WHAT'S THE MATTER WITH THE SC SUPREME COURT?

In the SCSC hearing of December 8, 2021, Justice Kittredge famously asked Alan Runyan, lawyer for the Anglican side, "How many bites of the apple do you get?" He meant, how many times are you going to litigate these same issues in court? Now, we know the answer---as many as the SC Supreme Court will allow. 

Runyan is facing a possible third bite, at least for the seven parishes still contesting the SCSC ruling of 20 April. The court has indicated it is still considering some of the arguments of these parishes and has asked the Episcopal lawyers to present a counter-argument to the court. This will be the third time the court has ruled on the same matter. I think it is time to ask, What's the matter with the court on this matter?

The SCSC has already issued "final" decisions on the disposition of the same parishes twice. On Aug. 2, 2017, it released an opinion giving three majority decisions. These recognized seven parishes as independent, twenty-nine parishes as belonging to the Episcopal Church, and the diocesan properties as belonging to the Episcopal diocese. The court refused a rehearing and sent a Remittitur to the circuit court. A Remit is an order to implement a decision. If the court had wanted further litigation of the issues, it would have issued a Remand. It did not. The Anglicans appealed to SCOTUS which denied cert. Both sides settled in for implementation of  the supposedly final SCSC decision.

Instead of following the Remit order, the circuit judge took it upon himself to interpret the SCSC decision entirely freely. He wound up giving a diametrically opposed order. He gave everything to the Anglican side. It was this order that the Episcopal side appealed to the SC Supreme Court.

The SCSC held a strange hearing on December 8, 2021, in which the justices demanded that their 2017 opinion was not final. The chief justice declared that the circuit court judge did what the SCSC expected him to do in interpreting the SCSC decision as he wished in spite of the Remittitur, and that he (the C.J.) had not concluded the twenty-nine belonged to the Episcopal Church even though he had voted such with the majority, had voted against rehearing, and issued a Remit order to the lower court. He seemed to disavow his entire role in the 2017 decision even though his role is a matter of public record. I, for one, am still scratching my head over this.

The court went on to make a unanimous ruling, on April 20, 2022, ordering 14 parishes back to the Episcopal Church and 15 parishes to independence. In other words, it revoked the majority decision of 2017 and split the 29 parishes that were to go to TEC into two groups, 14 for TEC and 15 for the Anglicans. Otherwise, it kept the same terms as the 2017 decision. This meant two oppositional interpretations, by the SCSC, of the parishes' accession of the Dennis Canon. In 2017, four of the five justices agreed that 29 parishes had acceded to the Canon. In 2022, all the justices ruled that only 14 parishes had acceded to the Canon. They all used the same evidence in the court record. The court substituted a new and different final decision for an earlier final decision.

Nevertheless, the justices declared the "Revised Opinion" of April 20, 2022 explicitly final and to be implemented forthwith. Justice Few wrote:

As to the parishes that created a trust, we direct that appropriate documentation be filed in the public record indicating the National Church [TEC] and the Associated Diocese [EDSC] now own that real estate. FROM OUR DECISION TODAY, THERE WILL BE NO REMAND. THE CASE IS OVER. (emphasis added).

The last paragraph of the April 20 Opinion was equally final and explicit:

The fourteen Parishes listed in Subsections III.B.vi., vii, and viii did create a trust in favor of the National Church and its diocese, which is now the Associated Diocese. We order the governing bodies of the fourteen parishes that we hold created a trust to prepare an appropriate legal instrument to document the transfer of title of each Parish's real estate to the National Church and the Associated Diocese, and upon agreement to the terms of this instrument, record it in the public record with the appropriate local official.

Now, the SCSC is saying it is open to changing its mind on the seven parishes still petitioning for rehearing. This means the court has reneged twice on the idea of finality. On Apr. 20 they had even proclaimed "no remand" and "the case is over". One can only wonder now what they meant by these words. When does "over" mean over?

One can only wonder too if the justices realize the potential damage this inconsistency could be doing to the reputation of the court, the state court structure, and the rule of law in South Carolina. By giving different and superseding rulings on the same issues they are signaling that no decision is ever really final, a party can litigate the same issues until it gets its desired outcome, and lower courts can disregard and replace SCSC decisions. At the least this is disorder, and the most chaos. Neither is good for the stable rule of law, something a civic society must have for survival. Otherwise, it is anarchy.

The root of the problem in the state courts of South Carolina is the conflict between the principles of the First Amendment of the U.S. Constitution and state law. The First Amendment requires separation of church and state. The civic state cannot interfere in the internal workings of a religious institution. The Episcopal Church is hierarchical. This is something both the SC Supreme Court and the federal court in Charleston have agreed upon. They both concluded the pre-schism diocese continued on in the Episcopal diocese after the schism because of the principle of hierarchy. The federal judge even went so far as to issue an Injunction forbidding the new breakaway contingency from claiming to be in any way the pre-schism diocese.

However, state courts have declared they are adjudicating this case under neutral principles, that is, applying state property laws neutrally, or equally, to both sides. The perplexing problem they have encountered is in fitting state law to Church law, something they should not have been doing in the first place. Under Church law, the Dennis Canon imposed a trust for the Episcopal Church on local church property. Since TEC is hierarchical, all local churches are automatically under the Dennis Canon.

However, SC state law requires the deed holder to create a trust in writing for a trustee. A trust cannot be imposed from the outside. This is where the disagreements and contradictions crept in. The justices tried to set criteria for determining if a local parish had actually created a trust for TEC. Defining what made a trust is what led to the different interpretations. In 2022, the justices said the interpretation of 2017 was wrong, that only 14 and not 29 parishes had created trusts. The criteria had changed from 2017 to 2022. Now, they may change again if the justices decide they were wrong about the seven parishes now contesting the April 20 ruling. This splitting of hairs of what constitutes accession to the Dennis Canon could be never ending depending on the interpretations of the judges. In fact, if the parishes were parts of the Episcopal Church, they acceded to the Dennis Canon. Every one of the parishes acknowledged they were Episcopal churches.

The other big issue the court has wrestled with is whether a parish could revoke its accession to the Dennis Canon. This issue has been settled by the SCSC, twice. In 2017, a majority of justices agreed that the trust was irrevocable. In 2022, all of the justices explicitly affirmed this. This is a settled issue that should not be open to change.

At some point, the SC Supreme Court is going to have to say, enough is enough. Surely that point has passed. The SCSC has already ruled twice that these seven parishes asking for rehearing are property of the Episcopal Church.

By opening the door for a third decision, the SC Supreme Court is veering dangerously close to damaging itself, the state court system, and the rule of law in South Carolina. For this reason, above all others, the court should deny asap the seven petitions for rehearing and issue a new Remittitur to the circuit court to restore the seven to the Episcopal Church. If, on the other hand, the court should actually reverse itself, again, and grant the property to the local parishes, the damage could be great, not so much to the Episcopal Church as to the state of South Carolina.

After more than seven years of handling the church case, no one can say the SC Supreme Court has performed well. Now, the justices have created a situation where they could actually make things worse. They can cauterize the wound or they can bleed the wound anew. One can only hope they understand the potentially serious outcomes of their choices.