WHEN BLESSING THE WATER IS NOT ENOUGH

Most churches are in urban or suburban areas and use municipal water systems much like everyone else.  Thus, the few churches left in rural or undeveloped areas that use well water are so few that the lesson of the case reported below would at first blush seem to be of no interest to most.  However, the case reported below points out there are other risks that should be considered.

In State of Ohio v Church of Troy, 2020 Ohio 4695 (Ohio App. 2020), the trial court held that the pastor was the “operator” of the church water system in an enforcement action by the Attorney General of Ohio.  The church used well water at its building, typically Wednesday evening and Sunday services, which may have included bathrooms, kitchen and drinking fountains.  The church membership was about 100 and the church used the building more than sixty days a year.  The church was an unincorporated association.  The church was required to submit total coliform samples every quarter and a nitrate sample annually to a laboratory for analysis and report the results to the state regulatory authority (“Ohio EPA”).  The church submitted test results for years.  The Ohio EPA regulated the church water system since 1986.  Unfortunately, church water samples tested positive for total coliform and E. coli.  The church claimed it posted notices and provided bottled water but did not give notice of its actions to Ohio EPA so they sent an inspector out to check.  The pastor told the inspector that a legal consultant in another state, not one licensed in Ohio, was going to report back as to whether Ohio EPA had jurisdiction over the church and refused permission to inspect the church water system.  Ohio EPA obtained a search warrant and inspected the church water supply.  Their testing found positive coliform and a high level of nitrate.  Based on the pastor’s past interaction with the Ohio EPA and the refusal of the pastor to authorize the inspection, the trial court concluded the pastor had apparent authority to operate the church water system.  As the operator of a non-compliant water system, the pastor was fined $54,000 and judgment entered.  The pastor represented himself.  Four years separated the hearings in the trial court from the final judgment which the appellate court affirmed in the sixth year after the hearings in the trial court. There are several harsh lessons:  (1)  The pastor did not have a lawyer.  (2)  Even an unincorporated association can have minutes, agendas and minutes of votes that might prove the extent of the pastor’s actual authority in general and over the water system specifically.  (3)  The dispute with the regulatory authority went on for most of a decade because the church, or its pastor, did not take it sufficiently seriously and end it, one way or another.  Four years passed between the evidentiary hearings and the final judgment.  In that time, if not before, the church could have developed a record of compliance.  The church could have cut off the well water supply to the interior of the building and used the water only for lawn maintenance controlled by locked faucets, or not at all.  (4)  The church did not consult a lawyer in their state able to deal with the regulators on their behalf, but rather consulted a legal ministry, which the church likely did not pay for its assistance, which could do no more than make some suggestions based on anecdotal consultations.

“SMOKIN’ IN THE BOYS ROOM” IS ECCLESIASTICAL

Sitting in the classroom, thinking it’s a drag

Listening to the teacher rap just ain’t my bag

The noon bells ring, you know that’s my cue

I’m gonna meet the boys On floor number two!

Smokin’ in the boys’ room

Smokin’ in the boys’ room

Now, teacher, don’t you fill me up with your rules

But everybody knows that smokin’ ain’t allowed in school.

Brownsville Station, Yeah! (Album), 1973.

The song may not have been ecclesiastical but the rules prohibiting on campus vaping at church schools may be.  Further, other alleged misconduct, such as spraying water all over the boy’s restroom from a broken hose, or stopping up toilets, may also be the subject of rules of conduct that are ecclesiastical as articulated or interpreted.  Finally, the decision to suspend or expel a student may not be reversible by a court because it might require an entanglement of the court in religious beliefs that drive the interpretation of the alleged conduct, or even church membership decisions.

In the case of In Re Prince of Peace Christian School, Slip Op. (Tex. Civ. App., 5th Dist., 2020), two students were ultimately expelled from a church high school.  The students were allegedly part of a “wolf pack” that was allegedly engaged in vaping on campus, a locker room gathering in which genitalia was drawn and “homophobic” comments were made, spraying the bathroom with water from a broken hose and stopping up toilets.  The conduct allegedly violated the school’s “code of conduct” found in the student handbook.  The relationship deteriorated and the students’ parents refused to confer with school administrators regarding the conduct except through their attorney.  The parents threatened litigation if their children were disciplined.  The parents sued and claimed the school breached the contract to educate their children and engaged in tortuous conduct while monitoring their children, especially in the bathrooms.  The trial court denied the motion to dismiss.  The church school sought from the appellate court a mandamus of the trial court to dismiss the case.  Even though the parents denied presenting any theory of recovery that would require review of ecclesiastic pronouncements, the appellate court held that “[w]e cannot divorce Parents’ contentions of abuse, harassment, and failure to report abuse, from Prince of Peace’s supervision and discipline of Students, its investigation of Parents’ complaints, and its ultimate expulsion of Students and their families.”  Therefore, the Court concluded the intrusion of the Court into ecclesiastical issues would represent too great an entanglement and the case was ordered dismissed.

Public schools in most states have protection from litigation micromanagement because sovereign immunity doctrines or statutes limit such litigation to a narrow band of claims.  Indeed, while the limitations on claims arise from different sources, the resulting safe zone of school administration might be similar.  While criminal conduct toward children would never be tolerated in either public or church schools, one might wish the lack of parenting would not be tolerated either.  Sadly, society has not yet developed a solution for the lack of parenting.

WAGE AND HOUR LAWS AND CHURCHES

Wage and hour laws are generally statutes enacted by states that govern hourly wages, overtime, and other rules.  Generally, in addition to the statutes in each state, each state has adopted regulations that further interpret the statutes.  Therefore, generalizations about state wage and hour law are problematic.  Most states, by statute, regulation or some other means limit the enforcement of wage and hour laws as to church employment.  Employees that are “ministerial” are generally not governed by state wage and hour laws.  However, determining when an employee is “ministerial” under these state provisions can also be problematic.

In Samano v Temple of Kriya, Slip Op. (ILL. App. 2020), the trial court held that the Plaintiff’s employment was governed by state wage and hour law.  The trial court reasoned that the duties of the Plaintiff were more secular than religious.  The appellate court reversed.  The Plaintiff’s title included her as ministerial staff, she conducted weddings, baptisms, and funerals, even though these were not her primary duties, and she was responsible for disseminating “the spiritual messaging of the defendant temple” to the public.  She was responsible for posting religious books, digital versions of sermons, and streaming of yoga as a form of spiritual study.  That the defendant charged for some of the materials did not convert all of them from religious to secular.  As a result, the regulatory authority’s pronouncements regarding jobs that were considered ministerial could and probably did encompass Plaintiff’s job.  The appellate court took guidance from federal decisions exploring the scope of the Ministerial Exception even though the language of state wage and hour laws and regulations were not identical to federal employment laws.

Wage and hour laws will likely be, if the statutory language permits enforcement as to religious entities, enforceable as to clerical and cleaning employees in churches.  Whether these statutes will be imposed on the relationship with employees that have secular as well as ministerial duties will remain unclear.  Courts that try to determine whether a duty is secular rather than religious will risk entanglement in ecclesiastical issues the First Amendment and the Ministerial Exception were to avoid.  Application of the “primary duties” test used in Ministerial Exception cases may further narrow the application of wage and hour laws, too.

CHURCH PROPERTY TAX EXEMPTION DISPUTES

In the annals of church litigation, exemption from taxation is not usually controversial.  If the “entity” can possibly, rather than merely plausibly, be considered a “church,” its exemption from taxation is generally assumed.

In Jaswant Sawhney Irrevocable Trust, Inc. v District of Columbia, Slip Op. (DC App. 2020), the Plaintiff was denied a property tax exemption because it was allegedly not “a single congregation” owning and using the building.  The Plaintiff, however, was a non-profit corporation that operated the property as a Gurdwara, a place of assembly and worship.  The Plaintiff also had other charitable functions besides operating the Gurdwara so the taxing authority held it was not a church.  Ultimately, the appellate court reversed the trial court’s agreement with the taxing authority so that on remand the Plaintiff could put on proof at trial that the property was operated as a Gurdwara.  The appellate court held there did not need to be an exact legal identity shared by the church owner and the congregants to qualify for the exemption.  Also, the statutory use of the word “congregation” did not necessarily require a definition by “legal form, nor indeed by any legal formality.”

Church conferences and denominations may own church property in which meets an assembly of worshippers that may or may not be owners of the property owning entity.  Tax exemption should still be available so that the taxing authority can refrain from ecclesiastical entanglement trying to determine whether the worshippers and the owning entity are “sufficiently” related.  The real challenge in a tax exemption case may be simply to refrain from underestimating their complexity.  In the case reported, the actual application for tax exemption submitted to the taxing authority was not put in the court record.  Even though statutes may use the word “appeal” permitting a challenge to governmental administrative actions, it is not generally automatic that the record before the governmental agency would become part of the record before the court.  An incomplete record is often an anathema to an appeal of any sort.