March 5, 2013

The Episcopal Diocese Strikes Back

I thought it unfortunate that, after the schism in the Episcopal Diocese of South Carolina, the breakaway group led by former Episcopal bishop Mark Lawrence was first into court. Lawrence and his supporters filed suit January 4, 2013, in a state court “to protect the Diocese’s real and personal property and that of its parishes.” (See Episcopal News Service story here.)

The first party to court, of course, gets to frame the issues, and the Lawrence parties made corporate law arguments about registered trademarks and corporate registrations, rather than arguments about church polity. Moreover, they have prevailed in the early round of litigation, having managed to get the court even to prevent those who did not leave The Episcopal Church from calling themselves the Episcopal Diocese of South Carolina.

What Episcopalians consider the real Episcopal Diocese of South Carolina, which temporarily has to style itself The Episcopal Church in South Carolina, now has a provisional bishop, namely the Rt. Rev. Charles G. vonRosenberg. Today, Bishop vonRosenberg filed suit in U.S. District Court against “[t]he Right Reverend Mark J. Lawrence and John Does numbers 1-10, being fictitious defendants whose names presently are unknown to Plaintiff and will be added by amendment when ascertained.” (The complaint can be found here. The Episcopal Church itself is not now a plaintiff in the litigation.) The counterstrike by Bishop vonRosenberg is being brought under the Trademark Act of 1946 as amended.

A story on the complaint on the Episcopal Web site explains
Having renounced The Episcopal Church, Bishop Lawrence is no longer authorized to use the diocese’s name and seal. By doing so, he is engaging in false advertising, misleading and confusing worshippers and donors in violation of federal trademark law under the Lanham Act, the complaint says. It asks the court to stop Bishop Lawrence from continuing to falsely claim that he is associated with the Diocese of South Carolina, which is a recognized sub-unit of The Episcopal Church. …

Under the First Amendment, the designated authorities in a hierarchical church have the authority to determine how church controversies are resolved, not civil courts. The complaint cites two United States Supreme Court decisions: Serbian Eastern Orthodox Diocese v. Milivojevic (1979) and Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012).
Litigation now proceeds on two fronts. Ostensibly, the issues being argued in the state and federal courts are similar, but it is clear that Lawrence has an edge in the South Carolina courts, and vonRosenberg has an advantage in the federal courts. The battlefield has been leveled.

Update, 3/6/2013. The Post and Courier, a Charleston newspaper, has a story about the lawsuit today.

Update, 3/9/2013. The above post contains a link to the 21-page complaint. The complaint, along with accompanying exhibits is not available. The 273-page PDF file can be found here.


  1. There are indications, based on her past actions in an RC child abuse case, which is said to have sunk her chances of the place on the state supreme court at which she was then aiming, that the judge in the case in the state court was cherry-picked by Lawrence's people. She would also have ruled on whether or not the ban on the continuing diocese's using the name, seal, etc., of the diocese would be made permanent. The chances of a fair hearing may well be higher in the federal courts.

  2. Bishop vonRoseberg's newly formed TEC group in the Lowcountry of South Carolina is in serious jeopardy of having put itself in contempt of court by violating Rule 11 of the Federal Rules of Civil Procedure by blatantly ignoring a standing injunction of a lower court. Just last month Thomas Tisdale, the lead attorney on this filing and chancellor for vonRosenberg, agreed to the injunction issued by South Carolina Circuit Court enjoining vonRosenberg and his diocese in formation from misrepresenting themselves as The Protestant Episcopal Diocese of South Carolina (or any permutation thereof) within the State of South Carolina. Yet scarcely ONE MONTH later this very attorney, vonRosenberg's chancellor, does exactly that, defying the order of the injunction to which it agreed, and in Federal court, nonetheless and attempting to do an end-around of an outstanding action in circuit court (by the way, 28 U.S.C. Section 2283 prohibits two separate courts from considering the same matter simultaneously).

    1. Bryan,

      I appreciate your comment, but, not being an attorney, I cannot meaningfully respond to it. Certainly, the two actions are an odd pair.

  3. Mr Deimel, it is telling that David B. Beers did not enlist his firm in this suit. "Good luck storming the castle, boys!" I think what will happen here is what happened in Texas: the fed court will issue a stay pending the decision of the circuit court.

    You raise the question of the Diocese of South Carolina's seeming rush to court. It had no choice due to the upcoming claim of TEC faithful in South Carolina to organize a special convention, claiming to be the Diocese of SC. Had Lawrence and the diocese allowed that group to make decisions under the presumptive identity of the DofSC, it could have created a legal Gordian knot that Lawrence and his lawyers would have been hard pressed to unravel, and the judge who issued the temporary injunction rightfully recognized that. Moreover, registered marks and corporate identify must be vigorously defended else the group legally possessing them risks losing the right to them. Once the TEC group started representing itself as The Diocese of South Carolina, it left the DofSC little choice but to appeal to the courts--and swiftly. Kind regards, --BH

  4. Glad to hear that Mr Hunter has been following the situation in South Carolina so closely. It is nice to know that both the Lawrence group and the interim bishop's group have so much money to spend on lawyers. I hope that they are spending at least as much on their public charity programs. I have not, will not, and do not intend to get involved in any protracted debate which will be ultimately pointless to me in my daily life and will also not in any way influence the outcome in South Carolina. Therefore, engage in all of the name calling which you would like. Of course, I agree with few if any of Mr Hunter's arguments, which presumably only parrot the Lawrence arguments.

    Actually in the earlier comment, little of real substance has been addressed. Of course the Lawrence group cherry picked their state court judge and it would still be sad albeit very realistic if justice is decided by the race to the courthouse. Some of the Lawrence type arguments, in opposition to the federal filing, are unclear-is it the state court judge who issued the injunction? Is it a permanent injunction which already decides the outcome? Mr Hunter's seeming characterization of the state court as a lower court to the federal court is misleading (much as I would like it to be accurate). Does anyone seriously think that the interim Bishop violated a preliminary injunction by stating his opinion of his capacity in a federal court pleading filed to enforce federal trademark law? The Lawrence argument would prohibit the interim bishop from any access to federal courts even when the statement of (disputed) capacity is just an element in a trademark cause of action. Lawrence's opposition to the federal filing is simply a red herring, and it would be really sad if the the state court judge treats the filing of the federal action as a violation of his/her preliminary injunction.

    A question of sequence might remain which I will touch upon. The lack of procedural clarity which is being inflicted by the earlier comment can be found in the suggestion that a state court would use Federal Rule 11 as a basis to enforce its own injunction, if that injunction has been violated. Maybe the point is that the federal court will be asked to dismiss the trademark suit, using the argument that merely filing the action violated the injunction. Good luck with telling a federal judge that he is not allowed to get to the substance of the federal trademark issue. I doubt that any injunction violation can honestly be found but I do not claim to have read the precise language of the injunction. There is a major difference between out of court proclamations and puffery which may create confusion and should be enjoined, as opposed to in-court statements of position.

    Furthermore, the Federal Court is the correct place to bring an action predicated on federal law such as the Lanham Act. Although state and federal courts have concurrent jurisdiction over trademark law, the Lanham Act claims might improve the prospects for removal of the entire state court lawsuit to federal court. The federal courts are not trying to suppress religious freedom--it is just a fact that federal judges taken from the same local Bar are often a cut above state court judges.

    End of part one.

  5. Continuation from prior post: Mr Hunter's additional argument puts the bunny in the hat, by claiming that only the Lawrence group is the Episcopal Diocese of South Carolina. Mr Hunter's next reference is to Section 2283, better known as the anti-injunction act, which generally prohibits a federal court from barring a state court proceeding except where the state court action has already been removed to federal court. The Anti-Injunction Act does not stop a federal court from issuing orders to specific named individuals (and not to the state court) who are the parties to a federal law cause of action. It really overstates the case to argue that the federal filing causes an impermissible pendency of the same case in two courts. These are two different causes of action that happen to share between them one question of one party's capacity. End of part one. Go to part two.

    The federal trademark case is actually pretty interesting, to those of us who have paid no real attention to the South Carolina legal manuevering, because it raises the question of who gets to decide which group can use the trademarks and intellectual property of the ECUSA. Offhand, it should be tough for Lawrence to claim that he and not the ECUSA will decide who is entitled to usage of EC trademarks. It might be the case that the state court gets to decide first which group is which, before the federal court enforces trademark law, but not every judge worries about inconsistent results. Usually the advocates who most belittle publicly an opposing party's strategy are the ones who are the most worried about it. Overall, it looks like another variation of the Duncan strategy of pre-emptively claiming ownership to everything. The Pittsburgh Episcopal Diocese is better off without Duncan, and if the Lawrence group wants to leave then it should leave. Why every departing and dissident group thinks that it should take the hard assets is a mystery and raises real questions about what is really at issue. The Lawrence group should just shake the dust from their feet and be on their way. Absent in the news and the comments thus far is any information about the damage being done at the level of the day to day church-goer as well as the day to day good works of the Episcopal Church in South Carolina.

    No matter what happens, this is after all South Carolina. I keep hoping that South Carolina will work to improve its standing in western society, but then we are confronted with the Lawrence rebellion. A couple of years ago, Jon Stewart did a nice little study of what makes South Carolina distinctive in ways that no one really cares for. Remember that South Carolina was the earliest to demand secession and the first to start military action in 1861. This current entire situation brings to mind the final line of the movie "Chinatown" after the horrible ending to the plot has been witnessed: "Forget it Jake, it's just Chinatown". Maybe some day Mr Hunter and I can share notes on genealogy and our respective Scottish heritages-maybe we can find something to agree upon, there. Otherwise, well, reasonable minds can differ.


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