When venerable and historically recognizable church buildings are destroyed there is a profound sense of loss. While few are listed, some church buildings are on the National Register. Other types of buildings on the National Register are protected but church buildings may not be. Also, just because preservation seems like a good idea does not mean enough money to do so will follow.
In Friends to Restore St. Mary’s, LLC v Church of Saint Mary, Melrose, Slip Op. (Minn. App. 2019), the church building was sufficiently significant “historically” that it was accepted on the National Register. However, that did not prevent an arsonist from gutting the interior of the building. The archdiocese ultimately decided to demolish the entire building because, even if restored, it would no longer be a “functional” church building by modern worship standards. The Plaintiff sought an injunction to prevent demolition of the building. The injunction was denied by the trial court and the appellate court because adjudication of the claim was precluded by the ecclesiastical abstention doctrine. The appellate court held that the trial court could not evaluate whether “there are feasible and prudent alternatives to destroying the church building” under Neutral Principles of Law without invading ecclesiastical decisions. The argument the archdiocese did not have the authority to order demolition required an interpretation of Canon Law. The determination of whether an alternative use would be “profane” or “sordid” under Canon Law could not be made on other than ecclesiastical grounds.
Unstated in the opinion but likely at the heart of the problem for those wishing to preserve a historically significant building gutted by an arsonist was insufficient insurance coverage or other funding. A special policy may have been needed to create the resources to rebuild the church interior to its pre-fire look, much less to remodel the interior for modern worship needs. A typical fire loss policy would have been inadequate for what would otherwise be a total loss. But, maintaining the commitment to pay for such an extra or special policy year in and year out would have required an extraordinary commitment. Most churches simply cannot afford it. Too, unstated, was the financial burden on offering plates of restoring an antique, or obsolete, church building, which most courts are not interested in trying to enforce.
The pro se litigation wave is threatening to swamp courts at all levels. The idea that people can successfully represent themselves has arisen most probably from two sources: (1) the influence of televised small claims cases or family law matters in which a “judge” from the “Judge Judy” model hears arguments and “testimony” from unrepresented litigants ; (2) the use of the internet as a research resource. While the latter observation will seem hypocritical coming from a blog reporting about litigation as a type of research resource, this blog like most other of this genre are useful only for general interest, issue identification so that legal services may be more wisely purchased, and for lawyers looking for details in what otherwise for that lawyer might be a new niche issue. No internet source can substitute for actual legal advice from a qualified practitioner or equip a non-lawyer for actual advocacy.
Pro se litigants in recent years have also proliferated because fueled by the foregoing, they become obsessed with winning the legal “lottery.” Because of the multiplicity of factors that can influence a judicial outcome, to the uninitiated it may seem like a game of chance. Just like “gambling addiction,” “litigation addiction” is identifiable by its symptoms. These symptoms include: (1) inability to accept a final judicial ruling; (2) inability to differentiate the impersonal judicial outcome from the personal self-interest; (3) gratification not from winning, which they almost never do, but from the vexatious harassment imposed on as many other people as possible; and (4) unwillingness to accept real legal advice from a qualified practitioner. Thus, pro se litigants exhibiting “litigation addiction” symptoms will often file new lawsuits over and over on the same issue long ago lost, will often file documents they have personally authored even when they have hired a lawyer to represent them, will often fire lawyer after lawyer because the lawyers would not participate in vexatious harassment, and in the worst cases will not stop wasting everyone’s time and money even when monetarily sanctioned. For the more extreme cases, being jailed for contempt of court, either from out bursts in court or more likely from violating filing injunctions, may be the only cure available to victims and the courts.
In Tompkins v Lifeway Christian Resources, 2019 WL 3763946 (10th Cir. 2019), the appellate court affirmed the federal trial court’s dismissal of the case and awarded monetary sanctions. This was the second appeal the 10th Circuit heard on the matter, the first being heard in 2016. In the trial court’s second case, which was the subject of the second appeal, second lawsuit was brought against many of the same defendants. It arose from the sale of a large piece of property that was the subject of the first lawsuit. While the pro se Plaintiffs may have made new arguments in the second case, none of the arguments were sufficient to constitute a valid collateral attack on the first judgment against them.
Rare are church trademark disputes. The reason is that most marks selected by churches as marketing logos are generic to the religious tradition represented. However, church trademarks are not impossible and may in the future be more prevalent, as well as litigated, as the struggle for separate identity in electronic media deepens. After all, churches are moving away from brick and mortar locations solely and trying to become “virtual,” too. To be successful economic church models require marketing, and marketing invariably involves logos for identification.
In Holy Spirit Association v World Peace and Unification Sanctuary, Memorandum Opinion, United States District Court, Middle District of Pennsylvania, July 22, 2019, the federal trial court before it had motions to dismiss the cases on the pleadings. The motions were overruled so the case will continue through discovery and trial if it is not otherwise settled. Trademark cases are often settled by licensing agreements. Trademark disputes are brought under the federal Lanham Act, 15 USC §1114, et. seq. In this case, the Plaintiff registered what it called the Twelve Gates Mark. The Defendant called it the Tongil Symbol. The Plaintiff registered it as the trademark of its church and the Defendant claimed it was a mark created by the founder of the tradition or denomination. Of course, that meant both churches were in the same tradition or denomination, or at least originally so, for their dispute was over a symbol both claimed to have been created by the founder of the tradition or denomination, Reverend Sun Myung Moon. The federal court held that the dispute could be resolved using the Neutral Principles of Law arising around trademarks. From the opinion’s recitation of the positions of the parties in their preliminary pleadings, the central issue will be whether the symbol was “generic,” a Lanham Act statutory classification similar to the meaning of the word in the common tongue, or was, indeed, actually created only for the Plaintiff local church.
Symbols used by churches are generally “generic” arising from their history, tradition or denomination. If the symbol appears on grave markers, church buildings or historically verifiable documents the likelihood it will be “generic” seems insurmountable. Indeed, most come from computer clip art sold commercially. Only a trademark made by a local or contract artist are likely to survive, and then only if the trademark is truly original and not merely a reinterpretation of a historical image used by the tradition or denomination.
When a church fight spills into the street, and by the time the matter reaches court, usually all that is left is the dispute over control of the church assets and especially its land. Buildings and land have most of the secular value. However, if a church split reaches court before the spiritual issues are stripped away, a court is unlikely to intervene.
In the Texas Court of Appeals, 7th District, the case of In Re Jorge Torres and Templo Bautista, Slip Op. (Tex. Civ. App. 7th, 2019) is unusual because none of the allegations concerned the church property. The trial court originally granted a Plea to the Jurisdiction on Ecclesiastical Abstention Doctrine grounds, dismissing the case, but later reconsidered the decision to dismiss. That might have led to discovery through document demands and depositions. It might have ended by summary judgment. Or, it might have led to an actual trial before the bench or a jury. However, the case was taken by one party to the appellate level seeking a writ of mandamus to order the trial court to reinstate its original decision dismissing the case. The appellate court granted the writ ordering the trial court to dismiss the case. The appellate court noted that although the litigants alluded to the church property, all their claims were regarding alleged impropriety in selecting a pastor and excluding dissenting members. Such issues are almost uniformly beyond resolution by a court because of the entanglement with ecclesiastical issues that is nearly always unavoidable.
As we have often seen in these reports, a church fighting over who should lead it might still be a living church but a church salvaging its assets is very far gone. Litigation is in most cases only symptomatic of a church salvage operation, regardless of which side might be in the “right.” Factional church litigation is usually driven by emotions or motives that an outsider cannot truly appreciate, much like most family law cases. However, if a cooler head can prevail, before such litigation is paid for with offering dollars, a clinical review of the likely outcomes and their respective cost effectiveness should be conducted.
The hierarchical denominations exercise varying degrees of control over the existence, management and property of local congregations. Some can take total control if the numerical membership of a local church declines to a point below which the local church is no longer viable or its property is on the verge of abandonment. Congregational denominations may exercise similar varying degrees of control. Both tend to remain uninvolved locally until summoned or collapse of the local church appears imminent.
In Eltingville Lutheran Church v Rimbo, 2019 NY Slip Op. 05957 (NY App. 2019), the denomination asserted control over the local church when numerical membership of the local church appeared to the denomination to make the local church no longer viable. The local church operated a church and a school on its property. The local church sued the denomination. The local church claimed the takeover violated the denominational governance documents. The local church also sought an injunction of the takeover alleging property issues could be disposed of applying Neutral Principles of Law. The trial court dismissed the entire case finding the entire dispute to be an internal church dispute to which no Neutral Principles of Law were applicable. The appellate court affirmed.
The learning from this is a repetition of the universal axiom that if the dispute looks internal to the church and may be resolved through application of the church or denominational governance documents there is no room for Neutral Principles of Law. The effort to characterize property control issues separately from other aspects of the dispute will only succeed where the property control issue cannot be resolved through church governance documents. As has been seen, muddled church governance documents and sloppy record keeping, such as board minutes, may require Neutral Principles of Law to fill the vacuum.
In December 2018, as reported herein, the United States Court of Appeals for the 9th Circuit decided Biel v St. James School, 911 F3d 603 (9th Cir. 2018), by holding that the school teacher could sue the Catholic school making federal employment law claims. 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.”
An appeal was taken to the 9th Circuit En Banc. This is a not often used procedure by which the three judge panel opinion could be accepted for review by all the sitting judges of the court of appeals for the 9th Circuit. In Biel v St. James School, Slip Op. (9th Cir. 2019), the majority of the 9th Circuit judges did not vote to review the three judge panel decision reported in 2018. However, nine of the 9th Circuit appellate judges dissented from the denial of en banc review. The 9th Circuit is authorized to employ 29 appellate judges appointed by the President and confirmed by the Senate. The dissent criticized the original panel decision in a written opinion, which is unusual. The dissent took the factual position, summarized above, the school teacher was religious enough to trigger First Amendment protections for the Catholic school and disqualify the school teacher from suing pursuant to federal employment statutes. The dissent noted the 9th Circuit was by its opinion at odds with the decision of the other United States Courts of Appeal. Also, the dissent alleged the legal test the 9th Circuit developed conflicted directly with the leading decision of the United States Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v E.E.O.C., 565 US 171 (2012).
Will the nine appellate judges of the 9th Circuit that dissented be a loud enough voice to reach the ears of the United States Supreme Court should an application be made for certiorari by St. James Catholic School? For para-church organizations, including church schools, in the western United States, this could be of serious import. If the 9th Circuit decision stands, employment insurance costs, for example, will rise considerably. Indeed, rates may go up across the nation to funnel resources to litigation costs and settlements arising out West that are insured. Organizations that reduced or even eliminated employment litigation insurance coverage, which would be a bad judgment call in any event, may again find themselves at risk.
Churches may exist in the spiritual world and secular world but their money and property tend to exist in the secular world more so than in the spiritual. Therefore, a court will avoid spiritual issues pursuant to the Ecclesiastical Abstention Doctrine of the First Amendment but may conclude it has jurisdiction over money and property.
In Beyene, et al v Tekle, et al, Slip Op. (Wash. App. 2019), the decision of the trial court abstaining on Ecclesiastical Abstention Doctrine grounds was revered because the appellate court believed there were questions of fact regarding jurisdictional issues. The current chairman of the church testified it was hierarchical and led by its denominational authority while a priest of many years testified it was congregational and led by its priests and deacons. Apparently, the governing documents were not clear. The priest, a former church treasurer, and a founding member testified the financial allegations raised by the Plaintiff against former board members of financial misconduct were not ecclesiastical but were secular and corporate. The trial court on remand was ordered to weigh the jurisdictional facts and determine if the claims presented were, indeed, secular or ecclesiastical.
In all probability the purpose for which money is collected and spent will be ecclesiastical unless it can be proven the money was embezzled or spent for transparently improper purposes. Spending on personal expenses that are not documented reimbursements will remain more or less easily identified as improper but spending on “improper” purposes will not always be. What was improper a decade ago may not be improper next week or next century.