BREAKING NEWS---

CHURCH LAWYERS SLAM

BREAKAWAYS' PETITIONS FOR REHEARING

On today, September 18, 2017, lawyers for the Episcopal Church and the Episcopal Church in South Carolina officially refuted all of the claims made in the independent diocesan lawyers' three petitions for rehearing of September 1, 2017. At that time, the breakaway diocese asked the South Carolina Supreme Court to rehear the case in an attempt to reverse the Court's decision of August 2, 2017, that awarded 29 of the 36 parishes in question, and Camp Saint Christopher, to the Church diocese. Today the Church lawyers filed a "Return" with the state high court rejecting the other side's arguments of Sept. 1. See the document here .

Two of the three petitions for rehearing dealt with opposition to the Dennis Canon and with neutral principles. Today, the Church lawyers said this was nothing new, only a "rehash" except for parts that were indeed new. New issues cannot be admitted in the case at this point.

By far the biggest and most serious of the independent diocese's three petitions for rehearing called for the dismissal of Justice Kaye Hearn's opinion of August 2, and her recusal from the case. In today's paper, the Church lawyers dismissed the breakaways' position on this.

Here are some excerpts of the Church lawyers' presentation:

Respondents allege a member of this Court and her husband "were personally involved in the entire schism" and that her husband "was a critical player in the underlying events of this case," which is utterly and totally baseless.

Respondents say George Hearn was a material witness, yet he was not called as a witness and his deposition was not introduced at trial. 

.....

Respondents amazingly claim a member of this Court is a party to the case by virtue of membership in The Episcopal Church. This ludicrous and baseless argument does not merit a response.

.....

Religious affiliation is not a recognized ground for recusal.

.....

The motion for recusal is untimely. In fact, the timing if the motion indicates it is not offered in good faith. If Respondents desired a member of this Court's recusal, they should have requested recusal at the first opportunity... The motion is remarkable: conspicuously advertising as its basis information Respondents themselves admit knowing since before the trial in this case occurred. Yet, Respondents said nothing about recusal when the parties jointly sought to transfer the case to this Court. They said nothing about recusal when the parties filed their appellate briefs. They said nothing about recusal before the oral argument or in the nearly two years between the oral argument and publication of the Court's decision. Respondents never gave any indication they had an issue with the Court's composition---until they lost.

.....

Timeliness requirements preclude litigants from lying in wait and keeping evidence of purported bias up their sleeve to use as an ace card in the event the court rules against them.

.....

Justice Hearn's opinion is legally sound and follows the overwhelming number of other jurisdictions. Her religious beliefs and those of her husband are not grounds for recusal. Respondents knew she was an Episcopalian from the beginning yet they waited until they lost to raise the issue and they are now asking for a re-do. This is an abuse of the judicial system.

In my opinion, the Church lawyers are absolutely right. Asking Hearn to recuse herself for the first time and to do so retroactively is groundless, and to me, does not even make common sense.

As I did research in the history of the schism one of the biggest mysteries that stood out to me was why the independent diocesan lawyers did not ask Justice Hearn to recuse herself before the hearing, or even after the hearing. They knew all along she was a loyal Episcopalian. Remember they had 22 months to do so before the Court issued its decision on August 2. All that time the lawyers said nothing about recusal. I suppose only the lawyers can clear up that mystery. The only conclusion I could reach that sounded plausible was over-confidence. Coming off Judge Goodstein's sweeping award, perhaps the diocesan lawyers were counting on Chief Justice Jean Toal to extend her 2009 All Saints decision to cover the new case. Thus, they did not need to worry about Hearn's lonely opposition. Toal would bring along the majority of the Court and give them victory, just as Goodstein had done. If that were the lawyers' thinking, it was a fatal miscalculation. Toal, as it turned out, was the only one of the five justices to adhere to the All Saints decision.

It seems to me it is most unlikely the Court will grant any one of the three petitions for rehearing from the independent diocese. In my non-lawyer's view, the three petitions are unconvincing. However, we shall just have to wait and see. Let us hope the wait is not another 22 months. After all, the lawyers need closure in the state courts as the two sides are about to go into mediation in federal court. The mediation conferences are to begin no later than September 29 and conclude no later than October 29. It is crucial for the mediation that the South Carolina Supreme Court make a judgment on the motions for rehearing as soon as possible. 

LEGAL UPDATE

On September 1, the independent Diocese of South Carolina filed three petitions for rehearing with the South Carolina Supreme Court in an attempt to change the Court's August 2 decision awarding 29 parishes and Camp St. Christopher to the Episcopal Church diocese, the Episcopal Church in South Carolina.

On September 7, the Court asked lawyers for TECSC to submit a response to the petitions for rehearing and to do so within 10 days (Sept. 17). Presumably TECSC will ask the Court to deny a rehearing.

After TECSC files its response, the Court will consider whether to grant or deny the petitions for rehearing. There is no time frame for this although it is doubtful that the Court would take another 22 months to make a decision.

FOUR YEARS

This web log began four years ago today, on September 11, 2013. As I sit at my computer now, a storm is bearing down with pelting rain and menacing wind. How appropriate in more ways than one. This is a day to remember man-made and nature-made disasters, present and past. 

As for man-made, everyone recalls where he or she was on 9-11, sixteen years ago. I was in Charleston, at my desk as the assistant head of the South Carolina Room of the Charleston County Library. The library remained open but a dead zone of zombies. At the end of the day, I walked the few blocks over to the Cathedral of St. Luke and St. Paul for a memorial service. As I suppose everyone else, I saw it as one of the worst days of my life.

In another man-made disaster, the Episcopal Church schism had been going on for nearly a full year and the two sides were locked in bitter opposition in civic courts, both state and federal. Little did we know then just how bitter and long this legal war would be. We still do not know four years later.

I started this modest blog on my own as an independent source of information and opinion hoping people, particularly in South Carolina, would find it helpful in understanding what was going on around them. Since I was not connected to either diocese, I was free to give a perspective the official sources of information were not free to give. For years, Steve Skardon, at scepiscopalians had borne the herculean task of keeping people informed of the troubles in the pre and post schism diocese(s). I was simply trying to supplement his indispensable blog.

Apparently, people did find this blog useful. In the four years, it has had 229,000 "hits," with 29,000 coming in just the past seven weeks. Some posts have even been given as "exhibits" in the state supreme court, in a purpose for which they were never conceived.

Along the way I finished my history of the schism. A History of the Episcopal Church Schism in South Carolina was published last month by Wipf and Stock of Eugene OR. As those of you who have seen it know, it is a long, detailed, thorough, and painstakingly documented narrative of the causes, events, and aftermath of the 2012 schism. To add to the difficulties, in the last six months of working on the book, I had to undergo radiation treatments, but I was resolved to finish the manuscript on time, and I did. I am pleased with the outcome (of both the treatments and the book---thank God for modern technology).

When I think back over the past four years, I am both distressed and hopeful. It is sad to see so much destruction and waste, none of which was necessary, none of which had to happen, all of which could have been avoided. A once great diocese of a major Christian denomination lies broken in pieces. A long darkness descended. 

But, there is light in the darkness. It appears that we have turned the corner on the litigation. The state supreme court has finally issued its decision, at long last the federal case is moving along expeditiously, and, in the next few weeks, the two sides will start mediation talks that may well bring an end to all legal disputes between the two sides. If the talks fail, all other signs indicate the litigation will conclude in the foreseeable future, perhaps in a year or so. We are within sight of resolution and peace.

Looking at the history of South Carolina, and of the diocese, I believe that reconciliation of the two sides will come eventually. The state has had more than its share of difficulties, natural and man-made, yet has survived and even benefited from a great deal of conflict resolution. The diocese has had two major crises, the division from the national church in the Civil War, and the white racist Schism of 1887 that took a full century to resolve. So, I am left here today in hope and confidence that one day, all will be well and peace and good will will return to the men and women of lower South Carolina who have far more in common than in difference.    

THE STATUS OF THE LITIGATION,

SEPTEMBER 5, 2017

The children are back in school, Labor Day is over, and summer is winding down. This is an appropriate time to stop and take stock of the status of the schism, particularly of the legal issues. How do legal matters stand now and what can we expect in the future?

There are three separate but interrelated aspects of the litigation going on between the two sides, the Episcopal Church (TEC) and the Episcopal Church in South Carolina (TECSC) on one hand and the independent Diocese of South Carolina (DSC) on the other. The three are: 1-state court, 2-federal court, and 3-mediation. Let's take each one separately.

First, let me remind everyone what I offer here is my own opinion as an independent blogger on the Internet. I am not a lawyer. I am not offering advice. I am not representing any religious entity.

1. STATE COURT.

DECISION OF THE STATE SUPREME COURT.

On August 2, 2017, the South Carolina Supreme Court (SCSC) rendered a majority decision largely favoring TEC/TECSC.

The decision dealt with two areas, property and principles.

Property. 

---The majority of justices (Pleicones, Hearn, and Beatty) ruled that 29 of the 36 parishes in question must be returned to the trust interest of TEC/TECSC.

---The majority (P, H, B) said Camp St. Christopher belongs to TECSC.

Principles.

---The majority (P, H, B) said that TECSC is the successor of the pre-schism diocese.

---The majority (P, H, B) said TEC is hierarchical.

---The justices also said that the federal court must decide the applicability of federal copyright law. However, a majority (B, Kittredge, Toal) agreed that DSC had registered the "marks" of the diocese under state law.

PETITION FOR REHEARING.

On September 1, 2017, DSC submitted three petitions for rehearing with the SCSC:

   1-Petition for Rehearing. General reiteration of the points made in the circuit court and in the SCSC. Claimed the Aug. 2 decision erroneous on neutral principles and the Dennis Canon.

   2-Petition for rehearing from Church of the Good Shepherd (Charleston). Petition from one parish; argues against Dennis Canon.

   3-"Motion to Recuse the Honorable Justice Kaye G. Hearn from Participation in the Rehearing Petition; Motion for Vacatur of Opinion of Justice Hearn and Failing That, Motion by Non-Prevailing Parishes and the Diocese to Vacate All Opinions in this Matter; and Motion for Consideration of this Motion by the Full Court and for Other Relief." This asked the full court to vacate (set aside) Hearn's opinion in the August 2 decision. Also asked that Hearn not be permitted to participate in the rehearing. In the alternative, asked the Court to discard the Aug. 2 decision and hold a new hearing. The basic argument against Hearn was that she was a member of a TECSC congregation and of the Episcopal Forum and therefore had a built-in bias in favor of one party.

EXPECTATION.

It seems to me the SCSC will either ask the TEC/ECSC lawyers to submit a response to DSC's three petitions for rehearing, or will deny the petitions for rehearing. If they deny, this will end the litigation in the state court. Upon denial, DSC lawyers may appeal the case to the United States Supreme Court. 

The SCSC is under no time constraint to make a decision about rehearing. Remember it took the Court 22 months to render a written decision.

2. FEDERAL COURT.

The case of vonRosenberg v. Lawrence is active in the United States District Court, in Charleston. Judge Richard Gergel is presiding having taken the case in late July. The federal suit was originally filed on March 4, 2013 when Judge C. Weston Houck took the case. Houck died in July of this year.

In this suit, the TECSC bishop, vonR, charged L with violation of the Lanham Act, a federal law protecting copyright. TEC holds the national copyright on its names. TECSC asked:

 ---DSC to stop using TEC's marks, L claiming to be an Episcopal bishop, and DSC claiming to be the Episcopal diocese.

 ---that vonR be reimbursed for costs and lawyers' fees.

 ---L to file a compliance report within 30 days.

 ---that L make an accounting of all profits made under the false advertising.

In August of 2017, TEC joined the suit alongside TECSC over the objections of DSC.

EXPECTATION.

Judge Gergel has ordered the "Discovery" phase to end in December of 2017. This is the time the lawyers collect the documents, take depositions and get ready for the trial.

Gergel has set the trial for March of 2018.

Gergel ordered mediation on August 30, 2017.

3. MEDIATION.

On August 30, Judge Gergel, in agreement with the two parties, ordered a mediation. He appointed senior U.S. District Judge Joseph Anderson as the mediator.

According to the mediation section of the U.S. District Court rule book:

 ---the two sides are required to take part but are not required to reach an agreement. All talks are confidential.

 ---talks must begin by September 29, 2017.

 ---talks must end by October 29, 2017.

 ---if agreement is reached, the participants will put the terms in writing and sign the document. 14 days may be allowed for the preparation of the agreement document.

 ---if no agreement is reached, the mediation ends and the court litigation continues.

 ---litigation continues during the mediation.

All issues in both state and federal courts are on the table for consideration. This has been confirmed by the lead lawyers on both sides. Any agreement would presumably settle all issues in contention between the two sides.

Both sides have avoided or delayed the news of the mediation, for reasons unapparent. The news was revealed on September 1 in the DSC lawyers' request for a time extension before filing their petitions for rehearing. As an argument for delay, they described the mediation and gave the Aug. 30 court document ordering the mediation. This blog received the lawyers' request to the court and posted the news of the mediation on the Internet. The response was electric. It was a common topic of discussion in church last Sunday. Yet, the officials on both sides ignored the news. They neglected even to announce there had been an order given for mediation.

Finally, on September 4, TECSC posted the news of the mediation in an article on their legal news blog page.

As of this writing, DSC has refused to post any news of the mediation and none of its allied websites and blogs has mentioned the mediation. This raises a question of the reason for ignoring what everyone now knows. The fact of the mediation is common knowledge; and why DSC would want to pretend to ignore what everyone knows is a mystery to me. 

EXPECTATION.

The imminent mediation has the potential of finally resolving all legal disputes between the two sides. This would end all court litigation. On the other hand, the talks could come to nothing.

The talks in the mediation will be private and confidential. We will not know the results until either an agreement is produced, or the mediator announces a failure. As I understand it, once an agreement is produced, it is final. The whole idea of mediation is to reach an agreement. The two sides will feel pressure to come to terms. Agreement presumes compromise. Neither side will get everything it wants. There will have to be give and take. The fear of giving too much is perhaps the cause of so much anxiety these days. Neither side wants to give away too much. This schism, this litigation has gone on for a very long time and people have deep emotional investments that cannot be simply discarded. This is likely to be another hard experience in the history of the schism. If done right, though, it could provide an enormous relief.

Going into the mediation, TEC/TECSC is in the stronger position. It has won in the SCSC and holds a promising position in the federal court. Since the SCSC majority declared that TECSC is the successor of the pre-schism diocese and TEC is hierarchical, the federal court will be under influence to favor the TEC side. Essentially the federal court will have to decide which of the two dioceses is entitled to the legal rights of the old diocese. It appears to me that chances are good for the Church to prevail in federal court.

The question arises then, if mediation means compromise, what can each side reasonably give up to the other? That is the fundamental question, and that is one only the lawyers and the diocesan officials can ultimately resolve. All negotiations will be confidential, that is, in secret. If a deal is reached, it will be written up and signed, and then released to the public. As I understand it, that will be final, and it cannot be undone. Thus, people on both sides will have to trust their lawyers and bishops to reach to best deal they can. Now is the time for prayer and fasting, not after it is done.

No doubt every communicant on both sides will hold what they believe to be non-negotiable and negotiable items. I think it is appropriate for church members to communicate their thoughts to the diocesan authorities now. Now is the time. It will not be appropriate once the mediation begins. Once talks start, the public will be excluded, as they should be. At that point, everyone will have to wait patiently to learn either what the settlement is, or that there is no settlement.

One should bear in mind that the court litigation goes on during the mediation. One great unknown variable is the SCSC. At some time it will have to respond to the DSC's three petitions for rehearing. If they agree to a rehearing, that could mean months more of dealing in the state court. SCSC has no time limit, but the mediation does. According to the rule book, mediation talks must finish in 30 days.

Mediation is going to happen. It is an established fact. Now is the time for church members to make their thoughts about a settlement known. In a few weeks, the mediators will be "locked down" in silence. They will either make a final settlement or not. 

Mediation has great potential. At this point, however, only mediation is a certainty; and the outcome of it is entirely uncertain.

     

THE MEDIATION PROCESS,
with Addendum on Sept. 4

Since news of the mediation between the two sides broke on September 1, there have been numerous questions about what mediation is and what it may involve.  We know that both sides have agreed to mediation, that the U. S. District Judge Richard Gergel, handling the case of vonRosenberg v. Lawrence, has ordered mediation, and that Judge Joseph Anderson, senior U.S. District Judge in Columbia, has been assigned as the mediator.  

Fortunately, the U.S. District Court in South Carolina has posted on the Internet its very clear and helpful guidebook of rules including much information on the process of mediation:  "Local Civil Rules for the United States District Court District of South Carolina (with revisions through January 2012)." Find it here .

The section on mediation is found on pages 17 to 22.

I am not a lawyer or legal expert, but these are some of the points in these pages that seemed most important:

---DEFINITION. 16.04 (A). "An informal process in which a third party mediator facilitates settlement discussions between parties. Any settlement is voluntary. In the absence of settlement, the parties lose none of their rights to trial by judge or jury."

Important points --the settlement is voluntary; --if the mediation fails, litigation continues.

---FIRST  CONFERENCE. 1607. (A). Within 30 days of the Mediation Order. In this case, by September 29, 2017.

---COMPLETION. 16,07 (A). Mediation to be completed within 30 days after the first mediation conference. In this case, by October 29, 2017.

---CONTINUING LITIGATION. 16.07 (B). Mediation does not delay proceedings in court except by court order.

---PRIVACY. 16.07 (C). Mediation is in private and is confidential.

---ATTENDANCE. 16.08 (A). Attendance is required of the parties. Penalties may be assessed for non-attendance (16.09).

---AGREEMENT. If agreement is reached, it is to be put in writing and signed. This is to be done within 14 days of the mediation conference of agreement.

---MUTUAL CONSENT. 16.10 (B) (8).  All agreements are to be reached by mutual consent of the parties.

---FAILURE. 16.10 (G). The mediator may declare an impasse and end mediation. The mediator alone may make this determination.

Again, I am not a lawyer, but it appears to me from the rules booklet that we may expect the mediation to begin by September 29 and end by October 29. By my calculation, unless there is some time extension, counting the 14 days after agreement for a final written document, we should know if there is to be a mediated settlement by November 12, 2017 at the latest. All communications between the parties will be private and confidential. If they reach mutual agreement, they will sign the deal. If they fail to reach agreement, the mediation ends and the litigation continues in court. This is how it appears to me. I encourage you to read the pages and reach your own understanding of the court rules.

At any rate, this court guidebook on the Internet greatly clarifies for us laypeople what the mediation process is and how it works. Mediation seems to be a reasonable way to try to settle differences, but it does not force or require a settlement. Mediation may fail, and if it does, the court litigation goes on.

One other point, the DSC lawyers said in their September 1 motion for time extension that all issues of both state and federal courts were on the table in the mediation. I can only wonder what effect a decision of the state supreme court on a rehearing would have on the mediation providing the mediation is ongoing.


ADDENDUM (Sept. 4):   The Episcopal Church in South Carolina has publicly announced its participation in the mediation. Mr. Thomas Tisdale, the chancellor of the diocese, has confirmed that both state and federal issues will be included in the talks, just as Mr. Runyan, the DSC lawyer. had said on Sept. 1. In the ECSC announcement of today linked below, you can find the Mediation Order and Runyan's comment in the first designated link "motion for an extension."

See the ECSC announcement here .

THE MORNING AFTER

Yesterday, September 1, 2017, was a blockbuster day in the history of the schism in South Carolina. I am still trying to process the news and sort out what it all may mean. Here are the three big events of yesterday:  1-news arrived that the two sides of the schism have agreed to mediation under a federal judge, 2-the South Carolina Supreme Court denied the independent Diocese of South Carolina's lawyers' motion for an extension of time before filing a Petition for Rehearing, and 3-request came from DSC lawyers that Justice Kaye Hearn be recused retroactively from the case and her opinion of August 2 be vacated. This is a lot to absorb. Let's look at each.

1. MEDIATION. We learned in the DSC's motion of September 1 to the SCSC that Judge Richard Gergel, upon agreement of the two sides, has ordered a mediation process under another U.S. District Judge. I have searched the websites of both dioceses and have found not a word about this. So far, the Episcopal Church in South Carolina has posted nothing about yesterday's events. The Diocese of South Carolina has posted a great deal about yesterday but nothing, that I have found, about mediation. Obviously both sides are keeping this quiet. The only way we know about it is from the DSC lawyers' court paper of yesterday. The lawyers used the mediation news as a reason for a time extension. 

I am not a lawyer or legal expert, but it stands to reason that mediation means the two sides will engage in give and take in private trying to reach a mutually agreeable settlement. According to yesterday's court paper, this will cover all issues both state and federal. This kind of talking is best done out of the public eye.

In thinking of examples in history of negotiations in private and in public, the best examples that come to mind are these. An excellent case of private was the constitutional convention of 1787. The states' representatives went into the hall in Philadelphia and closed the windows in spite of the stifling heat (this was long before air conditioning or even electric fans), to hammer out what must be the greatest political document in the history of the world. Without a leak (unimaginable today), they hashed out what came to be a masterpiece, flawed to be sure, but still a monumental work of compromise. It has lasted very well.

On the other hand, arguably the worst case of negotiation was the Versailles peace conference of 1919. Out in public, in the glare of the world's attention, the victorious powers of the World War cobbled together what must be the worst peace treaty in history. The French on one side demanded virtual destruction of Germany while the Americans wanted a gentle peace. President Wilson gave in to all sorts of vindictive demands in order to get everyone to agree on his imaginary panacea, the League of Nations. Twenty years later, through no small fault of the Versailles Treaty, the Second World War began. It made the First one look like a warm-up. The peace treaty of 1919 has gone down in history as the worst imaginable.

The moral of the story is:  negotiations are best done in private. And, that is what I think we should respect here. As mediation begins between the Episcopal Church side and the Diocese of South Carolina side, I think we should leave it alone and await the outcome. Outside speculation along the way is likely to do more harm than good. I suggest we all set this issue aside and await the mediation's result.

(The court document describing the mediation is in "Second Motion for Enlargement of Time to File Petition for Rehearing," Appellate Case No. 2015-000622. September 1, 2017. The document can be found here .)

2-DENIAL OF TIME EXTENSION. On yesterday, the DSC lawyers asked the SCSC for a time extension to September 18 before submitting their petition for rehearing. The SCSC immediately denied the extension. I have seen no reason for the denial. We do know that the lawyers had already been granted a 15 day extension, to Sept. 1.

Upon denial, the DSC lawyers then rushed to turn in, before the end of the day, three petitions for rehearing to the Court. One dealt with only one parish (Good Shepherd, of Charleston). Another was a petition for rehearing apparently restating their earlier arguments to the court. The third paper was a request that Justice Kaye Hearn be recused from the case and her opinion be vacated, or voided.

I do not know, but I am guessing the Church lawyers will be given the same time period the DSC lawyers had, 30 days, in which to file a response. They will ask the justices to deny a rehearing. This would leave the Church side with the August 2 decision that returned 29 parish properties to the Church.

3-REQUEST FOR RECUSAL OF JUSTICE HEARN AND VACANCY OF HER OPINION. Yesterday, the DSC lawyers submitted a voluminous paper holding that Justice Kaye Hearn should be recused, or removed, from the case, and that her part in the August 2 opinion be vacated, or set aside. Apparently, the basis of the request was that she was a member of a congregation in the Church diocese and of the Episcopal Forum, and therefore could not a fair and impartial judge in the matter at hand. If the DSC lawyers get this and Hearn's opinion is set aside, the SCSC's August 2 decision would fall to a 2-2 tie. That would leave Judge Goodstein's Feb. 3, 2015 Order in place as the final decision. One will recall that this decision gave everything to the independent diocese. Thus, by removing Hearn from the case in the state supreme court, DSC would wind up with total victory in the state courts.

From this layman's viewpoint, this is a weak tactic that is not likely to work. The biggest problem with it is that the DSC lawyers, who knew all about Hearn all along, apparently did not mention recusal before this point. I have seen no evidence that anyone in authority ever asked Hearn to recuse herself before the hearing of September 23, 2015. The justices on the court and the DSC lawyers did not ask Hearn to step aside before the hearing. In light of this, how can they ask her to recuse herself retroactively? It does not make sense to me.

The whole thing has an air of desperation. It appears to me to be throw in everything but the kitchen sink and hope something works strategy. In my view, it is not a sensible move and is not likely to impress the state supreme court justices.

In my opinion, the idea that Hearn could not be impartial because she was an Episcopalian and member of the Forum is not convincing. That is like saying Robert Mueller is a Republican (he is)---President Trump is a Republican---Mueller cannot be an impartial investigator in Trump's background. No one would believe that. Besides, the strongest defense of the Episcopal Church position in the SCSC did not come from Hearn. It came from Justice Pleicones. Moreover, the deciding vote did not come from Hearn. It came from Chief Justice Beatty. So, any assertion that she made all the difference in the outcome of the decision is not supported by the known facts.

Where does all this leave us now? It appears to me that the legal struggle between TEC and the breakaway diocese has moved onto two tracks, private mediation and public litigation in state and federal courts. I imagine the SCSC will reject DSC's petitions for rehearing and leave their August 2 decision standing. I suppose the federal court will continue moving along with an eye toward a trial in March of 2018. However, talks will soon begin between the two sides under the guidance of a federal judge. We can have no way of knowing what is going on there, and we should not know. Sometimes it is best we do not know the future; and that is the case here. So, let us wait and see what comes of the mediation.

 TWO  SIDES AGREE

TO MEDIATION

September 1, 2017. 5 p.m. EDT.     Word arrived today that the two sides in the Church case and United States District Judge Richard Gergel have agreed to set up a mediation process. This means the Episcopal Church and the Episcopal Church in South Carolina on one side and the Diocese of South Carolina on the other will discuss possible resolutions of the legal issues at stake. 

In today's motion for extension of time to file a Petition for Rehearing in the SC Supreme Court, the lawyers for the independent Diocese of South Carolina wrote this:

Judge Richard Gergel has, with the parties' consent, ordered that this matter be mediated by Judge Joseph Anderson, and the parties have agreed to mediate all issues, both federal and state.

The lawyers attached the order from Judge Gergel:

TEXT ORDER: With the consent of the parties, the Court hereby appoints Senior United States District Judge Joseph F. Anderson, Jr. as the mediator in this matter. Judge Anderson will communicate with the counsel to initiate the mediation process. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M. Gergel on 8/30/17.

This is all we know at the moment: on August 30, Judge Gergel ordered a mediation to which the two sides had already agreed, Judge Anderson will mediate, and apparently all issues state and federal are on the table for settlement. 

I will keep you posted as I get more information about the mediation process. 


The mediation order is in the document entitled  "Second Motion for Enlargement of Time to File Petition for Rehearing" Sept. 1, 2017. 11 p. Find the Second Motion here .

THE BEGINNING OF THE END

This moment has been a long time coming. It was thirty-five years ago that the first seeds of schism were planted in South Carolina, fourteen years since the Diocese of South Carolina began to veer away in earnest after the Robinson affair, thirteen years since the first parish (All Saints of Pawleys Island) bolted the Episcopal Church, nine years since Mark Lawrence became bishop, nearly five years since the schism, and four years since the law suits began. We waited on the circuit court trial for eighteen months. We waited again for a seemingly interminable twenty-two months for the South Carolina Supreme Court to render its decision. If you are now feeling terminal fatigue, you have every reason to feel that way; and you are not alone. We are all exhausted.

Thus, it is with a certain amount of blessed relief that we now face what appears to be the beginning of the end of the sorry legal war between the two sets of former friends, both claiming to be good Christians, both claiming to be the true heirs of the grand old Episcopal Diocese of South Carolina. Scandal. The litigation in state court is almost certainly going to end in the next few months, and probably sooner rather than later. The federal court proceedings will end probably within a year or so. I will go out on a limb and say that a year from now, August of 2018, the litigation will be over. I believe the chances are better than even that the Episcopal Church and her diocese, the Episcopal Church in South Carolina will prevail in both state and federal courts. 

As for the state supreme court, the burden is now on the DSC attorneys to prove that there were errors in the August 2 decision. That is a tall order. If it turns out that the five justices who rendered the decision will sit in judgment on the Petition for Rehearing (due Sept. 1), it is inconceivable they would change their opinions. Justices/judges almost never reverse their written decisions on their own. DSC could appeal the SCSC decision to the U.S. Supreme Court but it is highly doubtful that SCOTUS would take the case. The entire case of DSC rested on state corporate and property law.

As for the federal court, there has been a dramatic change. Judge Richard Gergel has taken the case of vonRosenberg v. Lawrence. He was the third federal judge to be assigned the matter since Judge Weston Houck's death in July. Gergel is a no-nonsense, fair, reasonable, and highly efficient judge who acts asap. What a refreshing change. He is almost the opposite of Judge Houck who seemed simply overwhelmed by it all. Time and again Houck simply deferred to the state courts, even when he was directly ordered to proceed by the U.S. appeals court. 

Gergel had the case only a few days when he sprang into action calling the lawyers in, and on August 8, issuing a scheduling order. Discovery is to be finished by December of 2017. Trial is to be held in March of 2018. Where has Gergel been all this time? Why do not we have more judges like this? A week after the scheduling order, on August 15, the Episcopal Church filed a motion with Gergel to be added to the case along side the Church diocese. Seven days later (Aug. 22), DSC lawyer Henrietta Golding filed a response strenuously objecting to the inclusion. The very next day (Aug. 23), Gergel issued an eight-page "Order and Opinion" granting TEC's motion and rejecting every one of Golding's arguments. 

Probably the most important part of Gergel's Order was his firm resolution to adjudicate this case. It involves federal law in a federal court. He pointed out that every one of the five state supreme court justices deferred to the federal court to resolve the federal issue of trademarks. With this, Gergel signaled loudly and clearly that he fully intended to resolve this dispute and to do so with dispatch. If Gergel's early thinking is any sign for the future, the TEC side has every reason to be optimistic. I cannot imagine Gergel will let this case last any longer than necessary.

Is an out-of-court compromise settlement possible? Anything is possible, but, in my opinion, it will not happen here. The Church offered a generous settlement in 2015. The DSC leaders rudely threw it back in the lawyers' faces. If the parishes had taken the offer, they would now have full ownership and control over all parish properties. At this point the Church has the advantage and the momentum. I see no reason for the Church to make a settlement, but I am only speaking for myself.

Since the August 2 decision returning 29 parish properties to the Episcopal Church, along with the diocesan properties, the DSC leaders have collapsed into despair flailing about for guidance. Their problem is of their own making. All along they consistently declared every legal decision to be God's will. Now they are a loss to explain the state supreme court's ruling. They have no explanation.

The problem of DSC now is how to retain institutional integrity. Soon, the clergy and communicants of DSC will be given a choice of staying with the buildings and returning to TEC, or leaving the buildings and going off to form churches in exile. It is a terrible choice. The DSC leaders are desperate to keep the local churches together.

One of the great ironies in the history of the schism concerned local rights. The DSC leaders insisted all along that the local parishes would control themselves and their properties, hence the quit claim deeds. However, from the start the DSC leaders did all they could to bind the local parishes under the control of the diocese. For a long time before the schism, they worked hard to keep the parishes loyal to the diocese. At the time of the schism, they leaned on the parishes to sign a "Commitment" form to make the parishes stay in line with DSC. When they filed their lawsuit against TEC, they bound 35 parishes into the suit thus making it impossible for them to do anything but support DSC. In 2015, they summarily rejected TEC's offer of settlement, and did so apparently without consulting the parishes. For years now, the DSC leaders have made it as hard as they could for the local churches to act independently thus contradicting the stated reason for the schism.

On the most fundamental level, the schism was not about property, or local rights. It was basically about enacting the DSC's vision about the Anglican Realignment. They believed that TEC had devolved into hopeless secular humanism (as approving of homosexuality) and must be either killed or rendered into impotence as an American cultural force. The "Realignment" would raise up an "orthodox" version of Anglicanism in America to replace the fatally corrupt old Episcopal Church. The Anglican Church in North America came along in 2009 as the "orthodox" replacement for TEC. 

The problem with this scenario is that the Anglican Realignment has failed. The Episcopal Church remains. The Episcopal Church is firmly in place as the Anglican branch in the United States. The Anglican Communion, and the Archbishop of Canterbury, have rejected the claim of ACNA to be an Anglican province. It is neither Anglican nor a province. Any pretense to either is only self-proclamation. Thus, the DSC's schism from the Episcopal Church has been a failure. DSC is now outside of the structure of the Anglican Communion with no hope of ever being in the Anglican Communion. The Anglican Realignment has failed. Not every idea that sounded good to start with turns out to be so (we have all been there).

The DSC leaders have called for a day of prayer and fasting on August 30. This is a slightly pathetic, obviously desperate, last minute appeal to Heaven to save them. It is a bit late. Interesting that they called for no such appeal before the state supreme court hearing. At that time, they were just sure God would carry them to victory. I suggest that all good Christians pause on August 30, and join in the prayers to Heaven, praying that God's will be done and that everyone on both sides will find the courage and faith to accept whatever finally happens in the courts.

In the end our fervent prayer should be that this beginning of the end of litigation will also mean the beginning of the end of the schism, the most destructive event in the 222 year history of the Episcopal Diocese of South Carolina.  

TWO WEEKS

We are now two weeks out from the August 2 decision of the South Carolina Supreme Court that ordered the return of 29 of the 36 parish properties in question. Where do we stand now? What is likely to happen in the foreseeable future?

One truth is sure. There continues to be a tremendous amount of interest in this matter. This blog has had 12,000 "hits" since the decision. I cannot speak for either side, of course, but I can relay what I see as happening.

The next step will occur on September 1, 2017, when the independent diocese (DSC) is scheduled to deliver its Petition for Rehearing at the SC Supreme Court. This will ask the justices to reconsider their August 2 decision. From what I understand now, the five justices who wrote the decision will sit in judgment on the Petition for Rehearing (rather than the 5 present justices). If this is true, it is extremely unlikely the Court will grant a rehearing. The last thing in the world they would want to do is reopen this case. If DSC is turned down, they can then make an appeal to the United States Supreme Court. Again, it is most unlikely SCOTUS would take the case. Thus, all signs indicate this case is over. The reality is that the Episcopal Church in South Carolina is going to regain the properties of the 29 parishes. There is virtually no chance this is not going to happen.

Meanwhile, there is a separate avenue of litigation, in federal court. The case of vonRosenberg v. Lawrence (filed in March 2013) is now in the United States District Court, in Charleston, before Judge Richard Gergel. This judge is well known to be one who moves matters along expeditiously. We know that the lawyers are now busy preparing for this trial. This court should be moving along in the next few months toward resolution. In view of everything, including the SC Supreme Court decision, the federal court will most likely come down on the side of the Episcopal Church. The suit is to ask the court to declare vonR (now Adams) and not Mark Lawrence as the legal Episcopal bishop and entitled to all that that means.

In the past two weeks, the the two sides have not changed their initial response to the August 2 decision. The Church diocese really can do nothing until September 1. Presumably, the Church lawyer, Tom Tisdale, will be allowed to file a counter claim to the DSC Petition for Rehearing.

DSC continues to be in collapse. Disarray and confusion abound as the leadership remains in shock and disbelief, even denial of what has happened. Apparently, the pall of death hung over the DSC clergy conference on August 9. Accord to Kendall Harmon, Alan Runyan, the lead lawyer, showed up looking as if he had been run over by two big trucks, and Mark Lawrence declared this was the day he never though would come. One can only imagine the despair of the hundred or so attendant priests, most of whom stand to be removed from their churches.

It seems to me the fundamental problem with DSC is that the leaders had long ago established the imperative that events were God's will. For two and a half years, they won every contest between the two dioceses in the courts and declared every one to be God's will. At one time Lawrence even declared his foes in court to the "the spiritual forces of evil." God was on their side and surely would lead them to final victory. Apparently they had convinced themselves that God would guide the state supreme court to rule for DSC. To be consistent then, DSC must declare the August 2 decision to be God's will. This has thrown DSC into total confusion. Either God guides the court decisions or he does not. What can they say now, that he guides some decisions and not others? Then, who is to say which decisions are God's will and which are not? The Aug. 2 decision greatly weakens DSC's assertion that God is on their side in court against TEC.

Amidst all this collapse, DSC is desperate to keep institutional cohesion. There are 104 clergy in DSC who have been released from the vows in TEC and 13,000 communicants caught in the 29 parishes at stake. What are these people to do? How can DSC keep these clergy and communicants in DSC when it is losing the vast bulk of its local church properties (DSC keeps 6 local churches, none in Charleston or vicinity) not to mention Camp St. Christopher, diocesan headquarters, and all legal rights and assets of the old diocese? As Bishop Iker said, this is a "horrendous loss." 

Perhaps the best indication of the state of affairs in DSC now comes from the August 13 sermon of Kendall Harmon, available on his website, TitusNineOne, post "Kendall Harmon's Sermon..." of August 15. Everyone should listen to it to understand the position of DSC today. KH is now as he has been for 30 years, in the inner core of the diocesan leadership. What he says is what the DSC core leadership is thinking. In his sermon, three items stood out:

1. KH continued what DSC started from the first, doubt about the clarity of the decision. He declared it "far from over" since there were five separate opinions and the majority three came at it from two different perspectives. What he meant was that the decision was far from clear. Besides, don't believe anything in the media, he said, it is all "nutty" [fake news?]. One interesting point was what KH did not say. He did not mention anything about "conflict of interest" or Justice Kaye Hearn. His silence on this may well indicate DSC is backing away from pressing this point with the SCSC (if so, a wise decision). As I said before, allowing 29 congregations to believe they still have a good chance of keeping their properties away from TEC is cruel.

2. KH reiterated that the basic issue at stake was "sexual ethics and morality" (i.e. homosexuality). He said TEC committed an "unforgivable sin" by promoting acceptance of homosexuality while people like him were "hounded out of TEC." Interesting that when KH entered the diocese thirty years ago, his first big crusade was about sexuality. It was to go to war against a booklet called "Sexuality: A Divine Gift." He won. Here, thirty years later, the topic is still sexuality.

Recall that right after the schism of 2012, DSC insisted that the break had had nothing to do with sexuality. It was supposedly all about "God not Gays," that is, about theology, not sexuality. Of course, they asserted incredibly, DSC was not against homosexuals. KH is now returning to the truth. The schism was very much about homosexuality.

Why return to the homosexuality issue now? Simple. For many years, the DSC leaders dragged out the homosexuality/transgender theme when they needed an emotional issue to unify the diocese. Homophobia was the wedge issue to separate the faithful from TEC and it worked well every time. Perhaps it can work again at this time. If they ever needed to unify the diocese, it is now.

3. God is on our side theme. The DSC leaders have asserted this from day one. It is nothing new, but the urgency is new. "We have to stay together," "We have to support one another," KH pleaded. The good us (DSC) against the evil them (TEC) theme worked very well in the past. Perhaps it can work again, but now it has a whole new meaning as 29 properties return to TEC.

Thus, the DSC leadership is now thrashing about for ways to keep the disintegrating diocese together. It will be a hard task.

One overlooked but important part of the August 2 decision was validation of the conspiracy charge. In their decisions, Justices Pleicones and Hearn declared the schism to be the result of a conspiracy, although they did not use that term. The meaning was the same. They said the diocesan leadership had consciously and deliberately moved the dioceses in steps away from TEC. One will recall that Church lawyer Tom Tisdale had raised this charge in the circuit court only to be immediately dismissed by Judge Goodstein. We know from DSC's own documents that there was a secret plan beforehand to "disaffiliate" the diocese from TEC. We just do not know how far back in time it went. 

If there were a conspiracy as numerous legal minds are now charging, it has failed. That is the stark but unmistakable reality of the August 2 ruling. If the conspiracy were a mutual deal of making Lawrence bishop in return for his taking DSC out of TEC with the properties in hand, it has all but ended in failure. Lawrence did not secure the properties for DSC. The vast majority of parish properties will return to TEC.

The failure of the conspiracy should make everyone involved in this schism reevaluate his or her place in all of this. Over a hundred clergy and 15,000 communicants attached themselves to what they believed to be a rising star. It turnout out to be only a shooting star, a meteor, that is now crashing and burning. These thousands of trusting people now have to decide what they are to do about this.

I think everyone should go back to the original claim and reconsider the issue of God's will. It just may be that the Holy Spirit did indeed speak through the five justices of the state supreme court. It just may be that their decision IS God's will. That is something thousands of people must now contemplate and decide for themselves. Let us all pray that the people of faith now caught in the tragedy of the schism may find peace in whatever resolution they discern in this "horrendous" state of affairs.  

    

ANNOUNCING PUBLICATION:

A HISTORY OF 

THE EPISCOPAL CHURCH SCHISM 

IN SOUTH CAROLINA

Wipf and Stock Publishers have announced the publication of Ronald James Caldwell's A History of the Episcopal Church Schism in South Carolina. It is now available for order.

The Wipf and Stock website (www.wipfandstock.com) will have the book available for order by Saturday, August 12. The cost is $62.00 plus shipping. If you order from the website, there is a 20% discount. This is the paperback edition. The hardback and e-book editions will be released in a few weeks.

If you cannot wait until Saturday, or wish not to order online, you can order by telephone. This can be done now at Wipf and Stock, 541-344-1528.

For the book cover, see the post "Book Cover" of August 3, 2017.

For the first few pages of the Preface, see the post "Forthcoming..." July 27, 2017.

To see the first pages of the chapters and index, look at "Notes---June 30," posted on July 1, 2017.

This book is the product of four years of research and writing. I examined what I believe to be all the publicly available pieces of primary and secondary evidence, some 2,500 in all. I cited 900 of these in 2,200 footnotes. The text is 512 pages. It is an in-depth examination of the causes, nature, and results of the schism in the Episcopal Diocese of South Carolina in 2012. 

At long last, the book is ready and available for purchase.

ONE WEEK

A week has gone by since the South Carolina Supreme Court issued its decision on the Church case on August 2, 2017. It is timely to ask, where do matters stand now, one week on? In one way, nothing has changed. In another way, everything has changed.

The decision electrified, even shocked, the Episcopal/Anglican world. Many, perhaps most, people did not anticipate the outcome. No one can quantify it, but I think the consensus of opinion was that DSC would win a narrow victory mainly because Chief Justice Toal would convince two or three other justices to join her in defending her signature achievement, the famous All Saints decision of 2009. It is taking awhile for the reality to settle in on people. There has certainly been a great interest in the decision. This blog has had 10,000 "hits" in the past week. 

The reactions of the two sides have been, unsurprisingly, quite different. On the Church side, Bishop Adams delivered a muted response mainly appealing for reconciliation. The clerical and lay leaders of ECSC met in Charleston on August 4, but, as far as I can tell, decided nothing new. It is a waiting game while the other side prepares to enter a Petition for Rehearing before the Court, due by September 1. (I doubt seriously that DSC will get this. I am not clear if the 5 justices who made the decision will act on the Petition, or whether it will be the present 5 justices. I am trying to find out. If the earlier 5, they will certainly reject the Petititon. It is inconceivable that after 22 months of brutal warfare, they would touch this still highly radioactive atomic bomb. If the later 5, there is only a slightly better chance. At any rate, I think it is extremely unlikely there will be a rehearing.) 

On the secessionists' side, the initial response to the decision of August 2 was stunned disbelief. Bishop Lawrence issued a letter unlike any I have seen from him before. Gone was any combativeness. Gone was the proclamation of God's will. Gone was any characteristic brash confidence. Gone were any metaphors of war against the other side. Instead, he admitted to "despondency." He talked of people who had "walked away from the church buildings." The Rev. Jeff Miller told his congregation in St. Philip's of Charleston last Sunday, "I was shocked...I thought we were never going to lose." The Rev. Marshall Huey wrote to his faithful at Old Saint Andrew's: "To say that I am stunned by the Supreme Court ruling yesterday is an understatement." One may reasonably assume Miller and Huey were speaking for the clergy of the diocese. 

Why the overconfidence in DSC? Good question. Part of the answer lies in the fact that for two and a half years after the schism of 2012, the DSC lawyers controlled the field of the litigation. In the state court they won recognition right off of the legal rights of DSC to continue the pre-schism diocese then won a smashing and total victory in the circuit court trial of July 2014. Alan Runyan's performance there was one to behold in awe. He conducted that event as a virtuoso playing a fine violin.

Ah, but therein lies the problem. Judge Goodstein's decision, which sounded to me an awful lot like Runyan's presentations, was too clever by half. It was over the top. It was so wide and so thin that the Supreme Court justices could hardly wait to pounce on it. The demolition was led by Chief Justice Toal herself who could barely restrain her ridicule. Not one justice arose in Goodstein's defense.

Over in the federal court, Judge Houck repeatedly deferred to the state court and essentially refused to have anything to do with the case even though he was directed twice by the U.S. Appeals Court to adjudicate it. Runyan held the field there too.

Thus, going into the state supreme court in September of 2015, the DSC lawyers must have been feeling highly confident of impending victory. This confidence may well have been why the DSC leadership rejected TEC's offer of a compromise settlement (the parishes for the diocese) in June of 2015. The DSC leadership rejected it out of hand, and with disdain. (I wonder what the parishes think of that now.)

Overconfidence is the only logical explanation I can come up with for why Runyan did not ask Justice Kaye Hearn to recuse herself from the case. To my knowledge, Runyan has never given a public explanation of why he failed to ask for Hearn's recusal. Obviously the other justices had no problem with Hearn staying on the case. They did not see recusal as an issue; and they certainly knew she was a member of a loyalist Episcopal congregation. So, the idea now that DSC should ask the supreme court to get Hearn to recuse herself retroactively is disingenuous. That ship has sailed, train left the station, horse is out of the barn, insert your favorite phrase here ___.  It is just not going to happen, and for good reason.

I imagine too that religion had something to do with the overconfidence. The DSC leaders convinced their followers, and apparently themselves, that God was on their side. They said so in so many words time and again whenever they won any legal success. It was always God's will. If they prayed, worshiped, fasted etc. enough, surely God would lead them to final victory in the state supreme court. Surely He would not abandon His people. When the court ruled against them, the DSC leadership was, really for the first time, at a loss to explain it. Hence, the disbelief and shock. Notice there has been no mention of God's will lately.

The DSC leaders have been loath to accept the reality of what has happened. The DSC official statements that have appeared over the last week suggested the decision was inconclusive, that it was deeply divided, and even wide open to reinterpretation. This is unfortunate. To promote the idea among the faithful that the court decision has a good chance of being overturned and that the parishes might well keep the properties, is cruel to the people in the pews. The reality is:  1-the decision of August 2 is clear-cut; the majority said the 29 parish properties must return to TEC; 2-there is only an extremely small chance this decision will change. 

One who clearly grasped the reality of the moment was Bishop Jack Iker, of the schismatic diocese of Ft. Worth. He wrote the day after the decision: "This means that the Diocese and Bishop Mark Lawrence lose everything else--the diocesan offices, the Cathedral, the Bishop's residence, their camp and conference center, all those historic colonial churches and rectories in Charleston, and so on. It is a horrendous loss."

The bottom line is that it is virtually certain that the Episcopal Church will regain control over the 29 parish properties in question. The DSC leaders' problem now is not how to keep the buildings, but how to keep the people. According to the last official figures (2015), there were 13,302 active members ("communicants") in these 29 parishes. The real question now is, what are these people to do?

What about TEC's offer of a compromise settlement (June 2015) of the parishes for the diocese. Just speaking for myself, I do not see this again. TEC is about to gain the parishes and the diocese both by court decision. There is no need for TEC to make any deal at this point. In my opinion, it is out of the question that there will be an out-of-court compromise settlement of any kind. It is too bad now that the parishes did not take the offer when it was made (but remember it was the DSC leadership, not the individual parishes, that rejected this offer). 

The schism has been a destructive and painful event. The staggering cost is evident all around; and it is not over. Now, the groups that will fall victims to the pain are the clergy and laity of DSC who put their faith in what they sincerely believed to be the right cause. One has to feel for the 104 clergy who cut themselves off from the Episcopal Church and are now entirely dependent on Lawrence and his "Anglican" cohorts. Most of them are about to be removed from their churches. How they are to provide for themselves and their families remains to be seen. But mostly one should feel for the 13,000 faithful who now have to decide what to do. If they want to know what they are about to experience, they should talk with some of the thousands of loyal Episcopalians who had to flee from their beloved home churches to living rooms, boat docks, bar-be-que restaurants, old schools, funeral homes, office buildings, and borrowed churches. I can tell you first hand, many a tear has been shed. There are many more to come.

Everyone in the Church diocese should pray for their brothers and sisters in the independent diocese. The clergy and the communicants have some very difficult choices ahead. In the end, religion is a personal experience. It is what the individual person believes to be true and right. No one has the right to impose that on anyone else. I hope the people of DSC will gather all the information they can about how they got to where they are (here I am putting in a plug for my forthcoming history of the schism. It should be out in  a few weeks.) Of course, I would like reconciliation but that is not my prayer today. At this point I am praying that each and every person in DSC will engage in a lot of prayer, meditation, Bible reading, soul-searching, talking to God and then discerning what is best for himself or herself; and in the end only that person can know what is in his or her own heart. In the weeks ahead, let us all remember in prayer all the people caught on both sides of this tragic schism.