LEGAL NEWS --- 2 JANUARY 2020
In the past few days, there have been developments in both the federal and state parts of the ongoing litigation between the Episcopal Church and the Diocese of South Carolina on one side, and the Anglican Diocese of South Carolina on the other.
FEDERAL
On Dec. 23, ADSC filed a petition with the U.S. Court of Appeals, Fourth Circuit, asking for two stays: 1) to stay Judge Gergel's injunction against ADSC, and 2) to stay ADSC's appeal of Judge Gergel's decision. (I covered this in an earlier blog piece. Find it here .)
On 30 December, EDSC responded to ADSC's petition and asked the Appeals Court to deny the two requests for stays. For the diocesan news release about this, see here .
It is unlikely the Appeals Court will grant ADSC's requests for the stays. Here is why:
1) Judge Gergel issued his "Order and Opinion" on 19 September 2019. It did two things. One was to recognize the Episcopal Church diocese as the one and only heir of the historic diocese. The second was an injunction against the disassociated diocese from using the names and emblems of the Episcopal diocese.
The breakaways immediately began to comply. This was surprising because in the earlier case, when the state supreme court recognized Episcopal Church ownership of 29 of the 36 parishes in question, the separatists refused to recognize the decision, let alone to comply with it. This time, the dissidents complied with the judge's injunction, or at least they began to obey.
On the day after Gergel's order, the disassociated standing committee met and adopted a new name, Anglican Diocese of South Carolina. The diocesan headquarters took down the names and symbols of the historic diocese from their website and Facebook accounts.
Thus, the Anglicans did not object to Gergel's ruling at the time.
2) It was six weeks after Gergel's order of 19 September before the ADSC filed a motion for a stay of the order, on 25 November. If a stay had been urgent, the ADSC should have applied sooner.
3) ADSC did not fully comply with Gergel's injunction. Therefore, on 11 November, EDSC filed a petition with Judge Gergel for enforcement of the injunction against ADSC. It was only after this that ADSC asked for a stay.
On 18 December, Judge Gergel issued a second order directing ADSC to comply fully with the injunction.
At the same time, Judge Gergel denied ADSC's motion for a stay.
ADSC began complying with this second order.
Five days after that, on 23 December, ADSC filed with the U.S. Court of Appeals for a stay in Gergel's injunction and a stay in the appeal pending the "Booking.com" case before the U.S. Supreme Court.
4) There are two main reasons for getting a stay. One is if the defendants have a good chance of winning on appeal. The other is that the defendants will suffer harm without a stay. ADSC qualifies for neither of these. In fact, the evidence is strong on the opposite.
As for a stay pending a SCOTUS judgment on "Booking.com," I for one see no relationship between this case and a stay for ADSC. "Booking.com" is irrelevant to the church case.
Thus, considering the time elements, Judge Gergel's denial of stay, and the weak case for stay presented by ADSC, my conclusion is the Appeals Court almost certainly will deny both stays requested by ADSC. Furthermore, it seems to me equally likely that the Appeals Court will deny ADSC's appeal of Judge Gergel's orders. Chances are good that EDSC will win again in the federal court, this for the last time.
STATE
In the hearing of 26 November, Judge Edgar Dickson asked the two sets of lawyers to submit proposed orders on ADSC's Motion for Clarification of Jurisdiction. In this motion, ADSC had asked the court to assume jurisdiction over the question of property ownership of the parishes. If so, the court would set aside the South Carolina Supreme Court decision of August 2, 2017, which recognized Episcopal Church ownership of 29 parishes. In other words, ADSC sought to reverse the SCSC decision in order to keep the parishes away from the Episcopal Church.
On 23 December, the lawyers for ADSC submitted their proposed order to Judge Dickson. Of course, they said the court should grant the motion. It said the court could discern the "intent" of the justices' opinions and arrive at its own conclusions. "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 in trust for the benefit of TEC. TEC's arguments that the unilateral Dennis Canon alone, or the Canon in conjunction with various pledges of allegiance and the like are sufficient to create a trust under South Carolina law are rejected."
The point is, the Court would recognize that the 29 parishes own their own property outright and now under trust control of the Episcopal Church. This would directly contradict the SCSC decision which said explicitly the 29 had acceded to the Dennis Canon and were now property of the Episcopal Church.
This proposed order was posted on the SC courts website where it remains. It is a public document. It was my understanding that proposed orders were supposed to remain confidential. Why this one was posted on the Internet remains an open question.
The Episcopal diocese's lawyers have also submitted their proposed order on ADSC's motion for clarification. However, at last check it was not posted on the SC courts website. Obviously it would argue to deny ADSC's motion.
If EDSC's proposed order is posted on the Internet, I will return with commentary on it.
The judgment that Dickson must now make is whether the 29 parishes belong to the Episcopal Church or not. ADSC says they do not because they did not accede to the Dennis Canon. EDSC says they do because the SCSC ruled they did accede and are now property of the Episcopal Church. What this boils down to is whether Judge Dickson will implement the SCSC decision or set it aside on a narrow interpretation and declare the 29 own their own property outright.
After their decision and denial of rehearing, the SCSC justices sent a Remittutur to the circuit court. A "remit" is an order to implement a decision. Judge Dickson has had this before him for two years. Why he has not carried out the remit is anyone's guess. Only he could tell us why he has not, and he is not talking. The very fact that he is seriously considering discarding the SCSC decision should be concerning to the Church side.
A supreme court decision is the law of the land. If Judge Dickson refuses to implement it, the Court of Appeals certainly will, to the detriment of his judicial reputation. Surely, a judge nearing retirement would not want to leave on such a note. Maybe someday we will know why Judge Dickson has been so reluctant to recognize and enforce a final decision of the South Carolina Supreme Court.
We can expect a declaration of Judge Dickson within the next few months. Either he will enforce the SCSC decision or he will not. Since he has not found a way to enforce the SCSC decision in two years, I can only wonder if he will find one now. If not, the Appeals Court will. It is unimaginable a supreme court decision that is now the law of the land would be discarded.
