Category: Uncategorized

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.

CHURCH BUILDINGS AS HISTORICAL ICONS

When venerable and historically recognizable church buildings are destroyed there is a profound sense of loss. While few are listed, some church buildings are on the National Register. Other types of buildings on the National Register are protected but church buildings may not be. Also, just because preservation seems like a good idea does not mean enough money to do so will follow.

In Friends to Restore St. Mary’s, LLC v Church of Saint Mary, Melrose, Slip Op. (Minn. App. 2019), the church building was sufficiently significant “historically” that it was accepted on the National Register. However, that did not prevent an arsonist from gutting the interior of the building. The archdiocese ultimately decided to demolish the entire building because, even if restored, it would no longer be a “functional” church building by modern worship standards. The Plaintiff sought an injunction to prevent demolition of the building. The injunction was denied by the trial court and the appellate court because adjudication of the claim was precluded by the ecclesiastical abstention doctrine. The appellate court held that the trial court could not evaluate whether “there are feasible and prudent alternatives to destroying the church building” under Neutral Principles of Law without invading ecclesiastical decisions. The argument the archdiocese did not have the authority to order demolition required an interpretation of Canon Law. The determination of whether an alternative use would be “profane” or “sordid” under Canon Law could not be made on other than ecclesiastical grounds.

Unstated in the opinion but likely at the heart of the problem for those wishing to preserve a historically significant building gutted by an arsonist was insufficient insurance coverage or other funding. A special policy may have been needed to create the resources to rebuild the church interior to its pre-fire look, much less to remodel the interior for modern worship needs. A typical fire loss policy would have been inadequate for what would otherwise be a total loss. But, maintaining the commitment to pay for such an extra or special policy year in and year out would have required an extraordinary commitment. Most churches simply cannot afford it. Too, unstated, was the financial burden on offering plates of restoring an antique, or obsolete, church building, which most courts are not interested in trying to enforce.

LITIGATION ADDICTION REACHES CHURCH LITIGATION

The pro se litigation wave is threatening to swamp courts at all levels. The idea that people can successfully represent themselves has arisen most probably from two sources: (1) the influence of televised small claims cases or family law matters in which a “judge” from the “Judge Judy” model hears arguments and “testimony” from unrepresented litigants ; (2) the use of the internet as a research resource. While the latter observation will seem hypocritical coming from a blog reporting about litigation as a type of research resource, this blog like most other of this genre are useful only for general interest, issue identification so that legal services may be more wisely purchased, and for lawyers looking for details in what otherwise for that lawyer might be a new niche issue. No internet source can substitute for actual legal advice from a qualified practitioner or equip a non-lawyer for actual advocacy.

Pro se litigants in recent years have also proliferated because fueled by the foregoing, they become obsessed with winning the legal “lottery.” Because of the multiplicity of factors that can influence a judicial outcome, to the uninitiated it may seem like a game of chance. Just like “gambling addiction,” “litigation addiction” is identifiable by its symptoms. These symptoms include: (1) inability to accept a final judicial ruling; (2) inability to differentiate the impersonal judicial outcome from the personal self-interest; (3) gratification not from winning, which they almost never do, but from the vexatious harassment imposed on as many other people as possible; and (4) unwillingness to accept real legal advice from a qualified practitioner. Thus, pro se litigants exhibiting “litigation addiction” symptoms will often file new lawsuits over and over on the same issue long ago lost, will often file documents they have personally authored even when they have hired a lawyer to represent them, will often fire lawyer after lawyer because the lawyers would not participate in vexatious harassment, and in the worst cases will not stop wasting everyone’s time and money even when monetarily sanctioned. For the more extreme cases, being jailed for contempt of court, either from out bursts in court or more likely from violating filing injunctions, may be the only cure available to victims and the courts.

In Tompkins v Lifeway Christian Resources, 2019 WL 3763946 (10th Cir. 2019), the appellate court affirmed the federal trial court’s dismissal of the case and awarded monetary sanctions. This was the second appeal the 10th Circuit heard on the matter, the first being heard in 2016. In the trial court’s second case, which was the subject of the second appeal, second lawsuit was brought against many of the same defendants. It arose from the sale of a large piece of property that was the subject of the first lawsuit. While the pro se Plaintiffs may have made new arguments in the second case, none of the arguments were sufficient to constitute a valid collateral attack on the first judgment against them.

CHURCH TRADEMARK DISPUTES

Rare are church trademark disputes. The reason is that most marks selected by churches as marketing logos are generic to the religious tradition represented. However, church trademarks are not impossible and may in the future be more prevalent, as well as litigated, as the struggle for separate identity in electronic media deepens. After all, churches are moving away from brick and mortar locations solely and trying to become “virtual,” too. To be successful economic church models require marketing, and marketing invariably involves logos for identification.

In Holy Spirit Association v World Peace and Unification Sanctuary, Memorandum Opinion, United States District Court, Middle District of Pennsylvania, July 22, 2019, the federal trial court before it had motions to dismiss the cases on the pleadings. The motions were overruled so the case will continue through discovery and trial if it is not otherwise settled. Trademark cases are often settled by licensing agreements. Trademark disputes are brought under the federal Lanham Act, 15 USC §1114, et. seq. In this case, the Plaintiff registered what it called the Twelve Gates Mark. The Defendant called it the Tongil Symbol. The Plaintiff registered it as the trademark of its church and the Defendant claimed it was a mark created by the founder of the tradition or denomination. Of course, that meant both churches were in the same tradition or denomination, or at least originally so, for their dispute was over a symbol both claimed to have been created by the founder of the tradition or denomination, Reverend Sun Myung Moon. The federal court held that the dispute could be resolved using the Neutral Principles of Law arising around trademarks. From the opinion’s recitation of the positions of the parties in their preliminary pleadings, the central issue will be whether the symbol was “generic,” a Lanham Act statutory classification similar to the meaning of the word in the common tongue, or was, indeed, actually created only for the Plaintiff local church.

Symbols used by churches are generally “generic” arising from their history, tradition or denomination. If the symbol appears on grave markers, church buildings or historically verifiable documents the likelihood it will be “generic” seems insurmountable. Indeed, most come from computer clip art sold commercially. Only a trademark made by a local or contract artist are likely to survive, and then only if the trademark is truly original and not merely a reinterpretation of a historical image used by the tradition or denomination.