Occasionally, churches get into bad habits. Such a church may adopt a set of bylaws and a constitution when the church is formed but ignore them for decades. Eventually, however, church growth, maturation, or a dispute force the bylaws and constitution into the light and into use. The argument that the bylaws and constitution “aren’t the way we have done it” may not preserve seemingly long-established tradition. If a church ends up in a court of law on an issue that would otherwise be governed by the constitution and bylaws, tradition, especially oral and anecdotal, will be hard to prove and very unlikely to be recognized as controlling.
In Leggett v True Zion, 2018 IL App (1st) 171101 (Slip Op.) (Ill. App. 2018), prior church leadership wanted to select the new pastor and new board of directors. The congregation, however, decided to follow their bylaws and the board recorded in their minutes that the congregational meeting would be called consistent with the bylaws. The Plaintiffs actually attended the congregational meeting, which waived any notice issue, but “declined” to vote. The plaintiffs filed suit challenging the authority of the congregational meeting to select a new pastor and the new board of directors and alleged the church tradition was that the pastor would be selected by the church “overseer” and not by the board and confirmed by a congregational vote. The bylaws were consistent with Illinois non-profit corporation governing statutes. The trial court dismissed the case with prejudice and the appellate court affirmed.
Church corporation governance documents are important in a church dispute. Bylaws should be followed, written minutes of meetings consistent with the bylaws should be maintained, and every couple of years the bylaws should be updated, if needed, using the procedure in the bylaws for doing so. Tradition is a relic of the past in church governance. If the tradition is that important, or deemed as a spiritual requirement, the bylaws should be amended to incorporate and spell out the tradition. If the tradition is not a relic, stop treating it like one. Even small churches have enormous financial assets compared to their size. No one would want to own a home without a valid title (and probably valid title insurance) and valid homeowners’ insurance by relying on their tradition of living there and paying the bills.
Courts often resolve disputes in ways that neither side wanted, liked, or ever believed was a possible outcome. This is especially true in church litigation when courts find jurisdiction to decide one issue in a church split but lack jurisdiction to decide other issues. The partial rulings that result may also leave some disputes only partly resolved.
In Davis v New Zion Baptist Church, Slip Op., (NC App. 2018), the church split spilled into the street resulting in trial court proceedings that led to an appeal in 2015, was remanded for additional proceedings, and appealed a second time. The combatants in this church split certainly believed in full employment for lawyers. The church bylaws were not followed in 2013 when the then church leadership attempted to amend them. Further, the bylaws were so badly written there was no procedure for removal of church board members and no procedure for elections of replacements. The trial court held the attempted bylaw amendments in 2013 were void based on “neutral principles of law.” The trial court reasoned, as did the prior appeal ruling, that bylaws governed more than ecclesiastical matters, such as property, finances and contracts, and were subject to neutral principles of law. The trial court refused to rule on whether the church board members were properly elected but ordered the church to hold general elections within 90 days. The court of appeals affirmed the voiding of the bylaw amendments but reversed the election order, holding that because the bylaws were silent as to election procedure, that was solely an internal church matter. The net result was that the church leadership remained in office pending future elections but the bylaw amendments would have to be resubmitted in accord with the bylaws. Also, the church leadership decision to disfellowship the Plaintiffs did not impact the lawsuit because the alleged wrongs occurred while they were still members but the court did not reverse their loss of membership.
One lesson to be drawn is that bylaws matter and should be competently drafted and regularly updated with the help of a lawyer hired to assist. The lawyer selected for the task should know something of the corporation laws of the state of incorporation of the church. The adoption of bylaws and amendments should be carefully implemented using the language of the bylaws. Bylaws should be considered regularly and not during controversy. The temptation to tweak the bylaws for advantage becomes too strong at such times. Another lesson is the “official” church membership rolls should be maintained and updated at least annually in congregation run churches. Regular updates will mean that when they are needed to determine who can vote they will be available and most probably were last updated outside of the time when a controversy arose. Both of these lessons, bylaws and membership rolls, are as important or more important for the church with one hundred members as the church with a thousand members. Church split lawsuits usually involve smaller rather than larger churches.
I am not sure “disfellowshipping” is actually a word but I have seen it in various church writings over the years. It seems to be the termination of church membership and exclusion from the church property in the traditions that use it. It seems to be a step down from excommunication which in some traditions at times was thought to be a sure fire damnation. Also, disfellowshipping seems to be used in both a temporary mode and a permanent mode. Whether “disfellowshipping” is a good idea or a bad one depends on the view taken of I Corinthians 5 and other similar passages. That is outside the scope of this blog and this post.
In Campbell v Shiloh Baptist Church, Slip Op. 2017 WL 1434249 (Sup. Conn. 2017), a trial court was confronted with the legal ramifications. The Plaintiff’s church membership had been revoked by a congregational vote in a congregational church (although on this topic it might not have mattered). The Plaintiff sued to enjoin the church from revoking his membership in the church. Interesting, too, was that the church’s Board of Deacons meeting authorizing the congregational meeting and vote on membership revocation was preserved in an audio recording. Also interesting was that the church took the precaution of video recording the congregational meeting at which the expulsion vote was taken. The Plaintiff alleged “procedural irregularities and inequities” in the congregational vote. The audio recording and video recording was not surprising because this was the second time the Court ruled upon Plaintiff’s quest for reinstatement. In the first case, and quoted in this opinion, the Court held its inquiry was limited, “as stated in this court’s earlier decision … a court may inquire whether the act of expulsion was in fact the act of the religious organization.” 63 Conn. L. Rptr. 531. The Court determined the expulsion was the act of the Defendant church and dismissed the Plaintiff’s case. The Court would not undertake “policing of a religious organization’s compliance with its internal procedures.”
This opinion is a reasonable blueprint for the procedure of “disfellowshipping.” Few churches ever have to do this but churches with a reasonable set of bylaws, reasonable leadership, the appropriate mechanism, be it a board or the entire congregation, and reasonable documentation of the vote of either or both will not leave an opening for legal process. In churches where the power is vested in the hierarchy, and the process is settled, the result should be legally impenetrable. For churches where the power is not specified in bylaws, typically congregational churches, the congregational vote is the only mechanism.
In the beginning, all churches were unincorporated associations. The demands of modern accounting and property ownership, including liability risk management, pressed the unincorporated association to incorporate. However, in order to successfully incorporate, the unincorporated association has to follow steps outlined in the law of the state of residence. Even done amicably, such a transition can be challenging to volunteer led churches and pastors that do not also happen to be lawyers. In the middle of a church split, the transaction cannot be completed in most states.
An example of this is Church of the First Born of Tennessee, Inc. v Slagle, Slip Op. (Tenn. App. 2017). Church of the First Born outlived two generations of founders and desperately needed a new organizational structure that would ensure smooth leadership transitions going forward. This was especially true after the church grew into a multi-campus church and established a church school sited on what probably was millions of dollars of real estate.
Before such an amicable restructuring took place, a church split arose. The Court was unsure whether the split arose due to the financial pressures of supporting the church school or whether it was a doctrinal issue that arose because after the founders passed away, new leadership did not command the unanimity that the founders earned but surrendered upon their passing. While the dispute roared around those issues, indeed, those issues were not terribly critical to the resolution.
The Plaintiff was a newly minted church corporation that tried to step into ownership of some of the church assets on behalf of one side of the split. But, because asset ownership transfers are impossible unless all of the members of the unincorporated association have notice and vote to approve the transaction, the mere incorporation by one group in the split did not have the effect of transferring assets. The Plaintiff was, therefore, without standing to bring any claim at all and the case was dismissed.
Church leaders have a duty to recognize their own mortality and plan for leadership succession in a fair process. While many church leaders bristle at the idea of church bylaws or other written policies adopted as the governing rule of the church by a vote of the members, every church that does not have them and does not periodically review and update them increases the risk that a rift in the membership will shatter the peace of the church or in fact doom the church. A church that can own millions of dollars of property should be able to hire a competent lawyer to lead the church to adopt bylaws or written rules. Incorporation is a low cost and relatively well understood first step and makes asset management much easier.