Membership and Reviewing Church Records

Key point 6-03.1.Church members generally have no right to inspect church records unless such a right is conferred by state nonprofit corporation law, a church's charter or bylaws, state securities law (if the church has issued securities), or a subpoena. Church records enjoy no privilege against disclosure, with the exception of documents that are protected by the clergy-penitent privilege under state law.

The Alabama Supreme Court ruled that church members who lost their membership for violating a church bylaw ban on suing the church lost their right as members to inspect church records, and that the civil courts have the limited authority to determine if the church bylaws were duly adopted.

A dispute arose among the members of a church, which divided the congregation into two factions. One faction included the board of deacons (the "defendants"). An attorney for the other faction (the "plaintiffs") wrote a letter to the defendants, informing them that his clients wanted to exercise their legal right as members to inspect and copy the complete books, records, accounts and minutes of the church, including (1) church budgets; (2) all checking and savings accounts; (3) check registers; (4) bank statements; (5) certificates of deposit, money market funds, and other investments; (6) minutes of meetings of the trustees and deacons; (7) records of deposits, offerings collected at church services; and (8) donations, endowments or other records indicating sources of income. This request for inspection was prompted by the defendants' concern that various financial and property transactions entered into by the pastor and board of deacons had not been properly authorized by the church membership.

The defendants ignored this request to inspect records, which prompted the plaintiffs to ask a court to compel the defendants to respond. The defendants claimed that the First Amendment prevented the court from intervening in what amounted to an internal church dispute. While this case was pending, the board of deacons (who were members of the "defendant" faction) passed the following two resolutions which were then added to the church's "Standard Operating Procedures" (SOP):

Resolution #1. "Pursuant to biblical doctrine enumerated and commanded in 1 Corinthians 5:12 through 6:10 any and all members who bring or who are a party to a lawsuit, civil or otherwise, against the church or its leadership … shall be immediately placed on probation, without any further notice, and said probation shall operate as a removal from the membership rolls and an abolition of all memberships rights and privileges and shall not be allowed back to the church unless the pastor makes distinct stipulations otherwise."

Resolution #2. "Pursuant to Psalm 133:1-3, Proverbs 16:28, Proverbs 20:19, Proverbs 21:23, Proverbs 25:9, Romans 15:5-6, and in order to protect the unity and privacy of the church membership all church records shall remain confidential and shall not be distributed, inspected, viewed, copied, or otherwise viewed by any member, attendee, their agent, or any person without the express consent of both the pastor and deacons' board. The pastor and the deacons' board are the sole arbitrators of whether or not there is a proper purpose to grant an exception to this church rule. This section does not exclude or prohibit the pastor and deacons' board from viewing, distributing, or utilizing said records in the manner they believe necessary and proper for the pastor and the deacons' board to effectively operate the church in accordance with the Word of God."

A trial court ruled that the plaintiffs were members of the church, and that they had a legal right under the nonprofit corporation law to inspect the records of the church. The Alabama Nonprofit Corporation Act, under which the church had been incorporated, states: "All books and records of a corporation may be inspected by any member, director or officer, or his agent or attorney, for any proper purpose at any reasonable time." Ala. Code 10-3A-43. The Act defines a "member" as "one having membership rights in a corporation in accordance with the provisions of its articles of incorporation or bylaws." Ala. Code 10-3A-2(8). The court rejected the defendants' position that according to resolution #1 the plaintiffs no longer were members of the church because of the lawsuit they filed, and therefore they had no legal right to inspect church records. The case was appealed to the state supreme court.

The state supreme court noted that the Nonprofit Corporation Act (quoted above) "allows a nonprofit corporation to set forth, either in its articles of incorporation or in its bylaws, rules and procedures governing membership in the corporation." The church's constitution did not address membership qualifications. However, the defendants insisted that the church's "Standard Operating Procedures" constituted the church's bylaws, and that this document, as amended by the inclusion of resolution #1 (see above) effectively removed the plaintiffs as members of the church because of the lawsuit they filed.

The court agreed with the defendants' argument, assuming that the SOPs constitute the church's bylaws. But, it was not convinced that the SOPs in fact were the equivalent of bylaws. It pointed out that the plaintiffs alleged that (1) the SOPs were not the same as the church's bylaws, and (2) even if they were, the board of deacons did not have the authority to make membership termination decisions in the SOP. The court observed that "by claiming that the SOPs are not in fact the bylaws of the church and that resolution #1 was not validly passed, the plaintiffs are asserting that their membership has not been terminated by the appropriate authority in the church." The court conceded that "under limited circumstances" it could "review the actions of churches in expelling members [and] one of those circumstances is when a church member challenges whether her expulsion was the act of the authority within the church having the power to order it." The court concluded: "In this case, the court has jurisdiction for the limited purpose of determining whether the appropriate authority in the church has terminated the membership of the plaintiffs."

However, assuming that the SOPs amounted to the church's bylaws, the court concluded that the plaintiffs were no longer members and therefore had no right under the Alabama Nonprofit Corporation Act to inspect church records.

What this means for churches

This case demonstrates that there are some exceptions to the unwillingness of the civil courts to resolve internal church disputes. The court concluded that the state Nonprofit Corporation Act gave church members a legal right to inspect church records, but it noted that the Act defined a "member" according to the provisions of a church's articles of incorporation or bylaws. The main issue in this case was whether the church's SOP, as amended by resolution #1, constituted the bylaws of the church, and if so, if it was duly enacted. The court concluded that the civil courts could engage in this very limited review, consistently with the First Amendment guarantee of religious freedom.

Ex parte Board of Trustees, 2007 WL 1519867 (Ala. 2007).