(Speaking of Judge Griffith who issued the injunction) “He found it to be likely in issuing his preliminary injunctions and he forbids anyone from expressing disagreement with that conclusion. As set forth above this is patently unconstitutional.

On April 19, the attorneys for the General Synod of the Associate Reformed Presbyterian Church (ARP Synod) filed a motion with the South Carolina Court of Appeals to suspend or modify the Preliminary Injunction in a case involving Erskine College. The Injunction was ordered by Judge Eugene C. Griffith, Jr. on April 9 in the Court of Common Please for Abbeville County.

The main points of the appeal are stated as follows:

In this case, the litigants dispute which one of the two boards is the rightful board of Erskine College. Judge Griffith entered a preliminary injunction favoring one competing board, and then enjoined the General Synod, its attorneys, or its active supporters, from expressing any disagreement. This is patently unconstitutional.

In addition, the preliminary injunction prohibits certain individuals from assembling together for any purpose and prohibits all enjoined parties from encouraging that these individuals should assembly together. These provisions are also patently unconstitutional.

Furthermore, provisions of those injunctions are so vague and ambiguous as to leave even the most conscientious adherent without confidence of compliance.

Finally, although the court established an injunction bond of $50,000, it allowed the respondents to satisfy bond requirement by filing with the clerk the sum of only 10% of the required bond amount. Under Rule 65 the Preliminary Injunctions should be declared null and void for failure to post the stated bond amount.

Because of the ‘gag order’ (first paragraph above) the language of the appeal uses the word ‘purported’ throughout the filing. This very awkward language is explained in a footnote to the appeal:

It is absolutely the position of the General Synod that these Trustees were in fact removed. However, for counsel to actually state this conclusion would violate Judge Griffith’s “gag” order. Therefore, the word “purported” will be inserted to avoid transgressing this unconstitutional provision in the preliminary injunction. If the necessary “purported” reference is inadvertently omitted anywhere, it is unintentional.

The Legal Arguments for the appeal are most strongly stated against the ‘gag order’. For instance,

In issuing its Preliminary Injunction, the Court below, enjoined the General Synod, its delegates, officers, agents, servants, employees and attorneys (well over 500 individuals across the United State and in Canada) from “declaring any group other than the Existing Board to the Board of Erskine.” Judge Griffith issued this pure speech prior restraint not because it would be illegal, or because it would incite violence, of because it would threaten the national security, but merely because he is of the preliminary opinion that this fact will likely be ultimately established in the underlying litigation. That is, he found it to be likely in issuing his preliminary injunctions and he forbids anyone from expressing disagreement with that conclusion. As set forth above this is patently unconstitutional.

A footnote to this paragraph states: “Prior to issuing the injunction, the constitutional impropriety of this provision was expressly pointed out to the court.”

Although he has made no public statements to the press prior to this point, Keith Munson, lead attorney for the ARP Synod explained the rationale for the appeal in an email to The Aquila Report:

As I am sure you can appreciate, with the breadth of the preliminary injunction concerning what can be “declared” or “encouraged” regarding the Erskine Board, I have been somewhat reluctant to answer reporters’ questions over the phone because I would hate to be paraphrased in a way that runs afoul of Judge Griffith’s Order.

Obviously, the ARP Church, disagrees with the underlying conclusion set forth in the preliminary injunction order. Preliminary injunctions, especially those including prior restraints on speech, are somewhat akin to being convicted before trial. Therefore, as a precaution to overly burdensome or premature preliminary injunctions, most states, including South Carolina, allow for their immediate appeal. By taking this immediate appeal, the ARP Church hopes to resolve the overall disputes as soon as possible so that all the parties and all other organizations and individuals interested in strengthening and improving Erskine College can move forward in a cooperative effort for the benefit of current and future Erskine students. The College’s decision in March to dismiss its lawsuit against the ARP Church was a significant step in the this direction. The Church remains hopeful for a similar conclusion with regard to the current lawsuit, which was initiated by a three individuals who are disappointed with the decisions made by both the Church and the College.

Mr. Munson also advises that the motion could be resolved by the Court of Appeal within weeks, although the Appeal itself will take months