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THE CHURCH SUBPOENA

There probably is nothing more confusing to a church than demands for documents or information from courts or government.  Confusion arises because smart people that are not lawyers, relying on some anecdotal past personal experience, believe the church will have the same experience they had.  This is usually wrong.

In Templeton v Bishop of Charleston, Order Denying Motion to Quash, United States District Court, Western District of Washington, No. C20-1578, the trial court denied the motion to quash a subpoena.  The subpoena was served on a priest to testify by deposition in discovery in a molestation tort case.  The priest was not a party to the lawsuit but a mere witness.  The priest requested that the subpoena be quashed alleging that the Ecclesiastical Abstention Doctrine precluded inquiries into church administration.  The priest further argued that a state statute made privileged his communication with his bishop.  The priest lastly argued that the priest had a confidentiality agreement between himself and the bishop which precluded his testimony.  The Court dismissed the Ecclesiastical Abstention Doctrine claim as too broad.  It might apply to a particular question but it would not apply to others the Court held.  The priest also argued he was a “canon lawyer” and a “judge of the ecclesiastical court” and entitled to privilege.  The court denied the claim because the priest was not an attorney at law.  Further, even if there was such a privilege, it might apply to a particular question and not apply to others.  The state statute rendered “confidential communication” necessary for the priest to do his job privileged.  But, the court held such an agreement might immunize a particular question but not others.  The allegation of the confidentiality agreement between the priest and the bishop was generally swept aside because the court doubted such an agreement could override a court order to testify.

Churches that receive a court subpoena, or any other order from a court or government to produce documents, information or testimony, should immediately engage counsel to respond or object on their behalf.  The church insurance carrier should immediately also be notified in writing.  While the insurer may not undertake the representation by retaining outside counsel to represent the church, that is not always true.  It may depend on whether the information sought might related to a future or anticipated lawsuit.  Lastly, the word “immediately” should not be ignored.

RISKS OF PASTORIAL WARNINGS

If a pastor reasonably believes that a parishioner is sexually predatory toward other vulnerable parishioners, the pastor may have a moral duty to take preventative and protective action.  The first consideration must be given to whether a mandatory child abuse statute has been triggered by the factual basis for the pastor’s belief.  If so, only a call to law enforcement is required by law.  However, if the pastor feels other parishioners should be warned, they may be advised cautiously.  If non-members should be warned, there may be certain risks to the method selected.  Litigation risk is one of those.

In Christakis v Deitsch, Slip Op. (Ariz. App. 2020), the plaintiff alleged the pastor wrote a letter to the Plaintiff, the church’s lawyer, and the local police chief in which the pastor described the Plaintiff as “demonstrating an explosive temper on a repeated basis” and other disquieting acts.  The trial court and appellate court held the letter was not actionable because it was not “published,” because it was not sent to the community but only to two others besides Plaintiff.  Use of the letter as an exhibit in a following court proceeding, thus filing it in the public court record, did not make the letter actionable because of the litigation immunity attendant upon court records.  The Plaintiff also alleged that the pastor cast him in a false light by telling “around the community” that “a pedophile in the community was grooming children in order to molest them.”  The appellate court reversed the trial court’s dismissal of the case to allow proceedings regarding the alleged statements of the pastor.

Because a motion to dismiss was overruled means the case was remanded for discovery and other pleadings.  Whether the Plaintiff’s case would survive to trial remained to be litigated.  However, the allegation was not that the pastor kept the alleged “false light” statements inside the church but rather that the pastor was conveying them outside the church to the community.  Generally, statements regarding disciplinary matters among church members are not actionable.  The best practice would generally be to restrict the number of persons that know the details of a disciplinary matter to those that must know.  Pastors that feel the need to warn non-church members should only do so with the assistance of counsel.  Truth may be a defense, but it may require an expensive vindication.

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.