Thursday, September 24, 2015

Blatant Bias on Display in ECUSA's South Carolina Case

Before the oral arguments yesterday in The Protestant Episcopal Church in the Diocese of South Carolina v. Episcopal Church in the Supreme Court of South Carolina, your Curmudgeon had heard mention of the fact that one of the five justices who would be hearing the case was active in one of the parishes affiliated with the defendant Episcopal Church in South Carolina. I did not look into the question further until I watched the oral arguments live, and could see the justices as they put their questions to each of the attorneys for the litigants.

I took particular note, as I watched, of the attitude and unspoken assumptions behind the questions asked by Justice Kaye Hearn, the newest person elected to that Court. In many cases, it seemed (to this appellate attorney) that her questions were designed more to provide encouragement to ECUSA's attorneys, and to advance their arguments, than they were to probe the various issues at stake in the case.

A little research on the Internet provided the facts that Justice Hearn was a former member of the congregation and choir at St. Paul's in Conway, South Carolina -- a parish that chose to remain with Bishop Mark Lawrence and his Diocese. A group of two dozen or so from that 500-member parish decided they could not remain, and left to form what has since become St. Anne's Episcopal Church, also in Conway. The records there show that Justice Hearn's husband, George, is a member of the parish's vestry and mission committee.

All fine and dandy -- if a little too reminiscent of the case of Justice David E. Nehmias, of the Georgia Supreme Court, who wrote the majority opinion for that Court awarding Christ Church Savannah to the Episcopal Diocese of Georgia. It turned out that Justice Nehmias declined to recuse himself from the case, even though he was a prominent member of an Episcopal congregation in Atlanta. In doing so, he failed to follow the example of Presiding Justice George Carley, who recused himself from the case because he belonged to an ACNA parish in the same city.

Could the same bias be operating in the case of Justice Hearn? Consider just the following, taken from the oral argument by the attorney for the appellants (Bishop vonRosenberg's group and ECUSA), Blake Hewitt. These are excerpts from that argument in which Justice Hearn exclusively had the mike. Notice, please, how few of the verbatim quotes below are actual questions which Mr. Hewitt might be expected to have some trouble in answering, as opposed to softballs lobbed in his direction. Notice, too, how many of the quotations are not even questions, but are advocacy speeches which would have been appropriate coming from Mr. Hewitt's mouth, but scarcely proper for a sitting justice to make in a case presented for decision before an impartial court. [Note: Times shown in brackets are for the tape at this link.]

1 [1:56]: But didn't [Judge Goodstein] also disallow you from introducing evidence that would tend to show that [ECUSA] is not a congregational church?

2 [2:45]: Mr. Hewitt, in this case the national Church has called itself a "hierarchical" church. Of course, we could look at Wikipedia, but we wouldn't have to do that, we could also look at the myriad of court decisions, including one from our own 4th Circuit, the Dixon case, which is a very thoroughgoing analysis of what constitutes a hierarchical church, and it seems by any definition, this Church is hierarchical.  But does that matter -- in this case?

3 [4:49]: Your argument is that the Dennis Canon imposed an express trust on this property, and for thirty years, the Dio ---

4 [5:44]: But of course, in this case, Judge Goodstein wouldn't even let counsel for the national Church bring in what had been done as far as disciplining Bishop Lawrence -- in fact, she threatened to revoke his pro hac vice [status] if he didn't stop talking about that, isn't that correct?  

5 [6:10]: Well, [Judge Goodstein] seemed to think that [the] two principles -- hierarchical principles and neutral principles -- can't co-exist, but there's lots of cases that say they can: what's your position on this?

6 [8:35]: And, Mr. Hewitt, doesn't this [questioning the effectiveness of the Church's enactment of the Dennis Canon] call into question the teaching of Jones v. Wolf, about what is necessary for a national church to be able to create a trust -- if that burden is supposed to be 'minimal'?

7 [10:16]: And isn't it correct that this particular Diocese enacted its own version of the Dennis Canon?

8 [10:36]: And Mr. Hewitt, I want you to -- I'm not disregarding the number of cases that have reached the result you are arguing for, with regard to the Dennis Canon, and in almost all those cases, cert[iorari = review] has been denied or dismissed by the U.S. Supreme Court, but I would like you, or I would like to hear you, about the Masterson case out of Texas, which seems to take more -- more of an All Saints view. I will note that our sister state of Georgia, in a 2011 opinion, noted that the South Carolina decision in All Saints has not been followed in a church property case by any court outside that case -- outside that State -- so we're dealing with a bit of an outlier, if you will -- but tell me about Masterson.

9 [12:58]: What about all the quit-claims that were issued here?

10 [17:45]: [Interrupting a question by Chief Justice Toal] Well, of course, Mr. Hewitt, if we're going to talk about that [Bishop Lawrence's ostensible authority to execute quitclaim deeds] -- I would like you to talk about his vows, and how the national Church assumed he would be true to those vows, especially when he wrote a letter saying "I intend to stay with the national Church" -- period. So please talk about that.

11 [19:48]: Might that [Bishop Lawrence's signing the Bishop's Statement on Polity] be one reason that in All Saints cert was not sought [by Bishop Lawrence]?

12 [21:35]: If this case -- this Diocese -- is truly congregational, and can just pick up its toys and leave whenever it wants to -- why did it then become part of another larger group? Did it, did it not -- after it purported to leave the national Church?

13 [22:01]: Sure is a lot in the record, and I thought there was some discussion that they were part of another larger group, and so my question was: if they really were congregational, why -- ... [22:22]  I thought it was Global South, a group of third world (mostly) provinces, in Africa -- I mean, I could be wrong.

14 [22:40]: Why isn't this a case -- I'm going to ask the same question of opposing counsel -- why isn't this case, boiled down to its essence, just a question of who should lead this Diocese -- who is the rightful bishop --  and hasn't the national Church answered that question by ordaining Charles vonRosenberg?

There was not one question or statement from Justice Hearn which Blake Hewitt could have had trouble dealing with -- in fact, it many instances (such as Nos. 1, 4, 5, 6, 10, and 14) they were just a case of passing the baton to a fellow race runner. In short, this was not a dialogue between court and counsel; it was collaboration between counsel and a co-counsel who sat on the bench.

Notice, too, how in excerpts No. 4 and 10 above, Justice Hearn tried to interject the issue of Bishop Lawrence's faithfulness to his ordination vows into the case. Religious vows are not for the civil courts to consider. That is why churches have ecclesiastical courts, and that is why the Episcopal Church (USA) brought its disciplinary charges against Bishop Lawrence. So Justice Hearn had no business whatsoever egging on ECUSA's attorney to speak about ecclesiastical matters that were not before the Court.

But what if Justice Hearn had an ulterior motive for doing so? Further research on the Internet disclosed that Kaye Hearn of Conway, South Carolina is a signatory member of the Episcopal Forum of South Carolina -- and that she joined when she was still a member of St. Paul's. The Episcopal Forum, for those who may not remember, was instrumental in instigating the bringing of disciplinary charges againt the Rt. Rev. Mark Lawrence. Moreover, here are just some of the principles to which each member subscribes:
Who are we? 
  • Episcopalians who are united in our desire to remain members in good standing in The Episcopal Church (TEC) and the Anglican Communion.
  • Episcopalians who accept that the governing authority of TEC, as given by its Constitution and Canons, is the General Convention of the Episcopal Church.
  • Episcopalians who believe that the Holy Spirit is working in the deliberations of The Episcopal Church, General Convention, TEC Executive Council and its conferences and committees
The bias in favor of the national Church that infuses these principles is not hidden; it is made plain for all to see. The second principle alone expresses an opinion on an issue that is at the heart of Bishop Lawrence's case against the national Church. To this attorney, it is simply unbelievable that a sitting Justice who had long ago subscribed to these principles in public would not recuse herself from sitting in judgment on Bishop Lawrence's case.

But we are not done yet. Let's take a look at the corresponding extracts from the oral argument of Bishop Lawrence's attorney, Alan Runyon.

15 [29:23]: I have two questions for you about that, Mr. Runyan. The first one would be the language in the All Saints opinion that talks about where a civil court is presented an issue which is really a question of religious law, but is masquerading as a property dispute. And I know you're familiar with that language, so: why isn't this that type of situation? But my second question -- and I'm sure you'll address it -- there has been a motion to argue against precedent, there's a different Court here -- of course, we take precedent very seriously -- but the majority of this Court did not sit on the All Saints case, and you would have to acknowledge, it is an outlier in this country. So, if you could address those two issues for me -- I understand why you want to argue All Saints; I would, too, if I was in your position -- but if you could answer that for me. 

Notice how Justice Hearn keeps trying to discredit the unanimous decision in All Saints, by belittling it as an "outlier" (this is the second time she used that terms -- see No. 8 above). She brazenly suggests that the three newest Justices on the Court could overrule what five Justices unanimously decided just five years ago. Only a person who resented that decision personally when it came down, and who has fought it ever since, would spend so much effort trying to discredit it in court.

16 [34:44]: [The deference approach is] the majority rule [in cases] on the Dennis Canon? ... There might be eight or nine [cases], at least... And I recognize the different nuances to each of those cases.

17 [35:10]: Are you talking about All Saints? When you say that the law is clear? Well, let's look at All Saints -- there was no analysis in All Saints of the myriad of cases that go the other way. There was no mention of that. How do we know what was really presented in All Saints?

18 [35:47]: You would say that the only way that there could have been a trust created is if the national Church got each individual parish to agree? ... But how would that be the 'minimal burden' that Jones v. Wolf says they're placing on national churches to do this very thing? [Mr. Runyan responds that the court in Jones v. Wolf did not say that.] Well, we'll talk about that. 

19 [37:00]: Well, let me ask you about that [the methods of creating a trust according to Jones v. Wolf]. Let's stop there a minute. Jones v. Wolf was decided in 1979, coincidentally the very same year that the General Convention adopted the Dennis Canon, and I believe your client had a seat -- had representatives there. The Dennis Canon was in effect here for about thirty years, till this brouhaha happened -- and in fact the Diocese adopted its own version of the Dennis Canon. But what I want to direct your attention to -- is: what about Section 33 31-180 of our Nonprofit Corporation Act, that says: "If religious doctrine governing the affairs of a religious corporation is inconsistent  with the provisions of this Chapter on the same subject, the religious doctrine controls"? Why isn't that saying -- why isn't that South Carolina General Assembly saying something like the Dennis Canon would trump any suggestion of State law?

20 [40:43]: If [the language of accession to the national Constitution] didn't mean anything, then why was one of the first things your client did was to remove that language?

21 [43:30]: Yes, Mr. Runyan -- and I would point out, echoing the Chief's concerns, that this was a non-jury trial. And yet I counted over twenty-five objections to Professor McWilliams' testimony -- in a non-jury trial. You all tried so hard to keep any of that evidence out -- and then, the order is issued, and lo and behold: there's a finding that this Church is controlled by the bottom -- that the parishes are really in charge, rather than the national Church. So -- what is it with that?

22 [47:15]: Doesn't [the claim that there is no judicatory in the national Church with authority over dioceses] just get us back to our different interpretations of what the Dennis Canon means and does?

23 [47:43]: Well -- [this court can't pick between the two bishops] because the national Church has already chosen, has it not? The national Church has chosen vonRosenberg as the bishop. Why doesn't that end it? I wanted to ask you that question, I thought I was going to ... 

24 [48:05]: Why wouldn't -- help me with why we wouldn't defer to the national Church's decision on that obviously ecclesiastical matter? You say in your brief -- in the red brief -- you say "Of course, civil courts could not decide who is the appropriate minister." Well, but it seems like you're doing exactly the same thing here -- you are saying "the court can decide who is the rightful bishop." So help me with that. ... You're [relying on] that All Saints [case] again.

25 [49:54]: But I don't see any argument -- Mr. Runyan, I don't see any argument, or hear any argument from the other side that your clients [do not] have a perfect right, an absolute right, to disassociate, to leave. The problem is: can they take property -- that arguably has been held in trust for the national Church for decades -- with them? 

26 [51:40]: Then let me ask you this question. Isn't it correct that at the time of incorporation the stated purpose of the Diocese was to follow the doctrine and polity of the Episcopal Church -- to continue to operate under the Constitution -- yes, that is the language I was looking for. Was that [language] meaningless? ... And they can change their minds?

Mr. Hewitt then came back for his rebuttal, and received the following final assist from his Episcopal co-counsel on the bench:

27 [55:00] Wait a minute. Speaking of the Diocese's relationship with the national Church, talk to us about in 1922, when there was only one diocese in South Carolina, and they wanted to divide into two. Did they do that on their own?

This was truly a disgraceful performance and display of impropriety by one of the country's highest sitting judges. If she does not recuse herself post-argument, there should be, at a minimum, an investigation as to whether Justice Hearn violated Canons 2 and 3 of the South Carolina Code of Judicial Ethics, which state in part:


A. A judge shall respect and comply with the law* and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.


A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability or age, and shall not permit staff, court officials and others subject to the judge's direction and control to do so.

 And here is the Disqualification Standard in that same Canon 3 which Justice Hearn should have applied to herself:
E. Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party ...
It would be impossible, given her participation as a Forum Member and its role in bringing down Bishop Lawrence, and in having him replaced with Bishop vonRosenberg, for Justice Hearn to deny that she harbors a personal bias against Bishop Lawrence and the Diocese he heads.

We await further developments in the South Carolina case.

On the Oral Arguments in South Carolina

Your Curmudgeon watched the arguments in the case of Bishop Lawrence and his diocese and parishes against the Episcopal Church and the Episcopal Church in South Carolina yesterday, and reviewed the tape carefully once again as archived. The event must have seemed dispiriting to those who supported the trial court's decision, because Judge Goodstein came in for a substantial amount of criticism for excluding evidence that ECUSA wanted to put on -- as it was able to do in San Joaquin, Quincy, Fort Worth and Pittsburgh -- concerning its "hierarchical" structure.

Indeed, much of the argument seemed to dwell upon whether the national Church should be deemed hierarchical, and if so, whether that classification would make a difference to the outcome. And that is precisely where ECUSA and its attorneys wanted to focus it. (How they succeeded in pulling off that strategy will be the subject of my following post.)

For ECUSA and its attorneys, the world of church property law began and ended with Watson v. Jones, an 1872 decision by the United States Supreme Court that, among other irrelevant observations (called "obiter dicta", or "things said beside the point"), offered the view that the then-established Protestant Episcopal Church in the United States of America was hierarchical. The opinion furnished no analysis or justification for that observation, but simply included PECUSA in a group of churches that the Court contrasted with those it termed "congregational."

For the Court in Watson, the distinction meant this. In a hierarchical church, consisting nationwide of many branches under a central religious government, there would be a supreme adjudicatory body with the power to make decisions on matters of church law and polity that were binding on each and every local branch of the church, and the civil courts were required by the First Amendment to defer to such binding adjudications in any disputes that came before them. In a congregational church, by way of contrast, there was no kind of higher authority beyond the congregation itself, and so a decision by the majority of the congregation was binding on all of its members.

The United States Supreme Court gradually moved away from its holding in Watson, without actually overruling it. As more and more courts saw that deference to a hierarchical church judicatory would result in a victory for the hierarchical church authorities in every case, there began to arise a resistance to giving that category of churches a pass, as it were, on all constitutional issues, and thereby to allow them to govern their members in ways that no other church could. The tendency of the deference rule, in other words, was to favor one class of churches over all the others, and that smacked of "establishing" the hierarchical churches in a manner forbidden by the First Amendment.

In contrast, there was developed a so-called "neutral principles of law" approach, by which churches were treated just like private persons in respect to holding property. By making no distinction in its rules, the neutral principles system guaranteed that all deeds, contracts and other documents affecting title would be interpreted the same, without regard to the person or the Church that created them.

The Episcopal Church's Dennis Canon provides a perfect illustration of this contrast. Cases which hold that ECUSA is "hierarchical" allow the Church to enforce in the civil courts, against individual member parishes, its Dennis Canon -- a mandatory trust that keeps a parish from ever leaving the Church, on pain of surrendering all of its real and personal property to the diocese to which it belongs. Such courts enforce the Canon despite the fact that those parishes never signed or recorded any documents placing their individual real and personal property into a perpetually binding trust. These cases stand for the proposition that hierarchical churches do not have to trouble themselves with complying with State law requirements for the creation of trusts (such as the Statute of Frauds, which requires a trust document be signed by the person owning the property being placed into a trust).

Other churches, to achieve the same result, could do so only by making each individual parish sign and record the appropriate trust papers. But hierarchical churches were free to impose a trust all at once, by fiat, on all parish properties simultaneously. And many trust attorneys believe that such an exemption from the requirements of State law creates an issue under the First Amendment's Establishment Clause.

The Episcopal Church has nothing it can point to by way of language in its governing documents which renders the property of a Diocese (as opposed to that of a parish) subject to any kind of trust in its favor. The South Carolina case involves an entire Diocese of the Church that amended its governing documents so as to secede from ECUSA, and along with it came nearly forty individual parishes that were members of the Diocese. Faced with these moves, ECUSA first argued that even though the parishes had left with their Diocese, the Dennis Canon still meant that they could not keep their property. And as for Bishop Lawrence and his incorporated Diocese, it argued that it had removed him from his office and appointed a new bishop in his place who had the authority to take it over, and take possession of all diocesan property.

In the South Carolina Supreme Court yesterday, ECUSA's attorney argued exclusively for deference to it as a "hierarchical" church. (Never mind that the only true hierarchical relationships in ECUSA are between a diocesan bishop and his subordinate clergy, and in some cases between an individual member parish and its governing diocese. There is no body within ECUSA -- not its General Convention, its Presiding Bishop, or its Executive Council -- which can order or make a Diocese to do anything which that diocese does not choose to do. The relationship between the national Church and its dioceses is thus voluntary, for as long as the parties want to continue it, and may be dissolved at any time by taking the appropriate steps to amend the diocese's governing documents. The national Church, again, has no power to prevent a Diocese from so amending its governing documents.)

To do so, he had to blur the distinctions in the cases dealing with individual parishes -- and he had to ignore the Quincy case altogether (which was not even mentioned in argument). In doing so, he received substantial assistance from Associate Justice Kaye Hearn, as I will detail in my next post.

Two other Justices (who did not take part in the 2009 All Saints Waccamaw decision) seemed to be taken in by the confusion created by all the discussion of hierarchy and the effect to be given to the Dennis Canon. Justice Beatty, who did join in the 2009 decision, was largely noncommittal, and spoke the least of any Justice.

That left Chief Justice Toal, who despite all the tortuous arguments stuck to basic legal principles and analysis: a trust needs a settlor to be created, and the beneficiary of a trust is perfectly within his rights to quitclaim back to the settlor all of his supposed interest in the trust. (There was thus no "breach of the Dennnis Canon" when Bishop Lawrence signed individual quitclaim deeds to his parishes, on behalf of the Diocese as beneficiary of any trust interest that arguably may still have existed following the All Saints Waccamaw decision.) And South Carolina religious corporations are free to amend their governing documents -- including a complete change in their charitable purpose -- as long as they comply with the formalities required by South Carolina law.

To this observer, it seemed as though the Justices had not discussed the case with each other beforehand. And it also looked as though the Chief Justice had taken on the responsibility of writing an opinion in the case -- since she was the one most weighed down with case files and briefs. But whether her opinion will be the majority one remains to be seen. I believe she has the confidence of Justice Beatty, who followed her before. And she may have Justice Kittredge in her camp, as well.

But both he and Justice Costa Pleicones seemed to have difficulty following the ins and outs of the arguments -- thanks to the constant interjections by Justice Hearn on behalf of the Church of which she is an active member. She practically monopolized the argument with long speeches (not questions) that would have sounded more appropriate had they come from ECUSA's attorneys. The resulting final impression of Mark Lawrence and his Diocese having had a rough time in the Court is almost entirely, in my estimation, due to the attempts by Justice Hearn to derail the case by returning South Carolina to the days of deference, as ECUSA argued in its briefs.

Whether her unprofessional and entirely partial tactics will succeed is a question that will have to await the Court's opinion, which could be months away. I shall have much more to say about those tactics in my following post.

Tuesday, September 22, 2015

Important Developments in South Carolina

Tomorrow morning, September 23, beginning at 10:30 a.m. Eastern Time, the Supreme Court of South Carolina will hear oral arguments in the appeal, taken by Bishop vonRosenberg, ECUSA and its rump group that calls itself "the Episcopal Church in South Carolina", from the adverse decision last February by Circuit Judge Diane S. Goodstein. Her opinion, which followed a three-week-long trial in July of last year, declared that Bishop Mark Lawrence, his Episcopal Diocese of South Carolina and 36 of its parishes were the sole owners of their respective properties, including the trade name, seal and marks of the historic Diocese, which was one of the original founders of ECUSA (then "PECUSA") itself.

Heading up the panel hearing the case will be Chief Justice Jean Hoefer Toal, who in that same position authored the Court's unanimous 2009 opinion in the case of All Saints Waccamaw v. Episcopal Church, which I quoted and analyzed in this earlier post. Also serving on the panel will be Associate Justice Donald W. Beatty, who joined in the Waccamaw opinion. It is not known yet whether any of the other sitting Justices have recused themselves (two of them did so in the Waccamaw case); the fifth, Justice Kaye Hearn, assumed her seat on the Court after the arguments in the 2009 case.

Chief Justice Toal, whose religion is Roman Catholic, is no stranger to the concept of what makes a church "hierarchical." In her opinion in the Waccamaw case, Justice Toal noted that South Carolina Courts are required to resolve church property disputes using "neutral principles of law" whenever possible. They may defer only to "the highest religious judicatories" when they have properly decided an issue "as to religious law, principle, doctrine, discipline, custom, and administration." It should be noted that in her written opinion filed last January, Circuit Judge Diane Goodstein expressly found that there were no such bodies in the Episcopal Church (USA) that had outside jurisdiction over either the Diocese or any of its parishes.

Another point decided by the Waccamaw court is that ECUSA's Dennis Canon did not, in and of itself, create an enforceable religious trust on parish property under South Carolina law. Bishop vonRosenberg's lawyers tried to distinguish that holding before Judge Goodstein, but they did not succeed, and there is no reason to expect that their attempt to do so before the Supreme Court tomorrow will fare any better.

In a related federal case, returned to the federal District Court to reconsider its prior order of dismissal, District Judge C. Weston Houck entered an order yesterday staying all further proceedings in his court pending the issuance of a decision by the Supreme Court of South Carolina. Although the federal case ostensibly presents issues of federal trademark law under the Lanham Act, Judge Houck noted that "South Carolina law provides the rule of decision on the underlying issues" of who rightfully is in control of the Episcopal Diocese of South Carolina, which is a religious entity organized and incorporated under South Carolina law.

Accordingly, it is expected that if the South Carolina Supreme Court issues a ruling affirming Judge Goodstein's decision, Bishop Lawrence will be successful in having the federal court dismiss the trademark claims -- just as Bishop Iker was able to do when a parish there tried the same federal strategy that Bishop vonRosenberg has pursued.