Decision in South Carolina Case Expected Soon

Today, at the request of Circuit Judge Diane Goodstein, both sides in the South Carolina case are submitting proposed forms of a final decision and order for her to sign. She will most likely use one of the two versions as a basis for her own written decision, which she could issue as early as next week.

The South Carolina decision, when it comes, will not be written on a blank slate. As a trial judge, Judge Goodstein is bound to follow and apply precedents of the South Carolina Supreme Court. In 2009 that Court handed down its decision in the case of All Saints Parish Waccamaw v. Protestant Episcopal Church in South Carolina, and thereby established that church property disputes in the State are to be decided under "neutral principles of law."

In the context of the present dispute, this means that the Court will base its final decision upon a close examination of the various deeds and other documents evidencing ownership and title, as well as the governing documents (constitution, canons, articles and bylaws) of the parishes, the Diocese, and of the Episcopal Church (USA) itself.

As to the ability of the Diocese to withdraw from ECUSA, it would seem that it has already been finally adjudicated (by the courts of Illinois) that there is no language in the Constitution or canons of ECUSA which would prevent a Diocese from withdrawing. That is also a decision drawn under neutral principles, and so is in harmony with the method shown in the All Saints Waccamaw case. I should think that Judge Goodstein will find the reasoning of those two cases both persuasive and binding upon her.

Resolution of that question will not, however, necessarily resolve the issue of property held in trust. Under the Waccamaw decision again, an express written trust of some kind will be required -- one that satisfies the Statute of Frauds under South Carolina law (it must be in writing, and signed by the actual owner of the person so placing the property into a trust). The Dennis Canon alone will not work -- that was one of the express holdings in the Waccamaw case which will be binding upon Judge Goodstein.

There was no evidence of any such trust document or documents offered at the trial, to my knowledge. Consequently, the decision on this point, while open, should not be a difficult one under neutral principles.

That leaves as a final question whether each parish duly followed South Carolina law and procedure in amending its articles and bylaws so as to remove any affiliation with ECUSA -- although I cannot see how it would be crucial, if the Court decides that the Diocese properly withdrew. It is the Dioceses, and not the individual parishes, that make up the actual membership of ECUSA itself.

A parish affiliates with ECUSA by virtue of being a member of an ECUSA Diocese, and when that Diocese withdraws, the parish's affiliation is thereby terminated as well -- as long as the parish chooses to stay a member of the withdrawing Diocese. Here the Diocese freely allowed its member parishes to choose which affiliation they wanted to keep, and did nothing to prevent the withdrawal of those that wanted to remain with ECUSA.

One hopes, therefore, that neutral principles will again show the logical way to resolve this unfortunate dispute, which was started when those who were allowed to remain Episcopalians decided, in league with ECUSA's leadership, that being allowed to retain their own properties was not enough -- they just had to have it all. (The Diocese sued ECUSA initially only to keep its own name and trademarks; it was ECUSA, and later its rump group, that broadened the suit so as to lay claim to all of the diocesan and parish real and personal property.)

Stay tuned -- we should know shortly what the Judge decides.