Fisking a SC Blogger Who Distorts the Facts and the Law
By A.S. HALEY
THE ANGLICAN CURMUDGEON
February 1, 2013
All right -- normally I do not engage laypersons who are ignorant of the law, but in this case (because so many people are being misled), I shall make an exception to that policy. What this South Carolina (fellow) Episcopalian has posted on his blog is simply beyond the pale, and since he has chosen to make his lucubrations public, I shall respond to him in the same fashion. (In other words, there is no need, in this case, to observe the niceties of Matthew18:15-17.)
And please do not mistake my intent here, which is solely to rebuke someone who so distorts the law to others. I honor the law, and have served it for the better part of my adult lifetime. I continue to honor it even when it makes what I think is a wrong decision, or strays from the correct path dictated by hundreds of years of precedent. Criticism of such errors is completely valid -- and occurs here frequently. But what must not go unremarked, or unopposed, is an intentional and willful dragging down of the law, by misrepresenting and denigrating its decisions, just because it happens to have called someone on the carpet for playing charades.
And that is the specimen we have before us. No link shall be provided to the Episcopal blogger's Website, in order to prevent his audience from being even bigger -- you will read here his entire post, and so need not go there yourself to read the same ignorant words again.
This particularly ill-informed Episcopalian writes, to those who do visit his Website, as follows (his words are in black, and my fisks of what he writes are hereafter named):
'Diocese of Diane' Hearing Postponed
Right off the bat, our Episcopal co-blogger discloses his bias (and don't get me wrong; biases are fine -- we all have them, your Curmudgeon included). But to use that title shows an extreme bias, which borders on the like of "My mind is made up -- don't try to confuse me with the facts." The "Diane" of his headline is the Hon. Diane Goodstein, Chief Judge of the Circuit Court of South Carolina in Dorchester County.
A week ago Wednesday (January 23), she issued a Temporary Restraining Order ("TRO") which stopped in its tracks the ongoing identity theft which up until then was being committed (and accompanied by cheers from our co-blogger and his comrades-in-arms) by the self-appointed "Steering Committee" of the continuing Episcopalians in South Carolina. They were acting under the guidance of the Presiding Bishop's hired attorney (and former Chancellor of the Diocese whose identity they were misappropriating), Mr. Thomas Tisdale, Esq.
Judge Goodstein's temporary restraining order prevented Mr. Tisdale and his cohorts from usurping the name of the legitimate Episcopal Diocese of South Carolina, founded in 1785 and led by the Rt. Rev. Mark Lawrence (formerly of the Episcopal Church (USA), and now -- still regarded by everyone but ECUSA as an Anglican bishop -- of the Anglican Communion at large). The order threw a monkey wrench into Mr. Tisdale's and his friends' plans to hold a convention in which they could proclaim themselves as the genuine "Episcopal Diocese of South Carolina", and our co-blogger was not happy with it.
So now, let us parse his extremely biased headline in detail. "Diocese of Diane" is a snide attempt to insinuate that by her order, the Hon. Judge Goodstein forced the remnant group into a mold it does not like, and recognized Bishop Lawrence's Diocese as having certain legal rights, when she should have denied it any legitimacy altogether. What she in fact did, however, was to prohibit our co-blogger's group from arrogating to themselves the names and legal identity of Bishop Lawrence's Episcopal Diocese of South Carolina. They tried to usurp the rights to those registered trademarks under South Carolina law by simply and brazenly using them in public and on the World-Wide Web without permission.
In plain terms, the remnant Episcopalians tried to assume an identity that was not theirs to take. They attempted their coup without going to court first to assert their claims; they simply began using the names and the diocesan seal, both in their communications to clergy in South Carolina, and on the Web. So Judge Goodstein's order put a stop to that theft, and our co-blogger does not like her having done that. He lamely tries to strike back at her by insinuating that the true and lawful Episcopal Diocese of South Carolina (in existence since 1785, and still led by Bishop Mark Lawrence, despite what he or ECUSA thinks) has become the honorable Judge's own protectorate, aka "the Diocese of Diane."
Notice the deep disconnect here: the Episcopal Diocese of South Carolina has existed continuously as an entity in South Carolina since 1785 -- before ECUSA itself ever came into being. Indeed, it was with the consent of the Episcopal Diocese of South Carolina that ECUSA itself did come into being, in 1789. And yet our fellow Episcopalian blogger, who ought to know his Church's history, tries to make it appear as though Bishop Lawrence's Diocese is the arbitrary invention of a South Carolina Circuit Court Judge just last Wednesday, January 23. Do you begin to see what I mean by characterizing such self-induced myopia as an extreme bias?
Then we have the rest of the headline: "Hearing Postponed." This suggests that the hearing on the issuance of the preliminary injunction (which replaces the initial TRO until there has been a trial and a final judgment) has been adjourned to some certain date in the future. But that implication is simply not true. Once again, our co-blogger has tried to tilt the table, and assert as fact that which is not fact. There is no "postponed" date for the hearing; as we shall see below, the injunction will remain in effect until there is a final judgment, which could be (theoretically, if ECUSA wants to drag things out) years away. Judge Goodstein has now signed (with the consent of Mr. Tisdale -- see below) a preliminary injunction (confusingly called a "temporary injunction" in the courts of South Carolina) which will remain in effect until either she modifies it for cause shown, or until there is a final judgment in the case.
With that legal background, you are now in a good position to appreciate the extent of the Episcopal blogger's further misstatements and false claims. He next asserts:
Both sides agree to a temporary extension of Judge Goodstein's controversial restraining order
Well, no -- not in fact. There was agreement between both sides, but it was not to any "temporary extension" of the TRO, which by statute cannot last for more than ten days. That, indeed, is what Mr. Tisdale first proposed to the court, but Alan Runyan (Bishop Lawrence's attorney) objected that South Carolina law allowed no such extension of a TRO, and that the only way to keep a restraining order in force was to enter a preliminary (called "temporary" in South Carolina) injunction pending the trial of the case. And eventually, by signing just such an injunction, Mr. Tisdale conceded that Mr. Runyan was correct. By law, again, it will remain in effect until the Judge who issued it agrees to modify it, or dissolve it, for good cause shown.
And if it is not so modified or dissolved before the trial in the underlying case occurs, then it maintains the status quo ante until the case can be tried. By that, I mean that it keeps the parties in the same position they were before the dispute between them arose -- it is designed to prevent one of the parties from unilaterally moving the goalposts before the game can be played (i.e., before the case can be tried). At the end of the trial, the court will decide either to make preliminary injunction permanent, or else to dissolve it once and for all.
So to imply that there is some future date certain when the parties and the Judge have agreed to revisit the injunction is simply false on its face. And to characterize the order as "controversial" is again, an extreme overreach -- but see more on that point below. Our co-blogger's opinionated piece continues, with my highlights of his distortions:
BLOGGER: ST. GEORGE - A full hearing on a restraining order issued last week by a controversial Dorchester County Judge has been postponed by mutual agreement between the Episcopal Church and the renagade group headed by ex-bishop Mark Lawrence. No reason was given.
HALEY: This report demonstrates an unbelievable extreme of bias. Because she issued the TRO as requested, Judge Goodstein is suddenly now "controversial." The "group" that obtained the order is not called a "Diocese"; and more to the point, it is a "renagade" [sic - the word is spelled renegade] group. It is headed by an "ex-bishop" -- a statement which has truth value only within the limited (but, hey -- "inclusive") confines of ECUSA, and not at all within the wider Anglican Communion, the majority of whose provinces treat ECUSA as the "renegade," and regard those whom ECUSA evicts as faithful soldiers for Christ, whose eviction is a badge of merit.
Next, there was no "postponement," in the sense of agreeing upon a date on which to take up the injunction again. Instead, a South Carolina Episcopalian, wishing to inform himself/herself of the facts, would never learn from this extremely biased account that the attorney for the Episcopal Church (USA) -- the defendant in the pending lawsuit -- voluntarily and freely consented to the issuance of the preliminary injunction, which remains good until modified, or merged into a permanent injunction following trial.
"No reason was given" -- hah. The reason was not given because there was no "postponement" to explain. The law required that the TRO be either replaced with a preliminary injunction, or dissolved after ten days. For once, the attorneys cooperated and jointly agreed to the first alternative. The reason for that agreement was, to speak in plain terms which our co-blogger simply cannot stand to hear, that ECUSA's attorney Mr. Tisdale could read the handwriting on the wall: he knew that his side would be unable to prevent the Judge from transforming the TRO into a preliminary injunction against his clients on February 1, regardless of what he said in opposition. So to forestall that open defeat, he consented to the issuance of the injunction in advance, without the necessity of any hearing.
Now: do you begin to see just how extremely biased this blogger's report of the proceedings is? If not yet, by some happenstance of (mis)communication, then please read on.
BLOGGER: S.C. Circuit Judge Diane Goodstein had scheduled the hearing for tomorrow in Columbia, but both parties agreed to an indefinite delay. A new date has not been set for the hearing, but either party may request it at any time.
HALEY: Not exactly: as we have noted above, ECUSA's attorney Mr. Tisdale agreed not to oppose the issuance of a preliminary injunction at the hearing scheduled for February 1 in Columbia (because that is where Judge Goodstein would be presiding on that date). There could have been no agreement to "postpone" the decision on a preliminary injunction "to an indefinite date", because as I explained above, that is not the way injunctions work. The TRO was going to expire by law on February 1, and unless it was replaced by a preliminary/temporary injunction, the remnant Episcopalians would have been free to resume their charades.
So there was no "postponement" of any kind: the injunction went into effect a day earlier than scheduled, thanks to Mr. Tisdale's cooperation.
BLOGGER: Goodstein issued the order ten days ago at the request of the embittered Lawrence and his breakaway "diocese" as way of disrupting last Saturday's election of his successor, and embarrassing the Presiding Bishop who participated in the weekend of celebration in Charleston.
HALEY: Oh, dear -- oh dear. Not biased in the slightest, are we? Bishop Lawrence went to court to prevent the blatant theft of his Diocese's identity, by those who were (without any court order in their favor) simply acting as though they had every right to use the Diocese's corporate seal and name. And that makes him "embittered"? From the blogger's tone, rather, it would seem that the pot is trying to call the kettle black.
"Breakaway" is one of those loaded adjectives that could just as easily be turned upon its user. Yes, Bishop Lawrence's Diocese "broke away" from the Episcopal Church (USA), but only after the latter body had already broken away from the faith once delivered to the saints. Then ECUSA tried illegally to "break away" Bishop Lawrence from the Diocese that elected him and still honors him as their faithful Shepherd.
And ... "disrupt"? Please. Who is it that took upon herself to proclaim that Bishop Lawrence had "voluntarily renounced his orders" in the Church in which he became a bishop, without any written letter to her to that effect? And thereafter, who is it that encouraged her agents to engage in overt theft of the identity of Bishop Lawrence's Diocese? Talk about disrupting . . . again, this is one Episcopalian's projection of what the Episcopal Church (USA) tried to do to +Mark Lawrence and his Diocese first. And to note that fact says everything needed to be said about just who "embarrassed" whom.
BLOGGER: Lawrence and his followers convinced Goodstein that they own the names "Diocese of South Carolina," "Episcopal Diocese of South Carolina, and "Protestant Episcopal Church in the Diocese of South Carolina Inc," and its corporate seal even though they claim they are no longer in the Episcopal Church.
HALEY: Memo to a blogger ignorant of the etymology of "Episcopal": the word means "of or pertaining to a bishop", and not "of or pertaining solely to a certain Protestant church founded in the United States in 1789." At least half a dozen other churches in the Anglican Communion describe themselves as an "Episcopal" (i.e., "bishop-led) church; ECUSA has (and could never have) a monopoly on the adjective it chooses to describe itself.
And on this very point our Episcopal co-blogger betrays his profound ignorance of current reality. He simply assumes as a given that the Episcopal Church (USA) is the only "episcopal" and "Anglican-Communion-sanctioned" entity in the United States. Well, guess again: by her increasingly divisive and arbitrary actions, the Presiding Bishop has alienated more and more of the members of the Anglican Communion, to the point where only a minority of Anglicans continues to acknowledge her position in the Communion.
To the great majority of the Anglican Communion, the Presiding Bishop of ECUSA is an Anglican heretic -- and not only that, but because of her lofty title, she is called an arch-heretic. Those Episcopalians who want to continue to delude themselves that they are led by a bishop whom the worldwide Anglican Communion acknowledges are in denial, or else they just do not care. For them, a bishop is someone whom they, and they alone, select -- regardless of what the rest of the Anglican Communion may think of their choice (witness their continued backing of V. Gene Robinson, despite the Archbishop of Canterbury's overt refusal to invite or allow him to attend the 2008 Lambeth Conference). Such delusion is a form of megalomania -- the idea that you are far more important to the rest of the world than you really are.
Our totally biased blogger continues with still more outright falsehoods:
BLOGGER: Lawrence renounced his ministry in the Episcopal Church and, by association, the worldwide Anglican Communion last October.
HALEY: Bishop Lawrence never "renounced his ministry" in the Episcopal Church or elsewhere -- if you assert that as a fact, then you are delusional, and nearly as divorced from reality as is our Presiding Bishop. And if you conclude that "by association" Bishop Jefferts Schori's uncanonical and illegal pronouncement of Bishop Lawrence's "voluntary renunciation" had the same effect on Bishop Lawrence's status in the Anglican Communion, then you are not just delusional, but are completely as divorced from reality as is our Presiding Bishop. In fact, I would go so far as to say that the Episcopal Church (USA) positively deserves to have you in its congregation, just as it deserves our current Presiding Bishop.
Such profound detachment from reality, however, does not deter our Episcopalian co-blogger, who stalwartly soldiers on:
BLOGGER: However, he still believes himself to be an Episcopal Bishop in an Episcopal Diocese, just not one in the Episcopal Church. No ecclesiastical (church) or judicial authority (court) in the world has bought into this fantasy except Goodstein, who issued the restraining order without even allowing the Episcopal Church to be heard on the matter.
HALEY: Fortunately for our patience, we come to the end of these delusional ravings -- but not before our Episcopal co-blogger goes off the deep end in asserting that which is simply untrue (i.e., false).
1. +Lawrence does not just believe he is an Episcopal Bishop in an Episcopal Diocese -- he does not have to indulge in belief on that score, because he is the diocesan bishop of the Episcopal (i.e., bishop-led, and not +Jefferts-Schori-led) Diocese of South Carolina. If that were not a true fact, Judge Goodstein never could have issued her TRO at +Lawrence's request.
2. The vast majority of Anglican Communion members, acting through their elected primates and representatives, have indeed recognized Bishop Lawrence as a continuing bishop in the Anglican Communion. Our ignorant blogger's claim to the contrary is simply an invented claim, about whose truth he simply does not care.
3. It was not Judge Goodstein who decided "not to hear the Episcopal Church" on the TRO. Instead, it was the Episcopal Church (USA) who decided that it would not oppose the preliminary injunction, which is a duplicate of the TRO. The Episcopal Church (USA) was not represented at the hearing on the TRO for the simple reason that its attorneys had not yet entered an appearance in the case.
It is elementary, in civil lawsuits (such as we have here), that parties are represented only through attorneys, and that no such attorney or party is entitled to be heard by the court on a pending matter unless and until that party has appeared before the court and thereby submitted itself to the court's jurisdiction.
Emergency orders, such as TROs, are entered only after the court has been shown that the situation (the status quo ante) will change drastically if the TRO is not issued. In this case the remnant diocese was threatening to meet and adopt the names and corporate seal of Bishop Lawrence's diocese. Once the remnant group met in convention and adopted the name of Bishop Lawrence's diocese, the status quo ante would have unilaterally been altered, before the lawsuit could be adjudicated. And that is precisely why the Court issued its preliminary injunction -- to keep the status quo in effect through the trial phase of the case.
At this particular point, when ECUSA and its remnant have decided not to oppose the issuance of a preliminary ("temporary") injunction that duplicates the TRO, I see no basis for regarding the lawsuit brought by Bishop Lawrence and his diocese as either futile, or unsound. The object of the lawsuit is to gain a judicially enforceable declaration that the Diocese owns the rights to the marks which it registered earlier -- being the various versions of its name, and its corporate seal.
What ECUSA's capitulation does is immediately establish the following "facts on the ground" (namely, facts which ECUSA can no longer deny, given its consent to the injunction):
A. There is a legally cognizable "Episcopal Diocese of South Carolina," whose legal existence began (under South Carolina law) in 1785.
B. The remnant Episcopalian group may not either assume its name, or claim to be the same religious non-profit corporation under South Carolina law (i.e., assume its identity).
C. Thus, in South Carolina again, as occurred during the Civil War, a Diocese has actually separated itself in law from the Episcopal Church (USA) -- it exists, under its own State's laws, wholly separate and apart from the Church of which it formerly was a member.
D. The remnant group will thus be (under South Carolina law) a brand-new religious entity, whose existence (again, under South Carolina law) was not a legal reality until it met and organized itself on January 26, 2013.
These "facts on the ground" are fatal to the mantra so often recited by our Presiding Bishop and those who blindly follow her: "People may leave The Episcopal Church, but parishes and dioceses may not." South Carolina is living proof of the fact that Dioceses and their associated parishes may indeed, as is their constitutional right under the First Amendment, leave that oppressive (but "all-inclusive".) organization. Those in the Church who would celebrate its "inclusivity" should examine more closely how it treats the parishes and dioceses who have dared to disagree with its reigning theology and false doctrine.
There has been a bit of brouhaha over the name which the remnant Episcopalians are entitled to adopt under South Carolina law (as our Episcopal co-blogger virtually shouts out in a red banner on his home page). They may not, under the court's injunction, call themselves "the Episcopal Diocese of South Carolina," and they have instead chosen to call themselves "The Episcopal Church in South Carolina."
That title, however, does not include the magic word "Diocese." Thus I submit the name cannot remain for long, because only a diocese can (by its Constitution and Canons) be a member of ECUSA. Watch, therefore, what will unfold in the months to come. There will be another name chosen for the remnant entity -- whether "the Episcopal Diocese of Greater Charleston," or "the Newest Diocese in South Carolina," or some similar name, I do not pretend to know. All I can state with certainty is that the name will not be "the Episcopal Diocese of South Carolina," "the Diocese of South Carolina," or "the Protestant Episcopal Church in the Diocese of South Carolina."
And despite what South Carolina Episcopalians may read (or hope), as represented by our ill-informed co-blogger, nothing the Presiding Bishop or ECUSA may do at this juncture can rescue them from the realities stated in paragraphs A. through D. immediately above. They had best come to terms with their existence as an Episcopal minority in the State, and begin to act accordingly. They gain nothing by pretending to be otherwise.
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