A civil court will only apply Neutral Principles of Law to a dispute if the court holds that the court will not become entangled in ecclesiastical issues. If the court holds there could be entanglement, then a court will not proceed by invoking the Ecclesiastical Abstention Doctrine. Merely because a church claimed there would be entanglement will not make the defense viable. The court must agree.
In Russian Orthodox Convent v Sukharevskaya, 2018 NY Slip Op 08167 (NY App. 2018), the Defendant Nun claimed one of the convent priests was engaged in sexual misconduct. Her allegation did not find favorable review and the ruling bishops directed her to vacate the convent. The Defendant Nun refused to vacate and an ecclesiastical court disciplined her by making her ineligible to wear the apparel of a nun or receive communion for two years. However, this did not silence her and she renewed her complaint about the conduct of the priest. An ecclesiastical court permanently defrocked her and ordered her to vacate. She refused and the convent sued to evict her. In defense of the lawsuit, she claimed the ecclesiastical court was attempting to silence her. The trial court held the nun stated an equitable defense to the eviction and dismissed the eviction. The convent appealed the decision. The appellate court affirmed the trial court on Ecclesiastical Abstention Doctrine grounds holding that to determine whether the eviction was justified would require the court to determine if the defrocking of the nun was in retaliation for whistleblowing.
Generally, a court will find that ownership and possession of church property is subject to Neutral Principles of Law and decide the issue. But, in the rare event the ownership or possession of church property cannot be decided without deciding an ecclesiastical issue, the court will leave it where it finds it. The church and the adverse claimant could literally have to wait for the other to die or compromise, no matter how long that might take.
The exact line between church and state is in a tidewater subject to ebb and flow. While that is somewhat less true when the Ministerial Exception can be invoked in federal employment civil rights claims, when the employee is a minister, it is still true in that instance as well. The non-lawyer sometimes forgets, as do some lawyers, that the right to contract is enshrined in the Constitution as is the First Amendment right. Balancing these two rights, which are both critical to a free society, is sometimes a matter of mere opinion.
In Turner v Tri-County Baptist Church, 2018 Ohio 4658 (Ohio App. 12th, 2018), the Plaintiff alleged breach of contract and defamation. The trial court dismissed the lawsuit invoking the Ecclesiastical Abstention Doctrine. The appellate court affirmed by a plurality. The facts stated by the Court were that the Senior Pastor recommended that the Plaintiff retire or accept a part-time position. When the Plaintiff declined the Plaintiff was placed on a “Performance Growth Initiative.” Later, Plaintiff was demoted to part time status. This may have been part of a plan to “counsel out of the business” and thus move Plaintiff to retirement. However, at a congregational meeting, the Plaintiff stated his move to part-time status was involuntary. Believing that was divisive, the Plaintiff was terminated by the church’s governing board. The Court held that Ohio would not extend the Neutral Principles Doctrine beyond church property disputes. Therefore, the Plaintiff’s breach of contract and defamation claims were barred. There was no need for an inquiry into whether entanglement with ecclesiastical matters could be avoided by the Court.
If Courts can be convinced to articulate the bounds of Neutral Principles with this level of clarity, i.e., that the doctrine only applies to church property, then the safe harbor for churches would expand and be predictable. However, the tidal force that may erode the shoreline will be when churches use written employment contracts in such a legal framework. If written church employment contracts were unenforceable altogether then ministers would always face uncertainty in congregational churches or denominational churches that had unclear employment guarantees at the local level. As the dissent in the foregoing case exemplifies, the sanctity of contracts cannot simply be ignored.
Many investors troll tax auctions conducted by city, county, state or federal taxing authorities. Because the properties are often distressed or abandoned, the amounts bid typically remain modest. But, the successful bidder gets only a “tax deed,” or whatever that might be called in each state’s practice. Tax deeds are generally enforceable but unlike warranty deeds which can be all but unsaleable and insured, tax deeds can be set aside in a few cases. Buying a church property at tax auction, therefore, may or may not be “final.”
In Spiritlove Ministries v Blessed Peace Church, Slip Op. (Mich. App. 2018), the church property was abandoned by a predecessor owner that was a denominational church. The denomination declared the church property abandoned pursuant to the denominational governance documents and the reversionary clause in the title. The denomination sold the property to the Plaintiff and delivered a quit claim deed. Almost simultaneously, the Defendant discovered the church property and bought it from the taxing authority acquiring a tax deed (or whatever it might be called in Michigan). The Defendant moved onto the property. The Plaintiff church discovered this and asserted its rights and reached an accord with the Defendant church that the Defendant would vacate the property by a date certain. The Defendant acquired a quitclaim deed from the predecessor owner church that had abandoned the property in the first place and reasserted ownership of the property. The Plaintiff sought and obtained from the trial court by summary judgment a quieted title. The court concluded that under the Ecclesiastical Exception Doctrine, the court could not review the denominational decision to declare the property abandoned or the sale of the property to the Plaintiff, making it the enforceable transaction.
Denominational governance documents and reversionary clauses in church property titles remain enforceable. In obtaining a church property by purchase, or in any other way including by gift, these documents must be inspected. Claims the documents are lost or unavailable should not be relied upon. Usually, the documents are in the public record or someone’s attic, because they always seem to turn up. While a tax auction can be a wonderful investment, certain caution must accompany the investment. If due diligence prior to the purchase cannot be completed it should be immediately after. Easy sounding solutions to title problems rarely are either, easy or solutions.
Typically, bequests to churches do not engender much controversy because the bequest is usually modest in comparison to the estate or the estate has no other beneficiaries. Nevertheless, many churches ask their members to leave a bequest but do not find out until after death whether the bequest has been documented in an enforceable manner.
In Birchman Baptist Church v Elliot, Slip Op. (Tex. Civ. App. 2018), the deceased was required by his divorce decree to keep his life insurance policy in force and to nominate his children as the beneficiaries. The divorce decree did not require the beneficiary designation to remain inviolate after the children became adults. The deceased complied and after several years the children matured into adults. Inexplicably, the deceased used the fax machine at the church to submit an amended beneficiary designation which eliminated his children as beneficiaries and nominated the church. Shortly thereafter, the deceased sent a suicide note to the church pastor and then committed suicide. The appellate court reversed the trial court and held that because the divorce decree did not require that the children remain the beneficiaries beyond reaching majority status, the substitution of the church as beneficiary was enforceable. However, because the children alleged undue influence by the church in causing the deceased to eliminate them as beneficiaries, the case was remanded to the trial court for a decision on that issue.
Such a tragedy does not yield many usable lessons. The church would never condone the suicide, and, indeed, would have tried to prevent it. The children may have been temporarily estranged, or may not have been, but had their father lived there might have been an opportunity to reduce or heal the rift. Thus, the children would not have sought the death. Given what the parties appear to have spent on legal fees and the modest size of the policy, an amicable sharing agreement would have been more cost effective.
Negligent hiring and negligent supervision claims arise when an employer is on actual notice, or by reasonable minimum inquiry should have been, that the employee represents a risk of harm. In the church setting, that risk is almost always sexually vulnerable teenagers or children in general. A church will generally not be held liable for the actions of a rogue employee absent actual notice of the risk. Generally, that actual notice would include a prior bad act or an unresolved allegation of a prior bad act. It is often amazing how trusting and naïve church leadership can be in such matters. Platitudes about forgiveness and redemption are not defenses. Only very extensive proof of rehabilitation after a prior bad act, proof of repentance in the parlance of some, might be a defense. However, there are many that believe, with or without scientific support, that from a prior bad act of sexual misconduct by an adult with a child (anyone below the age of lawful consent) there is no coming back. Some of those people may make it on to a jury or even the bench.
In Bourque v Roman Catholic Diocese of Charlotte, NC, Slip Op. (NC App. 2018), the church was accused of negligent hiring and negligent supervision of a seminarian that acted as a youth minister that also allegedly had sexual relations with a fourteen year old parishioner. The sexual misconduct allegedly continued after the seminarian left the seminary and was taken in by the family of the victim while the seminarian developed a new life path. The reason for departure from the seminary is not reported. Clearly, consent was not an issue because the fourteen year old could not consent and was raped if the sexual conduct occurred as alleged. The church appealed the refusal of the trial court to dismiss the case on Ecclesiastical Exception grounds. The appellate court affirmed the trial court and held that neutral principles of law governed the claim of negligent supervision. If the church was on actual notice of the risk represented by the alleged wrongdoer, what the church knew was not detailed in the opinion, it could be liable. The appellate court, however, did order dismissal of the negligent hiring claim if it was based on a failure to train.
Attempting to terminate a lawsuit on a motion to dismiss in most jurisdictions is an uphill slog at best. In most jurisdictions, motions to dismiss are strictly limited as to tort claims. Negligent hiring claims and negligent supervision claims will not be viable as to ministry performance issues but will likely be viable as to sexual molestation claims. Too many churches still fail to be wary about the issue.
Immigration law in the United States is not generally within the scope of this website and not within the expertise of the author. Nevertheless, church and para-church organizations are often embroiled in immigration law problems, especially in the border states. However, even in non-border states the issue comes up. Most church lawyers in most places have seen recurrent immigration problems. The problems involving only church members are problematic because the resources are not available to engage counsel. But, church and para-church organizations that have immigration issues are usually able to deploy sufficient resources and may be motivated to do so. The problems encountered usually involve the religious visa (“R-1 visa”) or the religious worker petition (“I-360 petition.”) See, Religious Freedom and Restoration Act of 1993 §3, 42 U.S.C. § 2000bb-1 (2006) (“RFRA”). For example, if a denomination or organization of churches funds mission work outside the United States, it may occasionally want in person reports made to member churches on the work from the foreign citizen missionaries themselves. But, the federal government has in the past declined R-1 visas or I-360 petitions if there is inadequate assurance the foreign citizen missionary will leave the United States upon expiration of the visa or petition.
In O Centro Espirita v Homeland Security, Memorandum and Order (NM 2018) the federal trial court granted an injunction against Homeland Security for denying an R-1 visa because the applicant, a foreign citizen minister, was not compensated by the para-church organization. The federal government was using compensation as the dividing line between lay church members and actual religious workers. But, the para-church organization in question was part of a religious group that did not permit compensation of its ministers. Indeed, the same issue was litigated by the same para-church organization in 2010 before the same court. Pursuant to the resolution of the 2010 case, the Department of Justice appointed one of its civil rights attorneys to act as a “contact point” for this particular religious group to avoid the issue but for some reason by 2017 that was not working. After the court granted the injunction, the parties settled the case and the 91 page opinion was mostly focused on the award of over $50,000 in attorney fees against the federal government.
For most churches and para-church organizations facing immigration law questions, the only rational answer is an attorney focused on the practice of immigration law. This is not a do it yourself area of the law at this time and may never be because of the rapidity with which the law in the subject changes. Not every case will end in litigation; indeed, that will probably be the rare exception.
The 150th case report on this website is remarkable only in that it evidences further the growth in church litigation subject matter. Legal questions unimaginable a couple of decades ago for churches are now routine. Abatement seems unlikely.
Church marketing and branding has become sufficiently commercial that occasionally a church will try to copyright or trademark its name. Even if the name is extra-scriptural (regardless of whether the scriptures are Biblical, Taoist, or Sanskrit), most such words are so generic no copyright or trademark can be obtained. My favorite example of how such a simple principle can go awry is my favorite spice: “Bon Caca.” The name is part of a registered trade mark proving that the United States trade mark registrars do not speak “Cajun.”
In the The Universal Church, Inc. v Toellner, Slip Op. (2nd Cir. 2018), the United States Court of Appeals for the 2nd Circuit affirmed a federal trial court summary judgment by Summary Order. The Plaintiff sued a para-church organization called “Universal Life Church” for copyright and trademark infringement as well as cybersquatting. Cybersquating is prohibited by statute. 15 USC §1125. The Plaintiff’s name, “Universal Church” was held to be a generic term. In addition to legal authorities, the Court relied on the Oxford English Dictionary. The Court also held that Plaintiff, an actual Pentecostal Church (the opinion did not specify whether this was a doctrinal statement or if there was a denominational affiliation), was not facing unfair competition because the Defendant para-church organization only provided free online ordination and did not conduct church services anywhere except for occasional mass weddings. The Plaintiff had been defending its copyright and trademark by issuing “cease and desist” letters to alleged infringers but the Court held that did not matter. The Plaintiff claimed 30,000 members and 800,000 television viewers but the Court held that did not prove a claim that the “relevant public” associated the name with the Plaintiff. Both the Plaintiff and the Defendant provided reports from “expert witnesses” regarding usage of the phrase “universal church” in the history of Christendom. One must wonder if the word “catholic” was in either report.
There is nothing more dangerous in civil commercial litigation than a litigant that cannot afford to pay a judgment but can afford a lawyer. The Plaintiff church probably selected the Defendant to sue based on the faulty assumption that in a battle of offering plates, the Plaintiff’s would be larger to a crushing extent. The better approach, rather than expensive unsuccessful litigation, might have been to spend the same money buying the Defendant, especially its website.