Author: churchlitigationupdate

THE DOOR THAT WILL NOT OPEN

While many churches seek to employ transnational employees to serve as worship leaders for transnational parishioners or to give a transnational flavor to worship, there are immigration law barriers and requirements.  Such barriers and requirements, while more likely enforced in the present administration, have been present in one form or another throughout the 21st century and some beyond that.  Almost sixty years ago, as a child watching Saturday morning cartoons on broadcast television in black and white transmissions, the Public Service Announcements broadcast in addition to used car sales commercials reminded aliens of the need to renew registration annually.  Churches that must confront these laws should do so with qualified immigration law counsel.

In Liberty Church of the Assemblies of God v Pompeo, Memorandum and Order on Defendants’ Motion to Dismiss (D. Mass. 2020), the federal trial court dismissed the case challenging consular denial of a visa to a music worship leader from Brazil.  The court invoked the Doctrine of Consular Non-reviewability.  The music worship leader originally entered the United States under a Form I-129 application for “R” status filed by the church.  The music worship leader worked in that role in 2019.  However, in November of 2019, the music worship leader returned to Brazil to become engaged to his fiancée.  He could not return to the United States under the original “R” status without first obtaining a new visa.  The consular officers in Brazil ruled the music worship leader was ineligible and denied the visa.  The basis given for the ruling was that the music worship leader had been in the United States for five years and there was no evidence of any intention to return to Brazil.  Allegedly, the consular officers denied the application for the visa without review of any or all of the documentation submitted.  The Doctrine of Consular Non-reviewability generally precludes a federal court from reviewing a consular officer’s decision to deny a visa because the issues raised are “non-constitutional.”  The church argued that the decision of the consular officer denied the church’s First Amendment rights by violation of the Establishment Clause.  However, the trial court held that refusal of a visa was not an entanglement with establishment of a religion.  Also, there was no evidence submitted the religious beliefs of the music worship leader played any role in the decision.

If, indeed, the music worship leader was not to be sent back to Brazil by the church to continue ministry there, an immigration lawyer should have been consulted before he returned to Brazil for the engagement.  Also, the opinion does not state whether either the church or the music worship leader engaged in efforts to obtain either permanent residency status or citizenship.  However, churches should assume that regardless of the political orientation of the administration in any given era, church applications for “R” status will not be viewed with the same “open arms” as similar applications from businesses seeking to brain drain other countries.  The same scenario reported in the case reported has been seen by the author in administrations by both major parties.

FACING THE MUSIC AT HOME

Home field advantage is a substantial advantage.  In litigation, sometimes it favors the Defendant and sometimes the Plaintiff.  Additionally, the court near the Defendant’s headquarters might be the “forum” with the more advantageous laws, such as stricter statutes of limitation.  Also, defending a case or prosecuting a case in a court distant from homes and headquarters can be expensive, in part because of travel costs, but sometimes because a local lawyer must be engaged to assist the lawyer of choice not admitted in the distant court.

In Doe v Archdiocese of Philadelphia, Opinion (D NJ, 2020), the federal trial court rather than dismiss the Plaintiff’s case transferred the case to federal trial court in Pennsylvania.  The New Jersey trial court held it did not have personal jurisdiction over the Defendant in the case presented.  The Plaintiff alleged the employee priest sexually abused the Plaintiff in both Pennsylvania, the location of the local church facilities, and in a beach home in New Jersey.  The abuse continued for a short time even after the priest was transferred.  A quarter of a century later, the priest was laicized.  The federal trial court held that the priest was not acting in course and scope of employment as a matter of law while sexually abusing Plaintiff, therefore, making the transportation of Plaintiff to New Jersey not an act attributable to Defendant which might have conferred jurisdiction.  The Defendant did not purposely direct its activity to New Jersey that caused the harm to Plaintiff.  The Defendant did not have a “substantial connection” to the forum, New Jersey, that was related to Plaintiff’s claims.  However, the Defendant did own property in New Jersey, but that property was not involved.  (While the ownership of the beach house was not mentioned, it was apparently not owned by the Defendant.)  The employment and assignment decisions over employed priests was not carried out in New Jersey.

The reported case might have been quite differently decided.  Because the Plaintiff alleged sexual abuse occurred at the New Jersey beach house, the court could easily have held that the alleged wrongful conduct of the Defendant in failing to supervise, hire, and inquire as to reasons for transfer was substantially connected to the events in New Jersey.  The beach house trips involved the priest and several young boys, only one of whom was the Plaintiff.  For example, a trucking company can usually be sued along with their employee driver at the location of the accident irrespective of whether the trucking company directed the employee driver to travel through that state or to drive negligently, recklessly or drunkenly.  A church bus in a foreign state engaged in a mishap will likewise likely cause the local church to be named in the foreign state court, probably even if the driver borrowed the vehicle for a personal trip.

PUBLICLY REPORTING SEXUAL MISCONDUCT OF CLERGY

There are movements afoot, that may or may not be successful, to make criminal convictions non-public and to ban employers from considering convictions, much less allegations that did not lead to convictions.  The concerns behind these movements is that persons convicted of crimes, especially felonies, are permanently “marked” and find employment problematic.  Meanwhile, there are movements afoot, that have had marked temporal success demanding transparency regarding allegations of sexual misconduct against those in power and especially in the clergy.  Those targeted by such allegations, even though the allegations are no longer actionable or prosecutable are often similarly “marked” and their future employment impaired.  Persons against which allegations were made but for which no conviction resulted may resort to civil lawsuits to try to clear their name or suppress continued reporting of pending or unresolved allegations.

In Kaucheck v Detroit Free Press, Slip Op. (Mich. App. 2020), a priest was suspended from public ministry in 2009 regarding allegations of sexual misconduct after an “independent investigation” determined the allegations were “deemed substantive.”  The church process regarding the allegations remained in the “Congregation for Clergy at the Vatican.”  The priest founded in 2016 a ministry to teenage pregnant females at which he served as an ex-officio board of directors member and “director of development.”  The ministry was not officially affiliated with the church.  A public outcry ensued which found its way onto the internet and finally into the news media.  The Plaintiff sued the news media and the individuals and organizations complaining about the Plaintiff’s involvement in the ministry to teenage pregnant females.  The trial court granted summary judgment to the defendants.  The appellate court affirmed holding that the statements made were not defamatory because they were true and because public reporting of the allegations and the outcry was protected non-actionable First Amendment speech.

The structural flaw in the Catholic church is that the final decision to defrock or exonerate a priest, bishop or cardinal cannot be completed in a timely manner.  In the case reported the case remained unresolved after eleven years.  Thus, the Plaintiff was left before the public as a priest.  The announcement of the church that the Plaintiff was “banned from public ministry” was not emblazoned on Moses’ tablets and was prone to being lost in the mists of time.  The Catholic church could restructure such decisions so that national level determinations are made by a “jury” of the leadership.  Appeal to a Vatican level review could be by application for certiorari, much like the United States Supreme Court.

Evangelical denominations move more quickly but then must require their local churches not to allow defrocked clergy into local church leadership positions.  Verification should be practiced by an annual review of the names of local church leaders and employees.  In the age of computers, this is not an insurmountable task.  Non-denominational churches should actually call church leaders at prior employers, rather than only conduct inexpensive criminal conviction background checks (which have their own problems in the age of identity theft and identity obscuring).  Personnel file waivers can be signed by candidates for employment that allow personnel files to be retrieved from prior employers to verify that there have been no sexual misconduct complaints.

SILENCE IS NOT GOLDEN

Churches that are denominational members, and not just affiliated loosely, are typically bound by the denominational governing documents and rulings of the denomination about the scope or meaning of the governing documents.  These denominations and their local churches are often referred to as “hierarchical” even though a few denominations do not like that word.  The denominational governing documents were generally developed over many decades.

In Presbytery of New York City v Zion Presbyterian Church of Brooklyn, 2020 NY Slip Op 31649(U), the trial court quieted the title to the local church property in the denomination upon the local church’s attempted secession from the denomination.  One of the arguments made that caused this opinion to differ from many others arising from this denominational split was that the local church claimed they never agreed to amendments three decades earlier to the denominational governing documents that first included the property reversion clause.  The Court rejected the argument, among other reasons, because during the decades following the amendment the local church did not object to the amendment.  An odd statement in the opinion, which was otherwise well and conventionally articulated was the statement:  “On July 2, 1979, in Jones v Wolf, the United States Supreme Court held that a state is constitutionally entitled to adopt secular, neutral principles of law that rely on objective, well-established concepts of trust and property law familiar to law and judges to resolve church property disputes (443 US 595, 603 [1979])” (underlining added).

The local church’s conduct during several decades in silently ignoring or, indeed, accepting the adoption of the reversionary clause was deemed an acquiescence.  The lesson for the denomination was to obtain a “sign off” from its local churches in some manner even if it was subtle or hidden in fine print, although in a manner of speaking the court held the denomination did so.  The lesson for local church leaders is to read the fine print and opt out where permitted.  Battles by local churches against reversionary clauses have not gone well.

It seems unlikely that states are “constitutionally entitled” to decide property disputes by using Neutral Principles of Law.  While the Eleventh Amendment does protect the sovereign rights of states, the fact that the Eleventh Amendment was necessary indicates the Constitution as originally formulated did not “entitle” states rights.  Because ownership of land and buildings is generally a secular activity rather than an Ecclesiastical activity in which states have a responsibility to govern, the highest courts have pointed the way to decisions that do not require Ecclesiastical inquiries by secular courts.