Author: churchlitigationupdate

MINISTERIAL EXCEPTION LIMITATIONS

The United States Supreme Court heard oral argument in Biel v St. James School, 911 F3d 603 (9th Cir. 2018) yesterday. We reported on Biel in December 2018 and again in 2019. The Plaintiff, now deceased, was a 5th grade teacher in a Catholic elementary school. In addition to teaching secular subjects, she taught religion. The Plaintiff was employed under annual contracts. When her contract was not renewed, she sued and alleged that non-renewal occurred because she had breast cancer. She alleged the non-renewal violated the Americans with Disabilities Act (“ADA”). The ADA exempts “religious entities” by allowing religious preferences in employment decisions. But, the Plaintiff argued that the exemption did not apply and that the Ministerial Exception did not apply.

The 9th Circuit agreed with both of the Plaintiff’s arguments. Most importantly, the 9th Circuit held that being required to teach Catholic religion to 5th graders was “no religious requirement for her position.” The mandatory training Plaintiff was given to be able to teach Catholic religion to 5th graders was likewise no religious requirement for the position.

The Supreme Court’s ruling can be expected in the fall.

 

NEGLIGENT HIRING AND “THE CALLING”

Churches want clergy that are “called” to be clergy. What that might mean in any given individual or church context may differ, but the idea is that somehow the Heavenly Father made this choice and not the individual candidate or the church. Determining when someone has such a “calling,” without an objectively observed and verified Divine action, is a subjective determination. Sometimes, it is simply assumed.

In Doe v Apostolic Assembly of the Faith, Order, 2020 WL 1684227 (WD Tex. 2020), the federal district overruled a Motion to Dismiss. Motions to Dismiss are heard by courts at the inception of a lawsuit so that the court can exercise a gatekeeper function to prevent legally prohibited or frivolous lawsuits from proceeding. If the motion is overruled, the case proceeds through the pleading and discovery stage and may be disposed of by summary judgment or trial. Jane Doe, an underage female, was photographed in the nude with her youth pastor by the youth pastor at a hotel during a youth event. The photograph was posted to social media. The youth pastor pled guilty to interstate travel to meet a minor for illicit sexual conduct and was sentenced to 71 months of incarceration, post-incarceration probation of fifteen years and sex offender registration. The Plaintiff alleged that the church hired and ordained the youth pastor without conducting any interview as to training or fitness. This seems to have occurred because the youth pastor’s father was a pastor and a denominational officer. During travel events, the youth pastor was not otherwise supervised.

Failing to interview and screen church staff that will be charged with ministering to minors is all but indefensible. Churches that can afford to do so but do not have staff Human Relations professionals can engage an “HR” firm to conduct initial screening and background investigations. As to youth pastors and staff teachers, churches and church schools should impose strict written rules about communications with minors and children. Violation of the rules should result in immediate termination. Youth pastors and teachers that are permitted to interact with minors or children via social media should be restricted by policy to using only approved platforms and approved devices. Personal devices and unapproved social media platforms used should result in immediate termination. Parents should be made aware of these policies, approved devices, and approved social media platforms. Approved devices and approved platforms should be routinely inspected by other church staff for policy compliance.

WHEN ONLY MONEY REMAINS

Denominational determinations that a church or parish is no longer viable usually start with a nearly empty church building the remaining membership of which, no matter how faithful, can no longer financially bear the burden of the corporeal existence of the church. Even without a mortgage, church buildings require maintenance, grounds must be maintained, and parking lot potholes must be filled.

In St. Cyrillus v Polish National Catholic Church, Slip Op. (unpublished) (NJ App. 2020) the local church building was destroyed by fire. All that was left of the church property was the land and the $1,000,000 paid out under the fire policy. The church building could not be rebuilt for $1 million but the local church had no fund-raising plan to accumulate the difference. The local church membership prior to the fire had dwindled. The denomination dissolved the local church and took control of the land and money. The trial court granted summary judgment to the denomination. The appellate court affirmed. The governance documents of the local church required the local church to obey hierarchical rulings as did the governance documents of the denomination.

The process by which a non-viable church is swept from existence is usually foreclosure by a lender. However, in those rare instances in which a church is no longer viable, and under denominational control, denominational decision making will likely be binding. For churches not under denominational control, winding up the affairs of the church, once the excruciating decision to do so has been made, an asset merger with a viable congregation is the most pain free method.

DO NOT FORGET THE DEED

Title to local church property like any other property in most states is controlled by the language of a deed filed in governmental property records. But, as the years pass, church life cycles may include names changes as well as substantive changes in affiliations. Sometimes these changes should be reflected in an amended deed. Because institutional memory in a primarily volunteer organization like a church is not well preserved and change in circumstances and conditions is usually gradual disparity in ownership and governance documents can result.

In First Presbyterian Church of Magnolia v Presbytery of the Pines, 2020 Ark. App. 253, the trial court held that the quiet title action commenced by the local church against the denomination was not justiciable. The appellate court reversed and held the quiet title action, and any other properly raised claim, was justiciable if Neutral Principles of Law controlled the outcome. In a quiet title action, Neutral Principles of Law could make the case justiciable. The local church was formed and acquired its property in the mid-Twentieth Century when there were two denominational bodies. The local church was a member of the denominational body that did not have a property reversion clause in its Book of Order until thirty years after the formation of the local church. As a result, the property deed of the local church did not contain a reference to the reversionary clause. Later, the two denominational bodies merged leaving a single denominational organization. The surviving entity did have a reversionary clause in the surviving Book of Order. On remand, the trial court will be faced with a reversionary clause adopted after the fact and twice removed from the original property deed that did not contemplate either reversionary clause.

Some states may place a property deed on a part with denominational governance documents. Denominations may desire that local church property deeds reflect denominational interests. However, that may make mortgages problematic. Local churches must evaluate their denominational affiliation carefully and determine whether the state of residence of the local church would consider denominational governance documents controlling over local church property deeds.