Thursday, July 31, 2014

Making Sense of the Trial in South Carolina

In trying to make sense of the trial in South Carolina (which I did not attend, but know only from the reports of those who did), I noted certain pervasive themes.

First, the trial was a clash of diametrically opposed camps. Bishop Lawrence, his parishes and his Diocese were focused on going forward with their evangelical mission; the lawsuit was a drag on their ability to do so. Bishop vonRosenberg and his Episcopal Church (USA) were obsessed with looking back – to what they viewed as a hierarchical structure from the outset; to the prerogatives of national power that are concomitant to such a structure; and especially to the power wielded collectively by the House of Bishops, and by the Presiding Bishop in their absence.

Second, the trial was a clash of legal strategies dictated by the law of South Carolina. This case came to trial against the background of the South Carolina Supreme Court’s 2009 decision in All Saints Waccamaw Parish v. The Episcopal Church, a case I analyzed in this earlier post. The Court held two things: first, that a religious body who followed its own procedures, and South Carolina law, in amending its governing documents could not have those amendments declared void in the absence of superior church laws or rules forbidding such amendments, and which were in place before the dispute arose; and second, that the only kind of a religious trust that could have any effect under South Carolina law was one declared in a writing signed by the owner of the property being placed in trust – and not by the national church unilaterally, in its role as a putative beneficiary of any such trust.

Both holdings were premised on the declaration that South Carolina courts were to follow “neutral principles of law” in resolving church property disputes, and not by deferring automatically to determinations made internally by church bodies or personnel who were not the “highest judicatory bodies” in that church.

Given this backdrop, the strategy pursued by Bishop Lawrence and his attorneys was to emphasize the absence of any language of limitation or deference in the governing documents of either the diocese, or of its member parishes, and to show how they followed their own governing procedures in voting to leave the national Church. But the strategy pursued by ECUSA and its attorneys was designed to try to fool the trial court into thinking that this was not a dispute over property at all, but was instead a fight over opposing religious doctrines. (The First Amendment prohibits secular courts from getting involved in such disputes, and so ECUSA hoped that by painting the matter that way, the court would be forced to accept ECUSA’s designation of who were the true successors in interest to Bishop Lawrence’s diocese, once it voted to leave.)

To her great credit, Judge Goodstein refused to be baited into the trap which the defense steadfastly set for her with their objections, arguments, and proffered witnesses and testimony. Time and again she emphasized that her hands were bound by the All Saints Waccamaw decision, and that she could proceed upon no other ground except that dictated by neutral principles of law – which is to say, the ground upon which each and every other kind of property dispute is resolved in South Carolina courts of law. The remarkable thing is that I see no possible advantage to the strategy pursued by the defense, whether on appeal in the state or federal courts. One cannot get around the Waccamaw decision; on can only confront it head-on. By failing to do so during the fourteen days of trial, ECUSA pretty well conceded its own case.

Third, the trial was a battle over image. ECUSA was fighting over its brand as the church of America’s wealthy and powerful elite, whose roots go back to before the Revolution; Bishop Lawrence’s diocese was fighting for its place in the traditions of Anglicanism – which equally go back to before the Revolution. For ECUSA, other Anglicans must simply get used to what it does, because it claims to be the only legitimately Anglican franchise in America; for +Lawrence and his Episcopal (“bishop-led”) Diocese, ECUSA’s brand of Anglicanism is no Anglicanism at all – one needs to distance oneself from it as fully as possible, by claiming solidarity with GAFCON and similar Anglican groups.

Fourth, the immediate stakes were the money and the property – but in the final analysis, the real issues were power and authority. Bishop Lawrence and his diocese confined their initial lawsuit just to a claim against ECUSA to quiet title to their property, and prevent infringement of their seal and trademarks. Later, after the rump group (“ECSC”) formed, it was added as a defendant, because it was calling itself the “Episcopal Diocese of South Carolina.” Because of statements from 815 that the Church would seek to oust all of Bishop Lawrence’s congregations from their individual parish properties, thirty-five of those parishes joined as co-plaintiffs in the lawsuit to quiet title. True to form, ECUSA and ECSC then counterclaimed against each of the parishes, plus against each of their rectors and vestry members individually.

The naming of all those individual counter-defendants was a brazen attempt to intimidate them, by showing that ECUSA would spare no expense in forcing them all into court, and in trying to ruin them financially. There were no good legal reasons for multiplying the number of individual defendants, as ECUSA showed when it failed to update the status of each of them as old members rotated off their vestries, and new members came on. (Those who were no longer members still remained as named parties, while those who became new vestry members were not added.) The sole point was to name a whole bunch of individuals, and inconvenience them, and not to ensure that they had anything actually to do with the parishes.

By filing first in the State Circuit Court, and by obtaining a temporary restraining order at the outset, Bishop Lawrence and his attorneys had seized the initiative, and had placed ECUSA’s attorneys on the defensive. The latter sought to regain the initiative by filing a trademark infringement lawsuit in federal district court, and by noticing the removal of the main action from State to federal court. Once again, these moves multiplied the legal costs enormously – for no good legal reason other than to resort to sheer power in an attempt to gain the upper hand.

This made the defeat of ECUSA’s federal strategy even more significant, when Bishop Lawrence’s attorneys slowly but steadily persuaded the federal courts that they did not need to intervene, and to send the whole matter – trademarks and all – back to State court. At that point, ECUSA’s strategy became one of delay, delay and more delay, in an attempt to continue to run up the legal costs for Bishop Lawrence and his parishioners. And by deliberately and transparently seeking to delay the actual trial, ECUSA and its attorneys began to lose any credibility they may have had in the trial court.

Thus the trial had to open a day late, all because ECUSA delayed taking the parish depositions (remember those parishes they considered it so important to sue individually?) until the last possible minute in an effort to force the judge’s hand. Needless to say, that tactic earned them no points in the judge’s eyes. Yet the trial began on Tuesday, July 8 with Judge Goodstein energetically delving into the details of the dispute with Bishop Lawrence’s first two witnesses: his Chancellor Wade Logan, and his Canon to the Ordinary, the Rev. Jim Lewis.

After the opening witnesses laid the ecclesiastical and canonical framework for the lawsuit, there followed four days of testimony from witnesses for the individual parishes. Their questioning quickly fell into a pattern of going through their deeds, articles and bylaws, and Judge Goodstein had the parties expedite the testimony by stipulating to the admissibility of all the documents.

On Day 6 of the trial (July 15), ECUSA and its rump diocese finally got to begin their portion of the case, and the mood shifted almost immediately. They called three irrelevant witnesses – irrelevant, because their testimony was all directed toward the conduct of Mark Lawrence as the bishop of the Diocese. The case was not about Bishop Lawrence’s conduct; it was about the acts of the diocese and its parishes in deciding to leave ECUSA. But the dissidents had begun this sorry affair by personalizing their disgruntlement with Bishop Lawrence, and they just could not let it go.

On Day 7, ECUSA finally got to the meat of the matter by calling an acknowledged expert in South Carolina’s religious and non-profit corporations law, Professor Martin McWilliams of the University of South Carolina law school. He offered an elaborate theory as to why the diocese’s vote to secede from the national Church was invalid under South Carolina law: according to him, the diocese incorporated the national Church’s constitution and canons into its articles by reference, holus bolus, when it simply mentioned them in passing. Then, because the national governing documents (as amended from year to year) were part and parcel of the diocese’s corporate articles, it could not change those articles in any manner that was inconsistent with the Church’s governing documents.

This theory, however, had a hole in it so wide that one could drive a truck through it, and it was a simple matter for Bishop Lawrence’s counsel, on their cross-examination of Prof. McWilliams, to discredit it completely. First Prof. McWilliams conceded that there was no language in the national governing documents – even if they had been incorporated into the articles by the brief reference to them – which forbade a diocese from seceding, or from amending its articles in any manner whatsoever. And with that concession, any effect Prof. McWilliams might have had with his testimony was finished. For he next had to concede that the Diocese was wholly within its rights under South Carolina law when it amended its articles so as to remove its language of accession to the national Church.

After that major concession, the case for ECUSA and its rump group never regained its momentum, and their attorneys became ever more desperate in their tactics as they tried to recoup lost ground. On Day 8 they tried to call an expert witness they had not bothered to disclose by Judge Goodstein’s deadline, and she blocked the testimony after giving the hapless attorney trying to introduce it a good tongue-lashing for disregarding her rules.

Then the attorney compounded his offense by trying to sneak the excluded witness’ report (which addressed the supposed confusion brought about by the use of the name “Episcopal” in connection with both groups) by attaching it to the report of the next expert who was disclosed, and who was therefore allowed to testify. Judge Goodstein ordered him to take the report out from the exhibit, and not to refer to or mention any of its contents – for which I understand ECUSA had paid the expert approximately $1 million – ever again in her courtroom.

Still another undisclosed expert – the well-known South Carolina historian, Prof. Walter Edgar – was prevented from opining about any significance of the innumerable facts and documents about which he did testify. This left his testimony unexplained and unhelpful, like a map without place names or a legend.

All went downhill from there. Witnesses called to discredit Bishop Lawrence further (Bishop Clifton Daniel, Thomas Rickenbaker, and Bishop vonRosenberg) ended up adding to the credibility of his case – by again admitting that no language in the governing documents prohibited what his diocese had done, and by casting aspersions on his character that were easily deflected on cross-examination.

On Day 12 (July 23), the defense rested, and plaintiffs commenced their case in rebuttal, which was scarcely necessary after the immateriality of the defendants’ proffered case. Perhaps the nadir of the defense attorneys’ relationship with Judge Goodstein came on the next to last day of the trial (Day 13), when ECUSA co-counsel Mary Kostel tried to lecture Judge Goodstein about how she was “bound to accept” the truth of the Church’s preliminary certification that Bishop Lawrence had “abandoned the communion of this Church”. In proffering the exhibit during the defense case, Ms. Kostel had characterized it as a “final” decision against Bishop Lawrence.

But on Day 13, she made the mistake of crossing swords over the document with Bishop Lawrence’s Chancellor Wade Logan, who knows his canon law. He explained to the court that the document was only a preliminary finding on the route to deposition, and that only the House of Bishops could find actual abandonment after a hearing on the charges. When Judge Goodstein finally understood how Ms. Kostel, as an “officer of the court,” had misrepresented the nature of the document to her – a mischaracterization she had the temerity to repeat in her arguing the effect of the document – the steam began to come out of Judge Goodstein’s ears. She abruptly banged her gavel and ordered local counsel to take Ms. Kostel out of the courtroom and instruct her in her duties as an officer of the court, admitted only as a courtesy for the duration of the trial.

The next day, the trial finished without further incident, and with the testimony of Bishop Lawrence. He was easily able to refute the charges that he had plotted all along to take his diocese out of the Church (as though those charges were even relevant to the issues Judge Goodstein has to decide). It was perhaps a mark of how low the defendants’ mood and energy had sunk when his cross-examination by the Presiding Bishop’s Chancellor, Mr. David Booth Beers, ended on a pleasantry after a mere ten minutes of fencing, and without scoring any points.

Judge Goodstein now has the case on hold while the parties submit simultaneous opening and reply briefs over the next sixty days. After the briefs come in, she will take the matter under advisement, and probably issue her written decision within another thirty to sixty days, i.e., by Thanksgiving or thereabouts. For the multiple reasons I have summarized above – but especially because the gist of those reasons appears wholly to have gone over the defense’s collective heads – I expect Judge Goodstein to find in plaintiffs’ favor, and award them their properties, trademarks, and bank accounts free and clear of any claims by EC USA or its rump group. Indeed, ECUSA has yet formally to admit the latter as a full-fledged diocese under its much-touted Constitution and Canons. Why, indeed, should anyone respect those rules, when ECUSA cannot do so itself?

Friday, July 25, 2014

Illinois Appellate Court Affirms Judgment for Anglican Diocese

On July 24, 2014 the Illinois Appellate Court for the Fourth District filed its opinion in the appeal taken by the Episcopal Church (USA) from a judgment entered against it by the Hon. Thomas J. Ortbal in September 2013. The three justices on the panel joined in a twenty-page decision that affirmed Judge Ortbal's judgment in all respects: the (Anglican) Diocese of Quincy properly amended its governing documents so as to secede from ECUSA and cease being a member diocese in 2008; the real and personal property remained with the withdrawing diocesan corporation under Illinois law, and neither was subject to any express or implied trust claims by ECUSA; and ECUSA could not, after the Diocese had completed its vote to withdraw, purport to remove the diocesan trustees or officers and replace them with people from its remnant group that decided to stay with the national Church.

The opinion by the appellate court is a model of clear reasoning, and needs little commentary to be understandable by a lay person. It begins by explaining precisely how the dispute came about, and traces the facts up to the time of the original lawsuit brought by the Anglican Diocese after ECUSA's attorneys had persuaded the Diocese's bankers to put a freeze on all of its funds on deposit with them.

Then the opinion summarizes the proceedings leading to, and evidence offered at, the trial before Judge Ortbal in April and May of 2013. The key testimony was mostly received on the question of whether or not ECUSA could be said to be a "hierarchical" church with respect to its member dioceses.

Readers of this blog have known the answer to that question for a long time. ECUSA, the national Church, likes to claim that dioceses do not exist apart from the national Church; but the truth runs the other way: the national Church would be nothing without its member dioceses -- and particularly those pre-existing dioceses corresponding to the former Church of England in each of nine former colonies. Representatives from those nine dioceses (referred to at the time not by the word "diocese", but rather as, e.g., the "Protestant Episcopal Church in the State of Maryland") met together in Philadelphia and New York over a five-year period beginning in 1785, and eventually agreed to come together in a General Convention ("calling together") of all of their nine separate churches in a deliberative body that could adopt uniform standards of worship and discipline to be shared among all of them.

Thus it was individual State churches that brought the national "Church" (denomination) into being, just as it continues to be the individual dioceses (several of which may exist side-by-side in any one State today) that continue to make up its membership, and to send representatives to its triennial national meetings ("General Convention"). The analogy is properly to a conglomerate like the American or National League, made up of the individual teams who are their members; or to the United Nations, a confederation of individual sovereign states; or (on a very local level) to a book club, whose members come together once a month at each others' homes.

In all such cases, the organization may be viewed as a separate legal entity from its individual members, but the defining characteristic is that the organization would amount to nothing without those individual members. Under our First Amendment, members of such groupings are free to withdraw from membership at any time -- and if all members withdrew, the organization would cease to exist.

So it is with ECUSA, ever since its founding in 1789: its members came together initially to agree on the governing documents, called the "Constitution and Canons"; and have met roughly every three years since as a legislature to hear reports from members, and to approve new canons and resolutions as the members may collectively agree upon.

As such, ECUSA has at the top of its structure only a legislative body (General Convention). People who argue that ECUSA at the national level is "hierarchical", on the model of the United States of America, forget that unlike America, ECUSA lacks both a judicial and an executive branch at the national level. (Its Constitution also lacks -- deliberately so -- a Supremacy Clause.) And its legislative branch -- again unlike America's -- meets for only 8-10 days every three years -- which is to say, less than one percent of the whole time for which it is elected.

Once it adjourns, General Convention typically never comes together again in the same form, ever again. It has no powers of enforcement against Dioceses, and no ability to judge a dispute between dioceses, or between a diocese and ECUSA itself. As a legislature, General Convention never sits as a court, to hear evidence and witnesses, or to issue opinions on matters of ecclesiastical and canon law.

So it should not be remarkable that the Illinois appellate court took note, in its opinion, of this expert testimony from Dr. Jeremy Bonner offered at the trial (pp. 8-9):
Q. In your opinion, can a religious organization which lacks a constitutionally established executive and judicial function[, and] which has no language of supremacy in its constitution, function as an hierarchical church? 
A. I do not see how. 
Q. How can [the Church] then enforce its canons against a member diocese? 
A. It can't. It can express its displeasure and can exert moral outrage and attempt to persuade its dioceses of the need to change, but recent disputes have shown the limitations of that strategy.
And this is precisely the weakness of ECUSA's strategy as it is being played out in the courts of Texas, California and South Carolina. It pretends to have a "three-tiered, hierarchical structure," when the reality is that there are just the member dioceses at the top, who act and decide matters through their triennial conventions. The rest of the time (more than 99% of it), the individual dioceses are what makes up the national denomination, and which deal with its day-to-day affairs and interface, through their bishops, other clergy, and manifold parishes, congregations and missions, with the churchgoing public, and with the outside world.

The Illinois appellate court not only found that ECUSA was not "hierarchical" at the topmost level, but because Illinois courts apply "neutral principles of law" to church property disputes, it also found that the issue of "hierarchy" was irrelevant to its decision of the case. The deed to the Diocese's real property stood solely in its own name ever since it was first granted, in the nineteenth century. And the names of the bank accounts, together with the written custodial agreement between the diocese's bank and the diocesan corporation, did not have ECUSA anywhere as a party, co-owner, or trustee; nor did they mention ECUSA in any respect.

On this basis therefore, the appellate court had no difficulty in unanimously affirming the Judgment given by Judge Ortbal. Along the way, it also held that ECUSA could not substitute its Diocese of Chicago into the case to replace its former rump group of Quincy, which merged into the Diocese of Chicago just before Judge Ortbal came out with his findings and decision. ECUSA, the court ruled, had not taken an appeal from Judge Ortbal's denial of the motion to substitute, and so it had no appellate jurisdiction to rule on the matter now.

This aspect of the decision probably diminishes significantly the chance that any further or higher appeals will go anywhere. The one ECUSA group that could have taken title to Quincy's real property and bank accounts no longer exists, and is no longer a party to the case. (As a New York religious association, originally formed at common law, ECUSA itself cannot hold title to any property, real or personal; it has to do so through its New York corporate counterpart, the Domestic and Foreign Missionary Society.) Thus there is no longer any effective appellate relief that could be granted, and any further attempts to appeal by ECUSA alone should be dismissed as moot.

Of course, that fact will not deter ECUSA from trying. It could ask next for a "petition for rehearing" by the full appellate court, or it could file a petition for leave to appeal the decision to the Illinois Supreme Court (of which only about 4-5% are granted). The former would most likely be quickly denied, given the unanimous panel's decision, but the Illinois Supreme Court could take from six to nine months to dispose of or dismiss the latter.

At some point, the freeze on Quincy's bank accounts will be lifted, and the Anglican Diocese will be able to resume its mission without being dragged down by the uncertainties of litigation. The dragon has been slain, and while it may have a few last gaps, its demise is simply a matter of time.

Monday, July 21, 2014

S. Carolina Day 10: When Will ECUSA Start to Play by the Rules?

Why are ECUSA and its attorneys so incapable of following the rules? Could it be that the lawlessness of 815, as aided and abetted by its attorneys, has now infected ECUSA's ability to present a civil case under the rules of court in South Carolina?

From first appearances, that would seem to be the only conclusion to draw from today's proceedings. First, let me use the account from the Episcopal Diocese's Press Office to provide the necessary background for what I shall go on to explain, and then I will put things into context:


TEC Attorney Admits TEC Constitution Does Not Prevent a Diocese From Leaving the Denomination

Judge Refuses to Consider Evidence about Whether TEC is Hierarchical

ST. GEORGE, SC, JULY 21, 2014 – An attorney for The Episcopal Church on Monday acknowledged that – despite TEC’s repeated claim that dioceses may not leave the denomination – there is nothing in the group’s constitution that specifically prohibits such a disassociation.

“It’s true it doesn’t say whether a diocese in the U.S. can or cannot [leave],” said Mary Kostel, attorney for TEC. “It’s arguably ambiguous.” [Ed. Note: Ms. Kostel could scarcely expect that such an outlandish remark on her part should be allowed to pass without editorial comment. What she is saying is that the absence of a specific prohibition in a governing document makes it somehow ambiguous as to whether or not the drafters still meant to prohibit the act they specifically did not prohibit. Example: The First Amendment does not contain any express language about a person's "freedom to disassociate from a group." So such a "right" must be "ambiguous" -- because it was not made express in the language of the Amendment -- and thus whether such a right actually exists is up to Congress to decide. Contrary to Ms. Kostel, what the courts have always held is that the First Amendment's "freedom to associate" necessarily embraces a corresponding "freedom to disassociate." The question of "ambiguity" in such a case does not even rise to the point of being debatable.]

The comment came during the 10th day of trial in suit to prevent TEC from seizing the property of the Diocese of South Carolina and its parishes. Much of the morning was spent in a discussion between attorneys and Judge Diane S. Goodstein about the admissibility of testimony by historian Walter Edgar, a professor at the University of South Carolina.

Though Edgar was not identified as an expert witness [my emphasis -- Ed.], TEC wanted him to testify about his expertise and provide opinions on the hierarchical nature of TEC and to demonstrate that it has authority over its dioceses and parishes. But Judge Goodstein denied that he would be allowed to.

This is the second time in this trial that TEC failed to follow the rules on the use of witnesses. “When he shifts from saying ‘this is what it says,’ to ‘this is what it means’ we’ve crossed into expert testimony,” she said.

Judge Goodstein acknowledged that she understands TEC’s attorneys want to introduce the idea of a hierarchical denomination in order to pave the way for an expected appeal. However, she made clear that the claim is irrelevant to the case under South Carolina law.

“Let me be very clear that in every way the defendants [TEC attorneys] have done everything within their ability to establish the hierarchal nature of this church. I accept that,” she said. “Our courts have said we will not enforce the hierarchical decisions. We’re a neutrality state.” [Ed. Note: The Judge is on solid ground here. The Supreme Court of Carolina, in the All Saints Waccamaw decision, came down clearly against deference to hierarchical tribunals (i.e., as in Watson v. Jones), and in favor of the more recent "neutral principles" standard of Jones v. Wolf. ECUSA's attempt to put South Carolina back into the earlier deference camp is a non-starter. As a trial court Judge, Judge Goodstein is required to follow the Supreme Court's precedents -- she has no discretion if those precedents are on point. ECUSA itself had a full opportunity to argue for its "deference" standard in the Waccamaw case -- and it lost that argument at the highest level. So how can it possibly hope to persuade Judge Goodstein to acquiesce in its attempt to disregard what the South Carolina Supreme Court decided -- in a case, I repeat, in which ECUSA had full opportunity to argue as it is trying to do now? One of the hallmarks of the law is that, unlike a popular audience, it does not listen to you when you keep trying to go back to the same losing argument over and over again.] The afternoon was spent with Edgar literally reading highlighted excerpts from numerous journals of the Diocese of South Carolina [see his report linked earlier], showing that the Diocese participated in TEC activities and adhered to its rules while the Diocese was a member of the denomination. The diocese has never disputed that fact.

In fact, during the morning discussion before Edgar even began his testimony, Diocese of South Carolina attorney Henrietta Golding said, “If you’re a member of a club or fraternity, you abide by the laws. …There’s no relevance that the Diocese followed the Constitution and Canons. They were together at that time. There’s no significance because a party to this action followed the rules. We were members then.”

Edgar also spent some time testifying about individual financial contributions TEC had sent to the diocese and its parishes through the years. While he never mentioned a total number, after reading page after page of excerpts, it was clear that the denomination had provided several thousands of dollars.

However, when asked in cross-examination by Alan Runyon, lead attorney for the Plaintiff, Dr. Edgar testified that he had not been asked to, nor did he attempt to, see how much money the diocese had voluntarily given to TEC during the same time TEC says the Diocese received grants and loans "It could even be 900 percent more than you testified TEC has given over the same period and you do not know because you did not ask?" Runyan said.
I am still shaking my head over this report. I find it difficult to believe that ECUSA, the ECSC, and their collective attorneys could think that they would be allowed to call another witness to the stand to give "expert" opinions after they had failed to disclose him as an expert witness to their opponents, or to Judge Goodstein.

Professor Walter Edgar is an acknowledged authority on South Carolina history. The report he prepared for "disclosure" to the plaintiffs is replete with passage after passage he has pulled from historical documents pertaining to the Diocese of South Carolina, in order to demonstrate how, in his view, the Diocese always took note of, and followed the Constitution and Canons of what was then the Protestant Episcopal Church in the United States of America, or PECUSA.

But at the end of his expert report, there comes this amazing passage:
I will use my expertise as a professional historian to give a proper analysis and interpretation of any of the voluminous documents that are involved in the factual history I have been asked to present. I will render an expert opinion whenever necessary to explain the context of the history of the Diocese as it relates to these matters.

It would be impossible for me to list each and every expert opinion I might be required to render because such will depend upon issues raised by the Court and counsel in search of correct interpretations of the documents I am asked to inspect.
In effect, this passage asks the court to extend the witness carte blanche to render any opinions he sees fit to give -- without the necessity of alerting the other side in advance, so as to allow them to prepare for his cross-examination.

Needless to say, those are not the rules. The purpose of expert discovery in the first place is to (a) pin down the other side's expert to specific, articulated opinions -- which may then be subjected as necessary to the cross-examination required to test their merit; and (b) to avoid any element of surprise at trial when the expert does testify.

Apparently ECUSA did not bother to disclose Prof. Edgar as an expert, and represented that he would simply catalog an entire litany of historical facts, taken from the various diocesan and other records, for the Court to consider. Well, he was allowed to do that -- but he was stopped when it came to expressing his opinions about those facts, because he had not previously disclosed just what those "opinions" would be.

I am accordingly in some doubt about ECUSA's game strategy. Were they counting on the plaintiffs' lawyers waiving, or being ignorant of, the relevant rules? That's hardly a winning strategy.

Did they count upon the good graces of the Judge to excuse their ineptness? Again, after they flouted her orders to disclose the names and opinions to be rendered by all experts, how could they reasonably expect any quarter from her corner?

The case for ECUSA and ECSC has now lost any momentum it ever had. Instead, the case flounders as counsel struggle to put on what evidence they can after they are required to follow the same rules that everyone else in South Carolina must.

This is not the way to impress a trial judge who expressed herself as eager to be guided through the historical documents, and who looked forward to hearing from qualified experts for that purpose (see the beginning of the account for Day 9 at the link just given). This is not to deny that Prof. Edgar might well have been just such a capable expert. Instead, however, the opinions he might have offered have gone to the trash heap of "what might have been."

All that remains, as the diocesan press release notes, is a litany of instances where the Diocese of South Carolina, while it was a member in good standing of the national Church, diligently followed all the then rules to be a member in good standing.

But evidence that one followed the rules when one was a member of the club is not evidence that one agreed to permanent membership in the club. The two issues are entirely different, and evidence of the one is no proof of the other. (Nor is the evidence that the national Church gave a few ten thousands to the Diocese over the years, while the Diocese itself gave millions back to the national Church. That is evidence only of the good relationship that once existed between them, but which is no more as a result of the national Church's (and its SC followers') ham-handed insistence on seeing Bishop Lawrence illegally removed from his position.

In other words, evidence that everyone abided by the rules becomes irrelevant once one side proclaims that it does not intend to follow them any longer.

[I note that the ECSC website now has its account of the day's proceedings up -- but one reads it in vain to find out just why Prof. Edgar was prevented from offering opinion testimony as to the documents he highlighted. This must be why ECUSA cannot learn its lessons: from the highest level at 815, on down to the laborers in the ECSC trenches, all talk about following laws and rules, about playing the game fair and square, falls on deaf ears. They are interested in one thing, and one thing only: can they jawbone, or bully the court into letting them run things the way they want? When they are held to following the rules, it's all the other side's fault for insisting on those rules -- and the Judge is being "partial" and "biased" because she decides to enforce them.

I almost never link to this site because of its many factual and legal distortions, all dressed up in rather spiteful bias, but today I shall make an exception. Steve Skardon has on his Website a remarkable first-person account of how yesterday went, viewed from the standpoint of a remnant Episcopalian who senses that things are not going well, and is struggling to understand why. If he could just see how ECUSA and its attorneys behave as though "the rules are made for other folk, not for us," he might -- in light of his own personal experience with Judge Goodstein which he recounts for the reader's benefit -- begin to get a glimmer of why that attitude does not sit well in her courtroom.

I will have more to say about this brazen strategy in a separate post. For now, let us be content to observe that it has profited ECUSA and its rump group nothing. ]

Wednesday, July 16, 2014

Huge Setback for ECUSA at South Carolina Trial -- Their Expert Concedes the Case

Yesterday, July 15, was the seventh day of the ongoing trial involving Bishop Lawrence's Episcopal Diocese of South Carolina and thirty-four of its parishes, as plaintiffs, seeking to quiet the title to their real and personal property against the claims made by ECUSA and its rump group, the "Episcopal Church in South Carolina" ("ECSC"). The defendants say that the Diocese and its parishes all forfeited their property when the Diocese voted to amend its governing documents so as to make it no longer a constituent member of ECUSA.

According to the official line promulgated by ECUSA, "people may leave, but dioceses may not." ECUSA claims to be made up of 110 dioceses (actually, now 109 following the merger of Quincy into the Diocese of Chicago), but four of them are not true dioceses -- they are the rump groups set up by 815 to act as plaintiffs (or, in some cases, when they cannot organize fast enough, as defendants and counterclaimants) in the lawsuits brought to recover the bank accounts and real properties that belonged to the dioceses and their member parishes that voted to withdraw. Those rump groups, although each newly organized, have never formally been admitted as proper "dioceses" into union with General Convention, as required by ECUSA's own Constitution.

And one sees right away why: if ECUSA were to go through the formalities necessary to admit them as new dioceses, it would give away its argument that "dioceses cannot leave." Instead it has the rump groups pretend to be the ongoing original dioceses, and then has General Convention recognize them as such and seat their deputies.

Thus far, only two trial courts -- one in Pittsburgh, and the other in Fresno, California -- have been taken in by this ruse. Judges in Texas and in Illinois, meanwhile, have not. (A ruling is expected any day now from the Illinois Court of Appeals which will affirm a lower court's judgment that the [now Anglican] Diocese of Quincy properly amended its own governing documents so as to remove itself from ECUSA.)

And now ECUSA may have shot itself in the foot in South Carolina, as well. Let's have the Press Office of the Episcopal Diocese tell us what happened on Day 7 of the trial, with ECUSA and ECSC putting on their portion of the case (I have added some explanatory notes, taken from my daily postings on the trial over at StandFirm):

TEC Witness Admits Diocesan Constitution, Canons Trump Those of the National Church

ST. GEORGE, SC, JULY 16, 2014 –An expert witness for The Episcopal Church (TEC) undermined claims by the denomination that its rules supersede those of local dioceses in the Diocese of SC, during day-long testimony in the trial to protect local diocesan and church property from seizure by TEC and its local subsidiary, The Episcopal Church in South Carolina (TECSC). 
Martin McWilliams, a law professor at the University of South Carolina, was called by TEC and TECSC to testify as an expert witness. 
McWilliams spent considerable time explaining his credentials as a corporate governance expert and said that because the Episcopal Diocese of South Carolina incorporated the constitutions and canons of the national church in its own corporate charter, it is governed by those constitutions and canons. [Ed. Note: I am unaware of any language in the Diocese of South Carolina's Constitution and Canons that ever purported to incorporate the national Constitution and Canons, as opposed to merely acceding (agreeing) to them. Perhaps that is all the witness intended to say: by acceding to the national Constitution and Canons, the Diocese agreed to go along with, and be subject to, them. But accession, as I noted earlier, involves consent, and consent is at the will of the one consenting: it may be withdrawn at any time, unless the consent is expressly stated to be "perpetual", "forever binding", or words to that effect. (The Articles of Confederation, for example, described the Union so formed as "perpetual" -- and that was one of the reasons why the Supreme Court held, following the Civil War, that States could not unilaterally withdraw from the United States.) Here, the accession by South Carolina was never made "binding", "perpetual", or anything similar -- it was simply an accession for as long as the Diocese should continue to consent to what ECUSA did.] 
However, on cross examination by the diocese’s attorneys, Alan Runyan and Henrietta Golding, he acknowledged that the diocese – while it may incorporate the national rules – is, in fact, governed by its own documents. 
He further acknowledged there is no rule in either the national canons and constitutions, nor in the diocese’s own constitutions and canons that prohibits the diocese from amending its corporate documents. [My emphasis -- Ed.]
He also said that the diocese was within its legal rights to amend its articles of incorporation. [Ed. Note: Well, that pretty much concedes the whole case. Under the ruling in the All Saints Waccamaw case, which is binding on Judge Goodstein, if the Diocese followed its own Constitution and procedures in amending its documents so as to make it no longer capable of being part of ECUSA, then the national Church has nothing to say about those amendments: it reserved in its own Constitution no power to restrict the ability of a diocese to amend its governing documents, and had no language requiring a "perpetual" union.] 
McWilliams was the only witness called.
And no wonder -- his testimony on cross-examination must have thrown the ECUSA attorneys into consternation. (There is no mention of any attempt to rehabilitate the witness by a re-direct examination.) The shock and surprise may also be seen by the fact that as of the time I am posting this (which is around 2:30 a.m. Eastern Daylight Time on July 17), no account of the day's proceedings has yet appeared on the ECSC website.

* * * *

[UPDATE 07/17/2014: The ECSC has now put up its account of Prof. McWilliams' testimony, and given the earlier one provided by the DSC as quoted above, it is a doozy. Notice how it completely omits any and all reference to the testimony on cross-examination which was so devastating to the Defendants' case:
Wednesday, July 16 (Day 7)

The law professor who helped to write South Carolina’s nonprofit corporation law told the court that changes to the governing documents of the Diocese of South Carolina that purported to remove the diocese from The Episcopal Church were beyond the legal powers of Mark Lawrence and other diocesan officials, and were not valid. [Ed. Note: Apparently he did so testify on direct, given the six-page summary of his opinions which the ECSC has referenced on its Website. However, this account of his direct testimony has to be qualified by the concessions he made on cross-examination. If, as the DSC reports, he admitted that the DSC "was within its legal rights to amend its articles of incorporation," then he contradicted his opinion of invalidity.]

Martin C. McWilliams Jr., Professor of Law at the University of South Carolina since 1983, testified on Wednesday as an expert witness for The Episcopal Church in South Carolina. He was Co-Reporter of the South Carolina Nonprofit Corporation Act of 1994 and co-author of the South Carolina Reporters’ comments to the act. [Ed. Note: Now we see why the ECSC called him as an expert witness.]

Prof. McWilliams had reviewed and analyzed the documents pertaining to the original 1973 corporate charter of “The Protestant Episcopal Church in the Diocese of South Carolina” as a nonprofit corporation. He also reviewed later documents that purported to withdraw the diocese from The Episcopal Church. His opinions are summarized in a six-page Expert Report submitted to the court.

On Wednesday, Prof. McWilliams’ testified that:

• The 1973 corporate charter is the “initial, seminal, fundamental, founding document” of the nonprofit corporation that is the diocese.

• The stated purpose of the corporation in the charter is “to continue the operation of an Episcopal Diocese under the Constitution and Canons of the Protestant Episcopal Church in the United States of America.” [Ed. Note: The stated purpose was as quoted, until the Charter was amended in 2012 -- see below.]

• By becoming a nonprofit corporation, the diocese came under the regulatory control of the Nonprofit Corporation Act, and at the same time incorporated by reference the Constitution and Canons of the national church.

• Under the Nonprofit Corporation Act, when state regulations come into conflict with the Constitution and Canons of the church [Ed. Note: this should read "of the church or of the diocese" -- see Prof. McWilliams' report, p. 2], the church laws trump. In the case of the diocese, that means that the Constitution and Canons effectively become neutral principles of corporate law.

• The language of the charter identifies “all” directors, managers, officers and trustees. The persons named were three individuals and their titles: “Bishop” (the Rt. Rev. Gray Temple) and two others identified as “Secretary” and “Treasurer.” By default, the “Bishop” is the designated director.

• No other directors are named in the charter. The designation goes with being a bishop, and passed from bishop to bishop. “It goes down to Bishop Lawrence, and I would argue, Bishop vonRosenberg, in an unbroken line of designated directors,” the professor said. [Ed. Note: This made the diocesan corporation the equivalent of what California and other states recognize as a "corporation sole" -- a special form of religious corporation in which the Bishop is the sole officer and director, and the incumbency passes from each bishop to his successor.]

• The charter can place limitations on the powers of the directors, and the Constitution and Canons became such a limit on the powers of the Bishop to amend the charter. “Any attempt by the Bishop to amend this charter in a way that’s inconsistent with the Constitution and Canons would be outside his powers,” he said. [Ed. Note: This opinion was a stretch when it was offered on direct. It succumbed completely to Prof. McWilliams' admissions on cross-examination -- but you won't read about that moment in this account from the ECSC.]

“The Bishop is, after all, the creature of the national church,” Prof. McWilliams said. “You can’t be a bishop unless the national church makes you a bishop.” He pointed out that although Mark Lawrence was elected at two different diocesan conventions, South Carolina was not permitted to consecrate him as its bishop until he met the requirements of the national church, such as receiving consents from other dioceses and bishops of The Episcopal Church. [Ed. Note: The Professor is a bit out of his league here -- or shall we say (using one of my favorite words), ultracrepidarian. If the bishop must first of all be elected by a diocese, how does that make him exclusively "the creature of the national church"? The truth is that a bishop is "created" for two purposes: (1) to be the chief priest and pastor for his diocese; and (2) to be his diocese's ecclesiastical representative to the rest of the denomination, and to the outer religious world. The first function recognizes his election by his own diocese; the second is given meaning by his endorsement by the whole church of which he is a part.]

Professor McWilliams also reviewed purported amendments to the corporate charter in 2010, signed by Mark Lawrence. “In this case, he has not signed as Bishop, he has signed as President. And it doesn’t say president of what.” New bylaws that were adopted in 2010 also were done without legal authority, and were inconsistent with church law. [Ed. Note: "President" is the title given to the presiding officer of both secular and religious corporations, as Prof. McWilliams well knows. If the document is an amendment to the corporate charter, it had jolly well be signed by the person who is the head of that organization, whether he signs as "president" or as "bishop." As for the amendments supposedly being "inconsistent with church law," see my earlier remarks. The Professor undercut that opinion with his admissions on cross.]

Attorneys for the breakaway group known in court as “the Plaintiff Diocese” interrupted with numerous objections throughout the day, aimed at keeping the professor’s findings from being presented. Many objections were overruled, however, and Prof. McWilliams testified on direct examination until about 3:05 p.m.

As cross-examination began, plaintiff’s attorney Henrietta Golding stood up and immediately began shouting at the professor seated in the witness chair, jabbing her finger in the air: “I think you need to tell the court where you go to church! …Or is this something you want to hide?” Counsel for the defense objected; Judge Goodstein did not intervene. “I don’t think she’s being impolite,” the judge said.

Prof. McWilliams attends St. Martin in the Fields Episcopal Church in Columbia. He later testified that he had wanted to state that fact at the beginning, but the question was inadvertently omitted during his initial testimony. Without the question being asked, he could not offer the information. [Ed. Note: This goes to the witness' bias. An expert is not supposed to have a bias, but nearly all of them do, because nearly all of them are being paid to give their opinions. By being a member of a parish in a diocese that has chosen to stay with ECUSA rather than follow Bishop Lawrence and his Diocese, the Professor would naturally have tended to form the opinions he did.]

At the conclusion of his testimony, court adjourned and will reconvene at 9:30 a.m. Thursday. Judge Goodstein indicated that the trial will need to extend into the week of July 21, as the defense has several more witnesses to present.
Remarkable, is it not? One needs to put the two accounts together to get the whole picture. As I say, it would appear that the good Professor's honesty forced him to admit that his opinions expressed on direct (and in his report) were not as strong as they may have seemed, and were subject to qualification. Nevertheless, the proper assessment of what actually happened will have to await my receiving a copy of the transcript of his full testimony. Then I shall probably have more to say. But for now, I have to conclude that the Professor conceded away on cross-examination the value of whatever he testified to on direct examination. And indeed, he may have conceded away ECUSA's whole case. Watch for ECUSA to call its in-house, million-dollar-expert Dr. Robert Bruce Mullin to try to save the day (hint: he won't, and can't).]

Does this mean that ECUSA's own million-dollar house expert, Prof. Robert Mullin, will be called in to try to rescue the case? He does not have the legal qualifications that Prof. McWilliams has -- but that does not deter him from offering his opinion that dioceses are bound permanently to the national Church, and may not leave on their own. However, he offers that view as an historian of the Church, and readily concedes that there is no language in the Constitution or Canons which says that a diocese may not withdraw once it has joined. It is all a matter of "interpretation", you see.

Nevertheless, any such opinion, even if Dr. Mullin is flown in to offer it, cannot stand beside that of a corporate law expert like Prof. McWilliams. The latter's is based on a neutral analysis of all of the governing documents -- exactly as the South Carolina courts are required to analyze them under the holding in All Saints Waccamaw.

So Day 7 could prove to have been the decisive day of this trial. Stay tuned for more as the trial progresses.

Thursday, July 10, 2014

Falsehoods Being Spread in South Carolina

Now intrudes upon my vocation one of the more unwelcome of my duties as an Anglican Curmudgeon. Having practiced as a trial lawyer for 44 years, the last six of which have been constantly embroiled in litigation with the attorneys for the Episcopal Church (USA), I would rather let the courts sort things out according to the merits of the law and the precedents.

But in the blogworld, anyone can express an opinion -- on any matter whatsoever -- and when the person with the opinion has an advanced degree, he or she thereby gains a sort of Internet prestige that not everyone touts, or can enjoy. After all, a Ph.D. degree is possessed by a very small proportion of those blogging on the Internet, and so it must carry some weight -- right?

As usual, the answer is: "It depends -- on what field the degree is in, and on what field in which the particular Ph.D is expressing his or her opinion." The Presiding Bishop of ECUSA has a Ph.D degree in oceanography, but that degree (as such) does not make her an expert in Episcopal Church canon law (as the posts gathered on this page abundantly illustrate). In all of her canonical decisions, she has accepted the advice of her Chancellor, who is an expert in the Church's canon law, but who has a rather blasé view of the function of canons (scroll down to "milestone #2").

Moreover, since the Presiding Bishop has (most irregularly, for a nonprofit religious organization) allowed her Chancellor to employ his own law firm to prosecute the 70-odd cases brought by ECUSA (or to which it is or was a party), one would have to believe that the Chancellor is not exactly a disinterested party when it comes to expressing opinions on Church canon law. His firm's very employment depends upon the opinions which he furnishes (in confidence, of course) to the Presiding Bishop!

Now for my bias: my opinions of ECUSA's canon law are diametrically opposed to those of the Presiding Bishop's Chancellor. Nevertheless, I came to those opinions without any hope of employment on behalf of anyone other than my own parish church, for whom I have long acted as an unpaid legal advisor ("Chancellor", if you will). I derived them from a detailed study of the history and application of the canons within the Episcopal Church (USA) that has been spread over the last quarter century or so.

When I began my study, I had no particular axe to grind; I simply was interested in being a competent legal advisor to my parish (and later, to the trial court in my diocese). My education in the interpretation and application of canon law at the Church's national level began in March 2008, when I read about the Presiding Bishop's illegal inhibition and proposed deposition of the oldest bishop in the House of Bishops, the Rt. Rev. William J. Cox. I researched the amazing history of her manipulations of the canonical charges against him, and on March 31, 2008 penned a post that launched this blog as a source of legal commentary on the Presiding Bishop's unending onslaught upon the integrity of Church law, entitled Five Violations of the Same Canon!

As it states on the "Guide to This Site" page, my posts on the canonical violations committed routinely by the Presiding Bishop and her Chancellor, all in the supposed name of ECUSA, are "a series of calls to repent, which will not stop until she does." More than anyone else in the history of ECUSA, Katharine Jefferts Schori has infused the Church with a lawlessness -- a pervading disrespect for the duly enacted laws by which we Episcopalians all agreed to be governed -- that is matched only by the current Obama administration (and that is no small achievement on the part of 815). The more lawless she becomes, the greater the obligation upon her to repent.

So it is that I regard it as my duty to oppose the dissemination of 815's propaganda in support of its lawlessness wherever and whenever encountered. The stakes in Mark Lawrence's Diocese of South Carolina are particularly high just now, with the dispute having entered the courtroom for a decisive trial in front of the Hon. (and very formidable) Diane Goodstein. Because of existing legal precedent from the highest court of that State, the odds favor Bishop Lawrence and his diocese.

Those who blog as Bishop Lawtrence's opponents do a disservice to their readers when they pass on the outright fabrications, distortions and falsehoods invented by 815's lawyers for the purposes of all the litigation it has instituted elsewhere. Given the straightforward legal precedent that exists today in South Carolina, ECUSA's case in that State can go nowhere. It will take a (most unlikely) grant of review by the Supreme Court of the United States, when the case reaches that point in about five more years, to change the legal landscape. Given the distant and unlikely future in which any such reshaping could occur, I submit that it is misleading and harmful to promote optimism where there can be none.

With that regrettably extended explanation as a preface, I now proceed to the task immediately at hand: to correct certain deplorable misrepresentations of fact and law that are passing for substantive analysis on the side of the rump group supported by ECUSA. Though I have done this on earlier occasions, no one among them has taken my analysis to heart, or still less, refuted it. Instead, they keep on promulgating the same fictions, dressed up in new language. This, I submit, is a gross disservice to those who would read and rely upon them.

The blog post which I fisk below comes from an otherwise admirable blog which seeks to compile a history of the current Episcopal divide in South Carolina -- a subject to which I have devoted posts here, and here. With regard to the regrettable division that occurred (regardless of who spurred it), the blogger, a retired history professor named Ronald Caldwell, has compiled a useful chronology, and indicates that he is writing a book tracing its origin and evolution.

Thus it seems more necessary than ever that an attempt should be made to set Prof. Caldwell straight, before he commits himself to print. I am taking as my text his post of July 9, 2014, entitled "Reflections on the First Day of Trial" [note: Prof. Caldwell has since modified the title to remove the first two words]. After a brief introduction, he writes:
1-the trial is "to protect" the assets of the independent diocese. Lawrence knows full well that under Episcopal Church law, that he swore to uphold in 2008, all local properties are held in trust for the Episcopal Church and her diocese. The diocese recognized this for years, until 2011. In fact, the trial is to convince the judge to hand over the Episcopal Church property to the independent diocese. There is a difference between protection and seizure. 
Notice how this paragraph ignores the All Saints Waccamaw decision, as well as leaves out the trial court's obligation to follow it. You are not writing on a tabula rasa, Prof. Caldwell. Your State's highest court has already ruled that there is no valid trust in parish property in South Carolina just by virtue of the Dennis Canon. Yes, there is most certainly "a difference between protection and seizure." In law, you are entitled to protect what you own, and are forbidden to seize that which you do not own. Each of the plaintiff parishes owns its own property, free and clear of any trust in favor of the national Church or of the diocese. Not only is that what All Saints Waccamaw decided; but consistent with that decision, the Diocese subsequently gave each parish a quitclaim deed renouncing any remaining interest in its parishes' property. Given these unarguable facts, it is the plaintiffs who are trying to protect their property, and the defendants who are trying to seize it from them.
2- [Diocesan Chancellor Wade] Logan testified that the diocese is a self-governing body in which the Episcopal Church is not involved in election of officers or disposition of property. In fact, the diocese acceded to the Constitution and Canons of the Episcopal Church until its purported "disassociation" on Oct. 15, 2012. ...
Sorry, Prof. Caldwell, but your second sentence does not follow from, or relate to, the first. It is completely true that the national Church has nothing to say about dispositions of diocesan property -- no diocese has to ask any permission from the national Church to dispose of its property. Nor does the national Church play any part in the election of diocesan officers, which takes place wholly at the annual diocesan conventions. "Accession" means nothing more or less than "agreement to", and agreement involves consent, which in law is neither binding nor perpetual unless expressly so stated in the words of accession. So a consent once given may be revoked at any time -- unless it is stated expressly as a "perpetual and binding accession" (as in, e.g., the Articles of Confederation).
... Lawrence became bishop only after he was approved by the majority of standing committees of the dioceses of the Episcopal Church and after he took an oath of conformity to the discipline of the Church. 
This is undisputed, but only a partial, truth. It is not the whole truth, because it omits all mention of Bishop Lawrence's other vow upon ordination, and does not discuss how one resolves a conflict between the two vows.
The Dennis Canon is the well-known Church law on property and the one the diocese promoted throughout the All Saints Waccamaw case, to September 2009. 
Why bring this up, if you are going to ignore what that decision actually said about the non-effect of the Dennis Canon in South Carolina? From and after September 2009, the Dennis Canon is a nullity in South Carolina -- please read the decision (scroll down to Section II.C.).
Dioceses of the Episcopal Church are not independent entities outside the scope of the Constitution and Canons of the Episcopal Church. 
Where is your authority for that claim, Prof. Caldwell? You are simply repeating 815's propaganda. If you want the full history of how PECUSA was assembled from its pre-existing parts, please read this post.
3-Lewis said votes to "disassociate" came from 90 percent of clergy and delegates. Actually, records show that the decision to "disassociate" was made by 12 people, the standing committee, on October 2, 2012. This vote was enacted on October 17, when Lawrence told the Presiding Bishop. He made it retroactive to October 15, the moment Lawrence had been informed by the Presiding Bishop that she had placed a "restriction" on his ministry. The schism happened on October 15 unknown to anyone outside the ruling clique of the old diocese. It was rubber stamped on Nov. 17 by a partial convention. The counter-revolution in the old Diocese of South Carolina was from the top down, and the top was a relatively small group of people. 
This is revisionist history -- told from the point of view of one who wants to bend the facts to make a point (that the decision to withdraw was not that of the whole Diocese, but only of a handful of people at its top). It ignores, first of all, the notice requirement of thirty days in order to call a Special (N.B.: not "partial") Convention, so that the Standing Committee was the only body that could make the first and most rapid response. But what it primarily ignores is the fact that thirty-four of the Diocese's parishes have joined as plaintiffs in the lawsuit. That is hardly the kind of "top-down" action which the professional historian here seeks to portray.
4-Lewis said the diocese existed in 1785 outside the Episcopal Church. In fact, a state convention in South Carolina in 1785 organized an association of remaining Anglican churches. It helped draw up the founding constitution of the Episcopal Church in 1789 and acceded to the constitution and canons of the Church. South Carolina did not become a diocese until 1795 when it received its first bishop. The diocese never thought of itself outside of the Episcopal Church until Lawrence and his allies led a "disassociation" in 2012. 
Once again, this discussion begs the question. The claim that "South Carolina did not become a diocese until 1795 when it received its first bishop" assumes that dioceses must have a bishop. But even ECUSA's Constitution has always recognized that a Diocese is led by its Standing Committee when it does not have a bishop, so the claim is just false: having a bishop is not the distinguishing characteristic of a diocese. The word "diocese" comes from a Greek word meaning "administration", and its ultimate derivation is from the Greek oikos ("house"), from which also comes our word "economy" (= "management/rule of a household"). It was not used of the groups that came together in 1789 to form ECUSA. If you look at PECUSA's original Constitution of 1789, the bodies signing it referred to themselves as (e.g., Art. II) "the Church in each State" (my emphasis). Indeed, the word "diocese" appears nowhere in the 1789 Constitution.

So it is a big red herring to talk of "dioceses" in the period from 1785 to 1795 -- or even until 1838, when the Constitution was amended by General Convention to substitute "the diocese" for the words "the State" everywhere those words appeared. Until that year, every State with a member group of organized parishes was viewed as a separate regional unit of the national Church; but then New York divided into two regions, east and west of the Hudson, and so the term "diocese" was adopted generally to refer to all the administrative units of the Church, regardless of State boundaries.

And notice, please, how Prof. Caldwell conflates the notion of a "state convention" with that of the delegates sent on behalf of the "Church in the State of South Carolina" to form the national Church. He says in his second sentence that the "state convention" in South Carolina "organized an association" of Anglican churches, but in the very next sentence he claims that "it" (the State convention? or the association of Anglican churches?) helped draw up the "founding Constitution." As shown in the post linked two paragraphs above, the "Protestant Episcopal Church in the State of South Carolina" in 1789 sent one clergy deputy, and two lay deputies, with authority to negotiate and sign a national Constitution that would bind that body to the greater assembly of State churches ("General Convention"). So those three deputies were the ones who actually "helped draw up" the first Constitution -- and they were deputies chosen by, and representing, their association of local Anglican parishes.

So what was the entity in South Carolina that agreed to "accede" to the national Constitution? Answer: it was the same body that in 1838 began to call itself "the Episcopal Diocese of South Carolina" -- it was an unincorporated association of pre-existing (and formerly Anglican) churches within the State that eventually incorporated in 1973. There is no mystery here -- it is straightforward: dioceses ("churches in the State of ...") existed before the national Church came into being, and indeed, without their separate pre-existence, there would have been no way to form a truly representative national organization.

Now Prof. Caldwell's discussion degenerates into an attack against Bishop Lawrence personally:
5-the diocese of SC disassociated from TEC only after TEC tried to remove its bishop. In truth, Lawrence willfully and voluntarily left the Episcopal Church on October 17, 2012 by verbal declaration to the Presiding Bishop. He followed this up by word and deed for the next seven weeks after which the Presiding Bishop accepted his renunciation of orders and deposed him as a bishop in the Episcopal Church. 
This is utter nonsense (and Prof. Caldwell misinterprets the canons to allow an oral -- instead of the required written -- "renunciation" to serve as the prerequisite for a deposition), as I explained in this earlier post. There is no need to repeat my observations here.
6-the diocese of SC represents 80 percent of the 30,000 members of the pre-schism diocese. Actually, the pre-schism diocese numbered around 29,000. It has shrunk by nearly a third since Lawrence became bishop. 2,000 people left with St. Andrew's of Mt. Pleasant. Around 7,000 remained in the Episcopal Church. The independent diocese has around two-thirds of the pre-schism diocese. And, it may well be that this number is declining as people are gradually returning to the Episcopal Church. Also, forty per-cent of the pre-schism clergy remained with the Episcopal Church. 
I shall let those more familiar with the statistics of South Carolina demonstrate the falsity of these claims. Where is the proof of the undocumented assertion that "people are gradually returning to the Episcopal Church"? And how could forty percent of the pre-schism clergy have served less than one-quarter of all the parishioners? Were the parishes that remained the ones that were top-heavy and over-staffed?
7-TEC "embraced...a radical fringe scriptural interpretation that makes Christ's teachings optional for salvation." This is an outrageous untruth which only reflects badly on the character of the people deliberately repeating it. 
If this is a true statement, Prof. Caldwell, then please explain how clergy can reconcile their ordination vows to be faithful to the "doctrine, worship and discipline of Christ" with the doctrine, discipline and worship of the current national Church, which has approved provisional rites for the blessing of same-sex unions, and which turns a blind eye to those bishops who violate the Canons and the Rubrics of the BCP to celebrate actual same-sex "marriages."  (See this earlier post for details.)

So we come to the final desultory accusation against the Diocese lodged by this professional historian:
8-the independent diocese is "recognized" by Anglicans around the world. It is indeed "recognized" by some highly conservative and homophobic Anglican prelates in some Third World countries. It is absolutely not recognized by the Anglican Communion and never will be.
This charge is, I regret to say, pathetic. The Anglican primates in "some Third World countries" are to be described as "homophobic" --- for remaining loyal and true to the faith handed down to them from the Apostles?

In so denigrating your ecclesiastical superiors, Prof. Caldwell, you have -- at the end of your "reflections" -- at last shown your true colors. May you come to regret what you have written, and may God give you the grace and peace to recognize what is true, and what is false, about the claims made in the Church on behalf of ECUSA. Especially the claims made by its hired counsel in court.

Tuesday, July 8, 2014

Just Who Broke Their Ordination Vows?

Over at his blog Preludium, the Rev. Canon Mark Harris asks the question at the start of the trial in South Carolina today: "What part of the ordination vows did Mark Lawrence not understand?"

The question is a facile one -- easily stated, but not simple to answer. Ostensibly the question refers to the oath of conformity taken when one becomes a bishop. As I explained in this post long ago, the oath of conformity to the Church replaced the oath of conformity to the Crown when PECUSA broke off from the Church of England, and could no longer recognize Britain's monarch as its head.

But the oath of conformity was not the chief oath made in the ordination process, as I also explained in that post. Ever since 1550, every Anglican/Episcopal ordinand on both sides of the Atlantic has vowed "to minister the Doctrine and Sacraments, and the Discipline of CHRIST, as the LORD hath commanded, and as this Church ... hath received the same, according to the commandments of GOD", or words to the same effect. (The current version has it this way: "Will you be loyal to the doctrine, discipline, and worship of Christ as this Church has received them?")

Now, then, let us return to Canon Harris' question. As he himself appears to recognize, Mark Lawrence eventually was forced, by the course of events leading toward same-sex marriage in ECUSA, to choose between "the doctrine, discipline, and worship of this Church" and "the doctrine, discipline, and worship of Christ as this Church has received it" (my bold emphasis).

And from whom did this Church receive the doctrine, discipline and worship of Christ? Why, from the Church of England. And from whom did the Church of England receive it? From the Roman Catholic Church. And from whom did the Roman Catholics receive it? From the original Church going back to the Apostles.

Note that the celebration or blessing of same-sex unions forms no part of the "doctrine, discipline or worship of Christ" as so received by ECUSA. Instead, it is a manufactured doctrine, one fashioned for the sake of the times. Indeed, its present implementation within ECUSA involves a serious violation of the very Canons which Mark Lawrence and all the bishops in ECUSA swore to uphold and obey upon their ordination, as I pointed out in my last post.

So I put his question right back to the Rev. Canon Harris: Just what part of their ordination vows did James R. Mathes, J. Jon Bruno, Mark Andrus, and Marvil Thomas Shaw III, SSJE, not understand?

As the old saw has it, "You pays your money and you takes your choice." The bishops I just named chose same-sex unions over the Canons and the Rubrics of the BCP. Bishop Lawrence chose the doctrine and discipline of Christ over the false doctrine (and associated phony discipline -- phony, because it is abused in order to advance false doctrine, as many posts here have detailed) of the Episcopal Church (USA).

Monday, July 7, 2014

The Two-Faced Episcopal Church

The Episcopal Church (USA) as it argues in court, and as it recently convinced one trial judge to rule in its favor:

"Diocesan bishops are at all times subject to and bound by the Church's Constitution, Canons and Book of Common Prayer. None of these documents authorizes a diocesan Bishop to waive, to declare null and void, or modify or amend any of the Church's Constitution and Canons."

And here is the Episcopal Church (USA), as its diocesan bishops act in real life:

While we remain in a provisional time when our canons have not fully caught up to what I believe is an intersection of the movement of the spirit and the understanding of the people, it seems that now is the time to remove any distinction between same-sex marriage and other marriages. From this date forward, please simply follow the canonical requirements for marriage regardless of the gender of the couple.

Friday, July 4, 2014

South Carolina Court Reporters Will Be Busy on Monday

After a flurry of last-minute emergency motions and appeals, the so-called "Episcopal Church in South Carolina" rump group ("ECSC") has run out of maneuvers to delay the start of the scheduled trial next week before Circuit Judge Diane Goodstein.

Well -- they did manage to delay the start by one day. They had argued, in a last-minute motion for a continuance, that they had not had sufficient time to complete thirty-four depositions of persons familiar with each of the individual parishes who joined Bishop Lawrence's Diocese of South Carolina as co-plaintiffs in the case. And Judge Goodstein denied their motion to continue the trial, but ordered them to complete all 34 depositions this Monday, July 7.

Then ECSC overreached. It tried to take an emergency appeal of Judge Goodstein's order to the Court of Appeals in Columbia. It asked that Court to issue its "supersedeas writ" to stay the trial until it ruled on the earlier appeal filed by ECSC (which I wrote about in this post).

That prompted the Court of Appeal to issue, within mere hours, an order not only dismissing that earlier appeal, but denying the emergency stay as well.

So the trial itself will get under way on Tuesday, July 8. And ECUSA's and ECSC's attorneys will have to spend the entire day before in taking depositions that they could have, and should have, taken months ago.

For all of their litigiousness, it is remarkable how averse 815 and its minions are to actually getting to trial. Could it be because they realize that going to trial means there will be no more opportunities to run up costs for the other side? (Until the inevitable appeal, that is -- but appeals are less costly than trials.)

At any rate, I hope there will be some SC readers who will be attending the trial, and who can send updates as it goes forward.  You may post them as comments, or email them to me at ashaley-at-nccn-dot-net.

[UPDATE 07/08/2014: The Press Office of the Episcopal Diocese of South Carolina is issuing daily summaries of the proceedings, and I will post those as I receive them over at StandFirm. This blog will be reserved for more substantive analysis when I have the information available to review.]

Tuesday, July 1, 2014

From the President on Down, the Left Doesn't Understand the Hobby Lobby Case (Updated)

Yesterday, after the Supreme Court of the United States handed down its decision in the case of Burwell v. Hobby Lobby Stores, Inc., the President's new press secretary, Josh Earnest, had the following reaction to the decision on behalf of the White House:

JOSH EARNEST, WHITE HOUSE: Well, as the constitutional lawyer who sits in the Oval Office would tell you is, he would read the entire decision before he passed judgment in terms of his own legal analysis. What we have been able to assess so far ... is that there is a problem that has been exposed, which is that there are now a group of women of an indeterminate size who no longer have access to free contraceptive coverage simply because of some religious views held, not by them necessarily, but by their bosses... We disagree and the constitutional lawyer in the Oval Office disagrees with that conclusion from the Supreme Court. And that's why we--primarily, because he is concerned about the impact it could have on the health of those women....
But Hobby Lobby was not a decision under the Constitution; the First Amendment had nothing to do with it. It applied the Religious Freedom Restoration Act (RFRA), a statute passed by Congress almost unanimously and signed into law by then-President Bill Clinton, to invalidate a mandate issued by the Executive branch under a putative authorization from Congress in the Patient Protection and  Affordable Care Act (Obamacare). The RFRA requires government, in enacting a law or policy of general application, to select the alternative that imposes the least burden upon religious freedom.

Obamacare itself did not require employers to offer insurance coverage for contraceptive measures. It simply used broader language ("preventive care and screenings"), which the Health and Human Services Agency under President Obama interpreted as including contraception and abortion services. (Yes, Virginia, our enlightened society views the killing of fetuses both inside and outside the womb as "preventive care." And not only that, but all women are entitled to have such "preventive care" for free, just by virtue of their having wombs.)

The Court's majority decision turned upon an analysis that showed there were other, less burdensome alternatives available to the government than requiring all corporate employers to make contraceptive and abortion coverage available to their employees. To accommodate employers such as Hobby Lobby, with their strongly held religious beliefs against terminating life once it has begun, the government could simply have extended the exemption it gave already to religious non-profit organizations.  Or it could have subsidized such coverage through payments and credits to insurers.

The availability of these less burdensome alternatives meant that the HHS regulations in this instance did not satisfy the requirements of RFRA. End of story; end of decision. As I said, the Court nowhere invoked the First Amendment or the Constitution.

So the "constitutional lawyer who sits in the White House" apparently does not get it. As Mr. Earnest put it after saying the words quoted above, and as Reuters subsequently reported, the President intends to "act on his own" to mitigate the perceived effects of the ruling. But that is what Obama already did -- he acted on his own in deciding to require all employers except churches to furnish free coverage for contraception and abortion services. He simply did not choose the least burdensome way of doing so.

Do you believe he will figure that out? Given the reaction to Hobby Lobby from the left generally yesterday, it is highly doubtful.  They acted as though the Supreme Court (and not Congress, through its RFRA) had personally deprived them of their ability to kill life in their bodies. It does not make for very elevating reading, but you can follow this link to the Twitter feed of SCOTUSblog, a blog about the Supreme Court and its decisions that I feature under my "Juricannon" category at the right.

Scroll down to where the tweets began in anticipation of the Court's two decisions on June 30, and notice how quickly people started attacking SCOTUSblog for reporting what Hobby Lobby decided, as though it were the official blog of the Court, written by the Justices! The blog's authors replied with mild sarcasm ("@SCOTUSblog: When will you start reading the Constitution?" "When you start reading our description." "@SCOTUSblog: today you have f__ed up real hard. Go read the f__ing First Amendment again, OK?" "Lost our copy, apologies.") -- and this only inflamed the humorless Twitterleft even further.  The abuse came pouring in -- and as you will read, most of the Tweets thought they were attacking the Court personally.

This is not a good omen for the general level of civic education in America. From the President, who is setting the worst examples, on down to the least-informed of the public, people are clamoring for more free services from the government, and expressing anger and frustration at those who would block them from, or deprive them of, such services. We are well on the way to the entitlement state, and to finding the answer to that key question posed for us more than a century ago by a President who knew his Constitution

[UPDATE 07/05/2014: Be sure to read this post at the Power Line blog, which quotes a letter to the editor of the San Francisco Chronicle not only underscoring the point made in this post, but also reminding everyone that Obamacare would never have squeaked past Congress had it specifically provided for abortion coverage, or had it contained an exemption from RFRA.]