Saturday, September 28, 2019


There is an item of legal news to report that readers might find of interest. Somehow this flew under the radar. I learned of it only today from a vigilant and generous reader (see, this blog is really a community project, so keep in touch). It occurred on Thursday, 19 September, the day Judge Gergel released his Order declaring all in the interest of the Episcopal Church.

On that same day, the Church diocese filed with Judge Edgar Dickson, of the circuit court, "Notice of Motion and Motion for Reconsideration." This 15-page paper asks Dickson to reconsider his denial of TEC/TECSC motion for dismissal of the breakaways' Betterments suit.

You will recall that, on 28 August, Dickson informed the two sets of lawyers he would deny TEC/TECSC's motion to dismiss the Betterments suit and asked the Plaintiffs' lead lawyer, Alan Runyan to compose an order for the judge to use.

On 9 September, Dickson issued his written order denying TEC/TECSC's motion. Apparently Dickson used Runyan's proposed order. The Defendants, TEC and TECSC had ten days to respond to the judge's order.

Ten days later, 19 September, TEC/TECSC did indeed reply to the judge's order in their "Notice of Motion..." 

As the Church lawyers clearly pointed out, the judge's order of 9 September was attorney Runyan's interpretation of the South Carolina Supreme Court decision of 2 August 2017. It was his opinion of the SCSC decision, not the factual explanation of it. Runyan has consistently denied that the SCSC decision is clear on the 29 parishes and the Camp. In fact, he maintains the three majority decisions on the last page are not definitive and the circuit court should decide property ownership.

The Church lawyers pointed out in this paper that the SCSC decision is clear and final. It is the law of the land. They went on to insist the Betterments suit should be dismissed because the Plaintiffs do not have standing to bring such a suit for several reasons. Under the Dennis Canon, the parishes that purported to leave TEC transferred the property to the trust beneficiaries, the Defendants (TEC/TECSC). Under the law, the Plaintiffs have no standing to sue their own beneficiaries.

What all this boils down to is the SCSC decision. Does it mean what it says on its last page, or does it stand too ambiguous to implement leaving the circuit court to retry the issues involved? The Episcopal Church says it means what it says in the majority decisions and now is the law of the land. It cannot be changed or appealed. It is the job of the circuit court under Remittitur to implement the SCSC decision. The separatist diocese says the SCSC decision does not mean what it says because it is conflicted, ambiguous, and directionless. So, in a nutshell, the difference between the two sides here is whether or not the SCSC decision means what it says.

I do not know, but I suspect that this was the sticking point that ended the mediation last Thursday. The Church side insists the SCSC decision is clear and final and the Church is the owner of the 29 and the Camp. The secessionist side insists the Church is not the owner of the properties and that the ownership should be determined by the circuit court. They are asking Judge Dickson to do just that.

Next, we may expect the Anglican diocese to file a response to the Episcopal Church motion for reconsideration within a few days. Then, Judge Dickson will have to consider the arguments of the two sides and make a decision whether to rescind his denial of TEC's motion to dismiss. In other words, he has to say whether he will dismiss the Betterments suit or allow it to proceed. The catch of this suit is that its proceeding depends on whether the circuit court implements the SCSC decision on the 29 parishes. Now, more than two years after the SCSC decision, we are still waiting on the courts to implement that decision.

The federal court of Richard Gergel very clearly sided with the Episcopal Church position on the state supreme court decision. Gergel made what appeared to me to be a not too subtle direction to Dickson to implement the SCSC decision. This should influence Dickson in the days ahead.

For the umpteenth time, here is the SCSC opinion and its three majority decisions on the last page. Since the SCSC statement of Aug. 2, 2017 is the heart of the dispute between the sides, it is important to keep studying what this SCSC opinion says. What do you see here, clarity or ambiguity? I know what I see. When I retired from college teaching, I calculated that I had graded 50,000 test papers, every one with an essay. I know clarity when I see it. (Click on for enlargement.)