Author: churchlitigationupdate

DIVIDING BY ONE

Hierarchical churches generally cannot divide and separate constituent entities in a manner that may shield one level from the damages allegedly caused by a different level. The hierarchical church is generally viewed as virtually or actually integrated such that a claim against one level can also be brought against another level. Indeed, it is rare to see an assertion that there is an actual barrier between one level and another of a hierarchical church.

In Clement v The Roman Catholic Diocese of Erie, Memorandum Opinion (WD Pa. 2017), the Plaintiff alleged sexual harassment by the priest supervising her work. The Diocese moved to dismiss the claims against the Diocese on the grounds the Diocese was not the employer and the Plaintiff was employed by the parish church. The Plaintiff also alleged that she complained to the monsignor that supervised the priest and even with the Bishop of the Diocese but that neither did anything. The Plaintiff claimed that there was “operational entanglement” between the Diocese and the parish. The parish, incidentally, alleged it should be dismissed because it did not employ fifteen individuals.

The Court overruled the motions to dismiss holding that to determine whether the Diocese and parish were “sufficiently interconnected” is an “open-ended, equitable inquiry.” The Court held this was a “fact-intensive inquiry.” These reasons make the outcome of overruling the motions to dismiss seem inevitable. Also, it seems like a different set of grounds for the motions to dismiss should have been presented because the hierarchical nature of the Diocese and parish relationship would seem to be too well known in that denomination to make such an alleged separation between the Diocese and parish seem realistic.

Of course, that a motion to dismiss is overruled is not uncommon and the case will proceed through discovery, dispositive motions, and possibly trial and appeal if it is not settled. Thus, a future opinion, verdict or appeal could dispose of the case. But, typically, the arguments raised before the Court are more usually made by connectional churches that are not hierarchical.

UNINCORPORATED ASSOCIATIONS AND CHURCH CORPORATIONS

In the beginning, all churches were unincorporated associations. The demands of modern accounting and property ownership, including liability risk management, pressed the unincorporated association to incorporate. However, in order to successfully incorporate, the unincorporated association has to follow steps outlined in the law of the state of residence. Even done amicably, such a transition can be challenging to volunteer led churches and pastors that do not also happen to be lawyers. In the middle of a church split, the transaction cannot be completed in most states.

An example of this is Church of the First Born of Tennessee, Inc. v Slagle, Slip Op. (Tenn. App. 2017). Church of the First Born outlived two generations of founders and desperately needed a new organizational structure that would ensure smooth leadership transitions going forward. This was especially true after the church grew into a multi-campus church and established a church school sited on what probably was millions of dollars of real estate.

Before such an amicable restructuring took place, a church split arose. The Court was unsure whether the split arose due to the financial pressures of supporting the church school or whether it was a doctrinal issue that arose because after the founders passed away, new leadership did not command the unanimity that the founders earned but surrendered upon their passing. While the dispute roared around those issues, indeed, those issues were not terribly critical to the resolution.

The Plaintiff was a newly minted church corporation that tried to step into ownership of some of the church assets on behalf of one side of the split. But, because asset ownership transfers are impossible unless all of the members of the unincorporated association have notice and vote to approve the transaction, the mere incorporation by one group in the split did not have the effect of transferring assets. The Plaintiff was, therefore, without standing to bring any claim at all and the case was dismissed.

Church leaders have a duty to recognize their own mortality and plan for leadership succession in a fair process. While many church leaders bristle at the idea of church bylaws or other written policies adopted as the governing rule of the church by a vote of the members, every church that does not have them and does not periodically review and update them increases the risk that a rift in the membership will shatter the peace of the church or in fact doom the church. A church that can own millions of dollars of property should be able to hire a competent lawyer to lead the church to adopt bylaws or written rules. Incorporation is a low cost and relatively well understood first step and makes asset management much easier.

REPORTING STATUTES MEAN WHAT THEY SAY

The gospel of reporting statutes, especially when crossing state lines and possibly triggering more than one, still seems to be misapprehended by many in church leadership. Among some church leaders, there might even be an arrogance by which leaders somehow convince themselves they can manage, cure, or heal child abuse victims and abusers. Most church leaders lack the training and resources to help victims unilaterally. Most church leaders are unwilling to demand stringent proof of repentance much less have the training or resources to cure or manage abusers. Nevertheless, church leaders often try to do one or the other or both resulting in onerous legal repercussions or perpetuation of the harm. Also, church leaders tend to apply the standards of their upbringing to the conduct alleged without consideration of the changing views of society, meaning that what might have been considered merely unacceptable in an earlier age is today a crime.

In Jane Doe-1 v Corporation of the President of the Church of Jesus Christ of Latter Day Saints, Slip Op. (W. Va. 2017), the 82 page opinion detailed numerous instances over several years in which both local and regional church leadership were alleged to have learned of alleged sexual abuse of children but did not report it. There is even an allegation that the accused abuser was brought home from a mission trip in response to a police investigation but that the police were not notified of the return. Another aspect of the opinion was that for the court to have this quantity of information to recite in its fact summary, the record in the trial court had to have been extensive. Extensive fact records, especially when there has not yet been a trial, usually exist only after expenditure of a lot of money.

In Jane Doe-1, conspiracy to hide the abuse was alleged. The opinion clearly seems to teach that church leaders that receive allegations of child abuse that consult with other leaders, or even parents, about what should be done may later be accused of conspiring to hide abuse if the consultation leads anywhere but reporting. The only safe thing a church leader receiving allegations of child abuse can do in most states is report. The only safety valve other than reporting is consultation with legal counsel that is paid to report on the actual impact of the reporting laws on the allegations received. But, this is a safety valve only in that it might provide to a church leader a consultation free from conspiracy charges even if the consultation has to be paid. It does not provide a defense.

COMPELLING GOVERNMENT INTEREST IS ALWAYS COMPELLING – ESPECIALLY WHEN IT IS ABOUT TRAFFIC

There is nothing more annoying than when a statute passed to remediate a wrong is simply defined out of existence by judicial fiat. The Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq is such a statute. The statute sets forth:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that the imposition of the burden . . . (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.

One would think the word “compelling,” the word “and” and the word “least” are simple and clear. But, not so in the United States Court of Appeals for the 6th Circuit. In the 6th Circuit, in Livingston Christian Schools v Genoa Charter Township, Slip. Op. (6th Cir. 2017), it took 22 pages to sweep these three words out of the way.

In order to deny a church and a religious school a “special use permit” for the school, the governmental interests that were compelling were: traffic, that the church, not the school because it was a separate entity leasing space from the church, had a “history of failing to comply with its previous special-use permits” by being “disruptive,” and “inconsistency with the single family residential zoning of the surrounding area.” Compelling these reasons were not by any rational view.

The 6th Circuit has a history of religious organization hostility and proudly recited it in the opinion. For example, the 6th Circuit held in 2007 that denying a building permit so a church could build a multi-purpose building including a gymnasium was a “mere inconvenience” and not a “substantial burden.”

In the Livingston Christian Schools opinion, the 6th Circuit held that the school had another piece of property available to it that was only 12.1 miles from the subject property. In other words, parents would have to drive in the morning and in the afternoon 25 miles to cover the round trip during the high traffic times of the day in a suburban traffic setting. (In Oklahoma City, where I am located, we only have rush thirty minutes but my friends on both coasts are envious.) I rather suspect that if the traffic was as compelling a governmental interest as the 6th Circuit held it to be, then that mileage would have strangled the school in short order. The court noted the school had 139 students before its move to the church property, might have had 190 afterwards, but with the uncertainty of location looming because of the permit denial, might have an uncertain future. That was not, however, “substantial.”

The 6th Circuit was critical of the school for not providing financial records or enrollment records to prove the necessity of its move to the church property it wanted to lease. Given the enrollment noted above, it is surprising the school had sufficient resources to litigate at all, much less appeal.