Author: churchlitigationupdate

OLD FASHIONED CHURCH USURPATION COUPS

Churches that do not have properly or completely drafted control documents like bylaws will in business matters, rather than religious matters, be bound by state corporations statutes. Usurpers usually fail to take this into account or do not know. To enforce a statute on church business governance, rather than on religious matters, can only be done judicially and is an expensive method of church governance.

In Lee v Paik, Slip Op. (Tex. Civ. App. 5th, 2019), the temporary part-time pastor hired in 2002 was by 2009 ready to lead a coup. A congregational election was held in 2009 in which the not so temporary pastor was declared president of the church corporation and removed two of three sitting church board members. At the election, one of the three board members was present. The bylaws did not specify how replacement board members would be chosen as candidates or elected. The trial court held in the silence of the bylaws about electing new board members that the state corporations statute would control. Under the state statute then in effect, new board members could only be nominated and elected by the existing board in the absence of a provision in the bylaws for some other method. Because the board did not elect the new board members or remove the prior board members the trial court held the 2009 election was not effective. Moreover, the temporary part-time pastor was never entered as a member of the church on the membership rolls, and there was no evidence he had ever been a member, and for that reason lacked standing in court to challenge the prior board’s action in terminating him or nullifying the election. The appellate court confirmed the trial court.

Church governance documents should be updated every couple of years, as needed, following the amendment process set forth in the document. At the least, the church government should formally consider it and if there is no need the church board should decline to make a change. Recording the decision in the board minutes is also imperative. Merely ignoring the document until a serious problem arises is a fast road to legal expenses or enabling a usurper.

ERODING THE FIRST AMENDMENT – THE NEW CALIFORNIA ELEMENT OF THE MINISTERAIL EXCEPTION DOCTRINE

The First Amendment of the United States Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” That would seem clear. Indeed, in the seminal case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), federal employment law was held inapplicable to church employees if 1) the employee was “held out as a minister;” 2) the employee had the title of “minister” (or its equivalent); 3) the employee accepted a “formal call to religious service;” and 4) the employee had “a role in conveying the Church’s message and carrying out its mission.” Id., at 191-192. The foregoing formula was not to be applied mechanistically and, indeed, not every element had to be satisfied.

In Su v Stephen Wise Temple, Slip Op. (CA App., 2019) the appellate court reversed a summary judgment granted against the Labor Commissioner of California and remanded the matter for further proceedings. The Jewish temple employed forty teachers in its pre-school. The teachers need not be Jewish but were required to introduce children to “Jewish life, religious ritual and Judaic observance.” But, even though the teachers were “transmitting Jewish religion and practice to the next generation,” they were not “sufficiently central to a religious institution’s mission.” Therefore, the Ministerial Exception did not apply. The opinion does not state whether the pre-school teachers were complainants. However, the only issue raised by the Labor Commissioner in the case was whether the teachers were provided with “rest breaks, uninterrupted meal breaks, and overtime pay.”

The California court seemed oblivious to the reality that determining the pre-school teachers were not “sufficiently central to a religious institution’s mission” required an inherently ecclesiastical inquiry. The California appellant court was oblivious to the reality that it invaded First Amendment prohibited territory by holding that the “significant secular component” outweighed the religious instruction is listed at length. Moreover, and most offensive to the First Amendment, the California appellate court admitted “the pre-school is part of the Temple’s religious and educational mission, and it fulfills a religious obligation of the Temple. The [pre-school] exists to instill and foster a positive sense of Jewish identity and to develop in children favorable attitudes towards the values and practices of Judaism.” Thus, the California appellate court unleashed the California Labor Commissioner to make certain the pre-school teachers had the correct breaks, meal time, and over time pay to accomplish their admittedly religious mission.

THE REACH OF DENOMINATIONAL AUTHORITY

Denominational authority over a local congregation or its property is rarely extinguishable at the local level. If it is severable, the process is likely long and arduous. The process often depends upon unilateral agreement by the denomination which is historically unlikely to be obtained for any reason. Indeed, it is so unlikely the better plan is simply to develop external resources and then quietly exit the denominational local church, leaving behind a shell.

In Cedar Grove Baptist Church v Barnham, Slip Op. (Unpublished) (NJ App Div., 2019), the pastor advised the denomination he was leaving the denomination and taking the church with him. Apparently, however, his plan was not known, and later not supported, by the church he served. Indeed, in the ensuing battle over the local church property, the church leadership appointed a new pastor and then sued to enjoin the former pastor from control or presence on the church property. The trial court granted the injunction and the appellate court affirmed.

While instinctively church members think of the local church and its property as “theirs” and not the denomination’s property, this is rarely totally true. If a church has been a member of a denomination for many decades generations of the faithful have contributed to its existence. While the current generation may disdain the denominational roots, the denomination speaks for the generations that went before that now have no other voice. However that may be, denominations that themselves “go rogue” or no longer meet the need of a particular local church cannot stop a group of members from leaving and organizing under a different banner using their own resources. While growth by fission is painful, it is not illegal.

THE “NOT RELIGIOUS ENOUGH” TEST OF THE 9TH CIRCUIT

The Ministerial Exception of the First Amendment, the doctrine that employment laws do not apply to church employment decisions because such decisions involve ecclesiastical decisions shielded from judicial or legislative regulation, only applies to church employees that have a religious function. The history of that limitation on the doctrine, and whether it is actually a limitation consistent with the First Amendment idea of a constitutional level wall between government power and church dominion, is not the focus of this report. Rather, the manner by which the doctrine is applied is once again the question. Generally, the latest statement of the rule and its application is the totality-of-the-circumstances test articulated by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 565 U.S. 171 (2012). The problem with this test is that the totality to be weighed must be weighed subjectively.

In Biel v St. James School, Slip Op., ___ F3d ___ (9th Cir. 2018), the federal trial court dismissed the case because the Plaintiff was a 5th grade teacher in a Catholic elementary school that, at the least, taught religion thirty minutes a day in addition to teaching secular subjects and interwove Catholic religious teachings into other lessons. The Plaintiff alleged her annual contract after one year of service was not renewed in violation of the Americans with Disabilities Act because the Plaintiff anticipated chemotherapy to address breast cancer. The 9th Circuit reversed the trial court because it determined the Plaintiff was insufficiently religious to be found to be ministerial to trigger the doctrine and stated:

Biel, by contrast, has none of Perich’s credentials, training, or ministerial background. There was no religious component to her liberal studies degree or teaching credential. St. James had no religious requirements for her position. And, even after she began working there, her training consisted of only a half-day conference whose religious substance was limited. Unlike Perich, who joined the Lutheran teaching ministry as a calling, Biel appears to have taken on teaching work wherever she could find it: tutoring companies, multiple public schools, another Catholic school, and even a Lutheran school.

The 9th Circuit held that being required to teach Catholic religion thirty minutes a day was “no religious requirement for her position.” Likewise, the requirement, and the apparently mandatory training that went with it, that Catholic religious doctrine be incorporated in other lessons was “no religious requirement for her position.”

It seems rather odd that the 9th Circuit wants to be the leader in curtailing the scope of religious freedom protected by the First Amendment. The “totality” test of Hosanna-Tabor is not a scale upon which to weigh the amount of religion found in an employment relationship but rather based on the “totality” it is a determination whether there is an ecclesiastical component in the employment relationship. If there is an ecclesiastical component, the First Amendment is triggered. Once triggered, the First Amendment should not be any more vulnerable to subjective interpretation than any other constitutional prohibition. Only someone that has never been inside a church elementary school, of any denomination, could possibly fail to see the ecclesiastical component of the employment.

MANDATORY CHURCH MEDIATIONS

While placing a church under external supervision is a rare exercise in judicial power, it is not unheard of. We have reported on imposition of Special Masters, especially to determine membership or supervise elections. Mediators and Special Masters are not always different species. Also, mediators sometimes do not use shuttle diplomacy between striving factions but rather impose procedures, as do sometimes Special Masters, so that the resolution process may advance. If a church split is bad enough, and cannot be resolved merely by reviewing organizational documents, then a mediator or Special Master may be appointed.

In Eskridge v Peacock, Slip Op. (Miss. App. 2018), after the death of a pastor, two striving factions emerged each attempting to appoint the next pastor. There appeared to also be a fracture in recognized church leadership that made congregational rule either a stalemate or problematic. To resolve the impasse, the trial court appointed a mediator with instructions to conduct a congregational election. The mediator appointed was the denominational authority to which the church appeared to belong. Indeed, the court had to take testimony to confirm the church was part of the denomination appointed to mediate. A new pastor was elected under the supervision of the mediator but the losing faction appealed. The appellate court held that appointment of a mediator to supervise the congregational vote and ordering enforcement of the result, but not otherwise dictating the choice of pastor, did not entangle the trial court in ecclesiastical matters so the trial court was affirmed.

Churches may wish to contemplate in their bylaws mandating the appointment of an identified mediator in to be used in the event of court action. Possible mediators could include denominational authority, bible college faculty, or a particular accounting or lawfirm. Indeed, the language of the appointment could also include mandatory pre-litigation requirements that such a process be undertaken. The language should also specify the powers of the mediator or Special Master. A funding mechanism should also be spelled out. Demanding the challenger pay half or all of the cost may keep out all but serious challengers.

PASTOR VERSUS PASTOR

Mad Magazine has for many years published a comic strip entitled “Spy v. Spy.” It has since spread to YouTube videos and a video game. While that comic strip may have been inspired in 1961 by the Cold War, other famous small conflicts included the Hatfields and McCoys, which also spawned a US Supreme Court case in the 19th century and various dramatic interpretations. Like all such feuds, the factual history of any feud is winding and complex and not nearly as funny as “Spy v. Spy.” Unraveling the motives behind the ongoing feud is usually impossible.

In Fidelity National Title Insurance Company v New Haven Financial, Inc., Slip Op. (Cal. App. 2018), the death of the founding pastor in 2005 resulted in a power struggle between two rivals for the pastorate of the church. Several lawsuits resulted as each side in turn sought judicial relief against the other. Meanwhile, the denominational authority refused to accept the election of first one of the rivals and then the other. Further, one of the courts to hear one of the cases held the denominational authority was the only authority that could oversee an election and needed to do so because the church’s membership records were possibly unreliable. For no reason that was reported in the opinion, the denomination did not do so and the feuding continued in court. Eventually, one rival won a final judgment in a prior case. During the litigation, the rival that was later defeated in court, representing himself as pastor of the church, obtained a loan for $150,000 using church property as collateral. The foreclosure action was defeated by the winning rival and the title company had to pay the claim. The title company sought reparations from the rival, by then the losing rival, that took out the loan. The title company also sued the family of the defeated rival because the money was allegedly distributed to family members. The defeated rival filed a cross claim against the winning rival. The trial court dismissed the cross claim holding the prior ruling against the defeated rival barred further litigation of the issue by not only the defeated rival, but “parties in privity,” which included the family member that appealed in this case.

While church splits are not common enough to cause church members to even envision the possibility, church leaders should. Church and denominational documents should envision succession plans, election procedures and oversight, and membership roles should actually be kept by churches. Denominations should inspect membership lists, or require their submission at reasonable intervals, or at least require at reasonable intervals a certification in writing from the church that there is an actual membership list maintained. Denominations and church leaders may have to do more than pray for peace, they may have to impose it in extreme situations.

ECCLESIASTICAL ENTANGLEMENTS DEFENSES

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.