Tuesday, November 26, 2013

Rump Diocese Tries "Hail Mary" Pass in South Carolina

Let's see ... when you're on your own 20-yard line, it's third down and still ten to go, you're behind 7-0 and there's just 30 seconds left in the half, what do you do as quarterback?

You send your ends out wide and long and hope to connect with what is called a "Hail Mary" pass.

Now in the current litigation in South Carolina, the drive by ECUSA's team to move the ball into federal court has been blocked at every maneuver. They are stuck back on their own 10-yard line, with just a few dozen seconds left on the clock. (The case in South Carolina's Court of Common Pleas for the County of Dorchester is due to go to trial early next summer; all discovery in the case has to be completed by February 7.) 

And so what do they decide to do?

The defendant rump group (but not yet ECUSA itself) throws a "Hail Mary" pass -- a motion to add, at this late date, four new defendants and eighteen new claims against those defendants, who are Bishop Mark Lawrence, James Lewis, Jeffrey Miller and Paul Fuener. The Rev. James Lewis serves as Bishop Lawrence's Canon to the Ordinary and Executive Secretary to the Diocesan Convention; the Revs. Miller and Fuener have both served as President of the Standing Committee of Mark Lawrence's Episcopal Diocese.

The very first claim the rump group seeks to assert demonstrates the flaw in the entire motion: it is a claim for alleged breach of "fiduciary duty." The theory of the claim is that Bishop Lawrence and the three additional priests each took vows upon their ordinations which imposed upon them "fiduciary duties ... to adhere to the Constitution and Canons of the Episcopal Church ... and of the Diocese ...".

It should be obvious to almost anyone that priests who break their ordination vows, or who violate the Constitution and Canons of the Church or of one of its Dioceses, cannot be sued in the civil courts for those actions; that is the entire purpose of Title IV ("Ecclesiastical Discipline") of the Canons. Indeed, Canon IV.19.2 as ECUSA currently observes it says, in no uncertain terms (my emphasis):
No member of the Church, whether lay or ordained, may seek to have the Constitution and Canons of the Church interpreted by a secular court, or resort to a secular court to address a dispute arising under the Constitution and Canons, or for any purpose of delay, hindrance, review or otherwise affecting any proceeding under this Title.
I fail to see, therefore, how the rump group could have authorized the motion to add additional parties to state any claim for breach of the Constitution and Canons -- or indeed, for breach of any fiduciary duties owed to the Church whatsoever. In the words of the Fifth District Appellate Court in Schofield v. Superior Court (2010) 190 Cal.App.4th 154, 165, such questions are "quintessentially ecclesiastical" -- they are issues "the First Amendment forbids us from adjudicating."

Provisional Bishop vonRosenberg must have authorized the filing of this pleading on behalf of his group. That group contains the very same people who brought disciplinary charges against Bishop Lawrence for canonical violations less serious than this. Will they now prefer charges against Bishop vonRosenberg? Don't hold your breath -- it's another case of "one rule for thee, another rule for me." The Canons are for use only against orthodox clergy who try to remain orthodox. The hypocrisy of it all, however, should be plain to any outsider.

So as to the first claim, at least, the motion to add new parties and state new claims violates not only ECUSA's own Canons, but the First Amendment, as well. What about the other claims?

The second ("Breach of Contract") fares no better. The "contracts" it alleges are wholly ecclesiastical ones: Bishop Lawrence's undertaking to perform the duties of a bishop, and Canon Lewis's undertaking to be a priest. Dismissed!

The same fate awaits the third through the seventh claims, which are all based on the "ordination vows and declarations" of the proposed Additional Parties.

Beginning with the eighth claim for the tort of conversion of property, however, the motion commits a new fundamental error: that of mistaking the actions of the Episcopal Diocese of South Carolina for the individual actions of Bishop Lawrence and the other three priests. Paragraph 152 baldly asserts:
152. Through unlawful ultra vires corporate manipulation, the Additional Parties converted the Diocese's property to their own use for a new religious organization conforming to their own personal religious beliefs.
Aside from the fact that the Episcopal Diocese of South Carolina is in no way "a new religious organization", but one which has existed under South Carolina law for over 225 years, the complaint of "conversion" would have to be asserted against it, and not the named individuals. If, as alleged, the acts in question were done on its behalf and for its benefit, then that is the entity to hold liable. (And of course, the Episcopal Diocese is already a party, and a claim for "conversion" has already been asserted against it in the lawsuit.)

The same objection lies for the ninth claim ("fraudulent transfers"), because the quitclaim deeds to parish properties were signed by the Additional Parties not in their individual capacities, but only as officers of the entity (the Diocese) which was quitclaiming any interest in the properties.

The tenth, twelfth, and thirteenth claims each seek the removal from their respective offices of, and other sanctions against, the Additional Parties -- for the same kinds of non-justiciable conduct complained of in the first seven claims, so they should go nowhere. And the eleventh claim ("Judicial Dissolution") in reality seeks no relief against the Additional Parties individually, but only against the Episcopal Diocese; it likewise is a non-starter.

The fourteenth and fifteenth claims simply repeat against the Additional Parties the same claims of trademark infringement which Bishop von Rosenberg sought unsuccessfully to assert against Bishop Lawrence in federal court. Again, as alleged, these claims mistake the corporate actions of the Episcopal Diocese for the individual acts of the defendants.

The sixteenth claim is based on a South Carolina statute (Sec. 33-31-180) with which I am unfamiliar, but which appears to call upon the courts to decide questions of religious doctrine in violation of the First Amendment, and if so, would today be unconstitutional (though perhaps not when it was originally passed).

The seventeenth claim is not a separate claim at all, but simply alleges that the defendants participated in an unlawful conspiracy -- but to do what? To commit the ecclesiastical acts alleged earlier, which are not capable of being examined in the civil courts. 

And the last claim is one for declaratory relief, based on all the preceding allegations. It should meet the same fate as the action alleged for declaratory relief in the Schofield case:
The dispute set forth in the request for declaratory relief in the first cause of action ... is quintessentially ecclesiastical. Accordingly, the trial court erred in adjudicating that cause of action and, upon proper motion, must dismiss that cause of action.
I am not familiar with South Carolina procedure, so I cannot say whether Judge Goodstein will take up these deficiencies on the motion to amend (add parties and claims) itself, or only after the amended pleading has been filed. Either way, I fail to see how this "Hail Mary" pass has any chance of success in court.


  1. Rather than a Hail Mary, I think they have tried to throw a Turducken. Which, if you know how a Turducken is constructed, will fall apart or get eaten pretty quickly if put into play.

  2. Have they forgotten this quote from Judge Goodstein? 'She also wrote that “adding the additional defendants would be futile.” ' From the Special Legal Defense Fund edition of the Diocese SC's Jubilate Deo (diocesan newspaper. I don't know if they are really this stupid or is it arrogance?? I suspect our lawyers will be looking at this very closely.

  3. Seemingly then, this filing could be ruled contemptuous with attorneys held liable. Or, will 'chopping wood' be given a pass?

  4. Seems more like fourth and goal on their own one yard line to me. Restating claims which have been dismissed in one venue or the other (maybe both) and inviting contempt and fraud sounds about as desperate as it can get for the Piskies.

  5. I doubt that the Hail Mary will work. With all the Anglo Catholics having been driven out of TEC, there is no one left familiar with that part of the playbook.

  6. Don't know RightRevGreg, However, there is still an injunction against TEC for using the name of the Diocese of SC. Just recently they have put up a link to their "223rd Annual Convention". http://www.episcopalchurchsc.org/223rd-annual-diocesan-convention-february-2014.html

    How can a group of parishes that did not exist until Jan 2013 be having their 223rd convention? Yep, you guessed it- by assuming the identity of the Diocese of SC *once again*