Monday, July 21, 2014

S. Carolina Day 10: When Will ECUSA Start to Play by the Rules?

Why are ECUSA and its attorneys so incapable of following the rules? Could it be that the lawlessness of 815, as aided and abetted by its attorneys, has now infected ECUSA's ability to present a civil case under the rules of court in South Carolina?

From first appearances, that would seem to be the only conclusion to draw from today's proceedings. First, let me use the account from the Episcopal Diocese's Press Office to provide the necessary background for what I shall go on to explain, and then I will put things into context:


TEC Attorney Admits TEC Constitution Does Not Prevent a Diocese From Leaving the Denomination

Judge Refuses to Consider Evidence about Whether TEC is Hierarchical

ST. GEORGE, SC, JULY 21, 2014 – An attorney for The Episcopal Church on Monday acknowledged that – despite TEC’s repeated claim that dioceses may not leave the denomination – there is nothing in the group’s constitution that specifically prohibits such a disassociation.

“It’s true it doesn’t say whether a diocese in the U.S. can or cannot [leave],” said Mary Kostel, attorney for TEC. “It’s arguably ambiguous.” [Ed. Note: Ms. Kostel could scarcely expect that such an outlandish remark on her part should be allowed to pass without editorial comment. What she is saying is that the absence of a specific prohibition in a governing document makes it somehow ambiguous as to whether or not the drafters still meant to prohibit the act they specifically did not prohibit. Example: The First Amendment does not contain any express language about a person's "freedom to disassociate from a group." So such a "right" must be "ambiguous" -- because it was not made express in the language of the Amendment -- and thus whether such a right actually exists is up to Congress to decide. Contrary to Ms. Kostel, what the courts have always held is that the First Amendment's "freedom to associate" necessarily embraces a corresponding "freedom to disassociate." The question of "ambiguity" in such a case does not even rise to the point of being debatable.]

The comment came during the 10th day of trial in suit to prevent TEC from seizing the property of the Diocese of South Carolina and its parishes. Much of the morning was spent in a discussion between attorneys and Judge Diane S. Goodstein about the admissibility of testimony by historian Walter Edgar, a professor at the University of South Carolina.

Though Edgar was not identified as an expert witness [my emphasis -- Ed.], TEC wanted him to testify about his expertise and provide opinions on the hierarchical nature of TEC and to demonstrate that it has authority over its dioceses and parishes. But Judge Goodstein denied that he would be allowed to.

This is the second time in this trial that TEC failed to follow the rules on the use of witnesses. “When he shifts from saying ‘this is what it says,’ to ‘this is what it means’ we’ve crossed into expert testimony,” she said.

Judge Goodstein acknowledged that she understands TEC’s attorneys want to introduce the idea of a hierarchical denomination in order to pave the way for an expected appeal. However, she made clear that the claim is irrelevant to the case under South Carolina law.

“Let me be very clear that in every way the defendants [TEC attorneys] have done everything within their ability to establish the hierarchal nature of this church. I accept that,” she said. “Our courts have said we will not enforce the hierarchical decisions. We’re a neutrality state.” [Ed. Note: The Judge is on solid ground here. The Supreme Court of Carolina, in the All Saints Waccamaw decision, came down clearly against deference to hierarchical tribunals (i.e., as in Watson v. Jones), and in favor of the more recent "neutral principles" standard of Jones v. Wolf. ECUSA's attempt to put South Carolina back into the earlier deference camp is a non-starter. As a trial court Judge, Judge Goodstein is required to follow the Supreme Court's precedents -- she has no discretion if those precedents are on point. ECUSA itself had a full opportunity to argue for its "deference" standard in the Waccamaw case -- and it lost that argument at the highest level. So how can it possibly hope to persuade Judge Goodstein to acquiesce in its attempt to disregard what the South Carolina Supreme Court decided -- in a case, I repeat, in which ECUSA had full opportunity to argue as it is trying to do now? One of the hallmarks of the law is that, unlike a popular audience, it does not listen to you when you keep trying to go back to the same losing argument over and over again.] The afternoon was spent with Edgar literally reading highlighted excerpts from numerous journals of the Diocese of South Carolina [see his report linked earlier], showing that the Diocese participated in TEC activities and adhered to its rules while the Diocese was a member of the denomination. The diocese has never disputed that fact.

In fact, during the morning discussion before Edgar even began his testimony, Diocese of South Carolina attorney Henrietta Golding said, “If you’re a member of a club or fraternity, you abide by the laws. …There’s no relevance that the Diocese followed the Constitution and Canons. They were together at that time. There’s no significance because a party to this action followed the rules. We were members then.”

Edgar also spent some time testifying about individual financial contributions TEC had sent to the diocese and its parishes through the years. While he never mentioned a total number, after reading page after page of excerpts, it was clear that the denomination had provided several thousands of dollars.

However, when asked in cross-examination by Alan Runyon, lead attorney for the Plaintiff, Dr. Edgar testified that he had not been asked to, nor did he attempt to, see how much money the diocese had voluntarily given to TEC during the same time TEC says the Diocese received grants and loans "It could even be 900 percent more than you testified TEC has given over the same period and you do not know because you did not ask?" Runyan said.
I am still shaking my head over this report. I find it difficult to believe that ECUSA, the ECSC, and their collective attorneys could think that they would be allowed to call another witness to the stand to give "expert" opinions after they had failed to disclose him as an expert witness to their opponents, or to Judge Goodstein.

Professor Walter Edgar is an acknowledged authority on South Carolina history. The report he prepared for "disclosure" to the plaintiffs is replete with passage after passage he has pulled from historical documents pertaining to the Diocese of South Carolina, in order to demonstrate how, in his view, the Diocese always took note of, and followed the Constitution and Canons of what was then the Protestant Episcopal Church in the United States of America, or PECUSA.

But at the end of his expert report, there comes this amazing passage:
I will use my expertise as a professional historian to give a proper analysis and interpretation of any of the voluminous documents that are involved in the factual history I have been asked to present. I will render an expert opinion whenever necessary to explain the context of the history of the Diocese as it relates to these matters.

It would be impossible for me to list each and every expert opinion I might be required to render because such will depend upon issues raised by the Court and counsel in search of correct interpretations of the documents I am asked to inspect.
In effect, this passage asks the court to extend the witness carte blanche to render any opinions he sees fit to give -- without the necessity of alerting the other side in advance, so as to allow them to prepare for his cross-examination.

Needless to say, those are not the rules. The purpose of expert discovery in the first place is to (a) pin down the other side's expert to specific, articulated opinions -- which may then be subjected as necessary to the cross-examination required to test their merit; and (b) to avoid any element of surprise at trial when the expert does testify.

Apparently ECUSA did not bother to disclose Prof. Edgar as an expert, and represented that he would simply catalog an entire litany of historical facts, taken from the various diocesan and other records, for the Court to consider. Well, he was allowed to do that -- but he was stopped when it came to expressing his opinions about those facts, because he had not previously disclosed just what those "opinions" would be.

I am accordingly in some doubt about ECUSA's game strategy. Were they counting on the plaintiffs' lawyers waiving, or being ignorant of, the relevant rules? That's hardly a winning strategy.

Did they count upon the good graces of the Judge to excuse their ineptness? Again, after they flouted her orders to disclose the names and opinions to be rendered by all experts, how could they reasonably expect any quarter from her corner?

The case for ECUSA and ECSC has now lost any momentum it ever had. Instead, the case flounders as counsel struggle to put on what evidence they can after they are required to follow the same rules that everyone else in South Carolina must.

This is not the way to impress a trial judge who expressed herself as eager to be guided through the historical documents, and who looked forward to hearing from qualified experts for that purpose (see the beginning of the account for Day 9 at the link just given). This is not to deny that Prof. Edgar might well have been just such a capable expert. Instead, however, the opinions he might have offered have gone to the trash heap of "what might have been."

All that remains, as the diocesan press release notes, is a litany of instances where the Diocese of South Carolina, while it was a member in good standing of the national Church, diligently followed all the then rules to be a member in good standing.

But evidence that one followed the rules when one was a member of the club is not evidence that one agreed to permanent membership in the club. The two issues are entirely different, and evidence of the one is no proof of the other. (Nor is the evidence that the national Church gave a few ten thousands to the Diocese over the years, while the Diocese itself gave millions back to the national Church. That is evidence only of the good relationship that once existed between them, but which is no more as a result of the national Church's (and its SC followers') ham-handed insistence on seeing Bishop Lawrence illegally removed from his position.

In other words, evidence that everyone abided by the rules becomes irrelevant once one side proclaims that it does not intend to follow them any longer.

[I note that the ECSC website now has its account of the day's proceedings up -- but one reads it in vain to find out just why Prof. Edgar was prevented from offering opinion testimony as to the documents he highlighted. This must be why ECUSA cannot learn its lessons: from the highest level at 815, on down to the laborers in the ECSC trenches, all talk about following laws and rules, about playing the game fair and square, falls on deaf ears. They are interested in one thing, and one thing only: can they jawbone, or bully the court into letting them run things the way they want? When they are held to following the rules, it's all the other side's fault for insisting on those rules -- and the Judge is being "partial" and "biased" because she decides to enforce them.

I almost never link to this site because of its many factual and legal distortions, all dressed up in rather spiteful bias, but today I shall make an exception. Steve Skardon has on his Website a remarkable first-person account of how yesterday went, viewed from the standpoint of a remnant Episcopalian who senses that things are not going well, and is struggling to understand why. If he could just see how ECUSA and its attorneys behave as though "the rules are made for other folk, not for us," he might -- in light of his own personal experience with Judge Goodstein which he recounts for the reader's benefit -- begin to get a glimmer of why that attitude does not sit well in her courtroom.

I will have more to say about this brazen strategy in a separate post. For now, let us be content to observe that it has profited ECUSA and its rump group nothing. ]

1 comment:

  1. I attended a portion of the morning session of the trial yesterday (Monday July 22). Judge Goodstein bent over backwards to be accommodating to the TEC lawyers and respectful to Professor Edgar. So I was shocked to see that her very gracious demeanor was described on the SCEpiscopalians blog as "silly" and "bizarre" (the blogger apparently was quoting folks on the TEC side). When the direct examination of Professor Edgar by Mr. Tisdale finally started, Mr. Runyan stood and said he had not been given a copy of the document the witness was being examined on (the document was being shown on the large screen in the courtroom - I was sitting close to the front and could not read it). Mary Kostel said to Mr. Runyon "didn't you bring your hard drive?", then she walked over to get a thumb drive containing the 20,000 documents to hand to Mr. Runyon. The judge had already ruled that only excerpts from the 20,000 pages could be used, and these were supposed to be determined and marked by TEC and copies given to the Diocesan attorneys, but this had not been done, So, Mr. Tisdale thought he could still just proceed to question the witness on direct, without giving a copy of the particular document to Mr. Runyon so he could be looking it over and thus be able to cross examine the witness. TEC lawyers also didn't have copies for the court (which would be the hard copies of the exhibits being marked for identification and introduced into evidence - if admissible). Turning over 20,000 documents in discovery, electronically, does not obviate the necessity of having the actual particular document that the witness is testifying about there in hand - one to give to the opposing attorney, one to hand to the Clerk of Court as the exhibit. Now, the judge could have gotten annoyed by this, and could have said some embarrassing things to the TEC attorneys for thinking that Mr. Runyon was not entitled to have these documents handed to him, at the latest, just before the direct examination began. But Judge Goodstein was so kind, she actually took the "blame" herself and said she was sorry she didn't make it more clear that these excerpts needed to be marked and copies made and in court and given to the Plaintiffs' attorneys. It seemed pretty clear to me she was just being very gracious and letting the TEC lawyers "save face" for not having the excerpts marked and ready. I think she was cutting them a break because there WAS a great deal of work to be done and limited time to get it done (though they did have the entire weekend). One other point: Ms. Kostel's "it's ambiguous" argument that is commented upon by Mr. Haley was NOT the biggest stretch of the day by the TEC attorneys. Earlier in the morning, Ms. Kostel argued to the judge that since, in the All Saints case, the Diocese of SC argued that parishes cannot leave the diocese or The Episcopal Church, "it's res judicata" and the Diocese should not be allowed to argue otherwise now!! THAT is an "are you kidding me?!" argument. The SC Supreme Court ruled against the Diocese in the All Saints case. Duh! The SC Supreme Court changed the law in the state. But the losing argument by the Diocese in the All Saints case is "res judicata" as to the Diocese and they are stuck with the position they took then as the position they must take now? I don't know how she made this argument with a straight face.