Author: churchlitigationupdate

MEMBERSHIP ROLLS AND BYLAWS

Churches that do not maintain valid membership rolls and maintain current bylaws risk disputes over control when factions in a church become intractable.  Courts faced with such disputes will decide them using Neutral Principles of Law, such as corporate statutes, and ignore ecclesiastical concerns that are not incorporated into a governing document.

In Cohen v Berliner, 2021 NY Slip Op 30682 (U) (Kings County, NY, 2021), the membership roll was lost and no bylaws had ever been adopted.  Thus, there was no procedure for determining who the voting members were.  The faction apparently in the majority finally petitioned for a special meeting to elect governing board members.  Under state law, it only took ten members to call a special meeting.  The Court ordered an evidentiary hearing to see if among the 200 members allegedly signing a petition for special meeting there were ten actual members.  If so, the Court would order, consistent with state statutes governing corporations, a special meeting to elect a governing board.

The basic principle set forth in the opening paragraph was confirmed by the reported case.  Bylaws adopted by a church corporation should set forth the criteria for membership and the procedure for verification of the membership roll.  Verification of the membership roll should be done every year and become a governing board tradition on or about the same date every year.  The bylaws should also set forth the qualifications to hold every office and position, at least in general terms.  Employment positions below the level of senior pastor or minister should be delegated to the governing board so that popularity contests do not become the norm for employment decisions.  Whether to require submission of the employment or termination of the senior pastor or minister to a governing board is often a matter of church tradition and may for that reason, require a vote of the membership rather than just the board.  In any event, the bylaws should specify the authority and process for hiring and terminating the senior pastor or minister consistent with the church tradition.  Official copies of both the membership roll and the bylaws should be maintained not only at the church property but, in this day and age, in the cloud or otherwise off site.  Amendments to membership rolls or bylaws should be done carefully and official copies maintained both on and off site.

CHURCH SPLIT CUSTODY ORDERS

When the church split spills into the street one issue is who has custody of the church building.  Usually one faction is sufficiently predominate and in the majority that it retains control of the church building because it can pay the bills.  The minority faction usually cannot.  When the factions are sufficiently large, sufficiently financed, or otherwise equal, a court may have to decide who has custody of the church building.

In Yakob v Kidist Mariam Ethiopian Orthodox Tewahedo Church, Inc., Slip Op. (Ga. App. 2021), the pastor became a bishop.  However, the church apparently did not want to support a part-time pastor.  The pastor resided in the parsonage which was part of the church building.  The trial court entered an injunction requiring that the faction not supporting the pastor as bishop could have the church building on Sunday morning and the faction supporting the pastor as bishop could have the church building on Sunday afternoon.  The trial court later entered another injunction ordering some of the recalcitrants to attend a board meeting or that those in attendance constituted a quorum.  The appellate court affirmed the building custody order but overruled the order for meeting attendance because it intruded on internal church governance.

Church building custody orders are an expensive, time consuming, and very public way of resolving factional disputes.  Church building custody will usually go to the larger faction if a court can identify the larger faction because typically only the larger can pay the mortgage.

FIRST RULE OF CHURCH SPLITS: DO NOT PANIC THE BANK

When church splits spill into the street one of the things that can happen is that the bank that serviced the church checking and other accounts may not know who should be authorized to transact business in the accounts.  The bank will likely freeze all accounts and seek protection from a court.  If the bank is sufficiently antagonized, it will interplead.  That means the accounts will be liquidated and the funds deposited in the registry of the court.  The court will then decide who can transact business and for what purposes.  Generally, any expense the church incurred in happier times, including payroll, may be paid with court permission.  Dealing with interpled funds is time consuming, expensive and slow.

In United Community Bank v Wakefield Missionary Baptist Church, 2021 NCCOA 89 (NC App., 2021), an audit revealed “deficiencies in bookkeeping and payroll records.”  The pastor sought to add a signatory to the church accounts.  The pastor also allegedly learned the prior signatories opened but did not disclose a Certificate of Deposit containing $123,000.  The prior signatories objected to the additional signatory promoted by the pastor.  The bank decided to seek court protection from the dispute and interpled the funds.  The prior signatories appealed arguing the court could not direct how the church spent its money or determine the membership status of the prior signatories or the newly proposed signatory.  The trial court held it could employ Neutral Principles of Law to determine who could control the church accounts.  The appellate court held the interpleader order of the trial court was interlocutory, and therefore not appealable, and that the trial court had jurisdiction to determine who had the right to control the church accounts.

Most factional church disputes cause the bank to lock down church accounts while one faction or another continues to manage church finances through control of the offerings deposited in accounts at another bank.  But, if the first bank is pushed in the least an interpleader will follow.  As the semi-sentient computer learned in the movie War Games (1983), the only winning move is not to play.

ALIENATION OF AFFECTION CLAIMS

As a genre, alienation of affection claims, called “criminal conversation” in some jurisdictions are all but archaic reminders of an earlier age.  “Clergy malpractice” claims sometimes were merely alienation of affection claims or “criminal conversation” claims in a different wrapper.  The few states that still allow alienation of affection claims or “criminal conversation” claims require that the claimant prove the marriage was a good one before the interloper intervened.  Most claimants could not make such proof by the 20th century.  In the 19th century, these types of tort claims were considered necessary to protect women because women were considered vulnerable dependents.

In Mosby v Kleinguetl, Slip Op. (Tex. Civ. App. 14th, 2021), the Plaintiff alleged that “counseling sessions” “devolved into a ‘personal relationship’ that culminated in … divorce.”  The Plaintiff alleged this was part of a pattern of conduct.  The trial court twice permitted the Plaintiff to amend the Petition to allege jurisdictional facts but dismissed the case.  In other words, the Plaintiff could not allege facts supporting a claim that a good marriage was destroyed by incompetent or intentional conduct that was actionable.  The appellate court did not hold, and probably deferred such a holding to the Supreme Court of Texas, that there no longer are justiciable tort claims for alienation of affection or “criminal conversation” in Texas.  However, it reached the same result.

It probably does not require pronouncement in this report that a sexual relationship between counselor and counseled is not a good idea.  A “personal relationship” seems all but unavoidable in counseling relationships that extend over a period of time but counseling professionals know to avoid escalation and so too should church counselors.  Common sense would demand such restraint.  Nevertheless, these relationships may no longer be in the purview of tort law.