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Noted attorney debunks Episcopal Seminary Professor's Testimony in SC Affidavit

Noted attorney debunks Episcopal Seminary Professor's Testimony in SC Affidavit
Federal court is asked to rethink its ruling

News Analysis

By Mary Ann Mueller
VOL Special Correspondent
September 23, 2013

The job of a good defense attorney is to poke holes in the prosecution's case or, in this instance, The Episcopal Church's case.

The plaintiff in the South Carolina case is The Episcopal Church IN South Carolina's Provisional Bishop Charles vonRosenberg and the defendant is The Episcopal Diocese OF South Carolina's Bishop Mark Lawrence. However the caption page lists The Right Reverend Charles G. vonRosenberg as "Provisional Bishop of the Protestant Episcopal Church in the Diocese of South Carolina," in an apparent violation of South Carolina Circuit Court Judge Diane Goodstein's January 31, 2013 injunction that states: "No individual, organization, association, or entity, whether incorporated or not, may use, assume, or adopt in any way, directly or indirectly, the registered name and the seal or mark of The Protestant Episcopal Church in the Diocese of South Carolina as are set out below or any names or seal that may be perceived to be those names and seal or mark."

Meanwhile, the defendant Bishop Lawrence is linked with 10 "John Does" ... "being fictitious defendants whose names presently are unknown." Nowhere in that stream of legalese is Bishop Lawrence referenced as The Diocese of South Carolina's XIV Bishop, continuing bishop or even former bishop. Other than being titled "The Right Reverend", Mark J. Lawrence is not referred to as a bishop at all on the caption page where Charles vonRosenberg is, albeit as provisional bishop.

Civil action number 2:13-cv-00587-CWH had been temporarily pending in the United States District Court for South Carolina in Charleston. Recently, Senior U.S. District Judge Weston Houck kicked the case back to South Carolina Court of Common Pleas First Judicial Court Judge Goodstein... It is from her Dorchester County courtroom that the case will continue without prejudice, meaning that Judge Houck wouldn't make any determination on the lawsuit so as not to influence in anyway Judge Goodstein's ultimate ruling in the original plea. However, he will entertain reinstating the case if "issues pertaining to this action will not be disposed of in state court."

Three times, Judge Houck makes mention of the fact that Bishop vonRosenberg was aware of Judge Goodstein's original temporary restraining order (TRO) and then temporary injunction.

On page 15 of the 22 page federal court order, Judge Houck explains, "Despite Bishop vonRosenberg's argument to the contrary, the state action complaint plainly alleges that 'Charles vonRosenberg is an agent of ECSC,'" ... "and that through its agent, Charles vonRosenberg, improperly used the name of the Diocese of South Carolina, or a name so similar in nature to the other service marks to cause confusion with the public ..."

On the next page, the federal judge writes, "Moreover, Bishop vonRosenberg is not a stranger to the state action. Indeed, he twice received notice that he was precluded from employing the disputed marks due to a TRO and preliminary injunction issued in that proceeding. This, the Court concludes that at the time he filed this federal action as provision bishop-central to his dispute here-were pending in state court."

Then again on Page 19, Judge Houck continues, "As discussed above, the controversy giving rise to this action is underway in state court. The state court action and this action involved overlapping issues, thus, presenting a clear entanglement threat. ... Again, Bishop vonRosenberg has twice been served with notice of the state court injunction, precluding him from using the marks at issue."

"... Bishop vonRosenberg's claim seeks the same relief as TEC's counterclaim in the state court," Judge Houck continues. "In addition, the desired relief here directly conflicts with a state court ordered temporary injunction with which Bishop vonRosenberg has been twice-served with notice before filing this action."

The federal jurist continues, "These facts alone suggest procedural fencing, given that Bishop vonRosenberg filed this action with full knowledge that service mark control and the Diocese's legal status as a whole were already an issue before the state court. Regardless, excepting any indication of forum shopping consideration of federalism, efficiency, and comity weigh heavily against this Court maintaining jurisdiction over this action."

It looks as if Judge Houck has bought into The Episcopal Church's claim of a hierarchical structure.

"This is the point of contention between the parties; Bishop Lawrence asserts that Bishop vonRosenberg heads the Episcopal Church in South Carolina ('ECSC'), an unincorporated associated established to supplant Bishop Lawrence's disaffiliated diocese," he writes. "In opposition, TEC, as a hierarchical religious organization, -5- or one comprised of subordinate units and governed by a common authority, recognized Bishop vonRosenberg 'as the sole representative [and director] of the Diocese ...' and its property."

The fifth footnote at the bottom of Page 3 reads, "The Canons of the Episcopal Church clearly establish that it is a hierarchy." Dixon v Edwards is cited as is Hiles v. Episcopal Diocese of Massachusetts to support the Court's belief that The Episcopal Church is hierarchical.

"It is undisputed that the Episcopal Church is hierarchical in structure; there are no judicial holding to the contrary," the footnote concludes.

The 2002 Dixon v Edwards case revolved around Suffragan Bishop Jane Dixon and Christ Episcopal Church in Accokeek, Maryland, a suburb of Washington, DC. At the time, Bishop Dixon was Bishop of Washington Pro Tempore (provisional) between the episcopal reigns of the VIII Bishop of Washington Ronald Haines and the VIII Bishop of Washington John Chane.

St. John's Parish at Christ Episcopal Church, then a 300-year-old congregation in a liberal diocese, with a membership of fewer than 200 and an ASA hovering around 60, called the Rev. Samuel Edwards as its new rector. An Anglo-Catholic conservative, Fr. Edwards was graduated from Nashotah House and was serving in the Diocese of Forth Worth and was also the executive director of Forward in Faith-North America. Bishop Dixon put her foot down taking offense to Fr. Edwards theological conservatism and refusing to give him faculties to minister as an Episcopal priest in her diocese. Before the confrontation was over, the church ended up in the U.S. District Court of Maryland. The litigation wound its way up to the US Fourth Circuit Court of Appeals which upheld a lower court's summary judgment in Bishop Dixon's favor.

The crux of the case was whether or not The Episcopal Church was hierarchal and if Bishop Dixon had hierarchal authority over Fr. Edwards.

Amici Curiae briefs were filed on both sides. Bishops Jack Iker (III Fort Worth) and Robert Duncan (VII Pittsburgh) were asked by the appellate court to file as friends of court for the Appellants - Fr. Edwards and St. John's Vestry. The bishops, in their brief, stated that the lower court misunderstood the polity of The Episcopal Church, specifically in reference to the nature, power and rule of a bishop.

Filing an Amicus Curiae brief supporting Bishop Dixon were 26 Episcopal House of Bishop members including Katharine Jefferts Schori, who was the III Bishop of Nevada at the time. Joining the future presiding bishop in the brief showing support for the Washington Bishop Pro Tempore were: Bishops Peter Lee (XII Virginia); Neff Powell (V Southwestern Virginia); Robert W. Ihloff (XIII Maryland); Clifton Daniel (VII East Carolina); Michael Curry (XI North Carolina); James A. Kelsey (X Northern Michigan); Carolyn Tanner Irish (X Utah); Orris G. Walker (VII Long Island); Charles E. Bennison (XV Pennsylvania); William Swing (VII California); Jon Bruno (VI Los Angeles); Robert Ladehoff (VIII Oregon); William Gregg (VI Eastern Oregon); Vincent Warner (VII Olympia); James Waggoner (VIII Spokane); Harry Bainbridge (XIV Idaho); and Richard Chang (IV Hawaii).

Also: Chester Talton, (Suffragan Los Angeles); Robert Anderson (Assistant Los Angeles); Gary Gloster (Suffragan North Carolina); John Rabb (Suffragan Maryland); Allen Bartlett (XIV Pennsylvania - retired); James Montgomery (IX Chicago - retired); Theodore Eastman (XII Maryland - retired); and Ronald Haines (VII Washington - retired).

The lingering notion that The Episcopal Church is hierarchical from General Convention on down continues to be a concept which needs to be addressed as The Episcopal Church litigates across the United States, most recently in Texas, Illinois and South Carolina. TEC's hierarchical trump card has also come up in Georgia, California and Virginia.

Speaking for The Episcopal Church as an expert witness in Episcopal Church history was General Theological Seminary Professor Robert Bruce Mullin, a self-described GTS's Society for the Promotion of Religion and Learning Professor of History and World Mission and Professor of Modern Anglican Studies, spoke for The Episcopal Church as an expert witness. The latest accolade was bestowed on him at the 2012 General Convention where he was elected by the House of Bishops as The Episcopal Church's official church historiographer. He was nominated to that position by the Presiding Bishop.

The GTS history professor secured his higher education at William & Mary, Yale University, Yale Divinity School and Berkeley Divinity School. His chosen subject of study was Christian history. He has taught religion and history at Yale, Duke Divinity School, North Carolina State, University of North Carolina-Chapel Hill, and Wesleyan. He is also the author of seven books and numerous published articles.

Mullin defends the "hierarchical" nature of The Episcopal Church from a historical viewpoint. Since 2007 The Episcopal Church's historiographer has been paid nearly $900,000 for his testimony in support of The Episcopal Church's hierarchical claim from the pages of history.

Speaking for the realigning South Carolina Diocese, by way of a well-reasoned 133-page affidavit marked as Exhibit 13, was New York attorney Mark McCall who looked at The Episcopal Church's hierarchical claim through a strictly legal not theological or historical lens.

As a senior fellow of the Anglican Communion Institute (ACI), McCall has engaged in extensive study of the polity, legal structure and history of The Episcopal Church and is considered to be an expert in Episcopal Church canon law by those in Anglican circles.

In 2008 he demonstrated, through closely analyzing The Episcopal Church's structure from a legal standpoint, that The Episcopal Church is indeed hierarchical to a point. In an ACI paper entitled "Is The Episcopal Church Hierarchical?" McCall demonstrates that The Episcopal Church is hierarchical but that the hierarchy is dispersed among its member dioceses and diocesan bishops and not concentrated in a central body (General Convention) or office (presiding bishop). There is no central authority figure like the current pontiff is with the Church of Rome, the reigning monarch is in the Church of England, or the patriarch is in the Orthodox tradition.

In carefully examining Mullin's historical arguments, attorney McCall concludes that the history professor's "account is profoundly mistaken and contains numerous errors, misrepresentations and failure to understand relevant legal concepts."

"... Mullin concedes, as he must, that TEC's governing document, its Constitution, contains no explicit language giving any central body hierarchical supremacy over its member diocese in recognizable legal language," McCall writes. "He claims instead that such supremacy was an 'assumption' that is only 'reflected,' not stated, in the church Constitution."

McCall continues to explain that Mullin "goes so far as to claim that while 'explicit' language of supremacy was necessary; for other churches, for TEC 'language of supremacy the Constitution was unnecessary and, indeed, inappropriate.'"

The attorney fleshes out his affidavit for the defense by pointing out that the professor justified his flawed historical argument for the plaintiffs in four historical points of view: the hierarchical nature of The Episcopal Church was 'evident' during the church's 1784-1789 church's organizational period; TEC's hierarchical nature was 'reflected' in the 1789 Constitutions and Canons; that the supremacy of General Convention has continued to be 'reflected' in its actions from 1790 until the present; and 19th century commentators 'unequivocally viewed' the General Convention as TEC's supreme authority and the diocesan accession was irreversible.

McCall is quick to note that Mullin does not anywhere say that TEC's Constitution definitively states that General Convention 'is' the supreme authority of The Episcopal Church.

The question as to the legal hierarchical nature of The Episcopal Church is going to hang over all litigation until jurisdictional courts come to view TEC's governance through their legal eyes and not historical or theological lenses.

Case in point: Bishop vonRosenberg doesn't know how to take "no" for an answer, a common malady in the TEC legal mindset. TECinSC's provisional bishop is quickly returning to the federal court asking that Judge Houck reconsider his Aug. 23 order, trying to poke holes in the precedents the court used to come to its decision to bolster his argument against the judge's verdict. The bishop, mitre-in-hand, respectfully claims the judge made two fundamental errors in his ruling: basically that he is claiming the court is wrong and the judge is incorrect in his conclusions.

Bishop vonRosenberg is asking Judge Houck's Court to "reconsider its Order abstaining and dismissing this action, deny Bishop Lawrence's motion to dismiss or in the alternative to abstain or stay proceedings, and address the merits of Bishop vonRosenberg's motion for a preliminary injunction," because "this case quite simply does not present the 'exceptional circumstances' necessary to justify a federal court's surrendering its jurisdiction."

This time around, Judge Houck will not only have McCall's affidavit to again reference; he'll also have Adams County Illinois Circuit Court Judge Thomas Ortbal's recent Sept. 9 Findings, Opinion and Order in the Diocese of Quincy v The Episcopal Church case to study.

The Anglican Curmudgeon A.S. Haley explains the importance of the Quincy Findings, Opinion and Order as "a roadmap for other judges-both trial and appellate judges ..." to use in wading through TEC's various law suits.

Haley, an attorney and canon lawyer in his own right, feels that at this point in time Judge Ortbal "is the most knowledgeable judge in the entire United States on the history and polity of the Episcopal Church (USA)."

The linchpin of the various TEC court battles brewing around the country is that The Episcopal Church has a top-down hierarchical nature and TEC is busy using a series of smoke and mirrors and skewered history to try and prove the point, trotting out Mullin as their expert historical witness. The Illinois judge has spent the time and intense study needed to blow through the smoke and get a true legal not historical picture of The Episcopal Church's polity.

"... most judges have very little time to devote to any one case," Haley explains. "In this instance, Judge Ortbal of the Adams County Circuit Court spent literally hundreds of hours presiding over pretrial proceedings and the trial itself, together with another hundred or more hours going patiently through the mountain of exhibits introduced at trial and the post-trial briefs of the various parties."

Now that roadmap is available to Judge Houck as he reconsiders vonRosenberg's 24-page Motion for Reconsideration filed by TECinSC Chancellor Thomas Tisdale who used to be chancellor for The Episcopal Diocese of South Carolina.

Mary Ann Mueller is a journalist living in Texas. She is a regular contributor to VirtueOnline.

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