Author: churchlitigationupdate


Most of the reported cases have addressed only whether the Penitent Privilege, sometimes labeled otherwise, such as the Confessional Privilege, applies to a particular communicant or to a church leader that is not clergy.  Once the Penitent Privilege attaches, it is unusual for it to be revisited.

In Church of Latter-Day Saints v Cardinal, Slip Op. (Az. App. 2022), the claimants in the underlying case, in their claim for damages for the abuse, sought a copy of the church disciplinary file and testimony from one of the church leaders present during the disciplinary hearing.  The communicant had been excommunicated by the church.  The trial court held the privilege was waived by the communicant because he posted video of his abuse of his children on social media.  The communicant was arrested, may have confessed to law enforcement, but committed suicide.  The trial court ordered the church leader to testify for reasons that were unclear.  It could have been because the church leader’s title was unclear or changed.  In any event, the appellate court vacated the trial court’s order.  The appellate court held the communicant may have confessed to police and placed video of the despicable acts on social media, but the communicant was not shown to have placed the contents of his penitent confession in the public sphere, and therefore the privilege was not waived.  The appellate court held the record did not support the trial court’s conclusion the church leader did not qualify as clergy or a similarly empowered church leader under Arizona’s Penitent Privilege statute.

The reported case is specific to the Arizona Penitent Privilege statute and can be used as authority in any other state only with caution.  But, it does suggest a reading of such a statute that may not as yet have occurred to a court in another state because the issue has not been present.  Nevertheless, no waiver of confessional privilege should ever be assumed effective by any church leadership to be effective without a written opinion from church counsel. Generally, clergy cannot waive the statutory privilege.


While numerous court opinions have been reported previously that involved church splits of varying degrees of nuisance, expense, or even violence, few have inspired nearly 21,000 words in over 70 pages.  Usually, the issue is in the end simple:  a court will not hear or review pastoral employment or church governance decisions.  A court may review governance documents and state non-profit corporation law to determine who gets to make the choices, and more importantly, control the accounts and property, but the Ecclesiastical Abstention Doctrine generally is a hedge a court will not cross.  Church split litigation usually consumes tithes and offerings for attorney fees at an alarming rate that threatens survival of the local church.  Church split litigation often seems to convince some courts that church governance immunity does not work outside of denominational governance.

In Bookout v Shelley, Slip Op. (Tex. Civ. App. Fort Worth 2022), the exact outer limit of the Ecclesiastical Abstention Doctrine had to be determined on various theories of recovery.  The appellate court opinion began by characterizing the case as an “internecine battle for control” of the church.  To resolve the issues, took 21,000 words and over 70 pages.  The trial court denied a motion to dismiss based on the Texas Citizens Participation Act (“TCPA”).  The TCPA, like many Texas statutes had a worthy political remedial goal in mind but the draftsmanship applied to the TCPA by the legislature left no corral fence.  Most of the appellate court’s opinion regarding TCPA claims will be omitted because outside of Texas it probably will be of no interest.  The church split was brought to a head when the former pastor resigned due to alleged sexual improprieties.  The Appellants claimed they were the duly elected board of directors for the church, terminated the new pastor, and seized control of church bank accounts and property.  The Appellees claimed they were the duly elected board.  Appellees also claimed the Appellants converted church funds, in part by paying their lawyer $40,000.  The alleged change of leadership from one board to another was accomplished by alleged forgeries of corporate documents.  The documents were never filed of record with the state.  Corporate documents were allegedly also created to install the board and these were filed with the state.  Each side adopted new bylaws to obtain favorable governance documents.  One of the Appellants took to social media videos to accuse one of the Appellees of being a “sodomite,” abusing his children, and embezzlement.  The appellate court held the accusations of abusing children and embezzlement had no Ecclesiastical implications and could be heard as any other defamation claim.  The accusations of being a “sodomite” were Ecclesiastical accusations, the court held, and could not be heard.  The reason for termination of the new pastor set forth in a termination letter, “due to many irregularities in the accounting, managing, and handling of donations to the church,” was a defamation claim that could be determined, the court held, under Neutral Principles of Law.  The issue of eligible church leadership could be determined under Neutral Principles of Law by reviewing the governance documents.

The attempt to summarize the case reported in less than 1,000 words probably has resulted in a report that omits many things valuable to a Texas practitioner.  The elements of each claim were carefully enumerated and analyzed both in terms of Texas law and the Ecclesiastical Abstention Doctrine.  This church split, like too many we have reported, should have been mediated and reasonable people would likely have settled matters.  A good settlement is one in which no one is completely satisfied but everyone can live with it.  Further, defamation as a way of resolving church disputes has been proven repeatedly, and herein reported repeatedly, as a losing tactic.  Persons engaging in it, even if somehow justified in an Ecclesiastical sense, will appear to be unreasonable and not believable when reviewed by anybody and everybody else.  From the outside of the incestuous emotions of a church split, observers are left wondering if there are adults in charge.  Church factions that insist upon scorched earth tactics, announcing their allegations after a trumpet blast, e.g., social media videos, may wreck the church but will not likely prevail.


Because most church lawsuits seem to arise in “at will” or “right to work” employment law states, there are few instances in which collective bargaining agreements have been material or pivotal in reported court rulings.  There are several lessons, however, to be gleaned from the court decisions available that considered collective bargaining agreements.  Foremost may be the limitations on the statutes governing collective bargaining agreements.

In Jusino v Federation of Catholic Teachers, Slip Op. (2nd Cir. 2022), the Plaintiff was allegedly terminated after engaging, willfully or involuntarily, in disputes with parents, student, and the public about a lecture Plaintiff gave regarding racism as sin.  Plaintiff was a teacher in a Catholic High School.  The Plaintiff in a prior separate lawsuit sued the employing parochial school and a settlement was reached.  Afterwards, Plaintiff sued the union that sought employment arbitration on his behalf.  Plaintiff alleged the union failed to allege violations by the employer of federal civil rights employment statutes.  The opinion does not reveal why the union refused to present those claims but was willing to press others.  The federal trial court, affirmed by the federal court of appeals for the 2nd Circuit, based dismissal on the conclusion that the National Labor Relations Act, as amended by the Labor Management Relations Act, were inapplicable to disputes between parochial-school teachers and the union.  Both federal courts relied upon NLRB v Catholic Bishop of Chicago, 440 US 490 (1979), in which the United States Supreme Court held the statutes did not bring teachers in church – operated schools within the statutory coverage.  Therefore, the Plaintiff could state no claim for relief against the union supported by those statutes because they did not apply.

Arguably, some or all of the federal statutes the Plaintiff demanded be the subject of arbitration brought by the union also exempted religious entities.  In any event, counsel should generally confirm that statutory language creates an actionable claim.


The court decision reported below started with the summary, “a dying bishop, a simmering feud over his successor, and allegations of misappropriated assets provide the backdrop to this church property dispute.”  Orderly succession, especially anticipating the unexpected passing of a founder, can only be achieved by adopting and following governance documents that provide a clear process.  The “Insurrection of the Bubbas” on January 6, 2021 notwithstanding, succession has been a hallmark of the democracy since inception much to the surprise, and envy, of much of the world in different eras.  Thus, it would seem succession at the local denominational or local church level should be easier to implement.  Apparently, that is not always so.

In Early Church of God v Jackson, 2022-Ohio-4034 (Slip Op.) (Ohio App. 2022), the appellate court reversed the dismissal of the case by the trial court on two of the three theories for relief or recovery submitted by the Plaintiff.  The theory upon which the trial court dismissal was affirmed was pled in “trespass.”  The allegation was that the Defendants were trying to conduct an unauthorized ordination of one of the Defendants to be a successor bishop.  The trial court held the alleged basis of the claim to be an ecclesiastical issue.  The Plaintiffs claims for breach of fiduciary duty and demand for an accounting regarding church bank accounts and other property were held to be viable using Neutral Principles of Law.  The appellate court held allegations of embezzlement or misappropriation are secular issues for which ecclesiastical claims need not be considered.

The ”trespass” claim should have been pled as a “trespassing” claim after the locks were changed and if defendants tried to use Plaintiff’s facilities without authorization regardless of the event contemplated.  If the financial transactions complained of were unauthorized by the governing documents or the authorized leadership, then such claims can be proven.  Once the denomination or church becomes aware of a problem, the banks and other property custodians should be notified so that access to the funds or property can be regulated.