THE STATUS OF THE LITIGATION,

JULY 19, 2020

Some important events in the litigation between the two dioceses are likely to occur this week or in the near future. This is an opportune moment to review the status of the legal war between the Episcopal Church and the historic Diocese of South Carolina (EDSC) on one side and the new Anglican Diocese of South Carolina (ADSC) on the other. After seven and a half years of litigation, it is easy to get lost in the trees and lose our way. 

There are three issues immediately at hand. One is whether Judge Dickson will issue a stay of his orders in his decision of June 19. The second is whether the Episcopal Church side's appeal of Dickson's Order of June 19 will go to the South Carolina Court of Appeals or to the South Carolina Supreme Court. The third is the response of ADSC to the EDSC side in the United States Court of Appeals. Let's take them one at a time.

STAY

In his decision of 19 June, Judge Dickson ordered that all 36 parishes owned their properties without trust control, that the Episcopal Church had no interest in the properties, and that a copy of the judge's order be filed in the courthouse of each county. The Church side asked the judge to reconsider his decision, but he refused (13 June). Immediately afterwards, on the June 13, EDSC filed an appeal with the SC Court of Appeals, and also filed a motion with Judge Dickson for a stay of his June 19 Order pending the appeal.

The EDSC lawyers made two main points in their request for a stay. One was that the SC Code of Laws called for a stay:

(Rule 241(a)): As a general rule, the service of a notice of appeal in a civil matter acts to automatically stay matters decided in the order, judgment, decree or decision on appeal, and to automatically stay the relief ordered in the appealed order, judgment, or decree or decision.

The other was timeliness, that the Anglican side could transfer, sell, or otherwise alienate the properties absent a stay.

Two days later, on June 15, the Anglican lawyers filed their response to EDSC's request for a stay. Their main argument was that the EDSC had improperly filed a notice of appeal with the SC Court of Appeals and that any complaint about the Orders would need to be appealed to the South Carolina Supreme Court, not the South Carolina Court of Appeals. 

Then, the ADSC lawyers made a curious point that they had no intention of transferring title of property at least at the moment. At first glance, this sounds as if EDSC does not need a stay because ADSC is not changing the property ownership. Actually, there is less here than meets the eye. The deed ownership was never the issue. From day one, the Episcopal Church said the parish held the deed of the property, but under conditions of the Dennis Canon. The Canon said the parish owned the property as long as the congregation remained in the Episcopal Church. The Episcopal Church and its local diocese were the beneficiaries in the trust imposed by the Canon on the property. If the congregation left the Episcopal Church, the ownership of the parish property would move to the Episcopal Church and its diocese. The issue was not the ownership of the deed but whether there was trust control on the property. The Episcopal Church said there was a trust. The breakaways said there was no trust in effect. 

Judge Dickson's Order of June 19 did not alter the deed ownership that remained with the parish. What it did say was that the Episcopal Church had no right to the properties and that a copy of the court order would be filed in every county where the properties in question were located. This is what the Church side wants to be stayed. They want to stop the judge's order from being registered in the courthouses. In their paper of June 15, the ADSC lawyers did not say whether they had filed the judge's order in the courthouses or if not, whether they would do so. They avoided the issue behind the smoke screen of no intention of transferring title of property, really an irrelevant point.

The next day, June 16, the Episcopal Church side filed a reply to ADSC's paper of the day before. They said they filed for appeal with the SC Court of Appeals because that is what the state code of laws required. However, they said:

Defendants [TEC/EDSC] filed a Motion to Certify which asks the Supreme Court to accept transfer of the appeal pursuant to Rule 204.

Rule 240 states:  "In any case which is pending before the Court of Appeals, the Supreme Court may, in its discretion, on motion of any party to the case, on request by the Court of Appeals, or on its own motion, certify the case for review by the Supreme Court before it has been determined by the Court of Appeals."

So, I read the TEC/EDSC response of June 16 to say the Church side has asked the state supreme court to take the appeal directly.

At any rate, we are awaiting a decision from Judge Dickson on issuance of a stay. A stay would suspend the orders found in Dickson's June 19 decision for the duration of the appeal. Considering the judge's actions all along in the two and a half years he has had this case, it is doubtful that he will grant a stay. Every decision he has made from day one has been in favor of the Anglican diocese. I see no reason to expect anything different now.

STATE APPEAL

So, the question is whether the appeal will be taken up by the state Court of Appeals or the state Supreme Court. The Anglican side definitely wants it to go directly to the the SCSC. From their paper of June 16, it sounds as if the EDSC lawyers want the same. 

I can see why the ADSC wants to go to the SCSC. It is not the same court as the one, nearly three years ago, that issued its landmark Aug. 2, 2017 ruling largely in favor of the Episcopal Church. Two justices have retired (Toal, Pleicones). Two new justices have replaced them. One justice (Hearn) has recused herself. Since all judges and justices in SC are elected by the state legislature for terms, it is safe to assume the two new justices are relatively conservative minded although we would have to study their records of decisions to know for sure their attitudes. It is hard to imagine anyone not rather conservative successfully running the gauntlet in the state house that is controlled by large Republican majorities. And, everyone knows the fundamental issue between the two dioceses is social, specifically, whether homosexuals should have equality and inclusion in the life of the church. Let's not try to pretend otherwise. The fundamental issue at stake here is social conservatism versus social liberalism. 

If the matter goes back to the SCSC, four justices will sit in judgment. Only one of the four (Beatty) was on the Church side three years ago. 

Still, we have to keep going back to the big issue at hand. The state supreme court ruled that the Episcopal Church owned the 28 (29) parishes and the Camp. It sent a Remittitur to the circuit court for this. The circuit judge refused the Remittitur, directly contradicted the SCSC decision and said the parishes owned their properties outright and the breakaway diocese owned the Camp. Thus, the supreme court justices have before them diametrically opposed orders. Which one takes precedence, supreme court or circuit court? It is unimaginable that the supreme court justices would not sustain their own court's work. If they allow a circuit court judge to discard and replace a state supreme court decision they will undermine the authority of the supreme court forever. It is unbelievable they would do this.

So, what we are awaiting is whether the appeal will go to the state Court of Appeals or to the state Supreme Court. We should know soon.

FEDERAL COURT

On Wednesday, July 22, the ADSC is scheduled to file its response brief in the United States Court of Appeals, Fourth Circuit. It sits in Richmond VA. 

On September 19, 2019, Judge Richard Gergel issued a landmark decision recognizing the Episcopal Church diocese as the heir of the historic diocese and owner of the names, marks and emblems. Along with this, he established two major points. One was that the Episcopal Church was hierarchical. The other was to issue a permanent injunction banning the breakaway faction from pretending in any way to be the historic diocese. He declared the secessionists to be a newly formed entity as a product of the schism of 2012. When the breakaways ignored his injunction, Gergel issued a second order enforcing it. 

The ADSC appealed Gergel's decision to the U.S. Court of Appeals. They asked Gergel for a stay pending the appeal. He denied a stay. Then they asked the Court of Appeals for a stay. They, likewise, denied the request. On April 30, 2020, the ADSC submitted to the Appeals Court its brief of arguments against Gergel's decision. On July 2, the EDSC filed its response brief with the Court of Appeals. Now, on this Wednesday, we should get ADSC's response to EDSC's July 2 paper.

Once the Court of Appeals gets the response, they will probably decide whether to have a hearing or to go directly to a decision. Typically, a panel of three judges handles an appeal. If they schedule a hearing, the lawyers of the two sides will present their oral arguments to the panel who will ask questions. Lately, courts have gone to online hearings, for the sake of social distancing, so we should probably expect the same, that is, if the justices decide to hold a hearing. It would be open to the public. The panel would issue a written decision some time later, typically several months. 

In my view, there is little to no chance the appeals court will alter or overturn Judge Gergel's landmark decision. His Sept. 19 order was a masterpiece of jurisprudence, deeply reasoned, meticulously documented, and well-written. He added so many supporting items from the Fourth Circuit itself, that his work is virtually appeal proof. Besides, in any appeal, the onus is on the appealing party to demonstrate convincingly that the original order was erroneous. The ADSC has not done that, far from it. Their brief of Apr. 30 was amazingly thin and weak. I see no reason to think their reply brief of this week will be any different.

Bottom line---chances are very good that the appeals court will uphold Gergel.  

Meanwhile, since there is no stay in the federal case, I wonder why the Episcopal diocese cannot effectuate Gergel's decision. If the Church diocese is the historic diocese, why cannot they get possession of the property and all assets of the old diocese? I do not know the answer. What sticks in my craw the most is that the bishop who led this ill-fated experiment is still living virtually rent free ($1/yr.) in the multi-million dollar residence of the Episcopal bishop, owned by the Episcopal diocese of South Carolina. Why cannot the Church evict him from this Church-owned property? What about charging rent for his seven and a half years of occupation? I figure the rent on the bishop's residence on Smith Street would be $10,000/mo. For the 90 months since the schism, that would amount to $900,000. That's a fair bill to present to the occupant, don't you think? 

So, to quote feisty Bette Davis, fasten your seat belts. We are going to be in for a bumpy ride in the next few months. Of course, we should be used to this by now. We have been on a Mr. Toad's wild ride for seven and a half years. Do not get exhausted. Do not lose hope. Too, do not lose sight of the forest. Legal matters are moving along. Remember, the big issues have been settled. The Episcopal Church retained the historic diocese. The Episcopal diocese retained the bulk of the local properties. 

Looking back, I must confess that I underestimated the animosity of the breakaways for the Episcopal Church and the depth of their resolve to oppose their mother church. They will not go down easily in this war. They have fought tooth and nail for what they believed to be the singular right. They have spent a fortune along the way. Remember, their communicants are paying two sets of lawyers, for diocese and parish. God only knows how much money has been spent (wasted) on this foolish and needless pursuit. In the last few years, ADSC had admitted to app. $1m/yr. just for the legal costs to the diocese. If the two sides have spent $1m/yr each for seven years, that would amount to $14,000,000 in legal fees. That is probably a conservative figure. What a waste. What a shame. What a scandal. Mediation failed, twice. An offer of compromise settlement failed. This unfortunate war can only be settled in the courts. It will be, in time. All of this will come to an end one day and years from now people will shake their heads in dismay. 

Remember this war is over human rights. The Episcopal Church wants all people to have equal rights and inclusion in the life of the church. The rebels are fighting against that. They want to bar open homosexuals and the transgendered from the life of the church and to keep women in submissive roles. So, the legal war in South Carolina is just one aspect of a bigger picture. The side of human rights will win in the end because it is the right thing to do even if the end does not come easily or quickly. 

[My usual disclaimer. I am not a lawyer or legal expert. What I offer here is a layman's opinion.]