Wednesday, March 6, 2013

ECUSA's Desperation in South Carolina Knows No Bounds

One can but marvel at the madness that drives megalomania. First of all, it knows no boundaries: no matter what the odds or the ultimate cost, everything can be sacrificed so long as the sacrifice is seen as advancing the goal, which is to annihilate anything that appears to be threatening, or that is not already under complete subjugation. And individual megalomania is as nothing compared to the institutional variety, which signals all too often the last stage of an institution's eclipse. For when the rank and file are too ensconced in their ways to see where their leaders' follies and delusions are taking them, then the outrages of those leaders grow in proportion as the institution itself declines.

So it would appear to be in South Carolina. Having learned nothing from their experience with an identically framed federal lawsuit in Fort Worth, the Presiding Bishop and her Chancellor have now spotted Provisional Bishop Charles vonRosenberg to an ill-advised and futile gambit in the Charleston Division of the Federal District Court in South Carolina.

No less than three law firms were engaged (presumably at ECUSA's sole expense) to bring a complaint in that court, based on the federal trademark law known as the Lanham Act (15 U.S.C. Sections 1051 et seq.), against Bishop Mark Lawrence of the Episcopal Diocese of South Carolina. The claim is that Bishop Lawrence -- who just last month obtained a State court temporary injunction against ECUSA and its agents from using any of the marks or insignia of his Diocese -- is actually infringing on his own trademarks!

Only the lawsuit, you see, is structured and carefully pled so as not to reveal that ultimate self-contradiction in its allegations. For it does not recognize Bishop Lawrence as the bishop of any diocese, still less of the Diocese that elected him, and which pays his salary to be its Bishop. (At least the lawsuit calls him by his proper ecclesiastical title -- unlike the lawsuit which ECUSA's attorneys filed against Bishop Schofield in San Joaquin.) No, instead we are treated to twenty pages of allegations in 78 numbered paragraphs which sing the same one-note song: there is only one "Episcopal Diocese of South Carolina", the plaintiff Bishop vonRosenberg is its only Bishop, because he is the only one ECUSA officially recognizes, and Bishop Lawrence accordingly has no right to use the marks of that diocese. His unlawful and unauthorized use of those marks, which continues unabated, is injuring the "genuine Episcopal diocese", and so he must be enjoined.

Oh, and by the way, the lawsuit also seeks (see page 20, paragraph 5 of the prayer for relief) to have Bishop Lawrence account for and turn over all of the "profits" from his alleged misuse of the marks. Thus do we see how ECUSA regards the battle it is fighting: this is not about a church whose mission is to save souls; what is at stake is nothing less than the profits one can gain from not ministering to their souls, and having them just be contributing pew-sitters (whom the complaint actually describes as "consumers of religious services"!). There is no more damning paragraph in the entire document than that one paragraph five of the prayer.

So ECUSA is attempting, by the back door, to achieve what it has not yet been able to achieve through the state courts of South Carolina: the deposition of Mark Lawrence and the takeover of his entire Diocese, with its 28,000 parishioners in some sixty separate parishes and missions. For if it could succeed in federal court, the tables would be turned, and Bishop Lawrence would be enjoined, not ECUSA, from using the ancient (and fully registered) marks and insignia of the Diocese that was founded by the first American South Carolinians in 1785.

Can such an end run possibly succeed? Well, as lawyers we learn early never to say that nothing can possibly succeed, because courts are human, and humans are fallible. But let me just opine in this particular instance that the federal lawsuit in South Carolina will meet the exact same barrier that the one in Fort Worth did -- namely, there is an earlier pending lawsuit in a nearby State court, and federal courts are generally highly reluctant, if not actually forbidden, to interfere in state court proceedings which originated before those in federal court. So I fully expect the federal court in South Carolina to issue a stay of all proceedings on the complaint until that State court action is finally resolved.

There are many good reasons for so concluding. Perhaps the strongest one is the federal statute first enacted by Congress in 1793, known as the "Anti-Injunction Act", now codified as 28 U.S.C. Section 2283. Designed to minimize the possibility of judicial conflicts between federal and state courts, the law reads in its entirety as follows:
A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.
But that is just what Bishop vonRosenberg's lawsuit seeks: an injunction against Bishop Lawrence's use of his own Diocese's marks, which effectively would bar the latter from appearing in any court as the "Bishop of the Episcopal Diocese of South Carolina." So even though the lawsuit does not expressly request the stay, that is exactly what it seeks to accomplish.

None of the Anti-Injunction Act's exceptions applies in this case. To take the easiest first, there is obviously no prior federal court judgment to "protect or effectuate." And nothing threatens or impairs the federal court's jurisdiction over Lanham Act matters -- the State court proceedings do not even invoke or involve the Lanham Act.

So we come to the first exception. There is no express provision in the Lanham Act authorizing federal courts to stay proceedings in state courts, but that fact does not end the matter, as the United States Supreme Court has construed the provisions of other statutes, such as the Civil Rights Act (e.g., 42 U.S.C. Section 1983), to include such an express authorization where necessary. Nevertheless, what precedent there is (the Supreme Court has yet to decide the exact question) holds uniformly that no  provision in the Lanham Act overcomes the bar of the Anti-Injunction Act. A leading treatise on trademark law puts it this way:
If a state case on common law [trademark] issues was first filed, a federal court should stay or dismiss proceedings. Thus, a federal court should defer a decision pending resolution of similar issues in a prior-filed state court action. For example, if A has sued B in state court for trademark infringement, and the case is about to be decided, a federal court should stay proceedings in the case of B v. A brought upon similar issues. Upon resolution of the prior-filed action, the court in the second-filed action may be bound by collateral estoppel on many, if not all, vital issues. It would seem grossly inefficient for the court in the second-filed case to proceed to hear the case on the merits until resolution of the first-filed case.
(6 McCarthy on Trademarks and Unfair Competition, 4th ed., sec. 32:46 [footnotes omitted].)

That quotation says it all. The reason the South Carolina (or the Texas) federal court will stay the action as filed is so that the state court action, which began earlier, may finish first. Depending on what the state court decides, there may be no issues left for the federal court to decide. For the federal court to go ahead anyway would create a risk of irreconcilable decisions on the same issue. Any such conflict is needless and unseemly -- which is why the court will stay the second-brought action.

Having gone this far, I must now address what to me is the most troubling aspect about the filing of this particular lawsuit. For as acknowledged at the outset above, and as anyone can read in the complaint itself, the lawsuit claims that Bishop vonRosenberg is the Bishop of "the [one and only] Episcopal Diocese of South Carolina." Elsewhere -- and in the case caption itself -- it describes him as the Bishop of the Protestant Episcopal Church in the Diocese of South Carolina."

Yet just over a month ago, rather than proceed to a hearing on its right to use those words, ECUSA itself consented to the entry of a temporary injunction barring it from using those terms in South Carolina. How, then, can Bishop vonRosenberg even come into a court in South Carolina and describe himself in the prohibited terminology?

That, to me, is the $64,000 question. I am not sure what will stop Bishop Lawrence's attorneys from seeking a contempt of court citation against ECUSA and Bishop vonRosenberg and their attorneys in front of Circuit Judge Goodstein, or perhaps sanctions under Rule 11 of the Federal Rules of Civil Procedure in the federal district court in South Carolina. While one has a constitutional right to petition the government for redress by filing a complaint in court, one does not have the right to violate a valid State-court injunction in doing so, or to bend the facts by misrepresenting that one is under no restraint in doing so -- especially in such a blatant attempt to do an end-run around a State court.

Moreover, Rule 11 sanctions both parties and their attorneys for filing, signing or presenting pleadings to the court which are "presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation", or which present claims or contentions not "warranted by existing law" or any good-faith attempt to change existing law.  Thomas Tisdale, the South Carolina attorney who signed the federal complaint, is also the attorney who consented to the entry of the temporary injunction which prohibits his clients from representing that they are affiliated with "the Episcopal Diocese of South Carolina." How can his right hand not know what his left hand is doing?

This is why the megalomania currently possessing ECUSA as an institution is so dangerous. It tempts its agents to overstep the bounds which ordinary citizens and mortals must observe, and unless checked at some point, will go on until some terrible damage will result. As a church attorney, I would have cautioned any clergy bringing such a lawsuit to have beforehand a very strong opinion letter from outside counsel advising about the potential civil and financial risks of bringing such a lawsuit, together with a full indemnification agreement against any such risks. (Is this, perhaps, the reason that the Chancellor's own law firm is not on the complaint?)

Finally, there is another, and equally weighty, reason, why this lawsuit should never have been brought in the first place. Consider, first, what Bishop vonRosenberg says is the purpose of his lawsuit:
“The intention of this suit is straightforward. We are asking the court to determine who is authorized to serve as bishop of the Episcopal Diocese of South Carolina,” Bishop vonRosenberg said.
However, neither the state nor the federal courts has the power to answer such a question, within the constraints imposed by the First Amendment. As summed up best by the California Court of Appeals in the earlier decision involving Bishop Schofield, those constraints absolutely prohibit secular courts from deciding any such question (Schofield v. Superior Court, 190 Cal.App.4th 154, 161-62 [2010] [citations omitted; emphasis added]):
In resolving [church property] disputes, the First Amendment requires that civil courts must take care not to adjudicate questions of religious doctrine.... But if the dispute does not involve the ownership of property—if it concerns issues such as church doctrine, membership, credentials of clergy, discipline of clergy and members, or church governance and organization—the matter is to be left to internal decision-making processes of the church itself.... The dispute set forth in the [complaint], namely, whether Schofield or Lamb is the incumbent Episcopal Bishop of the Diocese of San Joaquin, is quintessentially ecclesiastical. Accordingly, the trial court erred in adjudicating that cause of action and, upon proper motion, must dismiss that cause of action. 
Thus as I observed at the outset, one can only wonder at the megalomaniacal motivations that could lie behind the decision to spend substantial sums upon such a wasted effort. The leaders of the Episcopal Church (USA) are gambling its money on a very long shot -- which is nothing less than that the federal district court of South Carolina will fail to follow the law, make a huge mistake, and allow the lawsuit to proceed as filed. And such folly is possible only because, and for as long as, the rank and file of that Church (to say nothing of its other bishops) suffer it to exist.


  1. Consumers of Religious Services?

    One order of Extreme Unction, with a side of two baptisms....?

    Saint Mary, Pray for us now, and at the time of our Death.

    An old pew-sitter has to laugh so as not to cry.

    El Gringo Viejo

  2. History records many examples of how the powerful of megalomaniac can drive a mighty nation into disaster even though cooler heads see the danger.

    Von Rosenberg's strategy comes from above and reminds me of the doomed Von Paulus who was commanded to hold at all costs what parts of Stalingrad he claimed for the megalomaniac.

    Consumers of religious services is a dehumanizing term. Peasants, residents of the threatened city, whatever they are called, they are expendable when they stand in the way of the greater purpose.

  3. The Potemkin diocese is at it again by now seeking an injunction.

  4. I have felt called to write an extensive "response" to the Presiding Bishop's address to the convention of the Episcopal Diocese in South Carolina in January of this year. While not a member of that Diocese, I was offended by the nature of that address and concerned about its implications regarding both the Presiding Bishop's personal performance and the ultimate survival of the Episcopal Church in the United States.
    My response is rather long (4500 words), but I thought that perhaps your members and readers might be interested in all or part of it; however, I would appreciate an opportunity to review any edited version of this essay prior to its use.
    I would be happy to send a hard copy of it by mail, but it would perhaps be more efficient to send it as an attachment to your e-mail address if it is available.
    Thank you for considering this contribution to the tragic "dialogue" in which the Church is currently engaged.
    Arthur Lumpkin

  5. I read your first two or three sentences and thought of Mayor Bloomberg and his soda crusade.