South Carolina fires first salvo in legal battle with TEC


South Carolina fires first salvo in legal battle with TEC


George Conger

A South Carolina court has been asked “Who and what are Episcopalians and how is that church organized?” after the Diocese of South Carolina filed a lawsuit yesterday against the national Episcopal Church.  The 65-page complaint asks the court to issue an injunction banning Presiding Bishop Katharine Jefferts Schori and her allies in South Carolina from using the name or presuming to act on behalf of the diocese and further asks the court to affirm the legality of the diocese’s secession from the General Convention of the Episcopal Church of the United States of America.

Filed on 4 January 2013 in the First Judicial Circuit Court in Dorchester County by the trustees of the Episcopal Diocese of South Carolina and 16 parishes, the complaint asks the civil courts to adjudicate the same general questions currently before the Texas Supreme Court in the Diocese of Fort Worth case. South Carolina has asked the court to give legal scrutiny to Bishop Jefferts Schori’s claim the Episcopal Church of the United States of America is a hierarchical body with final authority vested in the national church.

Yesterday’s action follows a generation of sparing between liberals and conservatives in the Episcopal Church over issues of doctrine and discipline.  However, the legal and ecclesiological issues of diocesan autonomy and national authority arose in 2006 after Bishop Jefferts Schori was elected presiding bishop. Unlike her predecessor Frank Griswold who told the Diocese of Louisiana that ultimate authority rested in the diocese, Bishop Jefferts Schori has argued that ultimate authority resides in the General Convention and in her office.

The pleading alleges three causes of action. It states the national church claims the “right to ownership and possession” of diocesan and congregational property “even though there are no documents that have been signed” by the diocese and congregations – the plaintiffs -- “that expressly or impliedly create a property interest in favor” of the national church – the defendant.

The second cause of action alleges the defendant had unlawfully used “reproductions, copies or imitations” of the plaintiff’s “registered service marks” – the “Diocese of South Carolina”, the “Episcopal Diocese of South Carolina”, the “Protestant Episcopal Church in the Diocese of South Carolina”, and the diocesan seal.

The third cause of action alleges the defendant and “persons under its direction and control” had “assumed, used and adopted” the “name, styles and emblems” of the diocese.

The plaintiffs have asked the court to issue an order stating the national church has no right, title or interest in the real or personal property of the Episcopal Church in South Carolina, to forbid Bishop Jefferts Schori and her allies from using the name, symbols or seal or claiming control or interest in the civil and ecclesial entity known as the Diocese of South Carolina, and asks for a legal declaration from the court the Episcopal Diocese of South Carolina has lawfully withdrawn from the General Convention of the Episcopal Church.

Mr. Thomas Tisdale, Bishop Jefferts Schori’s attorney in South Carolina, declined to comment on the pleadings.  A spokesman for the presiding bishop told Anglican Ink “the Episcopal Church has not received the legal papers in any such lawsuit in South Carolina and therefore cannot comment at this time.”

The pleading stated the court must step into the dispute between the national church and the diocese in light of recent actions taken by the national church and its allies.

On 17 October 2012, Bishop Jefferts Schori announced she had suspended Bishop Mark Lawrence of South Carolina after the church’s Disciplinary Board for Bishops had certified to her that he had abandoned the Episcopal Church based upon charges brought by loyalist members of the diocese.

The rule against double jeopardy found in Anglo-American jurisprudence does not apply to Episcopal Church legal proceedings, and the Disciplinary Board in 2012 ruled that the same charges it had dismissed in 2011 could be laid against Bishop Lawrence.

The suspension of Bishop Lawrence with the intent to depose triggered a resolution passed by the standing committee that would disaffiliate the diocese from the national church in the case of an attack against its bishop through the manipulation of the canons.  The day the announcement of his suspension was made public, the standing committee noted the disaffiliation resolutions had been triggered, and issued a call to convention to the diocese, which on 17 Nov affirmed the secession.

Before the special convention met the steering committee announced that it, not Bishop Lawrence and majority faction, was the lawful Diocese of South Carolina. “We write to assure you that The Episcopal Church in the Diocese of South Carolina is continuing,” they said on 11 Nov, and would “reorganize our continuing Diocese over the next few months.”

On 3 Nov, an advertisement affixed with the diocesan seal was placed in two newspapers by two congregations allied with a "steering committee" of loyalists int he diocese empowered by Bishop Jefferts Schori stating that the “Episcopal Diocese of South Carolina” “will continue” as part of the Episcopal Church with “new leadership and a new Bishop.”

On 7 Nov the same group, claiming now to be the Episcopal Diocese of South Carolina invited the diocese to a “clergy day” on 15 Nov when they would receive a report from “the Steering Committee”. At the meeting, Mr. Tisdale stated there was no functioning ecclesiastical authority in the diocese, and that the presiding bishop had taken charge.  Those clergy and congregations who had affirmed secession from the Episcopal Church, he said, were “no longer Episcopal.”

However, in a 4 January 2013 letter to the diocese, Bishop Lawrence affirmed he remained the Bishop of the Episcopal Diocese of South Carolina and that “while the diocese has disassociated from the Episcopal Church, it remains a part of the Anglican Communion.”

In its report on the lawsuit, the Episcopal News Service, the national church’s press office, argued Bishop Lawrence’s claims were without merit and could not claim to be part of the Anglican Communion.

“Such a designation requires action by the Anglican Consultative Council, which concluded a 12-day meeting in Auckland, New Zealand, on Nov. 7. No action on South Carolina was taken during that meeting, and the council will not meet again until May 2016.”

However, the church press office claim as to what constitutes membership in the Anglican Communion is at odds with the definition given by the 1930 Lambeth Conference, and cited in the preamble to the constitution of the Episcopal Church of the USA.  Under the Lambeth Conference standard and per the constitution of the Episcopal Church, diocesan supporters tell Anglican Ink, Bishop Lawrence’s claims are not unreasonable.

In response to the secession, on 8 Dec 2012, the steering committee announced that Bishop Jefferts Schori would “convene” a special convention of the diocese for 26 January 2013 to elect a provisional bishop for the Episcopal Diocese of South Carolina.

The steering committee explained that “Episcopalians in the diocese are without a bishop after the Presiding Bishop accepted the renunciation of Mark Lawrence on December 5 and released him from ordained ministry. The announcements by local church leaders that they have left The Episcopal Church has left the Diocese with no Standing Committee, which normally would lead a diocese in the absence of a bishop.”

However, in a paper released on 11 Nov, the Anglican Communion Institute the Episcopal Church had “no canonical basis for the actions that the Presiding Bishop and pro-TEC local parishes appear to be taking. There is no canonical authority for an ‘Interim Bishop’ to be ‘appointed by the Presiding Bishop’ in an existing diocese. Nor is there any canonical basis for a self-appointed ‘Steering Committee’ to attempt to ‘reorganize’ an existing diocese, to ‘communicate with the Presiding Bishop’ or be advised by other bishops of the church.”

The independent church think-tank further stated the “absence of any canons authorizing what the Presiding Bishop and others are doing is proof that TEC is operating under a profoundly flawed understanding of the church’s polity,” and added the course taken was “flagrantly in violation of TEC’s canons.”

In a 4Jan 2013 press statement the diocese said it acted to prevent the national church from “hijacking” the name and assets of the diocese worth over $500 million dollars.

"Like our colonial forefathers, we are pursuing the freedom to practice our faith as we see fit, not as it is dictated to us by a self-proclaimed religious authority who threatens to take our property unless we relinquish our beliefs,” Bishop Lawrence said.

The Rev. Jim Lewis, Canon to the Ordinary of South Carolina stated “many of our parishes are among the oldest operating churches in the nation.  They and this Diocese predate the establishment of The Episcopal Church. We want to protect these properties from a blatant land grab.”

“We have existed as an association since 1785. We incorporated in 1973; adopted our current legal name … in 1987; and we disassociated from the Episcopal Church in October of 2012. The Episcopal Church has every right to have a presence in the area served by our Diocese – but it does not have a right to use our identity.  The Episcopal Church must create a new entity.”

The presiding bishop’s legal strategy of recognizing a minority faction loyal to the national church as the “true” diocese has been employed in litigation with the breakaway dioceses of Pittsburgh, Quincy, San Joaquin and Fort Worth.  Litigation has ensued in each instance.  The Texas Supreme Court heard oral argument last year on similar questions raised in Friday’s South Carolina legal pleading, and is expected to release its decision within the next six months.

The Bishop of Fort Worth, the Rt. Rev. Jack Iker told Anglican Ink: "I applaud this initiative by the Diocese of South Carolina to thwart the hostile take-over tactics of TEC to seize control of their buildings and assets.  It is clear that a rump group of TEC loyalists is without standing before the law in their efforts to replace the duly elected diocesan authorities."

South Carolina Lawsuit 2013.01.04