Thursday, March 25, 2010

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

The spirit of St. Paul is alive and well in South Carolina. The result shows up the hollowness and the thoroughly unbiblical character of ECUSA's "take no prisoners" litigation strategy, and raises the value of Mark Lawrence's stock higher than ever before.

StandFirm in Faith has published (with permission) an email from the rector of the Episcopal Church (USA)'s parish of All Saints Waccamaw in South Carolina. Some of its members had previously filed a petition with the United States Supreme Court to review the decision of the South Carolina Supreme Court, rendered last September, which held that the Dennis Canon was ineffective by itself to create any trust interest in Episcopal parish property in South Carolina, as I discussed in this earlier post.

The email discloses that the Episcopal parish of All Saints Waccamaw has reached an agreement with the AMiA parish of All Saints Waccamaw, which withdrew from ECUSA in 2003, and which had ultimately (in the South Carolina Supreme Court) prevailed in the lawsuit brought against it by the Episcopal parish, as well as in an earlier lawsuit brought against it by the Diocese of South Carolina and by ECUSA itself.

The significant news about this settlement is that there is no indication that ECUSA or 815 Second Avenue participated to the slightest degree in the resolution of the lawsuit. From my previous post about the appeal, recall that the posture of this case in the United States Supreme Court was as follows.

There had been two lawsuits before the South Carolina Supreme Court. The first, which began in 2000, was brought by All Saints Parish, Waccamaw against the Diocese and ECUSA to establish that it owned the title to its property notwithstanding (among other reasons) the Dennis Canon. A second suit was filed in 2005 by the vestry appointed by Bishop Salmon to replace the vestry of the parish that had voted to realign with the Anglican Mission in America, an affiliate of the Anglican Province of Rwanda. The two lawsuits were eventually consolidated for trial, and then ultimately for appeal to the South Carolina Supreme Court.

As I explained in this post, the petition for review filed by the ECUSA parish created some potential complexities for the relations between ECUSA and the Diocese of South Carolina, headed by Bishop Lawrence. The situation was further complicated by the fact that ECUSA itself chose not to file its own petition (or to ask for an extension, as did the parish) by the December 2009 deadline within which to ask the U.S. Supreme Court for review.

That failure left ECUSA only the option to file a separate brief in support of the petition for review (and not a petition in its own right), as I described in this earlier post. But a brief in support of somebody else's petition for review does not preserve the same rights as does a petition for review filed by a party to the judgment below. ECUSA's right to a review of the South Carolina decision, therefore, depended entirely on the merits of the petition filed by the parish.

Rule 12 (6) of the Supreme Court's Rules provides in part:
All parties other than the petitioner are considered respondents, but any respondent who supports the position of a petitioner shall meet the petitioner’s time schedule for filing docu­ments, except that a response supporting the petition shall be filed within 20 days after the case is placed on the docket, and that time will not be extended.
Accordingly, because it did not file its own petition for review within the deadline, ECUSA was a "respondent" before the Supreme Court -- a "respondent in support of petitioner [All Saints parish]," to be exact. And now, because the petitioner All Saints (ECUSA) parish has agreed to settle with the respondent All Saints (AMiA) parish, that leaves ECUSA with no petition to support. Rule 46 (2) (a) of the Rules of the Supreme Court provides:
2. (a) A petitioner or appellant may file a motion to dis­miss the case, with proof of service as required by Rule 29, tendering to the Clerk any fees due and costs payable. No more than 15 days after service thereof, an adverse party may file an objection, limited to the amount of damages and costs in this Court alleged to be payable or to showing that the moving party does not represent all petitioners or appellants. The Clerk will not file any objection not so limited.
By Rule 12 (6), ECUSA became a "respondent", and not a "petitioner" or "appellant". However, its position as a respondent was not adverse to the petitioner All Saints parish, within the meaning of Rule 46 (2) (a), because ECUSA filed its own brief in support of the petition filed by All Saints. From this it follows that the power to dismiss the petition for review belongs to All Saints (ECUSA) parish, and to that parish alone. It will be up to an "adverse party" to object to the motion to dismiss, and by the announced settlement, there will be no such objection filed.

Thus there will be no chance of the Supreme Court accepting review of the South Carolina Supreme Court decision (that chance was already minimal, anyway -- as ECUSA's own attorneys appeared to recognize). Upon the filing of the parish's motion pursuant to the settlement agreement, the Clerk will wait the required 15 days, and then will enter an order dismissing the case.

At that point, the decision by the South Carolina Supreme Court will become the the law in South Carolina: the Dennis Canon will be everywhere and forever ineffective, within the borders of that State, to create any kind of trust interest in any Episcopal parish in favor of either the Diocese of South Carolina -- or the Diocese of Upper South Carolina, for that matter. The Dennis Canon will, in short, be dead in South Carolina.

This fact of life will have several repercussions for the current witch hunt which the Presiding Bishop of ECUSA has been conducting against the Right Reverend Mark Lawrence and his Diocese. In the first place, it will completely remove, as the grounds for any charges of "abandonment of the communion of this Church", Bishop Lawrence's and his Diocese's failure to join in ECUSA's brief in support of the petitioning parish. For if ECUSA was unwilling to file its own petition within the prescribed time limits, so as to preserve its rights, then the Diocese can scarcely be faulted for failing to file a brief in support of the parish's petition by the required deadline -- since ECUSA's failure left the parish in complete control of the proceedings to seek review.

But the second and even more important repercussion will be that ECUSA's strategy of "take no prisoners" will have been rendered completely ineffective within the State of South Carolina (and its two Dioceses). Such a strategy depends entirely for its success upon the upholding of the Dennis Canon as having created a valid trust, and the South Carolina Supreme Court has unequivocally held that the Dennis Canon accomplishes no such purpose. From the date the petition for review is dismissed by the Supreme Court Clerk, ECUSA and its Presiding Bishop will be powerless to threaten parishes in the State with any sanctions for leaving, or realigning.

And finally, this end result will emasculate (in South Carolina, at least) ECUSA's outlandish claim to be a "second Church" in the State, separate and apart from the two Dioceses themselves. ECUSA and 815 will be unable thereafter to bring about a different result in any court in the State by citing the Dennis Canon. (Of course, as this commenter expresses, hope always springs eternal.)

And the converse of this observation will be a strengthening of the hand of Bishop Lawrence. For now we see, by the settlement as communicated, the wisdom of his announced policy of not trying to alienate any further the parishes which had already become alienated from ECUSA. I predict that the settlement in Waccamaw Neck, when its details become public, will bear out fully the wisdom of Bishop Lawrence's announced intention to lower the heat against realigning parishes, and those thinking about realignment -- and to deal with the problem as Christians, guided by the words of St. Paul. This development will, in its turn, further undercut 815's disastrous litigation strategy, and light the way to further and future settlements along the same lines, as I suggested some time ago might be possible in this post.

As an attorney, I am always happy when clients and their opponents agree to bury the hatchet. But as the Chancellor for an Episcopal Church, I am doubly happy when my fellow Christians see the wisdom in the words of St. Paul. And I am triply happy for all the good parishioners of the Diocese of South Carolina, who are most fortunate to have a godly bishop who is blazing the way for all other Episcopalians to follow -- and who (not deliberately, of course, but simply out of his sheer willingness to follow in the footsteps of St. Paul) is pointing up the un-Christianlike and scripturally invalid policies being followed by the Presiding Bishop.

Godspeed, Bishop Lawrence! Godspeed, the Diocese of South Carolina, and both of the parishes of All Saints Waccamaw! Blessings be upon you, now and unto all future generations, and may your light so shine before other Episcopalians that they may see your good works, and glorify your Father, which is in Heaven.


  1. Thanks be to God !!!!!! Alleluia! Alleluia! Alleluia! Even though it is still Lent, i think the Alleluias are appropriate ! I hope this is mentioned at our diocesan convention today. This is excellent news indeed.

    I knew Bishop Lawrence did not want to be involved in anymore lawsuits, so I was surprised when All Saints filed a petition for review by the SCOTUS. However, I am even more thrilled to know that All Saint's (Diocese of SC) and All Saint's (AMiA) have come to a negotiated settlement Great news all around ! Especially for both congregations.

  2. I think you are making several assumptions in your post that are unwarranted.

    First, ECUSA needs no reason other than Bp Lawrence's continuing in the historic Christian Faith to depose him without trial for abandonment of communion. Those canons are written such that if Lawrence - or anyone else - is in communion with a church that is not in communion with ECUSA they may then be deposed forthwith. Manifestly, Lawrence is in communion with the Global South, the Global South are most certainly not in communion with ECUSA. QED.

    Second, removing the Denis Canon also removes any incentive for DioSC to remain within ECUSA. The law in SC is now settled - ECUSA can have no legal recourse should DioSC not only withdraw from every single governing relationship with ECUSA Central but also completely and finally withdraw from ECUSA as Qunicy and Fort Worth have done. It is clear the conditions Lawrence set when he agreed to remain in ECUSA have now been completely and utterly breached.

    Now that DioSC can completely and legally remove themselves from ECUSA with no potential recourse against them - it seems to me they are in all conscience bound to depart from ECUSA as soon as possible - i.e. tomorrow.

  3. I am inclined to disagree with James's second point, although not being a lawyer I'm willing to stand corrected, Counselor.

    The removalof the Denis Canon as a Sword od Damocles hanging over Bishop Lawrence's head may well be reason to stay in TEC, at least in the short term. Should the Diocese as a whole leave, then TEC can hold up the Denis Canon as having never been successfully challenged in any diocese of the Episcopal Church. However, as long as South Carolina stays where it is, any other parish or diocese can point to South Carolina as precedent-- perhaps not 'binding' precedent in other states, but a legal precedent none the less.

    The Diocese of South Carolina could be 815's worst nightmare...

  4. A.S. - will this outcome have any bearing on the FTW case?


  5. Still, it would have been interesting if the Dennis Canon had been thrown out by the SCOTUS. There was some downside, but much greater upside. Perhaps another day.

  6. James, ECUSA has never declared itself "out of communion" with any other province of the Anglican Communion, so it would make nonsense for them to charge Bishop Lawrence with "abandonment of communion" for being in ECUSA, which considers itself in communion with all 37 other provinces of the Communion. If the DSC were to leave ECUSA and realign with the Province of the Southern Cone, it would be joining a branch of the same Communion, and so there would still be no occasion of "abandonment" -- on that ground. Instead, ECUSA would charge Bishop Lawrence with a renunciation of the "discipline" of ECUSA, by supposedly breaking his ordination vows, and that would make out the basis for charges of "abandonment."

    But I do not see Bishop Lawrence leading his Diocese out of ECUSA any time soon. They will have to come up with some other act which to them is a violation of "discipline."

    Fr. Z+, I think your second paragraph is correct -- invalidating the Dennis Canon in South Carolina takes away the only leverage ECUSA had against individual parishes. So now there is less of a threat from ECUSA, and more reason for SC to stand its ground against usurpation by the PB by staying in. (BTW, to subscribe to a comment thread, just click on the link at the bottom -- that's why I rejected your "subscribe" comment, because it doesn't accomplish anything.)

    David J, the South Carolina decision has only a tangential bearing on the issues in Ft Worth, because the Dennis Canon is not involved in the Ft Worth litigation -- there is only a claim of an "implied trust", for which Texas law and precedent would have to be applied.

  7. RE "invalidating the Dennis Canon in South Carolina takes away the only leverage ECUSA had against individual parishes"

    When I read the SC Supreme Court's decision in All Saints Waccamaw, I do not find that it invalidates the "Dennis Canon" in anyway. The opinion introduces Canon 1.7.4, then ignores it completely in its analysis - basing its ruling on extremely narrow factual issues.

    I say this not in defense of the PB, or 815, or the irregular, non-canonical 'chancellor' to the PB, but to make sure that folks do not put too many eggs in the All Saints Waccamaw basket. I could easily distinguish this opinion in a case with different facts.

    Our safest course, thus, is not to put our faith in caselaw (!).

    I am pleased the litigation is over (there was a heartfelt, emotional and sustained standing ovation yesterday at the SC Diocesan Covention at St. Paul's Summerville when Bishop Mark came to that point in his address). I nevertheless worry that the All Saints decision will actually come back to haunt us.

  8. tryptich, here is the exact language from the Court's opinion, with bold added for emphasis:

    "A trust 'may be created by either declaration of trust or by transfer of property….' Dreher v. Dreher, 370 S.C. 75, 80, 634 S.E.2d 646, 648 (2006). It is an axiomatic principle of law that a person or entity must hold title to property in order to declare that it is held in trust for the benefit of another or transfer legal title to one person for the benefit of another. The Diocese did not, at the time it recorded the 2000 Notice, have any interest in the congregation’s property."

    Nor did the Diocese have any interest in any other parish's separate property when the Dennis Canon was enacted in 1979. Ergo, the Canon created no trust in any South Carolina real property at the time, or at any time since.

    The Court does not need to "invalidate" the Dennis Canon as such -- indeed, to say so would be to violate the First Amendment's free exercise clause. All it needed to do was to find that the "trust" it purported to create was not in "legally cognizable form", to quote Jones v. Wolf. And that is just what it did.