We reported in July 2017 and September 2017 on Winkler v Marist Fathers of Detroit, Inc., Slip Op. (Mich. 2017), an opinion of the Supreme Court of Michigan that was revised. Our posts were entitled: The Finger in the Dike and The Leak in the Dike, respectively. The Supreme Court revised its own prior pronouncements that the Ecclesiastical Abstention Doctrine was jurisdictional and indicated it was not jurisdictional. If a dispute could be decided on neutral principles that did not require an inquiry into ecclesiastical decisions, then the dispute could be resolved by a Michigan court according to the Michigan high court. As we noted when we summarized the decision, the smaller and weaker the Ecclesiastical Abstention Doctrine is defined the more likely it becomes that a court, even a well-meaning one, will simply ignore ecclesiastical sensibilities. Another risk is that churches will be required to comply with laws intended to govern for-profit businesses and local governmental subdivisions, or the rules applicable to public schools, even though churches and church schools have a more fragile financial base.
In Rubinstein v Temple Israel, Slip Op., (Mich. App. 2018), the trial court dismissed the case for lack of jurisdiction. The religious school’s rule that required vaccinations and allowed exemptions only for medical reasons was narrower than state law that also allowed exemption on religious grounds. The trial court reasoned that an inquiry into whether the religious school’s determination that its students would not have religious grounds for refusing vaccinations was ecclesiastical and for that reason the trial court would not have jurisdiction to hear the case. The intermediate appellate court in Michigan, relying on the Michigan Supreme Court decision in Winkler, reversed the trial court because the Ecclesiastical Abstention Doctrine was an affirmative defense and not jurisdictional. In other words, a trial court might determine after discovery, in a summary judgment proceeding or a trial, that neutral principles could not decide the dispute but that the trial court would have jurisdiction to make that determination. Likewise, the trial court could rule that the dispute was not ecclesiastical.
The trial court on remand after the parties spend much more on litigation could hold the religious school cannot determine the religious preferences it will tolerate among its students. The trial court could reason that because a “neutral principle,” a state statute designed to preserve religious choice regarding vaccinations required by public schools, could resolve the dispute it need not make an ecclesiastical inquiry. Of course, one would think that under the First Amendment a religious school need not accommodate religious beliefs that vary from its own, whatever they are, but Michigan courts appear to want to be the final arbiter of those religious disputes.
It is rare to get any look inside ecclesiastical arbitration forums because, like nearly all arbitration forums, they are private and not public. Some church forums have clearly defined rules of procedure and others are a bit more spontaneous. The arbitrators may or may not have any training in the rules of the forum or arbitration in general. About the only safeguard for the rights of the parties in most church arbitration forums is that arbitrators almost invariably try to do the right thing.
In Garcia v Church of Scientology, Order, (USDC, MD Fla., Tampa Div. 2017), the Plaintiff sought certain safeguards. The Plaintiff wanted a disclosure by the arbitrators that there were no ex parte contacts with the church about the case. The Court held that the Plaintiffs provided no authority indicating the Court had jurisdiction to order such a disclosure. The Plaintiff wanted the hearing transcribed by a court reporter and a ruling from the Court that certain rules of evidence would not apply. The Court also held no authority was submitted indicating the Court had the power to order such attributes. The Plaintiff also argued the church waived the arbitration agreement between the parties but the Court swept it aside in one sentence because the Court held there was no evidence of waiver submitted. The Court also concluded that the Free Exercise Clause blocked the Court from “resolving internal disputes” regarding religious doctrine.
The Order was very brief and not a full opinion thus commentary is necessarily limited. Nevertheless, the arbitration clause was in an agreement the Plaintiff signed when they joined the church according to the Court and may also have been mandated by the controlling denominational documents. The United States Arbitration Act, 9 USC §1, et. seq., apparently could be invoked to enforce the church membership contract containing the arbitration agreement. While reporting that seeming holding, one has to wonder if the Ecclesiastical Abstention Doctrine would allow a court to enforce an arbitration clause. But, an arbitration clause is a creature of contract and neutral principles would probably accommodate enforcement, even if the arbitration was intended to rule upon a religious dispute. While the Court did not describe the procedural rules of the arbitral forum, it remains to be ruled upon whether substantive and procedural due process challenges could be made if the dispute was economic rather than ecclesiastical.
The local church existed for 163 years and had been voluntarily affiliated with five different denominational groups. Thus, this was not the situation often seen in which the local church was actually founded by the denomination. The local church decided to disaffiliate due to theological issues from the fifth but the denominational document imposed a property trust on the local church. The disaffiliation process led to a final break and the denomination sought foreclosure on the local church property pursuant to the property trust. However, a couple of years before commencement of the disaffiliation process, the local church amended its corporate bylaws and removed the property trust. Thus, in the foreclosure action, the local church submitted a defense based on the bylaws that contained no property trust clause. It worked.
In Presbytery of the Twin Cities Area v Eden Prairie Presbyterian Church, Inc., Slip Op. (unpublished) (Minn. App. 2017), the summary judgment for the local church was affirmed. The court noted that the denominational document only recently had been amended to claim that property “is a tool for the accomplishment of the mission” and based on that language the denomination claimed the property dispute was ecclesiastical and had to be resolved by the denomination. However, while the denominational document prohibited revocation of the property trust clause by the local church, it did not preclude bylaws amendments by the local church. Therefore, because the trust language was erased from the local church bylaws by an amendment that was not prohibited, it was valid.
The court held there was no proof that the hierarchical “ruling” of the denomination in support of the property trust was inviolate because it did not appear to be a matter of “polity or faith.” There was no proof it was a matter of “polity or faith” because the local church was not prohibited by the denominational document from amending its bylaws. Thus, without an ecclesiastical issue the neutral principles doctrine looked at the applicable church bylaws, found no remaining property trust after the amendment of the bylaws, and entered judgment for the local church.
The court also rejected “this notion” that property was a “temporal tool for the accomplishment of the mission of Jesus Christ in the temporal world” that would always be an ecclesiastical issue. Even if it was true, the local church had been paying for its property for a century before it joined the fifth denomination and the denomination could not claim it was acting as trustee for the contributions of denominational members except in the last third of the local church’s existence.
For local churches considering severing denominational ties, the lesson is that the foundational documents of the local church may still be lawfully amended in some instances. A denominational property trust might be neutralized. For denominations, the lesson is to limit unapproved local church bylaws amendments. Another technique is to make sure the title documents reflect the property trust. However, a notation on title documents might impair credit worthiness for future refinancing or under an existing mortgage may not be possible.
Splitting churches sometimes leave to courts the decision as to property ownership between the factions. If the church is part of a hierarchical denomination, typically the court will give deference to the ecclesiastical authority’s decision making as to ownership. If the church is part of a denomination that is not hierarchical, or the church is independent of any denomination, then to award clear title to the church property the court will under the neutral principles doctrine review the foundational documents of the church from a secular view point to decide which faction has ownership, or the right to vote on leadership that might control ownership.
The hierarchical deference doctrine is used by a minority of states to decide contested church property ownership issues. The calculation of that minority seems to be further impaired by the drift of the doctrine toward and into the neutral principles doctrine. The cause of this is that to determine if there is a binding hierarchical relationship, foundational documents usually have to be carefully reviewed to establish that the hierarchy exists and its authority over local church property. As a practical matter, the neutral principles doctrine must do the same.
In this case both doctrines led to the same conclusion. In Heartland Presbytery v The Presbyterian Church of Stanley, Inc., Slip Op. (KS App. 2017), the court decided ownership between two factions by invoking the hierarchical deference doctrine. The denomination awarded the church property to the “staying faction.” However, just to cover all the bases, it seemed, the court went on to decide the case under the neutral principles doctrine and reached the same result. The court’s opinion is a lengthy primer on both doctrines.
However, the “departing faction” decided to depart the church and form a new church affiliated with a new denomination a few days after the trial court judgment against them. The “staying faction” argued the “departing faction” by their departure from the church abandoned the appeal basing their argument on the “judgment acquiescence” doctrine. The factions both used the church property for worship albeit at different times. The court rejected the abandonment argument.
It is not the place of the courts, or this blog, to decide the theological controversy that led to the church split. A “leaving faction” or “dissenting group” should make an early determination as to whether it is reasonably probable to prevail if the local church is part of a hierarchical denomination. The same is true in a neutral principles jurisdiction. Such an early determination may allow a “leaving faction” to spend its resources on a new church work rather than a legal battle.