THE LAWYERS' RESPONSES
TO THE BRIEFS, 2nd edition
Judge Edgar Dickson, of the circuit court, directed the two sets of lawyers to submit briefs explaining their respective positions on 24 September. The lawyers did so. Each set of attorneys gave the judge three papers. See my blog post on this here .
The Episcopal Church and Episcopal Church in South Carolina attorneys filed briefs with Dickson requesting 1-execution of the South Carolina Supreme Court decision of August 2, 2017; 2-dismissal of the Diocese of South Carolina's Betterments lawsuit; and 3-appointment of an accounting firm to conduct an accounting of the DSC assets since 2008. The essential argument of the Church side was that the state supreme court decision was clear and final and that the circuit court had no choice but to enforce the decision.
The DSC attorneys submitted three briefs, 1-for designation of complex case; 2-for clarification and relief; and 3-supplement to # 2. Their core argument was that the SCSC decision was not enforceable due to its conflicted and ambiguous nature; and therefore the circuit court must decide the essential issues at hand.
According to Dickson's schedule, the two sets of lawyers were to submit their responses to the briefs on 5 October. The DSC attorneys turned in their three responses on 5 October. The TEC/TECSC lawyers submitted their two responses on 5 and 8 October. All of the responses were posted on the SC courts website.
The DSC responses focused on TEC/TECSC's first brief, for execution of the SCSC decision. Once again, the DSC lawyers insisted the SCSC decision was unclear, ambiguous, and indecisive. They spent a good deal of time on the issue of the parish property claiming that Chief Justice Beatty declared that a trust could be created only by an express written agreement. The lawyers concluded that the SCSC "left the factual issue of parish agreement to the Dennis Canon to this Court."
In another response, the DSC attorneys argued that an accounting was not possible because the SCSC decision did not find a breach of trust.
In a third response, DSC lawyers presented a lengthy (21 p.) argument supporting their Betterments suit and rejecting TEC/TECSC's motion to dismiss it. In this, they claimed that the SCSC did not recognize that the 29 parishes were owned in trust by TEC and TECSC. They asserted "Further fact-finding is necessary to decide the application of the Collective Opinions [Aug. 2 SCSC decision] to current property ownership and title and to the particular properties at issue."
The TEC/TECSC lawyers' responses were the same case they have made all along before Dickson, that the SCSC decision was final. The SCSC denied a rehearing, and the U.S. Supreme Court denied cert. Moreover, the SCSC issued a "remit" to the circuit court to enforce the Aug. 2 decision. According to these lawyers, the circuit court has no choice but to carry out the SCSC decision. It cannot re-litigate the decision.
The Church lawyers also filed an opposition to DSC's petition for complex case designation. They said the Betterments suit should be dismissed. That would make the complex case designation a moot point.
In review, one can see that TEC's position has remained exactly the same for nearly a year now, since the remittitur of Nov. 19, 2017: the SCSC decision of Aug. 2, 2017 must be enforced by the circuit court.
An interesting ploy of the DSC lawyers in last Friday's responses was to move Beatty to the pivotal point of the SCSC decision. They claimed Beatty sided with Toal in insisting the Dennis Canon had no validity until acceded to in writing by the individual parishes. This is correct as per Beatty's opinion in the SCSC decision. However, the lawyers conveniently left out Beatty's concluding statement: "I agree with the majority as to the disposition of the remaining [29] parishes because their express accession to the Dennis Canon was sufficient to create an irrevocable trust." (p. 37-38). Thus, Beatty said clearly that the 29 parishes had indeed acceded to the Dennis Canon, and this accession could not be revoked. Thus, the DSC lawyers were wrong to assert that Beatty did not rule on the validity of the Dennis Canon. In fact, he joined the majority of the justices in ruling that the 29 parishes had acceded to the Dennis Canon. Indeed, in her summary of the decision on the last page, former chief justice Jean Toal wrote: "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 trust law."
It seems to me DSC's claim that the SCSC decision cannot be enforced because it is unclear is entirely wrong. In fact, the decision is expressly clear. Returning to the last page (77) of the decision we read Toal's summary:
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 which 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.
What now? Judge Dickson has asked the two sets of lawyers to submit their replies to the responses on Friday, 12 October. This will make the fifth iteration of the lawyers' cases before Judge Dickson (the motions/petitions, the lists, the briefs, the responses, and the replies to the responses). Let us hope the judge is satisfied with these five rounds. He has mentioned that he expects to hold a hearing on all this during the weeks of October 22 and 29. I am sure everyone will agree, enough already. Let's have some resolution. I fully expect Dickson to enforce the SCSC decision. That will mean he will sweep aside the DSC arguments as improper and/or irrelevant. The SCSC decision will be enforced. The 29 parishes will be returned to the authority of the Episcopal Church diocese.
The Episcopal Church and Episcopal Church in South Carolina attorneys filed briefs with Dickson requesting 1-execution of the South Carolina Supreme Court decision of August 2, 2017; 2-dismissal of the Diocese of South Carolina's Betterments lawsuit; and 3-appointment of an accounting firm to conduct an accounting of the DSC assets since 2008. The essential argument of the Church side was that the state supreme court decision was clear and final and that the circuit court had no choice but to enforce the decision.
The DSC attorneys submitted three briefs, 1-for designation of complex case; 2-for clarification and relief; and 3-supplement to # 2. Their core argument was that the SCSC decision was not enforceable due to its conflicted and ambiguous nature; and therefore the circuit court must decide the essential issues at hand.
According to Dickson's schedule, the two sets of lawyers were to submit their responses to the briefs on 5 October. The DSC attorneys turned in their three responses on 5 October. The TEC/TECSC lawyers submitted their two responses on 5 and 8 October. All of the responses were posted on the SC courts website.
The DSC responses focused on TEC/TECSC's first brief, for execution of the SCSC decision. Once again, the DSC lawyers insisted the SCSC decision was unclear, ambiguous, and indecisive. They spent a good deal of time on the issue of the parish property claiming that Chief Justice Beatty declared that a trust could be created only by an express written agreement. The lawyers concluded that the SCSC "left the factual issue of parish agreement to the Dennis Canon to this Court."
In another response, the DSC attorneys argued that an accounting was not possible because the SCSC decision did not find a breach of trust.
In a third response, DSC lawyers presented a lengthy (21 p.) argument supporting their Betterments suit and rejecting TEC/TECSC's motion to dismiss it. In this, they claimed that the SCSC did not recognize that the 29 parishes were owned in trust by TEC and TECSC. They asserted "Further fact-finding is necessary to decide the application of the Collective Opinions [Aug. 2 SCSC decision] to current property ownership and title and to the particular properties at issue."
The TEC/TECSC lawyers' responses were the same case they have made all along before Dickson, that the SCSC decision was final. The SCSC denied a rehearing, and the U.S. Supreme Court denied cert. Moreover, the SCSC issued a "remit" to the circuit court to enforce the Aug. 2 decision. According to these lawyers, the circuit court has no choice but to carry out the SCSC decision. It cannot re-litigate the decision.
The Church lawyers also filed an opposition to DSC's petition for complex case designation. They said the Betterments suit should be dismissed. That would make the complex case designation a moot point.
In review, one can see that TEC's position has remained exactly the same for nearly a year now, since the remittitur of Nov. 19, 2017: the SCSC decision of Aug. 2, 2017 must be enforced by the circuit court.
An interesting ploy of the DSC lawyers in last Friday's responses was to move Beatty to the pivotal point of the SCSC decision. They claimed Beatty sided with Toal in insisting the Dennis Canon had no validity until acceded to in writing by the individual parishes. This is correct as per Beatty's opinion in the SCSC decision. However, the lawyers conveniently left out Beatty's concluding statement: "I agree with the majority as to the disposition of the remaining [29] parishes because their express accession to the Dennis Canon was sufficient to create an irrevocable trust." (p. 37-38). Thus, Beatty said clearly that the 29 parishes had indeed acceded to the Dennis Canon, and this accession could not be revoked. Thus, the DSC lawyers were wrong to assert that Beatty did not rule on the validity of the Dennis Canon. In fact, he joined the majority of the justices in ruling that the 29 parishes had acceded to the Dennis Canon. Indeed, in her summary of the decision on the last page, former chief justice Jean Toal wrote: "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 trust law."
It seems to me DSC's claim that the SCSC decision cannot be enforced because it is unclear is entirely wrong. In fact, the decision is expressly clear. Returning to the last page (77) of the decision we read Toal's summary:
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 which 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.
What now? Judge Dickson has asked the two sets of lawyers to submit their replies to the responses on Friday, 12 October. This will make the fifth iteration of the lawyers' cases before Judge Dickson (the motions/petitions, the lists, the briefs, the responses, and the replies to the responses). Let us hope the judge is satisfied with these five rounds. He has mentioned that he expects to hold a hearing on all this during the weeks of October 22 and 29. I am sure everyone will agree, enough already. Let's have some resolution. I fully expect Dickson to enforce the SCSC decision. That will mean he will sweep aside the DSC arguments as improper and/or irrelevant. The SCSC decision will be enforced. The 29 parishes will be returned to the authority of the Episcopal Church diocese.
