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January 23, 2013


SC Court Issues Temporary Restraining Order to Keep ECUSA from Stealing Diocese’s Identity

Late this afternoon (5:11 p.m. EST), the Circuit Court of South Carolina in Dorchester County (the Hon. Diane S. Goodstein presiding) issued a Temporary Restraining Order (“TRO”) which declares:

No individual, organization, association or entity, whether incorporated or not, may use, assume, or adopt in any way, directly or indirectly, the registered names 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 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. Again, this seal and these names are those registered by this Plaintiff corporation [Bishop Lawrence’s Diocese of South Carolina] with the South Carolina Secretary of State.

The order was issued following an ex parte hearing before Judge Goodstein yesterday, and after Bishop Lawrence’s Diocese posted a bond set by the court at $50,000. A hearing may be held “ex parte” in cases of urgency, in order to prevent immediate harm from occurring. The opposing side does not need to be present; indeed, the Episcopal Church (USA) has not yet entered an appearance in the case, and does not seem to have been represented at the hearing.

The purpose of the bond is to ensure that any damages that may be caused by the Court’s issuance of the TRO without first hearing from the opposite side will be covered; such bonds are required by law as a condition of the issuance of a TRO, and the amount is fixed by the Court in each instance based upon individual circumstances.

The immediate urgency requiring the ex parte hearing, from the point of view of Bishop Lawrence and his Diocese, was the scheduled meeting this Saturday of the Episcopal remnant in South Carolina which desires to organize a new diocese within the Episcopal Church (USA) to replace the one that has withdrawn. In issuing notices for the meeting, the national Church and those working in concert with it have claimed the right to use the names and seal described in the Court’s order, which belong (by South Carolina law) to Bishop Lawrence’s Diocese.

The Court’s reasoning for issuing the order states in part:

The Diocese of South Carolina has three registered names and one registered mark and, as shown by affidavit, the Defendant, or others appearing to act in its name or under its control, have allegedly and repeatedly used these names and mark, including those so similar that they are to be the Diocese of South Carolina. This use has clear ability to cause confusion over the identity of the corporate entity of The Diocese of South Carolina. The Diocese of South Carolina has been using these registered names and mark in the ordinary course of its business as the Diocese of South Carolina, both before and after its association with the Defendant. By affidavit Plaintiff states its concern that a meeting scheduled to be held January 26, 2013, by those purporting to be this corporate entity but who in reality are not the corporate entity of the Plaintiff, could intentionally affect the corporate status of those uninformed that the actors are not, in reality, the corporation. In order to avoid any confusion, this Order is issued.

The issue at bar is whether the taking of action by those not authorized with corporate authority will so infringe on the rights of the Diocese of South Carolina, that the Diocese of South Carolina will suffer immediate and irreparable harm for which the law cannot adequately remedy. The Court is convinced this burden has been met. The use of the names and marks of the Diocese of South Carolina can affect its good will, its third party relationships and create confusion among those with whom it deals in the ordinary course of its business. In short, the ongoing business of the Diocese of South Carolina could be irreparably injured if corporate changes occur in its name, implemented by those without actual corporate authority.

The order goes into effect immediately, so it will essentially force the remnant group meeting this Saturday to adopt a different name for the entity it will form, and by which it will be known. The governing documents which are scheduled for approval (a Constitution and Canons based on the former diocesan version before changes were approved in 2011 and 2012) will need to be changed to remove all references to “the Protestant Episcopal Church in the Diocese of South Carolina” and “the Episcopal Diocese of South Carolina.” The order will remain in effect until February 1, when a hearing will be held starting at 9:00 a.m. in the Richland County courthouse on a preliminary (“temporary”) injunction, pending the trial and final resolution of the case. (I am not sure why it is not to be held in the Dorchester County courthouse at St. George; perhaps some South Carolina attorney will enlighten us on injunction procedures there.)

This order, despite its temporary nature, represents a huge advantage gained in the lawsuit which Bishop Lawrence’s Diocese brought early this month, after all attempts had failed to get the remnant Episcopalians to cease voluntarily their appropriations of the diocesan names and corporate seal. (The Diocese announced yesterday that fifteen other parishes had joined in the lawsuit, and that thirteen more are considering joining it later, which would bring the total number of plaintiffs to 44. Perhaps this ruling will provide the spur they need to make their decision.)

The Court has found, based just on the showing presented ex parte by Bishop Lawrence and his capable attorneys, that the plaintiff Diocese made “a prima facie showing . . . as to the likelihood of [its] success on the merits.” In other words, the Diocese showed to the Court sufficient indicia of its ownership of the registered marks (the names and corporate seal) that the Court believes it will prevail in the ultimate lawsuit.

And that represents a substantial uphill burden for ECUSA and its attorneys to overcome. They start off on the wrong foot with the Court, because the remnant group under their direction simply arrogated the names and seal to their own use, without first going into a court to make their case. (Of course, they were under the disability that they will not be legally recognizable in a South Carolina court until after their organizational meeting this Saturday.)

Implicit in the Court’s ruling is an even weightier and more significant finding: that the Diocese of South Carolina has the legal right, under South Carolina law, to withdraw from ECUSA and retain its corporate and individual identity. That finding, once it is formalized in this case, will put the final lie to 815’s mantra that “People may leave the Church, but Dioceses may not.”


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31 comments

Very very cool news, Allan.  Thanks for this!

[1] Posted by Sarah on 1-23-2013 at 08:55 PM · [top]

This will definitely put a crimp in the plans for the loyalist “con”-vention on Saturday.  Will definitely be on the look out for signs that use the name and seal!

Mr. Haley, I am not sure and I am not a SC attorney but the registration of corporations and trademarks is done thru the SC Secretary of State’s Office which is indeed in Columbia, SC (Richland County). That may be why the hearing is to be in Columbia. I gather the trial will be in Dorchester County.

I really like the last paragraph. Very cool!! Finally the lie that “people can leave but dioceses can not” will be put to rest once the decision in this case is reached.

[2] Posted by SC blu cat lady on 1-24-2013 at 02:58 AM · [top]

Tis is good to hear.

[3] Posted by Br. Michael on 1-24-2013 at 07:05 AM · [top]

This is wonderful news.  If only the other states who have been legally called upon to use “neutral principles” in property disputes had actually done so.

[4] Posted by Katherine on 1-24-2013 at 08:27 AM · [top]

I suspect 815 will consider this an opening gambit. I am glad to see this new strategy as I was getting tired of watching the Queen’s gambit unfold.

[5] Posted by Undergroundpewster on 1-24-2013 at 09:15 AM · [top]

The remnant group’s former website has been taken down, so the TRO did its job.

[6] Posted by A. S. Haley on 1-24-2013 at 09:53 AM · [top]

Mr. Haley, I am still getting the remnant group’s website so I’m not sure.

[7] Posted by Branford on 1-24-2013 at 10:06 AM · [top]

Me too! The TEcies website is still up. It can be easily found. I do see that they have continued to use the diocesan seal on their registration forms.  I wonder how long it will be before they comply with Judge Goodstein’s TRO? If ever?

[8] Posted by SC blu cat lady on 1-24-2013 at 10:32 AM · [top]

Hooo-AAAHHHHH!

I wonder if the TEC group will let DioSC spies into their little meeting this weekend.

I assume that the PB will convene the meeting, declare that a quorum is present, and that nobody will have the b*ll*cks to challenge her ruling. Of course, with it being a new entity, I guess that won’t matter so much.

One of my friends will attend MA for the first time. I’m sure she will have a report for me afterwards.

[9] Posted by Ralph on 1-24-2013 at 10:37 AM · [top]

At 11:02 a.m. EST 1/24/12 I still see “The Episcopal Diocese of South Carolina,” obviously the TEC group, online at your link, A.S. Haley, with what looks like the Diocesan logo at the top right.  Worse yet, a Google search for “Episcopal Diocese of South Carolina”  does NOT bring up any links to The Diocese of South Carolina (diosc.com).  Is “The Episcopal Diocese of South Carolina” the remnant group’s chosen name?  If so, all they have to do is remove the other Diocese’s logo from their site and they’ll be legal.

The Diocese might want to look into paying a fee to get Google to bring up its site as a search result.

[10] Posted by Katherine on 1-24-2013 at 11:10 AM · [top]

#7 & #8—Interesting. As of 07:53 AM my time (PST), the browser reported that there was no such URL to be found. As of 8:06 AM PST, Branford reported that it was back up. And now I can get it too, so they have definitely reconsidered their response to the TRO.

If they plan to defy the court’s order and pay any fines imposed, that is a very poor strategy for the short term, IMHO. They already have one strike against them for usurping the marks in the first place, and if they disobey a court order they are practically ensuring that the court will be disinclined to hear their supposed justifications. In this country, everyone is required to obey the law first—unless they want to pay the price.

And a court that sees its orders being willfully disobeyed by an entity with coffers like the Episcopal Church (USA) has ways of making it very expensive, very quickly.

[11] Posted by A. S. Haley on 1-24-2013 at 11:14 AM · [top]

They need to get that logo off their site immediately, along with any verbiage indicating that they represent anyone but the dissenting parishes and missions.

Conversely, DioSC needs to get Google to bring up its site as a response to searches.  Some smart geek at the remnant group has engineered it so they’re the only ones that come up.  They’ve probably paid a fee.  Perfectly legal, but the Diocese needs to pay one as well.

[12] Posted by Katherine on 1-24-2013 at 11:21 AM · [top]

I take it back.  The Diocese does show up, but if you add “episcopal” to the search terms, it doesn’t.

[13] Posted by Katherine on 1-24-2013 at 11:22 AM · [top]

Notice the red banner at the very top of the South Carolina Episcopalians website—once the order is personally served upon them, they run the risk of contempt fines if they continue to disobey it. So maybe the people running the official website have not yet been served, or are evading service. That tactic might buy them a day’s time, at most.

Notice also the hissy fit at that same SCE site. The order issued ex parte now becomes one issued “without hearing arguments” from ECUSA or its remnant group. Well, that’s because (1) only ECUSA is a defendant, and (2) ECUSA’s attorneys have not yet answered the lawsuit, or entered their appearance. When and if they do, they will be entitled to be heard.

Also, the lawsuit—for just declaratory relief, as to who is entitled to use the registered marks of the Diocese—is now “mean and vindictive.” Really? Just wait until you see the lawsuit the remnant group will bring against Bishop Lawrence.

[14] Posted by A. S. Haley on 1-24-2013 at 11:38 AM · [top]

I’m going to take the link in #14 down in a few minutes, so as not to garner them too many hits from the SF site. Perhaps we can put up a screen capture if people want to continue to see it. Against a flaming red background, it says in white letters:

“Warning !!!

“SC Episcopalians has been served with an Order by SC Judge Diane Goodstein to stop refering to the officially-recognized Diocese of South Carolina as ‘The Diocese of South Carolina’ or ‘The Episcopal Diocese of South Carolina.’

“The Judge’s Order also applies to individuals who might use these terms.  Please do not read any of these articles out loud, or you could be in violation of SC law and possibly subject to arrest.”

Poetic justice can be sweet.

[15] Posted by A. S. Haley on 1-24-2013 at 11:43 AM · [top]

So they’re violating the law, and they’re upset that someone has noticed.  The “Episcopal Diocese of South Carolina” website, which is still up, has, on its “About Us” section, a complete list of South Carolina parishes with stars in front of the ones “not in union with the Convention.”  They need to get any mention of parishes and missions not belonging to their group off their website, and do it soon.

[16] Posted by Katherine on 1-24-2013 at 11:51 AM · [top]

I would think that the judge would notice. I don’t know what powers of enforcement she would have in SC, but I can’t imagine that presumably competent (and presumably expensive) attorneys would be advising the TEC leadership and the TEC SC group to ignore a court order - unless they know something we don’t.

[17] Posted by Ralph on 1-24-2013 at 12:15 PM · [top]

Mr. Haley, Did you mean to say that SC Episcopalians needs to stop referring to themselves as the Diocese of SC or The Episcopal Diocese of SC? We know that the Steve Skardon is “geek” behind both SC Episcopalians and the Episcopal Forum websites. It would not surprise me to find out he is responsible for the faux diocese website as well. I think that screen capture and a redirect from their website to the Diocese’s correct website is probably a good idea.

I don’t think anyone should infer that the Diocese is not doing anything about this TRO just because some websites have not changed yet. As Mr. Haley wrote, it could be the person responsible for these websites does not know yet that a TRO has been filed against them. BTW, you can contact them at their website and make them aware that a TRO has been filed and to please take down the website. I did just that this morning. Their email is .(JavaScript must be enabled to view this email address)


Katherine,
Nope. The remnant need to find a new name that does NOT include the words “Episcopal Diocese of South Carolina” as that is one of the registered names of the real diocese. (The diocese has three registered names and one registered trademark [the diocesan seal])
I just did a search on “Episcopal Diocese of SC” The first two links are to the real diocese’s website. The faux diocese is #4 below a google maps of a couple parishes.


Ralph, Yes visitors are allowed to register for the “con”-vention in Charleston on Saturday. We will already be in Charleston for Mere Anglicanism so we won’t be attending. [Why bother?] Yes, I know people who will be attending the “con”-vention who are not Forum/Tec- ies as visitors.

[18] Posted by SC blu cat lady on 1-24-2013 at 12:36 PM · [top]

Mr. Haley:  Knowing TEC, the PB and the True Believers of the Left, I expect that they will most certainly ignore the court’s injunction.  When you say

If they plan to defy the court’s order and pay any fines imposed, that is a very poor strategy for the short term, IMHO.

you are assuming that TEC believes itself to be bound by “ordinary law” and “ordinary practice.”  But for years, many courts have exempted TEC from ordinary law and practice, and the PB and her True Believers think that they will prevail in South Carolina as well.

Just read the stuff at the “South Carolina Episcopalians” site - a solid connection with reality is NOT one of their strong points.  Thus I would think that the PB’s True Believers are reacting to this court’s injunction as follows:

“This court decision is wrong and will be overturned.  We wrongly didn’t even get the chance to put our arguments forward.  What’s more, this is an inside job that will surely be overturned by other courts.  There is no way that we will lose, and so we will take our chances and when the time comes, we will sue those fascist, anti-gay, anti-mom, and anti-apple pie bigots into the stone age, and then we’ll see who’s laughing.”

So, I doubt very much that you will see any compliance, at least not until this injunction is upheld at the full hearing, or perhaps not even until the appellate process has run out.

[19] Posted by jamesw on 1-24-2013 at 12:58 PM · [top]

Thanks, SC lady.  I suppose they could go for “The Episcopal Church Diocese of South Carolina.”

jamesw, as the Curmudgeon points out, ignoring court orders is not a great way to impress the Courts in subsequent proceedings.

[20] Posted by Katherine on 1-24-2013 at 01:18 PM · [top]

Katherine - you are right, but you need to think like the TEC affiliated group does (yeah, I know that’s hard to do).  They would, without doubt, completely agree with you in any OTHER circumstance.  But in THIS circumstance, they believe that the court which issued this TRO is so out of line, that the future courts will forgive any transgression of the TRO and will mightily punish this judge and the (real) Diocese of South Carolina for issuing it.

In any case, I expect that today there will be or has been some very interesting discussions between the TEC group’s leadership and its attorneys.  It will be interesting to see if the wingnuts heed their attorneys’ advice.

[21] Posted by jamesw on 1-24-2013 at 01:36 PM · [top]

Jamesw,
Yep, I agree. These SC Episcopaganuts are definitely not solidly connected to reality. Have to admit that can be part of the fun reading Skardon’s websites.  He does not allow reality to interfere with his thinking- pure illogical froth and venom! Skardon has already written at that *unmentionable* website that the TRO only lasts 10 days.  Also, he has quite playfully XXXXXed out any letters after the first letters so…..  Episcopal Dxxxxxxx ox Sxxxxx Cxxxxxxxx is how the name appears- too cute! So while they may choose another name for 10 days, I suspect they are expecting the hearing to validate their reasoning and hence this TRO is just a 10 day delay and not a problem at all.

The possibility of the hearing on Feb 1 leading to an actual injunction for the length of the trial does not appear on their legal radar. These people are so delusional!! 

Mr. Haley how large could the fines be that they may have to pay for being in violation of the TRO?  Their registration forms have the name and diocesan seal on them.

[22] Posted by SC blu cat lady on 1-24-2013 at 02:30 PM · [top]

All we actually know for certain is the web site is still up.  It MAY be a conscious decision on the part of the 815 (although I doubt it, they seem to have cleaned up their own recent ENS release), or local pro TECites in SC, or (and this seems likely to me) whichever individual set up the website and has the password and is holding out.  The sites web host (whoever and wherever they are) will not likely take it down on their own authority until their own lawyers have a copy of the TRO.  Heck, once upon a time, the local TEC diocese had their website on a Mac belonging to one of the diocesan officials and running in his back office (took me forever to download all those Thew Forrester sermons).

[23] Posted by tjmcmahon on 1-24-2013 at 03:47 PM · [top]

It is always ice when common sense and the law coincide.  This ruling essentially says to TEC, “you can have your canons and say that someone is no longer a bishop or member of your little group if you want to, but you cannot usurp the names and trademark of a registered South Carolina corporation just because you say you can”.  Good call by the judge.  May God bless her, and may common sense prevail in the final outcome.

[24] Posted by ToAllTheWorld on 1-24-2013 at 04:33 PM · [top]

Perhaps TEC should look at buying up the url’s:

dioSodo.org
diosodom.org
SCsodom.com
SCchurchofsodomy.org
SClisteningprocess.org
dioabortyourbaby.org

etc. forthwith.

[25] Posted by midwestnorwegian on 1-24-2013 at 06:22 PM · [top]

My money is that TEc’s legal strategy depends on them continuing to use the name.  I would not be surprised to find out that this comes straight from 815. Remember this is the group that had in place a steering committee in October before our special convention back in Nov. So you bet they have been guided by 815 for many months. While TEC seems to have cleaned up their ENS story, they are aware of the problems of violating court orders and don’t want to be found in violation. The local group is very arrogant that everything will go their way based on previous court cases.

Think about it. What are their choices come Saturday at their “convention”?

Option A:
If they take another name and incorporate under that name,  how can that group then claim ownership of property which rightfully belongs to however many parishes/missions filed their quitclaim deeds? They are essentially admitting that they are a different corporate entity. That could be fatal to their legal strategy from the get go.

Option B:
They continue to use the name and seal in violation of the TRO and hopefully the injunction come Feb. 1. While they may have to pay fines (perhaps hefty ones) for being in violation, I doubt they consider it a longterm problem. They are not convinced that the TRO will become an injunction on Feb 1.  So what if they have fines to pay for 10 days? 10 days is a mere bump in the road on the road to legal dominance and ownership.

It is really a lose-lose situation for them.

The one possibility that they don’t consider possible is that the injunction will be ordered on Feb 1. That injunction will make the rest of their strategy very problematic. How are they going to convince the SC courts that they are the same corporate entity if they can not use the name and seal? Also trying to freeze accounts is going to be much harder if the diocese has an injunction against them.

This TRO was a masterful stroke by the diocese and Judge Goodstein of the First Circuit Court. This and an injuction may make the rest of their strategy incredibly difficult. Not impossible but very difficult. They won’t be giving up the strategy that has worked in other places regardless what the courts or judges may be saying. They are just too arrogant to believe that their strategy may not work.

[26] Posted by SC blu cat lady on 1-24-2013 at 06:55 PM · [top]

I’ll bet that the faux convention simply decides to rename the “Diocese of South Carolina” something else, assume a new seal, and then declare that this newly named entity is the real continuing diocese that owns everything, etc., etc.  They will continue to use the DSC seal and name until then (i.e. until tomorrow) and then plead to the courts that it took them a couple of days to take down their website.

[27] Posted by jamesw on 1-24-2013 at 08:18 PM · [top]

OK, they’ve now complied (technically) with the TRO. But only grudgingly: they are now officially “the Episcopal Church in South Carolina”. (And notice, too, that the word “diocese” has been eliminated from their URL—although the old one still refers to the new one.)

And that raises the possibility of a future claim of confusion over registered trademarks. Maybe they should claim “The Episcopal Church™ in South Carolina”, and try to assert that “TEC” is a federally protected mark.

Even so, however, how would “TEC in SC” be that different from “PECUSA in SC”?

They are really boxed in here, because they want to assert their “national brand” within the State—but that brand has been already asserted continually over the last 240+ years in South Carolina by an entity which is now legally different from the one which they will form on Saturday.

[28] Posted by A. S. Haley on 1-24-2013 at 09:31 PM · [top]

[Addendum to last comment:] What their quandary illustrates, really, is that “TEC” is an invented and ephemeral entity, created by 815 only within the last 40 years or so, not matched by any substance on the ground, and that when critically examined, there is no “there” there.

That’s what happens when you try to mess with solid history.

[29] Posted by A. S. Haley on 1-24-2013 at 09:35 PM · [top]

Interestingly enough they still have information about the diocesan seal on their website, a listing of all parishes,etc. So i expect the judge’s idea of compliance means more than the home page. 

Yes, I see their problem.  Once they form a new corporation (which they must do on Saturday as they can not use the diocese’s name anymore)  their strategy becomes a huge problem. How can they claim to be the group that has existed since 1785 and yet be an entity that elected a bishop on this coming Saturday when that corporate entity still has a bishop which the judge has recognized as an officer of that corporation?  It is a real conundrum. That is why it would be best if they just form a new diocese with a new name and get on with it and forget the lawsuits over property. Is that too much to ask??

[30] Posted by SC blu cat lady on 1-24-2013 at 10:20 PM · [top]

Yes, the Remanent is in quite a pickle.  The next two days shall be very interesting.

[31] Posted by BillB on 1-25-2013 at 02:25 PM · [top]

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