APPROACHING MEDIATION, AGAIN
Mediation is scheduled to begin next week, on Thursday, 26 September 2019, in Charleston. So, the question of the day is, What's to mediate? Let us look at the status of the litigation and the issues facing the two sides as they approach this circuit court-ordered mediation.
My usual disclaimer--not a lawyer, not an official of any diocese, all personal opinion.
First of all, mediation implies adversaries in a dispute can possibly come to a mutually agreeable settlement. This can be done in two ways. In the first, one sides gets it all and the other gives up all. This is unlikely since it contradicts the implied motive of mediation. In the second, each of the two sides gives up something to the other in exchange for a settlement. This is the usual. Thus, the problem at hand is, What can the two sides give up to reach a closing deal?
For what are the two sides of this legal war fighting? The litigation is a proprietary war. Each side essentially wants to own the pre-schism diocese of South Carolina. The war is being fought on two fronts, the entity of the diocese and the local churches. The problem is that the two sides have come at this very differently. They are fighting two different battles on the same battlefield.
The Episcopal Church and its diocese, the Episcopal Church in South Carolina now have two big goals:
1---get the circuit court judge to implement the SCSC decision of Aug. 2, 2017.
2---get the federal court to recognize TECSC as the legal heir of the pre-schism diocese.
The Diocese of South Carolina has two approaches, plan A and plan B. Plan A is for the 29 parishes (named in the SCSC decision as property of the Episcopal Church) to remain in DSC. To reach this, DSC lawyers are asking the circuit court judge to regard the SCSC decision as unenforceable and to rule, on his own, that the 29 are not property of TEC because they did not create an express trust under the Dennis Canon.
Plan B is the fall back in case the circuit court does follow through on plan A. It is to make TEC pay for the full value of the properties of the 29 parishes. This is the Betterments suit. The full value would be in the hundreds of millions of dollars.
Thus, the two sides are not even in agreement on the same issues. TEC says the local property issue is settled. DSC says it is not settled (but if it is they want full reimbursement).
Mediation at this point of the schism is untimely. Mediation typically occurs early on in any litigation. This legal war has been going on for six and a half years. Moreover, there have been two good chances of compromise settlement. Both failed utterly. The first was in June of 2015 when the Episcopal Church offered to give the 36 parishes involved in the suit sole ownership of the properties in return for the entity of the old diocese. DSC officers rejected this summarily. The second was in the federal court ordered mediation. In that, the two sides met three times between October of 2017 and January of 2018. The sessions ended with no agreement.
BRIEF REVIEW OF HOW WE GOT HERE
---2013, Jan. 4. The Diocese of South Carolina sued the Episcopal Church in circuit court.
---2015, Feb. 3. The circuit court judge, Diane Goodstein, rendered a decision entirely in favor of DSC.
---2017, Aug. 2. The South Carolina Supreme Court issued a decision overturning part of Goodstein's order. It listed three majority decisions 1-7 parishes were independent of TEC, 2-29 parishes were property of TEC, 3-Camp St. Christopher was property of the TEC diocese.
---2017, Nov. 17. SCSC denied a rehearing and issued a Remittitur of its decision to the circuit court.
---2018, June 11. The U.S. Supreme Court denied cert, refusing an appeal of the SCSC decision.
MATTERS BEFORE THE CIRCUIT COURT
In January of 2018, circuit court Judge Edgar Dickson assumed the Remittitur. In time, each side presented three motions or petitions to the judge.
DSC: -Betterments suit, -complex case, and -Clarification of Jurisdiction (discard SCSC decision).
TEC/TECSC: -dismissal of Betterments, -Declaratory Judgment and Special Master (implement SCSC decision), and -an accounting of the assets of the other side. Judge Dickson denied TEC/TECSC's motion for dismissal of DSC's Betterments suit.
This leaves five outstanding motions/petitions in circuit court.
DSC: -Betterments suit, -complex case, and -Clarification of Jurisdiction (discard SCSC decision).
TEC/TECSC: -dismissal of Betterments, -Declaratory Judgment and Special Master (implement SCSC decision), and -an accounting of the assets of the other side. Judge Dickson denied TEC/TECSC's motion for dismissal of DSC's Betterments suit.
This leaves five outstanding motions/petitions in circuit court.
These boil down to two big issues: the meaning of the SCSC decision, and payments to DSC for improvements on the properties in question.
THE MEANING OF THE SCSC DECISION
First of all, a state supreme court is the final word, except if overturned by the U.S. Supreme Court. According to Wikipedia, "In the United States, a state supreme court (known by other names in some states) is the ultimate judicial tribunal in the court system of a particular state (i.e., that state's court of last resort). On matters of state law, the decisions of a state supreme court are considered final and binding on state and even United States federal courts."
The state supreme court renders judgment(s) by majority opinion. The South Carolina Code of Laws, Section 14-3-360: "In all cases decided by the Supreme Court the concurrence of three of the justices shall be necessary for a reversal of the judgment below..."
Here is the last (p. 77) page of the SCSC decision of Aug. 2, 2017. It was written as a summary of the court's work by Jean Toal who as Chief Justice at the time of the hearing on this case. She listed three majority decisions: (click on for enlargement)
To simplify, the TEC/TECSC lawyers insist the three orders mean what they say while the DSC attorneys insist these are conflicted, ambiguous, and unenforceable. In short, TEC/TECSC is asking Judge Dickson to implement the three decisions while DSC is asking the judge to discard the three and rule himself on ownership of the properties of the 29 parishes in question.
In fact, Dickson has enacted the first of the three orders. In the hearing of July 23, 2019, he got the two sides to agree that the 8, actually 7, parishes mentioned in the first item be granted full ownership of the properties.
In a nutshell, the difference between the Episcopal Church side and the diocesan side is the meaning of the SCSC decision. The Church says it means what it says. The diocese says it does not mean with it says.
BETTERMENTS
There are two big issues at stake in the circuit court, the meaning of the SCSC decision and the Betterments suit. In the Betterments suit, the DSC lawyers say that if the Episcopal Church owns the properties (which they argued they did not own in their clarification petition), the Episcopal Church should pay for the improvements the parishes made on the properties. The catch, as I read it, is they are claiming the entire history of the parish. That would mean, TEC would have to pay the whole value of the property.
The TEC side asked the judge to dismiss this suit, but Dickson refused. He denied TEC's motion to dismiss.
So, back to our original question, What's to mediate? It is hard to discern what if anything can be up for compromise agreement. The local church properties have been settled by law. The SCSC decision is the law of the land. Seven parishes get sole ownership of their properties. Twenty-nine parishes are now property of the Episcopal Church. The ownership of the old diocese is on the docket of the federal court in Charleston (although the SCSC gave a majority opinion that TECSC is the legal heir of the old diocese).
The issues at hand really belong in the courts. They are up to the judges to settle. The circuit court judge has a remitted order from the SCSC. It is his job to implement the state supreme court decision. The federal court judge must decide which side owns the old diocese. These are matters of litigation and not mediation. They belong in the courts, not at the bargaining table.
Everyone involved in the schism and its legal war longs for closure, for peace. Exhaustion hangs over all as a heavy blanket. The problem is how to end this tragedy. Both sides are deeply committed to causes, vastly different ones. Each sees itself as an essential part of a great war for fundamental principles. DSC says it is fighting for biblical truth. TEC says it is fighting for human rights. Thus, each defines its religious mission differently. DSC insists on vertical (individualistic) while TEC holds to horizontal (social gospel) as the essential character and purpose of religion. The deep division in SC makes it exceedingly difficult to see any way mediation of the legal issues at stake could work. Both sides want closure, but not at any cost.
The conflict comes from the difference between the causes of the schism and the outcomes of the schism. The causes were philosophical while the outcomes were proprietary. The challenge now is how to overcome the causes in order to reach the outcomes.
My bottom line: I hope for the best but expect this mediation to end as did the earlier attempts.
CONCLUSION
The issues at hand really belong in the courts. They are up to the judges to settle. The circuit court judge has a remitted order from the SCSC. It is his job to implement the state supreme court decision. The federal court judge must decide which side owns the old diocese. These are matters of litigation and not mediation. They belong in the courts, not at the bargaining table.
Everyone involved in the schism and its legal war longs for closure, for peace. Exhaustion hangs over all as a heavy blanket. The problem is how to end this tragedy. Both sides are deeply committed to causes, vastly different ones. Each sees itself as an essential part of a great war for fundamental principles. DSC says it is fighting for biblical truth. TEC says it is fighting for human rights. Thus, each defines its religious mission differently. DSC insists on vertical (individualistic) while TEC holds to horizontal (social gospel) as the essential character and purpose of religion. The deep division in SC makes it exceedingly difficult to see any way mediation of the legal issues at stake could work. Both sides want closure, but not at any cost.
The conflict comes from the difference between the causes of the schism and the outcomes of the schism. The causes were philosophical while the outcomes were proprietary. The challenge now is how to overcome the causes in order to reach the outcomes.
My bottom line: I hope for the best but expect this mediation to end as did the earlier attempts.
