Monday, June 22, 2020


Everyone expects Judge Dickson's Order of June 19 to be appealed to the South Carolina Court of Appeals, even Judge Dickson. I heard him say, more than once, in the hearings that he knew whatever he decided would be appealed. In fact, Dickson wrote in his Order, page 4, footnote 2, "This motion [on Betterments] remains outstanding pending a final decision in this case." He knew his decision of last Friday would not be final. I cannot speak for anyone else, but I think it's a safe bet the Episcopal Church lawyers are busy today preparing an appeal. What will be appealed is Judge Dickson's Order of June 19, 2020. Therefore, it is timely now to revisit this Order and get some perspective on its chances before the appeals court. The Order itself will be the matter before the court.

The fundamental question before the appeals court will be whether the circuit court properly interpreted the South Carolina Supreme Court decision of August 2, 2017. The circuit court was under a Remittitur from the SCSC.

Find a copy of the SCSC decision of Aug. 2, 2017 here .

Find a copy of the circuit court decision of June 19, 2020 here .

The basic issue at stake was, and is, the ownership of the properties, particularly the 28 parishes and Camp St. Christopher. The Church lawyers said they belonged to the Episcopal Church and its diocese. The disassociated lawyers said they belonged to themselves and their diocese. This is the essential issue at stake in the state court proceedings.

The two sides regarded the SCSC Opinion entirely differently. The Episcopal Church side maintained that the SCSC clearly recognized Episcopal Church ownership of the 28 and the Camp and that it ordered the circuit court to implement the transfer of possession. The other side (they call themselves the Anglican Diocese of South Carolina, so we will refer to them as ADSC) argued that the SCSC decision did not make a clear order and that the circuit court had to decide the outcome by determining the "Collective Opinion" which would appear in the "intent" of the five justices since they all wrote separate opinions. Therefore, ADSC called on Dickson to resolve for himself the Collective Opinion which he would then implement. In short, EDSC said Dickson had to implement the three majority decisions while ADSC said Dickson had to decide himself what the SCSC ordered.

The three SCSC majority rulings were listed on page 77 of the Aug. 2 Opinion. They clearly stated the majority conclusions recognizing Episcopal Church ownership of the 28 parishes and the Camp. The ADSC argued that these were not authoritative, but only opinions of former Chief Justice Jean Toal and were only given in a footnote at the end of her lengthy part of the paper. So, whether these three were actually orders of the court remained controversial. 

However, on closer examination, there can be little doubt about authority. Toal was Chief Justice when this case appeared before the SC Supreme Court in 2015. She assigned herself to be in charge of the case. She was very much in charge in the hearing before the SCSC on Sept. 23, 2015, she dominated to room from start to finish, talking more than anyone, asking the most questions. Clearly, she saw this as her hour. Apparently, she was hoping this case would validate her All Saints ruling (it did not) of 2009. This would be the icing on the cake of her long and distinguished career on the bench. She wrote the longest, most detailed of the five separate opinions. At the last sentence of her part, on page 76, she gave a footnote that summarized the work of the SCSC in this case. This is where she clearly described the court's majority decisions:

However, we [Kittredge and Toal] are in the minority, because a different majority of the Court---consisting of Chief Justice Beatty, Justice Hearn, and Acting Justice Pleicones---would reverse the trial court and transfer title of all but eight of the plaintiffs' properties to the defendants...Chief Justice Beatty would do so because he believes all but eight of the plaintiffs acceded to the Dennis Canon in a manner recognizable under South Carolina trust law."

The idea that this is only Toal's personal opinion is not borne out by the wording and the context. As overseer of this case, she was clearly summarizing the work of the court. Her listing of the three majority decision on page 77 could not be plainer. It is perfectly clear she meant this to be definitive.

However, ADSC refused to accept the three decisions as definitive. They said the meaning of the decision had to be worked out by examining the Collective Opinion, that is the whole body of the 77-page Opinion. They said this could only be done by determining the intent of the justices. Intent raised two problems. Intent is often entirely subjective. How could anyone really discern intent unless it was expressly spelled out which it rarely is? Intent would almost always be debatable. Moreover, supreme court decisions rest on their conclusions, not the intent of the justices. It is only the final order than matters, not how the justices reached that point. So, intent is always difficult to prove under the law.

Nevertheless, for the sake of argument, we will assume that the SCSC decision must be resolved by discerning the Collective Opinion of the five justices. To determine this, one would have to look at each one of the five opinions and decide what the collective would be. Since property is the core issue, let us look at each of the five opinions in the SCSC paper on ownership of the properties:

1. PLEICONES. Wrote the majority opinion. Upheld TEC across the board. I would overrule All Saints to the extent it held the Dennis Canon and the diocesan equivalent did not create effective trusts in South Carolina... (p. 19). He said TEC owned the parishes and the Camp without question.

2. HEARN. Agreed with Pleicones. I would find South Carolina's doctrine of constructive trusts would operate to impose a trust in favor of the National Church. (p. 31). She too found TEC owned the parishes and the Camp without question.

3. BEATTY. Agreed with Pleicones and Hearn that 28 parishes acceded to the Dennis Canon:  I agree with the majority as to the disposition of the [28] remaining parishes because their express accession to the Dennis Canon was sufficient to create an irrevocable trust. (p. 37-38).
As for the Camp, Beatty said it belonged to the Episcopal Church diocese because In my view, the disassociated diocese can make no claim to being the successor to the Protestant Episcopal Church in the Diocese of South Carolina. (p. 38).

4. KITTREDGE. Agreed with Pleicones, Hearn, and Beatty that the Dennis Canon created a trust:  I would join with Chief Justice Beatty and hold that the local churches' accession to the 1979 Dennis Canon was sufficient to create a trust in favor of the national church. (p. 39).
However, he went on to say the diocese legally disassociated from the Episcopal Church and the parishes had the right to revoke their accessions to the Dennis Canon. He held they did end their accessions and therefore owned their own properties clear of trust.
Kittredge made no mention of the Camp.

5. TOAL. Disagreed with everyone. She held that the Dennis Canon had no automatic validity in the state and the parishes did not accede to the Canon under the terms of state law. She also declared the diocese and parishes legally disassociated from TEC. She tried mightily, but failed, to sustain her All Saints decision. 

In summary, four of five justices recognized the validity of the Dennis Canon in South Carolina. The four agreed that 28 of the 36 parishes in question did in fact accede to the Dennis Canon. One of the three (Kittredge) said the parishes had the right to revoke their accessions; and they did. The other three held the parishes remained bound by the Canon. Three formed a majority of the five to find in favor of TEC.

On the question of Camp St. Christopher, three of the five recognized it as property of the Episcopal Church diocese. Three makes a majority of five in favor of TEC.

Moreover, three of five recognized the Episcopal Church diocese as the legal and legitimate heir of the historic diocese (something that was confirmed by the federal court in September of 2019).

Thus, the collective opinion of the SCSC is clear in the examination of each of the five separate opinions. The majority of the justices recognized the Episcopal Church and its diocese as owners of 28 parishes and the Camp.

Not so to Judge Dickson. He looked at the same evidence the justices had seen and reached an entirely different view of the collective opinion. In his discussion, Dickson zeroed in on the "swing vote," the present chief justice, Beatty (pp. 20-21). Dickson ignored Beatty's final conclusion in support of the Episcopal Church, instead quoting Beatty's preceding remarks in support of strict construction of SC trust law (express accession, in writing). It seemed that to Dickson this proved Beatty actually opposed the claim that the parishes acceded to the Dennis Canon. Using this to move Beatty over from Pleicones and Hearn to Kittredge and Toal on the issue of the Dennis Canon would make a majority in favor of the the parishes owning their own properties outright. However, to put Beatty on the anti-TEC side was to ignore both Beatty's own conclusion and Toal's statement of Beatty's opinion. In fact, Beatty very clearly wound up siding with the majority on the issue of the property. Apparently, Dickson believed Beatty gave greater weight to defending the All Saints view of strict construction even though he ended by voting with the pro-TEC side. At least, that is the way it seemed to me.

Looking at the evidence on hand about accession to the Dennis Canon, Dickson concluded that no parish actually acceded to the Dennis Canon. He looked at the same evidence that had led four of the five justices to conclude that 28 parishes had in fact acceded to the Dennis Canon. This was the central difference between Dickson's view and that of the majority of the state supreme court. The majority said the parishes acceded; Dickson said they did not. The question before the appeals court is which view should take priority, that of the supreme court or that of the circuit court.

There is another apparent discrepancy in Dickson's Order. It concerns the 8 local parishes that did not accede to the Dennis Canon. The question is about the inclusion of Old St. Andrews in this list. Dickson wrote on p. 24:

The Defendants concede that the eight Parishes that do not hold their property in trust for TEC and TECSC are:

1. Christ the King, Waccamaw
2. St. Matthews Church, Darlington
3. Parish of St. Andrews, Mount Pleasant (and its Land Trust, a separate corporation)
4. The Vestries and Churchwardens of the Parish of St. Paul's Episcopal Church of Conway
5. The Episcopal Church of the Parish of Prince George Winyah, Georgetown
6. St. John's Episcopal Church of Florence
7. St. Matthias Episcopal Church, Summerton
8. The Vestries and Churchwardens of the Parish of St. Andrews (aka Old St. Andrew's).

This was not the list that was included in the SCSC decision of Aug. 2, 2017. Here is the original (pp. 52-53):

The defendants do not reference any documentation of accession (and I have found none in the record) for the following plaintiff parishes: Christ the King, Waccamaw; St. Matthews Church, Darlington; St. Andrews Church-Mt. Pleasant Land Trust; St. Paul's Episcopal Church of Conway; The Episcopal Church of the Parish of Prince George Winyah, Georgetown; the Parish of St. Andrew, Mt. Pleasant; St. John's Episcopal Church of Florence; and St. Matthias Episcopal Church, Summerton.

This original list did not include Old St. Andrew's. The St. Andrew's listed here was the one in Mt. Pleasant. The parish and the land trust were two different corporations and listed separately. Why Dickson would insert Old St. Andrew's into this list remains unclear. Anyway, if Dickson was declaring that all parishes own their own properties, there was no apparent reason to list the eight at all. This would be redundant.

In conclusion, a review of the Collective Opinion in the SCSC decision clearly shows a decision in favor of the Episcopal Church and its diocese. It is only by applying an interpretation of "intent" that one can construe a different meaning and that involves pretzel logic and blind omission. Since discernment of intent is almost always subjective, it is almost always debatable. It seems highly dubious to me to try to interpret Beatty's opinion in any other way than with his own conclusion. Surely we have to take his own final words as his intent and meaning. To me, this is the potential fatal flaw of Dickson's Order. In my view, he did not prove that the majority of the justices of the SCSC intended to give the properties to the local parishes. He certainly did not prove that the Collective Opinion was different than the three majority decisions of the SCSC.

In my opinion, Dickson's decision is not substantial. It is wrong on the face of it because it contradicts both the stated majority decisions and the collective opinion of the SCSC. If it is trying to use "intent" as the avenue to final resolution, it does not work. It is not convincing. I would not be surprised if Dickson's Order does not meet the same fate as Judge Goodstein's order when it reaches the Court of Appeals. We shall see.


My usual disclaimer: I am not a lawyer or legal expert. I am not an officer in any religious institution. My remarks are meant only as opinion.