Category: Uncategorized

INTERNAL CHURCH INVESTIGATIONS

Internal church investigations that involve only church employees and church members may be immune from judicial intrusion. Having stated that generality, no one reading this should for a moment doubt that statement does not apply to child abuse including sexual misconduct with a child. Child abuse is a crime. It is inherently a violent crime. The First Amendment will not shield a violent crime. However, nearly all other internal church investigations, disciplinary actions, and terminations of employment or membership will be shielded by the Ecclesiastical Abstention Doctrine. That will be true in the end whether a jurisdiction treats that First Amendment doctrine as an affirmative defense or a limitation on jurisdiction.

A recent example is the opinion issued in Orr v Fourth Episcopal District African Methodist Episcopal Church, Slip Op. (Ill. App. 2018). The Plaintiff, an employed minister, faced a charge of sexual harassment not involving a child. The internal church investigatory process was halted while the matter was in litigation. As part of the process, the minister was transferred from a church in Illinois to another state. The trial court granted summary judgment on Plaintiff’s defamation theories and the appellate court affirmed. The hierarchical denomination in the case at the time of the allegations was governed by a “Book of Discipline.” The Book of Discipline established a complex system for reporting and internally adjudicating internal sexual harassment claims. The process at the time included a “judicial committee” that operated “like a grand jury,” a “trial committee,” and a “trier of appeals.” The process was confidential and there was no allegation it had not so remained.

The internal investigation will be shielded if it remains internal to the church. “Leaks” are not the issue in this report but could be in some other case. The issue will be “public pronouncements.” Internal announcements will likely be shielded as long as they are made only to leadership or only to actual church members with a need to know. The ruling of the church due process system, no matter how modest or elaborate, may be made public and may be shielded, but the exact care to be taken in implementing a final decision public announcement is not the subject of this report.

CHURCH MERGER LITIGATION

The economic pressures that bring out the purchase, sale and merger of business entities both small and enormous also do the same with churches. Churches are also impacted by the constant drain of members to the latest fads and movements, such as the mega-church complexes of this age. Churches also have life cycles; they are born, they grow, they age out and some die out. While ecumenical churches seem to preserve their outer shell against the ravages of time, nevertheless their congregations go through the same cycles and face the same economic pressures.

In Pure Presbyterian Church v Grace of God Presbyterian Church, Slip Op. (Va. 2018) the Supreme Court of Virginia, affirmed a trial court decision enforcing a merger agreement between two churches. By the time the dissenting group decided to challenge the merger, the merger was well along. Indeed, the opinion implied that the decision to challenge the merger coincided with the attempt of the dissenters to sell their property to a third party before the title transferred to the surviving entity in the merger. The dissenting group argued the Court lacked jurisdiction to hear the dispute under the Ecclesiastical Abstention Doctrine of the First Amendment. Another factor was that the jurisdictional challenge was not pressed until after the adverse jury verdict. While jurisdictional challenges can be made at any time, including on appeal, the psychology of late presentation of the challenge cannot be underestimated. An after thought never has the credibility of a challenge from inception. Be that as it may, the court held the First Amendment did not preclude application of neutral principles of contract law to the merger, even if that had an impact on church governance. The court could verify that the two congregations voted to adopt the merger contract even though that had an impact on church governance. Both could be accomplished to determine the owner of the church property. The dissenters tried to stop the merger enforcement litigation by a bankruptcy filing and automatic stay but, again, were probably too late and the bankruptcy plan was silent as to the merger.

While merging churches often are tempted to move slowly to allow everyone to adjust to the new normal, some members may never adjust. Leaving such minorities opportunities to interfere with or further slow the merger are invitations to expensive legal dramatics. Mergers should be closed on a day certain and all church property re-titled the same day. All bank accounts should be liquidated and closed in the extinguished entity. Indeed, new accounts may be wise in the surviving entity.

STATE AGENCY INVESTIGATIONS – PERMEABLE SEPARATION?

Regulatory investigations of all kinds are unsettling because they are usually conducted in a manner without the due process safeguards found in a court. The right of confrontation is blunted or non-existent. The regulator seems to be the prosecutor and the judge. The common sense of a jury, much less its neutrality, are often perceived as missing. Things outside of the box or the norm tend to make regulators insecure and defensive. Regulators must navigate the shoals of their own too limited budgets and too expansive mission objectives.

In Trinity Christian School v Commission on Human Rights, Slip Op. (Conn. 2018), a church employee filed a discrimination complaint against the church before the state agency. The state agency commenced a proceeding. Presumably, the proceeding was autonomic process and it did not appear from the opinion to be the result of an investigation. The church moved to dismiss the proceeding urging the Ministerial Exception of the First Amendment. The motion was overruled and an appeal to the state trial court resulted in dismissal of the appeal because the Ministerial Exception was deemed to be an affirmative defense and not an immunity. The church returned to the state agency proceeding and submitted a second motion to dismiss based on the state statute that required state burdens on free exercise of religion only when there is a compelling state interest. This second motion was denied both by the regulatory agency and the trial court. The Supreme Court of Connecticut affirmed the trial court holding that the state statue was not a statute of immunity but was a “rule of construction.” Thus, the church was returned to the state regulatory proceeding to assert the Ministerial Exception and to argue with the regulator whether the regulatory mission was a compelling state interest.

Motions to dismiss are an excellent strategy for degrading the ardor of Plaintiffs of limited resources. It is also the only means to weed out implausible claims. In a regulatory proceeding, once that tactic is exhausted, the case must be built with the same eye to creating a record that would be made in court. Indeed, this may be the “trial” and the only “day in court” the church may have. Sometimes this must be done on very short deadlines and without the full discovery tools available in court. Sometimes this must be done in the face of defensive and hostile regulators that are activists for one cause or another. Most regulators, unless they happen to be a member of a church in the same tradition as the church before them, will be completely unfamiliar with church theology or traditions. If the main defense is the Ministerial Exception, then the religious duties of the former employee must be fully documented in excruciating detail. While the expenses mount, the church may have to consider an investigation of the regulators and their history with other churches that have been brought before them. The separate of church from state is a permeable wall when least expected.

CHURCH ZONING WARS – UNPOPULAR MISSIONS

When a church as part of its mission in a community undertakes ministering to the forgotten or the hated, the neighbors might object with sufficient vehemence to invoke municipal machinery. Such legal machinery may be engaged to grind finely using rules with little substantive elucidation making them prone to subjective interpretation. Zoning is a favorite weapon.

In First Lutheran Church v The City of St. Paul, Memorandum Opinion and Order on Defendant’s Motion to Dismiss (DC Minn., 2018), the church noted a homeless “day shelter” lost its location after thirty-three years and offered up its basement for the “day shelter.” The church had many outreach programs to the poor and homeless. The church, to make sure it would not have a problem operating an adult day care program sought a Determination of Similar Use from the city. The city approved the application. The program began to provide day shelter to fifty to sixty homeless persons each day. Some of the program workers, and some of the participants, became members of the church. However, the homeless persons served included some troubled persons that urinated in strange places, were on foot, sleeping outside and publicly intoxicated. The neighbors complained to the city and the city invited them to appeal the Determination of Similar Use, even though the ten day appeal window had expired three months earlier. The city accepted the appeal and the city zoning authority imposed numerous conditions on the Determination, including that the church day shelter obey the rules governing home businesses, even though the day shelter did not fit the definition. The city demanded that the day shelter deport the homeless persons from the area (“ensure the guests have left the area”). No outdoor patio was allowed. The day shelter had to give notice on a shared website of any serious incident observed. A sign had to be posted restricting after hours trespassing so the police would arrest lingering homeless persons. The day shelter could only operate 8am to 5pm. The shelter management was required to attend neighborhood policing meetings. But, the worst was the number of “guests” was limited to twenty. Comically, the number “twenty” was selected by the city because a yoga class at another church had been approved and ten participants allowed “which seemed to work.” The city sought to dismiss the case so the facts recited are only those the court could glean from pleadings and briefs. The trial court overruled the motion to dismiss holding the claims plausibly stated a claim under the federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”). The church alleged that similar restrictions were not placed on a nearby college, coffee house, and a library. Of course, the city allegedly violated its own ten day zoning appeal limitation and went out of its way to do so. Therefore, Equal Protection and First Amendment claims survived, too.

The case reported herein has survived a motion to dismiss and may be pending for a considerable period of time until final resolution. The facts recited above may change. Nevertheless, the less popular the target of ministry the more resistance may be mounted both within and without. The causes of homelessness, typically drug and alcohol addiction, are not well treated in most states. Indeed, in most states, most mental hospitals have been closed and jails are used as mental hospitals. Churches that try to step up will need competent legal counsel. Whether a church could conduct such a ministry without causing friction with the neighborhood, and how to do so, are outside the scope of this site and may require local customized program enhancements developed by psychiatrists, drug counselors, and others.