UPDATE ON LITIGATION
IN FEDERAL COURT
2nd. ed.
2nd. ed.
On 19 September 2019, U.S. District Court judge Richard Gergel issued an Order on the case of vonRosenberg v. Lawrence. The Episcopal Church side had filed this suit in March of 2013 claiming the secessionist side was in violation of the federal Lanham Act that protects trademarks. Gergel ruled entirely on the side of the Episcopal Church. He said the Episcopal Church diocese was the continuation of the historic diocese and entitled to all the titles, rights, insignia, etc. of the old diocese. He included a permanent injunction forbidding the breakaway organization from using these or claiming to be the historic diocese. This was a landmark decision greatly bolstering the Church's claim in the courts that the Episcopal Church is a hierarchical institution to which civic courts must defer as per the First Amendment of the U.S. Constitution. On the surface, the breakaway side complied and removed the most obvious names and insignia of the old diocese from their website. They began calling themselves "The Anglican Diocese of South Carolina."
On 4 October, Judge Gergel issued the final summary judgment of his 19 September ruling. Three days later, the ADSC announced it was going to appeal this ruling to the U.S. Court of Appeals, Fourth Circuit, in Richmond. On 18 October ADSC officially registered its appeal with Gergel.
At that moment, everything seemed to be on track for a regular appeal to the Fourth Circuit. Then, on 11 November, the Episcopal diocese filed a petition with Gergel, "Petition to Enforce the Injunction." In this, the Church side loudly protested the breakaways' continued references to the historic diocese and particularly to the name "Anglican Diocese of South Carolina," which, it said, was much too close to the official name of the historic diocese. The church lawyers asked the judge to "take appropriate action" to make the breakaways comply with the 19 September injunction, even to choosing a new name substantially different than "Anglican Diocese of South Carolina." The church petition did not spell out contempt of court, but one could infer such from it.
Nine days later, on 20 November, the ADSC lawyers filed a response, "Defendants' Response to Plaintiffs' Petition to Enforce the Injunction." They pointed out that the title "Anglican Diocese of..." had been adopted by other groups that left the Episcopal Church. This is partially true. In Pittsburgh and San Joaquin, the secessionists chose the name "Anglican Diocese of..." at the time of their departure from TEC. In the old Episcopal Diocese of Quincy, the breakaways call themselves "the Diocese of Quincy." In Fort Worth, both sides still call themselves the Episcopal Diocese of Fort Worth and use the official seal. This must be confusing to the courts.
In their paper of 20 November, the ADSC lawyers insisted the diocese had complied with the orders of the court and had chosen a standard, but different, name. It was their assertions about history that I found entirely false. They declared the two groups had a "shared history" and that "Until 2012, the Plaintiff and Defendant Dioceses were the same entity." Not true. Here we need a little history lesson:
The Episcopal churches in South Carolina formed a state association in 1785, later called a diocese. In 1789, representatives from SC joined several other state delegations in Philadelphia to draw up and adopt the Constitution and Canons of the church. It was understood that SC acceded to this at the moment the delegates signed the document. These are the origins of the historic diocese.
In October of 2012, the leadership of the diocese declared unilaterally that the diocese had disaffiliated from the Episcopal Church. Since then federal and state courts in South Carolina have ruled that the diocese did not, in fact, leave TEC. The leadership and subsequently the majority of the members of the diocese left TEC in 2012. As they left, they formed a new diocese, separate and apart from the historic diocese. Judge Gergel and the majority of the SC supreme court justices have agreed that the Episcopal Church diocese continued on as the historic diocese. The courts have ruled that the breakaways did not disaffiliate the diocese from the national church. What they did was to create a new religious denomination.
This meant the breakaway organization was something new and different in the eyes of the law. Thus, the association that today calls itself the Anglican Diocese of South Carolina was created in 2012. It has no legitimate claim to any part of the historic diocese of South Carolina. It has no "shared history" with anyone before 2012 because it did not exist before 2012. The leaders and members of the new diocese used to be members of the historic diocese. That is all. Once they left the old diocese, they left behind any claim to its legitimacy, names, marks, and property. Thus, the lawyers' rationale in their paper of 20 November response is without historical substance.
In October of 2012, the leadership of the diocese declared unilaterally that the diocese had disaffiliated from the Episcopal Church. Since then federal and state courts in South Carolina have ruled that the diocese did not, in fact, leave TEC. The leadership and subsequently the majority of the members of the diocese left TEC in 2012. As they left, they formed a new diocese, separate and apart from the historic diocese. Judge Gergel and the majority of the SC supreme court justices have agreed that the Episcopal Church diocese continued on as the historic diocese. The courts have ruled that the breakaways did not disaffiliate the diocese from the national church. What they did was to create a new religious denomination.
This meant the breakaway organization was something new and different in the eyes of the law. Thus, the association that today calls itself the Anglican Diocese of South Carolina was created in 2012. It has no legitimate claim to any part of the historic diocese of South Carolina. It has no "shared history" with anyone before 2012 because it did not exist before 2012. The leaders and members of the new diocese used to be members of the historic diocese. That is all. Once they left the old diocese, they left behind any claim to its legitimacy, names, marks, and property. Thus, the lawyers' rationale in their paper of 20 November response is without historical substance.
Five days later, Church lawyers filed with Judge Gergel their reply to the breakaway's arguments of 20 November: "Reply to Response to Petition to Enforce the Injunction." Here, the lawyers bristled at the assertion of "shared history," and rightly so. Once again, at length, they insisted the name "Anglican Diocese of South Carolina" was far too close to the name of the historic diocese, in fact, the same except for one word. And, once again, the Church lawyers called on the judge to take "appropriate action" to make the breakaways comply with the court order and injunction. This could possibly mean penalties for contempt of court.
Here the story takes another twist. On the same day the Church side submitted its reply to ADSC, 25 November, the breakaway lawyers filed a motion with Judge Gergel for a stay of his 19 September order, more than two months after the order and injunction! They filed "Motion to Stay Pending Appeal." We get the usual arguments that everything should be put on hold while the Appeal Court considers an appeal and renders a judgment. There is a certain logic to that. What shocked me in this paper was the blatant refusal to accept the very public court decisions. It was as if the state supreme court and federal court had done nothing.
For instance, the ADSC lawyers wrote "In 2012, the Diocese of South Carolina eliminated its corporate allegiance to TEC by withdrawing from this incorporated association" (p. 3). Not true. In fact, both the federal and state courts have ruled very clearly that "the Diocese of South Carolina" did not withdraw from TEC. The measures the leaders of the diocese took to separate the diocese were illegal, null and void. It takes a lot of nerve to tell a federal judge that his ruling was wrong, especially when one is trying to get that same judge to agree to a stay, and on top of that doing it two months after the judge's order. This layman is baffled by these lawyers' tactics.
The very last paragraph on the last page takes the cake. The ADSC lawyers refused to accept the SC Supreme Court decision. They wrote: "the state court proceedings in the 2013 lawsuit remain pending. Issues still to be resolved include the use of the names of the diocese, if any of the defendant parishes acceded to the Dennis Canon thereby subjecting their real and personal property to a trust in favor of TEC, and whether an injunction remains in effect against TEC and TECSC from using the state-registered marks." No, the state court proceedings are not pending! What is pending is the circuit court judge's implementation of the final order of the South Carolina Supreme Court, of August 2, 2017. The "issues" have all been resolved in the eyes of the courts and the law. If I were Judge Gergel, I would be tempted not only to deny this motion for a stay but to pair it with penalties for contempt of court. I find this motion for a stay remarkably disingenuous.
On 6 December, Church lawyers filed a counter paper to ADSC's motion for a stay, "Plaintiffs' Opposition to Defendants' Motion to Stay Pending Appeal." They argued there was no good reason for a stay and, besides, the appeals court would almost certainly uphold the district judge's decision.
It is interesting to note that the breakaway lawyers complied with Gergel's order of 19 September, or at least somewhat. Right away, the secessionist organization took off the names and symbols from their website, at least the obvious ones and chose a new name. Then, two months later, they asked for a stay. One can only wonder at what happened in those two months to change their minds. Was it that the Church lawyers demanded they choose a name substantially different than the one they chose?
What all this suggests to me is that the aim of the breakaway side may be to try to reach a de facto settlement, the one the Episcopal side offered in June of 2015, the diocese for the parishes. The secessionists know the Episcopal Church has the historic diocese and all this entails. It is extremely unlikely the appeals court will overturn Gergel's very strong and clear order to that effect. They know they have lost the diocese. However, they have not quite lost the parishes because the circuit court has refused to implement the state supreme court decision. For two years, the circuit court judge has dragged his feet. He has done nothing to implement the two clear majority decisions on the last page, that 28 parishes are property of TEC and Camp St. Christopher is property of the Episcopal diocese. As long as he refuses to do anything about the SCSC decision, the breakaways occupy and use the parishes and camp in question. This may be turning into an effective settlement, the diocese for the parishes. Until and unless Judge Dickson takes measures to enforce the SCSC decision, this de facto settlement will continue and as it does, slides into permanence. If that happens, the breakaways will snatch victory from the jaws of defeat.
2nd. Edition addendum:
The ADSC lawyers are appealing Judge Gergel"s Sept. 19 decision to the U.S. Fourth Circuit Court of Appeals, in Richmond. The appeals court has issued the following dates:
ADSC submit opening brief to the court by January 14, 2020.
EDSC submit response brief to the court by March 2, 2020.
If ADSC wishes to file a reply to EDSC's response, it must be done by March 24, 2020.
2nd. Edition addendum:
The ADSC lawyers are appealing Judge Gergel"s Sept. 19 decision to the U.S. Fourth Circuit Court of Appeals, in Richmond. The appeals court has issued the following dates:
ADSC submit opening brief to the court by January 14, 2020.
EDSC submit response brief to the court by March 2, 2020.
If ADSC wishes to file a reply to EDSC's response, it must be done by March 24, 2020.
