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 (unpublished) (Mich.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.
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.
The sanctity of contracts is so revered in the United States that contracts are preserved and protected in the Constitution of the United States. Article 1, §10, US Constitution. Indeed, the section prohibits any state from making any law that impairs the obligation of contracts. Thus, it should not be a surprise that a claim based on a written employment contract might survive assertion of the Ministerial Exception and the Ecclesiastical Abstention Doctrine arising from the First Amendment. The idea is not that one clause overshadows the other, but rather that they are co-equal in force and must be reconciled so that both survive.
In Sumner v Simpson University, Slip Op. (Cal. App. 3rd, 2018), the Dean of the Tozer Theological Seminary, a part of Simpson University, asserted a breach of contract claim and state tort claims, such as defamation arising from her second termination. She was reinstated after her first termination and compensated for lost wages so the first termination was not argued. However, violation of what might be characterized as a corrective action plan, an insubordination charge, was alleged to be the basis of the second termination that resulted in the lawsuit. The trial court granted summary judgment because Simpson University and the seminary were religious organizations and the Dean, who also taught in the seminary, was deemed to be subject to the Ministerial Exception. The California appellate court sustained summary judgment as to the tort claims under the Ministerial Exception. However it reversed the trial court as to the breach of contract claim. Succinctly, the conclusion of the appellate court was that a contract claim could be decided under Neutral Principles of Law. The appellate court held that a charge of insubordination might or might not be based on religious doctrine. The facts recited by the Court would lead to the conclusion the alleged insubordination may have been regarding secular administrative matters rather than religious matters. However, because the trial court might still be confronted with a religious question as the proceeding developed on remand the appellate court did not foreclose a future dismissal of the claim.
While church hierarchy, ministers, pastors and priests may not be able to assert claims arising from an alleged breach of a written contract in most cases, employees of parachurch organizations with dual roles, secular and religious, may still be able to do so. Much will be determined by whether the termination arises from religious matters or secular matters. Characterization of a termination as religious will be reviewed for authenticity. Therefore, written employment contracts should be written and negotiated carefully. Adverse employment actions should always be carefully documented and especially consistently with any existing written contract governing the relationship. A contract is at its core a promise, and churches should expect to have to keep those they enshrine in written contracts.
Parachurch organizations, religious entities that are not churches or non-profit entities that are directly or indirectly owned and controlled by churches, struggle at times with whether the Ministerial Exception or the Ecclesiastical Abstention Doctrine, both arising from the First Amendment, apply to various legal questions. This struggle is most pronounced when dealing with state law tort, employment or contract questions. It is less pronounced with regard to federal law claims, or at least, it should be.
In Aguillard v Louisiana College, Ruling, Slip Op. (WD La., Alexandria Div., 2018) the federal trial court granted summary judgment against the Plaintiff to terminate the Plaintiff’s federal employment law claims based on the religious organization exemption found in Title VII, the Civil Rights Act of 1964, at 42 USC §2000e-2(e)(2). The opinion’s analysis is instructive of the analysis probably needed in those circuits that have not considered the religious organization exemption. In this case, the Plaintiff claimed he was terminated for his religious beliefs by the religious school. Thus, Plaintiff’s claims for disability discrimination, religious belief discrimination, and age discrimination were all summarily dismissed. It should be noted termination was not simply by executive fiat but was also confirmed through the school’s own tenure required due process procedures.
Such cases will probably be determined in the first instance by the clarity with which the religious identity or purpose of the parachurch organization is enshrined in the founding documents and perpetuated in the policy and procedure manuals of the entity. Such religious identity should not be merely assumed because the organization has been around for a long time. Documents lacking clarity of identification should be amended.
Internal church investigations that involve only church employees and church members may be immune from judicial intrusion. Having stated that generality, no one reading this should for a moment doubt that statement does not apply to child abuse including sexual misconduct with a child. Child abuse is a crime. It is inherently a violent crime. The First Amendment will not shield a violent crime. However, nearly all other internal church investigations, disciplinary actions, and terminations of employment or membership will be shielded by the Ecclesiastical Abstention Doctrine. That will be true in the end whether a jurisdiction treats that First Amendment doctrine as an affirmative defense or a limitation on jurisdiction.
A recent example is the opinion issued in Orr v Fourth Episcopal District African Methodist Episcopal Church, Slip Op. (Ill. App. 2018). The Plaintiff, an employed minister, faced a charge of sexual harassment not involving a child. The internal church investigatory process was halted while the matter was in litigation. As part of the process, the minister was transferred from a church in Illinois to another state. The trial court granted summary judgment on Plaintiff’s defamation theories and the appellate court affirmed. The hierarchical denomination in the case at the time of the allegations was governed by a “Book of Discipline.” The Book of Discipline established a complex system for reporting and internally adjudicating internal sexual harassment claims. The process at the time included a “judicial committee” that operated “like a grand jury,” a “trial committee,” and a “trier of appeals.” The process was confidential and there was no allegation it had not so remained.
The internal investigation will be shielded if it remains internal to the church. “Leaks” are not the issue in this report but could be in some other case. The issue will be “public pronouncements.” Internal announcements will likely be shielded as long as they are made only to leadership or only to actual church members with a need to know. The ruling of the church due process system, no matter how modest or elaborate, may be made public and may be shielded, but the exact care to be taken in implementing a final decision public announcement is not the subject of this report.
Regulatory investigations of all kinds are unsettling because they are usually conducted in a manner without the due process safeguards found in a court. The right of confrontation is blunted or non-existent. The regulator seems to be the prosecutor and the judge. The common sense of a jury, much less its neutrality, are often perceived as missing. Things outside of the box or the norm tend to make regulators insecure and defensive. Regulators must navigate the shoals of their own too limited budgets and too expansive mission objectives.
In Trinity Christian School v Commission on Human Rights, Slip Op. (Conn. 2018), a church employee filed a discrimination complaint against the church before the state agency. The state agency commenced a proceeding. Presumably, the proceeding was autonomic process and it did not appear from the opinion to be the result of an investigation. The church moved to dismiss the proceeding urging the Ministerial Exception of the First Amendment. The motion was overruled and an appeal to the state trial court resulted in dismissal of the appeal because the Ministerial Exception was deemed to be an affirmative defense and not an immunity. The church returned to the state agency proceeding and submitted a second motion to dismiss based on the state statute that required state burdens on free exercise of religion only when there is a compelling state interest. This second motion was denied both by the regulatory agency and the trial court. The Supreme Court of Connecticut affirmed the trial court holding that the state statue was not a statute of immunity but was a “rule of construction.” Thus, the church was returned to the state regulatory proceeding to assert the Ministerial Exception and to argue with the regulator whether the regulatory mission was a compelling state interest.
Motions to dismiss are an excellent strategy for degrading the ardor of Plaintiffs of limited resources. It is also the only means to weed out implausible claims. In a regulatory proceeding, once that tactic is exhausted, the case must be built with the same eye to creating a record that would be made in court. Indeed, this may be the “trial” and the only “day in court” the church may have. Sometimes this must be done on very short deadlines and without the full discovery tools available in court. Sometimes this must be done in the face of defensive and hostile regulators that are activists for one cause or another. Most regulators, unless they happen to be a member of a church in the same tradition as the church before them, will be completely unfamiliar with church theology or traditions. If the main defense is the Ministerial Exception, then the religious duties of the former employee must be fully documented in excruciating detail. While the expenses mount, the church may have to consider an investigation of the regulators and their history with other churches that have been brought before them. The separate of church from state is a permeable wall when least expected.
Church pastors often suffer from an imposed “vow of poverty.” Congregations that are not faithful donors often remain chronic. Founding pastors often remain for their entire career at the same church never subjecting the church to the reality of the marketplace. Pastors that make the mistake of residing in a “parsonage” lose the home equity most middle-class Americans treat as a civil right. Founding pastors often fail to install retirement plans until late in their career with no way to “catch up” without offending the good folks at the federal and state taxing authorities. However, when a pastor or a conscience driven church leadership tries to address the problem with inadequate resources and inadequate professional advice one or the other, or both, enter into arrangements that are questionable. The pastor, and usually the pastor’s widow, end up without a solution, or worse, with a ruined legacy.
In Jenkins v Refuge Temple Church of God, Slip Op. (SC App. 2018), the founding pastor appointed board members, however, the bylaws required congregational election. The pastor asked the board to enter into an employment agreement with him that contained a survivorship clause whereby his widow would receive income for life. The employment agreement with the survivorship clause was not voted upon by the congregation nor even revealed to the congregation. After the pastor died, the widow was paid by the congregation for six years. Financial necessities convinced the successor pastor and church leadership to phase out the payments. They believed the widow’s payments fulfilled their obligation as set forth in church tradition for such situations and did not learn of the written contract until the litigation for breach of the contract was brought by the widow. The trial court entered judgment for the widow on a breach of contract theory, apply neutral principles of law, but the Court of Appeals reversed. The failure of the board to be properly elected was fatal to the enforceability of the contract. That the church had made monthly payments to the widow did not estop the church under the laches doctrine because the church did not know about the contract.
Other financial arrangements might have worked far better than a “secret” contract adopted by a board of dubious legal authority. A Certified Public Accountant, a financial planner, or even an insurance specialist could have suggested many options and revealed their relevant costs. The pastor and the church may have had a moral obligation to the widow. Whether either fulfilled that obligation is a moral question not within the scope of this report. During the pastor’s ministry, a retirement plan should have been in place other than the employment contract survivorship clause. Both the pastor and the church leadership should have enacted it. A life insurance employment benefit, for example, would have been the easiest solution.