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SOUTH CAROLINA: Judge Diane Goodstein turns restraining order into an injunction

SOUTH CAROLINA: Judge Diane Goodstein turns restraining order into an injunction
It is so ordered, she said

By Mary Ann Mueller
Special Correspondent
www.virtueonline.org
February 1, 2013

"AND IT IS SO ORDERED." the final line of the court document proclaims.

As of 5:29 p.m., (Eastern Time) Thursday, January 31, 2013, the temporary restraining order that South Carolina Circuit Court Judge Diane Goodstein issued on Jan. 23 became a preliminary injunction enjoining The Episcopal Church and its new ecclesial jurisdiction in the Palmetto State - The Episcopal Church in South Carolina - from using the identity names and mark of The Episcopal Diocese of South Carolina.

"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," the new injunction orders.

"The registered names and mark that are subject to this order are: the seal of the Diocese of South Carolina as described in its registration with the South Carolina Secretary of State; the name 'The Protestant Episcopal Church in the Diocese of South Carolina', as registered with the South Carolina Secretary of State; the name 'The Diocese of South Carolina', as registered with the South Carolina Secretary of State; and the name 'The Episcopal Diocese of South Carolina,' as registered with the South Carolina Secretary of State," the injunction continues. "Again, this seal and these names are those registered by this Plaintiff corporation with the South Carolina Secretary of State."

A preliminary injunction, or as the First Judicial Circuit Court of South Carolina calls it, a "temporary injunction", means that the terms of the temporary restraining order remain in force until such time that the court gives another ruling, by a judicial order modifying or dissolving the current injunction.

The Episcopal Church possibly dodged a bullet today by agreeing to the new injunction through mutual consent. Otherwise The Episcopal Church in South Carolina's new chancellor Thomas Tisdale would have been in court this morning at the Richland County Courthouse in a prescheduled hearing concerning the continued status of the temporary restraining order. At that time the chancellor would have to show that his client - The Episcopal Church - had fulfilled the terms of last week's restraining order.

Tisdale, who was once the chancellor for The Episcopal Diocese of South Carolina, is a member of the Nexsen Pruet, a large law firm which has offices scattered throughout the Carolinas. Tisdale is in its Charleston offices.

It was Tisdale who first approached Judge Goodstein through a Jan. 29 electronic mail communiqué. In it he states: "The purpose of this letter is to inform the Court that the Defendant [The Episcopal Church] is in full compliance with the Court's order. Under these circumstances, the Defendant hereby agrees that the TRO [Temporary Restraining Order] may remain in effect, and that the Defendant will continue to be bound by it beyond the statutory 10 day period when it would have normally expire; and will continue to be bound by it unless and until the Defendant requests a hearing on the issues contained in the TRO at some future date."

The e-mail to Judge Goodstein was carbon copied to the six attorneys who are representing The Episcopal Diocese of South Carolina and its trustees.

However, during formation of The Episcopal Church in South Carolina, the Charleston-based chancellor voiced his own view of the competency of the South Carolina court.

"The Episcopal Church has been sued by a group led by the former bishop and some of his people acting under his leadership. The court has issued a temporary restraining order against The Episcopal Church, of which we are a constituent part as we in South Carolina are a constituent part of the United States," he explained at TECinSC's organizational meeting. "In that connection it is proposed that the name 'The Episcopal Church in South Carolina' be used in place of, and instead of, what we believe is our true and lawful name in all these proceedings and everything that we do until a court of competent jurisdiction allows us to do otherwise."

The Episcopal Diocese of South Carolina's lead attorney, Alan Runyan, who hails from a small four-man law office in Beaufort, was quick to respond, poking holes in Tisdale's letter to the court, pointing out four specific areas of concern.

He highlighted that South Carolina Rules of Civil Procedure, Rule 65, under which the original temporary restraining order was issued, does not allow for a mutually consented to indefinite time frame, but requires that an injunction hearing be set at the earliest possible time.

Runyan also pointed out that Tisdale's understanding of the TRO indicated that it would bind the defendant only, where Rule 65(d) allows the mandate to extend to others.

The Diocese's legal counsel also pointed out that the defendant would no longer be bound by the dictates of an extended restraining order once the defendant had requested a hearing.

"... the Defendant's consent appears to be conditioned on an agreement that it is 'in full compliance with the Court's Order,' which is not accurate," Runyan informed the judge. "While it is our present intention to offer evidence of non-compliance with the Court's Order at the hearing on Friday, without waving our right do to do in the future, we believe that there may be a way to forgo the February 1, 2013 hearing."

At which point Runyan suggests that the court issue a "temporary" injunction which would extend the current restraining order for the duration of the lawsuit.

A temporary restraining order, like what was issued last week, is used in situations in which the plaintiff needs immediate protection and does not have the time required to hold a scheduled hearing on the matter at hand.

The situation which faced The Episcopal Diocese of South Carolina was that The Episcopal Church was coming to town to establish an overlapping ecclesial jurisdiction and the concern was that the faux diocese would attempt to claim and use the name and seal of the long-established diocese, thus complicating legal matters and clouding later litigation. So the court was asked to step in and provide temporary protection against that happening during TECinSC's initial formational weekend event.

Basically what an injunction does is to keep things exactly as they are for a long enough time to allow the court to make an informed decision on the underlying issues. In this case the topic is: Who ultimately is The Episcopal Diocese of South Carolina? The preliminary injunction is intended to act as a stopgap, preventing parties from taking a disputed action, before and during the full judicial proceedings which will eventually resolve the conflict.

Judge Goodstein agreed with The Episcopal Diocese of South Carolina and issued her injunction which will remain in force until she changes it. The injunction does not have a built-in and limited time frame the way the temporary restraining order does.

The court's new injunction is signed (consented to) by five attorneys for the plaintiffs and one attorney for the defendant. Signing for The Episcopal Diocese of South Carolina and its trustees are: Alan Runyan, Speights & Runyan, Beaufort; Henrietta Golding, McNair Law Firm, Myrtle Beach; Charles Williams, Williams & Williams, Orangeburg; David Cox, Womble, Carlyle, Sandridge & Rice, Charleston; and Thomas Davis, Harvey & Battey, Beaufort.

The lone signer for The Episcopal Church is: Thomas Tisdale of Nexsen Pruet in Charleston.

In all 27 law firms are currently involved in the early stages of The Diocese of South Carolina and its churches' legal proceedings against The Episcopal Church's attempt to reclaim the 228-year-old diocese as its own.

Canon Jim Lewis, the Diocese South Carolina's Canon to the Ordinary, has been quoted as saying: "The Episcopal Church is more than free to establish a new diocese in South Carolina," he said. "What the court ruling says, though, is that they can't do that and claim to be us."

"We are gratified that The Episcopal Church has consented to a temporary injunction protecting the identity of our Diocese and its parishes," he continued. "We pray that sentiment fuels the prompt and reasonable resolution we all seek."

The Diocese of South Carolina is one of nine original colonial dioceses which helped form The Episcopal Church in 1789. The other founding dioceses are: Massachusetts, Connecticut, Pennsylvania, Virginia, New York, New Jersey, Maryland and Delaware.

The court document shows that the new injunction does not end case number 2013-CP-18-00013 in the Dorchester County Court of Common Pleas.

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

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