Category: Uncategorized

FINDING A BURNING BUSH — CHURCH DOCUMENT AUTHENTICATION

When a church split spills out into the street and ends up in court in a jurisdiction that will apply neutral principles to decide the case, each side should be prepared to provide authenticated documentation of their right to own the church property or rule the church.

Church property title can often be established by documents publicly filed or denominational documents owned by many different people. But, when church property ownership turns on identification of the church leadership, especially on the local church level, church document authentication can become a challenging issue because many local churches are not good record keepers and not all foundational documents are filed in the public record. Getting a volunteer church officer or a part-time secretary to timely find and authenticate a document can be a challenge. Finding a corporate seal or encouraging those volunteers to appear before a notary can be a challenge, too. Local churches often do not have and cannot find corporate minutes for the current year, much less years past. Finding a burning bush is sometimes less stressful.

In a bankruptcy adversary proceeding, First Korean Christian Church v DW Kim, Memorandum Decision (Bankr. ND CA, 2017), in order to rebut a claim he had been defrocked by the denomination, the former pastor submitted an unsigned and unauthenticated document. The unauthenticated document purportedly indicated a reversal of the decision of the disciplinary authority of the denomination to strip the pastor of his credentials. The former pastor also claimed the court did not have jurisdiction to decide the question of his denominational credentialing or whether he could serve as pastor of the local congregation. The Court rejected the unauthenticated document and based on the authenticated documents granted judgment to the local church and the denomination.

In many cases, if a contested document is not authenticated, it can be rejected as proof by a court without anything further. Also, a document that is not authenticated will typically not provide the basis for a challenge to an authenticated document.

In a church or denomination, sometimes the proof has to be marshalled as to whether the authenticating or endorsing witness actually has the authority to authenticate or endorse a document because to an outsider the authority may not be readily apparent or identifiable. This is especially true of denominations that have governing boards that meet infrequently if such a board is the only authority that can authenticate or delegate the authority to do so. In other words, sometimes a witness must be found that can testify truthfully that the authenticating or endorsing witness actually has authority to do so. Sometimes, as noted above, it is the burning bush one must find.

CONGRESS SHALL MAKE NO LAW

It is amazing how much ink has been used to explain those four words and those that follow in the First Amendment. Added to the Constitution by amendment in 1789, the First Amendment was intended to enshrine the fundamental law of a free society in an open democracy. Nevertheless, curtailing free speech has often been the focus of the federal government.

On May 4, 2017, the President entered an Executive Order requiring repeal or amendment of regulatory pronouncements limiting freedom of expression which included:

“In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury.”

Underlying statutes, of course, cannot be repealed by Executive Order. But, enforcement based solely on “participation or intervention in a political campaign” of a type that has not been previously treated as such for other entities would seem to reduce enforcement to instances where the non-profit or church was actually and directly financially involved in a material way, rather than simply when a speaker expresses a political opinion or donation of money. Advocacy is the least profitable endeavor.

On this subject, urban legend has ruled, and was far more interesting than fact. Even finding a case in which the IRS threatened tax exempt status over any political activity is challenging. Thus, the Executive Order might not have much practical impact.

Nevertheless, regardless of the lack of numerosity of published cases, the chilling effect cannot be calculated and there the Executive Order might have an effect. Most church lawyers have at least once been asked about the extent to which political activity or commentary is permitted before tax exempt status is at risk. The answer should have been simply “Congress shall make no law… .” The Executive Order might be a step back to 1789.

HIERARCHIAL DEFERENCE DOCTRINE AND NEUTRAL PRINCIPLES DOCTRINE – HAS THERE BEEN A MERGER?

Splitting churches sometimes leave to courts the decision as to property ownership between the factions. If the church is part of a hierarchical denomination, typically the court will give deference to the ecclesiastical authority’s decision making as to ownership. If the church is part of a denomination that is not hierarchical, or the church is independent of any denomination, then to award clear title to the church property the court will under the neutral principles doctrine review the foundational documents of the church from a secular view point to decide which faction has ownership, or the right to vote on leadership that might control ownership.

The hierarchical deference doctrine is used by a minority of states to decide contested church property ownership issues. The calculation of that minority seems to be further impaired by the drift of the doctrine toward and into the neutral principles doctrine. The cause of this is that to determine if there is a binding hierarchical relationship, foundational documents usually have to be carefully reviewed to establish that the hierarchy exists and its authority over local church property. As a practical matter, the neutral principles doctrine must do the same.

In this case both doctrines led to the same conclusion. In Heartland Presbytery v The Presbyterian Church of Stanley, Inc., Slip Op. (KS App. 2017), the court decided ownership between two factions by invoking the hierarchical deference doctrine. The denomination awarded the church property to the “staying faction.” However, just to cover all the bases, it seemed, the court went on to decide the case under the neutral principles doctrine and reached the same result. The court’s opinion is a lengthy primer on both doctrines.

However, the “departing faction” decided to depart the church and form a new church affiliated with a new denomination a few days after the trial court judgment against them. The “staying faction” argued the “departing faction” by their departure from the church abandoned the appeal basing their argument on the “judgment acquiescence” doctrine. The factions both used the church property for worship albeit at different times. The court rejected the abandonment argument.

It is not the place of the courts, or this blog, to decide the theological controversy that led to the church split. A “leaving faction” or “dissenting group” should make an early determination as to whether it is reasonably probable to prevail if the local church is part of a hierarchical denomination. The same is true in a neutral principles jurisdiction. Such an early determination may allow a “leaving faction” to spend its resources on a new church work rather than a legal battle.

SIGN WARS – AESTHETICS RULES

Like the proverbial finger stuck in a dike, some towns still try to limit the growth of electronic variable display signs, generally to keep them out of neighborhoods rather than commercial areas. Churches migrating from manual signs often find these ordinances stand in the way of modern signage for churches because churches are often in residential areas and are often the last to update to new electronic signs. Thus, while churches might be the first in the residential area to have any sign they are usually last to install an electronic sign and therefore not grandfathered by the time the ordinances were amended to address the age of the electronic sign. The electronic variable display signs are usually programmable from the church computer system or someone’s cellular data phone, which is the attraction. The manually changeable signs require ladders and a high wire act, usually in high wind.

In Signs for Jesus v Town of Pembroke, Memorandum and Order (D. NH, 2017), the New Hampshire federal court was asked by Signs for Jesus, a non-profit para-church organization assisting the church with an electronic variable display sign and the Plaintiff, to set aside the ordinance of Pembroke that disallowed such a sign in the part of the town in which the church was located. It is unclear from the opinion why Signs for Jesus was litigating in federal court rather than in the state trial court. It seemed that Signs for Jesus wanted to test some of the federal legal rights for churches. If that was the case, then this seemed like a case lacking facts essential for such a “test case.”

The church was in a section of the town in which the electronic variable display signs were barred. The only two exceptions in the area of the church were signs owned by a gas station and a public school; the gas station sign predated the passage of the ordinance and was thereby grandfathered and the public school as a state political subdivision could not be regulated by the city government. The ordinance merely banned the signs in residential areas and did not apply uniquely to churches or to sign content. The stated purpose of the ordinance was to preserve aesthetics, a “semi-rural” ambiance.

Signs for Jesus’ federal court complaint challenged the constitutionality of the ordinance, alleged First Amendment free speech rights were violated, alleged a Fourteenth Amendment Equal Protection claim, alleged a Religious Land Use and Institutionalized Persons Act (“RLUIPA”) claim, and alleged a Due Process claim. The constitutional claims were disposed of because the ordinance was “content neutral” and did not single out churches. The RLUIPA claim was denied because the church did not prove the ordinance was a “substantial burden” to religious exercise by the church and did not prove treatment on less than equal terms, both of which are proof required under the statute. The opinion was detailed although this summary is not.

RLUIPA might have been of some help if the record had been developed differently. Although Signs for Jesus sought a variance (or the church did), it was the denial of the variance by a concomitant use of discretion that might have been the better basis for a claim, but that was not the focus of the claim, at least in the federal court’s recitation of the facts. Also, the lesson from this case might be that political solutions with elected officials might be better pursued than litigation in ordinance issues. Local elected officials are often reluctant to refuse relief to a church. Also, the church could have considered placing a sign in the commercial district of a town as small as Pembroke. Humorously, sometimes planning such a sign where no one else wants it but where it is legally permitted can obtain support for a variance.