Denominational churches often are not only members of the denomination but through the organizational documents of the church, the denomination, and even a filed real estate title the congregation does not have the power to withdraw their property or assets from the denomination. The rationale for this is that denominational members are believed to trust the denomination to protect their offerings, which are turned into property and assets at the local level, even after the member has died or moved to another local church.
In Ohio District Council of the Assemblies of God v Speelman, 2018 Ohio 4388, Slip Op., (Ohio App. 12th, 2018), declining local church membership caused the remnant of the local congregation to seek a merger with another denominational group and to “disaffiliate” with the Plaintiff. The local church joined the Plaintiff denomination in 1972. The Pastor Defendant was paid $200 per week during his tenure from 2006 to 2011 but he could not arrest the decline in church attendance although his efforts were briefly summarized by the Court and seemed genuine. The trial court after a bench trial (a trial without a jury) ruled in favor of the Pastor Defendant holding the “disaffiliation” and merger with another denominational group was lawful. The appellate court reversed and ordered the trial court to consider organizational documents of the denomination and the local church. The local church title to property did not contain a reservation of the denomination’s ownership interest. On remand, the trial court entered judgement in favor of the Plaintiff denomination but on the damages theories only ordered the property and assets, an 18,000 square foot facility and equipment, returned and only $100 in monetary damages. The Plaintiff denomination appealed the damages award and the appellate court ordered the trial court to assess reasonable monetary damages for loss of use of the facility and affirmed the ordered return of property and assets. Punitive damages, though sought by the denomination, were not assessed because the Pastor Defendant admitted he had assumed the local church denominational affiliation was “voluntary” and terminable at will and did not read the local church organizational documents. Thus, the court found no “malice” with which to support an award of punitive damages.
Local church titles often do not contain reversionary clauses because lending institutions do not believe by foreclosure they can recover clear title against such clauses. Denominations do not require such clauses because local churches need mortgages. This case, as in most, a reversionary clause in the title does not matter. The organizational documents of the local church and denomination control in most cases. Even in cases where the local church documents are unavailable or otherwise murky, the denominational organizational documents will usually be sufficient to force reversion of the property and assets to the denomination. Monetary damages judgments may also be possible and the losing local church leadership should not count on mercy from the denomination bent on recouping litigation costs the denomination often feels were unnecessarily expended. Indeed, if the local church leadership acted with intent or maliciously, punitive damages might be awarded.
The economic pressures that bring out the purchase, sale and merger of business entities both small and enormous also do the same with churches. Churches are also impacted by the constant drain of members to the latest fads and movements, such as the mega-church complexes of this age. Churches also have life cycles; they are born, they grow, they age out and some die out. While ecumenical churches seem to preserve their outer shell against the ravages of time, nevertheless their congregations go through the same cycles and face the same economic pressures.
In Pure Presbyterian Church v Grace of God Presbyterian Church, Slip Op. (Va. 2018) the Supreme Court of Virginia, affirmed a trial court decision enforcing a merger agreement between two churches. By the time the dissenting group decided to challenge the merger, the merger was well along. Indeed, the opinion implied that the decision to challenge the merger coincided with the attempt of the dissenters to sell their property to a third party before the title transferred to the surviving entity in the merger. The dissenting group argued the Court lacked jurisdiction to hear the dispute under the Ecclesiastical Abstention Doctrine of the First Amendment. Another factor was that the jurisdictional challenge was not pressed until after the adverse jury verdict. While jurisdictional challenges can be made at any time, including on appeal, the psychology of late presentation of the challenge cannot be underestimated. An after thought never has the credibility of a challenge from inception. Be that as it may, the court held the First Amendment did not preclude application of neutral principles of contract law to the merger, even if that had an impact on church governance. The court could verify that the two congregations voted to adopt the merger contract even though that had an impact on church governance. Both could be accomplished to determine the owner of the church property. The dissenters tried to stop the merger enforcement litigation by a bankruptcy filing and automatic stay but, again, were probably too late and the bankruptcy plan was silent as to the merger.
While merging churches often are tempted to move slowly to allow everyone to adjust to the new normal, some members may never adjust. Leaving such minorities opportunities to interfere with or further slow the merger are invitations to expensive legal dramatics. Mergers should be closed on a day certain and all church property re-titled the same day. All bank accounts should be liquidated and closed in the extinguished entity. Indeed, new accounts may be wise in the surviving entity.
It is amazing how emotional a few church members can become over the name of the church. For most, the church name is simply an evangelistic marketing tool like the now ubiquitous ever changing electronic sign. But for some it becomes something as intrinsic as identity. Thus, changing the name of a church is usually done with slow care and consensus building in congregation governed churches. Also, name changes are as easily done as undone in most states. In most states, indeed, the church corporation name can remain the same and the new name can be adopted by merely filing a fictitious name certificate, or whatever the certificate is called in a particular state. Changing the name back merely requires filing a revocation of the certificate. Some churches will vote to adopt an alias name for a year and at the end of the year vote to keep the name or revert to the old name. That is a tried and true method to prevent what happened as described in the next paragraph.
In Gunn v First Baptist Church, Slip Op. (Tenn. App. 2018), the member did not want the name changed to “The Church at Sugar Creek.” The opinion of the court does not recite enough facts to know the basis or content of the objection by the member. Also, it is not clear whether the church corporation changed its name or merely adopted a new alias name using a procedure similar to the one described above. The member sued claiming the congregational vote to change the name was void because non-members or ineligible persons were allowed to vote. The opinion does not state whether the vote was close, recorded in any manner such as with paper ballots or a web-based tally, or whether it was a show of hands or otherwise secret. The court merely looked at the bylaws of the corporation, noted that membership was determined by ecclesiastical considerations, and affirmed the trial court’s dismissal of the case holding the ecclesiastical abstention doctrine limited the court’s jurisdiction over internal church management decision making.
The lesson from this is given in the first paragraph above. But, the other thing to note is that the brief filed on behalf of the member failed to cite a legal authority opposing the notion the ecclesiastical abstention doctrine prevented the court from reviewing a congregational vote. As has been reported on this website more than once, neutral principles of law are often applied to procedural irregularities in congregational votes using state laws governing corporations. While that is rare because it can easily go further than the First Amendment allows, and courts loathe supervising something like that, apparently that authority was not presented to this court.
Fortunately, there are few church bankruptcies. The bankruptcies that are of note are usually of larger hierarchical church organizations. Local churches may be foreclosed but after that typically they simply dissipate or meet in rented space or homes.
In Re: The Archdiocese of Saint Paul and Minneapolis, Slip Op. (8th Cir. 2018), four hundred clergy sexual abuse claimants represented by a creditors committee sought to consolidate all of the 200 affiliated non-profit corporations related to the archdiocese so that their assets could be added to the estate of the archdiocese. These 200 affiliated non-profit corporations included local parish churches, schools, charities and foundations. The 200 affiliated non-profit corporations were formed consistent with state law and as a result their boards were composed of the archbishop, vicar general, parish priest and two lay members appointed by the other three. The affiliates were allegedly directly or heavily controlled by the archbishop, and occasionally abolished some of the affiliates. However, the Unites States Court of Appeals for the 8th Circuit affirmed the trial courts that refused to grant consolidation. The 8th Circuit noted that the bankruptcy code allowed substantive consolidation only as an extra-ordinary equitable remedy to be ordered in rare cases. The occasional failure to adhere to corporate forms or the occasional discontinuation of an affiliate and absorption of its assets was not enough to warrant the remedy. The remedy was generally expected to be used only when affiliates were part of a Ponzi scheme or were, in fact, mere alter egos of the debtor, neither of which were before the trial court.
Failure to follow corporate forms if sufficiently pervasive that it results in commingling of assets may lead to a conclusion an affiliate is a mere alter ego. The sufficiency would seem to be reached if corporate forms are disregarded in a cavalier or criminal manner and not in a few isolated incidents. That the archbishop served on every board and had the power to remove board members, in the case reported herein, resulted as much from state corporation law applicable to all non-profit corporations. Thus, state corporation law should be consulted to make sure the composition of affiliate’s boards is either expressly authorized or expressly required.
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.
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.