Denominational authority over a local congregation or its property is rarely extinguishable at the local level. If it is severable, the process is likely long and arduous. The process often depends upon unilateral agreement by the denomination which is historically unlikely to be obtained for any reason. Indeed, it is so unlikely the better plan is simply to develop external resources and then quietly exit the denominational local church, leaving behind a shell.
In Cedar Grove Baptist Church v Barnham, Slip Op. (Unpublished) (NJ App Div., 2019), the pastor advised the denomination he was leaving the denomination and taking the church with him. Apparently, however, his plan was not known, and later not supported, by the church he served. Indeed, in the ensuing battle over the local church property, the church leadership appointed a new pastor and then sued to enjoin the former pastor from control or presence on the church property. The trial court granted the injunction and the appellate court affirmed.
While instinctively church members think of the local church and its property as “theirs” and not the denomination’s property, this is rarely totally true. If a church has been a member of a denomination for many decades generations of the faithful have contributed to its existence. While the current generation may disdain the denominational roots, the denomination speaks for the generations that went before that now have no other voice. However that may be, denominations that themselves “go rogue” or no longer meet the need of a particular local church cannot stop a group of members from leaving and organizing under a different banner using their own resources. While growth by fission is painful, it is not illegal.
While placing a church under external supervision is a rare exercise in judicial power, it is not unheard of. We have reported on imposition of Special Masters, especially to determine membership or supervise elections. Mediators and Special Masters are not always different species. Also, mediators sometimes do not use shuttle diplomacy between striving factions but rather impose procedures, as do sometimes Special Masters, so that the resolution process may advance. If a church split is bad enough, and cannot be resolved merely by reviewing organizational documents, then a mediator or Special Master may be appointed.
In Eskridge v Peacock, Slip Op. (Miss. App. 2018), after the death of a pastor, two striving factions emerged each attempting to appoint the next pastor. There appeared to also be a fracture in recognized church leadership that made congregational rule either a stalemate or problematic. To resolve the impasse, the trial court appointed a mediator with instructions to conduct a congregational election. The mediator appointed was the denominational authority to which the church appeared to belong. Indeed, the court had to take testimony to confirm the church was part of the denomination appointed to mediate. A new pastor was elected under the supervision of the mediator but the losing faction appealed. The appellate court held that appointment of a mediator to supervise the congregational vote and ordering enforcement of the result, but not otherwise dictating the choice of pastor, did not entangle the trial court in ecclesiastical matters so the trial court was affirmed.
Churches may wish to contemplate in their bylaws mandating the appointment of an identified mediator in to be used in the event of court action. Possible mediators could include denominational authority, bible college faculty, or a particular accounting or lawfirm. Indeed, the language of the appointment could also include mandatory pre-litigation requirements that such a process be undertaken. The language should also specify the powers of the mediator or Special Master. A funding mechanism should also be spelled out. Demanding the challenger pay half or all of the cost may keep out all but serious challengers.
Mad Magazine has for many years published a comic strip entitled “Spy v. Spy.” It has since spread to YouTube videos and a video game. While that comic strip may have been inspired in 1961 by the Cold War, other famous small conflicts included the Hatfields and McCoys, which also spawned a US Supreme Court case in the 19th century and various dramatic interpretations. Like all such feuds, the factual history of any feud is winding and complex and not nearly as funny as “Spy v. Spy.” Unraveling the motives behind the ongoing feud is usually impossible.
In Fidelity National Title Insurance Company v New Haven Financial, Inc., Slip Op. (Cal. App. 2018), the death of the founding pastor in 2005 resulted in a power struggle between two rivals for the pastorate of the church. Several lawsuits resulted as each side in turn sought judicial relief against the other. Meanwhile, the denominational authority refused to accept the election of first one of the rivals and then the other. Further, one of the courts to hear one of the cases held the denominational authority was the only authority that could oversee an election and needed to do so because the church’s membership records were possibly unreliable. For no reason that was reported in the opinion, the denomination did not do so and the feuding continued in court. Eventually, one rival won a final judgment in a prior case. During the litigation, the rival that was later defeated in court, representing himself as pastor of the church, obtained a loan for $150,000 using church property as collateral. The foreclosure action was defeated by the winning rival and the title company had to pay the claim. The title company sought reparations from the rival, by then the losing rival, that took out the loan. The title company also sued the family of the defeated rival because the money was allegedly distributed to family members. The defeated rival filed a cross claim against the winning rival. The trial court dismissed the cross claim holding the prior ruling against the defeated rival barred further litigation of the issue by not only the defeated rival, but “parties in privity,” which included the family member that appealed in this case.
While church splits are not common enough to cause church members to even envision the possibility, church leaders should. Church and denominational documents should envision succession plans, election procedures and oversight, and membership roles should actually be kept by churches. Denominations should inspect membership lists, or require their submission at reasonable intervals, or at least require at reasonable intervals a certification in writing from the church that there is an actual membership list maintained. Denominations and church leaders may have to do more than pray for peace, they may have to impose it in extreme situations.
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.