Category: Uncategorized

FEAR HIGHER THAN A FEVER

“The constitutional benchmark is governmental neutrality, not governmental avoidance of bigotry.” That is the standard by which laws, regulations, executive orders, and ordinances, even in a pandemic, will be judged by courts enforcing the First Amendment of the Constitution. Neutral law that also happens to govern churches may be enforceable. “The right to practice religion freely does not include liberty to expose the community . . . to communicable disease or the latter to ill health or death.” Prince v Massachusetts, 321 US 158, 166-67 (1944).

In Berean Baptist Church v Governor Roy Cooper, Order (ED NC ED 2020), the federal trial court in North Carolina was asked by a church to enjoin enforcement of the governor’s restrictions on religious gatherings. While well meaning, the restrictions required church services to be held outdoors unless it was “impossible” to do so or unless inside worship was required by “beliefs.” Funerals could host fifty persons, but worship could only host ten persons even though churches were deemed “essential.” A well-meaning law enforcement officer would be required to make a spot determination of whether an outdoor worship service was “impossible” or whether “beliefs” legitimately required indoor worship. (The example that came to mind was a baptism by immersion when no body of water was available on the parking lot.) The governor’s order was enforceable by criminal misdemeanor charges. The trial court enjoined enforcement for fourteen days and scheduled a hearing for a preliminary injunction. “There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment.”

The Constitutional error imbedded in the governor’s order was the attempt to fashion an order specifically for religious activities. But, a general order applicable to every type of gathering would have closed “shopping malls” and transportation hubs so the governor of North Carolina opted to try and segregate various types of gatherings apparently by their perceived importance. The perception of importance may or may not have been conscious or intentional.

While no one would recommend intentional violation of a government order in an emergency while fears are running higher than the fevers to be prevented, many of the executive orders soon came to be viewed like the 55mph national speed limit on an interstate highway came to be viewed, a polite suggestion and nothing more, such that law enforcement could no longer enforce it. At this writing, many orders are expiring on their own temporal limitations. Thus, most churches will be able to worship as they see fit using the common sense, given by God just as was faith, to protect their people.

CHURCH PARKING LOT SERVICES

The most frequent question we have fielded from churches has been whether the parking lot service if conducted consistent with CDC and state guidelines is imperiled if a set of bathrooms is open and available. That question remains to be answered by any court. But, indirectly it may have been considered.

Please note that in this post we are departing from our normal practice of reporting court opinions that are more or less dispositive of the issues before the court.

In Temple Baptist Church v City of Greenville (ND Miss., No. CIV-2020-64), the United States Department of Justice (“DOJ”) filed a Statement of Interest in support of the church Plaintiff. Temple Baptist was alleged by the Plaintiff, and reiterated by the DOJ, to be a small church that did not have a website, did not have the ability to stream services, and had a membership that did not have universal access to streamed material. Temple held a parking lot worship service on Easter Sunday and used a lower powered FM transmitter to reach cars parked in the church parking lot. The church required social distancing car spacing and rolled up windows allowing no one to exit their vehicles. Mississippi declared churches to be essential businesses. The City of Greenville, however, enacted their own shelter in place order banning church parking lot services and allegedly declaring churches to be non-essential. The DOJ pointed out the enactment was directed at churches and ignored the contradiction in the city shelter in place order that allowed drive through restaurant patrons to sit in their cars in line with the windows rolled down. City police showed up at the church parking lot Easter service, knocked on windows, demanded driver’s licenses, and ticketed the attendees at $500 apiece.

There is no certainty the church will prevail even with the support of the DOJ and the protection of the First Amendment. In times of plague, epidemic and pandemic, government has extraordinary powers to temporarily curtail freedom of movement and association. However, most of the opinions on the subject date from the eras of yellow fever, smallpox and polio. The more recent opinions arose during the Ebola virus epidemic even though in the United States there were very few. However, allowing people to get out of their car to make grocery and liquor purchases, or to roll their window down to receive them, certainly seems to indicate stricter controls on church parking lot services are constitutionally impermissible.

CHURCH BUILDINGS AS HISTORICAL ICONS

When venerable and historically recognizable church buildings are destroyed there is a profound sense of loss. While few are listed, some church buildings are on the National Register. Other types of buildings on the National Register are protected but church buildings may not be. Also, just because preservation seems like a good idea does not mean enough money to do so will follow.

In Friends to Restore St. Mary’s, LLC v Church of Saint Mary, Melrose, Slip Op. (Minn. App. 2019), the church building was sufficiently significant “historically” that it was accepted on the National Register. However, that did not prevent an arsonist from gutting the interior of the building. The archdiocese ultimately decided to demolish the entire building because, even if restored, it would no longer be a “functional” church building by modern worship standards. The Plaintiff sought an injunction to prevent demolition of the building. The injunction was denied by the trial court and the appellate court because adjudication of the claim was precluded by the ecclesiastical abstention doctrine. The appellate court held that the trial court could not evaluate whether “there are feasible and prudent alternatives to destroying the church building” under Neutral Principles of Law without invading ecclesiastical decisions. The argument the archdiocese did not have the authority to order demolition required an interpretation of Canon Law. The determination of whether an alternative use would be “profane” or “sordid” under Canon Law could not be made on other than ecclesiastical grounds.

Unstated in the opinion but likely at the heart of the problem for those wishing to preserve a historically significant building gutted by an arsonist was insufficient insurance coverage or other funding. A special policy may have been needed to create the resources to rebuild the church interior to its pre-fire look, much less to remodel the interior for modern worship needs. A typical fire loss policy would have been inadequate for what would otherwise be a total loss. But, maintaining the commitment to pay for such an extra or special policy year in and year out would have required an extraordinary commitment. Most churches simply cannot afford it. Too, unstated, was the financial burden on offering plates of restoring an antique, or obsolete, church building, which most courts are not interested in trying to enforce.

LITIGATION ADDICTION REACHES CHURCH LITIGATION

The pro se litigation wave is threatening to swamp courts at all levels. The idea that people can successfully represent themselves has arisen most probably from two sources: (1) the influence of televised small claims cases or family law matters in which a “judge” from the “Judge Judy” model hears arguments and “testimony” from unrepresented litigants ; (2) the use of the internet as a research resource. While the latter observation will seem hypocritical coming from a blog reporting about litigation as a type of research resource, this blog like most other of this genre are useful only for general interest, issue identification so that legal services may be more wisely purchased, and for lawyers looking for details in what otherwise for that lawyer might be a new niche issue. No internet source can substitute for actual legal advice from a qualified practitioner or equip a non-lawyer for actual advocacy.

Pro se litigants in recent years have also proliferated because fueled by the foregoing, they become obsessed with winning the legal “lottery.” Because of the multiplicity of factors that can influence a judicial outcome, to the uninitiated it may seem like a game of chance. Just like “gambling addiction,” “litigation addiction” is identifiable by its symptoms. These symptoms include: (1) inability to accept a final judicial ruling; (2) inability to differentiate the impersonal judicial outcome from the personal self-interest; (3) gratification not from winning, which they almost never do, but from the vexatious harassment imposed on as many other people as possible; and (4) unwillingness to accept real legal advice from a qualified practitioner. Thus, pro se litigants exhibiting “litigation addiction” symptoms will often file new lawsuits over and over on the same issue long ago lost, will often file documents they have personally authored even when they have hired a lawyer to represent them, will often fire lawyer after lawyer because the lawyers would not participate in vexatious harassment, and in the worst cases will not stop wasting everyone’s time and money even when monetarily sanctioned. For the more extreme cases, being jailed for contempt of court, either from out bursts in court or more likely from violating filing injunctions, may be the only cure available to victims and the courts.

In Tompkins v Lifeway Christian Resources, 2019 WL 3763946 (10th Cir. 2019), the appellate court affirmed the federal trial court’s dismissal of the case and awarded monetary sanctions. This was the second appeal the 10th Circuit heard on the matter, the first being heard in 2016. In the trial court’s second case, which was the subject of the second appeal, second lawsuit was brought against many of the same defendants. It arose from the sale of a large piece of property that was the subject of the first lawsuit. While the pro se Plaintiffs may have made new arguments in the second case, none of the arguments were sufficient to constitute a valid collateral attack on the first judgment against them.

CHURCH TRADEMARK DISPUTES

Rare are church trademark disputes. The reason is that most marks selected by churches as marketing logos are generic to the religious tradition represented. However, church trademarks are not impossible and may in the future be more prevalent, as well as litigated, as the struggle for separate identity in electronic media deepens. After all, churches are moving away from brick and mortar locations solely and trying to become “virtual,” too. To be successful economic church models require marketing, and marketing invariably involves logos for identification.

In Holy Spirit Association v World Peace and Unification Sanctuary, Memorandum Opinion, United States District Court, Middle District of Pennsylvania, July 22, 2019, the federal trial court before it had motions to dismiss the cases on the pleadings. The motions were overruled so the case will continue through discovery and trial if it is not otherwise settled. Trademark cases are often settled by licensing agreements. Trademark disputes are brought under the federal Lanham Act, 15 USC §1114, et. seq. In this case, the Plaintiff registered what it called the Twelve Gates Mark. The Defendant called it the Tongil Symbol. The Plaintiff registered it as the trademark of its church and the Defendant claimed it was a mark created by the founder of the tradition or denomination. Of course, that meant both churches were in the same tradition or denomination, or at least originally so, for their dispute was over a symbol both claimed to have been created by the founder of the tradition or denomination, Reverend Sun Myung Moon. The federal court held that the dispute could be resolved using the Neutral Principles of Law arising around trademarks. From the opinion’s recitation of the positions of the parties in their preliminary pleadings, the central issue will be whether the symbol was “generic,” a Lanham Act statutory classification similar to the meaning of the word in the common tongue, or was, indeed, actually created only for the Plaintiff local church.

Symbols used by churches are generally “generic” arising from their history, tradition or denomination. If the symbol appears on grave markers, church buildings or historically verifiable documents the likelihood it will be “generic” seems insurmountable. Indeed, most come from computer clip art sold commercially. Only a trademark made by a local or contract artist are likely to survive, and then only if the trademark is truly original and not merely a reinterpretation of a historical image used by the tradition or denomination.

NON-PROPERTY CHURCH SPLITS

When a church fight spills into the street, and by the time the matter reaches court, usually all that is left is the dispute over control of the church assets and especially its land. Buildings and land have most of the secular value. However, if a church split reaches court before the spiritual issues are stripped away, a court is unlikely to intervene.

In the Texas Court of Appeals, 7th District, the case of In Re Jorge Torres and Templo Bautista, Slip Op. (Tex. Civ. App. 7th, 2019) is unusual because none of the allegations concerned the church property. The trial court originally granted a Plea to the Jurisdiction on Ecclesiastical Abstention Doctrine grounds, dismissing the case, but later reconsidered the decision to dismiss. That might have led to discovery through document demands and depositions. It might have ended by summary judgment. Or, it might have led to an actual trial before the bench or a jury. However, the case was taken by one party to the appellate level seeking a writ of mandamus to order the trial court to reinstate its original decision dismissing the case. The appellate court granted the writ ordering the trial court to dismiss the case. The appellate court noted that although the litigants alluded to the church property, all their claims were regarding alleged impropriety in selecting a pastor and excluding dissenting members. Such issues are almost uniformly beyond resolution by a court because of the entanglement with ecclesiastical issues that is nearly always unavoidable.

As we have often seen in these reports, a church fighting over who should lead it might still be a living church but a church salvaging its assets is very far gone. Litigation is in most cases only symptomatic of a church salvage operation, regardless of which side might be in the “right.” Factional church litigation is usually driven by emotions or motives that an outsider cannot truly appreciate, much like most family law cases. However, if a cooler head can prevail, before such litigation is paid for with offering dollars, a clinical review of the likely outcomes and their respective cost effectiveness should be conducted.

CHURCH SPLIT FRAUD ALLEGATIONS

In order to plead fraud in most jurisdictions, the fraud must be set forth in the pleadings with particularity. Generally, conclusory allegations will not get through the pleading stage. Sloppy court systems may allow discovery to be conducted on conclusory allegations but that now seems to be the exception rather than the rule. If money was improperly taken, then the amounts, dates, persons and means should be set forth specifically. Rumors will not typically get it done. Many churches, especially small and larger independent ones, will tend toward loose financial practices even in the absence of culpable impropriety that does not amount to fraud. A broken promise is by itself not a fraud. “Scheming” is both legal and illegal so by itself amounts to nothing in legal terms.

In Ambellu v Ethiopian Orthodox Church, Memorandum Opinion (D DC, 2019), the federal trial court dismissed the lawsuit because the allegation requirements of the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”) were not met. As a practical matter, RICO cases are very difficult to pursue because the allegation and proof standards are not easily met. RICO was designed to address organized crime, not church splits and not the occasional defalcation. Likely, the Plaintiffs in this case were trying to engage federal court jurisdiction by using a federal statute like RICO because of some perceived advantage not thought to be available in the DC Superior Court. Federal judges are not typically willing to tolerate loose pleading practices that might escape the notice of less well funded and understaffed state court systems. The Plaintiffs, indeed, alleged the Defendants publicly proclaimed their intention to take over the church in community radio broadcasts. Actions out in the open are usually harder to qualify as fraud because fraud usually only succeeds because some or all of the actions are “done in a corner.” Even a fraudulent act or series of acts in a local church will not likely threaten no future criminal conduct or enterprise as required to make a RICO claim. The allegation that church board elections were not conducted might be addressed pursuant to the non-profit corporations statute. But, as a state level legal issue, the federal court cannot be forced to consider it if there is no basis for federal court jurisdiction. That the Plaintiffs were seeking money damages via RICO but not reinstatement of the former church board was specifically noted by the Court. The Court also noted that the right to be a member and to worship at a church is an ecclesiastical issue. The Court also noted that mere financial questions, how the church spent its money, are also ecclesiastical.

If a church split must spill out into the street and into a court, the most likely allegation that will survive, absent actual fraud that can be proven from the start or breach of contract, is that the ownership and control of the property of the church has been brought into question by a violation of the bylaws or the non-profit corporation statute. Both can usually be addressed by application of neutral principles and not run afoul of the Ecclesiastical Abstention Doctrine. Indeed, church board members probably have a fiduciary duty to the church corporation that can be enforced. To guard against such problems, a clear set of bylaws should be adopted and preserved.