We reported the decision of the United States Court of Appeals for the 5th Circuit in McRaney v North American Mission Board, Southern Baptist Convention, 996 F3d 346 (5th Cir. 2020), cert. denied, 210 L ED 2d 961, 141 S Ct 2852 (2021). The Plaintiff was formerly employed as the Executive Director of the General Mission Board of Maryland / Delaware. The Plaintiff alleged the Defendant made false statements about him that caused him to be fired from his position, caused him to be “uninvited” to speak at a large mission symposium, and posted a picture of him at the Defendant’s offices to malign him. The trial court dismissed the case on Ecclesiastical Abstention Doctrine grounds but the 5th Circuit reversed the dismissal. The only theories of recovery espoused were for intentional interference with business relationships, defamation, and intentional infliction of emotional distress. There was no employment claim made that might implicate the Ministerial Exception. We noted on remand there might be discovery.
In McRaney v North American Mission Board of the Southern Baptist Convention, Inc., Order Reconsidering Quashing of Subpoena (ND Miss. 2022), the federal trial court on remand vacated its order quashing the Defendant’s subpoena to the Plaintiff’s former employer to obtain the personnel file and other documents. The trial court did so based on the opinion of the 5th Circuit that the dismissal of the case on Ecclesiastical Abstention Doctrine grounds was premature. The trial court allowed the subpoena to be reissued and allowed the former employer to respond as they might to any subpoena seeking those types of documents.
If the evidence produced in response to the subpoena, if any is produced, proves the termination of Plaintiff was, indeed, based on ecclesiastical or church disciplinary policies, it may result in dismissal of the case a second time. It may also prove the termination of Plaintiff by the employer was caused, or not caused, by the actions of the Defendant. Employers must be rational in their creation of termination records and not let the angst or emotion of the moment cloud the record. The termination record should be documented under the supervision of counsel when the sensitive nature of the Plaintiff’s position, apparently as a sort of chief executive officer, seems to require an especially accurate record.
While we have examined many cases in which an insider, a member or a terminated employee, asserted defamation claims based on actions allegedly taken by a church, and typically found the outcome in those cases to restrict or prohibit the defamation claimed, there has never been a prohibition of defamation claims by outsiders. Likewise, defamation of outsiders, such as non-members, by a church or religious leader should never be considered a “safe harbor.”
In One for Israel v Reuven, Order on Defendant’s Motion to Dismiss (SD FL 2022), the federal trial court refused to dismiss a defamation case brought by missionaries employed by the Plaintiff against a vocal religious leader. The Defendant religious leader maintained a website, a mobile app, and a YouTube channel to promote religious belief. The Defendant posted a video to his platforms in which he alleged the Plaintiffs attempted to assault and batter a religious leader during a debate about certain religious issues. The video making the allegations was not a video of the event but only of Defendant’s allegations. The video was viewed 7,500 times, according to the Court, before the Defendant interviewed the alleged victim of the assault and learned no such assault ever occurred or was attempted. The Defendant alleged the missionaries were “public figures” and had to plead and prove “actual malice.” The Defendant alleged the Court would have to decide religious issues and therefore was prohibited from hearing the case by the Ecclesiastical Abstention Doctrine. The federal trial court held the missionaries were not public figures because the religious issue between the Plaintiffs and the allegedly assaulted religious leader, though important to the participants, was not a great public concern and was not “discussed in the news.” The Court held “theological debates do not generate comparable public controversy.” The Court held the Plaintiff’s lacked “special prominence” in the religious issue and could not be shown to be more than “tangential participants.” Finally, the Court held the alleged defamation had no relationship to the religious issues. The Court held the allegation of defamation was sufficiently pled as noted above and because “one can draw a reasonable inference that such a statement would likely have a significant impact on the profession of a missionary.” The Court held the defamatory statements did not raise any religious issue, but rather were about “a violent attack that did not happen.”
The federal trial Court might have overstated the general notion that religious theological debates “do not” engage the public notice or appear in legitimate news reporting. The better statement would have been, “usually do not.” The current movements toward disaffiliation from denominations over abortion and homosexuality clearly evidence it can be otherwise. Regardless, in the case reported, the issues may not have reached such prominence. The trial Court’s more important ruling was that the alleged “violent attack that did not happen” was not related to a religious issue. In Florida, defamation per se includes allegations charging someone with an “infamous crime” such as attempted assault and battery when it did not happen.
Typically, church management employees consist of clergy and clerical staff. Some churches are large enough to employ other additional managers and staff. Generally, these positions are financial management positions, child day care managers and other types of positions. The church staff accountant, the child day care director, and the facility manager are usually not strictly ministerial. Nevertheless, they may have ministerial duties. Those duties may or may not keep them inside the frontiers of the Ministerial Exception to federal or state employment laws and leave the church immune.
In Congregation B’Nai Zion of El Paso, slip op. (Tex. Civ. App. 2022), the synagogue employed an “executive director” but terminated her three years later. The terminated executive director alleged she was not a minister. The church alleged her duties included ministerial matters. In order to resolve the factual conflict, the trial court held the plea to the jurisdiction of the court in abeyance and ordered discovery on the merits. The appellate court held a jurisdictional appellate ruling was premature because the trial court had not ruled on jurisdiction. Thus, the appellate court remanded the case to the trial court to permit limited discovery on the jurisdictional issue. Upon termination of the executive director, the church leadership issued a letter explaining the termination to the “voting members” but never mentioning the former employee by name. The terminated person alleged the letter was defamatory because the letter reported the implementation of a new financial audit requirement. The church alleged the letter was required to achieve financial transparency as required by governing documents.
We must await further rulings or developments regarding whether an “executive director” or “office manager” (as the former employee explained the duties of the position) is sufficiently ministerial to trigger the Ministerial Exception. Also, whether the report of events to the “voting membership” in a letter was defamatory has yet to be decided. The real lesson of the reported case is that interlocutory appellate review to extinguish expensive full-blown discovery in a case the court will likely hold is barred by the Ecclesiastical Abstention Doctrine or the Ministerial Exception must not be premature. There must be sufficient record, i.e., evidentiary materials, so that the court can easily see there are prohibited ecclesiastical inquiries required to decide the issues. The duties of an “executive director” or “office manager” typically will be sufficiently ministerial to trigger the Ministerial Exception because such an employee operates at the clergy level to operate the infrastructure of the church. Intertwined with church governance issues such an employee will be typically immersed in confidential ministerial decision making even if they are not leading worship services. Such an employee may decide which minister will lead at least on a given day.
Determining the ownership of church property requires in denominational churches more than a copy of the deed. Likewise, determining who has authorization to act upon behalf of the property owner, to transfer or encumber the ownership interest, may require inquiry into governing documents from a denomination and the local church. This is especially true when the attempted transfer of ownership arises from a dissident faction
In Romanian Orthodox Episcopate v Estate of Carstea, Slip Op. (Mich. App. 2022), the trial court determined that application of Neutral Principles of Law, enforcing the denominational governance documents, required quieting title in the denomination. The appellate court affirmed the decision, but held Neutral Principles of Law did not apply because the dissident group, led by a disciplined and laicized former priest, did not have authority to transfer title to the new church corporation. The denominational governing documents allegedly prohibited “defecting parishes from retaining church property.” Therefore, even if the local church sought disaffiliation, the local church did not have right, title or interest in the church property with which to transfer the property to the new church corporation.
Generally, a local church in good standing in its denomination will have authority to transfer property or mortgage its property in usual and customary business transactions. A written waiver by the denomination may also be required by a lender. Even in usual and customary business transactions, the local church should confer with the denomination consistent with the governing documents. Almost never, however, will a defecting congregation be able to keep its church property if the denominational governance documents prohibit it.