Courts will typically refrain from resolving church leadership succession controversies. A court might make certain the process dictated by the church governing documents is followed such that usurpation is not likely to succeed, especially when in dispute are positions in congregational churches. In hierarchical church organizations, the courts seem less likely to resolve a dispute because church government is presumptively able to manage its own internal process for elections.
In our post on April 4, 2017, we reported the opinion in Puri v Khalsa, 844 F3d 1152 (9th Cir. 2017) in which the Oregon federal court dismissed the case on the pleadings and on appeal the United States Court of Appeals for the 9th Circuit reversed an Oregon federal district court decision. On remand, in Puri v Khalsa, Opinion and Order, (D. Or. Portland Div. 2018), discovery proceedings were followed by motions for summary judgment. Also, a state court four-week jury trial had been concluded on state law theories of recovery. In the case on remand, the Oregon federal court had all the evidence the parties could muster in discovery and the prior trial, too. The issue was whether the succession plan of the founding religious leader was enforceable or whether the boards of the denomination could revise or revoke the succession plan. The founding religious leader died and left written instructions with the lawyer of the corporation regarding the identities of the persons the late religious leader was appointing to the controlling boards. The Oregon federal court held that the boards could revise the succession plan. Also, the Oregon federal court concluded the evidence proved that while they may not be conventional churches the defendants were religious organizations. Also, the court held the board members, because of their authority to choose and remove religious leaders in the church, were governed by the Ministerial Exemption Doctrine. Finally, finding the entities to be religious organizations brought their internal decision-making into the Ecclesiastical Abstention Doctrine. Thus, the Oregon federal court dismissed the case.
Succession plans that involve binding beyond the grave are likely to fail. A founder that wants to preserve a legacy should do so before retirement or death. Governing documents that invest denominational boards with the authority to select clergy or other church leaders may likewise place the election of board members beyond the reach of a secular court. Internal processes that select these board members should be carefully designed to avoid over reaching and usurpation because secular court rescue may not be available. As the foregoing demonstrates, the founder’s legacy was costly to preserve or inherit, and may not, in fact, belong to the founder or the founder’s heirs.
Churches often own property and when that property is no longer mission critical the churches lease the property to a tenant. It provides the church a source of income from an asset that may one day again be needed. It allows the church to retain control of what is typically adjacent or nearby property. Of course, the Ecclesiastical Abstention Doctrine may apply to some disputes, in whole or in part, about church property. In Neutral Principles jurisdictions, secular issues may be decided and religious issues ignored or the reserved for decision by the church.
Beluah Pilgrim Holiness Church v Otto, Slip Op., Memorandum and Order (Mass. App. 2018) was an interlocutory appellate order concluding that the Housing Court had jurisdiction to hear eviction proceedings against tenants of church property. The Housing Court in Massachusetts, apparently from the opinion, conducts “summary proceedings,” which are probably cases tried only on written submissions and a due process hearing. Most likely, if either party desires trial of issues not suitable for that minimal process, the matter is transferred to a court of general jurisdiction.
The takeaway is that in Neutral Principles jurisdictions church landlords, and tenants, should be able to use limited jurisdiction courts and proceedings. The flip side is that they can be forced to participate in proceedings before those limited jurisdiction tribunals and should not assume the church will be able to easily ascend to a court of general jurisdiction.
Church employees that run afoul of basic moral tenets of church employers are often terminated. Whether this is good church policy or not depends on the situation and depends on the alternatives available. Unfortunately, sometimes it is a financial question because some members may not want their offerings used to deal with the consequences of sin in others who fail to hide the sin.
In Kelley v Decatur Baptist Church, Memorandum and Order (ND Ala., NE Div. 2018), the federal district court did not dismiss the Plaintiff’s case because the Plaintiff alleged she was terminated because she was pregnant in violation of Title VII. She also alleged she was a “maintenance” and child daycare employee. The church alleged the pregnancy was out of wed lock and that the Plaintiff “sowed discord” among the daycare employees, neither reason being governed by Title VII. The church also asserted the first reason for termination was driven by beliefs protected by the Ecclesiastical Abstention Doctrine and the Ministerial Exception Doctrine because the Plaintiff was a “minister.” The case was not dismissed because the Court had to assume as true the allegations in the Complaint at this stage of the proceedings and that at best there was a factual dispute that could not be resolved at this stage. The case will proceed into discovery and possibly other proceedings.
There might not have been a factual dispute if as a new employee the Plaintiff had acknowledged by signing a document describing her position and its duties as ministerial or if there had been an employee handbook similarly acknowledged that contained similar language. Such an employee handbook might have contained a morals clause that expressly listed pregnancy out of wed lock, for the father and the mother, as disqualifying criteria for working with the children entrusted to the church. The troubling aspects of the situation may have been reduced if the church had engaged and paid a license professional counselor to counsel the Plaintiff to reduce or end the “discord” among child care workers, especially if that effort failed, and to help her make the adjustment to motherhood. The Scarlet “S” approach, if the church took that approach as the Court’s opinion seems to suggest, did not seem to work so well.
The tenth report posted herein in February 2017, entitled The Chicken Did It, was about a 2016 case out of California in which the California appellate court reversed for further proceedings a case involving over flow parking. Well, there has been another one. However, the lesson from these two cases is radically different. The California case reversed for further proceedings because the church gave no warning about the busy street and took no other action to protect people jaywalking to the church. This report is about the opposite.
In Charney v Reitz, Slip Op. (PA Supp. 2018), the church had only four paved parking spaces but was able to use a commercial parking lot across the street for over flow parking. The use of the parking lot across the street was a practice that persisted for decades. But, the street to be crossed, which may have not been in the distant past, became a very busy street. The church sometimes had police or firefighters acting as crossing guards. The church used reflective cones to warn drivers. In a footnote, the court even reported the church tried to take other safety actions but was blocked by the state’s department of transportation. What was the church’s reward for this diligence? The court found the church voluntarily undertook the duty to safeguard persons crossing the street to attend church events. The remand would be a jury trial over whether the church carried out its duty adequately in the fatality pedestrian auto accident that was the subject of the case. The deceased was a church member and was actually the person that purchased the reflective cones, so the deceased knew about the risks of crossing the street. But, the deceased was 84 years of age.
Trying to read the two cases side by side is disheartening because the church that did allegedly nothing, according to the court in California as reported in the February 2017 post, faced the same trial as the church reported in this post that did several things and may have been stopped from doing more. Of course, as a practical matter, the church that tried to address the problem may with the right jury find exoneration. Both churches hopefully had adequate insurance coverage and their legal fees were probably paid by those insurers. In addition to making certain their insurance policies covered use of an over flow parking lot, the churches should petition, maybe repeatedly, state, county or city traffic authorities to install flashing yellow warning signs, an officially installed and painted cross walk, and other safeguards. While the government in most states cannot be successfully joined as a party, they make a great “empty chair defendant.” Your trial counsel can explain that one to you.
A famous teacher of evangelical pastors once told me that pastors had no choice but to be jacks of all trades. In this blog, the cases reported involve everything from financial controls, zoning, internal security for vulnerable members, property titles, and corporate control issues, just to name a few.
In Christ’s Legacy Church v Trinity Group Architects, Inc., 2018 OK CIV APP 31 (oscn.net), a division of the Oklahoma Court of Appeals reviewed a trial court summary judgment in favor of an architectural firm in a case about the design of a church building. The church claimed the architectural firm was negligence and breached its contract. The Court of Appeals affirmed the judgment against the church as to the negligence claim but reversed and sent the case back to the trial court on the breach of contract claim. The architectural firm claimed the written proposal was not signed by the church so there was not a written contract. If there was only an oral contract, the statute of limitations was three years but if the contract was in writing the statute of limitations was five years. The Court of Appeals held it did not matter whether the proposal was actually signed if it, indeed, represented in writing the agreement of the parties and had been acknowledged in another way.
In the trial court, the church will have to prove the written proposal was the written contract under which the architectural firm did the work even without a signature. One change order to the “proposal,” or a couple of emails, or “in re” lines on a letter or a fax will probably do it. Thus, once again, a case may be determined on whether in the age of scanners and computers the church was a reasonable records custodian. The statute of limitations barred the negligence claim because the church did not, or could not, investigate fast enough to present a claim. Most volunteer run churches usually have no more than one or two FTEs neither of which are professional property managers so the time to investigate gets away quickly. Also, well-meaning church members tend to stand around and gawk at a problem none of them are fully competent to address. Church boards need to hire the professional that can address the problem, pay for the service, and get a definitive answer with dispatch, which may include trial counsel. Large engagements like engaging an architect to design a building require as stewardship a written contract signed by everyone. One more thing for the pastor to know, right?
After the United States Supreme Court’s decision in Alamo Foundation v Secretary of Labor, 471 US 290 (1985) held that persons working for food, clothing and shelter were in fact employees because of their economic dependence entitled to the Minimum Wage, occasional confusion resulted about whether church volunteers were employees. Because church volunteers were not economically dependent, i.e., could walk away and never return, they were not employees entitled to payment.
In Acosta v Cathedral Buffet, Inc., Slip Op. (6th Circuit 2018), the United States Court of Appeals for the 6th Circuit was confronted with a Department of Labor (“DOL”) conclusion that because the church volunteers were spiritually or socially coerced by the pastor to serve as volunteers in the church owned restaurant that they were in fact employees entitled to the Minimum Wage. The DOL had to reach that conclusion because it could not realistically claim the church member volunteers were economically dependent for sustenance as had been the workers in the Alamo case. The 6th Circuit concluded that spiritual or social coercion, if it existed, was not envisioned by the Fair Labor Standards Act (“FLSA”). As a result, church volunteers could not pursuant to the FLSA be employees.
The Concurring Opinion questioned whether the DOL had fully contemplated the implications of inquiring into spiritual or social coercion if such existed. The Concurring Opinion noted such an inquiry would require an inquiry into the religious imperatives for the volunteers contrary to the Ecclesiastical Abstention Doctrine of the First Amendment. Music worship leaders that must hold together church choirs and bands week after week forever can attest to the necessity of the spiritual guilt trip. But, such persuasion, if it is coercive, is not recognized as a prerequisite to a conclusion a worker is an employee rather than a volunteer. (However, the Concurring Opinion did not ask the same question of the federal trial court.)
The Daily Oklahoman, the general circulation newspaper in central Oklahoma, noted the 6th Circuit’s decision in an op-ed piece in the April 23, 2018 edition. The Oklahoman concluded church volunteers could simply find another church. Somehow that did not occur to the DOL or the federal trial court which was reversed by the 6th Circuit.
Church split lawsuits will sometimes be cases that lack sustainable claims. Courts will rarely be able to consider ecclesiastical matters or minister employment cases on the merits. The lack of a sustainable claim does not mean the case was automatically frivolous. A frivolous claim typically lacks any basis in law or fact. Usually, church split lawsuits have a basis in fact or law but not enough to sustain a successful claim. This is not unique to church lawsuits; cases are often dismissed in all areas of law.
In Cho v Choi, et al., Slip Op. (NJ Supp. App. 2018), it took the appellate court only two pages in a per curiam decision to affirm the motion to dismiss granted by the trial court. The Plaintiff brought four defamation cases against fellow members and a lawsuit against the pastor. The defamation claimed was that in a public congregational meeting the defendants allegedly stated the Plaintiff was “try to take over the church” and would foreclose on the church if it defaulted on the loan Plaintiff made to the church. The Court held these statements were either true, and therefore not defamatory, or simply not defamatory. The Court held the claim alleging the pastor was not qualified could not be reached by the Court because the credentialing of the pastor was ecclesiastical. The Court held that whether the pastor’s credentialing complied with the denominational handbook was an ecclesiastical matter.
Defamation cases are difficult to pursue and usually the alleged wrongdoer would be insufficiently solvent to make a case economical. Ministerial employment cases are sufficiently problematic that if the qualifications for office of the hiring board members can be challenged that approach would have a greater chance for success.