Judges Who Are Indifferent to Injustice

Perhaps none of my readers in South Carolina will be surprised to learn that two former colleagues of South Carolina Supreme Court Justice Kaye Hearn, both retired judges who sat with her for many years on that State's Court of Appeals, have appeared as "friends of the court" (amici curiae) in the Episcopal Church case on her behalf. That case (Protestant Episcopal Church in the Diocese of South Carolina et al. v. The Episcopal Church et al., No. 27731, August 2, 2017) has been the subject of four of my last seven postings here (report of decision, first critical observations re: bias of Justice Hearn, summary of grounds for her disqualification, and summary of grounds for granting a rehearing).

Now come the Hon. William T. Howell and the Hon. H. Samuel Stilwell, retired from the Court of Appeals, to argue to the Justices of the State Supreme Court that (a) the motion to disqualify Justice Hearn comes too late for it to be acted upon, and (b) in any event, no foul has occurred -- there has been no violation of due process, because their former colleague did nothing wrong by deciding the case as she did. Oh, and did I mention that the signer (and presumably principal author) of the brief for the amici curiae is Matthew Richardson, who served in the past as a law clerk to Justice Hearn?

In support of (and attached to) this brief are two affidavits. The first is from Rebecca Lovelace, a witness who testified at trial on behalf of those claiming all the properties of the withdrawing parishes, who is a long-time personal friend and fellow parishioner of the Justice and her husband, George Hearn, and who was on the steering committee that organized the appellant Episcopal Church in South Carolina (ECSC). The second affidavit comes from Prof. Gregory B. Adams of the University of South Carolina School of Law, who does not, however, disclose that he himself is a member in good standing of the parish of Good Shepherd in Columbia -- which, as a constituent of the Diocese of Upper South Carolina, has remained in ECUSA.

So one would expect to read a thoroughly impartial and unbiased series of legal documents, right? And if that is what you expect, then you might as well stop reading right now.

Earlier, I analogized Justice Hearn's role in this case to that of a member of a golf club who sees nothing wrong in sitting as judge over a property dispute that results in the transfer to her own club of millions of dollars of real estate titled in the name of a competing golf club. If that analogy holds up, then I will liken the filing of this amicus brief to testimony offered in her support, in a proceeding against the judge to disqualify her for bias, by four members of the judge's same club. And that is not also bias?

Their arguments are smooth, and read well on the surface. What gives their game away, however, are  the points to which their specific arguments are addressed -- in every case, they are not the real points at issue. They instead are a series of straw men, carefully erected only for the purpose of being able to knock them down.

Take, for example, the first detailed argument they make (brief [p. 7] at Adobe Acrobat p. 18): they claim, citing only cases involving federal law, that a motion to recuse is untimely if not made before a decision is rendered by the judge being challenged. While the cases cited do so hold (interpreting federal law and rules), that is not the point at stake.

The motion to recuse Justice Hearn is directed at her ability to sit as judge on the decision whether to grant a rehearing. That decision has yet to be made; neither she nor any other justice has yet written any opinion on the point. So the argument that the motion is "untimely" is nonsensical. If it is untimely to move to disqualify a judge before the judge makes a decision, then every motion to disqualify would be "untimely."

Neither the amicus brief, nor the earlier return to the petition for recusal filed by ECUSA and ECSC, addresses this argument, which is the only one actually made by Bishop Lawrence and his parishes. And there is, as just demonstrated, no rational answer that can be made to the argument. A motion to recuse a judge filed before that judge acts on the question for which she is disqualified can never be "untimely."

In effect (although amici do not say so), the amici (and ECUSA/ECSC) are arguing that Bishop Lawrence and his attorneys waived any right to challenge Justice Hearn for bias because they waited until after she had ruled in the main case, when they could have stated many of their same grounds for disqualification two years earlier, before the oral arguments. But this is likewise not a valid argument. For instance, had the decision turned out 4-1 against ECUSA/ECSC, with only Justice Hearn dissenting and voting to overrule the All Saints Waccamaw decision (see my earlier post on that), then any motion to disqualify her would have been moot, pointless, and a waste of everyone's time.

One can never, moreover, be held to "waive" a justice's bias or personal interest -- it would be akin to waiving any objection to a person who says he wants to wound you. But one can certainly expect, and even demand, that a justice refrain on her own from ruling on a case in which she is biased through personal interest. Bishop Lawrence's attorneys, as I argued in this earlier post, were entitled to assume, once it became evident (after argument and conferencing) that hers would be the deciding vote in causing the half-a-billion-dollar transfer of church property, that Justice Hearn would certainly recuse herself, even if that meant the case would have to be reargued.

So the amici's first argument is a non-starter. What else do they argue? Well, once again they proceed to set up a giant straw man, just to demonstrate how skillfully they can knock him down. (The technical term for this rhetorical sleight-of-hand is ignoratio elenchi, and lawyers are trained in how to spot it, because other lawyers are constantly abusing the legal process by resorting to it.)

Their second argument is perhaps more subtle, but every bit as fallacious, as the first. They contend that Justice Hearn's biases were not sufficient to produce a "due process" (i.e., 14th amendment) violation, and so therefore it follows that not only does she not have to recuse herself, but that the litigants whose rights she violated have no right to ask that she recuse herself for the future, either (amicus brief, pp. 10-13 [Acrobat pp. 21-24]). By the very way it is carefully constructed, this argument confuses a constitutional right (to have a fair trial) with South Carolina's statutory prohibitions against judges sitting on cases in which they have a personal interest.

The two rights are not the mirror image of each other, as the argument tries to claim by equating them. A due process violation raises a federal question -- one which, for example, could be used to ask the United States Supreme Court to review the case. The state prohibitions against bias in the judiciary have an object in addition to preventing constitutional violations: they are intended to preserve public confidence in the integrity of the judiciary.

This is what makes so deplorable the spectacle of two retired judges arguing to their own Supreme Court that it does not matter if Justice Hearn could have recused herself, because even if she acted out of personal bias, she did not violate the 14th amendment rights of Bishop Lawrence and his diocese. "Who gives a fig for your integrity?" they seem to be asking. "As long as your behavior does not amount to a federal due process violation, you are just fine, no matter how bad it may look to the public."

Notice also how this second argument avoids the main issue again, which (to repeat in bold) is whether Justice Hearn should rule on the pending petition for rehearing. In effect it claims that because (the amici assume) she has not yet committed a constitutional violation, she should be perfectly free to go on trying. (As the football cheer says: "Hit 'em again, hit 'em again, harder, harder!")

Another indirect argument the amici are making is that there really should be no rehearing granted -- because Justice Hearn and her concurring colleagues got it right the first time. But as before, that argument at this point is improper. It is nominally addressed to the merits of the petition for rehearing, but it does not deal with those merits. Instead, it tries to skirt around the question by saying there is no real need to decide it.

The remainder of the amici's arguments amount to similar attempts at ignoratio elenchi. Take, for instance, their response to the point that as far as Justice Hearn was concerned, her old parish of St. Paul's Conway would have to turn over its property along with all the other thirty-six parishes involved in the case. Unlike Chief Justice Beatty, Justice Kittredge and Acting Justice Toal, Justice Hearn was willing to decide that all 36 parishes (including St. Paul's) were bound to hold their properties in trust for the national Church whether they had acceded to the national Canons or not. She wrote (Adobe Acrobat opinion, p. 30):

In my view, the National Church is correct in its assertion that even without these individual reaffirmations made post-Dennis Canon, the relationships between the National Church and the parishes reveal that an express trust exists, created as the majority envisioned in Jones v. Wolf.  

(And in default of an express trust, she was even willing [see p. 31] to impose a constructive one -- a judge-created remedy in cases of outright fraud.)  

Amici feel it is a sufficient answer to this point to observe that the Court's decision resulted in St. Paul's being one of the seven churches that are allowed to keep their property, and so Justice Hearn could have no "personal interest" in the outcome of the case. Well, that result is no thanks to Justice Hearn! She, as she wrote, was fine with a judgment that would have ordered her former parish to surrender all of its property to the organization to which she belongs. And yet the amici can say with a straight face that her decision does not show any "personal interest" she has in the case?

Amici also make no answer to the detailed evidence of bias and personal interest which anyone in knowledge of the actual facts can draw from Justice Hearn's own opinion, as explained in the petition for recusal and in my earlier post. She was the only Justice who felt it necessary to go into extraordinary (and erroneous) detail about fiduciary violations by Bishop Lawrence to his former church -- which are not violations that can be dealt with in the civil courts, since they present wholly ecclesiastical issues.

Hearn's overweening bias is thus shown by her willingness to address such matters on the merits, while at the same time urging that the trial court got it wrong when it steadfastly refused to defer to  the national Church's "ecclesiastical determinations" in holding that Bishop Lawrence's entities properly withdrew from ECUSA under State law. For Justice Hearn, in other words, Episcopal Church law trumps every State law, because she regards that Church as "hierarchical" (a red-herring issue, if ever there was one, in a State that adheres to neutral principles). And that is not evidence of her Episcopalian bias?

In sum, the arguments advanced by those trying to defend Justice Hearn focus all too much on what is past, and not on what is to come. Having been thus challenged for excessive bias, how can she (or they) claim a right not to have to deal with the challenge, and to go right on as though no challenge had been made?

It is a sad day for judicial integrity in South Carolina when its present and former judges are so concerned to circle the wagons around one of their own that they are willing to let half a billion dollars' worth of charitable property change hands for reasons on which no three of them could even agree. If the fact that the Hon. William T. Howell and the Hon. H. Samuel Stilwell were willing to have such a brief filed on their behalf is any indication of the respect that South Carolina judges have for their own integrity, then what can one expect from the South Carolina Supreme Court? And even if Justice Hearn withdraws from any participation in deciding the petition for rehearing, what guarantee can there be that a truly neutral fifth justice can be appointed to resolve any tie?

All eyes are now upon the justices of the Supreme Court of South Carolina. May they do the right thing, see through the hollowness of the arguments in defense of Justice Hearn, and in the end provide the parties with the fair and impartial tribunal that they deserve.