DIRECTORSHIP CHURCHES

Churches can generally organize their corporate structure in any way.  Churches independent of a denominational structure are especially free to development organizational documents that meet their own needs and beliefs.  The only limitation on non-denominational church Constitutions, By-Laws, and amendments thereto are corporate law statutes of the state of residence of the local church.

In Bogle v Sewell, Slip Op. (Mich. App. 2022) (Per Curiam) (unpublished), the trial court granted summary judgment to the congregation and against the church leadership.  The church leadership amended the By-Laws of the local independent church to forego binding congregational votes on pastor retention.  Also, the By-Laws were amended to authorize that church board members be chosen, appointed and confirmed by the Senior Pastor and the church board and not by congregational vote.  The amendments to the By-Laws were not adopted by a congregational vote.  The appellate court affirmed the summary judgment for the congregation.  Changing a congregational church to a directorship church, so the court held, could not be done because the original incorporation of the church was as a congregational church.

Congregational votes as a means of church governance are cumbersome except in small churches.  They can also be dangerous in medium to large size churches if a membership role is not credibly maintained so that qualified voters can be identified.  However, hybrid systems work well.  The congregation can be tasked with votes on momentous matters, matters of policy and some church leadership positions.  But, operational matters and salaried church staff employment should be handled by the leadership elected by the congregation.

DETERMINING PATERNITY

Determining whether a local church is a “member” of a denomination is usually no harder than looking at the name on the building or the signage.  But, sometimes determining church paternity requires a review of church governance documents at both the local and denominational level.  Church property issues may also include review of property deeds and state laws governing non-profit corporations or associations.  Further, if a local church attempts to end its denominational “membership,” whether it can unilaterally do so or do so at all, requires review of these documents as well as creation of “divorce” documents.

In District Advisory Board, Church of the Nazarene v Centro De Alabanza Oasis, Slip Op. (FL. App. 2022) the trial court granted summary judgment to the local church based on the local churches’ attempt to end its membership in the denomination.  The appellate court reversed.  The trial court was required to conduct a review of the evidence to determine whether the denomination was hierarchical.  If so, the denomination would control the property of the local church.  The trial court also had to determine if the local church was actually a “member” of the denomination.  The reported case recited instances in which the local church arguably admitted it was a denominational “member,” starting with the signage, and in documents submitted to the denomination to end the membership.  The documents submitted to end the “membership” were arguably insufficient.

Local churches contemplating a departure from a denomination should determine if it is possible and probably engage a lawyer with writing skills to assist in completing the documents.  Other departure strategies may have to be considered, too.  Clinging to property without careful consideration of the foregoing can burn through the cash needed to start a new church.

Clergy Privilege v Mandatory Reporting

General statements about child abuse mandatory reporting are not worth much because every state approaches the problem differently.  However, the general statement that can be made is that in most states there is a mandatory child abuse reporting requirement that churches and their employees should take seriously.  While prosecutions are few and scattered, this is a function of the resource limitations on prosecutors and the political viewpoints in vogue at the moment in the location.  The complexity of these questions is easily reviewed, but not solved, by looking at a compendium of state laws.  See, Mandatory Reporters of Child Abuse and Neglect, (68 pages) United States Children’s Bureau (current through 2019) at http://www.childwelfare.gov/pubpdfs/manda.pdf.

In Ivy Hill Congregation of Jehovah’s Witnesses v Department of Human Services, Slip Op. (Pa. Commw. Ct. 2022), the Pennsylvania intermediate appellate court affirmed the trial court’s dismissal of the case.  The Plaintiff sought a declaration that its “elders” are “clergymen” and entitled to the statutory clergy privilege and not subject to the mandatory child abuse reporting statute.  The Plaintiff also argued the statutory qualifications for clergy privileged communications were unconstitutional if “elders” are not “clergymen.”  The appellate court affirmed dismissal of the Plaintiff’s case because the Defendant was an agency that might collect a report of child abuse but not the agency that would prosecute failure to report, and therefore not the proper party.  Other law enforcement agencies would be empowered to prosecute but not the Defendant.  A ruling in the case would not provide complete or any relief.  The Court also held that application of statutory clergy privilege “requires a court or appropriate agency to review the communication at issue” to determine if a communication is privileged and therefore, confidential.

Clergy privilege to avoid mandatory reporting of child abuse should not be invoked without consulting counsel.  Counsel should not assume an answer until the current status of the mandatory reporting statute, and any statutory or common law clergy privilege for that state are confirmed.  During the last three decades churches that did not report have been vilified.  Prosecutions for failing to report child abuse were not needed when disclosure occurred because of the backlash.  That outcome should be assumed on the local small church level, too.  Child abusers may not be able to pursue any remedy for violation of clergy privilege but as child victims have proven repeatedly, the reverse is not the case.

Church Graveyards

Most younger churches and non-ecumenical churches do not have graveyards.  For those churches that do have them, generally no one ever contemplated that the church owner would no longer be in existence to care for them or that the church property would be sold.

In Church of the Holy Spirt of Maryland v Heinrich, Slip Op. (Mass. App. 2022), the church was formed in 1961 and in 1967 decided it needed its own graveyard restricted to cremated remains.  In 2015, the church dwindled in size such that the denomination decided to wind down its activities and sell the property.  The property was sold to a church that doctrinally did not permit cremation.  Therefore, the new owner wanted the graveyard moved elsewhere.  The contracts and organizational documents of the graveyard did not contemplate closure of the church or sale of the land.  Those documents did contemplate that the church could unilaterally alter the regulations governing the graveyard.  The trial court held that the revised regulations of the graveyard which allowed transplantation of the graveyard were enforceable.  The appellate court reversed the trial court holding that the contemplated change in regulations was not contemplated when the burial contracts were purchased.  The religious beliefs of the new owner did not override the burial plot purchase contracts because the purchaser bought the property with full knowledge of the presence of the graveyard.  The appellate court would not speculate about any religious beliefs the burial contract purchasers might have had.  The desire to be buried in hallowed church property might have driven the original purchase of burial plots, or not, but might no longer be fulfilled because the purchase contracts did not expressly bind the church to own the property in perpetuity or remain in existence.  Because the ruling of the appellate court left unanswered questions about what would happen to the graveyard in the absence of the church that founded it, the case was remanded.

While the legal tangle of church graveyards may seem remote to most readers, denominations faced with declining local church membership the problem may arise more often.  Churches buying older church properties need to investigate any church graveyard and carefully determine if a permanent trust fund exists to care for the graveyard.  Further, if inexorable inflation forces additional funds to be deposited in a trust to keep it solvent, or if its investments are merely badly managed, then the buyer needs to know upon whom the burden falls if the trust fails.  Churches with an eternal view cannot afford to short term in their financial thinking.