Increasingly, it seems, in civil litigation, following a similar trajectory in criminal law, there is no closure. Church litigation is increasingly no exception.

In September 2017 and then in December 2017, federal court and state court opinions in Patterson v Shelton, were reported herein. See the post, And Then Again, Maybe Not. In 1991, the founder and pastor of the church died. The power struggle that ensued was the stuff of legends, dueling and feuding, that is. It resulted in published appellate opinions in 2013 and 2017: 175 A3d 442 (Pa. Cmwlth. 2017); 78 A3d 1092 (PA. 2013). The first conflict involved the struggle to determine who was in charge. The second wave involved the conclusions of a forensic accounting investigator that hundreds of thousands of dollars were misappropriated by the church leadership that succeeded the founder. The third wave involved an arbitration decision in 2006 in which the arbitrator was persuaded by the forensic auditor and appointed a receiver to recover the assets of the church. The appellate court overturned the arbitration award concluding the arbitrator went beyond the scope of contractual authority in fashioning relief. See, 942 A2d 967 (Pa. Cmwlth. 2008). The fourth wave of litigation was the claim that Patterson was not a church leader but merely a member and did not have standing under the not for profit corporations statute to bring the claims. The appellate court overruled the trial court and held as a church member and beneficiary of the not for profit corporation, the church, Patterson had sufficient standing to bring claims. The fifth wave was marked by a bench trial regarding the claims conducted in 2014. The trial court concluded it did not have jurisdiction under the Ecclesiastical Abstention Doctrine of the First Amendment and dismissed the case. That had the effect of leaving the arbitration award as the last determination because the trial court, in effect, held that every decision made thereafter lacked jurisdiction. In the sixth and latest wave of Patterson v Shelton, the trial court was asked to strike its orders enforcing the arbitration award as the final judgment. The trial court declined. The appellate court affirmed.

One reason this litigation became so protracted was that the courts made two errors. The courts did not inquire into their own jurisdiction and its limits early in proceedings. The other was to allow judicial hostility to arbitration to again raise its long discredited visage. Arbitrations are no more or less effectual as dispute resolution mechanisms than jury trials. While judges may have greater experience than arbitration panels in dispute resolution, which in some cases would make a bench trial a better forum, the routine case does not benefit from such experience enough to invalidate the arbitral forum. Only arbitral forums that are either so expensive or so without procedural safeguards that their decision making is suspect are inferior in the typical routine case. However, if the parties contractually selected the forum, it should be assumed both sides knew the costs and the risks. If an arbitrator’s awarded relief seems to exceed the contractual grant of authority, the better practice is to either judicially revise the relief given or to remand to the arbitrator for the revision. Simply vacating the award leads to a quagmire.


If a church through its local governing documents and denominational, if any, governing documents requires that disputes between members, especially church leadership, must be resolved pursuant to a particular procedure or process, then courts are likely to hold that defamation claims by the disparaged member or leader are barred by the Ecclesiastical Abstention Doctrine. This may be true even if the disparagement “leaks” out into the community and is not solely confined to the church.

The case of In Re Alief Vietnamese Alliance Church and Phan Phung Hung, Slip Op. (Tex. Civ. App. 1st 2019) was a request by a church for a writ sought from the appellate level to preclude the trial court from proceeding with a defamation lawsuit. The trial court overruled a plea to the jurisdiction. The appellate court ordered the trial court to dismiss the case on jurisdictional grounds or the appellate court would issue a writ of mandamus ordering the trial court to do so. In Texas, the Ecclesiastical Abstention Doctrine is a bar to exercise of jurisdiction by a court in most instances. However, the facts recited by the appellate court, and that the appellate court was not itself unanimous, demonstrated the factual uncertainty that might have led the trial court to decide it should proceed. The allegations of the disparaged person seemed from the appellate majority opinion more certain regarding internal church disciplinary disparagement but less so with regard to intentional or reckless dispersal beyond the confines of the church. Mere slight “leakage,” my words for brevity and not the court’s, did not seem sufficient to the majority to mutate the internal disparagement inherent in disciplinary matters, true or not and with or without malice, to defamation outside the shield of the First Amendment.

Discipline is inherently disparaging, at least to certain hearers. It is always based on an alleged violation of church procedure, church law, or morality endorsed by the church in some manner. Thus, church leadership should carefully keep such matters confidential even as to members that do not need to be informed. Greater still should be the confidentiality maintained with regard to non-members. The only exception to either should be in those rare instances when a governmental law enforcement agency must be involved, e.g., child abuse, child pornography, child neglect and offenses requiring registration as a sex offender. Even then, a church should engage legal counsel to determine what is safe to report or shield from the public and or the membership. The test is legal; it is no longer based on a belief or lack thereof in “guilt.”


The passing of a founding pastor by death or retirement often is the opening event in a church split. Also, founding pastors of earlier years did not see the need for governance documents that provided for succession. The thought in the last generation was that such provisions weakened the pastor and invited rebellion. What it actually invited was the destruction of all that had been achieved by the founding pastor when the church, without a succession plan in the governing documents, fell into factional strife or a civil war. Church splits in these circumstances are not surprisingly intractable.

In Nelson v Brewer, 2019 IL App (1st) 173143, the Illinois appellate court affirmed the trial court’s efforts to save the church by holding that neither the plaintiffs nor the defendants were properly elected or appointed church board members or pastors and that the church governance documents did not comply with state corporation law. There was no plan of succession in the documents and the founding pastor, the only one with any authority, had passed away. One faction tried to lock out the other. The court ordered the factions to avoid any contact. The trial court then appointed a “custodian,” a type of corporate guardian, to rewrite the church governance documents, to conduct congregational elections of board members and a pastor, and to otherwise manage the resuscitation of the corporate entity. The alternative was corporate dissolution and liquidation of all assets. It appeared that there only 28 voting members left after eight years of litigation.

While many church members and leaders met by the author over the years pride themselves on the paucity of their church governance documents, those same members and leaders often appear as factional leaders in a church split. Invariably, it seems, when a generation that was able to maintain harmony begins to pass away without a clear succession plan, competitive factions arise. The failure to plan for the passing of the torch to successors in governance documents is irresponsible and unfair to the members that do not have ambitions other than to see their church home survive.


As reported repeatedly herein, local church submission to denominational governance documents adopted by the local church during formation, or during denominational joinder at a later date, cannot simply be dismissed. However, local church factions attempting to break away continue to try. They hire lawyers and those lawyers continue to attempt to earn their fees by searching for exceptions in the documents and clever factual distinctions that might defeat the denominational governance document.

In Free Wesleyan Church of Tonga v United Methodist Church, 2019 UT App 41, the local church amended its corporate constitution and bylaws to omit any reference to the denomination in an effort to depart after more than thirty years of membership. The denominational governance documents did not permit departure by this method. Moreover, the local church congregational vote to accomplish the amendments did not comport with denominational governance requirements. Probably knowing that these arguments would be decided in favor of the denomination, clever arguments were added by the local church. The local church argued: (1) The corporate regulatory authority of the state accepted the amendments and issued a new certificate of incorporation; (2) The denomination did not challenge the action of the state’s corporations regulatory authority and by so doing failed to exhaust administrative remedies denying the denomination standing in court; and (3) the denominational governance documents were religious and could not be interpreted by the court.

The trial court rejected all of the arguments and granted summary judgment which the appellate court affirmed. Predictably the denominational governance documents were controlling because the incorporation documents of the local church adopted them and contractually bound the local church. The state’s corporate regulatory certificate of incorporation was produced as a ministerial act and did not adjudicate any rights. Moreover, the state regulatory authority had no adjudicative powers so there was nothing to exhaust. The court also held the denominational documents were religious in part but not as to governance and the trial court’s action was least restrictive of free exercise in order to achieve the state’s compelling interest in regulating property ownership.

Local church rebellions against denominational authorities usually end poorly. Leaving and starting a new church is usually cheaper and something the denomination cannot impair. An attempt to retain or usurp the church property and other assets is usually the true motivation for the refusal to simply depart. Local churches that plan their departures carefully will leave an empty church building with a mortgage for the denomination to financially address. The departed local church will often be the only interested purchaser if the planning has included accumulation of sufficient capital to obtain financing and purchase anything.


It is common that an aggrieved claimant in church litigation will sometimes claim that they suffered emotional distress that resulted in psychological injury. There is a tendency to be dismissive of these claims. That is not surprising given that in many parts of the United States there is no commitment to treatment of mental illness regardless of its cause. Also, mental illness or emotional injury do not typically present with objectively measurable evidence of causation. Treatment is to the untrained seemingly mystical or doubtful. Deposing mental health professionals can be among the more frustrating depositions in civil practice because lawyers tend to think in concrete terms for persons trained in the fine arts but mental health professionals tend to speak, and probably think, in terms of subjective abstractions. That does not mean one is true and the other false, although in concrete thinking that is the snap judgment often made, but it does mean the two are difficult to reconcile.

In Stevens v Brigham Young University Idaho, Memorandum Decision and Order (D. Idaho, 2019), the student plaintiff self – reported “an inappropriate non-academic relationship” with a faculty member and apparently sued regarding the relationship. The court opinion resolved three motions: 1) a claim of common interest attorney client privilege between the university and the church to protect the work product interview notes of a staff attorney of the university; 2) a motion to compel an independent medical examination of the plaintiff because of her claim of emotional injury; and 3) the university’s motion to enforce a waiver by the plaintiff of the priest – penitent privilege. The court held that the church and university had not presented sufficient evidence of cooperation in formulating a common legal strategy to support a claim of common interest privilege. However, the attorney’s work product notes were not discoverable in any event, after in camera review by the judge, because the plaintiff did not prove undue hardship or substantial need for an exception to the work product privilege. The court ordered the requested independent psychiatric medical examination of the plaintiff and refused to impose most of the limitations or requirements demanded by the parties. The university’s demand that plaintiff’s priest – penitent privilege be treated as waived was denied. The plaintiff consulted various church leaders both in the church and the university to obtain an “ecclesiastical endorsement” so she could return to the university as a student. However, the “ecclesiastical endorsement” was not forthcoming and plaintiff did not sue regarding those decisions. Plaintiff’s experts quoted those consultations in their written reports of their opinions which was the basis of the waiver claim by the university and the church. But, the court entered an order making those parts of the reports inadmissible at trial. Because there was no claim by the plaintiff on the sought endorsements, the court did not think the privileged consultations were placed at issue in the case and denied the waiver. The rulings on the three motions did not resolve the case and it proceeded.

Lawyers that intend to coordinate a defense with a sponsoring church or other para-church organization should do so with a signed undertaking that formalizes the relationship and specifically authorizes exchanges of attorney work product and otherwise privileged communications between the entities, their counsel and jointly engaged experts, especially including fact witness interviews. An omnibus agreement is too often forgotten in the mists of time so a separate agreement customized for the pending case should be reduced to writing. No assumption about this should be made; denominational governance documents may or may not be sufficient for the particular case. Church lawyers that do not routinely defend bodily injury and emotional distress claims should consult with lawyers that do so that effective discovery of these claims can be engaged. Spend the money needed to engage fully qualified experts, and not just church or para-church staff, or settle the case.


Reporting herein has been editorially limited to court cases involving parachurch organizations litigating in contexts that might also implicate church owners or sponsors. Some parachurch organizations have secular interests that do not differ from non-religious businesses or charities. Litigation about those types of interests are not typically reported herein. Church litigation has dramatically expanded to the routine in occurrence and so, too, has litigation against parachurch organizations operating religious missions.

In Ayers v Fellowship of Christian Athletes, Slip Op. (ED Cal., 2019), the plaintiff brought suit after she graduated from high school because she was refused the office of “treasurer” in the local FCA chapter at her public high school. She was refused the office, as set forth in an email to her by the local FCA leadership, because the FCA leadership was uncertain whether she could espouse “crystal clear theology when talking with coaches and athletes” because she was Mormon. The stated concern was that the FCA leadership was unsure whether if she knew “the theological differences.” The trial court dismissed all of the federal claims with prejudice and declined supplemental jurisdiction over the state law claims and dismissed those without prejudice. The school district and its employees were dismissed on 11th Amendment immunity grounds because the plaintiff only sought monetary damages. The FCA sponsors were dismissed because they were not alleged to be state actors.

The email that set forth the religious reasons why the Plaintiff’s application for office was declined was a poor choice. No reason had to be given and if given, less clear language could have been chosen. Parachurch organizations operating missions in secular circumstances, like public schools, will likely chose to avoid the cost of litigation by compromises that churches would never have to tolerate.

Comically, the reason given in the email, concern over “theological differences,” assumed that other high school students could achieve theological continuity. Differing denominations and traditions do not play well together and have not since the Reformation. If these differences can be “set aside” for the sake of the parachurch organization mission, one has to wonder why they were not in this instance.


Private internal investigations and hearings held by churches in governance of the conduct of their members that are not made public, although the outcome in some limited respect might be made public, have historically been shielded by the Ecclesiastical Abstention Doctrine. State law tort claims and state and federal employment laws have been restricted from intrusion in church governance. The manner in which the hearing or investigation is conducted, as long as its internal, is usually unknown by anyone other than the participants.

In Williams v Kingdom Hall of Jehovah’s Witnesses, Slip Op., (Utah App. 2019), the alleged victim of sexual misconduct sued the church alleging that the hearing conducted about her conduct was tortious because of the manner in which it was conducted. The hearing was conducted to determine if she was a consenting participant in the sexual event. At the time of the event she was a minor. She attended the hearing with her parents. She alleged a recording (apparently audio only) of several hours duration, surreptitiously made and then produced to the church leadership by the alleged wrongdoer, was played at the hearing. During the church hearing, though she admitted she was free to leave, the Plaintiff alleged she cried and protested the playing of the recording. She claimed she could not leave the hearing because she feared she would be summarily “disfellowshipped.” At various points in the recording, playback was paused so she could be questioned about her consent. She claimed during the church hearing she was “crying and physically quivering.” The trial court dismissed the lawsuit and the appellate court affirmed.

The Utah appellate court seemed to rely on the Lemon test. Lemon v Kurtzman, 403 US 602, 612 (1971). “This test requires the government action “(1) must have a secular legislative purpose, (2) must neither advance nor inhibit religion, and (3) must not foster an excessive government entanglement with religion.” Id. (quotation simplified).” The third element of the test was dispositive to the Utah appellate court. The Utah appellate court characterized the Plaintiff’s claim as asking “the factfinder to interpret the “outrageousness” of the Church’s conduct in investigating her alleged sins.”

If the Plaintiff was required to be a witness against the alleged wrongdoer in a criminal or civil proceeding, the Plaintiff would have been cross–examined. The recording would probably have been made part of the public record even if the Plaintiff was not directly confronted with the contents of the recording. In a civil tort proceeding, there is less doubt about whether the victim would have been cross–examined using the recording. The recording was reportedly several hours in length. Thus, while the conduct of the internal church hearing might seem harsh, it might be no different than either a criminal court or civil court proceeding had there been either or both.

Internal church investigations will not typically be reviewed by courts under any theory as long as there is no public revelation of the hearing or investigation. The outcome should be carefully reported to congregations. Church leaders are typically unpaid non-professionals that need to be educated about such matters in advance. This may include their spouses. A church may wish to engage counsel to help make decisions about public disclosures. Public disclosures are those made available to non-members. Churches that do not have non-public worship services, for example, should not be reporting such things at worship services.