Category: Uncategorized

IGNOMINIOUS RETIREMENT

Too often the pastor going out the door wants to take the door with him. That generally reflects poor church management such that at the end of what should be a long and honored tenure there is no fully funded retirement plan. Pastors need a portable retirement plan to which employing congregations can contribute. Any church that lacks this creates the framework for poverty or a dispute.

In National Church of God v Carrington, 2017 NY Slip Op 51007 (NY Sup 2017), the trial court excellently detailed such a situation. Carrington was the founder of the church in 1980 and may have gotten the church property started by his own contributions. The church was apparently small because a church list from 2015 numbered the members at 47. Nevertheless, the church property was noted by the Court to be valued at $2,000,000 debt free. Like a lot of churches started by a founder the church had no constitution or bylaws, did not follow the corporations statute, did not have regular congregational meetings, boards appointed only by the pastor in contravention of the statutes and the certificate of incorporation and had only ad hoc leadership outside of Carrington. In the dispute that inevitably arose over the habitual if not also resulting lack of financial transparency, Carrington’s faction locked out the church board elected by the congregation in 2015 after the new church board tried to lock him out. Carrington tried to transfer the title to the property to a new church entity and his lock out of the congregation deprived the church of its sanctuary. The elected church board was able to prove its validity and the Court enjoined Carrington from transferring the title and ended the lock out.

Some pastors seem to have the idea that they own the church property. That is rarely true. Even a founder of many years will typically find they have created a non-profit entity funded by members that have an interest in the church property, and usually the overwhelming interest. Long term pastors should recognize the need to plan for a transition and retirement. It should be discussed with the church leadership which should be composed of regularly elected members. Some churches have non-member advisory boards and such a process might work as well. The retirement plan should be adopted by a vote of the congregation and entered into like any other contract.

HIERARCHIAL CHURCH TITLES AND TRADEMARKS

For some reason, some in the judicial branch have difficulty refraining from interfering in internal denominational matters when the local church or local diocese tries to escape from the parent organization with the local land holdings, too, rather than simply leaving and starting anew. This seems odd given that these assets are generally amassed by local church members over a period of decades or even centuries that thought they were supporting their denominational church. The new leadership or congregation in the local church may in recent times decide it can no longer as a matter of conscience support the parent church, but that does not automatically relieve them of the duties they may owe the denomination as to church assets accumulated by prior generations of members.

Episcopal Church litigation has focused the judicial microscope on denominational documents, land titles and ecclesiastical process as well as the hesitancy of some in the judicial branch to abstain as noted above. In Protestant Episcopal Church, et al, v The Episcopal Church, ___ SE2d ___, 2017 WL 3274123 (SC 2017) it took four justices each writing separately to reverse the trial court (and there was a dissent). The guiding finding was that the Defendant was the parent church in a hierarchical church and that the Plaintiffs were subordinate church entities. Once this finding was made, the Ecclesiastical Abstention Doctrine required the Court to defer to the ecclesiastical decision-making by the parent church. The Court concluded (quoting) “what happens to the relationship between a local congregation that is part of a hierarchical religious organization when members of the local congregation vote to disassociate is an ecclesiastical matter over which civil courts generally do not have a jurisdiction.” Thus, the denominational requirement that the subordinate church entities held title to local church property in trust for the parent church was enforceable as were the federally registered trademarks. Indeed, one of the concurring opinions suggested the Plaintiffs were “masquerading” as an authorized diocese in an effort to secure their land titles. The autonomic reflex of the Court to switch to “neutral principles of law” regarding trust issues and property title issues was deemed inapplicable given the applicability of the Ecclesiastical Abstention Doctrine and the resulting deference to ecclesiastical due process imposed by the parent church.

The lesson for local churches is to be prepared to buy the property from the parent church or be prepared to leave it behind when disassociating and before announcing the disassociation. With most local churches, the denominational parent will be unable or unwilling to keep the local church property and payoff remaining mortgages and maintenance costs and will negotiate a reasonable and affordable sale of the rights. But, if the parent church decides to play “hardball,” the local church may be forced to relocate.

“DISFELLOWSHIPPING” LEGALITIES

I am not sure “disfellowshipping” is actually a word but I have seen it in various church writings over the years. It seems to be the termination of church membership and exclusion from the church property in the traditions that use it. It seems to be a step down from excommunication which in some traditions at times was thought to be a sure fire damnation. Also, disfellowshipping seems to be used in both a temporary mode and a permanent mode. Whether “disfellowshipping” is a good idea or a bad one depends on the view taken of I Corinthians 5 and other similar passages. That is outside the scope of this blog and this post.

In Campbell v Shiloh Baptist Church, Slip Op. 2017 WL 1434249 (Sup. Conn. 2017), a trial court was confronted with the legal ramifications. The Plaintiff’s church membership had been revoked by a congregational vote in a congregational church (although on this topic it might not have mattered). The Plaintiff sued to enjoin the church from revoking his membership in the church. Interesting, too, was that the church’s Board of Deacons meeting authorizing the congregational meeting and vote on membership revocation was preserved in an audio recording. Also interesting was that the church took the precaution of video recording the congregational meeting at which the expulsion vote was taken. The Plaintiff alleged “procedural irregularities and inequities” in the congregational vote. The audio recording and video recording was not surprising because this was the second time the Court ruled upon Plaintiff’s quest for reinstatement. In the first case, and quoted in this opinion, the Court held its inquiry was limited, “as stated in this court’s earlier decision … a court may inquire whether the act of expulsion was in fact the act of the religious organization.” 63 Conn. L. Rptr. 531. The Court determined the expulsion was the act of the Defendant church and dismissed the Plaintiff’s case. The Court would not undertake “policing of a religious organization’s compliance with its internal procedures.”

This opinion is a reasonable blueprint for the procedure of “disfellowshipping.” Few churches ever have to do this but churches with a reasonable set of bylaws, reasonable leadership, the appropriate mechanism, be it a board or the entire congregation, and reasonable documentation of the vote of either or both will not leave an opening for legal process. In churches where the power is vested in the hierarchy, and the process is settled, the result should be legally impenetrable. For churches where the power is not specified in bylaws, typically congregational churches, the congregational vote is the only mechanism.

REMOVAL AND THE ECCLESIASTICAL ABSTENTION DOCTRINE

Generally, federal courts can only hear cases in which the Plaintiff is from a state other than the state from which the Defendant hails or if the case involves a federal law. Generally, assuming the parties are from the same state, a federal court will review the state court Petition or Complaint that was removed by the Defendant to federal court to determine if the Petition or Complaint raises a question under federal law. If none is found, the case will be remanded to the state trial court from which it came. The Ecclesiastical Abstention Doctrine and the Ministerial Exception are federal constitutional law doctrines but typically they are raised in a case as defenses by the Defendant. If the state trial court Petition or Complaint only mentions state law, unless there is a federal law lurking in the Petition or Complaint, the federal court will not have jurisdiction and will remand the case to state trial court.

In Savoy v Savoy, Slip Op., 2017 WL 1536158 (D. Nev. 2017), the Plaintiff demanded an accounting from the church corporation under the state law governing corporations. The Plaintiff also alleged that the corporate officers breached their fiduciary duty of loyalty to the corporation as defined by state law. The Defendant removed the case from state court to federal court based on the Defendants’ defensive assertion of the Ministerial Exception and the Ecclesiastical Abstention Doctrine. But, following normal federal policy, the case was remanded to state court because the Plaintiff and Defendant were residents of the same state and because the Plaintiff did not assert a right under federal law. That the Defendant asserted a right under federal constitutional law was not enough.

The facts of the case are not explicated in the Court’s opinion with sufficient detail to make a guess why removal to federal court was considered by the Defendant a good idea. But, the Ecclesiastical Abstention Doctrine and the Ministerial Exception may be raised in a state court proceeding probably to the same or similar effect. Indeed, state courts sometimes are more reluctant to delve into church splits than federal courts.