What in the World Is Going on in South Carolina?

Things are about to get a whole lot more interesting in South Carolina. Bishop Mark Lawrence and the Standing Committee of the Diocese have announced a postponement of the annual convention which had been scheduled for next month. The reason for the postponement is a series of letters written by South Carolina attorney (and former diocesan chancellor!) Thomas S. Tisdale, Jr. to the current chancellor of the Diocese, Wade H. Logan, III.

The letters constitute truly one of the most remarkable sets of communication from one church attorney to another that this church attorney has ever seen. The first is dated January 25, and starts out as though it were just one colleague writing to another -- not on behalf of any particular client, mind you:

Dear Wade:

I am writing regarding recent and ongoing actions by some congregations in our diocese that threaten to "withdraw" their parishes from the Diocese and The Episcopal Church. Specifically, I am writing to confirm my understanding from our recent conversations that Bishop Lawrence has determined that, with respect to such threats and efforts to remove parishes from the Diocese and the Church, he intends to take no legal action to protect parish property.

You said, I recall, that you knew of no action planned by the Bishop to discipline clergy who support such threats and efforts, nor does he intend to take any other steps to dissuade these efforts. You also said, I recall, that you knew of no plans by the Bishop to support the loyal Episcopalians in these congregations who are opposed to such efforts.

These requests for confirmation are all based upon our recent conversation, so please let me know if I have mischaracterized anything that we talked about. If I have misunderstood or misstated yours or the Bishop's position, I trust that you will let me know, and if there are any plans to take any action in these matters of which you were unaware when we talked, I ask that you now tell me what they are.

With best wishes and thanks, I am

Sincerely,

Thomas S. Tisdale

Now one might wonder what in the world motivated the writing of this letter. Mr. Tisdale addresses the current diocesan chancellor by his first name, so one assumes that there is a pre-existing relationship between the two, perhaps begun before Mr. Logan succeeded to the position of chancellor.

Despite the friendly surface tone, however, the letter crosses an unwritten boundary where true friends are involved. For it is couched in the form of a classic method by which attorneys document the statements of counsel for an adverse party. In such a letter, the attorney writes: "Dear John, This is to confirm that in our telephone conversation earlier today, you stated that . . .". The burden is thereby placed upon the opposing attorney to respond if there is anything incorrect about the restatement of what he allegedly said. Otherwise, the letter will stand as a memorandum of their conversation.

But Mr. Tisdale does not state that he is writing on behalf of any client, let alone one who is adverse, who could have any interest in such a confirmation. And yet, there is that sentence (emphasis added):

. . . I am writing to confirm my understanding from our recent conversations that Bishop Lawrence has determined that, with respect to such threats and efforts to remove parishes from the Diocese and the Church, he intends to take no legal action to protect parish property.

Why should Mr. Tisdale wish to "confirm his understanding" of such intent on the part of Bishop Lawrence? After all, he no longer has the diocese or its bishop for a client. And then he asks for more (emphasis again added):

. . . [I]f there are any plans to take any action in these matters of which you were unaware when we talked, I ask that you now tell me what they are.

At that point (if not earlier), Mr. Logan must have seen -- as I can well imagine -- red flags popping up all over the place. His "friend" was not only seeking to confirm their earlier "friendly" conversation in writing, but he was demanding to be told a matter protected by the attorney-client privilege: any "plans" which the Bishop may have confided in him (as chancellor) to "take action" in regard to parishes which had made "threats . . . to remove [themselves] from the Diocese and the Church".

I have no doubt that the conversation was perfectly collegial when it took place: the current chancellor thought he was sharing with his friend, the previous chancellor, some of the trials and tribulations of advising a diocese in the midst of all the legal tangles being created by the ongoing litigation strategy of the Episcopal Church (USA) -- particularly in the aftermath of the recent decision from the South Carolina Supreme Court. (As I explained in this post, that Court recently said that the Church's much-vaunted Dennis Canon was not self-executing in South Carolina. No trust in church or parish property would be recognized in South Carolina courts without a trust document signed by the owner of the property in question.) But the thoroughly improper requests and stated purpose set forth in this letter served notice that the actual purpose of the conversation had, in retrospect, been hostile.

If any doubt could possibly have remained on this score, it was set to rest by a second letter in Chancellor Logan's inbox on January 26 (the dates they were received are stamped on the linked copies) from Mr. Tisdale, which had been written the same day before as the first letter (January 25). In contrast to that first letter, it now asserted outright (with emphasis added):

Dear Wade:

As South Carolina counsel for The Episcopal Church, I am writing to respectfully request that you send me a list of all persons who have been ordained to the diaconate or priesthood in the Episcopal Diocese of South Carolina since October 24, 2009; all persons who have been ordained by Bishop Lawrence during that period; and a copy of the declaration of conformity signed by each of the ordinands.

As we agreed when we met a couple of weeks ago, this is a letter seeking information that you suggested I send you, and to which that you said you would respond accordingly. . . .

When combined with the earlier letter of that same day, this has to be one of the most remarkable exchanges of communications, as I say, ever to have taken place between two church attorneys. For now there is an open disclosure that Mr. Tisdale is claiming to act on behalf of a specific client: "The Episcopal Church". Why did he not state this in his earlier letter?

Because the request in his earlier letter was incompatible with his making it on behalf of any such client as the Episcopal Church (USA). It was conceivable, if at all, as a request (albeit quite improper and irregular) from a former attorney for a client to let him in on something to which he was not entitled by that former representation, namely, to share in the current confidences of that same client.

Even in that role, as I say, the request would have been highly improper and irregular. But to request such a confidential disclosure on behalf of a new client -- whose interests may well be adverse to that of his former client -- was beyond the pale. Mr. Thomas Tisdale, Jr. had no business inquiring as to the current bishop's "plans" on anything.

But Mr. Tisdale was not done with his friendly inquiries. The very next day, January 26, he signed two further letters requesting the records of the diocesan convention and the text of any amendments to parish bylaws of which Mr. Logan was aware. Then, over the next two days he sent four more letters to Chancellor Logan, asking this time for documents and records with respect to individual parishes which, he claimed, had threatened to leave. (Links to all of the letters may be found here.)

When Mr. Logan did respond to these letters, it was quite correctly a protest about how Mr. Tisdale had concealed his true purpose at the outset (emphasis added):

. . . My best recollection is that I asked you at the first [meeting] if you represented anyone, and you told me that you did not, but that a lot of people were asking you questions, and that you were trying to get information to answer those questions . . . .

I have no intention of engaging in an endless letter writing campaign so that one side can claim that if the other failed to respond to a statement, then that statement would be deemed admitted. I am both saddened and disappointed that you have chosen to make use of our friendly conversations in this way. I must respectfully decline to answer your allegations specifically, because I see no useful purpose in arguing what either the Bishop or I did or did not say.

Then Mr. Logan discloses the real moving force behind Mr. Tisdale's inquiries:

I had had an earlier telephone conference with David [Booth] Beers in which he asked me if the Diocese would provide some information about three churches.

So the other penny drops. The Presiding Bishop's own chancellor has apparently taken a signal interest in the "threats" allegedly made by certain parishes in the Diocese of South Carolina to leave the diocese, and in the "plans" by Bishop Lawrence to respond to those threats. He called the diocesan chancellor and requested information about the churches in question. When the chancellor was not forthcoming, Mr. Beers hired, on behalf of "The Episcopal Church" (an entity he does not represent, or have as a client), a South Carolina attorney (and former diocesan chancellor) to get the information for him.

I repeat: David Booth Beers is not the chancellor for that certain voluntary association of dioceses which formed in 1789, and which styles itself the "(Protestant) Episcopal Church in the United States of America." He is only the personal chancellor for the Presiding Bishop of that Church. No members of the Church, either acting on their own, or acting collectively through their triennial assembly called "General Convention", have ever hired David Booth Beers to represent the whole Church, or to hire others to do so. Not only that, but there is no official position that has ever been created and called "Chancellor of the Episcopal Church (USA)". Thus, by definition, there cannot lawfully be any person who is entitled to claim that he is "South Carolina counsel for The Episcopal Church." At best, Mr. Tisdale is acting as South Carolina counsel for the Presiding Bishop's personal chancellor.

And just what would he do in that role? Well, let us look at the illegal deposition of the Right Reverend Robert Duncan, of the Diocese of Pittsburgh. Here is a link (caution: forty-page .pdf download) to the papers forwarded to the (then) Title IV Review Committee, which brought charges against Bishop Duncan for "abandon[ing] the communion of this Church." The second item in the link just given is an eleven-page letter detailing the basis for the charges of "abandonment" -- signed by David Booth Beers (and by Mary Kostel, a former associate with Mr. Beers's firm who is now the Presiding Bishop's personal litigation consultant).

Let me recap here for the benefit of those who may not have been following all the ins and outs in South Carolina to this point. Along with ECUSA, the Diocese of South Carolina (currently headed by Bishop Lawrence) was a party to the appeal that resulted in the State Supreme Court's decision in favor of All Saints Parish, Waccamaw Island. When the suit began in 2000, the Diocese was headed by Bishop Edward L. Salmon, Jr., who was succeeded in 2008 (after the case was on appeal to the South Carolina Supreme Court, and after a second try at electing him) by Bishop Lawrence.

The September 18, 2009 decision by the South Carolina Supreme Court knocked the stuffing out of ECUSA's claims that all parish property in the State was held in trust, pursuant to the terms of the Dennis Canon. Under that decision, it matters not whether a given parish has "acceded" to the Constitution and Canons of ECUSA: even if they did at some point, the Dennis Canon in and of itself is incapable of creating a trust interest in favor of ECUSA or the Diocese in the parish's property.

Significantly, ECUSA allowed the decision of the South Carolina Supreme Court to become final, without asking the United States Supreme Court to review it. (The deadline for doing so was December 17.) However, I have it on good information that certain members of the losing parish -- those members of the original All Saints parish who decided to remain with ECUSA, and not to leave with the majority who voted to realign -- did seek and obtain an extension of time within which to request the United States Supreme Court to review the South Carolina decision. That extension will expire -- and cannot be further extended -- on next Monday, February 15 (or actually, because Monday is a Federal holiday, the extension will expire on Tuesday, February 16).

If the dissident Waccamaw parishioners do file a petition for review with the United States Supreme Court by next Monday, then the burden will be on ECUSA to file a joinder in the petition within the following twenty days, or by March 8 at the latest. For if it does not do so, then it cannot benefit from whatever decision the Court may render in the case (assuming for the moment that the Court grants review). And the same is true of the Diocese of South Carolina.

So while nothing will probably happen in the next week in this current dust-up between Chancellor Beers and Chancellor Logan, you should watch very closely what gets filed in the United States Supreme Court between now and March 8 (of course, readers of this blog will be informed as to any such filings). For if you have assimilated all the legal niceties of the above discussion, then you should appreciate the following points:

1. There is currently a decision by South Carolina's highest court which holds that the Dennis Canon is not self-executing (i.e., no trust was created on any parish property in South Carolina when it was enacted -- if indeed it ever was -- in 1979).

2. The Episcopal Church (USA) did not see fit to request a review of that decision by the United States Supreme Court. Instead, its Presiding Bishop and her chancellor have left that function to the dissident parish members who lost their claim in that case to be the true vestry of All Saints Waccamaw.

3. Notwithstanding its failure to seek review of the adverse South Carolina decision, the Episcopal Church (USA) is apparently asking the Diocese for proof that it intends to enforce the Dennis Canon against certain parishes in the event that they try to leave.

4. The unspoken threat -- which has caused Bishop Lawrence to postpone his diocesan convention while he plans a response to ECUSA's provocations -- is that if Bishop Lawrence fails to sue any departing parish under the Dennis Canon, he could be charged with "abandonment" in the same manner as was Bishop Duncan.

If this is a correct representation of what is going on in South Carolina, then I have to say that it boggles the mind. Like any other citizen of South Carolina, Mark Lawrence is subject to its laws, and to the decisions of its courts -- as is the Diocese which he leads. He could not, in good conscience and as such a citizen, expend diocesan funds on pursuing a lawsuit that has already been adjudged futile by the State's highest court. And yet ECUSA is sending strong signals that he had better do so -- or else.

So what is really going on here? I shall be the first to admit that I have absolutely no inside knowledge. But from the other letters written by the front man Mr. Tisdale, I believe that I can add two and two to make four.

Take a closer look, for example, at the second letter written on January 25, already linked, and look at what it asks for on behalf of "the Episcopal Church" (emphasis again added):

a list of all persons who have been ordained to the diaconate or priesthood in the Episcopal Diocese of South Carolina since October 24, 2009; all persons who have been ordained by Bishop Lawrence during that period; and a copy of the declaration of conformity signed by each of the ordinands.

What is so special about the date of October 24, 2009? Well, it was the date of the last (special) convention held by the Diocese of South Carolina. And at that special convention, the diocese (note -- not Bishop Lawrence personally) adopted a resolution which contained the following text (bold added for emphasis):

. . .

Further Resolved, that the following statement shall constitute our understanding of the doctrine, discipline and worship of The Episcopal Church and shall be read at all ordinations in The Diocese of South Carolina, and a copy of which shall be attached to the Oath of Conformity signed by the ordinand at such service of ordination:

“In the Diocese of South Carolina, we understand the substance of the 'doctrine, discipline and worship' of The Episcopal Church to mean that which is expressed in the Thirty-Nine Articles, the Creeds, the Chicago-Lambeth Quadrilateral and the theology of the historic prayer books.”

Reading between the lines here, I would conclude that in the mind of David Booth Beers, at least, to say that the "doctrine, discipline and worship" of ECUSA equates to what is in the Thirty-Nine Articles, the Creeds, the Chicago-Lambeth Quadrilateral and the various predecessors to the current Book of Common Prayer can somehow be used as a basis for a charge of "abandonment."

The irony is that this is perfectly true -- only it applies to the Presiding Bishop and all who support and encourage her in her current canonical absurdities, and not to Bishop Lawrence and similar traditionalists in the Church. For to maintain that adherence to the Thirty-Nine Articles (as amended in the version contained in the BCP), the Creeds, the Chicago-Lambeth Quadrilateral and to the theology expressed in the Book of Common Prayer is to "abandon" the Episcopal Church (USA), is in reality to say that ECUSA itself no longer adheres to those foundational documents. Thus if anyone is abandoning the Church with such an assertion, it is the Presiding Bishop and her Chancellor, and not Bishop Lawrence.

Nevertheless, under the current regime at ECUSA, we must assume that the letters from former chancellor Tisdale are the precursors to an attempt to depose Bishop Lawrence on (false) charges of "abandonment." There would otherwise be no reason for the Presiding Bishop or her chancellor to agree to pay Mr. Tisdale to write no less than eight separate letters to try to gather the "evidence."

And if the Presiding Bishop thinks she can accomplish in South Carolina what she did in Pittsburgh -- depose the sitting bishop, and install a puppet who can serve as a figurehead in any lawsuit -- then that is just what she will try to do.

However, this move -- if the Presiding Bishop is so megalomaniacal as to attempt it -- will at the very same time serve as a litmus test for the Rev. Canon Mark Harris and the other members of ECUSA's Executive Council who are Bishop Schori's sole means of budgetary support. For if they can stand by and watch as the Presiding Bishop orchestrates yet one more uncanonical vote in the House of Bishops to "depose" a godly Bishop who is doing everything possible to keep his Diocese in the Episcopal Church (USA) -- all so a puppet can be installed who will immediately assert rights which are contrary to a final and binding decision of the South Carolina Supreme Court -- then I bid them goodbye. I will never again recognize the authority of such an "Executive Council", or of any of its members -- and I will do everything in my power to hold them accountable for breaches of their fiduciary duties owed to all Episcopalians.

This is a watershed moment for both those at 815 Second Avenue and their supporters, as well as for all those who are trying to hold on to a presence in the Episcopal Church despite its current tyrannical ways. Fortunately, their very arguments based on a "trust" in favor of the national Church may be turned against them -- if each parish owes perpetual allegiance to the national Church, then the leadership of that Church owes fiduciary duties to each and every diocese and parish. Those fiduciary duties are very clear, and do not admit of any waffling or tergiversation. Depending on how this all plays out, there will either be a very clear case for breach of fiduciary duties, or not.

If a court finds there are no such duties capable of being breached, then it will also have to conclude that ECUSA has no "hierarchy" -- because fiduciary duties flow precisely from a relationship of hierarchy. And if it holds that the leadership of ECUSA does owe such a duty to its members, then the skies will be wide open to suits against them for breach of fiduciary duties.

As I said at the outset, things are about to become legally very interesting in South Carolina.