Alabama

Legal Developments

State Supreme Court Addresses Pastor’s Rescinded Resignation

The central issue was the pastor’s status, a question the court was barred from resolving by the constitutional protection of religious liberty.

Richard R. Hammar, Attorney, CPA
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Key point 2-04.1. Most courts have concluded that they are barred by the First Amendment guarantees of religious freedom and nonestablishment of religion from resolving challenges by dismissed clergy to the legal validity of their dismissals.

The Alabama Supreme Court addressed the question of whether a pastor who had resigned his position could later retract his resignation.

At a church business meeting in 1995, a church appointed a new pastor. The church operated with its new pastor for a number of years without conflict. By 2012, however, a rift had formed between the pastor and board of deacons which led to the pastor’s termination, as described in a letter to him from the board:

The listed deacons called the meeting for the purpose of informing the body of some of their concerns regarding the welfare of the church that need immediate attention. A few of the things that were discussed were the falling off of member attendance, the falling off of tithes and offerings, the incorporation of the church being ignored, your lack of spiritual and financial leadership, the $187,000 [of] steel that is lying in the parking lot, and your holding a grudge against us that has not been revealed to us. Your consistently refusing to meet with the board of deacons has brought us to where we are today.

After discussing these topics and a few others, there was a motion from the floor for your termination, which was seconded. After putting this to a vote, the majority present voted for your termination. Regretfully, this is to inform you that your services to St. Union as pastor are no longer needed as of Monday, August 13, 2012. We hope you will accept the majority vote and move on pleasantly.”

The pastor declined to leave his position, however, and, on October 13, 2012, held another church meeting at which he asked those present to vote whether they wanted “the pastor to stay” or “for the deacons to remain.” The minutes of that meeting indicate that 37 members voted for the pastor and 10 members voted for the deacons.

For two years this situation remained at a stalemate, with the pastor continuing to serve as pastor and the deacons continuing to perform at least some of their traditional duties. The conflict between them continued, however, and eventually the deacons, who continued to administer the church’s finances, at some point stopped paying the pastor’s salary. Thereafter, the pastor told the congregation that he would resign if he was paid the money he was owed consisting of the salary that had been withheld by the deacons. The pastor and board began negotiations, and, on November 30, 2014, the pastor submitted his resignation. The pastor signed an “agreement” with the church in which he agreed to resign as pastor of the church in exchange for $16,600. He thereafter negotiated a check in that amount issued to him by the church.

A few weeks later, the pastor rescinded his resignation, stating that he was doing so at the request of the members of the church who had, he stated, told him that they would not accept his resignation. However, the pastor did not repay the $16,600 the church had paid him to resign. The next day, the church sent the pastor a letter reminding him of their agreement and advising him that legal action would be taken if he did not honor the agreement. On December 23, 2014, the threatened legal action was commenced when the church, acting through the five deacons who were now serving as its officers and directors, sued the pastor, alleging breach of contract and trespass and asking the trial court to issue a restraining order banning him from the church premises. On December 24, 2014, the trial court entered the requested restraining order. The court explained its judgment as follows:

The heart of the dispute and litigation in the present case is whether the pastor is or is not the pastor of the church. The choice of a pastor for a church is based wholly on Biblical principles for which a court cannot interfere without violating the United States Constitution and the Constitution of the State of Alabama. All cases adjudicated by the Alabama Supreme Court throughout its history have respected this principle. The congregation … by majority vote must choose or terminate its pastor. This court nor the legislature through its business organization statutes nor any church member or minority group of members can alter this principle.

The dispute over whether the pastor resigned or not and if he did whether he may be rehired as pastor is for the majority of the congregation to decide …. The central, substantive dispute is whether the pastor is or is not the pastor and such is wholly spiritual and ecclesiastical in nature and the court cannot interfere (emphasis added).

The state supreme court agreed with the trial court that the central issue was the pastor’s status, a question it was barred from resolving by the constitutional protection of religious liberty. It concluded: “As the trial court implicitly recognized … even if the pastor had resigned, there is still the question whether he could rescind his resignation or be rehired as pastor if that was the desire of the majority of the church’s members. Ultimately, only the congregation, not this court, can answer that question.”

The supreme court noted that the pastor had countersued the church for conversion, breach of fiduciary duty, unjust enrichment, breach of contract, and conspiracy, and sought an accounting of church funds from 2005 to the present, a temporary restraining order enjoining the church and its directors from expending any church funds, and an order requiring the church to turn over to the pastor all funds held on behalf of the church. The supreme court concluded that the gist of the pastor’s claims “is that the corporation and its directors have wrongfully refused him access to financial records of the church and to church funds, and he also makes vague allegations that the church and its directors have misused church funds. The church denies that the pastor has been refused access to any records, denies any misuse of church funds, and maintains that it is the proper party to control the church’s finances. Unlike the selection of a pastor, these are not ecclesiastical issues that a court lacks jurisdiction to consider.”

What this means for churches

Many courts have concluded that for-profit employers are under no legal obligation to rehire an employee who previously resigned his or her employment. Few courts have addressed this question in the context of church employment. This is one of the few courts to do so. The court’s conclusion was that the status of ministers, unlike most lay employees, implicates constitutional considerations, and that when a pastor resigns “there is still the question whether he could rescind his resignation or be rehired as pastor if that was the desire of the majority of the church’s members. Ultimately, only the congregation, not this court, can answer that question.”

It is possible, though unlikely, that one or more of the following resources may address an employee’s right to revoke a resignation, and so they should be consulted whenever a former employee seeks to revoke a prior resignation:

  • A church’s constitution, bylaws, or other governing document
  • The state nonprofit corporation law under which a church is incorporated
  • Robert’s Rules of Order Newly Revised
  • A policy manual
  • An employee handbook

One additional point: in order to avoid a discrimination claim under state or federal law, it is important for churches, like any employer, to treat members of a protected class under state or federal civil rights laws the same as other employees. So, for example, if a church has allowed some employees to revoke a resignation from employment, but has not offered this same accommodation to a member of a protected class, this could be the basis for an unlawful discrimination claim. St. Union Church v. Howard, 2016 WL 2848391 (Ala. 2016).

Legal Developments

Enforcement of Charitable Trusts

Not all beneficiaries have the right to enforce the terms of a charitable trust.

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

Enforcement of Charitable Trusts

Not all beneficiaries have the right to enforce the terms of a charitable trust.

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

Key point Church board members may be personally liable for diverting designated funds or trust funds to some other purpose.

The Alabama Supreme Court ruled that a church lacked standing to enforce a charitable trust that was created to distribute income to religious and charitable institutions. An elderly man died in 1950 leaving a will that created a charitable trust. The trust provided that, after the payment of nominal sums to family members, the bulk of the trust’s income was to be distributed to local religious and charitable institutions. Fifty years later, a church and school filed a lawsuit seeking to have a court compel the enforcement of the trust. A trial court dismissed the lawsuit on the ground that the church and school lacked “standing” to enforce the trust. On appeal, the state supreme court affirmed the trial court’s decision. It began its opinion by observing that historically only state attorneys general were empowered to enforce charitable trusts. But, this rule resulted in sporadic enforcement due to the other pressing responsibilities of the office. As a result, states began to allow others to enforce charitable trusts:

It must be conceded that throughout the country supervision of the administration of charities has been neglected. The manifold duties of [the attorney general] make readily understandable the fact that such supervision is necessarily sporadic. While public supervision of the administration of charities remains inadequate, a liberal rule as to the standing of a plaintiff to complain about the administration of a charitable trust seems decidedly in the public interest.

The prevailing view of other jurisdictions is that the attorney general does not have exclusive power to enforce a charitable trust and that a … person having a sufficient special interest may also bring an action for this purpose. Beneficiaries of a charitable trust have a right to maintain a suit to enforce the trust or prevent diversion of the funds.

The court ruled, however, that not all beneficiaries have a legal right to enforce the terms of a charitable trust. It drew a distinction between “a person or entity that has a vested or fixed right to receive a benefit from a charitable trust and a person or entity that might merely potentially receive a benefit in the discretion of the trustees,” and concluded that only beneficiaries with a vested or fixed right to receive distributions from a charitable trust have standing to enforce it.

The church and school in this case were mere “potential beneficiaries” who would benefit from the trust only if the trustee selected them out of the large class of religious and charitable institutions, and such an interest was not sufficient to confer standing. Rhone v. Adams, 2007 WL 2966822 (Ala. 2007).

This Recent Development first appeared in Church Law & Tax Report, January/February 2009.

Legal Developments

Enforcing a Charitable Trust

Court rules that a potential beneficiary to a charitable trust lack the legal authority to enforce the trust.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Enforcing a Charitable Trust

Court rules that a potential beneficiary to a charitable trust lack the legal authority to enforce the trust.

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

Key Point 6-07.05. Church board members may be personally liable for diverting designated funds or trust funds to some other purpose.

The Alabama Supreme Court ruled that a church lacked the legal authority to enforce a charitable trust in which it was named as a potential beneficiary. A decedent died in 1950, leaving a will which created a trust providing for the distribution of income to unnamed charitable, educational, and religious entities, in the trustee’s discretion. A church and school sued the trustees on behalf of the class of all potential trust beneficiaries in an attempt to compel them to make distributions.

The court concluded that “identifiable and actual beneficiaries” of charitable trusts have a sufficient special interest in the enforcement of the trust that they can sue to enforce the trust terms. But in this case, the beneficiaries were merely potential beneficiaries and, as such, “did not have the sufficient special interest in the enforcement of the trust to entitle them to bring suit. Indeed, as the trustees argue, “the difference in status between a person or entity that has a vested or fixed right to receive a benefit from a charitable trust and a person or entity that might merely potentially receive a benefit in the discretion of the trustees, is at the very heart of the distinction between one who has a ‘special interest’ and, thus, standing to sue, and one who does not.” The court noted that “other courts, also applying the special-interest rule, have held that mere potential beneficiaries, whose interest is no greater than the interest of all the other members of a large class of potential beneficiaries of a charitable trust, have no standing to maintain an action for the enforcement of the trust.”

The court concluded that “we do not mean to imply that a potential beneficiary of a charitable trust can never avail himself of legal process to enforce the provisions of such a trust. In the absence of a showing of special interest, however, a party seeking enforcement of a charitable trust should have the Attorney General commence an action when it appears that the trust is being mismanaged through negligence or fraud.” Rhone v. Adams, 2007 WL 2966822 (Ala. 2007).

Resource. The related issue of the enforceability of designated gifts to churches and other charities is addressed in chapter 8 of Richard Hammar’s annual Church & Clergy Tax Guide, available from publisher of this newsletter by calling 1-800-222-1840.

This Recent Development first appeared in Church Law & Tax Report, November/December 2008.

Legal Developments

Membership and Reviewing Church Records

The Alabama Supreme Court ruled that church members who lost their membership lost their right as members to inspect church records.

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

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

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

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

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

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

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

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

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

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

What this means for churches

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

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

Legal Developments

Communication Between Pastors and Denominational Officers

Not every conversation between clergy and denominational officials is protected by the clergy-penitent privilege.

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

Communication Between Pastors and Denominational Officers

Not every conversation between clergy and denominational officials is protected by the clergy-penitent privilege.

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

Key point 3-07.4. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister acting in a professional capacity as a spiritual adviser.

* The Alabama Supreme Court ruled that communications between a pastor and a denominational officer are not protected by the clergy-penitent privilege from compelled disclosure in court unless there is evidence that the pastor was speaking to the officer in his or her professional capacity as a spiritual advisor. A priest confessed to an inappropriate sexual relationship with a female member of his church (the “plaintiff”). The archbishop of the diocese achieved a confidential settlement of the plaintiff’s grievances which included payment of her counseling fees, and an assurance that the priest would be removed from the ministry “for a good long period” and would receive counseling. For her part, the plaintiff agreed to keep the affair confidential, and not to pursue litigation. A year later, the plaintiff learned that the priest had returned to active ministry and had not received therapy. This caused her to suffer emotional trauma requiring additional counseling. She presented her counseling bills to the archdiocese, but it refused to pay them. Believing that the archdiocese had breached their agreement, she pursued litigation.

As the litigation progressed, the woman learned that the priest had received some counseling at a psychiatric hospital, and that he had authorized the release of the counseling records to his archbishop. As a result, the plaintiff asked the archdiocese to turn over all of these counseling records, including “complete and correct” copies of all psychological testing. The archdiocese objected on the ground that the counseling records were privileged under the clergy-penitent privilege.

The priest asserted that he had known the archbishop for many years, and that

He is both my bishop and a spiritual advisor. I have entrusted to him many confidential matters over the years concerning my vocation and calling into the priesthood, and I have had many private discussions with him concerning my spiritual growth and discernment and I have always expected these matters of utmost trust would remain confidential. I am certain he feels the same way. I signed a release authorizing my counselor to give the archbishop access to my counseling records in order to assist him in giving me personal and spiritual guidance. I do not have these records in my personal possession. I simply released them to the archbishop as a substitute for me getting the records and then forwarding them to him. I am generally familiar with the clergyman’s privilege since I am a priest myself. My communications with the archbishop and my authorization for records to be released directly to him constitute communications to the archbishop in his professional capacity, as my bishop and a spiritual advisor. In my opinion, the communications are covered by the clergyman’s privilege. They were made privately and it was not intended that the communications and the records related thereto be further discussed or given to any other person. The sole purpose of the communications with the archbishop [was] to advise me as my bishop and a spiritual advisor.

The plaintiff argued that the counseling records were not protected by the clergyman privilege because they were not released to the archbishop in his professional capacity as the priest’s spiritual advisor but rather in his capacity as an officer of the archdiocese investigating her complaint and enforcing the agreement she had entered into with the archdiocese. The trial court ruled that the counseling records were not protected by the clergy-penitent privilege, and it ordered the archbishop to release them subject to a “protective order” prohibiting their disclosure outside of the context of the litigation. The priest appealed.

The Alabama Supreme Court began its opinion by quoting the clergy-penitent privilege under Alabama law: “If any person shall communicate with a clergyman in the clergyman’s professional capacity and in a confidential manner, then that person or the clergyman shall have a privilege to refuse to disclose, and to prevent another from disclosing, that confidential communication.” The court interpreted this language as imposing three requirements for the privilege to arise: “The communication must be made (1) to a clergyman, (2) in the clergyman’s professional capacity, and (3) in a confidential manner.” The court concluded that the first and third requirements were satisfied since the archbishop was a clergyman, and the communications between him and the priest were confidential. The remaining question, then, was whether the second requirement was met. Was the archbishop acting in his “professional capacity” as a spiritual advisor during his conversations with the priest? This requirement, the court noted, is not further defined by state law. The court construed it to mean that “the communication must be made to the clergyman in his role as a provider of spiritual care, guidance, or consolation to the individual making the communication.” The court referred to the following cases which also addressed the application of the clergy-penitent privilege to communications made to a clergyman serving as both a spiritual advisor and as an administrator:

(1) Magar v. State, 826 S.W.2d 221 (Ark. 1992). The parents of two boys told their pastor that the church’s music director had sexually abused their sons. The pastor confronted the music director about the allegations, and the director admitted that they were true. The Arkansas Supreme Court ruled that the conversation was “disciplinary in nature” and, therefore, was not protected by the privilege.

(2) State v. Guthrie, 627 N.W.2d 401 (S.D. 2000). A denominational officer confronted a pastor concerning allegations that the pastor was having an extramarital affair. The South Dakota Supreme Court ruled that while the pastor intended his conversation with the officer to remain confidential, the communication was not privileged because the communication was not made by the pastor when he was seeking spiritual advice or counseling. Rather, the communication was made to assist the officer in determining whether he should allow the pastor to continue in his position at the church. The court focused on the fact that the officer initiated the communication about the pastor’s affair and that after the communication the officer permitted the pastor to remain in his position at the church. As a result, the court concluded that when the communication was made the pastor was not seeking spiritual advice and the officer was acting in his supervisory capacity, and therefore the communication was not privileged.

(3) Kos v. Texas, 15 S.W.3d 633 (Tex.App.2000). A Catholic priest had a conversation with another priest who had been accused of sexual misconduct. The accused priest claimed that the communication was privileged under the Texas clergy-penitent privilege which provides that confidential communications made by an individual to a clergy member acting in a professional capacity as a spiritual advisor are privileged. The communication occurred when the priest in his role as “intervenor” in cases where child abuse had been alleged confronted the accused priest about the abuse allegations. The priest testified that the communications with the accused priest were not part of a “Catholic confession” by the accused priest and that the accused priest was not seeking spiritual advice. The priest further stated that at the time of the meeting he was not concerned about the state of the accused priest’s soul but was focusing on conducting a “disciplinary intervention.” A Texas Court of Appeals ruled that the communications were not privileged. It concluded: “The statements [the accused priest] made were not made in an effort to obtain some sort of spiritual advice or guidance; to the contrary, the meeting was more in the nature of a disciplinary/administrative meeting, with [the intervening priest] attempting to determine what to do in the face of the abuse allegations. We note that the communications were not initiated by [the accused priest]; rather, they were initiated by [the intervening priest] for the specific purpose of obtaining information about the abuse allegations. Although it is true that [the clergyman-privilege rule] does not require for its application that the communicant be the one seeking, summoning, or soliciting the presence of the clergy, it nevertheless does require that the communications be made for the purpose of obtaining spiritual guidance or consolation. Because the communications at issue were not motivated by any religious or spiritual considerations, we conclude that [the accused priest’s] statements were not addressed to [the intervening priest] in his ‘professional character as a spiritual advisor.'”

The Alabama Supreme Court concluded that the counseling records in this case were not protected by the clergy-penitent privilege because the archbishop was not communicating in his professional capacity as a spiritual advisor when speaking with the priest. It observed: “The archbishop’s testimony established that before, during, and after the investigation into the plaintiff’s complaint against the priest, he was not acting as the priest’s spiritual advisor but as an investigator looking into the plaintiff’s allegations and a resolver of her complaint.”

Application. This case is important for two reasons. First, it demonstrates that not every conversation between clergy and denominational officials is protected by the clergy-penitent privilege. When denominational officials speak with clergy in the course of performing investigatory or some other administrative responsibility, and not primarily as providers of spiritual counsel, the conversation may not be privileged. This means that the denominational official may be compelled to testify about the contents of that conversation in a deposition or trial. Both pastors and denominational officers often assume that their conversations are privileged, since both are members of the clergy. This case demonstrates that this is a questionable assumption in some cases.

Second, this case is important because it illustrates the importance of “protective orders.” While the court ordered the archbishop to turn over his counseling notes to the plaintiff’s attorney, the court granted the priest’s request to issue a protective order prohibiting any dissemination of the documents outside the context of the litigation. Courts often issue such orders to protect the confidentiality of sensitive information. Before turning over any document containing sensitive information in response to a subpoena, church officials should always ask their attorneys to seek an appropriate protective order from the court. Ex parte Zoghby, 2006 WL 3239971 (Ala. 2006).

Legal Developments

Music Copyright Infringement

The Copyright Act’s religious services exemption does not apply to radio broadcasts of worship services.

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

Music Copyright Infringement

The Copyright Act’s religious services exemption does not apply to radio broadcasts of worship services.

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

Key point 9-05.09. A copyrighted musical or dramatico-musical work of a religious nature may be performed or displayed in the course of services at a place of religious worship or other religious assembly. This is an exception to the copyright owner’s exclusive right to publicly perform the work.

* A federal district court in Alabama ruled that the “religious services” exemption to copyright infringement, which permits the performance of copyrighted religious music in the course of religious services, did not apply to broadcasts of those services. A number of music publishers, including some that publish religious music, granted a non-exclusive right to license public performances of their copyrighted works to the American Society of Composers, Authors and Publishers (“ASCAP”). Several of these publishers sued a radio station owner claiming that he violated the copyright law by playing their copyrighted musical compositions on the radio without permission. The songs that were played without permission included “His Hand In Mine,” “More Than Wonderful,” and “Above All.”

The station owner claimed that the “religious services exemption” allowed him to broadcast some of the copyrighted compositions because they were performed during church services. Section 110 of the Copyright Act creates an exemption to copyright infringement for the “performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly.“

The court observed:

The critical language here is “at a place of worship or other religious assembly”; the exception says nothing about broadcasts in general and, more specifically, broadcasts from a place of worship. True, it could be argued the exemption should apply where, although the songs are being broadcast, there is an audience at the place of worship; in short, the exemption, it could be argued, should apply because the conditions to the exemption have been satisfied. Thus, it could be argued, the exemption should apply to all simultaneous performances as long as one of the performances falls within the exemption.

However, the law is clear that radio broadcasting is itself a separate public performance which can constitute an infringement. Thus, the mere fact that a radio broadcast of a song is simultaneous with the playing of the song at a place of worship does not mean that broadcast falls within the religious exemption; playing to the audience at the place of worship and playing to a broadcast audience are separate public performances …. A singer is performing when he or she sings a song; a broadcasting network is performing when it transmits his or her performance; … a local broadcaster is performing when it transmits the network broadcast; a cable television system is performing when it retransmits the broadcast to its subscribers.

This understanding of the religious exemption is supported by its legislative history, which provides that the exemption does “not extend to religious broadcasts or other transmissions to the public at large, even where the transmissions were sent from the place of worship.” H. Rep. No. 94-1476.

As a result, the court concluded that the religious exemption did not allow the radio station owner “to broadcast copyrighted songs, performed during church services, without authorization, since such broadcasts are not ‘at a place of worship.’

Application. Several churches have their worship services broadcast either on the radio or television. This case clarifies that the Copyright Act’s religious services exemption, which permits the performance of religious music “in the course of services at a place of worship or other religious assembly,” does not apply to radio broadcasts of worship services. While the performance of copyrighted religious music at the place of religious assembly would be protected by the religious services exemption, this is not true for broadcasts of religious services in which copyrighted music is performed since “the law is clear that radio broadcasting is itself a separate public performance which can constitute an infringement.”

What about recordings of worship services in which copyrighted music is performed? Many churches make audio or video recordings of their services available for a nominal charge. Do these recordings constitute copyright infringement? Must churches obtain permission to record services in which copyrighted music is performed? The court did not address this question, but the answer is yes. The key point is that the religious services exemption is limited to the performance of religious music in the course of services at a place of worship or other religious assembly. Audio and video recordings do not constitute performances, and so the religious services exemption does not apply. Churches that record worship services in which copyrighted music is performed should obtain authorization to do so. One option is to purchase an annual license from Christian Copyright Licensing, Inc., of Portland, Oregon. A CCLI license will enable your church to legally make audio and video recordings of your services. Some conditions apply, which are described in the CCLI contract. Other licensing options are also available. Simpleville Music v. Mizell, 451 F.Supp.2d 1293 (M.D. Ala. 2006).

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Legal Developments

Internal Church Disputes

The courts will not resolve disputes regarding a church’s spiritual or ecclesiastical affairs.

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

Internal Church Disputes

The courts will not resolve disputes regarding a church’s spiritual or ecclesiastical affairs.

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

Key point 9-07. The First Amendment allows civil courts to resolve internal church disputes so long as they can do so without interpreting doctrine or polity.

* An Alabama court rejected a request by church members to compel a church board to call a general membership meeting for the purpose of taking a vote of confidence on the pastor. Several church members began expressing dissatisfaction with their senior pastor’s effectiveness. Many concerns were shared with members of the church board. The board investigated the complaints, counseled with the pastor about the concerns, and formulated plans to resolve the matter. The board then held a meeting at which it passed a vote of confidence in the pastor. Some of the members of the church were unhappy with the board’s decision and filed a lawsuit seeking a court order compelling the board to call a meeting of the members to allow the church to consider the retention of the pastor. A trial court granted the requested relief, and ordered a membership meeting on a specified date. The pastor and board appealed, arguing that the dispute was ecclesiastical in nature and not within the jurisdiction of a civil court. The dissenting members insisted that the dispute arose from differing constructions of the church’s articles of incorporation and bylaws and not from an ecclesiastical dispute.

A state appeals court began its opinion by observing that “the courts will not assume jurisdiction, in fact has none, to resolve disputes regarding [a church’s] spiritual or ecclesiastical affairs. However, there is jurisdiction to resolve questions of civil or property rights.” The court concluded: “The board’s decision not to call a meeting to discuss the issues [the dissenting members] seek to raise because the board did not think that the spiritual health of the church would be advanced by such a meeting is an ecclesiastical decision of the church government and cannot be overridden by a civil court. In other words, the trial court did not have jurisdiction to entertain this lawsuit insofar as it requested that the board be compelled to call a general membership meeting. Accordingly, this appeal from the trial court’s order requiring that a general meeting be called to deal with the dissident members’ grievance is dismissed.” McGlathery v. Richardson, 2006 WL 1529701 (Ala. App. 2006).

Legal Developments

Church Membership

The Alabama Supreme Court ruled that a dismissed church member no longer had a legal right to inspect church records.

Richard R. Hammar, Attorney, CPA
Bio


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

Key point 6-10.1. 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.

Key point 6-10.3. The civil courts will not resolve a dispute contesting the discipline of a church member if the member failed to "exhaust" remedies available under the church's own governing documents.

The Alabama Supreme Court ruled that a dismissed church member no longer had a legal right to inspect church records.

A church member (Ken) demanded to inspect certain financial records of his church pursuant to the following provision in the state nonprofit corporation law:

Each corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its members, board of directors and committees having any of the authority of the board of directors; and shall keep at its registered office or principal office in Alabama a record of the names and addresses of its members entitled to vote, directors and officers. All books and records of a corporation may be inspected by any member, director or officer, or his agent or attorney, for any proper purpose at any reasonable time.

When his request to inspect church records was ignored, Ken sued the church. He asked the court to compel the church to honor his request for inspection, and to forbid the church from dismissing him as a member. While this case was pending, the church board unanimously voted to dismiss Ken as a member on the basis of "aggressively contributing to the division within the church and exhibiting a disruptive and divisive spirit contrary to the spirit of Christ and the character of goodness prescribed in the scriptures." The church asked the court to dismiss Ken's lawsuit on the ground that he had lost any legal right to inspect church records following his dismissal as a member of the church. Ken insisted that the church board's decision to dismiss him was invalid since the board had failed to comply with the church bylaws.

The state supreme court concluded that Ken's lawsuit "essentially invited the court to become embroiled in the merits of a fundamental ecclesiastical concern with which the courts must have nothing to do, namely, determining who is and who is not a church member." Since the civil courts could not interfere with the church's decision to dismiss Ken as a member, his dismissal had to be honored, and this meant that he no longer had a legal right to inspect records under the state nonprofit corporation law.

The court rejected Ken's argument that the church board's decision to dismiss him was invalid because the decision was not in compliance with the church bylaws or nonprofit corporation law. It noted that "a church member attacking a church decision may not obtain civil court review of that decision without first exhausting the church's internal appeal procedures. It is undisputed that the church bylaws provide an internal review procedure, which Ken has not yet exhausted. Thus, he could have no right to an order reinstating his membership pending the church's review of his expulsion."

What this means for Churches

This case illustrates three important points. First, most state nonprofit corporation laws give members a legal right to inspect corporate records for a "proper purpose." As a result, members of churches that are incorporated under such a law have a legal right to inspect records. Second, a right of inspection only applies to members, and so a member loses the right to inspect upon being dismissed as a member. Third, the civil courts will not resolve a lawsuit challenging a church's decision to dismiss a member if the dismissed member has failed to exhaust all appeal remedies under the church's bylaws or other governing document.

Lott v. Eastern Shore Christian Center, 908 So.2d 922 (Ala. 2005).

Legal Developments

Insuring Against Embezzlement

Court rules that insurance policy covered employees’ embezzlement.

Richard R. Hammar, Attorney, CPA
Bio


Cincinnati Insurance Company v. Tuscaloosa County Parking and Transit Authority, 2002 WL 254108 (Ala. 2002).

A public charity purchased a "fidelity" insurance policy that provided coverage in the event of various kinds of employee theft or dishonesty. Over the course of a few years, two employees embezzled over $300,000 by issuing payroll checks to themselves in excess of their salaries. When the scam was detected, the charity sought to recover its losses from its fidelity insurer. The insurer denied coverage on the basis of a provision in the policy that excluded coverage for any "salaries." The Alabama Supreme Court ruled that the exclusion did not apply, since the employees' payment of amounts to themselves in excess of their stated salaries could not reasonably be construed as "salaries" and so the policy exclusion did not apply. It concluded, "Embezzled funds received in the form of payroll checks were not part of the employees' salary because those funds exceeded the fixed compensation that was to be paid for the services provided."

Legal Developments

Recent Developments in Alabama Regarding Confidential and Privileged Information

In an important decision, an Alabama court ruled that the clergy-penitent privilege does not apply to conversations with a minister in which the counselee communicates a threat to kill or seriously harm another person.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1999-11-01

Confidential and Privileged Communications

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

• Key point. The clergy-penitent privilege may not extend to conversations in which a counselee threatens to kill or seriously harm another person, since the counselee has no reasonable expectation that the minister will maintain the confidentiality of such information. The counselee should assume that the minister will feel morally obligated to warn the intended victim.

In an important decision, an Alabama court ruled that the clergy-penitent privilege does not apply to conversations with a minister in which the counselee communicates a threat to kill or seriously harm another person. An adult male (the “defendant”) was convicted of murdering his girlfriend. The defendant appealed his conviction on several grounds, including the fact that the trial court improperly allowed into evidence communications that he insisted were protected by the clergy-penitent privilege. During the trial, the prosecutor asked a pastor to testify regarding certain conversations she had had with the defendant. The pastor testified that the defendant occasionally attended her church, and that he called her on three consecutive nights before the murder. On the first night, the defendant informed the pastor that he was upset because the woman he had been seeing had broken off their relationship. According to the pastor, the defendant was “more agitated” and “very upset” the second night, saying that he knew where his former girlfriend lived and that he would watch her. He also informed the pastor that if his girlfriend did not come back to him, he would kill her. The pastor testified that she tried to dissuade the defendant from carrying out such a plan by telling him that if he killed her he would “bust hell wide open.” Although the pastor tried to get the defendant to tell her his former girlfriend’s name so that she could warn her, he refused. On the third night, the night before the murder, the defendant again told the pastor that he was watching his girlfriend. The pastor again tried to discourage him from committing any violence, telling him that just talking to his former girlfriend would be more productive.

As the pastor began testifying about the defendant’s telephone conversations with her, his defense attorney insisted that she needed to be examined to determine whether her testimony should be excluded on the basis of the clergy-penitent privilege. The trial judge allowed the pastor to testify, but when she began testifying about the second telephone call, the judge allowed the defendant’s attorney to ask her a few questions. The pastor stated that she believed that the defendant did not call her before the murder because she was a pastor, but rather because he was upset and he “just knew that I loved him as a person.” Earlier in the year he had telephoned her because he “got upset over social security things.” She asserted that there was a difference between “talking” and “confidence.” She later testified that “not one time did he say, ‘I am talking to you as a pastor or this is a confidential conversation.'” At the end of these questions, the defendant’s attorney again asked the court to exclude the pastor’s testimony on the basis of the clergy-penitent privilege. The court again refused to do so.

A state appeals court ruled that the defendant’s conversations with the pastor were not protected by the clergy-penitent privilege. It conceded that the defendant had sought out the pastor in her role as a spiritual adviser, and that his statements would appear to be protected by the privilege. However, it carved out an exception in cases like this where a counselee discloses an intent to commit a serious crime. Such conversations are not privileged, the court concluded, because a counselee has no expectation that a minister will maintain the confidentiality of this information:

The confidentiality of the conversations is suspect, not because of the nature of the pastor’s role, but rather because of the nature of the defendant’s disclosure that he intended to kill his former girlfriend if she did not return to him. The pastor, believing that the defendant might carry out his threats, understandably tried to get the defendant to give her his former girlfriend’s name in order to warn her. Although she failed to learn the former girlfriend’s name, she obviously valued protecting the woman’s life over and above keeping the threats confidential.

Unfortunately for clergy placed in such difficult situations, there are no explicit guidelines on how to balance the values of confidentiality and safety to third parties. [The clergy-penitent privilege in Alabama] does not contain any specific provision addressing the confidentiality of threats of violence. However, in defining which communications are confidential, the Advisory Committee’s Notes compare the clergyman privilege and the attorney-client privilege: “The definition of the term [confidential] is consistent with its use in the attorney-client privilege.” Under [Alabama law] communications in which a client seeks the advice of an attorney for aid in the commission or furtherance of a crime are not privileged. Although [the clergy-penitent privilege] does not contain a similar provision covering communications with clergy that indicate an intention to commit a crime, the Advisory Committee’s Notes again draw a parallel with the attorney-client privilege: “Communications to the clergyman in furtherance of a crime or fraud would not qualify as seeking spiritual advice and therefore would not fall within the protection of the privilege.” Therefore, even though the clergyman privilege … does not specifically list exceptions to the general rule, the Advisory Committee clearly intended that the scope of that privilege would be comparable to the scope of the attorney-client privilege.

Because we agree that a privilege should not be used where to do so would allow the commission of future violent crimes, we hold that threats of violence toward third parties that are revealed to clergy are not covered by the “communications to clergyman” privilege and that clergy may testify to those threats in subsequent proceedings. In the present case, the defendant’s statement to the pastor that if his former girlfriend would not come back to him, he would kill her presented the pastor with concern over the safety of another. Although the defendant would not disclose to the pastor his former girlfriend’s name, the defendant had no reasonable expectation that the pastor would keep such a revelation confidential. The policy of preventing violence from occurring strongly outweighs the value of confidentiality. Therefore, the trial court’s admission of the pastor’s testimony regarding the defendant’s threats to kill his former girlfriend was not error.

Application. A number of ministers have had the unpleasant task of being sought out by an individual for counseling who threatens to murder or seriously harm another person. Such cases present ministers with a very difficult choice-honor the confidentiality of the conversation, or disclose the information in order to prevent harm to the other person. This case provides some relief to ministers, in Alabama or in any other state that follows this decision. The court concluded that such conversations are not privileged since they are not confidential. They are not confidential since no rational person would assume that a minister under these circumstances would not disclose the threat to the intended victim. This is an interesting resolution of a serious ethical dilemma that has confronted a number of ministers. Tankersley v. State, 724 So.2d 557 (Ala. App. 1998). [The Clergy-Penitent Privilege ]

© Copyright 1999 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: m33 c0699

Legal Developments

Recent Developments in Alabama Regarding Church Property

The Alabama Supreme Court ruled that a local church, rather than a parent denomination, owned title to church property following a vote by the church to withdraw from the denomination.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1999-05-01

Church Property

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

• Key point. The civil courts may resolve church property disputes on the basis of neutral principles of law, including nondoctrinal language in any one or more of the following documents: (1) deeds to church property, (2) a church’s corporate charter, (3) a state law addressing the resolution of church property disputes, (4) a local church’s bylaws, or (5) a parent denomination’s bylaws.

The Alabama Supreme Court ruled that a local church, rather than a parent denomination, owned title to church property following a vote by the church to withdraw from the denomination. The United Methodist Church (“UMC”) asked a court to determine the ownership of property belonging to a local congregation that passed a resolution to withdraw from the UMC. The UMC claimed title to the property, based on the local church’s hierarchical relationship with the national church and based on several sections of The Book of Discipline of the United Methodist Church. The Book of Discipline contains the governing rules of the UMC, and it requires that all property held by an unincorporated local church be held in trust for the use of both the local church and the UMC. At trial, the dissident members of the local church argued that the property rules set out in the Book of Discipline did not apply to the local church property for two reasons: (1) the local church had not been in an hierarchical relationship with the UMC, and (2) the property on which the local church is located was conveyed to the congregation in trust for a nondenominational church.

The trial court found that the local church had been connected with the UMC since 1931 and had agreed to be bound by the rules of the Book of Discipline. Based on these findings the trial court found the UMC to be the owner of the property. On appeal, the church members claimed that the trial court erred in not finding that the 1909 and 1978 deeds conveyed the property, in trust, for the benefit of a nondenominational church and that the property, therefore, could not be diverted from its charitable purpose by any agreement with the UMC.

The state supreme court began its opinion by noting that the civil courts have general authority to resolve church property disputes, although the first amendment prohibits the civil courts from resolving property disputes on the basis of religious practice or doctrine. The court further noted that it had adopted the so-called “neutral principles of law” approach to resolving church property disputes. Under this approach, the civil courts “consider, in purely secular terms, the language of the deeds, the charter of the local church, any applicable state statutes, and any relevant provisions contained in the discipline of the national church as a means of adjudicating the dispute.” Following this approach, the court found no evidence of a local church charter or any applicable state statute. Therefore, it turned its attention to an examination of the deeds to the church property, and the “property clauses” contained in the Book of Discipline.

The court noted that the property on which the local church is located was acquired in two deeds. The first deed, dated 1909, was made by several members of a family and purported to grant approximately 2 acres to “this community for a union church … to have and to hold to the said community heirs and assigns, in fee simple, forever.” The second deed, dated 1978 and issued by two descendants of the 1909 grantors, purported to transfer the same two acres as the 1909 deed and approximately two additional acres to the trustees of the “union chapel at Haney’s Chapel, their successors in office and assigns.”

The members of the local church argued that both the 1909 deed and the 1978 deed conveyed the church property, in trust, for a nondenominational, “union” church. The court noted that the 1909 deed did not contain a trust clause. In addition, the designation of the grantee as “this community” was ambiguous. In order for a deed to serve as a successful conveyance, “the grantee must be identifiable with certainty.” The court concluded that there was no consistent or clear evidence regarding the intent of the grantors or the exact meaning of “this community.” Therefore, the 1909 deed was void, and title to the original two acres on which the local church is located remained in the 1909 grantors.

The 1978 deed purported to convey the same two acres as the 1909 deed and two additional acres to three named trustees, who were described as “trustees for the union chapel at Haney’s Chapel, their successors and assigns.” The UMC argued that the trustees named in the 1978 deed were trustees for Haney’s Chapel United Methodist Church and were duly elected and recognized at a Methodist “charge conference.” However, the members of the local church argued that the three trustees represented the community and were the trustees of the local, nondenominational union church. Once again, the court found the language of the deed to be ambiguous, and so it reviewed the surrounding circumstances to discover the grantors’ intent. It concluded that the grantors intended to convey the property to the local church and to ensure that the national church could not gain title to the property. As support for this conclusion, the court noted that the 1978 deed was prepared immediately after the grantors were told by the UMC that the national organization held “equitable title” to the local church property. In response to this, a local attorney was asked to draw up the 1978 deed in order to correct any problems that existed in the 1909 deed and to carry out the intent of the original 1909 grantors. Further, the trustees listed in the 1978 deed understood that the property belonged to the local church and was not to be transferred to the UMC. One of the trustees listed in the 1978 deed testified that she and the other trustees were later asked by the UMC to “sign over the property to the Methodist Association,” but that they refused to do so. As a result, the court concluded:

[T]here appears to be no real dispute regarding the intent of the 1978 grantors …. [T]he evidence in this case indicates that the 1978 grantors intended to convey the property to the trustees of the local church and to exclude the involvement and control of the national church. Therefore, we find that the deed granted the property to the trustees of the local church; because the church is unincorporated, the trustees and their successors hold legal title for the beneficiary class of the congregation.

Application. This case is important for the following reasons. First, it demonstrates the legal consequences of ambiguities in a deed. The 1909 deed was considered null and void because its description of the grantee was so ambiguous. Church leaders eventually recognized this problem, and this led them to draft the 1978 deed. It would be a good practice for church leaders to review their church deed and see how the church is described. If there is any ambiguity in the name, then an attorney should be consulted to discuss redrafting the deed. Of course, this would require the signatures of the original grantors (or their heirs). This can be a difficult task, especially if many years have elapsed since the original deed. However, it pales in comparison to the legal consequences of a court ruling that the deed to the church’s property is null and void because the church was not adequately described. Second, the case illustrates the application of the “neutral principles” approach to resolving church property disputes. This is the approach that has been adopted by most courts over the past several years. Haney’s Chapel Methodist Church v. United Methodist Church, 716 So.2d 1156 (Ala. 1998). [State Court Rulings Regarding Church Property Disputes]

© Copyright 1999 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: m21 m39 c0399

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Legal Developments

Recent Developments in Mississippi Regarding Church Property

The Mississippi Supreme Court ruled that a local congregation, rather than a parent denomination, was the legal owner of church property.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1999-05-01

Church Property

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

The Mississippi Supreme Court ruled that a local congregation, rather than a parent denomination, was the legal owner of church property. A local church acquired property by deed in 1958, in the name of “Church of God Pentecostal, General Assembly.” It acquired adjacent property by deed in 1968, in the name of “Church of God Pentecostal of Moss Point, Mississippi.” The purchase price for the properties conveyed by both deeds was paid for entirely by the local congregation. In 1994, the church’s pastor was “defrocked” by the Church of God Pentecostal, a national religious denomination, for misconduct and a failure to comply with the national church’s bylaws. The local congregation rejected the action of the national church, and retained their pastor. It also attempted to convey its property to a newly formed church using a different name that did not refer to any association with the national church. A trial court ruled that the local congregation held title to its properties, and the national church appealed.

The state supreme court applied the “neutral principles of law” approach in resolving this dispute. It noted that for the national church to prevail under the neutral principles of law approach, it “must demonstrate either an actual transfer of property from the congregation to the denomination, an express trust, or clear and convincing evidence evincing an intent on the part of the local congregation to create a trust in favor of the denomination.” The court noted that the congregation had not transferred its property to the national church, and there were no documents creating an express trust in favor of the national church. Therefore, “the only manner by which title can be confirmed in [the national church] is by either a resulting or constructive trust.” The court defined these trusts as follows:

Resulting Ttrust

“If one buys land in the name of another and pays the consideration therefor, the land will be held by the grantee in trust for the benefit of him who advances the purchase money …. The foundation of trust in such cases is that the property really belongs to him whose funds have paid for it.”

Constructive Trust

“A constructive trust is one that arises by operation of law against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy.”

In deciding whether a resulting or constructive trust existed in favor of the national church, the court looked to the bylaws of the national church and the deeds to the local church property.

National Church’s Bylaws

The court acknowledged that the national church’s bylaws clearly state that “[a]ll deeds and abstract of deeds of any local church shall remain the property of the parent church and shall be sent to the general office and kept there.” In addition, the bylaws declare that “no church that is the property of the parent church of the Church of God Pentecostal shall at any time secede from the parent church. All properties shall at any and all times remain the property of the parent church.” The court conceded that this language demonstrates “a clear intent … that any property of one of its local churches is the property of the national denomination.”

The court concluded, however, that the national church’s bylaws did not create a resulting or constructive trust in favor of the national church, for the following reasons: (1) There was no evidence that the congregation had “adopted” the national church’s bylaws, or that it complied with them. (2) The national church’s bylaws were not in existence until at least 1963-some five years after the date of the first deed of property to the local church. The court concluded that “on this basis, the bylaws clearly would not be applicable” to the 1958 deed. (3) The national church itself did not exist as a corporate entity until 1961, and therefore “it could not have had an ownership interest in any property purchased by the … congregation in 1959.” (4) The national church’s bylaws required that all deeds be sent to and held in its general offices, and that all affiliated churches submit a semi-annual report setting forth all property, mortgages, and loans. The congregation did not send its deeds to the general office, nor did it submit the semi-annual reports.

The court concluded that a review of the national church’s bylaw provisions, viewed under neutral principles, clearly demonstrated that the local congregation, if even aware of the bylaws, did not adopt or abide by them. Therefore, “the local congregation did not, on the basis of the bylaws, evince an intent to purchase or hold the contested realty in trust” for the national church.

Deeds

The court then applied the neutral principles of law approach to the deeds to the church’s property. The first deed transferred title to some of the church’s property to the “Church of God Pentecostal General Assembly.” The national church insisted that the title “general assembly” designated the national church. The local church insisted that it did not. The court conceded that the language in the deed was ambiguous, and then referred to “surrounding circumstances” to ascertain the intent of the parties. It concluded that the intent of the parties clearly was to vest title in the local congregation, based on the following facts: (1) the local church paid for the property without any assistance from the national church; and (2) the national church was not incorporated until 1961 and had no printed bylaws at the time of the purchase.

Application. The court placed great emphasis on the concept of resulting trust. Church leaders should have some familiarity with this concept, since it is recognized in most states. In essence, if one party pays the purchase price for property, but title vests in another party, then the law creates a resulting trust in favor of the first party. To illustrate, if a national or regional denominational agency pays all or a portion of the purchase price for a local church’s property, but title is vested in the name of the local church, then the local church holds title in trust for the benefit of the denominational agency. This means that the church cannot withdraw from the denomination and retain title to the property without the approval of the denomination. If the denominational agency paid only a portion of the purchase price, then it has a partial interest in the property. Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So.2d 200 (Miss. 1998). [State Court Rulings Regarding Church Property Disputes]

© Copyright 1999 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: m21 m39 c0399

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Legal Developments

Recent Developments in Alabama Regarding Sexual Misconduct by Clergy and Church Workers

An Alabama court ruled that a school was not liable for a teacher’s acts of child molestation since it conducted a thorough background check before hiring him and did not violate its written policies.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1999-01-01

Sexual Misconduct By Clergy And Church Workers

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

• Key point. Conducting a background check before hiring a teacher or youth worker can reduce if not eliminate an organization’s liability for negligent hiring.

An Alabama court ruled that a school was not liable for a teacher’s acts of child molestation since it conducted a thorough background check before hiring him and did not violate its written policies. A male student at private high school was molested by a teacher during a school camping trip, and several weeks later when he visited the teacher’s home. The student sued the school, claiming that it was responsible for his injuries on the basis of negligent hiring and negligent supervision. The court disagreed.
It noted that the school had conducted a thorough background check on the teacher before hiring him. Further, school officials were not aware of the molestation until after it occurred.

The court rejected the student’s claim that the school was guilty of negligent supervision because it violated its own “sign out” and parental permission policies. These policies only applied to overnight and weekend absences from school, the court observed, and did not apply in this case since none of the acts of molestation occurred during such absences. The student claimed that another school policy prohibited the teacher from removing only one student at a time from school premises, and that this policy had been violated by the school when the student visited the teacher in his home. The court pointed out that this policy was an “unwritten” policy of a school supervisor, who was unaware that the student ever visited the teacher at his home. The court stressed that “the mere fact that an injury has occurred is not evidence of negligence” and that negligent supervision “will not be found by inference.”

Application. There are two aspects of this case that are worth remembering. First, an organization that conducts an adequate background check on a youth worker generally will not be liable on the basis of negligent hiring for the worker’s acts of child molestation. This case illustrates the importance of screening those persons who will work with (or have access to) minors. Second, the case demonstrates the importance of following policies. The school was not liable for the victim’s molestation because it did not violate its “sign out” and parental permission policies. Had the victim been molested as a result of the school’s violation of one or both of these policies, then it is likely that the school would have been legally responsible for the victim’s injuries. Church leaders should understand that if they adopt policies, then they must ensure that the policies are followed. Failure to do so can lead to significant liability. Anonymous v. Lyman Ward Military Academy, 701 So.2d 25 (Ala. App. 1997). [Negligence as a Basis for Liability]

© Copyright 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: m10 m67 m65 c0199

Legal Developments

Do Materialman’s Liens Cover Attorney’s Fees?

No, a court rules.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Materialman's liens can come as an unpleasant surprise to church leaders. The church may be required to pay twice for materials used in a construction project.

Background

Church treasurers should be familiar with materialman's liens. A materialman's lien is a lien imposed by most states on property owners to secure payment for materials provided by suppliers in connection with construction projects. The basic idea is this—if a supplier of construction materials is not paid by the general contractor, then the property owner will be legally obligated to pay the supplier directly for the materials even if it previously paid the contractor for them. A recent case illustrates an important limitation on materialman's liens,

Facts of the case

A supplier provided materials to a church in connection with a construction project. Before each delivery the supplier sent the church a letter notifying it of the delivery and warning it that if the general contractor failed to pay for the materials then the supplier "could claim a lien against the church's property for which the church would be responsible." When the general contractor failed to pay the supplier for the materials, the supplier sued the church to enforce its materialman's lien.

The court's ruling

A court agreed that the church had to pay the supplier for the full value of the delivered materials, even though the church previously had paid the general contractor for the same materials. However, the supplier wanted more. It asked the court to order the church to pay its attorney's fees incurred in enforcing the lien plus finance charges. The court said no. While a supplier of materials is legally entitled to recover the full value of delivered materials under a materialman's lien, it cannot obtain more (including attorney's fees and finance charges) unless specifically authorized by statute or contract.

What this means for churches

Church treasurers can reduce if not eliminate the risk of double payment for construction supplies by taking the following steps:

  1. Withhold all payments to a general contractor in any construction project until "lien waivers" (signed by all material suppliers) are presented. The same is true for construction laborers.
  2. Insist upon a construction contract.
  3. Incorporate the lien waiver requirement into the contract.
  4. Be sure that the materialman's lien is restricted to the price of delivered materials, and does not include attorney's fees, finance charges, or other "add ons."
  5. Retain a local attorney to draft (or review) the construction contract, and have the attorney review the materialman's lien procedures under your state law. And, if your church is ever sued by a supplier seeking to enforce a materialman's lien, remember that the supplier may not be able to recover attorney's fees or finance charges. Sherman v. Greater Mt. Olive Baptist Church, 678 So.2d 156 (Ala. App. 1996).

Legal Developments

Recent Developments in Alabama Regarding Background Checks

An Alabama court ruled that a school was not liable for a teacher’s acts of child molestation since it conducted a thorough background check before hiring him and did not violate its written policies.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1998-07-01

Background Checks

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

• Key point. Churches cannot be liable on the basis of negligent hiring for an incident of child molestation if they conducted a thorough background check on the perpetrator.

• Key point. Violation of a church policy is evidence of negligence.

An Alabama court ruled that a school was not liable for a teacher’s acts of child molestation since it conducted a thorough background check before hiring him and did not violate its written policies. A male student at a private high school was molested by a teacher during a school camping trip, and several weeks later when he visited the teacher’s home. The student sued the school, claiming that it was responsible for his injuries on the basis of negligent hiring and negligent supervision. The court disagreed. It noted that the school had conducted a thorough background check on the teacher before hiring him. Further, school officials were not aware of the molestation until after it occurred.

The court rejected the student’s claim that the school was guilty of negligent supervision because it violated its own “sign out” and parental permission policies. These policies only applied to overnight and weekend absences from school, the court observed, and did not apply in this case since none of the acts of molestation occurred during such absences. The student claimed that another school policy prohibited the teacher from removing only one student at a time from school premises, and that this policy had been violated by the school when the student visited the teacher in his home. The court pointed out that this policy was an “unwritten” policy of a school supervisor, who was unaware that the student ever visited the teacher at his home. The court stressed that “the mere fact that an injury has occurred is not evidence of negligence” and that negligent supervision “will not be found by inference.”

Application. This case illustrates two very important points. First, thorough background checks can protect a school or church from liability based on negligent hiring in the event of an incident of molestation. Second, schools and churches generally cannot be liable on the basis of negligent supervision for an act of child molestation without knowledge of previous incidents or allegations of misconduct involving the perpetrator. Third, schools and churches may be liable on the basis of negligence for violating their own written policies. The school in this case had written “sign out” and parental permission policies. These policies only applied to overnight and weekend activities, and as a result did not apply in this case because the incidents of molestation did not occur during these activities. Note, however, that the result might have been different had the incidents occurred during an overnight or weekend activity that did not comply with the applicable policies. This illustrates the importance of adhering to any applicable policies. Anonymous v. Lyman Ward Military Academy, 701 So.2d 25 (Ala. App. 1997).
[Negligence as a Basis for Liability]

© Copyright 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: m65 m43 m67 c0498

Legal Developments

Recent Developments in Alabama Regarding Insurance

An Alabama court ruled that a church’s “directors and officers” insurance policy covered a lawsuit brought against a pastor for improperly obtaining money from an elderly member.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1998-03-01

Insurance

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

• Key point. Insurance policies are construed in favor of the insured, and exclusions are narrowly interpreted.

• Key point. An insurer may have a duty to provide a legal defense for a minister who is accused of misappropriating funds from an elderly member, although there may be no duty to pay any portion of judgment or verdict rendered against the minister.

An Alabama court ruled that a church’s “directors and officers” insurance policy covered a lawsuit brought against a pastor for improperly obtaining money from an elderly member. The daughter of an elderly church member was appointed guardian of her mother’s property. The daughter sued the minister of her mother’s church, claiming that he improperly obtained funds from her mother by means of conversion, fraud, and undue influence. The minister notified the church’s “directors and officers” insurer of the lawsuit and asked the insurer to provide him with a legal defense. The insurer asked a court to determine whether or not the minister’s actions were covered under the insurance policy. The court concluded that the insurer had a legal duty to provide the minister with a defense of the lawsuit. It noted that (1) “an insurance company’s duty to defend its insured is determined by the language of the insurance policy and by the allegations in the complaint about what gave rise to the cause of action against the insured”; (2) the insurance contract is “construed liberally in favor of the insured and strictly against the insurer”; and (3) “exclusions are to be interpreted as narrowly as possible, so as to provide maximum coverage for the insured, and are to be construed most strongly against the insurance company that drafted and issued the policy.” The court noted that the church’s insurance policy provided coverage for officers and directors (including the minister in this case) in any lawsuit brought against them by reason of alleged dishonesty on their part unless a court determined that the officer or director acted with deliberate dishonesty. Since the minister had not yet been found guilty of “deliberate dishonesty,” he was covered under the insurance policy. The court acknowledged that if the minister was found to have acted with deliberate dishonesty in the daughter’s lawsuit, the insurer would have no duty to pay any portion of the judgment or verdict. Graham v. Preferred Abstainers Insurance Company, 689 So.2d 188 (Ala. App. 1997). [ Personal Liability of Church Officers, Directors, and Trustees]

© Copyright 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: m50 m56 m29 c0298

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Legal Developments

Statute of Limitations Prevents Lawsuit

Man’s lawsuit over abuse suffered as minor barred.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-05-01

Sexual Misconduct by Clergy and Church Workers

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

• Key point. Minors who are sexually molested by church workers may not sue their church after the statute of limitations has expired. Generally, the statute of limitations begins to run on a minor’s 18th birthday. In some states the statute of limitations does not begin to run until an adult survivor of child sexual molestation “discovers” that he or she has experienced physical or emotional suffering as a result of the molestation. Other states do not recognize this so-called “discovery rule.”

• The Supreme Court of Alabama ruled that the statute of limitations prevented an adult from suing a church for damages he allegedly suffered as a minor when he was molested by a priest. The victim claimed to have been molested by the priest from 1974 through 1979. He asserted that he was unaware that his emotional problems were associated with the abuse until he met with a counselor in 1993. He filed a lawsuit within the next year-some fifteen years after the last act of abuse. The victim sued the church, claiming that it was responsible for his injuries on the basis of negligent hiring and supervision of the priest, and breach of a fiduciary duty. The statute of limitations on such claims is two years under Alabama law, beginning when the victim reaches age eighteen. Since that period had long expired before the victim filed his lawsuit, he claimed that the statute of limitations should be suspended until 1993-when he first became aware that his problems resulted from the abuse. The victim insisted that he suffered from a “post traumatic stress disorder” that caused him to repress all memory of the abuse until he saw a counselor in 1993. A court refused to suspend the statute of limitations, and ruled that the victim’s claims against the church had to be dismissed since they were filed too late. It began its opinion by noting that “the controversial question of repressed memory of childhood sexual abuse has been the subject of numerous studies” and that a review of these studies “leads to one conclusion-there is no consensus of scientific thought in support of the repressed memory theory.” The court acknowledged that “insanity” may suspend the statute of limitations in some cases, but it rejected the victim’s claim that his post traumatic stress disorder and repressed memory qualified as insanity. The court noted that most other courts have reached this same conclusion. The court observed:

At its core, the statute of limitations advances the truth-seeking function of our justice system, promotes efficiency by giving plaintiffs an incentive to timely pursue claims, and promotes stability by protecting defendants from stale claims. The essence of the [victim’s] claim is that plaintiffs should be able to [suspend the statute of limitations] in any situation where they can demonstrate an inability to comprehend a specific legal right, or to recall events that happened many years before, notwithstanding the fact that they have been capable of living an independent, normal, and productive life as to all other matters. Such an expansive interpretation would undermine the purpose of the statute of limitations.

The court noted that allowing alleged victims to sue for incidents of child abuse many years after the statute of limitations ordinarily would have expired would put them “in subjective control” and raise the risk of allowing persons to “assert stale claims without sufficient justification or sufficient guaranties of accurate fact-finding.” Travis v. Ziter, 681 So.2d 1348 (Ala. 1996). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability]

© 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: m67 m86 c0397

Legal Developments

Woman Injured on Church Property Sues

The church allowed a choral guild to use its facilities rent-free.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-03-01

Personal Injuries-on Church Property or During Church Activities

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

• Key point. Churches are not necessarily liable for injuries suffered by persons who enter onto church premises as part of an outside group’s activities.

An Alabama court ruled that a church was not responsible for injuries suffered by a woman who was on church premises as part of a choral guild that used the church’s premises on a rent—free basis. The woman was injured when the metal risers on which she was standing collapsed. The choral guild’s director had obtained permission from the church to use its facilities for rehearsals. The woman sued the church, claiming that she was an “invitee” who was owed the highest duty of care, and that the church breached this duty by allowing the choral guild to use defective risers. A court disagreed. It defined an invitee as “one who enters the land of another, with the landowner’s consent, to bestow some material or commercial benefit upon the landowner.” The landowner owes an invitee a duty “to keep the premises in a reasonably safe condition and, if the premises are unsafe, to warn of hidden defects and dangers that are known to the landowner but that are hidden or unknown to the invitee.” On the other hand, a “licensee” is a person who “enters the land of another with the landowner’s consent or as the landowner’s guest, but without a business purpose.” A landowner owes a licensee a lower standard of care. It must “abstain from willfully or wantonly injuring the licensee and avoid negligently injuring the licensee after the landowner discovers a danger to the licensee.” Stated differently, “the licensee’s entrance on the land carries with it no right to expect the land to be made safe for his reception, but he must assume the risk of whatever may be encountered. Once he is there, the law only requires the landowner to refrain from wantonly, maliciously or intentionally injuring him; in other words, the landowner is not liable unless he does some act which goes beyond mere negligence.” The court concluded that the injured woman was a licensee rather than an invitee since she was on the church’s premises for the benefit of the choral guild. The court observed that “any benefit bestowed upon the church was merely incidental; the church received no payment from the guild for use of its facilities.” The court acknowledged that the metal risers had collapsed on one prior occasion when being used by the guild, and that this incident had been reported to the church. This did not make the church liable for the woman’s injuries, the court concluded, since the church had not breached the duty it owed to a licensee:

Although the risers had collapsed while being used by the guild [six months prior to the woman’s injuries] and the church was made aware of this, the risers had been used on at least three other occasions without incident before [the woman’s accident]. Further, the risers were assembled, tested for safety, and used by members of the guild after the [previous] incident. From these facts, one could not conclude that the risers posed a danger of which the church was aware, or that the church consciously did some act or omitted a duty that it knew would probably result in an injury. Davidson v. Highlands Church, 673 So.2d 765 (Ala. App. 1995). [Premises Liability]

© 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: m58 m86 c0297

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Legal Developments

Removal of Church Elders

Established church procedures must be followed.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1994-05-01 Recent Developments

Officers, Directors, and Trustees

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

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

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

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

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

See Also: Removal of Officers, Directors, and Trustees | 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: m56 m34 m16 c0394

Legal Developments

Trial Court Can Resolve Internal Church Dispute

Both sides had agreed to court’s involvement.

Richard R. Hammar, Attorney, CPA
Bio

Bacher v. Metcalf, 611 So.2d 1030 (Ala. 1992)

Key point: The civil courts will not resolve internal church disputes involving matters of doctrine, practice or discipline. However, the courts can resolve such disputes if both sides agree.

The Alabama Supreme Court ruled that it was proper for a trial court to resolve an internal church dispute over a church election since both sides to the dispute agreed to civil court involvement.

A dispute arose in a Baptist church concerning a proposed day care center at the church that was to be operated by the daughters of the senior minister and song leader. The senior minister decided to resolve the dispute by calling for a special business meeting at which the church would exercise discipline over two of the church's four deacons and the chairpersons of six committees.

The minister also proposed that a vote of confidence would be taken on him at the meeting. Seventy-eight members attended the meeting, which was chaired by the senior minister. During the meeting, 34 members left and went to a separate part of the church where they conducted their own meeting. All 34 members voted against retaining the senior minister.

Meanwhile, at the meeting chaired by the senior minister, 42 of the 44 members present voted in favor of retaining the minister, placing the 2 deacons on the inactive list, and removing the 6 committee chairpersons. The remaining 2 members abstained from voting. Following these meetings, one of the 34 dissenting members sought a court order prohibiting the senior minister, assistant minister, and song leader from performing any duties at the church.

The parties later agreed to a court-supervised vote at which all contested votes would be decided by the trial judge. At this second meeting, the members of the church voted on whether to retain the senior minister, assistant minister, and song leader. The vote was 59 in favor of retaining them and 58 against. Several church members challenged certain votes cast in favor of the senior minister. Specifically, they claimed that the minister, his wife, 2 of his children, and his son-in-law should not have been allowed to vote, claiming that it was against church custom to allow the pastor or his family to vote on matters directly affecting them. Also, the families of the assistant minister and song leader voted in violation of the same church custom.

The dissident church members sued the minister, assistant minister, and song leader, claiming that they were wrongfully holding church staff positions and misusing church funds. The members sought a court order prohibiting these individuals from continuing as officers in the church. The trial court ruled that it was a violation of church custom for the senior minister and his wife to vote in the election, and accordingly the correct vote was 58 in favor of dismissing the ministers and song leader and 57 in favor of retaining them.

The court concluded that these individuals had been wrongfully holding their positions following the special election, and it ordered them to vacate their offices. The court also ordered an accounting of church funds, and a reinstatement of the 2 deacons who had been removed at the first election. The ministers and song leader appealed this decision, and the Alabama Supreme Court ruled that the trial court had resolved the case properly. The court began its opinion by observing that "civil courts cannot adjudicate religious disputes concerning spiritual or ecclesiastical matters, but the courts can resolve disputes concerning civil or property rights."

However, the court noted that "[c]ertainly, in this case, where both sides agreed to let the court determine the eligibility of the voters, this court has the authority to hear the case." Since the parties had agreed to allow the courts to resolve questions concerning voter eligibility, the only issue to be decided was whether or not the trial court erred in throwing out the votes of the senior minister and his wife on the basis of church custom.

The court concluded, on the basis of the expert testimony of 2 witnesses, that there was in fact a church custom against allowing a senior minister or his spouse to vote on matters affecting the minister's position. One of the expert witnesses was a former pastor of the church, and the other was legal counsel to the Alabama Baptist Convention. Accordingly, the trial court had correctly ruled that the votes of the senior minister and his wife should not be counted, and the resulting vote was 58 in favor of dismissing the minister and 57 against.

This case demonstrates that the civil courts will supervise church elections and make determinations regarding eligible voters, when asked by both sides to do so. Of course, in deciding who are eligible voters, a civil court will have to rely on the church's bylaws, customs, and the testimony of expert witnesses. Without the consent of both sides, many courts would consider such disputes to be ecclesiastical in nature and beyond their jurisdiction. In such a case, the dispute would be resolved internally.

See also "Clergy—removal," Franzen v. Poulos, 604 So.2d 1260 (Fla. App. 3 Dist. 1992).

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