EPISCOPAL DIOCESE OF SC SUBMITS REPLY BRIEF TO SC SUPREME COURT

On 4 March 2021, the Episcopal Diocese of South Carolina delivered its reply brief to the South Carolina Supreme Court.

This is in the case where the EDSC is appealing circuit court Judge Edgar Dickson's order of June 19, 2020 that found all in favor of the secessionists. The EDSC filed its initial brief (arguments) in the case to the SCSC on November 12, 2020, essentially holding that the SCSC had settled the case in its August 2, 2017 ruling and had sent its decision down to the circuit court on Remittitur to be implemented. The Anglican Diocese of South Carolina submitted its initial brief to the SCSC on February 12, 2021, arguing that the SCSC decision was not conclusive and was open to interpretation as was properly done by the circuit court. In  short, EDSC asked the SCSC to overturn Dickson while ADSC asked the SCSC to uphold the Dickson order. If the SCSC upholds Dickson, the ADSC will gain the properties in question (29 parishes and the Camp). If the SCSC overturns Dickson, the EDSC will hold ownership of the properties. So the basic question at hand is: Who owns the properties, the Episcopal Church or the breakaways?

The EDSC's "Initial Reply Brief of Appellants" is a concise (15 p.) and precise summary of the overriding points it has made all along since the SCSC ruled in 2017. It is written very clearly and directly, without a burden of verbose legalese. This testifies to what the Church side holds as an open and shut case of indisputable jurisprudence.

These are the main points of EDSC's reply brief that I see:

---The SCSC's reconsideration of its own decision is inappropriate.

There is no legal basis or authority for this Court to ignore its previous decision and to reconsider this matter anew, just as there was no legal basis or authority for the Circuit Court to do so. (p.1)

Respondents' [ADSC] effort to have this Court reopen, reconsider, and reverse its prior holding in this case is contrary to law and this Court should reject it. (p. 3)

---The issue at hand has been settled by the SCSC, in 2017, in an unambiguous, majority decision.

The majority of this Court voted to reverse the Goodstein Order and found that the Respondent Parishes' property is held in trust for Appellants and that the Associated Diocese [EDSC] is the beneficiary of a trust with respect to all Diocesan Property. (p. 2)

As we set out in our primary brief, the result reached by this Court in 2017 is clear: A majority voted to reverse the Goodstein Order as to the property of the twenty-nine Respondent Parishes and the Diocesan Property. (p. 3)

---The majority decision of the SCSC is the law of the case. This law constrains all courts in SC.

The majority result constitutes the law of the case---the law of this case---and, under South Carolina law, binds the courts and parties in this action. (p. 3)

A three-Justice majority held that Appellants [EDSC] are entitled to the Parish Property of Respondents and the Diocesan Property, and that is the law of the case. (p. 4)

---The circuit court had no authority to alter the decision of the SCSC.

As to alleged factual findings in the Dickson Order, the Circuit Court on remittitur had no authority to make them. (p. 2)

The Circuit Court did not have jurisdiction or authority to find and resolve alleged ambiguities in the Supreme Court Ruling; Respondents received due process. (p. 14)

---The SCSC should reverse the Dickson Order and direct the circuit court to implement its decision of 2017.

Legal precedent and fundamental principles of judicial review require the Court to reject Respondents' arguments, reverse the Dickson Order, and remit this action to the Circuit Court to enforce the result this Court reached in 2017. (p. 4)

So, in essence the Episcopal side is saying the SCSC decision of 2017 is clear and means what it says. The Anglican party is saying the decision is ambiguous, inconclusive and open to interpretation by the lower court.

The essential question, then, is: Does the SCSC decision of 2017 mean what it says, or not?

At first glance, common sense says this is an open and shut case. The SCSC will reaffirm its 2017 decision and overturn Dickson. But, not so fast. There is much more here than meets the eye. In the first place, the SC Supreme Court of today is not the same as that of 2017. Two of the five justices then have retired (Toal and Pleicones) and replaced by new justices who had nothing to do with the earlier case. Moreover, one of the present five, Hearn, has recused herself from the case. This leaves four justices to decide the matter before them (unless the court brings in an acting justice to make five). If there are four votes, the Episcopal side needs to get three to overturn Dickson while the Anglican side needs only to get two to uphold Dickson (a two/two tie would leave Dickson in place). The two justices, of the present four, who participated in the 2017 decision are Beatty, the present chief justice, and Kittredge. Beatty voted for the Church side while Kittredge supported the breakaway side. Thus, in a four vote situation, everything will depend on the two new justices, and we can have no idea at the moment how they would lean. One wrinkle in all of this is that the breakaway side has focused on Beatty's part of the 2017 decision essentially holding that he supported a strict interpretation against the Dennis Canon in South Carolina. Actually, Beatty voted with the Church side to form the 3-2 majority. I cannot imagine he is happy with how the ADSC lawyers are portraying his published opinion. Nevertheless, the Church side has a heavier lift here, in that it has to get 3 of the 4 votes while the breakaways need get only 2.

As I have maintained all along, the fight in the Episcopal Church is part of the wider culture war in America, indeed, in the world (e.g. the recent brouhaha between the archbishops of Canterbury and Nigeria). The Episcopal Church embraces equality for and inclusion of homosexuals and women. The breakaway side condemns homosexuality and holds women to be inferior to men. 

What happens now in the SC Supreme Court will depend on how the justices ultimately interpret the matter before them, as jurisprudence or as the culture war. The recent case in Texas is a perfect example of the courts' dealings with the schisms. There, the local courts (circuit court and appeals court) followed jurisprudence and ruled very clearly and substantially in favor of the hierarchical Episcopal Church. However, the Texas Supreme Court, composed entirely of conservative justices elected state-wide, ignored all of the lower court voluminous reasonings and ruled in favor of the breakaways, on the technicality that a trust in Texas can be revoked unless the trust explicitly says it cannot be revoked. The Dennis Canon has no such provision, nor should it since the nature of a trust is a legal provision binding on the parties named in it. It appears to me as if the Texas supreme court was far more concerned that the breakaways should win than that the mountain of lower court jurisprudence should prevail. My conclusion is that the Texas supreme court saw this matter through the lens of the culture war. 

The situation in South Carolina is not at all the same as that of Texas. The essential difference is that the SC supreme court has already ruled on the case. They issued a majority decision that 29 parish properties belong to the Episcopal Church and the Camp belongs to the Episcopal diocese. If the SCSC now wants to reverse this and award the properties to the breakaway side, they would have to produce some compelling explanation to justify such a radical move. It is hard to imagine what kind of rationalizations the justices could come up with in order to allow a circuit court to overrule the state supreme court. It is equally hard to imagine the effects of such a thing on the whole system of law and jurisprudence in South Carolina. Chaos would result.

Common sense says that the Episcopal Church will win this. However, in the culture war, common sense does not always prevail.