Category: church discipline

LEAVING THE DEFAMATION FORTRESS

Repeatedly in these reports we have seen that defamation claims are so difficult and expensive to pursue that they are only a marginal church litigation threat. Indeed, in these reports we have characterized defamation law as a fortress that few if any claims will ever breach. Nevertheless, for reasons political and economic, defamation claims are sometimes filed, announced to the public and then forgotten, often without being served on the opponent.

In de Laire v Voris, Order (D. NH. 2021), the United States District Court for New Hampshire was the scene of a defamation claim brought by a bishop against an internet news media company known as the Church Militant (churchmilitant.com). The bishop apparently imposed “sanctions” on a parachurch organization during a doctrinal dispute. The Church Militant not only reported on the sanctions dispute, but reported the bishop was the subject of complaints about the bishop’s canonical competence and other matters. In response to the bishop’s defamation claims, the Church Militant issued a subpoena to the diocese, a non-party to the case, for documents. The non-party diocese objected to the requests in the subpoena. The trial court ultimately refused to enforce the subpoena because negotiations between the diocese and the Church Militant left the requests unclear to the Court. Nevertheless, the federal trial court noted that that defamation claims in general, and therefore a related subpoena, do not automatically require inquiry into ecclesiastical matters. Therefore, the objection of the diocese invoking the Ecclesiastical Abstention Doctrine of the First Amendment was inapplicable and in order to reassert it the Court instructed the parties to specify its applicability to the particular documents sought.

It is hard to understand why any church leader would think that a defamation lawsuit was worthwhile when weighed against unintended consequences like court discovery. Indeed, in the reported case, the Court assumed in its Order that the diocese and the Church Militant through counsel would negotiate further on the discovery requests made by subpoena. While “revelations” in discovery seem unlikely, the cost of responding is not an expense to which most churches are accustomed. Litigation also seems to be way a uniquely good way to perpetuate adverse news media coverage of an issue that might otherwise be ignored by the public in short order.

THE DEFAMATION FORTRESS

Clergy accused of molestation or child sexual abuse may be subject to criminal prosecution, civil lawsuits, and church disciplinary actions. In the latter category, the church, all of them, had to face the grim reality that failure to publicly reveal a finding of credibility in such an investigation will no longer be tolerated by church members, especially those otherwise loyal to the offering basket. The church found that the instinctive response of a church to rehabilitate, forgive, and to reinstate was no longer viable for clergy. The church came to this realization late because the church did not soon enough see the need to treat clergy with seemingly less compassion than laity.

In Foley v McElroy, Slip. Op. (Cal. App. 2021) the state appellate court affirmed dismissal of the Plaintiff’s defamation claim by the trial court. The Plaintiff sued because the church listed Plaintiff as “”credibly accused” of child molestation.” The church disclosed Plaintiff based on two allegations even after a church canonical trial as to one of the allegations “found him “not guilty.”” The appellate court noted by analogy that “[a] basic tenet of American criminal justice is that a not guilty verdict is not a determination of factual innocence.” To make a defamation claim, the Court held the Plaintiff would have to prove actual innocence and not merely that in a prior adjudication the “prosecution” did not make their case. In any event, only one prior allegation was adjudicated and not the other. Therefore, the Plaintiff failed to state a claim for defamation under California law.

While the criminal justice system has the nearly impossible task of determining the truth and punishing the guilty, the church should not undertake such efforts for clergy. The church that engages in such tasks will find itself not only ill-equipped but accused of aiding and abetting. The accusation will not come in the criminal justice system, except in rare cases, but rather in the court of public opinion. The church will find itself even less well equipped to defend itself in the court of public opinion. Indeed, the church will seem to have lost its way and to have abandoned its true mission. Meanwhile, clergy defamation claims are rarely tenable and less often successful because the claims cannot bypass the fortress defenses.

YOUTH LEADER SEXUAL MISCONDUCT REPORTING

In the era of transparency, churches and denominations are publicly revealing sexual misconduct claims that in prior generations would not have been made public. Youthful indiscretions of non-clergy lay members in prior generations would not have been considered a matter of church transparency. That is no longer the case. Those churches or denominations that have been forced into bankruptcy law protection by similar claims may publicly reveal sexual misconduct claims. The question may then arise, for the non-clergy lay person that was a youth leader, can they get their name off such a public disclosure.

In the bankruptcy of the Roman Catholic Church of the Archdiocese of Santa Fe, Opinion (Bankr. D. NM 2021), the federal bankruptcy court in New Mexico had to decide whether to lift the bankruptcy stay in order to permit the state court Plaintiff’s defamation case to proceed. The state court Plaintiff alleged he was defamed by being listed by the church in its public disclosure regarding sexual misconduct of “Priests, Deacons, and Religious Accused of Sexual Abuse of Children.” The victim’s complaint was that the Plaintiff, a 19-year-old youth leader in 1970 was accused by the then 17-year-old victim of rape and molestation in a complaint filed in 1995 by the now deceased victim. The Plaintiff alleged the sexual encounter was consensual. The church listed the then 19-year-old Plaintiff as a “Benedictine brother” but Plaintiff denied he was ever such, nor was he ever a church employee. Plaintiff attended seminary for a couple of years but was never ordained in any capacity. Plaintiff served as a “lay minister” for 39 years (but the Court’s understanding of the role of a “lay minister” in the church in question was not explained). After being listed, Plaintiff was no longer allowed by the church to serve in any capacity. Plaintiff wrote a $5,000 check in 1997 and gave it to his lawyer but could not say how the money was used. However, the victim’s lawsuit was settled, apparently by the church and its insurer, and the Court did not know whether part of the money came from Plaintiff. The federal bankruptcy court refused to lift the stay because Plaintiff could not disprove that the victim made a complaint in 1995. The Court held that the settlement precluded any finding the allegations were untrue. The Court held the Plaintiff should have “appealed the decision through the church’s appellate channels.” The Court cited no church authority or governing document regarding the availability of such a process.

The facts in the reported case are so odd that extrapolating principles from the case involve a degree of risk. Also, the Court’s “findings” seemed to involve several inferential leaps. In any event, publicly disclosing sexual misconduct allegations regarding a non-clergy, non-employee, 19-year-old seems to be risky and probably should not be done without an excruciatingly careful review of the facts and claims. The first claim that could have been more carefully examined was whether in New Mexico in 1970 a 19-year-old could be a “Benedictine brother.”

INDEMNIFICATION OF ATTORNEY FEES

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.