OPINION

v.

COLLECTIVE OPINION

Was the South Carolina Supreme Court publication of August 2, 2017, an Opinion, or a Collective Opinion (aka Collective Opinions)? At first glance, one may ask, What's the difference? Are not these terms the same? Anyway, what would it matter? On closer examination, we will see that the difference between these terms is the issue in a nutshell. They are in fact diametrically opposed; and the justices of the SCSC will have to decide which is correct.

In brief, the Episcopal Church side holds that the paper from the SCSC dated 2 August 2017 is the majority opinion of the court settling the questions of which side owns the 36 parishes in question and Camp St. Christopher. They call it "the Opinion."

The secessionist side (aka Anglican Diocese of South Carolina) contends it is five separate opinions, therefore they prefer to call the paper "the Collective Opinion." The implication of this was there was no clear ruling on the issues of the parishes and the Camp; and therefore, the circuit court had to "interpret" the overall intention of the justices on these issues. In a press release of 23 September, the ADSC spokesperson wrote:  "Judge Goodstein's ruling was appealed to the South Carolina Supreme Court, which ruled on August 2, 2017 in the form of five separate opinions. The lack of agreement among those five opinions required clarification."

To put it simply: Did the SCSC give a majority ruling in 2017 to settle who owned the parishes and the Camp? Church said "Yes"; breakaways said "No." And, they chose as their terms for the 2017 paper "Opinion" and "Collective Opinion." Both of them cannot be right. One has to be correct and the other incorrect. This is what the justices of the SCSC have to decide now.

Let us start with the paper of Aug. 2, 2017 itself. On the title page we find this:

"Appellate Case No. 2015-000622/Appeal from Dorchester County, Diane Schafer Goodstein, Circuit Court Judge/Opinion No. 27731/Heard September 23, 2015---Filed August 2, 2017."

Thus, the paper calls itself "Opinion." Opinion is a singular word. I have searched the 77 pages of this Opinion and cannot find anywhere the term "Collective Opinion." The designation "Collective Opinion" was adopted by the breakaway side and taken up by Judge Edgar Dickson who used it often in his June 19, 2020 Order. It is not original to the document of 2017.

It is the meaning of the term "Collective Opinion" that is important here. It means that there is no clear majority ruling in the 2017 Opinion, only a collection of different views. Is this true? 

The Aug. 2, 2017 Opinion states clearly the decisions of the South Carolina Supreme Court. The majority opinion was written by Justice Pleicones. Chief Justice Toal, who was in charge of the case, enumerated the three majority decisions of the court very clearly in the last page of her summary even though she dissented from the majority: 1-The 8 parish organizations that had not acceded to the Dennis Canon were owners of their properties; 2-The 28 parishes that acceded to the Dennis Canon were property of the Episcopal Church; and 3-The Camp was property of the Episcopal trustees. One may find the Aug. 2, 2017 decision here .

On Nov. 17, 2017, the SCSC denied a rehearing of the case and issued a Remittitur to the Circuit Court. A Remittitur is a directive to implement a decision. If the court had meant a reconsideration of the issues, it would have issued a Remand.

The secessionist side asked the U.S. Supreme Court to take the case, (it later refused). Then, it asked the circuit court judge, Edgar Dickson, for an interpretation of the SCSC decision. After reams of papers and numerous hearings, Dickson issued an Order on June 19, 2020, that the parishes were owners of the local properties and the Anglican trustees were owners of the Camp. On these essential issues, Dickson directly contradicted the majority opinions of the state high court.

Dickson did so because he saw the 2017 paper as "the Collective Opinion." He leaned to the secessionist position that the five separate opinions in the paper presented no clear majority decision. He claimed that he had the right to interpret the "intent" of the justices as shown in the entire paper.

In fact, four of the SCSC justices ruled that 28 parishes had acceded to the Dennis Canon. Only Toal disagreed. One of the four, Kittredge, went on to say that the parishes had the right to revoke their accessions, and they did at the "disassociation." This left three of the five justices to declare that the 28 parishes belonged to the Episcopal Church as per the Dennis Canon. 

Judge Dickson ruled in his Order that no parish had acceded to the Dennis Canon. He said he reviewed the same Record on Appeal that the SCSC justices had used to make their ruling. The SCSC justices had found compelling evidence of accession. Dickson found none. On this basis, he ordered that the parishes remained owners of the local properties and the Anglican trustees owned the Camp.

Dickson's decision seemed to revolve around the part of the 2017 opinion written by Justice (now Chief Justice) Beatty. Beatty said "the Dennis Canon had no effect until acceded to in writing by the individual parishes." Dickson agreed and gave a strict interpretation to this. However, Beatty himself went on to say the 28 parishes in question did in fact create trusts:  "I agree with the majority as to the disposition of the remaining [28] parishes because their express accession to the Dennis Canon was sufficient to create an irrevocable trust." So what this boiled down to was that Dickson apparently disagreed with the conclusion of Beatty. Dickson said no parish acceded to the Dennis Canon. Beatty said the 28 parishes had made express accessions to the Canon. Toal confirmed Beatty's opinion in her summary of the three decision on the last page. Dickson said Beatty did not list the parishes that had acceded. In fact, Toal provided Beatty's list in the three majority decisions. 

It seemed to me that Dickson misinterpreted Beatty's decision to make it appear that Beatty intended to hold that the parishes had to create express trusts explicitly in writing for the Dennis Canon to go into effect. So, Dickson interpreted the "intent" of the court to be that each parish had to create an express trusts in writing for the Dennis Canon to be effective, and they had not done that. Never mind that the majority of the SCSC justices had ruled that the 28 parishes had acceded to the Dennis Canon. There was a difference of opinion on what express trust meant.

In his Order, Dickson wrote a conclusion on pages 44-46 laying out his decision on the properties. Actually, he essentially returned to Goodstein's 2015 Order. Nowhere in his conclusion, did Dickson mention the South Carolina Supreme Court. Apparently, it was as irrelevant at the end as it had been all along.

Opinion or Collective Opinion(s)? There is absolutely no doubt to a reasonable person that the SCSC issued three majority decisions on Aug. 2, 2017. The SCSC Opinion says what it says, and means what it says. The fact that each of the five justices wrote his or her own opinion does not matter. Multiple opinions appear frequently in supreme courts, even with unanimous decisions (as the recent face mask decision). 

However, separate does not necessarily mean conflicting. There were not five opposing opinions on the three major points at stake. In fact, there were three majority (3-2) decisions and these were sent to the circuit court for implementation. No amount of misinterpretation and friendly judges can obscure the blazing facts of the SCSC Opinion.

So, this is the fundamental issue at stake before the South Carolina Supreme Court now: Opinion or Collective Opinion(s)?