THE STATUS OF THE LITIGATION,
19 JUNE 2019
Unfortunately, there is nothing new on the litigation to report, today, June 19. Nevertheless, this is a convenient time to review the status of the legal war between the independent diocese, the Diocese of South Carolina, and the Episcopal Church and its diocese, the Episcopal Church in South Carolina. We now have four tracks of litigation to watch, two in state court and two in federal court:
1-(state) circuit court, on implementation of the Aug. 2, 2017 SCSC decision;
2-(state) South Carolina Supreme Court, on response to TECSC's petition for a writ of mandamus directing the circuit court to implement the Aug. 2 SCSC decision;
3-(federal) U.S. District Court, on the suit of vonRosenberg v. Lawrence;
4-(federal) U.S. District Court, on the Complaint of TECSC against the Church Insurance Company.
These are four different legal actions, but all are somewhat related as aspects of the schism. To review the four:
Circuit Court
The SCSC remitted its Aug. 2, 2017 decision to the circuit court, in Orangeburg on November 17, 2017. A "remittitur" means the lower court is ordered to implement, or carry out, the high court decision. The last page of the decision listed three majority rulings of the court: 29 of the 36 parishes are property of the Episcopal Church; 6 parishes own their property individually; and Camp St. Christopher is property of TECSC. It is the job of the lower court to put these three orders into effect. TECSC asked the circuit court judge for a special master to oversee the transition and for an accounting firm to provide a financial accounting.
The circuit court judge in Orangeburg, Edgar Dickson declared the SCSC decision unclear and asked the two sides for more arguments. He has had the SCSC decision before him for a year and a half and has taken no measure to implement it. It is not true that the SCSC decision is unclear. In fact, the three orders of the decision are plainly listed on the last page of the decision. They are perfectly clear. Dickson's reason for refusing to implement the decision remains a mystery.
Since Dickson has done nothing to enact the decision, my best guess now is that he will not order an enactment of the decision on his own before the SCSC reply on the writ. It is reasonable to assume if he were going to act on his own, he would have done so by now. A year and a half is more than enough time in my view. I expect he is waiting on the SCSC to issue a response to TECSC's petition for a writ of mandamus before proceeding.
SCSC
The SCSC issued a majority decision on the church case on Aug. 2, 2017. It recognized 29 parishes and the Camp as property of TEC/TECSC. It remitted the decision to the lower court on Nov. 17, 2017.
Given the failure of the circuit court to implement the decision, on March 20, 2019, TECSC filed a petition with the SCSC for a writ of mandamus, or order directing the lower court to enact the law. We are now awaiting a response. Typically, the SCSC takes three to six months to respond to a petition for a writ.
A writ can be granted by one justice of the SCSC. However, in a case of this magnitude, it is most likely that more than one justice will issue the response. It may well be that all of the justices will join in a response in order to maintain unity and make a point. After all, the authority of the SCSC is at stake as well as the integrity of the state judicial system.
The response will either grant or deny TECSC's petition for a writ. Either way, there will probably be a several-page explanation of the response. Judge Dickson has not declared a refusal to enact the SCSC decision. He simply has not made a decision or taken any action to enact the SCSC decision. It boils down to whether a year and a half of delay amounts to denial of the law. It seems reasonable to me that inaction for eighteen months is the same as denial. However, since Dickson has not refused enactment directly, the SCSC justices may well hesitate to grant a writ on the grounds that he has not rejected any law. Even if they deny, they are likely to remind the lower court of its duty to implement a decision of the state high court, particularly one that has been denied rehearing and cert at SCOTUS. If so, this could have the same effect on the lower court. One big question about a response from SCSC is whether the justices will give a time limit on implementation of the decision. A denial without a time constraint would leave Dickson in the same position, to delay enactment indefinitely. So, two main points to look for in the SCSC response: grant or denial of writ, and explanation with particular reference to time.
My guess is we will have a response from the SCSC by the end of September and that one way or another, the justices will direct Dickson to carry out the decision. It is inconceivable SCSC would allow a circuit court to ignore or reject a decision of the state high court.
vonRosenberg v. Lawrence
TECSC entered this suit in March of 2013, that is, more than six years ago in the U.S. District Court, in Charleston. While the state case dealt essentially with the ownership of the local churches, the federal case concerned the ownership of the pre-schism diocese, its names, rights, and assets. For the first few years, the case was handled by Judge C. Weston Houck who refused to proceed with it even though he was directed twice by the federal court of appeals to do so. He died leaving the case in limbo.
Judge Richard Gergel, now has the case. The last papers were submitted to him in January of 2019. He set the date of a trial at May 1, 2019 or after. There has been no word from Gergel in the last few months.
Gergel can hold a formal courtroom trial or he can issue a decision on his own. Both sides have asked him to make a summary judgment on his own.
Since there has been no word from Gergel in months, it seems unlikely he will hold a trial. If he were going to have a trial, he probably would have announced some kind of scheduling for it by now. A trial requires a preparatory period for discovery. My best guess is he will render a decision on his own in the near future. Federal courts tend to side with national institutions.
Church Insurance Company
As of last week, we have a fourth avenue of litigation to join the three long underway. On June 11, 2019, TECSC filed a Complaint with the federal court in Charleston against the Church Insurance Company of Vermont. This is a company that insures Episcopal churches.
The Complaint charged that the CIC-VT "secretly, knowingly, and wrongfully" made payments to at least one non-Episcopal Church congregation that is an adversary in court. The Company is a "captive" one, in that it can insure only churches affiliated with the Episcopal Church. CIC-VT is the insurance company covering TECSC. Yet, St. Philip's Church of Charleston, one of the breakaway congregations, announced it had billed the CIC-VT for payment on an insurance policy.
Technically, St. Philip's is property of the Episcopal Church as per the state supreme court decision. However, the clergy and laity occupying the premises are not affiliated with the Episcopal Church but with a non-Episcopal Church diocese. If CIC-VT made any payment to the non-Episcopalians occupying the property, this would presumably be in violation of the company's rights not to mention aiding the adversary in the ongoing litigation. If CIT-VT paid St. Philips, it would have been paying both sides of the litigation.
TECSC is asking the court for damages, legal fees, and an accounting.
Why is this taking so long?
What people mean by this is why have we not had closure of the schism by now. That is the question I get a lot and one I ask myself often. The legal war began on January 4, 2013, almost six and a half years ago. We are all exhausted and frustrated. Fighting the former brothers and sisters in court goes against our grains as Christians. This is not how Christians should behave toward each other. There is widespread longing for an end to all of this, for closure and healing.
In searching for the answers of why so long, we have to go back to the origins of the Anglican Realignment in the 1990's. That movement began as an attempt to destroy or greatly diminish the Episcopal Church as an institution in American life. So, remember the original goal was negative, to do as much damage to the Episcopal Church as possible. The reactionaries have accomplished a considerable amount toward this goal. But the drive is not over, so whatever damage they can continue to do is justified in this line of thinking.
We have to consider too that the reactionaries are Anglican fundamentalists. GAFCON and its creation the Anglican Church in North America are fundamentalist offshoots of the classical Anglicanism of the three-legged stool. Fundamentalists have a definite mindset in which the universe is divided into opposing dualities: God/Satan, saved/unsaved, good/evil, heaven/hell, orthodox/heretical, etc. There is no in between, no shade of grey in this black and white view of the universe. Thus, if a fundamentalist believes God is on his side, Satan must be on the other. There is no compromise with evil. In the last couple of years DSC leaders have said, or implied that TEC is the "false teacher," "pagan," and non-biblical. Demonization of the other is an aspect of fundamentalism.
This may help us understand why the leaders of the schismatic diocese rejected every offer of compromise and mediation. They are likely to continue this attitude. Most famously they rejected the generous offer of TEC in 2015 to trade the local churches for the diocese. If they had accepted the offer, the war would have been over a long time ago and all 36 parishes in question would now be independent of the Episcopal Church. Instead, 29 of them have been returned to TEC by the court. Too, from October of 2017 to January of 2018, there were meetings of mediation ordered by the federal court, meetings that accomplished absolutely nothing.
Since, in all likelihood, there is going to be no settlement by compromise or mediation, we can expect a long and drawn out legal war that will be eventually settled by the courts. Having lost in state court, the DSC leaders' apparent strategy has become deny and delay. They have denied the SCSC decision said what it said. They insisted it was "conflicted" and "unenforceable" when it is not. They have refused to accept the SCSC decision. Moreover, they have thrown up every roadblock they can to the implementation of the decision.
DSC leaders have told their followers that they need not worry about losing the properties because they can keep the litigation going far into the future. Actually, there is some truth to this, unfortunately. Judge Dickson's decisions can be appealed to the state appeals court. Judge Gergel's orders can be appealed to the U.S. Court of Appeals in Richmond. As we all know, appeals can go on for years. More delay.
Bottom line---all signs suggest to me that DSC is in it to the bitter end. The DSC leaders are confident God is on their side and they seem to have no inclination to compromise or mediate. I would not be surprised if the DSC leaders surrender only when the sheriff shows with the vacate order. Episcopalians would be wise to hunker down for the long haul. I wish this were not the case, but I fear it is.
Then, why the fight? Why do not Episcopalians just throw in the towel and let the breakaways have the old diocese and the local properties? Would not it be easier just to quit and have peace and closure now? Answer=two words: human rights. The Episcopal Church is fighting the good fight for the bedrock biblical principle that every person is made in the image of God only a little lower than the angels. Every person has God-given dignity and worth. This divine creation requires equality for and inclusion of all people in the life of the church, at this time notably for African Americans, women, and homosexuals. The fight may be long and hard, but who said doing the morally and ethically right thing was supposed to be easy? We Christians know doing right is often costly, even to life itself. Yet, we do it because it is right to do as children of God and followers of the Great Inclusionist, Jesus Christ.
This is the kernel of the struggle at hand in South Carolina. The leaders of DSC took their followers out of TEC to keep some people, particularly women and homosexuals, from gaining equality and inclusion in the church. DSC forced the legal war on TEC with the original lawsuit of 2013. TEC is fighting long and hard in the courts for the human rights of all people. As long and hard as it it, this is the good fight and God, in his unfathomable wisdom and grace, will see it out.
____________________
As always, readers, I remind you I am not a lawyer or legal expert, and the views here I offer only as opinion.
Why is this taking so long?
What people mean by this is why have we not had closure of the schism by now. That is the question I get a lot and one I ask myself often. The legal war began on January 4, 2013, almost six and a half years ago. We are all exhausted and frustrated. Fighting the former brothers and sisters in court goes against our grains as Christians. This is not how Christians should behave toward each other. There is widespread longing for an end to all of this, for closure and healing.
In searching for the answers of why so long, we have to go back to the origins of the Anglican Realignment in the 1990's. That movement began as an attempt to destroy or greatly diminish the Episcopal Church as an institution in American life. So, remember the original goal was negative, to do as much damage to the Episcopal Church as possible. The reactionaries have accomplished a considerable amount toward this goal. But the drive is not over, so whatever damage they can continue to do is justified in this line of thinking.
We have to consider too that the reactionaries are Anglican fundamentalists. GAFCON and its creation the Anglican Church in North America are fundamentalist offshoots of the classical Anglicanism of the three-legged stool. Fundamentalists have a definite mindset in which the universe is divided into opposing dualities: God/Satan, saved/unsaved, good/evil, heaven/hell, orthodox/heretical, etc. There is no in between, no shade of grey in this black and white view of the universe. Thus, if a fundamentalist believes God is on his side, Satan must be on the other. There is no compromise with evil. In the last couple of years DSC leaders have said, or implied that TEC is the "false teacher," "pagan," and non-biblical. Demonization of the other is an aspect of fundamentalism.
This may help us understand why the leaders of the schismatic diocese rejected every offer of compromise and mediation. They are likely to continue this attitude. Most famously they rejected the generous offer of TEC in 2015 to trade the local churches for the diocese. If they had accepted the offer, the war would have been over a long time ago and all 36 parishes in question would now be independent of the Episcopal Church. Instead, 29 of them have been returned to TEC by the court. Too, from October of 2017 to January of 2018, there were meetings of mediation ordered by the federal court, meetings that accomplished absolutely nothing.
Since, in all likelihood, there is going to be no settlement by compromise or mediation, we can expect a long and drawn out legal war that will be eventually settled by the courts. Having lost in state court, the DSC leaders' apparent strategy has become deny and delay. They have denied the SCSC decision said what it said. They insisted it was "conflicted" and "unenforceable" when it is not. They have refused to accept the SCSC decision. Moreover, they have thrown up every roadblock they can to the implementation of the decision.
DSC leaders have told their followers that they need not worry about losing the properties because they can keep the litigation going far into the future. Actually, there is some truth to this, unfortunately. Judge Dickson's decisions can be appealed to the state appeals court. Judge Gergel's orders can be appealed to the U.S. Court of Appeals in Richmond. As we all know, appeals can go on for years. More delay.
Bottom line---all signs suggest to me that DSC is in it to the bitter end. The DSC leaders are confident God is on their side and they seem to have no inclination to compromise or mediate. I would not be surprised if the DSC leaders surrender only when the sheriff shows with the vacate order. Episcopalians would be wise to hunker down for the long haul. I wish this were not the case, but I fear it is.
Then, why the fight? Why do not Episcopalians just throw in the towel and let the breakaways have the old diocese and the local properties? Would not it be easier just to quit and have peace and closure now? Answer=two words: human rights. The Episcopal Church is fighting the good fight for the bedrock biblical principle that every person is made in the image of God only a little lower than the angels. Every person has God-given dignity and worth. This divine creation requires equality for and inclusion of all people in the life of the church, at this time notably for African Americans, women, and homosexuals. The fight may be long and hard, but who said doing the morally and ethically right thing was supposed to be easy? We Christians know doing right is often costly, even to life itself. Yet, we do it because it is right to do as children of God and followers of the Great Inclusionist, Jesus Christ.
This is the kernel of the struggle at hand in South Carolina. The leaders of DSC took their followers out of TEC to keep some people, particularly women and homosexuals, from gaining equality and inclusion in the church. DSC forced the legal war on TEC with the original lawsuit of 2013. TEC is fighting long and hard in the courts for the human rights of all people. As long and hard as it it, this is the good fight and God, in his unfathomable wisdom and grace, will see it out.
____________________
As always, readers, I remind you I am not a lawyer or legal expert, and the views here I offer only as opinion.
