Anglican Curmudgeon: Litigation - the Diocese of South Carolina

For more than ten years, the Diocese of South Carolina has been home to the longest-running lawsuit involving an attempt to apply the Dennis Canon to a withdrawing parish. The lawsuit was actually begun by the parish, All Saints Parish, Waccamaw, in 2000 after the Diocese recorded a notice that it and ECUSA had a trust interest in its property, by virtue of the passage of the Dennis Canon in 1979. Here is what I wrote about the background to the suit in this earlier post:

The earliest (and, I would say, the only genuine) instance of a parish starting a lawsuit was in 2000, after a dispute arose between All Saints Parish, Pawley's Island, SC, the Diocese of South Carolina, and TEC in connection with the formation of the Anglican Mission in America. The Rev. Canon Charles Murphy, who had been rector of All Saints for over twenty years, was consecrated as an AMiA bishop in Singapore along with the Rev. John Rodgers. Bishop Edward Salmon, the diocesan of South Carolina, issued a pastoral letter expressing the canonical difficulties which the consecration created. Although Canon Murphy had announced before his consecration his intentions to remain at All Saints, alarm bells went off in the diocesan chancellor's office when it was subsequently learned that All Saints had ordered a title report on its property. This raised concerns because of what had happened earlier in Morehead City, North Carolina . . . . There St. Andrew's parish had conveyed its property to an AMiA entity without securing permission beforehand from either the Bishop or the Standing Committee as required by the applicable canons, and the deed had been recorded without any difficulty. As he explains in this letter to the members of All Saints, Bishop Salmon received advice from his chancellor that he should record with the local Register of Deeds a notice of what the Episcopal Church's canons provided with respect to conveyances of parish property. The parish considered this action as putting a cloud on their title (which they contended was in an 18th-century trust; see below), but as Bishop Salmon explains, since they were a parish in the Episcopal Church, it was the other way around: "If the permission of the Bishop and the Standing Committee are not given [to the conveyance], the title is clouded." In any event, All Saints (even though it had not yet voted to leave the Episcopal Church) brought an action to remove what it saw as a cloud on its property, and named as defendants the Diocese of South Carolina and The Episcopal Church. The latter filed counterclaims seeking to establish that the church property was held in trust for the Diocese and for TEC.

In 2003, a majority of the parish voted to leave the Diocese and affiliate with AMiA. Bishop Salmon appointed a new vestry for the parish that remained, and following a successful appeal from an initially adverse decision that vestry, joined by Bishop Salmon, the Diocese and TEC itself, filed in 2005 a second lawsuit against the vestry it replaced, seeking their ejectment from and the possession of the 60-acre church property. The two lawsuits (one from 2000 and the other from 2005) were consolidated, and tried to a jury. In April 2007, the trial court took the case away from the jury, saying that the legal issues involved were too complex, and needed to be resolved by the court, on the evidence presented to the jury. The judge handed down a lengthy and complex ruling granting judgment in part to both sides, but leaving ultimate ownership to be decided by the probate court.

That court will have some very knotty issues to untangle, as the title to the property was originally held by a charitable trust established under a 1745 will, in favor of "the Church of England". The original parish argues that since it has occupied the property continuously since the trust was established, it is now the beneficiary of that trust, which it contends is still valid. (It uses that argument to get around the Dennis Canon, contending that the earlier trust, established before there even was an Episcopal Church, controls.) The only problem is that the trustees stopped functioning as such centuries ago: the court named "John Doe" trustees to represent the unknown common-law heirs of the two original trustees named in 1745. Those "John Doe" trustees have aligned themselves with the original parish---not surprisingly, since both groups want the trust to continue to function and hold the property. The Diocese and the surviving TEC parish, on the other hand, maintain that the trust has long since merged into the identity of the parish, and that as the only hierarchically approved entity belonging to the successor to the Church of England in the United States, it now owns the property. As I mentioned, the trial court's ruling is now on appeal, and these ownership questions will probably not be sorted out until after the appellate court has weighed in on the other issues. Talk about a complex case! [A hat-tip to the ever-reliable Rev. Canon Kendall Harmon, with his personal knowledge of the scene, for helping me to sort out the strands.]

A complex case, indeed. But now the Supreme Court of South Carolina has issued its very clear and easy to follow opinion resolving the matter, by declaring that no trust could be created by the Dennis Canon (or its Diocesan counterpart) alone in South Carolina, because the law of that State requires that any trust be created only in a writing signed by the owner of the property being placed in trust. The Court also resolved the issue of the battling vestries by holding that the original All Saints vestry had acted fully within South Carolina law by amending its Parish Articles to remove the language which made the Parish subject to the Diocese of South Carolina. In doing so, the Court rejected the Diocese's argument that the vestry members became disqualified to hold their positions as a result of the vote, and pointed out that there was no restriction of any kind on the power of the Parish to amend its Articles, or any kind of requirement that an amendment must receive approval from the Diocese before it could take effect.

My other separate posts on this Diocese, the first of which lightly annotates the Supreme Court's decision, and the second of which discusses its reception among the Episcoleft, are linked below. It is hoped that this decision, combined with an enlightened attitude on the part of diocesan leaders in South Carolina, will result in these posts being my last posts on South Carolina.

Dennis Canon Loses in South Carolina

Illogic Flourishes in a Vacuum

ECUSA, Diocese of LA Starting to Watch Legal Expenses?

What in the World Is Going on in South Carolina?

All Saints Waccamaw: Episcopal Vestry Petitions SCOTUS

Calvary Syndrome Infects South Carolina

South Carolina: a Case Study in How to Tear a Church Apart

Runaway Wagon

The Via Media Movement: No Orthodoxy -- We're Episcopalian!

Spirit of St. Paul Alive and Well in S. Carolina

Wikileaks: New Disclosures re: 815's Strategy for South Carolina

Après Moi, le Déluge: Executive Council Fires on South Carolina

Episcopal Church Foments Strife and Civil War

Clearing up Misconceptions about South Carolina

Bishop Henderson: It's "Business as Usual" in the Church

Why Would Any Disciplinary Board Choose Ms. Hicks?

Absurdities in the Midst of a Crisis

The Kangaroo Court Should Resign in Toto