Tag: church property

FINDING A BURNING BUSH — CHURCH DOCUMENT AUTHENTICATION

When a church split spills out into the street and ends up in court in a jurisdiction that will apply neutral principles to decide the case, each side should be prepared to provide authenticated documentation of their right to own the church property or rule the church.

Church property title can often be established by documents publicly filed or denominational documents owned by many different people. But, when church property ownership turns on identification of the church leadership, especially on the local church level, church document authentication can become a challenging issue because many local churches are not good record keepers and not all foundational documents are filed in the public record. Getting a volunteer church officer or a part-time secretary to timely find and authenticate a document can be a challenge. Finding a corporate seal or encouraging those volunteers to appear before a notary can be a challenge, too. Local churches often do not have and cannot find corporate minutes for the current year, much less years past. Finding a burning bush is sometimes less stressful.

In a bankruptcy adversary proceeding, First Korean Christian Church v DW Kim, Memorandum Decision (Bankr. ND CA, 2017), in order to rebut a claim he had been defrocked by the denomination, the former pastor submitted an unsigned and unauthenticated document. The unauthenticated document purportedly indicated a reversal of the decision of the disciplinary authority of the denomination to strip the pastor of his credentials. The former pastor also claimed the court did not have jurisdiction to decide the question of his denominational credentialing or whether he could serve as pastor of the local congregation. The Court rejected the unauthenticated document and based on the authenticated documents granted judgment to the local church and the denomination.

In many cases, if a contested document is not authenticated, it can be rejected as proof by a court without anything further. Also, a document that is not authenticated will typically not provide the basis for a challenge to an authenticated document.

In a church or denomination, sometimes the proof has to be marshalled as to whether the authenticating or endorsing witness actually has the authority to authenticate or endorse a document because to an outsider the authority may not be readily apparent or identifiable. This is especially true of denominations that have governing boards that meet infrequently if such a board is the only authority that can authenticate or delegate the authority to do so. In other words, sometimes a witness must be found that can testify truthfully that the authenticating or endorsing witness actually has authority to do so. Sometimes, as noted above, it is the burning bush one must find.

SIGN WARS – AESTHETICS RULES

Like the proverbial finger stuck in a dike, some towns still try to limit the growth of electronic variable display signs, generally to keep them out of neighborhoods rather than commercial areas. Churches migrating from manual signs often find these ordinances stand in the way of modern signage for churches because churches are often in residential areas and are often the last to update to new electronic signs. Thus, while churches might be the first in the residential area to have any sign they are usually last to install an electronic sign and therefore not grandfathered by the time the ordinances were amended to address the age of the electronic sign. The electronic variable display signs are usually programmable from the church computer system or someone’s cellular data phone, which is the attraction. The manually changeable signs require ladders and a high wire act, usually in high wind.

In Signs for Jesus v Town of Pembroke, Memorandum and Order (D. NH, 2017), the New Hampshire federal court was asked by Signs for Jesus, a non-profit para-church organization assisting the church with an electronic variable display sign and the Plaintiff, to set aside the ordinance of Pembroke that disallowed such a sign in the part of the town in which the church was located. It is unclear from the opinion why Signs for Jesus was litigating in federal court rather than in the state trial court. It seemed that Signs for Jesus wanted to test some of the federal legal rights for churches. If that was the case, then this seemed like a case lacking facts essential for such a “test case.”

The church was in a section of the town in which the electronic variable display signs were barred. The only two exceptions in the area of the church were signs owned by a gas station and a public school; the gas station sign predated the passage of the ordinance and was thereby grandfathered and the public school as a state political subdivision could not be regulated by the city government. The ordinance merely banned the signs in residential areas and did not apply uniquely to churches or to sign content. The stated purpose of the ordinance was to preserve aesthetics, a “semi-rural” ambiance.

Signs for Jesus’ federal court complaint challenged the constitutionality of the ordinance, alleged First Amendment free speech rights were violated, alleged a Fourteenth Amendment Equal Protection claim, alleged a Religious Land Use and Institutionalized Persons Act (“RLUIPA”) claim, and alleged a Due Process claim. The constitutional claims were disposed of because the ordinance was “content neutral” and did not single out churches. The RLUIPA claim was denied because the church did not prove the ordinance was a “substantial burden” to religious exercise by the church and did not prove treatment on less than equal terms, both of which are proof required under the statute. The opinion was detailed although this summary is not.

RLUIPA might have been of some help if the record had been developed differently. Although Signs for Jesus sought a variance (or the church did), it was the denial of the variance by a concomitant use of discretion that might have been the better basis for a claim, but that was not the focus of the claim, at least in the federal court’s recitation of the facts. Also, the lesson from this case might be that political solutions with elected officials might be better pursued than litigation in ordinance issues. Local elected officials are often reluctant to refuse relief to a church. Also, the church could have considered placing a sign in the commercial district of a town as small as Pembroke. Humorously, sometimes planning such a sign where no one else wants it but where it is legally permitted can obtain support for a variance.

INSURANCE CLAIMS – THE LEGAL MINEFIELD

One of the axioms that govern lawsuits is that litigating about litigating is almost always the best first strategic move by the defense. It is almost always the Plaintiff in a lawsuit that has suffered some loss and then to recover the loss legal fees and expenses must be paid. This has the impact of deepening the loss without certainty of recovery. Also, litigation choices, which are almost always at best guesses about future events in a case, e.g., whether this expert witness will persuade when another might not, or whether a witness will give reliable trial testimony or whether a deposition should be taken to reduce that uncertainty, will drive the cost but not always the outcome.

An example of this is Ministerio Evangelistico International v United Specialty Insurance Company, Slip Op. (SD FL, Miami Div., 2017). Ministerio endured water damage from a roof leak and could not reach an accord with its insurance carrier. The opinion does not disclose the reason for the dispute but a reasonable speculation might be that the insurance carrier thought a neglected maintenance issue was the culprit rather than roof damage from a casualty loss. Regardless, Ministerio sued but sought a declaratory judgment, a declaration of rights under the policy, rather than merely a breach of contract claim or a bad faith claim. The insurance carrier moved to dismiss the declaratory judgment claim, only one of two claims the church had, and the court dismissed it. The case continued as a breach of contract claim but Ministerio likely incurred legal fees resisting the carrier’s motion to dismiss the declaratory judgment claim. The case started in state court at the end of 2015 and by April 2017 had only reached the Answer stage, meaning a year and a quarter passed. Many federal courts in the United States can still bring a case to conclusion in that amount of time.

The longer a case lasts, higher legal fees, higher expenses, and greater fatigue are often the result. Insurance carriers, however, because litigating risk is part of their business model and part of their cost of doing business, are less sensitive to such fatigue than would be a church. Thus, a lesson from this case is that church litigants should be focused and not scattershot in their lawsuits to avoid, if possible, the trap of litigating about litigating. Indeed, in this case, after a year of litigating about litigating, the case is not over but is barely under way.

CHURCH PLANTING BY FISSION

Many of the churches that dot the North American cultural landscape were founded due to a church split. It does not matter whether the split was equal or left only a remnant in the original church or in the new church. This method of church planting is messy and painful, and does not always result in the survival of the older or the newer church. It happens, it seems, in every “religion” and in every type of religious group, including independent churches and denominations.

In Sentinel Insurance Company v Shaarei Tzion; Ahavat Israel, Slip Op. (D. Az., 2017), it was a “synagogue split” that created the property issues that led to a declaratory judgment action by the property insurer for Shaarei Tzion. Shaarei Tzion made a claim for $176,040 regarding property allegedly taken by former members when they left to form Ahavat Israel. The property included “several Torahs, prayer books, books, other religious artifacts, tables, chairs, and bookcases.” Of course, Shaarei Tzion and Ahavat Israel, both corporations, were suing each other. The opinion carefully untangles the competing claims and is a textbook example of how not to divide a congregation’s property in a church fission.

One argument that Ahavat Israel made was both unique and clever. Ahavat Israel could not deny that the property taken was in the possession of Shaarei Tzion. But, Ahavat Israel asserted Shaarei Tzion did not own the property because the property belonged to the “greater “Bucharian Jewish Community.”” The Court recognized that was an ecclesiastical argument it could not address but noted under neutral principles of law the Court did not need to resolve that issue and that the claim did not deflect Shaarei Tzion’s claim to possession. The Court noted that Shaarei Tzion, whether as custodian or permissive user of the property, if not outright owner, had a right to possession that Ahavat Israel did not have and that Ahavat Israel had committed conversion to take the property.

The lesson from this is that unless the fission creates a financial need great enough to force both entities to negotiate property divisions, the departing founders of the new church should simply leave all the property behind and invest their resources not in legal fees but in their own heritage and its material manifestations. Among some religious groups, the religious artifacts and worship tools are admittedly difficult to replace, but the alternative is protracted legal problems and protracted resentments.