A Triumph of Injustice and Irresponsibility

In two orders mailed to the parties at the end of last week, the South Carolina Supreme Court announced the following rulings in the property dispute between Bishop Lawrence's Episcopal Diocese of South Carolina and the Episcopal Church (USA) joined by its rump organization there:

A. The motion to recuse Justice Kaye Hearn from the case was denied unanimously by all five Justices, including Justice Hearn herself. (Two justices concurred in the denial, but wrote separate opinions stating their reasons.)

B. The motion to grant a rehearing in the case was denied by a tie vote of 2-2, because Justice Hearn, in an act of what can be described only as hit-and-run, recused herself from deciding that issue (as well as from acting further in the case).

If evidence were needed to demonstrate the fecklessness of the justices who are responsible for the mess the South Carolina Supreme Court has made of its church property law in this proceeding, the latest pair of rulings on the petitions would suffice, all on their own. Consider the following facts:

1. There was never any decision of a majority of the Court in the case. In five separately written opinions, only two Justices (including Justice Hearn, herself an Episcopalian) agreed on reversing the decision below in order to hand all of the disputed church property to the Episcopal Church and its Potemkin diocese in South Carolina. Two Justices agreed on letting the decision below stand, albeit for different reasons. And the fifth -- Chief Justice Beatty -- simply punted by saying he would enforce a Dennis Canon trust (but not for the reasons stated by Justices Hearn and Pleicones) only against those parishes who had "acceded" to the national canons. (Never mind that virtually no parish had ever done so since the Canon's adoption in 1979, or that any such involuntary trust would have to be revocable at will under South Carolina law.)

2. All five of the Justices misunderstood the motion to recuse Justice Kaye Hearn. They appear to have regarded it as wholly independent of the motion for a rehearing, when it was not. The reason is that granting the request for a rehearing would have accomplished the same things requested again in the motion to recuse: the Justices would have been able to decide the case anew. Their prior opinions would be replaced by any new ones written on rehearing, and Justice Hearn's prior opinion would no longer be of any account. But they treated the motion to recuse just one Justice as a request to do all these things independently of any rehearing, which makes no sense, and appeared to congratulate themselves on their unanimity in striking down a straw man.

3. Thus they each (including Justice Hearn herself!) ruled that the motion to recuse came too late, since the full Court had already rendered its non-decision in the case. The motion to recuse, however, was aimed only at her future participation in the case; the past is water under the bridge, and could be corrected, if at all, only by granting a rehearing. (For her part, Justice Hearn mooted the motion to recuse by announcing on her own that she would not participate in further proceedings in the case.)

4. But not before voting to deny the motion to recuse! (So she did not withdraw from all further matters in the case.) She waited until she could see which way the rehearing votes were going to fall on the part of the other four Justices, and then grandly announced she would recuse herself only from participating in the decision to grant rehearing.

5. The reason she could make that gesture is that when she saw that the Court would still be divided 2-2 on granting a rehearing, she knew that her participation in it would not make any difference to the outcome she wanted: a 2-2 tie vote operates to deny a pending motion just as much as does a 3-2 majority vote to deny it. Cynically, therefore, she could get away with appearing to be "noble" and no longer involved -- while ensuring by her recusal the outcome she wanted all along.

6. The great unanswered question in these shenanigans is only hinted at by Justice Kittredge, who states in his concurrence in the recusal order the following:

For the purpose of resolving the rehearing petitions, I requested that a fifth justice be appointed to fill the absence created by Justice Hearn's recusal so that a full Court could decide this matter of great importance. My request was rejected, which I find shocking. Under these circumstances, to disallow a full Court from considering the rehearing petitions is deeply troubling and, in my judgment, raises constitutional implications as the Court has blocked a fair and meaningful merits review of the rehearing petitions.

The question is: which Justice(s) voted or decided to deny the request to appoint a full five-person court? From the lack of any written ruling or order made upon Justice Kittredge's request, it would not appear that there was any vote taken. Instead, the decision appears to have been made by the Chief Justice, acting on his own authority. (A court rule that operates in the case of a recusal by a justice facing disciplinary charges gives the Chief Justice that duty, but it is mandatory -- he must name a replacement.)

But by what authority? I could find no rule of court that was directly applicable to the situation, but South Carolina has a statute which reads as follows:

SECTION 14-3-60. Procedure when justice cannot preside in cause; special justices.  

In case all or any of the justices of the Supreme Court shall be disqualified or be otherwise prevented from presiding in any cause, the court, or the justices thereof, shall certify the same to the Governor of the State, and he shall immediately commission specially the requisite number of men learned in the law for the trial and determination thereof.

Why, then, could not the Court have certified the lack of a full court to the Governor so that he could have named a replacement? Again, the language of the statute is mandatory: the Court has no discretion to ignore it. No wonder that Justice Kittredge is so shocked.

This mystery just adds to the bafflement of outside legal observers in trying to explain what is really going on inside the South Carolina Supreme Court. Whatever is going on is not pretty, and ought to be highly embarrassing to all members of the South Carolina bar. (Perhaps one of them will venture here to dispel our curiosity as to why the statute just quoted was not followed in this case. Is the reason that the word "presiding" in the statute is taken as referring only to cases when the Chief Justice is disqualified, as opposed to applying to any Justice who had been sitting on the case? But why would that be? In both cases, the Court is left with four justices who can divide evenly as they did in this case, so that a fifth justice to resolve the split is highly to be desired.)

In any event, the more outlandish this case gets with each successive month, the more it cries out for redress by some higher authority. The Episcopal Diocese says it is contemplating asking the United States Supreme Court to review what has now become an egregious denial of due process guaranteed by the federal constitution -- it has virtually no other alternative left to it.

For their part, the response of the ECUSA parties to these latest developments is downright macabre. Here is Bishop Skip Adams, speaking in a public statement issued after the two latest rulings:

We give thanks for the clarity that the State Supreme Court’s decision provides and we are grateful for the thoughtful and difficult work the justices have undertaken in this case. . . .

Clarity?? You give thanks, Bishop Adams, for the Court's clarity??? Could you, perhaps, try to be a little more clear in what you mean by that statement?

With Sophocles (Antigone, vs. 620-23), I can only say: τὸ κακὸν δοκεῖν ποτ᾽ ἐσθλὸν τῷδ᾽ ἔμμεν' ὅτῳ φρένας θεὸς ἄγει πρὸς ἄταν.