Abuse of Process is in most states a common law tort based on proof that a lawsuit was used for an improper purpose, typically to obtain what the court in the lawsuit could not otherwise order. Using a lawsuit for improper purposes such as extortion, fraud, or deception is the basis for an abuse of process claim. Because general trial courts typically have the authority to fashion numerous types of remedies, the search to find an extra-legal remedy upon which to base an abuse of process tort claim would be daunting.
In Plishka v Skurla, 2022 Ohio 4744, Slip Op. (OH App. 2022), the Plaintiff was suspended from ministry. Plaintiff claimed that a lawsuit filed by the church hierarchy to force return by replevin of property, allegedly including church relics and other church property, was a subterfuge. The Plaintiff claimed the ulterior motive motivating the replevin lawsuit was to provide a basis for suspension of Plaintiff under church law without a church hearing. The trial court held the abuse of process claim was intertwined in ecclesiastical decisions which the court could not hear. The lawsuit proceeded through motions and a three week jury trial. The jury entered a verdict in favor of the church hierarchy. The verdict awarded the disputed property to the church but awarded no monetary damages. The Plaintiff appealed but the appellate court declined to set aside the trial court’s dismissal of the abuse of process claim and the verdict of the jury remained intact.
The task of summarizing the reported case in a single paragraph was challenging because the reported opinion consumed almost 10,000 words. The opinion’s recitation of the history of the litigation was mesmerizing because all of the litigants were clergy meaning that the funding for the litigation seemed also to have been a notable accomplishment.
Be that as it may, the tort of abuse of process is not often the theory of recovery of choice. Defamation is the more common choice. Defamation does not fare well for the same reason abuse of process may not. Church disciplinary actions, such as suspension or reinstatement of clergy, are inherently ecclesiastical and almost universally will not be reviewed by an American court. Thus, even if a lawsuit was initiated to justify suspension of clergy and to avoid ecclesiastical due process, reviewing the process of suspension to determine if there was a basis for the claim of abuse of process would be beyond the jurisdiction of most American courts.
Most of the “excommunications” in court opinions we have reported were not actionable in a court. The Ecclesiastical Abstention Doctrine precluded the court from considering the issue in isolation. Only if there was a legitimate dispute based on church governing documents about who had a right to the keys to the building might the issue of membership termination be impacted though not considered.
In Tharp v Hillcrest Baptist Church, 2022 Ohio 4695 (Ohio App. 2022), the trial court granted summary judgment to the defendant church. The Plaintiff was confronted by the church pastor about an allegation of sexual misconduct brought by another member. The pastor was told that the other member saw Plaintiff and allegedly identified him as the person that molested him thirty years earlier. The Plaintiff admitted the factual basis of the allegation but denied wrongdoing. The Plaintiff repeated the admission in a deposition. The church expelled the Plaintiff from membership. The Pastor allegedly advised the congregation of the expulsion and that it was based in part on the opinion of an “expert” consulted by the Pastor. The “expert” allegedly opined the Plaintiff had an “incurable illness” and his volunteer work in the youth ministry “amounted to grooming children.” The Plaintiff’s defamation claim was dismissed because the Pastor had “qualified immunity,” arising from a duty to speak as to “church interests” in the report to the congregation, as well as from the general duty to protect children. The court held “church discipline” was “beyond the scope of review by a secular tribunal.” The claims of molestation did not appear in a background check and the Plaintiff allegedly failed to disclose them while applying to volunteer in youth ministry. The “confrontation” by the Pastor was not in the course of confessional or penitent communication.
The church and the Pastor seemed to move resolutely from the original notice by the other member, to confrontation, and then to expulsion. The lawsuit provided the opportunity to take a deposition. This seemingly resolute step at a time approach without hesitation upon confirmation, from the confrontation and the notification by the other member, made the outcome virtually certain. Churches that dither, wring their hands, or try without professional guidance for “reclamation” and unverified “repentance” end up with claims more costly or difficult to defend.
Because churches are long suffering, and generally very slow to anger, they often do not resort to actual “official” excommunication. Indeed, churches tend to wait too long to impose discipline and suffer from it. Social and peer pressure is more often used and generally counsels the “accused” toward departure from membership and attendance. Nevertheless, excommunication is a church discipline tool that is used.
In Svendsen v Lobb, Slip Op. (Minn. App. 2022), the Plaintiff alleged he was defamed “sufficiently to identify [Plaintiff] as a person that needed to be excommunicated and barred from attending any [church] services.” The appellate opinion comes no closer to indicating Plaintiff was “officially” excommunicated or rather whether Plaintiff was by the statements of other church leaders counseled to depart from membership and attendance. Because the grounds for excommunication are generally “apostasy,” sexual misconduct, “heresy” or “murder,” inquiry into ecclesiastical doctrines and interpretations would be inevitable. Further, most courts, and Minnesota is among them, will not hear church membership disputes. The trial court dismissed the case on Ecclesiastical Abstention Doctrine grounds and the appellate court affirmed.
While the reported case does not state what was said or to whom, or under the circumstances, such as a public assembly, it is generally not a good idea to conduct excommunications in public. If it must be done by congregational vote, it should be in a closed members only congregational meeting. Counselling someone out of a church should be done “privately” with only two or more witnesses, usually all church leadership that understand the need for confidentiality, and only announced in the aforementioned congregational meetings as required.
We reported the decision of the United States Court of Appeals for the 5th Circuit in McRaney v North American Mission Board, Southern Baptist Convention, 996 F3d 346 (5th Cir. 2020), cert. denied, 210 L ED 2d 961, 141 S Ct 2852 (2021). The Plaintiff was formerly employed as the Executive Director of the General Mission Board of Maryland / Delaware. The Plaintiff alleged the Defendant made false statements about him that caused him to be fired from his position, caused him to be “uninvited” to speak at a large mission symposium, and posted a picture of him at the Defendant’s offices to malign him. The trial court dismissed the case on Ecclesiastical Abstention Doctrine grounds but the 5th Circuit reversed the dismissal. The only theories of recovery espoused were for intentional interference with business relationships, defamation, and intentional infliction of emotional distress. There was no employment claim made that might implicate the Ministerial Exception. We noted on remand there might be discovery.
In McRaney v North American Mission Board of the Southern Baptist Convention, Inc., Order Reconsidering Quashing of Subpoena (ND Miss. 2022), the federal trial court on remand vacated its order quashing the Defendant’s subpoena to the Plaintiff’s former employer to obtain the personnel file and other documents. The trial court did so based on the opinion of the 5th Circuit that the dismissal of the case on Ecclesiastical Abstention Doctrine grounds was premature. The trial court allowed the subpoena to be reissued and allowed the former employer to respond as they might to any subpoena seeking those types of documents.
If the evidence produced in response to the subpoena, if any is produced, proves the termination of Plaintiff was, indeed, based on ecclesiastical or church disciplinary policies, it may result in dismissal of the case a second time. It may also prove the termination of Plaintiff by the employer was caused, or not caused, by the actions of the Defendant. Employers must be rational in their creation of termination records and not let the angst or emotion of the moment cloud the record. The termination record should be documented under the supervision of counsel when the sensitive nature of the Plaintiff’s position, apparently as a sort of chief executive officer, seems to require an especially accurate record.