ONE PARAGRAPH TOO FEW

When the author of this website began practicing, it was the habit to troop over to the courthouse every Friday to attend motion docket.  The primary motion heard on those days was the demurrer.  A demurrer was like a motion to dismiss but only raised the issue of sufficiency of the petition to state a cause of action.  Defendants often filed them to obtain further time to investigate and answer, which meant they were often autonomically overruled.  When they were actually heard, the court would read the petition or complaint and if the court thought enough facts were pled to state a cause of action overruled the demurrer.  Most were overruled but occasionally the court would act as a gatekeeper and require filing of an amended petition.  Demurrers were abolished soon thereafter as the state migrated to its clone of the Federal Rules of Civil Procedure.  Nevertheless, vestigial remnants of such doctrines persist.  The other rule still in effect in this state is that the order of the trial court will not contain reasons for the decision.  To enter an order that “sets forth reasons” is called a “speaking journal entry.”  An appellate court may disregard it.  If the parties want findings of fact and conclusions of law, they have to request them in advance of any ruling.  However, some appellate courts still have similar rules, for good reasons or out of habit.

In St. John Missionary Baptist Church v Flakes, Slip Op. (Tex. Civ. App. 2018), the congregational vote to terminate the pastor was not accepted by the church board members.  The pastor and the board continued to handle the assets of the church, including taking out a mortgage of almost a million dollars and preparing to sell other assets.  Some of the members filed suit to seek an injunction.  The trial court granted a motion to dismiss and plea to the jurisdiction (Texas has not adopted a clone of the Federal Rules of Civil Procedure).  The trial court’s order was a single sentence that referenced only one of the grounds put forward to support the motion.  The appeal was directed at the only grounds set forth in the single sentence order.  The appellate court, however, simply affirmed the trial court because there was no challenge to the other grounds for the motion to dismiss raised by the proponent of that motion even though it was also not mentioned by the trial court’s order.  That other ground was the Ecclesiastical Abstention Doctrine.  The appellate court ruled that without a challenge before it of an argument made by the movant in the trial court it was waived.  One paragraph containing a legal authority or two would have placed it before the appellate court.  The dissent was convinced that ordering additional briefing would not have been against the court’s rules.

Followers of Ecclesiastical Abstention Doctrine cases would immediately recognize that while a court because of the Ministerial Abstention Doctrine would not entertain an employment case, the exception might be if the employment case arose only from a violation of the church organizational documents in the process of hiring or termination.  This seems especially true when the procedural issue arises from a congregation-controlled church.  Of course, the other lesson is for counsel to brief all the arguments raised even if counsel believes some arguments deserve only cursory treatment.

HIEARCHIAL CHURCH RESULTING TRUST PROVISIONS – EVERYWHERE OR NOWHERE?

In jurisdictions that decide church property issues under the Neutral Principles of Law Doctrine, the difficult question is for a court to determine which organizational documents are binding authority on the local church.  For example, denominational handbooks, like employee handbooks, might in some instances create a contractual commitment for member churches.

In Presbytery of St. Andrew v First Presbyterian Church PCUSA of Starkville, Miss., Slip Op., (Miss. 2018, en banc), the Mississippi Supreme Court collided with the issue and the majority did not view the denominational handbook as a governing authority sufficient to impose a trust on the property of the local church while the dissent did.  The majority relied on an “opt out” clause in the Constitution of the denomination which the dissent considered as adopted too late in time to avoid the binding effect of the denominational handbook.  In response to the “opt out” provision, the local church opted out and did not include property reversionary clauses in property deeds or the local church bylaws or constitution.

Denominations that desire to govern through a handbook (regardless of what it is called), should update it regularly and the local churches asked to ratify it.  Ratification once a decade would likely be sufficient.  Failure to ratify should be explicitly prohibited as a ground for disobedience.  Reversionary provisions should be in all organizational documents and the denominational handbook and required in all local church organizational documents and property deeds for denominations that intend to use.  Everywhere or nowhere.

HIEARCHIAL CHURCH WARS – INFILTRATION STRATEGIES

Church splits in hierarchical churches almost uniformly end badly for the insurgents.  The only exceptions are when church governing documents, including incorporation documents, and land titles do not consistently tie the ownership to the denomination rather than the local group of congregations or the local congregation.  Because church property in hierarchical churches is typically amassed over many years and many generations of members, the local church members often cannot truthfully say they alone bought and built it.  The denomination must admit that offerings made by members, over multiple generations of members, bought and built the church property in question and that the denomination at best is a trustee for them.

In The Episcopal Church v Salazar, Slip Op. (Tex. Civ. App. 2018), the latest appellate decision in a church split that began in 2008 (or possibly earlier) built upon a prior Texas Supreme Court Decision in Episcopal Diocese of Fort Worth v Episcopal Church, 422 SW 3d 646 (Tex. 2013), cert den., 135 S. Ct. 435 (2014) and the trial court proceedings that followed the Supreme Court’s decision.  To reach this new decision, the latest intermediate appellate opinion only sued over 50,000 words in 177 pages and 114 footnotes.  Thus, in a blog post, the reader should expect only the most summary of coverage.  It should also be noted that in the Supreme Court case, the Texas Supreme Court adopted the neutral principles of law doctrine so that a civil court could determine ownership of property and other matters important to the State without infringing on ecclesiastical issues.  Given the new ground to plow, the length of the intermediate appellate decision about which this blog reports is at least understandable.  It contained both denominational and diocesan legal histories as well as documented the evolution of neutral principles doctrine.

The trial court on remand from the Supreme Court considered the evidence and determined by summary judgment that the right to control the non-profit corporation that was the shell of the diocese was and remained under the control of the denomination.  This church split, like many of this type, began with a theological dispute which resulted in an attempt by some member organizations or local churches to “disaffiliate.”  When “disaffiliation” failed because the organizational documents of the denomination and the local organizations and churches would not support it, the next effort was to attempt to have friendlies elected to the governing board of the non-profit corporation and to displace board members loyal to the denomination (if there were any serving).  But, in addition to organizations and churches that tried to “disaffiliate,” the trial court held that the insurgents elected to the board were disqualified from election from inception due to their own “disaffiliation” which ended their memberships under the governing documents.

The lesson for insurgents, and warning for denominations, is that if insurgents do not “disaffiliate” but remain members in good standing, and are elected to the board of the non-profit corporation that is the shell for a diocese or a local church, that board will have effective control of the assets.  “Loyalty oaths” have not worked, as history has taught, but restricting the power of the board to financially alienate itself from the denomination could blunt or contain the power of insurgents.  Indeed, the reason denominations have not used this technique, absent internal political necessities, was to preserve the borrowing power of the local organizations and churches to acquire church property.  The necessity of that practice may be sufficiently diminished in more mature denominations to allow greater financial oversight by the denomination.

CHOIR MASTERS, CHOIR DIRECTORS, MUSIC MINISTERS, OH MY!

Most of the preachers, pastors, ministers, and priests I have known cannot carry a tune in bucket.  Thus, in modern church services, the rise of professional music worship leaders has been inexorable.  Many music worship leaders have educational and performance credentials.  However, are they clergy?

In Clover Hill Reformed Church v Township of Hillsborough, Slip Op. (NJ Tax Court 2018), the issue was whether the parsonage in which the congregation’s music worship leader resided was tax exempt.  The statute allowed each church to have two exempt parsonages.  The Clover Hill church had two and one was the residence of the music minister.  But, the tax assessor denied the exemption holding the music minister was not an “officiating clergyman,” a statutory term.  The court reversed the tax assessor and held the music minister was “officiating” within the meaning of the statute.

There was an oddity or two in the opinion.  The music minister in question was not a member of the congregation or the denomination but was a member of another church group.  In the southwest United States, the music minister’s “home” church would likely have been non-instrumental, and might be, too, on the eastern seaboard, but the music minister was serving in a church that allowed instrumental music.  Indeed, the music minister was a pianist.  As a non-member, however, he could not substitute for the lead pastor, which led the tax assessor to conclude the music minister was not “officiating clergy.”

The other oddity was that the court never actually stated the tax assessor was making an ecclesiastical determination about what constituted “officiating” and “clergy,” and thus probably running afoul of the First Amendment.  But, that might have been the case.

The lesson for other churches is to make sure the written job description of ministers seeking residential tax exemption makes their ecclesiastical role clear.

ZONING TRAPS AND SNARES

Land use regulations, zoning laws, and permit requirements of every stripe usually constitute a maze that the uninitiated should not attempt alone.  Church leadership often begins construction or remodeling without fully considering these rules, or worse, believes they have.  Small churches are especially vulnerable because of their limited resources.

In Jesus Christ is the Answer Ministries, Inc. v Baltimore County, Slip Op. (USDC, D. Mary., 2017), the Plaintiff church started like so many in someone’s home.  As the church outgrew the home, a 1.2 acre residential lot and existing 2900 square foot home were purchased.  The church remodeled the existing home for use as a church building but apparently failed to consider land use regulations or obtain permits.  The neighbors complained and the County issued a cease and desist letter.  The court’s opinion should be consulted regarding the precise complications alleged by the County.  The church submitted at least two applications for permits and variances.  Hearings were held and the complainants were quoted by the federal court as testifying:  “[D]ancing and hollering like they are [sic] back at their home back in Africa somewhere.”  The applications were denied.  The Plaintiff sued alleging the denial was based on religious discrimination rendered unlawful by the Religious Land Use and Institutionalized Persons Act of 2000, 42 USC §2000cc.  The case was dismissed because the Plaintiffs did not plead that the County actions were intentional or subtle forms of discrimination.  The Plaintiffs also failed to plead that their applications complied at least minimally to the extent possible with land use regulations and was compatible with the neighborhood.

As noted, engaging a consultant to navigate land use regulations is imperative before purchase or construction.  Also, before engaging in litigation of this type, more so than most, laying a foundation for the case is imperative.  Discrimination is easy to claim but hard to prove.  Also, there was no limit on the number of applications that could be made.  Churches often make an application like this on their own without the benefit of qualified counsel.  While running to the federal court may have seemed like a good idea, getting on the agendas of the public boards that governed the county and stating the case may have paid greater dividends.

PARA-CHURCH ORGANIZATIONS: “TOO MUCH PARA?”

While this website is focused on church litigation, churches are not monolithic organizations.  Churches historically created much of our civilization by founding schools and hospitals and continuing to do so.  While many of these schools and hospitals remain under the ownership and direct control of churches or denominations, economics and the changing focus of a particular church or denomination has caused some severances.

In Penn v New York Methodist Hospital, Slip Op. (2nd Cir. 2018), the United States Court of Appeals for the 2nd Circuit affirmed a trial court summary judgment that held that the hospital founded by a church was still sufficiently religious that one of its full time employee Duty Chaplains was subject to the Ministerial Exception Doctrine and could not pursue claims of employment discrimination.  There was no dispute that the Duty Chaplain had no duties other than religious as did the three or four other Duty Chaplains.  They conducted religious observances and provided religious counseling.  The analysis of the majority opinion was interesting because the issue was whether the formerly Methodist hospital retained sufficient vestigial religious characteristics to cause issue entanglements implicating Ecclesiastical Abstention Doctrine concerns.  The dissent was interesting for the same reason.

The majority noted the twenty-four hour religious pastoral care provided by the pastoral care department in which Plaintiff was employed and the Employee Handbook emphasized the Methodist history of the hospital and described the pastoral care provided as an “ecumenical program.”  Three of the seventeen governing board members were Methodist ministers even though no one could recall how they were appointed, i.e., whether it was a formal requirement or fortuitous.  The President of the Board had to be selected with the “advice and counsel” of the local Methodist Bishop.  The bylaws required that every board meeting begin in prayer.  Every year, the hospital provided free health screenings to a dozen Methodist ministers and their spouses.  While formal ordination was not required, every chaplain was considered “clergy.”  The supervisor of the pastoral care department was the “Staff Chaplain” and had to have a Master’s Degree in Divinity or equivalent.  However, the chaplains did not have to be Methodists.  Indeed, one was a Rabbi, one was Catholic, and one was Greek Orthodox even though Plaintiff was a Methodist.  Two other critical items are only mentioned in passing:  the Plaintiff admitted he was “primarily responsible for ministry” and the Plaintiff was terminated after an another employee complained of “sexually inappropriate comments.”

While the majority thought the hospital still had sufficient religious accoutrements to warrant application of the Ministerial Exception Doctrine, the dissent did not.  The dissent thought the hospital’s “minimal vestiges of religious lineage” resulted in setting “the bar too low.”  The dissent noted there was no evidence the Methodist Church retained influence over the hospital’s day to day operations or long-term planning.  The dissent also did not find that “Methodist religious doctrine” guided either the hospital or the hospital’s pastoral care program.  Of course, it seems to this author that both of those reasons required the learned judge to make ecclesiastical judgments about what constituted Methodist doctrine.  The dissent did not explain how retaining at least some say over who would serve as board President in the bishopric was not influence.  However, the point of the dissent that should not be missed is that compared to other para-church organizations the dissent thought this hospital was insufficiently religious to qualify for an exemption from federal employment discrimination laws.

The lesson for para-church organizations from this case if that if the religious heritage is to be preserved it should be preserved in the organizations governing documents, including the Employee Handbook, and that the organization’s religious perspective should be well and easily identifiable.

BLESSED SHACKLES – GOVERNMENT AID TO CHURCHES

We have reported on this type of tar baby before.  In these situations, a public funding program to accomplish a governmental purpose attracts a variety of public and private participants.  We reported in 2017 on a United State Supreme Court opinion regarding Trinity Lutheran Church v Comer, 137 S. Ct. 2012 (2017) regarding a program that paid for rubber surfacing on concrete play “ground” surfaces and a subsequent decision in Taylor v Town of Cabot, 2017 VT 92 in which a town granted money for restoration of a historic church building.  In the Vermont Taylor opinion, the case was remanded to the trial court and a risk the church ran in the case was that the church might have to refund the grant money.  In Comer, the church prevailed so that the playground upgrade need not be repaid by the church.

In Caplan v Town of Acton, Slip Op. (Mass. 2018), taxpayer protesters sued town because a church received two grants.  The appellate court split the difference, to a point.  One grant was for payment of an architect to draw up a “Master Plan” for restoration of the church building and two outlier buildings.  The main church sanctuary building was built in 1846.  The Town of Acton was founded in 1735 and the church formed part of the town square.  The other grant was to repair stain glass windows first installed in 1898.  In order to obtain the money, the church had to convey a “historic preservation restriction” on the buildings, the money could only be obtained in reimbursement on invoices for work consistent with the preservation proposed in the church’s applications for the grants.  The court remanded the “Master Plan” grant for further consideration and barred the grant for the stain glass windows.  The total value of both grants was less than $110,000, a little over $50,000 each.

The opinion is valuable for its historic review of the reason Massachusetts amended its Constitution in the Nineteenth Century by adding an “anti-aid amendment.”  The court reported that in the Nineteenth Century the pressure to provide public resources to churches caused “fear” the public coffers would be drained by competing churches and denominations.

But, historic preservation is almost too expensive for private resources to unilaterally achieve because private capital usually must chase profit.  Profit is obtained not through preservation but through maximizing return on capital.  Thus, the government purpose of preservation might be thwarted because part of the history to be preserved, which was built before several states in the union became states and is very expensive to keep, included a church.  There might be a hidden lesson in this opinion, too.  The “historic preservation restriction” might be more costly in the long run than the church presently anticipates because taking the government’s money is always risky.