The Protestant Episcopal Church v. The Episcopal Church ( 2022 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The Protestant Episcopal Church in the Diocese of South
Carolina; The Trustees of The Protestant Episcopal
Church in South Carolina, a South Carolina Corporate
Body; All Saints Protestant Episcopal Church, Inc.; Christ
St. Paul's Episcopal Church; Church Of The Cross, Inc.
and Church Of The Cross Declaration Of Trust; Church
Of The Holy Comforter; Church of the Redeemer; Holy
Trinity Episcopal Church; Saint Luke's Church, Hilton
Head; St. Bartholomew's Episcopal Church; St. David's
Church; St. James' Church, James Island, S.C.; St. Paul's
Episcopal Church of Bennettsville, Inc.; The Church Of
St. Luke and St Paul, Radcliffeboro; The Church Of Our
Saviour Of The Diocese of South Carolina; The Church
Of The Epiphany (Episcopal); The Church Of The Good
Shepherd, Charleston, SC; The Church Of The Holy
Cross; The Church Of The Resurrection, Surfside; The
Protestant Episcopal Church, Of The Parish Of Saint
Philip, In Charleston, In The State Of South Carolina; The
Protestant Episcopal Church, The Parish Of Saint Michael,
In Charleston, In The State Of South Carolina and St.
Michael's Church Declaration Of Trust; The Vestry and
Church Wardens of St. Jude's Church of Walterboro; The
Vestry And Church Wardens Of The Episcopal Church Of
The Parish Of St. Helena and The Parish Church of St.
Helena Trust; The Vestry and Church Wardens Of The
Episcopal Church Of The Parish Of St. Matthew; The
Vestry and Wardens Of St. Paul's Church, Summerville;
Trinity Church of Myrtle Beach; Trinity Episcopal
Church; Trinity Episcopal Church, Pinopolis; Vestry and
Church Wardens Of The Episcopal Church Of The Parish
Of Christ Church; Vestry and Church Wardens Of The
Episcopal Church Of The Parish Of St. John's, Charleston
County; The Vestries And Churchwardens Of The Parish
Of St. Andrew, Respondents,
v.
The Episcopal Church (a/k/a, The Protestant Episcopal
Church in the United States of America); The Episcopal
Church in South Carolina, Appellants.
Appellate Case No. 2020-000986
Appeal from Dorchester County
Edgar W. Dickson, Circuit Court Judge
Opinion No. 28095
Heard December 8, 2021 – Filed April 20, 2022
AFFIRMED IN PART, REVERSED IN PART
Bert Glenn Utsey III, of Clawson Fargnoli Utsey, LLC, of
Charleston; Kathleen Chewning Barnes, of Barnes Law
Firm, LLC, of Hampton; Kathleen Fowler Monoc, of
Monoc Law LLC, of Charleston; and Thomas S. Tisdale
Jr., of Law Offices of Thomas S. Tisdale, LLC, of
Charleston, all for Appellant The Episcopal Church in
South Carolina.
Allan R. Holmes Sr., of Gibbs & Holmes, of Charleston;
David Booth Beers, of Washington, DC; and Mary E.
Kostel, of Alexandria, VA, all for Appellant The
Episcopal Church.
C. Alan Runyan, of Runyan & Platte, LLC, of Beaufort,
for Respondents Church of The Cross Declaration of
Trust; Church of The Cross, Inc.; St. David's Church; The
Church of Our Saviour of the Diocese of South Carolina;
The Church of The Epiphany (Episcopal); The Protestant
Episcopal Church in the Diocese of South Carolina; The
Protestant Episcopal Church of The Parish of Saint Philip,
in Charleston, in the State of South Carolina; The
Protestant Episcopal Church, The Parish of Saint Michael,
in Charleston, in the State of South Carolina; The Vestry
and Church Wardens of St. Jude's Church of Walterboro;
The Vestry and Church Wardens of The Church of The
Parish of St. Helena and The Parish Church of St. Helena
Trust; and Vestry and Church Wardens of The Episcopal
Church of the Parish of St. John's, Charleston County.
William A. Bryan, of Bryan & Haar, of Surfside Beach,
for Respondent The Church of The Resurrection, Surfside.
Thomas Christian Davis, of Harvey & Battey, PA, of
Beaufort, for Respondent Christ St. Paul's Episcopal
Church. Albert A. Lacour III, of Clawson & Staubes,
LLC, of Charleston, for Respondent The Vestries and
Churchwardens of The Parish of St. Andrews. Charles H.
Williams, of Williams & Williams, of Orangeburg, for
Respondents The Protestant Episcopal Church in the
Diocese of South Carolina and The Trustees of The
Protestant Episcopal Church in South Carolina. Susan
Pardue MacDonald, of Nelson Mullins Riley &
Scarborough, LLP, of Myrtle Beach, for Respondent
Trinity Church of Myrtle Beach. G. Mark Phillips, of
Nelson Mullins Riley & Scarborough, LLP, of Charleston,
for Respondent The Protestant Episcopal Church of The
Parish of Saint Philip, in Charleston, in the State of South
Carolina. Peter Brandt Shelbourne, of Shelbourne Law
Firm, of Summerville, for Respondent The Vestry and
Wardens of St. Paul's Church, Summerville and Trinity
Episcopal Church, Pinopolis. C. Pierce Campbell, of
Turner Padget Graham & Laney, PA, of Florence, for
Respondents All Saints Protestant Episcopal Church, Inc.;
St. Bartholomew's Episcopal Church; and The Church of
The Holy Cross. James Kent Lehman, of Nelson Mullins
Riley & Scarborough, LLP, of Columbia, for Respondent
Trinity Church of Myrtle Beach. C. Mitchell Brown, of
Nelson Mullins Riley & Scarborough, LLP, of Columbia,
for Respondents The Protestant Episcopal Church in the
Diocese of South Carolina and The Trustees of The
Protestant Episcopal Church in South Carolina. Ivon
Keith McCarty, of McCarty Law Firm, PC, of Charleston,
for Respondent Christ St. Paul's Episcopal Church.
Timothy O'Neill Lewis, of Gibbs & Holmes, of
Charleston, for Respondent Trinity Episcopal Church.
Henry E. Grimball, of Womble Bond Dickinson (US)
LLP, of Charleston, for Respondent The Protestant
Episcopal Church, The Parish of Saint Michael, in
Charleston, in the State of South Carolina. Robert R.
Horger, of Horger, Barnwell & McCurry, LLP, of
Orangeburg, for Respondent Church of the Redeemer.
Allan Poe Sloan III, of Pierce, Sloan, Wilson, Kennedy &
Early, LLC, of Charleston, for Respondent Vestry and
Church Wardens of the Episcopal Church of The Parish of
Christ Church. Andrew Spencer Platte, of Runyan &
Platte, LLC, of Beaufort, for Respondents Church of The
Cross Declaration of Trust; Church of The Cross, Inc.; St.
David's Church; The Church of Our Saviour of the
Diocese of South Carolina; The Church of The Epiphany
(Episcopal); Vestry and Church Wardens of The Episcopal
Church of the Parish of St. John's, Charleston County; The
Protestant Episcopal Church in the Diocese of South
Carolina; The Protestant Episcopal Church of The Parish
of Saint Philip, in Charleston, in the State of South
Carolina; The Protestant Episcopal Church, The Parish of
Saint Michael, in Charleston, in the State of South
Carolina; The Trustees of The Protestant Episcopal
Church in South Carolina; The Vestry and Church
Wardens of St. Jude's Church of Walterboro; and The
Vestry and Church Wardens of The Church of The Parish
of St. Helena and The Parish Church of St. Helena Trust.
Thornwell F. Sowell III and Bess Jones DuRant, of Sowell
& DuRant, LLC, of Columbia, for Respondent Church of
the Holy Comforter. William Foster Gaillard, of Womble
Bond Dickinson (US) LLP, of Charleston, for Respondent
The Protestant Episcopal Church of The Parish of Saint
Philip, in Charleston, in the State of South Carolina.
Joseph C. Wilson IV, of Joseph C Wilson Law Firm LLC,
of Folly Beach, for Respondent Vestry and Church
Wardens of the Episcopal Church of The Parish of Christ
Church. David Spence Cox, of Barnwell Whaley
Patterson & Helms, LLC, of Charleston, for Respondents
The Protestant Episcopal Church in the Diocese of South
Carolina and The Trustees of The Protestant Episcopal
Church in South Carolina. William A. Scott, of Pedersen
& Scott, PC, of John's Island, for Respondent Holy Trinity
Episcopal Church. Harry Roberson Easterling Jr., of
Easterling Law Firm, PC, of Bennettsville, for
Respondents St. David's Church and St. Paul's Episcopal
Church of Bennettsville, Inc. Mark V. Evans, of
Charleston, for Respondent St. James' Church, James
Island, S.C. Francis Marion Mack, of Saint Matthews, for
Respondent The Vestry and Church Wardens of The
Parish of St. Matthew. David B. Marvel, of Charleston;
and David L. DeVane, of Summerville, both for
Respondent The Church of St. Luke and St. Paul,
Radcliffeboro. Henrietta U. Golding, of Burr & Forman
LLP, of Myrtle Beach, for Respondents Saint Luke's
Church, Hilton Head; The Protestant Episcopal Church in
the Diocese of South Carolina; and The Trustees of The
Protestant Episcopal Church in South Carolina. John
Furman Wall III, of Mount Pleasant, for Respondent The
Church of the Good Shepherd, Charleston, S.C.
JUSTICE FEW: The dispute before the Court in this case is which church entity
became the legal or beneficial owner of certain real and personal property after The
Protestant Episcopal Church in the Diocese of South Carolina (Disassociated
Diocese) and thirty-six individual Episcopal Parishes (Parishes) disassociated from
The Episcopal Church in the United States of America (National Church). The
dispute requires us to address two broad questions. First, who now owns the real
estate long-owned and occupied by the individual Parishes. Second, who is now the
beneficiary of a statutorily-created trust controlled by the Trustees of The Protestant
Episcopal Church in South Carolina (Trustees). The National Church and the
Episcopal Church in South Carolina (Associated Diocese) contend this Court made
a final decision as to who owns all the disputed property when the Court heard the
case in 2015 and each Justice sitting on the Court in 2015 issued a separate opinion
in 2017. See Protestant Episcopal Church in the Diocese of S.C. v. Episcopal
Church, 421 S.C. 211, 806 S.E.2d 82 (2017). The Parishes disagree the Court made
a final decision as to the real property occupied by twenty-nine Parishes—the first
question—and contend the Court left much to be decided by the circuit court as to
these Parishes. The Disassociated Diocese and the Trustees agree the Court made a
final decision as to real and personal property the Trustees formerly held in trust for
the Lower Diocese—the second question—but they disagree what that decision was.
As to the second question, we agree with the National Church and the Associated
Diocese that the 2017 Court decided the real and personal property held in trust by
the Trustees is now held for the benefit of the Associated Diocese. We will explain
our holding on this point in Section IV of the opinion.1
The primary issue before the Court today, however, is the first question: whether the
2017 Court made a final decision as to all real property owned by the twenty-nine
Parishes. We hold it did not. Thus, we proceed to review the merits of the circuit
court's 2020 Parish by Parish determination as to which entity owns the disputed
property. We affirm in part and reverse in part. As to some Parishes, we hold the
circuit court correctly ruled the individual Parish retained ownership of its property.
As to other Parishes, we hold those Parishes created an irrevocable trust in favor of
the National Church and its diocese, now the Associated Diocese. As to the Parishes
that created a trust, we direct that appropriate documentation be filed in the public
record indicating the National Church and the Associated Diocese now own that real
estate. From our decision today, there will be no remand. The case is over.
I. Factual and Procedural History
Before 2010, the Lower Diocese in South Carolina (Lower Diocese) was a member
of the National Church, and the Parishes were members of the Lower Diocese. In
2010, after doctrinal differences arose, the Lower Diocese disassociated from the
National Church. The Lower Diocese became the Disassociated Diocese, which is
not affiliated with the National Church. Thirty-six Parishes remained members of
the Disassociated Diocese. Other parishes formed the Associated Diocese—
organized after the split—and remained affiliated with the National Church. The
collective 2017 opinions set forth in great detail the historical and factual
background of the property and the dispute that resulted from the split. Protestant
Episcopal Church in the Diocese of S.C. v. Episcopal Church, 421 S.C. 211, 806
S.E.2d 82 (2017). We refer readers to the 2017 opinions for more detailed discussion
of that lengthy history.
1
The Disassociated Diocese raises a third question, the merits of which we do not
address because we defer to the federal courts. Our explanation of why we defer to
the federal courts on this question may be found in Section V of the opinion.
In 2013, the Parishes, the Disassociated Diocese, and the Trustees filed this lawsuit
in circuit court seeking a declaration that the National Church and the Associated
Diocese "ha[ve] no legal, beneficial or equitable interest in any of [their] real and
personal property" and that the Parishes alone are the lawful and rightful owners of
the property. The plaintiffs' primary theory in that case was that—if the National
Church or its diocese ever had any right to claim legal or beneficial ownership of the
property—the Disassociated Diocese and the Parishes took the necessary steps to
sever their relationship with the National Church, and those steps resulted in the
Disassociated Diocese and the Parishes owning all the property.
The National Church and the Associated Diocese counterclaimed against the
Disassociated Diocese and the Parishes, alleging ownership over the property and
claiming, among other things, that the Parishes and the Disassociated Diocese had
no authority to disassociate and, in the alternative, the Parishes held their property
in trust for the benefit of the National Church and its diocese pursuant to a 1979
provision of Episcopal Church law called the "Dennis Canon." See infra note 4. The
National Church also counterclaimed against the Trustees, alleging "all property
held by or for the [Disassociated Diocese] is held and may only be used for the
mission and benefit of the Church and its subordinate [Associated Diocese]."
Judge Diane Schafer Goodstein conducted a non-jury trial in 2014 and found the
Parishes and the Disassociated Diocese "validly exercise[d] [their] legal and
constitutionally-protected right to disassociate," and the National Church and the
Associated Diocese never had any rights in the property held by the Trustees. Judge
Goodstein also ruled the Parishes did not create a trust in favor of the National
Church or its diocese. Judge Goodstein thus ruled the National Church and the
Associated Diocese had "no legal, beneficial or equitable interest" in any of the real
or personal property.
The National Church and the Associated Diocese appealed. This Court heard oral
argument in the case in September 2015. In August 2017, each of the five Justices
who served on the Court at the time of oral argument (the 2017 Court) filed separate
opinions. 421 S.C. 211, 806 S.E.2d 82. The collective result of the five opinions is
the central issue before the Court as to both of the broad questions we address in this
appeal.
II. First Question before this Court—Ownership of Parish Real Estate
Judge Goodstein focused primarily on the issues of corporate control of the Parishes,
the Disassociated Diocese, and the Trustees; the Parishes' claim that they never had
any relationship with the National Church; and the Disassociated Diocese's right to
disassociate from the National Church. As to whether the Parishes held their
property in trust for the National Church or its diocese, Judge Goodstein ruled "The
Dennis Canon created no express trust of which [the National Church or its diocese]
was the beneficiary." Under Judge Goodstein's ruling, the National Church and the
Associated Diocese cannot rely on the Dennis Canon to claim a Parish created a
trust. The five opinions of 2017 seemingly affirmed Judge Goodstein on the
Parishes' and the Disassociated Diocese's rights to no longer follow or be associated
with the National Church. However, the collective opinions reversed Judge
Goodstein's ruling that the Dennis Canon cannot give rise to a trust. In reversing,
this Court collectively ruled that any Parish that expressly "acceded" to the Dennis
Canon created a trust in favor of the National Church and its diocese. As Chief
Justice Beatty explained in his opinion, Parishes that "merely promised allegiance"
to the National Church did not create a trust. 421 S.C. at 251, 806 S.E.2d at 103
(Beatty, C.J., concurring in part and dissenting in part).2 Because Judge Goodstein
had not considered which individual Parishes acceded to the Dennis Canon or which
"merely promised allegiance," the 2017 Court did not reach that issue. It was proper,
therefore, for the circuit court (Edgar W. Dickson) to address this question in its
2020 decision, and it is now proper for us to review Judge Dickson's 2020 Parish by
Parish rulings.3
2
Chief Justice Beatty addresses the collective meaning of the five opinions of 2017
in his separate writing concurring in today's holding.
3
The five opinions of 2017 made a final decision that seven of the original thirty-
six Parishes did not create a trust in favor of the National Church or its diocese.
Those Parishes are no longer in the case, but we list them here for clarity. The
following Parishes hold title to their property unencumbered by any trust in favor of
the National Church or the Associated Diocese:
• Christ the King, Waccamaw;
• St. Matthews Church, Darlington;
• Parish of St. Andrews, Mount Pleasant (and its Land Trust, a separate
corporation);
• The Vestries and Churchwardens of the Parish of St. Paul's Episcopal
Church of Conway;
• The Episcopal Church of the Parish of Prince George Winyah,
Georgetown;
• St. John's Episcopal Church of Florence; and
III. Express Accession to the Dennis Canon
The five opinions of the 2017 Court left open the question of what actions by the
Parishes are necessary to constitute express accession to the Dennis Canon; thus, we
must make that determination. Before we can determine whether the actions of the
individual Parishes constitute accession to the Dennis Canon and, thus, created a
trust in favor of the National Church or its diocese, we first consider the background
in which the Dennis Canon was written and adopted, which provides context for the
actions by the individual Parishes. We must also consider the requirements of South
Carolina trust law.
A. Background of Dennis Canon
We begin in 1979 with Jones v. Wolf, 443 U.S. 595, 99 S. Ct. 3020, 61 L. Ed. 2d 775(1979). Jones involved a property dispute between the Presbyterian Church in the
United States of America (PCUSA) and a local Georgia church that had withdrawn
from PCUSA. 443 U.S. at 598, 99 S. Ct. at 3023, 61 L. Ed. 2d at 781. A majority
faction of the local church voted to split from PCUSA and that faction continued to
occupy the church property. Id. The remaining minority sued the majority faction
arguing the minority owned the property as remaining members of PCUSA. Id. The
Georgia Supreme Court held the trial court correctly applied Georgia law—instead
of ecclesiastical law—and rejected the minority's claim to the property. 443 U.S. at
599, 99 S. Ct. at 3023, 61 L. Ed. 2d at 782. The issue before the Supreme Court of
the United States was "whether civil courts, consistent with the First and Fourteenth
Amendments to the Constitution, may resolve the dispute on the basis of 'neutral
principles of law,' or whether they must defer to the resolution of an authoritative
tribunal of the hierarchical church." 443 U.S. at 597, 99 S. Ct. at 3022, 61 L. Ed. 2d
at 780-81.
After the Supreme Court majority ruled a court may rely on neutral principles of
state law and need not defer to ecclesiastical law, 443 U.S. at 602, 604, 99 S. Ct. at
3025, 3026, 61 L. Ed. 2d at 784, 785, the Court discussed the advantages of the
neutral principles of law approach. The Court stated, "it is completely secular in
operation, and yet flexible enough to accommodate all forms of religious
organization and polity. The method relies exclusively on objective, well-
established concepts of trust and property law familiar to lawyers and judges." 443
• St. Matthias Episcopal Church, Summerton.
U.S. at 603, 99 S. Ct. at 3025, 61 L. Ed. 2d at 784-85. The Supreme Court explained,
"Through appropriate . . . trust provisions, religious societies can specify what is to
happen to church property in the event of a particular contingency, or what religious
body will determine the ownership in the event of a schism or doctrinal controversy."
443 U.S. at 603, 99 S. Ct. at 3025, 61 L. Ed. 2d at 785. The Court suggested, "At
any time before [a] dispute erupts, the parties can ensure, if they so desire, that the
faction loyal to the hierarchical church will retain the church property. . . . [T]he
constitution of the general church can be made to recite an express trust in favor of
the denominational church." 443 U.S. at 606, 99 S. Ct. at 3027, 61 L. Ed. 2d at 786.
The Court concluded that "civil courts will be bound to give effect to the result
indicated by the parties, provided it is embodied in some legally cognizable form."
Id.In the months after Jones, Walter Dennis—a priest and a member of the National
Church's Standing Committee on Canons 4—proposed Canon I.7.4 5 at the National
Church's 1979 General Convention. Bernie D. Jones, Litigating the Schism and
Reforming the Canons: Orthodoxy, Property & the Modern Social Gospel of the
Episcopal Church, 42 Golden Gate U. L. Rev. 151, 186 (2012). The National
Church adopted the proposed Canon I.7.4, which came to be known as the "Dennis
Canon." The National Church appears to have adopted the Dennis Canon for two
primary reasons. First, the National Church was concerned by local churches'
negative response to the new Book of Common Prayer and the amendment to other
Canons permitting the ordination of women as priests. 6 Second, the National Church
4
According to the National Church, the word "canon" is synonymous with "Church
Law," and they "are the written rules that provide a code of laws for the governance
of the church." Canon, An Episcopal Dictionary of the Church, The Episcopal
Church, https://www.episcopalchurch.org/glossary/canon/ (last visited Apr. 7,
2022).
5
When the National Church adopted the Dennis Canon, the Canon was actually
numbered I.6.4. Journal of the General Convention of the Protestant Episcopal
Church in the United States of America -otherwise known as The Episcopal Church
1979 B-60 (Sept. 13, 1979), https://www.episcopalarchives.org/sites/default/files/
publications/1979_GC_Journal.pdf. However, the 2006 Constitution and Canons of
the National Church, which are in the record on appeal before us, number the Dennis
Canon as I.7.4.
6
See Valerie J. Munson, Fraud on the Faithful? The Charitable Intentions of
Members of Religious Congregations and the Peculiar Body of Law Governing
did so in apparent response to the Supreme Court's suggestion in Jones that a trust
could be created under which the National Church would have beneficial ownership
of Parish property. 7
The Dennis Canon provides,
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 existence of this
trust, however, shall in no way limit the power and
authority of the Parish, Mission or Congregation otherwise
existing over such property so long as the particular
Parish, Mission or Congregation remains part of, and
subject to this Church and its Constitution and Canons.
Also in 1979, the National Church adopted Canon I.7.5, which provides,
The several Dioceses may, at their election, further
confirm the trust declared under the foregoing Section 4
Religious Property in the United States, 44 Rutgers L.J. 471, 502 (2014) (noting "the
canon was adopted because of two developments. First, in 1976, [the National
Church] decided to adopt a new Book of Common Prayer and amended its canons
to permit the ordination of women priests. Those actions resulted in local churches
disaffiliating from [the National Church] and claiming full property rights in church
property"); Jeffrey B. Hassler, Comment, A Multitude of Sins? Constitutional
Standards for Legal Resolution of Church Property Disputes in A Time of Escalating
Intradenominational Strife, 35 Pepp. L. Rev. 399, 414 (2008) ("The Jones decision
was handed down just three months prior to The Episcopal Church's triennial
national General Convention, at which the church was faced with an increasing
number of parishes departing in response to significant doctrinal disagreements. In
response to both the departures and the Jones decision, the Church's House of
Bishops adopted what has come to be known as the 'Dennis Canon' . . . .").
7
See Munson, supra note 6, at 502 (noting the second reason for adopting the Dennis
Canon "was the Supreme Court's decision of Jones v. Wolf in 1979"); Hassler, supra
note 6, at 414 (noting the National Church adopted the Dennis Canon "[i]n response
to both the departures and the Jones decision").
by appropriate action, but no such action shall be
necessary for the existence and validity of the trust.
The Lower Diocese in South Carolina followed the suggestion in Canon I.7.5 at the
Annual Diocesan Convention in 1987 and adopted, as part of its own canons, a
version of the Dennis Canon. This canon—which we refer to as the Diocesan
Canon—provided,
All real and personal property held by or for the benefit of
any Parish, Mission, or Congregation is held in trust for
the Episcopal Church and the Protestant Episcopal Church
in the Diocese of South Carolina. The existence of this
trust, however, shall in no way limit the power and
Authority of the Parish, Mission, or Congregation existing
over such property so long as the particular Parish,
Mission, or Congregation remains a part of, and subject to,
the Episcopal Church and the Protestant Episcopal Church
in the Diocese of South Carolina.
The 1979 adoption of the Dennis Canon—and its potential effect on Parish property
disputes—was widely known in the Episcopal community. 8 In addition, each Parish
apparently participated in the 1987 Diocesan Convention at which the Lower
Diocese adopted the Diocesan Canon. According to testimony in the Goodstein trial,
each Parish was entitled to send "up to four delegates . . . [a]nd . . . any members of
the clergy who [were] canonically resident" to every Annual Diocesan Convention.
In the 2018 and 2019 Dickson hearings, the National Church cited the apparent fact
that each Parish had representatives at the 1987 Diocesan Convention as evidence
the Parishes were aware of the terms and effect of the Dennis and Diocesan Canons
when they took the actions we discuss below.
8
According to one commentator, "lawyers throughout the country [] were defending
local dioceses from dissenting parishes" using "the Dennis Canon []as an important
tool in their arsenal." See Bernie D. Jones, supra, at 187. The commentator further
observed that lawyers around the country corresponded with Walter Dennis to report
their progress in litigating Dennis Canon property disputes involving disaffiliating
churches throughout the 1980s and 1990s. Id.B. State Law Requirements to Create a Trust
With this background in mind, we turn to the actions required to create a trust under
South Carolina law. Before a court may find that an owner of property has created
a trust under South Carolina law, the court must find the party claiming to benefit
from the trust has proven several elements, two of which are particularly relevant
here. First, the court must find the party creating the trust took present actions—in
writing—documenting both the creation of a trust and the placing of specified
property in it. Subsection 62-7-401(a)(1)(ii) of the South Carolina Code (2022)
provides there must be a "written declaration signed by the owner of property that
the owner holds identifiable property as trustee." While the actions to create a trust
"must be proved by some writing signed by the party creating the trust," S.C. Code
Ann. § 62-7-401(a)(2), the court can look to more than one writing in determining
whether a trust has been created, Foster v. Foster, 393 S.C. 95, 98, 711 S.E.2d 878,
879 (2011) (citing Ramage v. Ramage, 283 S.C. 239, 322 S.E.2d 22 (Ct. App.
1984)); see also Ramage, 283 S.C. at 244, 322 S.E.2d at 26 (stating the statute of
frauds "is not violated by piecing together the trust instrument from the various
documents which were intended to create the trust"). Second, the court must find
the documents creating the trust indicate the owner had the present intent for the
writings to create a trust for the particular beneficiary. S.C. Code Ann. § 62-7-402(a)
(2022) (providing among four other requirements that "A trust is created only if: . . .
(2) the settlor indicates an intention to create the trust").
C. Parish Analysis9
Judge Dickson reviewed the Goodstein trial record on the issue of accession and
found no Parish created a trust in favor of the National Church or its diocese. He
ruled the Parishes "merely promised allegiance" to the National Church and "no
Parish expressly acceded to the Dennis Canon." To review Judge Dickson's
decision—to determine what actions constitute express accession to the Dennis
Canon and whether individual Parishes created a trust in favor of the National
Church or its diocese—we turn to the actions taken by each individual Parish.
9
For reference, we have included an Addendum to this opinion which contains a
summary of all the potential evidence of "accession" for each Parish. The Parishes
are listed in the Addendum in the same order in which we list their disposition below.
There were typographical errors in the documents summarized in the Addendum and
we chose not to correct them.
Considering the Parishes' knowledge of the Dennis Canon and participation in
adopting the Diocesan Canon, we must evaluate the Parishes' actions under South
Carolina trust law, including the requirements that the owner take present action
coupled with the present intent to create a trust for the beneficiary.
Most of the twenty-nine Parishes remaining in this case amended their governing
documents at various times after the National Church adopted the Dennis Canon in
1979. The National Church and the Associated Diocese argue these actions by each
Parish constitute express accession to the Dennis Canon. In the pages that follow,
we will analyze the actions taken by each individual Parish to determine whether
those actions constitute express accession. Whether a Parish took an action is a
question of fact, on which we defer to the circuit court if there is any evidence to
support the finding. See Hardy v. Aiken, 369 S.C. 160, 165, 631 S.E.2d 539, 541
(2006) (noting "a question of fact in a law action [is] subject to an any evidence
standard of review when tried by a judge without a jury" (citation omitted)).
However, the question of whether an action known to have been taken by a Parish
created a trust in favor of the National Church and its diocese under South Carolina
trust law is a question of law. This Court does not defer to the circuit court
concerning questions of law. See City of N. Myrtle Beach v. E. Cherry Grove Realty
Co., LLC, 397 S.C. 497, 502, 725 S.E.2d 676, 678 (2012) ("Questions of law are
decided with no . . . deference to the trial court." (citation omitted)).
One Parish—Trinity Episcopal Church, Pinopolis—is particularly unlike the other
Parishes. The National Church contends Trinity, Pinopolis was required to submit
an application for admission into the Lower Diocese in which it was required to state
its "willingness to conform to the Constitution and Canons of the General
Convention and the Constitution and Canons of this Diocese." There is no such
application in the record before us. Thus, as far as we can tell, Trinity, Pinopolis did
not take any action that could be argued to have created a trust. Further, as we will
explain in Subsection III.B.v, even if Trinity, Pinopolis had submitted an application
containing this language, a "willingness to conform" to the Canons does not indicate
Trinity, Pinopolis took present action or had the present intent necessary to create a
trust under South Carolina trust law. A "willingness" to take action is not itself a
present action; it is the contemplation of future action. Therefore, we find there is
no evidence of express accession to the Dennis Canon by the following Parish, and
there is no trust in favor of the National Church or the Associated Diocese over its
property:
• Trinity Episcopal Church, Pinopolis
The remaining twenty-eight Parishes fall on a spectrum of specific actions alleged
to constitute accession, ranging from pledging allegiance to the National Church and
its diocese to reciting the Dennis Canon verbatim in their governing documents. For
each of the Parishes, we consider the actions taken within its own governing
documents adopted after 1979 along with the Dennis Canon and the Diocesan
Canon.
i. Parishes that did nothing more than pledge or affirm
allegiance to the National Church and the Lower
Diocese and do not mention the Canons
Four Parishes took no more action than to pledge or affirm in their constitutions or
bylaws allegiance to the National Church and its teachings, or to acknowledge the
National Church and the Lower Diocese's religious authority. For example, The
Church of the Epiphany—located in Eutawville, South Carolina—included in its
2002 Bylaws a provision that stated,
The object and purpose of the corporation is for the
support and maintenance of a Church . . . in the [Lower
Diocese] for the public worship of Almighty God in
accordance with the doctrine and practices of the [National
Church] and the [Lower Diocese], together with such other
religious, educational and charitable works as may
properly be connected therewith.
Nowhere in this provision does Epiphany, Eutawville act in a manner that creates a
trust under South Carolina trust law. In these words, Epiphany, Eutawville "merely
promised allegiance" to the National Church and the Lower Diocese. Epiphany,
Eutawville did not take the necessary present action nor indicate the necessary intent
to create a trust.
The other three Parishes in this category included similar provisions in their
governing documents. These provisions contain no reference to the Canons of either
the National Church or the Lower Diocese. The provisions merely set forth the
Parishes' doctrinal beliefs and a promise to follow the religious teachings of the
National Church and the Lower Diocese. "Without more," as Chief Justice Beatty
wrote in 2017, "this promise cannot deprive them of their ownership rights in their
property." 421 S.C. at 251, 806 S.E.2d at 103 (Beatty, C.J., concurring in part and
dissenting in part). Consequently, the following Parishes did not expressly accede
to the Dennis Canon and did not create a trust under South Carolina trust law:
• The Protestant Episcopal Church, Of The Parish Of Saint Philip, In
Charleston, In The State Of South Carolina
• The Protestant Episcopal Church, The Parish Of Saint Michael, In
Charleston, In The State Of South Carolina and St. Michael's Church
Declaration Of Trust
• Church of the Cross, Inc. and Church of the Cross Declaration of Trust,
Bluffton
• The Church of the Epiphany, Eutawville
ii. Parish that "considered" its canons "null and void" if
"in conflict" with the Canons of the National Church
or the Lower Diocese
One Parish—The Vestry and Church Warden of the Episcopal Church of the Parish
of St. Helena and the Parish of St. Helena Trust—stated it "pledges to adhere to the
doctrine, discipline, and worship" of the National Church—similar to the Parishes
discussed in Subsection III.B.i—and also provided that any of its bylaws that "may
be in conflict with the canons" of the National Church or the Lower Diocese "shall
be considered null and void." These provisions are included in St. Helena's 1987
Bylaws. The words "adhere to" may be stronger than the language used by the
Parishes discussed in Subsection III.B.i, but the use of the word "pledges"
nonetheless contemplates future action, not the present action necessary to satisfy
the first element mentioned above. St. Helena's Bylaws do mention the Canons
generally in the clause about conflicting canons, but they make no mention of the
Dennis Canon. This language does not show a present action necessary to create a
trust nor does it indicate the intent necessary to create a trust based on the Dennis
Canon. We find the following Parish did not expressly accede to the Dennis Canon
and did not create a trust under South Carolina trust law:
• The Vestry and Church Warden of the Episcopal Church of the Parish
of St. Helena and the Parish of St. Helena Trust, Beaufort
iii. Parishes that "operated" or were "organized"
pursuant to the Canons of the National Church and the
Lower Diocese
Five Parishes stated in their governing documents they were "organized for the
purpose of operating an Episcopal Church pursuant to" or "organized pursuant to"
the Canons of the National Church and the Lower Diocese. For example, The
Church of the Resurrection, Surfside included in its 1983 Bylaws a statement that it
"is organized for the purpose of operating an Episcopal Church pursuant to the
Constitution and Canons of the [Lower Diocese] and of the [National Church] now
in force or as hereafter may be amended." Like the Parish of St. Helena discussed
in Subsection III.B.ii, the words contemplate the future action of "operating" a
church, not the present action necessary to satisfy the first element mentioned above.
We view "organizing" and "operating" a church as different from, and not involving,
the disposition of real estate by creating a trust. While the governing documents for
these five Parishes do mention the Canons generally, they do not specifically
mention the Dennis Canon. Therefore, the following five Parishes did not expressly
accede to the Dennis Canon and did not create a trust under South Carolina trust law:
• Christ St. Paul's Episcopal Church, Conway
• The Church of the Resurrection, Surfside
• The Church of St. Luke and St. Paul, Radcliffeboro
• The Vestry and Church Wardens of St. Paul's Church, Summerville
• Trinity Episcopal Church, Edisto Island
iv. Parish that stated it was "subject to" the Canons of the
National Church and the Lower Diocese
One Parish—St. Paul's Episcopal Church of Bennettsville—not only stated in its
2002 Articles of Incorporation that it was "organized under" the Canons of the
National Church and the Lower Diocese but also that it was "subject to" the Canons.
There is no specific reference to the Dennis Canon. While this is more than simply
being "organized under" the Canons, the language "subject to" refers to future
action—in this instance the future action of the drafters of the Canons—not the
present action of the property owner that is necessary to satisfy the first element
discussed above.10 In addition, this language gives no indication of the necessary
10
The Dennis Canon provides that any trust in favor of the National Church and the
Associated Diocese "shall in no way limit the power and authority of the Parish . . .
so long as the particular Parish . . . remains part of, and subject to this Church and
its Constitution and Canons." However, as we have already stated, being "subject
to" the Canons of the National Church is not itself sufficient to create a trust; there
must be a separate present act creating a trust.
intent to create a trust based on the Dennis Canon.11 Therefore, the following Parish
did not expressly accede to the Dennis Canon and did not create a trust under South
Carolina trust law:
• St. Paul's Episcopal Church of Bennettsville, Inc.
v. Parishes that "agreed to be bound by" or "agreed to
conform to" the Canons of the National Church and
the Lower Diocese
Three Parishes amended their constitutions or bylaws after the National Church
adopted the Dennis Canon in 1979 to include phrases such as we agree "to be bound
by" or "to conform to" the Canons of the National Church and the Lower Diocese.
There is no specific reference to the Dennis Canon. As with the statements we
discussed in Subsections III.B.ii, iii, and iv, we believe these statements contemplate
how a parish is going to act in the future. They do not show present action coupled
with a present intent to create a trust based on the Dennis Canon. For example, The
Church of the Redeemer in Orangeburg included in its 2000 Constitution a statement
that it "shall conform to the Constitution and Canons of the [National Church], and
the Constitution and Canons of the [Lower Diocese], which are now, or hereafter
may be enacted by the authority of the same." The phrase "shall conform to" is an
agreement to comply with some future requirement; here, the Canons. Future
compliance with the Canons is not present action and does not indicate these
Parishes had the present intent necessary to create a trust based on the Dennis Canon.
Therefore, the following three Parishes did not expressly accede to the Dennis Canon
and did not create a trust under South Carolina trust law:
11
St. Paul's, Bennettsville also included in its Bylaws a provision stating, "The
Vestry shall be authorized and empowered to acquire and purchase such real and
personal property as they may deem necessary for the purpose of the congregation,
and the same to sell, transfer, mortgage or authorize the disposition of as they may
deem expedient so long as such acts are in accord with the Canons of the Episcopal
Church." Although this phrase gives authority to its governing body concerning real
and personal property and limits that authority "so long as such acts are in accord
with the Canons" of the National Church, it is not evidence St. Paul's, Bennettsville
took a present action to satisfy the first element discussed above. Like the phrase
"subject to," this provision contemplates future actions by the Parish. For further
explanation of the language in St. Paul's, Bennettsville's Bylaws, see infra note 12.
• All Saints Protestant Episcopal Church, Inc., Florence
• The Church of Our Saviour of the Diocese of South Carolina, John's
Island
• The Church of the Redeemer, Orangeburg
vi. Parishes that "adopted" or "acceded to" the Canons
of the National Church and the Lower Diocese
Nine Parishes amended their constitutions or bylaws after the National Church
adopted the Dennis Canon in 1979 and after the Lower Diocese adopted the
Diocesan Canon in 1987 to include phrases such as we "adopt" or "accede to" the
Canons of the National Church and the Lower Diocese. For example, St.
Bartholomew's Episcopal Church's 2005 Bylaws provided, "St. Bartholomew's
Episcopal Church accedes to and adopts the Constitution and Canons of the
[National Church] and of the [Lower Diocese] and acknowledges this authority
accordingly." As we explained, the National Church's Canons include the Dennis
Canon and the Lower Diocese's Canons included the Diocesan Canon, both of which
recite a trust over "All real and personal property held by or for the benefit of any
Parish" in favor of the National Church and its diocese. Therefore, the Parishes that
used this language took present action that created the trust the National Church and
the Lower Diocese recited in those Canons. While none of these documents
specifically mention the Dennis Canon, we find the language "adopt" or "accede to"
represents a sufficient affirmative present action—in light of the knowledge these
Parishes had of the Dennis and Diocesan Canons—to satisfy the two elements
described above. Consequently, the following nine Parishes took sufficient actions
indicating the necessary present intent, and each created a trust under South Carolina
trust law in favor of the National Church and its diocese:
• The Church of the Good Shepherd, Charleston, SC
• The Church of the Holy Comforter, Sumter
• St. Bartholomew's Episcopal Church, Hartsville
• The Vestry and Church Wardens of the Episcopal Church of the Parish
of St. John's, John's Island (Charleston)
• The Vestry and Church Wardens of St. Jude's Church of Walterboro
• Saint Luke's Church, Hilton Head
• St. David's Church, Cheraw
• The Vestry and Church Wardens of the Parish of St. Matthew (St.
Matthews, Fort Motte)
• The Vestries and Church Wardens of the Parish of St. Andrew (Old St.
Andrew's), Charleston
vii. Parishes that "acceded to" the Canons of the National
Church and the Lower Diocese and recognized the
Lower Diocese's beneficial interest
Four Parishes are identical to the nine Parishes in Subsection III.B.vi, except for the
fact that these Parishes went further to recognize the Lower Diocese's beneficial
interest in their property. This recognition is additional evidence of these Parishes'
intent to create a trust in favor of the National Church and its diocese. For example,
the Church of the Holy Cross, Stateburg included in its 2011 Bylaws a statement
providing, "the Vestry shall in no case alienate or encumber any of the real and
personal property of the corporation without the same having been submitted first to
the congregation . . . and having received the affirmative vote thereof for such
alienation or encumbrance." Immediately following this provision, Holy Cross,
Stateburg included a footnote stating, "Diocesan Canon require [sic] Standing
Committee approval." The Standing Committee was a committee of the Lower
Diocese authorized to act on behalf of the Lower Diocese in accordance with its
Constitutions and Canons. Therefore, Holy Cross, Stateburg not only referenced the
Diocesan Canon in 2011 but also demonstrated a recognition that any alienation or
encumbrance of its property must first be submitted to the Lower Diocese for
approval. 12
Trinity Church of Myrtle Beach and Holy Trinity Episcopal Church, Charleston also
recognized the Lower Diocese's beneficial interest in their properties in their
governing documents. Both Parishes included nearly identical statements,
providing,
The Vestry . . . shall hold, manage, and administer all
Church property including real property which they shall
have power to sell, alienate, mortgage, lease or otherwise
12
The analysis of whether Holy Cross, Stateburg satisfied the second element
discussed above—intent to create a trust—is the same as our analysis for St. Paul's,
Bennettsville, but the outcome of the case for the two Parishes is different. This is
because Holy Cross, Stateburg took affirmative present action in its 2011 Bylaws to
"accede[] to the . . . Canons of the [National Church]," but St. Paul's, Bennettsville
merely stated it was "organized under" and "subject to" the Canons.
deal with and dispose of by deed of other documents
executed by the Wardens or one of them; provided that the
Vestry shall not sell, alienate mortgage or otherwise
encumber the Church property without the written consent
of the Bishop and the Standing Committee of the Diocese
as provided in Diocesan or National Church Canons.
These provisions show both Parishes recognized the National Church and the Lower
Diocese's beneficial interest in their property by requiring any alienation or
encumbrance of such property first requires the written consent of the Lower
Diocese.
The last Parish in this category—Vestry and Church Wardens of the Episcopal
Church of the Parish of Christ Church, Mount Pleasant—amended its Bylaws in
1980 to include a provision stating, "In the event Christ Church, Mount Pleasant,
S.C. should ever dissolve . . . , the Standing Committee of the [Lower Diocese] shall
become the managing body of the corporation, with full power and authority without
restriction, to sell or mortgage its property or any part thereof, to convey any or all
of its property to the [Trustees]." This provision recognizes the Lower Diocese's
successor interest in Christ Church, Mount Pleasant's property. However, by also
including the provision "The terms of these By-laws which may be in conflict with
the Canons of the [National Church] . . . are hereby amended to conform to such
canons," Christ Church made a present amendment to that provision to incorporate
the Dennis Canon and to recognize the Lower Diocese's present beneficial interest.
Christ Church, Mount Pleasant is different from the other Parishes in this category
in that it last amended its Bylaws in 1980. Because this amendment was made seven
years before the Lower Diocese adopted the Diocesan Canon, we cannot rely on
Christ Church, Mount Pleasant's participation in the Lower Diocese's adoption of
the Diocesan Canon as evidence of its intent to create a trust. Nevertheless, we find
Christ Church, Mount Pleasant's recognition of the Lower Diocese's beneficial
interest in its property, coupled with the statement "accede to the . . . Canons of the
[National Church]," demonstrates it satisfied both elements discussed above, and
thus did expressly accede to the Dennis Canon through the adoption of its 1980
Bylaws.
Therefore, the following four Parishes took the necessary present actions indicating
the necessary present intent, and each created a trust under South Carolina trust law
in favor of the National Church and its diocese:
• The Church of the Holy Cross, Stateburg
• Trinity Church of Myrtle Beach
• Holy Trinity Episcopal Church, Charleston
• Vestry and Church Wardens of the Episcopal Church of the Parish of
Christ Church, Mount Pleasant
viii. Parish that recited the Dennis Canon in its constitution
One Parish—St. James' Church, James Island, SC—did even more than "accede to"
or "adopt" the Canons of the National Church and the Lower Diocese. St. James'
Church recited a version of the Dennis Canon in its own constitution, stating, "All
real and personal property held by or for the benefit of any Parish . . . is held in trust
for the Church and the Diocese thereof . . . ." If "express accession to the Dennis
Canon" by "adopting" or "acceding to" the Canons of the National Church and the
Lower Diocese is sufficient to create a trust, then verbatim recitation of the Dennis
Canon is clearly sufficient as well. Consequently, the following Parish created a
trust under South Carolina trust law in favor of the National Church and its diocese:
• St. James' Church, James Island, SC
D. Parish Analysis Summary
According to the five opinions of the 2017 Court, "express accession to the Dennis
Canon" is sufficient to create a trust under South Carolina law. Accordingly, we
find "express accession" occurs under the 2017 Court's collective ruling when the
governing body of a Parish states in an official document of the Parish, such as a
constitution or bylaws, that the Parish "adopts" or "accedes to" the Canons of the
National Church, coupled with the Parish's knowledge of the Dennis Canon and
participation in adopting the Diocesan Canon indicating the present intent to create
a trust. The Parish's formal adoption of the constitutional provision or bylaw
satisfies the writing and signature requirements of our trust law. Under these
circumstances, the formal adoption of the document indicates the governing body of
the Parish took the action with the intent of complying with the National Church's
demand set forth in the Dennis Canon and thus intentionally created a trust. Under
this analysis, we are satisfied fourteen Parishes created a trust in favor of the National
Church and its diocese by their "express accession to the Dennis Canon." The
remaining fifteen Parishes, however, either did not take the necessary actions or did
not have the requisite intent to create a trust under South Carolina trust law.
E. Revocation
Because we now hold fourteen Parishes created a trust in favor of the National
Church and its diocese, the question arises whether those trusts are revocable. It is
clear no majority of the 2017 Court reached a consensus on a theory of revocation.
However, we find it is equally clear that three Justices would have held the trusts in
this case, based on express accession to the Dennis Canon, are irrevocable. See 421
S.C. at 251, 806 S.E.2d at 103 (Beatty, C.J., concurring in part and dissenting in part)
(stating "express accession to the Dennis Canon" creates "an irrevocable trust"); 421
S.C. at 242, 806 S.E.2d at 98 (Hearn, J., concurring) (stating "the trust is
irrevocable"); 421 S.C. at 231, 806 S.E.2d at 93 (Pleicones, J., lead opinion) (joining
Justice Hearn's opinion). We adhere today to the votes those Justices cast in 2017.
This holding is limited to the trusts created by express accession to the Dennis Canon
in this case. We decline to comment on the revocability—or on any theory of
revocability—of trusts created by other churches or parishes.
IV. Second Question before this Court—Ownership of Diocesan and
Trustee Property
The second broad question we address in this case is whether the 2017 Court decided
the National Church and the Associated Diocese are the beneficiaries of a trust over
the Disassociated Diocese's real and personal property and of the trust held by the
Trustees. Judge Goodstein ruled there is no trust in favor of the National Church
and the Associated Diocese "as to the [Disassociated] Diocese and the Trustees,
[because] the Dennis Canon does not apply on its face to them." Judge Dickson
ruled the opinions of 2017 considered only Camp St. Christopher, and because the
language of the 1951 deed to Camp St. Christopher was not an issue in the case and
because the five opinions were "ambiguous on whether the [Disassociated] Diocese
or the Defendant [Associated Diocese] is the proper beneficiary of the Trustee's
assets," the 2017 Court did not reverse Judge Goodstein's ruling.
We disagree. Three Justices in 2017 decided the Disassociated Diocese and the
Trustees hold all of their real and personal property in trust for the benefit of the
National Church and the Associated Diocese. 421 S.C. at 230, 806 S.E.2d at 92
(Pleicones, J., lead opinion) ("I would therefore reverse the circuit court's decision
. . . to the extent it held that the Disassociated Diocese[ and] the Trustees . . .
controlled or owned the disputed real and personal property."); 421 S.C. at 248, 806
S.E.2d at 101 (Hearn, J., concurring) (stating the Associated Diocese "represent[s]
the true Lower Diocese of the Protestant Episcopal Church in South Carolina and
are therefore entitled to all property, including Camp Saint Christopher"); 421 S.C.
at 251 n.29, 806 S.E.2d at 103 n.29 (Beatty, C.J., concurring in part and dissenting
in part) ("I would find 'The Trustees of the Protestant Episcopal Church' in the
Diocese of South Carolina should retain title to Camp St. Christopher . . . . In my
view, the disassociated diocese can make no claim to being the successor to the
[Lower Diocese]."). We interpret Chief Justice Beatty's comment that "the
disassociated diocese can make no claim to being the successor to the Lower
Diocese" as indicating the 2017 Court did not limit its decision to Camp St.
Christopher but applied it to all Diocesan and Trustee property. We adhere today to
the votes those Justices cast in 2017.
V. Names, Styles, Emblems, and Service Marks
There is also a dispute in this case regarding which entity owns certain names, styles,
emblems, and service marks and whether the 2017 Court ruled on these issues.
Judge Goodstein enjoined the National Church and the Associated Diocese from
"using, assuming, or adopting in any way, directly or indirectly the names, styles,
emblems or marks of" the Parishes or the Disassociated Diocese. Judge Dickson
found "the Federal Court has jurisdiction over matters related to the trademarks,
intellectual property, and service marks," and "likewise follows and conforms to"
the five opinions of 2017 on these issues. Although they did not cross appeal on the
issue, the Parishes and the Disassociated Diocese argue we should consider the
trademark issues because the Justices were "split" on the issues in the five opinions
of 2017.
We agree with Judge Dickson that three Justices in 2017 made a final decision that
these issues should be litigated in federal court. 421 S.C. at 249 n.28, 806 S.E.2d at
102 n.28 (Beatty, C.J., concurring in part and dissenting in part) ("I express no
opinion concerning the rights to the service marks as I believe this determination
should remain with the federal court."); 421 S.C. at 288, 806 S.E.2d at 123 (Toal, J.,
dissenting) ("[B]ecause there is already a pending federal case involving the
applicability of the Lanham Act to these exact marks, I would defer to the federal
courts regarding the applicability of federal copyright law."); 421 S.C. at 251 n.31,
806 S.E.2d at 103 n.31 (Kittredge, J., concurring in part and dissenting in part)
(joining Justice Toal's opinion except for her conclusion no trust was created). It is
our understanding these issues are currently on appeal to the United States Court of
Appeals for the Fourth Circuit. We defer to the federal courts on these issues.
VI. Conclusion
The current Court was given the unwelcomed task of interpreting the collective
result of five separate opinions of the Justices of the 2017 Court—none of which
gained a majority of votes—because a collective result could not be discerned from
the opinions themselves. The reasoning set forth in this opinion is primarily to
determine what the 2017 Court decided as to two broad questions, not to decide those
questions ourselves. Our ruling as to the 2017 Court's answers to these questions
yields a final decision for each Parish and the Trustees. However, our decision today
is not precedential in any future church property dispute.
Trinity Episcopal Church, Pinopolis and the fourteen Parishes listed in Subsections
III.B.i, ii, iii, iv, and v of this opinion did not create a trust in favor of the National
Church or its diocese, and thus those fifteen Parishes retain title to their real estate.
The fourteen Parishes listed in Subsections III.B.vi, vii, and viii did create a trust in
favor of the National Church and its diocese, which is now the Associated Diocese.
We order the governing bodies of the fourteen Parishes that we hold created a trust
to prepare an appropriate legal instrument to document the transfer of title of each
Parish's real estate to the National Church and the Associated Diocese, confer with
counsel for the National Church and the Associated Diocese, and upon agreement to
the terms of this instrument, record it in the public record with the appropriate local
official.
The real and personal property held in trust by the Trustees is now held for the
benefit of the Associated Diocese.
AFFIRMED IN PART AND REVERSED IN PART.
BEATTY, C.J., KITTREDGE, JAMES, JJ., and Acting Justice James E.
Lockemy, concur. BEATTY. C.J. and JAMES, J., concurring in separate
opinions.
ADDENDUM
1. Trinity Episcopal Church, Pinopolis
A letter from the Lower Diocese to Trinity Episcopal Church, Pinopolis explaining
how to be admitted into the Lower Diocese which required the Parish to state in its
application that it "has been organized in accordance with the Canons of the Diocese
and 'its continued existence thereunder for at least a year'" and state its "willingness
to conform to the Constitution and Canons of the General Convention and the
Constitution and Canons of this Diocese."
The letter is followed by Journal pages containing meeting minutes from the 197th
Annual Meeting of the Diocese Convention in 1987. The minutes indicate "Trinity,
Pinopolis" and other parishes were to "be seated as parishes in union with this
Convention."
2. The Protestant Episcopal Church, Of The Parish Of Saint Philip,
In Charleston, In The State Of South Carolina
1987 Articles of Restatement: "The purposes of the said corporation include the
preaching and teaching of the Gospel of our Lord and Savior, Jesus Christ, in accord
with the Articles of Religion of the Protestant Episcopal Church in the United States
of America; the administering of the sacraments and other rites and ceremonies of
the said Church as set forth in its Book of Common Prayer; and, generally,
ministering to the needs, especially spiritual, of its members, visitors and the
community at large."
2003 Bylaws: "The Book of Common Prayer, and administration of the Sacraments,
and other rites and ceremonies of the Church, according to the use of the Protestant
Episcopal Church in the United States of America, shall be used in the Church."
3. The Protestant Episcopal Church, The Parish Of Saint Michael, In
Charleston, In The State Of South Carolina and St. Michael's
Church Declaration Of Trust
1989 Bylaws: "St. Michael's acknowledges the authority of the Protestant Episcopal
Church in the Diocese of South Carolina (the 'Diocese') and of the Protestant
Episcopal Church in the United States of America (the 'National Church')."
4. Church of the Cross, Inc. and Church of the Cross Declaration of
Trust, Bluffton
2003 Bylaws: "The object and purpose of the corporation is for the support and
maintenance of a Church in the general area of Bluffton, South Carolina, in the
Episcopal Diocese of South Carolina for the public worship of Almighty God in
accordance with the doctrine and practices of the Episcopal Church in the United
States of America and of the Diocese of South Carolina, together with such other
religious, educational and charitable works as may properly be connected
therewith."
5. The Church of the Epiphany, Eutawville
2002 Bylaws: "The object and purpose of the corporation is for the support and
maintenance of a Church in the general area of Eutawville, South Carolina in the
Protestant Episcopal Diocese of South Carolina for the public worship of Almighty
God in accordance with the doctrine and practices of the Protestant Episcopal
Church in the United States of America and the Diocese of South Carolina, together
with such other religious, educational and charitable works as may properly be
connected therewith."
6. The Vestry and Church Wardens of the Episcopal Church of the
Parish of St. Helena and The Parish of St. Helena Trust, Beaufort
1987 Bylaws: "BE IT FURTHER KNOWN that this parish from henceforth pledges
to adhere to the doctrine, discipline, and worship of the Protestant Episcopal Church
in the United States of America."
"Any article or section of these By-Laws which may be in conflict with the canons
of the Diocese of South Carolina and the Protestant Episcopal Church of the United
States of America, shall be considered null and void."
7. Christ St. Paul's Episcopal Church, Conway
1980 Bylaws: "[T]his parish is organized for the purpose of operating an Episcopal
Church pursuant to the constitution and canons of the Episcopal Church in the
Diocese of South Carolina and of the Episcopal Church in the United States now in
force or as hereafter may be adopted."
8. The Church of the Resurrection, Surfside
1983 Bylaws: "The parish is organized for the purpose of operating an Episcopal
Church pursuant to the Constitution and Canons of the Protestant Episcopal Church
in the Diocese of South Carolina and of the Protestant Episcopal Church in the
United States of America now in force or as hereafter may be amended."
"Any article or part of any article or these by-laws which may be in conflict with the
Constitution and Canons of the Diocese of South Carolina or with the Protestant
Episcopal Church in the United States are void."
9. The Church of St. Luke and St. Paul, Radcliffeboro
1995 Bylaws: "This Parish is organized for the purpose of operating an Episcopal
church pursuant to the Constitution and Canons of the Protestant Episcopal Church
in the Diocese of South Carolina and of the Protestant Episcopal Church in the
United States now in force or as hereafter may be adopted."
"Any article or part of any article or these By-Laws which may be in conflict with
the Constitution or Canons of the Diocese of South Carolina or the Protestant
Episcopal Church in the United States are void."
10. The Vestry and Wardens of St. Paul's Church, Summerville
1992 Bylaws: "In order to carry out this objective, the Parish is organized pursuant
to the Constitution and Canons of the Episcopal Church in the United States of
America (ECUSA) and of the Protestant Episcopal Church in the Diocese of South
Carolina now in force or as hereafter may be adopted."
11. Trinity Episcopal Church, Edisto Island
1998 Bylaws: "This parish is organized for purpose of opening an Episcopal Church
pursuant to the Constitution and Canons of the Diocese of South Carolina and of the
Episcopal Church now in force or as hereafter may be adopted."
"Any article or part of any article of these By-Laws which may be in conflict with
the Constitution or Canons of the Diocese of South Carolina or the Episcopal Church
are void."
12. St. Paul's Episcopal Church of Bennettsville, Inc.
2002 Articles of Incorporation: "Our purpose is to operate a Parish organized
under and subject to the Canons of the Protestant Episcopal Church in the Diocese
of South Carolina, as amended from time to time."
2004 Bylaws: "The Vestry shall be authorized and empowered to acquire and
purchase such real and personal property as they may deem necessary for the purpose
of the congregation, and the same to sell, transfer, mortgage or authorize disposition
of as they may deem expedient so long as such acts are in accord with the Canons of
the Episcopal Church."
"Any article or section of these By Laws which may be in conflict with the present
or future Canons of the Diocese shall be considered null and void."
13. All Saints Protestant Episcopal Church, Inc., Florence
1985 Bylaws: "The By-Laws of All Saints' Church are drawn with the recognition
that as a part of the Episcopal Church in the United States of America, we are bound
by the Constitution and Canons of the National Church and the Constitution and
Canons of the Diocese of South Carolina."
"Any article or Section of these By-Laws which may be in conflict with the present
or future Constitution and Canons of the Episcopal Church or the Diocese of South
Carolina shall be considered null and void."
14. The Church of Our Saviour of the Diocese of South Carolina,
John's Island
1981 Bylaws: "The purpose of the said proposed Corporation is for the purpose of
operating a Mission, organized pursuant and subject to the Canons of the Protestant
Episcopal Church in the Diocese of South Carolina as now in force or as hereafter
may be amended . . . ."
"This mission is organized for the purpose of operating an Episcopal Church
(mission) pursuant to the Constitution and Canons of the Protestant Episcopal
Church in the Diocese of South Carolina and of the Protestant Episcopal Church in
the United States now in force or as hereafter may be adopted."
1984 Letter to Lower Diocese: "We agree to conform to the Constitution and
Canon of the General Convention and the Canon of the Convention of the Diocese."
2003 Bylaws: "The Parish Church of Our Savior acknowledges the authority of the
Protestant Episcopal Church in the United States of America in accordance with the
Constitution and Canons thereof . . . ."
15. The Church of the Redeemer, Orangeburg
2000 Constitution: "This Church shall conform to the Constitution and Canons of
the General Convention of the Protestant Episcopal Church of the United States of
America, and the Constitution and Canons of the Convention of the Diocese of South
Carolina, which are now, or hereafter may be enacted by the authority of the same.
It likewise supersedes all previous Constitutions and Bylaws of said Church."
16. The Church of the Good Shepherd, Charleston, SC
2006 Constitution: "It adopts the bylaws and canons of the Protestant Episcopal
Church of the United States of America and of the Diocese of South Carolina."
17. The Church of the Holy Comforter, Sumter
1989 Constitution: "We, the congregation of the Protestant Episcopal Church of
the Holy Comforter, Sumter, South Carolina, County of Sumter, Diocese of South
Carolina, as such do hereby acknowledge, accede to and adopt the doctrine,
discipline and worship, the Constitution and Canons of the Protestant Episcopal
Church in the United States of America and the Constitutions and Canons of the
same Church in the Diocese of South Carolina."
"Any provisions in this Constitution repugnant to or in conflict with any of the
Canons of the Diocese of South Carolina or of the Protestant Episcopal Church in
the United States shall be null and void."
18. St. Bartholomew's Episcopal Church, Hartsville
2005 Bylaws: "St. Bartholomew's Episcopal Church accedes to and adopts the
Constitution and Canons of the Protestant Episcopal Church and of the Diocese of
South Carolina and acknowledges this authority accordingly. Any article or section
of these By-Laws which may at any time be in conflict with such Canons shall be
null and void."
19. The Vestry and Church Wardens of the Episcopal Church of the
Parish of St. John's, John's Island (Charleston)
2006 Constitution and Bylaws: "St. John's Church, John's Island, S.C. accedes to
and adopts the Constitution and Canons of the Diocese of South Carolina and of the
Protestant Episcopal Church in the United States of America and acknowledges
these authorities accordingly."
1996 Articles of Amendment: "The corporation is subject to the Constitution and
Canons of the Protestant Episcopal Church in the United States and the Protestant
Episcopal Church in the Diocese of South Carolina, as now in force or as may
hereafter be amended, including, but not limited to . . . ."
20. The Vestry and Church Wardens of St. Jude's Church of
Walterboro
1990 and 2006 Constitution: "The Church of St. Jude's accedes to and adopts the
Constitution and Canons of the Episcopal Church in the United States of America
and also the Constitution and Canons of the Church in the Diocese of South Carolina
and acknowledges their authority accordingly."
21. Saint Luke's Church, Hilton Head
2000 Bylaws: "This Church accedes to and adopts the constitution, canons, doctrine,
discipline, and worship of the Protestant Episcopal church in the State of South
Carolina, and the Protestant Episcopal Church in the United States of America, and
acknowledges their authority accordingly."
22. St. David's Church, Cheraw
1992 Bylaws: "The organized Parish of St. David's Church, Cheraw, South
Carolina, accedes to and adopts the Constitution and Canons of the Protestant
Episcopal Church in the United States of America, and also the Constitution and
Canons of the Diocese of South Carolina."
23. The Vestry and Church Wardens of the Parish of St. Matthew (St.
Matthews, Fort Motte)
2004 Bylaws: "Saint Matthew's Parish Episcopal Church . . . accedes to the
Constitution and Canons of the Episcopal Church in the United States of America,
and in the Episcopal Diocese of South Carolina; whenever a conflict exists between
the Constitution and By-Laws and the Canons of the Church and Diocese the Canons
take precedence."
24. The Vestries and Church Wardens of the Parish of St. Andrew (Old
St. Andrew's), Charleston
2007 Constitution and Canons: "The Rector, Wardens, Vestry, and Congregation
hereby resolve that should any future changes be made in the Constitution and
Canons of the Episcopal Church in the United States or those of the Diocese of South
Carolina which may then conflict with any article herein contained, this Constitution
and these Canons shall be deemed automatically changed to conform with the
national and diocesan constitution and canons."
2010 Constitution and Canons: "Saint Andrew's Parish Church in the Diocese of
South Carolina accedes to and adopts the Constitution and Canons of the Episcopal
Church in the United States of America, and the Constitution and Canons of the
Diocese of South Carolina, and, accordingly, acknowledges the authority of the
same."
25. The Church of the Holy Cross, Stateburg
2011 Bylaws: "This parish, known as the Church of the Holy Cross, Stateburg
having resolved to accept the rules and regulations of the Episcopal Church, in effect,
accedes to the doctrine, discipline and worship, the Constitution and Canons of the
Protestant Episcopal Church in the United States of America, and the Constitution
and Canons in of the same church in the Diocese of South Carolina."
"The Vestry in authorized and empowered to acquire and purchase such real and
personal property as it deems necessary for the purpose of the corporation, and the
same to sell, alienate, mortgage or other wise dispose of as it may deem expedient. .
. . [T]he Vestry shall in no case alienate or encumber any of the real or personal
property of the corporation without the same having been submitted first to the
congregation . . . and having received the affirmative vote thereof for such alienation
or encumbrance." Footnote: "Diocesan Canon require Standing Committee
approval."
26. Trinity Church of Myrtle Beach
1993 Bylaws and Constitution: "We . . . accede to and adopt the doctrine,
discipline and worship, the Constitution and Canons of the Episcopal Church in the
United States of America and the Constitution and Canons of the same Church in
the Diocese of South Carolina."
"The Vestry . . . shall hold, manage, and administer all Church property including
real property which they shall have power to sell, alienate, mortgage, lease or
otherwise deal with and dispose of by deed of other documents executed by the
Wardens or one of them; provided that the Vestry shall not sell, alienate mortgage
or otherwise encumber the Church property without the written consent of the
Bishop and the Standing Committee of the Diocese as provided in Diocesan or
National Church Canons."
27. Holy Trinity Episcopal Church, Charleston
2008 Bylaws: "This Parish, known as Holy Trinity Episcopal Church, does
acknowledge and accede to the doctrine, discipline and worship, the Constitution
and Canons of the Protestant Episcopal Church in the United States of America and
the Constitutions and Canons of the same Church in the Diocese of South Carolina."
"The Vestry . . . shall hold, manage and administer all Church property including
real property which they shall have power to sell, alienate, mortgage, lease or
otherwise deal with and dispose of by deed of other documents executed by the
Wardens or one of them upon resolution of the Vestry; provided that the Vestry shall
not sell, alienate, mortgage or other wise encumber the Church property without the
written consent of the Bishop and the Standing Committee of the Diocese as
provided in the Canon VI, Section 3 of the General Church Canons."
"The terms of these Bylaws which may be in conflict with the Canons of the
Protestant Episcopal Church in the United States of America and/or the Diocese of
South Carolina are hereby amended to conform to such Canons."
28. Vestry and Church Wardens of the Episcopal Church of the Parish
of Christ Church, Mount Pleasant
1980 Bylaws: "The Episcopal Church of the Parish of Christ Church . . . does
acknowledge and accede to the doctrine, discipline and worship, the Constitution
and Canons of the Protestant Episcopal Church in the United States of America and
the Constitutions and Canons of the same Church in the Diocese of South Carolina."
"In the event Christ Church, Mount Pleasant, S.C. should ever dissolve . . . , the
Standing Committee of the Protestant Episcopal Church in the Diocese of South
Carolina shall become the managing body of the corporation, with full power and
authority without restriction, to sell or mortgage its property or any part thereof, to
convey any or all of its property to the trustees of the Protestant Episcopal Church
in South Carolina."
"The terms of these By-laws which may be in conflict with the Canons of the
Protestant Episcopal Church in the United States of America . . . are hereby amended
to conform to such canons."
29. St. James' Church, James Island, SC
2001 Constitution: "The Parish of St. James' accedes to and adopts the Constitution
and Canons of the Protestant Episcopal Church in the United States of America
(PECUSA) and to the Constitution and Canons of the Diocese of South Carolina
(Diocese of S.C.)."
"All real and personal property held by or for the benefit of any Parish, Mission or
Congregation is held in trust for the Church and the Diocese thereof in which such
Parish, Mission or Congregation otherwise existing over such property so long as
the particular Parish, Mission or Congregation remains a part of, and subject to, this
Church and its Constitutions and Canon."
CHIEF JUSTICE BEATTY: The primary argument Appellants make to this Court
is the 2017 Court made a final decision that all real property formerly owned by the
twenty-nine Parishes is now owned by the National Church and the Associated
Diocese. It is clear that in 2017 Justice Pleicones and Justice Hearn would have
decided all of the Parishes acceded to the Dennis Canon and created a trust in favor
of the National Church. 421 S.C. at 230, 806 S.E.2d at 92 (Pleicones, A.J.); 421
S.C. at 245, 806 S.E.2d at 100 (Hearn, J., concurring). It is equally clear, however,
that Justice Kittredge would have decided all of the Parishes revoked any trust in
favor of the National Church, 421 S.C. at 257, 806 S.E.2d at 106 (Kittredge, J.,
concurring in part and dissenting in part), and that Justice Toal would have decided
none of the Parishes created a trust in favor of the National Church, 421 S.C. at 280,
806 S.E.2d at 119 (Toal, A.J., dissenting). Therefore, as the parties argued to this
Court, the underlying question in determining whether the 2017 Court made a final
decision is what outcome I intended in my 2017 concurring opinion. As I explained
during oral argument in this case, I did not vote to end the case in 2017. Rather, I
intended to reserve final judgment as to each individual Parish until the circuit court
decided on remand whether each individual Parish acceded to the Dennis Canon.
JUSTICE JAMES: In his concurrence, Chief Justice Beatty correctly summarizes
the five 2017 opinions. Since I was not one of the five authors, I write separately to
explain why I concur in Justice Few's majority opinion.
Two members of the 2017 Court deferred to ecclesiastical law and concluded a trust
over every Parish's real property was created in favor of the National Church. The
other three members of the 2017 Court concluded neutral principles of law must be
applied to determine whether a real property trust was created (and I agree). Two of
those three members concluded express accession to the Dennis Canon was enough
to create a real property trust. The remaining Justice, Justice Toal, concluded South
Carolina law required more than express accession and that no real property trusts
were created. So, when counting the "votes," two Justices concluded trusts were
created through deference to ecclesiastical law, and two Justices concluded trusts
were created if the Parish expressly acceded to the Dennis Canon; consequently, the
collective result of the 2017 opinion was that a real property trust was created by a
Parish if the Parish expressly acceded to the Dennis Canon.
In my view, Justice Toal was correct—express accession to the Dennis Canon was
not enough to create a real property trust under South Carolina law; however, that
ship has sailed. We have no choice but to honor the collective result of the five 2017
opinions and to apply the "express accession" approach to each Parish's real
property. Try as I might, I cannot disagree with Justice Few's dissection of the 2017
opinions and his analysis of each Parish's real property; therefore, I reluctantly
concur.