Decision in South Carolina Case Expected Soon

David Virtue david at
Thu Dec 18 18:08:57 EST 2014

Decision in South Carolina Case Expected Soon

By Allan S. Haley
December 11, 2015

Today, at the request of Circuit Judge Diane Goodstein, both sides in
the South Carolina case are submitting proposed forms of a final
decision and order for her to sign. She will most likely use one of the
two versions as a basis for her own written decision, which she could
issue as early as next week.

The South Carolina decision, when it comes, will not be written on a
blank slate. As a trial judge, Judge Goodstein is bound to follow and
apply precedents of the South Carolina Supreme Court. In 2009 that Court
handed down its decision in the case of All Saints Parish Waccamaw v.
Protestant Episcopal Church in South Carolina, and thereby established
that church property disputes in the State are to be decided under
"neutral principles of law."

In the context of the present dispute, this means that the Court will
base its final decision upon a close examination of the various deeds
and other documents evidencing ownership and title, as well as the
governing documents (constitution, canons, articles and bylaws) of the
parishes, the Diocese, and of the Episcopal Church (USA) itself.

As to the ability of the Diocese to withdraw from ECUSA, it would seem
that it has already been finally adjudicated (by the courts of Illinois)
that there is no language in the Constitution or canons of ECUSA which
would prevent a Diocese from withdrawing. That is also a decision drawn
under neutral principles, and so is in harmony with the method shown in
the All Saints Waccamaw case. I should think that Judge Goodstein will
find the reasoning of those two cases both persuasive and binding upon

Resolution of that question will not, however, necessarily resolve the
issue of property held in trust. Under the Waccamaw decision again, an
express written trust of some kind will be required -- one that
satisfies the Statute of Frauds under South Carolina law (it must be in
writing, and signed by the actual owner of the person so placing the
property into a trust). The Dennis Canon alone will not work -- that was
one of the express holdings in the Waccamaw case which will be binding
upon Judge Goodstein.

There was no evidence of any such trust document or documents offered at
the trial, to my knowledge. Consequently, the decision on this point,
while open, should not be a difficult one under neutral principles.

That leaves as a final question whether each parish duly followed South
Carolina law and procedure in amending its articles and bylaws so as to
remove any affiliation with ECUSA -- although I cannot see how it would
be crucial, if the Court decides that the Diocese properly withdrew. It
is the Dioceses, and not the individual parishes, that make up the
actual membership of ECUSA itself.

A parish affiliates with ECUSA by virtue of being a member of an ECUSA
Diocese, and when that Diocese withdraws, the parish's affiliation is
thereby terminated as well -- as long as the parish chooses to stay a
member of the withdrawing Diocese. Here the Diocese freely allowed its
member parishes to choose which affiliation they wanted to keep, and did
nothing to prevent the withdrawal of those that wanted to remain with

One hopes, therefore, that neutral principles will again show the
logical way to resolve this unfortunate dispute, which was started when
those who were allowed to remain Episcopalians decided, in league with
ECUSA's leadership, that being allowed to retain their own properties
was not enough -- they just had to have it all. (The Diocese sued ECUSA
initially only to keep its own name and trademarks; it was ECUSA, and
later its rump group, that broadened the suit so as to lay claim to all
of the diocesan and parish real and personal property.)

Stay tuned -- we should know shortly what the Judge decides.

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