First a disclaimer. I am neither a lawyer nor the son of a lawyer. So this is an Opinion/Commentary, not a news story.

This analysis is simply one person reading the Appeal Court decision and the words in the Appeal Petition which asked for the Appeal Court to take action and trying to make some logical connections between the two. So this is an Opinion-Commentary Article, not a news story.

Since The Aquila Report is staffed by two unpaid volunteers, we are not always able to do ‘complete journalism’ before posting, which is why last Thursday’s story said a further analysis of what the court decision really meant would follow at a later date. This is it!

The headline of the story posted on this Web Magazine this past Thursday (May 27), reads: ‘ARP Synod Wins A Little’. After making a more thorough analysis of the Appeal Court’s action to strike down several sections of the Preliminary Injunction filed against the ARP Synod, I think it is safe to revise that headline. It should read ‘ARP Synod wins more than a little’!

In striking down four of the five operative sections in the Preliminary Injunction handed down on April 9, the South Carolina Court of appeals did more than just take out extraneous material that simply amplified the first operative section that remains in place. Those five sections are repeated here for ease of understanding:

1. Removing, or attempting or purporting to remove the Board of Trustees of Erskine as it existed prior to March 3, 2010 (the “Existing Board”) or any member thereof, with the result that the Existing Board (taking account of any change in its composition pursuant to Erskine’s Bylaws) will be recognized as the Board of Trustees of Erskine;

2. Appointing any new Trustees of Erskine, except for annual appointment of five Trustees to fill expiring terms in accordance with Article II, Section 3 of Erskine’s Bylaws, and except for the filling of vacancies in accordance with Article II, Section 7;

3. Convening or encouraging the convening of any group other than the Existing Board that claims to be the Board of Erskine;

4. Declaring any group other than the Existing Board to be the Board of Erskine; and/or

5. engaging in any transaction or activity in which the restrained party purports to control or act for or on behalf of Erskine, or purports to control or dispose of the property, funds, or other assets of Erskine other than pursuant to authorities or arrangements existing prior to March 3rd, 2010 and only to such extent the actions are undertaken in the restrained party’s capacity as an existing trustee of Erskine or employee of Erskine, and are normal for and appropriate to that capacity.

A first reading of the Court of Appeals order striking down sections (ii), (iii, iv, and v above might look like these four were just extra, more detailed expansions of what is said in section i. This is what the Court said:

The Circuit issued a Preliminary Injunction. The General Synod as appealed the Preliminary Injunction and now moves this Court to suspend or modify the Preliminary Injunction during the appeal. We grant the motion in part, and modify the Preliminary Injunction as set forth below……

Respondents (members of the Board of Trustees) theory of the case in the Circuit Court and here is that the General Synod did not have authority to remove Trustees without following procedures set forth in Erskine’s bylaws, and that the Erskine College Board should exist today as it did before March 3, 2010, the date the General Synod purported to remove the Trustees.

Paragraph (i) of the Preliminary Injunction prohibits the General Synod from: (repeats text from above).

This paragraph (i) appears narrowly tailored to alleviate the threatened harm.

Up to this point all sides seem to be in agreement. The key issue of the case, and of the appeal, is this very issue of whether or not the ARP Synod has the authority to do what they purported to do on March 3. Even the Synod application for appeal recognizes that. But the Synod asked for more, and it is this ‘more’ that the Appeal court has granted. Back to the Appeal Court Statement.

No further restrictions on the General Synod are necessary to preserve the status quo between the parties during the pendency of the appeal. Therefore we strike provisions (ii), (iii), (iv) and (v), and accordingly grant the motion to modify this injunction in this very limited respect. Nothing in this order shall be construed as a determination of the merits of this appeal.

A simple reading of the words above “in this very limited respect” might cause one to believe that the Appeal Court action was very limited. But one can easily see that it was not that limited, when one compares the Motion for Appeal filed by the ARP Synod on April 19 and understand the arguments they presented to the Appeals Court in support of their motion.

As far as section (ii) above is concerned, the Synod Motion for Appeal did not single that section out for special consideration and apparently, the Appeals Court did find that one to be so closely tied to section (i) it was redundant. The same cannot be said for the other three sections.

The APR Synod Motion for Appeal set forth and strong and lengthy argument against sections (iii) and (iv) under the heading “Preliminary Injunction Should be Vacated, or Modified to Remove Constitutionally Offensive Provisions.”

They summarized their argument that these two sections amounted to an unconstitutional prohibition against free speech, commonly referred to as a ‘gar order’, using this language:

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.

While it should be pointed out that the Appeals Court did not specifically state that they found these two sections to be unconstitutional, it is not too far a reach to assume this argument was found to have at least some merit.

Then in arguing against section (v), the Synod Motion for Appeal under the heading “Preliminary Injunction Should be Vacated, or Modified to Remove Vague and Ambiguous Provisions.”

They make the point that section (v) enjoins parties to the case (e.g., members of Synod) from ‘engaging in any…activity…which…purports to control…the property, funds, or other assets of Erskine.” Using an illustration of the possibility of section (v) not allowing a member of the ARP Synod who had season tickets to a sporting event not being able to ask an usher to remove other rowdy spectators, the Motion to Appeal summaries the argument with these words:

The vague and ambiguous nature of subsection (v) of the Preliminary Injunction runs afoul of Rule 65(d) and should be significantly modified or deleted. In issuing preliminary injunctions, “a court must craft its orders so that hose who seek to obey may know precisely what the court intends to forbid.”

Again, without referring to these specific arguments, the Appeals Court struck down section (v). Again, it is not too far a reach to assume these arguments were found to have at least some merit.

So, where does the situation stand as of May 29, 2010? Exactly where the Court of Appeals said:

Respondents (members of the Board of Trustees) theory of the case in the Circuit Court and here is that the General Synod did not have authority to remove Trustees without following procedures set forth in Erskine’s bylaws,

Nothing in this order shall be construed as a determination of the merits of this appeal.

The issue is the same, both before the Court of Appeals and before the trial court (Circuit) – ‘Does the General Synod have authority to remove trustees without following procedures set forth in Erskine’s bylaws.’

First, the Court of Appeals must speak on whether to remove the remaining Preliminary Injunction, which will – according to the courts own words – requiring dealing with the key issue. That will not take place for several months, according to the estimates of the ARP Synod attorneys.

Then, even when the Court of Appeals completes it work, the full case of the lawsuit filed by three Erskine trustees must then be heard in the Circuit Court at the Abbeville Courthouse. Most ‘best guess’ estimates for this to occur are early in 2011.

In the meantime, much of the current silence which many members of the ARP Synod have felt was imposed upon them has been lifted and the Annual Meeting of the Synod can go on without any further interference.