A WORD OF CAUTION

An article has just appeared in the Episcopal News Service that I am afraid might give the wrong impression about what is going on in the schism in South Carolina. Find the article HERE . A person reading this could reasonably conclude that the two sides have reached finality and closure in the dispute between them. This is not the case.

In the first place, neither the state court nor the federal court has reached finality. In the state court, the South Carolina Supreme Court has to rule on the eight petitions for rehearing. Even though the probability is very high that the court will deny the petitions, and will do so soon, we still have to wait for this to happen. 

Once SCSC denies the petitions, it will send its "Revised Opinion" with a Remittitur to the circuit court. It will then be up to the circuit judge to actually implement the order. We know this judge. He is Edgar Dickson. The last time he kept the case before him for two years, cast the Remittitur aside and issued an order directly contradictory to the SCSC decision. Unless he is given some sort of time constraint by the SCSC, he will be free to deal with the case as he wishes. The last time, the TEC side tried twice to get the SCSC to make Dickson move to no avail. The point is, even if SCSC denies the petitions for rehearing, it could be years before the transfers of the 14 parishes to the Episcopal Church actually occurs. 

There is also the Anglican side's appeal of Judge Richard Gergel's order of 2019 that recognized the Episcopal diocese as the one and only legal heir of the pre-schsim diocese. This is before the U.S. Court of Appeals, Fourth Circuit, in Richmond. The judges there set aside the appeal pending a judgment of the SC Supreme Court. Once the SCSC denies rehearing and sends the Remittitur to the circuit court, we can expect the Appeals Court to act. Odds are very high the appeals court will deny the appeal and uphold Gergel's opinion. That should finalize the issue of which side was the heir of the old diocese. After that, the Episcopal side would have to take action to repossess the assets and properties of the pre-schism diocese. Separating out the assets of 2012 from those of today will be a monumental task. We know from testimony in court that even before the schism the diocesan leaders were moving money around into various accounts.

In the second place, we have been down the road of finality before. In 2017, the SCSC issued a majority opinion giving three decisions of the court. Both sides assumed this was final. The SCSC denied a rehearing and send a Remittitur to the circuit court to implement the decisions. As we know, the circuit court not only refused but issued a whole new opinion. It was this opinion that the Episcopal side appeal to the SCSC and led to the April 20, 2022 "Revised Opinion." 

By the end of 2017, both sides were preparing to move the 29 parishes in question back to the Episcopal Church. The Anglican side circulated a secret plan to move congregations out into new quarters. Both bishops circulated around their dioceses with "town hall" meetings about the transfers. With the denial of SCOTUS for cert in 2018, both sides settled in for a settlement. The Anglicans petitioned the circuit court for betterments, that is reimbursements for the improvements they had made on the properties which the SCSC now said belonged to TEC.

In the third place, there are still highly difficult and contentious issues to be resolved and betterments could be one of them. As I read the law, the occupant of a property who thinks, wrongly, that he is the owner, is entitled reimbursement for the improvements he made on the property. The problem here is deciding on who owns the property and at what time. 

In the Episcopal Church, the parish typically owns the local property; that is, the parish is the deed holder. However, the Dennis Canon says that if a congregation leaves the Episcopal Church it forfeits the property ownership to the Episcopal Church. The Episcopal side argued in the past that if the parish is the deed holder, a parish could not claim betterments because it could not sue itself. However, if the parish forfeits ownership to the Church as per the Dennis Canon, the Church would become the owner at some point. It would then hand over the deed to the new and loyal Episcopal congregation and the parish would become the deed holder again. It seems to me the court would have to decide at what point the Episcopal Church became the parish property owner, at the schism of 2012? at the vote of the congregation to secede from TEC? At the SCSC decision of 2017? At the SCSC decision of 2022? At the moment the SCSC sends the Remittitur to the circuit court? If the Anglican side should push for betterments from the Episcopal side, it seems to me the court would first have to rule on when the Episcopal Church became the owner of the property.

Too, there is the question of what to do about the dozen local churches that did not join the lawsuit but went along with the schism and are now in the ADSC. Should the Episcopal Church enter lawsuit(s) to reclaim these wayward churches?

Of course, everyone, (except perhaps the lawyers) wants finality and closure in this long and scandalous civil war between former friends. This is not new. People have wanted this from day one. Exhaustion passed so long ago no one remembers when. This has been a wild roller coaster ride and most people on both sides are past ready to get off of this monster coaster. 

However, the roller coaster ride is not over although the car may be in view of the station. It is premature to declare the end of the ride, the end of the civil war. If I have learned anything at all in these long and agonizing years of legal strife, it is not to count the chickens before they hatch.

I published my history of the schism in August of 2017, right after the SCSC issued its decision, thinking the story was all but over. Well, here we are nearly five years later still waiting on the end. Now, if the good Lord is willing and my eyesight holds up I might have to write a second volume, and it could be as long as the first [!]. The problem is I do not know how many more years I will have to wait for the story to actually end.   

I do not mean to dampen the hope of the hour. There is definitely a new mood of respect between the two sides as new bishops have arrived, ones without baggage. The atmosphere has changed dramatically. There is hope for better relations ahead. I just want everyone to be realistic about what is happening and what is likely to happen. It will be years more before the two sides reach true finality and closure. Another thing we have learned in this decade is that the legal process moves at glacial speed. This will not change. We must be patient. Above all the two sides must conduct themselves as the Christians they claim to be or they have no right to the name they bear.