A civil court will only apply Neutral Principles of Law to a dispute if the court holds that the court will not become entangled in ecclesiastical issues. If the court holds there could be entanglement, then a court will not proceed by invoking the Ecclesiastical Abstention Doctrine. Merely because a church claimed there would be entanglement will not make the defense viable. The court must agree.
In Russian Orthodox Convent v Sukharevskaya, 2018 NY Slip Op 08167 (NY App. 2018), the Defendant Nun claimed one of the convent priests was engaged in sexual misconduct. Her allegation did not find favorable review and the ruling bishops directed her to vacate the convent. The Defendant Nun refused to vacate and an ecclesiastical court disciplined her by making her ineligible to wear the apparel of a nun or receive communion for two years. However, this did not silence her and she renewed her complaint about the conduct of the priest. An ecclesiastical court permanently defrocked her and ordered her to vacate. She refused and the convent sued to evict her. In defense of the lawsuit, she claimed the ecclesiastical court was attempting to silence her. The trial court held the nun stated an equitable defense to the eviction and dismissed the eviction. The convent appealed the decision. The appellate court affirmed the trial court on Ecclesiastical Abstention Doctrine grounds holding that to determine whether the eviction was justified would require the court to determine if the defrocking of the nun was in retaliation for whistleblowing.
Generally, a court will find that ownership and possession of church property is subject to Neutral Principles of Law and decide the issue. But, in the rare event the ownership or possession of church property cannot be decided without deciding an ecclesiastical issue, the court will leave it where it finds it. The church and the adverse claimant could literally have to wait for the other to die or compromise, no matter how long that might take.
Many investors troll tax auctions conducted by city, county, state or federal taxing authorities. Because the properties are often distressed or abandoned, the amounts bid typically remain modest. But, the successful bidder gets only a “tax deed,” or whatever that might be called in each state’s practice. Tax deeds are generally enforceable but unlike warranty deeds which can be all but unsaleable and insured, tax deeds can be set aside in a few cases. Buying a church property at tax auction, therefore, may or may not be “final.”
In Spiritlove Ministries v Blessed Peace Church, Slip Op. (Mich. App. 2018), the church property was abandoned by a predecessor owner that was a denominational church. The denomination declared the church property abandoned pursuant to the denominational governance documents and the reversionary clause in the title. The denomination sold the property to the Plaintiff and delivered a quit claim deed. Almost simultaneously, the Defendant discovered the church property and bought it from the taxing authority acquiring a tax deed (or whatever it might be called in Michigan). The Defendant moved onto the property. The Plaintiff church discovered this and asserted its rights and reached an accord with the Defendant church that the Defendant would vacate the property by a date certain. The Defendant acquired a quitclaim deed from the predecessor owner church that had abandoned the property in the first place and reasserted ownership of the property. The Plaintiff sought and obtained from the trial court by summary judgment a quieted title. The court concluded that under the Ecclesiastical Exception Doctrine, the court could not review the denominational decision to declare the property abandoned or the sale of the property to the Plaintiff, making it the enforceable transaction.
Denominational governance documents and reversionary clauses in church property titles remain enforceable. In obtaining a church property by purchase, or in any other way including by gift, these documents must be inspected. Claims the documents are lost or unavailable should not be relied upon. Usually, the documents are in the public record or someone’s attic, because they always seem to turn up. While a tax auction can be a wonderful investment, certain caution must accompany the investment. If due diligence prior to the purchase cannot be completed it should be immediately after. Easy sounding solutions to title problems rarely are either, easy or solutions.
Negligent hiring and negligent supervision claims arise when an employer is on actual notice, or by reasonable minimum inquiry should have been, that the employee represents a risk of harm. In the church setting, that risk is almost always sexually vulnerable teenagers or children in general. A church will generally not be held liable for the actions of a rogue employee absent actual notice of the risk. Generally, that actual notice would include a prior bad act or an unresolved allegation of a prior bad act. It is often amazing how trusting and naïve church leadership can be in such matters. Platitudes about forgiveness and redemption are not defenses. Only very extensive proof of rehabilitation after a prior bad act, proof of repentance in the parlance of some, might be a defense. However, there are many that believe, with or without scientific support, that from a prior bad act of sexual misconduct by an adult with a child (anyone below the age of lawful consent) there is no coming back. Some of those people may make it on to a jury or even the bench.
In Bourque v Roman Catholic Diocese of Charlotte, NC, Slip Op. (NC App. 2018), the church was accused of negligent hiring and negligent supervision of a seminarian that acted as a youth minister that also allegedly had sexual relations with a fourteen year old parishioner. The sexual misconduct allegedly continued after the seminarian left the seminary and was taken in by the family of the victim while the seminarian developed a new life path. The reason for departure from the seminary is not reported. Clearly, consent was not an issue because the fourteen year old could not consent and was raped if the sexual conduct occurred as alleged. The church appealed the refusal of the trial court to dismiss the case on Ecclesiastical Exception grounds. The appellate court affirmed the trial court and held that neutral principles of law governed the claim of negligent supervision. If the church was on actual notice of the risk represented by the alleged wrongdoer, what the church knew was not detailed in the opinion, it could be liable. The appellate court, however, did order dismissal of the negligent hiring claim if it was based on a failure to train.
Attempting to terminate a lawsuit on a motion to dismiss in most jurisdictions is an uphill slog at best. In most jurisdictions, motions to dismiss are strictly limited as to tort claims. Negligent hiring claims and negligent supervision claims will not be viable as to ministry performance issues but will likely be viable as to sexual molestation claims. Too many churches still fail to be wary about the issue.
Immigration law in the United States is not generally within the scope of this website and not within the expertise of the author. Nevertheless, church and para-church organizations are often embroiled in immigration law problems, especially in the border states. However, even in non-border states the issue comes up. Most church lawyers in most places have seen recurrent immigration problems. The problems involving only church members are problematic because the resources are not available to engage counsel. But, church and para-church organizations that have immigration issues are usually able to deploy sufficient resources and may be motivated to do so. The problems encountered usually involve the religious visa (“R-1 visa”) or the religious worker petition (“I-360 petition.”) See, Religious Freedom and Restoration Act of 1993 §3, 42 U.S.C. § 2000bb-1 (2006) (“RFRA”). For example, if a denomination or organization of churches funds mission work outside the United States, it may occasionally want in person reports made to member churches on the work from the foreign citizen missionaries themselves. But, the federal government has in the past declined R-1 visas or I-360 petitions if there is inadequate assurance the foreign citizen missionary will leave the United States upon expiration of the visa or petition.
In O Centro Espirita v Homeland Security, Memorandum and Order (NM 2018) the federal trial court granted an injunction against Homeland Security for denying an R-1 visa because the applicant, a foreign citizen minister, was not compensated by the para-church organization. The federal government was using compensation as the dividing line between lay church members and actual religious workers. But, the para-church organization in question was part of a religious group that did not permit compensation of its ministers. Indeed, the same issue was litigated by the same para-church organization in 2010 before the same court. Pursuant to the resolution of the 2010 case, the Department of Justice appointed one of its civil rights attorneys to act as a “contact point” for this particular religious group to avoid the issue but for some reason by 2017 that was not working. After the court granted the injunction, the parties settled the case and the 91 page opinion was mostly focused on the award of over $50,000 in attorney fees against the federal government.
For most churches and para-church organizations facing immigration law questions, the only rational answer is an attorney focused on the practice of immigration law. This is not a do it yourself area of the law at this time and may never be because of the rapidity with which the law in the subject changes. Not every case will end in litigation; indeed, that will probably be the rare exception.
The 150th case report on this website is remarkable only in that it evidences further the growth in church litigation subject matter. Legal questions unimaginable a couple of decades ago for churches are now routine. Abatement seems unlikely.
Church marketing and branding has become sufficiently commercial that occasionally a church will try to copyright or trademark its name. Even if the name is extra-scriptural (regardless of whether the scriptures are Biblical, Taoist, or Sanskrit), most such words are so generic no copyright or trademark can be obtained. My favorite example of how such a simple principle can go awry is my favorite spice: “Bon Caca.” The name is part of a registered trade mark proving that the United States trade mark registrars do not speak “Cajun.”
In the The Universal Church, Inc. v Toellner, Slip Op. (2nd Cir. 2018), the United States Court of Appeals for the 2nd Circuit affirmed a federal trial court summary judgment by Summary Order. The Plaintiff sued a para-church organization called “Universal Life Church” for copyright and trademark infringement as well as cybersquatting. Cybersquating is prohibited by statute. 15 USC §1125. The Plaintiff’s name, “Universal Church” was held to be a generic term. In addition to legal authorities, the Court relied on the Oxford English Dictionary. The Court also held that Plaintiff, an actual Pentecostal Church (the opinion did not specify whether this was a doctrinal statement or if there was a denominational affiliation), was not facing unfair competition because the Defendant para-church organization only provided free online ordination and did not conduct church services anywhere except for occasional mass weddings. The Plaintiff had been defending its copyright and trademark by issuing “cease and desist” letters to alleged infringers but the Court held that did not matter. The Plaintiff claimed 30,000 members and 800,000 television viewers but the Court held that did not prove a claim that the “relevant public” associated the name with the Plaintiff. Both the Plaintiff and the Defendant provided reports from “expert witnesses” regarding usage of the phrase “universal church” in the history of Christendom. One must wonder if the word “catholic” was in either report.
There is nothing more dangerous in civil commercial litigation than a litigant that cannot afford to pay a judgment but can afford a lawyer. The Plaintiff church probably selected the Defendant to sue based on the faulty assumption that in a battle of offering plates, the Plaintiff’s would be larger to a crushing extent. The better approach, rather than expensive unsuccessful litigation, might have been to spend the same money buying the Defendant, especially its website.
As churches have grown both in membership and accumulation of assets, both become the subject of considerable interest to those looking to benefit from them. It is easier to rocket up the numbers of members in a church by draining nearby churches. It is easier to build personal wealth or the wealth of a church formed from a split if the assets of another or predecessor church can simply be absorbed or liquidated. Thus, churches are targets. Because of their volunteer nature, non-denominational churches are especially at risk.
In International Society of Krishna v Britten, 2018 NY Slip Op 32787 (King County, NY 2018), the trial court stopped the $58,000,000 sale of church property by a faction of the church board. The organizational documents of the denomination required that board members could be removed by the denomination. The organizational documents also required denominational consent to sale of church property. The Court held that there was no ecclesiastical issue intertwined with the corporate law applicable through the organizational documents of the denomination. Thus, the faction of the local church board that sought sale of the church property was removable by the denomination and written consent of the sale from the denomination could be required.
Whether a local church board has gone rogue or is well intended does not matter to a Court if neutral organizational documents control or allow exertion of denominational control. Even a well intended church board that might in desperation resort to corporate usurpation will be unable to overcome organizational documents. However, non-denominational churches that get too comfortable in sloppy documentation of membership lists, church board governance minutes and reports or lack either will have only their organizational documents, if they can be identified, to fall back upon to fend off usurpation from within or without in expensive and avoidable litigation. Good stewardship includes these things as much as lawn care and coats of paint.
Denominational churches often are not only members of the denomination but through the organizational documents of the church, the denomination, and even a filed real estate title the congregation does not have the power to withdraw their property or assets from the denomination. The rationale for this is that denominational members are believed to trust the denomination to protect their offerings, which are turned into property and assets at the local level, even after the member has died or moved to another local church.
In Ohio District Council of the Assemblies of God v Speelman, 2018 Ohio 4388, Slip Op., (Ohio App. 12th, 2018), declining local church membership caused the remnant of the local congregation to seek a merger with another denominational group and to “disaffiliate” with the Plaintiff. The local church joined the Plaintiff denomination in 1972. The Pastor Defendant was paid $200 per week during his tenure from 2006 to 2011 but he could not arrest the decline in church attendance although his efforts were briefly summarized by the Court and seemed genuine. The trial court after a bench trial (a trial without a jury) ruled in favor of the Pastor Defendant holding the “disaffiliation” and merger with another denominational group was lawful. The appellate court reversed and ordered the trial court to consider organizational documents of the denomination and the local church. The local church title to property did not contain a reservation of the denomination’s ownership interest. On remand, the trial court entered judgement in favor of the Plaintiff denomination but on the damages theories only ordered the property and assets, an 18,000 square foot facility and equipment, returned and only $100 in monetary damages. The Plaintiff denomination appealed the damages award and the appellate court ordered the trial court to assess reasonable monetary damages for loss of use of the facility and affirmed the ordered return of property and assets. Punitive damages, though sought by the denomination, were not assessed because the Pastor Defendant admitted he had assumed the local church denominational affiliation was “voluntary” and terminable at will and did not read the local church organizational documents. Thus, the court found no “malice” with which to support an award of punitive damages.
Local church titles often do not contain reversionary clauses because lending institutions do not believe by foreclosure they can recover clear title against such clauses. Denominations do not require such clauses because local churches need mortgages. This case, as in most, a reversionary clause in the title does not matter. The organizational documents of the local church and denomination control in most cases. Even in cases where the local church documents are unavailable or otherwise murky, the denominational organizational documents will usually be sufficient to force reversion of the property and assets to the denomination. Monetary damages judgments may also be possible and the losing local church leadership should not count on mercy from the denomination bent on recouping litigation costs the denomination often feels were unnecessarily expended. Indeed, if the local church leadership acted with intent or maliciously, punitive damages might be awarded.