Florida

Legal Developments

Florida Court Defers to Ecclesiastical Abstention Doctrine in Church Property Dispute

Appellate court says an existing relationship between a church and denomination prevents it from deciding a dispute.

Richard R. Hammar, Attorney, CPA
Bio

A Florida appellate court ruled that the “ecclesiastical abstention doctrine” prevented it from deciding whether a local church or a parent denomination owned the church’s property.

Key point 7-03.2 Some courts apply the “compulsory deference” rule in resolving disputes over the ownership and control of property in “hierarchical” churches. Under this rule, the civil courts defer to the determinations of denominational agencies in resolving such disputes.

A man was ordained as a pastor by the Church of the Nazarene, and founded the “Iglesia Church,” (“Iglesia”) serving as its pastor.

The bylaws of Iglesia were the “Manual of the Church of the Nazarene” (“the Manual”), which is the governing document of the denomination.

In 2003, Iglesia sought to purchase property but could not qualify for a mortgage, so the district (a regional denominational agency) agreed to co-sign for the mortgage. Title to the property was then conveyed to the district at the sale closing.

By 2007, the district had been assessed over $1 million in fines for municipal code violations on the property. The district then recorded a warranty deed transferring title and fee simple ownership of the property to Iglesia.

Notably, the warranty deed’s language contained no restrictions or reversionary rights in favor of the district, and simply conveyed title to the property to Iglesia.

In 2014, Iglesia resolved to withdraw from the denomination, formalizing a corporate resolution stating that Iglesia would take all necessary action required by the Manual to withdraw. Specifically, the corporate resolution provided that, at a meeting of Iglesias’s corporate directors, the following action was authorized:

To take all necessary action required by the Manual of the Church of the Nazarene to withdraw Iglesia from the Church of the Nazarene including the execution of all documents [necessary] to meet all requirements necessary to complete the withdrawal.

Thereafter, the district voted to declare Iglesia a “church in crisis” per the Manual, to remove the names of the local church board members as the corporate officers, to appoint replacement persons as the local church’s governing board, and to transfer the subject property from Iglesia back to the district.

The church sued the district to establish its control over the church property. The district insisted the “ecclesiastical abstention doctrine” applied because of its hierarchical relationship with Iglesia. The ecclesiastical abstention doctrine is a court-made doctrine based on the First Amendment. It bars civil courts from resolving internal church disputes involving matters of governance and doctrine.

The district asserted that, pursuant to this doctrine, a civil court “cannot adjudicate who, within a church, is authorized to run that church,” and “to resolve the dispute of ownership of real property in this case, a court would necessarily need to decide which faction within the church controls it.”

The trial court acknowledged that if resolving the case required it to interpret provisions of the Manual—a matter reserved for the church—then that would be inappropriate.

When a United Pentecostal Church pastor in Texas fought to regain his post after resigning due to allegations of immoral behavior, he sued and lost in a case that shows how some courts define “church hierarchies” and apply the “deference rule” to those hierarchies.

The court also acknowledged that the issue of what occurred when the church was declared to be “in crisis,” and how the board was replaced, “presented circumstances very similar to cases in which the courts do not get involved, as such cases appear to relate to internal decisions dealing with subordinate churches.”

However, the trial court ruled in favor of the church. The trial court said it was irrelevant whether the church was hierarchical or not, and instead applied “neutral principles of Florida real estate and corporate law to real estate transactions between two nonprofit Florida corporations.”

The district appealed.

The appellate court’s ruling

On appeal, the district again contended that the trial court should have dismissed the lawsuit pursuant to the ecclesiastical abstention doctrine.

The appellate court, applying a “two-pronged inquiry” established by the US Supreme Court (Watson v. Jones, 80 U.S. 679 (1872)) as well as prior Florida court decisions, concluded first that the trial court failed to give proper deference to church authority. Applying such deference, the appellate court said “the trial court was obligated to defer to [the district’s] characterization of the Church of the Nazarene as hierarchical in nature and to recognize, as a matter of law, that it is a hierarchical church.”

Continuing the inquiry, the appellate court secondly concluded the record showed Iglesia “was affiliated with the Church of the Nazarene, and that its withdrawal from the Church of the Nazarene would need to meet the Manual’s requirements,” raising questions of governance, control, and process “subject to the ecclesiastical abstention doctrine.”

The appellate court remanded the case to the trial court to correctly apply the two-pronged inquiry based on Watson and Florida precedent.

What this means for churches

This case demonstrates the ways civil courts carefully examine relationships between local churches and denominational agencies. Because of constitutional considerations, courts are concerned whether the ecclesiastical abstention doctrine bars them from resolving church disputes.

Here, the trial court reached one conclusion based on its examination, only for the appellate court to conclude the trial court made a mistake. The ecclesiastical abstention doctrine applied.

Additionally, this case again shows how church property disputes can trigger questions about governance and control between local churches and denominational agencies. In general, the United States Supreme Court has approved two methods for resolving church property disputes.

The first approach is the “principle of government” approach (sometimes called the “compulsory deference” approach), “whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.” (Watson v. Jones, 80 U.S. 679 (1871)).

The second approach is called the “neutral principles of law” approach. Under this approach, the civil courts “rely upon provisions of state statutory law governing the holding of property by religious corporations, upon language in the deeds conveying the properties in question to the local church corporations, upon the terms of the charters of the corporations, and upon provisions in the constitution of the [national church] pertinent to the ownership and control of church property.” Md. & Va. Churches v. Sharpsburg Church, 396 U.S. 367 (1970).

Note two important points:

First, while a majority of courts have endorsed the “neutral principles approach,” many apply the “compulsory deference rule,” which allows denominations themselves to sort out and resolve controversies over the ownership of church property.

Second, even in states recognizing the neutral principles approach, there are at least three ways for denominational agencies to respond:

1. Denominational agencies can create trust provisions in their governing documents that are affirmatively accepted by affiliated churches. While the Florida court did not mention it, an argument can be made that churches in some cases do affirmatively consent to provisions in the governing documents of a parent denomination that seek to impose a trust on church property if, for example, churches and their representatives comprise some or all of the voting delegates at denominational meetings in which governing documents are adopted and amended.

Under these circumstances, which are common, denominational governing documents are not imposed unilaterally by the national church on affiliated churches. Rather, the churches themselves, by their delegates and representatives, adopt and amend the denominational governing documents at the official meetings of the denomination. This provides a compelling case of an affirmative assent by affiliated churches to the provisions of their denominational governing documents, but it is an argument that the Florida court failed to address, perhaps because it was not raised.

2. It is possible in some cases that church property is subject to an implied or resulting trust in favor of a denominational agency. Again, there must be an affirmative manifestation of intent by a church that its property is subject to such a trust.

3. In Jones v. Wolf, 443 U.S. 595 (1979), the Supreme Court noted there may be cases where a denomination’s governing documents incorporate “religious concepts in the provisions relating to the ownership of property. If in such a case the interpretation of the instruments of ownership would require the civil court to resolve a religious controversy, then the court must defer to the resolution of the doctrinal issue by the authoritative ecclesiastical body.”  This means that it may be possible for the governing documents of national and regional churches to include provisions addressing ownership of local church property in a way that directly implicates religious doctrine. In such cases, the courts may be compelled to defer to the resolution of property disputes by the denominational authorities.

District Advisory Board v. Centro De Alabanza Oasis, 338 So. 3d 936 (Fla. App. 2022).

Legal Developments

City Ordered to Pay Fees, Damages for RLUIPA Violation

St. Pete Beach sought to restrict the beachfront church from soliciting donations from the public in exchange for the use of its parking lot.

Richard R. Hammar, Attorney, CPA
Bio

Key point 7-06.4 The federal Religious Land Use and Institutionalized Persons Act prohibits state and local governments from imposing a land use regulation in a manner that imposes a substantial burden on the exercise of religion unless the regulation is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

A federal court in Florida awarded a church $254,000 in attorneys’ fees and $15,000 in damages in a lawsuit alleging a city government’s actions constituted a violation of the federal Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).

The church sued after the city imposed its land use regulations to prohibit the church from allowing the public to park in its parking lot for free. The church solicited donations, but they were optional. The city fined the church $1,000.

The church alleged that the city violated RLUIPA by imposing its regulations to restrict the church’s use of its parking lot. The court entered a preliminary injunction securing the church’s religious rights with respect to the church’s use of its parking lot.
Wondering what RLUIPA means to your church or religious organization? Spend some time listening in on our virtual roundtable series addressing this important topic with Attorney and Church Law & Tax senior editorial advisor Midgett Parker.

The parties then reached a settlement agreement resolving all of the issues except for the amount of attorneys’ fees the church would be awarded.

In particular, the settlement agreement provided that the church may continue to allow the general public to park in its off-street parking lot and solicit charitable donations. The city also agreed to pay the church $15,000 in damages. Since the church was the prevailing party under RLUIPA, it became entitled to attorneys’ fees.

The court ultimately ruled the church was entitled to $254,000 in attorneys’ fees.

What this means for churches

RLUIPA specifies that state and local governments cannot subject religious organizations to a land use law that imposes substantial burdens on the free exercise of religion unless the law is supported by a compelling governmental interest. It specifies:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—(A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.

It should be noted that RLUIPA provides for attorneys’ fees to the prevailing party in any litigation.

The law states: “In any action or proceeding to enforce a provision of … the Religious Land Use and Institutionalized Persons Act … the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee.” (42 USC §1988)

This is an important point for church leaders to keep in mind when they succeed in lawsuits against state and local government agencies for violations of RLUIPA.

Pass-A-Grille Beach Community Church v. City of St. Pete Beach 2022 WL 1242482 (M.D. Fla. 2022).

Legal Developments

Sexual Abuse Conviction Upheld Despite the Defendant’s Claim His Pastor Broke Privilege

A man was sentenced to two life terms in prison for sexual battery and lewd or lascivious molestation of his stepdaughter.

Richard R. Hammar, Attorney, CPA
Bio

Key point 3-07.02 . In order for the clergy-penitent privilege to apply, there must be a communication that is made in confidence. This generally means that there are no other persons present besides the minister and counselee who can overhear the communication, and that there is an expectation that the conversation will be kept secret.

Key point 3-08.05. In most states, a counselee can waive the clergy-penitent privilege by disclosing the privileged communication to someone other than the minister. In some states the minister also may waive the privilege.

A Florida appeals court upheld a criminal defendant’s child abuse conviction despite his argument that it was improperly based on the testimony of a pastor in violation of the clergy-penitent privilege.

Background

A young child’s stepfather (the “defendant”) sexually abused her for several years beginning at age seven.

The Florida appeals court summarized the events that lead to arrest and subsequent sentencing of the defendant:

The victim did not tell her mother because she trusted the defendant and did not know it was wrong. The defendant began to tell the victim that what they were doing was not right. The sexual abuse would stop for a few weeks and then start up again. The victim began to feel guilty about what was happening, but the defendant instructed her not to tell anyone. He told her that he would be sent away or something bad would happen if her mother found out.

The mother noticed the victim was depressed when she was eleven. When the mother attempted to talk to the victim about her depression, the victim insisted she was just stressed from schoolwork. The defendant offered to talk to the victim. That weekend, he took her to get ice cream and then bought her a pregnancy test. When the mother found out about the pregnancy test, the defendant told her the victim was depressed because she thought she was pregnant.

Sometime later, the mother “saw the victim come out of the bathroom crying,” the court stated. “The mother followed the victim into her room, begging her to tell her what was bothering her.” The victim acknowledged that she and the defendant were having sexual relations.

When the mother confronted the defendant, he admitted having sex with the victim. The defendant then called his pastor. “Although the mother was not present during the call,” according to the court, “the defendant told her that he ‘told [the pastor] everything.’”

The court further explained:

The defendant attempted to put the mother in contact with his pastor so she could speak with him. When the pastor didn’t answer the call, the defendant told the mother that they should go to the church closest to their house and find someone who could help them. The defendant organized a meeting at Dunkin Donuts with a volunteer from the local church. There, the mother and church volunteer listened as the defendant admitted having sex with the victim.

Later in the week, the defendant approached the mother and victim. He promised everything was going to be okay and that he would stop.

Nevertheless, the abuse ended up being reported to the police. The defendant was arrested and charged with three counts of sexual battery upon a person less than 12 years of age and three counts of lewd or lascivious molestation. He was found guilty on all charges and sentenced to two life terms in prison.

The defendant appealed his conviction on the ground that the trial court erred in allowing the pastor and church volunteer to testify regarding the defendant’s admissions of guilt, which the defendant insisted were protected from disclosure by the clergy-penitent privilege. The appeals court affirmed the defendant’s conviction.

The conversation with the pastor

The Florida clergy-penitent privilege statute states that “[a] person has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication by the person to a member of the clergy in his or her capacity as spiritual adviser.”

A communication is “‘confidential’ if made privately for the purpose of seeking spiritual counsel and advice from the member of the clergy in the usual course of his or her practice or discipline and not intended for further disclosure except to other persons present in furtherance of the communication.”

The court noted:

This statute creates a four-part test to establish the existence of a privilege. First, the communication must be made to a “member of the clergy.” Second, the statement must be made for the purpose of seeking spiritual counseling or advice. Third, the information must be received in the usual course of the clergyman’s practice or discipline. And fourth, the communication must be made privately and not intended for further disclosure. . . .

The defendant first challenges the trial court’s determination that no privilege attached to his communication with his pastor because the clergy communications privilege provides for disclosure to persons “present in furtherance of the communication.” The State responds that the privilege does not apply because the mother was near the defendant during his conversation [with the pastor] and the defendant told her about the conversation immediately following it. We agree with the State.

The clergy communication privilege statute provides: “[a] communication between a member of the clergy and a person is ‘confidential’ if made privately . . . and not intended for further disclosure except to other persons present in furtherance of the communication.”

Here, the conversation with the pastor was not private. The pastor testified he could hear the mother over the phone during the conversation. And, the record reflects the defendant intended the conversation be communicated.

Nevertheless, the defendant argued that his disclosure to the mother was within the privilege’s protections because the mother was “present in furtherance of the communication.” We disagree.

The pastor testified he could hear the mother crying and talking in the background during the call. But the mother testified she was not present when the defendant called the pastor because she was inside her office.

Even if she was present, the defendant did not establish her presence was necessary to the furtherance of the communication. . . . (“[C]ommunications made in the presence of third parties not necessary to the furtherance of the communication . . . are not privileged.”)

The conversation with the church volunteer

In addressing the defendant’s conversation with the church volunteer, the court concluded:

[T]he communications privilege did not apply because the record does not establish the defendant reasonably believed the church volunteer was a “member of the clergy.” [The Florida clergy privilege] defines a “member of the clergy” as a “priest, rabbi, practitioner of Christian Science, or minister of any religious organization or denomination usually referred to as a church, or an individual reasonably believed so to be by the person consulting him or her.” . . .

[The defendant] testified on cross-examination that he sought “some sort of spiritual help” because the mother was going into a depressive episode and he wanted “someone“ to provide family counseling.”

[E]ven if the church volunteer could be considered a clergy member the communication was not private. . . . The church volunteer, defendant, and mother met at a Dunkin Donuts, a public area. . . . ([T]he clergy communications privilege does not protect communications made under circumstances “where confidentiality cannot be expected, e.g., in public facilities or large groups.”). And, the mother was present throughout the conversation.

What this means for churches

This case illustrates three points.

First, the clergy-penitent privilege only protects confidential communications. This requirement can be traced back to the original formulation of the clergy privilege when it was restricted to confessions.

However, as the privilege evolved beyond the confines of a confession, the requirement of confidentiality was retained. This makes sense. If a person is willing for others to overhear a conversation he or she is having with a minister, then there is little reason why jurors should be denied access to the contents of that conversation.

Most states have adopted the Uniform Rules of Evidence which defines confidentiality in the context of the clergy-penitent privilege as a communication “made privately . . . and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.”

There are two points to note about this definition. First, the communication must be “private,” and second, it must not be intended for further disclosure except to “other persons present in furtherance of the purpose of the communication.”

According to this definition, other persons can be present, and listening, when a person seeks out a minister for spiritual counsel so long as their presence is “in furtherance of the purpose of the privilege.”

Second, even if a conversation is privileged, the privilege can be waived because of the presence of a third party whose presence is not in furtherance of the communication.

Third, the privilege only applies to communications made to ministers. Conversations with nonministers, such as the church volunteer in this case, are not protected by the clergy privilege.

These considerations illustrate the importance of ministers being familiar with the clergy privilege in their state. If unclear, the assistance of legal counsel is imperative . Cuevas v. State, 310 So.3d 60 (Fla. App. 2021).

Legal Developments

Ex-Employee’s Lawsuit Against Church Fails Under Church Autonomy Doctrine

Florida appeals court also rejects agency law claim based on the doctrine.

Richard R. Hammar, Attorney, CPA
Bio

A Florida state appeals court ruled that it was barred by the “ecclesiastical abstention doctrine” from resolving a dismissed church employee’s lawsuit against her former church.

Background

A woman (the “plaintiff”) was hired as an office manager by a Catholic church.

Twelve years later, the church’s pastor and the plaintiff executed an employment agreement for the first time. The agreement, which purported to bind the church and local diocese, provided that the plaintiff would remain employed for four years, allowed termination only for cause, and required six months advance notice to avoid an automatic renewal.

Soon thereafter the local bishop appointed a new pastor for the church who promptly terminated the plaintiff’s employment without notice in violation of the employment agreement, allegedly due to a reduction in workforce.

Fired employee sues for breach of contract

Following her termination, the plaintiff sued the pastor, church, and diocese (the “church defendants”) for breach of her employment agreement. The lawsuit alleged that the former pastor had the exclusive authority to hire and fire anyone employed by the church, to enter into employment agreements with employees, and to operate and manage the church as he deemed appropriate.

The church defendants asked the court to dismiss the lawsuit on the basis of the “church autonomy doctrine” that generally bars the civil courts from resolving internal church disputes involving matters of “discipline, faith, internal organization, or ecclesiastical rule, custom or law.” Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 712-13 (1976).

The trial court dismissed the lawsuit, noting that the main dispute was “not whether an employment contract was breached, but whether or not [the former pastor] had the . . . authority within his capacity as pastor of [the church] to enter into an employment contract with [the plaintiff].”

“The trial court determined that resolving this issue would require it to delve into the duties of a pastor and church organization and it therefore lacked . . . jurisdiction to hear the case,” the appeals court stated.

The court can’t “wade into ecclesiastical polity”

The plaintiff appealed.

The state appeals court began its ruling by noting:

[W]e now address whether the trial court erred in dismissing [the plaintiff’s] complaint. In doing so, our inquiry is whether this dispute is one of discipline, faith, internal organization, or ecclesiastical rule, custom, or law. If so, secular courts lack the authority to resolve the dispute. . . .

The court continued:

At the heart of the dispute between [the plaintiff] and the Church Defendants is whether [the former pastor] had the authority . . . to obligate successor administrations of [the church] to retain his chosen employees. Simply put [the plaintiff] has requested that a secular court examine a hierarchical religious organization and determine who has the authority to speak and act on its behalf. Whether based on actual or apparent authority [the plaintiff’s] request would require a court to impermissibly wade into ecclesiastical polity, in violation of the First Amendment.

Take [the plaintiff’s] claim that [the former pastor] had actual authority to form [the plaintiff’s] employment agreement. That claim would require an assessment of the interrelationship between the Diocese and [the church] and who within the Catholic church has the power and authority to control the operation of the parishes. Making that assessment, as [the plaintiff] recognizes, would require a court probe into religious Canon Law to discern the respective legal significance and authority of a pastor, a parish, and the Diocese. The risk of constitutional violation posed by this inquiry is evident: incorrectly identifying or describing the authority of a pastor as well as the scope of ordinary acts of administration would undermine the right of a religious organization to choose a structure that best propagates its message. But what is more, the United States Supreme Court has warned that the First Amendment may be violated not only by judicial decisions, but by the very inquiry that results in a court’s findings and conclusions of law.

[The plaintiff’s] claims based on apparent authority do not fare any better. Indeed, resolving this dispute based on a claim of apparent authority would require examining the history and operation of the Parish, scrutinizing the governance patterns of the Diocese, and applying secular conceptions of agency to church governance. This exercise too would permit a court to seize control of the church’s polity to the extent a religious organization’s structure and governance failed to conform with secular expectations (emphasis added).

The court concluded:

Whether [the former pastor] had the actual or apparent authority to form the employment agreement and bind [the church] and the Diocese . . . is a quintessentially religious controversy—one that would require judicial inquiry into internal church matters—and constitutes a subject matter of which secular courts lack jurisdiction. . . .

Because the dispute in this case is one regarding ecclesiastical polity, a secular court’s only legitimate role is ensuring the dispute is committed to religious authorities. The ecclesiastical abstention doctrine bars consideration of [the plaintiff’s] claims, and the trial court appropriately dismissed her complaint (emphasis added).

What this means for churches

This case is important for the following reasons.

First, in explaining the church autonomy doctrine, the court noted that in cases involving disputes over polity and administration, the Supreme Court “has taken a more categorical approach, recognizing that secular courts may not interfere with matters of internal church governance or interpret a church’s written constitution or ecclesiastical law.”

Other Notable Cases

See this Recommended Reading page for several other court decisions on employment disputes.

As a result, any attempts by litigants to pursue legal claims against a church will fail for any claim that is based on an interpretation of a church’s governing documents, especially if the interpretation is contrary to the church’s understanding of its governing documents.

Second, the court rejected the plaintiff’s attempt to base church liability on actual or apparent authority. If the former pastor had actual or apparent authority to execute the employment contract with the plaintiff, then the plaintiff’s breach of contract claim against the church might be viable.

This is a significant ruling regarding actual or apparent authority, which is also known as agency law. Churches and denominational agencies are often sued on the basis of agency for the behavior of volunteers and lay employees, and denominational agencies are often sued for the liabilities of affiliated churches.

Consider two examples:

  • A church volunteer, while driving her vehicle on church business, is involved in a traffic accident with another vehicle. The driver of the other vehicle is seriously injured and sues the national denominational agency with which the church is affiliated, claiming that it is responsible for the volunteer’s negligence on the basis of agency.
  • A youth pastor engages in a sexual relationship with an adolescent in a church. The adolescent files a lawsuit against regional and national denominational agencies with which the church is affiliated, claiming that they are vicariously liable for the youth pastor’s conduct on the basis of agency.

In both of these examples, the plaintiffs rely on their interpretation of the governing documents of the church and denominational agency to support their claims of liability. Again, such appeals by plaintiffs to seek court interpretation of the governing documents of religious organizations will be unsuccessful under the church autonomy doctrine.

Napolitano v. St. Joseph Catholic Church, 308 So.3d 274 (Fla. App. 2020).

Legal Developments

Sexting Contributed to Court’s Sentencing a Man to a 52-Year Prison Term

Decision carries implications for how youth leaders communicate with teens.

Richard R. Hammar, Attorney, CPA
Bio

Key point 4-11.1. Clergy who engage in sexual contact with an adult or minor are subject to civil liability on the basis of several legal theories. They also are subject to criminal liability.

A Tennessee court affirmed a 52-year prison sentence for a defendant who engaged in sexually inappropriate conduct with a minor, including sexting.

An adult male (the “defendant”) sexually abused his minor stepdaughter from 2012 to 2016 when the victim was between 11 years old and 15 years old. The defendant was charged with several felony counts. Evidence introduced at his trial included more than 1,000 sexually explicit text messages and images on a cellphone and computer tablet.

What this means for churches

The defendant’s criminal offenses were based, in part, on his sexually oriented text messages with the victim. In many states, the transmission of sexually explicit text messages (“sexting”) via a cellphone or other electronic device constitutes a crime. This case demonstrates the severe consequences individuals can face if they perpetrate abuse against minors, including through illegal activities such as sexting.

Several courts have addressed the issue of criminal liability of pastors for engaging in sexting. Here is one example:

A New Jersey appeals court affirmed the prison sentence of a pastor who engaged in “sexting” and sexual contact with a 14-year-old girl. The defendant was charged with endangering the welfare of a child and criminal sexual contact for which he was sentenced to an aggregate term of six years in prison, parole supervision for life, and additional mandatory penalties. State v. Lopez-Durango, 2018 WL 4956853 (N.J. App. 2018).

For other examples of cases, see “Defending Youth Ministries from 8 Critical Risks.”

Relatedly, such messages also can be used as evidence in civil lawsuits brought against a church. For example, assume that an adolescent female in a church youth group claims that the youth pastor had nonconsensual sexual contact with her. She sues the church, claiming that it is responsible for the pastor’s acts on the basis of negligent hiring and supervision. The victim can then subpoena the youth pastor’s text messages to establish the truth of her claims.

A survey of church practices, which I wrote about in the above-noted article, indicated that 81 percent of youth pastors surveyed said they engaged in one-to-one communication with youth group members at least weekly. Many did so much more frequently. This level of personal and intimate communication with minors is troubling for several reasons. Most significantly, it opens the door to an intensification of the relationship that can lead to sexual intimacy either physically or indirectly.

Allowing youth leaders to communicate with minors without any supervision or accountability is a dangerous practice. It is no different than a church’s senior pastor texting adult females in the church. In some cases, such an unrestricted practice leads to the transmission of sexually explicit text messages or images (“sexting”) using a cellphone or other electronic device.

As noted above, sexting with minors is a felony criminal offense in many states. Such messages also can be used as evidence in civil lawsuits against youth pastors by adolescents with whom they had a virtual, or physical, relationship.

For more details on the above recommendations and additional suggestions for preventing vulnerabilities in children’s and youth ministries, see “Minimizing the Risks of Child Molestation in Churches“ and “Defending Youth Ministries from 8 Critical Risks.”

State v. Mason, 2020 WL 5015903 (Tenn. App. 2020).

Legal Developments

Are Ministers Always Exempt from State-Required Counseling Licenses?

A Florida appeals court’s decision offers a rare look at the elements necessary for a licensing exemption to apply.

Richard R. Hammar, Attorney, CPA
Bio

Key point 4-10. Every state strictly regulates the practice of both psychology and counseling. However, pastoral counseling within a church to members of the congregation does not constitute the unauthorized practice of either psychology or counseling. Clergy who establish counseling ministries outside of this limited context may be liable for the unauthorized practice of either psychology or counseling.

A federal district court in Florida addressed the exemption of pastoral counselors from a state counselor licensure law. The case is particularly important for ministers to note because courts rarely offer guidance about how such exemptions do—or do not—apply to them.

A detective launches an investigation

After a detective with the local sheriff’s department received an anonymous complaint about a minister’s (the “plaintiff”) practice of mental health care without a medical license, the detective enlisted the help of a Florida Department of Health agent to launch a criminal investigation.

That agent met with the plaintiff for two sessions in an undercover capacity. The detective thereafter applied for a warrant to search the plaintiff’s office. He based his search warrant application on the plaintiff’s alleged unlawful practice of psychology and marriage counseling without a state-issued license. The search culminated with an initial arrest of the plaintiff. Subsequent investigation, including interviews by prosecutors with the ministerial fellowship (“fellowship”) that the plaintiff claimed to serve under as a minister, resulted in additional charges against the plaintiff and two additional arrests.

Minister sues for false arrests and malicious prosecution

All 25 criminal charges against the plaintiff were ultimately abandoned, the reasons for which are unclear. The plaintiff then filed a civil lawsuit claiming false arrests and malicious prosecution. He named the detective, the sheriff’s department, the prosecutors, the Christian counseling association (“association”) related to the fellowship that he received training from, and the fellowship as co-defendants. The plaintiff claimed that the detective’s application for a search warrant “intentionally or recklessly omitted” any reference to the “Christian counselor exemption.” He also claimed his assertion of the exemption was overlooked by prosecutors, based at least in part on “false” statements about his credentials and status made by the fellowship’s president before the additional charges were filed.

The plaintiff had no medical training, and he had no license to provide mental health care as a psychologist or therapist in the medical sense. Instead, the plaintiff asserted he was trained by the association and referred by it to its related fellowship for ministerial sponsorship, which thus made him eligible for the following clergy exception under Florida’s counseling license requirement:

No provision of this chapter shall be construed to limit the performance of activities of a rabbi, priest, minister, or member of the clergy of any religious denomination or sect, or use of the terms “Christian counselor” or “Christian clinical counselor” when the activities are within the scope of the performance of his or her regular or specialized ministerial duties and no compensation is received by him or her, or when such activities are performed, with or without compensation, by a person for or under the auspices or sponsorship, individually or in conjunction with others, of an established and legally cognizable church, denomination, or sect, and when the person rendering service remains accountable to the established authority thereof.

The plaintiff claimed he was a licensed minister

A state appeals court reviewing the plaintiff’s claims noted that the state had alleged that there was no evidence that the plaintiff served as a church pastor in the regular understanding of the term, nor did the plaintiff report membership in a denomination. His ministerial credentials instead were through the fellowship. Further:

The Plaintiff did not say where he went to divinity or theological school. The Plaintiff reports only Christian counseling education. He reports Master’s and doctorate level degrees in the Christian counseling field from [a religious university]. The Plaintiff reports Christian counselor training through the [association]. He describes a very wide range of therapeutic subjects taught by the [association]. They include Integrated Marriage and Family Therapy, Child and Adolescent Therapy, Substance Abuse and Addiction Therapy, Sexual Therapy, Death and Grief Therapy, Crisis and Abuse Therapy, Domestic Violence and Intervention Therapy, and Group Therapy. He asserts that the [association]has given him board certification in the areas of Temperament Therapist, Crisis and Abuse Therapy, Integrated Marriage and Family Therapy, and Group Therapy. Thirdly he asserts that the [association]has given him advanced board certification in the areas of Death and Grief Therapy, Child and Adolescent Therapy, Substance Abuse and Addiction Therapy, and Group Therapy.

The plaintiff claimed the association referred him to the fellowship, where he is a licensed minister who is permitted to perform all clerical and religious functions. The plaintiff argued “he paid dues to the [fellowship], and that his minister’s license was up to date at the time of the criminal investigation.”

The state appeals court dismissed all but one claim brought by the plaintiff against the detective. The court dismissed the claims brought against the assistant state attorney and the sheriff’s department. However, the court allowed the plaintiff to pursue certain claims against the association and fellowship, due to “a sufficient degree of interconnectedness between” the association and fellowship and the detective and prosecutors. The court highlighted the plaintiff’s assertion that the association and fellowship “work hand in hand to train, license and sponsor individuals interested in pursuing Christian counseling” as a reason why the litigation could continue against both.

What this means for churches

This case is important, not because the lawsuits were allowed to proceed against the association and fellowship, although that outcome is also notable. Rather, the case is important because it is one of the few decisions on record addressing the exemption of pastoral counseling from state licensure laws.

All states regulate the practice of psychology, counseling, and related practices. But pastoral counseling is exempt from licensure under such laws so long as specified conditions are met. As this case illustrates, those conditions under Florida law (quoted above) include:

  • No provision of this chapter shall be construed to limit the performance of activities of a rabbi, priest, minister, or member of the clergy of any religious denomination or sect, or use of the terms “Christian counselor” or “Christian clinical counselor” when the activities are within the scope of the performance of his or her regular or specialized ministerial duties;
  • No compensation is received by him or her; or
  • When such activities are performed, with or without compensation, by a person for or under the auspices . . . of an established and legally cognizable church, denomination, or sect, and the person rendering service remains accountable to the established authority thereof.

Ministers who engage in counseling should be familiar with the conditions that apply to the pastoral counseling exemption under state law. Ruperto v. Snyder, 2019 WL 4146434 (Fla. App. 2019).

Legal Developments

First Amendment Bars Court from Resolving Dismissed Member’s Lawsuit

The ecclesiastical abstention doctrine prevents courts from reviewing disputes concerning “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required.”

Richard R. Hammar, Attorney, CPA
Bio

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

A Florida court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving a dismissed member’s lawsuit against his former church.

A church member (the “plaintiff”) had served as a church deacon for three years when the pastor and deacon-board chairman called a special meeting to accuse him of heresy. The plaintiff asserted that the pastor and chairman had defamed him by falsely accusing him “of being a Heretical Apostate committing acts against [the] Church, Spiritual Beliefs, Faith and God orally and publicly in the presence of members of [the] Church.”

In further support of his defamation claim, the plaintiff claimed that the pastor and chairman had written an open letter, made available to all members of the church, disparaging the plaintiff’s good name. That letter, signed by the pastor and deacon chairman, told the plaintiff that his membership was terminated. The letter explained that the plaintiff’s public and private “heretical statements” regarding the inerrancy of the Bible and the divinity of Jesus Christ caused the termination. The letter also noted that the church’s action “was required to maintain the integrity of the church’s doctrine, and to protect the church from false teaching.”

The plaintiff sued the pastor, chairman, and board for defamation, and sought $3 million in damages. A trial court dismissed the lawsuit on the basis of the “ecclesiastical abstention” doctrine which generally bars the civil courts from resolving internal church disputes over questions of doctrine or practice.

A state appeals court agreed with the trial court’s ruling:

The ecclesiastical abstention doctrine, also known as the church autonomy doctrine, is based on the Free Exercise Clause of the First Amendment. The doctrine prevents courts from reviewing disputes concerning “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required.”

A lawsuit does not, of course, become a theological controversy just because one of the litigants is a church. We therefore must consider “the nature of the dispute and whether it can be decided on neutral principles of secular law without a court intruding upon, interfering with, or deciding church doctrine. . . .” We conclude that resolving any claims in the plaintiff’s . . . complaint would require a court to intrude into church doctrine in violation of the ecclesiastical abstention doctrine. Therefore, the doctrine prevents litigation of this dispute and the lower court lacks jurisdiction to proceed.

What this means for churches

This case is an excellent example of the impact of the ecclesiastical abstention doctrine (sometimes called the “church autonomy” doctrine) on church disputes. Internal church disputes that concern “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them” are beyond the reach of the civil courts, and cannot be revived by appeals to “neutral principles of law.” Springhill Missionary Baptist Church v. Mobley, 251 So.3d 281 (Fla. App. 2018).

Legal Developments

Compelling Priest to Disclose Confidential Information Violated Religious Freedom Restoration Act

Case suggests that the RFRA may also serve as an alternative basis, in addition to clergy-penitent privilege laws, for protecting confidential communications with clergy from involuntary disclosure.

Richard R. Hammar, Attorney, CPA
Bio

Key point 3-08.03. In most states, either the minister or counselee can assert the clergy-penitent privilege, although the minister can do so only on behalf of the counselee. This means that the minister cannot independently assert the privilege if the counselee chooses not to do so.

Key point 12-02.2. Congress enacted the Religious Freedom Restoration Act to prevent the government from enacting any law or adopting any practice that substantially burdens the free exercise of religion unless the law or practice is supported by a compelling government interest. The compelling government interest requirement applies to any law, including neutral laws of general applicability. The objective of the Act was to repudiate the Supreme Court’s decision in the Smith case (1990) in which the Court ruled that neutral laws of general applicability that burden the free exercise of religion do not need to be supported by a compelling government interest in order to satisfy the First Amendment. In 1997, the Supreme Court ruled that the Act was unconstitutional. However, other courts have limited this ruling to state and local legislation, and have concluded that the Act continues to apply to federal laws .

A Florida appeals court ruled that a trial court’s ruling compelling a priest to disclose confidential information shared with him in the course of a confessional violated the state Religious Freedom Restoration Act.

In June 2017, an adult male (the “defendant”) was charged with committing sexual offenses against a minor. The charged offenses were alleged to have occurred when the alleged victim was 7 years old and when she was 13 years old. The criminal investigation of the defendant began after the alleged victim, then 17 years old, disclosed to her mother that she had been sexually abused by the defendant.

Prior to trial, the prosecutor informed a priest that he would be called as a witness to testify that the victim had disclosed to him, during confession, that the defendant had molested her. The priest filed a motion for a protective order protecting him from having to disclose confidential information shared with him by the victim in the course of a confession. The motion further alleged that:

  • Requiring the priest to testify as to any aspect of a confession would violate the “sacred seal of the Catholic Sacrament of Reconciliation” and, as such, would violate the priest’s constitutional rights under the First Amendment guaranty of religious freedom.
  • Any such communication would be privileged under the Florida clergy-penitent privilege statute, which provides that a person “has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication by the person to a member of the clergy in his or her capacity as spiritual advisor.”
  • The coercion of his testimony would violate Florida’s Religious Freedom Restoration Act (FRFRA).

The trial court focused almost exclusively on the application of Florida’s clergy-penitent privilege to the priest. Specifically, the trial court determined that: (1) the communications between the priest and the victim were privileged, (2) the privilege could be asserted by both the priest and victim, and (3) the priest had partially waived the privilege during a conversation with the alleged victim’s mother and her friend to the extent that he disclosed the identity of the penitent and that “the subject of the disclosure was sexual abuse.” The court concluded that the priest could be questioned about “the existence of the confession, the identity of the penitent, and that the subject matter involved sexual abuse.” However, the court granted the motion for protective order “as to the content of any other communications between the priest and the victim during the Sacrament of Reconciliation, and his impressions, actions or omissions as they relate to communications made during the Sacrament of Reconciliation.”

A state appeals court concluded that the case was controlled by the application of FRFRA:

FRFRA expressly provides that the government shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the government demonstrates that the application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. . . . A substantial burden on the free exercise of religion is one that either compels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires.

The appeals court noted that if the priest complies with the State’s demand that he testify as to his communications with the victim during the Sacrament of Reconciliation, “he would be forced to engage in conduct that is prohibited by the Catholic Church (and, indeed, would subject him to possible excommunication from the Church). Thus, the trial court’s order can only be upheld if the State establishes that coercing his testimony furthers a compelling governmental interest and is the least restrictive means to further that interest.”

The court acknowledged that the State has “a compelling governmental interest in prosecuting sex offenses perpetrated against children. . . . However, we disagree with the State’s contention that coercing the priest to testify regarding communications that occurred during the Sacrament of Reconciliation, in contravention of his sincerely held religious beliefs, would be the least restrictive means to further its compelling governmental interest of prosecuting the defendant”:

First, as the State acknowledges, the testimony of the priest would, at most, be corroborative evidence. There is no allegation that he was a witness to any sexual abuse. Second, this case does not involve a child victim who, because of his or her tender age, might be unable to adequately testify as to the alleged sexual abuse. The alleged victim in this case is now an adult, and there is nothing in the record that suggests that she would be unable to testify as to the relevant events. Third . . . the State could seek to have the alleged victim testify as to her purported prior disclosure of sexual abuse to the priest.

The court quashed the trial court’s order to the extent that it required the priest to “respond to the subpoena and . . . be questioned about the existence of the confession, the identity of the penitent, and that the subject matter involved sexual abuse.”

What this means for churches

About half the states have adopted Religious Freedom Restoration Acts (RFRA) extending the religious freedom protections of the federal RFRA to state and local governments. This case suggests that these Acts may also serve as an alternative basis, in addition to clergy-penitent privilege laws, for protecting confidential communications with clergy from involuntary disclosure. Ronchi v. State, 248 So. 3d 1265 (Fla. App. 2018).

Legal Developments

Woman’s Estate Plan Leaving Funds to Church Can Not Be Subverted by Caregiver’s Undue Influence

Church Law and Tax Report Woman’s Estate Plan Leaving Funds to Church Can Not Be

Church Law and Tax Report

Woman’s Estate Plan Leaving Funds to Church Can Not Be Subverted by Caregiver’s Undue Influence

Key point 4-03. A gift to a church or minister may be challenged on the ground that the recipient unduly influenced the donor into making the gift. There are several factors the courts will consider in deciding whether or not undue influence occurred, including the age and mental health of the donor, and the presence of independent legal advice. Undue influence generally must be proven by “clear and convincing” evidence.

A Florida court ruled that an elderly woman’s estate plan that left her entire estate to her church could not be altered through the undue influence of the woman’s caretaker, who attempted to redirect the estate to herself. An elderly woman (the “decedent”) and her late husband executed a family trust and pour-over wills in 2009, several months before he died. The trust provided that, if the husband died first, then upon his wife’s death, the entire estate would go to their church. When the wife died, the estate was valued at $350,000 consisting of bank accounts. No document existed purporting to take these accounts out of the estate left to the church—until a few days before the wife died.

Mary was the decedent’s neighbor, friend, and health-care surrogate. She had hired her former daughter-in-law to help care for the decedent. In contrast to the disinterested witnesses who testified that the entire estate was intended to go to the church, Mary and her former daughter-in-law testified that the decedent told them she did not want the church to have the money from the credit union accounts. They acknowledged that she never expressed this contrary intention in the presence of other people. They said that the decedent had asked Mary to get a “payable on death” (POD) form from the credit union and fill it out to give Mary 75 percent of the credit union accounts, 10 percent each to her son and daughter, and the remaining 5 percent to her former daughter-in-law. Mary obtained the POD form and completed it in this manner, with the beneficiary information appearing only on the first page of the form. She obtained the decedent’s signature on the second page.

Mary’s former daughter-in-law took the POD form back to the credit union the next day, which was the day the decedent was hospitalized because of her final illness. After the decedent’s death, and about a week after Mary was appointed personal representative of the estate, the credit union disbursed the credit union account funds pursuant to the POD designation.

The church filed an Objection to Inventory and petition to remove Mary as personal representative, arguing that Mary had wrongfully failed to include the credit union accounts in the inventory. The trial court evaluated the credibility of the testimony of Mary and her former daughter-in-law on these points and found it unconvincing. The court found that Mary had used her confidential relationship with the decedent and actively procured the diversion of the decedent’s estate from the church to her and her relatives. As a result of its findings, the court invalidated the POD designation and removed Mary as personal representative, and ordered her and her family to return their distributions to the court. Mary appealed.

Invalidating a POD for undue influence
The appeals court began its opinion by observing that “contrary to Mary’s arguments, Florida law allows a POD designation to be invalidated for undue influence. Florida has a legitimate public policy interest in preventing abuse of fiduciary or confidential relationships … . If a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influence arises.”

The court concluded:

A POD account, although not in the strictest sense a testamentary device and not subject to the formalities required of wills, functions as a will substitute and partakes of many of the same equitable considerations that apply to testamentary transfers. Florida law and policy against abuse of fiduciary relationships apply to contracts, inter vivos transfers, and testamentary transfers, and are properly applied to determine whether a POD designation has been obtained through undue influence. We affirm the trial court’s conclusions that, on the evidence presented, Mary obtained this POD designation through undue influence, and the gift is void.

Ordering Mary to return funds to the estate
Mary claimed that the trial court had no authority to order her and her family to return the credit union funds to the estate. The appeals court disagreed: “Although the trial court could have exercised discretion to enter a money judgment or provide other remedies, the trial court properly entered an order requiring Mary to return to the estate the amount of money improperly disbursed from the credit union accounts.”

The court added that Mary and her family members would be responsible for returning any interest earned on the accounts, and that any failure to comply with the court’s order would amount to contempt of court, which could result in imprisonment.

What This Means For Churches:

This case illustrates an important point: The intention of long-term and infirm church members to leave some or all of their estate to their church cannot be subverted by caregivers and others who abuse their confidential and fiduciary relationship to unduly influence these donors into redirecting their estate to them. As this case illustrates, the law provides a remedy to unwind such unethical practices. Keul v. Presbyterian Church, 180 So.3d 1074 (Fla. App. 2015).

Legal Developments

Court Expresses Increased Interest in Cellphone Use and Accident Liability

Case underscores the need for cellphone usage policies for employees and volunteers who drive for church-sponsored events.

Richard R. Hammar, Attorney, CPA
Bio

Key point. The use of cellphones by church employees and volunteers while driving vehicles on church business may expose the church to substantial liability in the event of an accident caused by distracted driving.

A Florida court ruled that the cellphone records of a driver who was killed when her car struck a truck could be examined by the trucking company's attorney to determine if the decedent was using her cellphone at the time of the accident.

Background

A truck operated by a trucking company collided with a vehicle driven by a woman, who was killed in the accident. Six months later, the decedent's estate filed a wrongful death action, but the trucking company denied liability. It asserted that the decedent's own negligence in operating a cellphone at the time of the accident was the sole cause of the accident, and therefore the trucking company could not be found liable for her death.

On several occasions the trucking company requested data from the decedent's cellphone, which had been kept unused since the accident. And while the trucking company received some calling and texting records from the decedent's wireless provider, other cellphone data was not disclosed, such as use and location information, internet website access history, email messages, and social and photo media posted and reviewed on the day of the accident.

Appeals court permits “limited and strictly controlled inspections” of information

The trucking company asked the trial court for an order permitting an expert to inspect the cellphone's data on the day of the accident. The decedent's estate objected to the cellphone inspection citing the decedent's privacy rights under the state Constitution. After a hearing, the trial court granted the trucking company's request.

The court's order allowing the inspection recognized both the trucking company's discovery rights and the privacy interest asserted by the decedent's estate. It stressed the relevance of the requested information, citing cellphone records showing that the decedent had been texting in the minutes preceding the accident; testimony from two witnesses indicating that the decedent may have been utilizing her cellphone at the time of the accident; and testimony from the responding troopers supporting the assertion that the decedent was using her cellphone when the accident occurred.

The order also recognized the decedent's privacy interests and set strict parameters for the expert's confidential inspection. It provided that the expert could examine the cellphone in the presence of the estate's counsel at an agreed date, place, and time. The order specified certain conditions to be followed by the expert, including the following:

(1) Install write-protect software to ensure no alteration of the phone's hard drive would be made during the inspection;

(2) Download a copy of the cellphone's hard drive, making a master copy, a review copy, and a copy for the decedent's counsel;

(3) Return the cellphone to the decedent's counsel immediately after copying the hard drive;

(4) Review only the data on the hard drive for a nine-hour period on the day of the accident, with the inspection to include call records, text messages, web searches, emails sent and received, uploads, downloads, data changes, and GPS data.

The decedent's estate immediately appealed this order, as overbroad, and a state appeals court affirmed the trial court's order compelling limited disclosure. It rejected the estate's contention that by allowing the inspection of "all data" on the decedent's cellphone the inspection amounted to "an improper fishing expedition in a digital ocean."

The appeals court disagreed, noting that "privacy rights do not completely foreclose the prospect of discovery of data stored on electronic devices. Rather, limited and strictly controlled inspections of information stored on electronic devices may be permitted."

The court noted that the trial court "closely considered how to balance the trucking company's discovery rights and the decedent's privacy rights. The order highlighted the relevance of the cellphone's data to the trucking company's defense and it set forth strict procedures controlling how the inspection process would proceed." The court continued:

The trial court didn't allow the inspection simply because the trucking company made assertions that decedent was on her cell phone, or because the decedent happened to possess a cell phone in her car. This case does not involve an unanchored fishing expedition as the decedent's counsel alleges. Rather, the trucking company supported its motion to inspect the cell phone with specific evidence. It cited cell phone records showing that the decedent was texting just before the accident; two witnesses indicated that the decedent may have used her cell phone at the time of the accident; and troopers responding to the accident lent support to the conclusion that the decedent was using her cell phone when the accident occurred. Additionally, no one has disputed that the decedent's smartphone may contain very relevant information. As the trucking company alleged, "With GPS enabled phones, such as [the decedent's] iPhone, there is a very high probability that if the GPS feature were enabled, we can look at the data and figure out conclusively what happened in the moments leading up to the accident, i.e. whether she stopped at the stop sign or not and whether she was texting, Facebooking, Tweeting, or nothing at the time of the accident."

The court concluded that "it has long been true that the more relevant and necessary the desired information is to a resolution of the case, the greater the state's interest in allowing discovery of the information."

The court conceded that the countervailing privacy interest involved in this case (the discovery of data on a cellphone) is also very important. But it concluded:

It would appear that the only way to discover whether the decedent used her cell phone's integrated software at the time of the accident, or drafted a text, dialed a number, searched for contact information, reviewed an old message, or used any other of the smartphone's many features, is by broadly inspecting data associated with all of the cellphone's applications. Or, at least, if an effective and superior privacy-respecting plan for segregating inspection-permissible from impermissible data exists, it hasn't been presented to the court. And so, we cannot conclude that the trial court violated the essential requirements of law by permitting a thorough inspection of the cellphone for the nine-hour period on the day of the accident.

What this means for churches

This case represents a trend in recent years of courts permitting access to cellphone records to determine if either or both parties to a collision was operating a cellphone at the moment of, or shortly before, the collision.

As this case demonstrates, the evidence can have a dramatic impact in determining fault. This underscores the need for churches to adopt cellphone usage policies for employees and volunteers who drive vehicles (their own, or the church's) in the course of performing their duties. Such a policy should include some or all of the following elements: (1) Comply fully with state laws that regulate and restrict the use of cellular devices while driving. These laws often change, so be sure you are familiar with current legal restrictions. (2) Ban drivers from using a cellphone for texting, performing internet searches, making phone calls, or any other use of a smartphone. (3) Benchmark, meaning obtain the cellphone policies of your public school district, and local units of national charities, to guide you in formulating your own policy. (4) Consult with legal counsel in the preparation or review of the policy.

Church leaders would never allow employees or volunteers to drive while intoxicated. Distracted driving due to smartphones must be viewed in the same light, and must bear the same consequences in terms of discipline or termination of employment. Antico v. Sindt Trucking, Inc., 148 So.3d 163 (Fla. App. 2015).

Legal Developments

Benevolence Funds and Money Laundering

A court affirmed a pastor’s conviction for grand theft and money laundering as a result of his use of a church benevolence fund to pay more than $100,000 in personal expenses.


Key point 7-21. Embezzlement refers to the wrongful conversion of funds that are lawfully in one's possession. Embezzlement is a common occurrence in churches because of weak internal controls.

A Florida court affirmed a pastor's conviction for grand theft and money laundering as a result of his use of a church benevolence fund to pay more than $100,000 in personal expenses.

The pastor served as pastor of a local congregation from 1995 until 2009. The church received donations from various sources, and the donations were divided among four bank accounts: the mortgage account, the operating account, the scholarship account, and the benevolent account. Parishioners could designate which account their contributions should be deposited, and each account had a dedicated use. As to the benevolent account, the funds were to be used solely to help those in need in the community, and the church gave the pastor sole control over the use of that account. As to the other accounts, the pastor had no more than joint control; however, while the church required two signors on every check, the banks where the accounts were held did not.

Between 2007 and 2009, the pastor paid numerous personal bills with money from the benevolent account, so much so that it amounted to his essentially using the account as an extension of his personal checking account. To avoid detection of his use of the funds, he manipulated the benevolent and mortgage accounts so as to conceal many of the improper transactions. For example, he would write a check from the mortgage account and deposit that check into the benevolent account, which was kept at another bank. He then would write a check from the benevolent account to himself or to petty cash and then cash that check and "pocket" the proceeds by depositing them into his personal account at another bank. The evidence at trial showed that the pastor managed to pilfer approximately $115,204 in church funds over two years, and approximately $29,180 of that total resulted from the disguised transactions between the mortgage and benevolent accounts.

In 2009, after the church treasurer discovered certain irregularities in its books, the church contacted the police. The state then conducted its own forensic accounting investigation and charged the pastor with one count of scheme to defraud, one count of grand theft of $100,000 or more, and four counts of money laundering. The jury found the pastor guilty on all counts, and he was sentenced to a prison term of eight years. However, the trial court reduced the pastor's sentence on the ground that the church's need for restitution (which would not be possible if the pastor was serving an eight-year prison sentence) outweighed the need for his incarceration.

A state appeals court affirmed the pastor's conviction, and rejected the trial court's reduction in the pastor's sentence.

Money Laundering

Florida law defines money laundering as entering into a financial transaction knowing that the funds involved are the proceeds of unlawful activity and that the transaction is designed to conceal or disguise the nature of the proceeds of the specified unlawful activity. The court affirmed the jury's finding that the pastor had committed the crime of money laundering:

Here, the evidence presented at trial was sufficient to establish the required elements of both a specified unlawful activity and concealment. To prove that the pastor committed a specified unlawful activity, the state presented evidence that he repeatedly wrote checks to himself from the benevolent fund, a fund intended for the needy in the community, which he—with his Jaguar, salary, and church-funded travel account—clearly was not. With these improper and unauthorized acts, his theft was completed, thereby satisfying the "specified unlawful activity" element of the money laundering statute.

The court rejected the pastor's defense that his transfer of the church's funds cannot constitute money laundering because the funds themselves were not "the proceeds of some form of unlawful activity." Instead, they were lawful donations to the church. The court concluded:

The pastor misunderstands the focus of this charge … . He improperly and without authorization converted money intended to pay the church's mortgage by transferring it into an account holding funds intended to help the needy and then converted the funds again to satisfy his own personal needs. This evidence was sufficient to establish the "specified unlawful activity" element of the offense of money laundering.

As to the concealment element of its case, the court noted that the state presented evidence that the pastor

wrote checks from the mortgage account to the benevolent account and then wrote checks from the benevolent account to himself. He then cashed the checks and deposited the cash into his personal account. These multiple transactions involving three different banks served to disguise the original ownership of the money, thereby satisfying the concealment requirement under the money laundering statute … . And the fact that he directed all of the stolen funds through the benevolent account—the account over which he had sole discretion—served to further cloud detection.

Reduced Prison Sentence

The court acknowledged that state law lists several circumstances under which a downward departure of a prison sentence may be appropriate. For example, a court may reduce a sentence when "the need for payment of restitution to the victim outweighs the need for a prison sentence." But the court concluded that the pastor had failed to present evidence of the church's need for restitution. Instead, his evidence consisted of the testimony of several church members who asked the court to have mercy on the pastor, not because the church needed restitution, but because the church elders themselves had forgiven him and did not want him to face additional hardship. In addition, there was evidence that other pastors from the community indicated that they would help the church recover its stolen funds through fundraisers regardless of the pastor's fate.

What this means for churches

This case illustrates the risk of theft and money laundering that arise when churches use a benevolence fund that allows a pastor to unfettered discretion in the distribution of the fund. Such funds should never be used without adequate safeguards, including the following:

• the church gives a minister discretion to distribute the fund only for specified purposes (such as relief of the needy) that are consistent with the church's exempt purposes;

• the church prohibits (in a written policy) the minister from distributing any portion of the fund for himself or herself or any family member;

• all distributions from the fund must be approved by the church board, and validated by dual signatures; and

• the church or its governing board retains administrative control over the fund to ensure that all distributions further the church's exempt purposes.

Some pastors insist on secrecy in their distribution of discretionary account funds. They claim that they alone are aware of some needs, and need the flexibility to respond quickly without waiting for board approval. While these considerations are important, they are superseded by the need for transparency and accountability.

Discretionary funds create another risk—the recognition of taxable income to the pastor having sole, unfettered authority to distribute the funds as he or she sees fit. Pastors who have the authority to distribute discretionary or benevolence funds to anyone they wish may be deemed to have realized taxable income under the "constructive receipt" doctrine. This important doctrine is addressed fully in chapter 4 of Richard Hammar's annual Church & Clergy Tax Guide (ChurchLawAndTaxStore.com). Hardie v. State, 162 So.3d 297 (Fla. App. 2015).

Legal Developments

Father Asks Court to have Son’s Ashes Divided

When parents disagree on the burial state for their son, ownership of remains comes into question.

Church Law and Tax Report

Father Asks Court to have Son’s Ashes Divided

When parents disagree on the burial state for their son, ownership of remains comes into question.

Who owns the remains of deceased persons whose bodies are cremated? This novel question was addressed by a Florida court in a recent case. A 23-year-old man, single and without children, died in a tragic automobile accident. He left no will and no written or verbal instructions for disposition of his body. After their son’s death, the parents agreed to have his body cremated. They were unable, however, to agree on the final disposition of his ashes. The mother wanted to bury the son’s ashes in Florida. The father wanted to bury the son’s ashes in a family burial plot in Georgia.

The father petitioned a court to declare the ashes “property” to be disposed of according to probate law. This would allow each parent to dispose of half of the ashes as they desired. Specifically, the father requested the court to order that the ashes be divided into two containers, and the funeral home directed to distribute the containers to the individual parents. For religious reasons, the mother opposed having the ashes divided. After a hearing, the trial court found that the ashes were not “property” subject to the probate code, and denied the father’s petition.

The court gave the parents 30 days “to carry out their duties and responsibilities to finally dispose of their son’s remains.” If they were unable to reach agreement, the court indicated that it might appoint a conservator or other suitable person to carry out the task. The father appealed this ruling, claiming that the trial court improperly relied on cases from other states with statutes that do not contain the same definition of “property” as Florida’s probate code. He argued that the ashes fit within the plain meaning of “property” as defined by Florida law. The mother claimed that the ashes were not “property,” and were not subject to ownership. Rather, she argued that the next of kin have only a limited possessory right to the remains for disposition purposes.

The court began its opinion by observing:

Our probate code defines “property” as “both real and personal property or any interest in it and anything that may be the subject of ownership.” Yet, as our supreme court has articulated, “all authorities generally agree that the next of kin have no property right in the remains of a decedent.” The supreme court [claimed its] position “to be consistent with the majority view that the right [to the remains] is limited to ‘possession of the body for the purpose of burial, sepulture or other lawful disposition.'” It reiterated its position again in [a 2001 case] acknowledging that “there is a legitimate claim of entitlement by the next of kin to possession of the remains of a decedent for burial or other lawful disposition.” But a claim of entitlement is not a property right, nor does it make the remains “property.”

The court concluded:

It is a sorrowful matter to have relatives disputing in court over the remains of the deceased. In this case in particular, there is no solution that will bring peace to all parties. We express our sympathies to both sides in their loss, which must be magnified by these proceedings. Cases such as this require the most sensitive exercise of the equitable powers of the trial courts. We are confident that the experienced trial judge exercised his power with due regard for the serious and emotional issues presented. Given the sensitive nature of the subject matter, and the fact that, historically, cremated remains have been treated the same as a body, neither constituting “property,” we decline to craft a policy at odds with our history and precedent. This is a matter best left to our legislature should it decide to address this sensitive policy issue.

What This Means For Churches:

Over the past few decades, cremation has become increasingly popular in the United States. The Cremation Association of North America (CANA) predicts that 60 percent of all deaths will result in cremation rather than traditional burial. This is due to a number of factors. Most importantly, many religious groups are becoming more tolerant of cremation. But perhaps just as important is the lower cost of cremation. CANA estimates that the average cost of a funeral is $7,500, far in excess of the $1,650 cost of cremation. The increasing popularity inevitably will cause disputes over the disposal of decedents’ remains, and this case provides a helpful analysis of the governing legal principles. Wilson v. Wilson, 2014 WL 2101226 (Fla. App. 2014).

Legal Developments

Church Member Sues Pastor for Defamation

Pastor sued for making widespread allegations that a church member was homosexual.

Richard R. Hammar, Attorney, CPA
Bio


Key point 4-02.1. Ministers may be liable for making defamatory statements if a civil court can resolve the dispute without any inquiry into church doctrine or polity.

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

Key point 10-13.1. A few courts have found churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister. In some cases, the church or agency is found to be vicariously liable for the minister's breach of a fiduciary duty, but in others the church or agency is found to have breached a fiduciary duty that it had with the victim.

A Florida court ruled that a church member could sue his pastor for defamation for publicly alleging that he was a homosexual.

A church member (the "plaintiff") and his pastor formed both a business and personal relationship outside the church. Later, the pastor sponsored the plaintiff to obtain a license to minister in the denomination with which the church was affiliated.

As their relationship developed, the plaintiff confided in the pastor that he had been called a homosexual as a teenager by an authority figure. This ultimately led to the plaintiff's installation of a religious internet filtration and accountability system on his personal computer that reports suspect internet usage, or attempted usage, to third parties. The pastor served as the plaintiff's "accountability partner" under the system, and one report prompted the pastor to ask the plaintiff if he was "gay." The plaintiff denied that he was a homosexual. At some point thereafter, the relationship between the two men deteriorated.

The plaintiff alleged that on several occasions the pastor falsely accused him of being a homosexual and asserted that his upcoming marriage was a sham designed to conceal his homosexuality. These allegations were disseminated to members of the church, including the father of the plaintiff's fiancé. Later, the pastor urged the plaintiff to call off his upcoming marriage and move out of state, which he did. After the move, when the plaintiff attempted to transfer his pastor's license from Florida to Michigan, the pastor falsely reported to church officials that he was a homosexual. He also called the plaintiff's new pastor to repeat the same accusation.

The plaintiff sued the pastor for defamation, breach of fiduciary duty, and emotional distress. The trial court dismissed all claims against the pastor on the ground that they were barred by the so-called "church autonomy" doctrine, which generally bars the civil courts from interfering in internal church disputes involving doctrine or polity. The plaintiff appealed.

Defamation

A state appeals court began its opinion by defining the church autonomy doctrine:

The church autonomy doctrine stems from the First Amendment to the United States Constitution which provides, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The doctrine, known also as the "religious autonomy principle," and the "ecclesiastical abstention doctrine" … gives a special, protected status to religious disputes by shielding them from intervention by the courts. The doctrine prevents courts from resolving internal church disputes that would require adjudication of questions of religious doctrine ….

Two distinct viewpoints have evolved with respect to the doctrine in the context of such claims. Some state and federal courts have taken an expansive view of the protections afforded by the doctrine and refuse to adjudicate most tort claims against religious institutions, finding such claims barred because the conduct giving rise to the claim is inextricably entangled with church polity and administration. Most courts, however, have adopted a narrower view of the doctrine and hold that the rights guaranteed by the First Amendment are not violated if the tort claims can be resolved through the application of "neutral principles" of tort law, particularly where there is no allegation that the conduct in question was part of a sincerely held religious belief or practice.

The court noted that the Florida Supreme Court had adopted the "neutral principles" approach, and it concluded that the neutral principles approach did not require a dismissal of the plaintiff's defamation and fiduciary duty claims. It concluded:

His defamation claims were based on a series of statements made by the pastor, who expressly or implicitly inferred that he was a homosexual and asserted that his upcoming marriage was a sham to hide his homosexuality. These statements were made during a meeting in the pastor's office, to which the pastor called the plaintiff and three others; in a sermon two weeks after the meeting; when the plaintiff sought to have his ministerial license transferred from Florida to Michigan; and when the pastor called the plaintiff's pastor in Michigan. The First Amendment does not grant the pastor carte blanche to defame church members and ex-members. If untrue, the statement that a person is a homosexual has long been recognized as potentially defamatory outside the context of any religious doctrine or practice. This claim can be adjudicated without implicating the First Amendment and was improperly dismissed on the basis of the church autonomy doctrine.

Breach of Fiduciary Duty

The court also ruled that the trial court erred in dismissing the plaintiff's breach of fiduciary duty claim:

As to the plaintiff's claim for breach of fiduciary duty—based on allegations that the pastor had a fiduciary duty to him because of the pastor/church member relationship and the internet filtration and accountability program—the First Amendment does not necessarily bar such claims.

Emotional Distress

The court affirmed the trial court's dismissal of the plaintiff's emotional distress claim, noting that the pastor's conduct over an almost two-year period repeatedly telling various people that the plaintiff was a homosexual and of immoral character, and attempting to terminate his relationship with his fiancé, "while deplorable, did not rise to the level of outrageousness required" to prove emotional distress.

Invasion of Privacy

Invasion of privacy includes public disclosure of private facts about another in a manner that a reasonable person would find outrageous. In rejecting this claim the court observed: "The plaintiff's allegations did not establish enough publicity to make the pastor's conduct actionable for public disclosure of private facts. The publicity given to private facts must be to the public at large or to so many persons that the matter must be regarded as substantially certain to become public knowledge." 91 So.3d 887 (Fla. App. 2012).

Legal Developments

Removal of Church Board Members

If a church neglects to address an issue in its governing documents, state nonprofit corporation law will provide the answer.

Richard R. Hammar, Attorney, CPA
Bio

Key point 6-02.2. Churches are subject to the provisions of their governing documents, which generally include a charter and a constitution or bylaws (in some cases both). A charter is the state-approved articles of incorporation of an incorporated church. Most rules of internal church administration are contained in a constitution or bylaws. Specific and temporary matters often are addressed in resolutions. If a conflict develops among these documents, the order of priority generally is as follows—charter, constitution, bylaws, and resolutions.

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

A Florida court ruled that state nonprofit corporation law governed the removal of board members in a church that did not address the issue in its governing documents.

A pastor and a member of a church's board of directors (the "defendants") attempted to remove the four other members of the board (the "plaintiffs") and replace them with new members. When the ousted board members discovered what had happened, they entered into protracted negotiations to resolve the dispute without recourse to litigation. When that failed, the former board members sued the defendants, alleging breach of contract, breach of fiduciary duty, and fraud. A trial court dismissed the case on the basis of the "ecclesiastical abstention" doctrine which generally bars the civil courts from resolving internal church disputes. The court noted that any attempt on its part to resolve the dispute "would necessarily and excessively entangle this court in doctrinal and theological issues." The plaintiffs appealed.

A state appeals court ruled that the ecclesiastical abstention doctrine did not prevent it from resolving this case. It observed: "Plaintiffs are not categorically prohibited from ever seeking redress from the courts solely because a religious organization is somehow involved in the dispute. When a church-related dispute can be resolved by applying neutral principles of law without inquiry into religious doctrine and without resolving religious controversy, the civil courts may adjudicate the dispute …. Nothing in the record indicates that the plaintiffs have sought judicial intervention concerning any aspect of church governance. Instead, they allege that the defendants, acting without authority, attempted to remove specific board members from the organization in derogation of the requirements of [the Florida nonprofit corporation law]."

The court noted that the state nonprofit corporation law (under which the church was incorporated) specified the procedure to be followed in removing board members of nonprofit corporations, and stipulated that these procedures applied only to the extent that a corporation's articles of incorporation or bylaws did not address the issue. The court found nothing in the church's articles of incorporation or bylaws addressing the removal of board members, and so, by default the state nonprofit corporation law applied. The court concluded:

The church in the instant case did not decide this aspect of church governance for itself; the bylaws of the church do not address the composition of the board, the removal of board members, or any similar aspect of corporate management. Because the church in the instant case had no bylaws governing the removal of board members, [the nonprofit corporation law] dictates the required procedures.

Because the statute unambiguously establishes procedures of uniform law, the instant dispute can be resolved by applying neutral principles of law without inquiry into religious doctrine and without resolving a religious controversy. Thus, the allegations in the complaint may be evaluated without recourse to any policy, practice, or doctrine of the church. The court is not asked to interpret religious doctrine or to evaluate church policies. The allegations at the heart of the complaint—that the defendants improperly attempted to remove members of the board of trustees—are entirely controlled by neutral application of [the nonprofit corporation law] …. This is not an instance where the court's involvement would transgress upon the exclusive authority granted to churches under the First Amendment "to decide for themselves, free from state interference, matters of church government."

What this means for churches

There are a couple of points to note about this case. First, the court concluded that the civil courts do not necessarily have to refrain from resolving internal church disputes. The resolution of such disputes is barred by the First Amendment only if an inquiry into church doctrine would be required. Second, the court applied state nonprofit corporation law in determining the procedure for removing church board members since the church had not addressed this issue in its governing documents. This illustrates the basic principle that state nonprofit corporation law is a "gap filler." An incorporated church is generally free to address issues of administration and governance in its articles and bylaws in any manner it chooses, free from state interference. But, if it neglects to address an issue in its governing documents, then state nonprofit corporation law will provide the answer. Bendross v. Readon, 89 So.3d 258 (Fla. App. 2012).

Legal Developments

Use of Discretionary Funds for Personal Purposes

Misuse of church funds can lead to legal problems.

Richard R. Hammar, Attorney, CPA
Bio

Key point 7-21. Embezzlement refers to the wrongful conversion of funds that are lawfully in one's possession. Embezzlement is a common occurrence in churches because of weak internal controls.

A Florida appeals court affirmed the conviction of a parish priest for embezzlement of church funds.

A Catholic priest was charged with grand theft of funds from his church based on his use of church funds for his own personal benefit, rather than for the benefit of the church. The evidence at trial included the following:

A diocesan official testified that priests draw both a salary and a car allowance. The funds to pay salaries and automobile allowances are derived from the general fund raised at each church. Although the diocese has no particular control over church accounts, the official stated that a priest's personal expenses would not be paid out of the parish's operating account since the priest receives a salary package.

The diocesan official also testified that the priest is allowed to make distributions from parish accounts, without permission of the bishop, as long as the distribution does not exceed $50,000 and the distribution is "for the good of the parish." However, priests were instructed to keep records of distributions, and these accounts devoted to charitable works were required to be reported to the diocese quarterly.

The chief financial officer for the diocese testified that the diocese promulgated explicit written procedures regarding how offerings were to be counted and deposited. The diocese, according to the CFO, monitored the finances of each parish to ensure that each priest was properly administering his duties. However, he conceded that some parishes would hold funds in unreported accounts to keep reported account balances low to avoid incurring larger fundraising goals during the diocese's annual fundraising appeal.

A forensic examiner testified for the prosecution that during the priest's tenure as pastor, there was a "cash shortfall" of roughly $372,343, and almost $487,000 in parish funds were misappropriated by the priest.

The defense presented the following exculpatory evidence:

A jury convicted the priest of the lesser offense of grand theft of property valued between $20,000 and $100,000. The priest appealed, claiming that the state's evidence was insufficient for a conviction. He insisted that the discretion accorded to priests foreclosed any inference that he took the property of another. The appeals court rejected the priest's arguments, and affirmed his conviction. It observed:

In this case, the state presented evidence from officials of the diocese that a parish priest is supposed to use parish money only for parish purposes. [Diocesan officials] testified that the priest's expenditures for [his former secretary and her son] and for vacations would not be valid parish purposes. Further, the forensic examiner testified that thousands of dollars in cash from the offertory were unaccounted for and that a significant amount of parish money was spent on items that [diocesan officials] testified were not parish related. Significantly, [these officials] testified that money collected from the offertory is collected from the parish members for parish purposes. There was also testimony from staff at the parish that fake deposit slips were used to cover up the fact that cash was taken from the offertory.

The state has introduced evidence inconsistent with the priest's claim of innocence. The case rises and falls on the intent of the priest when he used parish money and removed cash from the weekly offertory and whether it was for his personal benefit, not related to parish purposes. Ultimately, intent is a question of fact to be decided by the jury. We find that there was sufficient competent evidence of grand theft for the jury to find the priest guilty.

The court also rejected the priest's contention that the prosecution of this case led to an "excessive entanglement with religion" in violation of the First Amendment. It observed: "Purely secular disputes involving religious institutions and third parties do not create excessive entanglement of church and state when they involve neutral principles of law."

What this means for churches

Many churches have established discretionary funds that their pastor can use at his or her discretion, often with little, if any, oversight or accountability. This case illustrates that such arrangements can lead to the expenditure of church funds for personal purposes having little, if anything, to do with the furtherance of church purposes, and this, in turn, may lead to criminal liability. Guinan v. State, 65 So.3d 589 (Fla. App. 2011).

Legal Developments

Court Intervention in Church Legal Disputes

Courts will not resolve disputes that involve church doctrine.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Court Intervention in Church Legal Disputes

Courts will not resolve disputes that involve church doctrine.

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

Key point 6-06.1. Churches select their officers and directors in various ways. For example, it is common for members of a church board to be elected by the church’s membership, while officers are elected by the board. The civil courts generally refrain from resolving disputes involving the selection of church officers and directors on the ground that the First Amendment guaranty of religious freedom prevents them from becoming involved in ecclesiastical disputes.

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

A Florida court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving an internal dispute involving an interpretation of a church’s articles of incorporation and bylaws, and applicable state nonprofit corporation law, because it could not do so without inquiring into religious doctrine. A church’s articles of incorporation provided for a seven-member board of directors to manage the “affairs of the corporation,” and director elections were to occur “annually at a meeting of the members of the corporation to be held without notice on the last Wednesday night of September each year.” The articles of incorporation further specified that “the bylaws of this corporation shall be made, altered, amended or rescinded by the board of directors of this corporation.”

The church’s bylaws addressed a number of governance issues, including the selection, authority, and discipline of members. With regard to discipline, the bylaws stated: “The church may, after due notice and consideration, terminate the membership of any member at the next scheduled business meeting or within 30 days by the vote of a simple majority.”

The bylaws also provided that regular business meetings were to be held monthly, and that “a majority vote of all active members present, unless otherwise stated herein, shall decide all matters.” The bylaws stated that they could be amended “by a majority vote of all active members present, at the regular business meeting or a special called meeting after one week’s notice.”

In 2007, a small group within the church comprised of its lead pastor, and associate pastor, and a lay leader, began discussions with members about the wisdom of, and biblical justification for, changing the church’s governance structure from congregation led to elder led. In 2008, after a regular business meeting adjourned, the pastor again raised with the members in attendance his proposal for an elder-led form of governance. The proposal met with strong opposition from several individuals.

The pastor met with several of the dissidents about what he considered to be grounds for removing them as members of the church. He called two special meetings of the membership to take action on “disciplinary matters” involving four of the dissidents. At the next regular business meeting a majority of the members attending voted to terminate those individuals’ memberships. After the vote, the pastor directed the four ousted members to leave the premises, which they eventually did, taking more than twenty sympathizers with them. Thereafter, the membership voted to amend the church’s articles of incorporation and bylaws as necessary to transition from a congregational church to an elder-led church, and to take a final vote at a special meeting the following month. Members also voted to reduce the number of church officers from five to three (the pastor, associate pastor and one layman), and make the membership of the board of directors and the board of elders identical.

Several of the dissidents (the “plaintiffs”) filed a lawsuit in which they asked the court to undo the membership terminations of the four members; the election of the pastor, associate pastor, and one layman to the reconstituted three-member board of directors; and the adoption of revised articles of incorporation and bylaws. The dissidents claimed that the meetings in which these actions were taken were conducted without proper notice, rendering the actions taken null and void. They further alleged that:

(1) The pastor and associate pastor were concerned that the church’s congregation-led government was inconsistent with biblical teachings, and accordingly they “decided on a plan to supplant congregation governance with elder-governance” under which “three male elders would make all decisions” for the church.

(2) The pastor took offense to statements by members who “voiced opposition to elder leadership” and shortly thereafter, he called special meetings to oust from their leadership positions and membership in the church those expressly opposed to the governance change.

(3) The individuals removed from leadership positions and excluded from church membership received no notice, “written or otherwise,” of “the charges against them or the nature of the action to be taken against them” at the meetings.

(4) The pastor and associate pastor “did not establish that those to be excluded [from membership] had become an offense to the church and to its good name by reason of immoral or unchristian conduct, or by persistent breach of his or her covenant vows, which [the] church’s constitution and bylaws require for exclusion.”

The plaintiffs claimed that the pastor and associate pastor had breached their fiduciary duties to the church by removing certain members, electing new directors, and changing its governing documents” in violation of the mandate under the state nonprofit corporation law (under which the church was incorporated) that corporate actions be taken in accordance with the church’s articles of incorporation and bylaws. This, the plaintiffs claim, the church did not do.

The pastor and associate pastor asserted that the dispute was not a doctrinally neutral dispute regarding church governance (whether the church should be congregation led or elder led). Rather, it was entirely an ecclesiastical matter, and so the civil courts had no power to intervene.

A state appeals court began its opinion by noting that the First Amendment “prevents secular courts from reviewing disputes requiring an analysis of theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required.” However, “the issue before us is whether the First Amendment prohibits judicial review of actions taken by a corporation allegedly in violation of its articles of incorporation and bylaws when the corporation is a church.” The court reasoned that “when a church-related dispute can be resolved by applying neutral principles of law without inquiry into religious doctrine and without resolving a religious controversy, the civil courts may adjudicate the dispute.” But if a church dispute cannot be resolved without delving into church doctrine, then the civil courts may not intervene. The court concluded that even though this case appeared to involve a dispute over the interpretation of a church’s governing documents, the dispute was sufficiently entangled with doctrinal issues to prohibit civil court review. The court concluded:

[Plaintiff] asks whether the church, a corporate entity, complied with its articles of incorporation and bylaws in terminating corporate membership, electing directors, and amending corporate documents. Thus, it implicates … neutral legal tenets. However, even where neutral law applies, secular courts must not become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrinal beliefs …. First, the essential dispute in this case is not over property …. Rather, the controversy is solely over how the church should govern itself—an essentially religious matter. Second … [the church bylaws] detailed the procedure and grounds for terminating membership in the congregation. Consequently, any inquiry into whether the church adhered to its bylaws in excluding members necessarily entangles the court in religious matters protected by the First Amendment …. Finally, it is evident … that exercising jurisdiction in this instance would be tantamount to intervening on behalf of [a group] espousing particular doctrinal beliefs. We can discern no way under the facts of this case to draw a clean line between essentially religious matters protected by the First Amendment and matters of corporate law.

What This Means for Churches:

This case illustrates the important principle that the First Amendment bars civil court intervention in internal church disputes involving bylaw interpretations and compliance with applicable nonprofit corporation law, if a court’s resolution of the dispute might implicate church doctrine. Rosenberger v. Jamison, 72 So.3d 199 (Fla. App. 2011).

This Recent Development first appeared in Church Law and Tax Report, May/June 2012.

Legal Developments

Church Officials Violate of Freedom of Speech

Court rules that seeking identity anonymous blogger critiquing the church and forcing him out was unconstitutional.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax Report

Church Officials Violate of Freedom of Speech

Court rules that seeking identity anonymous blogger critiquing the church and forcing him out was unconstitutional.

Richard R. Hammar

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

* A federal court in Florida ruled that the disclosure of the identity of a church member who started an anonymous blog critical of the pastor and various church practices violated his constitutional right of free speech. A man (the “plaintiff”) had been a member of a church for 20 years. The church’s lead pastor retired, and the church eventually called a new pastor. Almost immediately after the new pastor began his duties, the plaintiff noticed changes in the preaching style, fundraising, and administration of the church. He disapproved of these changes, believing them to be a departure from long-standing church practices and a serious threat to the integrity of the church. As a result, the plaintiff began an “online chat forum” (blog) to discuss issues related to church doctrine, church funding, and church administration. The blog included the plaintiff’s religious viewpoints, information and opinions pertaining to the church and the pastor’s leadership. The plaintiff encouraged others to contribute to the blog as well. Although the blog was critical of the pastor, the plaintiff insisted that it did not condone, incite, threaten, or describe violence against church leaders, and that he did not engage in any type of criminal conduct against the church or its leaders. Nevertheless, the plaintiff chose to maintain the blog anonymously, due to the critical, controversial nature of the topic and his fear of retaliation from the church. In addition, the plaintiff believed that anonymity would encourage an open and honest dialogue and thereby increase the power and effectiveness of the blog.

A member of the church worked as a law enforcement officer and served on the church’s security detail. The church asked this member if he could obtain the identity of the blog’s anonymous blogger. As part of his investigation the member sought and obtained subpoenas from an assistant state attorney compelling Comcast and Google to disclose the identity of the blogger. Both companies did so, and the plaintiff’s identity was revealed to church leaders. The church thereafter obtained trespass warnings against the plaintiff, forcing him and his family to seek a new church.

The plaintiff filed a lawsuit against the assistant state attorney, claiming that despite the absence of “any legitimate evidence of related criminal conduct” he had issued subpoenas to Comcast and Google requesting the identity of the blogger, along with all other records pertaining to the blog. The plaintiff asserted that issuing the subpoenas under these circumstances violated his First Amendment right of free speech by destroying his ability to speak anonymously on church matters.

The court noted the right of free speech is not limited to written or oral statements and other forms of expression, but also extends to the right of an individual to speak anonymously. In McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the Supreme Court recognized that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” The Court explained that an author may choose to speak anonymously out of fear of retaliation or social ostracism, or merely out of the desire to preserve one’s privacy. Additionally, the Court noted the “honorable tradition” of anonymous pamphleteering in our society, stating that it “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society.”

The court concluded: “Here [the plaintiff] has alleged sufficient facts to establish that exposing his identity impinged on his First Amendment rights by subjecting him to some level of reprisal. Specifically, he has alleged that after his identity was revealed to the church, a trespass warning was issued against him and his wife, he and his family were forced to seek another church, and his ability to speak anonymously on issues concerning the church was destroyed. As such, use of the subpoena power invaded his First Amendment rights and deterred him from what he argues were ‘perfectly peaceful discussions of public matters of importance.'”

‘Here [the plaintiff] has alleged sufficient facts to establish that exposing his identity impinged on his First Amendment rights by subjecting him to some level of reprisal.’

Application. Many persons have created blogs that are critical of a particular church and its leaders and practices. In some cases, the blogger chooses to remain anonymous. Church leaders may seek to learn the blogger’s identity in order to respond directly to complaints and limit the annoyance and collateral damage to the church. As this case illustrates, obtaining the blogger’s identity is difficult, and if it involves a subpoena, this may result in a violation of the blogger’s free speech rights. In some cases the church also may be liable on the basis of an invasion of privacy. Rich v. City of Jacksonville, 2010 WL 4403095 (M.D. Fla. 2010).

Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840. © 2011 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold 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. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Liability for Off-Site Activities

Several factors determine whether an organization is liable for injuries off church property.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Liability for Off-Site Activities

Several factors determine whether an organization is liable for injuries off church property.

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

A Florida court ruled that a church was not liable for catastrophic injuries suffered by a student enrolled in the church’s private school, who became intoxicated at an off-site school party and slammed into a tree while driving home. This case is important, since it addresses a common question—the liability of a school or church for injuries occurring during off-site activities.

facts

Several students at a church-operated secondary school (the “School”) received cards inviting them to an “end-of-the-year party” at the home of two of the students. On some of the cards a bottle of liquor was faintly visible in the background. The cards were not prepared or distributed by the school, its faculty, or administration.

On the morning before the party, the school principal brought the two students (brothers) hosting the party at their home into his office so he could question them. The students told him that their parents would be at the party as chaperones.

School was dismissed for the year at noon on the last day of classes. Students began to arrive at the home where the party was to take place between 1 and 1:30 p.m. The mother of the “hosting” students arrived at the home sometime between 1:45 and 3:30 p.m., but went to her room and stayed there with the blinds drawn. Her husband joined her. Neither parent called the police or attempted to stop the party at any time.

Alcohol was consumed in the house and in cars. One student (the “victim”) and a classmate, though minors, had obtained two twelve-packs of beer and a bottle of vodka from a convenience store and arrived at the party at 2:30 p.m. The victim and the classmate drank in the victim’s car for an hour, and then went into the party with the remainder of their alcoholic drinks.

At about 4 p.m., the school’s principal and another school employee arrived at the party. The principal wanted to be sure that things were okay, and that the parents were present. After a few minutes, the principal and the other school employee left and returned to the school. They did not notify police, visit the back of the home, call any parents (including the owners of the home at which the party was underway), consume or provide alcohol, participate in the party themselves, or direct any students to leave.

Some thirty to forty-five minutes after the principal and school employee left the home where the party was in progress, the victim and his friend got into the victim’s car and drove away. Several miles away from the party and from the school, the vehicle struck a tree (traveling in a residential area at a speed estimated by police to have been 100 miles per hour) and split in half, instantly killing the friend and catastrophically injuring the victim. Two hours after the accident, the victim had a blood alcohol level of .09 percent (a blood alcohol level of .08 percent or higher subjects the vehicle operator to a criminal charge of driving while under the influence). The victim is now a quadriplegic, and he suffered traumatic brain injury as well.

The School’s parent and student handbook contained a section entitled “Outside (Home) Parties,” which states:

Parents should be positive that responsible adults properly supervise activities that their child attends. We recommend the parents call the hosting family to ensure the activity has been planned for their home and that they plan to chaperone the event. In advance, if the school becomes aware of any party that involves illegal or immoral activities we will inform the proper authorities. We would ask that any parent who learns of any such party or event contact the administration so we could help prevent any tragedy that might result. The School will not be responsible for any event that is not officially sanctioned by the Administration. We also strongly discourage allowing students to stay out after any official function is completed, or to rent facilities after any function, especially a dance or prom.

The handbook also contains a substance abuse policy applicable to alcoholic beverages that prohibited the use or possession of such beverages “by any student on school property or while attending or participating in any school sponsored activity or at any time the student is wearing a school uniform.” The consequences of a violation were specified: “Transgression of this rule will result in disciplinary action, which may include dismissal from school, even for a first offense.”

Another section stated:

The use, possession, or sale of alcoholic beverages or drugs is prohibited at all times on school premises before, during or after school hours or at school-sponsored events. Any student who appears to have consumed alcoholic beverages, used drugs, distributed drugs, or any student who brings such substances on the school premises or place of a school sponsored function is subject to dismissal from school, even for a first offense. The determination of “use” will by necessity be a judgmental decision by any staff or faculty member who may observe the behavior.

The victim and his parents (the “plaintiffs”) sued the school, the religious diocese that allegedly controlled the school, the school’s principal, the parents of the two students who hosted the party, and the convenience store that sold the alcohol to the victim and his friend. The plaintiffs settled with, or dismissed, all of the defendants except the school and diocese (the “defendants”).

The jury rendered a verdict awarding more than $55 million in damages, apportioning 53 percent of the negligence to the plaintiffs, 25 percent to the school, and 20 percent to the parents at whose home the party took place. The trial court allowed certain setoffs and ultimately entered an amended final judgment against the school and diocese for $13 million.

the appeals court’s ruling

The court began its opinion by describing two rules that are used in deciding if a school (or church, or any other youth-serving organization) is legally responsible for injuries to students during off-premises activities:

In this case, however, there was no club “recognized, endorsed, or supervised in any way by the school. The off-premises activity was planned, hosted, and attended by a collection of students having no name, group identity known to the school, or school related purpose. Of the students attending, only two had been firmly identified (the students whose address was listed on the invitation) by the school, and those two had told the school that their parents would be present. The two student hosts did not ask for or obtain the school’s permission to conduct the event, and the academic school year was complete when the students left the school premises (before the event began).”

The court stressed that “mere knowledge of the off-premises party is not a basis for liability.” But, it acknowledged that two additional facts needed to be addressed: the school handbook and the visit by the principal and another school employee to the off-premises residence at which the party took place. With regard to the “Parent and School Handbook” section on “Outside (Home) Parties,” the plaintiffs alleged that the school undertook to notify “the proper legal authorities” because the school became aware, in advance, that the party “involved illegal or immoral activities.” The court disagreed, noting that the school disclaimed responsibility for unauthorized home parties in an all-capitalized disclaimer in the same section: “The school will not be responsible for any event that is not officially sanctioned by the Administration.” The party in this case “was not officially sanctioned.” In addition, “the school’s policy in the handbook does not change the fact that the incident occurred at a time when the school had no duty to supervise the students” since it occurred after the end of the school year.

With regard to the visit to the off-premises party site by the principal and employee, “neither of these visitors undertook a special duty to care for [the victim]. The principal and employee were not invitees of the owners of the residence, and they never spoke to the student hosts’ mother. They did not offer a ride to anyone, offer to call [the victim’s] parents, take his keys, or otherwise render services to him or his parents. Nor was he under these visitors’ authority, control, or supervision. School was out.”

The court concluded its opinion with these words: “No conscientious juror or judge could (or can now) feel anything but the deepest sympathy for the tragic results of [the victim’s] accident. But our legal system requires more than heartfelt sympathy and demonstrable damages as predicates for the compensation of injured persons …. The parent and student handbook provisions, and the visit by the principal and employee to the residence where the party was underway … were insufficient as a matter of law to impose upon the school a duty to supervise, or a duty … regarding [the victim’s] acquisition and consumption of alcohol, attendance at the party, and fatal decision to get behind the wheel.”

Application. It is common for members of a church’s youth group to conduct activities off of church premises. Such activities may involve worship or Bible study, parties, or recreational activities. In addition, church-operated schools conduct a variety of off-site activities, including club activities and sports teams. Is a church legally responsible for injuries sustained by minors before, during, or after such off-site activities? This case provides helpful guidance. Here are several points to note:

1. Mere knowledge of an off-premises activity is not necessarily a basis for liability. There must be something more. The court concluded that liability may arise for either a “sponsored” event or a “related” event.

2. A school, church, or other youth-serving charity may be responsible for injuries to minors during an off-site “sponsored” event. The court noted that the characteristics of a “sponsor” of an event include the following: (1) A sponsor pays for it or takes responsibility for the event; (2) the event is on its official calendar; (3) one or more of the sponsor’s employees typically attend as chaperones.

3. The court also noted that a school can be liable for injuries to students during “school related” events that involve “some connection to the school’s academic and extracurricular programs.” As examples, the court cited a school athletic team’s participation in a scheduled competition at another location, or a school club’s off-premises meeting. The court noted that the school’s duty of supervision extends to such activities if the group is officially sponsored by the school and the school reserved the authority to control its activities. The key point is this—while an event may not be officially sponsored by a church, the church may still be liable for injuries to minors who participate in the event if it is “church related” in the sense that the minors are participating in a group that is church-sponsored and subject to the church’s supervision and control.

The court concluded that the victim in this case was not injured in the course of a school-related event. It cited the following factors in reaching this conclusion:

4. The court referred to the following cases:

5. The court noted that the school disclaimed responsibility for unauthorized home parties in an all-capitalized disclaimer in its parent and student handbook: “The school will not be responsible for any event that is not officially sanctioned by the Administration.” The party in this case “was not officially sanctioned.” In addition, “the school’s policy in the handbook does not change the fact that the incident occurred at a time when the school had no duty to supervise the students” since it occurred after the end of the school year. Archbishop Coleman F. Carroll High School, Inc. v. Maynoldi, 30 So.3d 533 (Fla. App. 2010).

This Recent Development first appeared in Church Law & Tax Report, May/June 2011.

Legal Developments

Legal Marriage Requirements

Couples united in “religious ceremonies” are not lawfully married.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Legal Marriage Requirements

Couples united in “religious ceremonies” are not lawfully married.

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

Key point 3-04. All states permit clergy to perform marriage ceremonies. However, some states permit only “ordained” or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law, and in addition to be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.

A Florida court ruled that a couple that was “married” in a religious ceremony that did not comply with the requirements for a valid marriage specified in state law was not lawfully married. A couple participated in a religious marriage ceremony in Oregon, and later relocated to Florida. They never applied for or obtained a government issued marriage license. They also never paid a government fee to get civilly married, never supplied their vital statistics to the government, never received a marriage certificate, and never recorded their marriage in Oregon’s public records, which are all required by Oregon law. A few years later, in a child support and custody proceeding, the husband claimed that no lawful marriage had ever occurred. The wife disagreed. She conceded that as a general rule a marriage license is required in Oregon for a lawful marriage to occur. However, she relied on the following “savings clause” in the Oregon marriage statute to validate the marriage:

All marriages, to which there are no legal impediments, solemnized before or in any religious organization or congregation according to the established ritual or form commonly practiced therein, are valid. In such case, the person presiding or officiating in the religious organization or congregation shall deliver to the county clerk who issued the marriage license the application, license and record of marriage in accordance with [the marriage statute].

The court concluded that this savings clause was inapplicable because it presupposes the existence of a marriage license issued by the appropriate county clerk. The court observed: “The lack of a marriage license in this case was a legal impediment because the parties neither sought nor obtained an Oregon marriage license in connection with the religious ceremony. By referencing delivery of the marriage license to the appropriate county clerk, this statute ascribes legal significance to the existence of such license, which itself evidences the intent of the parties to enter into a legal marriage.” The court added:

A lawful marriage presumes that the parties at least undertook efforts to satisfy the state’s requirements for a valid marriage, one of which is to obtain a marriage license. Consequently, the trial court did not err in concluding that a valid marriage did not occur under Oregon law, given the evidence that the parties intended a purely religious ceremony and that a legal marriage would occur later, and took no steps to obtain a marriage license, which enjoys particular significance where Oregon’s general savings clause is sought to be invoked.

The court rejected the wife’s attempt to utilize New York law to support her proposition that a legal marriage can be found from a purely religious ceremony despite the absence of a marriage license. It observed: “New York law, unlike Oregon, expressly provides that a party’s failure to obtain a marriage license does not render a marriage void. As a result, we find New York law in apposite.”

Application. This case illustrates the importance of ministers being familiar with the legal requirements for solemnizing marriages in their state. A good place to start in familiarizing yourself with your state’s requirements is the local office that issues marriage licenses. In many states, this is the county recorder’s office. Often, these offices have compiled a checklist of legal requirements for solemnizing marriages that will be of great value to ministers. Preure v. Benhadj-Djillali, 15 So.3d 877 (Fla. App. 2009).

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

Legal Developments

Expectation of Secrecy

Court rules that murderer waived his right to the privilege.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Expectation of Secrecy

Court rules that murderer waived his right to the privilege.

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

Key point 3-07.2. In order for the clergy-penitent privilege to apply there must be a communication that is made in confidence. This generally means that there are no other persons present besides the minister and counselee who can overhear the communication, and that there is an expectation that the conversation will be kept secret.

A Florida court ruled that a murderer’s confession to a minister was not protected by the clergy-penitent privilege and therefore a trial court did not commit reversible error in allowing the minister to testify at the murder trial concerning the confession. The minister testified that he warned the defendant several times that he would not treat anything incriminating as confidential. Having been asked by the defendant to accompany him to the police station for questioning, he testified that he warned the defendant against disclosing anything that “was bad” and that if defendant reported anything that “was bad” the minister would have to tell the police about it. Specifically, the minister said: “Be careful what you are about to say to me, because any information that could be damaging … I cannot promise you that I could keep it, because I will become an accessory to whatever.” He added that if the defendant told him something that could get him in trouble with the law, he would have to divulge the information to police. At that point the defendant told the minister that he had killed the victim. The defendant thereupon asked the minister if he could keep the substance of the conversation a secret, but the minister said no. The defendant then told the minister not to bother coming into the police station with him.

The trial court denied the defendant’s motion to suppress his statements to the minister, holding that he had waived any privilege of confidentiality about the conversation. The court found that after the minister had warned defendant against speaking, he “no longer had a reasonable expectation that the communication was going to remain private under those circumstances.”

A state appeals court affirmed the trial court’s decision that the clergy-penitent privilege did not apply to the defendant’s conversation with the minister. The court noted that a state statute specified that “a person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person … voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication.”

The court concluded that “the record supports the trial court’s finding that the defendant knew when he voluntarily made the disclosure to the minister that it would not be held confidential and would be subject to disclosure to the police. We find no error in the admission of the confession.” Monroe v. State, 14 So.3d 1205 (Fla. App. 2009).

Application. The clergy-penitent privilege only protects confidential communications. This requirement can be traced back to the original formulation of the clergy privilege, when it was restricted to confessions. However, as the privilege evolved beyond the confines of a confession, the requirement of confidentiality was retained. This makes sense, since if a person is willing for others to overhear a conversation he or she is having with a minister, then there is little reason why jurors should be denied access to the contents of that conversation. The court in this case concluded that incriminating statements made by a person to a minister cannot be privileged if the minister states in advance that he or she will not consider incriminating statements to be confidential. Monroe v. State, 14 So.3d 1205 (Fla. App. 2009).

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

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