Wednesday, January 23, 2013

SC Circuit Court Issues Temporary Restraining Order to Protect Diocese's Identity

Late this afternoon (5:11 p.m. EST), the Circuit Court of South Carolina in Dorchester County (the Hon. Diane S. Goodstein presiding) issued a Temporary Restraining Order ("TRO") which declares:
No individual, organization, association or entity, whether incorporated or not, may use, assume, or adopt in any way, directly or indirectly, the registered names and the seal or mark of The Protestant Episcopal Church in the Diocese of South Carolina as are set out below or any names or seal that may be perceived to be those names and seal or mark. The registered names and mark that are subject to this order are: the seal of the Diocese of South Carolina as described in its registration with the South Carolina Secretary of State; the name "The Protestant Episcopal Church in the Diocese of South Carolina", as registered with the South Carolina Secretary of State; the name "The Diocese of South Carolina", as registered with the South Carolina Secretary of State; and the name "The Episcopal Diocese of South Carolina", as registered with the South Carolina Secretary of State. Again, this seal and these names are those registered by this Plaintiff corporation [Bishop Lawrence's Diocese of South Carolina] with the South Carolina Secretary of State.
The order was issued following an ex parte hearing before Judge Goodstein yesterday, and after Bishop Lawrence's Diocese posted a bond set by the court at $50,000. A hearing may be held "ex parte" in cases of urgency, in order to prevent immediate harm from occurring. The opposing side does not need to be present; indeed, the Episcopal Church (USA) has not yet entered an appearance in the case, and does not seem to have been represented at the hearing.

The purpose of the bond is to ensure that any damages that may be caused by the Court's issuance of the TRO without first hearing from the opposite side will be covered; such bonds are required by law as a condition of the issuance of a TRO, and the amount is fixed by the Court in each instance based upon individual circumstances. 

The immediate urgency requiring the ex parte hearing, from the point of view of Bishop Lawrence and his Diocese, was the scheduled meeting this Saturday of the Episcopal remnant in South Carolina which desires to organize a new diocese within the Episcopal Church (USA) to replace the one that has withdrawn. In issuing notices for the meeting, the national Church and those working in concert with it have claimed the right to use the names and seal described in the Court's order, which belong (by South Carolina law) to Bishop Lawrence's Diocese.

The Court's reasoning for issuing the order states in part:
The Diocese of South Carolina has three registered names and one registered mark and, as shown by affidavit, the Defendant, or others appearing to act in its name or under its control, have allegedly and repeatedly used these names and mark, including those so similar that they are to be the Diocese of South Carolina. This use has clear ability to cause confusion over the identity of the corporate entity of The Diocese of South Carolina. The Diocese of South Carolina has been using these registered names and mark in the ordinary course of its business as the Diocese of South Carolina, both before and after its association with the Defendant. By affidavit Plaintiff states its concern that a meeting scheduled to be held January 26, 2013, by those purporting to be this corporate entity but who in reality are not the corporate entity of the Plaintiff, could intentionally affect the corporate status of those uninformed that the actors are not, in reality, the corporation. In order to avoid any confusion, this Order is issued. 
The issue at bar is whether the taking of action by those not authorized with corporate authority will so infringe on the rights of the Diocese of South Carolina, that the Diocese of South Carolina will suffer immediate and irreparable harm for which the law cannot adequately remedy. The Court is convinced this burden has been met. The use of the names and marks of the Diocese of South Carolina can affect its good will, its third party relationships and create confusion among those with whom it deals in the ordinary course of its business. In short, the ongoing business of the Diocese of South Carolina could be irreparably injured if corporate changes occur in its name, implemented by those without actual corporate authority.
The order goes into effect immediately, so it will essentially force the remnant group meeting this Saturday to adopt a different name for the entity it will form, and by which it will be known. The governing documents which are scheduled for approval (a Constitution and Canons based on the former diocesan version before changes were approved in 2011 and 2012) will need to be changed to remove all references to "the Protestant Episcopal Church in the Diocese of South Carolina" and "the Episcopal Diocese of South Carolina." The order will remain in effect until February 1, when a hearing will be held starting at 9:00 a.m. in the Richland County courthouse on a preliminary ("temporary") injunction, pending the trial and final resolution of the case. (I am not sure why it is not to be held in the Dorchester County courthouse at St. George; perhaps some South Carolina attorney will enlighten us on injunction procedures there.)

This order, despite its temporary nature, represents a huge advantage gained in the lawsuit which Bishop Lawrence's Diocese brought early this month, after all attempts had failed to get the remnant Episcopalians to cease voluntarily their appropriations of the diocesan names and corporate seal. (The Diocese announced yesterday that fifteen other parishes had joined in the lawsuit, and that thirteen more are considering joining it later, which would bring the total number of plaintiffs to 44. Perhaps this ruling will provide the spur they need to make their decision.) The Court has found, based just on the showing presented ex parte by Bishop Lawrence and his capable attorneys, that the plaintiff Diocese made "a prima facie showing . . . as to the likelihood of [its] success on the merits." In other words, the Diocese showed to the Court sufficient indicia of its ownership of the registered marks (the names and corporate seal) that the Court believes it will prevail in the ultimate lawsuit.

And that represents a substantial uphill burden for ECUSA and its attorneys to overcome. They start off on the wrong foot with the Court, because the remnant group under their direction simply arrogated the names and seal to their own use, without first going into a court to make their case. (Of course, they were under the disability that they will not be legally recognizable in a South Carolina court until after their organizational meeting this Saturday.)

Implicit in the Court's ruling is an even weightier and more significant finding: that the Diocese of South Carolina has the legal right, under South Carolina law, to withdraw from ECUSA and retain its corporate and individual identity. That finding, once it is formalized in this case, will put the final lie to 815's mantra that "People may leave the Church, but Dioceses may not."


41 comments:

  1. What is the chance that this suit will be removed to Federal Court if the lawyers for TEC make the case for removal in their response to this lawsuit? My understanding from looking at the suit is that the plaintiffs did not sue a South Carolina entity which would provide diversity jurisdiction, wouldn't it?

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  2. Ah, Charleston St. Michaelite (and welcome to your commenting here!), you ask the $64,000 question. I may have to devote an entire blog post to answering it.

    The short answer is that ECUSA is an unincorporated association that was organized at common law in 1789, and not under the laws of any particular State. (It is only its corporate arm, the DFMS, that is organized under New York law.)

    Since it is not organized under the laws of any particular State, that makes a nice question as to the citizenship of the association (not the DFMS, again) for federal diversity purposes. How can it be found to be the citizen of any particular State, when it has no allegiance to any of them?

    Thus I conclude tentatively (before more research, and a probable additional post) that ECUSA, the common-law association, could not qualify as a citizen of any other State for diversity purposes. Also, the test that federal courts in South Carolina would have to apply, post Erie, is how such a common-law unincorporated association would be regarded under South Carolina state law.

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  3. And in furtherance to my last comment, I hasten to add:

    Nothing can stop ECUSA and its attorneys from filing a notice of removal to the federal District Court for the District of South Carolina. Defendants make such moves all the time, if they think they have even a chance of succeeding.

    But if they do, the test will then be whether or not they can survive a motion by Bishop Lawrence's diocese to remand the case to State court, for lack of federal diversity jurisdiction. And the resolution of that question will turn upon the issues I identified in the previous comment.

    Even if the national Church were to survive such a motion, the South Carolina federal courts will still be required, under Erie again, to apply the same SC state law to all of the trademark and infringement issues in the case. So I do not see any particular advantage, given that SC state law will apply in no matter which court, to trying to remove the case to federal court. A diversity case that invokes no issues arising under federal laws or the Constitution will not have any strong appeal for the U.S. Supreme Court to grant review.

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  4. Mr. Haley,
    I know the Diocese of Quincy has a lawsuit against TEC. Has any other diocese gotten an TRO against TEC? I like your conclusion that if the Diocese prevails in this lawsuit which seems likely, it will put to rest the oft quoted "people can leave, but Dioceses can not".

    Sc Blu Cat Lady

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  5. Does the ruling mean that this website is now in contempt of court?

    http://www.episcopaldioceseofsc.org/

    Oh joy!

    Peter+

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  6. Thank you for this posting. Interesting days. Question, the TRO states "No individual, organization, association or entity, whether incorporated or not, may use, assume, or adopt in any way, directly or indirectly, the registered names and the seal or mark of The Protestant Episcopal Church in the Diocese of South Carolina as are set out below or any names or seal that may be perceived to be those names and seal or mark." There is no indication of a limitation of this TRO to entities other than the plaintiffs. It says no..individual, etc. So, can either South Carolina entity use them?

    Look forward to your answer.

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  7. I don't know Peter but the website and its webmaster certainly have violated the TRO that has been given to the Diocese as of yesterday afternoon.

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  8. Peter O.+ and Alexi, the site has been taken down, and so no one will be found in contempt of court on the site's account. The TRO did its job.

    Mark Harris+, if you read to the bottom of the order, you will note that it exempts from its scope Bishop Lawrence, his Diocese and all of its officers, directors and trustees. So the order makes explicit just who is entitled to use the registered marks -- i.e., the entities and people who registered them.

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  9. Since Mrs. Schori and her minions have no use for the canons or other laws, would they not also violate the TRO? If they did, what could happen to them?

    David Katzakian

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  10. Violating the TRO would be a very bad short-term strategy, David K. The hearing for a regular pre-trial injunction is just ten days away, and if you were to come into that hearing already in contempt of court, you would get very little sympathy from the judge. Indeed, you might just lead the judge to impose even harsher fines and penalties for continuing violations.

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  11. ASH...thanks for the pointer and clarification.

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  12. It appears as though the remnant's site is now back up, in defiance of the TRO.

    As of 07:53 AM my time (PST), the browser reported that there was no such URL to be found. As of 8:06 AM PST, it was back up.

    If they plan to defy the court's order and pay any fines imposed, that is a very poor strategy for the short term, IMHO. They already have one strike against them for usurping the marks in the first place, and if they disobey a court order they are practically ensuring that the court will be disinclined to hear their supposed justifications. In this country, everyone is required to obey the law first -- unless they want to pay the price.

    And a court that sees its orders being willfully disobeyed by an entity with coffers like the Episcopal Church (USA) has ways of making it very expensive, very quickly.

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  13. Mr. Haley, How expensive could it get for the remnant to violate the TRO?

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  14. It would depend on how intentional the Judge found the conduct to be, Alexi. Let's not speculate until we know more about that conduct.

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  15. Too bad Fort Worth didn't also do this pre-emptively.

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  16. Is it true that they can just evade legal service and continue on?

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  17. Evading service works only in the very short-term, Carolyn. Most process servers are experienced in how to serve papers despite the subject's attempted evasions.

    In this case, there is a South Carolina attorney (Mr. Tisdale) who made it quite clear that he was working with the "Steering Committee" to organize the new diocese, and as an attorney he would be ethically barred from trying to evade service. He also could not continue to act as the Steering Committee's legal adviser if it were deliberately trying to evade the law.

    The Steering Committee also contains at least four clergy members, who would likewise be ethically precluded from evading legal process.

    So I am not sure how to account for the lack of any notice of the court's order thus far on the part of the Steering Committee. If the people at SC Episcopal received notice, the Steering Committee certainly ought to have by now. The longer their apparent ignorance of the order continues, the harder it will be to explain or justify.

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  18. OK, here is the answer to the first question above, posed by Charleston St. Michaelite: could ECUSA remove the case against it to the federal District Court of South Carolina?

    The answer is that it could not, and the reason may surprise you. In cases of federal jurisdiction depending on diversity of citizenship between the parties, an association of individuals (such as a partnership, or an unincorporated association) is analyzed by the citizenship of each of its members, i.e., the association itself has no single place of residence unless all of its members are residents of just one State.

    However, the Supreme Court has declined to find that an unincorporated association is a "citizen" of any jurisdiction within the meaning of Article III jurisdiction under the Constitution. Thus the judicial power of the United States cannot extend to cases or controversies involving associations as such.

    Only if the association's members are each amenable to suit (or, under the law of the State where the federal court sits, if the members of an association may be sued as a class, through one or two representatives) may federal courts entertain such cases, and then only if there is either a federal question or if there is complete diversity of citizenship on both sides.

    ECUSA is not comprised of individuals, but of other associations. So neither through its members, nor on its own, could it qualify as a "citizen" for purposes of Article III. Therefore, it could not remove the South Carolina case against it to federal court.

    (For attorneys: see, e.g., Navarro Sav. Ass'n v. Lee (1980) 446 U.S. 458, 461, and cases cited; see also Carden v. Arkoma Associates (1989) 494 U.S. 185, 189.)

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  19. Got it, Mr. Haley. It depends on how intentional the judge sees their actions. I guess what I am asking is- How high can fines go for violating a TRO? or perhaps an injunction? Thousands? Higher? Not necessarily wanting an estimate in this case but a general idea of how high such fines can go?

    If Skardon of SC Episcopalians knows, the steering committee must know by now. I just heard a bit on the local news about how a small city has been found in contempt of court for this very thing- not paying the court ordered fines for some violation of a court order. The city has backed down and plans to pay the fines. Surely, the steering committee can not be so ignorant as to not know what ignoring a court order can bring.

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  20. Interesting that ECUSA's very own structure of being an association of associations works against it in this instance.

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  21. Thank you so much for the very well researched explanation. I guess this is good news for the plaintiff indeed! I'm still shocked that the defendant still has not pulled down their website or made any changes to become compliant with the TRO in the over 24 hours since the TRO was signed. I even see that Episcopal News Service has picked up the story so no one can claim to be ignorant of the order.

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  22. OK, they’ve now complied (technically) with the TRO. But only grudgingly: they are now officially “the Episcopal Church in South Carolina”. (And notice, too, that the word “diocese” has been eliminated from their URL—although the old one still refers to the new one.)

    And that raises the possibility of a future claim of confusion over registered trademarks. Maybe they should claim “The Episcopal Church™ in South Carolina”, and try to assert that “TEC” is a federally protected mark.

    Even so, however, how would “TEC in SC” be that different from “PECUSA in SC”?

    They are really boxed in here, because they want to assert their “national brand” within the State—but that brand has been already asserted continually over the last 240+ years in South Carolina by an entity which is now legally different from the one which they will form on Saturday.

    What their quandary illustrates, really, is that “TEC” is an invented and ephemeral entity, created by 815 only within the last 40 years or so, not matched by any substance on the ground, and that when critically examined, there is no “there” there.

    That’s what happens when you try to mess with solid history.

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  23. The TRO applies to names, symbols, etc. So, under whatever name, can the "TEC loyalists" go to banks,investment firms, and such, and claim to be the "real" diocese? No doubt Dr. Shori has plenty of letters and forms to give them. TEC has caused problems in other diocese by getting accounts frozen.

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  24. Maxine Schell, the seal that still appears on the Website is the shield of the Episcopal Church (USA).

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  25. the "about us" tab on their website has not changed. It still portrays them as the diocese in South Carolina. And it still lists all the churches in the diocese. So I think they are still standing in the doorway saying "nyahh nyahh I'm still in my room!"

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  26. The seal of the diocese does not appear on the revised website. I know the webmaster, and can assure you that there is no desire to anger the court. The people struggling to stay part of TEC here in SC are good, hard-working people. It seems clear to me that this TRO was requested specifically to embarrass TEC and the Presiding Bishop.

    While I havent read every word of your site yet, it appears that much of what you say about the breakaway group presumes that they have rightful control of the situation. However, since they were an agreed part of TEC, weren't they bound to follow the canons and constitution of TEC? TEC nullified the changes that the diocesan leadership pushed through, since they were not supported by canon. Accusations that TEC somehow doesn't follow canon don't support that the breakaway group can do the same.

    How is this different from the leadership of any other regional organization trying to withdraw from the organization they're bound to? If you are a franchise, you can break your association, but can't keep the name, and might even have to pay handsomely to stay operating. If the local Boy Scout council decides that it accepts gay scouts, can it simply "withdraw" from Boy Scouts of America and still call itself a Boy Scout troop? Could it legally continue to use BSA uniforms, handbooks, awards, etc. Would the awards its scouts earn be recognized by other councils? Certainly, it could call itself something else, but the distribution of property would need to be agreed upon, either by mediation or government judgement.

    I am not thoroughly familiar with all of the actions of TEC general convention over the years. Did the leadership of this or the other breakaway dioceses petition TEC general convention to be allowed to leave? Did they try to get a constitutional or canonical amendment to allow such action? It seems like the association between a diocese and TEC is somewhat like a marriage, but even there divorce is only allowed by established law and decree.

    I understand that the diocese is a SC corporation. That affords it certain privileges under state law. I don't think those speak to its relationship with TEC. Does trademarking the name Episcopal Diocese of SC speak to whether the breakaway leadership can legiitmately operate as "THE" Episcopal Church in SC if they choose not to be part of "The Episcopal Church"? That seems counterintuitive.

    By the way, I understand that the pre-existance of the "diocese" before TEC is not supported by the diocesan history written long ago (well before these conflicts.) A number of Episcopal churches in the area were formed before the birth of the national church (and the nation!), but they did not refer to themselves collectively as a diocese until the national church was founded. Were there even provinces of the Anglican church at that point?

    [I have more I'd like to say/ask, but have run into a limit on comment size.]

    I hope that I've been able to nuance my questions. I am not trying to attack anyone. For those of us who disagree with what is happening in SC, this is very confusing and upsetting. Legal actions are clubs with large dollar amounts attached, and are terrible blows by and against faithful people.

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  27. If Lawrence has withdrawn from the Episcopal Church he cannot be an Episcopal Bishop of an Episcopal Diocese. End of story.

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  28. John: This isn't my blog, but let me try to explain things. TEC is comprised of autonomous dioceses. These dioceses came together to create the General Convention. GC did not create the dioceses. This is pretty clearly laid out in the history books.

    There is nothing in TEC's canons or constitution that prevents regular dioceses from disaffiliating from General Convention.

    Regarding disaffiliation generally, you need to distinguish between organizations. Consider restaurant chains as an example. Restaurant chains can either be made up of 100% company owned restaurants; OR they can be made up of franchises (i.e. not owned by the company, but by owners who voluntarily use the company branding and are governed by company policy so long as the owners choose to be a franchise aligned with that company). A restaurant that is 100% company owned cannot withdraw, but a franchise most certainly CAN withdraw.

    If you look at TEC's history and current canonical structure, you will see that the relationship of dioceses to the General Convention is overwhelmingly like that of franchises to company brand.

    If TEC was not a "hierarchical" church, but had the identical constitution and canons, none of this would even be in the courts - there would be no possible dispute but that the Mark Lawrence affiliated diocese had every right to do what it did (same would be true for other dioceses and even parishes that left). The only reason why the courts are involved at all is because some courts have decided to treat "hierarchical churches" under special rules that don't apply to anyone else (how's that for "separation of church and state"??)

    If TEC's General Convention wishes to change this relationship, they are certainly free to try to change TEC's canons and constitution. But they have not done so. And so the Diocese of South Carolina led by Mark Lawrence is free to do what it did.

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  29. John, why do you think the the TRO was obtained just to embarrass TEC and the presiding bishop? The reality is that TEC is attempting identity theft of the name and seals of The Diocese of South Carolina. That is why the TRO was obtained, you do not have to imagine other causes.

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  30. The TRO was issued (an apparently requested) days before a high profile meeting with the Presiding Bishop for the parishes that desire to stay with TEC. The website has been up for months to facilitate communications with those who do not agree with Bp. Lawrence's group. Although there was grumbling about the use of the name and seal since November, the TRO seems to have been timed to try to prevent the special convention, or at minimum create a legal fog to confuse things.

    The parishes that do not support Bp. Lawrence have a right to organize and stay with TEC. What would you suggest that we call ourselves while this matter is litigated? I don't personally care, although every other diocese in TEC is the "Diocese of ". SC will probably continue to have two dioceses - Upper SC and . We are not just Charleston, or the LowCountry, or even Eastern SC. Lower SC sounds derogatory, and is not a term I've heard this area referenced as.

    The issue of theft of identity is far less clear, at least in my opinion. Also unclear is whether separation is acceptable. My understanding of contracts is that one party cannot unilateraly void an agreement. TEC canon law about dioceses (which I have read) is very clear about the process of a diocese being created or reorganized (which involve requests to and approval from General Convention), however I didn't find anything about leaving. I am not a lawyer (I'm a computer expert), but don't think that means the breakaway group is free to do as they wish, especially with assets that may be interpreted as property of TEC.

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  31. John, first of all, thank you for coming here and posting your comments and questions. When I started this blog nearly five years ago, I was much as you are now -- incredulous that all of this strife could be happening in a Church I had been proud to call my own for my entire lifetime.

    But I had been trained as an attorney, and have served in various roles as an attorney for the Church over the years, including nearly a quarter century as my own parish's chancellor. So I went to the Church Constitution and Canons (the annotated version by Messrs. White & Dyckman, still available on the Church's website) and began a detailed study of how the Church evolved, and how it had come to the levels of strife and disagreement which were just reaching a crisis point with the advent of Presiding Bishop Jefferts Schori, acting as "the new sheriff in town."

    I was dismayed by what I found, and I began blogging about what I saw versus what the history of the Constitution and Canons told me.

    At first I reached out to both sides of the dispute, and tried to get them to reason with me and with each other. But after two years of effort, I stopped trying.

    It had become abundantly apparent that the new school that took power with Bishop Jefferts Schori were not interested in the details of the story as to how the national Church came to be. They were in power, they had carefully been building up their bloc for over twenty years, and they were not about to surrender that power they had fought so hard to win.

    (To be continued)

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  32. But they did not go unchallenged -- courageous bishops like Bishop Schofield, Bishop Iker, Bishop Duncan and Bishop Ackerman tried, first, to call a halt to the revisionist wave that was taking over the entire Church, and when they saw that they individually could not turn the tide, they acted to save as many of the souls of their flocks as they could. They agreed to lead their dioceses even if they voted to do the unthinkable, and leave the Episcopal Church (USA).

    The Christian Church in which I grew up, which meant the Episcopal Church (USA) from the days of Presiding Bishop Henry Knox Sherrill through Presiding Bishop Frank Griswold, would have allowed the dioceses to leave peaceably, as long as those dioceses likewise allowed those who chose to remain peaceably in ECUSA. The dioceses did just that, and made no claims on any of the money or property of those who wanted to remain.

    But under the new sheriff in town, ECUSA turned vindictive and litigious. No sooner had Bishop Schofield's diocese left than PB Jefferts Schori arranged for +Jerry Lamb to be confirmed as a provisional bishop, so that he could immediately bring a lawsuit. The suit, mind you, was not filed against Bishop Schofield'as departed diocese, but against him personally, as well as against the corporation through which he held parish and mission real property in trust for those parishes and missions. ECUSA also arranged for Bishop Schofield's bankers to freeze all of his operating accounts and reserves, so that he would be unable to defend the lawsuit it brought against him.

    And to cap things off, Bishop Lamb stole the corporate identity of Bishop Schofield's own corporation sole, affiliated with the Anglican diocese, by the expedient of filing falsely sworn papers with thje California Secretary of State claiming that he was now the incumbent of the Anglican corporation sole.

    That act of identity theft still has not been resolved, for more than five years, because the suit still languishes in the California courts, and has not yet gone to trial. But the Episcopal Church (USA) keeps it going, with injections of its long-ago-donated trust funds to prop up the remnants who are unable to support the lawsuit on their own.

    (To be concluded in the next comment)

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  33. This same pattern of identity theft and intimidation by propped-up lawsuits was repeated again and again, in Quincy, in Pittsburgh, and in Fort Worth, with varied measures of interim success, as you may read all about elsewhere on this blog. (Use the "Guide to This Site" to take you to the ECUSA Litigation index page, from which you will find links to all of the dioceses involved in litigation.)

    Thus when Bishop Lawrence's diocese voted to withdraw from the Episcopal Church (USA), he and his attorneys knew perfectly well what was going to happen. The machinations began almost immediately, and plans to appoint a provisional bishop who would be the plaintiff in a lawsuit against Bishop Lawrence and his trustees personally were announced. (The plans for the lawsuit are never announced in advance, but are approved by resolution adopted in "executive session" at the organizing convention. They will authorize Bishop vonRosenberg to file a lawsuit in the name of the remnant diocese next week. And unlike Bishop Lawrence's lawsuit, which simply seeks a judicial declaration of who legally owns the rights to the registered names and seal, Bishop vonRosenberg's lawsuit will lay claim to all of the bank accounts and real property of Bishop Lawrence's diocese.)

    The lawsuit was thus not "timed" to "embarrass" Bishop Jefferts Schori, but instead to head off a lawsuit that she herself was seeing would be filed ASAP. In the months since November, Bishop Lawrence and his sttorneys had pleaded with Mr. Tisdale and the Steering Committee not to assume the names and seal of the South Carolina religious corporation which Bishop Lawrence heads. They refused absolutely to do so. And this Saturday they were on the point of making their identity grab formal and official. So Bishop Lawrence did the only thing left to him -- he went to court.

    There is no provision anywhere in ECUSA's Constitution or Canons (trust me, I've dealt with them for most of my professional life) which prohibits a diocese from withdrawing unilaterally from the unincorporated association of dioceses which is ECUSA. Nor could there be -- any such provision would deny the freedom of association to those dioceses which is guaranteed by the First Amendment.

    The analogy is not so much to a franchise, as to the United Nations. The United States in 1945 acceded to the treaty creating the UN, just as the pre-existing Diocese of South Carolina acceded in 1789 to the Constitution that created ECUSA. Nothing could stop the USA from de-acceding to the UN Charter any time it wished to; and the same goes for any diocese in ECUSA.

    You will find all the historical detail and precedents elsewhere on this Website. Please feel free to post your comments and questions at any time; I welcome them.

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  34. liquafruta, you and some other commenters I have noted in the SC dispute proceed from a mistaken premise about the use of the adjective "Episcopal" in the name of a religious denomination. The word means simply "of or pertaining to a bishop" [episkopos in NT Greek], and refers to the fact that the group is led by a bishop or bishops.

    Despite its attempt to assert as unique the name "The Episcopal Church", the Protestant Episcopal Church in the United States of America (to use its original, full name -- "PECUSA", or as I identify it on this blog, ECUSA) does not have exclusive rights to that name. If you visit the Anglican Communion's website page listing all of the member provinces, you will find a bunch of churches calling themselves "Episcopal", followed by the phrase "in [name of country]".

    ECUSA began using the shorter form "TEC" to signify that it was not just "in" the USA, but had foreign dioceses in the Orient, the Caribbean and Europe, as well. But it would be far more accurate, and less confusing, if it claimed the name "The International Episcopal Church."

    As I indicated in an earlier comment, ECUSA's problem in South Carolina is that the entity which first used the name "Protestant Episcopal Church in South Carolina" is the entity that is (now) Bishop Lawrence's diocese, and that it has continuously used that name since 1785 or so. ECUSA itself did not have any sort of reach into South Carolina until 815 expanded its bureaucracy in recent years.

    Now it wants to come in to South Carolina and claim that its name predates that of the Diocese. It simply doesn't, and it will lose that claim in the South Carolina courts. So while I can empathize with your plight, it is not of Bishop Lawrence's making. Perhaps ECUSA and the SC Episcopalian group should have thought of that consequence before they began the ill-advised proceedings to get rid of Bishop Lawrence.

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  35. Mr Haley, thank you for your excellent explanation above. I especially appreciate the anaology to the United Nations. No one in their right mind would suggest that the property of the United States somehow belongs to the United Nations.

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  36. John,
    I can see that you are part of the group that wishes to remain affiliated with TEC. Why must there be 2 dioceses (?sp) affiliated with TEC within SC? Why not join with Upper SC? Only about 5000 people(out of 29,000 within the Diocese of South Carolina before the break-up)apparently wish to stay with TEC. Of that number, the majority are at one parish, Grace in Charleston. Most of the other parishes are quite small or are historically black missions (I am still not sure why they wish to stay, but that is another matter). I would think that that number could be incorporated into the Upper Diocese. Of course, the folks at 815 might be afraid that if they did that, some parishes in the Upper Diocese mat wish to affiliate with the more conservative Diocese.

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  37. I have no idea about why there must be two dioceses within SC. I did ask at one point, and the explanation related to issues of control between Columbia and Charleston and the rest of the state. I suppose the inevitable legal resolutions must occur first with the departed diocese. There are a number of shared properties (like Camp St. Christopher on Seabrook Island) and such that will have to be agreed upon. I am hoping that Mr. Haley's predictions turn out to be less of a problem - Provisional Bp. vonRosenberg's leaning seems to be towards reconciliation or peaceful resolution.

    I am a choir member at Grace. There are a couple dozen churches and "worship communities" (people displaced from churches that followed Bp. Lawrence) continuing in TEC here.

    We had a marvelous choral eucharist this morning with the Presiding Bishop celebrating, and I attended the special convention as a visitor. We'll call ourselves 'The Episcopal Church in SC' for now, have a new bishop and standing committee, and have re-affirmed full ascension to TEC. We are not and do not want to be sovereign - we are part of the only recognized member of the Anglican Communion in the US - The Episcopal Church. We wish to uphold classic Anglicanism, including and especially a return to the balancing of scripture, tradition and reason.

    With luck, the judge will not have issue with our name, but that is a worry for another day.

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  38. By the way, I understand that the pre-existance of the "diocese" before TEC is not supported by the diocesan history written long ago (well before these conflicts.) A number of Episcopal churches in the area were formed before the birth of the national church (and the nation!), but they did not refer to themselves collectively as a diocese until the national church was founded. Were there even provinces of the Anglican church at that point?

    John,

    With specific reference to the above point, I would refer you to White and Dykman (3rd edition), p.90:

    [In the early years of the Church], the state was unusually accepted to be the unit of diocesan organization. Until 1838, the word ‘State’ was commonly and officially used to designate a ‘Diocese’ . . . Influenced by the formation of a national Church through the federation of the separate Churches in the several states, the early leaders of the Church never conceived the existence of two dioceses within one state.

    As far as the histories are concerned, Dalcho only goes up to the Revolution, while Bishop Thomas (who technically begins in 1820) states that South Carolina's first State Convention took place in 1785, the same year six other dioceses "were founded." (12)

    Not that any diocesan history can be said to be definitive; they reflect the prejudices of the author (as I should know).

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  39. I'm glad that you had a nice service, I'm sure the music was beautiful. I hate to disallusion you, but The Diocese of South Carolina is also a recognized member of the Anglican Communion. (Please see TitisOneNine or the Diocesan web site for details)
    As to selling your souls to TEC, I hope that works out for you and that Bishop vonRosenberg is as successful growing his new diocese as he was at his last stop. The Diocese of South Carolina remains a soveriegn diocese, as do most others within TEC. Did you not read Mr Haley's excellent response?
    I'm not sure how St Christopher is organized. It is my impression that they are an independent entity.

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  40. I note that Bishop Jefferts Schori, at the news conference she gave after the convention, declined to answer any questions about litigation in South Carolina. Also, it did not appear as though the convention went into executive session at any point (when all but official delegates would have been asked to leave).

    The coming week will tell the tale whether or not all the pious words about "reconciliation" were genuine or not. Since the leopard cannot change his spots, I do not expect ECUSA to veer from its pattern of filing vindictive and punitive lawsuits. But we shall see.

    I wish you Godspeed in your new organization, John, and under your new leader. "Let not your song end with its singing, but let it fill the world with its harmony ..."

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