Court Can Resolve Church Dispute over the Election of a New Pastor

Such intervention is allowed if the court does not address religious doctrine or polity.

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State: Virginia
Categories: Charters, Constitutions, and Bylaws, Church Business Meetings

Key point 2-01.05. A minority of courts are willing to review the selection of ministers in limited circumstances so long as they can do so without any inquiry into religious doctrine.

Key point 6-12.01. Church membership meetings must be conducted in accordance with the procedural requirements ordinarily specified in the church’s governing documents. The most common requirements pertain to notice, quorum, and voting.

Key point 6-12.04. Most courts refuse to intervene in church disputes concerning the validity of a membership meeting that was not conducted in accordance with the procedural requirements specified in the church’s governing documents. However, some courts are willing to intervene in such disputes if they can do so without inquiring into religious doctrine or polity.

Key point 6-12.05. Some courts will supervise church elections to ensure compliance with the procedural requirements specified in the church’s governing documents if they can do so without inquiring into religious doctrine or polity.

A Virginia court ruled that it was not barred by the First Amendment guaranty of religious freedom or the ministerial exception from resolving an internal church dispute over the legality of an election.

Background

In 2017, a church’s senior pastor announced his retirement.

During a worship service on February 18, 2018, the pastoral search committee announced the name of a candidate (the “candidate”) for senior pastor.

Because two-thirds of the congregation must affirm the senior pastor, the church’s deacon board determined:

a vote would take place in March of 2018;

the church would hire a third-party vendor to count the votes; and

the deacon board would provide a list of members who were eligible to vote in the election.

The deacon board also determined that members who did not have certain membership records still would be deemed eligible to vote, and members for whom the church lacked contact information would be permitted to vote only if they appeared in person.

At the start of the election, the deacon board compiled a list of 1,302 active members eligible to vote. In reaching that number, the deacon board struck 347 members from the voter rolls because they were missing certain records. This conflicted with the deacon board’s earlier decision to deem those persons eligible to vote.

Regardless, on March 27, 2018, after the polls closed, the deacon board issued a letter to the general membership, notifying them that the candidate had not received sufficient votes to be confirmed as senior pastor.

After voting concluded and the candidate had not been confirmed, the deacon board met again to audit the church’s membership rolls. Based upon this post-election audit, the deacon board removed more members from the list of active members, which resulted in lowering the threshold for the two-thirds vote. In accordance with the new threshold, the candidate was confirmed as senior pastor.

Five members contest the election process used

On April 30, 2021, five members of the church (the “plaintiffs”) filed a lawsuit in civil court seeking the court to:

Declare that the deacon board’s alteration of the membership rolls after the election violated the church’s governing documents and, therefore, the confirmation of the candidate was invalid;

Enjoin (meaning stop) the church from holding another election without first determining appropriate rules and parameters; and

Appoint a receiver, “who can protect the interest, assets and other values . . . until such time new leadership is formally determined [by another election].”

The church asked the court to dismiss the lawsuit on the ground that the court was barred from intervening by the Free Exercise Clause and the Establishment Clause of the First Amendment to the US Constitution, as well as the judicially recognized doctrine known as the ministerial exception.

Constitutional protections

The church argued that deciding this case would require the court to violate the First Amendment because the court would need to enter the “religious thicket” and consider issues pertaining to church governance by reviewing the church’s appointment of the candidate.

The plaintiffs counterargued that the case was not barred by the First Amendment because they were merely asking the court to apply “neutral principles of law” to determine whether the church violated its own governing documents and basic democratic principles.

The court agreed with the plaintiffs and ruled that it had jurisdiction over this case. It noted that the plaintiffs sued out of a concern of whether “the Deacon Board’s decision to finalize the membership roll after the results of the 2018 election was in compliance with Bylaws, Constitution and other applicable policies.”

The court continued:

Contrary to [the church’s] claims, none of this . . . requires the Court to delve into a religious thicket by reviewing religious principles of membership. Moreover, . . . there is no allegation in Plaintiffs’ [lawsuit] of a doctrinal dispute between two factions, [the church] also lacks an internal tribunal to decide conflicts, and Plaintiffs have alleged an undemocratic proceeding. Since [the church] lacks internal tribunals to rule on such matters, civil court action is necessary to resolve this dispute. . . .

[Plaintiffs] seek judicial review of [the church’s] compliance with its own Constitution and Bylaws. . . . (“Specifically, the dispute is whether the Church complied with its own requirement [that] at least two-thirds of the entire Congregation . . . confirmed the call of [the candidate].”) . . . However, [the church] cautions that in [this] case, the Court is likely to enter the “religious thicket” because, in order to determine whether the vote was conducted fairly, [it] will need to examine [the church’s] good standing criteria, and this requires delving into what makes a good Christian.

The court disagreed with the church’s argument:

Nowhere in the [lawsuit] do Plaintiffs challenge the substantive matter of whether a member was in good standing. Rather, [they] argue that the Board of Directors manipulated the voter rolls after the election, and that [the candidate] was not confirmed by a two-thirds vote as required by the Bylaws and Constitution. Deciding this case will therefore merely involve the application of basic democratic election principles. Accordingly, the Court may decide this case.

The court concluded:

Plaintiffs seek a court declaration that the confirmation of [the candidate] and the Deacons Board’s decision to modify the membership roster after the election had concluded, violated [the church’s] governing documents and policies. Importantly, Plaintiffs do not ask the Court to inquire into [the candidate’s] “administrative pastor fitness to perform duties,” but rather Plaintiffs ask for “the protection of the court for the purpose of obtaining a fairly conducted meeting” and “in protecting civil and property rights.”

Ministerial exception

The church also claimed that the plaintiffs’ lawsuit was barred by the “ministerial exception,” which generally bars the civil courts from resolving employment disputes between churches and ministers. The court noted that the ministerial exception “protects religious institutions from secular interference with the selection of ministers.” It further noted that the Supreme Court of Virginia has recognized that the First Amendment prohibits judicial intervention when it would limit the church’s right to select its religious leaders.

The court concluded:

[D]eciding the underlying case against [the church] would not interfere with its right to select its Senior Pastor. First, the underlying case . . . is not an action being brought by a minister (or other key religious member) against the church alleging employment discrimination. Instead, this action is brought by five members of [the church’s] congregation who, on the face of the lawsuit], do not appear to hold any role in [the church] other than that of a general member. Additionally, there is no allegation that [the church] fired any of the Plaintiffs from a religious position. Here, Plaintiffs merely seek judicial review of [the church’s] compliance with its own Constitution and Bylaws pertaining to the 2018 election. Further, there is no mention of employment discrimination [in the plaintiffs’ lawsuit]. Although the language of the ministerial exception does not explicitly state it cannot be applied to other scenarios, that silence does not mean it may extend to election issues. Here, Plaintiffs only ask for democratic, neutral principles of law to be enforced. The Court is not asked to determine whether [the candidate] would make a good pastor, or if he may stay within said position. Accordingly, the ministerial exception is inapplicable to the case at hand.

The church further claimed that the plaintiffs violated the ministerial exception by asking the court to “install a receiver with ‘all powers,’ including overseeing the ‘determinat[ion]’ of ‘new leadership.’”

Again, the court disagreed, noting that the plaintiffs had merely requested the appointment of “a receiver to protect the Church’s assets until the Court fully adjudicates all issues raised herein.”

The court explained:

The “all powers” referred to in the [lawsuit] is “all powers to protect the assets of the corporation until such time as new leadership is determined.” . . . [I]t is well-within constitutional bounds for a court to appoint a commissioner “to oversee a congregational meeting, and actually to preside, if necessary.” Here, Plaintiffs ask for much less. There is no request that the receiver will lead the church in doctrinal matters, or even that they will oversee the vote.

What this means for churches

There are three points to note about this case.

First, the court concluded that the civil courts do not necessarily have to refrain from resolving internal church disputes involving the legal validity of membership meetings.

The resolution of such disputes is barred by the First Amendment only if an inquiry into church doctrine would be required. The court concluded that a civil court could resolve a lawsuit seeking to determine if a church complied with a requirement in its constitution and bylaws—that the call of a new pastor must be confirmed by a two-thirds vote of the congregation—since doing so would not implicate religious doctrine.

Second, the court rejected the church’s argument that the civil courts are barred by the First Amendment and ministerial exception from overseeing church elections to ensure compliance with the procedural requirements specified in the church’s governing documents if they can do so without inquiring into religious doctrine or polity.

And third, upon later review by a circuit judge, the election of the candidate was deemed to be “null and void,” as was the decision to modify the membership roster. The church was ordered to conduct a new election “with transparent procedures consistent with the Articles of Incorporation, Constitution and Bylaws.” However, the circuit judge rejected the appointment of a receiver because he found neither of the state’s two receivership statutes applied to the church’s situation.

Howard v. Heritage Fellowship Church, 108 Va. Cir. 260 (2021).

Legal Developments

“Church Autonomy” Applies in Church Name Dispute

Court barred by the ecclesiastical abstention doctrine from resolving a church member’s lawsuit challenging the legal validity of a vote by church members to change the name of the church.

Richard R. Hammar, Attorney, CPA

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State: Tennessee
Categories: Church Business Meetings

Key point 6-12.4. Most courts refuse to intervene in church disputes concerning the validity of a membership meeting that was not conducted in accordance with the procedural requirements specified in the church’s governing documents. However, some courts are willing to intervene in such disputes if they can do so without inquiring into religious doctrine or polity.

A Tennessee court ruled that it was barred by the ecclesiastical abstention doctrine from resolving a church member’s lawsuit challenging the legal validity of a vote by church members to change the name of the church.

In 2017 a church voted to change its name. A church member (the “plaintiff”) was upset with the new name, and filed a lawsuit against the church, pastor, and board of deacons, claiming that the vote to change the name was illegal and void. The plaintiff asked the trial court to set aside the vote, order a new vote, and enjoin the church from changing its name.

The church asked the court to dismiss the lawsuit on the ground that the “ecclesiastical abstention doctrine” deprived the court of jurisdiction over the case. The court agreed, finding that it did not have jurisdiction over the case because the ecclesiastical abstention doctrine precluded it from adjudicating any issue regarding the internal affairs and management of the church. The court explained that the plaintiff’s primary concern was whether each person who voted on the church’s name change was a member of the church. The court concluded that it did not have authority to determine whether each voter was a member of the church and, as a result could not resolve the plaintiff’s lawsuit. The plaintiff appealed.

A state appeals court began its opinion with a description of the ecclesiastical abstention doctrine:

The ecclesiastical abstention doctrine is derived from the Religion Clauses of the First Amendment to the United States Constitution. Its purpose is to prevent the civil courts from engaging in unwarranted interference with the practices, internal affairs, and management of religious organizations. The ecclesiastical abstention doctrine prohibits secular courts from redetermining the correctness of a decision by a religious tribunal on issues of canon law, religious doctrine, or church governance. . . .

Because of the freedom of religion guaranteed in the Constitution, religious organizations may establish their own rules and regulations for internal discipline and government and create tribunals for adjudicating disputes over these matters. When this choice is exercised, the Constitution requires that civil courts accept such tribunals’ decisions as binding. Decisions of the highest church tribunal are binding on civil courts in all cases of ecclesiastical cognizance. Claims that a religious tribunal or organization violated its own rules are not reviewable by courts.

When the ecclesiastical abstention doctrine applies, it functions as a jurisdictional bar that precludes civil courts from adjudicating disputes that are strictly and purely ecclesiastical in character and which concern theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required by them. . . . Because it is a bar to jurisdiction, the ecclesiastical abstention doctrine may be raised at any time as a basis for dismissal of the lawsuit.

The court added that while the ecclesiastical abstention doctrine precludes courts from adjudicating most questions arising from church activities, “it does not apply in every legal dispute regarding religious organizations.” For example, courts may address claims involving religious organizations “as long as they can do so using neutral principles of law and can refrain from resolving religious disputes and from relying on religious doctrine.” In other words, if the trial court could have adjudicated the dispute “without resolving questions of religious doctrine, polity, or practice,” the ecclesiastical abstention doctrine would not bar its jurisdiction. However, if the issue involves resolution of such questions, the ecclesiastical abstention doctrine “would function as a jurisdictional bar precluding the trial court’s resolution of this matter.”

The court noted that the plaintiff’s lawsuit alleges that nonmembers were allowed to vote on the church’s name change, which rendered the vote illegal and void under the church’s bylaws. The bylaws explain how an individual may become a member of the church:

Any natural person may become a member of the corporation at any regular church service by . . . trusting Jesus Christ as his or her personal Savior and Lord and making a public statement of this trust through the witness of believer’s baptism . . . and by a personal statement which includes: his or her salvation experience in Christ, subsequent witness through believer’s baptism . . . requesting membership and agreeing to conform to the rules and regulations as may from time to time be established by a majority vote of the members.

The court concluded that “by its plain language,” the requirements for membership are rooted in the religious doctrines and practices of the church:

The [main argument] in the plaintiff’s complaint is whether the votes on the church’s name change were cast by members. As set out above, membership requires compliance with religious doctrine and practice. As such, questions of membership are not within the purview of the court by operation of the ecclesiastical abstention doctrine. Furthermore, a church’s decision to change its name is a decision regarding the internal affairs and management of the church and is a decision in which civil courts are prevented from interfering. Additionally, a claim that a church violated its own rules is not reviewable by courts. For these reasons, the ecclesiastical abstention doctrine functions as a bar to the court’s jurisdiction and the trial court did not err in granting summary judgment in favor of the church.

What this means for churches

This case is an excellent example of the impact of the ecclesiastical abstention doctrine (sometimes called the “church autonomy” doctrine) on church disputes. Internal church disputes that concern “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them” are beyond the reach of the civil courts, and cannot be revived by appeals to “neutral principles of law.” Gunn v. First Baptist Church, 2018 WL 2749639 (Tenn. App. 2018).

Legal Developments

Decision Reinforces When Courts Can—or Can’t—Resolve Church Bylaws Disputes

Many courts have concluded that the First Amendment guaranty of religious freedom prevents the civil courts from resolving any internal church conflict.

Richard R. Hammar, Attorney, CPA

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State: North Carolina
Categories: Charters, Constitutions, and Bylaws, Church Business Meetings

Key point 6-06.4. Church officers and directors can be removed from office in the manner authorized by the church’s governing documents. It is common for church bylaws to give the membership the authority to remove officers and directors who engage in specified misconduct or change their doctrinal position.

Key point 6-12.1. Church membership meetings must be conducted in accordance with the procedural requirements ordinarily specified in the church’s governing documents. The most common requirements pertain to notice, quorum, and voting.

Key point 6-12.4. Most courts refuse to intervene in church disputes concerning the validity of a membership meeting that was not conducted in accordance with the procedural requirements specified in the church’s governing documents. However, some courts are willing to intervene in such disputes if they can do so without inquiring into religious doctrine or polity.

A North Carolina appeals court ruled that it could resolve a lawsuit claiming that (1) a church’s attempt to amend its bylaws was void because it was not done in accordance with the bylaws; (2) the trial court acted improperly in ordering a new church election to fill the vacant positions of deacon and trustee; and (3) the civil courts cannot resolve disputes over the selection of deacons and trustees when a church’s governing documents do not address the issue.

In 2013, members of a church (the “plaintiffs”) sued their church and its pastor. All the plaintiffs’ claims stemmed from the pastor’s management of church finances and a decision by the church in 2013 to amend the church bylaws changing various tenets of church doctrine as well as other aspects of the church’s day-to-day operations. The trial court denied the church’s motion to dismiss the case, rejecting the argument that the First Amendment barred the courts from adjudicating these claims. The court concluded that the church had “violated its bylaws in its 2013 attempts to vote on proposed amendments” and therefore those amendments were void. The trial court also found that, because the existing bylaws were “silent as to the process for removing deacons and trustees,” the trial court could not play any role in reviewing the removal of those officers from their posts. But the trial court nevertheless ordered the church to hold an election “to fill vacancies in the office of deacon and trustee . . . at the next regular business meeting of the church, but in any event, no later than ninety (90) days from the filing of this order.” The case was appealed.

The appeals court’s ruling

The appeals court began its opinion by noting that “the First Amendment of the United States Constitution prohibits a civil court from becoming entangled in ecclesiastical matters. However, not every dispute involving church property implicates ecclesiastical matters. . . . Courts may resolve disputes involving a religious institution through ‘neutral principles of law.’ The dispositive question is whether resolution of the legal claim requires the court to interpret or weigh church doctrine.”

1. Amending the bylaws

Did the trial court act correctly in striking down an amendment to the church bylaws on the ground that the amendment was not done consistently with the method prescribed in the bylaws? The court noted that while the civil courts have “no jurisdiction or right of supervision” in matters of polity, they can determine “‘whether the church tribunal acted within the scope of its authority and observed its own organic forms and rules’ with respect to ‘civil, contract or property rights.’” The appeals court added,

Put another way, when the church creates written bylaws that govern the use of church property, and other matters unrelated to church doctrine and religious practice, courts can review whether the church and its members followed the procedural rules created in those bylaws. . . . The trial court did so . . . when it declared that the means by which the church and its members voted to amend the bylaws violated the procedure established in the bylaws. We therefore affirm that portion of the trial court’s judgment.

2. The court-ordered election

The church challenged the trial court’s mandate that the church hold “an election to fill vacancies in the office of deacon and trustee . . . at the next regular business meeting of the church, but in any event, no later than ninety (90) days from the filing of this order.” The church insisted that this portion of the trial court’s order impermissibly assumes a supervisory role over church governance. The court agreed, noting that the trial court had “‘exceed[ed] its authority by . . . ordering a new vote.’”

3. Removal of deacons

The appeals court agreed with the church that the trial court properly determined it could play no part in determining whether deacons and trustees properly were removed from their posts. As the trial court held, the church bylaws “are silent as to the process for removing deacons and trustees,” and “neither party directs this court to any neutral principles of law [i.e., not involving an application of religious doctrine] that would permit this court to fill in the gaps. With no neutral principles to apply, the courts have no authority to wade into when and how these church leaders are removed from office.”

What this means for churches

This case illustrates the view of some courts that they can resolve internal church disputes if they can do so without interpreting church doctrine. Not all courts agree with this conclusion. Many have concluded that the First Amendment guaranty of religious freedom prevents the civil courts from resolving any internal church conflict. Davis v. New Zion Church, 811 S.E.2d 725 (N.C. App. 2018).

Legal Developments

Meeting to Fire Pastor Was Invalid

New York Court ruled that a church meeting requiring two-thirds vote to terminate pastor’s employment didn’t give church members full notice of meeting; it was therefore invalid.

Richard R. Hammar, Attorney, CPA

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State: New York
Categories: Church Business Meetings

Key point 6-12.1. Church membership meetings must be conducted in accordance with the procedural requirements ordinarily specified in the church's governing documents. The most common requirements pertain to notice, quorum, and voting.

A New York court ruled that a specially called church business meeting was invalid because notice of the meeting failed to state the purpose. A pastor (the "plaintiff") entered into an employment contract with a church. The contract provided that if the plaintiff's employment was to be terminated, "an announcement is to be made two weeks in advance, one each week before the called business meeting. Two thirds of the members present must vote for removal of the pastor."

Five years later the church convened a special business meeting at which more than two-thirds of the members present at the meeting voted to terminate the plaintiff's employment as pastor, allegedly because of financial improprieties. The meeting was conducted on April 15, 2008, and the church provided notice to the congregation on April 6 and April 13. However, neither notice stated that the pastor's employment would be considered.

The plaintiff sued the church to recover damages for breach of contract and defamation against the church, alleging that the church business meeting was invalid due to the church's failure to provide notice 14 days in advance of the meeting, and the failure of the notices to specify the purpose of the meeting. The plaintiff also insisted that he had not committed any financial improprieties.

A trial court granted the plaintiff's motion for summary judgment, meaning that it believed that the plaintiff's position was so strong that there was no need to conduct a trial. A state appeals court agreed:

Here, the pertinent clause of the subject employment contract unambiguously required the church to announce the termination vote "two weeks in advance of the meeting." As a matter of law, such language unambiguously required the church to announce the termination vote 14 days in advance of the meeting … . The plaintiff established that the church breached the employment contract by demonstrating that it did not announce the April 15, 2008, special meeting until April 6, 2008, and April 13, 2008, and that the announcements did not adequately apprise the congregation of the purpose of the meeting, as, in effect, required by the employment contract and the church bylaws.

What this means for churches

This case illustrates the importance of compliance with notice provisions in employment contracts, bylaws, and applicable nonprofit corporation law. It is a good practice for church leaders to be familiar with these provisions in advance of annual or special business meetings so that proper notice can be provided to members.

Note that proper notice of a special business meeting typically requires that notice be given a specified number of days or weeks prior to the meeting, and that the notice inform members of the purpose of the meeting. The purpose of the notice requirement is to provide members with sufficient information to decide whether or not to attend the meeting, sufficiently in advance to enable them to adjust their schedules should they desire to attend. As this case demonstrates, a failure to comply with the notice requirement may affect the validity of actions taken at the meeting. Smith v. Ebenezer Baptist Church, 949 N.Y.S.2d 119 (N.Y.A.D. 2012).

Legal Developments

Invalid Church Business Meetings

Pastor tries to sue church for violating bylaws.

Richard R. Hammar, Attorney, CPA

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State: Connecticut
Categories: Church Business Meetings

Church Law & Tax Report

Invalid Church Business Meetings

Pastor tries to sue church for violating bylaws.

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

Key point 2-04.2. Some courts are willing to resolve disputes over the termination of clergy if they can do so without any inquiry into religious doctrine.

A Connecticut court ruled that it was not barred by the First Amendment guaranty of religious freedom from resolving a pastor’s claim that his employing church’s decision to dismiss him was invalid, since it could resolve the claim on the basis of neutral principles without any inquiry into church doctrine. A church officer issued a “notice of call” that called a special meeting of the congregation on a specified date. The notice stated that the purpose of the meeting was to vote on several issues, including whether the church should remain an active congregation and whether to reduce the pastor to part-time status. During the meeting, the moderator asked the pastor to leave the meeting as they were going to discuss his employment. A member then moved to terminate the pastor’s contract and to authorize the church council to hire an interim pastor and to search for a part-time pastor. A vote was taken, and 27 voted in favor of the motion, 10 voted against it and three abstained.

The pastor asked a court for a “declaratory judgment” that the church meeting was in violation of the church’s bylaws and Robert’s Rules of Order, and that would reinstate him as pastor. The pastor claimed that the congregational meeting was defective in the following respects:

The meeting improperly conducted business outside the “notice of call” in violation of the church’s bylaws. Specifically, the meeting was not called to terminate the pastor’s employment.
The motion to terminate his employment was in violation of the bylaws since he was improperly barred from participating in the meeting as a member of the congregation.
The vote on the motion did not pass by the two-thirds majority required by the bylaws because the pastor was improperly barred from the proceedings and had he been permitted to vote, he would have voted against the motion or would have abstained, thereby rendering the total number of votes less than the two-thirds majority needed to pass the motion.
The party who seconded the motion to bring to a vote the termination of the pastor’s contract was not a church member, and Roberts’ Rules of Order provides that only members may make or second motions.

The church filed a motion to dismiss the pastor’s complaint. It asserted that the First Amendment guaranty of religious freedom protects the right of religious institutions to decide matters of faith, doctrine, and church governance without interference from any governmental agency, including the courts, and that a minister’s employment relationship with his or her church implicates internal church discipline, faith, and polity, all of which are governed by ecclesiastical custom and law. As a result, the church said, the courts lack jurisdiction over employment disputes such as the one involved in this case.

The pastor insisted that, despite the fact that he was employed as the church’s minister, he was not asking the court to apply ecclesiastical rules or religious doctrine, or determine “who will preach from the pulpit.” Instead, he was asking the court to apply secular law to the actions of the church to determine if it acted within its authority to terminate his employment. The pastor conceded that if the church terminated his employment based on an alleged “qualitative deficiency” or even for no reason at all, the court would lack jurisdiction. However, the pastor claimed that the purported act of the church in terminating his employment was not authorized by a proper vote of the congregation and hence was a nullity.

The church countered that, notwithstanding the pastor’s procedural claims, the ministerial exception bars claims that a religious institution failed to follow its own procedures and bylaws in terminating a religious employee.

The court concluded:

The issues raised by the pastor’s complaint include: (1) whether the vote terminating his contract was taken at a meeting duly warned to consider that issue; (2) whether the motion to terminate his contract was properly seconded and, therefore, properly before the meeting; and (3) whether barring him from attendance at the meeting and preventing him from voting on the motion violated his rights as a member of the defendant non-stock corporation. The court finds that the resolution of these issues would not require the court to intrude upon the defendant’s exclusive right to decide matters pertaining to doctrine or its internal governance or organization. Resolution of these issues involve questions of corporation law and the application of Robert’s Rules of Order, not the application of religious doctrine or matters of governance outside the jurisdiction of the court. Under the neutral-principles approach … the court may analyze the defendant’s bylaws and constitution in resolving the dispute …. The court finds that it has jurisdiction to reach the merits of the pastor’s claims and to apply “the ordinary principles which govern voluntary associations” to resolve the dispute.

What This Means For Churches:

Most courts have refused to get involved in internal church disputes regarding the dismissal of ministers on the ground that any intervention would violate the First Amendment guaranty of religious freedom. However, some courts have ruled that the First Amendment does not preclude them from resolving employment disputes between churches and ministers if they can do so on the basis of neutral principles, such as nondoctrinal language in a church’s governing documents. Despite the Connecticut court’s ruling, the recent decision by the United States Supreme Court affirming the ministerial exception may preclude such judicial forays into employment decisions involving ministers. The Supreme Court observed:

We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions. United Congregational Church, 2011 WL 5842378 (Conn. Super. 2012).

Legal Developments

Follow Procedural Requirements for Church Business Meetings

Follow your church’s bylaws and state law to ensure the validity of your membership meetings.

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio
Categories: Church Business Meetings

Church Law & Tax Report

Follow Procedural Requirements for Church Business Meetings

Follow your church’s bylaws and state law to ensure the validity of your membership meetings.

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

Key point 6-12.1. Church membership meetings must be conducted in accordance with the procedural requirements ordinarily specified in the church’s governing documents. The most common requirements pertain to notice, quorum, and voting.

Key point 6-12.4. Most courts refuse to intervene in church disputes concerning the validity of a membership meeting that was not conducted in accordance with the procedural requirements specified in the church’s governing documents. However, some courts are willing to intervene in such disputes if they can do so without inquiring into religious doctrine or polity.

An Ohio court ruled that a church business meeting was invalid since the pastor had moved the time of the meeting from “immediately following the morning service” to 1:00 PM that afternoon. A church’s bylaws provide that its pastor and elders must be reaffirmed on an annual basis. They also provide that the church must give 14 days written notice before its annual meeting. On January 14, 2007, the church mailed a letter to its members, telling them that it would hold its annual meeting on January 28, 2007. The letter said that the meeting “will follow the morning service after which we will share a carry-in fellowship dinner together.”

The pastor began the January 28, 2007, service at 10:00 AM by announcing that the time for the annual meeting “would be moved from immediately following the morning worship service to 1:00 p.m. on the same date, following the carry-in dinner at noon.” At noon, the church held a potluck dinner, followed by the meeting that the pastor had announced. At the afternoon meeting, a majority of the members in attendance voted to reaffirm the pastor and the existing church elders.

The church asked a civil court to issue a “declaratory judgment” affirming the validity of the business meeting that had been conducted at 1:00 PM on the afternoon of January 28, 2007, and declaring the pastor and board members to have been lawfully re-elected for an additional term.

The trial court ruled that the church had failed to establish that the afternoon meeting was conducted in accordance with its bylaws, the notice it had sent, and state law. The church appealed this ruling, arguing that the meeting held on the afternoon of January 28, 2007, complied with the church’s bylaws and state law and, therefore, was valid.

A state appeals court noted that the church was a nonprofit corporation, and that the state nonprofit corporation law specifies that nonprofit corporations shall hold “an annual meeting of voting members for the election of directors … on a date designated by or in the manner provided for in the articles or the regulations.” Unless a corporation’s articles or regulations provide otherwise, “written notice stating the place, if any, and the time of a meeting … shall be given … not less than ten or not more than sixty days before the date of the meeting.”

The church’s bylaws provide that its members “shall have 14 days written notice in advance of the [annual] meeting.” The church argued that it complied with this requirement because it sent a letter to its members on January 14, 2007, informing them that its annual meeting would be held on January 28, 2007, and, though the pastor changed the time of the meeting, the notice was valid because the meeting was still held on January 28, 2007. The court rejected this argument: “The letter that the church sent to its members met the requirements of [the nonprofit corporation statute] and the church’s bylaws. When the pastor changed the time of the meeting, however, he did not give its members proper notice …. Accordingly, the trial court correctly ruled that the meeting that the church held on the afternoon of January 28, 2007, was not valid.”

Application. This case illustrates an important point. Procedural requirements for church business meetings generally are described in a church’s governing documents. These requirements should be strictly followed to avoid the possibility that a meeting will be deemed to be legally invalid. Mt. Eaton Community Church, Inc. v. Ladrach, 2009 WL 56923 (Ohio App. 2009).

This Recent Development first appeared in Church Law & Tax Report, January/February 2010.

Legal Developments

Bylaws, Constitutions, and Charters

Most courts refuse to intervene in church disputes concerning the validity of a membership meeting that was not conducted in accordance with the procedural requirements.

Richard R. Hammar, Attorney, CPA

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State: North Carolina
Categories: Charters, Constitutions, and Bylaws, Church Business Meetings

Key point 6-12.4 . Most courts refuse to intervene in church disputes concerning the validity of a membership meeting that was not conducted in accordance with the procedural requirements specified in the church's governing documents. However, some courts are willing to intervene in such disputes if they can do so without inquiring into religious doctrine or polity.
Church Business Meetings

A North Carolina court ruled that it was barred by the first amendment from resolving a lawsuit brought by church members claiming that the decision by a church congregation to incorporate as a nonprofit corporation was invalid because it was made at a meeting that failed to comply with the procedure specified in the church bylaws.

A church was founded in 1872 and operated for more than 130 years as an unincorporated association. All decision making authority was vested within the church's congregation. In 1991 the congregation adopted bylaws to govern church administration. During a membership meeting in 2003 the members voted to incorporate the church.

Some members who dissented from this action filed a lawsuit, seeking a court order declaring the church meeting invalid on the ground that it failed to comply with the "notice" requirements spelled out in the bylaws. A state appeals court concluded that the first amendment guaranty of religious freedom prevented it from resolving the dispute, and the case was dismissed. The dissident members insisted that the case could be resolved by the court without any inquiries into religious doctrine, and so the first amendment would not be violated. The court disagreed:

A court's exercise of jurisdiction is improper where "purely ecclesiastical questions and controversies" are involved. An ecclesiastical matter is one which concerns doctrine, creed, or form of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of membership, and the power of excluding from such associations those deemed unworthy of membership by the legally constituted authorities of the church; and all such matters are within the province of church courts and their decisions will be respected by civil tribunals.

The court pointed out that "numerous ambiguities exist in the bylaws, conflicts remain between both parties' interpretations of the bylaws, and long-established church customs exist that may alter the interpretation of the notice requirements listed in the bylaws," and that both sides disagreed about the type of meeting actually held. As a result, to resolve this lawsuit a court "would be required to delve into ecclesiastical matters regarding how the church interprets the bylaws' notice requirements and types of meetings," and therefore the case had to be dismissed.

The dissident members also argued that the civil courts may resolve "church property disputes" so long as they can do so without addressing church doctrine, and they insisted that the current dispute was a property dispute.

Specifically, they pointed out that if the church were allowed to incorporate then the bylaws could be amended by a simple majority vote rather than the two-thirds vote required under the existing bylaws. And, since a church member's right to vote is a valuable property right, the court in this case could resolve the dispute.

The court disagreed. It agreed that the first amendment does not prohibit the civil courts from resolving church property disputes not involving questions of doctrine. But, it disagreed that this case could properly be characterized as a property dispute. It concluded, "The claims of plaintiffs in this case only tangentially affect property rights. The courts of this state should not intervene in a question of whether [a church should be] organized as an unincorporated association or a nonprofit corporation. Plaintiffs have failed to assert a substantial property right which has been affected by the incorporation of the church." Emory v. Jackson Chapel First Missionary Baptist Church, 598 S.E.2d 667 (N.C. App. 2004).

Legal Developments

Church Business Meetings

Does state law override an organization’s bylaws?

Richard R. Hammar, Attorney, CPA

Bio

State: Georgia
Categories: Church Business Meetings

Church Law and Tax 1997-05-01

Church Business Meetings

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

• Key point. State nonprofit corporation law ordinarily does not override provisions in an incorporated church’s bylaws.

The Georgia Supreme Court ruled that a provision in the state nonprofit corporation law mandating annual membership meetings did not take priority over a provision in a church’s bylaws calling for membership meetings once every four years. The members of a church filed a lawsuit in civil court seeking to compel their church to conduct an annual membership meeting. The members relied upon a provision in the state nonprofit corporation law specifying that a nonprofit corporation “shall hold a meeting of members annually at a time stated in or fixed in accordance with the bylaws.” The church’s bylaws call for a membership meeting once every four years. A trial court ruled in favor of the members, and ordered the church to hold annual membership meetings. The church appealed, and the state supreme court ruled that state nonprofit corporation law did not override the church’s own bylaws and therefore the church was required to conduct meetings only once every four years. The court observed that the state nonprofit corporation law itself specifies that if any of its provisions is inconsistent with religious doctrine governing a nonprofit corporation’s affairs on the same subject “the religious doctrine shall control to the extent required by the Constitution of the United States or the Constitution of this state or both.” As a result, the issue “is whether the frequency with which the church’s membership meets is a matter of religious doctrine having constitutional precedence over inconsistent statutory provisions of [the nonprofit corporation law].”

The court noted that the church in this case was “hierarchical” in nature, and that the members had very limited authority to direct church affairs. It concluded:

an annual meeting as contemplated by [the nonprofit corporation law] would be totally inconsistent with the church’s fundamental religious freedom, as a hierarchical religious body, to determine its own governmental rules and regulations. Members have no legal right to wrest the governing of the church from [church officials] by obtaining court-ordered annual meetings conducted in accordance with [nonprofit corporation law].

The court noted that in 1976 the United States Supreme Court ruled that “religious freedom encompasses the power of religious bodies to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” It concluded that the trial court’s order compelling the church to hold annual meetings in accordance with the state nonprofit corporation law “constitutes an unconstitutional judicial interference in the government of the church.”

Application. This case illustrates an important point-incorporated churches are free to adopt bylaws addressing issues of internal administration, and these bylaws generally take precedence over conflicting provisions in state nonprofit corporation law. In other words, state nonprofit corporation law may be viewed in most cases as a “gap filler”-filling gaps in a church’s bylaws. For example, if an incorporated church’s bylaws do not address how vacancies on the board are to be filled, or do not define a quorum, the nonprofit corporation law will “fill the gaps.” First Born Church of the Living God, Inc. v. Hill, 481 S.E.2d 221 (Ga. 1997). [Corporat ions, Church Members, Church Business Meetings]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m13 m34 m14 c0397

Legal Developments

Removal of Church Elders

Established church procedures must be followed.

Richard R. Hammar, Attorney, CPA

Bio

State: Alabama
Categories: Church Business Meetings

Church Law and Tax 1994-05-01 Recent Developments

Officers, Directors, and Trustees

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

• Key point: An attempt by church members to remove members of the governing board without complying with established church procedures may be overturned by a civil court.

• The Alabama Supreme Court ruled that the dismissal of two church elders by a minister and his supporters was not legally effective since the church’s established procedures were not followed. A dispute arose between the minister of a local Church of Christ congregation and the governing elders. The minister claimed that he was accountable to the congregation while the elders claimed that he was accountable solely to them. The elders eventually ordered the minister to vacate the pulpit and remove his possessions from the church parsonage. The minister ignored this order, and continued to live in the parsonage and serve as minister to the congregation. This prompted the elders to file a lawsuit asking a court to oust the minister. In response to the elders’ lawsuit the minister convened a meeting of 27 church members (out of a total of 162) at which a vote was taken to “disfellowship” the elders. The elders were not notified of this meeting. An announcement was made after the next Sunday morning service that the elders had been removed “because of their willful and persistent violation of scripture in taking [the minister] to court.” A trial court thereafter issued an order declaring that the elders had been properly removed by the church. The elders appealed this decision to the state supreme court, arguing that the church violated its own procedures in attempting to remove them. The court observed:

[T]he basic elements of due process as prescribed the by church’s own rules were not complied with. According to the testimony of the [elders’] expert witnesses (ministers of other Churches of Christ), when members of a church are attempting to remove elders, proper process requires that the members follow an established procedure intended to protect the elders’ rights to due process. This procedure requires (1) that the elders be given written notice and specifications of the charges before any meeting regarding the charges; (2) that the elders be given an opportunity to be heard; (3) that two or three witnesses be called to substantiate the charges; (4) that the elders be given an opportunity to confront the accusers; and (5) that the elders be given the opportunity to present evidence in their own behalf, including calling witnesses to testify.

The court concluded that the ouster of the elders violated this established procedure in a number of respects and accordingly was invalid. As a result, the court reinstated the elders and directed the minister to vacate the parsonage and discontinue conducting services on behalf of the church. The court concluded: “Clearly, the civil court will not review acts of church discipline or membership expulsion where there is no question as to the invasion of civil or property rights. However, the court has jurisdiction to review an expulsion from a religious society to determine whether the expelling organization acted in accordance with its own regulations, or to determine whether it acted in accordance with the principles of natural justice.” Shearry v. Sanders, 621 So.2d 1307 (Ala. 1993).

© Copyright 1994, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m56 m34 m16 c0394

Legal Developments

Constitutions, Bylaws and Charters

Should proxy voting be recognized in congregational business meetings?

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Church Business Meetings

Should proxy voting be recognized in congregational business meetings?

That was the issue before a New York state appeals court. A Jewish congregation called a special business meeting to determine whether or not to retain its rabbi. The congregation, by a vote of 23 to 21, voted to submit the dispute to a panel of 3 orthodox rabbis for a final decision. The minority challenged this vote on the ground that 4 proxy votes (which were not counted at the business meeting and which agreed with the minority) were improperly disregarded at the meeting. Had they been counted, the vote would have been 25 to 23 against submitting the dispute to an arbitration panel.

The court observed that the state "Religious Corporations Law" requires proxy voting only in a few instances not relevant to this case (e.g., voting to sell, mortgage, or lease property, and certain elections of officers), but that the state "Not-For-Profit Corporation Law" (which applies unless in conflict with the Religious Corporations Law) permits proxy voting unless prohibited by the corporation's charter or bylaws. The court found no conflict between these two provisions, and accordingly concluded that the Not-For-Profit Corporations Law applied—meaning that proxy voting should be permitted unless specifically prohibited by the corporation's charter or bylaws.

The court noted that the bylaws adopted "Robert's Rules or Order," and that section 44 of Robert's Rules of Order disallows proxy voting: "Proxy voting is not permitted in ordinary deliberative assemblies unless the laws of the state in which the society is incorporated require it, or the charter or bylaws of the organization provide for it.

Ordinarily, it should neither be allowed nor required, because proxy voting is incompatible with the essential characteristics of a deliberative assembly in which membership is individual, personal, and non-transferable."

The court concluded that this case perfectly illustrated the reason why proxy voting is discouraged: "IT is obvious from the tenor of the membership meeting … that the congregation was split almost evenly among those members who 'loved' [the rabbi] or 'disliked' him vociferously. Such a meeting, by its nature, would call for extensive deliberation. Who can tell how many congregants were swayed to vote one way or the other based upon the arguments presented at the meeting?" Frankel v. Kissena Jewish Center, 544 N.Y.S.2d 955 (1989).

Legal Developments

Court Ruled It Was Proper to Inquire Whether a Congregational Meeting Was Preceded by Adequate Notice to the Full Membership

For many years, two factions within a local Baptist church had been at war with

Richard R. Hammar, Attorney, CPA

Bio

State: Alabama
Categories: Charters, Constitutions, and Bylaws, Church Business Meetings

For many years, two factions within a local Baptist church had been at war with each other. Ultimately, the dissident minority was collectively expelled from membership. The expelled members continued to attend services, and frequently interrupted the pastor, sang, and engaged in disturbances that made the conduct of peaceful services impossible. The church sought a court order prohibiting the dissidents from disrupting or interfering with church services.

The dissidents, in response, asserted that the meeting at which the congregation voted to expel them had not been called with adequate notice; that the constitution and bylaws were invalid since they had been adopted at the same meeting; and that the pastor had appointed the church trustees without congregational approval. The dissidents also demanded an accounting of all church funds.

The trial court held that the meeting at which the dissidents had been expelled and at which the church constitution and bylaws had been adopted was invalid due to inadequate notice. It also scheduled an election at which the congregation would determine, by majority vote, the proper membership of the church; prescribed the notice to be given; provided for the counting of ballots by a court officer; and ordered an accounting of all church funds.

The Alabama Supreme Court upheld the decision of the trial court, noting that "it is proper for the courts to inquire whether a congregational meeting, at which church business is to be transacted, was preceded by adequate notice to the full membership, and whether, once called, the meeting was conducted in an orderly manner and the expulsion was the act of the authority within the church having the power to order it." However, "once the court is presented with sufficient evidence regarding the regularity of the meeting, it will then generally refuse to inquire further as to the fruits of the meeting." McKinney v. Twenty-fifth Avenue Baptist Church, Inc., 514 So.2d 837 (Ala. 1987)

Legal Developments

Civil Courts May Never Interfere in the Selection of Clergy

Ambiguous wording in a church constitution or bylaws frequently leads to internal disputes. Such was

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Church Business Meetings

Ambiguous wording in a church constitution or bylaws frequently leads to internal disputes. Such was the case in a recent controversy in Washington. A Lutheran church's constitution provided that "the candidate receiving the majority of all votes cast shall, upon unanimous approval, be declared elected."

The church convened a congregational meeting to vote on a pastoral candidate, and the candidate received a majority of the votes cast (but not "unanimous approval"). The candidate was subsequently employed, and a group of dissidents filed a lawsuit in which they asked a civil court to enforce the church's constitutional requirement of "unanimous approval."

While noting that the first amendment prohibits a court "from entangling itself in matters of church doctrine or practice," the court concluded that it could resolve controversies, such as this one, involving the interpretation "of an ambiguous provision in what amounts to a contract between the members of the congregation, dealing with a purely procedural question" and involving "no ecclesiastical or doctrinal issues."

The court also noted that it found no "dispute resolution process" within the denomination to which it could defer. A dissenting judge, quoting several passages of Scripture (Numbers 11:16-17; Matthew 9:35-38; Matthew 28:18-20; John 20:19-23; Acts 6:2-7; 2 Corinthians 3:6; Ephesians 4:7-12; Hebrews 5:1-10) characterized the selection of clergy as an ecclesiastical process in which the civil courts may never interfere. Organization for Preserving the Constitution of Zion Lutheran Church v. Mason, 743 P.2d 848 (Wash. App. 1987).

Legal Developments

Court Upheld the Validity of Proxy Votes in Church Business Meetings

During a regular church business meeting, a member moved to terminate the services of the

Richard R. Hammar, Attorney, CPA

Bio

State: Alaska
Categories: Church Business Meetings, Clergy - Removal, Freedom of Religion

During a regular church business meeting, a member moved to terminate the services of the church's minister. Of the members present, 42 voted to retain the minister, and 32 voted to remove him. In addition, one of the 32 dissidents produced a list of 57 proxy (absentee) votes to remove the minister from office. The moderator of the business meeting refused to recognize the proxy votes, and the attempt to remove the minister failed.

The dissident members thereafter filed a lawsuit seeking a court order upholding the validity of proxy votes in church business meetings. A state trial court ruled against the dissidents, and the case was appealed directly to the Alaska Supreme Court.

In an important decision, the court reversed the trial court and held that the proxy votes should have been counted. It based its decision on the provisions of the Alaska Nonprofit Corporations Act (under which the church had incorporated) which authorized proxy voting by members of nonprofit corporations absent a contrary provision in an organization's charter or bylaws.

The court rejected the church's claim that requiring it to recognize proxy votes violated the constitutional guaranty of religious freedom.

Finally, the court observed that a church could easily avoid the recognition of proxy votes by simply amending its charter or bylaws to so state. Herning v. Eason, 739 P.2d 167 (Alaska 1987).