THE TWO LISTS

On July 26, 2018, Judge Edgar Dickson, of the circuit court, Dorchester County, held a status conference with the two sets of lawyers and asked the two groups to submit to him their lists of issues they wanted the court to address. The lawyers agreed to do so in a week. On August 2, they submitted to Dickson their "lists." It is important now to look at these proposals as they enlighten us on both sides' legal strategies and tactics. 

First, a brief background.

---On August 2, 2017, the South Carolina Supreme Court handed down its decision on the church case reversing in part the circuit court ruling of Feb. 3, 2015. The SCSC had held a hearing on Sept. 23, 2015. The SCSC decision recognized Episcopal Church control over 28 parishes and Camp St. Christopher.

---Sept. 1, 2017, the Diocese of South Carolina petitioned the SCSC for a rehearing and for Justice Kaye Hearn's part of the decision to be removed and for her to be replaced in future deliberations. 

---On Nov. 17, 2017, the SCSC denied DSC's requests. At the same time, SCSC sent a "Remittitur" order to the circuit court. "Remit" means a decision has to be enacted without change, as opposed to a "remand" which would require some alteration. It is important to note that SCSC remitted rather than remanded.

---DSC petitioned the U.S. Supreme Court to take the case, on Feb. 9, 2018. SCOTUS denied the request on June 7, 2018. This meant the SCSC decision stands as the law.

ACTIONS IN THE CIRCUIT COURT (Nov. 2017+):

Judge Edgar Dickson was assigned the case in January of 2018.

DSC

DSC filed three actions in the circuit court after their denial of rehearing in SCSC: 

1)-On Nov. 19, 2017, they sued for "Betterments" demanding payment from TEC for improvements made on the properties in question.

2)-Dec. 27, 2017, DSC filed for "complex case designation."

3)-Mar. 23, 2018, DSC filed a motion for "clarification of jurisdiction" asking the court how to resolve issues from the SCSC decision.

TECSC/TEC

The Episcopal Church and the Episcopal Church in South Carolina filed three actions in the circuit court:

1)-Dec. 15, 2017, TEC/TECSC sumbitted a motion to dismiss DSC's Nov. 19 suit on betterments.

2)-May 8, 2018, TEC/TECSC made a petition for execution of the SCSC decision and the appointment of a Special Master.

3)-July 11, 2018, TEC/TECSC filed a petition for an accounting of all DSC financial assets since Jan. 1, 2008, and the appointment of a firm to do this.

Thus, by the time of the status conference, Dickson had six petitions before him, three from DSC and three from TEC/TECSC.

Since all of this stems from the SCSC decision of Aug. 2, 2017, it is important at this point to review exactly what the decision said. The decision (find it here ) was clear. Former Chief Justice Jean Toal was in charge of the case. On the last page (77) of the decision she concisely and precisely laid out the court's decisions: However, we [Toal and Kittredge] are in a 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 to all but eight of the plaintiffs' properties to the defendants.

Toal went on to enumerate the three decisions of the court:

1-Eight entities did not accede to the Dennis Canon and hold title to their properties.

2-28 entities acceded to the Dennis Canon forming a trust for the Episcopal Church.

3-For Camp St. Christopher, title is in the Trustees' corporation of the Church diocese.

Toal could not have been any clearer about the decisions of the SCSC.

Once the SCSC denied rehearing and SCOTUS denied cert, the Aug. 2, 2017 decision became the law of the land.  

There is a provision, however, under SC law, to change the wording of a supreme court decision on certain grounds as clerical, typographical or other "mistake." Rule 60 of the South Carolina Code of Laws spells out how a change can be made. Find the Rule here . It says a motion to "correct" a "mistake" has to be made within a year (by Aug. 2, 2018) and cannot affect the finality of the judgment or suspend the decision. Old St. Andrews asserted that Toal made a mistake in listing St. Andrew's of Mt. Pleasant, instead of Old St. Andrew's, as one of the eight entities outside TEC control. I do not know if Old St. Andrew's formally petitioned the SCSC for a change, but obviously the year has gone by and SCSC has not issued a "correction." If the change cannot affect the finality of the ruling, I do not see how the court could make the change OSA is claiming. Swapping one parish for another would be altering the finality of the decision. It seems clear to me that the SCSC decision stands and OSA is in the group of parishes now under trust control of the Episcopal Church.

THE DSC LIST

The DSC lead lawyer, C. Alan Runyan, submitted to Judge Dickson his "list" on August 2, 2018. It is not actually a list but a fourteen page argument criticizing the SCSC decision of August 2, 2017 entitled "Unresolved Issues For For (sic) Action Consistent with the Five Opinions of the South Carolina Supreme Court Decision." Find it here . 

As everyone knows, I am not a lawyer or a legal expert, but I have to say, I have never seen a legal paper like this one. I have read it several times and I am still scratching my head. It looks like a lot of distractive wordiness to me. As far as I can make out, it does not list anything for the judge and does not ask anything of the judge. I encourage you to read it and see what you make of it. 

It seems to me Runyan is trying to invalidate the SCSC decision so that the circuit court will simply declare that it is not enforceable. As far as I can tell, the whole paper is only a string of criticisms of the justices' five opinions with the implication that nothing was resolved and there was no majority opinion, therefore nothing to enact. If the judge decides he cannot enforce the decision, that, in effect, would invalidate the decision. The time for Runyan to raise these issues was in his petition for a rehearing last September 1. Instead, at that time, he focused all on removing Justice Kaye Hearn's decision and Hearn herself from the case. As we know, that tactic backfired disastrously. The matter before the court now is not whether the SCSC decision is valid. It is how to enforce the decision. To me, Runyan's argument that the decision is unenforceable is nonsensical and irrelevant. 

THE TECSC/TEC LIST

TECSC lawyer, Thomas S. Tisdale, and TEC attorney, Mary E. Kostel, submitted their list to Judge Dickson on August 2, 2018. It is truly a list, given on two pages. Find it here . 

The lawyers reminded the judge that the SCSC issued a "Remittitur" to the court of origin, the circuit court. An order of remittitur is a direction to the lower court to carry out the higher court's decision. This means that the court cannot re-litigate the case (that would have required a remand order instead of remittitur). It can only enforce the supreme court's decision. The lawyers went on to list three requests of the judge:

1---To enforce the SCSC August 2, 2017 decision by providing for a Special Master.

2---To grant the petition for an accounting of DSC's financial matters.

3---To deny or dismiss DSC three motions (Betterment, complex case, and clarification of jurisdiction). 

We are now awaiting Judge Dickson's response to the two lists. I fully expect him to follow TEC/TECSC's suggestions. He has been ordered by the SCSC to enact the decision. He has no choice. As I see it, he cannot accept Runyan's apparent request for non-enforcement. The questions at hand only revolve around how to go about enforcing the SCSC decision. The Special Master and the accounting are reasonable, and necessary, measures considering the size and complexity of this whole matter. I can see no reason why Judge Dickson would oppose either of those. He has already indicated he wanted to get this whole case resolved expeditiously.