"O, What a Tangled Web We Weave . . ."

" . . . when first we practice to deceive." That's a famous quote, frequently misattributed to Shakespeare, that comes from the epic poem Marmion, by Sir Walter Scott. And it perfectly describes the current situation with the Episcopal Church case in South Carolina.

For you see, the Episcopalians conspired with Associate Justice Kaye Hearn of the South Carolina Supreme Court to hide her bias and prejudging of the issues until she was allowed to hear and contribute her opinion to the case without objection from the attorneys for Bishop Mark Lawrence and the parishes in his Diocese of South Carolina. She was too biased to conceal her partisanship in the oral argument of the case, and then she displayed it overtly when she ruled against Bishop Lawrence and his parishes -- even going so far as to single him out for "betraying his vows of ordination" and for "breaches of fiduciary duty."

(Note to Justice Hearn: the secular courts cannot, consistently with the First Amendment, entertain questions as to whether a cleric in a religious denomination has broken faith with it, or acted in breach of the unique duties owed by a bishop to the church in which he sits. So your opinion that expresses your views on those issues was ultra vires -- beyond your powers to decide.)

And then, having delivered her coup de grace to Bishop Lawrence, Justice Hearn finally saw fit to recuse herself from the case -- after she had signed her opinion!

That opinion was one of five in the case, no two of which followed the same reasoning.  (To be sure, Justices Pleicones and Hearn "concurred" in each other's opinion, but Justice Hearn based her result on grounds other than those of Justice Pleicones, such as the law of constructive trusts.) Given such a splintered result, what is the trial court judge to do on remand?

Here are the conclusions to each of the three opinions agreeing that Judge Goodstein's judgment below should be reversed:

Pleicones, J.: "Further, the civil courts in South Carolina cannot decide disputes which are governed by church polity and governance concerning property ownership.  For the reasons given above, I have determined that the real and personal property disputes sought to be adjudicated in this civil lawsuit are 'question[s] of religious law or doctrine masquerading as a dispute over church property [and] corporate control . . . .' See All Saints at 445, 685 S.E.2d at 172. I find, therefore, the Court 'must defer to the decision of the proper church judicatories . . . .'  Id.
. . . For the reasons given above, I would reverse the circuit court's order and also join Justice Hearn's opinion."

Hearn, J.: "Based on our doctrine of deference to ecclesiastical authority, the Appellants represent the true Lower Diocese of the Protestant Episcopal Church in South Carolina and are therefore entitled to all property, including Camp Saint Christopher and the emblems, seals, and trademarks associated with the National Church. This holding is based on the National Church's recognition of Charles vonRosenberg as its Bishop and the express trust imposed on Respondents' property by the Dennis Canon, as well as on state corporate law principles." [Footnote omitted.]

Beatty, C.J.: "Thus, in contrast to the majority, I would find the parishes that did not expressly accede to the Dennis Canon cannot be divested of their property. Because there was no writing purporting to create a trust and they took no other legal action to transfer ownership of their property, I believe these parishes merely promised allegiance to the hierarchical national church. Without more, this promise cannot deprive them of their ownership rights in their property. However, I agree with the majority as to the disposition of the remaining parishes because their express accession to the Dennis Canon was sufficient to create an irrevocable trust. [Footnote omitted.] In conclusion, I readily acknowledge the controversy surrounding this case and the ramifications of the Court's decision. Even so, my decision cannot be driven by personal beliefs or a desired result. Strictly applying neutral principles of law, which I believe this property dispute mandates, I would affirm in part and reverse in part the order of the circuit court."

Thus two of the Justices viewed this case as one in which the civil courts should "defer" to the "ecclesiastical authorities" -- even though South Carolina is a "neutral principles" State, in which "deference" has no role! -- while the third reaches his result based "strictly applying neutral principles of law." Two of them simply "reverse" the decision below (and one only in part), while only Justice Hearn declares the whole kit and caboodle to belong to her own denomination.

The first two Justices would thus have overruled the leading South Carolina neutral principles case, All Saints Parish Waccamaw v. Protestant Episcopal Church in the Diocese of South Carolina, but two votes do not suffice for that. They would have required a third vote to overrule that decision, and they never obtained that third vote. So the neutral principles doctrine of All Saints Waccamaw stands unchanged.

Nor did Justice Hearn get any other Justice to buy into her "constructive trust" rationale (unless Justice Pleicones may be said to have done so by "joining" in her opinion). But that was not a ground urged on appeal by ECUSA or its rump diocese -- so Justice Hearn gratuitously inserted her views on an issue that was not properly before the Court.

Finally, only two of the Justices (Hearn and Beatty) mentioned Camp Christopher -- the retreat property that belongs not to any one parish, but to the Diocese itself. The Dennis Canon does not apply to the property of a diocese, and so it cannot be used to transfer ownership. For Justice Hearn, "deference" requires that result, while for Chief Justice Beatty, the result follows from the fact that he cannot see how Bishop Lawrence's Diocese is the "successor" to the diocese that owned the property before the lawsuit began. (But the Diocese did not go anywhere -- it is still the same South Carolina religious corporation it always was. So how can there be any question of whether a Diocese can "succeed" itself? The Chief Justice went out on a limb, and no one joined him.)

An even bigger problem for Judge Goodstein on remand, however, is how she should regard the opinion of Justice Hearn, who belatedly recused herself due to a (presumed) perception of a conflict of interest. (You think?) Which is to say, she never should have participated in the case to begin with. In light of that fact, why should attention be paid any longer to her views of the case? To give effect to them would be to allow a conflict of interest to decide the case's outcome, when courts are required to avoid all conflicts in order to ensure their impartiality.

If Justice Hearn's opinion and vote are disregarded, we then have a situation in which the vote of the South Carolina Supreme Court was only 2-2 for reversal, which means that Judge Goodstein's previous order would not be reversed, but would stand as the final decision in the case. In other words, Justice Hearn's deceptive tactic of waiting for the petition for rehearing to recuse herself (thereby ensuring a 2-2 vote against granting the rehearing) would be turned against her, and used instead to affirm the judgment below.

Can you imagine how the ECUSA attorneys will jump and yell and stamp their feet if Judge Goodstein takes that position on remand? But what can they do otherwise, if she does? The most they could do is take another appeal up to the South Carolina Court of Appeals, and then ask the Supreme Court to take the case. But if the case gets that far, Justice Hearn will no longer be able to participate in it. The outcome would thus not be assured at all.

This mess is to be laid entirely at the feet of Justice Hearn and the denomination of which she is a devout and practicing member, namely, the Episcopal Church. They conspired together, as I charge, to obtain the result they wanted by concealing the open bias that Justice Hearn later felt bold enough to display. And then, by recusing herself only at the last minute, Justice Hearn has managed to enshroud all her previous actions in the case with doubt and uncertainty as to their validity.

Only another (and very different) South Carolina Supreme Court can sort out this mess. In this Curmudgeon's view, Bishop Lawrence and his attorneys should take the firm position that with Justice Hearn's recognition that she never should have participated in the case, her opinion must be disregarded just as if she had openly withdrawn it. To give it any shrift at all would be to sanction open bias and partiality in our court system, and thereby undermine the rule of law.

 [UPDATE 06/14/18: I am informed that the "Supreme Court" (which three Justices, after Justice Hearn's recusal, I don't yet know) "remitted" (not "remanded") the case to a different circuit court and judge -- to Judge Edgar Dickson of Orangeburg County. That means that Judge Goodstein will also play no further role in these proceedings, while Judge Dickson is a blank slate.

Nothing in that news changes the logic of my argument, however. The point is that Justice Hearn's participation in the case was invalid, and that she herself has acknowledged it was invalid. An invalid vote is a nullity, and cannot be counted.]