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.
Determining the ownership of church property requires in denominational churches more than a copy of the deed. Likewise, determining who has authorization to act upon behalf of the property owner, to transfer or encumber the ownership interest, may require inquiry into governing documents from a denomination and the local church. This is especially true when the attempted transfer of ownership arises from a dissident faction
In Romanian Orthodox Episcopate v Estate of Carstea, Slip Op. (Mich. App. 2022), the trial court determined that application of Neutral Principles of Law, enforcing the denominational governance documents, required quieting title in the denomination. The appellate court affirmed the decision, but held Neutral Principles of Law did not apply because the dissident group, led by a disciplined and laicized former priest, did not have authority to transfer title to the new church corporation. The denominational governing documents allegedly prohibited “defecting parishes from retaining church property.” Therefore, even if the local church sought disaffiliation, the local church did not have right, title or interest in the church property with which to transfer the property to the new church corporation.
Generally, a local church in good standing in its denomination will have authority to transfer property or mortgage its property in usual and customary business transactions. A written waiver by the denomination may also be required by a lender. Even in usual and customary business transactions, the local church should confer with the denomination consistent with the governing documents. Almost never, however, will a defecting congregation be able to keep its church property if the denominational governance documents prohibit it.
The concept of Neutral Principles of Law is founded on the idea that certain documents are not so ecclesiastical in their composition, purpose and usage that courts can resolve certain church related disputes. Typically, those documents are property deeds, church corporate organizational documents required or authorized by a state, and denominational organizational documents. In denominational procedure and policy manuals and handbooks in which the operational rules of the organization are typically published, there may be secular sections that are removed from ecclesiastical issues.
In Re Texas Conference of Seventh Day Adventists, Slip Op. (Tex. Civ. App. 2nd 2022), the appellate court “allowed” the trial court to dismiss the case for lack of jurisdiction. Texas views the Ecclesiastical Abstention Doctrine as a jurisdictional limitation on the authority and power of Courts to hear cases involving churches. The denomination forced the pastor after a quarter century of service to retire. He continued to serve the local church for five more years. The local church during those years gathered money for the pastor’s pay and transferred the cash to the denomination so the denomination could exercise the payroll function. The denomination terminated the pastor at the end of the five years. The local church did not resist and prepared to wind down the payroll fund and pay the pastor the remaining balance. The denomination ordered the remaining balance transferred to the denomination but paid the pastor nothing further. The local church turned to its savings account to obtain funds to continue operating. The denomination prevented withdrawals from the savings account. The denomination changed the locks on the church property and excluded the local church leaders and members from gathering at the church property. The local church sued the denomination and alleged the denomination violated the secular provisions in the denominational manual that placed ownership of the funds taken and the church property in the ownership of the local church. The appellate court held that the Ecclesiastical Abstention Doctrine does not allow secular issues entangled with ecclesiastical issues, such as church governance and authority, to be heard in Texas courts. The trial court was permitted to dismiss the case.
The opinion does not explain how the denomination came to control the savings account otherwise held by the local church. The denomination apparently ordered the local church financial officer to transfer the payroll fund to the denomination. Therefore, implicitly, the denominational control of the finances of the local church predated the dispute. Local churches that wish to retain some financial autonomy must open their bank accounts in their own ownership and update authorizations periodically. Denominations that wish to avoid local church financial autonomy must require all local church funds be deposited in denominational sweep accounts. The denomination can fund a petty cash account at the local church for basic operational necessities.
In the changing denominational and doctrinal environments in which local churches and denominations find themselves, the ability of local churches to leave the denomination with their property intact is problematic at best. Organizational and governance documents of both denominations and local churches which were typically drafted in a past era, and rarely or never updated, generally drive the loss of local church property to the denomination. It seems less often, but property ownership documents like a deed, especially older ones, often buttress the organizational documents.
In Hebron Community Methodist Church v Wisconsin Conference Board, Opinion and Order (WD Wisc. 2022), the federal court dismissed the federal constitutional challenge by a local church against a Wisconsin statute that expressly preserved the ownership interest of the denomination in the event the local church “disaffiliated.” The argument, which may have been correct, was that the statute violated the Establishment Clause of the First Amendment. However, the federal trial court never reached the constitutional challenge because the local church could not overcome the traditional Neutral Principles of Law analysis adopted in Jones v Wolf, 443 US 595 (1979). The Jones case held “courts may look at the “language of the deeds, the terms of the local church charters, the state statutes governing the holding of church property”” and the provisions therein. In the reported case, the 1855 deed and the 1963 deed recited the property was owned by the denomination. The local church’s articles of incorporation adopted in 1963 stated the local church would “support the doctrine, and it, and all its property, both real and personal, shall be subject to the laws, usages, and ministerial appointments of the Methodist Church.” The denominational documents indicated the local church held its property in trust for the denomination. The local church amended its articles of incorporation a month after filing the lawsuit against the denomination to quiet title. No organizational or other document authorized “disaffiliation” by merely unilaterally amending articles of incorporation. The trial court held that because all of the Neutral Principles of Law markers, deeds and organizational documents, pointed the same way, and against unfettered ownership of the property by the local church there was no reason to reach the constitutional challenge of the statute.
These cases almost uniformly counsel against the effort of the local church to try to keep its property. The local church would be better off to borrow against the property if it is paid off and default, or simply hand a mortgaged property over to the denomination, and use the resources otherwise to be consumed in litigation to start anew. If the property value and the mortgage are not too disparate, the local church might be able to negotiate a different outcome because there may be little for the denomination to gain if equity is thin. While there might seem to be a lack of morality in the foregoing suggestions, and some might blanche at them, the only other alternative is simply to abandon property to the denomination and start anew. If there is a “moral” reason for the “disaffiliation,” it might have such a cost.