AWAITING THE HEARING OF THE 26TH

On next Tuesday, November 26, 2019, Judge Edgar Dickson, of the first SC circuit, will hold a hearing in the church case at the Orangeburg court house.

On Oct. 30, I posted the following note about the hearing. I am reposting it here as a way of reminding us of what is at stake. At this point, I have nothing new to add. 

If all goes well, I will attend the hearing and make a report on it as soon as possible afterwards.

Original blog post of Oct. 30:

THE THIRD TIME'S THE CHARM?

We are now awaiting the third hearing before circuit court Judge Edgar Dickson. The first hearing accomplished nothing at all, the second relatively little. Will the third time be the charm? We shall see.

The first hearing was on 19 November 2018 in the Orangeburg county courthouse. In this, Dickson said he would consider only one motion/petition, "Clarification of Jurisdiction" from the Anglican side. Here, the lawyers argued that the South Carolina Supreme Court decision of August 2, 2017 was too vague, conflicted, and indecisive to be implemented and that the circuit court should resolve property issues of the 29 parishes in question. In the hearing, the lead lawyer, Alan Runyan, presented a masterpiece in courtroom obfuscation. By the end of his fifty-minute power point presentation, this observer for one had no idea what he was talking about. It appeared to me as if the judge felt the same. Runyan won the day, hands down. Dickson ended the session by telling the lawyers he would be emailing them questions. He announced no decision or judgment. To this day, a year later, Dickson has issued no opinion on ADSC's motion on Clarification of Jurisdiction. The first hearing accomplished nothing.

The second hearing was on 23 July 2019, in the Calhoun county courthouse. Dickson's stated purpose of this was to address the Betterments suit (ADSC's claim for reimbursement for improvements made on the properties of the 29). The judge did listen to the not very persuasive arguments of the two sides and then set aside the issue. Instead of dealing with Betterments, out of the blue Dickson handed down two decisions, 1-that the 8 parish entities named in the SCSC decision as owning their own properties should be legally recognized as such, and 2-the two sides would go to mediation. The mediation session occurred on 26 September 2019 and ended that day in a declared "Impasse." So much for settling anything outside of court.

Judge Dickson has made one other decision. On September 9, 2019, he denied the Episcopal diocese's motion for dismissal of ADSC's Betterments suit. On 19 September, the EDSC filed a motion with Dickson for reconsideration of the denial. This motion is now pending and is on docket of the third hearing.

If the purpose of the first hearing were clarification of jurisdiction, and the second, Betterments, what is the purpose of the third hearing? The judge's invitation read:  "to hear the motion for reconsideration and any other pending motions that have not been heard." The last phrase is key. What are the other pending motions that have not been heard? There are two.

First, let us review the six motions/petitions now before Judge Dickson. There are three on each side.

ADSC 1-Clarification of Jurisdiction, 2-Complex case designation, and 3-Betterments suit.

EDSC 1-Implementation of the SCSC decision under a special master, 2-accounting of the assets of returning properties, 3-Reconsideration of denial of EDSC's motion for dismissal of the Betterments suit.

If Dickson is going to hear arguments on motions that he has not considered, this would be the three on the EDSC side. He has already considered ADSC's #1 and #3. Complex case is really a part of the Betterments suit as it asks for one judge to handle to whole case. In short, the judge has already held hearings on the ADSC motions/petitions. He has not held hearings on the three of the EDSC side. The third hearing will be the opportunity for that.

All of these motions boil down to two big issues before the judge: 1-whether the SCSC decision should be implemented or not, and 2-whether the ADSC is entitled to payments for improvements made on the 29 properties. These two really amount to one, the SCSC decision. The Betterments suit should be dismissed for two good reasons. In the first, the breakaways have no standing to bring such a suit since they would be suing the beneficiaries of their own trust. In the second, Betterments is based on the charge that the occupants thought they owned the property. This could not be the case with the 29 because everyone knew very well the Dennis Canon. The people in the 29 knew that they held their property in trust for the Episcopal Church which would become the owner when the people cut their ties to the Church. The Betterments suit is frivolous and will probably be thrown out at some point.

Over on the EDSC side, the motions amount to getting the judge to implement the SCSC decision. Two of the three motions deal with this (the third is dismissal of Betterments suit). So, the focus of the third hearing should be the implementation of the SCSC decision of August 2, 2017. I think we can expect the EDSC lawyers to make their strongest and lengthiest arguments for this. Since Judge Dickson has recognized the first of the three SCSC majority orders on the last page of the Aug. 2 decision, there is no reason why he should not move on to the other two.

As I have said, I see three options Judge Dickson could choose: 1-do nothing until he retires, 2-implement the SCSC decision, and 3-declare the SCSC decision unenforceable and rule on his own about the property ownership of the 29 parishes. The crux of the whole matter boils down to the ownership of the properties of the 29 parishes. In order to please the secessionists, he would have to discard the SCSC decision and decide himself on property ownership. 

I see several reasons why Dickson will not discard the SCSC decision. Firstly, the federal court has all but ordered Dickson to enforce the SCSC decision. Secondly, delving into deciding who owns the properties would violate the First Amendment. Federal Judge Gergel made a major point that the Episcopal Church is an hierarchical institutional entitled to govern itself. Thirdly, the SC Court of Appeals would never uphold a circuit court judge's denial of a state supreme court decision. The fact is the SCSC has already decided who owns the properties. This decision is now the law of the land. 

The scene of the legal war between the two dioceses has shifted considerably in the past few weeks, particularly since the federal court's order of last month. The Church lawyers now have the commanding high ground behind the fortified walls of the state supreme court and the federal court. The third hearing will be their best opportunity yet to make their case for the judge to enforce the law. The Anglican lawyers are fighting from a weakened defensive position, really a rear guard action in retreat. Their best tactic is to continue throwing out masses of confusion to deflect the judge from focusing on his assigned tasks. All things considered, the third hearing should be interesting to say the least. I expect to have a ring-side seat and to report to you immediately afterwards.

Anyone who has been following this blog knows that some Episcopalians out there are ready to take more direct action to spur the heretofore reluctant judge along. Feelings of frustration and disappointment are understandable among people suffering from from seven years of battle fatigue. We are tempted to write letters to Judge Dickson and make demonstrations on the sidewalks. These are our constitutional rights. However, just because we can do these things does not necessarily mean we should do these things between now and November 26th. The Episcopalians' goal is to get Judge Dickson to implement the SCSC decision and they should ask themselves what is the best way to do that. I think it is best if they refrain from writing letters and making demonstrations, at least at this time. I doubt such things would do any good right now and might even offend the judge at this critical point in the case. Judge Dickson knows very well what he is supposed to do. The Church lawyers asked the judge for a hearing, twice. He has agreed. Now I think we have to give him space to act, supported by our prayers. After the hearing, the Church side might have to reassess its best tactics.

The third hearing shows every sign of being different than the first two. Times have changed. The whole picture of the legal war has shifted heavily to the Church side. The big issues of the legal war have been decided. Judge Dickson knows this as he knows he has a Remittitur order from the state supreme court. He knows what his job is. Let's be patient and give him the opportunity, once again, to do his job. It may be just wishful thinking, but I really do feel optimistic about the upcoming hearing. In my opinion, the Church side should now do everything it can to support the judge as a way of helping him do the job he knows he has to do.