A RETURN TO CHIEF JUSTICE 

DONALD BEATTY'S OPINION

In my last few blog posts, I discussed Chief Justice Donald Beatty's part of the South Carolina Supreme Court decision of August 2, 2017 that recognized Episcopal Church and the Episcopal Church in South Carolina's trust control over 28 (or 29) parishes, the independence of 8 church organizations, and TECSC's possession of Camp St. Christopher. It was necessary to focus on Beatty's opinion because Diocese of South Carolina attorney and chancellor Alan Runyan made a major issue of it in his oral arguments before Judge Edgar Dickson in the court hearing of 19 November in Orangeburg. Since Runyan made so much of it, we should revisit Beatty's opinion now as a way of clarifying the issues at hand.

Runyan's remarks about Beatty's opinion may be found here on pp. 19-27. As I understand them, this is what Runyan is saying about Beatty's opinion:

---The All Saints decision is the law.

---The Dennis Canon did not create a "legally cognizable" trust under SC law.

---The Dennis Canon had no effect until parishes gave it written accession.

---As for Beatty's conclusion that the 28 parishes' express accession to the Dennis Canon was sufficient to form trusts, Runyan apparently refers to this when he says: "This sentence is ambiguous because it is completely at odds with the record and the rest of the opinion" (p. 26).

I see three major takeaways from these points:

1) --- Runyan seems to be implying that Beatty's opinion is self-contradictory from the earlier text, and illogical, or at least inconsistent. Thus, Beatty's conclusion should not be taken by itself.

2) --- Instead, the court "must discern intent from all parts of opinion, not an isolated part" (p. 26). Thus, a judge must discern the meaning of an entire text, not just the conclusions of the text.

3) --- "No accession facts before the Court" (p. 25). In other words, there is not sufficient evidence in the record before the court that the parishes acceded to the Dennis Canon.

Now, let us consider each of these three points.

1-The meaning of Beatty's opinion. The text is relatively short. Find the pages in my last blog posting here . Beatty's language is perfectly clear, precise and concise, and, I would add, logical and reasonable. Here are Beatty's main points in his opinion:

---"I would find those parishes that did not expressly accede to the Dennis Canon should retain ownership of the disputed real and personal property." 
(The 8 church organizations that had not acceded to the Dennis Canon.)

---"In fact, I look no further than our state's property and trust laws to determine whether the purported trust created by the Dennis Canon comports with the requirements of either an express or constructive trust." 
(Follows All Saints decision.)

---"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." 
(Follows All Saints decision.)

---"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." 
(Trust cannot be imposed by external party. Settlor must make trust by explicit written means. The 8 religious organizations made no accession in writing to the Dennis Canon.)

---"I agree with the majority as to the disposition of the remaining parishes because their express accession to the Dennis Canon was sufficient to create an irrevocable trust."
(The 28 parishes made written accessions to the Dennis Canon
with the effect of forming unbreakable trusts. This follows state laws on trusts; thus, no inconsistency with All Saints.)

In sum, Beatty says that the All Saints decision is the guide, in that, in South Carolina, an external party cannot impose a trust on a deed holder unilaterally. The owner must make written statement to set up a trust for another party. With that in mind, Beatty went on to say 28 parishes did indeed set up trusts for the Episcopal Church. They did this by making explicit accession to the Constitution and Canons of the Episcopal Church without condition or limitation. The Dennis Canon was a canon of the Episcopal Church. By declaring accession to all of the canons, the 28 parishes adopted the Dennis Canon which included trust control of the local property for the beneficiaries, the Episcopal Church and its diocese. So, when the parishes' gave written accessions to the C and C of TEC they set up trusts for TEC. As contracts, these trusts were not revocable by one party. The parishes may later say they were withdrawing their trusts, but they could not do so unilaterally under state law. 

This is my understanding of Beatty's opinion in the August 2, 2017 SCSC decision. I see nothing ambiguous, contradictory, or illogical about it. It is perfectly reasoned and reasonable. It follows exactly on state laws concerning property and trusts. Any assertion that Beatty's opinion is too problematical to be enforced is completely without merit.


2)-On the second point, that a judge "must discern intent from all parts of opinion." I have already discussed this, in my last two blog postings. Our judicial system has always held that conclusions of a supreme court decision are final. How the justices arrived at their decision(s) is irrelevant to the law. Anyway, it would be impossible for judges to interpret the meaning of a whole text of any supreme court decision. I see this as an absurd assertion.


3)-On the "facts." As I see it, this was really the most important point of Runyan's argument in the hearing. He seemed to be saying there were no supporting facts to prove that the 28 parishes acceded to the Dennis Canon as the Church lawyers were claiming. If they did not give explicit written statement for a trust, they did not in fact make a trust under SC law.

The question then becomes, In what form does a written statement setting up a trust have to be?

When the five justices of the SCSC were going over this, four of them agreed that 28 of the 36 parishes had indeed formed trusts over their properties for the Episcopal Church and its diocese. Pleicones, Hearn, Beatty, and Kittredge all agreed. Only Toal dissented. Of the four, one, Kittredge, went on to say that the 28 parishes revoked their accessions to the Dennis Canons thereby freeing themselves from the obligations of the trust. That left a majority of three justices agreeing that the 28 remained under trust control of TEC. Thus, eighty percent of the SCSC justices agreed that by giving written accession to the Constitution and Canons of the Episcopal Church, the 28 had in fact formed trusts for the Church. They did not have to make an explicit statement that they were setting up trusts under the Dennis Canon because that was covered in the accession to the "canons" of the Church. The Dennis Canon was, of course, one of the canons they were accepting. The terms of the Dennis Canon contained the trusts. By acceding to the canon, they acceded to the trusts.

The four justices did not pull their opinions out of thin air. They considered a mountain of evidence provided by the Church lawyers showing in detail how each parish had acceded to the Dennis Canon. This evidence was presented in the circuit court trial of 2014 and again to the state supreme court in 2015. It is a matter of public record. The full body of information is too voluminous to give here. Instead, I am providing some of the summary pages from "The Record on Appeal" that went to the SCSC (click on image for enlargement): 

The pages provide the salient facts about these parishes' accession to the canons of the Episcopal Church, including the Dennis Canon, and to the trusts contained therein.


In conclusion, I would emphasize two points coming from all of this:

---Chief Justice Beatty's opinion is soundly constructed and his conclusions are based on facts. There is no ambiguity or inconsistency in his opinion; and, therefore, Judge Dickson should consider Beatty's conclusion as the final word of his opinion.

---The charge that there is insufficient evidence the 28 parishes set up trusts for the Episcopal Church has no substance. There is in fact a great deal of supporting evidence that they acceded to the Dennis Canon which included a trust. They set up trusts when they adhered to the Canon. 

Bottom line--- Judge Edgar Dickson has a clear statement from the majority of the South Carolina Supreme Court justices that 28 parishes made trusts giving the Episcopal Church beneficiary control over the local properties. He should implement the SCSC decision as soon as possible.

FURTHER THOUGHTS 

ON THE COURT HEARING 

OF 19 NOVEMBER

Thoughts about the hearing of 19 November, which I attended, keep going around in my head as I continue to sort out what happened in the hour and a half hearing and what it meant. I have gone over and over my notes of the lawyers' remarks to the judge, as well as attorney Alan Runyan's presentation, and the SCSC decision of Aug. 2, 2017. Runyan helpfully provided a slide presentation on his arguments. It is available online here . Speaking only for myself as an ordinary layman, here are my thoughts and opinions now about the hearing and what should happen next:

The Episcopal Church and the Episcopal Church in South Carolina asked the judge to implement the SCSC decision. 

The Diocese of South Carolina asked the judge not to implement the SCSC decision and to decide the issues on his own.

That is it in a nutshell.

The SCSC decision of Aug. 2, 2017, was "remitted" to the circuit court on November 19, 2017. DSC appealed to the U.S. Supreme Court to take the case, but SCOTUS refused, in June of 2018. Thus, the SCSC decision is the law of the land. It cannot be appealed. It cannot be retried. Under the "Remittitur," the circuit court is obligated to enforce the decision.

If DSC is asking the judge not to implement the decision, on what grounds could they argue such? That is the point of the matter in lawyer Alan Runyan's arguments to the court last Monday. As I understood it, these were Runyan's main points in his presentation to Judge Dickson:

---The decision is unenforceable because it is unclear, fractured, and filled with ambiguities.

---The five separate opinions meant no collective statement, no guidance, no certainty.

---The circuit court  must discern what the SCSC decided. Since the issues were not settled in the decision, this court has jurisdiction to settle them.

---the All Saints decision (2009) prevails. It requires a settlor to make explicit, written construction of a trust.

---TEC/TECSC did not provide factual proof the 29 parishes acceded to the Dennis Canon.

---The circuit court must now decide whether the parishes acceded to the Dennis Canon.

---Chief Justice Donald Beatty's opinion is key. 

Runyan spent much of his time focusing on Beatty's part of the SCSC decision (see Runyan's online presentation cited above, pages 19-27). As I saw it, he implied that Beatty's opinion was self-contradictory because it held the All Saints decision to be the standard, then abandoned the standard. Runyan implied Beatty's conclusion that the 28 parishes acceded to the Dennis Canon cannot be taken at face value because it contradicted his earlier avowed statement of the standard that a trust required an explicit written statement of the settlor. Runyan said this did not happen with the parishes; and therefore, the parishes never established a trust for TEC/TECSC. Thus, the lawyer said, Beatty's conclusion in support of TEC/TECSC must not be accepted but must be considered only as part of his whole opinion. Runyan said, the court "must discern intent from all parts of opinion, not an isolated part." I take this to mean that Runyan is asserting that a judge has to take into consideration the entire text of an opinion and not just the conclusion.

Et voilà, there is the crux of the matter. DSC wants the judge himself to interpret each of the opinions of the supreme court. This would mean interpreting the entire text, not just the conclusions. If I am seeing this right, it would turn a supreme court decision on its head and reverse the entire way in which supreme courts have worked in American law since the founding of the republic. "Discern intent from all parts" is absurd and completely unworkable. No decision could every be enforced because lawyers would argue about "intent from all parts of opinion" until the cows come home. No judge could ever "discern" the justices' meanings in every part of every decision, nor should they have to. That is the whole point of having a supreme court. That is why the high justices give their conclusions at the end of the paper. That is why former chief justice Jean Toal listed the orders on the last page, so that the lower judges would know exactly the rulings of the high court and would not have to "discern" anything. The very idea that lower court judges should interpret an entire decision and make their own conclusions in disregard of the orders of the high court is absurd. Nothing would ever be settled. It would leave only chaos in the whole legal system. As disingenuous as it sounds, this is what I understood to be in the statement "...discern intent from all parts of opinion...". 

In fact, the way supreme court decisions have always worked, is for the conclusions to become the law of the land. A state supreme court decision may be overturned by the U.S. Supreme Court. If SCOTUS denies cert, or takes the case and affirms the state court, the state supreme court decision becomes the fixed law and unappealable. This is what happened in the church case in South Carolina. It seems to me that Runyan is now telling the lower court judge that he does not have to accept the conclusions of the SCSC decision as final and can relitigate the issues settled by majority vote in the SCSC. If so, it is incredible.

As for Runyan's assertion that the SCSC decision is too ambiguous to know, this is demonstrably untrue. The last page (77) of the decision explicitly spells out the three orders of the court (as I showed in my last blog piece). These were majority decisions.

Now, back to Beatty's opinion. Here are the three pages (pp. 36-38) of it from the SCSC decision (click on image for enlargement):

I encourage you to read all three pages. And, I also encourage you to read Runyan's arguments about Beatty's opinion on pages 19-27 mentioned above. Compare the two. 

Look at Beatty's next to last paragraph where he gives his conclusion:

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.

This is a direct and clear conclusion whose meaning cannot possibly be ambiguous. Beatty said the 28 parishes gave express accession to the Dennis Canon and this created an unbreakable trust. This is Beatty's opinion. How he arrived at this is irrelevant. Supreme court decisions must be followed by what they said, not how they got to what they said.

What about the Dennis Canon? In his written and oral arguments to Judge Dickson, Runyan referred frequently to the All Saints decision. This SCSC decision was written by Chief Justice Jean Toal and issued in September of 2009. It was a unanimous agreement among the five justices, one of whom was Beatty. The decision said that All Saints parish, of Pawleys Island, owned its property solely and had seceded legally from the Episcopal Diocese of South Carolina. The important point was that the diocese had given a quit claim deed to the parish in 1903 relinquishing in perpetuity any claim to the property. Therefore the Dennis Canon, adopted by the diocese in 1987, could have no automatic effect on the parish. In order to effectuate a trust, the parish would have had to make written and explicit accession to it, something that it did not do. Thus, All Saints remained the full owner of their property. 

What was the relation of the All Saints decision to the church case in 2015? Toal, the author of the decision, stated explicitly in the hearing of Sept. 23, 2015, that the All Saints decision was not at issue. The two cases were different. What Runyan argued was that the 2009 decision should be made blanket for the whole diocese in 2015. 

When the five justices of the SCSC made their decisions on the church case, only one defended the All Saints decision, Toal. The other four justices interpreted it differently. They agreed that the 28 parishes had acceded to the Dennis Canon. Two of the four (Pleicones and Hearn) said the Canon went into effect automatically under the structure of hierarchy. Two (Beatty and Kittredge) said it did not go into effect automatically, as per the All Saints decision, but only when the parishes acceded to it. It was the parochial action, not the Canon itself, that put the trust into effect. However, Beatty and Kittredge then broke apart. Beatty said the parishes did not have the right to revoke their accessions. Kittredge said the parishes did have the right to revoke their accessions, which, he said, they legally did. In the end, only Kittredge agreed with Toal that all of the parishes were outside of the trust control of TEC/TECSC while the majority agreed that the 28 parishes were under trust control of TEC/TECSC because of the effectuation of the Dennis Canon. This is the great conclusion and order of the SCSC. It is not unclear.

Why Runyan focused so much on one justice, Beatty, is interesting to contemplate. Before the SCSC decision, Runyan had every reason to believe that Toal would fight for her 2009 work (as we know  now she in fact did). Too, he had reason to believe that Beatty would remain a supporter of Toal's work since he had been one of the signatories of her 2009 opinion. All Runyan needed was one more justice to make a majority and carry the day. If so, this was Runyan's fatal miscalculation. He must have been very surprised when the SCSC decision came down and Beatty had sided with the pro-TEC faction (Pleicones and Hearn) against the pro-DSC side (Toal and Kittredge). As it turned out, Beatty was the determining vote among the five justices; and his determination that the 28 parishes had acceded to the Dennis Canon was the turning point of the whole case. Runyan must have been terribly disappointed that Beatty had not joined Toal.

As I see it, Beatty agreed that All Saints required the deed holder to make explicit written terms to set up a trust. Then, Beatty went on to say the 28 parishes did just that. He was going on the evidence he had seen. In this, Beatty was in the great majority who said the parishes did indeed create trusts by acceding to the Dennis Canon. Only Toal disagreed. I see Runyan's argument that the parishes did not create trusts as weak. It was not an issue to four out of the five justices. I cannot see why it should be an issue today.

So, why the focus now on Beatty? My best guess is that Runyan has no cards left to play. In reality, he has lost the game. Choose your own imagery for his present tactics: everything including the kitchen sink, throwing spaghetti on the wall, a Hail Mary pass...  Since this was the "swing" vote, Beatty's opinion would be easier to isolate and use to sow confusion in the circuit court than picking one on the polar sides, deadlocked two to two. My guess is that Runyan's aim here has less to do with Beatty and more to do with Dickson. He needs to make Judge Dickson believe the SCSC decision is too unclear to implement; and therefore, the judge will have to decide the issue of the properties on his own. So, the criticism of Beatty is for Dickson's benefit. At least, this is the way it appears to me. It smacks of desperation.

In conclusion, as I see it, Judge Dickson has no choice but to implement the SCSC decision of Aug. 2, 2015. This decision is clear and contains three explicit directives: 28 parishes under TEC/TECSC, 8 parishes outside TEC/TECSC control, Camp St. Christopher under TECSC.

If I am right that Runyan is trying to render inert the SCSC decision and get the judge to retry the property issue, I do not see this happening. Anyway, what judge in his or her right mind would want to reopen this highly complicated, complex, and difficult case that has challenged the wisdom of Solomon among the legal community for years. Recall it took the highest court in SC 22 months to publish a decision.What I do not understand is how Judge Dickson can see the SCSC decision as unclear, as he keeps saying, or indicating. Unless I am misunderstanding a lot, the decision is perfectly clear just as is the established role of a supreme court decision in our judicial system. It's the law.

In my opinion, the sooner Judge Dickson implements the SCSC decision the better because justice delayed is justice denied. The SCSC remitted its decision to the circuit court more than a year ago. Continuing to delay its implementation after so long a time is not reasonable.

As I see it, Judge Dickson can do one of two things, order the implementation of the SCSC decision, or relitigate the whole case. I cannot believe this famously reasonable, fair, deliberate, and judicious man would ever choose the latter.

THANKSGIVING

Tomorrow is Thanksgiving Day, 2018. A few days ago, the Episcopal Church in South Carolina enjoyed a festive annual meeting. Two days ago, circuit court judge Edgar Dickson held a hearing on the church case. This is a good moment to stop and assess where we stand now and why we should give thanks. 

STATE COURT. On Monday, November 19, Judge Dickson listened to the two sides' lawyers present their arguments concerning the South Carolina Supreme Court decision of August 2, 2017. The judge said he was considering at the moment only one of the six motions/petitions before him, the one in which the breakaway diocese (DSC) is asking the judge to set aside the SCSC decision and rule anew on the issue of the properties, the 29 parishes and Camp St. Christopher. In response, lawyers for the Episcopal Church and the Episcopal Church in South Carolina argued that the circuit court has no choice but to implement the SCSC decision. The circuit court does not have the discretion of retrying a case settled in the SCSC. 

The overall message coming from Judge Dickson was that the SCSC decision is not clear and he is challenged to interpret what the opinions mean. Respectfully, I do not understand the judge's view at all. In fact, the SCSC decision is as clear as it can be.

The decision is online here . I am presenting below its last two pages. The unnumbered pages are 76 and 77. This is the end of former chief justice Jean Toal's contribution. Before the hearing, Toal assigned herself to be in charge of this case. It was obvious in the hearing of Sept. 23, 2015 that she was very much in control of the case and the whole courtroom. Her goal, as we learned later, was to validate and universalize her 2009 All Saints decision, which she has written herself. That ruling had come down in favor of the local parish in leaving the Episcopal diocese and in keeping its property, in spite of the Dennis Canon. In the Aug. 2 decision, Toal's was the last and longest opinion. Since she was in the minority, she could not write the majority opinion. Pleicones did that. Thus, Toal gave her opinion of the issues first and then on the last few pages summarized the court's majority conclusions. Here are the last two pages (click on image for enlargement):

In Footnote 72, Toal summarizes perfectly clearly the decisions of the court. The key sentence is this:

"However, we [Toal and Kittredge] 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."

This sentence is the decision in a nutshell.

This is the explicit order of the Court. It is a 3-2 majority decision. It is is no way unclear; and I do not see how Judge Dickson, or anyone else, could reasonably see this sentence as unclear.

Toal went on to list specifically the three orders of the Court as 1), 2) and 3). Read what these say. Toal is as plain as anyone could be. The wording here is crucial. It is not an opinion. It is a statement of fact as to the majority decisions of the Court: the 8 local church organizations that did not accede to the Dennis Canon keep their titles; the 28 parishes that did accede to the Dennis Canon are under trust control of the Episcopal Church which under the trust has become the title holder; and Camp St. Christopher is held by the trustees of the Church diocese. I simply do not see how anyone can read these three points and say the SCSC decision is not clear. In fact, it could not be any clearer. The majority ruled explicitly. Just because the majorities are different on the three items, this in no way invalidates or clouds any of the results. So, the idea that five different opinions did not result in a clear cut majority ruling by the Court is easily shown to be nonsense. There are three findings, and all three are by 3-2 majority.

I am not a lawyer, but if I could make my plea to Judge Dickson it would be to reread the last two pages of the SCSC decision. They clear up this entire case.

Be sure to read Steve Skardon's excellent analysis of Monday's hearing. Find it here . It is the best summary of the hearing available online.

FEDERAL COURT. As far as I know, nothing has happened on the federal scene lately. Judge Richard Gergel, of the U.S. District Court, in Charleston, has scheduled a trial in March of 2019. I can only assume the two sets of lawyers are in the "discovery" phase gathering all their materials in preparation.

One should recall that, technically, mediation is still open between the two sides. There were three sessions of mediation from October 2017 to January of 2018. As far as we know, these resulted in nothing. However, mediation is still open and it is possible sessions may resume. Since the meetings are private, the public may not be aware of them at the time. The original idea of the mediation was to settle all of the legal issues between the two sides. It is still possible this could happen although I see no sign of it. Given the history of this case, I really do not expect a compromise settlement. I expect this war will stay in the courts until the last shot is fired.

Speaking of end, the question I get most frequently is, How much longer? When will this end? Well, God only knows. I certainly do not know. I do know people all around are exhausted and disappointed, and hurt. The pain is all too evident on both sides. The schism has been a highly emotional event. Everyone involved has been on a wild roller coaster ride up and down and around. Every emotion that comes with this is valid. I say embrace them. Clasp the hurt, disappointment, fear, suspicion, even anger. It is unhealthy to deny these and try to ignore them. They will come out one way or another. Better to own them and let them out. Cry if you have to. Pound the table. Rage at the wall. If you have a garden, as I, go out and pull weeds if nothing else. Go to the golf course and play the 18 holes. Read a good escapist book (I like John Grisham). You can think of some good therapy. We would do well to let out our feelings in constructive ways.

Besides, tomorrow is Thanksgiving. Just look at all the blessings we have in life. Look around you. They are everywhere. Personally, I am blessed beyond measure. I have a wonderful wife of 52 years who learned long ago how to cope with me. I have beautiful twin daughters whom I love dearly, and a son-in-law of whom I am proud. I have a teenage granddaughter for whom I would not trade gold (typical teenager---glued to her phone). I have irreplaceable brothers and a sister, a nice home, and a beautiful garden. I have a great church family. I was able to have my dream career. I could go on. What about you? Look around and count your blessings. Be thankful.

If you are feeling a little down this holiday, you are not alone. A lot of people feel stress at these times of the year, especially people who live alone. Holidays can be hard. My suggestion is to do something for someone else. It does not have to be elaborate. It could be small and simple. Bake a pan of cookies and take them to your next door neighbor, or to the local fire or police department. Believe me, fire and police personnel have big appetites. Rake the leaves in your neighbor's yard. Call a friend on the phone just to say hello. Put your mind to it. Doing for others is also doing for ourselves.

Remember there are two great commandments, love God and love neighbor. The operative word is love. If we follow that, we cannot fail.

The schism will be over one day. We cannot know when. We cannot know how. When it is over we must be able to say we did the right thing and for the right reasons. I happen to think the Episcopal Church is in the right. It has fought the good fight for human rights for seventy years now. People who had been persecuted, neglected, marginalized have found freedom, equality, and inclusion in the loving arms of the Church. 

It just so happened that one of the few breaking points in this movement came in eastern South Carolina. The leaders of the Episcopal Church there resolved to leave the Church rather than accept the extension of equality for and inclusion of homosexual people. They willingly chose to break this part of Christ's body. I do not question their motives. They thought they were doing the right thing. I happen to disagree with what they did. I think their choices of policies and procedures were all wrong. And, I think the outcomes of those bad choices are evident all around in the ruins of the old diocese. The schism has been a tragedy and disaster in so many ways for both sides. What was meant to be a great construction turned out to be a great destruction. Everyone lost (except the lawyers). Look at the stats: DSC has lost nearly half its communicants and a third of its budget in the decade of Bishop Mark Lawrence. Is this what the people of the diocese wanted when they elected Lawrence, twice, in 2006-07? I don't think so.

This is not a perfect world. It is made up of imperfect people but is overseen by a perfect divine force. This is our first and last consolation, and for that we must give the greatest thanks of all. Our last refrain is, and should always be, Thanks be to God!   

THE COURT HEARING OF 19 NOVEMBER

Circuit court judge Edgar Dickson held a hearing today in the Orangeburg county courthouse, in Orangeburg, SC, from 10:00 to 11:30 a.m. This "Motions Hearing" was to give the two sets of lawyers time to make their oral arguments to the judge. They have already presented 22 papers to him, 6 motions/petitions and 16 arguments for and against. Each side has presented 3 motions/petitions to the judge.

DSC:

1-Betterments suit. (Nov. 19, 2017)

2-Complex case designation. (Dec. 27, 2017)

3-Clarification of jurisdiction (Mar. 23, 2018)

TEC/TECSC:

1-Motion to dismiss Betterments suit. (Dec. 15, 2017)

2-For implementation of the SCSC decision, and for a Special Master. (May 8, 16, 2018)

3-For an accounting. (July 11, 2018)

Judge Dickson declared he was considering today only one motion, DSC's motion for clarification of jurisdiction (Mar. 23, 2018). He said he was putting all the other 5 on hold for later. As I read it, DSC's motion for clarification is asking the judge to declare the SCSC decision of August 2, 2017 unenforceable, and to assume jurisdiction over the issues raised in the decision, namely the disposition of the properties of the 29 parishes and Camp St. Christopher. In other words, DSC is asking the judge to ignore the SCSC decision and rule on his own concerning the property settlement.

The first lawyer to speak today was Alan Runyan, for DSC. He talked for 50 minutes. As far as I could tell, he made no new argument other than what he has put in his written statements. He seemed to argue entirely on process, that is, the ways the five justices made their decisions were flawed, the implication being that their final decisions were also flawed. Runyan spent a great deal of time criticizing the opinion written by Chief Justice Beatty. This was an interesting turn since he had spent so much of last year attacking Justice Kaye Hearn demanding that she recuse herself from the case. Hearn was barely mentioned today. The point of Runyan's long monologue was to insist that the circuit court has jurisdiction over the issues in the unresolved supreme court decision.

On the TEC side, Thomas Tisdale and Mary Kostel led the presentations. Their arguments were really simple and straightforward, the SCSC has issued a decision that is the law. The SCSC sent (remitted) their decision down to the circuit court for implementation. The court has no choice but to carry this out. The decision is not ambiguous, conflicted, or unenforceable. It is clear. The SCSC ordered the return to TEC control, the 29 parishes and Camp St. Christopher.

Judge Dickson concluded the session by saying he was considering only the one motion, for clarification, now. He told the lawyers he has more questions for them and would be sending these in emails. 

Two other points struck me: 1-The judge encouraged the two sides to keep on with mediation; and 2-The judge did not even hint that there was any question about a SCSC decision being enforceable. The problem was deciding exactly what was to be enforced.

In my view, DSC's assertion that the SCSC decision is too ambiguous is demonstrably false. Read the decision. Find it here . On the last page (77), former Chief Justice Jean Toal spells out explicitly the majority decisions of the court: 1-the 8 church entities that did not accede to the Dennis Canon remain outside of the trust; 2-the 28 church organizations that acceded to the Dennis Canon remain under trust control of TEC; and 3-Camp St. Christopher is held by trustees of the TEC diocese. These three orders could not be any clearer. Since the justices made their decisions explicit, there was no need for further direction on remit to the circuit court. The orders to the court are plainly given at the end of the decision. I do not understand how the judge, or anyone, could think they are unclear.

As for five different opinions, yes there were five individual opinions, but that does not mean five conflicting opinions. There was a 3-2 majority. The three opinions in the majority all agreed on the three essential points given at the end.

Runyan spent practically the whole time talking about how the justices reached their decisions. How they reached their conclusions is irrelevant. The only relevant matter before the circuit court is the decision of the SCSC. It is explicitly made at the end of the text. 

In my view, Judge Dickson is trying to be as careful, deliberate, and fair as possible. He is going out of his way to give both sides all the room they need to make their cases. One can admire his careful approach. However, at some point this has to end. There is such a thing as too much of a good thing. 

I think some people may be making too much of today's hearing. We should step back and see that there was nothing new here and nothing was decided. It was the same old arguments. The judge himself issued nothing. This does not mean that the judge is ready to discard the SCSC decision. That is not going to happen; and it is cruel of DSC to promote the idea that the parishes are going to remain apart from TEC. Anyone who thinks Judge Dickson is going to throw out the SCSC decision and go try this case again is entertaining a fantasy. 

Bottom line:   today's hearing changed nothing. We are still waiting, waiting.

The two sides have issued press releases about today's hearing. For the Church side see here . For the DSC summary, see here . Best of all is the analysis of scepiscopalians with which I agree completely. Find it here .

         


         FAITH, HOPE, AND LOVE


The annual meeting of the Episcopal Church in South Carolina has adjourned. It was a great festival celebrating faith, hope and love.

For the bishop's address, see the report in www.scepiscopalians.com.

One of the highlights of the meeting was the admission of St. Anne's Episcopal Church, of Conway, as a parish. St. Anne's started as a worshipping community of 22 people meeting in the Lovelaces' living room. It has grown into a large and vibrant church of 122 people.

The diocese is working hard to facilitate the return of the 29 parishes. The Rev. Bill Coyne is overseeing this with the help of a 12 member transition planning group. There were some people present from the returning parishes.

In a moment of gratitude and remembrance, the convention applauded the crucial work of the Episcopal Forum which is now dissolving with mission accomplished.

Several hundred attendees enjoyed the beauty of the Church of the Holy Communion as well as the warm hospitality of its parishioners.

For me personally, the meeting was a great time for catching up with old friends and making new ones. Above all it was a moment to know the presence of God among so many good and faithful people.

After six years of schism, the Episcopal Church is well on the road to recovery from the trauma of the break. Indeed, the end of the long legal road is in sight. It is just a matter of time before the 29 parishes and the entity of the old diocese return home. And, home is the ancestral church standing for faith, hope and love.

I plan to attend the hearing on Monday and will post a report as soon as I can even if I have to send it from my phone as I am doing now.

A REVIEW OF THE MATTER 
BEFORE JUDGE DICKSON

As everyone knows, Judge Edgar Dickson, of the circuit court, will hold a hearing on the church case in his courtroom, in Orangeburg, on Monday, November 19, at 10:00 a.m. The judge has said he will listen to the lawyers' arguments for their various motions until he gets tired of it. Dickson actually has twenty-two papers before him already. Each side has entered three motions/petitions each. There is a great deal on the judge's plate here. Several weeks ago, I posted a blog piece trying to sort out what is on the plate. I thought it would be helpful to post this summary again as preparation for the hearing.

Original blog post of October 16, 2018: 

FINALLY, ALL PAPERS FILED

WITH JUDGE DICKSON

Finally, at long last, all papers have been filed with Judge Edgar Dickson, of the circuit court. It has been nearly a year since the South Carolina Supreme Court denied the Diocese of South Carolina's petition for a rehearing and issued a "remit" order to the circuit court sending its August 2, 2017, decision down to the lower court. On last Friday, October 12, 2018, the lawyers for both sides submitted their final papers to the judge as per his request. Now, we can expect Judge Dickson to announce a date for a hearing, or meeting in the courtroom, with the lawyers. He said recently that he expected to have a court date in the weeks of October 22 or 29. It is entirely possible he will announce a date sometime this week.

Before we get to last Friday's final papers, it would be helpful to review what has happened in the last year that led up to these papers. We need to put these last lawyers' statements in perspective in order for them to make the most sense. Once again, I must remind everyone that I am not a lawyer or legal expert and I speak for no one but myself. Furthermore, all of my comments are offered as opinions.

REVIEW

1--- On August 2, 2017, the South Carolina Supreme Court issued a decision recognizing the Episcopal Church diocese's legal control over 29 parishes and Camp St. Christopher.

     DSC appealed for a rehearing and for Justice Kaye Hearn to be recused and her opinion vacated. On November 17, 2017, the SCSC denied both petitions and issued a "Remittitur" to the circuit court, remitting its Aug. 2 decision to the lower court.

     In February, 2018, DSC appealed to the United States Supreme Court asking for "cert." SCOTUS denied cert on June 11, 2018. This ended all possible appeals of the SCSC Aug. 2, 2017 decision.

2 --- DSC filed three motions/petitions/complaints to the circuit court.     1) Betterments suit, Nov. 19, 2017. This demanded payment from TEC/TECSC as the owners of the properties.     2) Motion for a complex case designation for the betterments suit, Dec. 27, 2017. This simply asked one judge for the whole matter.     3) "Motion for Clarification of Jurisdiction and for Further Relief," Mar. 23, 2018. This asked Judge Dickson to set aside the SCSC decision and decide the issues anew.

3 --- TEC/TECSC filed three motions/petitions/complaints to the circuit court.     1) a motion to dismiss DSC's Betterments suit, Dec. 15, 2017.     2) a petition asking the court to enforce the SCSC decision of Aug. 2, 2017 and the appointment of a Special Master to oversee this, May 8, 2018.     3) a petition for an accounting of assets of DSC since 2008, July 11, 2018.

To summarize, DSC asked for two concessions of Dickson, for Betterments payments from TEC/TECSC and for the circuit court to set aside the SCSC decision and rule on the issues at hand. On the other side, TEC/TECSC asked Dickson to dismiss the Betterments suit, to implement the SCSC decision, and to require a full accounting of DSC assets. This boiled down to two big, different issues: the Betterments case and the implementation of the SCSC decision. As we will see, as time went by, the Betterments issue all but disappeared while the SCSC issue monopolized the scene.

Once SCOTUS denied cert on June 11, 2018, the field was cleared for the local courts to proceed.

On July 27, 2018, Dickson held a status conference with the two sets of lawyers and issued a schedule:

Aug. 2 - lawyers present their "lists" of requests of the court;

Sept. 24 - lawyers present their responses to the lists;

Oct. 5 - lawyers present their responses to the responses;

Oct. 12 - lawyers present their replies to the last responses.

Following this schedule, DSC submitted a "list" essentially saying the SCSC had not resolved the issues and the circuit should do so. TEC/TECSC simply asked the judge to implement the SCSC decision. 

This has remained the basic positions of both sides, DSC asking Dickson to set aside the SCSC decision and decide himself on the issues, and TECSC asking the judge to carry out the SCSC decision. The back-and-forth of the responses has only made this clearer. This leads us to last Friday's final arguments:

DSC

On Oct. 12, the DSC attorneys submitted "Plaintiffs' Reply to Defendants' Brief in Opposition to Plaintiff's [sic] Motion for Clarification and Further Relief."  The entire paper dealt with the SCSC decision which the lawyers said was too vague and conflicted to be enacted. They did not mention the Betterments suit or the complex case request. They made the lame argument that "The Supreme Court did not issue a mandate." In fact, the SCSC issued a "Remmittitur" to the lower court. They "remitted" their decision to the circuit court. To me, that is the same thing as a mandate. I do not see an effective difference.

The lawyers also returned to the issue of Old St. Andrew's which they had addressed off and on for months. They asked Dickson to clarify the supposed ambiguity of the identity of the "St. Andrew's" on the list of parishes outside TEC's trust control. The official list identified the "St. Andrew's" as the one in Mt. Pleasant.

Finally, the DSC lawyers declared, "the Court should hear this matter as soon as it is able. It should determine which, if any, of the 28 parishes not mentioned by the Supreme Court agreed in a signed writing to the Dennis Canon based on the existing trial record. It should also determine the ambiguity, if any, presented by Chief Justice Beatty's footnote." In effect, they asked the judge to discard the SCSC decision and decide for himself the issues involved in the case. I cannot imagine any judge in his right mind who would agree to do such a thing.

TEC/TECSC

The Church side lawyers submitted "Defendants' Omnibus Reply Brief to Plaintiffs' Opposition Briefs to Defendants' Petititon for Enforcement, Petition for an Accoutning, and Motion to Dismiss Betterment Action." While arguing essentially the same points as they had all along, the lawyers gave them a new twist. They claimed the DSC parishes had repudiated their claims to the properties: "Plaintiffs have repudiated their roles as trustees." The Church lawyers pointed out that the DSC lawyers had said in arguing for Betterments, "Plaintiffs have standing to bring this action because they have repudiated their roles as trustees." If they repudiated their claims to the properties, this would render moot any re-litigation of the property ownership issue.

In conclusion, after all is said and done, the Episcopal Church diocese is asking the judge to enforce the state supreme court decision and the breakaway diocese is asking the judge to discard the decision and decide himself the settlement of the  issues of the case. I cannot envision any scenario in which Judge Dickson, a famously careful, deliberate, and reasonable man would ever entertain the idea of reopening this case. If he is not going to re-litigate the case, he has no alternative but to implement the SCSC decision.

What happens next? I expect Judge Dickson will announce a day and time for a court appearance with the two sets of lawyers at the courthouse in Orangeburg; and I expect he will do this within the next week. It is possible he will hand down some decisions at the court time. It is also possible he will only have discussion with the lawyers and defer decisions to some future time. At any rate, we are inching closer, however slowly, to resolution of a long, long running disaster. I expect to be at the court appearance which will be in the near future. I have a hunch the judge will issue some important decisions. I want to be there in person to hear them. 

For links to the court papers, see the listing here .

THANK YOU,

BARBARA MANN

MARCY WALSH

TOM MYERS

DOTTIE PAGLIARO

LYNN PAGLIARO

Episcopalians in South Carolina, indeed everywhere, owe a huge debt of gratitude to Barbara Mann, Marcy Walsh, Tom Myers, Dottie Pagliaro, and Lynn Pagliaro. 

Nearly fifteen years ago, in December of 2003, this small band met informally and resolved to do what they could to keep good relations between the diocese of South Carolina and the Episcopal Church. A few weeks later, their little organization was formally incorporated as the Episcopal Forum of South Carolina with its stated mission "to insure that the Episcopal Diocese of SC continues to exist in full participation with ECUSA, its constitution, canons, and leadership." Its first conference was held in Charleston in February of 2004: "Seeking Unity in Diversity." It drew 200 people. The Episcopal Forum was off and running, for the next fifteen years.

Now the Episcopal Forum is declaring mission accomplished and is dissolving. See the article on this in scepiscopalians at www.scepiscopalians.com . 

The fifteen year history of the Forum has been most remarkable. It is too much to relay here, so I will direct you to the index of my History of the Episcopal Church Schism in South Carolina. Here is a summary:

Upon returning to SC from the General Convention of 2003, Bishop Salmon and the diocesan power structure resolved to reject the validity of the Church's confirmation of Gene Robinson, a non-celibate homosexual man, to be a bishop. This began in earnest an adversarial relationship between the diocesan leadership and the Episcopal Church that was to result nine years later in schism. The Forum was formed to resist this.

The diocesan leadership viewed the Forum variably as insignificant, an adversary, an enemy, but never as a friend. As time went by, the schismatics came more and more to identify the Forum as the disloyal opposition, disloyal, that is, to the diocese. The Forum did not see itself as an adversary of the diocese but as a friend of the national church. 

The diocesan leaders' hostility to the Forum reached a crescendo on October 20, 2012, five days after the schism occurred, when the Rev. Jim Lewis, assistant to Bishop Mark Lawrence, published on the diocesan website: "Episcopal Forum Members Initiate Attack on Bishop." This was flatly untrue. In the first place, there was no "attack." There was a complaint lodged with the Disciplinary Board for Bishops which voted that Lawrence by his own willful actions had abandoned the Episcopal Church. The complaints had actually been two, one in 2011 and one in 2012. The complainants were two dozen communicants of the diocese. They were acting on their own and not as a function of the Forum. The Forum itself had nothing to do with the DBB.

The great historical value of the Episcopal Forum of South Carolina was to organize a loyalist minority within the diocese, to keep it going for nine years, and to present a strong, devoted nucleus of Episcopalians ready to reorganize the diocese in 2012-13 after the schismatics had done their dreaded deed. The remarkable recovery the Episcopal Church in South Carolina enjoyed after the tragic break was in no small part the contribution of the Forum. As they say, the proof is in the pudding: since the schism TECSC has grown by a quarter while DSC declined by a third in numbers of communicants.

It all goes back to that little group of friends who refused to accept the wrong they saw going on around them and resolved to do something about it. We should all join in with a big "Thank You" to the faithful five. Their names are inscribed forever in history.

THE BISHOP OF ALBANY 

THROWS DOWN THE GAUNTLET,
with Addendum

The Rt. Rev. William Love, Bishop of Albany, has ordered a rejection, in his diocese, of Resolution B012 adopted by last summer's General Convention of the Episcopal Church.

Resolution B012 says that a bishop opposed to allowing same-sex marriage rites in his or her diocese cannot block these from the diocese. The bishop must allow another bishop to minister to the clergy, laity, and congregations favoring s-s marriage. It also emphasizes that the local rector has the canonical authority over services in the parish. In short, the resolution moves from the bishop to the rector control over s-s marriage.

Bishop Love argued against this resolution. The resolution is to go into effect on the first Sunday in Advent, 2018.

See an article on this in Episcopal Cafe here . This article has the link to Love's letter to his diocese, of November 10, 2018. Love concludes his letter with this:

"Until further notice, the trial rites authorized by Resolution B012 of the 79th General Convention of the Episcopal Church shall not be used anywhere in the Diocese of Albany by diocesan clergy (canonically resident or licensed), and Diocesan Canon 16 shall be fully complied with by all diocesan clergy and parishes."

Thus, Love is reverting to the pre-B012 stance that the bishop can block s-s marriage in his or her diocese. This is a direct repudiation of a resolution adopted by the Episcopal Church's governing body.

The question in my mind now is whether this rises to the level of abandonment of the communion. That would be up to the Disciplinary Board for Bishops to decide. The Board would have to deal with this if a complaint is properly made by communicants of the diocese of Albany.

We all remember that communicants of SC made a complaint in 2011 against Bishop Lawrence. The Board considered it and finally voted that the charges against Lawrence did not quite rise to abandonment of the communion. Then, Lawrence issued the quit claim deeds in disregard of the Dennis Canon. In 2012, communicants lodged a second complaint to the Board. This time the Board voted that Lawrence had indeed abandoned the communion, primarily by his actions in violation of the Dennis Canon. When the presiding bishop received the decision of the Board, she placed a restriction on Lawrence. She did not know that Lawrence and the small band of advisers around him had already secretly decided to remove the diocese from the Episcopal Church and were waiting for her to take "any action of any kind" against him. As soon as the PB placed the restriction on Lawrence, the diocesan leaders declared the independence of the diocese and the schism began. The break was a secret set-up allowing the PB to be seen as the aggressor and Lawrence as the innocent victim.

What Love has in mind here, only time will tell. The Episcopal Church has a well-established practice of enforcing its rules and regulations on all of its bishops.


________________________________________

ADDENDUM, 12 November 4:00 p.m.:

Presiding Bishop Michael Curry and House of Deputies President Gay Clark Jennings have issued public responses to Bishop Love's letter of 10 November. Find an article in Episcopal Cafe about this here .

PB Curry wrote the following:

"In all matters, those of us who have taken vows to obey the doctrine, discipline, and worship of the Episcopal Church must act in ways that reflect and uphold the discernment and decisions of the General Convention of the Church."

As we all know, the PB is not a pope, or absolute authority. He or she is constrained by the provisions of the constitution and canons of the Church. The PB may try to solve this problem informally one-to-one. PB Jefferts Schori tried that with Bishop Mark Lawrence. It did not work. Lawrence met with her one time in the crisis, Oct. 2, then refused to see her again. 

The process laid out in the canons is for communicants of the diocese to file a complaint with the Disciplinary Board for Bishops which would then decide whether the bishop had abandoned the communion. The DBB acts as a sort of grand jury. If no, the bishop is cleared. If yes, the PB must impose a restriction on the bishop who then has two ways in which he or she could get the restriction removed, a letter to the PB or a hearing before the House of Bishops. 

In Lawrence's case, he declared that the diocese, including himself, had left the Episcopal Church as of Oct. 15 and no longer recognized its constitution and canons. He ignored the PB's restriction and its subsequent steps. The problem that led to the lawsuits was over the property of the diocese and the 50 parishes/missions that claimed to have left the Episcopal Church with property in hand in violation of the Dennis Canon. Last year, the South Carolina Supreme Court ruled that 29 of the parishes remain under trust control of the Episcopal Church and its diocese. We are now waiting on the circuit court to implement the decision as we await the federal court's decision on the ownership of the entity of the old diocese.

Not everyone in the diocese of Albany was happy with Bishop Love's letter. Parishioners of St. Andrew's, in Albany, burned the bishop's letter on the steps of the church. See the article in Episcopal News Service here .