ABUSE OF PROCESS

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.

CONFRONTATION AND EXPULSION

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.

THE POWER OF MEMBERS

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.

WAIVER OF THE PENITENT PRIVILEGE

Most of the reported cases have addressed only whether the Penitent Privilege, sometimes labeled otherwise, such as the Confessional Privilege, applies to a particular communicant or to a church leader that is not clergy.  Once the Penitent Privilege attaches, it is unusual for it to be revisited.

In Church of Latter-Day Saints v Cardinal, Slip Op. (Az. App. 2022), the claimants in the underlying case, in their claim for damages for the abuse, sought a copy of the church disciplinary file and testimony from one of the church leaders present during the disciplinary hearing.  The communicant had been excommunicated by the church.  The trial court held the privilege was waived by the communicant because he posted video of his abuse of his children on social media.  The communicant was arrested, may have confessed to law enforcement, but committed suicide.  The trial court ordered the church leader to testify for reasons that were unclear.  It could have been because the church leader’s title was unclear or changed.  In any event, the appellate court vacated the trial court’s order.  The appellate court held the communicant may have confessed to police and placed video of the despicable acts on social media, but the communicant was not shown to have placed the contents of his penitent confession in the public sphere, and therefore the privilege was not waived.  The appellate court held the record did not support the trial court’s conclusion the church leader did not qualify as clergy or a similarly empowered church leader under Arizona’s Penitent Privilege statute.

The reported case is specific to the Arizona Penitent Privilege statute and can be used as authority in any other state only with caution.  But, it does suggest a reading of such a statute that may not as yet have occurred to a court in another state because the issue has not been present.  Nevertheless, no waiver of confessional privilege should ever be assumed effective by any church leadership to be effective without a written opinion from church counsel. Generally, clergy cannot waive the statutory privilege.