Tuesday, June 30, 2020


On Monday, June 29, the Episcopal Diocese of South Carolina released the news that the diocesan lawyers petitioned Judge Edgar Dickson to change his decision of June 19 in which he nullified the SC Supreme Court majority decisions and granted all of the properties in question to the disassociated organization. Find the diocesan press release about this here . This provides a link to today's petition.

The EDSC paper to Dickson was entitled "Defendants' Motion for Reconsideration and to Alter or Amend." It concluded:

Defendants respectfully submit that the Court should reconsider the Order and alter or amend it to conform to the Supreme Court's holding that the property of the twenty-nine churches is held in trust for Defendants and that the Defendant diocese [EDSC] is the beneficiary of the trust that owns legal title to the Diocesan Property.

Yesterday's Motion was precise and concise. This is appropriate considering the stark issues at stake. The EDSC lawyers divided their arguments in five enumerated, clear points. Let's review them one at a time.

1. This Court lacked the authority to issue the Order. (p.4)

Simply put, a supreme court decision is the law of the land. A lower court does not have the authority to change this.

An appellate court's decision in an appeal is the law of the case. (p. 5)

The SCSC issued a Remittitur to the circuit court. It did not issue a Remand. A remittitur is a direction to implement a higher court decision.

By treating this case as having been remanded for further analysis of the facts and law on issues on which the Supreme Court already ruled, this Court exceeded its authority on remittitur. (p.6)

The judicial system operates on hierarchy.

Litigation must end at some point and lower courts must adhere to the express rulings of appellate courts. The Order [of Dickson] has the effect of undermining the authority, respect, and confidence necessary for the integrity of our judiciary. (p. 6)

2. Even if this Court had the authority to construe the Supreme Court's decision, the Order misinterprets and contradicts that decision. (p. 7)

This was the longest, most detailed, and, next to # 1, the most persuasive part of the paper. The lawyers showed very clearly the majority decisions in the SCSC Opinion of Aug. 2, 2017.

The error in Dickson's Order was to take an interpretation of the process of making the majority opinions over the opinions themselves. In fact, it is only the majority opinion that matters in any supreme court ruling.

the [Circuit] Court's analysis strays from this directive when it begins to focus on the reasoning of the Supreme Court justices---particularly the dissenting opinions---while ignoring the result mandated by the Supreme Court (reversal). (p. 7)

The fact that there were five separate opinions in the SCSC Opinion is irrelevant. Justices often write separate opinions. The fact remained that the decisions were by majority.

Neither is "neutral principles" an issue. All five justices followed neutral principles of law. 

Moreover, four of the five justices agreed that the Dennis Canon was enough to impose a trust if the parishes acceded to it. The four declared that 28 [actually 29] parishes acceded to the Canon. One of the four, Kittredge, held that the 28 had the right to revoke their accessions, and they did. This left a 3-2 decision that 28 parishes remained under the Dennis Canon; and under the terms of the Canon, the Episcopal Church became the owner of the property. 

in applying neutral principles of law, four justices concluded the combination of the Dennis Canon and the Plaintiff parishes' accessions imposed a trust on the Plaintiff parishes' property. (p. 11)

This was the key majority decision of the state supreme court. The lower court had no right to reconsider this issue:

It was therefore a mistake for this Court to commence its own review of the evidence and to issue a ruling at odds with the Supreme Court's holding and the findings of four justices. (p. 12)

Likewise, with Camp St. Christopher. The majority of the SCSC ruled that the Camp belonged to the Episcopal diocese. Therefore, Dickson had no right to overrule this majority decision.

3. Even if the Court somehow had the authority to relitigate the issues upon which the Supreme Court previously ruled, the Order incorrectly analyzes the facts and improperly applies the law. (p. 13)

Here, the EDSC lawyers simply pointed out that both the majority of SCSC justices and the federal court declared the Episcopal Church diocese to be the one and only legal and legitimate heir of the historic diocese. In fact, the United States District Judge Richard Gergel, ruled the Episcopal Church to be an hierarchical institution. That means the government must defer to the Church to govern itself. 

Federal law takes precedence over state law. Although Gergel's decision is on appeal, it remains the law. The Episcopal Church is hierarchical. This means the circuit court had no right to rule on the internal affairs of this Church.

In fact, Dickson himself declared the dispute in the church case to arise from theological issues. 

the Court erred in failing to defer to the church's hierarchical determination, as the First Amendment requires. (p. 14)

4. The Order incorrectly finds Plaintiffs were denied due process. (p. 15)

The Plaintiffs (the breakaways) had full due process in the courts from start to finish.

Plaintiffs have not and cannot show a denial of substantive due process in this case. By contrast, the Order deprives Defendants [EDSC] of due process because it purports to take away their vested property rights recognized by the Supreme Court's final decision. (p. 18)

6. The Order fails to rule on all issues raised by Defendants [EDSC]. (p. 18).

Dickson failed to rule on property other than parishes and the Camp.

Thus, the EDSC lawyers laid out clearly six powerful and irrefutable arguments for why Judge Dickson should take his Order of 19 June back and re-write it to conform to the state supreme court decision.

Will he do that? Highly unlikely. In general, judges are loath to revisit their decisions. Changing a published opinion would be an admission that the original was wrong in some way.

I suspect yesterday's paper was the prelude to an appeal. The lawyers are preparing a strong appeal of Dickson's outrageous Order of 19 June 2020. The court above Dickson is the South Carolina Court of Appeals. 

The issue today is really simple and easy to understand. The heart of the matter is the rule of law under a final decision of a state supreme court. On Aug. 2, 2017, the SCSC issued three majority decisions. Judge Dickson ordered a reversal of two of these. The question, then, is whether a final supreme court decision is in fact law, or is subject to change by a lower court.

It is unimaginable that a higher court would uphold Dickson. The whole judicial system is now, and has always been, a strict hierarchy of authority. A supreme court decision is final. If a lower court is allowed to discard and replace a supreme court decision, anarchy and chaos will follow in the courts. If the upper court upholds Dickson, they will be setting a precedent that a lower court can overrule and replace supreme court decision. It is unbelievable that the court of appeals would do this. No doubt that higher court will defend the established system of jurisprudence. Certainly it will affirm the SCSC decision and direct Dickson to follow it.

Yesterday's Motion has set the stage for eventual resolution of this very long, arduous, and costly legal war initiated by the schismatics. In fact, the basic issues have been settled. The state supreme court ruled the Episcopal Church owns 29 parishes and the Camp. The federal court ruled the Episcopal Church, because it is hierarchical, owns the historic diocese. What we are seeing now is the desperate rear guard action of warriors who will go down fighting to the last man. They will not give up easily. The destruction that has occurred and will occur is beyond tragic. This is the darkest hour in the long history of the Episcopal Church in South Carolina. It is a scandal; and that is the way history will remember it.