Category: Uncategorized

THE GRAVEL CAN BE UNFORGIVING

Today the United States Supreme Court included the title of this post, which has been quoted here from that opinion, in its opinion determining that the state of Missouri violated the First Amendment by refusing to award grant money to an otherwise eligible non-profit for the replacement of pea gravel playgrounds with rubber matted playgrounds.  The rubber matting is poured and made from the recycling of tires.  The non-profit was a church.  Missouri refused to allow the church to be eligible for the playground grant because the Missouri constitution requires separation of church and state and the court in Missouri deemed playground resurfacing grants as an aid to established religion.

Thus, a non-profit that qualifies for a government benefit cannot be excluded simply because it is a church or para-church organization.  Trinity Lutheran Church v Comer, Slip. Op., ___ US ___ (June 26, 2017).

The church qualified for the grant because it was a non-profit, it served low income children in its school, its school was open to any student of any faith and not just church or denomination members, and the playground was used by the community as well as the school.  And, as the Court noted:  “the gravel can be unforgiving.”

While many will see this decision as both enlightened and fair to taxpayers that happen to be religious rather than permitting those taxpayers to be penalized because they have organized themselves into a church, government money should always be accepted cautiously.  It rarely is freely given and usually comes with compliance obligations.  For example, to qualify, the church also had to make a showing that it was developing or had a recycling program of some type.  While that is probably innocuous, other requirements in other programs might not be.

DIVIDING BY ONE

Hierarchical churches generally cannot divide and separate constituent entities in a manner that may shield one level from the damages allegedly caused by a different level.  The hierarchical church is generally viewed as virtually or actually integrated such that a claim against one level can also be brought against another level.  Indeed, it is rare to see an assertion that there is an actual barrier between one level and another of a hierarchical church.

In Clement v The Roman Catholic Diocese of Erie, Memorandum Opinion (WD Pa. 2017), the Plaintiff alleged sexual harassment by the priest supervising her work.  The Diocese moved to dismiss the claims against the Diocese on the grounds the Diocese was not the employer and the Plaintiff was employed by the parish church.  The Plaintiff also alleged that she complained to the monsignor that supervised the priest and even with the Bishop of the Diocese but that neither did anything.  The Plaintiff claimed that there was “operational entanglement” between the Diocese and the parish.  The parish, incidentally, alleged it should be dismissed because it did not employ fifteen individuals.

The Court overruled the motions to dismiss holding that to determine whether the Diocese and parish were “sufficiently interconnected” is an “open-ended, equitable inquiry.”  The Court held this was a “fact-intensive inquiry.”  These reasons make the outcome of overruling the motions to dismiss seem inevitable.  Also, it seems like a different set of grounds for the motions to dismiss should have been presented because the hierarchical nature of the Diocese and parish relationship would seem to be too well known in that denomination to make such an alleged separation between the Diocese and parish seem realistic.

Of course, that a motion to dismiss is overruled is not uncommon and the case will proceed through discovery, dispositive motions, and possibly trial and appeal if it is not settled.  Thus, a future opinion, verdict or appeal could dispose of the case.  But, typically, the arguments raised before the Court are more usually made by connectional churches that are not hierarchical.

UNINCORPORATED ASSOCIATIONS AND CHURCH CORPORATIONS

In the beginning, all churches were unincorporated associations.  The demands of modern accounting and property ownership, including liability risk management, pressed the unincorporated association to incorporate.  However, in order to successfully incorporate, the unincorporated association has to follow steps outlined in the law of the state of residence.  Even done amicably, such a transition can be challenging to volunteer led churches and pastors that do not also happen to be lawyers.  In the middle of a church split, the transaction cannot be completed in most states.

An example of this is Church of the First Born of Tennessee, Inc. v Slagle, Slip Op. (Tenn. App. 2017).  Church of the First Born outlived two generations of founders and desperately needed a new organizational structure that would ensure smooth leadership transitions going forward.  This was especially true after the church grew into a multi-campus church and established a church school sited on what probably was millions of dollars of real estate.

Before such an amicable restructuring took place, a church split arose.  The Court was unsure whether the split arose due to the financial pressures of supporting the church school or whether it was a doctrinal issue that arose because after the founders passed away, new leadership did not command the unanimity that the founders earned but surrendered upon their passing.  While the dispute roared around those issues, indeed, those issues were not terribly critical to the resolution.

The Plaintiff was a newly minted church corporation that tried to step into ownership of some of the church assets on behalf of one side of the split.  But, because asset ownership transfers are impossible unless all of the members of the unincorporated association have notice and vote to approve the transaction, the mere incorporation by one group in the split did not have the effect of transferring assets.  The Plaintiff was, therefore, without standing to bring any claim at all and the case was dismissed.

Church leaders have a duty to recognize their own mortality and plan for leadership succession in a fair process.  While many church leaders bristle at the idea of church bylaws or other written policies adopted as the governing rule of the church by a vote of the members, every church that does not have them and does not periodically review and update them increases the risk that a rift in the membership will shatter the peace of the church or in fact doom the church.  A church that can own millions of dollars of property should be able to hire a competent lawyer to lead the church to adopt bylaws or written rules.  Incorporation is a low cost and relatively well understood first step and makes asset management much easier.

REPORTING STATUTES MEAN WHAT THEY SAY

The gospel of reporting statutes, especially when crossing state lines and possibly triggering more than one, still seems to be misapprehended by many in church leadership.  Among some church leaders, there might even be an arrogance by which leaders somehow convince themselves they can manage, cure, or heal child abuse victims and abusers.  Most church leaders lack the training and resources to help victims unilaterally.  Most church leaders are unwilling to demand stringent proof of repentance much less have the training or resources to cure or manage abusers.  Nevertheless, church leaders often try to do one or the other or both resulting in onerous legal repercussions or perpetuation of the harm.  Also, church leaders tend to apply the standards of their upbringing to the conduct alleged without consideration of the changing views of society, meaning that what might have been considered merely unacceptable in an earlier age is today a crime.

In Jane Doe-1 v Corporation of the President of the Church of Jesus Christ of Latter Day Saints, Slip Op. (W. Va. 2017), the 82 page opinion detailed numerous instances over several years in which both local and regional church leadership were alleged to have learned of alleged sexual abuse of children but did not report it.  There is even an allegation that the accused abuser was brought home from a mission trip in response to a police investigation but that the police were not notified of the return.  Another aspect of the opinion was that for the court to have this quantity of information to recite in its fact summary, the record in the trial court had to have been extensive.  Extensive fact records, especially when there has not yet been a trial, usually exist only after expenditure of a lot of money.

In Jane Doe-1, conspiracy to hide the abuse was alleged.  The opinion clearly seems to teach that church leaders that receive allegations of child abuse that consult with other leaders, or even parents, about what should be done may later be accused of conspiring to hide abuse if the consultation leads anywhere but reporting.  The only safe thing a church leader receiving allegations of child abuse can do in most states is report.  The only safety valve other than reporting is consultation with legal counsel that is paid to report on the actual impact of the reporting laws on the allegations received.  But, this is a safety valve only in that it might provide to a church leader a consultation free from conspiracy charges even if the consultation has to be paid.  It does not provide a defense.