Report on the seventh day of trial from the Episcopal Church in South Carolina
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.
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.
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.”
• 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, 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.
• 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.
“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.
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.
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.
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.
