Today The Episcopal Church (TEC) filed their reply, as requested by the Court, to the motions by the Diocese of South Carolina and 28 parish churches for recusal and rehearing in the South Carolina Supreme Court, regarding its recent ruling in Appellate Case No. 2015-000622.

On behalf of the Diocese of South Carolina, Rev. Canon Jim Lewis issued the following statement:

“Today’s filing by The Episcopal Church argues in essence, that the Diocese and its parishes waived their right to recusal, by not requesting it earlier, and that the Constitutional issues raised in their motions are negligible or mistaken.  The facts in this ruling, as it presently stands however, will not yield to such arguments.  Justice Hearn’s bias and conflict of interest is clear to any impartial observer.  The Constitutional issues for Freedom of Religion remain.  As our petition for rehearing stated: “These are serious issues for Respondents, Appellants and for all religious organizations in South Carolina. This Court should grant a rehearing.”  That continues to be our hope and Constitutional expectation from the Court.”

The Diocese is also providing the following background information and details:

•    In 2012, the Diocese of South Carolina, along with 50 of its congregations voted by an 80% margin to disassociate from The Episcopal Church.  In a complicated and sharply divided ruling consisting of five separate opinions, the S.C. Supreme Court appeared to rule on August 2 this year that parishes which had “acceded” to the national church are subject to a trust interest in their property by (TEC).

•    The Constitutional due process requirements of the 14th Amendment are clear.  No member of government should make decisions in matters in which they have a vested interest in the outcome.  The Justice in this ruling who provided the deciding vote is a member of a TEC parish, Diocese and its national church.  Under South Carolina law, that Justice is a legal party to this litigation.  The bodies to which this Justice belongs as a member would be the beneficiaries of a nearly $500 million property windfall if this ruling stands.  That is a massive conflict of interest.  And it is the responsibility of the judge, under the South Carolina Code of Judicial Conduct, to reveal that issue, not for a party in the case to challenge the propriety of their actions.

•    The expert affidavit testimonies of Nathan M. Crystal, Professor and Adjunct Professor of Ethics at the University of South Carolina and NYU Schools of Law and Lawrence J. Fox, Professor of Ethics at Yale University are unanimous in their conclusions.  The due process rights of the Diocese of South Carolina have been violated by these actions and the only appropriate response is for this Justice to be recused from further participation in this case and their opinion vacated.  As Lawrence Fox observes in his analysis, “This is not a close case.”  The violations of due process here are not subtle.  They are profound….

Read it all.

You may find the 32 page pdf document here and the press release about it there.

I am outraged by the recent S.C. Supreme Court decision that strips the title of 28 churches in the Diocese of South Carolina and awards them to the national Episcopal Church. As acting Justice Jean Toal wrote in a dissent: “The First Amendment prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice.”

Read it all.

Rehearing is required, flat out, because respondents’ due process rights to a fair and impartial tribunal were grossly violated. But rehearing would be required in any event because the bias injected into the proceedings by Justice Hearn tainted not only her conclusions, but those of Acting Justice Pleicones and of Chief Justice Beatty, as well.

In a nutshell, the fault exposed by the petition for rehearing is this: there is no 3-2 majority, or any majority, of the Court that is united in favor of any reasoning for any result that is dispositive of the entire case. When a court has failed properly to dispose of the whole case before it, it must grant a rehearing to clarify what it meant by its original decision.

Let me restate that observation, in terms a lay person can understand. To have an effective decision from a court of law in which a panel of multiple justices participates, there has to be a majority of the participating justices who each concur in (agree with) the result that necessarily follows from that concurrence. And in this South Carolina decision, an analysis of the separate opinions shows conclusively that while three justices out of five may concur in one given result, they differ fatally in what process gets them to that result.

With no clear majority agreeing on the approach the Court (through its supposed majority) is laying out, the picture is the same as if three bettors at roulette won money when the ball landed on Red 34, because the first bet on “red”, the second bet on “even”, and the third bet on “34”. There is consensus only in result, but not in how you get there. And basic due process requires courts to explicate their reasoning for reaching a given result.

Read it all.

In a demonstration that tops all that came before, the motion makes its most convincing argument for Justice Hearn’s disqualification at pp. 11-12. ECUSA itself has for a long time declared in its national canons that as an unincorporated association of dioceses, its members are individuals who have been baptized in the Church (Canon I.17.1 [a], cited in n. 1 on p. 11). Justice Hearn fits that description, so ECUSA itself regards her as one of its own members.

Likewise, ECSC stated in discovery that “its members are persons” (ibid.), and so Justice Hearn, who belongs to a parish that recognizes the authority of ECSC and its Provisional Bishop, is a member of that body as well.

But the kicker is that under South Carolina law, all members of unincorporated associations are deemed to be parties to an action in the name of the association — and both ECUSA and ECSC are unincorporated associations. Ergo, Justice Hearn is a party defendant, and could be found personally liable if ECSC ends up with a money judgment against it and no means to pay it. As a party defendant, she has no right to sit in judgment of her own case (just as she has no inherent right to rule on her own disqualification by participating in deciding the motion). See the motion at pp. 11-12, and 24.)

Two Experts in Legal Ethics State that Justice Hearn Should Have Recused Herself

It is no answer to all of the foregoing to say that it was the responsibility of Bishop Lawrence’s attorneys to have requested Justice Hearn to withdraw from participation in the case. The South Carolina Judicial Canons required her to make a full disclosure on the record of all of the relevant facts before proceeding at all. Not only that, once she made such a disclosure, the Canons forbid parties from waiving disqualification on grounds of personal involvement, so that she would have had to step down once she revealed the extent of her and her husband’s personal involvement (see motion, pp. 13-19).

In further support of their motion, Bishop Lawrence’s attorneys submitted the affidavits of two recognized experts in the field of legal ethics.

Read it all.

September 1, 2017

Dear Friends,

Today the Diocese filed two motions with the South Carolina Supreme Court;

• A Motion to Recuse, addressing the participation of Justice Kaye Hearn, and
• A Motion for Rehearing, asking the court to reconsider multiple important issues in the current ruling.

The respective motions and the expert opinions can be found here:

• Motion to Recuse
• Motion for Rehearing
• Expert Witness Crystal Affidavit
• Expert Witness Fox Affidavit

The press release filed today is available here.

We continue to believe what we have asserted from the beginning. With the freedom of association comes the freedom of disassociation. In the pursuit of the constitutionally protected right to the free exercise of our religious beliefs we disassociated from the Episcopal Church. It should not be the case that this protected right causes the loss of our property when it would not do so if we were not a religious organization.

It is incomprehensible that a parish like St. Philip’s in Charleston, that was worshipping here 100 years before TEC even existed, can have that place of worship taken from them and given to an unincorporated New York association who contributed nothing to its building or preservation.  This is a principle worth fighting for.

In Christ’s service,

–The Rev. Jim Lewis is Caon to the Ordinary, Diocese of South Carolina

Citing significant departures from both state and federal precedents, the Diocese of South Carolina and 29 parish churches today filed a motion for rehearing in the South Carolina Supreme Court regarding its recent ruling in Appellate Case No. 2015-000622.  In 2012, the Diocese of South Carolina, along with 50 of its congregations voted to disassociate from The Episcopal Church.  In a complicated and sharply divided ruling consisting of five separate opinions, the S.C. Supreme Court ruled on August 2 this year that parishes which had “acceded” to the national church’s ‘Dennis canon’ are subject to a trust interest in their property by The Episcopal Church (TEC).  Only eight congregations were judged to have full rights to retain their property.

In a decision that partly reversed the February 2015 Circuit Court ruling of Judge Diane Goodstein, the Supreme Court significantly changed court precedents in multiple areas and divested the property rights of at least 28 congregations and over 20,000 church members.

Grounds for Rehearing

While there are multiple legal issues in the ruling that merit rehearing, the most crucial are possibly the constitutional ones controlling cases of religious property.  As stated in the conclusion to the petition: “The majority has fashioned a neutral principles standard for religious organizations under South Carolina property, trust and corporate law that admittedly would not be applied to secular organizations. It then applied it to religious organizations today in a fashion it did not do 8 years ago involving the same issues between the Plaintiff Diocese, The Episcopal Church and a parish church. It does so when no appellant asked the trial court, either during trial or post trial, to apply such a standard. As a result, the majority would transfer the real and personal property of South Carolina religious organizations, many of whom preexisted The Episcopal Church and the United States, to a New York religious organization. This establishment of one religion over another impacts the choices these South Carolina religious organizations (and those associated with them) made in the free exercise of their religion.  They chose to disassociate, exercising their right of association under the United States and South Carolina Constitutions which this Court has recognized.  Yet, according to the majority, that constitutionally protected decision, requires a massive transfer of centuries old real and personal property when it would not be required for a secular South Carolina organization.”

The petition concluded: “These are serious issues for Respondents, Appellants and for all religious organizations in South Carolina. This Court should grant a rehearing.”

Read it all.

The end of punishment: @JTasioulas on the role of repentance and mercy in the practice of criminal justice. https://t.co/T4W7gFirgV pic.twitter.com/B4Y5NEPDO3

— ABC Religion&Ethics (@ABCReligion) August 30, 2017

Careful blog readers should make sure there have read and understood them all. I have been asked why I have not linked to secular media reports or other stories, and the answer is I would be happy to if they were accurate but they have not been–KSH.

South Carolina Supreme Court on Diocese of South Carolina/TEC Diocese in SC Dispute Ruling is Out.

Diocese of SC Statement on the recent South Carolina Supreme Court Ruling.

AS Haley–Massive Conflict of Interest Taints South Carolina State Supreme Court Ruling.

South Carolina Bishop Lawrence Writes his Diocese Following the recent Supreme Court Ruling.

A Message from the Standing Committee of the Diocese of South Carolina.

Bishop Mark Lawrence of the Diocese of South Carolina Calls for a Day of Prayer+Fasting on August 30.

Diocese of South Carolina and 29 Parish Churches File Motion for Rehearing in State Supreme Court.

A S Haley–Faults in the South Carolina Supreme Court Decision Laid Bare (I).

A S Haley–Faults in the South Carolina Supreme Court Decision Laid Bare (II).

Jeff Miller–SC Supreme Court ruling against Diocese of South Carolina threatens religious freedom.

(The State) How a South Carolina Supreme Court decision threatens religious freedom.

The Historic Diocese of South Carolina responds to the New TEC Diocese’s Motion on the Rehearing.

The Diocese of South Carolina offers its Rebuttal of TEC Recusal and Rehearing Arguments.

You can listen directly here or download it there.

[Aug 2]

Dear Fellow Clergy,

As noted in today’s earlier email the South Carolina Supreme Court released a divided ruling in our case. You may read the ruling here.

The Bishop is calling for a clergy day this coming Wednesday, August 9 beginning at 1:30 p.m. in St. Paul’s Church in Summerville.  Legal counsel will be present to discuss the ruling and its possible implications.  We request that all who are able make it a priority to attend….

While we released a statement to the press this afternoon, we want you to further know that our legal team is planning a motion for a rehearing.  There are multiple strong grounds for making that request and good reason to be hopeful about that outcome.  In the meantime, please appreciate that legal council is still reviewing the implications for what is a very complicated ruling.

While this ruling is disheartening, we are a long way from the conclusion of this fight for the Diocese and its Parishes.  Please keep the Diocese and its leadership in your prayers as they discern appropriate next steps.

In Christ’s service,

(The Rev.) Canon Jim Lewis

August 7, 2017

The Standing Committee of the Diocese of South Carolina, having met together with our bishop, The Rt. Rev. Mark J. Lawrence, in Charleston this day, sends to all of our brothers and sisters of the diocese our love and our greetings in the name of Jesus Christ. We are so profoundly thankful for all who have fasted and prayed for our diocese and our Standing Committee during the past week from across South Carolina, throughout the Anglican Church in North America, and among all the faithful in global Anglicanism.

We have spent this time together in prayer and discussion regarding the decision by the South Carolina Supreme Court last Wednesday. In light of the conflicting opinions issued by the court, we met with the legal counsel for our diocese and have approved a strategy on how we go forward seeking clarity. We want you to know this: the legal process continues. We will be filing a motion for a rehearing from the Supreme Court, the deadline for which is September 1st. We are convinced there are compelling reasons to make this motion. There will be other avenues along with and following that action.

Finally, while we cannot tell you what tomorrow brings, we want to reiterate three things that you already know. First, again, the legal process continues. Second, we are stronger together. Third, we will continue in all circumstances our God-given mandate of making biblical Anglicans for a global age. Know that we love you, our brothers and sisters in Christ, and that we remain,

Yours in Christ Jesus,

The Standing Committee of the Diocese of South Carolina

The Rev. David Thurlow, President
The Very Rev. Craige Borrett
The Rev. Karl Burns, Vice-President
The Very Rev. Peet Dickinson
The Rev. David Dubay
The Rev. Marcus Kaiser
Mr. Alonso Galvan
Mr. Gerry Graves
Mrs. Susan McDuffie, Secretary
Mr. Foster Smith
Mrs. Anne Walton
Absent:
Mr. Brandt Shelbourne

Dear Members Of Our Redeemer Family, I would guess that by now you’ve heard that the SC Supreme Court issued their ruling on the appeal of the 2014 Circuit Court opinion that awarded the Diocese of South Carolina full rights to continue as the Diocese and gave full ownership of the churches properties to the individual churches. According to the ruling which you can download by tapping or clicking here, it looks like we may have lost some of what we gained under the 2014 Circuit Court opinion. As I understand it, part of the 2014 ruling has been reversed by a majority of justices, and another part remains as it because there was a 2-2 tie on that part. It appears that we [in Orangeburg] lost the right to keep our buildings. I’m writing today to ask you to fear not. I assure you, we are going to be alright. I’m asking you not to start “what-iffing” and please don’t start anticipating what we are going to do from here on out. We really don’t have enough information yet to even be anxious. Additionally, I have a personal rule of life I follow which goes like this: “Never make policy out of something that hasn’t yet happened.” Last night I got an email from Canon Jim Lewis saying that our legal team will appeal. Here’s part of that letter from Canon Lewis: We want you to further know that our legal team is planning a motion for a rehearing.  There are multiple strong grounds for making that request and good reason to be hopeful about that outcome.  In the meantime, please appreciate that legal council is still reviewing the implications for what is a very complicated ruling. While this ruling is disheartening, we are a long way from the conclusion of this fight for the Diocese and its Parishes.  Please keep the Diocese and its leadership in your prayers as they discern appropriate next steps. Additionally, I would ask you to stay away from gossip on the subject. Facebook and the various church blogs are often little more than gossip. At best they are one person’s opinion. Opinions are just that – opinions; they are not fact.  The fact is, the sky is not falling. Another thing you might want to do is talk with Pinckney Thompson. Pinckney led the charge for us in 2014, and I believe that he’s got some great wisdom on the issue. In any event, God is still God, and I know He’s in charge of our future. Whatever may transpire, we are going to be alright. That much you can take to the bank. All we need to be doing at this point is praying for God to take care of it, because the Lord knows we surely can’t. My friend Chris Warner wrote these words to his congregation:  Let me remind you; you don’t have to worry. Worry is optional misery! This court ruling is a situation that you cannot control. But you can control the amount you worry. If you have a relationship with God through Jesus Christ, you know the One who created your future. His promises about your future give life, not worry. We clergy will have a special meeting next Wednesday, August 9 to hear from our lawyers and leadership. As soon as I get more information – reliable information – I’ll send it to you. Again – Please – Fear Not. This is not a time to worry. This is the time to pray. And pray with the assurance that God’s got it, and it’s going to turn out just fine.  Thanks. God bless you, and See you Sunday! –The Rev. John Burwell

Today, thousands of Christians around the world are holding you, the congregations of the diocese, as well as our clergy and bishop in prayer. Even more specifically, yesterday Anglicans on this continent were lifting us in constant prayer. As you may know, we recently voted as a diocese to affiliate with the Anglican Church in North America, and this summer their Provincial Assembly joyfully received us as full members therein. What a comfort it is to know that our Archbishop, the Most Reverend Foley Beach, asked the bishops, clergy and laity of the ACNA to pray and fast yesterday on our behalf.

Many of those praying and fasting have in the past walked away from their church buildings, buildings they built and maintained, and in some cases, where their families worshiped for centuries. Some left by choice; others after years of litigation. I do not mention the latter, however, as if the legal issues in our case are fully resolved. They most certainly are not, though they are clearly challenging. Rather, I want you to know the sort of Christians who are praying for us; and while holding us in prayer, many are fasting. They have paid a price to follow their Lord. We are part of a provincial body of Anglican Christians and they are walking this hard road with us. Their fellowship at such a time is greatly comforting to me and I hope it is for you.

I also want to tell you what our next steps are. First, this Monday, August 7, the Standing Committee and I will meet with our lead legal counsel, Mr. Alan Runyan. I assure you that our legal team is looking at the various options before us. Second, this Wednesday I will meet with the deans of the various diocesan deaneries, and that afternoon, Mr. Runyan, Canon Lewis and I will meet with all the clergy of the diocese. Please keep us in your prayers. Many important decisions are before us and we want to be faithful to our Lord Jesus Christ and walk in step with the Holy Spirit.

Read it all (his emphasis).

The decision of the South Carolina Supreme Court in the matter of the ACNA Diocese of South Carolina vs. the TEC Diocese of South Carolina (Heard September 23, 2015 and filed August 2, 2017) appears to be such a case. The net effect of this case seems to be the transfer of the property of 29 congregations from the ACNA Diocese of South Carolina to TEC. Ultimately this could mean the displacement of thousands of families from the place where they have worshiped for generations. It could mean the loss of all the ACNA Diocese of South Carolina offices, the bishops residence and more.

The legal effect is to overturn the South Carolina Supreme Court decision in All Saints Parish, Waccamaw v Diocese 385 S.C. 428 (2009) that neither the then Episcopal Diocese of South Carolina nor the national church (by the Dennis Canon) can create a trust in favor of themselves in any church in South Carolina unless they already have an express property interest in that church. This 2009 decision was based on long settled common law principles of trusts in South Carolina law. The legal effect of the Court’s August 2 decision is to reinterpret the facts of this case de novo, and by bare majority of 3-2 to reinstate the validity of the Dennis Canon by turning the “neutral principles” approach to church property disputes (see Jones v. Wolf , 443 U.S. 595 (1979)) into a “deference to internal hierarchical church law,” approach—turning “neutral principles on its head.” As Justice Kittredge concluded in his opinion (dissenting in part and concurring in part): “The message is clear for churches in South Carolina that are affiliated in any manner with a national organization and have never lifted a finger to transfer control or ownership of their property—if you think your property ownership is secure, think again….”

I am reminded constantly of the example of The Falls Church Anglican in Virginia. Under years of costly litigation and appeals, they planted three churches in the DC Beltway (Arlington, Alexandria and Vienna) and one on the outskirts of Northern VA, in Winchester. All are thriving. TFC lost their buildings, but their congregation grew even as they gave away hundreds to these church plants! Now they have a location and a building that exceeds what they had before, as they are growing in mission and evangelism where God has planted them.

How tragic it would be if litigation and appeals took our eyes off God and the things that delight him—especially reaching those who do not yet know the transforming love of Jesus Christ.

Read it all.

In her concurring opinion, Justice Hearn went out of her way to castigate Bishop Lawrence and the role he played as chief pastor of his Diocese — ecclesiastical matters which, as her colleagues pointed out, had no business being addressed in a secular judicial opinion. In doing so, she only advanced, and acted as a spokesperson in black robes for, the sectarian interests of the Episcopal Forum to which she still (presumably — the organization no longer publishes the names of its members) belongs. At the same time, she contradicted her own precept that South Carolina courts should stay out of Episcopal Church matters and defer to its “ecclesiastical determinations.”

Further, according to the minutes, Justice Hearn’s husband, George, was one of the duly designated delegates to the special convention of ECSC called in January 2013 by ECUSA’s Presiding Bishop to replace Bishop Lawrence. That convention elected Charles G. vonRosenberg as Provisional Bishop of ECSC, who promptly brought suit against Bishop Lawrence in federal court and countersued in the State court action — eventually seeking the recovery of all the properties of each of the 36 separate parishes involved in that litigation. George Hearn also was a deputy to the first regular convention of ECSC held in March 2013.

One would think that Justice Hearn, given her membership in the organization that initiated the disciplinary proceedings against Bishop Lawrence, and given her husband’s role in enabling the litigation now before her, might have considered recusing herself from the 2015 appeal by her own diocese (ECSC) and church (ECUSA) to her Court, which placed directly at issue the actions of Bishop Lawrence and his Diocese that removed them from ECUSA. But one would be wrong. She not only stayed on the case, but she displayed a disgraceful bias in her own church’s favor during the oral arguments in September 2015.

Fast forward now to the current year. The appeal by Justice Hearn’s church and diocese has been languishing for 15 months because the five justices have been unable to form a consensus on how to resolve it, and are still circulating draft opinions. At some point in the process (perhaps just a few months ago, or perhaps it was right after the oral argument in September 2015), it has become clear that there are two votes (Acting Justice Pleicones, and, naturally, Justice Hearn herself) to apply ECUSA’s Dennis Canon full bore to the withdrawn parishes.

Read it carefull and read it all.

Diocese of SC Statement on yesterdays Supreme Court Ruling 'a complicated ruling consisting of 5 separate opinions' https://t.co/UZVVVjF0WP pic.twitter.com/g0AUpmr2Er

— Kendall Harmon (@KendallHarmon6) August 3, 2017

A sharply divided court reverses portions of the lower court ruling

COLUMBIA, S.C. (August 2, 2017) – In a 77 page opinion, the South Carolina Supreme Court today reversed portions of an earlier lower court ruling. In February 2015, circuit court Judge Diane Goodstein ruled that the Diocese of South Carolina, its trustees and the 50 parishes — representing 80 percent of the members — that disassociated with the Diocese successfully withdrew from The Episcopal Church (TEC) in 2012, taking all their property, including churches, symbols and other assets. The ruling was the result of a three-week trial in 2014.

That court found that “the Constitution and Canons of TEC have no provision which states that a member diocese cannot voluntarily withdraw its membership.” This ruling found that had there been such a provision, it would have violated the diocese’s “constitutionally protected right” to freedom of association. “With the freedom to associate goes its corollary, the freedom to disassociate,” Judge Goodstein wrote.

In a complicated ruling consisting of five separate opinions, the S.C. Supreme Court today ruled that parishes which had “acceded” to the national church’s ‘Dennis canon’ are subject to a trust interest on their property by the denomination. Eight congregations that had not so acceded were judged to have full rights to retain their property.

The dissenting justices expressed concern regarding the long term implications of this decision. Former Chief Justice Jean Toal stated that the court should have relied on “over three hundred years of settled trust and property law… I believe the effect of the majority’s decision is to strip a title owner of its property…” on the basis of actions that do not create a trust interest under South Carolina law. In concurring with Justice Toal, Justice Kittredge observed of other church properties where there is affiliation with a national organization, based on this ruling, “if you think your property ownership is secure, think again.”

This current litigation became necessary when TEC attempted to wrongly remove Bishop Lawrence, and the Diocese, in response, elected to disassociate from TEC. At that time a small group of TEC loyalists who had been preparing for this attempted removal began an intentional campaign of using the Diocesan Seal and other service marks of the Diocese. They began to function as if they were the Diocese of South Carolina. To maintain its identity required that the Diocese defend that identity.

Lead counsel for the Diocese, Alan Runyan, said the lead opinion and concurring’s decision is inconsistent with South Carolina and long-standing United States Supreme Court precedent involving church property disputes. Legal counsel continues to review a lengthy and complicated ruling comprised of five separate opinions.

In a divided decision, the trial court’s order is reversed as to twenty-nine parishes and affirmed as to the remaining parishes. The trial court’s intellectual property ruling is affirmed by a vote of 2-2, with one justice declining to reach the issue.

Here are the seven parishes (and one land trust) which, by a 3-2 vote, were not subject to the Dennis Canon: Christ the King, Waccamaw; St. Matthews Church, Darlington; St. Andrews Church-Mt. Pleasant Land Trust; St. Paul’s Episcopal Church of Conway; The Episcopal Church of the Parish of Prince George Winyah, Georgetown; the Parish of St. Andrew, Mt. Pleasant; St. John’s Episcopal Church of Florence; and St. Matthias Episcopal Church, Summerton.

Note that the opinions are confusing as to how many “congregations” — seven or eight — managed to escape the Dennis Canon, by never acceding in their articles or bylaws to the Constitution and Canons of ECUSA. The reason is that one of the eight is not a congregation, but apparently a trust that holds title to church property.

The opinions show a bitterly divided Court that could not agree even upon the basic framework by which to decide the case (what the Court calls “the standard of review”). I put a lot of the blame for this divisiveness upon Justice Hearn, about whose blatant bias I wrote at the time of the oral argument. Her opinion concurring with Justice Pleicones might as well have been written by David Booth Beers….

Read it all.

Read it all.

I will take comments on this submitted by email only to KSHarmon[at]mindspring[dot]com.

Proverbs 1:33 (VOICE)

But those who listen to me now will live under divine protection; they can rest knowing they are out of harm’s way.

Our Father in heaven,

We thank You that You are a covenant God, not a capricious God. We thank You for the many promises of Holy Scripture. We claim this promise for the Diocese of South Carolina. Amen.

Please pray it all and there are more prayers for South Carolina here

Psalm 5:11-12 (NLT)

But let all who take refuge in you rejoice;
let them sing joyful praises forever.
Spread your protection over them,
that all who love your name may be filled with joy.
For you bless the godly, O Lord;
you surround them with your shield of love.

Our Father in heaven,

Spread Your protection over the congregations and property of the Diocese of South Carolina. Fill them with joy and bless them. We declare, They are surrounded by Your shield of love. Amen.

Please pray it all and there are more prayers for South Carolina here

“Despite the tendency of new congregations to grow, the impact of these congregations on the level of attendance in the Episcopal Church is relatively small ””simply because there are so few of them.”

Take the time to read through it all.

That left Chief Justice Toal, who despite all the tortuous arguments stuck to basic legal principles and analysis: a trust needs a settlor to be created, and the beneficiary of a trust is perfectly within his rights to quitclaim back to the settlor all of his supposed interest in the trust. (There was thus no “breach of the Dennnis Canon” when Bishop Lawrence signed individual quitclaim deeds to his parishes, on behalf of the Diocese as beneficiary of any trust interest that arguably may still have existed following the All Saints Waccamaw decision.) And South Carolina religious corporations are free to amend their governing documents — including a complete change in their charitable purpose — as long as they comply with the formalities required by South Carolina law.

To this observer, it seemed as though the Justices had not discussed the case with each other beforehand. And it also looked as though the Chief Justice had taken on the responsibility of writing an opinion in the case — since she was the one most weighed down with case files and briefs. But whether her opinion will be the majority one remains to be seen. I believe she has the confidence of Justice Beatty, who followed her before. And she may have Judge Kittredge in her camp, as well.

But both he and Justice Costa Pleicones seemed to have difficulty following the ins and outs of the arguments — thanks to the constant interjections by Justice Hearn on behalf of the Church of which she is an active member. She practically monopolized the argument with long speeches (not questions) that would have sounded more appropriate had they come from ECUSA’s attorneys. The resulting final impression of Mark Lawrence and his Diocese having had a rough time in the Court is almost entirely, in my estimation, due to the attempts by Justice Hearn to derail the case by returning South Carolina to the days of deference, as ECUSA argued in its briefs.

Whether her unprofessional and entirely partial tactics will succeed is a question that will have to await the Court’s opinion, which could be months away. I shall have much more to say about those tactics in my following post.

Read it all.

Heading up the panel hearing the case will be Chief Justice Jean Hoefer Toal, who in that same position authored the Court’s unanimous 2009 opinion in the case of All Saints Waccamaw v. Episcopal Church, which I quoted and analyzed in this earlier post. Also serving on the panel will be Associate Justice Donald W. Beatty, who joined in the Waccamaw opinion. It is not known yet whether any of the other sitting Justices have recused themselves (two of them did so in the Waccamaw case); the fifth, Justice Kaye Hearn, assumed her seat on the Court after the arguments in the 2009 case.

Chief Justice Toal, whose religion is Roman Catholic, is no stranger to the concept of what makes a church “hierarchical.” In her opinion in the Waccamaw case, Justice Toal noted that South Carolina Courts are required to resolve church property disputes using “neutral principles of law” whenever possible. They may defer only to “the highest religious judicatories” when they have properly decided an issue “as to religious law, principle, doctrine, discipline, custom, and administration.” It should be noted that in her written opinion filed last January, Circuit Judge Diane Goodstein expressly found that there were no such bodies in the Episcopal Church (USA) that had outside jurisdiction over either the Diocese or any of its parishes.

Read it all.

U.S. Judge Delays Hearing on Episcopal Church Appeal Demanding Identity of Diocese of South Carolina, Pending State Court Decision

Judge refuses to confuse the rightful ownership issue as it proceeds to state Supreme Court this week

CHARLESTON, SC (Sept. 21, 2015) ”“ A federal judge handed the Episcopal Church (TEC) and its local subsidiary, the Episcopal Church in South Carolina (TECSC) a setback today when he refused the request to reconsider a decision about who rightfully owns the Diocese of South Carolina identity, trademarks and other intellectual property.

Bishop Charles G. vonRosenberg, who heads TECSC, has repeatedly alleged that the property and identity of the Diocese of South Carolina actually belongs to the Episcopal Church and was wrongfully taken by Bishop Mark Lawrence, who heads the Diocese which left TEC in 2012.
Federal District Judge C. Weston Houck originally dismissed vonRosenberg’s claim in 2013, recognizing that the essential issues of the Diocese’s identity would be resolved by the South Carolina courts. Last February, South Carolina Circuit Judge Diane Goodstein ruled the Diocese of South Carolina was, in fact, free to leave the denomination and keep its property and assets. TEC appealed that decision and the appeal will be heard by the South Carolina Supreme Court on Sept. 23.

Meanwhile, TEC appealed Judge Houck’s decision to the U.S. Court of Appeals for the Fourth Circuit. The appellate panel ordered Judge Houck to reconsider his earlier dismissal of the case using a different legal standard for that decision. The panel decision was largely procedural. It did not issue any opinions about the merits of TEC’s claim.

In today’s decision to delay any further hearings pending the outcome of a South Carolina Supreme Court decision about the case Judge Houck wrote, “Regardless of the [state Supreme Court’s] ultimate decision, Bishop vonRosenberg’s rights will necessarily be addressed and will be adequately protected in the state court action.”

He referred to the Supreme Court hearing, scheduled for Sept. 23, as “the parallel state court action.”

“Basically, the Judge is saying that if the Supreme Court upholds the state ruling the case will be dismissed,” said the Rev. Jim Lewis, Canon to Bishop Lawrence.

Houck applied the Colorado River Abstention doctrine to conclude that the factors in this case presented the “exceptional circumstances” to warrant abstention.

Gracious Lord, we pray that your will would be done through this trial. May we want what you desire. Speak your words alone through Alan Runyan and the other attorneys who represent us. May the courtroom be filled with the pleasant aroma of Christ, and at the end of the day, protect this Diocese and its parishes that we might bring the redemptive power of the biblical gospel to the South Carolina low country and beyond. Let not our fear of outcomes tarnish our joy or deter us from the mission you have given us. Teach us to bless and never curse those on the other side of this conflict. Thy will be done on earth as it is in heaven. And make us victorious over-comers wherever this road leads. For we ask it all in Jesus’ Name. Amen.

It is by God’s grace we have come this far. It is his grace that will bring us home.
On Wednesday, September 23rd, at 10:30 a.m., the Diocese of South Carolina will enter into oral arguments before the South Carolina Supreme Court. The Court has agreed to hear TEC’s appeal of the trial court ruling in our favor that was announced by Judge Goodstein on February 3rd of this year. In that order, Judge Goodstein ruled that the Diocese and its parishes:

Ӣ Are the owners of their real, personal and intellectual property.
Ӣ TEC has no legal, beneficial or equitable interest in any of those properties.
Ӣ TEC and its officers and agents were permanently enjoined from using our names or symbols.
Ӣ All the TEC counterclaims in the trial were dismissed with prejudice.
Ӭ
It is our prayerful hope that the state Supreme Court justices will uphold this decision in its entirety….

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The hearing of the appeal by TEC and its local agents against the Diocese of South Carolina starts today at 10:30 am Eastern Time.

Prayer for the Diocese of South Carolina posted on Wednesday September 23rd

We ponder the mystery that today’s court hearing for the South Carolina dioceses is on Yom Kippur, “the great day of covering over,”
and we honor Jesus, who paid the ransom for our sins with His precious blood.
Forgive us our trespasses as we forgive those who trespass against us.
We appeal to heaven and humbly ask for an alignment of this court case with Your perfect justice and righteousness.
We bless the South Carolina Court and Justices, the lawyers on both sides of this case, and the churches they represent.
May Your name be honored in all of the proceedings.
Your kingdom come to this hearing, Lord.
Your will be done as it is in heaven. Amen.

Please pray it all and there are more prayers for South Carolina here

Prayer for the Diocese of South Carolina posted on Monday September 21st

For the LORD’s portion is his people, Jacob his allotted inheritance.
You are worthy, our Lord and God, to receive glory and honor and power, for you created all things, and by your will they were created and have their being.
In a desert land he found him, in a barren and howling waste.
Worthy is the Lamb that was slain to receive glory.
He shielded him and cared for him; he guarded him as the apple of his eye,
Worthy is the Lamb that was slain to receive power.
like an eagle that stirs up its nest and hovers over its young, that spreads its wings to catch them and carries them on its pinions.
Worthy is the Lamb that was slain to receive strength.
The LORD alone led him; no foreign god was with him.
Worthy is the Lamb that was slain to receive honor.
He made him ride on the heights of the land and fed him with the fruit of the fields.
Worthy is the Lamb that was slain to receive riches.
He nourished him with honey from the rock, and with oil from the flinty crag,
Worthy is the Lamb that was slain to receive wisdom.
with curds and milk from herd and flock and with fattened lambs and goats, with choice rams of Bashan and the finest kernels of wheat. You drank the foaming blood of the grape.
Worthy is the Lamb that was slain to receive blessings.
Deuteronomy 32:9-14, Revelation 4:11, 5:12

Our Father in heaven,
We loose these songs of Moses and the angels over the courtroom hearings in the South Carolina litigation. Amen.

Please pray it all and there are more prayers for South Carolina here

Prayer for the Diocese of South Carolina posted on Monday September 14th

Ezra 6:22 (ESV)
And they kept the Feast of Unleavened Bread seven days with joy, for the Lord had made them joyful and had turned the heart of the king of Assyria to them, so that he aided them in the work of the house of God, the God of Israel.

Our Father in heaven,
We humbly request that You turn the heart of the judges to the Diocese of South Carolina in the upcoming litigation and aid the Diocese in the work of the house of God. Amen.

Please pray it all and there are more prayers for South Carolina here

Prayer for the Diocese of South Carolina posted on Monday September 7th
Psalm 22:3 (ESV)
Yet you are holy,
enthroned on the praises of Israel.

Revelation 4:6,8 (ESV)
And before the throne there was as it were a sea of glass, like crystal. And around the throne, on each side of the throne, are four living creatures . . . And the four living creatures, each of them with six wings, are full of eyes all around and within, and day and night they never cease to say,

Our Father in heaven,

Enthroned upon the praises of Israel, enthroned upon the praises of the four living creatures, enthroned upon the praises of those who have been adopted as sons and daughters through Jesus Christ,

Holy is Your name.

We thank You for the blessings that You bestow upon the Diocese of South Carolina each and every day. You are her Provider, her Protector, and her Defender. You are her Good Shepherd.

The Diocese of South Carolina shall not want. You make her lie down in green pastures. You love her with a love that is beyond measure. You know her needs, and You sustain her, even in this season of litigation.

You lead her beside still waters. All of her fountains of joy are in You. You restore her soul.

You lead her in paths of righteousness for Your name’s sake. Your word is a lamp to her feet and a light to her path. Through Your precepts, You give her understanding.

Even though she walks through a valley of litigation, You are with her. She will fear no evil, for You guide her continually and satisfy her desire in scorched places and make her strong. Your rod and Your staff, they comfort her.

You prepare a table before her in the presence of her enemies. She delights in wine and milk without money, without price! She listens diligently to You and eats what is good. She delights herself in Your provision, and You anoint her head with the oil of gladness.

Her cup overflows, and she shall be like a watered garden, like a spring of water, whose waters do not fail. Surely goodness and mercy shall follow her, and she shall dwell in the house of the Lord forever. Amen.

Please pray it all and there are more prayers for South Carolina here

The upcoming hearing of the appeal by TEC and its local agents against the first instance decision in favor of the Diocese of South Carolina is due to start on September 23rd. T19 will be posting prayers for the Diocese of South Carolina and its legal team as well as for the Court, judges and all involved as the hearing date approaches and encourages intercession for the people of God and His mission in South Carolina during this time.
1 Chronicles 27:25 (AMP)
Over the king’s treasuries was Azmaveth son of Adiel; and over the treasuries in the country, cities, villages, and towers or forts was Jonathan son of Uzziah;

Azmaveth”“strong as death
Adiel”“the witness of the Lord
Jonathan”“Yahweh has given
Uzziah”“Yahweh has helped

Our Father in heaven,
Your witness, Your help, Your gifts are the treasures of the Diocese of South Carolina.
We thank You for the bounty of Your treasuries.
You are the Lord of life, our Creator, and You overcome death.
Be present to the Diocese of South Carolina during the ongoing litigation, we pray.
Amen.

Please pray it all and there are more prayers for South Carolina here

From here:

The Protestant Episcopal Church in the Diocese of South Carolina; The Trustees of The Protestant Episcopal Church in South Carolina, a South Carolina Corporate Body; All Saints Protestant Episcopal Church, Inc.; Christ St. Paul’s Episcopal Church; Christ the King, Waccamaw; Church of The Cross, Inc. And Church of the Cross Declaration of Trust; Church of The Holy Comforter; Church of the Redeemer; Holy Trinity Episcopal Church; Saint Luke’s Church, Hilton Head; St. Matthews Church; St. Andrews Church-Mt. Pleasant Land Trust; St. Bartholomews Episcopal Church; St. David’s Church; St. James’ Church, James Island, S.C.; St. John’s Episcopal Church of Florence, S.C.; St. Matthias Episcopal Church, Inc.; St. Paul’s Episcopal Church of Bennettsville, Inc.;
St. Paul’s Episcopal Church of Conway; The Church of St. Luke and St. Paul, Radcliffeboro; The Church of Our Saviour of the Diocese of South Carolina; The Church of the Epiphany (Episcopal); The Church of the Good Shepherd, Charleston, SC; The Church of The Holy Cross; The Church of The Resurrection, Surfside; The Protestant Episcopal Church of The Parish of Saint Philip, in Charleston, in the State of South Carolina; The Protestant Episcopal Church, The Parish of Saint Michael, in Charleston, in the State of South Carolina and St. Michael’s Church Declaration of Trust; The Vestry and Church Wardens of St. Jude’s Church of Walterboro; The Vestry and Church Wardens of The Episcopal Church of The Parish of Prince George Winyah; The Vestry and Church Wardens of The Church of The Parish of St. Helena and The Parish Church of St. Helena Trust; The Vestry and Church Wardens of The Parish of St. Matthew; The Vestry and Wardens of St. Paul’s Church, Summerville; Trinity Church of Myrtle Beach; Trinity Episcopal Church; Trinity Episcopal Church, Pinopolis; Vestry and Church Wardens of the Episcopal Church of The Parish of Christ Church; Vestry and Church Wardens of The Episcopal Church of the Parish of St. John’s, Charleston County, The Vestries and Churchwardens of The Parish of St. Andrews, Respondents. v. The Episcopal Church (a/k/a The Protestant Episcopal Church in the United States of America) and The Episcopal Church in South Carolina, Appellants.
Attorneys: Allan R. Holmes, Sr. and Timothy O. Lewis, both of Gibbs & Holmes, of Charleston, David Booth Beers and Mary E. Kostel, both of Goodwin Procter, LLP, of Washington, DC, Blake A. Hewitt and John S. Nichols, both of Bluestein Nichols Thompson & Delgado, of Columbia, Thomas S. Tisdale and Jason S. Smith, both of Hellman Yates & Tisdale, of Charleston and R. Walker Humphrey, II, of Waters & Kraus, of Dallas, Texas, for Appellants. C. Alan Runyan and Andrew S. Platte, both of Speights & Runyan, of Beaufort, Henrietta U. Golding and Amanda Bailey, both of McNair Law Firm, of Myrtle Beach, C. Mitchell Brown, of Nelson, Mullins, Riley & Scarborough, of Columbia, Charles H. Williams, of Williams & Williams, of Orangeburg, David Cox, of Barnwell Whaley Patterson & Helms, of Charleston, Thomas C. Davis, of Harvey & Battey, of Beaufort, Harry Easterling, Jr., of Bennettsville, G. Mark Phillips, of Nelson, Mullins, Riley & Scarborough, of Charleston, W. Foster Gaillard and Henry Grimball, both of Womble, Carlyle, Sandridge & Rice, of Charleston, Keith McCarty, of McCarty Law Firm, of Charleston, William A. Scott, of Pedersen & Scott, of Charleston, Mark Evans, of Charleston, David B. Marvel and David L. DeVane, both of Prenner Marvel, of Charleston, John Furman Wall, III, of Mt. Pleasant, Allan P. Sloan, III and Joseph C. Wilson, IV, both of Pierce, Herns, Sloan & Wilson, of Charleston, Edward P. Guerard, Jr., of Mt. Pleasant, C. Pierce Campbell, of Turner, Padget, Graham & Laney, of Florence, Robert R. Horger, of Horger, Barnwell & Reid, of Orangeburg, Saunders M. Bridges, of Aiken Bridges Elliott Tyler & Saleeby, of Florence, Lawrence B. Orr, of Orr Elmore & Ervin, of Florence, Francis M. Mack, of St. Matthews, Robert S. Shelton, of The Bellamy Law Firm, of Myrtle Beach, William A. Bryan, of Bryan & Haar, of Surfside Beach, Harry Oxner, of Oxner & Stacy, of Georgetown, Susan MacDonald and Jim Lehman, both of Nelson, Mullins, Riley & Scarborough, of Myrtle Beach, Brandt Shelbourne, of Shelbourne Law Firm, of Summerville, Stephen S. McKenzie, of Coffey, Chandler & Kent, of Manning, John B. Williams, of Williams & Hulst, of Moncks Corner, George J. Kefalos and Oana D. Johnson, both of George J. Kefalos, P.A., of Charleston, Stephen Spitz, of Charleston and Thornwell F. Sowell, III and Bess J. Durant, both of Sowell Gray Stepp & Lafitte, LLC, of Columbia, for Respondents.

TEC’s essential legal arguments can be distilled down to one proposition: TEC claims to be a “hierarchical” church, with complete, top-down control of the entire organization.

“There are multiple and significant problems with these assertions in this case as detailed in this brief,” said the Rev. Jim Lewis, Canon to the Ordinary. “First, TEC’s organizational structure is irrelevant to this case. The U.S. Supreme Court has ruled clearly and repeatedly that in property matters of this sort courts not only can, but should decide them based upon ‘neutral principles of law’ if that can resolve all the issues. That means questions of ownership can be settled on the same basis as in any secular case.”

An example of this point is the 2009 decision of the All Saints case by the South Carolina Supreme Court. As in any litigation involving churches, doctrinal issues are often involved. However, if the court can decide the matter applying the customary laws of property ownership, it may do so. That occurred in All Saints.

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and see also Diocese of South Carolina’s PR on TEC’s ”˜Spurious’ Offer to Settle

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