Faults in South Carolina Decision Laid Bare

In two separate court filings yesterday, the attorneys for Bishop Mark Lawrence, the Episcopal Diocese of South Carolina and twenty-nine parishes -- who had been told they must hand over their properties to the national Church (ECUSA) and its ersatz "diocese" (ECSC) -- laid bare the severe faults and conflicts of interest that permeate the bitterly divided 3-2 decision on August 2 by the South Carolina Supreme Court.

The first filing is a 37-page petition for rehearing that systematically points out the huge flaws and legal errors in the 35 pages that comprise the majority decision.

The second filing is a motion addressed to the four current justices of the Supreme Court (minus Justice Kaye Hearn, who is requested to recuse herself from sitting in judgment on herself). It seeks to disqualify Justice Hearn from participating further in the case, and to vacate her overtly biased opinion that resulted in a loss for twenty-nine parishes. Alternatively, it asks that the Court vacate all five separate opinions and rehear the appeal with (if necessary to resolve a tie vote) a specially appointed fifth justice to sit in place of Justice Hearn.

These amount to quite a lot of legal substance to digest on a Saturday morning. But the filings deserve your serious attention, and I will do my best to make them understandable to you. Because it is the key to collapsing the entire rickety structure represented by the Court's divided opinion, I shall take up the motion for recusal and vacation first in this post, and then follow it up with another post on the reasons for rehearing.

The bottom line of this devastating motion is simple: Justice Kaye Hearn had no business sitting on the panel that heard and decided this case, and should have recused (disqualified) herself at the outset of the appeal. The evidence shown for her bias goes far beyond what your Curmudgeon wrote about in the post linked above (which was bad enough): it leaves now no room for doubt on the question. (The page references below are to the pages of the document numbered according to the Adobe Acrobat program -- plug a number into the box, and Acrobat will take you to that page.)

The motion begins its factual presentation with this overview (p. 5):

This case has been challenging emotionally, spiritually, and financially to thousands of people in South Carolina. One of those people is Justice Hearn. Like all of her current and former fellow parishioners, this dispute was and is important to Justice Hearn. However, only a limited number of those people were actively engaged in the debate of the underlying issues. An even smaller handful of people left their parish homes and started new parishes because of the issues involved in this case. One of those people is Justice Hearn. This case was important to Justice Hearn, and she and her husband were actively involved in the debate of the issues and were leaders in developing a new parish after leaving their prior one. Over several years, Justice Hearn developed opinions, advocated for these opinions, and took action based on the outcomes of decisions central to this case. These actions are to be expected by any interested parishioner. However, they should have led Justice Hearn to publicly disclose them, and she should not have rendered judgment in this case.

Bias against her former parish. As is well known, Kaye Hearn and her husband George were long-time members of St. Paul's, Conway. They left in 2013, after that parish voted to remain with Bishop Lawrence's Episcopal Diocese. Before they left, however, they were both vocal in their opposition to the direction in which Bishop Lawrence was going, and differed publicly with St. Paul's rector on a number of occasions (pp. 5-6, and 30-33). It should be noted that if Justice Hearn's written opinion had become the majority decision, it would have resulted in her former parish of St. Paul's having to turn over all its real and personal property to her new parish of St. Anne's. Could a conflict be shown more directly than that?

Support for the Episcopal Forum. As I documented previously, Justice Hearn was a continuing member of the Episcopal Forum of South Carolina since at least March 2007.  According to its mission statement on June 25 of this year (p. 111 -- the Forum's website has since been purged of this and all similar materials, and also of its public membership lists),

The mission of the Episcopal Forum is to support The Episcopal Church in South Carolina, The Episcopal Church and the worldwide Anglican Communion by providing support and educational offerings . . .

The first two entities named in the statement of support are precisely those who Justice Hearn decided were legally entitled to all of the properties of those parishes with whom she disagreed as a Forum member, and as a member of a parish in the Episcopal Church of South Carolina (ECSC). What better witness of support for them could she give than voting to hand over to them about half a billion dollars' worth of real estate?

Moreover, the Forum -- stating it had the backing of all its individual members -- wrote in 2007 and again in 2010 (pp. 103-07, and 177-86) to the bishops in ECUSA and in Province IV (which includes South Carolina) setting out its concerns about and disagreement with Bishop Mark Lawrence over the very actions which would form the basis for the later attempts by the national Church to discipline and remove him -- actions which Justice Hearn likewise criticized and attacked in her decision. In 2012, the forum published on its Website (pp. 188-91) a legal critique of the South Carolina Supreme Court's unanimous decision in 2009 in the All Saints Parish Waccamaw case. The document reads like a precursor to Justice Hearn's (highly biased) reasons given in her 2017 opinion for voting to overrule that decision.

Her Husband's Involvement in the First and Second ECSC Conventions

Justice Hearn's husband, George, served as a delegate for his dissident parishioners to both of the early conventions in 2013 that launched the Episcopal Church in South Carolina. As a delegate, he voted to nullify the resolutions and amendments to diocesan governing documents which had been approved by the most recent diocesan convention under Mark Lawrence, yet his wife saw no difficulty in sitting in judgment over the validity of those resolutions and amendments on appeal (pp. 115-17).

He also voted to elect Bishop Charles vonRosenberg, who promptly sued Bishop Lawrence in federal court claiming that he, not Bishop Lawrence, owned the trademark and seals of the diocese. Later, in response to Bishop Lawrence's preemptive move that kept ECSC from carrying out its plan to sow confusion by insisting that it had the right to be called "the Episcopal Diocese of South Carolina", vonRosenberg countersued against Bishop Lawrence and the individual parishes, claiming all of their property due to the supposedly self-effecting Dennis Canon adopted by the national Church in 1979. Finally, as a two-time delegate, George Hearn signed two oaths of conformity in which he swore allegiance to the National Church and to the remnant ECSC (pp. 74-81).

Bias Shown in Justice Hearn's Opinion

In her opinion concurring with the plurality in the present case, Justice Hearn just could not avoid letting show her overt bias against Bishop Lawrence and his diocese, by relying on her personal knowledge and opinions which were outside of the actual court record in the case. Let the motion for her recusal speak for itself (pp. 8-11):

Justice Hearn found that it was "clear from the record that doctrinal issues concerning .... the role of women were the trigger" for the disassociation. See Opinion p. 37. A complete and thorough review of not just the Record on Appeal, but the entire trial transcript uncovers no mention of the role of women. George Hearn stated that the role of women in the church was an issue to him in leaving St. Paul's Conway, but this deposition testimony was not introduced at trial. See Ex. 2, Depo. of G. Hearn pp. 27-28.  

In another section of her opinion, Justice Hearn strongly criticizes Bishop Lawrence by arguing that Lawrence joined an effort to lead his prior diocese, San Joaquin, out of TEC. See fn. 23. The record on appeal and trial transcript are devoid of such information. The published opinions on the San Joaquin case never mention Lawrence at all. In his deposition, which was not part of the record, Lawrence testified that he left San Joaquin before taking any position on their disassociation. See Ex. 26, Depo. of Mark Lawrence pp. 177-79, 183-84. 

The myth that Bishop Lawrence assisted or agreed with the withdrawal of the Diocese of San Joaquin  from ECUSA in 2006-07 was widely circulated by members of the Episcopal Forum as one of the reasons for his colleagues to exercise extreme caution in voting to confirm his election (see, e.g., pp. 105-07). As noted, there was no proof of his support, either in or out of the record. It is all too telling that Justice Hearn saw fit anyway, because of her unmitigated bias, to regurgitate the myth in her published opinion. And yet that is not all -- the motion continues (p. 10, with my emphases added):

Further, Justice Hearn states in fn. 14 "although there can be no question that the individual parishes have been affiliated with the National Church for decades, the trial court found in its order that '[n]one of the Plaintiff parish churches have ever been members of [the National Church]."' The record is clear that the trial court was right. The clerk of the Supreme Court specifically asked for Requests to Admit to be supplemented in the record. On October 8, 2013, TEC admitted "[p]arish churches are not members of The Episcopal Church." See Ex. 27, Requests for Admission dated October 8, 2013. This same admission appeared in the Record on Appeal already at R. pp. 81 and 630. This finding in Justice Hearn's opinion exists despite the clear admission from the party itself. 

In perhaps her most egregious attempt to manufacture false facts, Justice Hearn managed to show not only her overwhelming bias in favor of the national Church, but also her complete ignorance of its polity and structure (id. at 10-11; emphasis again added):

Justice Hearn states that the Diocese did not disassociate because its amendment of its corporate documents was trumped because "the National Church has promulgated its own set of rules concerning corporate governance, including changes to the bylaws." Op. at 14. However, TEC has no governance provisions in its constitution (R.1532) and canons (R.1703) which speak at all to the ability of a Diocese to amend its governance documents or that require the Diocese to secure approval for such amendments from anybody. There is no reference at all to a Diocese's Constitution and Canons or to its articles of incorporation or bylaws. In fact, it. was undisputed that interference ("regulation or control") with a Diocese's internal policy or affairs was forbidden to TEC's provincial synods. R.783-84. There was no provision here like that in Serbian E. Orthodox Diocese for U S. of A. and Canada v. Milivojevich, 426 U.S. 696 (1976), where a Diocese submitted its governance documents, either originally or when amended, to any other body for approval. 426 U.S. at 715, n. 9.

Long-time readers of this blog may remember my post about when canons were proposed for the national Church which included a "supremacy clause" that would have given such priority to its Constitution and Canons. That proposal, however, was resoundingly defeated in General Convention after the individual dioceses had an opportunity to consider the nature of the changes in the triennium 1895-98. That solid historical fact has never prevented liberal Episcopalians like Justice Hearn from reading nonetheless an imaginary supremacy clause into the national Constitution, despite its express rejection in 1898, and complete absence ever since.

The Clincher: Justice Hearn, a Member of ECUSA and ECSC, Is Herself a Party to the Case!

In a demonstration that tops all that came before, the motion makes its most convincing argument for Justice Hearn's disqualification at pp. 11-12. ECUSA itself has for a long time declared in its national canons that as an unincorporated association of dioceses, its members are individuals who have been baptized in the Church (Canon I.17.1 [a], cited in n. 1 on p. 11). Justice Hearn fits that description, so ECUSA itself regards her as one of its own members.

Likewise, ECSC stated in discovery that "its members are persons" (ibid.), and so Justice Hearn, who belongs to a parish that recognizes the authority of ECSC and its Provisional Bishop, is a member of that body as well.

But the kicker is that under South Carolina law, all members of unincorporated associations are deemed to be parties to an action in the name of the association -- and both ECUSA and ECSC are unincorporated associations. Ergo, Justice Hearn is a party defendant, and could be found personally liable if ECSC ends up with a money judgment against it and no means to pay it. As a party defendant, she has no right to sit in judgment of her own case (just as she has no inherent right to rule on her own disqualification by participating in deciding the motion). See the motion at pp. 11-12, and 24.)

Two Experts in Legal Ethics State that Justice Hearn Should Have Recused Herself

It is no answer to all of the foregoing to say that it was the responsibility of Bishop Lawrence's attorneys to have requested Justice Hearn to withdraw from participation in the case. The South Carolina Judicial Canons required her to make a full disclosure on the record of all of the relevant facts before proceeding at all. Not only that, once she made such a disclosure, the Canons forbid parties from waiving disqualification on grounds of personal involvement, so that she would have had to step down once she revealed the extent of her and her husband's personal involvement (see motion, pp. 13-19).

In further support of their motion, Bishop Lawrence's attorneys submitted the affidavits of two recognized experts in the field of legal ethics. (One has taught the subject at the University of South Carolina Law School for forty years.) Both are unanimous in their view that Justice Hearn was disqualified from participating in the case; that her participation violated the Due Process clause of the United States Constitution; and that under the Judicial Canons and state and federal law, it is still timely for the plaintiffs and respondents to raise the issue due to Justice Hearn's failure to follow those canons. (Motion, pp. 321-41.)

The Only Remedy: Remove the Justice from Further Participation and Erase Her Decision

It cannot be stressed enough just how serious a violation of due process this is -- for a judge so biased not to have recused herself, and to have presumed she was legally able to participate and decide a case in such a way as to benefit her own denomination, her husband and herself. This is not a matter of "abuse of a judge's discretion" -- given the facts rehearsed above and discussed at length in the motion, there was no discretion to be exercised at all. Moreover, because she deliberately chose to participate despite her many disqualifications, the full court should order her opinion on appeal vacated (see pp. 18-19).

Were the Justice now voluntarily to recuse herself, the full Court without her must still decide the motion to vacate her decision, because recusal alone will not remedy the violation. The 3-2 decision would stand until the regular Court (of only four justices) could act on the petition for rehearing (to be discussed in my next post). If it were to divide 2-2, the result would be an automatic denial of rehearing, and the egregious result would stand, leaving only a long shot at the United States Supreme Court's willingness to correct it.

The same stalemate, and same bad result, could occur in deciding the motion to vacate. That is why the motion requests the Chief Justice to appoint a a fifth qualified judge to resolve any possible division in ruling on the motion and the petition.

If the Court as so constituted agrees with the motion to vacate, it should not stop at vacating Justice Hearn's decision only, because then ECUSA and ECSC would cry foul: the result would affirm Judge Goldstein's decision, due to an equally divided court. And by vacating all the opinions, the Court would in effect be granting a new hearing of the case before a full panel (again with a fifth appointed judge to prevent any ties).

Could the Court deny this motion? Of course, it can do anything -- but to deny the motion would be for all the justices to sanction a half-a-billion dollar travesty achieved only through a gross violation of due process. That in and of itself would cast a pall over the entire Court.

ECUSA and its attorneys, of course, are not bothered by palls. Predictably, they will file obfuscatory oppositions to the motion that will play down Justice Hearn's prejudices while glorifying her legal acumen and fully appropriate decision in this case. But they have no sense of shame; they get paid to litigate to the hilt.

I cannot close without remarking how blind to due process have been all the usual bloggers who unstintingly support ECSC and ECUSA. In their comments and posts leading up to the decision (see the motion, pp. 198-256), they saw absolutely nothing wrong in Justice Hearn's participation, or her blatant bias. One of them even went so far as to write: "Justice Hearn was completely committed to the TEC/ECSC side. She was their intrepid advocate, doing, in my opinion, a better job of it [than their] lawyer" (motion, p. 248). And since the decision came out, I have read nothing but triumphalism on their websites -- there is no sense whatsoever of any impropriety, or of any unfair advantage gained by foul means. I call upon their consciences to come clean about the facts laid out in this post and in the full motion, and shall report here on their responses in due course.

Maybe I'm in the minority here, and maybe ethics is not as respected any more as it was when I started practicing law. I would like to think not, but then, I'm just a cranky old curmudgeon.