South Carolina Rump Group Files Frivolous Appeal

In its latest bid to delay the start of the trial scheduled for July 7, the rump group that calls itself "the Episcopal Church in South Carolina" (ECSC) has filed a Notice of Appeal from an interlocutory order of the trial court that denied its "motion to reconsider" for a fourth time a ruling that refused to allow it to add additional individual parties to the case. As such, the appeal is purely a stalling tactic, and is thus frivolous in the extreme.

As Judge Goodstein's June 6 order (attached to the Notice of Appeal) explains, ECSC on three prior occasions in the case sought the court's leave to add additional parties and assert additional claims against them. She first denied a motion to add 23 individuals to the case last October 1.  In November, ECSC asked her to reconsider that ruling, and also filed a new motion to add just four (of the 23 it had sought to add earlier) individuals to the case: Bishop Mark Lawrence; his canon to the ordinary, the Rev. Jim Lewis; and two additional clergy who formerly served on the Diocese's Standing Committee.

Judge Goodstein denied the motion to reconsider at a hearing on December 30, 2013, and ECSC did not appeal that order. (Instead, it appealed another order entered after that same hearing that denied ECSC's motion to reconsider a different ruling -- a refusal of ECSC's request that Bishop Lawrence produce all of his communications with his attorneys. In May of this year, that appeal was finally resolved in Bishop Lawrence's favor by the South Carolina Supreme Court.)

At the same time, Judge Goodstein indicated she would deny ECSC's second motion to add additional parties, but her written order to that effect was not filed until May 20, 2013 (because of the delays while her earlier order was on appeal). Thus when ECSC filed its motion to reconsider that ruling, it was the fourth time that they had asked Judge Goodstein for essentially the same thing: to add individual counterclaim defendants so as to be able to multiply the claims to be tried in the case (and incidentally, of course, to greatly increase the costs of defense).

Judge Goodstein filed her order denying that motion to reconsider on June 6. And on June 23, ECSC filed its Notice of Appeal from that order.

In South Carolina, even an irregular appeal from an interlocutory (i.e., not final) order of the trial court -- normally such orders are not subject to appeal -- apparently divests the trial court of jurisdiction pending the resolution of the appeal. Thus if this latest appeal is dealt with as was the earlier one, the first thing that will happen is that an individual appellate judge will reject the appeal as improperly filed from an order that did not finally dispose of all the issues in the case. Then ECSC will ask the full appeals panel to consider the appeal, and if they, too, deny the appeal, ECSC will file a petition for rehearing.

Once the appellate court denies that petition, ECSC could ask the South Carolina Supreme Court to review the denial. (That Court could also shorten the matter by ordering the appeal transferred to it directly from the Court of Appeals, as it did with ECSC's earlier appeal.) Thus ECSC will probably be successful in stalling the start of the scheduled trial well past July 7 -- even with the Supreme Court's expediting matters, it still took four months to resolve the earlier appeal.

This, time, however, there ought to be sanctions for filing a frivolous appeal -- one that has no merit, and that is interposed solely, as here, for the sake of delaying trial. For the issue which ECSC is appealing is utterly devoid of merit, and has zero chance of success.

First of all, as Judge Goodstein carefully explains in her first (May 20) order, ECSC is seeking to add additional defendants for the purpose of stating brand-new and independent claims in the case against them: they are not the same claims as those already asserted in ECSC's counterclaims against the Diocese and its parishes. Thus they are not really what in law is called a "counterclaim" against a party already in the case, but independent "third party claims" against persons who have not yet been joined. By bringing its motion as one to amend its counterclaims, rather than as one for leave to file third-party complaints, ECSC brought it under the wrong procedural rule, and that alone was grounds enough for denying the motion.

But Judge Goodstein did not stop her analysis there. She painstakingly went through each of the fifteen proposed new claims and showed how most of them would be improper, in any event; the few that could possibly state a claim would unduly complicate the current action, and were best brought in a separate lawsuit.

For example, the motion to add the four new defendants sought to assert claims against them individually that would have had to be asserted against the diocesan corporation, of which they served as officers. If you claim that a corporation did something unlawfully, you do not make that claim individually against its president or secretary; you sue the corporation in its own name.

Still other claims which ECSC sought to assert against the four clergy were based on alleged violations of ecclesiastical law as expressed in ECUSA's canons. Not only could a civil court not adjudicate such claims, Judge Goodstein points out in her order, but ECUSA's own Canon IV.19.2 ("No member of the Church, whether lay or ordained, may seek to have the Constitution and Canons of the Church interpreted by a secular court, or resort to a secular court to address a dispute arising under the Constitution and Canons") forbids its clergy from bringing such claims in the secular courts. (It is nice to have a judge throw ECUSA's own canons back at its bishops, who violate them constantly with such impunity.)

For all of these reasons, therefore, Judge Goodstein properly denied all of ECSC's motions and motions to reconsider, and the attempt to appeal her rulings before the trial can be held is simply a delaying tactic. That realization, if the Court of Appeals (or the Supreme Court) sees things the same way, should result in the imposition of sanctions against ECSC and its attorneys for taking a frivolous appeal.

[Note:  I removed the earlier update, as it appears it was based on a report that was inaccurate. My story stands as originally posted.]