TORTIOUS INTERFERENCE WITH CHURCH CONTRACTS

As lawsuits become more acceptable to churches as a means of enforcing their rights among themselves, secular legal theories are more often asserted. In struggles between denominations and their local churches or parachurch organizations, there are often contracts about which one or all parties will allege a breach of contract. Less often but becoming more common is the claim that a religious organization interfered with a contract.

In Samara Iglesia Evangelica, Inc. v Lorenzo, Order on Cross Motions for Summary Judgment and Motion to Strike (D Mass., 2019) the federal trial court sorted out a struggle between a denomination and its local church and the local church pastors. The denomination alleged the local church pastors were contractually bound not to alienate the property of the local church without authorization. When the local church and its pastors decided to terminate their relationship with the denomination, they transferred the property from the local church to a new church unaffiliated with the denomination. However, unlike more established denominations, the deed only named the local church as the owner which allowed the local church to transfer the deed to the new church without hinderance. Also, the governing documents of the local church did not grant the denomination any rights in the local church governance or property. The contracts with the local pastors, however, stated no definite duration which made the contracts terminable at will by either party. The local pastors resigned from the contracts. Those resignations terminated the contracts leaving no contract with which to interfere tortuously or otherwise.

From the denomination’s perspective, the error made was the failure to engage counsel to amend and update local church governing documents and deeds as well as denominational governing documents since the 1970s. The law has changed substantially since then. Also, religious promissory language is generally not enforceable in a court in the United States. Explicit contractual promises must be made, typically in writing signed by all parties. The employment contracts of pastors must be of a definite duration even if they automatically renew for a new term if not terminated at the anniversary date, or they will be “at will” employment contracts in most states. Venue and applicable selection clauses will prevent legal battles from always being fought in the location of the local church rather than in the location of the denominational headquarters.

SPIRITUAL INFORMATION SPECIALISTS

We have reported on opinions of the United States Courts of Appeals that focus on the struggle to determine when a religious organization employee is sufficiently religious that it makes the employer immune from an employment claim brought pursuant to a federal discrimination statute. These cases struggle with whether an employee is sufficiently ministerial in their duties to trigger the Ministerial Exception. From the United States Supreme Court came a four element test to apply to determine the applicability of the Ministerial Exception: “formal title;” the “substance of the title;” the employee’s “use of the title;” and the employee’s “religious functions.” Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 565 US 171, 188-89 (2012). The struggle comes about when an employer can prove only one or two of the tests apply. The ultimate implication is that some religious employers may have to compromise or abandon their beliefs to avoid interference from the federal discrimination laws.

In Hutson v Concord Christian School, Memorandum Opinion (ED Tenn. 2019), the federal trial court granted summary judgment to the school that terminated an elementary school teacher because she was pregnant out of wed lock. Setting aside religious or moral arguments, the question the Court answered was whether an elementary school teacher’s position was sufficiently religious to trigger the Ministerial Exception and shield the religious employer behind the First Amendment. The first factor, title, weighed against the school because “elementary school teacher” was not religious. But, because the school’s policies, handbook, and many other documents confirmed the elementary school teacher was supposed to perform, too, as an evangelist, religion teacher, and be “called” to the role, the second element, “substance” weighed in favor of the school. The third element, use of the title by the Plaintiff, weighed against the school because there was no evidence Plaintiff considered or called herself a “minister.” The fourth element, called the “key factor” by the Court, weighed in favor of the school because the teacher’s function included leading devotions and teaching Bible lessons. The Court concluded that the second and fourth elements were sufficient to trigger the Ministerial Exception and required dismissal of the federal employment discrimination claims.

The title of this article was taken from the case reported above but may have originated with the religious organization in Conlon v InterVarsity Christian Fellowship, 777 F3d 829, 832 (6th Cir. 2015), which the Court also relied upon. The lesson from these cases may be that the title should match the religious function in school documents and actual practice. Also, the case reported confirms that the handbook, the employment documents, and especially any morals clause, and there should be a morals clause, should track the title and the religious job function. Also, if the termination is factually based on conduct that cannot be tolerated in an elementary school but that occurred with no involvement of the school or its pupils, then a severance and release might be cheaper than litigating to prove a point.

TRADEMARK INFRINGEMENT BY CHURCHES

Church trademark cases are so rare that in our three years of posts we have reported but two cases and this report is a follow up on one of them. Our first report on this matter was in August 2017, Hierarchal Church Titles and Trademarks. In that post, we reported on Protestant Episcopal Church, et al, v The Episcopal Church, 806 SE2d 82, (SC 2017) in which the South Carolina Supreme Court held that the land, buildings and other property of local churches leaving the denomination remained the property of the denomination.

In vonRosenberg v Lawrence, Order and Opinion (D SC ED, 2019), the federal trial court had before it the federal trademark claim of the denomination against the departing local churches. The federal trial court deployed more than 24,000 words to hold that the denominational trademarks, which were federally registered and reached “incontestability,” were infringed by the departing local churches. The federal court issued an injunction against further infringement. In passing, the court noted the departing local churches had recently affiliated with another denominational group. It may have been by the time the decision was issued the dispute was moot or headed in that direction. Also, because there was little advertising done by either group, the main casualties would have been building signage, church bulletins, and websites. Most interesting in the opinion was the Court’s description of the members of the public that were potentially “misled” by the “confusion.” Both sides conceded “that parishioners are generally sophisticated” (at page 51) so those that might be confused would be “potential parishioners” (at page 52) and others that “may never attend” either church or “have to decide between doctrines and communities.” Oddly, the latter two groups are generally known as targets of evangelism. Finally, merely adding a geographical limitation to a name did not prevent infringement.

Local churches departing from a denomination should be prepared to leave behind not only buildings and land but registered names to avoid litigation. A new identity may have to be forged along with a new place to worship to enjoy certain doctrinal or structural freedoms. The only alternative is a contract by which certain rights are purchased, leased, or licensed.

ESTATE BEQUESTS TO CHURCHES

Generally, a bequest to a church or denomination in a will does not create controversy. The will is usually clear, the estate administrator follows clear instructions in the will, and other beneficiaries act reasonably. However, sometimes life events outpace both the elderly person and the will left behind to identify the recipients of their final gifts.

In Estate of Stumm, Slip Op. (NJ App. 2019), the will was written in the last decade but before the testator died the local church dissolved which was the object of a bequest. The denomination made a claim to the bequest as successor of the local church. The administrator of the Estate, however, sought court interpretation of the will. The administrator also argued the testator’s intent was that the successor of the local church would be the local church that took over the dissolved churches’ ministry, members and mission. Further, the administrator and other witnesses testified the testator held the denomination in disdain and would never have intended for the denomination to be the successor. The trial court held that because the local church named in the will dissolved before the testator died, neither the dissolved local church nor the successor denomination could inherit the bequest. The appellate court affirmed and held the dissolved local church ceased to exist before the bequest became a vested right or property. Therefore, the denomination had nothing to which to succeed. Also, another local church took over the ministry, members and mission of the dissolved church. Indeed, that church ministered to the testator as an elderly shut in and then officiated at her funeral.

Bequests placed in wills for churches should also name a successor. Assuming the church named in the bequest will exist at the time of death is no longer a safe assumption, if it ever was. People sometimes outlive them. Many denominations operate trust funds committed to local church needs and such a trust or foundation may be a natural successor to select if the denomination is not the preferred successor.

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.