Zoning – Part 2

Church Law and Tax 1990-09-01 Recent Developments Zoning Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Church Property

Church Law and Tax 1990-09-01 Recent Developments

Zoning

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

• A New Jersey state appeals court rejected an effort by concerned citizens to prevent a Jewish congregation from constructing a synagogue in their residential neighborhood. The congregation proposed to construct a 2,000 square-foot sanctuary with 120 seats and a parking lot with room for 20 vehicles. The congregation claimed that it had to construct its building in a residential area, since most of its members were Orthodox Jews who had to walk to services on the Sabbath. The 20 parking spaces satisfied the local zoning law which required 1 parking space for every 6 sanctuary seats. The neighboring residents conceded that the planned synagogue met the technical requirements of the zoning ordinance, but they argued that the ordinance was invalid since it did not require adequate parking for houses of religious worship. A state appeals court rejected the neighbors’ position, and allowed the congregation to proceed with construction. The court acknowledged that zoning laws must advance the “public morals and the general welfare,” but it noted that “the courts have held that religious activity itself is in furtherance of public morals and the general welfare, and that religious institutions enjoy a highly-favored and protected status, which severely curtails the permissible extent of governmental regulation.” For a zoning law to be invalid, it must be arbitrary or not reasonably designed to advance public morals or the general welfare. The court concluded that the neighboring residents had failed to satisfy this test. While the court agreed that more parking spaces might be desirable, it could not agree that the zoning ordinance was “arbitrary.” It noted that the congregation’s members were forbidden to drive to religious services on the Sabbath, and that off-street parking was available to accommodate vehicles during occasional social events occurring during the week. The court also quoted with approval from rulings of the United States Supreme Court that have found that “the Constitution affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any,” and that “[w]e are a religious people whose institutions presuppose a Supreme Being.” It concluded that “our branches of government have a right, indeed an obligation, to recognize the freedom of all to worship and to do that which is reasonable to respect this essential freedom.” The court acknowledged that “it was probably impossible” for a growing congregation to build a sanctuary in a residential neighborhood “without offending some residents.” However, “the law cannot expect the impossible.” Lakewood Residents Association v. Congregation Zichron Schneur, 570 A.2d 1032 (N.J. Super. 1989).

© Copyright 1990, 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: m82 m35 c0690

Legal Developments

Child Abuse

Church Law and Tax 1990-05-01 Recent Developments Child Abuse Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Child Abuse, Malpractice

Church Law and Tax 1990-05-01 Recent Developments

Child Abuse

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

• Can a person who reports a suspected case of child abuse be sued by the child’ parents after an investigation determines that no abuse occurred? That was the question before a California state court. A nine-year-old girl contracted chicken pox and was taken by her parents to a doctor for diagnosis and treatment. The doctor misdiagnosed the child’s symptoms as a venereal disease, and promptly notified county authorities while the girl was in his office. The same day, the girl was removed from her parents’ custody and was taken to a juvenile detention facility where she remained (without her parents’ knowledge) for seven weeks before being returned to her home after the county determined that the child was not suffering from a venereal disease. The parents sued the doctor for infliction of emotional distress, malpractice, and false imprisonment. They acknowledged that the doctor had a mandatory duty to report known or reasonably suspected cases of abuse, and that the child abuse reporting law granted “blanket immunity” to anyone filing a report based on actual knowledge or reasonable suspicion of abuse. However, the parents insisted that the doctor did not have enough facts to create a reasonable suspicion of abuse. Rather, he “jumped the gun” and acted with a “knee-jerk” response, and therefore was not protected by any immunity. The court agreed that the child and her parents were “traumatized by these events and suffered substantial individual and family distress.” However, it dismissed the lawsuit against the doctor on the ground that he did have enough evidence to create a reasonable suspicion of child abuse, and accordingly he could not be sued for damages resulting from the fact that his suspicion was wrong. This case illustrates the important principle that persons who report known or reasonably suspected incidents of child abuse generally cannot be sued if their suspicion later is proven to be false. The typical child abuse reporting law grants immunity to reporters in order to encourage reporting of reasonably suspected incidents of abuse as well as those that the reporter knows to be true. Cream v. Mitchell, 264 Cal. Rptr. 876 (Cal. App. 1989).

See Personal injuries—on church property or during church activities, Bender v. First Church of the Nazarene (Ohio App. unpublished opinion 1989).

Legal Developments

Immigration

Church Law and Tax 1990-05-01 Recent Developments Immigration Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: California

Church Law and Tax 1990-05-01 Recent Developments

Immigration

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

• Can churches be forced to comply with the immigration reporting requirements contained in the Immigration Reform and Control Act of 1986 against their will? Yes, concluded a federal district court in California. In 1986, Congress enacted a comprehensive immigration reform law requiring all employers (including churches) to verify the identity and employment eligibility of every employee hired on or after June 1, 1987 (the application of the new law to churches was explained fully in the July-August 1987 issue of Church Law & Tax Report). Employers who fail to comply with the new law are subject to various penalties. A Quaker social services agency, supported by more than 100 other religious organizations, challenged the law in court. It claimed that compliance with the law’s requirements would violate its “sincerely held religious beliefs in the sacredness and equality of human life,” and would require it to participate in an immigration program that it believed would “visit hunger and deprivation” upon illegal immigrants. The court summarily rejected these claims. It observed that in determining whether or not a law violates the first amendment’s guaranty of religious freedom, the courts must consider three factors: “(1) the magnitude of the law’s impact upon the exercise of religious beliefs, (2) the existence of a compelling state interest justifying the burden imposed upon the exercise of religious belief, and (3) the extent to which recognition of an exemption from the law would impede the objectives sought to be advanced by the state.” The court readily agreed that the law had a “substantial impact” on the religious organization’s right to freely exercise its religion. However, it insisted that this right was outweighed by the government’s compelling interest in controlling immigration. Further, the court concluded that granting an exemption to religious organizations would not be feasible since it would “reactivate the employment ‘magnet’ which draws illegal aliens to the United States. [The government] notes that over 100 religious organizations [support the position of the Quaker social services agency in this case], and therefore an exemption could have far reaching effects on immigration policy.” American Friends Service Committee v. Thornburgh, 718 F. Supp. 820 (C.D. Cal. 1989).

Legal Developments

Clergy – Part 7

Discipline and Dismissal

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Defamation, Invasion of Privacy

Church Law and Tax 1990-01-01 Recent Developments

Clergy – Discipline and Dismissal

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

• In a significant decision, a California appeals court ruled that a priest could not sue his bishop and diocese for firing him in violation of church procedures. The priest had been appointed by his bishop as an administrator of a local church. He alleged that his bishop had (1) falsely accused him of “social misconduct,” (2) suspended him from his duties as a priest in violation of canon law, and (3) assisted in disclosing his psychiatric records (which revealed that he had received electrical shock treatments for schizophrenia) to other persons in a concerted effort “to discredit him and destroy his ability to obtain employment within the church.” The priest sued his bishop and diocese, alleging invasion of privacy, defamation, infliction of emotional distress, and wrongful termination. The court began its opinion by observing that “the civil courts will not intrude into the church’s governance of religious or ecclesiastical matters, such as theological controversy, church discipline, ecclesiastical government, or the conformity of members to standards of morality.” However, it also observed that churches “are as amenable as other [organizations] to rules governing property rights, torts and criminal conduct.” The difficulty of course comes in deciding whether a particular dispute is “ecclesiastical” in nature or is simply an ordinary lawsuit involving property matters or torts in which church officials happen to be involved.

Legal Developments

Zoning – Part 3

Church Law and Tax 1989-09-01 Recent Developments Zoning Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Zoning

Church Law and Tax 1989-09-01 Recent Developments

Zoning

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

• Can a city zoning ordinance ban “adult” bookstores within 500 feet of a church? That was the issue before a California state appeals court. A city ordinance banned adult bookstores within 500 feet of churches, schools, parks, or residences, or within 1000 feet of any other such bookstore. The court noted that the United States Supreme Court had ruled in 1986 that cities are free to ban adult bookstores or theatres within 1000 feet of churches, schools, or residences, provided that such restrictions do not deny such businesses “a reasonable opportunity to open and operate an adult theatre [or bookstore] within the city.” The California court concluded that the ordinance’s prohibition of adult bookstores within 500 feet of churches, schools, parks, or residences was probably permissible since it did not deny such businesses a reasonable opportunity to operate within the city. However, the prohibition that such bookstores could not operate within 1000 feet of each other left little opportunity for them to operate, and accordingly the entire ordinance was invalid. The court observed that this limitation “made so few sites available that the effect was to greatly restrict access to lawful speech.” City of Stanton v. Cox, 255 Cal. Rptr. 682 (4th Dist. 1989).

© Copyright 1989, 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: m82 c0589

Legal Developments

Freedom of Religion – Part 4

Church Law and Tax 1989-07-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Freedom of Religion

Church Law and Tax 1989-07-01 Recent Developments

Freedom of Religion

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

• A federal court in California ruled that a public employee could not be terminated on the basis of her religious practices. The employee, who had served as a secretary to a federal judge, alleged that she had been fired because the judge found her religious practices to be offensive. Specifically, she alleged that she was involved in the Charismatic Renewal Movement within the Roman Catholic Church, and that her religious practices included singing prayers and chants. While at the workplace, however, her religious practices were limited to silent prayer before meals. The court concluded that the judge would have violated her constitutional right to freely exercise her religion if he fired her solely because he was offended by her religious practices. It relied on an earlier decision in which a federal court in Tennessee ruled that an employee’s constitutional rights would be violated if he were fired for not attending his supervisor’s church. Garcia v. Williams, 704 F. Supp. 984 (N.D. Cal. 1988).

Legal Developments

Child Abuse – Part 1

Church Law and Tax 1989-05-01 Recent Developments Child Abuse Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Child Abuse

Church Law and Tax 1989-05-01 Recent Developments

Child Abuse

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

• A recent California appeals court ruling will be of interest to churches and religious denominations that conduct scouting programs. The court ruled that the Boy Scouts of America (BSA) was not responsible for the homosexual molestation of two young boys by a scoutmaster. The mother of the two boys learned in 1984 that her sons had been repeatedly molested by the scoutmaster during the course of scouting activities. She sued the BSA, alleging that it (1) was responsible for the conduct of the scoutmaster on the basis of the “respondeat superior” theory, and (2) it was negligent in failing to discover that the scoutmaster “had been discharged from the Air Force for improper sexual conduct and had also been convicted … of child abuse in another situation.” A trial court dismissed the case against the BSA, and the mother appealed. A state appeals court affirmed the trial court’s order dismissing the case. It acknowledged that “under the doctrine of respondeat superior, a principal or employer is liable for the wrongful acts of its agent or employee committed … within the scope of the employment.” However, it noted that for the conduct of an agent or employee to fall within the “scope of employment,” the conduct either had to be “(1) required by or incidental to the duties of the agent or employee and hence not a substantial deviation from those duties for personal reasons, or (2) could reasonably have been foreseen by the principal or employer in any event.” The court concluded that a scoutmaster’s homosexual assaults upon young boys satisfied neither of these tests. The court cited with approval previous California decisions rejecting church liability for acts of sexual molestation perpetrated by a church custodian and a Sunday School teacher. The court observed: “Sexual misconduct between a scoutmaster and his charges is so unusual and startling that it is equally unfair to hold BSA liable under the doctrine of respondeat superior for damages caused by that activity.” The court likewise rejected the mother’s claim that BSA was liable for failing to adequately investigate and supervise the scoutmaster. While such facts may have rendered the BSA liable to the victims, they did not render the BSA liable to the mother. And, since the mother was the only party named as a plaintiff in the case, the court had no alternative but to dismiss this allegation as well. In other words, the court left open the question of whether or not the actual victims of sexual molestation could sue the BSA on the basis of its alleged failure to adequately investigate or supervise scoutmasters who had a history of molestation and deviant sexual conduct. The fact that this critical issue was left unresolved reduces significantly the comfort that this case otherwise might have brought to church and denominational scouting programs in California (and to some extent in other states). Churches and denominational agencies that operate scouting programs must continue to exercise extreme care in selecting and supervising workers (both volunteer and compensated). At a minimum, this will mean confirmation of the identity of any previously unknown applicant (through an identification card, such as a state driver’s license, containing a photograph of the applicant); documented reference checks; contacting previous churches with which the applicant claims to have been associated; an appropriate application form; contacting the local social services agency for any available information; never leaving minors in the custody of one adult; and refusing to hire anyone whom you have reasonable cause to believe is unfit. A feature article in a future issue of Church Law & Tax Report will address in detail the issue of church liability for acts of sexual molestation occurring on church premises or during church activities. The article will outline steps that churches can take to reduce the risk of such a tragedy occurring. Cordts v. Boy Scouts of America, Inc., 252 Cal. Rptr. 629 (Cal. App. 3rd Dist. 1988).

Legal Developments

Freedom of Religion – Part 2

Church Law and Tax 1989-05-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Freedom of Religion

Church Law and Tax 1989-05-01 Recent Developments

Freedom of Religion

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

• Can the state prosecute a mother for manslaughter if her child dies of meningitis after being treated by prayer instead of medical therapy? That was the difficult question before the California Supreme Court in a recent decision. The victim was a four-year-old girl who fell ill with flu-like symptoms and a stiff neck. Consistent with the tenets of her religion, the child’s mother chose to treat the illness with prayer rather than medical care. Members of the mother’s church prayed with the child on two occasions. Nevertheless, the child lost weight, grew disoriented and irritable, and her breathing became heavy and irregular. She died of acute meningitis 17 days after her symptoms first appeared. The child’s mother was charged with involuntary manslaughter, and she moved to dismiss the prosecution on the ground that her conduct was protected by law. Specifically, the mother argued that involuntary manslaughter is defined as the unlawful killing of a human being without malice “in the commission of an unlawful act … or without due caution or circumspection,” and that her child had not died “in the commission of an unlawful act.” She pointed out that the only “unlawful act” for which she could have been charged was the criminal neglect of a child, and that California law exempted “treatment by spiritual means through prayer alone” from the definition of criminal neglect.

The state supreme court rejected the mother’s arguments, concluding that she could be prosecuted for involuntary manslaughter. The court reasoned that the exemption of “treatment by spiritual means by prayer alone” from the definition of criminal neglect did not necessarily exempt such treatment from the crime of manslaughter. The court also rejected the mother’s claim that her actions were protected by the constitutional guaranty of religious freedom. It observed that the mother’s constitutional rights were outweighed by a “compelling state interest” of “unparalleled significance”—the protection of children. If further noted that “parents may be free to become martyrs themselves … but it does not follow that they are free … to make martyrs of their children.” Walker v. Superior Court, 253 Cal. Rptr. 1 (Cal. 1988).

Legal Developments

Freedom of Religion – Part 3

Church Law and Tax 1989-05-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Freedom of Religion

Church Law and Tax 1989-05-01 Recent Developments

Freedom of Religion

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

• The California Supreme Court ruled that two former members of the Unification Church could sue the Church for fraud and outrageous conduct. One of the members (David Molko) had been recruited by the Church in 1979 following his graduation from law school. He was approached by two Church members, while waiting for a bus, and was invited to a gathering of “socially conscious people from different occupations who met in the evenings to discuss important issues.” When asked if the group had a “religious connection,” the two Church members said no. They did not reveal to Molko that they were members of the Unification Church, or that their sole purpose in inviting him to dinner was to recruit him into the Church. Molko agreed to attend the dinner. Following the dinner there was a lecture on social problems after which there was a slide show about a “farm” a few hours away that was described as a “rural getaway where people went for relaxation and pleasure.” Molko agreed to visit the farm, and he was on his way in a Church-owned van within 15 minutes. Molko awoke the next morning expecting to spend some relaxing time in the country. He soon learned that each day’s schedule was tightly planned and left no time for solitude. First came calisthenics, then breakfast, then a lecture on moral issues, followed by small group discussions of the lecture. Next came lunch, more exercise, another lecture and discussion, then a break to take a shower. Finally came dinner, “testimonials” by individuals about their impressions of the day, and group singing followed by yet another small group discussion. At the end of the day, Molko was exhausted and quickly fell asleep. The following days were an exact repeat of the first day. Molko occasionally asked if the group was associated with any religious organization, and he was assured that it was not. On his 12th day at the farm, he was told by a member that the group was in fact part of the Unification Church. He expressed anger at being deceived for so many days, but allegedly was informed that “deception was necessary because people who had heard negative stories about the Church tended to be unreceptive if they knew the group’s identity before hearing what it had to say.” Molko agreed to stay and “work through his confusion.” He soon received nearly seven weeks of “advanced training,” after which he became a member of the Church and was judged “ready to go back to the city to sell flowers and witness for the Church.” Church leaders also encouraged Molko to take the California bar examination. As he left the final session of the examination, he was abducted and taken to a motel room by “deprogrammers” hired by his parents. After three days of deprogramming, Molko terminated his association with the Unification Church, and later sued the church for fraud and outrageous conduct. The second individual was a female college student who also had been “recruited” while waiting for a bus. Her experiences were similar to Molko’s, except that she ended up selling flowers on the streets of Los Angeles from 7AM until midnight. She, too, eventually became a member, and was abducted by deprogrammers (hired by her parents) who successfully persuaded her to abandon the Church. Both former members sued the Church for fraud and outrageous conduct. The court concluded that the Church could be sued for fraud if the former members could prove that the Church intentionally made misrepresentations of fact with an intent to defraud them, and they in fact relied on those misrepresentations. The court rejected the Church’s claim that it could not be guilty of fraud since the individuals both became members of the Church after they had learned its true identity. If the members could establish that the Church’s “brainwashing” activities rendered them incapable of not joining the Church, then they could sue for fraud. In rejecting the Church’s claim that the first amendment guaranty of religious freedom precluded the former members from suing it on the basis of fraud, the court observed: “Although liability for deceptive recruitment practices imposes a marginal burden on the Church’s free exercise of religion, the burden is justified by the compelling state interest in protecting individuals and families from the substantial threat to public safety, peace and order posed by the fraudulent induction of unconsenting individuals into an atmosphere of coercive persuasion.” The court also concluded that the former members could sue the Church for “outrageous conduct” (or intentional infliction of emotional distress) if they could establish that the Church’s conduct was outrageous, and was committed with an intent to cause emotional distress. However, the court cautioned that outrageous conduct could not be based on threats of divine retribution for leaving the Church, since such threats are protected by the guaranty of religious freedom. The case was remanded to the trial court for further proceedings. Further developments in this case will be noted in future editions of Church Law & Tax Report. Molko v. Holy Spirit Association for the Unification of World Christianity, 252 Cal. Rptr. 122 (Cal. 1988).

Legal Developments

Wills, Trusts and Estates – Part 4

Church Law and Tax 1989-05-01 Recent Developments Wills, Trusts, and Estates Richard R. Hammar, J.D.,

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Wills, Trusts, and Estates

Church Law and Tax 1989-05-01 Recent Developments

Wills, Trusts, and Estates

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

• Sometimes, disputes arise between churches and heirs regarding lawful ownership of estate assets. Such a dispute was resolved in a recent California appeals court decision. A decedent’s will left her most valuable asset (an 18-acre tract of land) to a relative, and left any “residue” of her estate (i.e., assets remaining after the payment of specific gifts, expenses, and taxes) to a religious organization. The decedent entered into a contract to sell the 18-acre tract a few weeks before her death, but the closing did not occur until three days after her death. The religious organization claimed that since the property was not in the decedent’s estate as of the date of her death, the gift of the property to the decedent’s relative failed (“adeemed”) and the relative had no claim to the sales proceeds. Rather, the religious organization was the rightful owner of the proceeds, since the sales proceeds were properly characterized as part of the residue of the decedent’s estate. The court rejected this argument, and awarded the sales proceeds to the relative. It acknowledged that as a general rule “if a will makes a gift of specific property and the property no longer exists at the testator’s death or is no longer part of the estate, the gift is said to be `adeemed’ (revoked). No monetary equivalent is substituted for the gift, with the result that the [gift in the will] is nullified.” However, because of the “harsh effects” of ademption, the “California courts have sought to avoid ademption whenever possible” by applying various exceptions. One such exception provides that a gift of specific property will not be adeemed “where there are unpaid sales proceeds.” Accordingly, though the property specifically given by the decedent’s will to a relative was no longer part of her estate at death, the unpaid proceeds from the sale of the property were payable to the relative rather than to the religious organization that was to receive the residue of the estate. Of course, this same principle can work to a church’s favor if (1) it is given a specific gift of property in a will, (2) the property has been sold prior to the decedent’s death, and (3) not all of the sales price had been paid. Estate of Worthy, 252 Cal. Rptr. 462 (Cal. 1988).

Legal Developments

Child Care Facilities

Church Law and Tax 1989-03-01 Recent Developments Child Care Facilities Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: California

Church Law and Tax 1989-03-01 Recent Developments

Child Care Facilities

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

• A federal court in California ruled that a California law requiring church child care facilities to be licensed by the state did not violate the constitutional guaranty of religious freedom. The law was challenged by a Baptist church on the ground that obtaining a license to operate its child care facility represented “a clear violation of the Lordship of Jesus Christ over our church.” In determining whether the law violated the guaranty of religious freedom, the court applied a three-pronged test: (1) whether the law in fact imposed a substantial burden on the church’s exercise of its religious beliefs; (2) whether the law was supported by a compelling state interest that justified the burden on religious freedom; and (3) whether an exemption from the statute would interfere with the state’s interest. The court concluded that the law in question did impose a substantial burden on the church’s religious convictions regarding the Lordship of Christ over the activities and ministries of the church (even though the church had sought and obtained a license for several years prior to challenging the law). However, the court concluded that the law was supported by a compelling state interest: “[T]he licensure requirement of the [law] is designed to protect the health and safety of children receiving care outside their home. Without hesitation, the court finds this to be a compelling state interest of the highest order.” Hazards that the licensing requirement was designed to protect against included “over-capacity, lack of supervision, accessibility to chemicals, structural hazards, and sexual or physical abuse”. To obtain a license, a child care facility had to comply with various requirements in the areas of physical structure, nutrition, immunizations, child/staff ratios, record keeping, and financial disclosure. In addition, caretakers were required to provide fingerprints that were used by the state in conducting a criminal background check (the state could prohibit persons who had been convicted of certain crimes from working in child care facilities). Finally, the court concluded that recognizing an exemption for church child care facilities would interfere with the state’s compelling interest in providing for the health and safety of children. The court referred to court rulings in several other states rejecting the claim that application of child care licensing laws to churches violated the constitutional guaranty of religious freedom. North Valley Baptist Church v. McMahon, 696 F. Supp. 518 (E.D. Cal. 1988).

Legal Developments

Taxation – Part 2

Sales

Richard R. Hammar, Attorney, CPA

Bio

State: California

Church Law and Tax 1989-01-01 Recent Developments

Taxation – Sales

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

• A California state appeals court ruled that Jimmy Swaggart Ministries was subject to state sales taxes on sales of literature and products in the state of California. Jimmy Swaggart Ministries (JSM) sold a variety of items in California, including tapes, records, mugs, bowls, plates, pen and pencil sets, vases, communion cups, candlesticks, prints, t-shirts, and replicas of the ark of the covenant. The state informed JSM that California law did not exempt religious organizations from sales taxes. JSM contended that the first amendment guaranty of religious freedom prevented the assessment of sales taxes on its products. Specifically, JSM argued that “since funds raised from the sale of religious materials are used to produce other religious materials to further spread the gospel and `to remain a going concern’ and payment of sales taxes diminishes the amount of funds available for this evangelistic work, the taxes are an unconstitutional burden on [the right of JSM] `to spread its religious beliefs through the spoken and written word’ as guaranteed by the constitution” as interpreted by previous decisions of the United States Supreme Court. The court rejected this argument, noting that “a state may justify a limitation on religious liberty by showing that it is essential to accomplish some overriding governmental interest.” Such an interest clearly was present in this case, concluded the court—a “state’s general interest in raising revenue.” The court emphasized that the sales tax is a tax “on the consumer, not the religious organization/seller; the religious organization/seller only collects the tax on behalf of the consumer.” Jimmy Swaggart Ministries v. State Board of Equalization, 250 Cal. Rptr. 891 (Cal. App. 4th Dist. 1988).

Legal Developments

Court Ruled That Confidential Statements Made by a Church Treasurer to an Episcopal Priest Were Not “Penitential Communications”

A California state appeals court ruled that confidential statements made by a church treasurer to

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Confidential and Privileged Communications

A California state appeals court ruled that confidential statements made by a church treasurer to an Episcopal priest were not "penitential communications" exempted by law from involuntary disclosure in a civil court.

Here are the facts. Late one night, the treasurer arranged a meeting with the priest after informing him that she "had done something almost as bad as murder." The treasurer, after requesting that their conversation be kept confidential, informed the priest that she had embezzled nearly $30,000 in church funds from a church account. The priest, with the permission of the treasurer, sought the assistance of the church wardens and vestry. Soon thereafter, the vestry decided that the embezzlement had to be reported to the local police.

At a subsequent criminal prosecution, the treasurer was convicted and placed on formal probation including four months in jail (prior to trial, she had fully repaid the church). The treasurer appealed her conviction on the ground that it had been based on her confidential statements to the priest which, in her opinion, were "penitential communications" that were privileged against disclosure in court.

California law specifies that "a penitent … has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication" made to a clergyman. A "penitential communication" is defined as a confidential communication to a clergyman "who, in the course of the discipline or practice of his church, denomination, or organization is authorized or accustomed to hear such communications and, under the discipline or tenets of his church, denomination, or organization, has a duty to keep such communications secret."

The court concluded that the statements made by the church treasurer to the priest were not privileged since they involved a "problem-solving entreaty" by the treasurer rather than "a request to make a true confession seeking forgiveness or absolution—the very essence of the spiritual relationship privileged under the statute." That is, the treasurer sought out the priest not for spiritual counseling, but to disclose her embezzlement and to seek his counsel on how to correct the problem. Further, the court observed (despite testimony to the contrary) that while Episcopal priests have a duty to maintain the secrecy of a confession by a penitent seeking God's forgiveness, there is no corresponding duty with respect to statements made to a priest in the course of ordinary "pastoral counseling."

The court also emphasized that the treasurer had "released" the priest from his assurance of confidentiality by consenting to his disclosure of the facts of the case to the church wardens and vestry. Unfortunately, the court's decision contradicts the very purpose of the "penitential communications" privilege.

One court, in a noted case, explained the purpose of the privilege as follows: "The fundamental thought is that one may safely consult his spiritual adviser …. When any person enters that secret chamber, [the law] closes the door upon him, and civil authority turns away its ear." Church members in California may be dissuaded from seeking pastoral counseling now that there is no assurance that communications made in confidence in the course of such counseling sessions are privileged from involuntary disclosure in a court of law. Such a crabbed interpretation of the California statute is unwarranted, and hopefully will be rejected by the state supreme court and by other appeals courts in the state.

People v. Edwards, 248 Cal. Rptr. 53 (Cal. App. 1st Dist. 1988)

Legal Developments

Financial Regulation – Part 1

Church Law and Tax 1988-09-01 Recent Developments Financial Regulation Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

State: California

Church Law and Tax 1988-09-01 Recent Developments

Financial Regulation

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

• A proposed rule drafted by the California Department of Corporations would affect the offering of debt securities (e.g., notes and bonds) by churches in California. The proposed rule applies only to applications by churches for a permit to sell debt securities in “limited offerings” (securities offerings made only to members, contributors, participants, or family members of such individuals). Among other things, the proposed rule specifies that if any portion of the proceeds from the sale of securities will be used for construction, a “detailed plan of construction and a statement of estimated cost shall be set forth” in the church’s application. Further, the cost estimate must be “substantiated by a qualified independent contractor” and the applicant must demonstrate that the proceeds from the securities will be “sufficient to complete the project.” The church is also required to submit a resolution of its governing board requiring that “all monies received from the sale of securities be deposited in a trust account available only for expenditures on account of the project for which the indebtedness is to be incurred.” Rule 260.140.72.

© Copyright 1988, 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: m46 c0588

Legal Developments

Equal Access Act Did Not Require a Public High School to Allow Students from an Evangelical Christian Group to Distribute Religious Materials

A California appeals court ruled that the federal "Equal Access Act" did not require a

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Freedom of Religion, Schools

A California appeals court ruled that the federal "Equal Access Act" did not require a public high school to allow students from an evangelical Christian group to distribute religious materials on school property or place religious advertisements in the school yearbook.

The Act forbids public high schools from restricting the use of school facilities during noninstructional hours by noncurriculum-related student-initiated groups solely on the basis of the content of a group's speech (religious, political, etc.) if the school has created a "limited open forum" by making those same facilities available to other groups.

In this case, concluded the court, the high school had not created a limited open forum since it had never made its facilities available to any noncurriculum-related student group. As a result, the school was not required to accommodate the activities of the religious group in question. Perumal v. Saddleback Valley Unified School District, 243 Cal. Rptr. 545 (4th App. Dist. 1988)

Legal Developments

Court Ruled Church Was Not Liable for Repeated Acts of Sexual Assault by a Sunday School Teacher

Can a church be liable for repeated acts of sexual assault on a minor by

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Child Abuse, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Can a church be liable for repeated acts of sexual assault on a minor by a Sunday School teacher? No, concluded a California appeals court in an important ruling.

A volunteer Sunday School teacher began picking up a second grade boy each Sunday morning and evening allegedly for church services, and on Thursday evenings to participate in a church visitation program. This relationship continued for two years, during which time the teacher frequently molested the boy. The boy's mother had no suspicion that her son was being sexually abused by the teacher. On the contrary, she felt the teacher was an ideal adult who was fulfilling the role of "second father" for her son, whose real father was suffering from a serious illness.

Eventually, the teacher was arrested and charged with 47 counts of child molestation, including 9 counts against the boy in question. Thereafter, a lawsuit was brought against the church, alleging assault, battery, and infliction of emotional distress. The state appeals court began its opinion by observing that an employer can be liable for the misconduct of employees or volunteers only if the misconduct was committed "within the scope of the employment."

The court continued: "Certainly [the teacher] was not employed to molest young boys. There is no evidence the acts occurred during Sunday School …. There is no evidence to suggest that [the teacher's] conduct was actuated by a purpose to serve [the church]. Rather, the acts were independent, self-serving pursuits unrelated to church activities. Finally, [the teacher's] acts of sexual molestation were not foreseeable 'in light of the duties he was hired to perform.' There is no aspect of a Sunday School teacher's or member's duties that would make sexual abuse anything other than highly unusual and very startling. We conclude [the teacher's] acts against [the boy] were neither required, incidental to his duties, nor foreseeable. They were, therefore, not within the scope of his employment."

The court based its decision in part on an earlier California appeals court ruling that had dismissed a lawsuit against the Archbishop of Los Angeles Diocese of the Roman Catholic Church for the alleged sexual molestation of a 16-year old girl by two priests. The court in the earlier case had similarly concluded that "it would defy every notion of logic and fairness to say that sexual activity between a priest and a parishioner is characteristic of the Archbishop of the Roman Catholic Church. There is simply no basis for imputing liability for the alleged conduct of the individual priests … to the Archbishop." Scott v. Central Baptist Church, 243 Cal. Rptr. 128 (4th Dist. App. 1988)

Legal Developments

Court Rejected Church’s Claim that the Guaranty of Religious Freedom Prevents Ministers from Being Sued for Defamatory Statements

A minister of the Worldwide Church of God wrote an article in a church publication

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Defamation, Freedom of Religion

A minister of the Worldwide Church of God wrote an article in a church publication that addressed the Church's newly developed and misunderstood doctrine on divorce and remarriage. The article contained statements that allegedly defamed the former spouse of a prominent Church official.

The court concluded that "our accommodation of the competing interests of our society—one protecting reputation, the other, the free exercise of religion—requires that we hold that in order for a plaintiff to recover damages for defamatory remarks made during the course of a doctrinal explanation by a duly authorized minister, he or she must show, by clear and convincing evidence, that the defamation was made with `constitutional malice,' that is with knowledge that it was false or with reckless disregard of whether it was false or not." Such a rule, observed the court, "strikes an appropriate balance between our citizens' reputational interests and our society's interest in protecting the right to free exercise of religion."

The court rejected the Church's claim that the constitutional guaranty of religious freedom prevents ministers from ever being sued for defamatory statements made in the course of doctrinal explanations. Such suits are constitutionally permissible, concluded the court, but a plaintiff has the difficult burden of proving "malice" by "clear and convincing evidence."

The court's ruling does not address the related issue of liability for allegedly defamatory nondoctrinal articles contained in church or denominational publications. For example, is it defamatory for religious denominations to state in a denominational publication that a particular minister has been disciplined or dismissed? This significant issue has been addressed by other courts . McNair v. Worldwide Church of God, 242 Cal. Rptr. 823 (2d App. Dist. 1987)

Legal Developments

Court Ruled Priest Could Not Sue Catholic Hospital for Wrongful Discharge

In a significant decision, a California state appeals court ruled that a Catholic priest who

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Freedom of Religion

In a significant decision, a California state appeals court ruled that a Catholic priest who had been discharged from his duties as a chaplain at a Catholic hospital could not sue the hospital for wrongful discharge.

The court observed that "the question of who shall fill the pastoral position is deemed so close to the heart of the religious purpose of the church or congregation as to be entirely an ecclesiastical matter protected from any secular judicial intrusion by the first amendment."

A chaplain at a church-operated hospital is subject to this rule, if his or her duties are primarily religious. Since "government standards have no place in selecting spiritual leaders," the civil courts cannot resolve lawsuits by discharged clergy who claim that their discharge was wrongful.

Presumably, the court added, the same rule might extend to any church employee whose role is primarily religious: "The free exercise of religion includes the right to run large religious institutions—certainly churches, seminaries, and schools, and hospitals, orphanages, and other charitable institutions as well. Such institutions can only be run through employees. It surely also follows that the churches are entitled to insist on undivided loyalty from these employees. The employee accepts responsibility to carry out part of the religious mission …. Churches rely on employees to do the work of the church and to do it in accord with church teaching. When an employee agrees to do the work of the church, he must be held to submit to church authority in much the same way as a member." O'Connor Hospital v. Superior Court, 240 Cal. Rptr. 766 (Cal. App. 6 Dist. 1987)

Legal Developments

Lawsuit that Initiated the National Debate Over Clergy Malpractice

A California appeals court recently overturned a state trial court's dismissal of the lawsuit that

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Clergy Malpractice, Counseling

A California appeals court recently overturned a state trial court's dismissal of the lawsuit that initiated the national debate over clergy malpractice several years ago.

The appeals court ruling sets the stage for a trial on the merits. The lawsuit was filed in 1980 by the parents of a young man who had committed suicide. The parents claimed that four ministers of a local church negligently counseled their son, dissuaded him from seeking psychiatric help, and advised persons that God sometimes approves of suicide.

The church and its ministers maintained that they had in fact referred the victim to a number of mental health professionals during the last months of his life, and that they could not be found liable for counseling person on the basis of biblical principles since this would violate the constitutional guaranty of religious freedom.

The appeals court, in a 70-page opinion, attempted to steer clear of the constitutional issue, emphasizing that the only issue was whether counselors can be guilty of "negligent failure to prevent suicide … whether those counselors are affiliated with a religious institution or not."

The court's ruling is appealable to the state supreme court. Nally v. Grace Community Church, ___ Cal. Rptr. ___(1987).

Legal Developments

Court Rulings on the Constitutionality of Including Invocations at Public High School Graduation Ceremonies

Two courts have ruled on the constitutionality of including invocations at public high school graduation

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Freedom of Religion, Schools

Two courts have ruled on the constitutionality of including invocations at public high school graduation ceremonies, with mixed results.

A California appeals court ruled that the inclusion of a religious invocation in a public high school graduation ceremony violated state and federal constitutional provisions prohibiting the establishment of religion. In reaching its conclusion, the court applied the three-part test often employed by the United States Supreme Court in deciding whether a challenged governmental action violates the first amendment's nonestablishment of religion clause: (1) the governmental action must have a secular purpose; (2) it must not have a primary effect that advances or inhibits religion; and (3) it must not create an excessive entanglement between church and state.

The inclusion of invocations at public high school graduation ceremonies violated all three of these tests, concluded the court. The court also observed that "the citizens of this country, and perhaps of this state in particular, are a people of highly diverse cultural, ethical and religious backgrounds," and that "any religious invocation … therefore almost certainly will not comport with the beliefs of a number of those persons present, and may in fact be offensive to some." Freedom to believe and to worship, concluded the court, "includes the freedom not to engage in the religious practices of the majority." Bennett v. Livermore Unified School District, 238 Cal. Rptr. 819 (1987).

A federal appeals court also struck down the inclusion of invocations and benedictions at public high school graduation ceremonies. However, the court acknowledged that invocations and benedictions would be constitutionally permissible if they were similar to the "civil invocations or benedictions used in public legislative and judicial sessions." Permissible invocations, noted the court, would be nonsectarian, nonproselytizing, and solemnizing.

The invocations and benedictions that the court invalidated employed the language of Christian theology and prayer, often invoking the name of Jesus Christ as the Savior. Such language "symbolically placed the government's seal of approval on one religious view—the Christian view," and was therefore impermissible. Stein v. Plainwell Community Schools, 822 F.2d 1406 (6th Cir. 1987).