Thursday, April 21, 2022

South Carolina Supreme Court Divides the Baby

The unanimous decision announced on April 20, 2022 by the South Carolina Supreme Court fulfilled (by its unanimity) at least one of the predictions made in the previous post on this blog after the oral arguments last December. Unanimity, however, in this instance served not to resolve thorny issues of South Carolina law, but rather sent a strong signal that the collective Justices were circling their wagons around their own, in a somewhat transparent attempt to recover the Court's dignity lost in the fiasco created by its disgraceful disunity in 2017.

The result (reached by implicit design) can, alas, bring peace to neither of the litigating factions. Applying extremely arbitrary criteria of its own devising, the Court decided that of the twenty-nine individual parishes before it, fourteen (by the documents they adopted) allowed the nationwide trust specified in the Dennis Canon to be applied to their properties, while fifteen did not. The hair-splitting on display here is best illustrated by the following passage from footnote 12 of the main opinion by Justice Few: 

The analysis of whether Holy Cross, Stateburg satisfied the second element discussed above—intent to create a trust—is the same as our analysis for St. Paul's, Bennettsville, but the outcome of the case for the two Parishes is different. This is because Holy Cross, Stateburg took affirmative present action in its 2011 Bylaws to "accede[] to the . . . Canons of the [National Church]," but St. Paul's, Bennettsville merely stated it was "organized under" and "subject to" the Canons.

This strained construction transforms the English word "accede" ("join in, agree and consent to") into a poison pill that forever dooms the property of the parish using it to belong to the national Church rather than to the parish itself and its members -- the latter are entitled to make use of their own property only for as long as they agree to remain with the sinking ecclesiastical shipwreck that is the current Episcopal Church in the United States of America.

The construction has acquired its severity by a questionable legerdemain performed by Justice Few and his colleagues. For they maintain that the Court's 2017 decision, while not "final" with regard to actual ownership of the parishes' properties, was nevertheless final as to the point that any trust established in South Carolina prior to 2006 was presumed irrevocable -- because three of the five justices sitting in 2017 separately opined that it was so. Nevermind that the point was merely hypothetical at the time -- because only two of the five believed, contrary to the Court's 2009 decision in All Saints Waccamaw, that the Dennis Canon had already established trusts on the properties all by itself; the third (Chief Justice Beatty) simply "assumed" that a trust was created if the individual parishes had consented ("acceded") to its imposition.

(Note that the present opinion does not even mention or cite the Waccamaw decision, which unanimously held that the Dennis Canon of its own force could not create a legally enforceable trust in South Carolina. There was no majority in favor of overruling Waccamaw on this point in 2017, yet in 2022 the Court treats the two minority Justices' pronouncements contrary to that case as something the Court must now "adhere" to -- go figure.)

Neither of those two Justices (Pleicones and Hearn) in 2017 remained on the case in 2022. Pleicones had retired and was replaced on the panel by the chief justice of South Carolina's appellate court; Hearn recused herself from the case right after she rendered an extreme and very biased opinion (which was not surprising, given that as an Episcopalian in South Carolina she had been active in opposing any attempts by individual parishes to leave the Church). But the current court treated their dicta (the word attorneys use to describe court pronouncements that are not essential to its actual decision) as firmly established law for purposes of deciding the case in 2022. Justice Few goes out of his way to say that the Court's holding on revocability applies only to the churches in the case (opinion, section III.E):

We adhere today to the votes those Justices cast in 2017. This holding is limited to the trusts created by express accession to the Dennis Canon in this case. We decline to comment on the revocability—or on any theory of revocability—of trusts created by other churches or parishes.

Never mind that in his 2017 opinion, Justice Kittredge had explained that "irrevocability" was only a presumption in South Carolina law, which could be overcome by contrary evidence. Never mind that Justice Hearn had conceded the bias in her own view by recusing herself; "adhere" to her disqualified vote anyway. Never mind that the 2022 Court decided to go only by the accidental words used by the attorneys creating the parish documents, and to draw an arbitrary bright line once the word "accede" was used. This disregards the extensive factual evidence, considered by the court below, about the differing circumstances that applied to the individual parishes when they each adopted their respective documents. 

If anything was presently binding on the Supreme Court, it should have been the factual findings by Judge Dickson below, because they were supported by substantial evidence. The opinion indeed acknowledges this point, at the start of its section III.C. But it goes on to hold, without citing any authority whatsoever, that "the question of whether an action known to have been taken by a Parish created a trust in favor of the National Church and its diocese under South Carolina trust law is a question of law." Stated that way, the conclusion allows the Court to bypass Judge Dickson's findings as to each individual parish and proceed with its arbitrary verbal analysis involving whether the parishes used the word "accede" or not. 

The Court, in short, was interested only in two things: (a) dispose of the case quickly in a fashion that gives something to each side, so neither can claim "victory"; and (b) restore its dignity by making the decision this time unanimous. And that is a recipe for bad law, which can please no one, and which should be nothing to make a judge proud. (An unspoken aim may have been to let any blame for the unsatisfying result fall on those no longer involved in the case, by treating their dicta as settled law which was "binding" on the current Justices.)

Once again, alas, we return to the recurring theme of this blog: the perils that St. Paul warned Christians about in taking their disputes to secular courts. This is not to judge anyone involved in the South Carolina (or other diocesan) litigation, who were faced with an intransigent national Church determined to have its way with every single dissident parish in the land. But it is to say that Christians cannot expect anything better when they place their disputes in the hands of ill-prepared courts to resolve.

There will be one final chapter to this desultory story once the federal courts dispose of the name and trademark claims, probably in ECUSA's favor. I shall not return here to comment; I am done with everything that involves the Episcopal Church. Let it reap what it has so assiduously sown.


 

18 comments:

  1. Thank you, Mr. Haley, for your kindness in breaking it down for us as we followed along with you. We are forever indebted for your wisdom on these matters. Well done, good and faithful servant of the Lord!

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  2. I Personally agree with the lower court's decision; however, some of the language that some of the losing parishes had put in their bylaws after the Denis Canon was passed, seems a little risky. For example,"accedes to and adopts the Constitution and Canons of the Diocese of South Carolina and of the Protestant Episcopal Church in the United States of America and acknowledges these authorities accordingly."

    What is your opinion on that

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    1. I agree that those parishes did not help their case by adopting such language, Joe Frank, but for me the question is: does the language show any kind of intent that the parish meant their accession to be irrevocable under any circumstances? Consent, once given, is valid for that time, but unless it is a solemn oath before God, ordinary consent may be withdrawn when it no longer serves any practical purpose or need. And the parishes that "acceded" to the Canon uniformly, as far as I am aware, revoked that accession by later action -- so why cannot the Court recognize that fact as well as the fact of accession?

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  3. LAWYERS only moan when the decision goes against their own interests!

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    1. Where would this blog be without you as gadfly, Father Ron? However, in this case I think you have missed the mark, because the lawyers on both sides are not moaning over, but are actively criticizing, the Court's decision.

      Your attempt to ridicule those attempts at criticism reminds me of the story about the inebriated tramp who, happening to spy a man who was grilling meat on a spit rotating over a barbecue in his back yard, offered the observation: "Hey, Mister -- don't look now, but your organ's broke and your monkey's on fire!"

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    2. Great response to F. Ron, Allan. If he is the same Fr. Ron who used to attack me, then he is a New Zealand liberal Anglican priest who deeply resented the formation of the GAFCON diocese in Christchurch for departing the dying Anglican Church of Aotearoa. He’s just another troll watching his universe crumble.

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  4. What puzzles me is how and why the Waccamaw decision seems to have been completely ignored. Did it have anything to do with the "accessions" some parishes had incorporated into their by-laws?

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    1. Alto en chamade, I agree -- it troubles me, too, that the Court took the opportunity of former Chief Justice Toal's retirement to ignore her opinion in the Waccamaw case. If you go back to my post on that opinion (linked in the text), you will see in footnote 5 at the end that the church in that case amended its corporate charter in 2003 (well after the passage of the Dennis Canon at both national and diocesan levels, and after the Diocese recorded a notice of its applicability to the parish's property) to eliminate language about the parish's purpose to "prosecute religious works under the forms and according to the canons and rules of the protestant Episcopal Church, and as a component part of the Diocese of said Church in South Carolina."

      The current Court would no doubt say: "Waccamaw is different, because the language it used was the same as a promise to perform that we held (in the case of the fifteen parishes we excluded from the operation of the Dennis Canon) was insufficient to create an irrevocable trust under South Carolina law. But I would argue that a statement that a parish "accedes to" or "adopts" ECUSA's canons is just as much a statement of intent to engage in future conduct "under the forms and according to the canons and rules of the protestant Episcopal Church" -- so that the Court's analysis has no substantive basis for the crucial distinction it purports to draw,

      This, in short, is the hallmark of a result-oriented opinion, fashioned to justify an arbitrary outcome rather than a principled one.

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  5. One thing the opinion strongly asserted was that it was not to be taken as precedent. ("However, our decision today
    is not precedential in any future church property dispute.") That struck me as absurd -- of course an opinion issued by a state's supreme court is assumed to be precedential.

    I had been thinking that, once the SC supreme court issued its opinion in this case, the individual TEC parishes in the diocese of Upper South Carolina could proceed by analogy -- leave if they wanted to, as long as their documentation etc. was consistent with however the court would rule. But now it seems that even if a parish has documentation analogous to that of the Diocese of SC parishes permitted to leave under the present opinion, that parish may not use the opinion as precedent to leave TEC. So, theoretically, the fight would have to be repeated in Upper SC if a parish or parishes decides to leave TEC. And the state supreme court could come up with a totally different result. Furthermore, the court has tied its hands -- it cannot cite itself as precedent the next time around. Totally random.

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    1. An excellent comment, Watt. The opinion will neither help nor hurt any parish in SC wanting to withdraw from its diocese, assuming its governing documents are in order. But All Saints Waccamaw remains good law, and so any parish that can follow in its steps should be OK -- change its bylaws and articles, and get a title report showing that it is the sole record owner of its property under South Carolina law.

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    2. I do think that the "not precedential" phrase is the key to the entire opinion. Of course its preposterous for a state supreme court to declare any of their opinions as not precedential. Surely this must be because they know that it cannot be squared with any of their prior relevant precedents nor the factual record, and hence they don't want to have to explain in a future case how this result fits into SC church property law. But logically, if a decision is not precedential law, then despite being cloaked as law, it is in fact pure equity. This was just SCSC deciding to end the embarassment by imposing a final split the baby result that seems equitable to it under the circumstances. Hardly what a supreme court should be doing, but there you have it.

      Be that as it may, one could sort of move on from this kind of a decision. Bad decisions happen, and are not always rectified at the appellate level. Sometimes mistakes have to get fixed in future cases, and the positive side of "not precedential" is that the field is fully clear even in SC for a better decision in a future similar case. Waccamaw remains good law. Etc.

      But the one aspect that cannot just be fit into "better job next time" is the stain on the rule of law in South Carolina created by the failure of the SCSC to address the obvious misconduct of one of its members. There can be no principled argument for why Justice Hearn needed to recuse herself after the original decision but not before. Her doing so is prima facie evidence of her own misconduct. Surely the other justices know this - it is not a subtle or complex point. And the issue is that ONLY the SCSC really can address that sort of misconduct, given that SCSC is the body which supervises the judicial misconduct review process in SC. Their failure to do so does more than damage the reputation of their court - it communicates that the rule of law can be subverted in South Carolina if the subverter is sufficiently highly placed, and hence that the people of South Carolina cannot believe that, whatever their human flaws, the courts of their state make an effort to give every litigant a fair shake. That's the sort of thing that can be corrosive, if not firmly resisted and punished.

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  6. Thank you for your interpretation of the legal mumbo jumbo. I feel sorry for those parishes that chose the wrong words so many years ago not realizing how they would come back to haunt the next generation. This reminds me to review my earthly will and testament very closely, but if words die and lose their meaning as has happened to “accede”, then our descendants are doomed to suffer the pain that revisionism inevitably inflicts.

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  7. Am I missing the status of Holy Cross, Sullivan’s Island (not Stateburg) https://www.holycross.net/whoweare in the opinion?

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  8. As best as I can tell, dieolisa, Holy Cross of Sullivan's Island was no longer a party to the litigation when it came to trial before Judge Goodstein in 2014, and so it was not a party to the appeal taken to the South Carolina Supreme Court from the 2015 judgment in that case. Perhaps someone from Holy Cross or a nearby parish could enlighten us about how it managed to stay out of the litigation.

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    1. Mr Haley, Would you consider letting me interview you for a podcast I am putting together. I am a member of St Philips and wanting to tell this story in a cohesive way.

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    2. Mr. Kerrison, you may contact me at ashaley[-at-]nccn.net, and I will try to help you.

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    3. Since this seems to be the end, can I briefly thank-you for your work over the years, Mr Haley.

      It has been sad, but fascinating.

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    4. Dear Mr Haley, I was unsuccessful writing to you at ashaley@nccn.net. I hop you are ok. Please advise.

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