordingly, the appointment of a Special Master, with experience in complex property matters and with the capacity to dedicate the necessary time and attention to this matter, is appropriate.
We respectfully request that the parties be given the opportunity to propose available, qualified, and impartial candidates for the Court to consider as it selects and appoints a Special Master for these purposes.
Bottom line: DSC's charges against the state supreme court decision are false. In fact, the SCSC decision is clear and enforceable. The Episcopal Church has regained control over 28 of the 36 parishes involved in the lawsuit. It is just a matter of time before the circuit court enacts the decision.
It is fair to ask, then, why is DSC putting out contradictory messages to its people (the SCSC decision will not enforced v. the SCSC decision will be enforced)? I think one has to look at what people do rather than what they say. Talk is cheap. Action is another story. What DSC is saying is that TEC will not repossess the buildings. What DSC is doing is preparing people for the time when TEC will regain control over the buildings. What they are doing trumps what they are saying. Then, if they are preparing people to leave, why are they telling the people TEC will not regain the buildings? My theory is that this is part of a concerted campaign on DSC's part to demonize the Episcopal Church as a way of discouraging people from remaining in their church homes. Fundamentalism is based on an oppositional dualism of good and evil. That is the worldview DSC is now promoting, and has been promoting all along, in its community. They are trying to force people into a binary choice, us or them. If so, this is most regrettable, not surprising, but still unfortunate for the 13,000 communicants.
The people caught in the middle of this mess would be well to review the facts of the case at hand. As hard as it may be, it is best to know the truth.
(As a personal aside, I can attest to the importance of truth. Last year my doctor told me bluntly, you have cancer and it is about to spread. Believe me, a diagnosis of cancer is about the most shocking fact anyone can hear. But in the next breath, he told me here is what we are going to do about it... New tests this year showed the treatments were completely effective. If I had not been told the truth to begin with, I would probably now be dead [at age 12, I watched my beloved grandfather die of this kind of cancer]. Moral of the story---it is best to know the truth no matter how hard it may be to take.)
