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:


video



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.







Thursday, August 3, 2017

Massive Conflict of Interest Taints South Carolina Ruling (UPDATED)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What do you do?

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

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

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

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

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

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

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

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

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

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

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

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

The most specifically applicable Canon, however, is Canon 3, of which paragraph B.5 states:
A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability or age . . .
Section E of Canon 3 is even more specific to this case (the asterisks refer to definitions here):
A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
. . .
(c) the judge knows* that he or she, individually or as a fiduciary, or the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household,* has an economic interest* in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis* interest that could be substantially affected by the proceeding;
Can it be concluded, on the face of things, that any economic or other interest of Justice Hearn in the case is "de minimis" (i.e., trivial)? Who can say, since she never has made a public disclosure of her relationship with her parish, her diocese or her church in advance, as is customary in such situations, and is provided for under Canon 3.F? What one can say, however, is that the lack of any such disclosure gives the appearance of impropriety.

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

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

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

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

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

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

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