THE HOUR IS NIGH
The hearing before the South Carolina Supreme Court is finally near at hand. It will be on Wednesday, the Eighth of December, at 9:30 a.m. EST, in the courtroom of the SCSC, in Columbia.
Following COVID-19 protocols, the only outsiders allowed in the courtroom will be the two attorneys named by each party. The rest may watch on the court's live-stream.
The two attorneys representing the Episcopal diocese will be Thomas Tisdale, chancellor of the diocese, and Bert G. (Skip) Utsey III. The national Episcopal Church will be represented by attorney Mary Kostel. The Anglican Diocese of South Carolina will be represented by C. Alan Runyan and C. Mitchell Brown.
Click HERE for the SCSC live-stream.
The question now is, For what should we look in the hearing?
First, let us consider what not to look for. The arguments of the lawyers on both sides are already well known and laid out in detail in the written briefs. No doubt, they will spend as much time as they can to press their main points. Each side has only 25 minutes, Episcopal side first, then Anglicans. Finally, the Episcopal lawyers have 10 minutes for rebuttal. The whole hearing is one hour.
For the written briefs of all parties, see the SC courts website: sccourts.org/ACMS/. The Appellate Case Number is 2020-000986. This will give one all of the papers that have been filed in this appeal.
In a nutshell, the Episcopal side will probably argue that the SCSC has already settled the issues of the case in the three majority decisions of their August 2, 2017 opinion. Denial of rehearing and of cert in SCOTUS rendered the decision final. The SCSC remitted their opinion to the circuit court for implementation. Instead, the lower court improperly religitated the case and issued an Order in contradiction of the SCSC opinion. Thus, SCSC should vacate the lower court's action and restore the remittitur to the circuit court to enact the three majority decisions (actually two---one was implemented by the circuit court).
Click HERE for an impartial summary and full text of the SCSC Aug. 2, 2071 decision.
The Anglican side will argue that the SCSC decision was not definitive, but was fractured into five different opinions with no coherent majority. It did not give clear direction to the circuit court. The lower court had every right to interpret the meaning of the SCSC decision by considering its totality. Following this, the circuit court was right to find that no parish had acceded to the Dennis Canon and the local entities had properly followed state law to separate from the Episcopal Church. Thus, the SCSC should affirm the circuit court's finding and leave Dickson's Order of 2020 standing.
Click HERE for Judge Edgar Dickson's Order of June 19, 2020.
To get right down to basics, the argument is over who owns the properties of the 29 parishes and Camp St. Christopher. The Episcopal side claims it owns them essentially because of the Dennis Canon. The Anglican side asserts it owns them because the Dennis Canon had no effect under state law and the parishes (and diocese) legally and legitimately seceded from the Episcopal Church.
The matter at hand in the SCSC is the Episcopal side's appeal of Judge Dickson's 2020 Order which purported to reverse the 2017 SCSC decision and award all properties in question to the secessionist side.
So, we know what the lawyers are going to say on Wednesday. The real question now is what the five justices are going to say. Their questions, comments, and discussions will give us hints as to their thinking, what they consider important, and the strengths and weaknesses of the arguments before them. After all, the justices will decide this case, not the lawyers. As an example of how important a hearing can be, the SCOTUS hearing last week on abortion told us very clearly where that court is going on Roe v. Wade (It is substantially dead). We got that simply by listening to what the nine justices said.
Justice John Kittredge is one to watch carefully on Wednesday.
Kittredge was a part of the 2017 decision when he and Chief Justice Jean Toal dissented from the majority. They concluded that the parishes owned their properties, but for different reasons. Kittredge argued that the Episcopal Church did create a trust under the "minimal burden" concept. He agreed that 29 of the 36 parishes in question had in fact acceded to the Dennis Canon. However, he went on that the parishes had legally and properly seceded from the Episcopal Church under state law and by doing so negated the trust. This left them with their local properties. (Toal argued that the Episcopal Church never imposed a trust and the parishes were always the owners of the properties without trust restriction.)
Thus, while Kittredge wound up favoring the secessionist side, and dissenting from the majority, most importantly, he declared that the 29 parishes had acceded to the Dennis Canon. Judge Dickson, in contradiction, held that not one of the parishes had ever acceded to the Canon. Dickson wrote:
This court finds that no parish acceded to the 1979 Dennis Canon (p.1 of 47).
So, the point to watch is how Kittredge reacts to the ADSC lawyers' assertions that he was wrong in his 2017 opinion concerning the parishes' accession to the Dennis Canon.
Another one to watch carefully is the present Chief Justice Donald Beatty:
He and Kittredge are the only ones of the five justices in the hearing who were parts of the 2017 decision. In the hearings before Judge Dickson, the ADSC lawyers made much of Beatty's opinion in the 2017 decision. Although Beatty wound up squarely on the side of the Church in his opinion, he said along the way that state law, as seen in the All Saints decision, required the parishes to set up trusts (could not be imposed from outside). He judged that the 29 parishes had acceded to the Dennis Canon, in effect setting up trusts. Beatty wrote:
their express accession to the Dennis Canon was sufficient to create an irrevocable trust (p. 38 of 77).
As I saw it, the ADSC lawyers interpreted Beatty's words as denying that TEC in fact had trust interest over the parishes. In other words, it seemed to me the lawyers charged that Beatty contradicted himself, or at least really meant to oppose the validity of the Dennis Canon in SC. So, it will be fascinating to hear how the ADSC lawyers explain Beatty's opinion to the Chief Justice's face.
The next justice to watch will be the Acting Justice. We know he or she will be a state judge prominent in the court system; and we will know his or her identity when the camera turns on. The court record of this case over nearly nine years runs to 9,000 plus pages. One has to admire any judge who would take on such a monumental challenge. Every justice has clerks, lawyers who do the leg work, but in the end the justice alone gives the judgment. I will be listening carefully to every word from the AJ. (I plan to post an announcement here of the AJ as soon as we all know the identity.)
Two more dark horses are the justices new to the court since the 2017 decision, Justice John C. Few:
and Justice George C. James, Jr.:
I, for one, have no idea of how to "read" these two since I know nothing about their past published opinions. So, as with the AJ, we will be listening carefully to their questions to get some sense of what their attitudes might be.
The hearing on Wednesday will be just that, a "hearing" of the lawyers' arguments and responses to the justices' questions, which are bound to be many. Then, we will have to wait for the written decision. We all know not to hold out breaths. The last time the hearing was in September of 2015 and the written decision appeared in August of 2017. Let us hope this time will be more expeditious.
The justices' decision(s) will be by majority vote. This hearing is an appeal of Judge Dickson's Order of June 19, 2020. To affirm or vacate the order will require a majority vote. However, if for some (highly unlikely) reason one justice abstains, a 2-2 tie would leave Dickson in place.
In my opinion, the justices should deny Dickson's Order and issue a new, clear, strong directive to the circuit court to implement all three of the majority decisions of the 2017 paper. The integrity of the South Carolina court system is at stake. A majority opinion of the state supreme court must be enforced. A lower court must not be allowed to defy such a decision, and a remittitur order to boot. If a lower court is permitted to "interpret" a high court opinion to the point of reversing it, chaos will result in the whole judicial system of the state. No decision of the SCSC would ever be final.
Thus, on one level, the issue before the court on Wednesday is really simple, whether to defend and enforce a state supreme court decision or to allow a circuit court to replace such. I, for one, do not see how such a choice could be controversial. It is cut and dried. The supreme court has to be that, supreme.
The other aspect that I think is cut and dried is the application of the First Amendment to this case. The First Amendment of the U.S. Constitution prohibits the state from interfering in the internal affairs of a religious body. No civic court has a right to tell a church, particularly an hierarchical one (practically everyone except Judge Diane Goodstein agrees TEC is hierarchical), what it can and cannot do in its own affairs. Respect for the First Amendment alone should close this case in the interest of the Episcopal Church.
Finally, moving to the bigger picture, in my opinion, there is a right side and wrong side at odds beyond the particular issues of jurisprudence and Constitution. The larger issue at hand is one of human rights. The Episcopal Church is a champion of people who have been powerless, marginalized, ignored, discriminated against, even demonized for ages past. For seventy years, the Church has fought to make right historic moral wrongs, to bring equality and inclusion to all of God's children, most notably African Americans, women, and homosexuals. This is the right side of morality because it is the loving care of all of God's creation. Unfortunately, the leadership of the old diocese resolved to reject the Church's efforts for human rights. They led the majority of the diocese out of the Episcopal Church and adopted an explicit stand against equality and inclusion of gays and women. This is the wrong side of morality, and of history.
And so, I hope and pray that the five justices considering this case see it as more than just a matter of human law. It is a matter of human rights for all of the citizens of South Carolina. It is a matter of the faithful promotion of the goodness of divine creation. If the justices understand this case on every level, justice will prevail.
Finally, dear reader, I expect to return on Wednesday. Then, I will post on this blog a report of the hearing as soon as I can organize my thoughts. I would like to have your thoughts too. I encourage you to share with all of us your impressions of the hearing and/or views of the case. Send to the email address above and, if you wish, I will share with readers. Until then, peace.
