This morning, your Curmudgeon arose very early (5:30 a.m. PST) to be able to watch the oral argument in the South Carolina Episcopal Church case as it was streamed live from the courtroom of the South Carolina Supreme Court. The argument was both fascinating and confusing, and it will not be an easy task to sort it all out for the interested lay reader.
Perhaps the best way to go about this is first to state a number of propositions upon which all appeared to agree, and then go from there.
First, the appellate counsel on both sides did a great job of holding up under fire. All five justices peppered the attorneys with questions that were not easy to answer, but they did a very good job of responding as well as they could while not losing track of their arguments.
Second, the two justices (Chief Justice Beatty and Associate Justice Kittredge) who remained from the original arguments and fractured decision in 2017 frankly acknowledged that the Court had failed to be sufficiently specific as to just what had been decided by an actual majority (3-2) vote, and why it had been necessary for Judge Dickson to conduct further hearings below on the issues that remained unresolved. Chief Justice Beatty, in particular, stressed strongly that Circuit Judge Dickson had done just the job that he expected him to do, and would not brook any criticism of his findings.
Third, the three new Justices on the panel (Associate Justices Few and James, plus Chief Judge Lockemy from the South Carolina Court of Appeals sitting in place of Associate Justice Hearn, who had recused herself from further proceedings in the case) did their sporting best to enter fully into the proceedings and try to understand what had gone on before, without apologizing for the lack of clarity resulting from five separate opinions (only one of which was joined in by one of the other justices then sitting).
I will not here rehearse the multiple problems created by those five earlier opinions, which I did in this previous post, and in this one. Suffice it to say that the current Court recognized that those opinions had purported to decide issues as to which there was no evidence in the record before that Supreme Court, and had failed to be clear about just which of its “rulings” applied to which of the individual parishes, and which to the property in the name of the Diocese (consisting mainly of Camp Christopher).
Thus counsel for the Episcopal Church (USA) parties, Bert G. Utsey III, was hit right between the eyes at the outset by Chief Justice Beatty, who asked him to point to the specific passages in the earlier opinions that “finally decided” which parishes retained their individual properties, and which went to ECUSA. He attempted to cite Chief Justice Beatty’s own words to him, only to have that worthy point out that what he wrote began with the words: “Assuming that [there were parishes who acceded in writing to the Dennis Canon’s imposition of a trust on their property], . . .” the properties of those churches would now belong to the national Church.
When Mr. Utsey attempted to claim there had been “evidence in the record” before the Court to support that assumption, Chief Judge Lockemy shut him down with the observation that the “evidence” he was citing was only an unsupported assertion made by ECUSA’s attorneys in their brief, which in turn was based on documents not in the (then) record before the Court — and that was why the Chief had used the word “assuming” in his opinion: he was taking counsel’s words at face value, but had not seen the actual evidence of any agreement by any parish to impose a trust on its property.
And the argument devolved from there, because that really was the problem with “deciding” just what the 2017 opinions had decided. “Two justices [of this Court] were ready just to hand over all the properties to ECUSA on the strength of its passing the Dennis Canon alone,” Justice Kittredge said later. That was a reference to the opinions by Justices Pleicones and Hearn, who wanted to change the “neutral principles” rule laid down in All Saints Waccamaw to a “complete deference to the national church” rule of Watson v. Jones — but they had only two votes for such a reversal, so Waccamaw stood as the applicable law.
In conclusion on this line of argument, I did not perceive a single member of the current panel who was ready to adopt ECUSA’s reading of Chief Justice Beatty’s 2017 opinion and simply hand over the properties to the national church — including Chief Justice Beatty himself. So I believe it a correct statement to predict that whatever the current Court decides, all twenty-nine plus seven (or all twenty-eight plus eight, which comes to the same thing) parishes in the South Carolina case will keep their own properties. Any other result would require the Court to overrule Waccamaw, and that is not going to happen.
Unfortunately, as a number of Justices pointed out to Alan Runyon, who ably argued the case for the Anglican Diocese and its parishes, that does not mean that the subsequent course of the case is all clear sailing. “You have,” Justice Kittredge pointed out, a “big problem” as to “the law of the case.”
That is technical jargon to say that once a point of law is decided by an appellate court, it may not revisit that question in subsequent proceedings and change it to produce a different outcome from before. So even if this Court wanted to say that two justices plus a third (i.e., Pleicones and Hearn, plus the Chief) did not actually decide to hand over the properties to the national Church, it could not if it had actually done so in its 2017 opinions.
Mr. Runyon, however, had a very good response to this point: first of all, the Chief’s opinion cannot fairly be read at the same time to be upholding and overruling All Saints Waccamaw, when the only fair conclusion is to acknowledge that it states that he adheres to and follows Waccamaw. Next, Mr. Runyon pointed out that the law of the case doctrine is discretionary with court, and does not have to be rigidly applied. If it would make no sense in the present context, then the Court does not have to follow it.
The Chief Justice likewise wanted to know if the Court was not legally bound by its remittitur which it had entered after its failure to garner three votes in favor of granting the Anglican parties’ petition for a rehearing. (He was drawing a legal distinction between a remittitur, which simply sends a case back to a lower court for it to enter a judgment in accordance with the appellate court’s opinion, and a remand, which sends the case back to the lower court for further proceedings on issues remaining.)
Mr. Runyon’s response was again straight and succinct. He pointed out that their petition for a rehearing had requested the Court specifically to rule on the evidence (which had been earlier culled from the record on appeal at the Court’s request, in an effort to pare down the sheer amount of data in the trial record) showing that no parish had consented in writing to the imposition of a trust on its property, but that request had in effect been denied when the vote to hold a rehearing was just 2-2 (with Justice Hearn now recusing herself). As a consequence, he said, there never was a 3-2 vote that was grounded on the actual documentary evidence, as opposed to just being lifted from a biased summary prepared by opposing counsel. “Due process of law” required that there be such an evidentiary hearing before a party could be deprived of its property under the Constitution.
(As an aside, one might well wonder why Chief Justice Beatty refused to provide the third vote in favor of the rehearing, particularly since he was now being so adamant that he had never addressed the factual issue in his 2017 opinion.)
Mr. Utsey then returned to the podium, and the question quickly devolved to this: where can the Court go now from where it is today? It can affirm Judge Dickson’s resolution of the case only if it actually reviews (as he did) the evidence previously culled from the record. But how can it fairly remand the case to Judge Dickson to allow the ECUSA parties another opportunity to put on additional factual evidence as to the parishes’ respective accessions to the Dennis Canon — when they had that very opportunity already offered to them by Judge Dickson, and they chose to stand on what was already in the record?
True, they had taken that stance because they wanted to preserve their position that the Supreme Court’s decision that ECUSA take the properties was already clear, and needed no further inquiry or elaboration. (But again — “clear” in what sense? As to 28 parishes, 29, or all 36?)
The status of Camp Christopher also seems to be in doubt. On the strength again of the opinions by Justices Pleicones and Hearn, as joined in (so ECUSA claims) by Chief Justice Beatty, three justices seem to have ruled that its trustees hold the property in trust for the national church — but again, based upon what specific factual evidence? The trustees did not go anywhere; they are still the same individuals, and remain members of the same body they belonged to before, which now calls itself the Anglican Diocese. And how, or why, under South Carolina law should a simple corporate change of name mean that the entity so acting thereby somehow loses its status as the beneficiary of the trust property?
If anything remained clear at the conclusion, it was this: the current Justices will have to do the homework of looking carefully at all the documentary evidence in the record in order to feel comfortable with any final ruling they make. There has been too much legal bias and posturing in the past — like the claim that All Saints Waccamaw was no longer the law in South Carolina, when it clearly was; or like the claim that the Court was required to “defer” to the unilateral decisions by ECUSA in matters of property law (as opposed to religious doctrine).
The reason for much of that bias and posturing, it has to be said, should be laid at the feet of the now recused, but in 2017 highly partisan, Justice Kaye Hearn — aided and abetted by retired Justice Pleicones. Together, their unified front against (former) Chief Justice Toal seems to have deprived her of the command of the law and the authority she wielded to great effect in achieving the unanimous decision eight years before, in the All Saints Waccamaw case. They appear to have determined that she not be allowed to treat ECUSA in the same fashion again, and alas, if that was their goal, they succeeded. Fortunately, that success may not be lasting, if the current justices prove up to the evidentiary task before them.
Trying to make the Court’s work less burdensome, by having the parties pare down the record, Chief Justice Beatty admitted at the end, had been a mistake. The complex cannot be made simple in that way. There will be no easy out for this Court, and I predict we will have to wait a good many months for a consensus to emerge. Given the facts as we all know them from the history of the last twenty-odd years, there is no reason, in my humble opinion, why there should not be another 5-0 decision in this case.