Massive Conflict of Interest Taints South Carolina Ruling (UPDATED)

Yesterday, almost two years after hearing arguments, the Supreme Court of South Carolina finally issued its decision in the case of The Protestant Episcopal Diocese of South Carolina, et al. v. The Episcopal Church, et al., as I wrote in this post. Because the Court's collective opinions were some 77 pages long, I was able in the short time after their issuance to present only the broadest overview of the differences that divided the five Justices on the Court.

Today, I plan to examine in depth what I consider to be the overarching problem with the decision: the fact that it glosses over a massive conflict of interest on the part of Justice Kaye Hearn. While she was definitely biased when the case was first appealed to the Court, as I explain in more detail below, that blight on her impartiality pales into insignificance before the blatant, result-oriented bias she has exposed in her opinion concurring in a 3-2 decision that would result in the transfer of multiple millions of dollars' worth of real property from the plaintiff Diocese to the ECUSA-controlled defendant, called the Episcopal Church in South Carolina ("ECSC").

For the basic problem with Justice Hearn's role in this case is as follows. When the case was first appealed in 2015 by the Episcopal Church of the USA ("ECUSA") and the ECSC, Justice Hearn (the newest justice elected to the Court at the time) had been, since at least March 2007, a member of the Episcopal Forum of South Carolina. That was the very organization which, through 14 of its members, brought disciplinary charges in 2012 against Bishop Mark Lawrence, while he and his Diocese were still members of ECUSA, in an effort to have him deposed by the Disciplinary Board for Bishops. The Disciplinary Board's acceptance of those charges, and its issuance of a "Certification of Abandonment" against Bishop Lawrence, precipitated the withdrawal of his Episcopal Diocese of South Carolina from ECUSA.

[UPDATE 08/05/17: As is evidenced by this newsletter issued during the first week of the trial before Judge Goodstein in July 2014, members of the Episcopal Forum had one "sole mission" to carry out (my emphasis added):

Join The Episcopal Forum of South Carolina and affirm your support for The Episcopal Church of the United States of America, its Constitution and Canons, the authority of its General Convention, and the leadership of its Presiding Bishop.

This is the sole mission of The Episcopal Forum of SC.

Thus, as a long-standing member of the Forum, Justice Hearn was, already before the case of Bishop Lawrence came to her Court, fully committed to upholding the national church's Constitution and Canons -- including, as you will see, ECUSA's infamous Dennis Canon -- against parishes that claimed they no longer were subject to those rules. She was further committed to supporting the leadership and authority of ECUSA's Presiding Bishop over Bishop Mark Lawrence.

In short: she had already prejudged the chief issues in the case. And yet, she saw no reason to recuse herself from it.]

In her concurring opinion, Justice Hearn went out of her way to castigate Bishop Lawrence and the role he played as chief pastor of his Diocese -- ecclesiastical matters which, as her colleagues pointed out, had no business being addressed in a secular judicial opinion. In doing so, she only advanced, and acted as a spokesperson in black robes for, the sectarian interests of the Episcopal Forum to which she still (presumably -- the organization no longer publishes the names of its members) belongs. At the same time, she contradicted her own precept that South Carolina courts should stay out of Episcopal Church matters and defer to its "ecclesiastical determinations."

Further, according to the minutes, Justice Hearn's husband, George, was one of the duly designated delegates to the special convention of ECSC called in January 2013 by ECUSA's Presiding Bishop to replace Bishop Lawrence. That convention elected Charles G. vonRosenberg as Provisional Bishop of ECSC, who promptly brought suit against Bishop Lawrence in federal court and countersued in the State court action -- eventually seeking the recovery of all the properties of each of the 36 separate parishes involved in that litigation. George Hearn also was a deputy to the first regular convention of ECSC held in March 2013.

One would think that Justice Hearn, given her membership in the organization that initiated the disciplinary proceedings against Bishop Lawrence and whose sole mission was to support ECUSA, and given her husband's role in enabling the litigation now before her, might have considered recusing herself from the 2015 appeal to her Court by her own diocese (ECSC) and church (ECUSA), an appeal which placed directly at issue the actions of Bishop Lawrence and his Diocese that removed them from ECUSA. But one would be wrong. She not only stayed on the case, but she displayed a disgraceful bias in her own church's favor during the oral arguments in September 2015.

Fast forward now to the current year. The appeal by Justice Hearn's church and diocese has been languishing for 15 months because the five justices have been unable to form a consensus on how to resolve it, and are still circulating draft opinions. At some point in the process (perhaps just a few months ago, or perhaps it was right after the oral argument in September 2015), it has become clear that there are two votes (Acting Justice Pleicones, and, naturally, Justice Hearn herself) to apply ECUSA's Dennis Canon full bore to the withdrawn parishes.

They would hold that under the terms of the Canon (see the link), the departure of Bishop Lawrence and his Diocese from ECUSA resulted in an automatic transfer of the title to all 36 parish properties to Justice Hearn's group, in trust for ECUSA.

On the other side, there are two votes (Justice Kittredge, and former Chief Justice Toal) in favor of  upholding the trial court's decision to let the 36 parishes keep their properties after withdrawing, because according to the Court's earlier unanimous decision in the Waccamaw case, the Dennis Canon had no force in South Carolina. (Justices Pleicones and Hearn, by the way, would also vote to overrule the Waccamaw decision on that point, as having been erroneously reasoned even though unanimously decided. Justice Hearn sent a strong signal to that effect during the 2015 oral arguments.)

In the middle is Chief Justice Beatty (who joined in the Waccamaw decision). Like Justices Toal and Kittredge, and following Waccamaw, he thinks that the Dennis Canon does not, in and of itself, function to create a legally cognizable trust on parish property within the State of South Carolina. But like Justices Hearn and Pleicones, Chief Justice Beatty also believes that individual parishes who submit (or "accede") in their own governing documents to the national church's Constitution and Canons, can be held to be subject to the trust imposed by Dennis Canon -- even if they later try to change their minds (the so-called "roach motel" argument: "You can come in, but you'll never, ever leave").

That would mean that some twenty-nine of the thirty-six parishes would have to surrender all of their properties to ECSC -- Justice Hearn's own diocese. (The other seven would include the church that Justice Hearn and her husband attended until it withdrew along with the Episcopal Diocese -- St. Paul's in Conway, South Carolina. They each, along with a parish trust for St. Andrew's in Mt. Pleasant, apparently never acceded in writing to the national canons.)

Now you are Justice Hearn, with your draft opinion showing your strong disapproval of Bishop Lawrence, and your hierarchical view of ECUSA's authority over all of its parishes. You realize that if you adhere to those views, and vote accordingly, your own diocese will be richer by millions and millions of dollars in valuable real estate -- because, along with the vote of Justice Pleicones and the split vote of the Chief Justice, you will supply the critical third vote needed to reverse.

What do you do?

Do you regard it as improper to provide the deciding vote on a divided court when your own church and diocese will gain a substantial monetary benefit from your decision?

Or do you realize that your earlier failure to recuse yourself from this dispute has now brought you to a genuine quandary?

If you rule for your own diocese, it would be just as though a judge who belonged to a particular country club had decided to rule in its favor against, say, another country club that claimed title to the same golf course. But if you rule against your own diocese, your fellow church members will accuse you of betrayal, and of having cost them all of the property they otherwise would have acquired. You cannot win, whichever way you go (which is why you should have recused yourself at the outset).

Even worse: if you now belatedly recuse yourself before the decision is announced, the result will be a tie vote, 2-2. That will mean that the trial court's decision awarding all of the properties to the individual parishes will stand as the final decision in the case, since there are not three votes to reverse it. And so once again you will be accused of betraying your fellow parishioners.

We all know now what Justice Hearn decided to do about this quandary: she brazened it out. Not only that, but she wrote a concurring opinion in which she declared that if she could have garnered Chief Justice Beatty's complete backing, she would have declared that the properties of the parishes who never signed on to the Dennis Canon (including her own former parish) would be forfeit to ECUSA and ECSC, as well. As Justice Kittredge wrote in his dissent:

[I]t is undisputed that eight of the local parishes were never subject to the 1979 Dennis Canon. Yet two members of this Court would go further and transfer to the national church ownership of the property of the eight churches that never agreed to the Dennis Canon. That is stunning. The effort by two members of this Court to strip the property from these eight churches confirms Justice Toal's observation concerning their motivation to "reach[] a desired result in this case."

Indeed, it is stunning. It shows not only Justice Hearn's egregious degree of bias in this case, but it also provides convincing evidence of her willful blindness to the massive conflict of interest to which she -- and she alone -- is subject, due to her membership in ECUSA and ECSC.

If anyone needs further evidence of Justice Hearn's blatant bias, I invite them to perform a straightforward exercise: compare the excerpts of her comments and questions at oral argument (found here) with the points she makes in her written opinion (starting at page 21 of the .pdf document at this link). It is clear that she had already made up her mind about the case before it was argued, and that she felt no need to change or revise her views since.

What personal advantage or gain did Justice Hearn achieve with her tie-breaking vote? She herself is silent on that point, but her vote itself in the face of such a massive conflict speaks volumes. It is undeniable that her vote, if the Court's decision stands, will make her own diocese much wealthier than they are now; perhaps she and her husband will save some money on their pledges, or perhaps the diocese will have more money so that delegates like Mr. Hearn would not have to pay their own way to conventions. There is only speculation as to how she (and he) may have gained -- the point is that something had to make it worth her while to make such a brazen decision in the face of such a conflict of interest.

To reiterate: it is only due to Justice Hearn's biased but deciding vote that her own diocese and church will now be millions and millions of dollars wealthier. (They do not have the congregations to fill or even support most of the properties, so they will probably sell them for the money they can get.)

It is irrelevant that hers was only one of three necessary votes. It might not have been as crucial if she were just one vote out of five to reverse, since the result would not have changed if her vote was not counted. But it remains an unalterable fact: The only way that ECUSA and ECSC could profit so richly from the Court's decision is thanks to the concurring vote of Justice Kaye Hearn.

Let us now review briefly the provisions of the South Carolina Appellate Rules of Court (Part V of which includes the Canons of Judicial Conduct) that would be applicable to Justice Hearn in this case. Canon 2 ("A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge's Activities") states in general terms:

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules or other specific provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.

More specifically, Canon 2.B states: "A judge must avoid lending the prestige of judicial office for the advancement of the private interests of others." Could it be more clear that by resolving the tie vote, Justice Hearn was advancing the private interests of the Episcopal Church, the diocese and the parish of which she is a member -- especially since she was prepared to overrule standing case law which was adverse to ECUSA's interests?

Canon 4 of the Code of Judicial Conduct states in part:

A judge shall conduct all of the judge's extra-judicial activities so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge . . .

This would appear to prohibit voting in favor of an organization of which one is a member, like the example of the judge who votes in favor of his own country club against a rival.

The most specifically applicable Canon, however, is Canon 3, of which paragraph B.5 states:

A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability or age . . .

Section E of Canon 3 is even more specific to this case (the asterisks refer to definitions here):

A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
. . .
(c) the judge knows* that he or she, individually or as a fiduciary, or the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household,* has an economic interest* in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis* interest that could be substantially affected by the proceeding;

Can it be concluded, on the face of things, that any economic or other interest of Justice Hearn in the case is "de minimis" (i.e., trivial)? Who can say, since she never has made a public disclosure of her relationship with her parish, her diocese or her church in advance, as is customary in such situations, and is provided for under Canon 3.F? What one can say, however, is that the lack of any such disclosure gives the appearance of impropriety.

Assuming that Justice Hearn's conduct in this case has violated the Canons of Judicial Conduct, one has to ask what are the remedies available to Mark Lawrence, the diocesan corporation, and the individual parishes. The respective lawyers for those parties are going to have to decide what remedies they can and will pursue, but they include at a minimum the following:

(1) Petitioning the South Carolina Supreme Court for a rehearing, on the ground (among others) that until the Court published its opinions, no party could know the degree to which Justice Hearn's conflicts of interest would influence the outcome; and

(2) Bringing a complaint of judicial misconduct against her, again on grounds that could be known only after the Court rendered its decision. (Indeed, under Canon 3.D.1, "A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code should take appropriate action.")

The consequences of either route are difficult to predict. Presumably Justice Hearn would not have the gall to vote on a petition based on her own evidenced bias and partiality, so the vote might end up 2-2 again, which would result in a denial of the petition. In that event, the only remedy would be to ask the United States Supreme Court to review the case.

Hopefully, however, Chief Justice Beatty would provide the decisive vote to grant a rehearing, and he and the remaining Justices would then engage in a thoroughly impartial and honest reassessment of the taint on the proceedings caused by the participation of Justice Hearn, and revise the outcome so as to eliminate all question of any such taint.

I doubt whether a disciplinary proceeding would have any power to change the Court's vote by retroactively disqualifying Justice Hearn from participation in the case. The best remedy for this miscarriage of justice will be for the remaining Justices on the Court to man up, own to their having been blind to the conflicts that influenced Justice Hearn, and make a new decision that is free from all appearance of impropriety.

South Carolinians on both sides of this case will be watching as matters unfold over the coming weeks, and your Curmudgeon will report here on all further developments.