We reported the decision of the United States Court of Appeals for the 5th Circuit in McRaney v North American Mission Board, Southern Baptist Convention, 996 F3d 346 (5th Cir. 2020), cert. denied, 210 L ED 2d 961, 141 S Ct 2852 (2021). The Plaintiff was formerly employed as the Executive Director of the General Mission Board of Maryland / Delaware. The Plaintiff alleged the Defendant made false statements about him that caused him to be fired from his position, caused him to be “uninvited” to speak at a large mission symposium, and posted a picture of him at the Defendant’s offices to malign him. The trial court dismissed the case on Ecclesiastical Abstention Doctrine grounds but the 5th Circuit reversed the dismissal. The only theories of recovery espoused were for intentional interference with business relationships, defamation, and intentional infliction of emotional distress. There was no employment claim made that might implicate the Ministerial Exception. We noted on remand there might be discovery.
In McRaney v North American Mission Board of the Southern Baptist Convention, Inc., Order Reconsidering Quashing of Subpoena (ND Miss. 2022), the federal trial court on remand vacated its order quashing the Defendant’s subpoena to the Plaintiff’s former employer to obtain the personnel file and other documents. The trial court did so based on the opinion of the 5th Circuit that the dismissal of the case on Ecclesiastical Abstention Doctrine grounds was premature. The trial court allowed the subpoena to be reissued and allowed the former employer to respond as they might to any subpoena seeking those types of documents.
If the evidence produced in response to the subpoena, if any is produced, proves the termination of Plaintiff was, indeed, based on ecclesiastical or church disciplinary policies, it may result in dismissal of the case a second time. It may also prove the termination of Plaintiff by the employer was caused, or not caused, by the actions of the Defendant. Employers must be rational in their creation of termination records and not let the angst or emotion of the moment cloud the record. The termination record should be documented under the supervision of counsel when the sensitive nature of the Plaintiff’s position, apparently as a sort of chief executive officer, seems to require an especially accurate record.
There probably is nothing more confusing to a church than demands for documents or information from courts or government. Confusion arises because smart people that are not lawyers, relying on some anecdotal past personal experience, believe the church will have the same experience they had. This is usually wrong.
In Templeton v Bishop of Charleston, Order Denying Motion to Quash, United States District Court, Western District of Washington, No. C20-1578, the trial court denied the motion to quash a subpoena. The subpoena was served on a priest to testify by deposition in discovery in a molestation tort case. The priest was not a party to the lawsuit but a mere witness. The priest requested that the subpoena be quashed alleging that the Ecclesiastical Abstention Doctrine precluded inquiries into church administration. The priest further argued that a state statute made privileged his communication with his bishop. The priest lastly argued that the priest had a confidentiality agreement between himself and the bishop which precluded his testimony. The Court dismissed the Ecclesiastical Abstention Doctrine claim as too broad. It might apply to a particular question but it would not apply to others the Court held. The priest also argued he was a “canon lawyer” and a “judge of the ecclesiastical court” and entitled to privilege. The court denied the claim because the priest was not an attorney at law. Further, even if there was such a privilege, it might apply to a particular question and not apply to others. The state statute rendered “confidential communication” necessary for the priest to do his job privileged. But, the court held such an agreement might immunize a particular question but not others. The allegation of the confidentiality agreement between the priest and the bishop was generally swept aside because the court doubted such an agreement could override a court order to testify.
Churches that receive a court subpoena, or any other order from a court or government to produce documents, information or testimony, should immediately engage counsel to respond or object on their behalf. The church insurance carrier should immediately also be notified in writing. While the insurer may not undertake the representation by retaining outside counsel to represent the church, that is not always true. It may depend on whether the information sought might related to a future or anticipated lawsuit. Lastly, the word “immediately” should not be ignored.