Defamation

Legal Developments

Avoiding Defamation Lawsuits

In some cases, even a true statement may be considered defamatory.

Richard R. Hammar, Attorney, CPA
Bio

Parnigoni, 681 F.Supp.2d 1 (D.D.C. 2010).009)


Key point 4-02. Defamation consists of (1) oral or written statements about another person; (2) that are false; (3) that are "published" (that is, communicated to other persons); and (4) that injure the other person's reputation.


Key point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a "qualified privilege," meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.


Key point 4-04. Many states recognize "invasion of privacy" as a basis for liability. Invasion of privacy may consist of any one or more of the following: (1) public disclosure of private facts; (2) use of another person's name or likeness; (3) placing someone in a "false light" in the public eye; or (4) intruding upon another's seclusion.

A federal court in the District of Columbia ruled that a former church employee could sue the church for defamation and invasion of privacy as a result of the church's disclosure to its members that the employee had married a registered sex offender.

The facts of the case, as alleged by the employee in her lawsuit, are as follows. A woman was employed as a teacher at a church preschool for seven years. During her employment her fiancé was charged with, and ultimately convicted of, indecently exposing himself to a minor. The teacher informed the preschool director of her fiancé's conviction, and the director informed the church board. The church took no action at that time, and the teacher continued her employment without any further discussion of the matter. In time, the teacher and her fiancé were married. At no time did anyone associated with the church or preschool indicate that the teacher's marriage would be cause for concern or place her job in jeopardy.

A few years later the couple enrolled their son at the preschool. At this time the preschool director met with the teacher and inquired into the details of her husband's prior conviction.

The director stated that the teacher was required to disclose the details of her husband's conviction so that the director would be able to explain the circumstances to any parent who might inquire about the situation. The director later informed the teacher that the church board was "nervous" about her husband because "he might now have reason to be on the school property to pick up his son." The teacher explained that she planned to walk her son a block away from the school to rendezvous with her husband on days that he was responsible for driving him home.

A few weeks later, the teacher met with the church's senior pastor, who announced her decision to make a full public disclosure of the husband's prior conviction "to all parents of students attending the preschool and the entire parish." The pastor also indicated that the church planned to announce the fact that she, a teacher at the school, was married to a convicted sex offender.

The teacher insisted that the church had not indicated any concerns regarding her husband, and so she surmised that the new concern was related to her son's enrollment in the school. As a result, she offered to withdraw her son from the school to avoid any "embarrassment to her and her family." She eventually did so after the church's attorney informed her that this would be helpful. She also offered to terminate her employment "in order to avert public disclosure" of her husband's conviction, but the school rejected her offer.

A few days later the pastor met with the school staff and informed them of the prior conviction. She insisted that the sole reason for making the disclosure was the teacher's "poor judgment" in marrying a sex offender and not the enrollment of her son in the preschool. Following this meeting the pastor sent a letter to all members of the church informing them of the husband's registration with the state sex offender registry as a result of his prior conviction for indecent exposure to a minor. The letter went on to state that it had been sent to "enable parents to make informed decisions as to whom they should entrust the care and supervision of their children." It further stated that because the church lacked the ability "to anticipate every possible future scenario [the church's leadership] believed their best course of action was to give the parents the information they needed to protect their children."

The teacher and her husband (the "plaintiffs") sued the church, preschool, pastor, and preschool director (the "defendants") alleging several theories of liability, including defamation and invasion of privacy. The court declined the defendants' request to dismiss all of the plaintiffs' claims.

A Viable Claim

The court noted that a viable defamation claim requires (1) a false and defamatory statement concerning another; (2) publication or dissemination of the statement without privilege to a third party; (3) the defendant's fault in publishing the statement amounted to at least negligence; and (4) the statement was defamatory as a matter of law or its publication caused the victim special harm. The court concluded that the teacher's defamation claim met these requirements, but not her husband's.

Remarkably, the court concluded that the statements in the pastor's letter to church members could be defamatory even though they were true. While this seems to contradict the first element of defamation (a false statement), the court reasoned that the contents of the letter amounted to "defamation by implication" since a reasonable person reading the letter could "draw a defamatory inference." The court explained: "If a communication, by the particular manner or language in which true facts are conveyed, supplies additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference, the communication will be deemed capable of bearing that meaning."

The court rejected the defendants' argument that the pastor's letter was privileged since her objective was to protect children from a registered sex offender. It observed:

Assuming for the sake of argument that the defendants acted solely for the purpose of protecting the children at the school … the defendants should have sent the letters only to the parents of the school's children …. However, the defendants did not limit the scope of their dissemination to that audience, but also sent the letters to all members of the parish …. The dissemination was therefore much more extensive than necessary. And the fact that the defendants delayed the disclosure of the information for approximately three years after [the teacher] advised them of her husband's conviction, coupled with the decision to make the disclosure only after she married [him] undermines the defendants' stated reason for making the disclosure and supports the plaintiffs' position that the disclosure was made to chastise [the teacher] for exercising what the defendants consider to be her poor judgment in marrying [a sex offender] …. In addition, the defendants also ignored [the teacher's] several attempts to avoid the release of this information, including removal of her child from the school and her offer to resign as an alternative to the disclosures. The defendants' actions, coupled with their disapproval of [the teacher's] marriage … support the plaintiffs' contentions that it was the defendants' desire to condemn [the teacher] for her marital decision, thus rendering their publication of the information not only negligent, but malicious.

First Amendment defense

The court, in rejecting the defendants' argument that the plaintiffs' claims were barred by the First Amendment guaranty of free speech, observed: "The defendants contend that their statements qualify as opinions that are protected by the First Amendment. This Court does not agree. An opinion which asserts provably false and defamatory facts is not deserving of the protections of the Constitution."

Invasion of privacy—false light

"Invasion of privacy" comprises several separate wrongful acts, including placing someone in a "false light" and the public disclosure of private facts. The plaintiffs asserted that the defendants were liable for both of these kinds of invasion of privacy as a result of the letter the pastor sent to members of the church which mentioned the husband's registered sex offender status and insinuated that both spouses were potential child molesters.

The court noted the following four requirements of a false light-invasion of privacy claim: "(1) publicity; (2) about a false statement; (3) understood to be of and concerning the plaintiff; and (4) which places the plaintiff in a false light that would be offensive to a reasonable person." The court concluded that the teacher had a viable false light claim, and so it rejected the defendants' request that it dismiss this claim. It observed: "The defendants' release of information about [the husband's] conviction as a sex offender and statements about whom parents should trust with the care of their children reasonably created the false impression that [his wife] was a threat to the students simply because of her association with [him] and placed her in a highly offensive light …. In fact, the defendants received letters expressing outrage at their actions and their implication that she presented a risk to the safety of the students at the school."

Invasion of privacy—publication of private facts

Invasion of privacy also includes the publication of private facts about another in a manner that would be highly offensive to a reasonable person. The defendants insisted that the pastor's letter to church members did not involve the publication of private facts since, though embarrassing, this information was a matter of public knowledge. The court agreed, and dismissed this claim.

Application. This case is significant for the following reasons:

1. It is one of a few cases to hold that a statement need not be false to be defamatory.

2. The pastor's letter, sent to all church members, was not privileged since not all members had a legitimate need to know that the husband was a registered sex offender. In most states, statements shared with church members on matters of common interest are privileged, meaning that they cannot be defamatory or an invasion of privacy unless made maliciously (i.e., with a knowledge the statement was false, or with a reckless disregard as to its truthfulness). However, this court cautioned that statements may not be privileged if disseminated to members not having a legitimate need to know.

The court observed: "Assuming for the sake of argument that the defendants acted solely for the purpose of protecting the children at the school … the defendants should have sent the letters only to the parents of the school's children …. However, the defendants did not limit the scope of their dissemination to that audience, but also sent the letters to all members of the parish …. The dissemination was therefore much more extensive than necessary." This principle is often implicated when church leaders seek to inform the congregation about the dismissal of a staff member for misconduct.

Church leaders should understand that statements made to nonmembers, or even to members not having a legitimate "need to know," are not privileged and therefore expose the church to potential liability for defamation or invasion of privacy. This risk can be mitigated by limiting the disclosure to those members having a need to know.

3. This case illustrates that a church may be liable on the basis of "false light" invasion of privacy for disseminating statements that place someone in a false light. However, the false light in which the person was placed must be highly offensive to a reasonable person, and it must have been publicized either with a knowledge that it was false or with a reckless disregard concerning its truthfulness.

Legal Developments

Pastor Sues Former Church for Defamation

Some courts will resolve certain employment disputes between churches and clergy.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Pastor Sues Former Church for Defamation

Some courts will resolve certain employment disputes between churches and clergy.

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

Key point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a “qualified privilege,” meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.

An Oregon court ruled that the First Amendment did not prevent it from resolving a defamation claim brought by a pastor against his former church and denominational officers. A church laid off an associate pastor (the “plaintiff”) due to financial difficulties. A denominational officer offered the plaintiff a position as pastor of a church in a nearby small town. The plaintiff was unenthusiastic about this position and explained that he had concerns about the salary, health insurance coverage, and lack of opportunities to supplement his income in such a small town. The denominational officer offered the plaintiff a monthly salary of $1,500; a subsidy of an additional $1,100 per month for plaintiff’s first three months (totaling $3,300) to match the salary that the outgoing pastor had received; and health care coverage for up to six months.

The plaintiff eventually accepted the position, but emphasized to denominational officers that he wished to be considered an interim pastor. A denominational officer sent the plaintiff a letter stating that he would send him a check for $3,300 to subsidize his first three months of salary, and that these checks would not have to be repaid. A short time later, the plaintiff, with the knowledge of the church board, withdrew $3,000 from the church’s bank account. He discussed the transaction with the board, explaining that the money had been earmarked for him as a gift by a denominational officer. The board accepted that explanation and issued the check in accordance with its normal procedures, including having two individuals (in this instance, plaintiff and a board member) sign the check. The expenditure was further documented in expense reports that were sent to a denominational office. The plaintiff deposited the check into a personal checking account and wrote four checks against that amount to cover health insurance premiums.

A few months later the pastor informed the congregation that he would be leaving. As part of this transition a denominational officer reviewed the church’s accounting records. The church bookkeeper asked the denominational officer to take a look at the $3,000 withdrawal from the church’s bank account. The officer looked at the transaction, and later informed the pastor that he was being charged with “misappropriation of church funds” as a result of the withdrawal since “that money was intended for the subsidy of the church for your salary for the first three months of employment there and not to be taken over and above your salary.” The pastor expressed shock at the accusation. He elected not to pay back the $3,000 because he believed that, by doing so, he would be admitting that he was guilty of misconduct.

A denominational officer drafted a letter that he later read aloud to the congregation. He later testified that he wanted to inform the congregation about the circumstances of plaintiff’s departure because it “had a right to know what was happening” and because he wanted to avoid speculation and rumors regarding plaintiff and the $3,000 transaction. In the letter, the officer explained that “based on a review of the church books and board minutes, it is now evident that there has been, to some extent, a financial misappropriation by [the plaintiff].” Another denominational officer sent an e-mail to his superior’s secretary stating that the plaintiff “has already demonstrated a willingness to lie and steal, and to purposely sow discord and the division.”

After resigning his position, the plaintiff was unable to find employment as a pastor. He sold his home and moved into a trailer with his wife.

The plaintiff sued his former church, along with the denominational officer who composed the letter that was read to the congregation and the other officer who sent the e-mail in which he referred to the plaintiff’s “willingness to lie and steal.” He asserted that these communications defamed him.

A jury returned a verdict in favor of the plaintiff and awarded monetary damages. The trial judge issued a “judgment notwithstanding the verdict,” meaning that he overrode the jury’s decision because he concluded that the First Amendment guaranty of religious freedom deprived the court of jurisdiction to resolve an internal church dispute over the status of a pastor. The plaintiff appealed.

A state appeals court defined defamation as “a false statement that would subject the plaintiff to hatred, contempt or ridicule or tend to diminish the esteem, respect, goodwill or confidence in which [the plaintiff] is held or to excite adverse, derogatory or unpleasant feelings or opinions against [the plaintiff].”

Qualified Privilege

The defendants insisted that the letter and e-mail could not be defamatory since they were protected by a qualified privilege. The court noted that a qualified privilege generally “exists to protect statements made on a subject of mutual concern to the defendant and the persons to whom the statement was made.” Such statements generally cannot be defamatory (they are “privileged”). However, the privilege is not absolute. It is “qualified” in the sense that statements concerning matters of mutual concern may be defamatory if the person making them abused the privilege. Abuse occurs and the privilege is lost “if the publisher disbelieves or lacks reasonable grounds to believe that the defamatory statement is true, if the statement is made for purposes outside the scope of the privilege, if the statement is made to someone who is not reasonably believed to be necessary to accomplish the purpose of the privilege, or if the statement includes defamatory matter that is not reasonably believed to be necessary to accomplish the purpose of the privilege.”

The court acknowledged that the First Amendment guaranty of religious freedom “severely restricts the authority of civil courts to adjudicate disputes on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law,” and that the courts have understood this principle “to include church decisions involving the employment of ministers.”

However, “the First Amendment does not completely bar relief sought by a plaintiff against a church in a civil lawsuit.” The court “failed to understand how a defamatory statement accusing a pastor of theft is any more (or less) a matter of church discipline, faith, internal organization, or ecclesiastical rule, custom, or law than is a defamatory statement accusing a pastor of child molestation.” The court laid down the following two rules:

If the organization is of a religious character, and the alleged defamatory statements relate to the organization’s religious beliefs and practices and are of a kind that can only be classified as religious, then the statements are purely religious as a matter of law, and the [First Amendment] bars the plaintiff’s claim. In defamation law terms, those statements enjoy an absolute privilege.

If, however, the statements—although made by a religious organization—do not concern the religious beliefs and practices of the religious organization, or are made for a nonreligious purpose—that is, if they would not always and in every context be considered religious in nature—then the First Amendment does not necessarily prevent adjudication of the defamation claim, but the statements may nonetheless be qualifiedly privileged.

The court concluded that in this case, the allegedly defamatory statements—that the pastor had misappropriated money and had demonstrated a willingness to lie—would not “always and in every context” be religious in nature. As a result, even though the statements related to the plaintiff’s conduct as a pastor of the church, that “did not render those statements absolutely privileged as a matter of law under the [First Amendment]. Rather, that fact gives rise to a qualified privilege,” meaning that “the burden falls on the plaintiff to prove that the qualified privilege was abused—that is, that the defendant did not believe the statement to be true or lacked reasonable grounds for believing that it was true, or that the statement was made for a purpose outside the scope of the privilege.” The court concluded that “determining whether defendants had reasonable grounds for believing the defamatory statements or whether the statements were made for purposes outside the purpose of the privilege can be resolved without requiring the court to delve into the ecclesiastical concerns of the church.” As a result, the court rejected the defendants’ claim that the First Amendment provided an absolute bar to plaintiff’s defamation claim and ordered the jury verdict in favor of the plaintiff to be reinstated.

Application. This ruling deviates from the general rule that the First Amendment guaranty of religious freedom bars the civil courts from resolving employment disputes between churches and clergy. While many courts would reject this court’s reasoning, the case will provide ministers with a precedent, making a defamation claim more viable. Tubra v. Cooke, 225 P.3d 862 (Or. App. 2010).

This Recent Development first appeared in Church Law & Tax Report, March/April 2011.

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Legal Developments

Informing Church Members of Disciplinary Action

Court refuses to resolve expelled member’s defamation claim.

Richard R. Hammar, Attorney, CPA
Bio

Key point. According to the majority view, the civil courts will not resolve disputes challenging a church's discipline of a member since the First Amendment guaranty of religious freedom prevents them from deciding who are members in good standing of a church.

A Tennessee court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving a church member's defamation claims against his pastor based on a letter that was read to the congregation.

A man ("Owen") had attended the same church for 70 years and served as trustee for 30 years. Owen claimed that his pastor gave false information to an attorney about him, which the attorney placed in a letter that was sent to the pastor. The pastor read this letter to the entire congregation during a regular Sunday morning church service. While Owen was not identified as the subject of the letter at the reading, he believed that everyone knew the letter's remarks were about him. Owen later sued the pastor for defamation. The attorney's letter was attached to the lawsuit. The letter states, in relevant part:

I have been retained on behalf of the church to demand that you immediately cease abusive and threatening telephone calls, offensive language, threats of physical harm and other inappropriate contact to its members and board. As the church had to take the extraordinary measure of having to call the sheriff's department to have you removed from the premises, this letter is intended to make clear that you are not to come back onto the church property. Any attempt to come on the church property or on the pastor's residence for any reason will be viewed as criminal trespass. In such an event, the authorities will be contacted immediately and your arrest sought.

Moreover, you have and continue to make threatening and harassing phone calls to the pastor [and] members and deacons of the church. Please cease and desist all such harassing calls. Continued calls threatening the pastor's life, health or his family will be deemed harassment pursuant to [state law] and dealt with the to full extent as allowed by law. The church and [its pastor] desire to end this unfortunate turn of events peaceably. Therefore, they ask that you go your separate way and refrain from any future contact with the church, its pastor, deacons or members.

The act of informing the members of the church of disciplinary or expulsion actions is as much within the rights protected by ecclesiastical abstention as is the church's right to take such actions, even though it may carry some kind of negative implication about the expelled member.

Owen's lawsuit alleged that these statements were false and defamatory. According to the complaint:

My reputation for good character in the community and in the church has been damaged or destroyed by the false accusations made by the pastor against me. Indeed, the pastor caused me to be expelled from my lifelong church. The attorney's letter to me, which the pastor read to the church congregation ordered me not to come back upon church property and stated that if I did so the pastor would be arrested for the crime of trespassing.

The trial court dismissed the lawsuit on the basis of the so-called ecclesiastical abstention doctrine, which generally bars the civil courts from resolving internal church disputes over matters of doctrine or the qualifications of members. Owen appealed. A state appeals court affirmed the trial court's dismissal of Owen's lawsuit. The court explained the ecclesiastical abstention doctrine as follows:

The overriding rule remains that courts cannot intrude into purely religious decisions. Thus, as with any other claim brought in the context of an intrachurch dispute, the question is whether the defamation claims can be determined without running afoul of the First Amendment. That means, can the specific defamation claim alleged herein be adjudicated "without extensive inquiry … into religious law and polity" and "without resolving underlying controversies over religious doctrine?" That includes inquiry into religious law, court examination of religious belief, or court review of the correctness of the church tribunal's decision.

If, to resolve the particular claim brought, a court would need to resolve underlying controversies over religious doctrine, then the claim is precluded [citing the United States Supreme Court's 1976 ruling in Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976)]. Where the allegedly defamatory statements refer to or are based upon religious doctrine or church governance, resolution of the truth or falsity of those statements, a determination critical to a defamation action, would require courts to inquire into and resolve issues of church teachings and doctrine, clearly matters of ecclesiastical cognizance.

The court concluded that "it is clear that the exclusion of a member is an intricate part of church governance and, as such, the courts will not interfere." Owen insisted that the ecclesiastical abstention doctrine was inapplicable since he is not challenging or seeking compensation related to the decision to exclude him from membership in the church but, rather, is seeking compensation for the defamatory statements in the letter. The court disagreed, noting that "the ecclesiastical abstention doctrine does not cloak only the disciplinary or expulsion decision itself, but also statements made attendant to the decision." It continued:

The protection afforded by the First Amendment to church disciplinary proceedings applies to statements made after the church's decision if the statements or actions are merely implementation of, still part of, inextricably related to, or a consequence of the decision …. Thus, the church's communication of the fact and reason for excommunication are protected from judicial inquiry and review.

Announcing an expulsion or disfellowship to the members of a church is part of the disciplinary proceedings, particularly where instruction to church members regarding the expelled party is part of the church's belief and practice. Thus, the act of informing the members of the church of disciplinary or expulsion actions is as much within the rights protected by ecclesiastical abstention as is the church's right to take such actions, even though it may carry some kind of negative implication about the expelled member.

Statements to church members in regard to disciplinary actions against other members are privileged for the same reasons that the membership decision is protected [quoting Anderson v. Watchtower Bible & Tract Society, 2007 WL 161035 (Tenn. Ct. App. 2007)].

What this means to the church

This case illustrates the reluctance of the civil courts to resolve internal church disputes involving the discipline or dismissal of members. This reluctance led the court to reject Owen's claim that he had been wronged despite the fact that the pastor read the attorney's letter to the congregation. 2009 WL 3518184 (Tenn. Ct. App. 2009).

Legal Developments

False Accusations

Court rules that a priest cannot sue men who accused him of sexually molesting them.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

False Accusations

Court rules that a priest cannot sue men who accused him of sexually molesting them.

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

Key point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a “qualified privilege,” meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.

An Illinois court ruled that a priest could not sue two adult males who accused him of sexually molesting them when they were minors. Two adult males provided a Catholic archdiocese with written statements recounting how they were sexually molested by the same priest when they were minors. One of the victims alleged that the priest would often have him sleep with him in the same bed at the church rectory, and take him on golf outings and other trips (where they stayed in the same room). The victim also stated that he accompanied the priest to a health club, where the priest insisted that he walk around the locker room naked. The second victim alleged that when he was in the third or fourth grade he spent the night at the church rectory and shared a bed with the priest, who repeatedly fondled him throughout the night. As a result of these complaints the archdiocese initiated an investigation, and a hearing, that resulted in the priest’s removal from the ministry.

The priest responded to these developments by suing the two complainants for defamation and emotional distress. He claimed that plans were announced in various church bulletins that a celebration would be held to commemorate his twenty-fifth anniversary as a priest, and that the complainants decided to retaliate against him by “concocting a false and defamatory story” that he had sexually abused them some 20 years earlier. The priest claimed that as a result of these false statements he sustained injury to his reputation. He sought compensatory damages in excess of $1 million and an undetermined amount of punitive damages.

A state appeals court ruled that the First Amendment guaranty of religious freedom prohibited it from resolving the priest’s lawsuit: “Since the only defamatory publication allegedly made by the [two victims] was made to the church itself within internal disciplinary proceedings, the absolute First Amendment protection for statements made by church members in an internal church disciplinary proceeding precludes the court from exercising jurisdiction in this matter.”

Application. The court concluded that there is an “absolute First Amendment protection for statements made by church members in an internal church disciplinary proceeding,” meaning that complaints of ministerial misconduct made to church officials for investigation ordinarily will not expose the complainants to civil liability for defamation or emotional distress. However, the court cautioned that there is no absolute privilege to make accusations of ministerial misconduct to persons outside of the church disciplinary process, and as a result such accusations may expose the complainants to civil liability. Stepek v. Doe, 910 N.E.2d 655 (Ill. App. 2009).

This Recent Development first appeared in Church Law & Tax Report, March/April 2010.

Legal Developments

Former Music Director’s Defamation Claim Dismissed

Truth is nearly always a defense to defamation.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Former Music Director’s Defamation Claim Dismissed

Truth is nearly always a defense to defamation.

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

Key Point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a “qualified privilege,” meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.

A New York court ruled that a church did not defame a former music director by informing the staff and congregation that he had been dismissed as a result of a false statement in his resume that he had an earned doctorate from the Eastman School of Music. In 2006, a church began a search for an Interim Director of Music. A man (the “plaintiff”) applied for the open position, indicating to the church in both a cover letter and resume that he had earned a doctorate degree from the Eastman School of Music and had completed “post-doctoral” studies at several prestigious institutions. After multiple communications with church leaders, the plaintiff was hired as the church’s Interim Director of Music and church organist.

Three months later, the church began inquiry into plaintiff’s academic credentials after church leaders became aware that plaintiff had not been awarded a doctorate degree and was using the title of “Doctor” inappropriately. Further investigation, culminating with verification from the Eastman School of Music, confirmed that plaintiff, who had satisfied many of the performance requirements leading to the doctorate degree, was never actually awarded the degree because he had not yet passed the oral portion of his doctoral qualifying examinations. Church leaders also learned that plaintiff had been previously cautioned by the Eastman School against using the title “Doctor” prior to conferral of the actual degree.

After affording plaintiff an opportunity to explain the apparent academic misrepresentation, a decision was made to terminate his employment. Shortly thereafter, the church’s senior pastor generated two emails about the change in staff which he sent to the church staff and members of the church choir. The email contained the following statements:

Following our second service of worship yesterday, it became my responsibility to dismiss [the plaintiff] as Interim Choir Director and organist. The action was the result of a failure to reach satisfaction between the Personnel Committee and [the plaintiff] with regard to his academic qualifications and the apparent accuracy of the degree listed in his resume …. The resulting lack of credibility and trust toward [the plaintiff] caused by this matter has rippled through the staff, the sanctuary choir and beyond. I trust you will hold the music ministry of [the church] and all of us, in your thoughts and prayers.

The following week, the church issued the following statement about plaintiff to the entire church congregation in its weekly newsletter:

This past Sunday [the plaintiff] was dismissed as Interim Choir Director and organist. This action was taken with the concurrence of the personnel committee after it learned that the representation on his resume that [the plaintiff] had completed his [doctoral degree] was inaccurate. We appreciate [the plaintiff’s] energy and contributions to our music ministry since last December. In the coming weeks, guest choir directors and organists will assist our choir in our upcoming services. Your prayers are sincerely requested for our music ministry, choir members, and our church’s staff at this challenging time.

A few months following these communications, the plaintiff sued the church and senior pastor for defamation. The court began its opinion by noting that defamation consists of (1) a false statement about another; (2) that is communicated to others without privilege or authorization; and (3) that causes injury to the other’s reputation. The court noted:

The plaintiff faces several insurmountable obstacles that required a dismissal of his claims. The “largest obstacle by far, is that the statements made by defendants with respect to plaintiff’s apparent misrepresentation of his academic credentials are true …. Plaintiff was never actually awarded a [doctoral degree] by the Eastman School of Music and as such, did not hold that degree when he applied to the church for the position of Interim Director of Music. This simple truth acts as an absolute defense to plaintiff’s claims of defamation with respect to the statements made by defendants about plaintiff’s misrepresented education credentials.

The court also ruled that the statements made by the pastor concerning plaintiff’s academic credentials “are protected by a qualified privilege, which exists because the statement was made to the church staff, the music staff and choir, and the congregation. All of these individuals share a common interest in that they are entitled to know the about the circumstances surrounding plaintiff’s dismissal.” As a result, the statements could not be defamatory without proof that they were made with malice. In this context, malice means that the pastor knew that the statements he made regarding the plaintiff’s academic credentials were false, or he made them with a reckless disregard as to their truthfulness.

Application. This case is instructive for the following reasons:

1. It illustrates the potential for fraud in job applications and resumes. According to some surveys, the most common misrepresentations on job applications and resumes pertain to education (i.e., school attended, degrees earned). Many churches now routinely conduct criminal background checks on new employees, but checking an applicant’s educational background is less common. As this case illustrates, this can result in hiring decisions being made on the basis of incorrect information.

2. It illustrates the cardinal rule that truth is an absolute defense to defamation.

3. It illustrates the concept of qualified privilege. According to this widely-recognized legal principle, statements made by church leaders to members regarding matters of common interest generally cannot be defamatory unless made with “malice.” Malice in this context means that the person making the statements knew they were false, or made them with a reckless disregard as to their truthfulness. Malice is very difficult to prove, and this means that churches have significant protection when communicating with members regarding matters of common interest.

Many courts, however, have explicitly limited this privilege to communications that are made to church members. The court in this case applied the qualified privilege to statements made to the staff, choir, and “congregation,” with no indication of whether church membership was required.

Church leaders wanting to preserve the qualified privilege defense when communicating matters of common interest to the congregation should take steps to ensure that their statements are directed exclusively to members. Be sure to consult with legal counsel before making any communication that is potentially damaging to any one or more persons. 2008 WL 5781051 (N.Y. App. 2008).

This Recent Development first appeared in Church Law & Tax Report, September/October 2009.

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Legal Developments

Church Member’s Defamation Suit Dismissed

Defamation usually cannot be proved without evidence of a false statement.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Church Member’s Defamation Suit Dismissed

Defamation usually cannot be proved without evidence of a false statement.

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

Key Point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a “qualified privilege,” meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.

A Louisiana court ruled that a minister did not defame a church member in an article he wrote for the church bulletin since the article did not contain a false statement concerning the member. A church member (the “plaintiff”), who had previously served as the church’s bookkeeper, had several differences of opinion with the church’s minister over issues of administration. The conflict intensified to the point that the plaintiff submitted a letter to the minister in which she resigned from all of her volunteer ministries in the church. Despite her letter, the plaintiff continued to participate in various church ministries. This prompted the minister to send her a letter informing her that her activities were in “direct violation of [her] own self-applied resignation” from the church ministries, and reminded her that her “membership, active participation and contributions in these ministries are no longer allowed.” He directed her to “desist from such roles” and to “stop disturbing the peace” of the church. The minister also wrote a short article in the church bulletin that stated, in part:

No member or group of members of this parish has the right to intimidate, or to try to intimidate, other members from the legitimate use of any facility or property that belongs to this parish. Any such report will be treated very seriously.

On the other hand, any parishioner that allows himself/herself to be intimidated from using any of these facilities, legitimately of course, is simply depriving himself/herself [of] his/her natural right and [has] only himself/herself to blame for it.

The plaintiff sued the church, claiming that these statements in the church bulletin had defamed her. A trial court dismissed the lawsuit, and the plaintiff appealed.

A state appeals court began its opinion by noting that defamation involves a false statement about another, that is communicated to others, and that injures the other’s reputation. The court concluded that the bulletin did not defame the plaintiff since it did not contain any false statements concerning her: “Notably, the alleged defamatory bulletin does not mention [the plaintiff] by name or otherwise. Moreover, nothing in the bulletin is alleged to be a false statement; thus, it is of no moment that [the plaintiff] felt that the message was directed at her, or that other church members may have taken it to be directed at her. Indeed, the testimony of other church members revealed there were persons other than [the plaintiff] they thought the minister may have been referring to in the bulletin message. Likewise, just because the letters and even the bulletin may have embarrassed [the plaintiff], as a matter of law, without a false statement, she cannot prove defamation.” 2008 WL 2065938 (La. App. 2008).

This Recent Development first appeared in Church Law & Tax Report, September/October 2009.

Legal Developments

Can Opinions Be Defamatory?

Former music director sues church for defamation after his dismissal.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Can Opinions Be Defamatory?

Former music director sues church for defamation after his dismissal.

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

Key point. Defamation consists of (1) oral or written statements about another person; (2) that are false; (3) that are “published” (that is, communicated to other persons); and (4) that injure the other person’s reputation.

A New York court ruled that a pastor did not defame his church’s music director by stating that he had been dismissed due to a “lack of credibility.” Church leaders dismissed the church’s music director after discovering that he had misrepresented his academic credentials at the time of his employment. The senior pastor of the church informed church staff and choir members that the “resulting lack of credibility and trust toward [the music director] caused by this matter has rippled through [the church and choir].” The dismissed music director sued the pastor and church for defamation. The court dismissed the lawsuit, noting that the pastor’s comments were “an expression of opinion” and therefore could not be defamatory.

Application. Defamation consists of a false statement about another that is publicized and injures the victim’s reputation. Since opinions cannot be “false,” they generally cannot be defamatory. Hamrick v. Perdue, 2008 WL 5214647 (N.Y.A.D. 2008).

This Recent Development first appeared in Church Law & Tax Report, March/April 2009.

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Legal Developments

Defamation: Statements of Opinion

Statements of opinion are generally not considered defamatory.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Defamation: Statements of Opinion

Statements of opinion are generally not considered defamatory.

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

Key Point 4-02. Defamation consists of (1) oral or written statements about another person; (2) that are false; (3) that are “published” (that is, communicated to other persons); and (4) that injure the other person’s reputation.

Key Point 7-17. Churches do not have to tolerate persons who disrupt religious services. Church leaders can ask a court to issue an order barring the disruptive person from the church’s premises. If the person violates the order, he or she may be removed from church premises by the police, and may be found to be in contempt of court.

A Tennessee court ruled that a statement made by a church member to police officers to the effect that another church member intended to kill someone was not defamatory since it was a statement of opinion rather than fact. A male church member (the “plaintiff”) claimed that a female pastor at his church made unfounded accusations of sexual harassment against him. The plaintiff filed a complaint with the church’s Staff-Parish Relations Committee against the pastor. He also wrote a poem, entitled “Assumptions,” which he sent via e-mail to the pastor. The poem tells a story in sixteen rhymed couplets of the arrival of “an attractive young lady” at the heavenly gates. She asks St. Peter if she can enter, and he offers her a hug “with arms opened wide.” She rejects the hug, and St. Peter rebukes her for her distrust and prejudice. He then pulls a chain, opening a door beneath the woman’s feet, with the result that “the devil embraced this woman on the other side.”

Shortly after composing this poem, the plaintiff arrived at church an hour before a scheduled worship service, and attached a copy of his poem to a bulletin board. A prefatory note attached to the poem stated that it was “One Christian’s Response to Allegations of Sexual Harassment.” A member of the Staff-Parish Relations Committee (Susan) was nearby, and as soon as the plaintiff left the hallway where the bulletin board was located, she removed the poem.

When the plaintiff returned to the hallway, an argument broke out between him and two other church members. Susan overheard the confrontation, and called the police. A police officer arrived promptly, and Susan allegedly blurted out, in the presence of her husband and the two other church members, that “he wrote a poem that threatened the life of one of our members.” The police officer escorted the plaintiff from the church premises, and the church trustees later told him not to return.

The plaintiff sued Susan for defamation, claiming that her statement spread through the congregation “like a wildfire,” that it caused him great mental anguish and emotional suffering, and that it was defamatory. He asked the court to award him $100,000 in compensatory damages, $50,000 for emotional pain and suffering, and $150,000 in punitive damages. A trial court dismissed the lawsuit and issued an injunction barring the plaintiff from entering church property or having contact with any church member. The plaintiff appealed.

A state appeals court noted that defamation consists of a false statement about another person that is publicized and injures the victim’s reputation. The court concluded that Susan’s statement to the police officer was not defamatory since it was a statement of opinion:

We consider [Susan’s] statement that [the plaintiff’s] poem amounts to a threat on someone’s life to be a matter of opinion, which should not be confused with a statement of fact. This distinction is important because a statement of opinion does not usually constitute actionable defamation, while a false statement of fact may do so …. It appears to us that she was not accusing [him] of committing a crime, but was merely giving excited expression to her opinion of the underlying meaning of his poem.

The court stressed that there was no “wholesale defamation exemption” for all statements of opinion, and that a statement of opinion can be defamatory if it “implies the allegation of undisclosed defamatory facts as the basis for the opinion.” But, “where there is no false representation of fact, one may not recover in actions for defamation merely upon the expression of an opinion which is based upon disclosed, non-defamatory facts, no matter how derogatory it may be.”

The court concluded: “[Susan] has been accused of saying that the plaintiff ‘wrote a poem that threatened the life of one of our members.’ We do not believe that such a statement is equivalent to saying that he threatened someone’s life, which under the circumstances might have amounted to an allegation of fact. Nor does it carry an implication that he threatened anyone at any other time or in any other manner than by writing a poem. The alleged statement is clearly opinion only, and we therefore agree with the trial court that it is not defamatory.”

The court agreed with the plaintiff, however, that the trial court’s injunction was too broad: “If strictly followed it would prevent him from associating with any church members for any purpose whatsoever, even if the other person agreed to or welcomed that contact.” The court limited the injunction to a ban on the plaintiff’s presence on church property. Kersey v. Wilson, 2006 WL 3952899 (Tenn. App. 2007).

This Recent Development first appeared in Church Law & Tax Report, July/August 2008.

Legal Developments

Accusations of Defamation

Statements concerning the discipline of members cannot be defamatory unless made with malice.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Accusations of Defamation

Statements concerning the discipline of members cannot be defamatory unless made with malice.

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

Key point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a “qualified privilege,” meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.

* A Kentucky court ruled that two dismissed church members could not sue the church and board of deacons for defamation as a result of statements made about them in the course of a disciplinary proceeding, since such statements were protected by a “qualified privilege.” A church established a “disciplinary committee” comprised of the deacons and senior pastor to address disciplinary matters involving members. If the disciplinary committee was unable to resolve an issue, the matter was referred to the congregation. The congregation could either admonish the offender or strip the offender of church membership.

A group of church members formed a “concerned members” group after a female member alleged that she had an extramarital affair with the pastor. The group wrote letters to the disciplinary committee demanding action, held meetings, and sent letters to members of the church. The disciplinary committee called a membership meeting to address the pastor’s alleged affair, and to recommend that the congregation terminate the membership of two members of the “concerned members” group. The disciplinary committee claimed that these two members spearheaded the “concerned members” group; encouraged the woman involved in the affair with the pastor to expose the relationship; and sent unauthorized mailings to church members. At the membership meeting, the deacons also made allegations of financial impropriety against the two members. The membership voted to expel the two members. In addition to holding the congregational meeting, the disciplinary committee sent out a letter to every person on the church’s mailing list containing the allegations made against the two members in the meeting.

The two dismissed members sued the church, the senior pastor, and the deacons, for defamation. A trial court dismissed the lawsuit, and the dismissed members appealed.

The appeals court began its opinion by noting that “issues of faith, internal organization, and church discipline are governed by ecclesiastical rule, custom, and law, and civil courts generally have no role in deciding such ecclesiastical questions.” The court also ruled that the “qualified privilege” that applies to statements made in the context of church discipline was recognized under Kentucky law. It quoted from an earlier Kentucky case: “Words spoken or written in the regular course of church discipline, or before a tribunal of a religious society, to or of members of the church or society, are as among the members themselves privileged communications, and are not actionable without express malice …. The courts appear to agree that in the absence of malice, members may discuss the character of their pastor, communicate rumors of misconduct to each other, and prefer charges whenever there appears to be any foundation therefor.”

The two dismissed members insisted that the oral and written statements concerning them were not privileged because they did not involve any church doctrine. The court disagreed: “This case involves statements made by the church’s disciplinary committee in the course of a church disciplinary matter. Specifically, this controversy requires the interpretation of the Discipline section of the church’s bylaws. Therefore, this controversy rests upon the interpretation of ecclesiastical matters, and thus the statements are privileged communications if made in the absence of express malice.”

The court noted that the qualified privilege does not confer absolute protection for statements made in the course of disciplinary matters. Rather, it protects statements only if they are not made with “malice.” In this context, malice means actual knowledge that a statement was false, or a “reckless disregard” regarding its truth or falsity. The two dismissed members asserted that the statements made by the disciplinary committee were malicious since they were designed to “send a warning of silence to other members of the church who were questioning the actions of the pastor.” The court concluded that the dismissed members “presented no evidence, apart from conclusory allegations based on suspicion and conjecture, indicating that the defendants were motivated by malice.”

Application. Many states recognize the qualified privilege defense to defamation. As this court noted, this defense applies to statements concerning the discipline of members. The court applied the defense to statements made by the disciplinary committee in the membership meeting as well as in letters sent to active voting members. According to the qualified privilege, statements concerning the discipline of members cannot be defamatory unless made with malice. This is a very difficult standard to prove, which means that communications addressing such matters generally will be defamatory only in exceptional cases. Note that several courts have restricted the qualified privilege to statements made to members, and that the privilege is lost if statements are made in a meeting or mailing to persons who are not members in good standing. So, to ensure the maximum application of the qualified privilege, church leaders should take steps to ensure that any statements concerning the discipline of a member are directed only to members, either in a membership meeting or in letters. If statements are communicated via letter, the letters should be addressed to active voting members on the church’s official membership roll; the envelope and letter should include the words “privileged and confidential”; and the letter should include a warning that the contents are to be read only by the member to whom it is addressed, and are not to be shared by the member with any non-member. Cargill v. Greater Salem Baptist, 2006 WL 1950663 (Ky. App. 2006).

Legal Developments

Lawsuits by Dismissed Clergy

A Texas court ruled that it was barred by the First Amendment from resolving a lawsuit brought against a church by a dismissed youth director.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Lawsuits by Dismissed Clergy

A Texas court ruled that it was barred by the First Amendment from resolving a lawsuit brought against a church by a dismissed youth director.

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

Key point 2-04.1. Most courts have concluded that they are barred by the First Amendment guarantees of religious freedom and non-establishment of religion from resolving challenges by dismissed clergy to the legal validity of their dismissals.

* A Texas court ruled that it was barred by the First Amendment from resolving a lawsuit brought against a church by a dismissed youth director. Randy was employed as a church’s Director of Youth Ministries. In that position, he was responsible for “the administration and organizing of recreational events for the youth, such as camping outings and other social gatherings; he coordinated the transportation, oversaw the logistics, and served as a chaperone.” He also “managed the budget for the youth program, recruited adult and youth participants, registered the attendees at events, collected participation fees from attendees, and performed fundraising duties.”

Another associate pastor at Randy’s church had a conversation with a pastor of the church where Randy had previously been employed concerning Randy’s continued employment. The pastor of Randy’s former church recounted allegations that Randy had upset congregation members by dating certain women and by putting his arm around girls at church. He also described a rumor that Randy had used internet pornography as being “unsolicited, anecdotal, and unsubstantiated.”

After this conversation, the associate pastor at Randy’s church shared these rumors with another pastor who met with the Staff Parish Relations Committee (“SPRC”) and recommended that Randy be terminated from his position as Director of Youth Ministries. In a subsequent letter to two concerned members of the congregation, the SPRC chairwoman wrote: “Please know that this committee and your pastors share your concern for the youth program. A search for a new youth director will begin after the first of the year. Before any action was taken, the pastors discussed the situation with the District Superintendent and sought the backing of the SPRC, which unanimously voted to accept the recommendation to support the decision. I can assure you that we approached this decision prayerfully and in the best interests of the church.”

Randy claimed that the SPRC chairwoman told a member of the congregation who asked about his termination that, “It is really bad,” “We had to get him out before something happened at our church,” and that “Randy knows why he was fired” and “he wouldn’t want anyone else to know.”

Randy sued the church, claiming it was liable for defamation and interference with an employment contract. A trial court dismissed the lawsuit on First Amendment grounds, and Randy appealed.

A state appeals court began its opinion by summarizing two important principles rooted in the First Amendment guaranty of religious freedom. The ecclesiastical abstention doctrine prevents secular courts from reviewing many types of disputes that would require an analysis of “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required.” In cases relying on the ecclesiastical abstention doctrine, courts consider the substance and nature of a plaintiff’s claims to determine whether the First Amendment prevents civil court jurisdiction. The second, and more narrow, principle is the so-called ministerial exception which prevents the civil courts from resolving employment disputes between a church and its ministers. If the employee is a minister, then the ministerial exception applies, “preventing secular review of the employment decision without further question as to whether the claims are ecclesiastical in nature.” The reason for this special rule for employment decisions about ministers is because:

The relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern …. [Inquiry into a church’s decision regarding the] employment relationship existing between a church and its minister would result in an encroachment by the state into an area of religious freedom which it is forbidden to enter by the principles of the free exercise clause of the First Amendment. McClure v. Salvation Army, 460 F.2d 553 (5th Cir.1972).

In summary, if Randy’s position was ministerial, “then, pursuant to the ministerial exception, his claims for defamation and interference are not subject to secular review.”

The court concluded that an employee’s position will be considered “ministerial” if his or her “primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship” or if the “position is important to the spiritual and pastoral mission of the church.” In deciding if an employee’s primary duties are ministerial in nature, the court referred to the following three factors: (1) “whether employment decisions regarding the position at issue are made largely on religious criteria,” (2) “whether the plaintiff was qualified and authorized to perform the ceremonies of the church,” and (3) “probably most important whether plaintiff engaged in activities traditionally considered ecclesiastical or religious.” Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999). The Starkman court held that it is “sufficient” to deem an employee’s function “ministerial” if only the third prong is satisfied (choir director was a minister because religious music “constitutes a form of prayer that is an integral part of worship”).

The court noted that Randy’s position as Director of Youth Ministries included many administrative duties, such as coordinating the transportation, logistics, and other travel arrangements for youth outings and gatherings. Also, the court pointed out that he was not ordained, and, as Director of Youth Ministries, did not participate in worship services or ceremonies, had no responsibility for the music or liturgy, did not assist with the confirmation of youth, and was not required to teach religious classes or have religious training. On the other hand, the court noted:

Randy was responsible for “organizing” these events, meaning that he made decisions on behalf of the church about what activities the members of its youth ministry would participate in. The purpose of a church organizing a youth-group retreat is to bring people together in fellowship, often coupled with religious worship or reflection. Even if he was not teaching the doctrine himself, he testified that he was actively participating as a chaperone. Organizing and chaperoning these events for the youth ministry are activities that furthered the church’s mission, which went beyond purely secular tasks such as booking a chartered bus, collecting payments from the participants, or reserving cabins for a retreat. Furthermore, he “managed the budget for the youth program.” Had he been responsible merely for accounting, this function might be viewed as solely secular because he would not have any discretion over the use of church funds. But, as the director of the program who “managed” the budget, he was authorized to decide how the church’s money was best used in furtherance of ministering to its youth. Because he was responsible for deciding what activities the church’s youth group would participate in and how the program’s money would be spent, he was “answerable to the religious authorities for providing, in a myriad of ways not reducible to a listing of tasks, ‘spiritual leadership in and for the [youth ministry].'”

Notably, Randy’s affidavit also states that he “performed fund-raising duties” and “recruited participants” for the program. There is no question that asking people to give their time and money to support activities of the youth ministry is a function that is “important to the spiritual and pastoral mission of the church,” especially in light of the fact that he was also responsible for deciding how to use that money and how to organize those events. In fulfilling these duties, he would be directly communicating the mission of the program to individuals and encouraging them to participate either financially or physically.

Thus … it is apparent that he was acting both as the “voice” of the youth ministry and serving as a “primary agent” of the church. Determining whose voice speaks for the church is per se a religious matter, and determining who will serve as a “primary agent by which a church seeks to fulfill its purpose” is precisely the type of ecclesiastical decision that the First Amendment intends to protect. Considering the Starkman “primary duties” test, then, (1) the church’s employment decision regarding Randy’s position would be based largely on religious criteria, and (2) his organizing of—as well as his budgeting, fund-raising, and recruiting participants for—youth ministry activities are things “traditionally considered [to serve an] ecclesiastical or religious” purpose. Accordingly we hold that, as Director of the Youth Ministry Randy functioned in a ministerial capacity.

The court rejected Randy’s argument that some of his defamation claims could be addressed because they were based on statements made about him by church officers after he was dismissed. In particular, the chairwoman of the SPRC allegedly told members that “it is really bad” and “we had to get him out before something happened at our church.” Although such statements “do not, on their face, implicate religious doctrine, a determination of the truth or falsity of these statements would require an inquiry into the church’s reasons for terminating Randy from his position as the Director of Youth Ministries,” and this is “precisely the type of inquiry protected from secular review by the ecclesiastic abstention doctrine.”

Application. This case is important for two reasons. First, it applies the ministerial exception to a youth pastor who was not ordained, and who “did not participate in worship services or ceremonies, had no responsibility for the music or liturgy, did not assist with the confirmation of youth, and was not required to teach religious classes or have religious training.” The court concluded that Randy was nonetheless a “minister” for purposes of the ministerial exception because (1) he was actively involved in organizing and chaperoning events for the youth ministry that furthered the church’s mission and “went beyond purely secular tasks”; (2) he was authorized to decide how the church’s money was best used in furtherance of ministering to its youth; (3) he performed fundraising duties and recruited participants for the youth program; (4) he acted both as the “voice” of the youth ministry and served as a “primary agent” of the church.

Second, the court concluded that the ministerial exception barred resolution of defamation claims arising from post-termination statements if “a determination of the truth or falsity of these statements would require an inquiry into the church’s reasons for terminating [the minister] from his position,” since this is “precisely the type of inquiry protected from secular review by the ecclesiastic abstention doctrine.” Patton v. Jones, 212 S.W.3d 541 (Tex. App. 2006).

Legal Developments

Defamation and Church Clergy

A church’s protection from defamation lawsuits.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Defamation and Church Clergy

A church’s protection from defamation lawsuits.

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

Key point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a “qualified privilege,” meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.

Key point 10-15. The First Amendment limits, but does not eliminate, a church’s liability for defamation.

* An Oklahoma court ruled that the First Amendment guaranty of religious liberty, as well as the concept of “qualified privilege,” protected a church from being sued for defamation as a result of the senior pastor’s statement to a church member that a former youth pastor had been dismissed because he had been “questioning his sexuality.” A church board voted to dismiss the church’s youth pastor (Pastor Eric). Pastor Eric later sued the senior pastor of the church, and the church and a regional church, for defamation based on the senior pastor’s statement to members of the church and local community that Pastor Eric had been dismissed because he was “questioning his sexuality.” Pastor Eric claimed that these statements constituted slander, and he asked the court to award him both actual and punitive damages. The church defendants insisted that the pastor’s alleged statement was made to only one person (a church member), and concerned the discipline of a youth pastor, and therefore was shielded from liability by the First Amendment guaranty of religious freedom as well as the “qualified privilege” that protects statements of “common interest” that are shared between church members.

Pastor Eric pointed to minutes of a church board meeting indicating that he had been fired for violating church policy in the conduct and financing of youth activities, and therefore the pastor’s subsequent statements regarding his sexuality did not concern the imposition of discipline for violation of any ecclesiastical doctrine of the church and were not protected by the First Amendment. In addition, Pastor Eric alleged that the senior pastor’s statement regarding his sexuality was made to a church member in the presence of two other church members. A trial court dismissed the lawsuit, concluding that the senior pastor’s statement was made “to a church member about a terminated staff member, who was also a church member; accordingly, the alleged statement is constitutionally protected.” Pastor Eric appealed.

First Amendment

A state appeals court began its opinion by defining defamation as a false statement about another that is communicated to other persons. It noted that the First Amendment to the United States Constitution “guarantees a church the right, without fear of judicial interference, to impose on its members discipline for breach of ecclesiastical doctrine so long as the member remains a member of the church.” Consequently, “the First Amendment will protect and shield the religious body from liability for the activities carried on pursuant to the exercise of church discipline,” and “within the context of ecclesiastical discipline, churches enjoy an absolute privilege from scrutiny by the secular authority.”

The court rejected Pastor Eric’s claim that the First Amendment offers no protection to defamatory statements unrelated to church discipline. It observed, “The statement of which plaintiff complained related to the ostensible reason for his termination, conveyed from the pastor to a member of the congregation concerning the conduct of another member. At least one court has specifically held that statements by and between church members relating to the church’s reasons and motives for terminating a person’s membership require an impermissible inquiry into church disciplinary matters,” and that the First Amendment “precludes a member’s defamation claim which clearly involves an internal conflict within the church. We are persuaded that examination of [the senior pastor’s] statement in the present case likewise requires an impermissible inquiry into church disciplinary matters, barred by the First Amendment.”

Qualified privilege

The court concluded that the church defendants also were protected by a qualified privilege, which it defined as follows:

A church or other religious organization ordinarily bears no tort liability for statements by or between church officers or members concerning the conduct of other officers or members, because communications between members of a religious organization concerning the conduct of other members or officers in their capacity as such are qualifiedly privileged as matters affecting a common interest or purpose. This is especially so where the publication is made in response to a request rather than volunteered by the publisher. So, where the alleged defamatory statements are exchanged by or between members of the congregation during or as result of either a church’s decision to employ, retain or terminate a clergyman or lay employee, or a church’s review of the performance of a clergyman or lay employee, the conditional privilege shields the church from liability for defamation.

A qualified privilege is “qualified” in the sense that it will not apply if the person making an allegedly defamatory statement does so with “malice.” In this context, malice means either a knowledge that the statement was false, or a reckless disregard as to its truthfulness.

The court quoted with approval from a 1929 decision by the New Hampshire Supreme Court:

The idea that the conduct of a minister should be mentioned unfavorably only at church meetings, or before tribunals having authority in the premises, suggests an undesirable departure from the usual course of events …. Individual church members are not accustomed to bring the various items of gossip which may be in circulation about the minister to the attention of the governing boards of the church, nor is it desirable that they should do so …. Instances in which charges are presented and heard by the constituted church authorities evidence the culmination of considerable periods of private discussion amongst the members of the congregations involved. Any rule designed to penalize the formation of public sentiment in such cases by arresting the preliminary sifting of reports through private discussion, free from the taint of malice and for a proper purpose, is without justification and would be foredoomed to practical failure as an attempt to decree that men and women shall not act like human beings. Slocinski v. Radwan, 144 A. 787 (1929)

The court noted that a church member had asked the senior pastor why Pastor Eric had been terminated, which amounted to a request for information “concerning [his] conduct or qualifications for office.” The allegedly defamatory statement occurred in the course of the pastor’s response to this inquiry, that is, “during an exchange between one member of the congregation and another member of the congregation concerning the acts of a third member of the congregation.” The court concluded that “the unconverted evidence thus demonstrates publication of the complained-of statement occurred on a conditionally privileged occasion, and the record contains no evidence even remotely suggesting the destruction of the conditional or qualified privilege by abuse or malice.”

Application. This case contains an excellent description of the qualified privilege. Church leaders should be familiar with this concept. Note, however, that in recent years some courts have limited the First Amendment and qualified privilege defenses to statements made about a staff member prior to his or her termination. This is an important qualification to bear in mind.

Also note that the minutes of the church board were cited by Pastor Eric as proof that he had been terminated for non-doctrinal reasons. This illustrates an important point. Church board members should recognize that the minutes of their meetings are accessible in the event of future litigation, and as a result they should be prepared with this possibility in mind. If in doubt, have a local attorney review minutes before they are formally approved. Trice v. Burress, 137 P.3d 1253 (Okla. App. 2006).

* See (1) “Defamation,” Trice v. Burress, 137 P.3d 1253 (Okla. App. 2006); (2) “Sexual misconduct by clergy, lay employees, and volunteers,” 2006 WL 1009283 (W.D. Wash. 2006), in the recent developments section of this newsletter.

Legal Developments

Defamatory Statements

Expressions of opinion cannot be considered defamation.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-09-01

Libel and Slander

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

• Key point. To be defamatory, an utterance must contain a false statement of fact rather than an expression of an opinion.

A Massachusetts court ruled that statements made by a pastor about a member of a church committee could not be defamatory since they were mere expressions of opinion. A member of a church was elected to the Christian Education Committee of the church for three consecutive three—year terms. During the course of her service on the committee, the member and the church’s pastor developed a personality conflict and clashed on several occasions on a variety of church—related issues. The pastor communicated her opinion on the member’s job performance to the church congregation, and distributed a book entitled “Antagonists of the Church” to members of the church’s nominating committee for their consideration in evaluating the member’s suitability for renomination at the end of her current term on the committee. The church’s nominating council did not renominate the member for another term on the Christian Education Committee and, as a result, she filed a lawsuit against her pastor alleging defamation. She claimed that the pastor had defamed her by giving a copy of the book “Antagonists in the Church” to the nominating committee and by telling them that the book “might be helpful … in their decision making” regarding her reappointment to the education committee. A trial court dismissed the case, and the member appealed. A state appeals court upheld the trial court’s dismissal of the case. The court noted that “to recover for defamation the plaintiff must establish (a) a false and defamatory statement of fact concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) … harm caused by the publication.” The court concluded that the pastor’s communications were not defamatory since they were mere expressions of opinion rather than statements of fact as required to support a defamation claim.

Application. This case illustrates an important point-most courts have limited defamation to false statements of fact as opposed to expressions of opinion. Therefore, in deciding whether or not communications made by church leaders to members of the congregation are defamatory, most courts will first determine if the communications contained statements of fact as opposed to expressions of opinion. Of course, even if the communications contained statements of fact, they cannot be defamatory unless they were “published” or communicated publicly, they were false, and they injured someone’s reputation. DeLong v. Giles, 1996 WL 224477 (Mass. App. 1996). [Officer of the Church Corporation]

© 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: m53 m29 c0597

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Legal Developments

Pastor Sued for Disclosing Confidential Information

Court ruled that a pastor and his church could be sued on the basis of malpractice and other grounds as a result of the pastor’s disclosure of confidential information shared with him by a church member.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Ministers who disclose confidential information obtained during counseling sessions may be exposing themselves, as well as their church, to legal liability on the basis of a number of grounds, including malpractice, invasion of privacy, defamation, and infliction of emotional distress.

An Arizona court ruled that a pastor and his church could be sued on the basis of malpractice and other grounds as a result of the pastor's disclosure of confidential information shared with him by a church member. A woman (the "victim") was referred to a pastor for counseling because of his many years of counseling experience. The victim met with the pastor for help with emotional problems following the breakup of an affair with another pastor with whom she had lived for nine months.

The victim later joined the counseling pastor's church, and continued to meet with him for counseling, relating to him highly personal and private matters including her feelings of guilt about having had an inappropriate relationship with the other pastor, and the fact that her father had a sexual relationship with her brother's wife. The victim's sister attended the same church, and married the pastor's son.

During premarital counseling the sister informed the pastor that her father had once embraced her in an "uncomfortable way." The marriage between the sister and the pastor's son deteriorated after the sister learned that her husband was having an affair with another woman. When the pastor's son publicly blamed his wife for the breakup of their marriage, the victim met with the pastor to defend her sister and to present evidence showing that the husband (the pastor's son) was the one who had been unfaithful.

With his wife present, the pastor told the victim that her sister was "screwed up" because she had been molested by their father, and suggested that he would reveal his knowledge of the affair between the victim and her former pastor if she and her sister did not drop their accusations against his son.

The pastor's wife told the victim to "stop lying" about her son because "we know things about your family." The next day the pastor and a church administrator had a conversation in which the pastor described the discord between the victim (and her sister) and his family. He also told the administrator that there were "incest problems" between the victim's father and his children, and that he had learned this information during his counseling sessions with the victim and her sister.

During a Wednesday evening church service, the pastor "marked" the victim and her sister as causing division in the church, and stated that their family was "incestuous" and "dysfunctional." The victim and her sister sued the pastor and the church on a number of grounds, including invasion of privacy, defamation, malpractice, and breach of fiduciary duty. The court's ruling is summarized below.

Civil court intervention in internal church disputes

The pastor and church defended themselves by insisting that the dispute was an internal church matter over which the civil courts have no jurisdiction. They noted that the pastor was motivated by a "biblical admonition" when he brought the victim and her sister's conduct to the attention of the congregation, and that their only real harm was the termination of their relationship with the church and its members. The court rejected these defenses, concluding that the general rule of judicial non—intervention in internal church disputes did not apply in this case "because this dispute can be resolved without inquiry into religious law and polity." The court continued:

We need not consider the "marking" ritual nor its origins in resolving these issues. [The pastor] revealed confidences from his counseling sessions with [the victim and her sister] and threatened to publicize [the victim's] involvement with [her former pastor]. He divulged confidences of [the victim and her sister] to his wife, mother, sister, and the church administrator and also relayed false information to them. There was no evidence that this conduct was part of the observance of the church's religious practices or beliefs; thus, the doctrine of ecclesiastical abstention has no bearing here …. That the injuries occurred in a religious setting does not render them noncompensable, nor does it deprive the court of jurisdiction.

Malpractice for disclosing confidential information

The pastor relied on several cases rejecting clergy malpractice claims because of first amendment concerns about determining a standard of care for pastors. The court concluded that:

Those cases are not applicable here because the claim submitted to the jury was for therapist malpractice, not clergy malpractice, and was based on a psychological therapist's duty not to disclose confidential information revealed in counseling sessions. [The victim's] claim arose, not out of any duty [the pastor] owed them in his capacity as their pastor, but rather out of his duty as a therapist or counselor to refrain from acting in a manner that carried a foreseeable and unreasonable risk of harm to the person being counseled.

Although we have found no Arizona cases in which the disclosure of confidential information by a counselor served as the basis of a malpractice claim, other jurisdictions have recognized causes of action arising from disclosures of confidences by providers of counseling services …. Arizona has long acknowledged and protected the confidential nature of relationships between physicians and their patients, and more recently between psychologists and other behavioral health providers and their clients, including counselors and "marriage therapists." The purpose behind these privileges is "to enhance the effective diagnoses and treatment of illness by insuring that a person requiring professional attention will not be deterred by fear that his physical or mental condition may become public, thereby subjecting him to embarrassment or humiliation."

The pastor insisted that the therapist—patient privilege only applies to licensed counselors and therapists, and that pastors should not be held to the same standards. Once again, the court disagreed:

One who holds himself out and undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities. At trial [the victim] presented expert testimony that mental health therapists and counselors have a duty not to disclose confidential information, with certain limited exceptions, and that this duty applies to both pastoral and professional counselors, whether licensed or not. In Arizona, mental health counselors are not required to be licensed …. In sum [the pastor and church] offer no good reason for insulating a counselor from liability for betraying clients' confidences to their detriment merely because the counselor is a clergy member and unlicensed, and the counseling as well as wrongful disclosure takes place in a religious setting.

Here [the victim] testified that she was referred to [the pastor] for counseling to help her through emotional difficulties and depression "because of his 40 years' counseling experience," that she made an appointment with him for that purpose, and that she met with him in his office at the church.

During [her] first counseling session [the pastor] used a chart to determine her level of self—esteem and concluded it was very low and she needed to raise it. [He] also discussed ways for [her] to deal with her feelings of guilt about her relationship with [her former pastor]. The inclusion of biblical passages on the chart did not convert the session into religious counseling, especially when the purpose of the meeting was not to provide her with religious or spiritual guidance, the church's precepts and practices were not part of the counseling, and [the victim] was not a church member when she sought help from [the pastor].

What this means for churches

The importance of this case cannot be overstated. It demonstrates that pastors who disclose confidential information shared with them in counseling sessions may be exposing themselves, as well as their church, to legal liability on the basis of malpractice, invasion of privacy, breach of fiduciary duty, and infliction of emotional distress.

As this case illustrates, this conclusion may apply even when pastors share confidential information in order to discipline a member for violating church standards. The point is this-would members disclose confidential information if they suspected that their pastor would report it to the church board or congregation in order to discipline them? Clearly, the answer is "no."

Therefore, it is essential for pastors to refrain from disclosing information obtained during confidential counseling sessions-even if it relates to a person's qualifications or eligibility for membership. Of course, the church board can still discipline the individual, but not on the basis of any information shared with the pastor in the course of a confidential counseling session. Another alternative is for a pastor to obtain the permission of the counselee to share confidential information with the board or with some other person. If this permission is obtained (in writing), this will serve as a defense in the event that the pastor is later sued for disclosing the information.

Finally, note that the court suggested that in limited contexts pastors may not be subject to legal liability for disclosing confidential information obtained during a counseling session-because they are serving as pastoral counselors rather than as secular counselors or therapists. Facts supporting this limited exception, according to this court, include the following:

  1. the counselee did not seek out the pastor as a counselor for relief of emotional difficulties;
  2. the pastor did not engage in psychotherapeutic techniques, testing, or diagnoses;
  3. the purpose of the counseling was to provide religious or spiritual guidance;
  4. the church's precepts and practices were part of the counseling; and
  5. the counselee was a church member.

    6. Barnes v. Outlaw, 937 P.2d 323 (Ariz. App. 1996).

Legal Developments

Defamation and “Qualified Privilege”

Claims made to others concerning a matter of common interest generally are protected.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-09-01

Libel and Slander

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

• Key point. Statements made to others concerning a matter of common interest generally are protected by a “qualified privilege,” meaning that they cannot be defamatory unless made with malice. Statements are made with legal malice if they are made with a knowledge that they are false, or with a reckless disregard as to their truth or falsity.

A Texas court ruled that a church was not liable for defaming a former secretary as a result of statements made to church members claiming that she had misappropriated church funds. A church operated a private school. Its minister of education, who also served as principal of the school, resigned after admitting that he misappropriated church funds, destroyed church records, forged signatures, and committed other criminal acts. He later pleaded guilty to criminal charges for his admitted conduct in misappropriating school funds. He informed the church that a woman who served as a secretary at the school participated in the misappropriations. After an audit confirmed the principal’s accusations the church asked the secretary to resign. The church published: (1) a letter to its members claiming that the secretary misappropriated school funds; (2) a letter to the school children’s parents claiming that the secretary deposited tuition funds into the wrong accounts and later used the funds for her personal benefit; destroyed checks, financial records, and bank records; forged signatures; covered up these indiscretions; received seventy dollars extra per pay period for nearly two years as well as other undocumented “reimbursements”; and (3) a report to the church members reporting the secretary’s resignation and claiming that she deposited tuition funds into the wrong account and then used the funds to support programs and individuals outside of and over the budget adopted by the congregation. At a meeting of church members, church officials orally accused the secretary of depositing tuition funds into the wrong account and then using the funds for her personal benefit or for other people or projects as she and the principal saw fit; destroying checks, bank records, and financial records; forging signatures; and covering up many of these indiscretions. The secretary later sued the church and the individual members of the church audit committee, claiming that the church’s actions defamed her, placed her in a false light, and inflicted emotional distress. A trial court dismissed the lawsuit, and the secretary appealed. A state appeals court agreed with the trial court’s decision. Its analysis of the secretary’s three claims is summarized below.

defamation

The court noted that a statement is defamatory if it is “published” or communicated (orally or in print) to third persons, and “tends to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him, or if it tends to expose him to public hatred, contempt, or ridicule.” However, the court pointed out that some words that otherwise might be defamatory may be “legally excused.” This includes the defense of qualified privilege. The court defined this exception to defamation as follows:

A privilege will be granted to statements that occur under circumstances wherein any one of several persons having a common interest in a particular subject matter may reasonably believe that facts exist that another, sharing that common interest, is entitled to know. A qualified privilege attaches to bona fide communications, oral or written, upon any subject in which the author or the public has an interest or with respect to which the author has a duty to perform to another owing a corresponding duty. This privilege is termed conditional or qualified because a person availing himself of it must use it in a lawful manner and for a lawful purpose. The effect of the privilege is to justify the communication when it is made without actual malice. Thus, when a statement is privileged, Texas law requires a showing of actual malice to overcome that privilege. Actual malice means with knowledge that the statement was false or with reckless disregard of whether it was false. Reckless disregard requires proof that a false defamatory statement was made with a high degree of awareness of its probable falsity. Generally, when publication is made under circumstances creating a qualified privilege, the plaintiff has the burden to prove malice …. Malice exists when the evidence shows that the speaker entertained serious doubts as to the truth of his statements.

The court concluded that the evidence “conclusively showed” that the church acted without malice and in good faith, and therefore was protected by the qualified privilege. It observed:

All of the members of [the church] have a common interest in the church’s use of their financial contributions to the church; thus, the members have a common interest in information about those funds. The members who made the statements in question reasonably believed that the misappropriation took place and that the board, the members, and the parents shared a common interest in the use of the funds and information about those funds. [The church] reasonably believed that these people were entitled to know of the misappropriation. [It] had a duty to perform for the board, the members, and the parents. [It] made the communications without actual malice. [The principal] confessed his and [the secretary’s] involvement, and [he] later pleaded guilty to criminal charges. [The church’s] audit confirmed all of [his] statements. [The secretary] never swore under oath in an affidavit in opposition to summary judgment that the statements were lies. [She] kept the misappropriated funds in a shoe box in her closet and returned the funds when accused. [The principal] testified that the statements were true. [The secretary] admits receiving personal benefit from the misappropriation of funds. [She] admits she destroyed records. [The church] neither entertained serious doubts as to the truth of the statements nor made these statements with a high degree of awareness of their probable falsity. The communications appeared accurate, [the church] reasonably believed [the principal], and church members and parents who received information had an interest in the funds and information about the funds.

false light

The court also rejected the secretary’s claim that the church invaded her privacy by placing her in a “false light.” It noted that the Texas Supreme Court “recently held that the claim of false light invasion of privacy does not exist in Texas, even though several Texas courts of appeals and several federal courts interpreting Texas law previously recognized this claim.”

emotional distress

The court rejected the secretary’s claim that the church’s actions amounted to an intentional infliction of emotional distress. The court noted that the elements of an intentional infliction of emotional distress claim are (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the victim emotional distress; and (4) the emotional distress suffered by the victim was severe. The court stressed that liability should be found “only when the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” The court conceded that the church depicted the secretary as a “thief,” but concluded that this statement was not “sufficiently outrageous” to demonstrate an intentional infliction of emotional distress.

Application. This case illustrates the limited but important protection that is granted to churches in many states when sharing matters of common interest with church members. In many states, such comments cannot be defamatory unless made with malice. As this case illustrates, this is a difficult standard to meet. However, it is important to note that the privilege does not extent to communications made to nonmembers, or to matters that in fact are not of “common interest” to members. Churches can lose the protection of the qualified privilege by making statements during church services that are attended by members and nonmembers alike. To repeat, the law provides substantial protection to churches when sharing information of common interest to members. But, this protection does not apply when the communication is directed to nonmembers having no legitimate interest in the content of the communication. Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85 (Tex. App. 1997). [ Defamation, Invasion of Privacy]

© 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: m53 m86 c0597

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Legal Developments

Priest Sues Bishop and Diocese for Defamation

Courts generally refuse to interfere with churches’ decisions regarding a minister’s status.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-07-01

Libel and Slander

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

• Key point. Statements made by church officials regarding a ministers status are an internal church concern that generally are free from civil liability, and this includes claims that the statements were defamatory.

A Texas court ruled that a bishop and diocese could not be liable on the basis of defamation for statements made about a priests status within the church. A priest had a history of conflict with his diocese culminating in his association with a dissident Catholic sect. A parishioner asked the priests bishop about the priests standing in the Catholic Church, and was informed that “he is not in good standing with his diocese and does not enjoy the [authority] to function as a priest in [this] or any other diocese.” The bishop advised another person that the priest was excommunicated, and not in good standing, and “says mass to a small number of people, including elderly women who have been deceived by him.” The bishop later sent a memorandum to “all pastors” advising them to refrain from advertising or encouraging a mass being offered by the priest who was described as an “excommunicated priest who has left the Catholic Church.” The priest sued the bishop and diocese, claiming that these communications were defamatory. A state appeals court disagreed. The court observed that the first amendment “forbids the government from interfering with the right of hierarchical religious bodies to establish their own internal rules and regulations.” As a result the civil courts cannot “intrude into the churchs governance or religious or ecclesiastical matters, such as theological controversy, church discipline, ecclesiastical government, or the conformity of members to standards of morality.” Furthermore, the court noted:

[C]ourts will not attempt to right wrongs related to the hiring, firing, discipline or administration of clergy. Although such wrongs may exist and may be severe, and although the administration of the church may be inadequate to provide a remedy, the preservation of the free exercise of religion is deemed so important a principle it overshadows the inequities which may result from its liberal application.

The court conceded that churches “exist and function within the civil community” and as a result they are “as amenable as other social entities to rules governing property rights, torts, and criminal conduct.” The difficulty “comes in determining whether a particular dispute is ecclesiastical or simply a civil law controversy in which church officials happen to be involved.” The priest insisted that the dispute in this case was not ecclesiastical. Rather, it involved a question whose resolution did not involve ecclesiastical considerations-whether or not he had been excommunicated. The court disagreed:

[The priests] claims arise from his divestiture of priestly authority; thus, his [legal] claims are inseparable from the privileged aura of ecclesiastical exemption. [The bishops] administrative duties include informing members of the Catholic Church of the status of its clergy. We believe that statements made by a bishop in carrying out his administrative duties concerning an excommunication made before, during or after an excommunication, are all part of an ecclesiastical transaction-the divestiture of priestly authority.

The court acknowledged that “there may be circumstances where a bishop or other church authority makes statements which overstep the bounds of [his or her] administrative duties.” For example, “when statements are made by a church authority which are clearly intended to defame or inflict emotional distress, the authority has overstepped the bounds of his administrative duties and the statements may fall outside ecclesiastical protection.” This was not true in this case, however, since the bishops statements all related to the priests standing in the Catholic Church.

Application. This case illustrates the well—established rule that the civil courts will not interfere with decisions made by churches or denominational agencies concerning the status of ministers. As another court has observed: “However a suit may be labeled, once a court is called upon to probe into a religious body’s selection and retention of clergymen, the first amendment [guaranty of religious freedom] is implicated …. The relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern.” Tran v. Fiorenza, 934 S.W.2d 740 (Tex. App. 1996). [ Termination, Defamation, Judicial Resolution of Church Disputes]

© 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: m53 m40 m29 c0497

Legal Developments

Former Candidate for Priesthood Sues for Defamation

Many courts are unwilling to resolve this type of claim.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-05-01

Clergy—Removal

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

• Key point. It is the prevailing view that the civil courts are prohibited by the first amendment guaranty of religious freedom from resolving lawsuits brought by dismissed clergy challenging their dismissals, particularly if the resolution of such a dispute would require consideration of ecclesiastical matters.

A Maryland court ruled that a former candidate for the priesthood could not sue his diocese or church officials for defamation. The candidate entered seminary and pursued training in preparation for ordination as a priest. Less than a year before he was to be ordained, he was informed by a church official that he was being “released” from the diocese and as a result would never be considered for the priesthood. The candidate sued the archbishop on behalf of the diocese and various church officials, claiming that the decision to “release” him was based on defamatory information shared with the diocese. Specifically, the candidate claimed that a priest provided a reference to church officials in which he asserted that the candidate had engaged in “sexually motivated conduct” with certain staff members in a former parish. The candidate claimed that church officials repeated this information with knowledge that it was false and with an intent to harm his chances for ordination to the priesthood. He sought more than $2 million in damages. A trial court dismissed the case and the candidate appealed.

A Maryland appeals court agreed that the case had to be dismissed. It quoted from a landmark United States Supreme Court ruling in 1976:

In short [the Constitution] permits hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them. Serbian Eastern Orthodox Diocese v. Milivojevich, 46 U.S. 696 (1976).

The court acknowledged that the Supreme Court has not addressed a case involving a defamation claim by a minister or former minister. However, it insisted that “the withdrawal of ecclesiastical controversies from civil jurisdiction has been a broad one.” It referred to another Supreme Court decision declaring any dispute concerning “theological controversy, church discipline, ecclesiastical government, or the conformity of members of the church to the standard of morals required of them” to be beyond the authority of the civil courts to resolve. Watson v. Jones, 80 U.S. 679 (1871). The purpose of such a view is “to free civil courts completely from entanglement in questions of religious doctrine, polity, and practice.”

The court was not prepared to say that the civil courts can never resolve disputes between a church and its ministers. However:

When the conduct complained of occurs in the context of, or is germane to, a dispute over the plaintiff’s fitness or suitability to enter into or remain a part of the clergy … it is difficult to see how the forbidden inquiry could be avoided. Questions of truth, falsity, malice, and the various privileges that exist often take on a different hue when examined in the light of religious precepts and procedures that generally permeate controversies over who is fit to represent and speak for the church ….

It is apparent from these allegations … that the very heart of the [lawsuit] is a decision by [the candidate’s] clerical supervisors to prevent him from becoming a priest. The allegedly defamatory statements were made by them with that intent, thereby evidencing a determination on their part-whether valid and fair or invalid and unfair-that [the candidate] was not a suitable candidate for the priesthood. That the offensive conduct was so directed is what brings this case squarely within the protective ambit of the first amendment.

Application. This case illustrates the reluctance so often expressed by the civil courts to intervene in disputes between churches and ministers. While a minority of courts have been willing to become involved in such disputes if they can do so without delving into religious doctrine, most have been unwilling to do so under any circumstances. All courts agree that they cannot intervene in such disputes if doctrinal issues or the fitness of clergy will be involved. Downs v. Roman Catholic Archbishop, 683 A.2d 808 (Md. App. 1996). [Terminat ion, Defamati on, Judicial Resolution of Church Disputes]

© 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: m40 m53 m31 c0397

Legal Developments

Defamation Claims Against Church Members

Court rules that it may resolve lawsuit.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-05-01

Libel and Slander

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

• Key point. Statements made in the course of church disciplinary proceedings may be protected by a “qualified privilege,” meaning that they cannot be defamatory unless made with malice. In this context, malice means either actual knowledge that the statements are false or a reckless disregard as their truth or falsity.

• Key point. Some courts are willing to resolve defamation claims brought by church members against other members, if they can do so without inquiring into religious doctrine or practice.

• A Georgia court ruled that it had the authority to resolve a lawsuit brought by church members claiming that they had been defamed by other church members, since it could do so without inquiring into religious doctrine. A church and several of its members were sued by other members who claimed that they had been defamed by several statements made about them. The lawsuit alleged that in the course of a New Year’s Eve church service, certain members intentionally and maliciously announced to the congregation that each of the plaintiffs “was a witch and had practiced evil deeds upon family and fellow church members,” and that these statements were later repeated to a wider audience at another church service. The “evil deeds” allegedly practiced by the plaintiffs included practicing witchcraft, acts of bodily harm, thievery, causing infertility, stealing United States government files to harm a fellow member, and child abuse. The church and the individual members who were sued failed to respond to the lawsuit, and a default judgment was rendered against them in the amount of $500,000 for each plaintiff. The case was appealed. A state appeals court rejected the church’s argument that the dispute involved an internal church matter that could not be resolved by the civil courts. The court observed:

The civil court did have jurisdiction to entertain the complaint …. It is true that civil courts have no power or authority to interfere in the internal affairs of a religious organization concerning doctrines, faith, or belief. Thus the civil courts will not inquire into or determine the validity of the expulsion of a member from a church having a congregational form of government …. But here the statements about the plaintiffs were not done in the course of an investigation of their church membership, and plaintiffs do not seek civil court relief in the form of return to membership, which would be outside the court’s competence. Instead, they seek civil redress for intentional torts of slander. This does not involve inquiry into and decision concerning questions of doctrine, discipline, ecclesiastical law, rule, custom, church government, faith or practice of the church. Even where a church legitimately undertakes investigation of alleged misconduct on the part of its members and charges are privileged communications, all are not protected from civil suit. There is no privilege for charges which are actually known to be false and are made maliciously and willfully with the purpose of injuring another.

The court referred to an earlier Georgia case in which a court refused to resolve a lawsuit brought by a priest alleging defamation in the course of a disciplinary proceeding before a church tribunal. The court concluded that this earlier decision was not relevant since in the present case the statements were made “to the whole congregation and were not in the context of an ecclesiastical tribunal.” Further, the victims in this case “did not seek civil redress for a decision by the religious organization. Instead, they sought a civil remedy for a civil wrong, the violation of their civil right not to be publicly slandered, and this required no entanglement with the internal affairs of a religious organization.”

The court noted that child abuse, inflicting bodily harm, thievery, and stealing government files constitute crimes under Georgia law, and that “to falsely accuse one of committing a crime constitutes the tort of slander.” Further, “[s]uch conduct is not protected by the doctrine of separation of church and state by utterance as testimony during the course of a church service. An examination into the claims of plaintiffs would not require an impermissible inquiry into church doctrine, faith, discipline, governance, or other ecclesiastical matter.”

However, the court concluded that it could not resolve the plaintiffs’ claims that they had been defamed by the charges of witchcraft, since such an allegation implicates religious faith, belief, and practice. Further, the court concluded that the church could not be liable for defamation:

Although plaintiffs alleged that the church conspired with its members to slander them, the doctrine of respondeat superior [that is, that an organization is responsible for the acts of its agents] does not apply in slander cases. Plaintiffs did not allege or show by any record evidence that the church expressly ordered and directed [its members] to say those very words …. [A] corporation is not liable for the slanderous utterances of an agent acting within the scope of his employment, unless it affirmatively appears that the agent was expressly directed or authorized to slander the plaintiff. The same would apply to utterances of a church member. Moreover, the complaint does not state an actionable claim against the church. Allegations of slander by individuals “and other leaders” of the church do not express a claim against the church itself as a separate entity.

Finally, the court rejected the defendant members’ claim that they were protected by a qualified privilege. Specifically, the members asserted that their remarks concerning the plaintiffs “were made as testimony or confession during a worship service and thus were a church activity.” As a result, the remarks could not be defamatory unless they were made with legal malice, meaning that the members who uttered the remarks either knew that they were false or did so with a reckless disregard as to their truth or falsity. The court disagreed, noting that “[i]n the first place, the statements in the instant case were not made in a church tribunal in the course of an investigation of alleged misconduct of church members.” Further, the individual members who made the remarks forfeited their right to prove good faith by their refusal to respond to the lawsuit. By their default, they in essence admitted the plaintiffs’ allegation of malice.

Application. This case is important for the following reasons: (1) It demonstrates the negative consequences of failing to respond to a lawsuit. In some cases, church leaders are tempted not to respond to a lawsuit on the ground that it is frivolous. However, failing to respond to a lawsuit within the time period specified by law may result in a default judgment. This can prevent the church from later asserting defenses that otherwise would have been available. (2) The case illustrates that some communications by church members regarding other members may be defamatory. However, the court recognized a number of exceptions. For example, the civil courts cannot resolve such disputes if doing so would require an inquiry into religious doctrine (such as the claim that the members had practiced witchcraft). On the other hand, the courts can resolve defamation claims involving statements accusing church members of other wrongs requiring no interpretation of religious doctrine. (3) The court acknowledged that statements made in the course of church disciplinary proceedings are protected by a qualified privilege, meaning that they cannot be defamatory unless made with legal malice. (4) The court noted that churches cannot be liable for defamation on the basis of comments made by individual members-unless the church directed the members to make the statements. Obviously, this will seldom be the case. So, while the individual members who make defamatory statements regarding other members may be personally liable for their statements, the church itself seldom will be liable. First United Church v. Udofia, 479 S.E.2d 146 (Ga. App. 1996). [Federal Income Taxation of Churches, Judicial Resolution of Church Disputes]

© 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: m53 m86 c0397

Legal Developments

Letter Calling for Pastor’s Resignation Not Defamatory, Court Rules

Letter meets with “qualified privilege” requirements.

Richard R. Hammar, Attorney, CPA
Bio

Key point: Statements made to other church members concerning a matter of common interest are protected by a "qualified privilege," meaning that they cannot be defamatory unless made with malice.

An Ohio court ruled that church board members who wrote a letter asking their pastor to resign on account of his failing health were not guilty of defamation.

A pastor sued all 12 members of the board of deacons of his former church as a result of a letter the board had sent to him. The letter was written following a series of meetings and expressed the deacons' belief that the pastor's health problems prevented him from performing his duties effectively. The letter stated, in pertinent part:

[I]t is the opinion of the Deacon Board that [your resignation] is necessary to protect the health and vitality of [the church]. We are thoroughly convinced that your general health and physical condition prohibit you from effectively performing your pastoral responsibilities. Additionally, we are convinced that the spirituality within the church has reached a point that the only logical alternative is to change pastoral leadership. We simply need a pastor that is capable of providing creative leadership, new ideas, and visionary direction. Our church must be restored to its historical and enriched heritage.

The letter requested that the pastor either retire or resign and stated that if he did not elect one of these alternatives, the deacons would recommend to the church congregation that his services as pastor be terminated. The pastor responded to the deacons' request by informing them that he would neither retire nor resign. The deacons then called for a special meeting of the congregation and distributed to those members present copies of the letter they had sent the pastor. At this meeting, the congregation requested that the pastor retire and approved the terms and conditions of his retirement package. The pastor retired at this meeting. He later sued the board of deacons for defamation. The trial court "directed a verdict" in favor of the deacons before it heard all the evidence. This is an extraordinary action indicating that a lawsuit lacks any merit. The pastor appealed.

A state appeals court ruled that even if the letter signed by the deacons was defamatory, it was protected by a "qualified privilege." A qualified privilege protects "communications made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty [if such communication is] made to a person having a corresponding interest or duty …." This privilege typically applies to statements made by church members to other church members regarding matters of common interest. For such statements to be defamatory, they must be made with "legal malice," meaning that the defamatory statements were made "with knowledge that the statements are false [or with a] reckless disregard as to their truth or falsity." The court concluded that the deacons' letter was protected by the qualified privilege. It observed:

Our review of the evidence in this case indicates that the deacons properly raised the defense of qualified privilege … and that the evidence adduced at trial during the presentation of [the pastor's] case clearly established the elements necessary for application of the qualified privilege, as a matter of law. The letter in question concerned various church interests, i.e., [the pastor's] perceived inability to perform his pastoral duties and to inspire the congregation in light of his health problems and the need to restore the spirituality of the church. It was written by members of the congregation of the church, i.e., the deacons, and published exclusively to other members of the church. No evidence was established at trial that any nonmembers were either given or otherwise received a copy of the letter. Furthermore, the letter was sent to [the pastor] prior to any publication and was limited in scope to informing him of the deacons' concern as to his leadership and the future of the church if he did not resign or retire. From this evidence, we conclude that the deacons were entitled to the defense of qualified privilege. Therefore, [the pastor] could only … recover for defamation if he could prove by clear and convincing evidence that the deacons acted with actual malice in publishing the letter ….

The court concluded that the pastor failed to prove that the deacons acted with legal malice, and accordingly the letter was not defamatory. It observed:

[T]he actual malice standard applied in defamation cases is defined as "acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity." At trial, [the pastor] seemed to concede that the deacons did not act with knowledge that the statements were false. Rather, he attempted to prove actual malice by asserting that the deacons' failure to contact [the pastor's] doctors or consult the church records immediately prior to drafting the letter amounted to reckless disregard as to the truth or falsity of the statements contained therein. While it is true that the deacons consulted neither [the pastor's] doctors nor the church records immediately prior to drafting the letter, we see no reason why the deacons would be required to consult these specific sources to establish the truth of their statements. Numerous other sources of information were available to them for this purpose. For instance, several of the deacons testified that they came to the conclusion that [the pastor's] health was affecting the leadership of the church through their conversations with members of the congregation, their independent observations of his performance, and repeated discussions during official meetings regarding the deteriorating financial condition and membership of the church. Thus, the deacons did have a factual foundation for their opinion concerning the effect of [the pastor's] health on his performance as pastor and did not act in reckless disregard as to the truth or falsity of their statements in the letter.

What this means for churches

This case demonstrates the legal protection that is extended to communications made among church members. However, as the court pointed out, the qualified privilege does not apply to communications shared with nonmembers. The court stressed that the deacons' letter "was written by members of the congregation of the church, i.e., the deacons, and published exclusively to other members of the church. No evidence was established at trial that any nonmembers were either given or otherwise received a copy of the letter." This is a very important principle for church leaders to keep in mind when they are considering the dissemination of information. Mosley v. Evans, 630 N.E.2d 75 (Ohio App. 11 Dist. 1993).PCL4B2, PCL4B3e

Legal Developments

Defamation of Ministers by Denominational Officials

Court rules that chancellor’s statements were not defamatory.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1994-09-01 Recent Developments

Libel and Slander

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

• Key point: Critical statements made by a denominational official about a minister’s contentious relationship with the denomination are not defamatory per se.

• An Illinois appeals court ruled that statements made about a priest by the chancellor of a Catholic diocese were not defamatory. A priest was removed from his parish assignment by his bishop because of the “extreme animosity” between him and members of a family within the church over an estate. A deceased family member left 160 acres to his son and daughter “for the perpetual use and benefit” of the church. The priest maintained that neither he nor the church was ever informed by the family about this gift. When the priest learned of the gift, a lawsuit was brought to determine the ownership of the 160 acre tract and the $160,000 in profits derived from the farming of this land. The court found that the land belonged to the church and ordered the property to be sold and the funds distributed as stipulated by the deceased family member. During this litigation the priest learned that a substantial portion of the funds had previously been loaned to a parochial high school foundation that was a subsidiary of the diocese. The priest contacted his bishop and the chancellor of the diocese and advised them that their actions were contrary to canon and civil law because they had been aware of the nature and source of the funds and had approved the diversion of the funds away from the local parish to the school foundation without “due process or authorization.” A short time later, the bishop issued a canonical decree, imposing the censure of suspension on the priest. The decree states, in relevant part:

[The priest] has repeatedly declined to meet with the bishop …. [The priest] in addition to severe exhortations and admonitions, has received warnings that he will be suspended if he refuses to cooperate. [His] wild charges have not been upheld by ecclesiastical courts or higher authorities. [He] threatens to continue his untrue and disruptive public statements.

The canonical decree also contained language that indicated the basis of the priest’s discipline: “Furthermore, since [the priest] is engaged in a secular profession without the permission of the diocesan bishop, he is forbidden to wear clerical garb or to present himself as in any way representing the Catholic Church. Moreover, since he has been absent from priestly assignment for a number of years … he will be considered a departed priest.”

The priest sued the bishop and diocese claiming that the decree amounted to defamation of his character. Specifically, he claimed that the decree’s statements characterizing him as a person who has made “wild charges” and who “threatens to continue his untrue and disruptive public statements” were “libelous per se”. A trial court dismissed the lawsuit and the priest appealed. On appeal, the priest argued that the trial court erred in dismissing his lawsuit because the decree constituted “libel per se”. The appeals court began its opinion by noting:

A statement is considered defamatory if it tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with him. Statements that are considered to be defamatory per se occur when the defamatory character is apparent on its face, and are typically within one of four classifications, two of which are at issue here. They are (1) words that impute an inability to perform or want of integrity in the discharge of duties of office or employment, or (2) words that prejudice a party, or impute lack of ability in his trade, profession or business. Per se statements are so obvious and materially harmful to the plaintiff that injury to his or her reputation may be presumed …. In determining whether a statement is defamatory per se, courts apply the modified innocent construction rule. The modified innocent construction rule is as follows: “[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se. A reviewing court must consider all parts of the publication in order to ascertain the true meaning of the words.”

From a reading of the statement as a whole, it appears that the thrust of the censure is based on [the priest’s] secular employment without the permission of the diocese, his absence from the diocese for a number of years, and his lack of regard for the warnings issued by the diocese. [The priest] does not dispute these charges or even claim that they are defamatory. [The decree’s] statements that [the priest] has made “wild charges” and “threatens to continue his untrue and disruptive public statements” do not on their face indicate that [he] is unable to discharge his duties for lack of integrity or impute a lack of ability to be a priest. Additionally, we find that a reading of these statements as not being actionable per se is reasonable under the modified innocent construction rule because they are directed to [the priest’s] relationship with … the diocese and do not pertain to his knowledge or ability to perform the duties of his profession. May v. Myers, 626 N.E.2d 725 (Ill. App. 3 Dist. 1993).

See Also: Defamation

© 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: m53 m31 c0594

Legal Developments

Former Church Member Challenges Dismissal

Civil courts cannot resolve such cases.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1994-05-01 Recent Developments

Church Membership

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

• Key point: The civil courts will not resolve lawsuits brought by dismissed church members challenging the validity of their dismissal.

• A Minnesota appeals court ruled that a church member could not challenge his dismissal in court. In 1988, the pastor of a local church asked two church members (a husband and wife) to sign a guaranty on behalf of the church, guarantying payment of certain debts. The pastor represented to them that if the church ever defaulted on its debts the church would sell its property and use the proceeds to pay back any funds the couple advanced pursuant to the guaranty. The couple signed a guaranty agreement. A few months later, they were notified that the church had been late in making several payments on its bank loans. The couple retained an attorney and discontinued their contact with the church. They did not notify the church of any intent to terminate their membership. Their attorney did write the pastor and requested that the couple be released from their guaranty commitment. The pastor responded by sending the couple a letter dismissing them from membership in the church. The pastor cited the following reasons for terminating their membership:

1. A lack of financial stewardship with consistency and faithful tithing and offering over a given period of time.

2. A desire on your part to consistently create division, animosity and strife in the fellowship.

3. Direct fabrication of lies with the intent to hurt the reputation and the establishment of [the church] and congregation.

4. Backbiting, railing accusations, division, lying, are some of the most serious sins found in the Bible. Where, by all appearances and related conversations, you have fallen into all of the categories.

The pastor’s letter was read to the entire congregation. Several months later the pastor met with the couple, and admitted that no proceeds from the sale of church property would be shared with them. The couple then filed a lawsuit against the pastor and church, alleging fraud, defamation, and breach of contract. A trial court dismissed the lawsuit, and the couple appealed.

A state appeals court upheld the trial court’s dismissal of the lawsuit. It began its opinion by observing that the first amendment “precludes judicial review of claims involving core questions of church discipline and internal governance.” The court concluded that the couple’s claims all involved core questions of church discipline that it was not able to resolve. With regard to the couple’s defamation claim, the court pointed out that a defamatory statement must be false and that “since an examination of the truth of [the pastor’s] statements would require an impermissible inquiry into church doctrine and discipline, the [trial court] did not err in concluding that the defamation claim is precluded by the first amendment.” The court acknowledged that

while [the pastor’s] statement that [the couple] had engaged in “[d]irect fabrication of lies with the intent to hurt the reputation and the establishment of [the church] and congregation” appears unrelated to church doctrine on its face, the statement nevertheless relates to the church’s reasons and motives for terminating the [couple’s] membership. Examination of those reasons and motives would also require an impermissible inquiry into church disciplinary matters.

The court added that “the fact that the letter was disseminated only to other members of the church strengthens the conclusion that [the pastor’s] statements involved and were limited to church doctrine.” The court also refused to resolve the couple’s contention that the pastor had engaged in fraud: “The fraud claim in this case is based on [the pastor’s] representations that if the [couple] signed a guaranty and the church defaulted, then the amount of the proceeds from the sale of the church would be [given to them]. Since [the pastor’s] representations are based upon the occurrence of several future events, we agree with the [trial court] that the fraud claim is insufficient as a matter of law.” Finally, the court pointed out that the couple could not recover for fraud since they had not been damaged by the pastor’s allegedly fraudulent representations. It noted that “there is no evidence that the church has defaulted on its debt or that there has been any legal action taken against the [couple] on the guaranty.” Schoenhalls v. Main, 504 N.W.2d 233 (Minn. App. 1993).

See Also: Discipline and Dismissal | Judicial Resolution of Church Disputes

© 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: m19 m86 m29 m53 c0394

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