Friday, January 4, 2013

DioSC in Preemptive Strike against ECUSA's Attempted Identity Theft

The Diocese of South Carolina and its incorporated parishes have filed a preemptive lawsuit against the Episcopal Church (USA), an unincorporated religious denomination composed of other member dioceses, whose leadership has been busily engaged in trying to steal away the Diocese's secular identity.

(What a strange opening paragraph for a church law blogger. In what other field or area of human interest under the sun could such a description apply to what is going on? And the fact that these are all Christians we are talking about in ECUSA's leadership makes this development even more paradoxical.)

ECUSA has been asking for such a response for over four months now. No sooner had the Presiding Bishop announced last October that she had restricted Bishop Mark Lawrence from functioning in his episcopal office in South Carolina than the Diocese -- having anticipated such an attempt against its Bishop -- responded that ECUSA's move had triggered a series of resolutions which automatically declared the Diocese no longer a member of the national Church organization.

And that withdrawal apparently set in motion plans by the Presiding Bishop and her Chancellor which had been in the works for months before. Working closely with a small faction of dissidents in the Diocese, and an attorney hired to represent the national Church, the Presiding Bishop's office announced the formation of a "Steering Committee" to "reorganize the Diocese under new leadership." The announcement said there would be a special Convention called in March to appoint a new provisional Bishop to replace Bishop Lawrence -- apparently in anticipation of a vote by the House of Bishops at its Spring 2013 meeting to "depose" him, and so leave the see "vacant" (from ECUSA's point of view).

The "Steering Committee" and its agents immediately began acting as though they, and not Bishop Lawrence, were in charge of the Diocese -- a South Carolina organization originally formed in 1785, and incorporated under South Carolina law in 1973, long before Mark Lawrence became its 14th Bishop in 2007. They opened a Website featuring the Diocesan seal, and began sending out emails and correspondence under the same seal, purporting to come from the Diocese itself.

All of this was pursuant to a litigation strategy developed long ago by the Presiding Bishop's Chancellor, David Booth Beers, in connection with the four other dioceses that withdrew from ECUSA: the Dioceses of San Joaquin, Pittsburgh, Fort Worth and Quincy. In each instance, the Presiding Bishop would organize the dissidents, announce a "special" convention to elect a provisional Bishop, and then immediately file papers in court pretending to be the diocese that had left (repeating ECUSA's mantra that "people may leave, but dioceses may not"). By appropriating the identities of the departing dioceses, ECUSA hoped to gloss over the fact that each of the replacement organizations was a new legal entity in the eyes of the secular law, started from scratch.

The advantage of this ploy is that if ECUSA and its pseudo-diocese (which never had to apply for admission, like other new dioceses) could convince the court that their view of things was the correct one, then the court would order the departing diocese to surrender all of its property and bank accounts to the pseudo-entity created by ECUSA. And the ploy worked in the trial courts of Pittsburgh and Fort Worth. (The latter decision is now before the Texas Supreme Court, which could issue its decision any week now; the former decision was affirmed on appeal, on the grounds of a peculiarly ambiguous stipulation which the courts chose to read in ECUSA's favor.)  But the juries are still out in San Joaquin and Quincy.

And now matters have accelerated in South Carolina. In a repeat of the canonical abuse to which she had resorted in order to "remove" Bishop Jack L. Iker of Fort Worth without a hearing or vote by the House of Bishops, the Presiding Bishop declared that she "had accepted the voluntary renunciation of his orders" by Bishop Lawrence -- on the strength only of an address he had given at a diocesan convention held November 17. The "special convention" of the new entity was moved up to January, since there was no longer any need, from ECUSA's point of view, to wait for the House of Bishops to go through the motions of pretending to  "depose" Bishop Lawrence.

The complaint filed yesterday in the Court of Common Pleas for Dorchester County by the DSC, its Trustees, and sixteen individual parishes against just ECUSA itself seeks (1) declaratory relief that each plaintiff entity owns the title to its respective properties free and clear of any interest in favor of ECUSA; and (2) injunctive relief against ECUSA and its agents (including the Presiding Bishop and her local attorney, Thomas Tisdale) to prohibit them from misappropriating the name, corporate seal and other insignia of the Diocese of South Carolina. In justification of the relief sought, it contains the following allegation:
Thomas S. Tisdale, Jr. has spoken on behalf of TEC at public meetings since on or about November 7, 2012 where he has stated, among other things, that TEC and those acting at and under its direction and control:
i. will use the name and symbols of the Diocese of South Carolina;

ii. have opened a bank account in the name of the Diocese of South Carolina.

iii. will pursue lawsuits against the Diocese of South Carolina and against its parishes.
In addition, the complaint alleges that in the case of each of the plaintiff parishes:
Defendant and those under its control including individuals claiming to be members of Defendant have assumed, used, adopted [the parish]'s name and emblems by:
i. Posting [the parish]'s name or a name substantially similar on a website and improperly asserting that [the parish] is "in union with" the Defendant.

ii. Using [the parish]'s name or a name substantially similar to it to send email and other correspondence improperly asserting that [the parish] is "in union with" the Defendant.
The sixteen incorporated parishes joining in the lawsuit, of whom half predate the founding of ECUSA in 1789, are:

1. Christ St. Paul's Episcopal Church, Yonges Island
2. Church of the Cross, Inc., Bluffton
3. Church of the Holy Comforter, Sumter
4. Church of the Redeemer, Orangeburg
5. Saint Luke's Church, Hilton Head
6. St. John's Episcopal Church of Florence
7. St. Matthias Episcopal Church, Inc., Summerton
8. The (Cathedral) Church of St. Luke and St. Paul, Radcliffeboro
9. The Church of Our Saviour, Johns Island
10. The Church of the Good Shepherd, Charleston
11. The Protestant Episcopal Church of the Parish of Saint Philip, Charleston
12. The Parish of Saint Michael, Charleston
13. The Vestry and Church Wardens of The Episcopal Church of the Parish of Prince George Winyah, Georgetown
14. The Vestry and Church Wardens of The Episcopal Church of the Parish of St. Helena, Beaufort
15. The Vestry and Wardens of St. Paul's Church, Summerville
16. Trinity Church of Myrtle Beach

Given Mr. Tisdale's stated intentions, and given the track record of ECUSA in each of the other four cases involving dioceses, the filing of the lawsuit was an excellent preemptive move on the part of the Diocese and its incorporated parishes. Instead of their being heard only in response to the complaints brought in the first instance by ECUSA and its pseudo-group of dissidents, Bishop Lawrence and his churches will be able to tell their side of the story first. And that will count for a lot in the courts -- especially in South Carolina, which has the All Saints Waccamaw decision as a definitive precedent.

The case will thus provide a significant test for the cockamamie theories of Mr. Beers and his disciples, who claim (and act as though) ECUSA's Constitution and Canons absolutely prohibit the withdrawal of any of its dioceses, even though there are no words to that effect anywhere in them. The same theories will soon be tested in the courts of Texas, California and Illinois as well. I admit to being partial, because I am one of the attorneys arguing against ECUSA's position in the San Joaquin litigation (about which more soon). But I fail to see how an unwritten doctrine of permanent union can override State statutes and the local organizations' own governing documents, and be consistent with the First Amendment's freedom of association, to boot.

We are a nation of laws, and even churches must follow local law, just like everyone else. By its outlandish conduct in attempting all on its own (without first going to court) to appropriate the diocesan identity of South Carolina, ECUSA has not put itself into a good position for arguing its case. Now they will have to put their stakes on the table, and let the courts of South Carolina decide who is right.


  1. This arrogant over-reach, may prove fatal, legally speaking, for TEC's leadership.

  2. Very interesting as I am a member of one of the 16 parishes that filed the lawsuit. I wonder what strategy TEC has in place that they think will override the plain reading of SC law.

  3. Does this mean the PB will undergo a deposition if demanded?

  4. Interesting and salient comments all. I still believe that there is an even chance that the Supreme Court of Texas will find favourably for our general cause there. The notion of the Presiding Bishopette being deposed brings this poor old stonehenge Episcopalian the strength to smile a bit.
    As for over-reach, we all know that is when the unwise fall off the ladder.
    And, Alexi, what makes you think you know anything? Just because you are in the middle of the storm and have direct contact with it? (ha!ha!).
    Please keep up the good postings, all three of you, it is refreshing and encouraging.

    El Gringo Viejo

  5. One would think the first thing to do would be to subpeona TEC to produce +Mark Lawrence's letter of renunciation addressed to the PB. Since the PB accepted his renunciation, she must, by TEC's own canons and constitution, be in possession of such a letter .

  6. How does an unincorporated collection of interests-the TEC facade- have legal standing in SC? And (tongue in cheek) couldn't the real Diocese seize the bank account that is apparently being created?

    Just wondering?

  7. UP, yes, the DSC could subpoena the Presiding Bishop to give a deposition about her actions -- that was also done in the Virginia litigation.

    TJ, good thought -- but I'm afraid there's no mileage to be gained from it in the current litigation. Bishop Lawrence has left ECUSA, and whether or not ECUSA followed its procedures in removing him from their rolls is not his problem.

    Numbersguy, most states (and I believe SC is one of them) have statutes that allow unincorporated associations to sue and be sued in state courts. The only State I know that does not allow them to sue in their own name is Pennsylvania. There a trustee has to be appointed to represent the association in court.

    As for the bank account, the DSC would have no ability to seize it outright, but they could ask the bank to freeze the account pending the lawsuit. That would turn the tables on them -- and give them a dose of their own medicine.

  8. Quick question ... there is a mention in an ENS news story today about the DioSC applying for a US Trademark in November.

    I checked the US Trademark site, and noticed that a lawyer from N.C. entered the request, then dropped the request on Jan 3rd, after changing the address from the current DioSC location, to his office address in N.C.

    Does the firm WOMBLE CARLYLE SANDRIDGE & RICE mean anything to you ??

    If this is a duplicate post, please delete.

  9. RC - that firm is on record as representing both the DSC and one of the parishes in the recent lawsuit filed against ECUSA. See the complaint posted over at Anglican Ink.

  10. Are the summons and complaint posted on the Internet for review?

  11. Gemini Aura, yes -- the complaint may be downloaded from the link on this page.