Tuesday, February 25, 2020

ECUSA Attempts an End Run in South Carolina

Last week, in a brazen maneuver to cut matters short in the South Carolina litigation, the Episcopal Church (USA) and its ersatz diocese filed a request, invoking the original jurisdiction of the South Carolina Supreme Court, for that court to issue its writ of prohibition to prevent the lower court from conducting any further proceedings on remand in the matter.

Some non-legal commentators on the ECUSA side have used the word "appeal" to describe what the church did, but that term assumes there was an order from which to take an appeal -- and there wasn't, at least not yet.  The lower court judge assigned to the case on remand, Judge Edgar Dickson, had scheduled a hearing in the case for this Thursday to consider the motion and petitions filed by ECUSA and its diocese to appoint a special master, order an accounting and issue writs of execution to force the parishes to hand over their properties.

Given that ECUSA and its diocese have constantly complained that Judge Dickson has steadfastly ignored their motions and petitions, it is curious indeed to puzzle out just why they chose last week to try to cut matters short in the trial court, after the judge had notified all the parties that he would take up ECUSA's requests.  Perhaps they were afraid that he might actually deny them on their merits -- thereby creating an order that they would have to appeal.

By invoking the Supreme Court's original jurisdiction over its inferior courts, the ECUSA parties at this point are demonstrating outright that they no longer have any confidence in Judge Dickson's integrity to reach an impartial resolution of the puzzle presented to him by the five scattered opinions that came from the Court. Just as they requested the Court last June, ECUSA's attorneys want to have the Court step in now and put an end to further delay in implementing what they claim was the Court's "clear mandate."

The problem is, the Supreme Court's membership has changed since it rendered its fractured decision.  Two of the then Justices (Toal and Pleicones) have retired from the Court, while a third (Hearn) belatedly recused herself from taking any further part in the case.  That leaves only Chief Justice Donald Beatty and Justice John Kittredge out of the original panel, and those two were at odds with each other: the Chief Justice supported the official ECUSA line about the Dennis Canon, while Justice Kittredge was having nothing to do with any sort of remote trust that could be imposed on a parish's property without its written consent.

Under those circumstances, the success of the petition filed by ECUSA will at the outset turn upon the view of it by the two new appointees to the Supreme Court: Justice John Cannon Few and Justice George C. James, Jr.  If they agree between themselves on how to deal with the petition, their votes will carry the day by making the tally 3-1 (whether to deny the petition or to grant it). And if they disagree? The result (presuming that the C.J. and Kittredge are still at odds) would be a 2-2 tie, with the result that the writ could not issue.

Long and short of it: The Court will issue the petition restraining Judge Dickson only if the two new appointees both vote with the Chief Justice to grant the writ.

After all, there is nothing compelling the Court to be as impatient as ECUSA is to get a result; the Justices will each still collect their paychecks regardless of how they rule.  And after all the time and effort Judge Dickson has expended to get to the point where he is now ready to take up ECUSA's motions, one would think that the Court will be in no great hurry to take the case away from him, either.

Could it be that there is so little merit to the ECUSA side of the matter that they have grown desperate to avoid any actual ruling on just how weak their arguments are?

For instance: in their petition, ECUSA's attorneys bluster and say (p. 4):
This Court already reviewed the evidence from the trial record, considered the issues preserved for appeal, reached a final decision, and remitted this case to the Circuit Court for enforcement purposes. Petitioners (the prevailing parties before this Court) cannot be forced to re-litigate these issues nor can the Circuit Court re-adjudicate them. 
There is a good deal that these assertions simply gloss over, or take for granted. Because I have already commented extensively, in earlier posts, on the faults and discrepancies in the various individual opinions, I will not repeat that analysis here. Suffice it simply to point out one of the grossest exaggerations of all made by ECUSA and its attorneys, namely that Chief Justice Beatty's opinion showed that he agreed with Justices Pleicones and Hearn that the trial court's findings as to the ineffectiveness of the Dennis Canon to create any trust could be ignored. As I explained earlier:
From what the separate Justices state in their opinions, it has to be concluded that only two of them (Pleicones and Hearn) were in favor of disregarding the findings of the trial court, and of starting anew from scratch. The other three apparently believed that the trial court's findings of fact were binding upon them, subject only to a substantial evidence requirement in support.

. . . In other words, there were three votes out of five (a majority) to regard the trial court's findings of fact as binding upon the Supreme Court, rather than subject to de novo review. This analysis alone should give pause to those who triumphed in announcing that they had prevailed by a 3-2 vote.

In his separate opinion concurring partly in those of Justices Hearn and Pleicones, Chief Justice Beatty voted in favor of reversing the trial court's legal conclusion (following the rule handed down in the Waccamaw case -- see the previous post) that the Dennis Canon could not create an effective trust in South Carolina. Instead, C.J. Beatty concluded that the Canon, in combination with the individual parishes' supposed "accessions" through their corporate articles and bylaws, operated to create a binding and irrevocable trust on their properties in favor of the national Church and its diocese, as a matter of law.

This conclusion, as just noted, was one of law, not of fact. So the adjudicatory effect of Chief Justice Beatty's opinion depends upon his application of the law to the trial court's factual findings (which were binding upon the three members of the appellate court who rejected the "equity" standard of review). The problem that underlies Chief Justice Beatty's legal conclusion is that it rests upon certain assumptions of fact that were contrary to those found by the trial court (e.g., that the various "accessions" signed by the individual parishes were informed enough to operate as a consent to the creation of a trust that was legally recognizable ["cognizable"] under South Carolina law).

A good part of the petition for rehearing (pp. 18-22, and 24-31) is devoted to a detailed showing that there was never any express consent by the various parishes, under the specific wording of their so-called "accessions" to the national Church's canons (including its Dennis Canon after 1979), that would be sufficient under South Carolina trust law to create any kind of trust in favor of ECUSA and its local diocese in those parish properties.

Justice Beatty does not address these discrepancies -- he was unaware of them, since the documents were not made part of the record on appeal (because ECUSA never raised any appellate issue involving them). Justice Beatty apparently relied for his conclusion on the unsupported assertions of ECUSA's attorneys, made in a post-trial motion for reconsideration, that all the subject parishes had "acceded" to the Dennis Canon. He simply delivers an omnibus ruling that the standards for trust creation were met in the case of parishes who "acceded" to the national canons (i.e., according to the representations of ECUSA's attorneys -- which were not evidence in the case). 
Thus there is good reason to fear, once Judge Dickson cuts through the thickets of argument and reads what the Justices' individual opinions actually said and decided, that the trial court on remand will need to finish the job that the Supreme Court avoided: evaluate the actual evidence as to just which of the 29 parishes actually acceded to be bound by the terms of the Dennis Canon.

And that observation, I submit, goes a long way towards explaining just why ECUSA, its diocese and their attorneys all thought it time to prod the hibernating bear in its cave: better to face a sleepy bear than a judge who is actually taking the trouble to inform himself as to what happened. Stay tuned for more. 


Friday, September 20, 2019

Fallout from the South Carolina Travesty Continues

This blog has almost (but not quite) ceased its coverage of things that are wrong with the Episcopal Church (USA), or ECUSA, as I choose to dub it. The subject has become too desultory; the conduct of ECUSA and its leadership in wreaking havoc upon good and faithful Christians is beneath contempt, let alone notice. Out of respect and friendship for my many long-standing friends in South Carolina and Texas, however, I will continue to offer commentary on the events in those States as they continue to unfold.

Yesterday, in South Carolina, the federal district court there published its 73-page decision and ruling on the various trademark cases that were before it.  The court essentially invalidated the rights of Bishop Lawrence and his Diocese to their traditional names and marks, which they had enjoyed for the previous two and a half centuries. District Judge Gergel found that he was constrained to make this ruling because of a single isolated obiter dictum in a single (one out of five) opinion by the hopelessly fractured justices of the South Carolina Supreme Court in the earlier state-law case.

As documented extensively on this site, there was no single controlling opinion in that case.  Two justices wanted to overrule the holding in All Saints Parish of Waccamaw that ECUSA's Dennis Canon was not self-effecting in South Carolina (i.e., the Dennis Canon by itself could not impose a trust on the property of ECUSA parishes without their written consent). But two votes out of five do not a majority make, so the holding in All Saints Waccamaw still stands.

A third justice (Chief Justice Beatty) held that the Dennis Canon could create a trust on parish property if the parish itself had consented to be bound by that canon in writing.  Having no idea of just how many South Carolina parishes had done so (because the evidence of individual parish consents -- such as may have existed -- was not in the record before the Supreme Court), the justices simply lifted a number out of ECUSA's brief to that court, and duly assumed that 29 parishes had "acceded" in writing to the Dennis Canon, and so were bound by the trust it imposed. (See the decision, at n. 38.)

That made the third and deciding vote for the overturning of the holding of the trial court in Dorchester County to the contrary.  But whereas the trial court had looked at all of the so-called accession documents, and had declared them ineffective to constitute any form of consent to be bound by the Dennis Canon, that evidence had not been included in the record on appeal, because neither side was challenging the trial court's finding in that regard.  The bare and unsupported assertion in ECUSA's brief was simply argument -- not evidence -- to the contrary. Yet the Chief Justice's unquestioning adoption of ECUSA's unsupported number somehow became the law of the case: twenty-nine parishes had supposedly "acceded" in writing to the Canon, while another seven had not: therefore, the latter seven could hold on to their property, while the others could not.

Along his destructive way, Chief Justice Beatty tossed out another firebomb with his aside that "[i]n my view, the disassociated diocese [of Bishop Lawrence] can make no claim to being the successor to the Protestant Episcopal Church in the Diocese of South Carolina" (op., 421 S.C. 229, at 251 n. 29). He offered no legal reasoning to support his opinion. He did not concur with the views of Justices Hearn and Pleicones that the state court was bound by ECUSA's recognition of its replacement diocese and could not examine that issue under neutral principles of law. (Moreover, once Justice Hearn recused herself from the case after the fact, her views on the merits of the case deserved no deference whatsoever. So in actuality, Justice Gergel could have found there were only two justices out of four who ruled on who succeeded whom, and thus there was no clear majority on the state law issue of successorship.)


Justice Gergel, however, declined to consider any effect of Justice Hearn's belated recusal on the weight to be given to her opinion on the case. It was enough for him to deem that the "votes" of three justices had tied his hands on that question, so that he could not consider it afresh. In so concluding, Judge Gergel fell into the trap of confusing the secular succession of legal entities under the civil law with the ecclesiastical succession of religious entities in a denomination.

No one disputes, or could dispute, that the newly organized Episcopal Church in South Carolina (ECSC), which was organized for the first time at a meeting of its delegates in January 2013 and immediately recognized as a diocese by ECUSA without going through any of the formalities required by Article V of ECUSA's Constitution, was regarded by ECUSA as a successor to the Diocese of Bishop Lawrence which had earlier voted to dissociate from General Convention.  The vacancy left by that withdrawal obviously required a successor, and so ECSC was it.

But viewed in secular legal terms, the Diocese of Bishop Lawrence had its own continuity of existence.  It was still (under South Carolina secular law) the same unincorporated association of clergy and parishes after it voted to withdraw that it was before that vote -- it had the same bishop, the same headquarters, telephone number and address, the same employees and records: nothing had changed except for its affiliation with ECUSA.

And most notably, it still owned and possessed the same name, brands and marks as it had before its withdrawal.  Those were not given to it by ECUSA, but invented and trademarked by that Diocese on its own, as its own property.  Yet thanks to the aside by Justice Beatty in a footnote, the civil law question of legal successorship becomes subsumed under an ecclesiastical question which no one would dispute.

Or, stated another way: from an ecclesiastical law point of view, no one would take issue with Chief Justice Beatty's assertion. The last thing Bishop Lawrence's diocese wanted was to be seen as continuing as a member diocese of the apostate ECUSA. But from a civil law point of view, Justice Beatty's claim is simply wrong on its face.  An entity whose existence is recognized under South Carolina secular law does not cease to exist, or become some new entity altogether, simply because it changes its religious affiliation.

To readers of this blog, I apologize for seeming to harp on the same point again and again. The civil Courts in San Joaquin, Pittsburgh, Fort Worth (the Court of Appeal, not the Texas Supreme Court) and now South Carolina have one by one each succumbed to this confounding of ecclesiastical and secular law -- led there in each case by the misleading and deliberately confusing arguments of ECUSA's legal teams. The reason I am not blogging so much anymore on these subjects is that it is too dispiriting to see judges make the same mistake again and again and again, to ECUSA's benefit.



Sunday, March 24, 2019

Much Ado over Nothing [UPDATED]

The whole of the District of Columbia, to say nothing of the rest of the country, is on pins and needles as we wait to find out just what is in the final report that Special Prosecutor Robert Mueller has turned in to Attorney General William Barr. The latter is supposed to produce a summary of it for public consumption by the end of today. (See "UPDATE" below.)

As I write this post, no news source has yet claimed to be in possession of a copy of the report, or even of its conclusions. All we know at this point may be summed up in two statements:
(1) There will be no more indictments coming from the Special Prosecutor. His investigation is finished. 
(2) At no point in the process did the Special Prosecutor make any recommendation, or take any prosecutorial action, which the Attorney General had to block, or reject. The Special Prosecutor's investigation had no limits whatsoever (in terms of budget or otherwise) placed upon it, and the Department of Justice did nothing to hinder or interfere with it at any step along the way. 
Let me summarize from those two statements: Robert Mueller did not even try to indict President Trump, let alone subpoena him for questioning. Despite two years of unhampered investigation, costing tens of millions of dollars, Mr. Mueller found nothing on which to base any actionable charges against the President based on conduct during the 2016 election.

After two full years of insinuation, innuendo and inanity, in other words, neither the Special Prosecutor nor anyone else in Congress has produced or elicited the slightest evidence that President Trump's 2016 campaign conspired with any other persons, whether inside or outside the Soviet Union, to bring about the defeat of the Democratic Party's candidate in that election.

All contentions to the contrary, over the past two years, have been wishful thinking, baldfaced lies, or pure hogwash. It would be well to keep in mind those who repeatedly assured us that the evidence of duplicity was there, or would shortly be confirmed.

What is astonishing is how many partisan politicians are staking out their positions even before they know what is in Mr. Mueller's report. Because of those two irrefutable points I set out above, there are no grounds whatsoever upon which to expect that further investigation will lead to facts that could be used to impeach the President. Yet the partisans in Washington are insisting that no stone be left unturned -- that nothing in the report be withheld from them, even if to do so would violate the law (such as revealing testimony before the grand jury, which by law remains sealed).

Already the House committee chairmen are taking the tack that Mueller's investigation was "too limited" in scope, and that only a broad fishing expedition, backed by Congressional subpoena power, will finally reveal the hidden truths about the President's impeachable "high crimes and misdemeanors." In other words, they will never be satisfied with simply finding out what is in the Special Prosecutor's report.

Can the nation as a whole tolerate two more years of grandstanding, posturing, distortion, and yes, flat-out lying? And that spectacle on top of an election campaign with more than twenty contenders, each one grasping at ways to capture the public's attention?

Batten down the hatches. As the old salt said, "You ain't seen nuttin' yet."


[UPDATE 03/24/19, 4:15 PM PST: Attorney General Barr's four-page summary for Congress of the Mueller report has now been made public. It notes that the report itself consists of two parts: the first part addresses Russian interference with the 2016 presidential election; the second part deals with the factual issues bearing on whether the President attempted to obstruct justice in any way.

The summary states that with regard to the first part, "the Special Counsel's investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election." That should put a definitive end to speculation that Trump or anyone working for or with him "colluded" with the Russians -- but just watch how Democrats in the House will proceed to subpoena witnesses and documents as though that conclusion had never been expressed.

In contrast to the report's first part, which specifically exonerates President Trump and his campaign from any findings of conspiracy or coordination with the Russians ("collusion" is not a defined federal crime), the second part of the report neither establishes criminal acts by President Trump amounting to obstruction of justice, nor exonerates him from such charges. Instead, the Special Prosecutor noted the unique circumstances and problems in determining whether a sitting president could be found to have attempted to obstruct justice in the process of carrying our his duties to supervise the executive branch of government. His report thus catalogs all the conduct and evidence which the Special Counsel regarded as potentially relevant to the charge, and expressly leaves it to the Attorney General to make a "prosecutorial judgment" on the matter in light of DoJ policies and guidelines.

The Attorney General's letter to Congress spells out how he, in consultation with Deputy AG Rod Rosenstein, the Office of Legal Counsel and other departmental officials, and "after applying the principles of federal prosecution that guide our charging decisions . . . concluded that the evidence developed during the Special Counsel's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense." In other words, there will be no attempt to bring charges against President Trump for obstruction of justice.

This conclusion, while exonerating President Trump from the DoJ's point of view, unfortunately will not be the end of this business.  Watch for the Democrats in the House to demand that Attorney General Barr release to them all of the evidence and contents of the report so that they may use what Mr. Mueller gathered in their plans to draft a bill of impeachment against President Trump; and watch especially if House Speaker Pelosi backs off from her current stance against impeachment.]