One would suspect that a decision might be as early as late as this Thursday afternoon – but nothing has gone according to ‘chalk’ in this process yet.

When the hearing on the Temporary Restraining Order granted to the Plaintiffs in the lawsuit against the General Synod of the Associate Reformed Presbyterian (ARP) church was adjourned last Thursday (March 25th), both sides were given until Tuesday (March 29th) to file ‘Supplemental Memorandum’ in addition to their original documents.

By close of business on the 29th, both sides had filed the papers with the Court of Common Pleas for Abbeville County. Copies of both documents have been made available to The Aquila Report.

The Plaintiffs (persons filing the lawsuit) in the case are Dr. Richard Taylor and Dr. Parker Young, members of the ‘current board’ at Erskine, along with David Chestnut and the Executive Board of the Erskine Alumni Association).

To set the stage for the arguments we should begin with the South Carolina law which governs hearings such as the one still in progress. In the Plaintiff’s Original Supporting Memorandum, they define the Legal Standard for such hearings, by stating the following:

“For a preliminary injunction to be granted, a party (that is the Plaintiffs) must establish that,
(1) he would suffer irreparable harm if the injunction is not granted;
(2) he will like succeed in the litigation; and
(3) there is an inadequate remedy at law (which is to say, he has no other recourse).
Everyone agrees that these are the ground rules in play. The Plaintiffs must win on all three of these points, or they have failed to meet the legal standard for an injunction.

Let’s take each of these points one by one.

(1) In the matter of ‘irreparable harm’ the Plaintiffs central claim, stated in the original filing of the case, is thus: “If the Court does not grant the requested relief, Erskine will have two separate bodies that claim to be its Board of Trustees. This is an obviously untenable result, and one that will inevitably result in irreparable harm.”

As ‘risks’ which are ‘obvious and numerous, the list (only some reported here):
– Existence of Two Sets of Bylaws
– Possible election of an invalid President, whose actions would be invalid
– Deprivation of Plaintiffs Parker and Young of their board seats, resulting in their not being able to participate in a ‘planned massive restructuring of Erskine’.
– Interference with Board Representation of Mr. Chestnut and the Alumni Association, in that ‘it appears that the intent of Synod’ is to ‘end the Alumni Association’s representation on the Board.’
– Other ultra vires actions that could not be undone (i.e., actions ‘beyond the scope or in excess of legal power or authority’, such as: fire employees, hire employees, dispose of property, direct and control assets, etc.

In response, the Defendants (Synod) argued at the hearing and in their supplemental memorandum two responses:
– the first, that the Plaintiffs are not officially speaking for Erskine, but for themselves, and that Erskine spoke when the board withdrew its initial lawsuit. The Plaintiffs should be limited to arguing irreparable harm to themselves as persons and an unincorporated association that is a part of Erskine itself.
– and secondly and in more detail, that the Plaintiffs claims are ‘nothing more than vague fears about what may happen, without any facts or basis to establish the probability or likelihood’ of the harm. The Memorandum then goes into detail seeking to refute each of the examples listed above by the Plaintiffs.

This appears to this writer that this first standard will require a subjective decision on the part of the court.

(2) The second legal standard which must be met is the ‘likely success’ of the Plaintiffs. The Plaintiffs base their arguments primarily on the assertion that the Synod did not have the legal right to take the actions approved at the meeting on March 3rd.

The plaintiffs claim that the 1977 Bylaws, filed with the State of South Carolina, are in fact amendments to the 1872 Charter, and that as such they represent the legal principles by which the case should be judged. These bylaws give a clear definition on how a Trustee may be removed for cause by the Board of Trustees themselves. Since all sides admit the sequence described therein was not followed, therefore there is no further right to the Synod to remove Board Members.

The defendants argue that this paragraph describes one of a number of different ways that a Trustee may be removed, and that they continue to have the rights originally granted in the charter. They state in their brief that, according to the cardinal rule of statutory interpretation, one is to “ascertain and effectuate the intent of the legislature” (Hodges v. Rainey, 2000). The argument is that, although the Erskine Charter does not expressly provide for the Synod to have the power of removal, it does clearly set for the power of appointment and the power to fill all vacancies whether as a result of ‘death, resignation or otherwise.” In 1872, continues the argument, the power of appointment included the power of removal, especially in a legislative charter.

Clearly this is a point of law for a court to determine.

(3) The third and final legal hurdle to jump involves the ‘inadequate remedy at law’ principle, which is to say that Plaintiffs have no other choice but to bring this lawsuit. In the original memorandum, their case is stated that “there is no legal remedy to compensate for depriving a duly elected Trustee of a seat on the Board, for a takeover of the presidential selection process, for an illegal rewriting of the Bylaws, or for the other enumerated harms.” No additional argument is given in the supplemental argument.

In response, the Defendants argued at the hearing that, since the Plaintiffs do not have legal standing to bring this lawsuit, they could have, as individuals, filed for damages in Probate Court, which would have been similar to ‘loosing a parking pass for football games.’

Once again a reminder, this is just a quick summary of the issues that have been presented to Judge Griffith. He has promised a decision in no less than 10 days and that 10 days expire on Easter Sunday, and Good Friday is a holiday and the clerk’s office is closed for the day. One would suspect that a decision might be as early as late as this Thursday afternoon – but nothing has gone according to ‘chalk’ in this process yet.

Whenever it comes, it will be filed with the Abbeville, SC Clerk of Court, as that is where the case was filed and where it is expected to be heard.

The Aquila Report is aware that a number of our readers are trained for and skilled at the practice of the law. If any would like to read all four briefs and then write a commentary article for the magazine, please email [email protected]. We are open to more insight.