The first available reported decision of 2023 started with a church split that spilled into the street. In most instances, the faction that is, in fact, attempting to usurp the denominational authority or the property ownership generally will not succeed. In most instances, if the fight has arisen because a clergyman has fallen out of favor with one of the factions, the clergyman’s employment by the church will only continue if the clergyman is not dependent upon the usurpers.
In Olsen v Roper, Slip Op., 2023 Ark App 35, the parties entered into a “standstill agreement” memorialized by an order of the trial court. The day after the agreement was entered and the court order issued, one faction sought to transfer all church assets to a new church corporation not affiliated with the denomination and changed the locks on the doors. The trial court enjoined the attempt to transfer church assets to the new church corporation. While the case was pending, the denominational authority revoked the pastor’s credentials and restored the control of the church to the faction opposing the faction supporting the former pastor. After the denomination’s actions, the trial court dismissed the remainder of the case on Ecclesiastical Abstention Doctrine grounds. The losing faction appealed the dismissal. The Arkansas appellate court affirmed the decision of the trial court to dismiss the case as to church governance issues. The appellate court did not affirm the dismissal of the claims leading to the temporary injunction, holding that a court does have jurisdiction to maintain the assets of the church until resolution of the claims either by the denomination or by the court.
The factual source of the church split was not reported by the appellate court in the reported case. Indeed, rarely are the hurt feelings or even legitimate grievances aired in such opinions. That seemingly general norm of court opinions upon which we have reported may teach us that the dispute to outsiders, whatever its subject may be, is incomprehensible or simply irrelevant. In any event, the Ecclesiastical Abstention Doctrine takes courts out of the role of mediator, referee or arbiter as to the underlying causes of the church split. The denomination, when there is one involved, is the only likely candidate for those roles. Congregational churches without binding denominational ties are on their own.
Abuse of Process is in most states a common law tort based on proof that a lawsuit was used for an improper purpose, typically to obtain what the court in the lawsuit could not otherwise order. Using a lawsuit for improper purposes such as extortion, fraud, or deception is the basis for an abuse of process claim. Because general trial courts typically have the authority to fashion numerous types of remedies, the search to find an extra-legal remedy upon which to base an abuse of process tort claim would be daunting.
In Plishka v Skurla, 2022 Ohio 4744, Slip Op. (OH App. 2022), the Plaintiff was suspended from ministry. Plaintiff claimed that a lawsuit filed by the church hierarchy to force return by replevin of property, allegedly including church relics and other church property, was a subterfuge. The Plaintiff claimed the ulterior motive motivating the replevin lawsuit was to provide a basis for suspension of Plaintiff under church law without a church hearing. The trial court held the abuse of process claim was intertwined in ecclesiastical decisions which the court could not hear. The lawsuit proceeded through motions and a three week jury trial. The jury entered a verdict in favor of the church hierarchy. The verdict awarded the disputed property to the church but awarded no monetary damages. The Plaintiff appealed but the appellate court declined to set aside the trial court’s dismissal of the abuse of process claim and the verdict of the jury remained intact.
The task of summarizing the reported case in a single paragraph was challenging because the reported opinion consumed almost 10,000 words. The opinion’s recitation of the history of the litigation was mesmerizing because all of the litigants were clergy meaning that the funding for the litigation seemed also to have been a notable accomplishment.
Be that as it may, the tort of abuse of process is not often the theory of recovery of choice. Defamation is the more common choice. Defamation does not fare well for the same reason abuse of process may not. Church disciplinary actions, such as suspension or reinstatement of clergy, are inherently ecclesiastical and almost universally will not be reviewed by an American court. Thus, even if a lawsuit was initiated to justify suspension of clergy and to avoid ecclesiastical due process, reviewing the process of suspension to determine if there was a basis for the claim of abuse of process would be beyond the jurisdiction of most American courts.
Most of the “excommunications” in court opinions we have reported were not actionable in a court. The Ecclesiastical Abstention Doctrine precluded the court from considering the issue in isolation. Only if there was a legitimate dispute based on church governing documents about who had a right to the keys to the building might the issue of membership termination be impacted though not considered.
In Tharp v Hillcrest Baptist Church, 2022 Ohio 4695 (Ohio App. 2022), the trial court granted summary judgment to the defendant church. The Plaintiff was confronted by the church pastor about an allegation of sexual misconduct brought by another member. The pastor was told that the other member saw Plaintiff and allegedly identified him as the person that molested him thirty years earlier. The Plaintiff admitted the factual basis of the allegation but denied wrongdoing. The Plaintiff repeated the admission in a deposition. The church expelled the Plaintiff from membership. The Pastor allegedly advised the congregation of the expulsion and that it was based in part on the opinion of an “expert” consulted by the Pastor. The “expert” allegedly opined the Plaintiff had an “incurable illness” and his volunteer work in the youth ministry “amounted to grooming children.” The Plaintiff’s defamation claim was dismissed because the Pastor had “qualified immunity,” arising from a duty to speak as to “church interests” in the report to the congregation, as well as from the general duty to protect children. The court held “church discipline” was “beyond the scope of review by a secular tribunal.” The claims of molestation did not appear in a background check and the Plaintiff allegedly failed to disclose them while applying to volunteer in youth ministry. The “confrontation” by the Pastor was not in the course of confessional or penitent communication.
The church and the Pastor seemed to move resolutely from the original notice by the other member, to confrontation, and then to expulsion. The lawsuit provided the opportunity to take a deposition. This seemingly resolute step at a time approach without hesitation upon confirmation, from the confrontation and the notification by the other member, made the outcome virtually certain. Churches that dither, wring their hands, or try without professional guidance for “reclamation” and unverified “repentance” end up with claims more costly or difficult to defend.
Congregational church governing documents often are not drafted with any an eye to resolving disputes or reflecting significant changes in leadership. They should be. They should be reviewed annually or bi-annually to make sure they are current and complete. At least bi-annually church counsel should review them. In hierarchal churches, the governing documents of the denomination are usually adopted or modified in denominational meetings that occur less often. The local church governing documents, unless dictated by the denomination, should still be reviewed.
In Bui v Bach, Slip Op. (CA. App. 2022), the “internecine battle for control of the temple” commenced upon the death of the founder. The founder allegedly selected a successor, a successor allegedly confirmed by the membership, but two factions formed to challenge each other. The Plaintiffs were “long-time dues-paying congregants” but not office holders. The Defendants were two of the members of the board of directors that allegedly sought to force out the allegedly chosen and confirmed successor. The trial court held the “long-time dues-paying congregants” did not have “standing.” In other words, the court held the congregants did not have an interest recognized in the law to allow them to judicially challenge the actions of the directors. The appellate court reversed in part. While the appellate court held the congregants lacked standing for a cause of action based on a state corporation statute, which required that the Plaintiff be a director, other theories were allowed to proceed. The appellate court held a congregant had standing to demand an accounting from the Defendant directors. The appellant court held a congregant had standing to seek a judicial declaration as to who the legitimate directors might be under corporate law, if applicable.
The winner will be ultimately determined in the trial court on remand. However, such litigation can generally be avoided if bylaws, or other governing documents regardless of what they are named, are routinely reviewed and authenticated by the corporate secretary. The original and copies should be separately stored. Digital copies are acceptable, but the only copy should not be on the computer sitting in the church office. Indeed, the membership should have a digital copy. In the reported case, the original bylaws, thought to be lost, were only located because by happen stance someone filed a set as an attachment to incorporation documents. Succession of leadership procedures should be clearly set forth, easily enacted by a congregation, and easily documented. Membership rolls should reviewed and authenticated annually. Likewise, copies should be stored.