Author: churchlitigationupdate

WHO ARE YOUR MEMBERS?

“WELL DOC, IT ALL STARTED WITH A CHURCH BOARD MEETING.”  In secular law briefings I have given before denominational gatherings and conferences for church leaders over the years the first line in all capital letters of this entry is often my opening line.  Most church splits, employment issues, and battles over a Pastor start at the church board meeting.  In the case under discussion, the church board in a congregational church (a church with only local control and no denominational control, other ties notwithstanding) decided not to call a congregational vote when requested to do so by members.  It seemed that the bylaws of the church required a congregational vote when called for by a member or a group of members.  In this case, Hawkins v St. John Missionary Baptist Church, Slip. Op. (Cal. Civ. App. 2017), the vote demanded was a congregational vote to keep or remove the Pastor.

The member or group of members not given a congregational vote sued to enforce the bylaws.  The trial court held that enforcing the bylaws was not ecclesiastical and therefore not shielded from court review.  The trial court appointed a referee to conduct a congregational meeting and the vote.  The first problem the referee had to solve was to identify the members.  After that determination, then it had to be determined whether each member was an eligible voter.  The church (acting through the board) developed a membership list for the referee but omitted three members by mistake.  But, the referee would not allow the error to be corrected.  The three omitted members’ votes were sealed in an envelope by the referee.  The referee, the church board, the group challenging the Pastor, and the trial court did not know how the three voted.  (However, it seems likely that both sides knew the three members well enough to forecast their votes.  The board was seeking the counting of the three votes and the challengers were seeking to enforce the referee’s ruling excluding them.)  Without counting the votes of the three disqualified members, the referee held that the votes cast were 264 votes to retain the Pastor and 265 votes to terminate him.  The trial court accepted the referee’s ruling.

The appellate court reversed the trial court decision, and thus the referee’s, and ordered the three votes counted.  (This seems to have put the board and the Pastor on top.)  The court held that the grounds for rejecting the correction of the membership list, Robert’s Rules of Order, did not apply because the votes’ impact on the plebiscite were unknown and Robert’s Rules only prohibited such a change if the impact on the final tally was known in advance.  The court did not reach the question about a fourth voter:  a woman that was an ineligible minor when the list was created by the church board but was eighteen at the time of the vote and eligible.  She had been deemed ineligible by the referee.  Because her vote would not change the outcome either way, the court did not reach it.

Implicit in the rulings of the trial court and the appellate court was an unspoken criticism of the church board for not calling the requested meeting as required by the bylaws.  Also, the appellate court asked the church to amend its bylaws to avoid future problems by specifying what was meant in the bylaws by “good standing.”  In addition to the four members discussed above, seven additional members were deemed ineligible to vote on “good standing” grounds.  The referee would have benefited from an up to date membership list that had been carefully checked.  It is unlikely the referee knew, but the court might have, just how difficult up to date membership records are for churches to maintain.  For example, if the bylaws state the person is not eligible to vote if they have not attended in a year, what is the record that provides the date of last attendance?  If the bylaws put the power to unilaterally make an eligibility determination in the church board, is there a limit on when the board can change the determination?  Of course, bylaws are not needed until they are needed, so there is tendency not to review them periodically.  Annual review seems to make the most sense.

PROPHECY BY CONTRACT

It is a little known fact that contracts without temporal limitations will often not fit the situation after the passage of time.  A church that enters into a contract to avoid a legal dispute but does not limit the scope of the contract may have to buy out the contract to meet a future need.  If buying it is problematic or too costly, then the church may be stuck with keeping its word for what might seem like eternity while the circumstances change.

In Abel v Pawleys Island Community Church, Slip Op. (SC App. 2017), the church in 2000 filed an application for a permit to fill in wetlands during the construction of a new sanctuary.  The application was challenged and the church, probably to break the log jam, agreed to a settlement agreement, i.e., a contract.  From the settlement agreement a consent decree agreed to by the parties was issued, which stated:  “The Church agrees that the wetland preserved by this Consent Order shall remain in its natural state.”  In 2014, the church sought to modify the consent decree, the original challengers objected and accused the church of welching on the 2000 deal.

The appellate court enforced the settlement agreement, and thus the original consent decree, and noted “[w]e find the explanatory opening paragraph to the consent order does not create a temporal restriction on the nine clauses contained therein.”

While it was expedient to make a deal in 2000 so that construction of the sanctuary could proceed, and possibly it was not then predictable that someday might bring a need to change the deal, nevertheless someday inexorably came along with a need to modify the consent decree.  It is possible the settlement could not have been reached with a temporal limitation imposed.  It is likely that the push to complete the sanctuary on time and on budget caused undue haste.  Regardless, churches must take contracts seriously before too easily agreeing.

ARE PASTOR EMPLOYMENT CONTRACTS REAL?

While a court will typically refuse to reinstate a defrocked or fired pastor under the Ecclesiastical Abstention Doctrine or the “ministerial exception,” in most states a purely contract based dispute will be heard under neutral contract principles.  In most states, the contract will be enforced as written or legal defenses to contracts will be considered.

In Bigelow v Sassafras Grove Baptist Church, Slip Op. (NC App. 2016), the Pastor and the church entered into an employment contract that contained a disability provision.  In case it is not obvious, the contract did not require that the Pastor remain at his post to receive the disability benefits.  The disability benefit provided by the contract was that the church would pay salary and medical benefits if the Pastor became disabled during the twelve year term of the contract, which might turn out to be several years in this particular case if the contract was enforced.

The trial court dismissed the case under the aforementioned 1st Amendment doctrines.  The appellate court reversed the dismissal and sent the case back to the trial court for further proceedings, which would probably include discovery and trial until verdict or settlement.  The reversal was based on a thorough review of the Ecclesiastical Abstention Doctrine and the “ministerial exception,” and the conclusion that neutral contract law principles governed the dispute.

The contract was, in part, quoted in the court opinion.  The contract was clearly not drafted by a lawyer.  Drafting errors may have resulted in confusion about the terms agreed upon or the full extent of the promises exchanged, especially duration of the promises.  Further, the disability insurance policy in effect at the inception of the contract was no longer in force and it seems likely the church did not anticipate that the loss of that coverage might or might not expand the financial commitment.  The portion of the contract quoted did not specify which party had the obligation to keep the disability coverage in force.  If that was the Pastor’s duty, then the church might have a setoff to assert.

Employment contracts are generally enforceable between Pastors and churches as to financial terms, but not as to actual employment.  If the church removes the Pastor from that position, no court will intervene, even if the financial aspects of the contract are still enforceable.

INJURY CLAIMS BY MEMBERS – HAUNTED STAIRS

Lifetime members of the church, the people least expected, will sometimes sue their church due to an injury.  The church with adequate insurance will, out of sympathy, often encourage it.

Lifetime members usually know every nook, cranny and quirk of the church building.  Older church buildings are often not upgraded to reflect changing safety standards unless a remodeling program is incidentally undertaken.  As a result, creaking stair cases with no rails are not uncommon in areas “behind the stage” at baptismal facilities, choir lofts, computer controls, and sound and lighting controls.  In Thompson v Evergreen Baptist Church, Slip. Op. (NC App. 2016), the plaintiff choir member fell off the stair case to the choir loft that lacked rails.  The trial court granted summary judgment for the church and the appellate court affirmed.

While churches should as funds permit inspect their premises to see if affordable safety improvements should be performed, it does not automatically follow that a long time church member, and especially a member with inside knowledge of the non-public areas or areas that represent a risk, will be able to press a claim successfully.  Indeed, open and obvious risks and risks known to the long time member with a long history of behind the scenes access often will not support a claim.