Author: churchlitigationupdate

DIVIDING BY ONE

Hierarchical churches generally cannot divide and separate constituent entities in a manner that may shield one level from the damages allegedly caused by a different level.  The hierarchical church is generally viewed as virtually or actually integrated such that a claim against one level can also be brought against another level.  Indeed, it is rare to see an assertion that there is an actual barrier between one level and another of a hierarchical church.

In Clement v The Roman Catholic Diocese of Erie, Memorandum Opinion (WD Pa. 2017), the Plaintiff alleged sexual harassment by the priest supervising her work.  The Diocese moved to dismiss the claims against the Diocese on the grounds the Diocese was not the employer and the Plaintiff was employed by the parish church.  The Plaintiff also alleged that she complained to the monsignor that supervised the priest and even with the Bishop of the Diocese but that neither did anything.  The Plaintiff claimed that there was “operational entanglement” between the Diocese and the parish.  The parish, incidentally, alleged it should be dismissed because it did not employ fifteen individuals.

The Court overruled the motions to dismiss holding that to determine whether the Diocese and parish were “sufficiently interconnected” is an “open-ended, equitable inquiry.”  The Court held this was a “fact-intensive inquiry.”  These reasons make the outcome of overruling the motions to dismiss seem inevitable.  Also, it seems like a different set of grounds for the motions to dismiss should have been presented because the hierarchical nature of the Diocese and parish relationship would seem to be too well known in that denomination to make such an alleged separation between the Diocese and parish seem realistic.

Of course, that a motion to dismiss is overruled is not uncommon and the case will proceed through discovery, dispositive motions, and possibly trial and appeal if it is not settled.  Thus, a future opinion, verdict or appeal could dispose of the case.  But, typically, the arguments raised before the Court are more usually made by connectional churches that are not hierarchical.

UNINCORPORATED ASSOCIATIONS AND CHURCH CORPORATIONS

In the beginning, all churches were unincorporated associations.  The demands of modern accounting and property ownership, including liability risk management, pressed the unincorporated association to incorporate.  However, in order to successfully incorporate, the unincorporated association has to follow steps outlined in the law of the state of residence.  Even done amicably, such a transition can be challenging to volunteer led churches and pastors that do not also happen to be lawyers.  In the middle of a church split, the transaction cannot be completed in most states.

An example of this is Church of the First Born of Tennessee, Inc. v Slagle, Slip Op. (Tenn. App. 2017).  Church of the First Born outlived two generations of founders and desperately needed a new organizational structure that would ensure smooth leadership transitions going forward.  This was especially true after the church grew into a multi-campus church and established a church school sited on what probably was millions of dollars of real estate.

Before such an amicable restructuring took place, a church split arose.  The Court was unsure whether the split arose due to the financial pressures of supporting the church school or whether it was a doctrinal issue that arose because after the founders passed away, new leadership did not command the unanimity that the founders earned but surrendered upon their passing.  While the dispute roared around those issues, indeed, those issues were not terribly critical to the resolution.

The Plaintiff was a newly minted church corporation that tried to step into ownership of some of the church assets on behalf of one side of the split.  But, because asset ownership transfers are impossible unless all of the members of the unincorporated association have notice and vote to approve the transaction, the mere incorporation by one group in the split did not have the effect of transferring assets.  The Plaintiff was, therefore, without standing to bring any claim at all and the case was dismissed.

Church leaders have a duty to recognize their own mortality and plan for leadership succession in a fair process.  While many church leaders bristle at the idea of church bylaws or other written policies adopted as the governing rule of the church by a vote of the members, every church that does not have them and does not periodically review and update them increases the risk that a rift in the membership will shatter the peace of the church or in fact doom the church.  A church that can own millions of dollars of property should be able to hire a competent lawyer to lead the church to adopt bylaws or written rules.  Incorporation is a low cost and relatively well understood first step and makes asset management much easier.

REPORTING STATUTES MEAN WHAT THEY SAY

The gospel of reporting statutes, especially when crossing state lines and possibly triggering more than one, still seems to be misapprehended by many in church leadership.  Among some church leaders, there might even be an arrogance by which leaders somehow convince themselves they can manage, cure, or heal child abuse victims and abusers.  Most church leaders lack the training and resources to help victims unilaterally.  Most church leaders are unwilling to demand stringent proof of repentance much less have the training or resources to cure or manage abusers.  Nevertheless, church leaders often try to do one or the other or both resulting in onerous legal repercussions or perpetuation of the harm.  Also, church leaders tend to apply the standards of their upbringing to the conduct alleged without consideration of the changing views of society, meaning that what might have been considered merely unacceptable in an earlier age is today a crime.

In Jane Doe-1 v Corporation of the President of the Church of Jesus Christ of Latter Day Saints, Slip Op. (W. Va. 2017), the 82 page opinion detailed numerous instances over several years in which both local and regional church leadership were alleged to have learned of alleged sexual abuse of children but did not report it.  There is even an allegation that the accused abuser was brought home from a mission trip in response to a police investigation but that the police were not notified of the return.  Another aspect of the opinion was that for the court to have this quantity of information to recite in its fact summary, the record in the trial court had to have been extensive.  Extensive fact records, especially when there has not yet been a trial, usually exist only after expenditure of a lot of money.

In Jane Doe-1, conspiracy to hide the abuse was alleged.  The opinion clearly seems to teach that church leaders that receive allegations of child abuse that consult with other leaders, or even parents, about what should be done may later be accused of conspiring to hide abuse if the consultation leads anywhere but reporting.  The only safe thing a church leader receiving allegations of child abuse can do in most states is report.  The only safety valve other than reporting is consultation with legal counsel that is paid to report on the actual impact of the reporting laws on the allegations received.  But, this is a safety valve only in that it might provide to a church leader a consultation free from conspiracy charges even if the consultation has to be paid.  It does not provide a defense.

COMPELLING GOVERNMENT INTEREST IS ALWAYS COMPELLING – ESPECIALLY WHEN IT IS ABOUT TRAFFIC

There is nothing more annoying than when a statute passed to remediate a wrong is simply defined out of existence by judicial fiat.  The Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq is such a statute.  The statute sets forth:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that the imposition of the burden . . . (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.

One would think the word “compelling,” the word “and” and the word “least” are simple and clear.  But, not so in the United States Court of Appeals for the 6th Circuit.  In the 6th Circuit, in Livingston Christian Schools v Genoa Charter Township, Slip. Op. (6th Cir. 2017), it took 22 pages to sweep these three words out of the way.

In order to deny a church and a religious school a “special use permit” for the school, the governmental interests that were compelling were:  traffic, that the church, not the school because it was a separate entity leasing space from the church, had a “history of failing to comply with its previous special-use permits” by being “disruptive,” and “inconsistency with the single family residential zoning of the surrounding area.”  Compelling these reasons were not by any rational view.

The 6th Circuit has a history of religious organization hostility and proudly recited it in the opinion.  For example, the 6th Circuit held in 2007 that denying a building permit so a church could build a multi-purpose building including a gymnasium was a “mere inconvenience” and not a “substantial burden.”

In the Livingston Christian Schools opinion, the 6th Circuit held that the school had another piece of property available to it that was only 12.1 miles from the subject property.  In other words, parents would have to drive in the morning and in the afternoon 25 miles to cover the round trip during the high traffic times of the day in a suburban traffic setting.  (In Oklahoma City, where I am located, we only have rush thirty minutes but my friends on both coasts are envious.)  I rather suspect that if the traffic was as compelling a governmental interest as the 6th Circuit held it to be, then that mileage would have strangled the school in short order.  The court noted the school had 139 students before its move to the church property, might have had 190 afterwards, but with the uncertainty of location looming because of the permit denial, might have an uncertain future.  That was not, however, “substantial.”

The 6th Circuit was critical of the school for not providing financial records or enrollment records to prove the necessity of its move to the church property it wanted to lease.  Given the enrollment noted above, it is surprising the school had sufficient resources to litigate at all, much less appeal.

PAROCHIAL SCHOOLS AS RELIGIOUS ORGANIZATIONS

It would almost seem counterintuitive to suggest that a parochial school is not a religious organization.  The parochial school may be required to teach secular courses to comply with educational or even accreditation standards but unless there is no significant religious component in the curriculum it would seem unreasonable to view it as secular and not parochial.  Nevertheless, the issue seems to be on the table more than it should be.

In Miriam Grussgott v Milwaukee Jewish Day School, Inc., Order, (ED Wisc. 2017), the Plaintiff attempted to persuade the federal court that an Americans with Disabilities Act claim applied to a parochial school.  The Court rejected the claim and entered summary judgment for the parochial school under the Ministerial Exception of the First Amendment.  The Court found that the plaintiff, as a teacher of Hebrew to second and third graders, was a ministerial employee.  While the plaintiff argued the Hebrew language was merely cultural and historical, the parochial school claimed it was religious in nature because of inherent symbolism and other attributes.  Also, the parochial school was able to prove the plaintiff taught Jewish religious rites to the elementary age school children.  The Court refused to put a stopwatch to these duties to determine which predominated in the schedule or the curriculum.  While the plaintiff was not ordained or certified by an ecclesiastical body, plaintiff admitted “teaching a great deal about Judaism and specifically that her role was closely linked to Defendant’s Jewish mission.”  That admission would seem to end the dispute as to whether her role was subject to the Ministerial Exception.

One interesting aside in the opinion was that the plaintiff asserted the school’s employment manual contained an anti-discrimination clause that expressly forbade religious discrimination.  In other words, the plaintiff claimed the Ministerial Exception had been overridden by the contractual nature of the manual.  The Court held:  “This single provision of the Manual cannot stem the tide of other evidence cited above demonstrating Defendant’s religiosity.  Defendant unquestionably qualifies as a Jewish religious organization.”

Lessons for parochial schools may include assuring that their own employment manual does not create an exception to the Ministerial Exception in their region by its wording.  It might also mean that it is good practice to carefully describe in the manual the overriding religious duties of the role of teacher, regardless of educational discipline or expertise, in the religious school so that there is no reasonable dispute about the nature of the position.  Assumptions do not play well as evidence.

INVOLUNTARY PASTOR RETIREMENT

Most pastors at some point in their lives begin planning retirement and grooming a successor or teaching leaders how to search for one.  Sometimes, however, someone else wants to impose retirement on the pastor.  In churches that have a high turnover among their pastors, this presents no problem because the revolving door solves the problem.  But, when a pastor has been on station a long time, and is not ready to step aside even though someone wants the pastor to do so, disputes arise.

In Gregorio v Hoover, Memorandum Opinion (DDC 2017), the denominational foundation loaned money to the local church and the denomination co-signed.  The church in a side contract agreed to pay the loan and the denomination agreed to hold legal title until the loan was repaid or refinanced.  Once the loan was retired, the denomination was expected to transfer legal title to the local church corporation.  The payments were timely made by the local church and the loan was retired.  The local church had no turnover in the position of pastor.  The denomination paid a small stipend to the pastor but his income was for the most part earned from the local church.  Two decades passed.  The denomination stopped paying the small stipend to the pastor.  Three years later the denomination advised the pastor of the local church he would retire because the denomination wanted to appoint “younger people” to take his place.  The pastor declined and suggested the denomination had no authority to appoint or terminate the pastor of that particular local church.  The denomination locked the pastor out.

The pastor withdrew the age discrimination claim probably because the pastor had not exhausted administrative remedies by filing a complaint with the federal EEOC and obtaining a right to sue letter.  However, because the pastor was the founding pastor of the local church, the local church’s corporate identity was and had always been owned and controlled by the pastor.  Thus, the pastor was able to keep his claim alive by suing the denomination for failing to transfer legal title after the loan was repaid.  The pastor was able to make a breach of contract claim also because the promised small stipend was two years in arrears after being paid for nearly two decades.  The Ministerial Exception does not override a contract damages claim, even if it might not allow a court to compel reinstatement.  Finally, the pastor asserted a claim against the denomination for unjust enrichment because the legal title was not transferred.

The success or failure of these particular claims lies in the future but there are lessons to learn from this order overruling the denomination’s motions to dismiss.  Denominations that have longstanding engagements with pastors should review the governing documents, including real estate titles, to make certain current denominational retirement policies are reflected and that a retirement strategy has been agreed upon.  A financial incentive to obtain agreement with updated governing documents will almost always be cheaper than litigation.  A contract will often be enforced at least as to money damages.  Contracts are enshrined in Article 1, Section 10 of the United States Constitution, co-equally with the First Amendment, which is why the Ministerial Exception or the Ecclesiastical Abstention Doctrine may not eclipse the contract.

FIRING THE ORGANIST

Federal employment laws do not apply to ministers pursuant to the Ministerial Exception Doctrine.  The label “Ministerial Exception Doctrine” refers to a branch of decisions arising under the First Amendment.  It is a subset of the Ecclesiastical Exception Doctrine.  The Ecclesiastical Exception Doctrine is an outgrowth from the Establishment Clause of the First Amendment.  The Ministerial Exception Doctrine generally prohibits a court from exercising jurisdiction over the employment of ministers (which includes, of course, pastors, priests, and many other titles).  The problem remaining is identifying the duties in churches that are equal to or equivalent to ministers in such a way as to trigger the Ministerial Exception Doctrine.

Many religious organizations have tried labeling their employees, all of them, as “ministers” or describing their jobs to include one or more typically ministerial duties.  The scope of the Ministerial Exception Doctrine was confirmed in Hosanna Tabor Evangelical Lutheran Church & Sch. v EEOC, 565 U.S. 171 (2012).  In Hosanna Tabor, the employee was a religious school teacher that had ministerial duties such as teaching religion classes.  But, the outer perimeter of the Ministerial Exception Doctrine remains fuzzy.

In Sterlinski v The Catholic Bishop of Chicago, Memorandum Opinion and Order (ND ILL. ED 2017), the Plaintiff was demoted from the position of Director of Music.  There was no viable claim based solely on the demotion because the position of Director of Music was held to be a ministerial position.  The position was found to be ministerial because the Director of Music was responsible for selecting the liturgical music, holding practice for the church choirs, church management activities and representing the church at denomination level music committee meetings.  Claims for the firing were dismissed.  The holding that a Director of Music was sufficiently ministerial to trigger the Doctrine was to be expected.

But, Plaintiff was demoted from the full time position of Director of Music with the aforementioned duties to a part-time position as organist.  As a part-time organist, Plaintiff did not seem based on the record before the Court to have discretion over worship or other religious activities.  Indeed, the Court mused that if the part-time organist merely played what was assigned by someone else, the position might no longer be sufficiently ministerial to trigger the Doctrine.  Because the record did not appear sufficiently developed to fully describe Plaintiff’s actual duties as part-time organist, the Court refused to dismiss the firing claims and ordered the parties to conduct discovery limited to the duties of the part-time organist.

One lesson to be derived is that in employment decisions, mercy will be punished.  If the Plaintiff had been fired while employed as Director of Music, no claim would have remained due to the Ministerial Exception Doctrine.  Another lesson is that churches should not expect the secular world to understand that public worship musicians and vocalists “set the stage” for preaching and are as important in worship.  That they do not is surprising because there are similar situations such as a professional baseball game that without an organist, at least during the “7th inning stretch” might be disquieting or like a rock concert without drums.  A final lesson is that the employment relationship rarely survives partial measures like a demotion from full time to part-time or a substantial reduction in authority.  A clean break is usually better.