Wednesday, June 13, 2018

"O, What a Tangled Web We Weave . . ."

" . . . when first we practice to deceive." That's a famous quote, frequently misattributed to Shakespeare, that comes from the epic poem Marmion, by Sir Walter Scott. And it perfectly describes the current situation with the Episcopal Church case in South Carolina.

For you see, the Episcopalians conspired with Associate Justice Kaye Hearn of the South Carolina Supreme Court to hide her bias and prejudging of the issues until she was allowed to hear and contribute her opinion to the case without objection from the attorneys for Bishop Mark Lawrence and the parishes in his Diocese of South Carolina. She was too biased to conceal her partisanship in the oral argument of the case, and then she displayed it overtly when she ruled against Bishop Lawrence and his parishes -- even going so far as to single him out for "betraying his vows of ordination" and for "breaches of fiduciary duty."

(Note to Justice Hearn: the secular courts cannot, consistently with the First Amendment, entertain questions as to whether a cleric in a religious denomination has broken faith with it, or acted in breach of the unique duties owed by a bishop to the church in which he sits. So your opinion that expresses your views on those issues was ultra vires -- beyond your powers to decide.)

And then, having delivered her coup de grace to Bishop Lawrence, Justice Hearn finally saw fit to recuse herself from the case -- after she had signed her opinion!

That opinion was one of five in the case, no two of which followed the same reasoning.  (To be sure, Justices Pleicones and Hearn "concurred" in each other's opinion, but Justice Hearn based her result on grounds other than those of Justice Pleicones, such as the law of constructive trusts.) Given such a splintered result, what is the trial court judge to do on remand?

Here are the conclusions to each of the three opinions agreeing that Judge Goodstein's judgment below should be reversed:

Pleicones, J.: "Further, the civil courts in South Carolina cannot decide disputes which are governed by church polity and governance concerning property ownership.  For the reasons given above, I have determined that the real and personal property disputes sought to be adjudicated in this civil lawsuit are 'question[s] of religious law or doctrine masquerading as a dispute over church property [and] corporate control . . . .' See All Saints at 445, 685 S.E.2d at 172. I find, therefore, the Court 'must defer to the decision of the proper church judicatories . . . .'  Id.
. . . For the reasons given above, I would reverse the circuit court's order and also join Justice Hearn's opinion."

Hearn, J.: "Based on our doctrine of deference to ecclesiastical authority, the Appellants represent the true Lower Diocese of the Protestant Episcopal Church in South Carolina and are therefore entitled to all property, including Camp Saint Christopher and the emblems, seals, and trademarks associated with the National Church. This holding is based on the National Church's recognition of Charles vonRosenberg as its Bishop and the express trust imposed on Respondents' property by the Dennis Canon, as well as on state corporate law principles." [Footnote omitted.]

Beatty, C.J.: "Thus, in contrast to the majority, I would find the parishes that did not expressly accede to the Dennis Canon cannot be divested of their property. Because there was no writing purporting to create a trust and they took no other legal action to transfer ownership of their property, I believe these parishes merely promised allegiance to the hierarchical national church. Without more, this promise cannot deprive them of their ownership rights in their property. However, I agree with the majority as to the disposition of the remaining parishes because their express accession to the Dennis Canon was sufficient to create an irrevocable trust. [Footnote omitted.] In conclusion, I readily acknowledge the controversy surrounding this case and the ramifications of the Court's decision. Even so, my decision cannot be driven by personal beliefs or a desired result. Strictly applying neutral principles of law, which I believe this property dispute mandates, I would affirm in part and reverse in part the order of the circuit court."

Thus two of the Justices viewed this case as one in which the civil courts should "defer" to the "ecclesiastical authorities" -- even though South Carolina is a "neutral principles" State, in which "deference" has no role! -- while the third reaches his result based "strictly applying neutral principles of law." Two of them simply "reverse" the decision below (and one only in part), while only Justice Hearn declares the whole kit and caboodle to belong to her own denomination.

The first two Justices would thus have overruled the leading South Carolina neutral principles case, All Saints Parish Waccamaw v. Protestant Episcopal Church in the Diocese of South Carolina, but two votes do not suffice for that. They would have required a third vote to overrule that decision, and they never obtained that third vote. So the neutral principles doctrine of All Saints Waccamaw stands unchanged.

Nor did Justice Hearn get any other Justice to buy into her "constructive trust" rationale (unless Justice Pleicones may be said to have done so by "joining" in her opinion). But that was not a ground urged on appeal by ECUSA or its rump diocese -- so Justice Hearn gratuitously inserted her views on an issue that was not properly before the Court.

Finally, only two of the Justices (Hearn and Beatty) mentioned Camp Christopher -- the retreat property that belongs not to any one parish, but to the Diocese itself. The Dennis Canon does not apply to the property of a diocese, and so it cannot be used to transfer ownership. For Justice Hearn, "deference" requires that result, while for Chief Justice Beatty, the result follows from the fact that he cannot see how Bishop Lawrence's Diocese is the "successor" to the diocese that owned the property before the lawsuit began. (But the Diocese did not go anywhere -- it is still the same South Carolina religious corporation it always was. So how can there be any question of whether a Diocese can "succeed" itself? The Chief Justice went out on a limb, and no one joined him.)

An even bigger problem for Judge Goodstein on remand, however, is how she should regard the opinion of Justice Hearn, who belatedly recused herself due to a (presumed) perception of a conflict of interest. (You think?) Which is to say, she never should have participated in the case to begin with. In light of that fact, why should attention be paid any longer to her views of the case? To give effect to them would be to allow a conflict of interest to decide the case's outcome, when courts are required to avoid all conflicts in order to ensure their impartiality.

If Justice Hearn's opinion and vote are disregarded, we then have a situation in which the vote of the South Carolina Supreme Court was only 2-2 for reversal, which means that Judge Goodstein's previous order would not be reversed, but would stand as the final decision in the case. In other words, Justice Hearn's deceptive tactic of waiting for the petition for rehearing to recuse herself (thereby ensuring a 2-2 vote against granting the rehearing) would be turned against her, and used instead to affirm the judgment below.

Can you imagine how the ECUSA attorneys will jump and yell and stamp their feet if Judge Goodstein takes that position on remand? But what can they do otherwise, if she does? The most they could do is take another appeal up to the South Carolina Court of Appeals, and then ask the Supreme Court to take the case. But if the case gets that far, Justice Hearn will no longer be able to participate in it. The outcome would thus not be assured at all.

This mess is to be laid entirely at the feet of Justice Hearn and the denomination of which she is a devout and practicing member, namely, the Episcopal Church. They conspired together, as I charge, to obtain the result they wanted by concealing the open bias that Justice Hearn later felt bold enough to display. And then, by recusing herself only at the last minute, Justice Hearn has managed to enshroud all her previous actions in the case with doubt and uncertainty as to their validity.

Only another (and very different) South Carolina Supreme Court can sort out this mess. In this Curmudgeon's view, Bishop Lawrence and his attorneys should take the firm position that with Justice Hearn's recognition that she never should have participated in the case, her opinion must be disregarded just as if she had openly withdrawn it. To give it any shrift at all would be to sanction open bias and partiality in our court system, and thereby undermine the rule of law.

 [UPDATE 06/14/18: I am informed that the "Supreme Court" (which three Justices, after Justice Hearn's recusal, I don't yet know) "remitted" (not "remanded") the case to a different circuit court and judge -- to Judge Edgar Dickson of Orangeburg County. That means that Judge Goodstein will also play no further role in these proceedings, while Judge Dickson is a blank slate.

Nothing in that news changes the logic of my argument, however. The point is that Justice Hearn's participation in the case was invalid, and that she herself has acknowledged it was invalid. An invalid vote is a nullity, and cannot be counted.]

15 comments:

  1. Justice Hearn's opinion should be disregarded, and the original court order should stand. It was thorough and correct. Whether that will happen, I don't know. This mess is a major humiliation for South Carolina.

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  2. At least one church only acceded to the Articles of Religion and they were among the 28 or 29 that stand to lose their property.

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  3. It seems like being on the "right side" of an issue is no guarantee of a fair hearing or decision. The hope for justice is out there from those of us in the DSJ.

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  4. Why would the court "remit" the case to another judge, not the original trial judge? I smell the fell hand of Justice Hearn and the two judges who accepted her defense of ECUSA. Have they found a judge willing to ignore Judge Goodstein's careful opinion and the mess at the SC Supreme Court?

    If I were a resident of South Carolina I would be seriously disturbed about its Supreme Court.

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    1. It appears that, since the Chief Justice has the power to assign lower court judges to particular areas and cases, it was Chief Justice Beatty who alone made the decision to reassign the case on remand. Likewise, it appears it was the Chief Justice who refused Justice Kittredge's request to have a fifth justice appointed to decide the petition for rehearing. Finally, it was the Chief Justice who refused to give any rationale for his ruling that some 29 parishes had made written accessions to the Dennis Canon -- when he had lifted that number out of a footnote in one of ECUSA's briefs.

      The briefs of parties to the case are not evidence on which a court may base its decision. That is why many of the 29 parishes are prepared to show, by actual documentation, that they never "acceded" in a signed writing to the national canons after adoption of the Dennis Canon in 1979.

      This is just one of the major problems with the decision that the Chief Justice and his two colleagues (Pleicones and Hearn) tried to sweep under the rug. As far as I am able to discern, Justice Beatty is not acting in this case as a real Justice of the Supreme Court, let alone as its Chief Justice. He seems equally culpable, along with the other two, in determining to decide this case not by weighing the facts in light of the law, but by arriving at the result desired and then making it up how to get there.

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    2. Does South Carolina law require a written accession for the Dennis Canon to effectively create a trust?

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    3. It is more correct to say that South Carolina law still does not recognize the Dennis Canon as being effective to create any trust, Paul B. Only CJ Beatty held that a written accession to the Church’s canons was sufficient to bring a DC trust into effect. For his two colleagues, the DC alone — even without a document of accession — sufficed to make its own trust, but they were a minority of two in so holding.

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  5. A new judge is always an unknown, but this is what two local representatives said about him when he was elected to the bench:

    Sen. Brad Hutto, D-Orangeburg, said he has known Dickson for about 20 years. While all three candidates deserved the position, he said Dickson will bring "a tremendous amount of experience and a varied background" to the bench.

    "He has a broad range of experience to draw from. … He will make a fine judge," Hutto said.

    He also cited Dickson's ability to listen.

    "He does not have any preconceived notions," Hutto said. "He is someone who will listen to both sides and listen to the facts before him."

    Rep. Gilda Cobb-Hunter, D-Orangeburg, said Dickson is "the kind of judge we need on the bench."

    "I believe he will be fair and treat all parties with respect and that he will try to use discretion when he can and not try to make laws from the bench," she said.


    Of course one of them was a partner in his law firm, but still an "ability to listen" and "not try to make laws from the bench" might be hopeful signs.

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  6. All five of the Supreme Court judges ascertained that Justice Hearn is a skilled and honourable judge, and did nothing wrong. Your charge of Conspiracy is wreckless and probably libellous. Jim Stevenson

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    1. The conclusions you have drawn are to the purpose of your own comfort. You are lacking in intellectual clarity and in ability to adhere to a constant principal. You are the hood ornament of situational ethics and convenience logic. "Well, I had to park by that fire plug because I was in a hurry. Sometimes people have to die….especially when I am in a hurry."
      Pray for the whole state of Christ's Church…

      El Gringo Viejo

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  7. Yes, Jim Stevenson, all five -- which means that Justice Hearn acted as judge in her own cause. But then, if her colleagues supposedly cleared her, why did she recuse herself in the end, anyway? Recusal is an act a judge takes in order to avoid the appearance of impropriety -- i.e., she recognized that her sitting on the case could give an appearance of impropriety. And regardless of when she admitted that fact, once she admitted it, she also admits she should not have participated -- so her participation despite the appearance of a conflict should not be rewarded by counting her vote.

    Yours is the typical view of those who claim a victory is a victory, whether secured by fair means or foul. I am concerned with upholding the integrity of the courts, even if that means taking a loss because one judge broke the rules. To win by subterfuge and impropriety is to lose in the long run. The fact that neither you nor Justice Hearn can understand that consequence says all that we need to know about your, and her, priorities.

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  8. "For we do not wrestle against flesh and blood, but against the rulers, against the authorities, against the cosmic powers over this present darkness, against the spiritual forces of evil in the heavenly places." Ephesians 6:12. To me, this is the reason the judgments do not make sense.

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  9. In matters other than those that specifically concern property law and religion, the South Carolina litigation pertaining to the Diocese of South Carolina involves the federal Constitution in interesting ways. The framers having wisely decided that they'd had enough of a personally-oriented government by fiat, thus designed the Constitution to provide for a government of law and not of 'men' (i.e., a government by personal fiat) and further, the Constitution provided for the newly-created federal government to be one of limited powers as distinct from from many broader powers of states. It's reasonable and defensible why the the U.S. Supreme Court would prefer to have a state deal with a case involving property and religion and would thus decline to review such cases except in compelling circumstances. However, interesting questions involved in the above litigation seem to be raised and to have important ramifications for state law. Thus, when a jurist assigned to a case chooses to exercise an option to recuse himself or herself from further participation in a case in which he or she has been involved, what is the duty of a state court reviewing a case to examine whether the fact of a recusal of a jurist was something that not only should have occurred, but, in fact, was, in essence, tardy, and a jurist's recusal should have occurred before it did?. Further, and most importantly, what is the duty of a state court reviewing a case to undertake action to see that its review must seek to rectify any error that might have occurred as a result of a jurist's "tardy" recusal? Given the powers intended to be exercised by states under the federal Constitution, these questions seem to be at the center of the responsibilities of state courts and not "side" matters or those limited to professional ethical matters.

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  10. "….And then, having delivered her coup de grace to Bishop Lawrence, Justice Hearn finally saw fit to recuse herself from the case — after she had signed her opinion!…"

    Is such an act even possible?…Is it valid?…Does it have standing? Had she taken too much or too little of her various medications?

    This is like a bunch of black and white movies all being shown on the same theatre screen simultaneously…Snake Pit, Dr. Jekyll and Mr. Hyde…Curly, Larry, and Moe…Pyscho…and a binge-out of The Muensters.
    We have judges essentially absorbing executive and legislative authority…ordering persons, public and private, what the precise construct of the Brave New World will be…once and for all!!!

    It carries the wafting scent of lunatic vacuousness such as the new glamour-girl bartendrix with the degree in "economics" who is assuring us that "democratic socialism" is the Thing Whose Time Has Come.
    We lament that she apparently did not hear about Maduro's recent conclusion about his "Great Experiment" in Venezuela. Besides, who needs toilet paper, baby formula, and water…or food? They have killed perhaps half of the working farm donkeys…for food.
    The leftist clamour to tear down what works and replace it with depravity, organic law, and the prohibition of tradition, religious, and personal liberty is totally depressing.

    And the blithering ignorance of a woman to point out that a priest such as the Bishop Lawrence, is to be called out…" for "betraying his vows of ordination" and for "breaches of fiduciary duty." Sheesh!!

    I am so steamed, you all please must forgive me…but the idea of a nincompoop such as this woman judging who is betraying vows is stunning. Perhaps some judge might wish to review her compliance with correct order and process expected of a neutral and competent jurist.
    I retire so as to lower my blood pressure and in order to re-read the Beatitudes, and hum a few bars from "Way Down Upon the Sewanee River"…That seems to help sometimes.

    El Gringo Viejo

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