Thursday, July 31, 2014

Making Sense of the Trial in South Carolina

In trying to make sense of the trial in South Carolina (which I did not attend, but know only from the reports of those who did), I noted certain pervasive themes.

First, the trial was a clash of diametrically opposed camps. Bishop Lawrence, his parishes and his Diocese were focused on going forward with their evangelical mission; the lawsuit was a drag on their ability to do so. Bishop vonRosenberg and his Episcopal Church (USA) were obsessed with looking back – to what they viewed as a hierarchical structure from the outset; to the prerogatives of national power that are concomitant to such a structure; and especially to the power wielded collectively by the House of Bishops, and by the Presiding Bishop in their absence.

Second, the trial was a clash of legal strategies dictated by the law of South Carolina. This case came to trial against the background of the South Carolina Supreme Court’s 2009 decision in All Saints Waccamaw Parish v. The Episcopal Church, a case I analyzed in this earlier post. The Court held two things: first, that a religious body who followed its own procedures, and South Carolina law, in amending its governing documents could not have those amendments declared void in the absence of superior church laws or rules forbidding such amendments, and which were in place before the dispute arose; and second, that the only kind of a religious trust that could have any effect under South Carolina law was one declared in a writing signed by the owner of the property being placed in trust – and not by the national church unilaterally, in its role as a putative beneficiary of any such trust.

Both holdings were premised on the declaration that South Carolina courts were to follow “neutral principles of law” in resolving church property disputes, and not by deferring automatically to determinations made internally by church bodies or personnel who were not the “highest judicatory bodies” in that church.

Given this backdrop, the strategy pursued by Bishop Lawrence and his attorneys was to emphasize the absence of any language of limitation or deference in the governing documents of either the diocese, or of its member parishes, and to show how they followed their own governing procedures in voting to leave the national Church. But the strategy pursued by ECUSA and its attorneys was designed to try to fool the trial court into thinking that this was not a dispute over property at all, but was instead a fight over opposing religious doctrines. (The First Amendment prohibits secular courts from getting involved in such disputes, and so ECUSA hoped that by painting the matter that way, the court would be forced to accept ECUSA’s designation of who were the true successors in interest to Bishop Lawrence’s diocese, once it voted to leave.)

To her great credit, Judge Goodstein refused to be baited into the trap which the defense steadfastly set for her with their objections, arguments, and proffered witnesses and testimony. Time and again she emphasized that her hands were bound by the All Saints Waccamaw decision, and that she could proceed upon no other ground except that dictated by neutral principles of law – which is to say, the ground upon which each and every other kind of property dispute is resolved in South Carolina courts of law. The remarkable thing is that I see no possible advantage to the strategy pursued by the defense, whether on appeal in the state or federal courts. One cannot get around the Waccamaw decision; on can only confront it head-on. By failing to do so during the fourteen days of trial, ECUSA pretty well conceded its own case.

Third, the trial was a battle over image. ECUSA was fighting over its brand as the church of America’s wealthy and powerful elite, whose roots go back to before the Revolution; Bishop Lawrence’s diocese was fighting for its place in the traditions of Anglicanism – which equally go back to before the Revolution. For ECUSA, other Anglicans must simply get used to what it does, because it claims to be the only legitimately Anglican franchise in America; for +Lawrence and his Episcopal (“bishop-led”) Diocese, ECUSA’s brand of Anglicanism is no Anglicanism at all – one needs to distance oneself from it as fully as possible, by claiming solidarity with GAFCON and similar Anglican groups.

Fourth, the immediate stakes were the money and the property – but in the final analysis, the real issues were power and authority. Bishop Lawrence and his diocese confined their initial lawsuit just to a claim against ECUSA to quiet title to their property, and prevent infringement of their seal and trademarks. Later, after the rump group (“ECSC”) formed, it was added as a defendant, because it was calling itself the “Episcopal Diocese of South Carolina.” Because of statements from 815 that the Church would seek to oust all of Bishop Lawrence’s congregations from their individual parish properties, thirty-five of those parishes joined as co-plaintiffs in the lawsuit to quiet title. True to form, ECUSA and ECSC then counterclaimed against each of the parishes, plus against each of their rectors and vestry members individually.

The naming of all those individual counter-defendants was a brazen attempt to intimidate them, by showing that ECUSA would spare no expense in forcing them all into court, and in trying to ruin them financially. There were no good legal reasons for multiplying the number of individual defendants, as ECUSA showed when it failed to update the status of each of them as old members rotated off their vestries, and new members came on. (Those who were no longer members still remained as named parties, while those who became new vestry members were not added.) The sole point was to name a whole bunch of individuals, and inconvenience them, and not to ensure that they had anything actually to do with the parishes.

By filing first in the State Circuit Court, and by obtaining a temporary restraining order at the outset, Bishop Lawrence and his attorneys had seized the initiative, and had placed ECUSA’s attorneys on the defensive. The latter sought to regain the initiative by filing a trademark infringement lawsuit in federal district court, and by noticing the removal of the main action from State to federal court. Once again, these moves multiplied the legal costs enormously – for no good legal reason other than to resort to sheer power in an attempt to gain the upper hand.

This made the defeat of ECUSA’s federal strategy even more significant, when Bishop Lawrence’s attorneys slowly but steadily persuaded the federal courts that they did not need to intervene, and to send the whole matter – trademarks and all – back to State court. At that point, ECUSA’s strategy became one of delay, delay and more delay, in an attempt to continue to run up the legal costs for Bishop Lawrence and his parishioners. And by deliberately and transparently seeking to delay the actual trial, ECUSA and its attorneys began to lose any credibility they may have had in the trial court.

Thus the trial had to open a day late, all because ECUSA delayed taking the parish depositions (remember those parishes they considered it so important to sue individually?) until the last possible minute in an effort to force the judge’s hand. Needless to say, that tactic earned them no points in the judge’s eyes. Yet the trial began on Tuesday, July 8 with Judge Goodstein energetically delving into the details of the dispute with Bishop Lawrence’s first two witnesses: his Chancellor Wade Logan, and his Canon to the Ordinary, the Rev. Jim Lewis.

After the opening witnesses laid the ecclesiastical and canonical framework for the lawsuit, there followed four days of testimony from witnesses for the individual parishes. Their questioning quickly fell into a pattern of going through their deeds, articles and bylaws, and Judge Goodstein had the parties expedite the testimony by stipulating to the admissibility of all the documents.

On Day 6 of the trial (July 15), ECUSA and its rump diocese finally got to begin their portion of the case, and the mood shifted almost immediately. They called three irrelevant witnesses – irrelevant, because their testimony was all directed toward the conduct of Mark Lawrence as the bishop of the Diocese. The case was not about Bishop Lawrence’s conduct; it was about the acts of the diocese and its parishes in deciding to leave ECUSA. But the dissidents had begun this sorry affair by personalizing their disgruntlement with Bishop Lawrence, and they just could not let it go.

On Day 7, ECUSA finally got to the meat of the matter by calling an acknowledged expert in South Carolina’s religious and non-profit corporations law, Professor Martin McWilliams of the University of South Carolina law school. He offered an elaborate theory as to why the diocese’s vote to secede from the national Church was invalid under South Carolina law: according to him, the diocese incorporated the national Church’s constitution and canons into its articles by reference, holus bolus, when it simply mentioned them in passing. Then, because the national governing documents (as amended from year to year) were part and parcel of the diocese’s corporate articles, it could not change those articles in any manner that was inconsistent with the Church’s governing documents.

This theory, however, had a hole in it so wide that one could drive a truck through it, and it was a simple matter for Bishop Lawrence’s counsel, on their cross-examination of Prof. McWilliams, to discredit it completely. First Prof. McWilliams conceded that there was no language in the national governing documents – even if they had been incorporated into the articles by the brief reference to them – which forbade a diocese from seceding, or from amending its articles in any manner whatsoever. And with that concession, any effect Prof. McWilliams might have had with his testimony was finished. For he next had to concede that the Diocese was wholly within its rights under South Carolina law when it amended its articles so as to remove its language of accession to the national Church.

After that major concession, the case for ECUSA and its rump group never regained its momentum, and their attorneys became ever more desperate in their tactics as they tried to recoup lost ground. On Day 8 they tried to call an expert witness they had not bothered to disclose by Judge Goodstein’s deadline, and she blocked the testimony after giving the hapless attorney trying to introduce it a good tongue-lashing for disregarding her rules.

Then the attorney compounded his offense by trying to sneak the excluded witness’ report (which addressed the supposed confusion brought about by the use of the name “Episcopal” in connection with both groups) by attaching it to the report of the next expert who was disclosed, and who was therefore allowed to testify. Judge Goodstein ordered him to take the report out from the exhibit, and not to refer to or mention any of its contents – for which I understand ECUSA had paid the expert approximately $1 million – ever again in her courtroom.

Still another undisclosed expert – the well-known South Carolina historian, Prof. Walter Edgar – was prevented from opining about any significance of the innumerable facts and documents about which he did testify. This left his testimony unexplained and unhelpful, like a map without place names or a legend.

All went downhill from there. Witnesses called to discredit Bishop Lawrence further (Bishop Clifton Daniel, Thomas Rickenbaker, and Bishop vonRosenberg) ended up adding to the credibility of his case – by again admitting that no language in the governing documents prohibited what his diocese had done, and by casting aspersions on his character that were easily deflected on cross-examination.

On Day 12 (July 23), the defense rested, and plaintiffs commenced their case in rebuttal, which was scarcely necessary after the immateriality of the defendants’ proffered case. Perhaps the nadir of the defense attorneys’ relationship with Judge Goodstein came on the next to last day of the trial (Day 13), when ECUSA co-counsel Mary Kostel tried to lecture Judge Goodstein about how she was “bound to accept” the truth of the Church’s preliminary certification that Bishop Lawrence had “abandoned the communion of this Church”. In proffering the exhibit during the defense case, Ms. Kostel had characterized it as a “final” decision against Bishop Lawrence.

But on Day 13, she made the mistake of crossing swords over the document with Bishop Lawrence’s Chancellor Wade Logan, who knows his canon law. He explained to the court that the document was only a preliminary finding on the route to deposition, and that only the House of Bishops could find actual abandonment after a hearing on the charges. When Judge Goodstein finally understood how Ms. Kostel, as an “officer of the court,” had misrepresented the nature of the document to her – a mischaracterization she had the temerity to repeat in her arguing the effect of the document – the steam began to come out of Judge Goodstein’s ears. She abruptly banged her gavel and ordered local counsel to take Ms. Kostel out of the courtroom and instruct her in her duties as an officer of the court, admitted only as a courtesy for the duration of the trial.

The next day, the trial finished without further incident, and with the testimony of Bishop Lawrence. He was easily able to refute the charges that he had plotted all along to take his diocese out of the Church (as though those charges were even relevant to the issues Judge Goodstein has to decide). It was perhaps a mark of how low the defendants’ mood and energy had sunk when his cross-examination by the Presiding Bishop’s Chancellor, Mr. David Booth Beers, ended on a pleasantry after a mere ten minutes of fencing, and without scoring any points.

Judge Goodstein now has the case on hold while the parties submit simultaneous opening and reply briefs over the next sixty days. After the briefs come in, she will take the matter under advisement, and probably issue her written decision within another thirty to sixty days, i.e., by Thanksgiving or thereabouts. For the multiple reasons I have summarized above – but especially because the gist of those reasons appears wholly to have gone over the defense’s collective heads – I expect Judge Goodstein to find in plaintiffs’ favor, and award them their properties, trademarks, and bank accounts free and clear of any claims by EC USA or its rump group. Indeed, ECUSA has yet formally to admit the latter as a full-fledged diocese under its much-touted Constitution and Canons. Why, indeed, should anyone respect those rules, when ECUSA cannot do so itself?


  1. A million dollar expert witness who was not used. My pledge dollars at work!

    1. Enter sounds off-stage of an Episcopalian who has tithed during his life....sounds of insane laughter gradually changing into those of a weeping person, and then the sobbing reverting again to the laughter.

      O! What tangled webs they weave....
      Those who practice to deceive!!!

      El Gringo Viejo

  2. It is genuinely not a pleasant thing for me to have to wait until sometime in November for the judge's decision. However, it is encouraging in a very real sense to read and re-read the judge's apparent commitment to reliance on the Waccamaw precedent.
    The detailed accounting of all of this information is sincerely appreciated. It is also noted that our Rabbi does not treat us as fools, ignorant people, or people who are not worthy of intellectual explanation and argument. I genuinely feel informed, and properly so, and therefore make my "three readings" willingly and happily.
    This blog truly is a Lighthouse upon the Stormy Coast.

    El Gringo Viejo