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CHURCH MEMBERSHIP LITIGATION

The word “excommunication” labels a procedure by which an ecclesiastical authority under canon law terminates the membership, affiliation or fellowship of someone formerly welcome to those relationships. See, Broderick, Ed., The Catholic Encyclopedia (Nelson, 1987) at 204. Evangelical churches do not have “excommunication” although they may use the word to describe their own procedure for terminating membership typically for disciplinary reasons. More often, whether in ecumenical or evangelical churches, sometimes pestilential people are simply asked to leave and not return to a particular congregation rather than “excommunicated” from the faith. Sometimes in incipient church splits, one side will try to boot out the opposition.

In Lippard v Diamond Hill Baptist Church, Slip Op. (NC App. 2018), the Plaintiffs’ membership in the church was terminated by a congregational vote. The Plaintiffs claimed the vote never really happened and was not conducted, it if happened at all, according to the bylaws of the church. The trial court dismissed the case because in North Carolina, there are clear judicial pronouncements that membership is a “core ecclesiastical matter.” The Court of Appeals affirmed. While for many purposes the bylaws might be matters for application of neutral principles of law, membership qualification or disqualification pursuant to bylaws would not, the Court concluded, be free of ecclesiastical considerations.

Churches should annually recertify their official membership rolls without fail by a vote of their governing board recorded in the board’s minutes. If a church decides that termination of membership is the only recourse for disciplinary or other important reasons, the church should decisively and quickly implement the termination. Dithering about such things, especially in public meetings, is an invitation to litigation.

CHURCH SUBJECT MATTER JURISDICTION

Courts only have authority to the extent of their jurisdiction. If something, someone, or someplace is outside of their jurisdiction, then the court is powerless to proceed for or against that entity. Some states hold that their courts have no subject matter jurisdiction over church governance issues and tend toward almost automatic dismissal of such claims. Generally, the claims are employment claims or church leadership issues. Some states hold that their courts have subject matter jurisdiction but the church may raise the Ecclesiastical Abstention Doctrine as an affirmative defense. As an affirmative defense, the church must prove that the issue raised by the plaintiff’s claims require delving into ecclesiastical matters rather than neutral principles of law, e.g., contract claims.

In Gilmore v Trinity Missionary Baptist Church, Slip Op. (unpublished) (Mich. App. 2018), the appellate court reversed summary judgment for the church. The trial court dismissed the case on the ground the issue presented was a church governance issue. The plaintiff was employed for over thirty years as the church business manager. Under an oral amendment to her employment contract, she alleged she was given five weeks of paid vacation annually. A new pastor, however, was unaware of any such oral amendment. The pastor learned of the Plaintiff’s vacation pay because in his third year he noticed she added five weeks of salary to her payroll when she set up the annual payroll. The plaintiff was given the choice of abiding by the written employment contract, i.e., not receiving the extra five weeks of salary, or retiring. The plaintiff agreed to neither and was terminated. The appellate court reversed solely because the trial court dismissed the case without conducting a factual inquiry into whether the employment claims raised by the Plaintiff implicated the Ecclesiastical Abstention Doctrine. On remand, such an inquiry would have to be conducted.

Churches may still be able to limit the scope of litigation by proving at the outset that the claims presented do intrude on ecclesiastical church governance. For example, a business manager may be more than a mere bookkeeper and may be directly involved in ministry management. As reported herein, some courts will limit discovery to that issue because there is no point in proceeding with the case if it involves ecclesiastical issues. The written employment contract was not the subject of the court opinion and a well-drawn contract might include a description of ecclesiastical job functions to which the employee has agreed by signing the contract.

CHURCH BENEFICIARY LITIGATION

Church members that wish to include their church in their will or pour over trusts, or settlor trusts for that matter, should provide a copy of the documents to the church. The passage of time, and changes in lives, might make the church beneficiary that was unaware to begin with to continue to be unaware of the bequest in time to prevent the bequest from being looted.

In Kogudus v Jurgenstein, Slip Op., (Cal. App. 2018)(unpublished), the caretakers allegedly had the pour over trust changed to make themselves the beneficiaries of the trust. The church did not learn of the amendment to the trust until many years later. However, in this instance, it was not too late to attempt to recover the bequest. The statute of limitation had ostensibly run but because the church did not learn of the amendment of the trust until long after the amendment was enacted, the appellate court reversed the trial court holding that the statute of limitations might not have run if the church could prove at trial it did not have inquiry notice of the amendment to the trust until long after the actual amendment.

Churches that receive documents containing bequests should preserve them as valuable papers and annually determine the status. Sometimes elderly members can no longer participate in the life of the church due to infirmity and caretakers may have to move them outside of the churches’ operational area. If the bequest is of sufficient concern, then a church can engage counsel, a private detective, a skip tracer, or other means in the internet age to determine the status and possibly even keep in contact with their elderly member. A church should have a committee that has as its sole task to minister to the elderly, anyway, and keep in contact.

ECCLESIASTICAL DISCOVERY

In the present legal environment, church defense lawyers should almost always start with a well-crafted Motion to Dismiss. Indeed, exceptions to that general rule are difficult to conjure. The most prevalent might simply be that churches, as primarily volunteer organizations with little internal infrastructure, might simply be unable to engage counsel and gather the information needed for a Motion to Dismiss, and its higher standards, in the short time available after service of process on the church. In most federal courts and many state trial courts, discovery cannot commence until the case is at issue. Discovery is often the true cost center of litigation because it requires an immense investment of the time of a lawyer. A Motion to Dismiss often delays or limits discovery.

In Presbyterian Church USA v Hon. Brian Edwards, Slip Op. (Ky., 2018), the church was sued in the trial court by a terminated ministerial staff member. The termination allegedly arose from an unauthorized transfer of church funds to another entity incorporated without authorization from the church leadership. There was no allegation of defalcation. The church did not immediately respond to the lawsuit with a Motion to Dismiss on Ministerial Exception grounds. The former employee issued written discovery requests to the church. The trial court ordered the church to respond to the written discovery. The church appealed the decision through an extraordinary writ. The Court of Appeals of Kentucky and then Kentucky Supreme Court reversed the trial court and limited discovery only to the applicability of the Ministerial Exception.

The information needed for a Motion to Dismiss in most employment actions in which it is contemplated that the jurisdiction of the court will be challenged on First Amendment grounds, and especially the Ministerial Exception, will always include the governing documents of the church and church corporation. Job descriptions, employment contracts, if any, and employee manuals, if any, will follow in importance. Church files are notoriously hard to muster, especially if the insider now suing had access. Lastly, church bulletins, newsletters, websites, and internal communications may be needed to persuade that the former employee was, indeed, ministerial in function. Computers never forget and even deleted files can often be recovered.