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.