CHURCH LITIGATION DISCOVERY: CONFESSIONAL PRIVILEGE AND DAUBERT SCREENING

The most expensive components of a lawsuit revolve around the briefing phases necessitated by motions, discovery and discovery disputes, and trial. Discovery, which includes written questions under oath in the form of interrogatories and written depositions, actual forensic depositions before court reporters, and document searches and production. In church litigation, due to First Amendment issues briefing is usually the predominate expense. Also, the matters at issue are often non-economic, or economically fragile, and the parties quickly reach financial exhaustion. Financial exhaustion can cause abandonment of even a good claim and certainly makes non-economic claims, battles over principal, increasingly less attractive. One of the cost elements may be that the money spent on an expert witness may not result in useable testimony. FRCP Rule 702, sometimes referred to as a Daubert challenge because of the case from which the modern application of the rule for the most part emerged, requires a court to act as a gatekeeper to preclude “junk science” and opinions without material basis from contaminating the trial.

In Stevens v Brigham Young University – Idaho, Memorandum Decision and Order (D. Idaho, September 24, 2019), the federal trial court issued another decision regarding discovery disputes. In our May 4, 2019 post we reported the court’s decision regarding certain discovery disputes which included: whether the denomination and the church university had a common interest attorney client privilege, the university’s demand for a psychiatric examination of the Plaintiff because of her claim of emotional injury, and the university’s demand the Plaintiff waive the priest – penitent privilege. In May the court did not find evidence of a common interest, permitted the psychiatric examination, and refused to abate the priest – penitent privilege. In the September order, the court held the denomination, which was a third-party intervenor and not the defendant, was still subject to discovery. In a role reversal, instead of protecting her priest – penitent privilege, the Plaintiff waived it to force “an ecclesiastical leader” of the denomination to answer deposition questions but the denomination sought to impose it to bar the deposition. The Court held the priest – penitent privilege in this situation could only be imposed by the penitent, the Plaintiff, and not the church denomination. The Plaintiff demanded to know the precise amount of financial support the university received from the denomination, but this request was denied by the Court because the university and the denomination stipulated the denomination would pay any judgment against the university making precise answers irrelevant. However, the Court did order the denomination to produce copies of notices to church members of the denomination’s financial support to the university. Also, a friend and confidant of the Plaintiff was prepared for deposition by the denomination and university and they also apparently selected and paid for the friend’s lawyer. The Plaintiff sought discovery of the engagement of the lawyer and the source of funds to pay the lawyer, both of which the Court permitted for whatever impeachment value it might have. Plaintiff’s expert was also vetted by the Court and the expert’s testimony limited to his studies of the denomination’s hierarchal structure. The expert was prohibited from issuing an opinion in Court testimony that the hierarchal structure of the denomination, or its religious teachings, caused the Plaintiff to be sexually manipulated and abused by a university professor. Though this is our second report on this case, it does not appear to be at an end.

The lesson for denominations is that intervention in litigation in which a subordinate church or parachurch organization is a party may subject the denomination to the broader discovery permitted against parties. Also, the Court was applying the newest version of the federal priest – penitent privilege, which can only be asserted by the priest on behalf of the penitent but not on behalf of the priest. Further clash with certain denominations can be expected. The last lesson is about expensive experts in church litigation. Even if they are allowed to report on studies the expert conducted or wrote about the denominational structure or polity, making the inferential leap to causation of the specific harm alleged will likely be deemed speculative or not within the scope of the expert’s credentials.

CHURCH DOCTRINE HIRING AND FIRING

There are as many different doctrinal approaches to gender and sexual orientation issues among church traditions, denominations, and doctrinal pronouncements as there are fall leaves. Further, among some groups, these doctrinal approaches are changing. The development of doctrine in these areas has created tremendous friction in some churches and denominations.

In Garrick v Moody Bible Institute, Memorandum Opinion & Order (ND ILL, ED, 2019) the federal trial court dismissed the faculty Plaintiff’s case, some parts with prejudice and other parts without prejudice which might allow an amendment of the Complaint. The Plaintiff claimed she was terminated as an instructor of communications (a speech teacher) by the defendant religious university after two years of employment because of her advocacy in favor of women serving as clergy members. Plaintiff admitted that the religious school supported a “complementarian doctrine” which precluded women from certain church leadership roles. Indeed, Plaintiff allegedly assisted a student to submit a complaint against Moody based on Title IX of the Education Amendments of 1972. Plaintiff alleged her actions in fostering the complaint resulted in “backlash” from other faculty members in a shared workroom. Plaintiff was placed on internal leave prior to termination and allegedly discussed it with other faculty members and students. Immediate dismissal followed. The case was dismissed because of the entanglement with religious doctrine admitted by Plaintiff in the issues raised by Plaintiff. The court allowed an amended complaint only as to Title VII employment discrimination claims not related to religious doctrine.

Employers like the defendant accomplished nothing by trying to soften an adverse employment action by use of reduced or back office duties except to prolong the organizational agonies and create further opportunities for conflict. This is especially true with a zealous advocate or zealous troublemaker. Take an adverse employment action or do not but do not engage in halfway measures. There are few industries in which “counseling out of the business” actually works. Religious organizations should make hiring decisions consistent with religious doctrine so that they need not make firing decisions based on it. New hires should sign a statement of doctrines, a morals clause, and a statement that their job has a role in implementing the religious doctrine – by example if nothing else.

PASTOR SEVERANCE AGREEMENTS DISCLAIMED BY DENOMINATIONAL AUTHORITIES

The author was acquainted with the presiding bishop of an evangelical denomination that carried in his brief case a journal from the turn of the century, the 19th to the 20th, that recorded the giving of those local church members a century earlier. The giving amounts, consistent with the economy of a century ago, were recorded in nickels and dimes. The bishop carried it with him to remind him of the legacy with which he was charged.

Most courts in the United States will not act as appellate courts over ecclesiastical courts or denominational bureaucratic regulatory authorities. When local congregations attempt to detach from the denominational authority they are usually unsuccessful or must depart without their real estate and buildings. While some view this as unfair, most such churches attempting to depart with their property were founded using the denominational brand, organizational support such as the bible college that trained their pastor, and sometimes direct financial support until they are strong enough to cut the umbilical cord.

In Presbytery of Seattle v Schulz, Slip Op. (Wash App. 2019), in a one or more prior appeals the local congregation’s attempt to disengage from the denomination was unsuccessful because it was not authorized by the ecclesiastical authority. The local church was founded at the beginning of the 20th century. The local church also tried to provide a severance agreement to the pastor that led their unsuccessful departure. The denomination revoked the severance contract, seized the local churches accounts and stopped all payroll to the pastor. The denomination’s “administrative commission” determined the severance agreement was invalid because it “constituted a change in the terms of call” for the pastor. The denomination also concluded the pastor’s conduct constituted a form of job abandonment but described it in religious terms: “renounced jurisdiction;” “standards of pastoral conduct.” The trial court held in favor of the denomination and the appellate court affirmed.

The denominational and local church governing documents were, as always, decisive in the reported case. Arguments to recharacterize the documents, especially with the history of litigation across the United States these have, were not successful. While employment contracts will generally be subject to judicial enforcement, not so when the employment contract clearly was not authorized by denominational, and possibly, local church governing documents.

CHURCH MEMBERSHIP TERMINATION

While the title may read like an attempt to define excommunication in secular terms it seems probable that excommunication refers to a church disciplinary action intended to have spiritual ramifications or consequences. However, termination of church membership might not always be designed or intended to have spiritual ramifications or consequences. Termination of church membership might also be designed or intended only for church governance issues such as resolution of a church split.

In Adkison v Williams, 2019 Ohio 4289 (Ohio App., 2019), thirty-one church members were terminated as church members. The opinion does not recite that the intent was excommunication. Rather, the implication seems to be that to restore harmony or order these members were terminated because of disparate but irreconcilable church governance views. The former church members sued claiming that the membership termination violated the church bylaws. The former members claimed the Court could apply Neutral Principles to determine whether the membership terminations were procedurally consistent with the bylaws. The trial court dismissed the case holding that the church membership terminations were unreviewable pursuant to the Ecclesiastical Abstention Doctrine. The appellate court affirmed. The appellate court noted the church was a congregational church that elected its leadership by congregational vote. Nevertheless, the appellate court agreed with the trial court that the membership question presented a question of “internal church governance.” The appellate court concluded that a question of “internal church governance” was presented because the final step in the membership termination process mandated by the bylaws was the dispute resolution process set forth in Matthew 18:15-17. Court review of the process necessarily would require court interpretation of the scriptural requirements leading to a collision with the Ecclesiastical Abstention Doctrine.

Church governance issues, especially those arising from a church split, will not generally be susceptible to secular court resolution. Attempts to characterize church governance issues as contract disputes or corporate law disputes will not likely be successful unless the contract or corporate law issue is the real nexus of the dispute. Termination of church membership to restore harmony or order will likely come under court review only when the church membership records are non-existent or patently unreliable, when congregational votes have not been conducted or cannot be conducted to determine the authenticity of the appointment of church leadership, and when actual property ownership or control issues result.

FIRING THE ORGANIST 2nd Ed

We first reported the trial court’s summary judgment in May 2017 that held that the organist was sufficiently ministerial to preclude a federal employment law claim against a church because of the Ministerial Exception. Section 702 of the Civil Rights Act of 1964 expressly excludes employees charged with religious activities from the reach of the law. Likewise, the First Amendment Ecclesiastical Abstention Doctrine also precludes secular court intervention in church employment matters. The struggle has been to determine whether a plaintiff in a lawsuit is sufficiently ministerial or religiously educational in their job duties to trigger the Ministerial Exception. Since Hosanna Tabor Evangelical Lutheran Church & Sch. v EEOC, 565 US 171 (2012) was decided several different methods of implementing the factors developed by the Supreme Court have arisen.

In Sterlinski v Catholic Bishop of Chicago, Slip Op. (7th Cir. 2019), the federal appellate court affirmed the trial court’s grant of summary judgment. As we noted in May 2017, the Plaintiff was originally the Director of Music but in later years no longer had those duties. The church successfully argued in the trial court that as organist plaintiff still played a vital role in the worship services. The 7th Circuit uses a test it described as “whether the employee served a religious function.” Also, the 7th Circuit applied the test from the perspective of the religious employer. The question was not whether the employer was correct but rather whether the employer sincerely believed it. The 7th Circuit also rejected the 9th Circuit’s approach set forth in Biel v St. James School, 911 F3d 603 (9th Cir. 2019) (reported by us in December 2018 in the post entitled, The Not Religious Enough Test of the 9th Circuit). The 9th Circuit approach was that the plaintiff had to be “religious enough” in the opinion of the Court and did not consider the perspective of the employer. The 7th Circuit rejected the 9th Circuit’s formulation also because the 7th Circuit believed the 9th Circuit’s approach would lead trial courts to entanglement in doctrine and practice to determine whether the employee was “religious enough.”

As we noted in May 2017, part of the legal problem the church faced the church created by its piecemeal demotion of the organist from the position of Director of Music. There would have been no meaningful dispute about whether a Director of Music was ministerial in a church. Also, there did not seem to be a written job description or an employment agreement that set forth the ministerial or religious quality of the job. The trial court, in the case reported in this post, relied upon a denominational directive, the 87 page music ministry directive from the Council of Bishops, to indicate the religious imperatives that the organist was expected to implement. The lesson should be that in these disputes there may be many sources of church authority governing the activity in question which may cumulatively or independently define the employment role as religious and therefore ministerial.

FORSEEABILITY OF CHILD SEXUAL ABUSE

In the current environment, churches that retain employees or leaders based on a “benefit of the doubt” are taking a risk in child sexual abuse incidents. The church wants to believe the incident did not happen. The church wants to believe the employee or leader, sometimes a part of the church for many years, would never do or allow such a thing. Nevertheless, the risk is sufficiently threatening that “belief” is not enough. The church had better be demonstrably and reasonably certain.

In AH v Church of God in Christ, Inc., Slip Op. (Va. 2019), the trial court’s dismissal of the claim against the church was reversed for further proceedings likely to include discovery, other motions, and potentially trial. The Plaintiff alleged the church was aware of a prior allegation of child abuse but the mere awareness of a prior allegation was not enough to make the claim viable. What was enough, however, was the “special relationship” the Court held was alleged by Plaintiff between the church and the Plaintiff. The “special relationship” test is an exception to the rule that criminal conduct is unforeseeable and for which the employer cannot be held liable. However, if there is a “special relationship,” the employer is required to supervise the employee interaction more closely. The Plaintiff alleged the church “actively recruited” the child for the program, held out the employee as appropriate for the program, held out the employee as an agent (in this case a Deacon), and supervised the program. The age of the Plaintiff might also have meant the church took “custody” while the child was in the program.

Churches should suspend from duties with children or teens any leader or employee about which a child abuse or sexual misconduct has been alleged. They should be restricted from access and contact. The incident should be reported consistently with mandatory reporting statutes. The suspension can be lifted only when the investigation is terminated by law enforcement upon a finding the charge is not credible. If law enforcement refuses to make a final finding that can be documented, then the church should consider engaging counsel qualified to conduct such an investigation to document that it is not credible. If lack of credibility cannot be reasonably determined and documented, then the suspension should be made permanent or the person terminated. Rehabilitation can only be accomplished with the aid of outside medical professionals and rigorous internal scrutiny of both treatment the proof of repentance. Regardless of either, such a person must remain restricted from access permanently.

OUTBREAKS OF CONGREGATIONAL DEMOCRACY

There is no particular legal argument local denominational churches can use to escape “trust clauses.” A “trust clause” typically means that the local church property and assets will revert to or taken over by the denomination if the local church no longer functionally exists. The motion common unsuccessful legal argument is that the local church conducted a “congregational meeting” and exited from the denomination. However, it is usually impossible for the local church to prove that there was an actual “congregational meeting” called or conducted consistent with the local church bylaws or the denominational governance documents.

In Presbyterian Church of the Palisades, Inc. v Hwang, Slip Op. (Sup NJ Chancery Div., 2019), a faction or remnant of the local church tried to defeat the “trust clause” by arguing a congregational meeting was convened to extract the local church from the denomination. The argument that the “will” of the congregation can be determined using Neutral Principles of Law, typically state corporate law, has not been available since it was rejected by the United States Supreme Court in 1969 and it was not resurrected in this case. In this case, too, the corporate minutes did not document that a congregational meeting was called consistent with the state statute or the local church bylaws. Indeed, the proof did not appear to support the assertion there had been such a meeting. Also, the faction remaining did not appear to have been properly elected to office. Summary judgment for the denomination was affirmed. The parallel foreclosure on the church property because of the default on the $2.7 million mortgage was also allowed to proceed.

Joining a denomination is easy and departing is nearly impossible. It is usually faster and cheaper for a congregation that desires to depart from a denomination to simply leave the church property and start over again elsewhere. Few congregations survive either staying and fighting with the denomination or leaving, but leaving presents the greater chance. The emotional attachment to a church property always seems misplaced.