U.S. District Court Judge Weston C. Houck today dismissed a federal trademark lawsuit filed by Episcopal Church Bishop Charles vonRosenberg against Bishop of the Diocese of South Carolina Mark Lawrence.

The decision acknowledges the authority of the Circuit Court of South Carolina to decide the rightful owner of the names, symbols and property of the Diocese of South Carolina.

“The sum of all disputes and conflicts arising in the wake of the Diocese’s estrangement from [the Episcopal Church] are more appropriately before, and will more comprehensively be resolved, in South Carolina state court,” stated Judge Houck in the order dismissing Bishop vonRosenberg’s lawsuit and denying his motion for an injunction to prohibit Bishop Lawrence from acting as bishop of the Diocese of South Carolina.

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{The new TEC Diocese in South Carolina]…announced it will depose over 100 clergy loyal to the Rt. Rev. Mark Lawrence and the… Episcopal Diocese of South Carolina. On 10 July 2013 the faction loyal to the national Episcopal Church published a list of clergy whom it said remained in good standing with the Episcopal Church for having expressed its loyalty to their leadership. Those who had not given their allegiance to the minority faction would be removed from the ordained ministry….

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As his counterpart in Texas saw the matter, so might Judge Houck: why bother to get into the messy details of a federal trademark action if the earlier case filed in State court will dispose of the matter? He indicated by a question that he was considering staying the federal action pending the outcome of the proceedings in State court. He said he would have a ruling out in “a week or so.”

Meanwhile, the State court case begun by the Rt. Rev. Mark Lawrence and his Episcopal Diocese of South Carolina is moving forward, now that it has been remanded from Judge Houck’s court. The attorneys for all parties were in court on July 11 to discuss a schedule for the case with First Circuit Judge Diane Goodstein, who issued her order eight days later. The order ensures that the case will not dawdle, but will be ready for trial by the summer of next year.

ECUSA is seeking to add additional defendants to its counterclaim, namely, the individual trustees and members of the diocesan standing committee (as a prelude to naming the rectors and vestry members of 37 individual parishes — some 500 people in all — following the same punitive strategy it has tried in other cases). The court ordered that any additional response Bishop Lawrence’s attorneys wanted to make to that motion be filed by July 22, with ECUSA’s reply due 10 days later. Those papers have now been filed, and the parties await Judge Goodstein’s ruling on the propriety of trying to add any individual defendants to the case.

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The Rev. vonRosenberg presently heads the Episcopal Church in South Carolina, the name given to those Episcopalians in the Diocese who want to remain with the national church. VonRosenberg has sued Lawrence over usage of the title of bishop, arguing that Lawrence renounced this title when he opted to leave The Episcopal Church in January.

After hearing about an hour of arguments, Houck stated that he should have a decision as to the fate of the suit sometime in the next seven to ten days.

Joy Hunter, director of Communications for the Diocese of South Carolina, told The Christian Post that Lawrence argued for the suit to be dismissed. “In his Motion, Bishop Lawrence asked that Judge Houck either dismiss the federal lawsuit, or stay it until the pending state court litigation is resolved,” said Hunter.

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On August 8, U.S. District Court Judge Weston C. Houck heard arguments on Bishop Lawrence’s motion to dismiss a federal lawsuit filed by Bishop Charles vonRosenberg….

Judge Houck indicated that he hopes to rule on the motion shortly. He may dismiss the case, stay it or allow it to move forward in federal court.

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For the second time in recent months, U.S. District Judge C. Weston Houck is weighing whether issues arising from the acrimonious Episcopal schism in eastern South Carolina belong in federal court.

As two bishops sat with their attorneys on either side of his Charleston courtroom, Houck heard about an hour of arguments Thursday on one bishop’s request for an injunction against the other.

Charles vonRosenberg, the bishop of parishes remaining with the national Episcopal Church, wants the court to block Mark Lawrence, the bishop of churches that left last year, from using the name and the symbols of the Episcopal Diocese of South Carolina.

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Issues arising from the Episcopal schism in eastern South Carolina are going back before a federal judge.

U.S. District Judge C. Weston Houck holds a hearing in Charleston on Thursday on a motion filed by a churches remaining with the national church. It asks that only those churches be allowed to use the name and symbols of the Episcopal Diocese of South Carolina.

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Bishop Charles vonRosenberg was enjoying his retirement, taking some strokes off his golf handicap and spending time with his six grandchildren, when the Episcopal Church in eastern South Carolina was rent by schism.

Now, instead of spending carefree days on the state’s coast after 37 years of service to the church, the former bishop of east Tennessee finds himself again ministering to individuals and congregations remaining with the national church and dealing with lawsuits resulting from the South Carolina split.

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To compare the mentality of a brother bishop to school shooters (see here), or to call him and presumably those close to him “petty deciders or wolves who masquerade as sheep” is incredibly inappropriate for any Christian, not to mention bizarre. I truly have never before heard or read such a spiteful and hate-fueled speech on either side of our present unpleasantness. This type of hateful and over the top language is even worse coming from a leader who claims to speak for the “national Church” and all Episcopalians. Let me be clear: I am an Episcopal priest and the Presiding Bishop does not speak for me. I have no delusion that I share in any ownership of anything outside of my parish and my diocese. The idea that one person, even if one agrees with the present incumbent, can speak for all Episcopalians is sheer lunacy.

To be fair, this centralization of power and influence certainly did not start with the present Presiding Bishop, but we do well to consider the state in which we find ourselves. Power corrupts, and the Presiding Bishop rightly notes that when one figure assumes the power it often leads to abuse, tyranny and corruption. She apparently fails to see how this truth has been demonstrated in her term as Presiding Bishop. Fast tracking bishops to “renounce their orders” rather than letting the House of Bishops speak, inhibiting without the consent of the three most senior active bishops (which the new Title IV conveniently does not require), and setting up new dioceses (which TEC has every right to do) while violating the canons of TEC all point to an office that has overgrown its canonical bounds and is running unchecked.

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Jesse Zink’s “Why Provinces Matter” and the responses from William G. Witt and Colin Podmore [TLC, May 26] illustrate the range of opinions on what South Carolina’s ultimate ecclesial structure should be, from standalone province to joining the Anglican Church in North America. One thing in common to all of the initial essays, however, was the recognition that any decision on ultimate structure might still be some time away.

This recognition has also been the starting point of the Anglican Communion Institute in our work on this issue in the last several months. We believe that South Carolina’s current status does not necessarily present a problem in need of immediate resolution, but rather inheres in the nature of this dispute. Taking our cue both from Bishop Mark Lawrence and the Instruments of Communion, we have proposed that the guiding principle of the next season for South Carolina is “provisionality.” During this period ultimate decisions are deferred precisely because they are premature. Bishop Lawrence has stressed this on many occasions. The rupture with the Episcopal Church is too fresh with many unresolved issues; the ensuing litigation is only beginning, not nearing an end. This is not the time to make such a momentous decision as that regarding the ultimate future of this diocese, which predates the formation of the Episcopal Church.

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In the… [crucial] section of his order, Judge Houck sets out the law that is applicable to these various claims and assertions (“Standard of Review”). Citing another 4th Circuit case which is binding upon him, Judge Houck writes: “Thus, ‘(i)f a plaintiff can establish, without the resolution of an issue of federal law, all of the essential elements of his state law claim, then the claim does not necessarily depend on a question of federal law.” To determine this question, the U.S. Supreme Court requires a federal court to which a state-law case has been removed to analyze whether or not the federal claim involved is “substantial”, or is merely an incident to the dispute:

Under the substantial federal question doctrine, “federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” … If the defendant fails to demonstrate all four of these elements, removal is improper under this doctrine.

Now Judge Houck turns to a detailed analysis of the defendants’ arguments to see how they fare under each of the four prongs of this test. He preliminarily disposes of the defendants’ claims concerning the Lanham (federal trademark) Act, and observes that the plaintiffs had the absolute right to base their complaint upon State trademark law only. Thus the fact that there may be federal-law claims assertable in addition to the state-law ones pled in the complaint is irrelevant to the analysis.

And in a few thoroughly researched and well-written pages, Judge Houck now demonstrates how insubstantial are the defendants’ federal-law arguments. He takes each of the four prongs one by one, and shows how the defendants’ arguments fail to satisfy any of them. ((That is why Judge Houck’s order would almost certainly be upheld if defendants were able to appeal from it (see below). Failing four out of four grounds of the test does not even make this a close case….)

Read it all and please note that there is a link provded to the full document from the Judge for those of you interested in such things–KSH.

U.S. District Judge C. Weston Houck has ruled that the legal fight over names and property between two factions of South Carolina Episcopalians is a matter for state court.

Houck, who heard arguments last week and issued an order Monday, ruled that the First Amendment is not a main point of contention and that hearing the case in federal court would disrupt the balance between state and federal courts.

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Jim Lewis, Canon to Diocese Bishop Mark Lawrence, said the Diocese is very pleased with the decision since the “issues involved are essentially those of legal identity and are wholly determined by state law, so the most appropriate place to settle is clearly in state court, where we first took the matter.”

Thomas S. Tisdale, Jr., Chancellor of TECinSC said the group is disappointed with the result, but “we are confident in our legal position going forward.”

A separate federal lawsuit, filed by Bishop Charles G. von Rosenberg, who heads TECinSC, is still before Judge Houck. That suit asks the court to find that only Bishop von Rosenberg, as The Episcopal Church’s recognized bishop, should control the name and marks of the diocese.

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U.S. District Judge C. Weston Houck today remanded the case to the South Carolina Circuit Court. In informing the parties, Judge Houck said,

“If this Court determined that a case may be removed based on federal question jurisdiction whenever a defendant attributed a federal constitutional issue not alleged or advanced in a well-pleaded complaint, federal question jurisdiction could potentially be expanded to all cases containing tacit First Amendment issues.”

Diocesan officials expressed their gratitude for the decision.

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Diocesan officials expressed their gratitude for the decision.

“We are very pleased that Judge Houck remanded the case to state court,” said Jim Lewis, Canon to Bishop Lawrence. “The issues involved are essentially those of legal identity and are wholly determined by state law, so the most appropriate place to settle is clearly in state court, where we first took the matter.”

With the case remanded, it returns to the court of South Carolina Circuit Judge Dianne S. Goodstein.

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Essentially, what is at issue on the motion to remand is whether or not the Court can fairly read the Lawrence State court complaint to state a “claim or controversy” under the laws of the United States, so that the case could have been brought initially in the federal Court. One would think that a complaint based only upon State trademark law would be left to the State courts to decide, but ECUSA and its Potemkin diocese saw things differently. ECUSA has not done well in the South Carolina State courts, and so they wanted desperately to have the federal courts take jurisdiction of the dispute over who owns the rights to the name “Episcopal Diocese of South Carolina.”

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Attorneys for the diocese asked Houck on Thursday to move the case back into state court.

“Under federal law, there is no basis for federal jurisdiction,” attorney Alan Runyon said. He said property issues and the use of the diocesan name can be resolved under state law and don’t raise any constitutional issues.

He argued that under the South Carolina Nonprofit Corporation Act, a nonprofit’s membership in a large group is voluntary and it can end the association if it wants. “That doesn’t change because they are religious organizations,” he said.

But Matthew McGill, representing the diocese of parishes remaining with the national church, said the case concerns the First Amendment protections of freedom of religion.

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We are grateful to the Very Rev. John Barr who has written the following note and prayer. We commend them both to you.

Today, June 6, attorneys representing the Diocese of South Carolina will go before a federal judge to request our case be moved back to its original venue in the South Carolina state court system. Our sense is that this hearing might well be a critical crossroads. We believe that the original venue of state court””where the Diocese and its parishes have sought a simple declaratory judgment as to whether we have title to our own property and whether we are the Diocese of South Carolina””is the true venue where the question should be settled.
Ultimately, of course, God owns the property. The gospel never changes; his promises are indestructible; and our high calling as Christ’s disciples is bright and undiminished. We see through a glass darkly, and God’s perfect will for us is sovereign, but we are asking you to pray for the return of this litigation to state court. No doubt, God will work his purposes out whatever the legal venue. The apostle Paul reminds us, “I have learned to be content in all circumstances”¦”

Gracious Lord, we pray that your will would be done on June 6. 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.

Attorneys representing separate Episcopal churches in eastern South Carolina are facing off in federal court.

The matter before U.S. District Judge C. Weston Houck on Thursday is whether issues resulting from the split should be heard in state or federal court. One of the issues is title to an estimated half billion dollars in church property.

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Church Pension Group issued a statement Tuesday saying it is trying to ensure that clergy and employees in parishes that have left The Episcopal Church have access to their funds, in accordance with federal laws.

“In doing so, we are following protocols required by the Internal Revenue Code to avoid any adverse consequences for the participants in the plans,” the statement said. “We expect to complete this process shortly. In the meantime, all funds remain invested in the options selected by these employees, and all accounts are fully viewable on (a) website.”

[Canon Jim] Lewis said he has consulted lawyers for the diocese and is unaware of any legal issues precluding employees from rolling over their plans. He believes that preventing employees from doing so could be illegal.

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Jesse Zink is therefore quite right: the Diocese of South Carolina cannot properly remain independent indefinitely. To be faithful not just to Anglican but more importantly to catholic ecclesiology, its bishops should belong to a province.

Once litigation in the secular courts is concluded, this could be achieved in several ways. There could be reconciliation with the Episcopal Church’s national leadership ”” we should always pray for reconciliation leading to the visible unity of the Church, however remote human sinfulness may make that prospect seem. Or the diocese could join the Anglican Church in North America or (less ideally) a more distant Anglican province.

Alternatively, it could follow the Sudan model, to which Zink points, and become a province by dividing into four dioceses. Half of one U.S. state, with fewer than 80 congregations and 30,000 baptized members, might be thought rather small to form a separate province. However, in 1998 the geographically and numerically much smaller Diocese of Hong Kong and Macao was divided into three dioceses (with only 38 congregations between them) and a “missionary area.” This enabled it to become a freestanding province of the Anglican Communion instead of joining the Church of the Province of South East Asia, which was formed in 1996 by the more conservative extra-provincial dioceses with which it had previously been associated.

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…there is no reason to presume that South Carolina’s declaration of itself as an extra-provincial diocese is more than an ad hoc solution to an immediate crisis. To speculate about the permanence of this situation or about which Anglican entity South Carolina might align itself with is equally a case of playing “Cheat the Prophet.”

The issue that is little addressed in such discussions is the theological nature of episcopacy. What does it mean to be a bishop? Standard Church histories make clear that the office of bishop is about continuity, specifically continuity between the apostolic Church and the catholic Church of the second century. To be a bishop is to recognize and submit oneself to the canonical authority of the Old and New Testaments as the faithful witness of prophets and apostles to the triune God revealed in the history of Israel, the saving work of Jesus Christ, and the Church as summarized in the Rule of Faith.

Whether bishops of the Episcopal Church have acted in continuity with this apostolic Church in proceeding to approve of same-sex unions is precisely the issue that is splitting the Anglican Communion. There are, of course, issues of universality involved as well. A bishop is a bishop not just for a local diocese but for the whole Church. In the long run, an extra-provincial diocese accountable only to itself is problematic. But then again, a national church that refuses to be accountable to an international communion has brought the Anglican Communion to its current crisis, even as a bishop who does not understand his chief role to keep intact the apostolic witness has rather missed the point of being a bishop.

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As in Scripture, so also in ecclesiology: the pernicious hermeneutic of self-justification remains a constant temptation. This is regrettable. Ecclesiology is not a minor administrative matter that can be casually tossed aside. It is part of the core good news Christians have to proclaim. In a globalizing world that is dominated by discord and fracture, the Church makes the counter-cultural claim that in baptism we come to belong to the body of Christ. No other entity is shaped by a common willingness to die daily with Christ and be raised with him who is the author of true and abundant life. We believe we belong, and that this is good news. Anglicans work out the implications of this radical claim in the constellation of parishes, dioceses, provinces, networks, and institutions that comprise our global Communion.

The dispute in South Carolina could provide an opportunity ”” yet unrealized ”” to think seriously about the ecclesiological and theological convictions underlying Anglican churches. On that note, we might welcome the recent call in these pages for a retreat on the topic, organized by seminary deans. Prayerfully and reverently, one hopes, Anglicans may yet learn together to honor our theological convictions in our ecclesiological structures.

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I would especially like to draw your attention to the article entitled “St. Christopher Celebrating 75th Diamond Anniversary on June 22-24–“read it all (pdf).

8. Thus, up through the end of February 2013, all proceedings to date had taken place in the Circuit Court of Dorchester County, South Carolina. But on March 5, everything changed. On that date, Bishop vonRosenberg made the litigation personal, by instituting a lawsuit in his own name in the federal District Court of South Carolina, in Charleston, against Bishop Lawrence as an individual defendant. The lawsuit claimed that Bishop Lawrence was violating the federal trademark Act (“Lanham Act”), by using what Bishop vonRosenberg claimed were marks and names that belonged to his “Protestant Episcopal Church in the Diocese of South Carolina.” (Note that, despite his counsel’s having consented to the entry of an injunction against Bishop vonRosenberg and others which forbade them from using that name in South Carolina, Bishop vonRosenberg blatantly used the name in his pleadings in the federal District Court.)

9. Two days later, on March 7, Bishop vonRosenberg’s attorneys filed and served a motion for a preliminary injunction, supported by voluminous affidavits, in the federal court Lanham Act lawsuit. This motion sought the issuance of an order from the federal court which would do exactly the reverse of what Judge Goodstein had already ordered — without objection from ECUSA!

10. Bishop vonRosenberg’s moving papers, as you can see, mentioned the state court injunction only in these words, and did not attach a copy of the order itself

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While a number of lawsuits between dioceses and parishes have gone to state supreme courts, with the diocese prevailing in many of them, in South Carolina the state supreme court ruled the other way and held the church’s national property rules, called the Dennis Canon, were of no legal effect in South Carolina. In other words, if a parish has clear title to its property in South Carolina, it can take it with it if it leaves its diocese or denomination. Omitting this crucial legal precedent in the story was most unfortunate.

It should also be added that the appellate courts have not adjudicated the issue of whether a diocese may withdraw from the national church. Attorneys for the national church have argued the legal precedents from outside South Carolina governing the relationship of the parish to the diocese should govern the relationship of the diocese to the national church. The diocese’s lawyers in South Carolina have argued this relationship is not comparable.

One might also add, contrary to the assertion in the article about declining membership, that until these lawsuits erupted the Episcopal Diocese of South Carolina was one of the few Episcopal diocese to see a growth in membership over the past decade.

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The Rev. Canon Jim Lewis of the South Carolina Diocese told The Christian Post that he personally received one of vonRosenberg’s letters and took issue with whom the letters were sent to.

“The Episcopal Church has every right to update its roster of clergy. However, it is disturbing that letters were sent to retired clergy, many of whom have no need or interest to be embroiled in these matters,” said Lewis.

“In fact, my first notice of these letters came through a phone call from a medically disabled, retired member of the clergy, who was concerned about losing his benefits.”

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