Church Law and Tax 1994-11-01 Recent Developments

Clergy – Removal

Richard R. Hammar, J.D., LL.M., CPA

• Key point: The civil courts cannot resolve disputes in either hierarchical or congregational churches regarding questions of “who will preach from the pulpit” if any inquiry into religious doctrine would be required.

• An Ohio court ruled that it lacked jurisdiction to resolve a lawsuit brought by members of a church seeking to compel the removal of their pastor. A group of members in a Baptist church filed a lawsuit against their pastor and board of trustees alleging breach of contract and breach of fiduciary duties. The members claimed that their pastor breached his contract by becoming employed by an insurance company without first seeking or obtaining the consent of the church. The members also claimed that the church trustees breached their fiduciary duties to the members of the church by failing and refusing to take action against the pastor despite their knowledge of his outside employment. The members asked the court to terminate the pastor’s contract of employment, and to award them $50,000 in damages. The pastor’s contract contained the following provision regarding outside employment: “Employee shall devote his entire time and the best of his ability to the business of the church, and shall not become associated or indirectly interested in another church or business without first obtaining consent of the [church].” The pastor accepted outside employment, allegedly without seeking or obtaining prior approval of the church. However, the board of trustees claimed that the pastor’s outside employment was approved by the congregation at a special business meeting. The members who brought the lawsuit countered by insisting that actions taken at the special business meeting were invalid since defective notice was given and no quorum was present. They claimed that the notice of the special business meeting was defective since no purpose was specified. Further, the members claimed that only 10% of members were present at the special meeting and that the church constitution defined a quorum as 25% of members in “matters pertaining to the pastor.” A trial court dismissed the members’ lawsuit, and they appealed. A state appeals court upheld the trial court’s dismissal of the case. The court began its opinion by observing: “It is well established that civil courts lack jurisdiction to hear or determine purely ecclesiastical or spiritual disputes of a church or religious organization.” The court noted that “[g]enerally, the question of who will preach from the pulpit of a church is an ecclesiastical question, review of which by the civil courts is limited by the first [amendment] to the United States Constitution.” However, the court then determined that whether or not the civil courts can assert jurisdiction over cases involving the termination of ministers depends on whether the church is hierarchical or congregational in structure:

In questions involving “who should preach from the pulpit,” a court must first consider whether the church is hierarchical or congregational. If the church is hierarchical, civil courts generally lack jurisdiction to hear the dispute. Civil courts “are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law” …. However, where the dispute involves non-doctrinal contractual disputes, a civil court retains jurisdiction to hear the dispute. Nonetheless, civil courts must not infringe upon a hierarchical church’s disposition of an ecclesiastical dispute.

If the church is congregational, a civil court retains jurisdiction to determine whether the decision concerning “who shall preach from the pulpit” was made by the proper church authority …. The court’s jurisdiction is limited to purely secular issues, and the court must not be involved in ecclesiastical issues.

The court noted that a Baptist church is congregational, but it concluded that the issues raised by the members’ lawsuit were ecclesiastical in nature and accordingly not reviewable by a civil court. It observed:

[The members allege] that the trustees breached their fiduciary duties to the congregation by not seeking to terminate the contract between the church and [the pastor]. [They] apparently argue that a majority of the members of the congregation are in favor of terminating the contract of employment. However, inquiry into the relationship between the trustees and the congregation in matters concerning the pastorship would require the courts to consider each party’s views of “who should occupy the pulpit.” Review of such matters would further require the court to determine the issue of whether the trustees’ performance of their duties as trustees met the standards of the congregation and would therefore involve an inquiry into ecclesiastical concerns. Therefore, pursuant to the first [amendment] to the United States Constitution, civil courts lack subject matter jurisdiction to entertain such matters ….

The members insisted that the civil courts can determine if the proper church authority decided to remove a minister in a congregational church, and that this is all they were attempting to accomplish. The court disagreed:

The church’s constitution provides further light on the subject of the court’s jurisdiction. Article VIII provides that … the “church may not terminate its relationship with the pastor except by vote of the church at a meeting called for this purpose at which a two-thirds majority of those present have voted in favor of the termination.” Thus, the church’s right to terminate the contract with [the pastor] can be accomplished only by a vote of the church at a meeting called for this purpose, at which a two-thirds majority of those present have voted in favor of the termination. In the present case, although [the members] argue that a civil court has jurisdiction to determine whether the appropriate church authority has made a decision regarding the pastorship, the record does not reveal, and [the members] make no allegations, that a meeting was ever called to determine whether [the pastor] should be terminated as pastor. Moreover, the decision of the individual members of the congregation on how and whether to vote for the termination of [the pastor’s] pastorship with the church would require a review of each member’s subjective view on the issue of [the pastor’s] termination. This would require the court to inquire into the ecclesiastical question of “who should preach from the pulpit.” Thus, while [the members] correctly argue that civil courts have jurisdiction to determine whether the appropriate church authority made a decision concerning a pastor’s termination or retention, [they] would have this court intervene and make this decision for the appropriate church authority. To the contrary, the present case does not require the lower court to determine whether the pastor’s termination was made by the appropriate church authority, since such decision has never been made. The decision in the present case was never reached, nor was a meeting even called to determine such issues. The church’s own constitution provides the means to make such decision, and this court will not allow the church’s constitution to be subverted by an apparent minority of congregation members who seek to bypass the church’s internal mechanisms in order to have the pastor removed. It is worth repeating that the procedure for termination of the pastor is provided for in the constitution, and there is no record that this provision has been complied with or that the [members] herein have ever attempted to comply with internal church procedures. For the civil courts to intervene under such circumstances, where there is a complete failure on the part of [the members] to follow the procedures outlined in the church’s own constitution for the removal of a pastor, would constitute an unconstitutional attempt to inquire into the purely ecclesiastical matter of “who shall preach from the pulpit” at the congregation’s expense. The trial court was, therefore, correct in granting [the pastor’s and trustees’] motion to dismiss for lack of subject matter jurisdiction pursuant …. Tibbs v. Kendrick, 637 N.E.2d 397 (Ohio App. 8 Dist. 1994).