The Ministerial Exception generally precludes secular court review of employment decisions. The label itself arose from the short hand name affixed to such an exception found in some federal employment discrimination statutes. More loosely used in its First Amendment context, the doctrine generally puts hiring and firing decisions regarding pastors out of the reach of litigation. But, the Ministerial Exception rarely prohibits litigation regarding employment and benefit contract rights.
In Flakes v New Mt. Vernon Missionary Baptist Church, Slip Op. (Mich. App. 2019), the decision of the trial court granting summary judgment to the church was reversed. While the case originated as a lawsuit seeking reinstatement to the pulpit, the Plaintiff realized that was not legally available, abandoned reinstatement, and asserted only a salary dispute. The trial court, for whatever reasons, did not differentiate between reinstatement and a salary dispute and dismissed the case. The appellate court, however, reversed so that the trial court could reconsider whether the salary dispute, a creature of contract, could be determined without inquiring in ecclesiastical considerations. While that outcome seemed to be obvious from the short opinion, the more interesting question was remanded to the trial court. It was alleged by the church that the pastor was engaged pursuant to a written independent contractor agreement. The minister alleged that a year later a congregational vote called him as a pastor and he served in the position until the congregation terminated him seven years later.
Whether the action of the congregation to call the pastor a year after the original engagement pursuant to an independent contractor agreement in fact imposed a new contract will be an interesting dispute. Apparently, a new employment contract was not entered into after the call of the congregation. The independent contractor agreement was silent, apparently, on whether a subsequent congregational vote had any impact. The church governing documents, such as bylaws, may resolve or further complicate the dispute. The argument that the independent contractor agreement could only be amended in writing may have been fulfilled if the congregational vote calling the pastor was memorialized in governing board minutes or a church bulletin.
A version of the table below was copied in these reports a couple of years ago. Below is the 2019 version. While confessional privilege may be listed as “denied” in two states and a territory, it remains to be seen whether there will be or ever has been a prosecution for violation by a bone fide clergyman from a denomination with established confessional confidentiality. States that do not have confessional privilege exceptions in the mandatory reporting statute generally omit clergy from the list of mandatory reports so whether there is any duty on clergy is unclear.
Source: Child Welfare Information Gateway (2019), US Dept. of Health and Human Services.
In Nunez v Watchtower Bible and Tract Society of New York, Inc., 2020 MT 3 (Mont. 2020), a trial court judgment upon a jury verdict for $4 million and punitive damages of $35 million were overturned. The Montana statute contained a confessional privilege, as set forth, too, in the table above. The Supreme Court of Montana extensively analyzed the record before it as to the confessional privilege recognized by the denomination. The denomination made it a violation of canon law to breach the confessional confidentiality. However, the denomination recognized a church officer with authority to take confessions, unlike some denominations, could violate canon law and report the confession but that punishment would be unlikely. Nevertheless, that the denomination left some discretion in the confidentiality decision did not make it the ineligible for the confessional privilege set forth in Montana’s statute. The court held it was prohibited from considering whether religious confessional conduct conformed to the standards of a particular religious group. Also, the court held that by the Establishment Clause the court was prohibited from comparing confidentiality practices between denominations to favor one over the other.
The tension between confessional confidentiality and mandatory reporting statutes remains. Clergy are simply at risk. There is no easy way out. In some denominations, confession is not meaningful without proof of repentance. However, the breadth of the proof of repentance, or the vow to be undertaken to cure the sin, are beyond the scope of this report.
Because the Texas Civil Appeals Court issued two separate opinions from the same case, and because the case may generate some interest, two reports on the same case seemed most efficient.
Texas by statute limits lawsuits that may involve “exercise of the right of free speech, right to petition, or right of association.” Tex. Civ. Prac. & Rem. Code Ann. §27.003(a). In order to present a claim of defamation allowable under the statute, a plaintiff must present evidence that supports the elements of their claim sufficient to present a viable claim.
In Diocese of Lubbock v Guerrero, Slip Op. (Tex. Civ. App. 7th, 2019), in order to present a defamation claim sufficient to overcome the protection of a free speech claim, the Claimant Guerrero had to prove there was an exercise of free speech. Naming him on the publicly disseminated list of sex offenders “credibly accused” by the diocese qualified as free speech. The list was a “communication.” The list addressed a matter of “public concern.” The elements and proof of the defamation claim was summarized in our prior post on this case and the appellate court deemed it sufficient to state a cause of action. The diocese admitted it had no evidence the Claimant sexually assaulted someone under the age of 18 even though the Claimant was listed among those who allegedly had done so. The allegation against Claimant was that he engaged in sexual misconduct with an adult. The reason the adult was classified as a victim, such as inability to consent or other possible claims, was not recited in the opinion. While Claimant was allowed to pursue his defamation claim at the trial court level, the appellate court also dismissed the claim of intentional infliction of emotional distress. Claimant had no evidence the diocese intended to emotionally harm him. The diocese defined “minor” as anyone not capable of giving consent. Sanctions and attorney fees might be awarded against Claimant on the emotional distress claim on remand to the trial court.
While the cost of the conspiracy of silence, and possibly tolerance, was high, that does not automatically mean that transparency would not also be costly. Most likely, churches will chose to settle with credible victims and litigate with alleged perpetrators. A few such trials might be the next step, and cost, of transparency.
The Roman Catholic Church set off on a bold path when it decided to publicly list by name the persons it determined where “credibly” accused of sexual misconduct while holding church office. Such public accusations needed to be right and true in order to avoid defamation claims by alleged perpetrators. Those lawsuits have started.
In the case of In Re Diocese of Lubbock, Slip Op. (Tex. Civ. App. 7th, 2019), the trial court refused to dismiss the defamation claim by a former deacon listed publicly by the diocese as a sex offender. However, while lumped in with others accused of sexual misconduct with children, the claim against the former deacon was sexual misconduct with an adult. The appellate court, considering an extra-ordinary writ challenging the action of the trial court, affirmed the trial court. The appellate court at length recited that internal accusation by a church of a member in accord with the church disciplinary religious doctrine could not be considered by a court because it was shielded by the Ecclesiastical Abstention Doctrine. But, once the accusation was made public by the church, and not merely leaked inadvertently or without authorization, the Ecclesiastical Abstention Doctrine no longer applied. The case was remanded for further proceedings.
It would be interesting to know if denominations or churches that have decided to use publicly disclosed lists of “credibly accused” sexual offenders did so calculating the potential for additional claims. If so, the risk analysis may have led to them to believe the risk was less than the cost of lack of transparency. Truth is a defense in a defamation case but “credibly accused” may or may not be enough. Most denominations and churches issuing such lists have done so only after qualified counsel consumed many hours of billable time to assess the claims. The reported case may put that to the test.
[This is 200th report issued on this website. There does not seem to be an abatement of church lawsuits looming in the future.]
Most church schools have adopted handbooks that state the school’s policies, disciplinary and otherwise. Typically, the pupil’s parents, as well as the pupil, sign an acknowledgement agreement to conform. The acknowledgement usually warns that suspension and expulsion are real risks of violations. While the pupil cannot, as a minor, be bound contractually, the parents can be in most jurisdictions.
In St. Brendan High School, Inc. v Neff, Slip Op. (FL App 3d, 2019) the appellate court refused to prohibit the trial court from proceeding on the parents’ claim that expulsion violated the contract entered into upon enrollment. The school expelled the student because on her behalf the parents sued the school because the student was injured during “community service” at a location approved by the school. The handbook expressly prohibited lawsuits against the school and warned that expulsion would result. The parents and the student had previously signed the acknowledgement of the handbook containing the prohibition. The appellate court found that the parents’ lawsuit claims “fall on the secular / contractual side” and not in contravention of Florida’s interpretation of the Ecclesiastical Abstention Doctrine. Because such a writ is an “extraordinary remedy” not often granted, the outcome of the lawsuit remained uncertain.
Because the opinion reported did not quote the handbook in detail, whether the policy prohibiting lawsuits against the school was based on religious doctrine, such as Matthew 18, for example, or denominational governance documents was not discernible. Such a prohibition would need to be based on religious doctrine in order to qualify for Ecclesiastical Abstention. Whether the handbook prohibition and the signed acknowledgment under Florida law would be a form of waiver or contractual limitation on litigation choices, like an arbitration clause, could not be gleaned from the opinion. Waiver language might be more effective than prohibition language in some jurisdictions.
If a church slides into bankruptcy and decides to sell assets to extricate itself, are the members of the church entitled to be heard? Or, are the church members like common stock shareholders and simply along for the ride?
The federal bankruptcy court hearing In re: Sindesmos Hellinikes-Kinotitos of Chicago, Debtor, Memorandum Decision (ND ILL, ED, Bankr., 2019) faced a motion by church members to void an approved sale of real property made by church leadership to satisfy secured creditors. In order to have standing to challenge the authority of church leadership to approve the sale of property, the church members had to show (1) the church intended to vest in church members “a property right sufficient to require service” required by the bankruptcy code and (2) “sufficient to create a pecuniary interest in the outcome of the sale.” To determine if the church intended to create property rights in church members could have required the Court to “probe into the allocation of power within the church.” The Court declined to make that dive but rather relied on state law that determined the “trustees” of a church had the authority to dispose of church assets. The Court noted that the church members may have had the right to challenge the leadership’s decision to sell by invoking “Dispute Resolution Procedures” set forth in the denominational governance documents but did not do so. Because of the absence of a property right conferred by the church on its church members, the church as debtor had no duty to provide notice. In any event, the bankruptcy in question was high profile and reported in the national news because it involved the financial failure of a venerable church, which the Court noted, too.
It seems rather likely that if church members could not prevent the financial failure of their church in the first instance, they would have no unsatisfied property right to assert to stop foreclosures and asset sales. Moreover, church members attempts to engage meaningfully in the bankruptcy proceedings will likely be too late if they did not engage meaningfully before, especially if the opportunity to intervene was well documented. In most foreclosures it would be. In any event, church members will have to demonstrate a property interest greater than that of a common stock shareholder in order to have a seat at the bankruptcy table.
As lawsuits become more acceptable to churches as a means of enforcing their rights among themselves, secular legal theories are more often asserted. In struggles between denominations and their local churches or parachurch organizations, there are often contracts about which one or all parties will allege a breach of contract. Less often but becoming more common is the claim that a religious organization interfered with a contract.
In Samara Iglesia Evangelica, Inc. v Lorenzo, Order on Cross Motions for Summary Judgment and Motion to Strike (D Mass., 2019) the federal trial court sorted out a struggle between a denomination and its local church and the local church pastors. The denomination alleged the local church pastors were contractually bound not to alienate the property of the local church without authorization. When the local church and its pastors decided to terminate their relationship with the denomination, they transferred the property from the local church to a new church unaffiliated with the denomination. However, unlike more established denominations, the deed only named the local church as the owner which allowed the local church to transfer the deed to the new church without hinderance. Also, the governing documents of the local church did not grant the denomination any rights in the local church governance or property. The contracts with the local pastors, however, stated no definite duration which made the contracts terminable at will by either party. The local pastors resigned from the contracts. Those resignations terminated the contracts leaving no contract with which to interfere tortuously or otherwise.
From the denomination’s perspective, the error made was the failure to engage counsel to amend and update local church governing documents and deeds as well as denominational governing documents since the 1970s. The law has changed substantially since then. Also, religious promissory language is generally not enforceable in a court in the United States. Explicit contractual promises must be made, typically in writing signed by all parties. The employment contracts of pastors must be of a definite duration even if they automatically renew for a new term if not terminated at the anniversary date, or they will be “at will” employment contracts in most states. Venue and applicable selection clauses will prevent legal battles from always being fought in the location of the local church rather than in the location of the denominational headquarters.