Monday, July 21, 2014

S. Carolina Day 10: When Will ECUSA Start to Play by the Rules?

Why are ECUSA and its attorneys so incapable of following the rules? Could it be that the lawlessness of 815, as aided and abetted by its attorneys, has now infected ECUSA's ability to present a civil case under the rules of court in South Carolina?

From first appearances, that would seem to be the only conclusion to draw from today's proceedings. First, let me use the account from the Episcopal Diocese's Press Office to provide the necessary background for what I shall go on to explain, and then I will put things into context:

DAY 10: DIOCESE OF SC v. THE EPISCOPAL CHURCH

TEC Attorney Admits TEC Constitution Does Not Prevent a Diocese From Leaving the Denomination

Judge Refuses to Consider Evidence about Whether TEC is Hierarchical


ST. GEORGE, SC, JULY 21, 2014 – An attorney for The Episcopal Church on Monday acknowledged that – despite TEC’s repeated claim that dioceses may not leave the denomination – there is nothing in the group’s constitution that specifically prohibits such a disassociation.

“It’s true it doesn’t say whether a diocese in the U.S. can or cannot [leave],” said Mary Kostel, attorney for TEC. “It’s arguably ambiguous.” [Ed. Note: Ms. Kostel could scarcely expect that such an outlandish remark on her part should be allowed to pass without editorial comment. What she is saying is that the absence of a specific prohibition in a governing document makes it somehow ambiguous as to whether or not the drafters still meant to prohibit the act they specifically did not prohibit. Example: The First Amendment does not contain any express language about a person's "freedom to disassociate from a group." So such a "right" must be "ambiguous" -- because it was not made express in the language of the Amendment -- and thus whether such a right actually exists is up to Congress to decide. Contrary to Ms. Kostel, what the courts have always held is that the First Amendment's "freedom to associate" necessarily embraces a corresponding "freedom to disassociate." The question of "ambiguity" in such a case does not even rise to the point of being debatable.]

The comment came during the 10th day of trial in suit to prevent TEC from seizing the property of the Diocese of South Carolina and its parishes. Much of the morning was spent in a discussion between attorneys and Judge Diane S. Goodstein about the admissibility of testimony by historian Walter Edgar, a professor at the University of South Carolina.

Though Edgar was not identified as an expert witness, TEC wanted him to testify about his expertise and provide opinions on the hierarchical nature of TEC and to demonstrate that it has authority over its dioceses and parishes. But Judge Goodstein denied that he would be allowed to.

This is the second time in this trial that TEC failed to follow the rules on the use of witnesses. “When he shifts from saying ‘this is what it says,’ to ‘this is what it means’ we’ve crossed into expert testimony,” she said.

Judge Goodstein acknowledged that she understands TEC’s attorneys want to introduce the idea of a hierarchical denomination in order to pave the way for an expected appeal. However, she made clear that the claim is irrelevant to the case under South Carolina law.

“Let me be very clear that in every way the defendants [TEC attorneys] have done everything within their ability to establish the hierarchal nature of this church. I accept that,” she said. “Our courts have said we will not enforce the hierarchical decisions. We’re a neutrality state.” [Ed. Note: The Judge is on solid ground here. The Supreme Court of Carolina, in the All Saints Waccamaw decision, came down clearly against deference to hierarchical tribunals (i.e., as in Watson v. Jones), and in favor of the more recent "neutral principles" standard of Jones v. Wolf. ECUSA's attempt to put South Carolina back into the earlier deference camp is a non-starter. As a trial court Judge, Judge Goodstein is required to follow the Supreme Court's precedents -- she has no discretion if those precedents are on point. ECUSA itself had a full opportunity to argue for its "deference" standard in the Waccamaw case -- and it lost that argument at the highest level. So how can it possibly hope to persuade Judge Goodstein to acquiesce in its attempt to disregard what the South Carolina Supreme Court decided -- in a case, I repeat, in which ECUSA had full opportunity to argue as it is trying to do now? One of the hallmarks of the law is that, unlike a popular audience, it does not listen to you when you keep trying to go back to the same losing argument over and over again.] The afternoon was spent with Edgar literally reading highlighted excerpts from numerous journals of the Diocese of South Carolina [see his report linked earlier], showing that the Diocese participated in TEC activities and adhered to its rules while the Diocese was a member of the denomination. The diocese has never disputed that fact.

In fact, during the morning discussion before Edgar even began his testimony, Diocese of South Carolina attorney Henrietta Golding said, “If you’re a member of a club or fraternity, you abide by the laws. …There’s no relevance that the Diocese followed the Constitution and Canons. They were together at that time. There’s no significance because a party to this action followed the rules. We were members then.”

Edgar also spent some time testifying about individual financial contributions TEC had sent to the diocese and its parishes through the years. While he never mentioned a total number, after reading page after page of excerpts, it was clear that the denomination had provided several thousands of dollars.

However, when asked in cross-examination by Alan Runyon, lead attorney for the Plaintiff, Dr. Edgar testified that he had not been asked to, nor did he attempt to, see how much money the diocese had voluntarily given to TEC during the same time TEC says the Diocese received grants and loans "It could even be 900 percent more than you testified TEC has given over the same period and you do not know because you did not ask?" Runyan said.
I am still shaking my head over this report. I find it difficult to believe that ECUSA, the ECSC, and their collective attorneys could think that they would be allowed to call another witness to the stand to give "expert" opinions after they had failed to disclose him as an expert witness to their opponents, or to Judge Goodstein.

Professor Walter Edgar is an acknowledged authority on South Carolina history. The report he prepared for "disclosure" to the plaintiffs is replete with passage after passage he has pulled from historical documents pertaining to the Diocese of South Carolina, in order to demonstrate how, in his view, the Diocese always took note of, and followed the Constitution and Canons to what was then the Protestant Episcopal Church in the United States of America, or PECUSA.

But at the end of his expert report, there comes this amazing passage:
I will use my expertise as a professional historian to give a proper analysis and interpretation of any of the voluminous documents that are involved in the factual history I have been asked to present. I will render an expert opinion whenever necessary to explain the context of the history of the Diocese as it relates to these matters.

It would be impossible for me to list each and every expert opinion I might be required to render because such will depend upon issues raised by the Court and counsel in search of correct interpretations of the documents I am asked to inspect.
In effect, this passage asks the court to extend the witness carte blanche to render any opinions he sees fit to give -- without the necessity of alerting the other side in advance, so as to allow them to prepare for his cross-examination.

Needless to say, those are not the rules. The purpose of expert discovery in the first place is to (a) pin down the other side's expert to specific, articulated opinions -- which may then be subjected as necessary to the cross-examination required to test their merit; and (b) to avoid any element of surprise at trial when the expert does testify.

Apparently ECUSA did not bother to disclose Prof. Edgar as an expert, and represented that he would simply catalog an entire litany of historical facts, taken from the various diocesan and other records, for the Court to consider. Well, he was allowed to do that -- but he was stopped when it came to expressing his opinions about those facts, because he had not previously disclosed just what those "opinions" would be.

I am accordingly in some doubt about ECUSA's game strategy. Were they counting on the plaintiffs' lawyers waiving, or being ignorant of, the relevant rules? That's hardly a winning strategy.

Did they count upon the good graces of the Judge to excuse their ineptness? Again, after they flouted her orders to disclose the names and opinions to be rendered by all experts, how could they reasonably expect any quarter from her corner?

The case for ECUSA and ECSC has now lost any momentum it ever had. Instead, the case flounders as counsel struggle to put on what evidence they can after they are required to follow the same rules that everyone else in South Carolina must.

This is not the way to impress a trial judge who expressed herself as eager to be guided through the historical documents, and who looked forward to hearing from qualified experts for that purpose (see the beginning of the account for Day 9 at the link just given). This is not to deny that Prof. Edgar might well have been just such a capable expert. Instead, however, the opinions he might have offered have gone to the trash heap of "what might have been."

All that remains, as the diocesan press release notes, is a litany of instances where the Diocese of South Carolina, while it was a member in good standing of the national Church, diligently followed all the then rules to be a member in good standing.

But evidence that one followed the rules when one was a member of the club is not evidence that one agreed to permanent membership in the club. The two issues are entirely different, and evidence of the one is no proof of the other. (Nor is the evidence that the national Church gave a few ten thousands to the Diocese over the years, while the Diocese itself gave millions back to the national Church. That is evidence only of the good relationship that once existed between them, but which is no more as a result of the national Church's (and its SC followers') ham-handed insistence on seeing Bishop Lawrence illegally removed from his position.

In other words, evidence that everyone abided by the rules becomes irrelevant once one side proclaims that it does not intend to follow them any longer.

[I note that the ECSC website now has its account of the day's proceedings up -- but one reads it in vain to find out just why Prof. Edgar was prevented from offering opinion testimony as to the documents he highlighted. This must be why ECUSA cannot learn its lessons: from the highest level at 815, on down to the laborers in the ECSC trenches, all talk about following laws and rules, about playing the game fair and square, falls on deaf ears. They are interested in one thing, and one thing only: can they jawbone, or bully the court into letting them run things the way they want? When they are held to following the rules, it's all the other side's fault for insisting on those rules -- and the Judge is being "partial" and "biased" because she decides to enforce them.

I will have more to say about this brazen strategy in a separate post. For now, let us be content to observe that it has profited ECUSA and its rump group nothing.]

Wednesday, July 16, 2014

Huge Setback for ECUSA at South Carolina Trial -- Their Expert Concedes the Case

Yesterday, July 15, was the seventh day of the ongoing trial involving Bishop Lawrence's Episcopal Diocese of South Carolina and thirty-four of its parishes, as plaintiffs, seeking to quiet the title to their real and personal property against the claims made by ECUSA and its rump group, the "Episcopal Church in South Carolina" ("ECSC"). The defendants say that the Diocese and its parishes all forfeited their property when the Diocese voted to amend its governing documents so as to make it no longer a constituent member of ECUSA.

According to the official line promulgated by ECUSA, "people may leave, but dioceses may not." ECUSA claims to be made up of 110 dioceses (actually, now 109 following the merger of Quincy into the Diocese of Chicago), but four of them are not true dioceses -- they are the rump groups set up by 815 to act as plaintiffs (or, in some cases, when they cannot organize fast enough, as defendants and counterclaimants) in the lawsuits brought to recover the bank accounts and real properties that belonged to the dioceses and their member parishes that voted to withdraw. Those rump groups, although each newly organized, have never formally been admitted as proper "dioceses" into union with General Convention, as required by ECUSA's own Constitution.

And one sees right away why: if ECUSA were to go through the formalities necessary to admit them as new dioceses, it would give away its argument that "dioceses cannot leave." Instead it has the rump groups pretend to be the ongoing original dioceses, and then has General Convention recognize them as such and seat their deputies.

Thus far, only two trial courts -- one in Pittsburgh, and the other in Fresno, California -- have been taken in by this ruse. Judges in Texas and in Illinois, meanwhile, have not. (A ruling is expected any day now from the Illinois Court of Appeals which will affirm a lower court's judgment that the [now Anglican] Diocese of Quincy properly amended its own governing documents so as to remove itself from ECUSA.)

And now ECUSA may have shot itself in the foot in South Carolina, as well. Let's have the Press Office of the Episcopal Diocese tell us what happened on Day 7 of the trial, with ECUSA and ECSC putting on their portion of the case (I have added some explanatory notes, taken from my daily postings on the trial over at StandFirm):

DAY SEVEN: DIOCESE OF SC v. THE EPISCOPAL CHURCH 
TEC Witness Admits Diocesan Constitution, Canons Trump Those of the National Church

ST. GEORGE, SC, JULY 16, 2014 –An expert witness for The Episcopal Church (TEC) undermined claims by the denomination that its rules supersede those of local dioceses in the Diocese of SC, during day-long testimony in the trial to protect local diocesan and church property from seizure by TEC and its local subsidiary, The Episcopal Church in South Carolina (TECSC). 
Martin McWilliams, a law professor at the University of South Carolina, was called by TEC and TECSC to testify as an expert witness. 
McWilliams spent considerable time explaining his credentials as a corporate governance expert and said that because the Episcopal Diocese of South Carolina incorporated the constitutions and canons of the national church in its own corporate charter, it is governed by those constitutions and canons. [Ed. Note: I am unaware of any language in the Diocese of South Carolina's Constitution and Canons that ever purported to incorporate the national Constitution and Canons, as opposed to merely acceding (agreeing) to them. Perhaps that is all the witness intended to say: by acceding to the national Constitution and Canons, the Diocese agreed to go along with, and be subject to, them. But accession, as I noted earlier, involves consent, and consent is at the will of the one consenting: it may be withdrawn at any time, unless the consent is expressly stated to be "perpetual", "forever binding", or words to that effect. (The Articles of Confederation, for example, described the Union so formed as "perpetual" -- and that was one of the reasons why the Supreme Court held, following the Civil War, that States could not unilaterally withdraw from the United States.) Here, the accession by South Carolina was never made "binding", "perpetual", or anything similar -- it was simply an accession for as long as the Diocese should continue to consent to what ECUSA did.] 
However, on cross examination by the diocese’s attorneys, Alan Runyan and Henrietta Golding, he acknowledged that the diocese – while it may incorporate the national rules – is, in fact, governed by its own documents. 
He further acknowledged there is no rule in either the national canons and constitutions, nor in the diocese’s own constitutions and canons that prohibits the diocese from amending its corporate documents. [My emphasis -- Ed.]
He also said that the diocese was within its legal rights to amend its articles of incorporation. [Ed. Note: Well, that pretty much concedes the whole case. Under the ruling in the All Saints Waccamaw case, which is binding on Judge Goodstein, if the Diocese followed its own Constitution and procedures in amending its documents so as to make it no longer capable of being part of ECUSA, then the national Church has nothing to say about those amendments: it reserved in its own Constitution no power to restrict the ability of a diocese to amend its governing documents, and had no language requiring a "perpetual" union.] 
McWilliams was the only witness called.
And no wonder -- his testimony on cross-examination must have thrown the ECUSA attorneys into consternation. (There is no mention of any attempt to rehabilitate the witness by a re-direct examination.) The shock and surprise may also be seen by the fact that as of the time I am posting this (which is around 2:30 a.m. Eastern Daylight Time on July 17), no account of the day's proceedings has yet appeared on the ECSC website.

* * * *

[UPDATE 07/17/2014: The ECSC has now put up its account of Prof. McWilliams' testimony, and given the earlier one provided by the DSC as quoted above, it is a doozy. Notice how it completely omits any and all reference to the testimony on cross-examination which was so devastating to the Defendants' case:
Wednesday, July 16 (Day 7)

The law professor who helped to write South Carolina’s nonprofit corporation law told the court that changes to the governing documents of the Diocese of South Carolina that purported to remove the diocese from The Episcopal Church were beyond the legal powers of Mark Lawrence and other diocesan officials, and were not valid. [Ed. Note: Apparently he did so testify on direct, given the six-page summary of his opinions which the ECSC has referenced on its Website. However, this account of his direct testimony has to be qualified by the concessions he made on cross-examination. If, as the DSC reports, he admitted that the DSC "was within its legal rights to amend its articles of incorporation," then he contradicted his opinion of invalidity.]

Martin C. McWilliams Jr., Professor of Law at the University of South Carolina since 1983, testified on Wednesday as an expert witness for The Episcopal Church in South Carolina. He was Co-Reporter of the South Carolina Nonprofit Corporation Act of 1994 and co-author of the South Carolina Reporters’ comments to the act. [Ed. Note: Now we see why the ECSC called him as an expert witness.]

Prof. McWilliams had reviewed and analyzed the documents pertaining to the original 1973 corporate charter of “The Protestant Episcopal Church in the Diocese of South Carolina” as a nonprofit corporation. He also reviewed later documents that purported to withdraw the diocese from The Episcopal Church. His opinions are summarized in a six-page Expert Report submitted to the court.

On Wednesday, Prof. McWilliams’ testified that:

• The 1973 corporate charter is the “initial, seminal, fundamental, founding document” of the nonprofit corporation that is the diocese.

• The stated purpose of the corporation in the charter is “to continue the operation of an Episcopal Diocese under the Constitution and Canons of the Protestant Episcopal Church in the United States of America.” [Ed. Note: The stated purpose was as quoted, until the Charter was amended in 2012 -- see below.]

• By becoming a nonprofit corporation, the diocese came under the regulatory control of the Nonprofit Corporation Act, and at the same time incorporated by reference the Constitution and Canons of the national church.

• Under the Nonprofit Corporation Act, when state regulations come into conflict with the Constitution and Canons of the church [Ed. Note: this should read "of the church or of the diocese" -- see Prof. McWilliams' report, p. 2], the church laws trump. In the case of the diocese, that means that the Constitution and Canons effectively become neutral principles of corporate law.

• The language of the charter identifies “all” directors, managers, officers and trustees. The persons named were three individuals and their titles: “Bishop” (the Rt. Rev. Gray Temple) and two others identified as “Secretary” and “Treasurer.” By default, the “Bishop” is the designated director.

• No other directors are named in the charter. The designation goes with being a bishop, and passed from bishop to bishop. “It goes down to Bishop Lawrence, and I would argue, Bishop vonRosenberg, in an unbroken line of designated directors,” the professor said. [Ed. Note: This made the diocesan corporation the equivalent of what California and other states recognize as a "corporation sole" -- a special form of religious corporation in which the Bishop is the sole officer and director, and the incumbency passes from each bishop to his successor.]

• The charter can place limitations on the powers of the directors, and the Constitution and Canons became such a limit on the powers of the Bishop to amend the charter. “Any attempt by the Bishop to amend this charter in a way that’s inconsistent with the Constitution and Canons would be outside his powers,” he said. [Ed. Note: This opinion was a stretch when it was offered on direct. It succumbed completely to Prof. McWilliams' admissions on cross-examination -- but you won't read about that moment in this account from the ECSC.]

“The Bishop is, after all, the creature of the national church,” Prof. McWilliams said. “You can’t be a bishop unless the national church makes you a bishop.” He pointed out that although Mark Lawrence was elected at two different diocesan conventions, South Carolina was not permitted to consecrate him as its bishop until he met the requirements of the national church, such as receiving consents from other dioceses and bishops of The Episcopal Church. [Ed. Note: The Professor is a bit out of his league here -- or shall we say (using one of my favorite words), ultracrepidarian. If the bishop must first of all be elected by a diocese, how does that make him exclusively "the creature of the national church"? The truth is that a bishop is "created" for two purposes: (1) to be the chief priest and pastor for his diocese; and (2) to be his diocese's ecclesiastical representative to the rest of the denomination, and to the outer religious world. The first function recognizes his election by his own diocese; the second is given meaning by his endorsement by the whole church of which he is a part.]

Professor McWilliams also reviewed purported amendments to the corporate charter in 2010, signed by Mark Lawrence. “In this case, he has not signed as Bishop, he has signed as President. And it doesn’t say president of what.” New bylaws that were adopted in 2010 also were done without legal authority, and were inconsistent with church law. [Ed. Note: "President" is the title given to the presiding officer of both secular and religious corporations, as Prof. McWilliams well knows. If the document is an amendment to the corporate charter, it had jolly well be signed by the person who is the head of that organization, whether he signs as "president" or as "bishop." As for the amendments supposedly being "inconsistent with church law," see my earlier remarks. The Professor undercut that opinion with his admissions on cross.]

Attorneys for the breakaway group known in court as “the Plaintiff Diocese” interrupted with numerous objections throughout the day, aimed at keeping the professor’s findings from being presented. Many objections were overruled, however, and Prof. McWilliams testified on direct examination until about 3:05 p.m.

As cross-examination began, plaintiff’s attorney Henrietta Golding stood up and immediately began shouting at the professor seated in the witness chair, jabbing her finger in the air: “I think you need to tell the court where you go to church! …Or is this something you want to hide?” Counsel for the defense objected; Judge Goodstein did not intervene. “I don’t think she’s being impolite,” the judge said.

Prof. McWilliams attends St. Martin in the Fields Episcopal Church in Columbia. He later testified that he had wanted to state that fact at the beginning, but the question was inadvertently omitted during his initial testimony. Without the question being asked, he could not offer the information. [Ed. Note: This goes to the witness' bias. An expert is not supposed to have a bias, but nearly all of them do, because nearly all of them are being paid to give their opinions. By being a member of a parish in a diocese that has chosen to stay with ECUSA rather than follow Bishop Lawrence and his Diocese, the Professor would naturally have tended to form the opinions he did.]

At the conclusion of his testimony, court adjourned and will reconvene at 9:30 a.m. Thursday. Judge Goodstein indicated that the trial will need to extend into the week of July 21, as the defense has several more witnesses to present.
Remarkable, is it not? One needs to put the two accounts together to get the whole picture. As I say, it would appear that the good Professor's honesty forced him to admit that his opinions expressed on direct (and in his report) were not as strong as they may have seemed, and were subject to qualification. Nevertheless, the proper assessment of what actually happened will have to await my receiving a copy of the transcript of his full testimony. Then I shall probably have more to say. But for now, I have to conclude that the Professor conceded away on cross-examination the value of whatever he testified to on direct examination. And indeed, he may have conceded away ECUSA's whole case. Watch for ECUSA to call its in-house, million-dollar-expert Dr. Robert Bruce Mullin to try to save the day (hint: he won't, and can't).]

Does this mean that ECUSA's own million-dollar house expert, Prof. Robert Mullin, will be called in to try to rescue the case? He does not have the legal qualifications that Prof. McWilliams has -- but that does not deter him from offering his opinion that dioceses are bound permanently to the national Church, and may not leave on their own. However, he offers that view as an historian of the Church, and readily concedes that there is no language in the Constitution or Canons which says that a diocese may not withdraw once it has joined. It is all a matter of "interpretation", you see.

Nevertheless, any such opinion, even if Dr. Mullin is flown in to offer it, cannot stand beside that of a corporate law expert like Prof. McWilliams. The latter's is based on a neutral analysis of all of the governing documents -- exactly as the South Carolina courts are required to analyze them under the holding in All Saints Waccamaw.

So Day 7 could prove to have been the decisive day of this trial. Stay tuned for more as the trial progresses.

Thursday, July 10, 2014

Falsehoods Being Spread in South Carolina

Now intrudes upon my vocation one of the more unwelcome of my duties as an Anglican Curmudgeon. Having practiced as a trial lawyer for 44 years, the last six of which have been constantly embroiled in litigation with the attorneys for the Episcopal Church (USA), I would rather let the courts sort things out according to the merits of the law and the precedents.

But in the blogworld, anyone can express an opinion -- on any matter whatsoever -- and when the person with the opinion has an advanced degree, he or she thereby gains a sort of Internet prestige that not everyone touts, or can enjoy. After all, a Ph.D. degree is possessed by a very small proportion of those blogging on the Internet, and so it must carry some weight -- right?

As usual, the answer is: "It depends -- on what field the degree is in, and on what field in which the particular Ph.D is expressing his or her opinion." The Presiding Bishop of ECUSA has a Ph.D degree in oceanography, but that degree (as such) does not make her an expert in Episcopal Church canon law (as the posts gathered on this page abundantly illustrate). In all of her canonical decisions, she has accepted the advice of her Chancellor, who is an expert in the Church's canon law, but who has a rather blasé view of the function of canons (scroll down to "milestone #2").

Moreover, since the Presiding Bishop has (most irregularly, for a nonprofit religious organization) allowed her Chancellor to employ his own law firm to prosecute the 70-odd cases brought by ECUSA (or to which it is or was a party), one would have to believe that the Chancellor is not exactly a disinterested party when it comes to expressing opinions on Church canon law. His firm's very employment depends upon the opinions which he furnishes (in confidence, of course) to the Presiding Bishop!

Now for my bias: my opinions of ECUSA's canon law are diametrically opposed to those of the Presiding Bishop's Chancellor. Nevertheless, I came to those opinions without any hope of employment on behalf of anyone other than my own parish church, for whom I have long acted as an unpaid legal advisor ("Chancellor", if you will). I derived them from a detailed study of the history and application of the canons within the Episcopal Church (USA) that has been spread over the last quarter century or so.

When I began my study, I had no particular axe to grind; I simply was interested in being a competent legal advisor to my parish (and later, to the trial court in my diocese). My education in the interpretation and application of canon law at the Church's national level began in March 2008, when I read about the Presiding Bishop's illegal inhibition and proposed deposition of the oldest bishop in the House of Bishops, the Rt. Rev. William J. Cox. I researched the amazing history of her manipulations of the canonical charges against him, and on March 31, 2008 penned a post that launched this blog as a source of legal commentary on the Presiding Bishop's unending onslaught upon the integrity of Church law, entitled Five Violations of the Same Canon!

As it states on the "Guide to This Site" page, my posts on the canonical violations committed routinely by the Presiding Bishop and her Chancellor, all in the supposed name of ECUSA, are "a series of calls to repent, which will not stop until she does." More than anyone else in the history of ECUSA, Katharine Jefferts Schori has infused the Church with a lawlessness -- a pervading disrespect for the duly enacted laws by which we Episcopalians all agreed to be governed -- that is matched only by the current Obama administration (and that is no small achievement on the part of 815). The more lawless she becomes, the greater the obligation upon her to repent.

So it is that I regard it as my duty to oppose the dissemination of 815's propaganda in support of its lawlessness wherever and whenever encountered. The stakes in Mark Lawrence's Diocese of South Carolina are particularly high just now, with the dispute having entered the courtroom for a decisive trial in front of the Hon. (and very formidable) Diane Goodstein. Because of existing legal precedent from the highest court of that State, the odds favor Bishop Lawrence and his diocese.

Those who blog as Bishop Lawtrence's opponents do a disservice to their readers when they pass on the outright fabrications, distortions and falsehoods invented by 815's lawyers for the purposes of all the litigation it has instituted elsewhere. Given the straightforward legal precedent that exists today in South Carolina, ECUSA's case in that State can go nowhere. It will take a (most unlikely) grant of review by the Supreme Court of the United States, when the case reaches that point in about five more years, to change the legal landscape. Given the distant and unlikely future in which any such reshaping could occur, I submit that it is misleading and harmful to promote optimism where there can be none.

With that regrettably extended explanation as a preface, I now proceed to the task immediately at hand: to correct certain deplorable misrepresentations of fact and law that are passing for substantive analysis on the side of the rump group supported by ECUSA. Though I have done this on earlier occasions, no one among them has taken my analysis to heart, or still less, refuted it. Instead, they keep on promulgating the same fictions, dressed up in new language. This, I submit, is a gross disservice to those who would read and rely upon them.

The blog post which I fisk below comes from an otherwise admirable blog which seeks to compile a history of the current Episcopal divide in South Carolina -- a subject to which I have devoted posts here, and here. With regard to the regrettable division that occurred (regardless of who spurred it), the blogger, a retired history professor named Ronald Caldwell, has compiled a useful chronology, and indicates that he is writing a book tracing its origin and evolution.

Thus it seems more necessary than ever that an attempt should be made to set Prof. Caldwell straight, before he commits himself to print. I am taking as my text his post of July 9, 2014, entitled "Reflections on the First Day of Trial" [note: Prof. Caldwell has since modified the title to remove the first two words]. After a brief introduction, he writes:
1-the trial is "to protect" the assets of the independent diocese. Lawrence knows full well that under Episcopal Church law, that he swore to uphold in 2008, all local properties are held in trust for the Episcopal Church and her diocese. The diocese recognized this for years, until 2011. In fact, the trial is to convince the judge to hand over the Episcopal Church property to the independent diocese. There is a difference between protection and seizure. 
Notice how this paragraph ignores the All Saints Waccamaw decision, as well as leaves out the trial court's obligation to follow it. You are not writing on a tabula rasa, Prof. Caldwell. Your State's highest court has already ruled that there is no valid trust in parish property in South Carolina just by virtue of the Dennis Canon. Yes, there is most certainly "a difference between protection and seizure." In law, you are entitled to protect what you own, and are forbidden to seize that which you do not own. Each of the plaintiff parishes owns its own property, free and clear of any trust in favor of the national Church or of the diocese. Not only is that what All Saints Waccamaw decided; but consistent with that decision, the Diocese subsequently gave each parish a quitclaim deed renouncing any remaining interest in its parishes' property. Given these unarguable facts, it is the plaintiffs who are trying to protect their property, and the defendants who are trying to seize it from them.
2- [Diocesan Chancellor Wade] Logan testified that the diocese is a self-governing body in which the Episcopal Church is not involved in election of officers or disposition of property. In fact, the diocese acceded to the Constitution and Canons of the Episcopal Church until its purported "disassociation" on Oct. 15, 2012. ...
Sorry, Prof. Caldwell, but your second sentence does not follow from, or relate to, the first. It is completely true that the national Church has nothing to say about dispositions of diocesan property -- no diocese has to ask any permission from the national Church to dispose of its property. Nor does the national Church play any part in the election of diocesan officers, which takes place wholly at the annual diocesan conventions. "Accession" means nothing more or less than "agreement to", and agreement involves consent, which in law is neither binding nor perpetual unless expressly so stated in the words of accession. So a consent once given may be revoked at any time -- unless it is stated expressly as a "perpetual and binding accession" (as in, e.g., the Articles of Confederation).
... Lawrence became bishop only after he was approved by the majority of standing committees of the dioceses of the Episcopal Church and after he took an oath of conformity to the discipline of the Church. 
This is undisputed, but only a partial, truth. It is not the whole truth, because it omits all mention of Bishop Lawrence's other vow upon ordination, and does not discuss how one resolves a conflict between the two vows.
The Dennis Canon is the well-known Church law on property and the one the diocese promoted throughout the All Saints Waccamaw case, to September 2009. 
Why bring this up, if you are going to ignore what that decision actually said about the non-effect of the Dennis Canon in South Carolina? From and after September 2009, the Dennis Canon is a nullity in South Carolina -- please read the decision (scroll down to Section II.C.).
Dioceses of the Episcopal Church are not independent entities outside the scope of the Constitution and Canons of the Episcopal Church. 
Where is your authority for that claim, Prof. Caldwell? You are simply repeating 815's propaganda. If you want the full history of how PECUSA was assembled from its pre-existing parts, please read this post.
3-Lewis said votes to "disassociate" came from 90 percent of clergy and delegates. Actually, records show that the decision to "disassociate" was made by 12 people, the standing committee, on October 2, 2012. This vote was enacted on October 17, when Lawrence told the Presiding Bishop. He made it retroactive to October 15, the moment Lawrence had been informed by the Presiding Bishop that she had placed a "restriction" on his ministry. The schism happened on October 15 unknown to anyone outside the ruling clique of the old diocese. It was rubber stamped on Nov. 17 by a partial convention. The counter-revolution in the old Diocese of South Carolina was from the top down, and the top was a relatively small group of people. 
This is revisionist history -- told from the point of view of one who wants to bend the facts to make a point (that the decision to withdraw was not that of the whole Diocese, but only of a handful of people at its top). It ignores, first of all, the notice requirement of thirty days in order to call a Special (N.B.: not "partial") Convention, so that the Standing Committee was the only body that could make the first and most rapid response. But what it primarily ignores is the fact that thirty-four of the Diocese's parishes have joined as plaintiffs in the lawsuit. That is hardly the kind of "top-down" action which the professional historian here seeks to portray.
4-Lewis said the diocese existed in 1785 outside the Episcopal Church. In fact, a state convention in South Carolina in 1785 organized an association of remaining Anglican churches. It helped draw up the founding constitution of the Episcopal Church in 1789 and acceded to the constitution and canons of the Church. South Carolina did not become a diocese until 1795 when it received its first bishop. The diocese never thought of itself outside of the Episcopal Church until Lawrence and his allies led a "disassociation" in 2012. 
Once again, this discussion begs the question. The claim that "South Carolina did not become a diocese until 1795 when it received its first bishop" assumes that dioceses must have a bishop. But even ECUSA's Constitution has always recognized that a Diocese is led by its Standing Committee when it does not have a bishop, so the claim is just false: having a bishop is not the distinguishing characteristic of a diocese. The word "diocese" comes from a Greek word meaning "administration", and its ultimate derivation is from the Greek oikos ("house"), from which also comes our word "economy" (= "management/rule of a household"). It was not used of the groups that came together in 1789 to form ECUSA. If you look at PECUSA's original Constitution of 1789, the bodies signing it referred to themselves as (e.g., Art. II) "the Church in each State" (my emphasis). Indeed, the word "diocese" appears nowhere in the 1789 Constitution.

So it is a big red herring to talk of "dioceses" in the period from 1785 to 1795 -- or even until 1838, when the Constitution was amended by General Convention to substitute "the diocese" for the words "the State" everywhere those words appeared. Until that year, every State with a member group of organized parishes was viewed as a separate regional unit of the national Church; but then New York divided into two regions, east and west of the Hudson, and so the term "diocese" was adopted generally to refer to all the administrative units of the Church, regardless of State boundaries.

And notice, please, how Prof. Caldwell conflates the notion of a "state convention" with that of the delegates sent on behalf of the "Church in the State of South Carolina" to form the national Church. He says in his second sentence that the "state convention" in South Carolina "organized an association" of Anglican churches, but in the very next sentence he claims that "it" (the State convention? or the association of Anglican churches?) helped draw up the "founding Constitution." As shown in the post linked two paragraphs above, the "Protestant Episcopal Church in the State of South Carolina" in 1789 sent one clergy deputy, and two lay deputies, with authority to negotiate and sign a national Constitution that would bind that body to the greater assembly of State churches ("General Convention"). So those three deputies were the ones who actually "helped draw up" the first Constitution -- and they were deputies chosen by, and representing, their association of local Anglican parishes.

So what was the entity in South Carolina that agreed to "accede" to the national Constitution? Answer: it was the same body that in 1838 began to call itself "the Episcopal Diocese of South Carolina" -- it was an unincorporated association of pre-existing (and formerly Anglican) churches within the State that eventually incorporated in 1973. There is no mystery here -- it is straightforward: dioceses ("churches in the State of ...") existed before the national Church came into being, and indeed, without their separate pre-existence, there would have been no way to form a truly representative national organization.

Now Prof. Caldwell's discussion degenerates into an attack against Bishop Lawrence personally:
5-the diocese of SC disassociated from TEC only after TEC tried to remove its bishop. In truth, Lawrence willfully and voluntarily left the Episcopal Church on October 17, 2012 by verbal declaration to the Presiding Bishop. He followed this up by word and deed for the next seven weeks after which the Presiding Bishop accepted his renunciation of orders and deposed him as a bishop in the Episcopal Church. 
This is utter nonsense (and Prof. Caldwell misinterprets the canons to allow an oral -- instead of the required written -- "renunciation" to serve as the prerequisite for a deposition), as I explained in this earlier post. There is no need to repeat my observations here.
6-the diocese of SC represents 80 percent of the 30,000 members of the pre-schism diocese. Actually, the pre-schism diocese numbered around 29,000. It has shrunk by nearly a third since Lawrence became bishop. 2,000 people left with St. Andrew's of Mt. Pleasant. Around 7,000 remained in the Episcopal Church. The independent diocese has around two-thirds of the pre-schism diocese. And, it may well be that this number is declining as people are gradually returning to the Episcopal Church. Also, forty per-cent of the pre-schism clergy remained with the Episcopal Church. 
I shall let those more familiar with the statistics of South Carolina demonstrate the falsity of these claims. Where is the proof of the undocumented assertion that "people are gradually returning to the Episcopal Church"? And how could forty percent of the pre-schism clergy have served less than one-quarter of all the parishioners? Were the parishes that remained the ones that were top-heavy and over-staffed?
7-TEC "embraced...a radical fringe scriptural interpretation that makes Christ's teachings optional for salvation." This is an outrageous untruth which only reflects badly on the character of the people deliberately repeating it. 
If this is a true statement, Prof. Caldwell, then please explain how clergy can reconcile their ordination vows to be faithful to the "doctrine, worship and discipline of Christ" with the doctrine, discipline and worship of the current national Church, which has approved provisional rites for the blessing of same-sex unions, and which turns a blind eye to those bishops who violate the Canons and the Rubrics of the BCP to celebrate actual same-sex "marriages."  (See this earlier post for details.)

So we come to the final desultory accusation against the Diocese lodged by this professional historian:
8-the independent diocese is "recognized" by Anglicans around the world. It is indeed "recognized" by some highly conservative and homophobic Anglican prelates in some Third World countries. It is absolutely not recognized by the Anglican Communion and never will be.
This charge is, I regret to say, pathetic. The Anglican primates in "some Third World countries" are to be described as "homophobic" --- for remaining loyal and true to the faith handed down to them from the Apostles?

In so denigrating your ecclesiastical superiors, Prof. Caldwell, you have -- at the end of your "reflections" -- at last shown your true colors. May you come to regret what you have written, and may God give you the grace and peace to recognize what is true, and what is false, about the claims made in the Church on behalf of ECUSA. Especially the claims made by its hired counsel in court.