Author: churchlitigationupdate

“DISFELLOWSHIPPING” LEGALITIES

I am not sure “disfellowshipping” is actually a word but I have seen it in various church writings over the years.  It seems to be the termination of church membership and exclusion from the church property in the traditions that use it.  It seems to be a step down from excommunication which in some traditions at times was thought to be a sure fire damnation.  Also, disfellowshipping seems to be used in both a temporary mode and a permanent mode.  Whether “disfellowshipping” is a good idea or a bad one depends on the view taken of I Corinthians 5 and other similar passages.  That is outside the scope of this blog and this post.

In Campbell v Shiloh Baptist Church, Slip Op. 2017 WL 1434249 (Sup. Conn. 2017), a trial court was confronted with the legal ramifications.  The Plaintiff’s church membership had been revoked by a congregational vote in a congregational church (although on this topic it might not have mattered).  The Plaintiff sued to enjoin the church from revoking his membership in the church.  Interesting, too, was that the church’s Board of Deacons meeting authorizing the congregational meeting and vote on membership revocation was preserved in an audio recording.  Also interesting was that the church took the precaution of video recording the congregational meeting at which the expulsion vote was taken.  The Plaintiff alleged “procedural irregularities and inequities” in the congregational vote.  The audio recording and video recording was not surprising because this was the second time the Court ruled upon Plaintiff’s quest for reinstatement.  In the first case, and quoted in this opinion, the Court held its inquiry was limited, “as stated in this court’s earlier decision … a court may inquire whether the act of expulsion was in fact the act of the religious organization.”  63 Conn. L. Rptr. 531.  The Court determined the expulsion was the act of the Defendant church and dismissed the Plaintiff’s case.  The Court would not undertake “policing of a religious organization’s compliance with its internal procedures.”

This opinion is a reasonable blueprint for the procedure of “disfellowshipping.”  Few churches ever have to do this but churches with a reasonable set of bylaws, reasonable leadership, the appropriate mechanism, be it a board or the entire congregation, and reasonable documentation of the vote of either or both will not leave an opening for legal process.  In churches where the power is vested in the hierarchy, and the process is settled, the result should be legally impenetrable.  For churches where the power is not specified in bylaws, typically congregational churches, the congregational vote is the only mechanism.

REMOVAL AND THE ECCLESIASTICAL ABSTENTION DOCTRINE

Generally, federal courts can only hear cases in which the Plaintiff is from a state other than the state from which the Defendant hails or if the case involves a federal law.  Generally, assuming the parties are from the same state, a federal court will review the state court Petition or Complaint that was removed by the Defendant to federal court to determine if the Petition or Complaint raises a question under federal law.  If none is found, the case will be remanded to the state trial court from which it came.  The Ecclesiastical Abstention Doctrine and the Ministerial Exception are federal constitutional law doctrines but typically they are raised in a case as defenses by the Defendant.  If the state trial court Petition or Complaint only mentions state law, unless there is a federal law lurking in the Petition or Complaint, the federal court will not have jurisdiction and will remand the case to state trial court.

In Savoy v Savoy, Slip Op., 2017 WL 1536158 (D. Nev. 2017), the Plaintiff demanded an accounting from the church corporation under the state law governing corporations.  The Plaintiff also alleged that the corporate officers breached their fiduciary duty of loyalty to the corporation as defined by state law.  The Defendant removed the case from state court to federal court based on the Defendants’ defensive assertion of the Ministerial Exception and the Ecclesiastical Abstention Doctrine.  But, following normal federal policy, the case was remanded to state court because the Plaintiff and Defendant were residents of the same state and because the Plaintiff did not assert a right under federal law.  That the Defendant asserted a right under federal constitutional law was not enough.

The facts of the case are not explicated in the Court’s opinion with sufficient detail to make a guess why removal to federal court was considered by the Defendant a good idea.  But, the Ecclesiastical Abstention Doctrine and the Ministerial Exception may be raised in a state court proceeding probably to the same or similar effect.  Indeed, state courts sometimes are more reluctant to delve into church splits than federal courts.

CHURCH EMPLOYMENT CONTRACTS

Generally, an employment contract in writing will be enforced even if one of the contracting parties is a church or para-church organization. “A church is always free to burden its activities voluntarily through contracts, and such contracts are fully enforceable in civil court.” Mis v Fairfield College Preparatory School, Slip. Op., 2017 WL 3174422 (Sup. Conn. 2017) (unpublished) (quoting).

The Mis opinion was a trial court order overruling a Motion to Dismiss. Thus, the case continued and the opinion was not the final word. Also, in Connecticut, like most states, obtaining a dismissal is difficult because the factual record has not been developed through any discovery and the Court has only the Plaintiff’s pleading before it which must generally be treated as true regardless of whether it is true unless it is implausible.

In Mis, the Plaintiff was a tenured teacher. The school employment handbook contained a morals clause. For tenured faculty, it also contained a right to a hearing on involuntary termination. The Plaintiff during a school fundraiser was alleged by a church leader to have engaged in immoral conduct, the nature of which was not specified in the Court’s opinion. Upon termination, the teacher demanded the hearing accorded in the handbook. The hearing was conducted and the teacher was exonerated. But, the church terminated the Plaintiff. The opinion of the Court does not explain the reason the church disregarded or overruled the hearing finding, but the Plaintiff sued for breach of contract. The Plaintiff alleged the handbook constituted an employment contract.

One lesson of this opinion might be that a church school should not provide a right to a hearing if the church school does not want to be bound by the outcome of the hearing. Also, the whole concept of “tenure” generally acts to create a contract that has to be limited by specific language in the handbook or contract that would fit tenure to the church school circumstance.

CHURCH SCHOOL MINISTERS

The Ministerial Exception when applicable bars enforcement of most state and federal employment laws against church employers and bars employment claims by most church employees. Church employees are almost always engaged in religious duties in parallel with non-religious duties. Para-church organizations, however, by their hybrid nature force the Courts to inquire more deeply and with some skepticism because the further from the actual church the organization is the murkier the application of the exception probably will be. A church school is a para-church organization if it is a separate corporate or legal entity which for financial and accounting reasons most are.

In Fratello v Archdiocese of New York, 863 F3d 190 (2nd Cir., 2017), the federal appellate court had to decide whether a “lay principal” of a church high school was a “minister” triggering the exception. The Plaintiff’s contract was not renewed for a fifth year as “lay principal.” The Court opinion did not specify the reason for non-renewal. The Plaintiff’s employment contract listed Plaintiff’s job title as “Lay Principal.” But, the courts looked at the actual duties described and performed. Religious instruction by the employee of the students was the primary factor. No formal ordination was required. The Court found that the “lay principal” was delegated religious duties by the local church pastor responsible for the school to the archdiocese. Finding the employee responsible for religious instruction of students triggered the exception and the case was dismissed which the appellate court affirmed.

One lesson from this opinion was that the Court explicitly stated there was no presumption that the principal of a church school was a minister triggering the exception. Counsel with such a case for a church school must convince the church school or its sponsor to search out the record of religious entanglements with the job of the former employee. For example, in Fratello, affidavits or written statements by other school personnel confirmed the Plaintiff’s involvement in religious instruction from the school intercom broadcast of a prayer or other religious message to the actual supervision of religious instruction teachers and classes. There was likely little or no written record of the former and maybe not of the latter.

STRATEGICALLY LIMITING LITIGATION

Lawyers have been guilty at times of being mechanistic in responding to the circumstances of a case as if all cases are the same. Fortunately, even though often overwhelmed by numerous cases and with too few staff attorneys to support judicial decisionmaking, judges sometimes are creatively able to reign in a lawsuit.

A good example of this is the preliminary court order in Stabler v Congregation Emanu-El, 2017 WL 3268201 (SD NY 2017). The Plaintiff alleged she was a victim of gender discrimination, age discrimination, and disability discrimination when at age 62, with 17 years of tenure, her job as Librarian ended. She claimed it ended due to unlawful discrimination even though it was characterized, she alleged, by the Defendant as elimination of her position. Unlike many such cases which are nothing more than a claim in search of a factual basis, the Plaintiff alleged sufficient supporting facts causing the Court to deny the Defendants’ Motions to Dismiss. But, rather than simply leave the parties to the usual discovery war, the Court limited discovery solely to the issue of whether the Ministerial Exception applied as pled by the Defendants. The lesson in litigation cost control might be obvious: the Plaintiff’s claim would likely rise or fall on that issue so handle it first and exclusively.

The Plaintiff’s own allegations of her performance “could indicate that she did act as a minister of the Congregation by furthering its mission.” Her claimed accomplishments indicated she had not merely been a custodian of tomes but rather “created a functioning Judaica library” in the impressive and possibly well-known church library. Plaintiff also served on committees with substantial influence. Librarians, so it appeared to have been alleged, of this caliber are not mere custodians but actually define and protect the legacy of the religious scholarship of the church or denomination. A future decision of this Court might become a classic example of when the job title (e.g., “librarian”) does not matter and the substantive nature of the position does in the application of the Ministerial Exception. Best, it might become so by an economically sound litigation limitation.

HYBRID CHURCH ADMINISTRATIONS

Whether a church is governed by a hierarchy or governed by the congregation determines who has the right to control church property.  Typically, hierarchical churches are denominational.  Independent churches are typically congregational.  In the hierarchical church, the hierarchy controls the property.  In a congregational church, the congregation controls the property.  Some churches may have aspects of both categories.

In Tom Slagle v Church of the First Born, Slip Op. (Tenn. App., August 2017) (Slagle II), the appellate court sent the case back to the trial court for a trial on the issue of whether the church was hierarchical or congregational respecting its property and regardless of how it might be classified on any other issue.  Based on the record, the appellate court could not determine as to property ownership and control whether the Deacons controlled the property or whether congregational voting governed the property.  In our post of June 20, 2017, we analyzed Slagle I, a prior decision in the case which is the subject of this post.

In Slagle II, the Court listed “a six factor test” for determining whether a church is hierarchical.  The factors listed were:  (1) the affiliation of the local church with a parent church, (2) an ascending order of ecclesiastical judicatories in which the government of the local church is subject to review and control by higher authorities, (3) subjugation of the local church to the jurisdiction of a parent church or to a constitution and canons promulgated by the parent church, (4) a charter from the parent church governing the affairs of the local church and specifying ownership of local church property, (5) the repository of legal title, and (6) the licensing or ordination of local ministers by the parent church.

After the church split occurred (or while it was developing), there was a vote to adopt bylaws.  Had this been done earlier in the history of the church, the question of control of property might not have required litigation, and if it did, shorter and cheaper litigation.  Slagle I and Slagle II, did not finally resolve the case because it was remanded for trial, as noted above.  The litigation nightmare of this church, and its cost in money, time and distraction from mission, was made inevitable by the failure of a founder to have a succession plan and the failure of the church to incorporate or adopt bylaws during a time of peace.

CHURCH SPLIT PURGATORY

Church splits that spill out into the street and the Courts often lead people that have never been through one to react with judgmental disdain.  The lesson of these conflicts, however, should not be missed.  First, very often, “but for the grace of God go I,” is usually true of those who react with judgmental disdain whether they admit it or know it.  Second, a church split often resembles, at least to this observer, a divorce with some of the same or very similar emotional drives and fallout.  Third, the causes of a church split are from the outside often incomprehensible; they seem irrational.  Fourth, on the inside, the irrationality of the church split is not apparent because convoluted emotional reasoning has often replaced reason and unthinkable motives like greed, lust for power, or primal fear threat reactions run rampant.

While the summer production of court opinions is often slower, this summer the Supreme Court of Alabama has issued, subject to revision, an opinion over 11,000 words long about church splits.  Taylor v Paradise Missionary Baptist Church, Slip. Op. (Ala. 2017). The opinion is notable because Alabama has declared that the Ecclesiastical Abstention Doctrine deprived the Alabama courts of jurisdiction to resolve a church split by declaring who was the elected pastor of the congregation.  The congregation was left to resolve the church split without resolution of the dispute by a Court.  Legal fees and five years of litigation ended with a dismissal of the case and no verdict.

The stupendous effort of the Alabama Supreme Court to “get it right” in this lengthy opinion was necessitated because a church with sixteen (16) members fractured into two (2) groups.  One group favored terminating and replacing the pastor.  The pastor led the resistance group.  Although the church was congregational, it belonged to an association and engaged a mediator from the association.  But, the failure to settle led to litigation in 2012 that resulted in five years of employment for lawyers and the Supreme Court opinion summarized herein.

Structurally, while the church had bylaws, it had not adjusted the bylaws to its diminutive size and did not elect the boards called for in their own bylaws.  Thus, the church learned the cost of operating like a rabble.  There appears to be a lack of convention speakers on the dangers of mob rule and no course in bible colleges in church administration.

No doubt, normal economic forces will resolve a church split, e.g., foreclosure, inability to pay the pastor, that cannot be resolved in Court.  If normal economic forces do not resolve it, other events in the lives of the disputants inevitably will resolve the church split, e.g., death, divorce, retirement, illness, loss of interest.  Rarely, a mediator will be engaged to resolve it.  Nevertheless, most church splits end by one of these means rather than by Court judgment.  In most states, a Court will finally resolve it by employing neutral principles of law.  But, not in Alabama if the result is the appointment of the pastor.  If the result is control of property, the result might be different, because the Court stated:  “As discussed above, the removal of Taylor as the pastor of PMBC was purely an ecclesiastical matter not involving a property right and the trial court lacked the jurisdiction to consider it.”

The Alabama Supreme Court opinion is also notable, and long, because of its recital of the century long history of church split litigation in Alabama.  This by itself made the opinion interesting.