Category: Church Governance

IS MONEY ECCLESIASTICAL?

Churches may exist in the spiritual world and secular world but their money and property tend to exist in the secular world more so than in the spiritual. Therefore, a court will avoid spiritual issues pursuant to the Ecclesiastical Abstention Doctrine of the First Amendment but may conclude it has jurisdiction over money and property.

In Beyene, et al v Tekle, et al, Slip Op. (Wash. App. 2019), the decision of the trial court abstaining on Ecclesiastical Abstention Doctrine grounds was revered because the appellate court believed there were questions of fact regarding jurisdictional issues. The current chairman of the church testified it was hierarchical and led by its denominational authority while a priest of many years testified it was congregational and led by its priests and deacons. Apparently, the governing documents were not clear. The priest, a former church treasurer, and a founding member testified the financial allegations raised by the Plaintiff against former board members of financial misconduct were not ecclesiastical but were secular and corporate. The trial court on remand was ordered to weigh the jurisdictional facts and determine if the claims presented were, indeed, secular or ecclesiastical.

In all probability the purpose for which money is collected and spent will be ecclesiastical unless it can be proven the money was embezzled or spent for transparently improper purposes. Spending on personal expenses that are not documented reimbursements will remain more or less easily identified as improper but spending on “improper” purposes will not always be. What was improper a decade ago may not be improper next week or next century.

THE DEATH OF FOUNDERS

The passing of a founding pastor by death or retirement often is the opening event in a church split. Also, founding pastors of earlier years did not see the need for governance documents that provided for succession. The thought in the last generation was that such provisions weakened the pastor and invited rebellion. What it actually invited was the destruction of all that had been achieved by the founding pastor when the church, without a succession plan in the governing documents, fell into factional strife or a civil war. Church splits in these circumstances are not surprisingly intractable.

In Nelson v Brewer, 2019 IL App (1st) 173143, the Illinois appellate court affirmed the trial court’s efforts to save the church by holding that neither the plaintiffs nor the defendants were properly elected or appointed church board members or pastors and that the church governance documents did not comply with state corporation law. There was no plan of succession in the documents and the founding pastor, the only one with any authority, had passed away. One faction tried to lock out the other. The court ordered the factions to avoid any contact. The trial court then appointed a “custodian,” a type of corporate guardian, to rewrite the church governance documents, to conduct congregational elections of board members and a pastor, and to otherwise manage the resuscitation of the corporate entity. The alternative was corporate dissolution and liquidation of all assets. It appeared that there only 28 voting members left after eight years of litigation.

While many church members and leaders met by the author over the years pride themselves on the paucity of their church governance documents, those same members and leaders often appear as factional leaders in a church split. Invariably, it seems, when a generation that was able to maintain harmony begins to pass away without a clear succession plan, competitive factions arise. The failure to plan for the passing of the torch to successors in governance documents is irresponsible and unfair to the members that do not have ambitions other than to see their church home survive.

CLEVER ARGUMENTS AND DENOMINATIONAL AUTHORITY

As reported repeatedly herein, local church submission to denominational governance documents adopted by the local church during formation, or during denominational joinder at a later date, cannot simply be dismissed. However, local church factions attempting to break away continue to try. They hire lawyers and those lawyers continue to attempt to earn their fees by searching for exceptions in the documents and clever factual distinctions that might defeat the denominational governance document.

In Free Wesleyan Church of Tonga v United Methodist Church, 2019 UT App 41, the local church amended its corporate constitution and bylaws to omit any reference to the denomination in an effort to depart after more than thirty years of membership. The denominational governance documents did not permit departure by this method. Moreover, the local church congregational vote to accomplish the amendments did not comport with denominational governance requirements. Probably knowing that these arguments would be decided in favor of the denomination, clever arguments were added by the local church. The local church argued: (1) The corporate regulatory authority of the state accepted the amendments and issued a new certificate of incorporation; (2) The denomination did not challenge the action of the state’s corporations regulatory authority and by so doing failed to exhaust administrative remedies denying the denomination standing in court; and (3) the denominational governance documents were religious and could not be interpreted by the court.

The trial court rejected all of the arguments and granted summary judgment which the appellate court affirmed. Predictably the denominational governance documents were controlling because the incorporation documents of the local church adopted them and contractually bound the local church. The state’s corporate regulatory certificate of incorporation was produced as a ministerial act and did not adjudicate any rights. Moreover, the state regulatory authority had no adjudicative powers so there was nothing to exhaust. The court also held the denominational documents were religious in part but not as to governance and the trial court’s action was least restrictive of free exercise in order to achieve the state’s compelling interest in regulating property ownership.

Local church rebellions against denominational authorities usually end poorly. Leaving and starting a new church is usually cheaper and something the denomination cannot impair. An attempt to retain or usurp the church property and other assets is usually the true motivation for the refusal to simply depart. Local churches that plan their departures carefully will leave an empty church building with a mortgage for the denomination to financially address. The departed local church will often be the only interested purchaser if the planning has included accumulation of sufficient capital to obtain financing and purchase anything.

CHURCH SEXUAL MISCONDUCT INVESTIGATIONS

Private internal investigations and hearings held by churches in governance of the conduct of their members that are not made public, although the outcome in some limited respect might be made public, have historically been shielded by the Ecclesiastical Abstention Doctrine. State law tort claims and state and federal employment laws have been restricted from intrusion in church governance. The manner in which the hearing or investigation is conducted, as long as its internal, is usually unknown by anyone other than the participants.

In Williams v Kingdom Hall of Jehovah’s Witnesses, Slip Op., (Utah App. 2019), the alleged victim of sexual misconduct sued the church alleging that the hearing conducted about her conduct was tortious because of the manner in which it was conducted. The hearing was conducted to determine if she was a consenting participant in the sexual event. At the time of the event she was a minor. She attended the hearing with her parents. She alleged a recording (apparently audio only) of several hours duration, surreptitiously made and then produced to the church leadership by the alleged wrongdoer, was played at the hearing. During the church hearing, though she admitted she was free to leave, the Plaintiff alleged she cried and protested the playing of the recording. She claimed she could not leave the hearing because she feared she would be summarily “disfellowshipped.” At various points in the recording, playback was paused so she could be questioned about her consent. She claimed during the church hearing she was “crying and physically quivering.” The trial court dismissed the lawsuit and the appellate court affirmed.

The Utah appellate court seemed to rely on the Lemon test. Lemon v Kurtzman, 403 US 602, 612 (1971). “This test requires the government action “(1) must have a secular legislative purpose, (2) must neither advance nor inhibit religion, and (3) must not foster an excessive government entanglement with religion.” Id. (quotation simplified).” The third element of the test was dispositive to the Utah appellate court. The Utah appellate court characterized the Plaintiff’s claim as asking “the factfinder to interpret the “outrageousness” of the Church’s conduct in investigating her alleged sins.”

If the Plaintiff was required to be a witness against the alleged wrongdoer in a criminal or civil proceeding, the Plaintiff would have been cross–examined. The recording would probably have been made part of the public record even if the Plaintiff was not directly confronted with the contents of the recording. In a civil tort proceeding, there is less doubt about whether the victim would have been cross–examined using the recording. The recording was reportedly several hours in length. Thus, while the conduct of the internal church hearing might seem harsh, it might be no different than either a criminal court or civil court proceeding had there been either or both.

Internal church investigations will not typically be reviewed by courts under any theory as long as there is no public revelation of the hearing or investigation. The outcome should be carefully reported to congregations. Church leaders are typically unpaid non-professionals that need to be educated about such matters in advance. This may include their spouses. A church may wish to engage counsel to help make decisions about public disclosures. Public disclosures are those made available to non-members. Churches that do not have non-public worship services, for example, should not be reporting such things at worship services.