WHAT'S THE DEAL 

WITH THE SC SUPREME COURT?

A popular comedian of the 1990's, Jerry Seinfeld, was fond of starting his stand-up routines with the question, "What's the deal with...?" This was his lead-in to a moment of hilarity about some absurdity or other of daily life. This is the question I am now asking myself about what is going on with the South Carolina Supreme Court, "What's the deal with the SCSC?" The difference is, this is no laughing matter. A huge amount of highly serious business rests on what the SCSC does in the future. Yet, signs coming from the court make me wonder whether the justices get the deal. They should get the deal; they must get the deal to make this case wind up properly.

First, let's review the basic facts on how we got to where we are:

---in 2017, the SCSC issued an opinion holding that 1) 28 of the 36 parishes in question were property of the Episcopal Church, 2) 8 of the parishes owned their own property, and 3) Camp St. Christopher belonged to the Episcopal diocese. The majority of justices also agreed that the Episcopal Church was hierarchical and the Episcopal diocese was the heir of the pre-schism diocese.

---the 2017 decision became the final law after the SCSC denied a rehearing and the U.S. Supreme Court denied cert.

---in November of 2017, the SCSC issued a Remittitur Order to the circuit court (a remittitur is a direction to implement a decision).

---in a separate case, the U.S. District Court, in Charleston, ruled in 2019 that the Episcopal Church was hierarchical and that the Episcopal diocese was the only legal heir of the historic diocese. Judge Gergel issued an Injunction barring the breakaway contingent from claiming to be the historic diocese. This decision is now on appeal with the U.S. Court of Appeals, in Richmond.

---in 2020, circuit court judge Dickson issue an order that all local properties belonged to the local churches and the Camp belonged to the Anglican diocese.

---in 2020, the Episcopal Church and its local diocese filed an appeal of Dickson's order with the SC Supreme Court.

---on Dec. 8, 2021, the SC Supreme Court held a hearing on the appeal.

---on Feb. 3, 2022, the Court requested, unless a party objected, the text of the 1987 journal of the diocesan convention that showed the diocesan adoption of a Canon declaring that all property was held in trust for the Episcopal Church and its diocese.

Thus, what the SCSC justices have on their desks at this moment is TEC's appeal of Judge Dickson's Order of 2020.

As I see it, they have 3 choices:

1-Affirm all of Dickson's order.

2-Deny all of Dickson's order.

3-Affirm and/or deny parts of Dickson's order.

If they affirm all of Dickson's order, they would be rejecting the set law of the SCSC decision of 2017. If they deny Dickson's order, they would be upholding the 2017 decision. Picking out parts of Dickson to affirm and parts to deny would be problematical since there is no plausible way to divide the assets in question. Either the Episcopal Church or the breakways own the properties. It would not make sense to give part(s) to one and part(s) to another.

From my view, what the SCSC justices should not do is to re-litigate the issues that were settled in the 2017 decision. That decision clearly spelled out three majority decisions of the high court. Any claim that the SCSC published opinion of 2017 was indecisive is disingenuous. It is as clear as can be.

This is what was so bothersome about the Dec. 8 hearing. Some justices spent a good deal of time musing over whether certain parishes had acceded to the Dennis Canon when that had been settled in 2017.

Whether a parish acceded to the Dennis Canon is not the issue before the court. It is irrelevant. The issue now is whether to affirm or deny the Dickson order. Dickson directly contradicted the majority of the state supreme court. The majority had ruled, in a final decree, that 28 parishes had acceded to the Canon. Dickson ruled that no parish had acceded to the Canon and therefore they owned their local properties, and the ADSC owned the Camp.

If re-litigating who owned the property was irrelevant and distracting in the hearing, the justices' seeking documentation on property ownership is also questionable. The issue of the property is no longer open. I do not see how the justices can reopen a closed case. A case finally closed cannot be re-litigated.

As I see it, Judge Dickson had no right to 1-deny a Remittitur that had been issued to him by the state supreme court, and 2-re-litigate the issues that had been settled by the state supreme court. Yet, he apparently did both.

What all this matter boils down to is the integrity of the state court system and the authority of the SC supreme court. A majority opinion of a state supreme court has to be final unless it is reheard or taken up by the U.S. Supreme Court. A lower court cannot be allowed to overrule a final state supreme court decision. If Dickson is affirmed, the precedent would be set that no SC supreme court decision would ever be final and no litigation would ever come to an end. 

Let us reconsider the real issue at stake today. Judging from the chaotic hearing and the strange request for the journal, I am concerned that the SCSC has lost its focus of the case. The South Carolina Supreme Court must deny all of Dickson's order in order to defend the principle of the rule of law in South Carolina. The issue is not whether a parish adhered to the Dennis Canon. The issue is whether the SC supreme court is supreme. We should hope this is what the justices of the SCSC also see as the matter at hand. A great deal rests on it.