More Court Proceedings in South Carolina

The Episcopal Church (USA) and its remnant group in South Carolina, ECSC, are hanging on to a federal trademark infringement lawsuit by their fingernails. The attorneys appeared yesterday before Senior U. S. District Judge C. Weston Houck on the motion brought by Bishop Mark Lawrence of the Episcopal Diocese of South Carolina to dismiss or stay the action filed in that court by ECUSA Bishop vonRosenberg for an injunction under the Lanham Act to prevent Bishop Lawrence and his Diocese from using their own historic name and trademarks. (For more background on the issues at stake, see this earlier post.)

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.

Judge Goodstein ordered all parties to respond to all outstanding discovery requests (Interrogatories, Requests for Admission, and for Production of Documents) by August 15. Both sides are to complete all written discovery on or before October 10, and all deposition discovery (including expert witnesses) by February 7, 2014. The case will then be ready for trial.

The Judge will hold further status conferences with the parties by telephone on August 9 and September 13, and then will require the attorneys to appear in person at a final status conference set for October 11. On that same date, the Court will hear all other motions noticed and outstanding in the case.

There are two primary motions outstanding at this point, both filed on behalf of Bishop Lawrence, his diocese, and its member parishes: (1) a motion for partial summary judgment that seeks a ruling that “the control of The Protestant Episcopal Church in the Diocese of South Carolina under the civil law of South Carolina is in its duly elected and authorized Board of Directors and Officers, all as alleged in Plaintiffs' Second Amended Complaint ”; and (2) a motion that seeks an order charging those in ECUSA and ECSC subject to the previous injunction (entered by consent, and deferring any opposition to a later date) with contempt of court – for multiple violations of that injunction.

The first motion is an obvious one, and calls for a decision solely under State law. The second motion cites the first violations as having occurred in connection with the invocation of the first special meeting of the remnant group in January of this year:

During the business session of the Special Convention on January 26, 2013, the association now called The Episcopal Church in South Carolina (ECSC), presented and adopted Resolutions that directly or indirectly used a registered name of the Plaintiff Diocese. … Specifically, a resolution references certain actions and resolutions that the Plaintiff Diocese took between 2009 and November 2012 and "that this Convention of The Episcopal Diocese of South Carolina declares them to be null and void and have no legal effect ... "… Other resolutions presented during the Convention specifically referenced Articles and Canons of the Plaintiff Diocese which were references to provisions in the Constitution and Canons of the Diocese of South Carolina. …

The motion goes on to point out that the subsequent gathering of the remnant group in March 2013 referred to itself as the “222^nd Annual Convention of the Diocese” on the agenda distributed to participants, and that they adopted at that meeting a Constitution and Canons that were identical to earlier ones of the plaintiff Diocese, and that as such, they contain in them over seventeen references to “the Diocese of South Carolina” – all in violation of the agreed terms of the injunction.

The remnant group has also retained to this day its first URL (http://www.episcopaldioceseofsc.org) only in order to redirect those looking for the “diocese” to its own site – again in violation of the injunction.

Finally, the motion makes the point that these were not haphazard or inadvertent violations, but the product of an animadversion to the court’s injunction which extended from the very top of the Church down to those executing its policies in the State of South Carolina. It does this by referring to the bizarre beginning of the address which the Presiding Bishop gave to the organizational meeting last January:

In an unmistakable allusion to the South Carolina judicial system, she began by telling a story about a glider that got too close to a no-fly zone near a nuclear power plant in Darlington County. The "local police" ordered him to land, insisting that he violated the no-fly zone while the pilot insisted there was none. He was arrested and taken to jail. Federal authorities heard about it, and the man was released on bond after a night in jail and the charges subsequently were dismissed. Continuing, she stated "local police don't have jurisdiction over airspace" and "these cops were flat out wrong." She then stated the reason for the story:

I tell you this story because it is indicative of attitudes we've seen here and in many other places. Somebody decides he knows the laws, and oversteps whatever authority he may have to dictate the fate of others who may in fact be obeying the law, and often a law for which the local tyrant is not the judge.

Well, "somebody" may soon discover just who "overstepped" their authority. Stay tuned.