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SC files response to friend of the court brief defending embattled judge

Amici brief defending Justice Hearn rebutted by SC diocesan lawyers

Today the Diocese of South Carolina (Diocese) filed their Response, at the Court’s request, to the Amici brief submitted on behalf of Justice Kaye Hearn regarding her actions on the South Carolina Supreme Court in its recent ruling in Appellate Case No. 2015-000622.  Her opinion there provided the deciding vote to deprive at least 29 parish churches of their right to properties some have held for over 300 years. Similar to the previous filings on the issue of Justice Hearn’s recusal, 26 attorneys signed this response as well.
Statement by the Rev. Canon Jim Lewis:  

“An essential issue before the State Supreme Court in this matter is whether the Judicial Code of Conduct means what it says.  If it does, Justice Hearn should and must be recused from any further participation in this case.  At a minimum, she should have no part in the Court’s decision whether to rehear this case.  Further, if the Court is to defend the due process rights of the Diocese of South Carolina, we likewise believe it should vacate her existing opinion and grant a fresh hearing before a new bench of Justices that is untainted by her failure to recuse herself.”

Quotes from today’s filed Response:

  • Regarding Justice Hearn’s interest in the outcome, the amici brief “simply disregards the evidence provided with the Motion to Recuse.”[p. 4]
  • The Canons of the State Code of Judicial Conduct places “the determination regarding recusal and duty to disclose and recuse on the judge, not the parties.” [p. 8]
  • There are no grounds for Justices Hearn’s continued participation in this case.The amici brief itself makes “no argument that prospective recusal is unavailable and inappropriate in these circumstance.” [p. 10]
Conclusion:  “Respectfully, Justice Hearn should recuse herself from hearing the Petition for Rehearing and the Court should vacate her opinion and appoint a Justice to hear the Petition.  Failing that, the Court should vacate all of the opinions and order rehearing.”  [p. 12]

The Diocese also provided the following list of additional details:
  • In 2012, the Diocese of South Carolina, along with 50 of its congregations voted by an 80% margin to disassociate from The Episcopal Church.  In a complicated and sharply divided ruling consisting of five separate opinions, the S.C. Supreme Court appeared to rule on August 2 this year that parishes which had “acceded” to the national church are subject to a trust interest in their property by (TEC). 
  • The expert affidavit testimonies of Nathan M. Crystal, Professor and Adjunct Professor of Ethics at the University of South Carolina and NYU Schools of Law and Lawrence J. Fox, Professor of Ethics at Yale University are unanimous in concluding the due process rights of the Diocese of South Carolina have been violated by these actions and the only appropriate response is for this Justice to be recused from further participation in this case and their opinion vacated.
  • As Justice Kittredge noted in his dissenting opinion, “The message is clear for churches in South Carolina that are affiliated in any manner with a national organization and have never lifted a finger to transfer control or ownership of their property—if you think your property ownership is secure, think again.”
  • Former Chief Justice Jean Toal, in her dissenting opinion, had this observation to make about its impact on the property rights of the Diocese of South Carolina.“The lead opinion in this case is nothing less than judicial sanction of the confiscation of church property masquerading as an attempt to promulgate a new deference rule for determining title in this matter.”
  • Judge Richard M. Gergel has granted a stay in the federal lawsuit filed by Bishop Adams and Bishop Von Rosenberg against Bishop Lawrence pending its mediation. Both sides have agreed to mediate both the State and Federal cases. Joseph F. Anderson, Jr., United States District Court Judge, is the appointed mediator. Mediation is scheduled for November 6-8 in Columbia, South Carolina.

A copy of today’s filed Reply can be found here:
A copy of the Diocese’s filed Petition, Motion and Affidavits can be found here:
Supreme Court’s Current Ruling and Video of Oral Arguments:
Judge Goodstein’s Orders from the Trial Court:
South Carolina Code of Judicial Conduct
   Canon 2 –
   Canon 3 –
History of the Case and The Diocese of South Carolina: 
A recent Statement by over 113 clergy of 10 difference denominations affirming our legal concerns:    
The Statement by the Rector of St. Philip’s, Charleston regarding the potential impact of this ruling:
For third party legal analysis of the recusal issue, reference the commentary of Mr. A.S. Haley:
About the Diocese of South Carolina
The Diocese was founded in 1785 by the parishes of the former South Carolina colony.  Four years later the Diocese became a founding diocese of the Episcopal Church.  Based in the Lowcountry of South Carolina, the Diocese is one of the oldest religious districts in the United States and counts among its members several of the oldest, operating churches in the nation.

The Diocese of South Carolina is a member of the Anglican Church in North America (ACNA) and recognized by Anglican Dioceses and Provinces around the world, many of whom have broken fellowship with The Episcopal Church.  In 2013 the Diocese joined the global Fellowship of Confessing Anglicans and entered into a formal relationship of Provisional Primatial Oversight with the Global South Primates.  It was welcomed as a member diocese of the ACNA in June 2017.

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