Author: churchlitigationupdate

LITIGATING INCLUSIVITY

Efforts to diversity church membership range from specialized outreach programs to development of professionally staffed inclusivity positions. Typically, the latter is limited to the denominational level because only the largest local churches have the resources for permanent staff positions.

In Worford v Virginia Conference of the United Methodist Church, Memorandum Opinion (ED Va. 2019), the Director of Inclusivity was terminated. She sued alleging race discrimination and retaliation. The trial court overruled the motion to dismiss submitted by the denomination. The denomination alleged that in order to decide the case the court would be forced to delve into church governance in contravention of the Ecclesiastical Abstention Doctrine. But, the opinion did not cite or quote any governance documents. At the motion to dismiss stage, which is in the early pleading stage of a case, the trial court determined that the employment issues raised would not require interpretation of religious doctrine or decision-making. Also, the trial court held that the record was insufficient for the trial court to determine whether the Director of Inclusivity was by title, substance of the title, the employee’s use of the title, or the functions performed ministerial. Thus, the trial court deferred a ruling on whether the Ministerial Exception barred further proceedings until the conclusion of discovery and development of a more complete record. The Plaintiff denied that as Director of Inclusivity there was any requirement to lead a congregation, teach religious doctrine and that the position was solely an administrative logistical position.

In such cases, the church or denomination should submit to the court written employment agreements, employment rules and procedures handbooks, and signed acknowledgements containing admissions of the religious nature of the staff position. Of course, before any new staff position is created or anyone hired, such documents should be amended to explicate the religious nature of the position. Such terms as “evangelism” and “evangelist” were the titles of the original Directors of Inclusivity. Indeed, churches and denominations should engage counsel to assist with drafting such documents. The purpose of such documents in the secular world is the same as in the religious, to protect the employer and place the employee on notice.

CODE WORDS CASES

Setting aside the inflammatory nature of sexual child abuse cases, many of the cases considered by courts in the current era are old. Some are regarding claims that exceed even generous statutes of limitations by decades. Statutes of limitations were generally good policy because cases become stale, not just because of the passage of time, but because of the passage of lives and memories. To circumvent the loss of lives-in-being that could have been witnesses in an earlier time, as well sometimes the loss of memories of third parties, in child sexual abuse cases against churches there is often a search for conspiracy and cover up.

In John Doe 122 v Marianist Province, Opinion (Mo. App. 2019), the trial court granted summary judgment to the religious order and church school. The appellate court affirmed. The sexual abuse was alleged to have occurred in 1971. The victim’s memory was refreshed in 2012 by a letter from the religious order during an investigation of sexual abuse allegations. The trial court granted summary judgment on a negligent supervision claim because the claim required the court to engage in interpretation of religious doctrine, policy and church administration contrary to the Ecclesiastical Abstention Doctrine. The trial court granted summary judgment on the allegation the religious order was on notice of their member’s sexual child abuse prior to the abuse of the Plaintiff. The Plaintiff’s only proof after so many decades that the religious order was on notice was that “code words” in the member’s personnel file, which did not directly mention sexual conduct, revealed there was notice. The alleged “code words” were “observance of vows,” deficiencies in “religious life,” and issues regarding attendance at worship services and prayer. Plaintiff’s expert witness, upon review of thousands of personnel files in the same denomination over thirty years, concluded “code words” were the common method of revealing sexual misconduct without making any direct statement. However, the expert admitted the opinion was a belief and that in any particular case the words might not have been code at all. The expert could not state that these particular words were, in fact, “code words.” The court held the opinion was too speculative to prove the allegation. The dissent thought the expert’s experience was sufficient to require that a trier of fact, such as a jury, determine whether the belief was reasonable or speculative that the words constituted “code words.” Apparently, the writer(s) of the words were no longer available. The trial court declined to rule whether the claim was barred by the statute of limitations.

It is simply a fact that the some injustices will not be addressed by temporal courts because cases do become stale. Reliance on opinions that otherwise innocent words actually mean something sinister is dangerous unless there is evidence other than the opinion. In prosecutions of gang members, for example, lexicons of “code words” are developed. No similar device seems to have been available in this case. The reason, too, that even innocent words may be viewed with suspicion is no doubt because of a “conspiracy of silence.” Churches and denominations should take heed.

CHURCH SUCCESSION TITLE BOUTS

When the founding pastor fails to have in place prior to need a written succession plan adopted by the governing authority, words like coup d’etat can become applicable. A church split can result that impairs the legacy of the founding pastor.

In Elglise Baptiste v Seminole Tribe, Omnibus Order (SD FL, 2020), the founding pastor died. A battle for control of the church erupted that was marked by a congregational meeting that turned into a brawl that required police intervention to restore order. Apparently, a congregational vote survived the brawl and the wife of the late pastor led the winning faction elected by the congregation to succeed. The following week the worship service led by the losing faction was interrupted by the widow and her faction. They retook the church building from the “losing” faction accompanied by “six armed officers from the Seminole [Tribal] Police Department.” The widow’s faction’s opponents were removed from the church property, the locks changed, and the gates to the property locked. The “losing” faction sued the Seminole Tribe but could not defeat the tribe’s sovereign immunity. The widow and her faction were also dismissed from the lawsuit because the Plaintiff’s claims represented “non-justiciable questions of church governance” excluded from review by the Ecclesiastical Abstention Doctrine.

Most courts will not play referee in a title bout between factions in a church split. If there is a documented congregational vote in congregational churches or a hierarchical action in denominational churches, and if the vote or action is arguably consistent with organizational governing documents, such as bylaws, even should a court need to address property ownership or control, usually those are the facts that will control the decision. A written succession plan adopted by the governing authority of the church or the denomination, or both may, if drafted with sufficient clarity and due regard for other laws, such as rules against perpetuities which may or may not apply to churches, be a determinative piece of evidence.

ECCLESIASTICAL CONTRACT TERMS

The Ecclesiastical Abstention Doctrine of the First Amendment prohibits courts from hearing matters based on religious doctrine or polity. Many evangelical churches, most of which are congregational even though they may also be denominational, incorporate into church governance documents such as bylaws contract terms that are more or less quotations of Scripture. Internal church dispute resolution often is procedurally described in bylaws by quotation, more or less, of Matthew 18.

In Adkison v Williams, Slip Op. (Ohio App. 2019), the trial court held that claims to membership in the church by the Plaintiffs were outside judicial review by virtue of the Ecclesiastical Abstention Doctrine. The internal dispute resolution clause in the bylaws was more or less cloned from Matthew 18. The appellate court noted that the bylaws of the church were contractual and that a church did not have “unbridled” freedom to disregard them. But, the particular dispute involved the application of the dispute resolution clause inspired by Matthew 18 which the trial court and the appellate court were unwilling to interpret or enforce. The Plaintiffs alleged the church leadership terminated their membership and when a dispute arose, did not submit the dispute to the congregation for a final vote. The interpretation required was whether in Matthew 18 the requirement of congregational submission was or was not required or automatic, or whether that step may be left to the discretion of leadership. Both courts declined to make the interpretation.

Congregational churches should verify their written membership rolls at least annually and purge persons that no longer attend or participate. It is not necessary to give notice of this action nor to explain to anyone why it is being undertaken, but it is helpful to record the action in minutes of the governing board. Such membership rolls will, in a controversy, be useful to identify who can actually vote and who can be elected to church leadership. Routine membership roll purges should not be confused with disciplinary membership terminations. Disciplinary membership terminations should be documented in the minutes of the governing board, too. Especially regarding disciplinary membership terminations church security personnel should be notified of the action so that they may observe a trespasser until official law enforcement can arrive to address any problem.