The statutes governing non-profit corporations in some states require that employees or “representatives” be indemnified for legal fees in lawsuits in which they are named because of their title or position in the non-profit. Such statutes do not apply to personal matters that end up court. However, even a matter that seems merely personal may be escalated by a Plaintiff searching for a Defendant with more resources than that of an individual.
In Kawimbe v African Methodist Episcopal Church, Inc., Opinion and Order (ND GA, 2021) the federal trial court in Georgia dismissed the Plaintiff’s lawsuit to recover attorney fees. The Plaintiff was the subject of a disciplinary proceeding in the denomination that resulted in a jury trial. The jury was composed of ministers of the denomination. The Plaintiff hired legal counsel to conduct the jury trial and prevailed. However, the legal fees amounted to $75,000. The Plaintiff claimed the denomination owed the Plaintiff indemnification for the attorney fees expended defending the internal disciplinary proceeding. The denomination’s governing document incorporated Pennsylvania law and Plaintiff invoked that state’s non-profit corporation indemnification statute. The federal trial court, however, held the Ministerial Exception did not apply because indemnification for legal fees can be a matter of contract and decided using Neutral Principles of Law and that the indemnification issue did not implicate hiring or firing of clergy. But, the federal trial court held that in order to determine if Plaintiff’s cost of defense of the disciplinary proceeding was incurred because of his “representative status,” as a Bishop, an element of the statute, the court would be required to inquire into ecclesiastical matters barred by the Ecclesiastical Abstention Doctrine. The court held it would have to inquire into the duties of a Bishop, the nature of the disciplinary complaint in reference to the denomination’s governing documents and possibly other inquiries.
Written employment contracts that contain indemnification provisions may allow a court to invoke Neutral Principles of Law and decide whether clergy or non-clergy can recover attorney fees expended in their defense of claims, either internal or external. Denominational governing documents and local church governing documents sometimes contain indemnification clauses, too, that can likewise be subjected to review under Neutral Principles of Law. The reason may be that the court can assume the clause has been reconciled with ecclesiastical concerns and would not have been included if there was an ecclesiastical issue, or such an issue would have been stated in the clause. Generic non-profit corporation statutes may not be as easily applied because no similar assumption can be made.
Non-profit organizations that take federal or state funds usually must abide with governmental rules for use of the money, and sometimes other rules as well. Church schools are the most prone to government intrusion if their funding is in part or in whole from government sources. However, there are limits to the power of government money to compel submission by churches and denominations.
In Rutland v Nelson, Slip Op., Per Curiam (11th Cir. 2021), the federal appellate court affirmed dismissal of a case by a federal Florida trial court. The Plaintiff was by church and denominational disciplinary proceedings banned from all church property and from speaking to the denomination’s clergy. The federal trial court held that the Ecclesiastical Abstention Doctrine of the First Amendment barred judicial intrusion into church disciplinary proceedings and dismissed the case. On appeal, the Plaintiff argued that because the denomination accepted federal funds, it was subject to judicial review of his complaints discrimination based on “disability, veteran status, and religion.” The United States Court of Appeals for the 11th Circuit rejected that as a basis for shrinking or terminating First Amendment protection or expanding judicial authority.
At least for now, taking government money is not automatically a key to the church doors.
In our report immediately prior to this one, the allegation in the case reported was that breach of the policies of the denomination or church by the church was a tort compensable in damages. Generally, tort claims are “wrongful acts” that are committed negligently. Intentional torts are generally those wrongful acts that are intentionally undertaken with the intent to injure, financially or physically, the damaged claimant.
In John Doe v Roman Catholic Diocese of Dallas, Slip Op. (Tex. Civ. App. 2021) the Plaintiff’s claim was that the Defendant committed “fraud by not following its internal policies for responding to sexual abuse after he reported he was sexually abused… .” The trial court held that the internal policies for responding to sexual abuse were “so integrally related to …dogma that it comprises part of the … religious representations, beliefs and teachings.” Therefore, the trial court dismissed the claim pursuant to the Ecclesiastical Abstention Doctrine. The appellate court affirmed the trial court. The appellate court held that an inquiry into whether the church violated its own policies “necessarily [required a] reach behind the ecclesiastical curtain.” The appellate court held that an allegation that the church violated its own policy by mishandling its internal investigation of the allegation was such an inquiry. The appellate court held that the allegation that the church violated its own policy by misinforming congregants of the investigation or its outcome was such a claim.
Internal church governance, its practices and procedures, are often of late the subject of claims. The damages claimed range from defamation to failure to protect from a sexual predator. There is no credible doubt that policies, practices and procedures of churches and denominations are driven by or drafted in conformity with religious beliefs. Therefore, interpretation and compliance by a church or denomination with its policies or procedures will be driven by the same religious beliefs. Nevertheless, churches and denominations should not consider the ecclesiastical barrier impenetrable. Mandatory child sexual abuse reporting statutes in most states, for example, may not tolerate contrary church policies and procedures. In any event, major decisions by leadership that are driven by church policies and procedures, especially those derived from religious beliefs, should be documented and the applicable policy or procedure annotated in the documentation.
Setting aside for this report the idea that revealing a member’s sin from the pulpit might be insensitive or even cruel, the question presented is whether it is actionable in a lawsuit. For non-church entities like businesses and government, unless there is a duty to speak, and even if truth was a valid defense, the conduct might still be sufficiently outrageous to constitute a Tort of Outrage claim, in those states that have such claims.
In Hullibarger v Archdiocese of Detroit, Slip Op. (Mich. App. 2021) the Plaintiff’s child committed suicide. (The opinion does not disclose whether the child was an adult or a minor.) The family did not disclose this outside of the family and a few close friends. Somehow, the priest learned of it and at the funeral service revealed it during the homily. The priest proceeded to “preach about suicide as a grave sin and specifically how it endangered the immortal soul of the plaintiff’s son.” The Plaintiff complained to the Archbishop but the Archbishop would not grant an audience. The Plaintiff sued alleging infliction of emotional distress, misrepresentation, invasion of privacy and claims against the church for negligent supervision. The trial court dismissed the case under the Ecclesiastical Abstention Doctrine. The appellate court affirmed.