Sunday, November 19, 2017

A Triumph of Injustice and Irresponsibility

In two orders mailed to the parties at the end of last week, the South Carolina Supreme Court announced the following rulings in the property dispute between Bishop Lawrence's Episcopal Diocese of South Carolina and the Episcopal Church (USA) joined by its rump organization there:

A. The motion to recuse Justice Kaye Hearn from the case was denied unanimously by all five Justices, including Justice Hearn herself. (Two justices concurred in the denial, but wrote separate opinions stating their reasons.)

B. The motion to grant a rehearing in the case was denied by a tie vote of 2-2, because Justice Hearn, in an act of what can be described only as hit-and-run, recused herself from deciding that issue (as well as from acting further in the case).

If evidence were needed to demonstrate the fecklessness of the justices who are responsible for the mess the South Carolina Supreme Court has made of its church property law in this proceeding, the latest pair of rulings on the petitions would suffice, all on their own. Consider the following facts:

1. There was never any decision of a majority of the Court in the case. In five separately written opinions, only two Justices (including Justice Hearn, herself an Episcopalian) agreed on reversing the decision below in order to hand all of the disputed church property to the Episcopal Church and its Potemkin diocese in South Carolina. Two Justices agreed on letting the decision below stand, albeit for different reasons. And the fifth -- Chief Justice Beatty -- simply punted by saying he would enforce a Dennis Canon trust (but not for the reasons stated by Justices Hearn and Pleicones) only against those parishes who had "acceded" to the national canons. (Never mind that virtually no parish had ever done so since the Canon's adoption in 1979, or that any such involuntary trust would have to be revocable at will under South Carolina law.)

2. All five of the Justices misunderstood the motion to recuse Justice Kaye Hearn. They appear to have regarded it as wholly independent of the motion for a rehearing, when it was not. The reason is that granting the request for a rehearing would have accomplished the same things requested again in the motion to recuse: the Justices would have been able to decide the case anew. Their prior opinions would be replaced by any new ones written on rehearing, and Justice Hearn's prior opinion would no longer be of any account. But they treated the motion to recuse just one Justice as a request to do all these things independently of any rehearing, which makes no sense, and appeared to congratulate themselves on their unanimity in striking down a straw man.

3. Thus they each (including Justice Hearn herself!) ruled that the motion to recuse came too late, since the full Court had already rendered its non-decision in the case. The motion to recuse, however, was aimed only at her future participation in the case; the past is water under the bridge, and could be corrected, if at all, only by granting a rehearing. (For her part, Justice Hearn mooted the motion to recuse by announcing on her own that she would not participate in further proceedings in the case.)

4. But not before voting to deny the motion to recuse! (So she did not withdraw from all further matters in the case.) She waited until she could see which way the rehearing votes were going to fall on the part of the other four Justices, and then grandly announced she would recuse herself only from participating in the decision to grant rehearing.

5. The reason she could make that gesture is that when she saw that the Court would still be divided 2-2 on granting a rehearing, she knew that her participation in it would not make any difference to the outcome she wanted: a 2-2 tie vote operates to deny a pending motion just as much as does a 3-2 majority vote to deny it. Cynically, therefore, she could get away with appearing to be "noble" and no longer involved -- while ensuring by her recusal the outcome she wanted all along.

6. The great unanswered question in these shenanigans is only hinted at by Justice Kittredge, who states in his concurrence in the recusal order the following:
For the purpose of resolving the rehearing petitions, I requested that a fifth justice be appointed to fill the absence created by Justice Hearn's recusal so that a full Court could decide this matter of great importance. My request was rejected, which I find shocking. Under these circumstances, to disallow a full Court from considering the rehearing petitions is deeply troubling and, in my judgment, raises constitutional implications as the Court has blocked a fair and meaningful merits review of the rehearing petitions.
The question is: which Justice(s) voted or decided to deny the request to appoint a full five-person court? From the lack of any written ruling or order made upon Justice Kittredge's request, it would not appear that there was any vote taken. Instead, the decision appears to have been made by the Chief Justice, acting on his own authority. (A court rule that operates in the case of a recusal by a justice facing disciplinary charges gives the Chief Justice that duty, but it is mandatory -- he must name a replacement.)

But by what authority? I could find no rule of court that was directly applicable to the situation, but South Carolina has a statute which reads as follows:
SECTION 14-3-60. Procedure when justice cannot preside in cause; special justices.  
In case all or any of the justices of the Supreme Court shall be disqualified or be otherwise prevented from presiding in any cause, the court, or the justices thereof, shall certify the same to the Governor of the State, and he shall immediately commission specially the requisite number of men learned in the law for the trial and determination thereof.
Why, then, could not the Court have certified the lack of a full court to the Governor so that he could have named a replacement? Again, the language of the statute is mandatory: the Court has no discretion to ignore it. No wonder that Justice Kittredge is so shocked.

This mystery just adds to the bafflement of outside legal observers in trying to explain what is really going on inside the South Carolina Supreme Court. Whatever is going on is not pretty, and ought to be highly embarrassing to all members of the South Carolina bar. (Perhaps one of them will venture here to dispel our curiosity as to why the statute just quoted was not followed in this case. Is the reason that the word "presiding" in the statute is taken as referring only to cases when the Chief Justice is disqualified, as opposed to applying to any Justice who had been sitting on the case? But why would that be? In both cases, the Court is left with four justices who can divide evenly as they did in this case, so that a fifth justice to resolve the split is highly to be desired.)

In any event, the more outlandish this case gets with each successive month, the more it cries out for redress by some higher authority. The Episcopal Diocese says it is contemplating asking the United States Supreme Court to review what has now become an egregious denial of due process guaranteed by the federal constitution -- it has virtually no other alternative left to it.

For their part, the response of the ECUSA parties to these latest developments is downright macabre. Here is Bishop Skip Adams, speaking in a public statement issued after the two latest rulings:
We give thanks for the clarity that the State Supreme Court’s decision provides and we are grateful for the thoughtful and difficult work the justices have undertaken in this case. . . .
Clarity?? You give thanks, Bishop Adams, for the Court's clarity??? Could you, perhaps, try to be a little more clear in what you mean by that statement?

With Sophocles (Antigone, vs. 620-23), I can only say: τὸ κακὸν δοκεῖν ποτ᾽ ἐσθλὸν τῷδ᾽ ἔμμεν' ὅτῳ φρένας θεὸς ἄγει πρὸς ἄταν.





Thursday, October 26, 2017

Is It Man over God, or God over Man?

This is an outstanding homily on last Sunday's Gospel reading recounting Jesus' skill in handling the Pharisees and the Herodians who tried to entrap him on the payment of taxes to the government (Mt 22:15-22). The Very Rev. John Lankeit, dean of the Cathedral of Ss. Simon and Jude in Phoenix, Arizona, shows Christians how to use Jesus' logic to refute the trick assumption behind the question: "Do you believe in gay marriage?"




The key is not to be distracted from the main issue: in speaking of marriage, what is man's, and what is God's? Since God defined marriage and gave it to man at the very beginning of his existence on Earth, it is not for man to redefine that institution. The most that man can do is establish his own secular arrangement of -- call it civil partnership, or civil union -- which the State has the power to define any way it wants.

The latter is all about the ownership of property in common, health and other employee / survivor benefits, the rights to hospital visitation, titles on official certificates, and the like. All those things belong to the State (i.e., are "Caesar's") to confer in the first instance, and as such may properly be handed over by man back to the State to regulate, specify and define. And just as Jesus taught, the church on Earth has no sway over the State, whose rulers eventually must answer to God in Heaven.

Marriage, however, is by God's definition (Gen. 1:27) between a man and a woman, each of whom is made in God's image. Just as it was proper to render to Caesar one of his own coins stamped with his image, so the only thing that is appropriate in marriage is to have it conform to God's will revealed to us. We are thus bound recognize it as a divinely blessed union between two humans stamped with his image -- one male, and the other female. All else is usurpation, and an inversion of roles: an attempt by man to play being God.

That is why the Supreme Court's decision to redefine marriage in Obergefell v. Hodges is no valid decision at all. It is five actors in black robes playing at being God.




Tuesday, October 24, 2017

A Pyrrhic Victory in San Joaquin

What would you say of a trustee who spent $6.8 million of his trust fund's money to recover just $1 million? Is that a healthy example of how a fiduciary should carry out his duties?

You probably already guessed before I tell you: the trustee in question is the Episcopal Church (USA); the trust fund is ECUSA's endowment (some $366 million as of the end of 2016); the $6.8 million was loaned by ECUSA's Executive Council to the Episcopal Diocese of San Joaquin to keep it propped up during its ten-year lawsuit to "recover church properties"; and the $1 million is all that the Diocese of San Joaquin is now able to repay after having been handed more than 25 properties by the crazy California courts.

And actually, those figures are not even half of the San Joaquin iceberg. For as I carefully estimated from all sources and after reviewing ECUSA's budget for the current triennium, ECUSA's litigation machine has spent a good $40 million on just legal expenses in the first six triennia of this century (it began its career of suing parishes and dioceses in 2000). Because the two longest-lasting cases to date have been in California, it would be fair to allocate, say, $8 million of that total to the legal expenses of ECUSA in connection with the San Joaquin lawsuit (recounted in considerable detail in these pages, since yours truly was a participant).

That fact, accordingly, reduces the final return even more: ECUSA spent nearly $15 million to recover $1 million, after all is said and done. That is a pretty egregious fiduciary record under anybody's yardstick.

And what of the plaintiff diocese itself? The ENS story of last week's actions by the Executive Council contains these observations:
Council member Russ Randle, while earlier presenting the loan forgiveness resolution, said Episcopalians “faithfully persevered” through what turned out to be nearly a decade of eventually successful property litigation. There are now 25 properties that will be sold and 21 “viable” congregations, he said, but the latter are struggling financially. There are two paid full-time clergy in the diocese, along with retired clergy and clergy who work full-time but earn part-time salaries. Randle called the loan forgiveness a “significant investment in this diocese.” 
Two full-time clergy; one part-time bishop; and those who volunteer some or all of their services -- all to care for 21 congregations described as "viable". (The only reason they have $1 million in cash to repay ECUSA is that the arbitrary and ignorant judges on the Court of Appeals, without any discussion or reasoning on the point, simply handed them all the money the former diocese under Bishop Schofield held in its investment trust accounts at Merrill Lynch.) Good luck with selling 25 used churches while you maintain them in the meantime -- all because you drove out the congregations that had been paying and caring for them all along.

And as for making "a significant investment in this diocese"? Please spare me. You already pumped $6.8 million of lifeblood into that turnip, and now you are simply acknowledging that you can't get any more blood out of it.

After losing nearly all of his army in defeating the Romans twice, the Greek general Pyrrhus (319/318 - 272 BC) is reported to have said: "One more such victory and we shall be ruined." It sounds as though ECUSA has little to distinguish it from Pyrrhus -- just more dollars to burn than he had soldiers.

P.S.: In light of the above, you should now re-read the first part of the linked ENS story about how ECUSA's budget for the next triennium will have to slash funds for evangelism by 41%. The new proposed figure -- $ 3.5 million over the next three years -- is less than half of the amount they claim to have used for evangelization in the Diocese of San Joaquin.

Sunday, October 8, 2017

Judges Who Are Indifferent to Injustice

Perhaps none of my readers in South Carolina will be surprised to learn that two former colleagues of South Carolina Supreme Court Justice Kaye Hearn, both retired judges who sat with her for many years on that State's Court of Appeals, have appeared as "friends of the court" (amici curiae) in the Episcopal Church case on her behalf. That case (Protestant Episcopal Church in the Diocese of South Carolina et al. v. The Episcopal Church et al., No. 27731, August 2, 2017) has been the subject of four of my last seven postings here (report of decision, first critical observations re: bias of Justice Hearn, summary of grounds for her disqualification, and summary of grounds for granting a rehearing).

Now come the Hon. William T. Howell and the Hon. H. Samuel Stilwell, retired from the Court of Appeals, to argue to the Justices of the State Supreme Court that (a) the motion to disqualify Justice Hearn comes too late for it to be acted upon, and (b) in any event, no foul has occurred -- there has been no violation of due process, because their former colleague did nothing wrong by deciding the case as she did. Oh, and did I mention that the signer (and presumably principal author) of the brief for the amici curiae is Matthew Richardson, who served in the past as a law clerk to Justice Hearn?

In support of (and attached to) this brief are two affidavits. The first is from Rebecca Lovelace, a witness who testified at trial on behalf of those claiming all the properties of the withdrawing parishes, who is a long-time personal friend and fellow parishioner of the Justice and her husband, George Hearn, and who was on the steering committee that organized the appellant Episcopal Church in South Carolina (ECSC). The second affidavit comes from Prof. Gregory B. Adams of the University of South Carolina School of Law, who does not, however, disclose that he himself is a member in good standing of the parish of Good Shepherd in Columbia -- which, as a constituent of the Diocese of Upper South Carolina, has remained in ECUSA.

So one would expect to read a thoroughly impartial and unbiased series of legal documents, right? And if that is what you expect, then you might as well stop reading right now.

Earlier, I analogized Justice Hearn's role in this case to that of a member of a golf club who sees nothing wrong in sitting as judge over a property dispute that results in the transfer to her own club of millions of dollars of real estate titled in the name of a competing golf club. If that analogy holds up, then I will liken the filing of this amicus brief to testimony offered in her support, in a proceeding against the judge to disqualify her for bias, by four members of the judge's same club. And that is not also bias?

Their arguments are smooth, and read well on the surface. What gives their game away, however, are  the points to which their specific arguments are addressed -- in every case, they are not the real points at issue. They instead are a series of straw men, carefully erected only for the purpose of being able to knock them down.

Take, for example, the first detailed argument they make (brief [p. 7] at Adobe Acrobat p. 18): they claim, citing only cases involving federal law, that a motion to recuse is untimely if not made before a decision is rendered by the judge being challenged. While the cases cited do so hold (interpreting federal law and rules), that is not the point at stake.

The motion to recuse Justice Hearn is directed at her ability to sit as judge on the decision whether to grant a rehearing. That decision has yet to be made; neither she nor any other justice has yet written any opinion on the point. So the argument that the motion is "untimely" is nonsensical. If it is untimely to move to disqualify a judge before the judge makes a decision, then every motion to disqualify would be "untimely."

Neither the amicus brief, nor the earlier return to the petition for recusal filed by ECUSA and ECSC, addresses this argument, which is the only one actually made by Bishop Lawrence and his parishes. And there is, as just demonstrated, no rational answer that can be made to the argument. A motion to recuse a judge filed before that judge acts on the question for which she is disqualified can never be "untimely."

In effect (although amici do not say so), the amici (and ECUSA/ECSC) are arguing that Bishop Lawrence and his attorneys waived any right to challenge Justice Hearn for bias because they waited until after she had ruled in the main case, when they could have stated many of their same grounds for disqualification two years earlier, before the oral arguments. But this is likewise not a valid argument. For instance, had the decision turned out 4-1 against ECUSA/ECSC, with only Justice Hearn dissenting and voting to overrule the All Saints Waccamaw decision (see my earlier post on that), then any motion to disqualify her would have been moot, pointless, and a waste of everyone's time.

One can never, moreover, be held to "waive" a justice's bias or personal interest -- it would be akin to waiving any objection to a person who says he wants to wound you. But one can certainly expect, and even demand, that a justice refrain on her own from ruling on a case in which she is biased through personal interest. Bishop Lawrence's attorneys, as I argued in this earlier post, were entitled to assume, once it became evident (after argument and conferencing) that hers would be the deciding vote in causing the half-a-billion-dollar transfer of church property, that Justice Hearn would certainly recuse herself, even if that meant the case would have to be reargued.

So the amici's first argument is a non-starter. What else do they argue? Well, once again they proceed to set up a giant straw man, just to demonstrate how skillfully they can knock him down. (The technical term for this rhetorical sleight-of-hand is ignoratio elenchi, and lawyers are trained in how to spot it, because other lawyers are constantly abusing the legal process by resorting to it.)

Their second argument is perhaps more subtle, but every bit as fallacious, as the first. They contend that Justice Hearn's biases were not sufficient to produce a "due process" (i.e., 14th amendment) violation, and so therefore it follows that not only does she not have to recuse herself, but that the litigants whose rights she violated have no right to ask that she recuse herself for the future, either (amicus brief, pp. 10-13 [Acrobat pp. 21-24]). By the very way it is carefully constructed, this argument confuses a constitutional right (to have a fair trial) with South Carolina's statutory prohibitions against judges sitting on cases in which they have a personal interest.

The two rights are not the mirror image of each other, as the argument tries to claim by equating them. A due process violation raises a federal question -- one which, for example, could be used to ask the United States Supreme Court to review the case. The state prohibitions against bias in the judiciary have an object in addition to preventing constitutional violations: they are intended to preserve public confidence in the integrity of the judiciary.

This is what makes so deplorable the spectacle of two retired judges arguing to their own Supreme Court that it does not matter if Justice Hearn could have recused herself, because even if she acted out of personal bias, she did not violate the 14th amendment rights of Bishop Lawrence and his diocese. "Who gives a fig for your integrity?" they seem to be asking. "As long as your behavior does not amount to a federal due process violation, you are just fine, no matter how bad it may look to the public."

Notice also how this second argument avoids the main issue again, which (to repeat in bold) is whether Justice Hearn should rule on the pending petition for rehearing. In effect it claims that because (the amici assume) she has not yet committed a constitutional violation, she should be perfectly free to go on trying. (As the football cheer says: "Hit 'em again, hit 'em again, harder, harder!")

Another indirect argument the amici are making is that there really should be no rehearing granted -- because Justice Hearn and her concurring colleagues got it right the first time. But as before, that argument at this point is improper. It is nominally addressed to the merits of the petition for rehearing, but it does not deal with those merits. Instead, it tries to skirt around the question by saying there is no real need to decide it.

The remainder of the amici's arguments amount to similar attempts at ignoratio elenchi. Take, for instance, their response to the point that as far as Justice Hearn was concerned, her old parish of St. Paul's Conway would have to turn over its property along with all the other thirty-six parishes involved in the case. Unlike Chief Justice Beatty, Justice Kittredge and Acting Justice Toal, Justice Hearn was willing to decide that all 36 parishes (including St. Paul's) were bound to hold their properties in trust for the national Church whether they had acceded to the national Canons or not. She wrote (Adobe Acrobat opinion, p. 30):
In my view, the National Church is correct in its assertion that even without these individual reaffirmations made post-Dennis Canon, the relationships between the National Church and the parishes reveal that an express trust exists, created as the majority envisioned in Jones v. Wolf.  
(And in default of an express trust, she was even willing [see p. 31] to impose a constructive one -- a judge-created remedy in cases of outright fraud.)  

Amici feel it is a sufficient answer to this point to observe that the Court's decision resulted in St. Paul's being one of the seven churches that are allowed to keep their property, and so Justice Hearn could have no "personal interest" in the outcome of the case. Well, that result is no thanks to Justice Hearn! She, as she wrote, was fine with a judgment that would have ordered her former parish to surrender all of its property to the organization to which she belongs. And yet the amici can say with a straight face that her decision does not show any "personal interest" she has in the case?

Amici also make no answer to the detailed evidence of bias and personal interest which anyone in knowledge of the actual facts can draw from Justice Hearn's own opinion, as explained in the petition for recusal and in my earlier post. She was the only Justice who felt it necessary to go into extraordinary (and erroneous) detail about fiduciary violations by Bishop Lawrence to his former church -- which are not violations that can be dealt with in the civil courts, since they present wholly ecclesiastical issues.

Hearn's overweening bias is thus shown by her willingness to address such matters on the merits, while at the same time urging that the trial court got it wrong when it steadfastly refused to defer to  the national Church's "ecclesiastical determinations" in holding that Bishop Lawrence's entities properly withdrew from ECUSA under State law. For Justice Hearn, in other words, Episcopal Church law trumps every State law, because she regards that Church as "hierarchical" (a red-herring issue, if ever there was one, in a State that adheres to neutral principles). And that is not evidence of her Episcopalian bias?

In sum, the arguments advanced by those trying to defend Justice Hearn focus all too much on what is past, and not on what is to come. Having been thus challenged for excessive bias, how can she (or they) claim a right not to have to deal with the challenge, and to go right on as though no challenge had been made?

It is a sad day for judicial integrity in South Carolina when its present and former judges are so concerned to circle the wagons around one of their own that they are willing to let half a billion dollars' worth of charitable property change hands for reasons on which no three of them could even agree. If the fact that the Hon. William T. Howell and the Hon. H. Samuel Stilwell were willing to have such a brief filed on their behalf is any indication of the respect that South Carolina judges have for their own integrity, then what can one expect from the South Carolina Supreme Court? And even if Justice Hearn withdraws from any participation in deciding the petition for rehearing, what guarantee can there be that a truly neutral fifth justice can be appointed to resolve any tie?

All eyes are now upon the justices of the Supreme Court of South Carolina. May they do the right thing, see through the hollowness of the arguments in defense of Justice Hearn, and in the end provide the parties with the fair and impartial tribunal that they deserve.





Sunday, September 3, 2017

Faults in the South Carolina Decision Laid Bare (II)

[Note: For background to this post, please read its predecessor here.]

After the Motion to Recuse and Vacate discussed in the previous post, the petition for rehearing heaps on many more reasons why the South Carolina Supreme Court should place no confidence in its divided result in the Episcopal Diocese of South Carolina case. To a certain extent, because the reasons in the motion to disqualify Justice Hearn are so strong and irrefutable, the reasons the petition gives for rehearing are ancillary.

For as demonstrated in my previous post, if Justice Hearn should have disqualified herself under the applicable Judicial Canons of South Carolina, then the only remedy for her violation of those canons would be to grant a rehearing of the entire case before new and untainted justices.

Rehearing is required, flat out, because respondents' due process rights to a fair and impartial tribunal were grossly violated. But rehearing would be required in any event because the bias injected into the proceedings by Justice Hearn tainted not only her conclusions, but those of Acting Justice Pleicones and of Chief Justice Beatty, as well.

In a nutshell, the fault exposed by the petition for rehearing is this: there is no 3-2 majority, or any majority, of the Court that is united in favor of any reasoning for any result that is dispositive of the entire case. When a court has failed properly to dispose of the whole case before it, it must grant a rehearing to clarify what it meant by its original decision.

Let me restate that observation, in terms a lay person can understand. To have an effective decision from a court of law in which a panel of multiple justices participates, there has to be a majority of the participating justices who each concur in (agree with) the result that necessarily follows from that concurrence. And in this South Carolina decision, an analysis of the separate opinions shows conclusively that while three justices out of five may concur in one given result, they differ fatally in what process gets them to that result.

With no clear majority agreeing on the approach the Court (through its supposed majority) is laying out, the picture is the same as if three bettors at roulette won money when the ball landed on Red 34, because the first bet on "red", the second bet on "even", and the third bet on "34". There is consensus only in result, but not in how you get there. And basic due process requires courts to explicate their reasoning for reaching a given result.

When the result is shown to have been clearly mistaken (i.e., the ball actually landed on Black 15 next to Red 34, or even on Black 22 on the other side -- which means that at a minimum only one bettor out of three could collect), the so-called "plurality" consensus fails, and there remain only the separate reasonings to get to that result, which do not unite or agree in any way.

This is the problem with the opinions as rendered by the South Carolina Supreme Court in the Episcopal Diocese of South Carolina case, and it is the key to a lay person's understanding of the issues presented by the petition for rehearing. So let us proceed to the particulars.

Let us start with the so-called "lead" opinion of Acting Justice Pleicones. As will be shown, his opinion is factually inaccurate, grossly misleading, and blatantly result-oriented (in disregard of binding precedent from prior decisions by the same Court).

The first thing to note is that A. J. Pleicones announces that the "standard of review" for the case is in "equity" (Opinions, p. 4 [Adobe Acrobat numbering], at n.1; I will explain what that means in a moment). While the unconstitutionally biased Justice Hearn agrees with him (Opinions, p. 21 [concurring "fully" in the opinion of A.J. Pleicones]), no other Justice does so, and two dissenting Justices (Toal and Kittredge) argue that the standard of review is "one at law", not equity (Opinions, pp. 55-57, and 39 at n. 31).

For his part, Chief Justice Beatty in his opinion makes absolutely no mention of the standard of review which he thinks applies to the case, although he states that he "disagree[s] with the analysis of the majority" (Opinions at 36; emphasis added), so presumably he rejects the equitable standard of review, as well. This means that there are, at best, only two Justices who agree on the applicable standard of review.

An appellate court always specifies the "standard of review" under which it will decide the case before it. That phrase describes the standpoint from which the higher court will review what is in the record from the court below.

For South Carolina courts, the two standards mentioned ("in equity", and "at law") entail two very different procedures in the reviewing court. Under an equitable standard, the appellate court examines the entire record anew, from scratch ("de novo"), and is free to make its own factual findings and conclusions of law that may vary from those of the trial court.

But under a standard of review "at law", the appellate court is bound by the findings of fact made by the trial court which are supported by at least some modicum of trustworthy evidence in the record (such evidence is frequently called "substantial evidence", though the term implies only that the evidence must be at least sufficient to justify a greater than 50-50 belief in its probable veracity).

From what the separate Justices state in their opinions, it has to be concluded that only two of them (Pleicones and Hearn) were in favor of disregarding the findings of the trial court, and of starting anew from scratch. The other three apparently believed that the trial court's findings of fact were binding upon them, subject only to a substantial evidence requirement in support.

This analysis shows that Pleicones and Hearn stood alone in their free-ranging substitutions of their own factual findings in place of those made by the trial court. But two votes out of five do not make for a majority in that respect. Therefore it is folly to regard the "lead" opinion of A.J. Pleicones as stating anything other than the individual views of the case by himself and Justice Hearn.

In other words, there were three votes out of five (a majority) to regard the trial court's findings of fact as binding upon the Supreme Court, rather than subject to de novo review. This analysis alone should give pause to those who triumphed in announcing that they had prevailed by a 3-2 vote.

In his separate opinion concurring partly in those of Justices Hearn and Pleicones, Chief Justice Beatty voted in favor of reversing the trial court's legal conclusion (following the rule handed down in the Waccamaw case -- see the previous post) that the Dennis Canon could not create an effective trust in South Carolina. Instead, C.J. Beatty concluded that the Canon, in combination with the individual parishes' supposed "accessions" through their corporate articles and bylaws, operated to create a binding and irrevocable trust on their properties in favor of the national Church and its diocese, as a matter of law.

This conclusion, as just noted, was one of law, not of fact. So the adjudicatory effect of Chief Justice Beatty's opinion depends upon his application of the law to the trial court's factual findings (which were binding upon the three members of the appellate court who rejected the "equity" standard of review). The problem that underlies Chief Justice Beatty's legal conclusion is that it rests upon certain assumptions of fact that were contrary to those found by the trial court (e.g., that the various "accessions" signed by the individual parishes were informed enough to operate as a consent to the creation of a trust that was legally recognizable ["cognizable"] under South Carolina law).

A good part of the petition for rehearing (pp. 18-22, and 24-31) is devoted to a detailed showing that there was never any express consent by the various parishes, under the specific wording of their so-called "accessions" to the national Church's canons (including its Dennis Canon after 1979), that would be sufficient under South Carolina trust law to create any kind of trust in favor of ECUSA and its local diocese in those parish properties.

Justice Beatty does not address these discrepancies -- he was unaware of them, since the documents were not made part of the record on appeal (because ECUSA never raised any appellate issue involving them). Justice Beatty apparently relied for his conclusion on the unsupported assertions of ECUSA's attorneys, made in a post-trial motion for reconsideration, that all the subject parishes had "acceded" to the Dennis Canon. He simply delivers an omnibus ruling that the standards for trust creation were met in the case of parishes who "acceded" to the national canons (i.e., according to the representations of ECUSA's attorneys -- which were not evidence in the case).

The petition for rehearing shows, as just noted, that Justice Beatty's assumed factual basis for his decision is fatally flawed, along with the consequences he draws from his unjustified assumption. So what is left of his concurring opinion? If he truly wants to address the discrepancies identified by the petition for rehearing, he will concede that it is correct. Only an irrefragable personal pride in one's output would keep a conscientious justice from admitting that he made a mistake, and from voting to reconsider the Court's decision.

A particularly poignant observation is necessary here, in light of the fact that Chief Justice Beatty was the only Justice to address the specific fate of Camp Christopher, a long-held diocesan property that serves as a conference center and clergy retreat for Mark Lawrence's diocese. He stated in a footnote to his concurring opinion:
The conveyance of Camp St. Christopher was for the explicit purpose of furthering "the welfare of the Protestant Episcopal Diocese of South Carolina." In my view, the disassociated diocese can make no claim to being the successor to the Protestant Episcopal Church in the Diocese of South Carolina.
The petition for rehearing (pp. 34-35) refutes this unwarranted (and unsupported) conclusion on the basis that the trial court never found, and the appellants never argued on appeal, that they were the "successor" to the Protestant Episcopal Church in the Diocese of South Carolina. Justice Beatty seems to have reached this conclusion entirely on his own initiative, with zero evidence in the record and zero contentions on appeal to support it. (Associate Justice Pleicones fell into the same trap under his pseudo-"hierarchical" finding -- see his opinion at p. 18. Since, however, the Dennis Canon has no application to property held by a diocese, his conclusion about its validity as to parishes has no bearing on the title to Camp Christopher.)

Such diaphanous cloth appears to be the material from which the Supreme Court of South Carolina weaves its fantastic decisions (at least when it is not wisely advised). Chief Justice Beatty's gratuitous footnote was not joined in by any other Justice -- no one else so much as mentioned Camp Christopher in their opinions. Accordingly, it would be a stretch to claim that his footnote serves as the basis for a 3-2 decision to transfer title to Camp Christopher to ECUSA.

All these minor points, however, are but appetizers for the main course. For the opinions of a minority of two of the South Carolina Justices (Hearn and Pleicones) are being touted by those ignorant of precedent as the basis for a wholesale overturning of South Carolina law on the topic of religious property disputes.

I hesitate to go here, because there is so much ill-informed opinion out on the Web about what "neutral principles" means in the context of disputes between religious factions over the ownership of and title to religious property. The best I can do is what I have already done: please visit this earlier post and its links before wading into these murky waters.

If you have absorbed what is in those earlier posts, congratulations! You will then be able to see just where A.J. Pleicones (and Justice Hearn, too, of course) went astray in giving lip service to "neutral principles" while in fact taking us back to the 19th-century doctrine of "deference to ecclesiastical authority." They want nothing to do with "neutral principles", because they like creating "special principles" applicable only to a category of church denominations they find to be "hierarchical."

In so doing, they stand the First Amendment on its head, by "establishing" ECUSA as a special church in our legal system that, in order to placate Justice Blackmun's "minimal burden" standard under Jones v. Wolf, is able to create a binding and irrevocable trust across all State borders and regardless of the fifty States' individual trust laws by the adoption of a single bylaw. Such "deference" to a national church has precisely the effect of doing what the Establishment Clause forbids. It gives to ECUSA a status that favors it over all secular organizations, and many other religious ones, as well.

Moreover, there are a number of other problems with A. J. Pleicones' and Hearn's approaches that they simply overlook, and fail to deal with:
  • First, ECUSA did not follow Justice Blackmun's advice and embody a trust in its governing constitution (which would require at least four years to amend). It fudged, by passing just a canon (bylaw), which can take effect immediately, and which Jones did not sanction.
  • Second, they ignore all the undisputed evidence that ECUSA's General Convention is just a legislative, and not an adjudicatory body. It passes laws (resolutions), and decides no disputes of any kind (other than who is entitled to a seat and vote). Indeed, there is zero evidence for the claim that ECUSA has any kind of "highest adjudicatory body" at all. So there is no body, or adjudication, to which a court must defer.
  • Third, the Dennis Canon trust cannot be "irrevocable", because General Convention may amend or revoke it unilaterally at any time it chooses. A trust that can so be amended or revoked is not "irrevocable." Moreover, making it irrevocable by any actions of a parish or a diocese creates its own problems with the First Amendment, since if deciding what to do with church real property is part of the "free exercise of religion" and so beyond civil adjudication, then placing limits on what parishes and dioceses may do with their own properties is an infringement on their free exercise rights.
All these arguments, and many more, are in the petition for rehearing. It does not merely "restate [Plaintiffs'] earlier arguments to the Court", as I saw one blogger describe it. The reason it does not is that the "majority Justices" themselves departed so freely in their several opinions from exactly what the parties had submitted to them in the record of the case and in the briefs on appeal.

The best conclusion to this discussion is the one in the petition itself (pp. 36-37):
The majority has fashioned a neutral principles standard for religious organizations under South Carolina property, trust and corporate law that admittedly would not be applied to secular organizations. It then applied it to religious organizations today in a fashion it did not do 8 years ago involving the same issues between the Plaintiff Diocese, The Episcopal Church and a parish church. It does so when no appellant asked the trial court, either during trial or post trial, to apply such a standard. As a result, the majority would transfer the real and personal property of South Carolina religious organizations, many of which preexisted The Episcopal Church and the United States, to a New York religious organization. This establishment of one religion over another impacts the choices these South Carolina religious organizations (and those associated with them) made in the free exercise of their religion. They chose to disassociate, exercising their right of association under the United States and South Carolina Constitutions which this Court has recognized. Yet, according to the majority, that constitutionally protected decision requires a massive transfer of centuries old real and personal property when it would not be required for a secular South Carolina organization.
Indeed. The "decision" is not a real decision at all. It is fractured beyond understanding; it is ambiguous, confusing and contradictory; and biased beyond all measures of impartiality and fairness. It needs to be wiped from the books, and a fresh start made with an impartial tribunal.






  

Saturday, September 2, 2017

Faults in South Carolina Decision Laid Bare

In two separate court filings yesterday, the attorneys for Bishop Mark Lawrence, the Episcopal Diocese of South Carolina and twenty-nine parishes -- who had been told they must hand over their properties to the national Church (ECUSA) and its ersatz "diocese" (ECSC) -- laid bare the severe faults and conflicts of interest that permeate the bitterly divided 3-2 decision on August 2 by the South Carolina Supreme Court.

The first filing is a 37-page petition for rehearing that systematically points out the huge flaws and legal errors in the 35 pages that comprise the majority decision.

The second filing is a motion addressed to the four current justices of the Supreme Court (minus Justice Kaye Hearn, who is requested to recuse herself from sitting in judgment on herself). It seeks to disqualify Justice Hearn from participating further in the case, and to vacate her overtly biased opinion that resulted in a loss for twenty-nine parishes. Alternatively, it asks that the Court vacate all five separate opinions and rehear the appeal with (if necessary to resolve a tie vote) a specially appointed fifth justice to sit in place of Justice Hearn.

These amount to quite a lot of legal substance to digest on a Saturday morning. But the filings deserve your serious attention, and I will do my best to make them understandable to you. Because it is the key to collapsing the entire rickety structure represented by the Court's divided opinion, I shall take up the motion for recusal and vacation first in this post, and then follow it up with another post on the reasons for rehearing.

The bottom line of this devastating motion is simple: Justice Kaye Hearn had no business sitting on the panel that heard and decided this case, and should have recused (disqualified) herself at the outset of the appeal. The evidence shown for her bias goes far beyond what your Curmudgeon wrote about in the post linked above (which was bad enough): it leaves now no room for doubt on the question. (The page references below are to the pages of the document numbered according to the Adobe Acrobat program -- plug a number into the box, and Acrobat will take you to that page.)

The motion begins its factual presentation with this overview (p. 5):
This case has been challenging emotionally, spiritually, and financially to thousands of people in South Carolina. One of those people is Justice Hearn. Like all of her current and former fellow parishioners, this dispute was and is important to Justice Hearn. However, only a limited number of those people were actively engaged in the debate of the underlying issues. An even smaller handful of people left their parish homes and started new parishes because of the issues involved in this case. One of those people is Justice Hearn. This case was important to Justice Hearn, and she and her husband were actively involved in the debate of the issues and were leaders in developing a new parish after leaving their prior one. Over several years, Justice Hearn developed opinions, advocated for these opinions, and took action based on the outcomes of decisions central to this case. These actions are to be expected by any interested parishioner. However, they should have led Justice Hearn to publicly disclose them, and she should not have rendered judgment in this case.
Bias against her former parishAs is well known, Kaye Hearn and her husband George were long-time members of St. Paul's, Conway. They left in 2013, after that parish voted to remain with Bishop Lawrence's Episcopal Diocese. Before they left, however, they were both vocal in their opposition to the direction in which Bishop Lawrence was going, and differed publicly with St. Paul's rector on a number of occasions (pp. 5-6, and 30-33). It should be noted that if Justice Hearn's written opinion had become the majority decision, it would have resulted in her former parish of St. Paul's having to turn over all its real and personal property to her new parish of St. Anne's. Could a conflict be shown more directly than that?

Support for the Episcopal Forum. As I documented previously, Justice Hearn was a continuing member of the Episcopal Forum of South Carolina since at least March 2007.  According to its mission statement on June 25 of this year (p. 111 -- the Forum's website has since been purged of this and all similar materials, and also of its public membership lists),
The mission of the Episcopal Forum is to support The Episcopal Church in South Carolina, The Episcopal Church and the worldwide Anglican Communion by providing support and educational offerings . . .
The first two entities named in the statement of support are precisely those who Justice Hearn decided were legally entitled to all of the properties of those parishes with whom she disagreed as a Forum member, and as a member of a parish in the Episcopal Church of South Carolina (ECSC). What better witness of support for them could she give than voting to hand over to them about half a billion dollars' worth of real estate?

Moreover, the Forum -- stating it had the backing of all its individual members -- wrote in 2007 and again in 2010 (pp. 103-07, and 177-86) to the bishops in ECUSA and in Province IV (which includes South Carolina) setting out its concerns about and disagreement with Bishop Mark Lawrence over the very actions which would form the basis for the later attempts by the national Church to discipline and remove him -- actions which Justice Hearn likewise criticized and attacked in her decision. In 2012, the forum published on its Website (pp. 188-91) a legal critique of the South Carolina Supreme Court's unanimous decision in 2009 in the All Saints Parish Waccamaw case. The document reads like a precursor to Justice Hearn's (highly biased) reasons given in her 2017 opinion for voting to overrule that decision.

Her Husband's Involvement in the First and Second ECSC Conventions

Justice Hearn's husband, George, served as a delegate for his dissident parishioners to both of the early conventions in 2013 that launched the Episcopal Church in South Carolina. As a delegate, he voted to nullify the resolutions and amendments to diocesan governing documents which had been approved by the most recent diocesan convention under Mark Lawrence, yet his wife saw no difficulty in sitting in judgment over the validity of those resolutions and amendments on appeal (pp. 115-17).

He also voted to elect Bishop Charles vonRosenberg, who promptly sued Bishop Lawrence in federal court claiming that he, not Bishop Lawrence, owned the trademark and seals of the diocese. Later, in response to Bishop Lawrence's preemptive move that kept ECSC from carrying out its plan to sow confusion by insisting that it had the right to be called "the Episcopal Diocese of South Carolina", vonRosenberg countersued against Bishop Lawrence and the individual parishes, claiming all of their property due to the supposedly self-effecting Dennis Canon adopted by the national Church in 1979. Finally, as a two-time delegate, George Hearn signed two oaths of conformity in which he swore allegiance to the National Church and to the remnant ECSC (pp. 74-81).

Bias Shown in Justice Hearn's Opinion

In her opinion concurring with the plurality in the present case, Justice Hearn just could not avoid letting show her overt bias against Bishop Lawrence and his diocese, by relying on her personal knowledge and opinions which were outside of the actual court record in the case. Let the motion for her recusal speak for itself (pp. 8-11):
Justice Hearn found that it was "clear from the record that doctrinal issues concerning .... the role of women were the trigger" for the disassociation. See Opinion p. 37. A complete and thorough review of not just the Record on Appeal, but the entire trial transcript uncovers no mention of the role of women. George Hearn stated that the role of women in the church was an issue to him in leaving St. Paul's Conway, but this deposition testimony was not introduced at trial. See Ex. 2, Depo. of G. Hearn pp. 27-28.  
In another section of her opinion, Justice Hearn strongly criticizes Bishop Lawrence by arguing that Lawrence joined an effort to lead his prior diocese, San Joaquin, out of TEC. See fn. 23. The record on appeal and trial transcript are devoid of such information. The published opinions on the San Joaquin case never mention Lawrence at all. In his deposition, which was not part of the record, Lawrence testified that he left San Joaquin before taking any position on their disassociation. See Ex. 26, Depo. of Mark Lawrence pp. 177-79, 183-84. 
The myth that Bishop Lawrence assisted or agreed with the withdrawal of the Diocese of San Joaquin  from ECUSA in 2006-07 was widely circulated by members of the Episcopal Forum as one of the reasons for his colleagues to exercise extreme caution in voting to confirm his election (see, e.g., pp. 105-07). As noted, there was no proof of his support, either in or out of the record. It is all too telling that Justice Hearn saw fit anyway, because of her unmitigated bias, to regurgitate the myth in her published opinion. And yet that is not all -- the motion continues (p. 10, with my emphases added):
Further, Justice Hearn states in fn. 14 "although there can be no question that the individual parishes have been affiliated with the National Church for decades, the trial court found in its order that '[n]one of the Plaintiff parish churches have ever been members of [the National Church]."' The record is clear that the trial court was right. The clerk of the Supreme Court specifically asked for Requests to Admit to be supplemented in the record. On October 8, 2013, TEC admitted "[p]arish churches are not members of The Episcopal Church." See Ex. 27, Requests for Admission dated October 8, 2013. This same admission appeared in the Record on Appeal already at R. pp. 81 and 630. This finding in Justice Hearn's opinion exists despite the clear admission from the party itself
In perhaps her most egregious attempt to manufacture false facts, Justice Hearn managed to show not only her overwhelming bias in favor of the national Church, but also her complete ignorance of its polity and structure (id. at 10-11; emphasis again added):
Justice Hearn states that the Diocese did not disassociate because its amendment of its corporate documents was trumped because "the National Church has promulgated its own set of rules concerning corporate governance, including changes to the bylaws." Op. at 14. However, TEC has no governance provisions in its constitution (R.1532) and canons (R.1703) which speak at all to the ability of a Diocese to amend its governance documents or that require the Diocese to secure approval for such amendments from anybody. There is no reference at all to a Diocese's Constitution and Canons or to its articles of incorporation or bylaws. In fact, it. was undisputed that interference ("regulation or control") with a Diocese's internal policy or affairs was forbidden to TEC's provincial synods. R.783-84. There was no provision here like that in Serbian E. Orthodox Diocese for U S. of A. and Canada v. Milivojevich, 426 U.S. 696 (1976), where a Diocese submitted its governance documents, either originally or when amended, to any other body for approval. 426 U.S. at 715, n. 9.
Long-time readers of this blog may remember my post about when canons were proposed for the national Church which included a "supremacy clause" that would have given such priority to its Constitution and Canons. That proposal, however, was resoundingly defeated in General Convention after the individual dioceses had an opportunity to consider the nature of the changes in the triennium 1895-98. That solid historical fact has never prevented liberal Episcopalians like Justice Hearn from reading nonetheless an imaginary supremacy clause into the national Constitution, despite its express rejection in 1898, and complete absence ever since.

The Clincher: Justice Hearn, a Member of ECUSA and ECSC, Is Herself a Party to the Case!

In a demonstration that tops all that came before, the motion makes its most convincing argument for Justice Hearn's disqualification at pp. 11-12. ECUSA itself has for a long time declared in its national canons that as an unincorporated association of dioceses, its members are individuals who have been baptized in the Church (Canon I.17.1 [a], cited in n. 1 on p. 11). Justice Hearn fits that description, so ECUSA itself regards her as one of its own members.

Likewise, ECSC stated in discovery that "its members are persons" (ibid.), and so Justice Hearn, who belongs to a parish that recognizes the authority of ECSC and its Provisional Bishop, is a member of that body as well.

But the kicker is that under South Carolina law, all members of unincorporated associations are deemed to be parties to an action in the name of the association -- and both ECUSA and ECSC are unincorporated associations. Ergo, Justice Hearn is a party defendant, and could be found personally liable if ECSC ends up with a money judgment against it and no means to pay it. As a party defendant, she has no right to sit in judgment of her own case (just as she has no inherent right to rule on her own disqualification by participating in deciding the motion). See the motion at pp. 11-12, and 24.)

Two Experts in Legal Ethics State that Justice Hearn Should Have Recused Herself

It is no answer to all of the foregoing to say that it was the responsibility of Bishop Lawrence's attorneys to have requested Justice Hearn to withdraw from participation in the case. The South Carolina Judicial Canons required her to make a full disclosure on the record of all of the relevant facts before proceeding at all. Not only that, once she made such a disclosure, the Canons forbid parties from waiving disqualification on grounds of personal involvement, so that she would have had to step down once she revealed the extent of her and her husband's personal involvement (see motion, pp. 13-19).

In further support of their motion, Bishop Lawrence's attorneys submitted the affidavits of two recognized experts in the field of legal ethics. (One has taught the subject at the University of South Carolina Law School for forty years.) Both are unanimous in their view that Justice Hearn was disqualified from participating in the case; that her participation violated the Due Process clause of the United States Constitution; and that under the Judicial Canons and state and federal law, it is still timely for the plaintiffs and respondents to raise the issue due to Justice Hearn's failure to follow those canons. (Motion, pp. 321-41.)

The Only Remedy: Remove the Justice from Further Participation and Erase Her Decision

It cannot be stressed enough just how serious a violation of due process this is -- for a judge so biased not to have recused herself, and to have presumed she was legally able to participate and decide a case in such a way as to benefit her own denomination, her husband and herself. This is not a matter of "abuse of a judge's discretion" -- given the facts rehearsed above and discussed at length in the motion, there was no discretion to be exercised at all. Moreover, because she deliberately chose to participate despite her many disqualifications, the full court should order her opinion on appeal vacated (see pp. 18-19).

Were the Justice now voluntarily to recuse herself, the full Court without her must still decide the motion to vacate her decision, because recusal alone will not remedy the violation. The 3-2 decision would stand until the regular Court (of only four justices) could act on the petition for rehearing (to be discussed in my next post). If it were to divide 2-2, the result would be an automatic denial of rehearing, and the egregious result would stand, leaving only a long shot at the United States Supreme Court's willingness to correct it.

The same stalemate, and same bad result, could occur in deciding the motion to vacate. That is why the motion requests the Chief Justice to appoint a a fifth qualified judge to resolve any possible division in ruling on the motion and the petition.

If the Court as so constituted agrees with the motion to vacate, it should not stop at vacating Justice Hearn's decision only, because then ECUSA and ECSC would cry foul: the result would affirm Judge Goldstein's decision, due to an equally divided court. And by vacating all the opinions, the Court would in effect be granting a new hearing of the case before a full panel (again with a fifth appointed judge to prevent any ties).

Could the Court deny this motion? Of course, it can do anything -- but to deny the motion would be for all the justices to sanction a half-a-billion dollar travesty achieved only through a gross violation of due process. That in and of itself would cast a pall over the entire Court.

ECUSA and its attorneys, of course, are not bothered by palls. Predictably, they will file obfuscatory oppositions to the motion that will play down Justice Hearn's prejudices while glorifying her legal acumen and fully appropriate decision in this case. But they have no sense of shame; they get paid to litigate to the hilt.

I cannot close without remarking how blind to due process have been all the usual bloggers who unstintingly support ECSC and ECUSA. In their comments and posts leading up to the decision (see the motion, pp. 198-256), they saw absolutely nothing wrong in Justice Hearn's participation, or her blatant bias. One of them even went so far as to write: "Justice Hearn was completely committed to the TEC/ECSC side. She was their intrepid advocate, doing, in my opinion, a better job of it [than their] lawyer" (motion, p. 248). And since the decision came out, I have read nothing but triumphalism on their websites -- there is no sense whatsoever of any impropriety, or of any unfair advantage gained by foul means. I call upon their consciences to come clean about the facts laid out in this post and in the full motion, and shall report here on their responses in due course.

Maybe I'm in the minority here, and maybe ethics is not as respected any more as it was when I started practicing law. I would like to think not, but then, I'm just a cranky old curmudgeon.









Thursday, August 31, 2017

Turnings (II): the Light of Christ Shines in our Newest Christian

Sunday, August 27, 2017, marked a series of milestones for this Curmudgeon, his wife, his family, and the Christian community of which we are all a part.

First of all, it started the countdown to next Sunday, September 3, which will mark the 45th anniversary of our marriage, conducted in 1972 by the 29th rector of my home parish of Holy Trinity, the Rev. Donald Royer (of blessed memory).

In 1972, we were both living in Hawaii, but that State mandated by law (according to a statute passed at the instance of missionaries in the 19th century) that a wife must take her husband's name upon marriage. My beloved partner-to-be wanted to keep her own family name after marriage, and I had no  legal ground upon which to justify Hawaii's law. (Hawaii had been the first State in the Union to adopt an Equal Rights Amendment to its Constitution. In 1974, two years after we had married, my firm was successful in a lawsuit to have the 19th-century statute declared unconstitutional.)

Without waiting for the law to take its time in Hawaii, I was able to advise my bride that she could legally keep her own name if we held the wedding in my home town, in California. And that was how the Rev. Donald Royer came to marry us in Nevada City in 1972.

(Many years later, after he had retired to Arizona, we encountered Fr. Royer while he was on a return visit to our area. To our wonder and surprise, he blessed us again, and told us that he had kept us in his daily prayers ever since joining us in matrimony. We were overwhelmed by the grace that he witnessed to us by his steadfast confidence in the union he had asked God to bless so long ago, and his faith in our marriage gave us a new determination to live up to his [and God's] expectations.)

This next Sunday, then, we will offer our prayers and thanksgiving for the soul of that blessed man of God, who had the discernment to set us upon our path, and then to encourage us anew as we approached midstream in our partnership -- now a full family, with four very remarkable children who deserved no less than our utmost. Our earthly blessing (but not reward) is to have watched over them and their spouses as they in turn generated six adorable and marvelous grandchildren, with the prospect of more to come.

Second of all, it marked the last Sunday on which the 32nd rector of Holy Trinity, the Rev. Canon Christopher Seal, conducted services there, after serving the longest term (23 years) of any of his predecessors. (The first service at Trinity was held by Bishop William Kip, the first Bishop of California, in April 1853.)

Although the course the national Episcopal Church (USA) has taken since my baptism has left me with no alternative but to withdraw from its ranks, I cannot so abruptly bid good-bye to the parish in which I grew up and was married. My ties there today are still linked by my relationships with both Fr. Seal and the priest-in-charge who replaces him. I appreciate their own affirmations of the traditions in which I firmly believe, even if they are not as free as I am to criticize where the leadership of ECUSA is taking that body in recent years.

Given my slog through the long and desultory church wars whose details I have chronicled on this blog, and given the sorry state of California's judicial system, I am the first to recognize that my local parish would gain little, and would lose much, were it to attempt to buck ECUSA at the national or  diocesan level. At the same time, I am not convinced that I have done all that I could to bring the crucial issues to my parish's attention. And now that I have withdrawn from its membership, I have even less of a voice than beforehand in suggesting how it might still prove to be Christ's witness in this most secular world.

I was struck, however, during his last services by the fact that Trinity's rector of 23 years would no longer, from this week forward, have any voice or vote in the affairs of the parish that he has served so well and so faithfully. Canon law prohibits his participation in its affairs, or even so much as his attending a service, for a period of time after his resignation.

I cannot speak for Fr. Seal, but I imagine he must be feeling at this point a little bit of the same sort of canonical exile (albeit one required by diocesan, and not national, canons) into which the national Church's apostasy from faith and doctrine has forced me. The feeling is not so much one of regret, as it is of powerlessness to be able to affect the future course of our long-standing parish. It is as though we both, from different perspectives, have faithfully constructed and contributed over the years to a (hopefully) seaworthy vessel that now must make its own way across troubled waters, without our being able to say anything to advise (or correct) its course.

And that reflection brings me to my third and main point of this post. For facts on the ground have a way of overwhelming hopes and intentions in the abstract.

Thirty-one years ago, when my wife gave birth to our daughter Myfanwy, we had little intimation of how beautifully she and her life would evolve before our eyes. Still less did we have any clue that her future husband would come from a local family that was intimately connected with ours, leading to the G. K. Chesterton-inspired wedding that was chronicled in this post.

Well, last Sunday in Trinity Church, that marriage resulted in the baptism and christening of their first child, Indiana Douglas (or "Indy", for short), as one of Father Seal's last liturgical acts in that parish to which we all are so bound by history and tradition. It was a magical moment, as I hope these photographs of the event will convey in some small part to you.

First, here we all are -- priest, infant, parents, grandparents and godparents -- gathered around Trinity's historical baptismal font, which dates almost back to the days of Bishop Kip:




And here is Fr. Seal, Indy and his mother, with the adults well launched on their baptismal purpose, but with Indiana perhaps not quite certain yet what to make of the ceremonial apparatus in front of him:



Next comes actual baptism with water, which (of course) catches Indy by surprise:





Now the ceremony gets more serious, as Indy receives Fr. Seal's anointment of chrism on his forehead. "First water on my head, and now this? What is going on here?"





But wait -- Fr. Seal lights Indy's baptismal candle, as everyone else (except Indy) takes note:




My, what can this be?



And then! -- Indy's indelible reaction after he is presented with the Light of Christ:



This one moment last Sunday morning crystallized for me the glorious irrelevancy of all our denominational differences. Indy -- a one-year-old infant -- was immediately drawn excitedly to the light of Christ that the candle Father Seal gave him represented. This was exactly as Our Lord described, in Matthew 18:1-4:
At that time the disciples came to Jesus, saying, “Who is the greatest in the kingdom of heaven?” And calling to him a child, he put him in the midst of them and said, “Truly, I say to you, unless you turn and become like children, you will never enter the kingdom of heaven. Whoever humbles himself like this child is the greatest in the kingdom of heaven.”
Apart from heresy (about the dangers of which Jesus went on to warn us, in the verses next following those just quoted), human denominational disputes pale into insignificance when compared to the simple and accepting faith of a child. We have much still to learn from them, and it was sheer joy to be reminded of that reality in my old parish church last Sunday.






Friday, August 25, 2017

Prepare for the New Meme: Trump's Harvey Debacle

As of this writing, Hurricane Harvey has not even made landfall yet in South Texas, but already the left wing has rendered its verdict: according to the solons at Salon, "Trump just flunked his first natural disaster test."

Cue trumpets, trombones and sackbuts -- is everyone on the left (especially the driveby media) listening? Trump has failed already / is failing as we speak / will continue to fail all through next week when it comes to dealing with the devastation that will be wrought by Hurricane Harvey.

Please excuse me, however, if I point out an inconvenient fact. According to this devastating report from ProPublica, Texas has long been on notice that it needed to do more to prepare for the next big storm to hit its coast. And note that the date of the report is March 3, 2016 -- which is months before Donald Trump became the Republican candidate.

Don't expect hard facts to stop the mindless media from piling on, however. They will run endless loops of video showing the devastation, all as they repeatedly ask: "What is the President doing about it?" Well, what has Texas done about it? (That question won't be asked.)

If the Houston Ship Channel is disrupted, and the largest oil refineries in the country have to shut down as a result of Hurricane Harvey, the ProPublica report predicts a major disruption for the entire country:
Flanked by 10 major refineries — including the nation's largest — and dozens of chemical manufacturing plants, the Ship Channel is a crucial transportation route for crude oil and other key products, such as plastics and pesticides. A shutdown could lead to a spike in gasoline prices and many consumer goods — everything from car tires to cell phone parts to prescription pills.

"It would affect supply chains across the U.S., it would probably affect factories and plants in every major metropolitan area in the U.S.," said Patrick Jankowski, vice president for research at the Greater Houston Partnership, Houston's chamber of commerce.
So the talking vacuum heads and copycat scribes of the media will have a field day over the next weeks and months. Every disruption in supplies, every spike in prices, every shutdown, flooding and other calamity that nature can deliver will be laid at Donald Trump's feet.

What was he supposed to do to stop a Category 4 hurricane, with its winds of up to 156 mph? Play King Canute? Issue everybody umbrellas and rubber lifeboats?

Get real. Texas isn't ready for this storm, even though it has had years of warnings and years to prepare. No President in this situation can do more than ask the personnel of FEMA to do their jobs, and do them well. Unfortunately, FEMA has a reactive mandate. It has to be called in after the fact,  and so it works by trying to shut the barn door after the horses are out.

In my personal experience, the people of Texas are pretty resilient. They may get clobbered by this storm, but they won't play patsy for the media, either. Indeed, if I were a reporter for CNN, the Washington Post or the New York Times, I would be especially leery of what I asked of whom.

Hunker down, and pray to the Lord. There are bad times a comin'. And remember this: just like charity, preparation begins at home.




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.