LEGAL NEWS --- 27 DECEMBER 2019

There is news to report on the ongoing litigation. On 23 December, the Anglican Diocese of South Carolina submitted its proposed order to Judge Edgar Dickson as per his instructions in the hearing last month when he asked the two sides to submit proposed orders on ADSC's Motion for Clarification of Jurisdiction. The paper is entitled "Order Granting Motion for Clarification." 

Unfortunately, I cannot attach a file to my blog space on Blogspot. I can put in an image or a link, but not a file. Since this paper is 25 pages long, the best I can do is direct you to the court website that has the file:

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---Case # 2013CP1800013

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In their submission of 23 December, the ADSC lawyers are asking Judge Dickson to set aside the South Carolina Supreme Court decision of 2 August 2017 and declare that the parishes did not accede to the Dennis Canon and therefore own their own property outright.

Let us start by going over the SCSC decisions on the last (p. 77) page:

1) with regard to the eight church organizations which did not accede to the Dennis Canon, Chief Justice Beatty, Justice Kittredge and I [Toal] would hold that title remains in the eight plaintiff church organizations

2) with regard to the twenty-eight church organizations which acceded to the Dennis Canon, a majority consisting of Chief Justice Beatty, Justice Hearn, and Acting Justice Pleicones would hold that a trust in favor of the national church is imposed on the property and therefore, title is in the national church;

3) with regard to Camp St. Christopher, Chief Justice Beatty, Justice Hearn, and Acting Justice Pleicones would hold title is in the trustee corporation for the benefit of the associated diocese...

These are majority decisions written in plain English. The key phrase in all of this is "the twenty-eight church organizations which acceded to the Dennis Canon." That is a simple and entirely clear declaration of the state Supreme Court. There is no conditionality or ambiguity in that statement. It is a direct order from the majority of the state supreme court. 

The SCSC decision of 2 August 2017 is now the law of the land. The SCSC denied a rehearing, and the U.S. Supreme Court denied cert. On  Nov. 19, 2017, the SCSC sent an official "Remittitur" of its decision to the circuit court of the First Circuit, the court of origin. A Remit order is a direction to a lower court to implement the majority decisions.

As I read it, the ADSC proposed Order says the lower court has the right to decide itself on a Supreme Court decision by discerning the "intent" of the justices. "The Court finds that it has the jurisdiction to take whatever steps are necessary to determine and act on what is 'consistent' with the intention of the Supreme Court, whether explicit or implicit." "The judgment of a court is construed like any other written instrument, that being to determine the intent" (p. 7)  "a set of five opinions from which this Court must now discern the Supreme Court's intent."

I am not a lawyer, but I must say I have hear of any such claim. A majority opinion of a supreme court is final and binding. It is law. No one has to discern "intent" in how the justices arrived at their opinion. If we took that route, no supreme court decision could ever be applied. They would all be challenged in perpetuity. And, how is anyone to find "intent" anyway? Such could not be clearly discerned. Besides, this is all irrelevant to the law. The supreme court decision is final. It does not matter one whit how the justices arrived at their majority conclusions. Intent is a moot point. "Grasping at straws" comes to mind. 

I suppose what the ADSC lawyers are trying to get to is that the justices "intended" to hold accession to the Dennis Canon as the measure for ownership. Therefore, the circuit court should now revisit the Dennis Canon:  "In order to  make the determination of which parishes expressly acceded to the Dennis Canon, this Court will thus have to look at the evidence presented on this issue to the trial court" (p. 21) The court will find no accession: "Based on this Court's review of the record, there has been no 'accession' to the Dennis Canon such that the Plaintiffs' agreed that their property should be held in trust for the benefit of TEC." In other words, ADSC wants the circuit court to declare that the parish properties do not belong to the Episcopal Church and its diocese. This would be a direct contradiction of the SCSC order # 2 on p. 77 of its 2 August 2017 decision. 

Does a circuit court have the right to overturn a final supreme court decision it has received on Remittitur? Surely not. This would undo the whole structure of jurisprudence on which the country operates. The supreme court has the last word, not the circuit court. I cannot imagine that Judge Dickson would overthrow a state supreme court decision, particularly on something amorphous as "intent." Even if he did, the South Carolina Court of Appeals would uphold the supreme court decision. It is unimaginable the appeals court would dare to discard a state supreme court decision. It is not going to happen. 

Judge Dickson has one task, to implement the SCSC decision. He has already recognized the validity of the decision by enacting order # 1 on p. 77 (7 parishes own their own properties). There is no good reason why he should not proceed to do his job and implement orders # 2 and 3 now. He has had this matter on his desk for two years. How much longer does he need to figure out the plain English in the SCSC decision? Justice delayed is justice denied.

The Episcopal side should be presenting its proposed order to Judge Dickson any moment now. I will relate the news about it as soon as I can. It does not take much imagination to know what they will say.