"HOW MANY BITES OF THE APPLE DO YOU GET?"
Justice Kittredge asked Alan Runyan the pertinent question of the day, "How man bites of the apple do you get?" The answer, of course, was as many as the courts would allow until he won. He won in the circuit court, lost in the supreme court, then won again in the circuit court and now, having secured his goal, is calling for the door to close. How convenient.
So, should the SC supreme court agree that the breakaways should have been allowed to keep on biting the apple until they had it all? In other words, should the SCSC decision of 2017 stand as final, or should the circuit court decision of 2020 stand? Sorry to say, on that question, we got nothing but confusion today. I am as baffled as anyone else on the meaning of today's hearing.
In the center of all this confusion was the most puzzling matter of all, Chief Justice Beatty's opinion. Today, Beatty said in 2017 he had agreed only on the disposition of the eight parishes that had not acceded to the Dennis Canon. He said he made no decision on the other churches and added there was "no majority for Hearn and Pleicones." Even more strangely, at the end of the hearing Beatty apologized for the "confusion" surrounding the 2017 decision and blamed it all on the lawyers who had given him a "pared down" record that did not present enough information. I am still scratching my head.
Frankly, I have no idea what Beatty was talking about today. And so, I went back and re-read his part of the 2017 opinion. Here is what he wrote then about the parishes:
Yet, TEC argues that the parishes' accession to the Dennis Canon created the trust. Assuming that each parish acceded in writing I would agree. In my view, the Dennis Canon had no effect until acceded to in writing by the individual parishes.
Thus, in contrast to the majority, I would find the parishes that did not expressly accede to the Dennis Canon cannot be divested of their property. Because there was writing purporting to create a trust and they took no other legal action to transfer ownership of their property, I believe these parishes merely promised allegiance to the hierarchical national church. Without more, this promise cannot deprive them of their ownership rights in their property. However, I agree with the majority as to the disposition of the remaining parishes because their express accession to the Dennis Canon was sufficient to create an irrevocable trust.
THEIR EXPRESS ACCESSION TO THE DENNIS CANON WAS SUFFICIENT TO CREATE AN IRREVOCABLE TRUST.
It seems perfectly clear that in 2017 Beatty agreed the 29 had acceded to the Dennis Canon and he did join with Hearn and Pleicones to make a majority. So, I do not know what Beatty meant today when he said he made no decision on the 29 and did that Hearn and Pleicones did not have a majority. Something is amiss.
Does Beatty get to "revise" his opinion of 2017 today? I do not think so. As I told my students over the years, I have to grade you by what you have down on the test paper. You do not get to go back and change it later. The 2017 decision says what it says. It became the law of the land. It is fixed. We have to go by what is written in the 2017 decision.
Basically, the lawyers of the two sides argued alternately that the Dickson order should be vacated and affirmed. The Episcopal lawyer, Skip Utsey, said unsurprisingly that the 2017 SCSC decision was final and that the remittitur to the circuit court required implementation without alteration. The Anglican lawyer, Alan Runyan, argued that his side had been deprived of "due process" in the disposition of the parish and Camp properties which had not been argued in the circuit court in 2014. He held that the SCSC had no right to rule on the properties since it had not been part of the lower court trial. (The parish accessions were in fact part of the record that was presented to the SCSC in 2015 even though discussion of such had been omitted from argument in the circuit trial.) Therefore, Judge Dickson was right to consider the accessions in order to give due process on this issue. Dickson's order must be left to stand because it was based on the due process that had been denied in the supreme court.
Accession to the Dennis Canon was the main point of discussion today with Justice Few going on and on about it musing on the absence or dubiousness of the evidence that the parishes in question had in fact acceded to the Canon.
I, for one, could not see how the justices could take up the accession question again. The 2017 SCSC decision ruled by majority (4 of 5) that 29 parishes had acceded to the Dennis Canon. The 2020 Dickson decision ruled that no parish had acceded to the Dennis Canon. It has to be one or the other. There is no third way. Whether there was or was not accession has been decided. So, it boils down to whether the supreme court or the circuit court should have the last word. Only one of the five justices today, Kittredge, seemed clearly to defend the integrity of the supreme court decision. Few and James seemed to want to re-litigate the accession issue.
In my view, two justices leaned to upholding the 2017 SCSC decision today, Kittredge and Lockemy. Two seemed to lean to affirming Dickson, Few and James.
If there is a 2-2 split, Chief Justice Beatty will, once again, be the pivotal vote, as he was in 2017. As I said, following today's performance, I have no idea how to read Beatty. Although he bristled at any assertion that he had affirmed the accessions of the 29 parishes and had joined in a majority, he seemed ambivalent about Dickson. Early on, Beatty said, "I think the trial judge did exactly what we expected him to do." Later, he said the SCSC decision was remitted to the lower court, and not remanded. Remit would be implementation while remand would mean re-litigation of the issues. Dickson had acted as if the decision was remanded and not remitted. So, bottom line on Beatty, I am at a loss. I have no idea of where he is or where he is going in the impending written decision. This was the most disappointing aspect of today's hearing.
Is it possible that the Chief Justice of the South Carolina Supreme Court would abandon a final decision of his own court in favor of a later contradictory circuit court decision? Surely he, and the other justices, realize the seriousness of such a thing. Allowing Dickson to stand in place of the SCSC decision will set a most dangerous precedent. No SCSC decision would ever be final. Any circuit court could "interpret" a SCSC decision at will. A circuit court could, in effect, veto any SCSC decision. I refuse to believe the five justices today cannot be thinking about these things. The whole integrity of their court is on the line.
After nearly nine years of litigation, one longs for finality and closure. We did not get that today, and, given the tenor of the day, I am not at all sure we will have it in the near future. We did not even get clarity today. The creek is muddier than ever. On that, I am as disappointed as anyone about today's hearing.