When questioned about the nature of the advice which Justice Blackmun gave, the Presiding Bishop referred this reporter to the following passage in the decision authored by Justice Blackmun in the 1979 Supreme Court case of Jones v. Wolf:
Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.She then explained that, relying on this legal advice, Bishop Walter Dennis of New York had introduced the text of the Dennis Canon in the last days of General Convention 1979, and that by adopting the Canon, the Church had done exactly what Justice Blackmun had advised it to do: the Church's canons were "made to recite an express trust in our favor." "But now," she continued, "the South Carolina Supreme Court has said that our Canon didn't do the trick. As a result, the Church has lost its claim to property worth around $5 million, and has incurred several million dollars worth of legal fees trying to enforce the Canon in South Carolina since we were first sued for asserting a claim there ten years ago."
A reporter for Church Legal Times present at the announcement put this question to the Presiding Bishop: "But did the Church actually follow Justice Blackmun's advice? He said that the constitution of the general church could be made to recite an express trust, and you just said that it was the canons which were amended, not the Constitution." The Presiding Bishop replied: "In our view, it doesn't make any difference -- other than that it would have taken the Church four years to amend the Constitution, while we were able to change the Canons in just a few days, without anyone even noticing it. All dioceses of the Church are subject to the canons just as much as they are to the Constitution, so it comes down to the same thing. We followed Justice Blackmun's advice, all right, and now we find out that it wasn't any good."
When contacted, a spokesperson for the Blackmun family said they had heard about a lawsuit, but had not yet been served with any papers. The spokesperson said that the family, however, doubted that the Justice's estate could be found liable for any malpractice, because he did not receive any legal fees for the advice he gave. "The advice he gave in that opinion was free," the spokesperson said. "No charge -- zip -- nada. And it is common knowledge that legal advice is worth what you pay for it."
Asked to respond, a spokesperson for the Presiding Bishop replied: "That's not true that the advice Justice Blackmun gave was 'free.' He was paid a handsome salary by all of us taxpayers to sit on that bench and dispense legal advice." When it was pointed out that the Church, as an exempt organization, paid no taxes, the spokesperson continued: "The Church may not have paid any taxes, but Bishop Dennis did, and Bishop Sauls did, and so did the other Property Task Force members -- they all relied on the advice he gave in the Jones opinion. So we maintain that his estate is definitely liable."
Legal commentators across the Web were taken aback by the South Carolina ruling. Said one renowned scholar (who maintained anonymity, however, for this post):
The U[nited] S[tates] S[upreme] C[ourt] ruling [in Jones v. Wolf] specifically states and advises that "the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form". The Dennis canon was adopted to do exactly this. Guess the S[outh] C[arolina] Supremes missed that bit.Another legal commentator opined that the South Carolina decision was no "blockbuster":
The case . . . limits its discussion to the Dennis Canon to a short paragraph:When asked why the giving in 1903 of a quitclaim deed by the Diocese would block the Episcopal Church (USA) from asserting its trust in 1979 -- when it, too, did not have any interest in the property before that date -- the commentator indicated further research would be in order.
"It is an axiomatic principle of law that a person or entity must hold title to property in order to declare that it is held in trust for the benefit of another or transfer legal title to one person for the benefit of another. The Diocese did not, at the time it recorded the 2000 Notice, have any interest in the congregation’s property. Therefore, the recordation of the 2000 Notice could not have created a trust over the property."
In other words, where the Diocese transferred its interest in the property in 1903, it could not create a trust in 1987,or enforce it in 2000.
I'm not sure that decision is right, in view of the canon and overall polity, but it's not a blockbuster, even if it is.
Finally, a third legal expert complained that the switch by the South Carolina Supreme Court from its previously announced "deferential" approach to a "neutral principles" approach, first announced in a 1996 decision, was too sudden, and unfair to the Episcopal Church (USA). "The Church published its Dennis Canon relying on the fact that, as a hierarchical church, the courts would have to defer to its ecclesiastical determinations," said this expert. "Then the South Carolina Supreme Court goes in 1996 and changes all the rules on us. That's not fair."
When it was pointed out to him that Justice Blackmun's advice, given in Jones v. Wolf, was itself in a case announcing that the "neutral principles" approach would now pass constitutional muster, and refusing to apply the "deferential" line of cases, the expert made no reply. Asked further how a decision announced in 1996 could come as a surprise to the Diocese and the Church when it recorded its claim to the property in Pawley's Island in 2000, the expert kept his silence, and turned away.
"There are a lot of us [Episcopalians] who are very disappointed with the approach taken by the South Carolina Supreme Court," said a regular churchgoer. "They took the same approach to the law that the so-called 'orthodox' take to the Scriptures - any and all facts to the contrary notwithstanding, it has to mean exactly what they want it to mean, and only that."
Asked about the praise for the decision given on a blog known as the "Anglican Curmudgeon", another Episcopal regular replied: "I've stopped reading him. He's too biased in everything he writes. A curmudgeon should be balanced and objective, open to all points of view, and he's just not."
In a later announcement, the office of the Presiding Bishop stated that she had asked her Chancellor to review other cases in which judges had offered legal advice on which the Church had relied to its detriment. Since the fund-raising campaign announced by her office had not gotten off to a very strong start, observers speculated whether malpractice lawsuits might not be seen as an entirely new and refreshing way to replenish the Church's dwindling coffers.