Tuesday, August 15, 2017

+Bruno, Schmuno: Diocese of LA Sells Out its Parish for the Money

Today, those clinging to the dying remnant that was the once-renowned Protestant Episcopal Church in the United States of America ("PECUSA" -- or, after they dropped the first adjective, "ECUSA") finally learned that there is no soul left in that scabrous body. Long ago, it sold itself out to Mammon. Now, those who blinded themselves to that fact are sadly learning the reality.

I have thoroughly documented on this site all the ups and downs of the parish of St. James the Great, in Newport Beach (Orange County), nonetheless a member of the Diocese of Los Angeles. I regret  having no patience for rehearsing the dreary steps of that history again: start here, then go here, and continue backwards through the earlier posts at this page.

The interim decision of the Hearing Panel of the Disciplinary Board for Bishops set forth its recommendations for the suspension of Bishop J. Jon Bruno and for the reinstatement of the congregation of St. James into its Newport Beach property. There was one dissenting view, from Bishop Michael Smith of North Dakota, who expressed the opinion that the Hearing Panel had no business getting mixed up in the local property ownership dispute.

As I detailed in my posts linked above, it emerged after the conclusion of the hearing that Bishop Bruno had secretly entered into another confidential agreement to sell the St. James property -- to a different Newport Beach developer.  The Hearing Panel entered a special order to keep him from going forward with the sale, which was to have closed escrow on July 3.

Bishop Bruno's appeal of that restraining order was rejected, but ECUSA's Presiding Bishop, in an express desire to "protect the integrity" of the disciplinary proceedings, issued a highly unusual pastoral restriction on the authority of Bishop Bruno to make any disposition of the church property (even though he owned it through his corporation sole) pending the hearing's outcome. Since that report, the Presiding Bishop of ECUSA expanded his restrictions on Bishop Bruno, and effectively removed him from any further episcopal oversight of either the St. James parishioners or their vicar, the Rev. Canon Cindy Voorhees.

The Presiding Bishop also ordered that henceforth, the Bishop Co-Adjutor for Los Angeles (Bishop Bruno's elected replacement upon the latter's resignation [retirement]), the Rt. Rev. John Taylor, would have pastoral care of the parish and its vicar. He further specified that Bishop Bruno could in no way authorize any sale of the St. James property to go forward pending the conclusion of the disciplinary proceedings.

The Hearing Panel, after considering submissions from both sides, then entered its final decision and recommendations (again, with the dissent of Bishop Smith of North Dakota). It made its chief recommendation in the following language (emphasis in the original):
After hearing this entire unfortunate case and after prayerful deliberation the Hearing Panel reaches a definite and clear conclusion: The Hearing Panel strongly recommends to the Diocese of Los Angeles that as a matter of justice it immediately suspend its efforts to sell the St. James property, that it restore the congregation and vicar to the church building and that it reassign St. James the Great appropriate mission status.
Notice the word "recommends" (forget "strongly"; that is just window-dressing).

It is key to understanding both the polity (structure) of ECUSA, and the now unfortunate outcome of this case, that one take into account the true relationship among the individual dioceses of ECUSA and the individual pieces of the national church organization. (The latter are the Presiding Bishop and his staff at 815 Second Avenue, in New York, the officers and committees of the General Convention, which meets only once every three years, and the episcopal disciplinary bodies which convene under the authority of the national canons.)

For it requires such an understanding to put into context the announcement today by the Bishop Suffragan of Los Angeles that in agreement with the Diocesan Standing Committee, and despite the strong recommendation of the Hearing Panel just quoted, the Diocese of Los Angeles intends to go forward with the sale of the Newport Beach parish's former property that Bishop Bruno surreptitiously contracted with a developer while he was under disciplinary jurisdiction.

Bishop Taylor's patently lame excuse for this outlandish development is as follows:
In prayerful discernment, we opened our hearts to a variety of possibilities for reconciliation in Christ and healing for St. James and our whole community. But Bishop Bruno has entered into a binding contract to sell the property. The buyer has the legal right to expect the seller to honor the contract. Much as we might wish it were otherwise, we do not believe that it would be in the interests of the diocese or consistent with our fiduciary responsibilities to endorse any steps leading to breaching or threatening to breach an enforceable contract that could lead to further expense and litigation.
Translation: even if Bishop Bruno breached his fiduciary duties to the Diocese and the congregation of St. James the Great by entering into a contract to sell the latter's property without their consent, the Diocese will honor his underhanded dealings by going forward with the contract. Otherwise the Diocese (!) -- and not Bishop Bruno or his corporation sole -- could suffer "further expense and litigation."

Excuse me, but this rationale does not even pass first blush. The contract in question was between the developer and Bishop Bruno's corporation sole. It was not (so far as I am able to learn) a contract with (or guaranteed by) the Diocese per se. Bishop Taylor, the Standing Committee, and the Diocese itself have no liability to the developer if Bishop Bruno's corporation sole is unable to perform on its contract -- they were not parties to it.

So if Bishop Bruno is unable (due to the restrictions placed upon him by the Presiding Bishop) to sign the deed conveying title out of his corporation sole, could the developer sue the corporation sole for specific performance? Undoubtedly he might, but could a secular court order the incumbent of a religious corporation to sign a deed that he no longer has the authority to sign?

I doubt it seriously. If Bishop Bruno no longer has the authority to sign the deed, the situation is just as though he had died before the close of escrow. The next incumbent of the corporation sole (i.e., the Rt. Rev. John Taylor) would be subject to a court order to sign -- but only once he takes office.  Bishop Taylor has no current authority on behalf of the corporation sole, and will have none until Bishop Bruno is removed as its incumbent and he is installed as +Bruno's replacement. Under the Hearing Panel's suspension order, that could take three years or more. Is the developer prepared to wait that long?

Perhaps the developer might want to sue the corporation sole for damages for breach of contract, rather than seek specific performance. According to this article, however, his damages are limited to his "out-of-pocket costs" -- i.e., for his preliminary title report, and for any physical investigations he made into the condition of the property, etc.  Such expenses could at most amount to a few tens of thousands of dollars (if that much). So of what, exactly, is the Episcopal Diocese of Los Angeles afraid?

All these speculations serve only to point out that they are all the consequences of Bishop Bruno's secret actions  -- without the knowledge, consent or (I trust) participation of the members of the Standing Committee, or other diocesan officers.

Although the Standing Committee was clearly derelict in its responsibilities when it approved the original (2015) transfer of the property to the corporation sole, I have seen no evidence that its members were complicit in the most recent, and highly secret, sale. That said, however, how could it reasonably be argued that its consent to one (unknown) deal in 2015 provided a blanket of authority for Bishop Bruno to enter into a second deal (presumably unknown to the Standing Committee) for the property in 2017? Surely the consent required by the canons must be informed consent, i.e., consent given after full disclosure of all the factual and legal details.

And if that is the case, just why should the Diocese and the Standing Committee now find it necessary to throw the congregation of St. James under the bus?? Surely the answer couldn't be that "it needs the money from the proposed sale." Or could it?

If that is truly the case, then a pox on all of Bishop Bruno's enablers on both sides is in order. For they were the ones who sat silently by as he brought suit to oust the original parish of St. James in the first place, and as he ran up the millions and millions of dollars in legal fees and costs that they now seek to recoup from the current sale.

In other words: if it was about dollars then, and is still about dollars now, then it has always been about the dollars, and not about the people. The parishioners from time to time are just pawns who come and go as they are sacrificed on the secular chessboard for the bishops' sake, and it is high time they drew that conclusion from how all St. James's parishioners have been treated -- first by Bishop Bruno and his apologists, and now by the Suffragan Bishop, by the current Standing Committee, and by Presiding Bishop Curry (who appears to have acquiesced in the ousting of the latest congregation). Under the evidence, then, it just comes down to dollars, and not the collective faith of parishes.

One concluding observation, which goes to Bishop Taylor's own candor in these machinations. According to his public statement on this debacle (and I quote verbatim, with my bold emphasis added), "We pledge to do all we can to ensure that capital sums received by the diocese, including proceeds from the Via Lido sale, are conserved for the sake of generations to come."

Wait: I thought that the proceeds of the sale of the St. James property (NB: not acceding to Bishop Taylor's euphemism of "the Via Lido sale"), were by contract coming into the corporation sole, not the Diocese. And if that is the case, how do they get out of the corporation sole's bank account and into the Diocese's accounts without Bishop Bruno signing some sort of draft on his corporation sole's account -- which he is under strict prohibition not to do?

Finally, what does the empty promise to "conserve[ those funds] for the sake of generations to come" do for the current needs of the congregation of St. James? Are they expected to sacrifice the value of their long-standing worship property for some unspecified benefit to unspecified future Episcopalians?  (Again, listen to Bishop Taylor make hollow-sounding promises on behalf of a secular, profit-minded developer.)

Without more details, Bishop Taylor's solemn pledge to "conserve" those proceeds reeks of the duplicity that Bishop Bruno habitually used to derail opposition to his self-serving maneuvers.

Let us try to summarize and draw conclusions from the foregoing.

First, what a chimera is the much-touted authority of ECUSA over its dioceses and its bishops. Not only can ECUSA not prevent a diocese from doing what its own disciplinary panel found was against "the integrity of the reconciliation process", whatever that high-sounding language is supposed to mean, but it is absolutely incapable of making anything more than a "[strong] recommendation" to the diocesan authorities as to how they should best protect the interests of their member congregations.

When parishes concerned about the drift of the national church were debating about how to proceed, the personnel at ECUSA's 815 Second Avenue headquarters encouraged dissidents to bring disciplinary charges against "nonconformist" clergy and bishops. And it encouraged loyalist bishops to sue clergy and parishes who decided they could not stay in the national church -- it even made a practice of joining in such suits, and in seeking punitive damages against individual rectors and vestry members (with the object of forcing them to hire expensive attorneys and drive up their costs).

But now it becomes clear that the national church's claims were hollow to start with: it can do nothing on its own to command a member diocese to take any measure whatsoever; it can only "strongly recommend" that it do something.

Second, it follows from the foregoing that if you are a parishioner in an individual parish, then no matter how much you might support the national church's agenda, you are on your own when push comes to shove in your own parish, or diocese. The national church is powerless to aid or support you; what you are able to salvage will depend solely on those officials in the diocese whom you can persuade to support you. Good luck with that!

Third, the desultory example of St. James itself, over a period of twelve years, should furnish all the proof you need that neither your national church nor your diocese cares one whit for your parish's ongoing welfare. They are happy to accept the tributes you send their way, so long as you keep sending them. But the moment that their financial survival / viability is at stake, you and your parish assets become expendable, regardless of the length or loyalty of your service to them. Remember: it's all about Mammon.

Is it any wonder that ECUSA is a dying denomination? Maybe some good may come of its selfish (and self-destructive) behavior, but if so, it will not be before it shrinks a great deal more, and before its members, out of sheer necessity, learn anew how to make mission out of adversity.

Since God has a purpose for everything under the sun, let us pray that He will use the apostate denominations of our time as a means of restoring their disenchanted followers to His fold. Amen.







Thursday, August 3, 2017

Massive Conflict of Interest Taints South Carolina Ruling (UPDATED)

Yesterday, almost two years after hearing arguments, the Supreme Court of South Carolina finally issued its decision in the case of The Protestant Episcopal Diocese of South Carolina, et al. v. The Episcopal Church, et al., as I wrote in this post. Because the Court's collective opinions were some 77 pages long, I was able in the short time after their issuance to present only the broadest overview of the differences that divided the five Justices on the Court.

Today, I plan to examine in depth what I consider to be the overarching problem with the decision: the fact that it glosses over a massive conflict of interest on the part of Justice Kaye Hearn. While she was definitely biased when the case was first appealed to the Court, as I explain in more detail below, that blight on her impartiality pales into insignificance before the blatant, result-oriented bias she has exposed in her opinion concurring in a 3-2 decision that would result in the transfer of multiple millions of dollars' worth of real property from the plaintiff Diocese to the ECUSA-controlled defendant, called the Episcopal Church in South Carolina ("ECSC").

For the basic problem with Justice Hearn's role in this case is as follows. When the case was first appealed in 2015 by the Episcopal Church of the USA ("ECUSA") and the ECSC, Justice Hearn (the newest justice elected to the Court at the time) had been, since at least March 2007, a member of the Episcopal Forum of South Carolina. That was the very organization which, through 14 of its membersbrought disciplinary charges in 2012 against Bishop Mark Lawrence, while he and his Diocese were still members of ECUSA, in an effort to have him deposed by the Disciplinary Board for Bishops. The Disciplinary Board's acceptance of those charges, and its issuance of a "Certification of Abandonment" against Bishop Lawrence, precipitated the withdrawal of his Episcopal Diocese of South Carolina from ECUSA.

[UPDATE 08/05/17: As is evidenced by this newsletter issued during the first week of the trial before Judge Goodstein in July 2014, members of the Episcopal Forum had one "sole mission" to carry out (my emphasis added):
Join The Episcopal Forum of South Carolina and affirm your support for The Episcopal Church of the United States of America, its Constitution and Canons, the authority of its General Convention, and the leadership of its Presiding Bishop.

This is the sole mission of The Episcopal Forum of SC.
Thus, as a long-standing member of the Forum, Justice Hearn was, already before the case of Bishop Lawrence came to her Court, fully committed to upholding the national church's Constitution and Canons -- including, as you will see, ECUSA's infamous Dennis Canon -- against parishes that claimed they no longer were subject to those rules. She was further committed to supporting the leadership and authority of ECUSA's Presiding Bishop over Bishop Mark Lawrence.

In short: she had already prejudged the chief issues in the case. And yet, she saw no reason to recuse herself from it.]

In her concurring opinion, Justice Hearn went out of her way to castigate Bishop Lawrence and the role he played as chief pastor of his Diocese -- ecclesiastical matters which, as her colleagues pointed out, had no business being addressed in a secular judicial opinion. In doing so, she only advanced, and acted as a spokesperson in black robes for, the sectarian interests of the Episcopal Forum to which she still (presumably -- the organization no longer publishes the names of its members) belongs. At the same time, she contradicted her own precept that South Carolina courts should stay out of Episcopal Church matters and defer to its "ecclesiastical determinations."

Further, according to the minutes, Justice Hearn's husband, George, was one of the duly designated delegates to the special convention of ECSC called in January 2013 by ECUSA's Presiding Bishop to replace Bishop Lawrence. That convention elected Charles G. vonRosenberg as Provisional Bishop of ECSC, who promptly brought suit against Bishop Lawrence in federal court and countersued in the State court action -- eventually seeking the recovery of all the properties of each of the 36 separate parishes involved in that litigation. George Hearn also was a deputy to the first regular convention of ECSC held in March 2013.

One would think that Justice Hearn, given her membership in the organization that initiated the disciplinary proceedings against Bishop Lawrence and whose sole mission was to support ECUSA, and given her husband's role in enabling the litigation now before her, might have considered recusing herself from the 2015 appeal to her Court by her own diocese (ECSC) and church (ECUSA), an appeal which placed directly at issue the actions of Bishop Lawrence and his Diocese that removed them from ECUSA. But one would be wrong. She not only stayed on the case, but she displayed a disgraceful bias in her own church's favor during the oral arguments in September 2015.

Fast forward now to the current year. The appeal by Justice Hearn's church and diocese has been languishing for 15 months because the five justices have been unable to form a consensus on how to resolve it, and are still circulating draft opinions. At some point in the process (perhaps just a few months ago, or perhaps it was right after the oral argument in September 2015), it has become clear that there are two votes (Acting Justice Pleicones, and, naturally, Justice Hearn herself) to apply ECUSA's Dennis Canon full bore to the withdrawn parishes.

They would hold that under the terms of the Canon (see the link), the departure of Bishop Lawrence and his Diocese from ECUSA resulted in an automatic transfer of the title to all 36 parish properties to Justice Hearn's group, in trust for ECUSA.

On the other side, there are two votes (Justice Kittredge, and former Chief Justice Toal) in favor of  upholding the trial court's decision to let the 36 parishes keep their properties after withdrawing, because according to the Court's earlier unanimous decision in the Waccamaw case, the Dennis Canon had no force in South Carolina. (Justices Pleicones and Hearn, by the way, would also vote to overrule the Waccamaw decision on that point, as having been erroneously reasoned even though unanimously decided. Justice Hearn sent a strong signal to that effect during the 2015 oral arguments.)

In the middle is Chief Justice Beatty (who joined in the Waccamaw decision). Like Justices Toal and Kittredge, and following Waccamaw, he thinks that the Dennis Canon does not, in and of itself, function to create a legally cognizable trust on parish property within the State of South Carolina. But like Justices Hearn and Pleicones, Chief Justice Beatty also believes that individual parishes who submit (or "accede") in their own governing documents to the national church's Constitution and Canons, can be held to be subject to the trust imposed by Dennis Canon -- even if they later try to change their minds (the so-called "roach motel" argument: "You can come in, but you'll never, ever leave").

That would mean that some twenty-nine of the thirty-six parishes would have to surrender all of their properties to ECSC -- Justice Hearn's own diocese. (The other seven would include the church that Justice Hearn and her husband attended until it withdrew along with the Episcopal Diocese -- St. Paul's in Conway, South Carolina. They each, along with a parish trust for St. Andrew's in Mt. Pleasant, apparently never acceded in writing to the national canons.)

Now you are Justice Hearn, with your draft opinion showing your strong disapproval of Bishop Lawrence, and your hierarchical view of ECUSA's authority over all of its parishes. You realize that if you adhere to those views, and vote accordingly, your own diocese will be richer by millions and millions of dollars in valuable real estate -- because, along with the vote of Justice Pleicones and the split vote of the Chief Justice, you will supply the critical third vote needed to reverse.

What do you do?

Do you regard it as improper to provide the deciding vote on a divided court when your own church and diocese will gain a substantial monetary benefit from your decision?

Or do you realize that your earlier failure to recuse yourself from this dispute has now brought you to a genuine quandary?

If you rule for your own diocese, it would be just as though a judge who belonged to a particular country club had decided to rule in its favor against, say, another country club that claimed title to the same golf course. But if you rule against your own diocese, your fellow church members will accuse you of betrayal, and of having cost them all of the property they otherwise would have acquired. You cannot win, whichever way you go (which is why you should have recused yourself at the outset).

Even worse: if you now belatedly recuse yourself before the decision is announced, the result will be a tie vote, 2-2. That will mean that the trial court's decision awarding all of the properties to the individual parishes will stand as the final decision in the case, since there are not three votes to reverse it. And so once again you will be accused of betraying your fellow parishioners.

We all know now what Justice Hearn decided to do about this quandary: she brazened it out. Not only that, but she wrote a concurring opinion in which she declared that if she could have garnered Chief Justice Beatty's complete backing, she would have declared that the properties of the parishes who never signed on to the Dennis Canon (including her own former parish) would be forfeit to ECUSA and ECSC, as well. As Justice Kittredge wrote in his dissent:
[I]t is undisputed that eight of the local parishes were never subject to the 1979 Dennis Canon. Yet two members of this Court would go further and transfer to the national church ownership of the property of the eight churches that never agreed to the Dennis Canon. That is stunning. The effort by two members of this Court to strip the property from these eight churches confirms Justice Toal's observation concerning their motivation to "reach[] a desired result in this case."
Indeed, it is stunning. It shows not only Justice Hearn's egregious degree of bias in this case, but it also provides convincing evidence of her willful blindness to the massive conflict of interest to which she -- and she alone -- is subject, due to her membership in ECUSA and ECSC.

If anyone needs further evidence of Justice Hearn's blatant bias, I invite them to perform a straightforward exercise: compare the excerpts of her comments and questions at oral argument (found here) with the points she makes in her written opinion (starting at page 21 of the .pdf document at this link). It is clear that she had already made up her mind about the case before it was argued, and that she felt no need to change or revise her views since.

What personal advantage or gain did Justice Hearn achieve with her tie-breaking vote? She herself is silent on that point, but her vote itself in the face of such a massive conflict speaks volumes. It is undeniable that her vote, if the Court's decision stands, will make her own diocese much wealthier than they are now; perhaps she and her husband will save some money on their pledges, or perhaps the diocese will have more money so that delegates like Mr. Hearn would not have to pay their own way to conventions. There is only speculation as to how she (and he) may have gained -- the point is that something had to make it worth her while to make such a brazen decision in the face of such a conflict of interest.

To reiterate: it is only due to Justice Hearn's biased but deciding vote that her own diocese and church will now be millions and millions of dollars wealthier. (They do not have the congregations to fill or even support most of the properties, so they will probably sell them for the money they can get.)

It is irrelevant that hers was only one of three necessary votes. It might not have been as crucial if she were just one vote out of five to reverse, since the result would not have changed if her vote was not counted. But it remains an unalterable fact: The only way that ECUSA and ECSC could profit so richly from the Court's decision is thanks to the concurring vote of Justice Kaye Hearn.

Let us now review briefly the provisions of the South Carolina Appellate Rules of Court (Part V of which includes the Canons of Judicial Conduct) that would be applicable to Justice Hearn in this case. Canon 2 ("A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge's Activities") states in general terms:
Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules or other specific provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.
More specifically, Canon 2.B states: "A judge must avoid lending the prestige of judicial office for the advancement of the private interests of others." Could it be more clear that by resolving the tie vote, Justice Hearn was advancing the private interests of the Episcopal Church, the diocese and the parish of which she is a member -- especially since she was prepared to overrule standing case law which was adverse to ECUSA's interests?

Canon 4 of the Code of Judicial Conduct states in part:
A judge shall conduct all of the judge's extra-judicial activities so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge . . .
This would appear to prohibit voting in favor of an organization of which one is a member, like the example of the judge who votes in favor of his own country club against a rival.

The most specifically applicable Canon, however, is Canon 3, of which paragraph B.5 states:
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 . . .
Section E of Canon 3 is even more specific to this case (the asterisks refer to definitions here):
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:
. . .
(c) the judge knows* that he or she, individually or as a fiduciary, or the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household,* has an economic interest* in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis* interest that could be substantially affected by the proceeding;
Can it be concluded, on the face of things, that any economic or other interest of Justice Hearn in the case is "de minimis" (i.e., trivial)? Who can say, since she never has made a public disclosure of her relationship with her parish, her diocese or her church in advance, as is customary in such situations, and is provided for under Canon 3.F? What one can say, however, is that the lack of any such disclosure gives the appearance of impropriety.

Assuming that Justice Hearn's conduct in this case has violated the Canons of Judicial Conduct, one has to ask what are the remedies available to Mark Lawrence, the diocesan corporation, and the individual parishes. The respective lawyers for those parties are going to have to decide what remedies they can and will pursue, but they include at a minimum the following:

(1) Petitioning the South Carolina Supreme Court for a rehearing, on the ground (among others) that until the Court published its opinions, no party could know the degree to which Justice Hearn's conflicts of interest would influence the outcome; and

(2) Bringing a complaint of judicial misconduct against her, again on grounds that could be known only after the Court rendered its decision. (Indeed, under Canon 3.D.1, "A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code should take appropriate action.")

The consequences of either route are difficult to predict. Presumably Justice Hearn would not have the gall to vote on a petition based on her own evidenced bias and partiality, so the vote might end up 2-2 again, which would result in a denial of the petition. In that event, the only remedy would be to ask the United States Supreme Court to review the case.

Hopefully, however, Chief Justice Beatty would provide the decisive vote to grant a rehearing, and he and the remaining Justices would then engage in a thoroughly impartial and honest reassessment of the taint on the proceedings caused by the participation of Justice Hearn, and revise the outcome so as to eliminate all question of any such taint.

I doubt whether a disciplinary proceeding would have any power to change the Court's vote by retroactively disqualifying Justice Hearn from participation in the case. The best remedy for this miscarriage of justice will be for the remaining Justices on the Court to man up, own to their having been blind to the conflicts that influenced Justice Hearn, and make a new decision that is free from all appearance of impropriety.

South Carolinians on both sides of this case will be watching as matters unfold over the coming weeks, and your Curmudgeon will report here on all further developments.



Wednesday, August 2, 2017

BREAKING - So. Carolina Decision Is Out

Published just a few minutes ago. Here is the court's own summary:

In a divided decision, the trial court's order is reversed as to twenty-nine parishes and affirmed as to the remaining parishes. The trial court's intellectual property ruling is affirmed by a vote of 2-2, with one justice declining to reach the issue.

Here are the seven parishes (and one land trust) which, by a 3-2 vote, were not subject to the Dennis Canon: Christ the King, Waccamaw; St. Matthews Church, Darlington; St. Andrews Church-Mt. Pleasant Land Trust; St. Paul's Episcopal Church of Conway; The Episcopal Church of the Parish of Prince George Winyah, Georgetown; the Parish of St. Andrew, Mt. Pleasant; St. John's Episcopal Church of Florence; and St. Matthias Episcopal Church, Summerton.

Note that the opinions are confusing as to how many "congregations" -- seven or eight -- managed to escape the Dennis Canon, by never acceding in their articles or bylaws to the Constitution and Canons of ECUSA. The reason is that one of the eight is not a congregation, but apparently a trust that holds title to church property.

The opinions show a bitterly divided Court that could not agree even upon the basic framework by which to decide the case (what the Court calls "the standard of review"). I put a lot of the blame for this divisiveness upon Justice Hearn, about whose blatant bias I wrote at the time of the oral argument. Her opinion concurring with Justice Pleicones might as well have been written by David Booth Beers.

In a nutshell, here is the determinative dispute among the members of the Court. First, let Acting Justice Pleicones explain how he (and Justice Hearn, and Chief Justice Beatty) view the case (footnote omitted; emphasis added):
Since the main purposes of this suit were requests for declaratory judgments and injunctive relief, I find that it sounds in equity.  Doe v. S.C. Med. Mal. Liab. Joint Underwriting Ass'n, 347 S.C. 642, 557 S.E.2d 670 (2001). The Court is therefore free to take its own view of the facts. 

Now listen to dissenting (and former Chief) Justice Toal as she counters that argument (I omit her footnotes):


First, I strongly disagree with the lead opinion's statement of the standard of review. The lead opinion contends that because the plaintiffs are seeking injunctive relief, this is an equitable matter. As a result, the lead opinion finds the Court is free to take its own view of the facts.

However, by the terms of their complaint, the plaintiffs seek a declaratory judgment as to the rightful ownership, under South Carolina law, of the real, personal, and intellectual property of the disassociated diocese, the plaintiff parishes, and the trustee corporation. The plaintiffs' request for injunctive relief is clearly confined to the defendants' use of the plaintiffs' names, seals, and emblems—which, as I explain further, infra, is ultimately a question of federal law. 
"A suit for declaratory judgment is neither legal nor equitable; rather, it is determined by the nature of the underlying issue." Sloan v. Greenville Hosp. Sys., 388 S.C. 152, 157, 694 S.E.2d 532, 534 (2010). Rather than looking to the relief sought, appellate courts must look to the "main purpose" of the underlying issue to determine whether the action is at law or in equity. Verenes v. Alvanos, 387 S.C. 11, 16, 690 S.E.2d 771, 773 (2010); Sloan v. Greenville Cnty., 356 S.C. 531, 544, 590 S.E.2d 338, 345 (Ct. App. 2003).

Here, the central issue of this dispute (as succinctly put by the lead opinion) is the determination of title to real property. Therefore, the action is one at law. 
If the action is at law, then the trial court's findings of fact must be upheld unless they lack substantial evidence to support them. But if the case is one in equity, then as Acting Justice Pleicones says, the Court is free to start afresh as though trial had never happened, and take its own view of the facts.

Note that Justice Hearn supplied the third vote for the latter view, which thus became the majority view. But she was so biased from the outset that she was incapable of any kind of neutral analysis of this determinative issue. She simply adopts the view that will allow her to make the majority in the case. Had she recused herself (as she should have), the decision below may well have been affirmed as to the 29 unlucky parishes.


That's all I can write for now -- I will have much more on this rather surprising result as soon as I finish my analysis. Those wanting a little more detail, as well as an overview, could do worse than watch the interview just given to Anglican Unscripted, which was put up live on Facebook.