Denominational Due Diligence

Key point 10-09.2. Some courts have found churches not liable on the basis of negligent supervision for a worker's acts of child molestation on the ground that the church exercised reasonable care in the supervision of the victim and of its own programs and activities.

Key point 10-18.2. Most courts have refused to hold denominational agencies liable for the acts of affiliated ministers and churches, either because of First Amendment considerations or because the relationship between the denominational agency and affiliated church or minister is too remote to support liability.

Key point 10-18.3. There are several legal defenses available to a denominational agency that is sued as a result of the acts or obligations of affiliated clergy and churches. These include a lack of temporal control over clergy and churches; a lack of official notice of a minister's prior wrongdoing in accordance with the denomination's governing documents; lack of an agency relationship; the prohibition by the First Amendment of any attempt by the civil courts to impose liability on religious organizations in a way that would threaten or alter their polity; and elimination or modification of the principle of joint and several liability.

The Minnesota Supreme Court ruled that a state denominational agency was not responsible for the molestation of an adolescent boy by a youth leader because of the agency's limited involvement in the selection and supervision of the volunteers in affiliated churches. In 1991, an adult male (Paul) began working as a youth pastor at a local church (the "church"). Shortly thereafter, he obtained credentials as an ordained Assemblies of God minister. During his ministry at the church, members raised concerns regarding his inappropriate relationships with male adolescents. The church's senior pastor learned that Paul had hosted a sleepover and insisted that a young male sleep in the same bed with him. Two or three months later, another family notified the senior pastor that Paul had pressured their son to sleep in the same bed with him. The senior pastor ordered Paul to stop the sleepovers but did not make a report to police because no one alleged any sexual misconduct. Eventually the church advised Paul that he must "resign under discipline" or be terminated. He elected to resign under discipline.

After resigning, Paul worked in the information technology field. He also began volunteering with the youth-ministry program at another Assemblies of God church. Volunteers in the youth-ministry program were not required to have ministerial credentials, and received all of the training required of lay volunteers.

After approximately three years of volunteer work, Paul became a "volunteer captain." He led "cell group" meetings, which were Friday evening gatherings for either middle school or high school students. Sometimes students would stay overnight at Paul's home.

In 2005, Paul sexually abused an adolescent male (the "victim") during two sleepovers. When it learned of these allegations of abuse, the ministry ended Paul's volunteer work. In 2010, Paul pled guilty to two counts of criminal sexual conduct in the fourth degree arising out of his abuse of the victim and another youth.

At the time Paul abused the victim, he still maintained his ministerial credentials. Each year he submitted a renewal application to the District Council, whose role was to make a recommendation to the denomination's governing body, the General Council of the Assemblies of God (General Council). Only the General Council had the authority to renew Paul's credentials, which it did every year.

In 2004, the senior pastor at the church where Paul had worked as a youth pastor joined the District Council as an officer. In 2004 and 2005, the District Council recommended that the General Council again renew Paul's credentials, effective for the years 2005 and 2006. The General Council did so, as it had done before. In a deposition, a District Council officer testified that, in recommending renewal, he did not "make a recommendation as to Paul's fitness" or any other applicant. Rather, the District Council's responsibility was to verify that the applicant had completed all of the preliminary steps in the renewal process. The officer described the General Council as the organization responsible for assessing an applicant's "fitness."

Under Assemblies of God polity, the District Council did not control or supervise the youth-ministry programs, or volunteers, of any of its affiliated churches.

In 2011, the victim sued Paul, the church in which Paul served as a volunteer leader, and the District Council. A trial court dismissed all claims against the District Council, and the victim appealed. A state appeals court reversed the trial court's ruling, concluding that there was sufficient evidence for a jury to conclude that the District Council's conduct created a foreseeable risk of injury to a foreseeable plaintiff, and thus, the District Council owed the victim a duty of care, even in the absence of a special relationship. The court of appeals also held that the First Amendment did not bar the victim's negligence claim. The District Council appealed to the state supreme court.

The court began its opinion by defining negligence: "Negligence is the failure to exercise the level of care that a person of ordinary prudence would exercise under the same or similar circumstances. To recover on a claim of negligence, a plaintiff must prove: (1) the existence of a duty of care; (2) a breach of that duty; (3) an injury; and (4) that the breach of the duty was a proximate cause of the injury."

The key issue in this case, the court concluded, was whether the District Council had a duty of care toward the victim. It referenced "the general common law rule that a person does not owe a duty of care to another—e.g., to aid, protect, or warn that person—if the harm is caused by a third party's conduct." However, the court noted an exception to this general rule when "the defendant's own conduct creates a foreseeable risk of injury to a foreseeable plaintiff." The court added:

When we refer to the defendant's own conduct, we mean misfeasance, which is "active misconduct working positive injury to others." Nonfeasance, which is "passive inaction or a failure to take steps to protect [others] from harm," is not enough. Once we identify the defendant's "own conduct," we then determine whether that conduct created a foreseeable risk of injury to a foreseeable plaintiff …. To determine whether the risk of injury to the plaintiff is "foreseeable," we "look at whether the specific danger was objectively reasonable to expect, not simply whether it was within the realm of any conceivable possibility." The risk must be "clear to the person of ordinary prudence." If the connection between the danger and the defendant's own conduct is too remote, there is no duty.

The court concluded that "the District Council did not create a foreseeable risk of injury to the victim, and thus the District Council did not owe him a duty of care. Simply put, the link between the District Council and the victim's injury is too attenuated. Several undisputed facts, considered together, establish that the connection is remote":

First, the District Council did not employ Paul, control the local church's youth-ministry program, or supervise its volunteers. The church, not the District Council, had the responsibility to vet, train, and supervise Paul. Second, according to the church's youth pastor who supervised Paul's volunteer work, Paul's credentials from the General Council "didn't short circuit [the volunteer process] in any way." Third, Paul was a well-established volunteer at the church long before 2004 when the District Council became aware of his history … . By 2005, when he assaulted the victim, Paul had served as a volunteer for approximately six years, including approximately three years as a captain. Finally, in the credentials renewal process it was the General Council's responsibility, not the District Council's, to determine fitness. Therefore the District Council did not create a foreseeable risk of injury to a foreseeable plaintiff. Thus, as a matter of law, the District Council had no duty to the victim.

What This Means For Churches:

Negligence is one of the most common forms of church liability. As this case illustrates, for a church or denominational agency to be responsible for an injury on the basis of negligence, it must be first established that it owed a duty of care to the victim. And, importantly, the court stressed that, as a general rule, one does not owe a duty of care to protect others from harm caused by the conduct of third parties. In this case, that means that the District Council could not be liable for the victim's injuries caused by the actions of Paul. The court recognized two exceptions to this rule. First, a duty may arise in the case of a "special relationship" between a church or denominational agency and a victim of harm. But the court refused to find that a special relationship existed between a church or denominational agency and a minor participating in church activities. The second exception to the general rule that one cannot be liable for injuries caused by third parties may occur when "the defendant's own conduct creates a foreseeable risk of injury to a foreseeable plaintiff." The court concluded that "the District Council did not create a foreseeable risk of injury to the victim, and thus the District Council did not owe him a duty of care. Simply put, the link between the District Council and the victim's injury is too attenuated." This conclusion was based on the following facts: (1) The District Council did not employ Paul, control the local church's youth-ministry program, or supervise its volunteers. (2) Paul's credentials from the General Council "didn't short circuit [the volunteer process] in any way." (3) Paul was a well-established volunteer at the church long before 2004 when the District Council became aware of his history. (4) In the renewal of Paul's ministerial credentials, the District Council claimed that it was the General Council's responsibility, not the District Council's, to determine fitness for ministry. Therefore the District Council did not create a foreseeable risk of injury to a foreseeable plaintiff, and as a matter of law, the District Council had no duty to the victim.

In recent years, a number of lawsuits have attempted to hold denominational agencies legally accountable for the acts of ministers that they ordain or license. The argument is that the act of issuing credentials to a minister, and the retention of authority to discipline or dismiss a minister for misconduct, constitutes sufficient "control" to make the denomination liable for the minister's actions. In most cases, such efforts will fail. It is true that many denominational agencies ordain or license ministers; require ministerial credentials to be renewed annually; and reserve the authority to discipline or dismiss clergy whose conduct violates specified standards. In some cases, ministers are required or expected to provide annual contributions to the denomination. However, in most cases, the denomination retains no authority to supervise or control the day-to-day activities of ordained or licensed ministers. It may be authorized to discipline or dismiss a minister following an investigation, but ordinarily it has no authority to independently monitor or supervise the day-to-day conduct of ministers, and no such authority is ever exercised. It is important to point out that most denominations are "delegated powers" institutions, meaning that they can only exercise those powers that have been delegated to them by their constituent members in their governing documents. If these documents confer no authority to monitor and supervise the day-to-day activities of clergy, the denomination is prohibited from doing so.

The authority of many denominations to license and ordain clergy, require annual renewals of ministerial credentials, and discipline or dismiss clergy found guilty of specified misconduct, is precisely the same authority that is exercised by state professional accrediting organizations, such as the bar association. Like such denominational agencies, the bar association has the authority to license attorneys, require annual renewals, and discipline or dismiss attorneys for proven misconduct in violation of professional standards. In addition, many require annual contributions. However, this limited authority does not give the bar association any right to control or supervise the day-to-day activities of attorneys, and it is for this reason that no bar association has ever been sued on account of the malpractice or misconduct of a licensed attorney, much less found liable. State bar associations have never been sued or found liable for the numerous incidents of attorney misconduct and malpractice that occur each year, and religious organizations should be treated no differently.

An earlier Minnesota case reached such a conclusion. The court applied the "bar association analogy" in concluding that a regional church and national church (the "church defendants") were not liable for the sexual misconduct of a pastor since the relationship between them and credentialed clergy (which resembled the relationship between state bar associations and licensed attorneys) was too attenuated to justify the imposition of liability for clergy misconduct.

In Minnesota, the supreme court "through the Rules of Professional Conduct, sets forth the rules and standards by which lawyers must adhere. If these rules are violated, the court may discipline the responsible attorney. But this relationship between the supreme court and the disciplined attorney is not an employment relationship. There has to be something more." Similarly, the regional and national churches in this case had "limited control over the pastor." But, "the congregation, not the umbrella entity, has the responsibility for hiring and firing the pastor, setting forth the terms and conditions of employment, supplying the pastor with parsonage, vacation and supplies, and paying the pastor. [It] is the congregation, not the [regional or national churches], which employs the minister." The court concluded that the church defendants were not liable on the basis of respondeat superior for the pastor's acts of molestation because an employment relationship did not exist. In addition, his wrongful acts were not committed in the course of his employment, as required by the respondeat superior doctrine. Doe 169 v. Brandon, 845 N.W.2d 174 (Minn. 2014).