Category: Uncategorized

THE CHURCH AND THE INTERNET

Many churches post information about their services, their pastors, and their members. Some post worship bulletins and newsletters. Some of these contain information such as announcements of events. Most churches would not think it represented any sort of risk because most churches consider themselves open to the public and events are open to the public. Churches that have thought about it one way or the other would consider their routine internet postings cloaked in First Amendment free speech protection regardless of the ecclesiastical abstention doctrine, although a few would consider that applicable as well. Because the web posting was intended for members and other interested persons, most churches would not consider that their posting might be read by villains.

In Doe v The First Presbyterian Church USA of Tulsa, 2017 OK 15, www.oscn.net, the Oklahoma Supreme Court ruled that public announcement on the internet of a baptism was protected under the ecclesiastical abstention doctrine (aka “church autonomy doctrine”). The majority opinion reviewed the development in Oklahoma of “church autonomy doctrine.” However, because in the last twenty years there have only been a couple of cases in the Oklahoma state level appellate court, the majority also had to canvass a few of the numerous federal court decisions.

The Plaintiff Doe was a Syrian by birth that immigrated to the United States and submitted to baptism in a public worship service at a Presbyterian church. There is a suggestion in the dissenting opinion the church did not televise the baptism, as it did other parts of its worship service, in recognition that Doe’s “conversion” from Islam to Christianity as evidenced in baptism would make his return to Syria problematic or unsafe.

Doe sued claiming he was captured upon return to Syria, tortured, threatened with execution, and that he escaped by shedding his bonds, grabbing a firearm, and shooting his paternal uncle. He apparently alleged that he was stabbed when he returned to the United States by another relative in retaliation for shooting the uncle.

Neither the majority nor the dissent seemed to view the allegations of the Plaintiff in the broader First Amendment light of freedom of speech. The dissent tried to build an argument that there might have been a privacy expectation that was tortuously violated because the court viewed the baptism as “unusual.” However, the dissent went on to note that historically baptism records were important public records even if in the modern era that is not true outside of church practice. The sub silento point was that baptismal records have always been part of the public record and no rule has ever been enacted that would attempt to limit a church’s’ right to publish its own records. With that point in hand, the dissent did not reach the seemingly obvious conclusion that posting on the internet of a public church record does not infringe on a privacy expectation because there is no such expectation in such records.

PAPERWORK TRAPS IN TITLE AND DEEDS

Title and deeds should be carefully crafted. Obtaining the services of an actual title or real estate lawyer is not too high a price to pay. Title transfers, especially in settlement of threatened or pending litigation, have to be carefully scrutinized.

In Melvin Morris v First Bethany Missionary Baptist Church, Cal. App., Slip. Op., 2016 (not for publication), the church owned two parcels. Upon one was built the church and part of the parking lot and on the second was built the remainder of the parking lot. The church fell on hard times and rather than lose the property in foreclosure agreed to transfer one of the lots to the creditor. To accomplish this, on church letterhead, in a document probably drafted by the pastor or a well-meaning member, the transfer was set forth in an agreement of a single page. A deed was drafted to effectuate the transfer. But, the deed and the agreement did not match because in one the legal description only reached one parcel but in the other the legal description reached both parcels. Of course, the document that reached both parcels was the deed and it was filed of record.

The creditor’s action against the church was dismissed when the agreement and deed were created. When the church discovered the mistake, it filed an action to have the deed set aside. The case was dismissed because the church claim should have been brought in the creditor’s original suit as a mandatory counterclaim. Without the counterclaim, the deed stood unchallenged.

The church argued that it did not discover the scope of the deed until the creditor dismissed. However, the three year statute had run and the new case filed by the church was barred.

EMBEZZLEMENT BY PASTOR

The United States Bankruptcy Court for the Southern District of Mississippi, as well as a Mississippi county court were not fooled by the machinations of a rogue Pastor. In, Cross Point Church v Andrews (In Re Andrews), Slip Op. 2016, the Pastor tried to withdraw the church from the denomination. The denomination removed him from the pastorate of the church. A part of the church board tried to support the Pastor by entering into an Employment Agreement with him after he had removed, but the Employment Agreement was not submitted to the congregation for a vote and the agreement did not specify the amount of compensation. Arguing that he was acting innocently under the Employment Agreement, the Pastor and a church treasurer withdrew a year’s salary from the church bank account and deposited the proceeds in the Pastor’s personal checking account. The Pastor lived on that money for a year while he founded a new church. The Pastor and the rump of the board locked out the other members from the church and it took them six weeks to regain control and to assist in the installation of the new pastor assigned by the denomination.

The church sued the Pastor in a state trial court and took a judgment for the amount of money withdrawn from the church bank account. The Pastor sought bankruptcy protection but the church initiated an adversary proceeding. The bankruptcy court found it did not have authority to revisit the removal of the Pastor under the Ecclesiastical Abstention Doctrine.

Also, the Pastor admitted that as pastor, church officer, and board member, he owed a fiduciary duty to the church to safeguard its funds. As a corporate officer, that duty was also imposed by statute. The Pastor was a signatory, two were required but his was often affixed by stamp, to the church bank accounts. The bankruptcy court found that taking the money was a breach of fiduciary duty. The Employment Agreement was ignored by the court because the Pastor had been defrocked by the denomination and could not perform as Pastor under the agreement. Also, the putative church board did not have authority to override the denomination. For those reasons, the Pastor’s claim that he believed he could scarf up the cash was deemed not reasonable. The debt to the church for the funds taken was excepted from the bankruptcy.

The lessons in this matter about denominational authority under the controlling foundational documents are routine. An outright finding that a Pastor exercising control over church assets and funds has a fiduciary duty, the highest duty in the law, to safeguard them should nearly always be considered the norm. Few Pastors will be sufficiently remote from control of the assets and funds to avoid such a finding.

FAILURE TO REPORT IS NEGLIGENCE, NOT SEXUAL ABUSE

The unpublished decision of the Court of Appeal of California in Jane Doe v Pleasant Valley Baptist Church, Slip Op. 2016, is interesting on so many levels it is difficult to be selective. The Plaintiff alleged she was molested in 2002 or 2003 by a youth pastor. She sued the church and the senior pastor to recover money damages. The senior pastor was also principal of the church high school in 2010. The trial court dismissed the case on statute of limitations grounds and the court of appeals affirmed. The basic reason was that the court of appeals agreed that the failure to report sexual abuse, while a violation of statute, is only actionable for the period of time permitted by the statute of limitations. The failure to report was classified as an act of negligence subject to the statute of limitations for all negligence actions. The failure to report was not classified as sexual abuse, and in California sexual abuse is governed by a longer statute of limitation.

The lesser issues in the case did not change the result. The Plaintiff alleged that the youth pastor remained employed by the church for seven days after her complaint before he was fired and that resulted in “secondary victimization” and “betrayal trauma.” In addition to the failure to report claim, the Plaintiff claimed she was forced to confront the abuser in a meeting with the senior pastor acting as principal, told that she was not believed, and two weeks before graduation was expelled in retaliation. Even if all of the claims were meritorious, none of them extended the statute of limitations beyond Plaintiff’s eighteenth birthday plus two years. All of these alleged wrongful acts, if they occurred, were after the alleged sexual abuse, and not a cause.

One of the likely psychological underpinnings of the decision, if not an actual basis, was that there was no allegation or proof that the youth pastor’s alleged misconduct could have been foreseen by the church or senior pastor. There was no alleged prior pattern of sexual misconduct. The record was silent as to whether a background check was performed prior to hiring but had there been, there might have been additional support for the defense of lack of foreseeability.