Child Abuse Reporting Protection in Counseling

A Florida appeals court ruled that counseling notes prepared by a psychotherapist during counseling sessions with a minister accused of child abuse were not protected against disclosure in court.

Church Law & Tax Report

Child Abuse Reporting Protection in Counseling

A Florida appeals court ruled that counseling notes prepared by a psychotherapist during counseling sessions with a minister accused of child abuse were not protected against disclosure in court.

Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

* A Florida appeals court ruled that counseling notes prepared by a psychotherapist during counseling sessions with a minister accused of child abuse were not protected against disclosure in court by the state’s psychotherapist-patient privilege if they contained references to child abuse. A minor (the “plaintiff”) sued a church claiming that he had been sexually molested by a Catholic priest. The plaintiff subpoenaed counseling notes prepared by a psychiatrist during his counseling sessions with the defendant priest. These sessions included an evaluation for pedophilia. The psychiatrist refused to turn over the notes based on the state’s psychotherapist privilege. This privilege gives patients the privilege “to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist.”

The plaintiff claimed that the psychotherapist privilege did not apply in this case because of the following state law: “The privileged quality of communication between husband and wife and between any professional person and his or her patient or client, and any other privileged communication except that between attorney and client or the [clergy-penitent] privilege … shall not apply to any communication involving the perpetrator or alleged perpetrator in any situation involving known or suspected child abuse, abandonment, or neglect and shall not constitute grounds for failure to report [child abuse] regardless of the source of the information requiring the report, failure to cooperate with law enforcement or the department in its activities pursuant to this chapter, or failure to give evidence in any judicial proceeding relating to child abuse, abandonment, or neglect.”

A state appeals court sent the case back to the trial court, with the stipulation that the trial judge review the counseling notes and decide which portions “concern communications involving known or suspected child abuse.” The court ruled that the psychotherapist privilege would not apply to these portions of the notes, based on the state law quoted above, even if the references to child abuse pertained to minors other than the plaintiff. Doherty v. John Doe No. 22, 957 So.2d 1267 (Fla. App. 2007).

Whistleblower Act and Employer Retaliation

A Florida appeals court ruled that it was barred by the First Amendment from resolving a woman’s claim under a state “whistle-blower” law.

Church Law & Tax Report

Whistleblower Act and Employer Retaliation

A Florida appeals court ruled that it was barred by the First Amendment from resolving a woman’s claim under a state “whistle-blower” law.

Key point 8-06. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying civil rights laws to the relationship between a church and a minister.

* A Florida appeals court ruled that it was barred by the First Amendment from resolving a woman’s claim under a state “whistle-blower” law that she had been wrongfully terminated in retaliation for charging her supervisor with assaulting her. A female principal of a church-operated private school was assaulted by a priest who also served as her supervisor. When she complained to diocesan officials, she claimed that the officials retaliated against her by terminating her employment. She sued the diocese for violating the state’s Private Sector Whistle-blower Act which prohibits employers from taking retaliatory action against employees who object to or refuse to participate in activities, policies or practices of their employer that are “in violation of a law, rule, or regulation.” Florida Statutes § 448.102(3).

The court began its opinion by referring to a United States Supreme Court ruling that interpreted the First Amendment religion clauses as placing matters of church government and administration beyond the purview of civil authorities: “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. (13 Wall.) 679 (1871).

The Florida court noted that this interpretation, known as the “ecclesiastical abstention doctrine,” prevents the civil courts from resolving employment disputes “between a religious organization and its clergy because such matters necessarily involve questions of internal church discipline, faith, and organization that are governed by ecclesiastical rule, custom, and law.” As a result, when a lawsuit challenges a church’s employment decision, “the inquiry is whether the employee is a member of the clergy or serves a ministerial function. If so, secular review is generally precluded.”

In this case, the parties conceded that the school principal was a “ministerial” employee, and the court “saw no reason why the ministerial exception should not be applied to a whistleblower claim.” Archdiocese of Miami, Inc. v. Minagorri, 2007 WL 756106 (Fla. App. 2007).

Child Abuse

A Florida court ruled that a victim of child abuse cannot sue a mandatory child abuse reporter who knew of the abuse but failed to report it.


Key point 4-08
. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

A Florida court ruled that a victim of child abuse cannot sue a mandatory child abuse reporter who knew of the abuse but failed to report it.

A counselor met with a divorced woman and her minor children, and concluded that the children had been sexually molested by their father. Though the counselor was a mandatory child abuse reporter under state law, she chose not to report the abuse. The mother used the counselor's opinion to obtain an injunction against her former husband, without advance notice to him. Because the husband did not have advance notice of the injunction, he did not have an opportunity to defend against the allegations. The injunction denied him legal custody of his children and effectively denied him all parental rights, including visitation.

The father sued the counselor (and the counselor's employer), claiming that her failure to report the abuse denied him the opportunity to prove his innocence in the course of a state investigation. A state appeals court concluded that the child abuse reporting statute does not authorize civil lawsuits against mandatory reporters who fail to report known or suspected cases of child abuse.

The court noted that the child abuse reporting statute does not specifically create "a cause of action for violation of its terms." It acknowledged that a cause of action could be "implied" if there was clear evidence of a legislative intent to create one, but it failed to find such an intention in the statute.

It observed, "We find nothing in [the statute] that suggests such an intent. On the contrary, we note that [it] appears to address the subject of penalties for failure to report known or suspected child abuse and makes such nonfeasance a first-degree misdemeanor. It says nothing about the availability of a cause of action for damages …. Accordingly, we hold that [the child abuse reporting statute] does not create a cause of action for damages."

Application . This case is important because it rejects the argument that mandatory child abuse reporters can be personally liable for failing to report known or suspected abuse. While such reporters are subject to criminal liability (a misdemeanor) for failing to report, they may not be subject to personal liability in a civil lawsuit for failing to report, at least in states that follow the ruling in this case. Welker v. Southern Baptist Hospital of Florida, 2004 WL 34512 (Fla. App. 2004).

Church Property

A Florida court ruled that a student who refused to return a school-owned laptop computer could be charged with theft.

State v. Siegel, 778 So.2d 426 (Fla. App. 2001)

Key point. Former church employees who refuse to return church-owned property that had been in their lawful possession may be guilty of the crime of embezzlement.

A Florida court ruled that a student who refused to return a school-owned laptop computer could be charged with theft. This case is directly relevant to churches that provide computers to staff members. A university student was allowed to use a laptop computer owned by the university. The student was expelled by the university for submitting fraudulent expenses for reimbursement as a member of a student organization. After his expulsion, university officials demanded that the student return the laptop computer. He refused to do so and was later charged with theft. The indictment charged that while in lawful possession of the computer the student formed the intent to appropriate the property to his own use. The trial court dismissed the case on the ground that when the student first received the laptop computer he did not have the criminal intent to deprive the university of it.

The state theft statute states that "a person commits theft if he or she knowingly obtains or uses the property of another with intent to, either temporarily or permanently, deprive the other person of a right to the property or a benefit from the property." The statute defines "obtains or uses" to include "conduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, or deception." The court noted that in certain kinds of theft cases, like larceny or false pretenses, criminal intent must be formed at the time of the original possession of the property. However, the definition of theft under the statute also includes the crime of embezzlement. Unlike the crimes of larceny and false pretenses, "embezzlement does not require that the defendant have criminal intent when he obtains the property in question." The court defined embezzlement as the fraudulent taking of the property of another "by one who is already in lawful possession of it." The state claimed that the student was in lawful possession of the university's laptop computer, and then refused to return it when the university asked him to do so. This conduct, the court concluded, "arguably worked as an attempt to fraudulently convert the computer to his possession."

What this means for churches

Many churches have purchased laptop computers for staff members for use in performing their duties on behalf of the church. If the church terminates the employment of such a person, or the person voluntarily resigns, the church's laptop computer ordinarily will be returned. However, as this case illustrates, if the former employee refuses to return the computer, then this act may constitute theft or embezzlement subjecting him or her to criminal prosecution. Church leaders should keep this point in mind when attempting to persuade a former employee to return a church computer, or any other church property.

Using Bankruptcy to Avoid Responsibility for Embezzled Funds

Churches need to have safeguards against embezzlement.

Magpusao v. Magpusao, 265 B.R. 492 (M.D. Fla. 2001)

Background. Unfortunately, church employees and volunteers sometimes embezzle church funds. Consider a recent case. A woman ("Amy") was hired by a church as a bookkeeper. Her responsibilities included managing the church's bank account, maintaining financial records, and handling the church's finances. She also operated a home interior business. A few years after she started working at the church, Amy began to misappropriate church funds by issuing unauthorized checks to herself, her personal creditors, and other individuals. According to the church's investigation, she embezzled nearly $560,000 over an eight-year period. She deposited approximately $162,000 of the embezzled funds into a joint account with her husband, Eric.

Amy's embezzlement was ultimately discovered in 1998 by her supervisor. Amy was arrested and charged with grand theft. She pled guilty to misappropriating the funds and was convicted of grand theft and sentenced to a ten-year prison term. A year later, her husband Eric filed for bankruptcy and listed the church as an unsecured creditor in the amount of $560,000. The church asked the court to exempt this debt from being discharged in bankruptcy pursuant to section 523(a)(6) of the bankruptcy code, which state that a discharge of debts as a result of bankruptcy "does not discharge an individual debtor from any debt … (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny [or] (6) for willful and malicious injury by the debtor to another entity or to the property of another entity."

The court's ruling. The bankruptcy court noted that "exceptions to discharge prevent a debtor from avoiding the consequences of wrongful conduct by filing a bankruptcy case." However, it pointed out that "courts narrowly construe the exceptions to discharge against a creditor and liberally in favor of a debtor in order to ensure that the 'honest but unfortunate debtor' is afforded a fresh start."

Fraud or defalcation while acting in a fiduciary capacity

The court concluded that Eric did not occupy a fiduciary capacity with respect to the church, and therefore he could not have committed fraud or defalcation while acting in a fiduciary capacity. The court also concluded that Eric had not committed embezzlement or larceny. It defined embezzlement as "the fraudulent appropriation of property by a person to whom such property has been entrusted or into whose hands it has lawfully come." Although proof of a fiduciary relationship is unnecessary to prevail on an embezzlement claim, the creditor must show evidence of fraud or fraudulent intent. The court concluded that "the evidence does not demonstrate that [Eric] was either entrusted with or lawfully received the property of the [church]. Accordingly, the court does not find that [he] committed embezzlement." Similarly, the court defined larceny as the fraudulent taking and carrying away of the property of another with intent to convert such property to his use without the consent of another." It concluded that Eric had not fraudulently taken away the church's assets.

Willful and malicious injury

Section 523(a)(6) of the bankruptcy code exempts from discharge any debt "for willful and malicious injury by the debtor to another entity or to the property of another entity." In order to be successful in exempting the $560,000 debt from discharge under this section, the church had to prove the following elements: (1) an intentional action by Eric; (2) done with the intent to harm; (3) which caused damage (economic or physical) to the church; and (4) the injury is the result of Eric's action. The church insisted that since Amy and Eric shared a joint bank account, knowledge of activity in the account should be imputed to him. On this basis, the church claimed that Eric should be presumed to have known that his wife deposited approximately $162,000 of misappropriated funds into the joint account and should be held accountable for the church's loss in that amount.

The bankruptcy court observed that "courts have generally held that fraudulent intent may not be imputed from one spouse to another based simply on the marital relationship of the parties. Even knowledge of a spouse's misconduct is insufficient to confer liability. Rather, knowledge must be concurrent with participation in the use or enjoyment of the stolen property in order for liability to attach."

The court found that Eric "was not as ignorant of his wife's malfeasance as he claims." It concluded:

Although the bankruptcy code does not permit attribution of intent from one spouse to another, fraudulent intent may be inferred from the totality of the circumstances and the conduct of the person accused. Eric's demeanor at trial showed him to be an intelligent and astute individual, despite his attempt to appear ignorant of financial matters. He appeared well-informed regarding the nature and operation of mortgages and consignment shops. He showed surprising familiarity and control over an old bank account. In fact, he was even able to recite the account number by memory. The court also noticed that he had sufficient knowledge of the family's income to determine what expenditures were beyond their means, as evidenced by his objections to [various purchases and gifts]. His testimony revealed that his wife solicited his advice regarding certain expenses and that they discussed mortgages on their home. Yet when asked how the family afforded a new car or rent payments for [Amy's home interior business] Eric simply professed ignorance and insisted that his wife handled all financial matters. His selective knowledge and summary denials hamper his credibility. Eric claims that he did not witness any unusual or extravagant expenditures. However, the evidence shows there was quite a bit of money expended on behalf of the family in the form of trips, allowances to the children, a new automobile, and various credit card purchases.

The court concluded that by the time of his wife's arrest, Eric "was abundantly aware of his wife's embezzlement, he knew she had used their joint account to hide some of the money, and he knew that there was a great likelihood that the remaining money in the account rightfully belonged to the church. Nevertheless, he proceeded to use it for his own purposes. Where the specter of suspicion is present, there is a duty to be cautious in the use of tainted funds. The court holds Eric in abrogation of this duty. In the absence of an explanation accounting for the source of these funds, the court finds that this money was derived from the embezzled funds."

While the court was convinced that "the evidence demonstrated numerous instances of Eric's knowledge and participation in the use or enjoyment of church property," the evidence also demonstrated that Eric was unaware of his wife's illegal conduct. He testified that in accordance with his own cultural (Filipino) tradition, it was his wife who managed the family's finances. This assertion was supported by the fact that it was Amy who signed all but one of the checks drawn from the joint account. The court observed, "Given that Amy was a bookkeeper and skilled in account management, it is likely that Eric did not regularly, if ever, monitor the bank account." When Amy's supervisor confronted her with evidence of embezzlement, Amy pleaded with her not to tell her husband fearing that he might kill her. Such evidence "suggests that Amy intended to hide her criminality from her husband," and that Eric did not participate in the use and enjoyment of church funds to the extent the church claimed.

The court concluded that Eric did not know of the degree to which his wife was stealing from her employer. However, he was aware that his wife was receiving money from an unexplained source, even though he did not actively participate in her ill-gotten gains. Instead, he accepted only those benefits that she herself conferred upon him. Based upon these findings, the court "cannot hold Eric liable for all of the embezzled funds that his wife deposited in the joint account. He can only be held accountable for items that he knew were acquired illegally and which he nevertheless accepted." After carefully reviewing items purchased or financed through funds stolen from the church, the court concluded that debts amounting to $25,000 were nondischargeable in bankruptcy on the basis of section 523(a)(6).

What this means for churches

Consider the following points:

1. Many church leaders consider embezzlement to be a problem that couldn't happen in their church. Yet, it is this very attitude that contributes to poor or nonexistent "internal controls" over cash handling and payment of expenses that makes embezzlement a real threat. In this case, the bookkeeper (Amy) was able to embezzle $560,000 over an 8-year period before her deeds were detected.

2. How was Amy able to embezzle more than half a million dollars? By issuing unauthorized checks to herself as well as to her personal creditors and other individuals. Had the church implemented the most basic "internal controls," Amy could not have engaged in her acts of embezzlement. Here are two internal controls that would have worked: (1) Require at least two signatures for all checks above a nominal amount. (2) Have monthly bank statements reviewed by a church official or employee having no responsibility for handling cash or writing checks.

3. It could be said that church leaders are not discharging their fiduciary duties when they fail to implement basic internal controls over cash handling and the payment of expenses. Such a failure can result in a host of negative consequences, including the following: (1) Criminal liability to the embezzler. In this case, Amy was sentenced to ten years in a state penitentiary. (2) Financial hardship to the church. Think of the impact to most churches of having over a half million dollars embezzled over an 8-year period. (3) As this case illustrates, embezzlers who do not pay back embezzled funds to their former employer have a continuing legal duty to do so that cannot be discharged through bankruptcy. (4) The court concluded that Amy's husband was legally responsible for repaying at least some of the embezzled funds.

Sexual Harassment

A Florida court ruled that it was barred by the first amendment’s ban on “excessive entanglement” between church and state from resolving a church secretary’s claim of sexual harassment.

Key point. The Civil Rights Act of 1964 Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. It consists of both "quid pro quo" harassment and "hostile environment" harassment. Religious organizations that are subject to Title VII are covered by this prohibition. An employer is automatically liable for supervisory employees' acts of harassment, but a defense is available to claims of hostile environment harassment if they have adopted a written harassment policy and an alleged victim fails to pursue remedies available under the policy. In some cases, an employer may be liable for acts of sexual harassment committed by nonsupervisory employees, and even nonemployees.

Facts of the Case

A woman ("Anne") was employed as a church secretary and bookkeeper. She sued her church and a denominational agency alleging that a church volunteer who served as chairman of the pastor parish relations committee had (PPRC) sexually harassed her on the job. A state appeals court dismissed Anne's lawsuit on the ground that her claims, "which are based upon the actions of a volunteer rather than another employee, will require a secular court to review and interpret church law, policies, and practices to determine whether an agency relationship existed" between the alleged offender, the PPRC, the church, and denominational agency, and whether the church defendants could be held liable for the alleged offender's actions. The court concluded that "this examination would violate the first amendment's excessive entanglement doctrine."

A dissenting judge did not believe that the first amendment barred Anne's claims. This judge observed, "Anne worked as a bookkeeper for the church. There is no indication that her duties involved religious matters related to the church. Her alleged harasser served as chairman of a committee appointed by the church to oversee her hiring as well as raises and promotions. It is unclear from the record how many employees the committee supervised or whether they had any responsibilities related to supervision of the pastor or any other employee exercising religious duties.

The alleged wrongdoing of the church involved allowing the harasser to remain in a supervisory capacity over Anne even after it was made aware of his misconduct …. While questions involving the supervision or retention of clergy arguably would raise issues about excessive entanglement with religious decisions of the church … the same concerns are not present in cases involving questions about the church's supervision of lay persons making employment decisions over lay employees.

There is no indication in this case that any decisions made concerning Anne's employment relationship were made on the basis of religious considerations …. In the absence of evidence that the employment decisions made here were motivated by religious considerations, the case should go forward. Sound public policy requires that religious organizations not be given blanket immunity for employment decisions relating to lay employees."

Application to Churches

Note the following points:

1. Title VII of the Civil Rights Act of 1964 prohibits covered employers from discriminating against any employee or applicant "with respect to compensation, terms, conditions or privileges of employment, because of such individual's sex." Sexual harassment is a form of sex discrimination prohibited by Title VII. The courts have identified two types of sexual harassment-"quid pro quo" and hostile environment. "Quid pro quo" harassment refers to conditioning employment opportunities on submission to a sexual or social relationship, while "hostile environment" harassment refers to the creation of an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature.

2. EEOC regulations address employer liability for the sexual harassment of non-employees as follows: "An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the Commission will consider the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees."

3. Anne claimed that the PPRC chairman committed both kinds of sexual harassment. While the court concluded that the first amendment prevents the civil courts from resolving such claims involving church employees, this conclusion has not been followed by other courts. In summary, while church leaders can cite this case in the defense of a sexual harassment claim, they should not assume that the court's conclusion will be followed by other courts.

4. It is very important for any church having employees to adopt a sexual harassment policy. Such a policy has a number of significant advantages. First, it will reduce the likelihood of such claims because a properly drafted policy will provide employees and employers with a definition of sexual harassment. Unfortunately, sexual harassment is more likely to flourish where employees and employers lack a clear understanding of what it means. By clearly defining the term in a policy, employees will be effectively warned against behaviors, however "innocent," that cross the line. And, employers will be better informed about behavior that is inappropriate. In summary, a properly drafted sexual harassment policy can be an effective tool in reducing the risk of sexual harassment, and the turmoil that often is associated with such claims. Second, a sexual harassment policy will provide a church with a potent legal defense in the event of a sexual harassment claim. The assistance of an attorney is vital in the drafting of a sexual harassment policy. Carnesi v. Ferry Pass United Methodist Church, 770 So.2d 1286 (Fla. App. 2000).

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

A Florida court ruled that churches and denominational agencies that dismiss clergy for sexual misconduct, and that later provide them with financial assistance to enable them to pursue studies in another profession, are not liable for injuries they cause in the course of their new profession.

Church Law and Tax1999-11-01

Sexual Misconduct by Clergy and Church Staff

Key point. A church that dismisses an employee for sexual misconduct, and that offers the former employee financial assistance to pursue another profession, is not necessarily liable for future acts of sexual misconduct by the former employee in the course of his or her new profession.

Key point. A church may be legally responsible for providing a positive and unqualified reference on a former worker if it knows that the worker presents a risk of harm and fails to disclose this information.

1. A Florida court ruled that churches and denominational agencies that dismiss clergy for sexual misconduct, and that later provide them with financial assistance to enable them to pursue studies in another profession, are not liable for injuries they cause in the course of their new profession. The court also addressed the important question of legal liability for providing misleading references. Three young men (the “plaintiffs”) were sexually abused by a former Catholic priest long after he left the church and while he was a counselor with a secular counseling center. The plaintiffs sued the diocese and individual priests on the theory that they were liable because when the offending priest, a known pedophile, was removed from the priesthood, they provided financial assistance in order for him to complete a degree in counseling. Several years after this financial assistance and after the former priest obtained his degree and became licensed by the state as a counselor, he abused these plaintiffs. It was plaintiffs’ contention that “but for” this financial assistance, the priest would not have received a degree, would not have become a counselor, would not have been licensed by the state, would not have become employed by the secular counseling center, and would not have abused these plaintiffs.

The court concluded,

We are not willing to hold that one who makes it possible for a criminal, even a pedophile, to receive a college education is thereafter liable when years later, even if using the degree thus obtained, such person commits a criminal act. There are many jobs that may be available to one with a counseling degree that will not involve contact with children. The diocese could not foresee that [the former priest] would be licensed as a counselor by the state and hired by [the secular counseling center] to counsel young people without first checking [his] background with the diocese. There is no allegation that the diocese made any effort to conceal [the former priest’s] background or to hide the reason for his removal as an active priest.

The plaintiffs also sued a psychologist who treated the priest for a number of years because he, after voluntarily assuming the duty of recommending the priest for licensure, failed to report that he was a pedophile. The court noted that the psychologist responded to a questionnaire from the Florida Department of Professional Regulation. He was advised that his failure to respond might result in the former priest’s being denied licensure as a counselor. He responded as a psychologist and acknowledged a professional relationship with the former priest. He then deceived the Department concerning the former priest’s background and, because of such deceit, the former priest was licensed and permitted to practice counseling with youth. The court permitted the plaintiffs to sue the psychologist for injuries they sustained because of the actions of the former priest.

Application. This case illustrates two important points. First, churches and denominational agencies that provide financial assistance to dismissed ministers to enable them to pursue a new profession are not necessarily legally responsible for injuries caused by such a minister in the course of his or her new profession. Second, the case illustrates the potential legal liability that is associated with giving false references. In this case, the former priest was licensed as a counselor in part because of the positive reference provided by a psychologist who was aware of the priest’s prior acts of child molestation. Church leaders who have knowledge that a former worker presents a risk of harm to others are potentially liable if they provide a positive and unqualified reference. Smith v. Dorsey, 725 So.2d 1196 (Fla. App. 1998). [Termination]

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

A Florida court ruled that it was barred by the first amendment from resolving a woman’s lawsuit claiming that she had been the victim of a priest’s sexual misconduct.

Church Law and Tax1999-03-01

Sexual Misconduct by Clergy and Church Workers

Key point. Several courts have concluded that churches cannot be legally responsible for a minister’s sexual misconduct, since allowing them to be sued for failing to exercise sufficient care in the selection, training, or supervision of clergy would violate the first amendment guaranty of religious freedom.

Key point. Several courts have concluded that churches cannot be legally responsible on the basis of a breach of a fiduciary duty for a minister’s sexual misconduct, since recognizing such a theory of liability would require a civil court to consider church doctrine and polity.

A Florida court ruled that it was barred by the first amendment from resolving a woman’s lawsuit claiming that she had been the victim of a priest’s sexual misconduct. A woman sought out a priest for marital counseling, and alleged that the priest engaged in sexual contacts with her. The woman sued her church and diocese, claiming that they were aware of prior incidents involving sexual misconduct during counseling by the same priest. Despite this knowledge, nothing was done to address the problem. She claimed that the priest breached a fiduciary duty by becoming romantically involved with her; that the church and diocese had a fiduciary relationship with her (because she reported the priest’s misconduct to them) that was breached; and, that the church and diocese engaged in negligent hiring, supervision, and retention of the priest. The church and diocese asked the court to dismiss the lawsuit against them on the ground that a resolution of the woman’s claims would result in an “excessive entanglement” of the court with religious beliefs in violation of the first amendment. The court agreed with the church and diocese, and dismissed the lawsuit against them. The woman appealed. The appeals court’s resolution of the woman’s claims is addressed below.

Negligent Hiring, Supervision, Retention

The court began its opinion by noting that the first amendment prohibits any governmental practice (including judicial resolution of internal church disputes) that would lead to an “excessive entanglement” between church and state. The court noted that excessive entanglement occurs “when the courts begin to review and interpret a church’s constitution, laws, and regulations. The first amendment prohibits courts from resolving doctrinal disputes or determining whether a religious organization acted in accordance with its canons and bylaws.” The court reviewed several court decisions from other jurisdictions, and concluded that the resolution of a negligent hiring, supervision, or retention claim against a church or diocese would amount to an excessive entanglement in violation of the first amendment:

Our examination of case law presenting both sides of this question leads us to conclude the reasoning of those courts holding the first amendment bars a claim for negligent hiring, retention, and supervision is the more compelling. In a church defendant’s determination to hire or retain a minister, or in its capacity as supervisor of that minister, a church defendant’s conduct is guided by religious doctrine and/or practice. Thus, a court’s determination regarding whether the church defendant’s conduct was “reasonable” would necessarily entangle the court in issues of the church’s religious law, practices, and policies. “Hiring” in a traditional sense does not occur in some religions, where a person is ordained into a particular position in the church, and assigned to one parish or another. A court faced with the task of determining a claim of negligent hiring, retention, and supervision would measure the church defendants’ conduct against that of a reasonable employer; a proscribed comparison.

Breach of Fiduciary Duty

The court concluded that resolving the woman’s breach of fiduciary duty claims (against the priest, church, and diocese) would constitute excessive entanglement between church and state in violation of the first amendment:

Taking the allegations of [her] complaint as true, [she] alleged the church defendants owed her a fiduciary duty, yet definition of that duty necessarily involves the secular court in church practices, doctrines, and belief. To establish a breach of the fiduciary duty allegedly owed to [her] by the church defendants, [she] would need to establish the church remained inactive in the face of her allegations against [the priest]. However, the church’s policies undoubtedly differ from the rules of another employer, and may require the nonsecular employer to respond differently when faced with such allegations. When a secular court interprets church law, policies, and practices it becomes excessively entangled in religion. We align ourselves with those courts finding a first amendment bar to a breach of fiduciary duty claim as against church defendants, concluding resolution of such a claim would necessarily require the secular court to review and interpret church law, policies, and practices.

Emotional Distress

The court dismissed the woman’s emotional distress claim against the church and diocese, for two reasons. First, resolution of such a claim would violate the first amendment, and second, the woman’s lawsuit failed to recite facts that would support liability on such a basis. A claim for intentional infliction of emotional distress may be asserted where conduct has been “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” The court noted simply that the allegations of the woman’s lawsuit “fall short of satisfying this test.”

Application. This case will be helpful to any church or denominational agency that is sued on the basis of negligence or breach of a fiduciary duty because of a minister’s sexual misconduct. The court concluded that the first amendment bars the civil courts from holding churches liable on these grounds for a minister’s misconduct. Doe v. Evans, 1998 WL 567904 (Fla. App. 1998). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denominational Liability]

Recent Developments in Florida Regarding Clergy Removal

A Florida court ruled that a church board properly removed a pastor without a congregational vote.

Church Law and Tax1999-03-01

Clergy-Removal

Key point. The civil courts are prohibited by the first amendment guaranty of religious freedom from resolving lawsuits brought by dismissed clergy challenging their dismissals, especially if the resolution of such a dispute would require consideration of ecclesiastical matters.

A Florida court ruled that a church board properly removed a pastor without a congregational vote, since this was the procedure specified in the church’s charter and bylaws. A church’s board of deacons (the board of directors) voted to terminate their pastor’s employment pursuant to the following provision in the church’s articles of incorporation: “With respect to the hiring of a … pastor … the sole responsibility for both hiring and firing said individuals shall rest with the deacons, as more fully set out in the bylaws of this not for profit corporation.” The church’s bylaws contain the following provision:

The board of deacons shall have the power to appoint and dismiss the pastor …. Dismissal of a pastor shall only be accomplished after prayerful consideration, in accordance with Matthew Chapter 18, 15th through 17th verse. However, it is specifically understood that there is no specific time period involved and the amount of prayerful consideration and the amount of time to correct any deficiencies and determination of such shall be solely up to the board of deacons.

There is no provision in the church’s articles of incorporation or bylaws for participation by the church’s membership in the dismissal procedure. After the board terminated the pastor’s employment, a number of church members objected. The board then decided to convene a meeting of the membership, at which the members would be given an opportunity to vote on the dismissal. At the meeting fifty-eight members present voted to retain the pastor while thirty-two voted for dismissal. Absentee ballots, ten for retention, twelve for dismissal, were also counted, as if the members casting them were present, for a total of sixty-eight for retention, forty-four for dismissal. Notwithstanding the majority vote for retention, the board later met and decided to dismiss the pastor. The pastor rejected the board’s action, and continued to serve as pastor of the church. The board, on behalf of the church, asked a court to issue an injunction prohibiting the pastor from serving. The board insisted that its decision to dismiss the pastor was the only action required to terminate his employment, and therefore he was no longer the church’s pastor. The pastor, on the other hand, argued that the board effectively “amended” the bylaws when it permitted the membership vote, and therefore the vote was valid and the pastor retained. A trial court agreed with the pastor, and the church appealed.

A state appeals court ordered the trial court to issue an injunction banning the pastor from serving. It noted that the church’s articles of incorporation permit the bylaws to be amended in either of the following two ways: (1) by a procedure initiated by any member, which ultimately requires the approval of two-thirds of the members of the church; and (2) by the board. State nonprofit corporation law, however, requires that any new bylaws must be consistent with the articles of incorporation. As a result, the pastor’s argument that the board “amended” the bylaws by calling a meeting of the membership to vote on the pastor’s retention had to be rejected, since such an “amendment” would be in direct violation of the articles of incorporation which allow a pastor to be removed only by the board. The court concluded: “If the board and the members had intended to amend the bylaws to share the dismissal authority, their intentions failed. This would not have precluded the board from allowing a straw vote of the membership, so long as the board did not delegate or abdicate its sole authority. Indeed it appears that this is what occurred here.”

The court concluded that the board properly dismissed the pastor, and that the trial court erred in refusing to grant the church’s request for an injunction prohibiting the pastor from serving as pastor of the church.

Application. This case demonstrates an important principle-the bylaws of an incorporated church cannot be amended in a way that is inconsistent with the church’s articles of incorporation. As a result, any attempt to amend a church’s bylaws in violation of its articles of incorporation is of no legal effect and is subject to reversal if challenged. It is therefore essential to carefully review every proposed bylaw amendment prior to presentation to the church membership to ensure consistency with the articles of incorporation. New Mount Moriah Missionary Baptist Church, Inc. v. Dinkins, 708 So.2d 972 (Fla. App. 1998). [Termination, Corporations]

Recent Developments in Florida Regarding Personal Injuries on Church Property or During Church Activities

The Florida Supreme Court ruled that a funeral home was responsible for injuries sustained by a woman who was involved in an accident while driving her vehicle through a red light at a busy intersection as part of a funeral procession.

Church Law and Tax1998-01-01

Personal Injuries-on Church Property or During Church Activities

Key point. A church may be liable for accidents that occur during a funeral procession.

The Florida Supreme Court ruled that a funeral home was responsible for injuries sustained by a woman who was involved in an accident while driving her vehicle through a red light at a busy intersection as part of a funeral procession. The woman claimed that the funeral home was aware that the procession would pass through a major intersection, that many guests were from out—of—town and were not familiar with the traffic route, and that the vehicles in the procession could not all pass through the intersection on a green light. Despite this knowledge, the funeral home (1) failed to use law enforcement personnel to direct traffic; (2) failed to properly supervise the procession; (3) failed to advise guests of the potential traffic hazards; (4) failed to provide guests with written instructions on participating safely in the procession; and (5) encouraged guests to “keep up” with the procession regardless of traffic lights. The court ruled that the funeral home could be liable on the basis of negligence under these circumstances for injuries sustained by a guest participating in the procession.

Application. This case involved the liability of a funeral home for an accident occurring during a funeral procession that originated from its facility. Had the funeral been conducted at a church, it is possible that the church could also have been liable of the injury on the basis of negligence. Whenever your church conducts a funeral on its premises, and a funeral procession leaves from your parking lot, here are some steps you can take to reduce your risk: (1) Provide guests with written instructions to the cemetery, and advise them that there will not be a formal funeral procession. (2) If you want to have a funeral procession, retain the services of your local police or highway patrol to help in organizing and supervising the procession. (3) If you have a funeral procession, provide guests with written instructions. For example, inform guests that they must use their headlights, and if they become separated from the group they will be required to obey all traffic signals. (4) If you have a funeral procession, choose a route that avoids traffic hazards (such as major intersections), even if it longer. Union Park Memorial Chapel v. Butt, 670 So.2d 64 (Fla. 1996). [Negligence as a Basis for Liability]

Minors and Assumption of Risk

Churches should not rely on release forms signed by minors.

Church Law and Tax 1997-07-01

Personal injuries-on church property or during church activities

Key point. Minors do not have the capacity to sign contracts, and therefore cannot sign binding “releases” or “assumptions of risk” that exempt churches or other organizations from legal liability.

A Florida court ruled that a 13—year—old girl could sue a ranch for injuries she sustained when she fell off a horse despite the fact that she signed a legal document releasing the ranch from all liability for any accident or injury. A sign at the ranch stated: “Caution: Horseback riding can be dangerous. Ride at your own risk.” In addition, the girl was asked to sign a release form that stated:

In consideration of permission granted to me to ride [horses at the ranch] I hereby, for myself, my heirs, administrators, and assigns, release, remise, and discharge the [ranch] and its agents and employees, of and from all claims, demands, actions and injuries, sustained to my person or property as a result of any act, omission, or negligence [of the ranch] while riding [horses] on the premises of [the ranch].

I am aware of the risks and dangers involved in horseback riding and that unanticipated and unexpected dangers may arise, and I assume all risks of injury to my person and property that may be sustained as a result.

I represent and certify that I am at least 18 years of age, or if I am under the age of 18 years old, I represent and certify that I have the permission of my parents or guardian to rent and ride [horses at the ranch] and that they have full knowledge thereof ….

I have read and understand the above.

On the day of the accident, the girls horse began to move on its own initiative at a faster gait, and the girls attempts to stop or control the horse failed. She was injured when she struck the branch of a tree as the horse ran close to it. The girl and her mother sued the ranch, claiming that it knew that inexperienced riders often are not aware that a horse can suddenly go from a walk to a gallop, and that they may be unable to control the horse. Further, the girl and her mother claimed that the ranch did not provide adequate supervision of the girl, and failed to adequately protect her against injury. The ranch relied on the legal document signed by the girl, and the sign that was posted on its premises.

A state appeals court ruled that the girl was not prevented from suing the ranch on the basis of either the document she signed or the sign that was posted on the ranchs premises. The court acknowledged that release forms that “clearly state that party is released from liability for its own negligence in clear and unequivocal words are effective.” However, this rule not apply to documents signed by minors who lack the legal capacity to enter into contractual obligations. The court concluded that “a minor child injured because of [anothers] negligence is not bound by her contractual waiver of her right to file a lawsuit.”

Application. The lesson of this case is plain-churches should not place any reliance on releases or assumption of risk forms signed by minors. These forms are not the way to address and reduce legal risk. They are not a substitute for adequate supervision of activities involving minors. Dilallo v. Riding Safely, Inc., 687 So.2d 353 (Fla. App. 1997). [ Negligence as a Basis for Liability]

Man Sues Church for Abuse Suffered as Minor

Court rules that the statute of limitations bars him from suing.

Church Law and Tax 1997-05-01

Sexual Misconduct by Clergy and Church Workers

Key point. The first amendment guaranty of religious freedom does not necessarily prevent the civil courts from resolving lawsuits alleging sexual misconduct by clergy.

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

A Florida court ruled that a 27-year-old man who had been molested by a priest when he was a minor was barred by the statute of limitations from suing his church. A priest committed improper acts with an altar boy starting when the boy was thirteen and continuing until he was twenty-five years old. At some point the young man realized that the priest had indeed committed horrible wrongs against him and that the church, either directly or through the bishop, might be legally responsible for these wrongs. As a result, the victim sued the priest on the basis of the sexual abuse of a minor. He also sued the church and the bishop on the basis of negligent hiring and retention of a priest they knew or should have known was unsuitable to have contact with children. The church and bishop asserted two defenses. First, that the victim waited too long to file his lawsuit, and that it was barred by the statute of limitations. Second, that the first amendment prevents a civil court from intruding into a church’s selection, training, supervision, and assignment of priests.

statute of limitations

The court agreed with the church and bishop that the victim’s lawsuit was barred by the statute of limitations. The court noted that the victim was suing the church and bishop for negligence in the hiring and retention of the priest. Under Florida law, the statute of limitations for negligence lawsuits is four years. Since this period is suspended until a minor plaintiff reaches age eighteen, the victim had until age twenty-two to file a lawsuit against the church and bishop. The victim did not sue until he was twenty-seven, but insisted that the statute of limitations should have been suspended further until he became “aware” of his injuries. The court rejected this argument:

This young man knew the identity of the [priest] and the improper conduct engaged in by the [priest] long before he reached the age of majority. This was sufficient knowledge to file an action against the priest for the wrongful sexual battery committed against him and, again assuming such cause of action is available, against the church and bishop for making such conduct possible because of the negligent retention of the priest …. [T]he negligent retention of a priest who would commit child abuse, at least insofar as this young man is concerned, must have occurred while he was still a child. Therefore, when [the victim] turned eighteen, he was aware that a priest had sexually abused him and that the church had permitted the priest to serve in the parish which made the abuse possible. Sexual abuse of a child in and of itself causes sufficient actual damages, as a matter of law, to support both the intentional tort action against the priest and the negligence action, if one exists, against the church and the bishop …. The fact that [the victim] in this case was not immediately aware of all of his resulting emotional problems might create uncertainty as to the amount of his damages but it does not toll the period of limitations.

negligent hiring and retention

Since the court ruled that the statute of limitations barred the victim’s lawsuit against the church and bishop, it was not required to decide whether or not the first amendment prevents the civil courts from resolving negligence claims brought against churches for the sexual misconduct of clergy. However, the court did make the following observation:

In any event, we are persuaded that just as the state may prevent a church from offering human sacrifices, it may protect its children against injuries caused by pedophiles by authorizing civil damages against a church that knowingly (including should know) creates a situation in which such injuries are likely to occur. We recognize that the state’s interest must be compelling indeed in order to interfere in the church’s selection, training and assignment of its clerics. We would draw the line at criminal conduct.

liability for the priest’s actions after the minor reached adulthood

The victim claimed that the priest’s inappropriate sexual behavior continued until the victim was twenty-five years of age, and that the statute of limitations did not prevent him from suing the church and bishop for at least some of this behavior. The court disagreed:

Insofar as the adult acts are concerned, we conclude that the sexual acts between the adult participants herein were not criminal. [The victim] does not contend that he did not consent to the continued relationship. It is his position that his consent should be considered invalid because the priest “deliberately and calculatingly caused a relationship whereby [he] was able to exert undue influence, dominion and control over the [victim].” We do not believe that a sexual battery has been committed when a person of normal intelligence submits to a sexual relationship due to the “emotional attachment” to another person.

Application. This case is noteworthy for the following reasons: (1) It demonstrates the obstacle that the statute of limitations poses to adults attempting to sue for incidents of molestation that occurred when they were minors. Even those courts that are willing to suspend the statute of limitations until a victim “discovers” his or her injuries are very reluctant to do so when the acts of molestation occurred when the victim was an adolescent (as opposed to a young child). (2) This court would permit churches to be sued for negligent hiring or retention of clergy in cases involving criminal misconduct. Other courts have concluded that the first amendment prevents churches from being sued for negligently hiring or retaining ministers. (3) The court emphasized that adults who engage in consensual sexual acts with a priest cannot later sue for damages. Doe v. Dorsey, 683 So.2d 614 (Fl. App. 1996). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denomina tional Liability]

Dispute Over Minister’s Removal Cannot Go to Court

Civil courts cannot rule on ecclesiastical matters.

Franzen v. Poulos, 604 So.2d 1260 (Fla. App. 3 Dist. 1992)

Key point: The civil courts are compelled by the first amendment guaranty of religious freedom to refrain from interfering with the internal decisions of hierarchical churches, including decisions regarding the discipline or dismissal of clergy.

A Florida appeals court ruled that the civil courts have no authority to intervene in a local church dispute involving the removal of a minister and the church's compliance with its own constitution.

Allegations of misconduct were made against the pastor of a local church affiliated with the Evangelical Lutheran Church. These allegations resulted in a dispute among congregational members regarding the retention of the pastor. The local church council (the governing board of the local church) referred these allegations to a denominational synod for investigation.

After investigation, a meeting of the entire congregation was scheduled. At this meeting, the bishop (the chief administrative officer of the synod) was to present recommendations for resolution of the internal church dispute, and a vote was to be taken on whether or not to retain the pastor. The bishop established "ground rules" for determining who would be eligible to vote (under the local church and synod constitutions) at the meeting. A few days before the scheduled meeting of the congregation, the pastor filed a lawsuit asking a court to block the meeting.

The pastor claimed that the church council had not followed the church constitution in forwarding allegations of misconduct to the synod, and that the bishop might manipulate the voting constituency at the meeting in a way that would result in the pastor's dismissal. Two days before the scheduled meeting, a trial court issued an order permitting the meeting to proceed but limiting the voting constituency to those persons who were church members as of a specified date (60 days prior to the meeting).

The trial court based its involvement in the case on the fact that the church was incorporated under state law. The effect of this order was to exclude 39 persons from voting who had become members within 60 days of the meeting. These 39 members were allowed to cast ballots, but they were not counted. The congregation voted on a motion do dismiss the pastor. When the votes were counted under the conditions specified by the trial court, the motion failed by 2 votes to achieve the two-thirds majority required by the church constitution. However, if the 39 excluded votes were included, the motion would have easily passed. Accordingly, the trial court's order directly affected the result of the election.

The church council and bishop appealed the trial court's order and the election. A state appeals court reversed the ruling of the trial court. It observed:

[T]he temporary injunction should not have been issued. The trial court took the position that because the local church is incorporated under Florida law, "the court has jurisdiction over the subject matter of this case and the members of the corporation." The court exercised that jurisdiction by deciding which persons would be entitled to vote at the [church meeting]. While the trial court is ordinarily empowered to adjudicate questions of Florida corporate law, a first amendment exception applies to matters of internal governance of a hierarchical religious organization. As summarized by the Supreme Court: "In short, the first and fourteenth amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them." Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).

The court concluded that the pastor's lawsuit in this case "sought to inject the court into the internal governance of the Lutheran Church, a hierarchical religious organization of the type described in the Serbian Eastern Orthodox decision." The pastor argued that the Supreme Court's ruling (quoted above) in the Serbian Eastern Orthodox case, requiring the civil courts to defer to the rulings of hierarchical bodies, only applied if a final decision has been rendered by the highest ecclesiastical authorities of a hierarchical church.

The court disagreed: "That is plainly not the case. As the Serbian Eastern Orthodox decision clearly indicates, the judiciary is obliged to defer to the hierarchical church's internal decisional processes on matters of internal church discipline and government." The court rejected several court rulings relied upon by the pastor in support of his position on the ground that they all involved "independent congregations which are not part of a hierarchical church organization."

What is the significance of this ruling? Consider the following points. First, it represents a broad recognition of the autonomy of churches to deal with internal matters of discipline and church governance without interference by the civil courts. In this sense, this case will be a useful precedent. Second, the court limited its ruling to hierarchical churches. This was unfortunate. While the Supreme Court's decision in the Serbian Eastern Orthodox did involve a hierarchical church, it is by no means clear that the Court intended to limit its ruling to hierarchical churches.

The principle the Court announced, that churches should be free to resolve questions of discipline and church governance free from civil court interference, transcends the context of hierarchical churches and equally applies to congregational or independent churches. Of the few courts that have addressed this issue directly, most have applied the Serbian Eastern Orthodox ruling to congregational as well as hierarchical churches. Third, the court correctly rejected the trial court's conclusion that the mere fact of church incorporation under state law exposes a church's internal disputes to civil court jurisdiction.

As the appeals court noted, "[w]hile the trial court is ordinarily empowered to adjudicate questions of Florida corporate law, a first amendment exception applies to matters of internal governance of a hierarchical religious organization."

See also "Church elections," Bacher v. Metcalf, 611 So.2d 1030 (Ala. 1992).

Religious Organizations and Religious Discrimination

A Florida law allows churches to discriminate on the basis of religious affiliation.

Church Law and Tax 1992-07-01 Recent Developments

Legislation

The Florida Civil Rights Act of 1992 permits religious organizations to discriminate in employment decisions on the basis of religion. The new law, which consists of a series of amendments to a 1977 civil rights law, prohibits employers (employing 15 or more employees) to engage in discrimination in hiring on account of an individual’s “race, color, religion, sex, national origin, age, handicap, or marital status.” However, the new law contains the following provision: “This section shall not apply to any religious corporation, association, educational institution, or society which conditions opportunities in the area of employment or public accommodation to members of that religious corporation, association, educational institution, or society or to persons who subscribe to its tenets or beliefs. This section shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such corporations, associations, educational institutions, or societies of its various activities.”

The Legal Effect of Not Wearing a Seatbelt

A Florida court recently addressed this interesting question.

Church Law and Tax 1991-05-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

A Florida court addressed the interesting question of the legal effect of not wearing a seat belt. A woman was injured when she was struck by a church-owned vehicle that was being driven in a negligent manner. The woman sued the church, and a jury found the church negligent, assessing damages at $300,000. However, the jury also found that 80% of the woman’s injuries were attributable to her failure to wear a seat belt, and accordingly her damages were reduced by 80% (or $240,000) to a total of $60,000. At the trial, the church established that the woman’s car had a seat belt. The woman herself testified that she was thankful not to have worn the belt because of her belief that a seat belt would have caused additional injuries. The woman appealed, and a state appeals court ordered the church to pay the full verdict of $300,000 on the ground that it had failed to prove that the seat belt was operational. The court noted that in order for an accident victim’s damages to be reduced for failure to wear a seat belt, it must be proven that a seat belt was available, that it was operational, and that the victim’s failure to use the belt contributed substantially to at least a part of his or her injuries. While the church had established that a seat belt was available and that the victim’s injuries were substantially attributable to her failure to wear the belt, it had failed to prove that the seat belt was “operational.” Accordingly, there was no basis for reducing the judgment of $300,000. This case is interesting, since it illustrates the willingness of some courts, under certain conditions, to reduce an accident victim’s monetary damages if he or she was not wearing a seat belt at the time of the accident. Not only is this a defense that is available to churches in some states to reduce the amount of damages they owe to an accident victim whose injuries are attributable in part to a failure to wear a seat belt. But church leaders should also recognize that if they are injured by the negligence of another driver, the money damages to which they are entitled may be reduced if they were not wearing an available and operational seat belt at the time of the accident. This certainly should serve as additional motivation for encouraging all church staff to wear seat belts. Smith v. Holy Temple Church of God in Christ, Inc., 566 So.2d 864 (Fla. App. 1990).

Negligence as a Basis for Liability – Defenses

Invalidation of Charitable Gifts Made Prior to Death

A Florida law allowing heirs to challenge wills was recently repealed.

Church Law and Tax 1991-01-01 Recent Developments

Wills, Trusts, and Estates

The Florida Supreme Court struck down a state law that permitted certain heirs to challenge gifts made to churches and other charities in a will executed within 6 months of a person’s death. Prior to this ruling, Florida law, like the laws of a small and dwindling number of states, permitted a spouse or “lineal descendent” to challenge a will of a decedent who died within 6 months after executing a will leaving all or part of his or her estate to a religious or charitable organization. An elderly Florida resident executed a will on May 5, 1986, leaving most of her estate to a charity. The woman’s will left only a token gift to the her sole suriving daughter since the daughter “has not shown or indicated the slightest affection or gratitude to me” and since “I have contributed substantially during my life for her education and subsequent monies I have been required to expend primarily due to her promiscuous type of life.” The woman died two months later, survived only by her daughter. The daughter immediately challenged her mother’s will on the basis of the state law permitting lineal descendants to challenge charitable gifts made in their parents’ wills if executed within 6 months of death. The charity opposed the daughter’s action on the ground that the state law was violated the constitutional guaranty of the “equal protection of the laws.” A trial court agreed with the charity, but a state appeals court agreed with the daughter. The case was appealed to the state supreme court, which ruled that the state law was unconstitutional. The court began its opinion by observing that statutes restricting charitable gifts originated in feudal England “as part of the struggle for power and wealth between the king and the organized church.” As feudalism declined, the justification for these laws became the protection of surviving family members against disinheritance caused by the undue influence of religious organizations. In rejecting this rationale, the court observed that “it is unreasonable to presume, as the statute seems to do, that all lineal descendants are dependents, in need, or are not otherwise provided for.” The court emphasized that state law has ample protections against undue influence and fraud that can be used by disinherited family members without the need for a specific statute. Further, the court observed that “the charitable gift restriction fails to protect against windfalls by lineal descendants who have had no contact with the decedent but who may benefit from the avoidance of a charitable gift.” Since the statute was not “reasonably necessary to accomplish the asserted state goals,” it violated the state constitution. Further, the statute violated the federal and state constitutional protections of the “equal protection of the laws,” since it treated gifts made to charitable and religious organizations within 6 months of death less favorably than other gifts without any rational justification. The fact that a gift is made within 6 months of death is not in itself sufficient proof of undue influence, noted the court, since most gifts made within 6 months of death are not the product of undue influence and some gifts made more than 6 months prior to death are. Accordingly, the 6-month rule was arbitrary and treated charities less favorably than other citizens or organizations without adequate justification. One dissenting justice cautioned that the law might still serve a valuable purpose in appropriate cases: “Surely one would have to say that, had the [decedent] succumbed to a televion evangelist’s call to be with the Lord by delivering her property to his church and thus leave unprotected a physically handicapped child, a rationale basis for the statute would exist.” In conclusion, note that the court observed that there are only three other states that have laws invalidating charitable gifts made within a specified time prior to death—Georgia, Idaho, and Mississippi. Shriners Hospital v. Zrillic, 563 So.2d 64 (Fla. 1990).

Related Topics:

Construction

Projects

Church Law and Tax 1990-09-01 Recent Developments

Construction Projects

A Florida state appeals court ruled that a church was not liable on a mechanic’s lien filed by a company that supplied materials to a subcontractor working on a church construction project. The supplier filed the lien against the church’s property when it was not paid for materials that it supplied. The court ruled that the church was exempt from any mechanic’s lien arising out of the construction project since the general contractor (pursuant to the construction contract) had obtained a “payment bond” in favor of the church from a bond company that insured payment of all subcontractors and material suppliers on the job. Under Florida law, a payment bond exempts a property owner from liens of subcontractors and material suppliers, who must proceed directly against the bond company for payment. This case illustrates a very important point—churches may be liable for “double payment” of some construction expenses if subcontractors or suppliers are not paid. In many states, this risk can be eliminated by purchasing a payment bond. Such bonds should be considered prior to the beginning of any construction project. The risk of double payment also can be reduced by withholding progress payments until “lien waivers” are obtained from subcontractors and material suppliers. The risk of double payment is a real one that should be considered by church leaders prior to any construction project. Corporation of the President of the Latter Day Church or Jesus Christ v. Seymour Electric Supply, Inc., 558 So.2d 88 (Fl. App. 1990).

Related Topics:

Child Care

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

Church Law and Tax 1990-05-01 Recent Developments

Child Care

Does a Florida law exempting church-operated child care facilities from state licensing violate the first amendment’s “nonestablishment of religion” clause? No, concluded a federal district court in Florida. A number of years ago, the Florida legislature enacted a law setting forth detailed safety and health standards that Florida child care facilities must meet in order to obtain a license to operate. The standards impose a broad range of requirements relating to personnel, physical facilities, emergency medical care, disease control, nutrition and food preparation, admission and recordkeeping, and transportation. Compliance with the standards imposes substantial costs on child care facilities, and these costs must be passed along to customers. Child care facilities that are an “integral part of a church” are specifically exempted from the licensing requirement. Although church-operated facilities still must comply with minimum local health and safety ordinances and Florida’s personnel screening requirements, they are not subject to the extensive regulations other child care facilities must conform to, and therefore they have lower operating costs. Because of their lower operating costs, church-operated facilities can charge lower rates to their customers than non-exempt facilities, giving them a competitive economic advantage. A non-exempt child care center filed a lawsuit challenging the validity of the church exemption. The court noted that any law challenged on the basis of the first amendment’s “nonestablishment of religion” clause will be upheld only if it (1) has a secular purpose, (2) does not have a primary effect of advancing religion, and (3) does not create an excessive entanglement between church and state. The court concluded that the Florida law’s exemption of church-operated child care facilities was valid under this test. The law had the legitimate “secular purpose” of “refraining from imposing governmental regulation [on churches] and avoiding any interference with the ability of a religious organization to define and carry out its mission.” Further, in concluding that the law’s “primary effect” was not the advancement of religion the court observed: “Simply because religious organizations are afforded an economic advantage over secular child care facilities does not mean that the law has a ‘primary effect’ that advances religion. Florida, rather than advancing religion … is simply allowing for an accommodation of the free exercise of religion by permitting exemption from licensure.” Finally, the Florida law did not create an “excessive entanglement” between church and state. “Rather, it accomplishes a more complete separation of the two. By exempting child care facilities that are an integral part of church or parochial schools from compliance with state licensing requirements the state is removing the potential for burdensome … litigation that would be necessary absent a general exemption.” Forte v. Coler, 725 F. Supp. 488 (M.D. Fl. 1989).

Freedom of Relgion – Part 2

Church Law and Tax 1990-01-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Church Law and Tax 1990-01-01 Recent Developments

Freedom of Religion

Can a civil court force a woman to receive a life-saving blood transfusion against her will and contrary to her religious beliefs? Yes, concluded the Florida Supreme Court. The woman entered a public hospital suffering from “dysfunctional uterine bleeding”, and was informed by doctors that she would die if she did not receive a blood transfusion. The woman, a practicing Jehovah’s Witness and mother of two minor children, refused the transfusion on the ground that it would violate her religious beliefs (she was competent at the time of her decision). The hospital asked a civil court to force the woman to undergo a blood transfusion. The court granted the hospital’s request and ordered the woman to undergo a transfusion (she was by then unconscious), on the ground that “minor children have a right to be reared by two loving parents, a right which overrides the mother’s right of free exercise [of religion] and privacy.” Upon regaining consciousness, the woman appealed the court’s order to a state appeals court, which ruled in favor of the woman. The hospital appealed the case to the state supreme court, which also ruled in favor of the woman. The court cited four factors to consider in deciding whether or not a patient’s constitutional right to religious freedom outweighs the state’s interest in requiring potentially life-saving medical treatment: “(1) preservation of life, (2) protection of innocent third parties, (3) prevention of suicide, and (4) maintenance of the ethical integrity of the medical profession.” The court disagreed with the hospital’s claim that the state’s interest in maintaining a home with two parents for minor children outweighed any constitutional right of the mother to terminate her life by refusing medical treatment. The court quoted with approval from the state appeals court ruling: “[This case involves] a delicate balancing analysis in which the courts weigh, on the one hand, the patient’s constitutional right of privacy and right to practice one’s religion, as against certain basic societal interests. Obviously, there are no preordained answers to such problematic questions and the results reached in these cases are highly debatable. Running through all of these decisions, however, is the courts’ deeply imbedded belief, rooted in our constitutional traditions, that an individual has a fundamental right to be left alone so that he is free to lead his private life according to his own beliefs free from unreasonable governmental interference. Surely nothing, in the last analysis, is more private or more sacred than one’s religion or view of life, and here the courts, quite properly, have given great deference to the individual’s right to make decisions vitally affecting his private life according to his own conscience. It is difficult to overstate this right because it is, without exaggeration, the very bedrock on which this country was founded.” Public Health Trust v. Wons, 541 So.2d 96 (Fla. 1989).

Child Abuse – Part 1

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

Church Law and Tax 1990-01-01 Recent Developments

Child Abuse

A question that undoubtedly will be of increasing concern to church staff members is their potential civil liability for failing to report known or reasonably suspected cases of child abuse. In many states church staff members are required to report known or reasonably suspected cases of abuse to the authorities. In some states, they have the option to report or not to report. Whether reporting is required or not, a church staff member who is aware (or reasonably should be aware) of an incident of abuse and who elects not to report it may later be sued by the victim. Will such lawsuits be successful, and if so, what will be the basis of liability? A Florida appeals court recently issued a ruling that addresses these issues in the context of a psychiatrist’s failure to report a patient’s physical and emotional abuse of his daughters. The minor daughters sued their father’s psychiatrist, alleging that he knew that his patient had abused his daughters, that he failed to report the abuse to state authorities as required by law, and that his failure to report caused the children to suffer continued abuse and injury. The court acknowledged that state law requires many categories of professionals (including psychiatrists) to report “known or suspected child abuse or neglect,” and imposes criminal penalties for failure to do so. However, the court observed that the reporting law said nothing about victims being able to sue persons who fail to report, and it refused to create a new theory of liability. In fact, it stated that the “increasing complexity” of legislation and the “much higher volume of litigation” required the courts to refrain from creating new theories of liability unless a statute specifically provides for them. It observed that the Florida legislature “has had ample opportunity to broaden the penalty for failure to report” child abuse by allowing children to sue persons who fail to report. As a result, the court rejected the daughters’ attempt to sue the psychiatrist for injuries they allegedly suffered because of his failure to report. A dissenting judge argued that the daughters should have been permitted to sue the psychiatrist. He maintained that “our jurisprudence rests on the principle that for every wrong there is a remedy,” and that the purpose of the child abuse reporting law was sufficiently broad and important that private lawsuits should be encouraged rather than discouraged. This case provides some indication that civil lawsuits against clergy and other church staff members who fail to report incidents of child abuse may not be allowed by the courts, despite the fact that the victims continue to suffer abuse or molestation because of the failure to report. Certainly it is too early to make such a prediction at this time, but the Florida case at least indicates that the civil courts will not automatically recognize such lawsuits. Future developments of course will be fully addressed in this newsletter. Fischer v. Metcalf, 543 So.2d 785 (Fla. App. 1989).

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