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.