MORE REFLECTIONS ON YESTERDAY'S HEARING

Let's face it. Yesterday's hearing in the South Carolina Supreme Court was a mess. Everyone on both sides is still trying to figure out what happened and what it meant. The lawyers were fairly well focused and did well, but the justices were all over the place. Throwing out questions from one subject to another, they all seemed to be thrashing about looking for the life raft that never came. So what are we to make of this confusion? Where are we now in the church case that has dragged on for nearly nine years? Whatever next?

I must note that what I offer here is only my opinion and I speak for no one but myself. Having said that, here are my thoughts on the day after.

First, we must keep in mind the specific issue before the court. It is Judge Edgar Dickson's Order of June 19, 2020, in which he found all in favor of the secessionist diocese and parishes. The Episcopal side appealed this order to the SCSC. They are asking the SCSC to vacate, or overrule, Dickson in favor of the SCSC decision  of August 2, 2017. The other side, the Anglicans, are asking the SCSC to affirm Dickson and leave it as the final order. 

In the course of the hearing yesterday, these were the issues and questions that stood out. I offer them with my answers:

---Were there majority decisions in the SCSC collective opinion of Aug. 2, 2017? 

Yes. There were three majority opinions in the written decision. This was clearly affirmed even by the justices who dissented in part or in whole to the majority. 

First, the then Chief Justice Jean Toal assigned herself oversight of the case and wrote a lengthy summary of the court's decision at the end of the paper. On the last page, 77, she listed the three majority decisions and who voted for each.

All of the other justices wrote into their opinions that there were majority decisions. Justice Beatty wrote on p. 37: 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.

---Was the majority opinion in 2017 that 28 parishes had acceded to the Dennis Canon and 8 had not?

Yes. This was clearly summarized by Toal on p. 77.

---On what basis did the majority decide on accession?

Two factors. 1-the court record from the trial court which had conducted a trial in 2014; and 2-the concept of "minimal burden" on the Episcopal Church in enforcing its property trust. 

1-The court record held the acts of the individual parishes in regard to accession. Judge Goodstein had not discussed in the courtrrom the accessions of the individual parishes in the trial. She held that the Dennis Canon had no effect in SC because the parishes had never expressly set up trusts and the parishes, and diocese, had legally seceded from the Episcopal Church, property in hand.

The justices of the SCSC had the court record and studied it. The record had the actions of each of the 36 parishes in question. Four (Pleicones, Hearn, Kittredge, and Beatty) agreed, from the content in the record, that 28 of the 36 parishes had acceded to the Dennis Canon. Kittredge wrote (p. 39) While I agree the national church could not unilaterally declare a trust over the property of the local churches, I would join 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. 

This showed that Kittredge and Beatty joined with Pleicones and Hearn in agreeing that the evidence in the court record was enough for them to declare the 28 had acceded to the Dennis Canon.

The same court record passed to Judge Edgar Dickson. As Goodstein, he did not hold discussions in any of his several hearings on the individual parishes' accessions. I do not know whether the lawyers on one or both sides submitted additional information to him on this matter.  Dickson ruled in his 2020 order that no parish had acceded to the Dennis Canon thus directly contradicting the majority in the SCSC decision.

Thus, on the issue of accession to the Dennis Canon there was a direct conflict between the SCSC decision and Dickson's order.

2-Minimal burden. This raised the question of what constituted the formation of a trust in the context of a religious institution. Goodstein, and the Anglican side, insisted that SC law required the property owner to make an explicit document in writing to form a trust for another party and that none of the parishes had done that. Judge Dickson agreed and used that as justification of his finding.

The majority in the SCSC followed the minimal burden guide. This held that the U.S. Supreme Court had ruled that religious institutions could not be held to an undue burden on property but must be given "minimal" burden. Minimal was not defined.

Even though Justice Kittredge went on to hold that the parishes revoked their accessions to the Dennis Canon and to dissent from the majority, he did advance the minimal burden concept. He wrote (p. 40):

I believe where there is a dispute involving a local church's property rights vis a vis a national religious society and an affiliated local religious body, constitutional considerations require courts to analyze and resolve property dispute through the framework of a "minimal burden" on the national religious organization.

He went on that even though a local parish had not explicitly set up a trust for the national church, its construction of trust could be construed by other means under a minimal concept. He wrote on p. 42:

given the Supreme Court's imprimatur concerning the minimal burden that may be imposed on a religious organization, I conclude that a trust was created in favor of the national church over the property of the twenty-eight local churches that acceded in writing to the 1979 Dennis Canon. 

So, under minimal burden, the majority ruled that parishes had only to accede to the Dennis Canon instead of making explicit documents of trust formation for the Episcopal Church. Goodstein had disagreed. Dickson was to disagree.

Thus, the majority of the SCSC (Pleicones, Hearn, and Beatty) agreed that the 28 parishes were property of the Episcopal Church because they had acceded to the Dennis Canon. Although Kittredge had agreed they acceded to the Canon, he went on that they revoked their accessions at the moment of the schism. He and Toal dissented from the majority on the issue of final ownership of the properties of the 28 parishes.

---Did the SCSC refuse a rehearing after its Aug. 2, 2017 decision?

Yes. The court voted 2 (Pleicones and Beatty) against and 2 (Toal and Kittredge) for a rehearing. This tie vote denied a rehearing which required a majority vote. 

Note that Beatty voted against a rehearing. 

---Did the SCSC remit or remand its Aug. 2, 2017 decision to the lower court?

Remit. On November 17, the SCSC issued a formal order of Remittitur to the circuit court, the court of origin. 

A remit is an order to the lower court to implement a higher court decision. A remand is an order to the lower court to reconsider, or retry, the issues at hand.

---Was the secessionist party deprived of "due process" by the SCSC?

No. The issue of accession to the Dennis Canon came up in the circuit court trial of 2014 but not in courtroom discussion. Judge Goodstein ruled that the parishes had not set up trusts for the Episcopal Church and thus retained their properties. The Anglican side did not complain about "due process" at that time.

As I recall, the Anglican side did not bring up due process in the hearing before the SCSC in 2015. They only brought it up after the SCSC issued its written decision in 2017. Then they said they had been deprived of due process because the SCSC had decided the accession issue without allowing the parties to present more evidence.

When Judge Dickson issued his order in 2020, the Anglicans declared they had found due process and this should be the end of the issue. In the hearing yesterday, when pressed about this, Runyan said the issue should not be reopened.

In fact, the Episcopal side could make a good case that they had been deprived of due process both by Judge Goodstein and Judge Dickson both of whom had kept the accession issue out of their trial/hearings. 

In my view, due process is a moot issue. The litigation process is over. The question now is which of the two decisions is final: the SCSC or Dickson. It is too late in the game to re-litigate any part of this case. Anyway, I do not see how the Anglicans can say they had due process under Goodstein but not under the SCSC. The court record was the same.

---Did Judge Dickson recognize the majority decisions in the SCSC collective opinion of 2017?

Dickson recognized and implemented the third majority decision from the 2017 opinion. In one of the hearings, he asked the lawyers to agree (they did) to allow the eight parishes to have uncontested ownership of their local properties.

Dickson ignored the first and second majority decisions.

What happens now?

The justices will vote to affirm (uphold) or vacate (reverse) Judge Dickson's order of 2020. They will prepare written opinions supporting their views. There is no time frame for this. The last time it took nearly two years for the court to release its collective opinion.

It is possible there could be partial affirmation and reversal, that is, the court could agree with some of Dickson's findings and not others. 

If they uphold Dickson completely, the secessionist side will gain uncontested ownership of the local properties and Camp St. Christopher.

If they vacate Dickson completely, the Episcopal Church will regain the local properties and cede them to the Episcopal diocese and the Episcopal trustees will regain ownership of the Camp.

Finally, the integrity of the SC Supreme Court is at stake. They issued majority decisions that became the law. They directed the lower court to implement their majority decisions. The lower court refused and instead reversed the majority decisions of the state's highest court. If the SCSC allows this to stand, they will set a most dangerous precedent that the lower courts do not have to honor SCSC decisions. Beyond all the issues involved here, this is the paramount one the five justices in Columbia should be considering today.