By Kirk Petersen
The Supreme Court of South Carolina held yet another hearing December 8 in the nearly decade-long litigation over ownership of dozens of church properties. The case pits adversaries affiliated with the Episcopal Church (TEC) against parties affiliated with the Anglican Church in North America (ACNA).
Half a billion dollars of property is at stake, including the St. Christopher Camp & Conference Center on Seabrook Island and either 28 or 29 church properties. That discrepancy is only one of the many uncertainties in the case.
It’s famously difficult to predict the outcome of a supreme court decision based on the interactions during a hearing between the justices and lawyers for the parties. But in what can only be seen as an ominous sign for the Episcopal Church, a key justice bluntly and repeatedly said that a TEC attorney was misinterpreting his prior ruling in the case. The hearing was streamed online.
The state supreme court appeared to have ruled in 2017 that the disputed properties belonged to TEC, and sent the case back to a circuit court judge for enforcement. Each supreme court justice issued a separate opinion, and different parts of the case appeared to be decided by different 3-2 majorities. Circuit Court Judge Edgar Dickson, after examining the opinions and hearing arguments from the parties, ruled in 2020 that the properties belonged to ACNA.
TEC filed for rehearing with the state supreme court, arguing that Dickson had exceeded his authority and essentially reversed the higher court. But that argument quickly came under fire, when Chief Justice Donald W. Beatty — who had been counted in 2017 as one of the votes awarding the property to TEC — spoke forcefully in the opening minutes of the argument by Bert G. Utsey III, representing the TEC parties.
Utsey said: “The question here before this court is whether the circuit court… can somehow rehear and reach a different result in a case that this court had already decided.”
Beatty responded: “Counsel, let me tell you at the outset, I disagree with you, I think the trial judge did exactly what he was intended, or told to do — not necessarily told to do, but what we expected him to do.” Beatty later said the record in 2017 did not have “sufficient information, on which to base an opinion as to whether or not the national church gets this property, or the local parish…. I was not comfortable with the content of the record.”
“What we saw was that you agreed with the majority, which was Justice [Kaye] Hearn and Justice [Costa] Pleicones with respect to the 28 churches, and that result is what we relied upon,” Utsey said.
“No, no, I did not agree with them” on the 28 churches, Beatty shot back, adding that he only agreed with them on another portion of the ruling. He reiterated that he believed Dickson had acted appropriately in reconsidering the merits of the case, although he expressed no opinion on the content of Dickson’s ruling.
Another key fact is that the two justices who unambiguously sided with TEC in the 2017 ruling are not participating in the rehearing. Pleicones, who wrote the lead opinion, has retired. Hearn — after writing a concurring opinion in the 2017 ruling — recused herself from further participation after controversy arose regarding her support of the TEC faction when her own Episcopal church was preparing to disassociate.
Aside from Beatty, the only justice from 2017 who is participating in the current case is Justice John W. Kittredge, who previously ruled the disputed properties belong to ACNA.
The litigation arose after the bishop and a majority of the congregations of the Diocese of South Carolina disassociated from the Episcopal Church (TEC) in 2012 over doctrinal issues. The churches eventually became part of the Anglican Church in North America (ACNA). Adversaries representing TEC and ACNA have been litigating since 2013 over the enforceability of the so-called Dennis Canon, the TEC canon that states “All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located.”
The Dennis Canon was adopted in 1979, when the churches already existed. The case turns on whether the disassociating churches had agreed to be governed by the canon.
The state supreme court gave no indication of when it would issue a ruling. When it first addressed the case, nearly two years passed between oral arguments and the 2017 ruling.