Defamation Claims Against Church Members

Court rules that it may resolve lawsuit.

Church Law and Tax 1997-05-01

Libel and Slander

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

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

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

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

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

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

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

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

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

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

Church Business Meetings

Does state law override an organization’s bylaws?

Church Law and Tax 1997-05-01

Church Business Meetings

Key point. State nonprofit corporation law ordinarily does not override provisions in an incorporated church’s bylaws.

The Georgia Supreme Court ruled that a provision in the state nonprofit corporation law mandating annual membership meetings did not take priority over a provision in a church’s bylaws calling for membership meetings once every four years. The members of a church filed a lawsuit in civil court seeking to compel their church to conduct an annual membership meeting. The members relied upon a provision in the state nonprofit corporation law specifying that a nonprofit corporation “shall hold a meeting of members annually at a time stated in or fixed in accordance with the bylaws.” The church’s bylaws call for a membership meeting once every four years. A trial court ruled in favor of the members, and ordered the church to hold annual membership meetings. The church appealed, and the state supreme court ruled that state nonprofit corporation law did not override the church’s own bylaws and therefore the church was required to conduct meetings only once every four years. The court observed that the state nonprofit corporation law itself specifies that if any of its provisions is inconsistent with religious doctrine governing a nonprofit corporation’s affairs on the same subject “the religious doctrine shall control to the extent required by the Constitution of the United States or the Constitution of this state or both.” As a result, the issue “is whether the frequency with which the church’s membership meets is a matter of religious doctrine having constitutional precedence over inconsistent statutory provisions of [the nonprofit corporation law].”

The court noted that the church in this case was “hierarchical” in nature, and that the members had very limited authority to direct church affairs. It concluded:

an annual meeting as contemplated by [the nonprofit corporation law] would be totally inconsistent with the church’s fundamental religious freedom, as a hierarchical religious body, to determine its own governmental rules and regulations. Members have no legal right to wrest the governing of the church from [church officials] by obtaining court-ordered annual meetings conducted in accordance with [nonprofit corporation law].

The court noted that in 1976 the United States Supreme Court ruled that “religious freedom encompasses the power of religious bodies to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” It concluded that the trial court’s order compelling the church to hold annual meetings in accordance with the state nonprofit corporation law “constitutes an unconstitutional judicial interference in the government of the church.”

Application. This case illustrates an important point-incorporated churches are free to adopt bylaws addressing issues of internal administration, and these bylaws generally take precedence over conflicting provisions in state nonprofit corporation law. In other words, state nonprofit corporation law may be viewed in most cases as a “gap filler”-filling gaps in a church’s bylaws. For example, if an incorporated church’s bylaws do not address how vacancies on the board are to be filled, or do not define a quorum, the nonprofit corporation law will “fill the gaps.” First Born Church of the Living God, Inc. v. Hill, 481 S.E.2d 221 (Ga. 1997). [Corporat ions, Church Members, Church Business Meetings]

Related Topics:

Church Liability for the Sexual Misconduct of Ministers

Church and denominational agency not responsible for pastor’s misconduct

Church Law and Tax 1997-01-01

Church Liability For The Sexual Misconduct Of Ministers

Church and denominational agency not responsible for pastor’s misconduct – Alpharetta First United Methodist Church v. Stewart, 473 S.E.2d 532 (Ga. App. 1996)

[ Negligence as a Basis for Liability, Denominational Liability]

Article summary. A Georgia court addressed the complex legal issues surrounding the sexual seduction of a woman by a pastor in the course of a counseling relationship. The court concluded that a church and denominational agency were not responsible for the woman’s injuries on the basis of respondeat superior or negligence, since they had no prior knowledge of misconduct by the offending pastor. The court cautioned that churches and denominational agencies are potentially liable on the basis of negligence for injuries sustained by victims of sexual misconduct if they have knowledge of prior misconduct. However, since the woman could not prove that church officials either knew or should have known of any previous sexual misconduct by the offending pastor, the negligence claims had to be dismissed.

In a decision that will be relevant to both churches and denominational agencies, a Georgia court dismissed a lawsuit brought by a woman against her church and a denominational agency as a result of injuries she allegedly sustained during a sexual relationship with her pastor. The court’s decision addresses a number of important legal issues, including respondeat superior, the statute of limitations, negligence, and the effect of prior notice of inappropriate conduct. This article will summarize the facts of the case, review the court’s ruling, and assess the significance of the case to other churches and denominational agencies.

Facts

A husband and wife joined a church in 1990. The woman sought counseling from an associate pastor at the church because of an incident involving a pastor in her former church. She informed the senior pastor of her former church about a “drunken assault” by the church’s associate pastor during a mission trip. The woman claimed that her former pastor did not believe her, told her she was “a troublemaker,” and asked her to leave the church. The woman was concerned that her new pastors had been told about this incident, and she met with an associate pastor to find out what had been said about her. The associate pastor met with the woman on a number of occasions, but eventually informed her that she should discontinue the counseling sessions with him and find another counselor because he was sexually attracted to her. Despite this request, the woman did not discontinue the counseling sessions, and the two began having “phone sex” conversations. The woman claimed that the associate pastor initiated the first such conversation but that at times she would call him. She insisted that while she led him to believe she was participating in the “phone sex,” she was, in reality, only pretending.

The woman alleged that toward the end of their counseling relationship the associate pastor called her at home and asked her to come to his office so they could have sex. She drove to his office and the two engaged in intercourse. The woman did not see the associate pastor anymore for counseling after this incident because by that time he had referred her to another counselor. However, the two continued to engage in “phone sex” and they engaged in sexual intercourse on several other occasions, even after the associate pastor was assigned to another church. The woman quit seeing the associate pastor when she learned that he was engaged to be married to another woman.

The woman informed her church’s new associate pastor of her involvement with his predecessor. However, she refused to permit him to disclose the information on the ground that she was “not ready to tell anyone else.” A few months later the woman sent a letter to a denominational office, describing her sexual relationship with the former associate pastor. The day denominational officials received the letter they confronted the former associate pastor and he submitted his resignation.

The woman and her husband sued the pastor, their church, and a denominational agency. They claimed that they both had suffered serious emotional damages as a result of the associate pastor’s behavior. The woman sued the associate pastor, church, and denominational agency for

  • battery
  • intentional infliction of emotional distress
  • false imprisonment
  • assault
  • breach of trust, and
  • professional malpractice

The husband sued the associate pastor, church, and denominational agency for loss of consortium. The couple both sued the church and denominational agency, claiming that they were legally responsible for the pastor’s misconduct on the basis of respondeat superior, negligent hiring, and negligent retention.

The couple insisted that while the woman appeared to consent to the sexual contacts she was in reality the victim of the associate pastor’s manipulation of the “transference” phenomenon. Transference is defined as “a process whereby a patient undergoing psychotherapy for a mental or emotional disturbance (particularly a female patient being treated by a male psychotherapist) develops such overwhelming feelings of warmth, trust, and dependency towards the therapist that she is deprived of the will to resist any sexual overtures he might make.” Jacobsen v. Boyle, 196 Ga.App. 411, 412, 397 S.E.2d 1 (1990).

The church and denominational agency claimed that the statute of limitation barred the lawsuit and that the first amendment guaranty of religious freedom protected them from the negligent hiring and negligent retention claims. They also insisted that the sexual relationship was consensual, and even assuming “transference” did occur and the woman was incapable of resisting the pastor’s sexual advances, they could not be guilty for the pastor’s sexual misconduct. The church and denominational agency filed a motion for summary judgement, asking the court to summarily dismiss all claims against them. A trial court rejected this request, and the case was appealed.

The court’s decision

A state appeals court reversed the trial court’s decision, and ruled that all claims against the church and denominational agency had to be dismissed. The court based its conclusion on the following grounds:

Statute of limitations

The court agreed that the couple’s claims were barred by the statute of limitations, which requires lawsuits to be filed within a specified period of time. The couple had two years to file their lawsuit under the Georgia statute of limitations, yet the lawsuit was not filed for nearly three years after the associate pastor left the church to accept a new assignment. The court also noted that the woman admitted that for more than two years prior to the time the lawsuit was filed she had progressed in her therapy to the point where she was able to tell the associate pastor “no” if he approached her about sexual relations. The court concluded that any acts of sexual intercourse occurring after this time were by her own admission consensual. The court rejected the couple’s argument that the statute of limitations was “suspended” due to the woman’s depression, noting that “this is not evidence of incompetency sufficient to toll the statute of limitation.”

Respondeat superior

Under the legal doctrine of respondeat superior, an employer is liable for the acts of its employees occurring within the scope of their employment. In rejecting the couple’s claim that the church and denominational agency could be liable on this basis, the court observed:

Even assuming that the relationship between [the woman and her pastor] was not consensual, it is well settled under Georgia law that an employer is not responsible for the sexual misconduct of an employee. The basis for these holdings is that these types of torts, being purely personal in nature, are unrelated to the employee’s duties and, therefore, are outside the scope of employment because they were not in furtherance of the master’s business. This is especially true of the sexual misconduct of a minister. The record shows that such behavior is clearly contrary to the tenets and principles of the [church] and is not a part of, or in any way incidental to, a minister’s duties and responsibilities. Therefore, even if her tort claims were not time—barred [the woman] cannot recover against the church and [denominational agency] under a theory of respondeat superior.

Negligent selection

The couple claimed that the church and denominational agency were responsible for their injuries on the basis of negligent selection. Specifically, they claimed that both the church and denominational agency failed to exercise reasonable care in the selection of the associate pastor. In rejecting this claim, the court observed:

An employer may not be held liable for negligent hiring or retention unless the [victim] shows the employer knew or should have known of the employee’s violent and criminal propensities. Specifically, the [couple] must show that the church and the [denominational agency] knew or should have known of [the associate pastor’s] propensity for sexual misconduct …. There is nothing in the record before us to show the church or [denominational agency] should have been on notice prior to ordaining [the associate pastor] that he had a propensity for sexual misconduct.

The court noted the following precautions that were taken prior to the time the associate pastor was ordained:

He had graduated from seminary and then worked for two years in a lay position before applying to be ordained.

As part of the ordination process he was required to submit letters of recommendation to the ordination committee.

As part of the ordination process he was required to submit academic transcripts to the ordination committee.

As part of the ordination process he was required to undergo psychological testing.

As part of the ordination process he was required to undergo extensive interviews by the ordination committee.

As proof that the church and denominational agency had been negligent in ordaining or hiring the associate pastor, the couple noted that he had been suspended for a year while in seminary for cheating on a Hebrew examination, and that his psychological evaluation indicated certain problems, such as difficulty controlling his impulses, a tendency to use poor judgment, a tendency to disregard the rights of others, and a likelihood to express aggression in a physical manner. The court disagreed that these facts proved that either the church or denominational agency was guilty of negligent selection: “These types of generalized findings, without more, are not sufficient to put the church and [denominational agency] on notice of a propensity for sexual misconduct.” The court pointed out that the psychological evaluation (which consisted of the Minnesota Multiphasic Personality Inventory, the Interpersonal Behavior Survey, the Strong—Campbell Interest Inventory, and the Sentence Completion Test) also showed several positive characteristics such as: “He is very social and interested in leadership in service to other people …. He shows a pattern of interest moderately like those of successful ministers or social workers.”

Negligent retention

Finally, the couple claimed that the church and denominational agency were responsible for their injuries on the basis of negligent retention. Specifically, they argued that both organizations left the associate pastor in his position despite knowledge that he posed a risk of harm to women. This knowledge consisted of the following three facts:

There were rumors at the church about the pastor’s relationship with another woman who was a church employee.

A letter to the senior pastor from a prospective church member put the church and denominational agency on notice of the associate pastor’s propensity for sexual misconduct. In the letter, a woman claimed that the associate pastor came to her house in an intoxicated condition, made inappropriate comments and touched her on the knee.

The woman informed the church’s new associate pastor of her relationship with his predecessor.

The court concluded that this evidence did not render the church or denominational agency negligent for retaining the associate minister. It based this conclusion on the following factors:

With regard to the rumors of an improper relationship with the female church employee, the court noted that (1) the associate pastor later married this woman; (2) the associate pastor denied any inappropriate conduct with this woman when confronted about it by the senior pastor; (3) the senior pastor recommended that the associate pastor be transferred to another church on the basis of these rumors; and (4) the associate pastor’s “personal, consensual relationship with [the employee] is totally unrelated to the type of conduct complained of by [the woman in this lawsuit].”

With regard to the letter, the court noted that (1) the senior pastor immediately called the woman and met with her to discuss the letter; (2) the senior pastor also discussed it with the associate pastor who denied the events in the letter; (3) the senior pastor conducted a thorough investigation and determined the woman was not telling the truth; (4) the senior pastor testified that at no time did any woman come to him and say she was having a sexual relationship with the associate pastor; (5) the senior pastor testified that he was never, at any time, led to believe that the associate pastor was a threat to women parishioners; and (6) the senior pastor stated, in an affidavit, that “[i]n fact, I believe that [the associate pastor] possibly had an excellent future in the ministry.”

With regard to the woman’s disclosure to the church’s new associate pastor of her relationship with his predecessor, the court noted that she also told him she was not ready to come forward and tell anyone else about the relationship. Therefore she “cannot now complain of [his] failure to act when she told him she was not ready to disclose her relationship with [the associate pastor]. The court also noted that the woman’s communications to the new associate pastor were privileged and could not be disclosed without her permission.

The court concluded:

The record is also devoid of any probative evidence tending to show the church or [denominational agency] were or should have been on notice of a propensity for sexual misconduct after [the associate pastor] became a minister at the church. The [couple] make numerous allegations as to [the associate pastor’s] conduct with different women but have submitted no admissible evidence in support of this contention.

Relevance of the case to other churches

What is the relevance of this ruling to other churches? Obviously, a decision by a Georgia appeals court is of limited significance since it has no direct or binding effect in any other state. Nevertheless, there a number of aspects to the ruling that will be instructive to church leaders in every state. Consider the following:

1. The risks of counseling. There have been a number of lawsuits over the past few years brought by women who claim to have been seduced or sexually assaulted by male clergy and mental health professionals during counseling sessions. In some cases, the minister or counselor denies any wrongdoing, and the case becomes one of “her word against mine.” There is no doubt that some of these allegations are without basis, and are brought by women seeking a legal settlement (or some other ulterior motive). On the other hand, in many cases these allegations are true. As much as we would like to deny it, private counseling sessions involving dependent and emotionally vulnerable persons can present unique and sometimes formidable temptations.

Because of the unique temptations that counseling can present, and the possibility of false claims being brought against counselors, “defensive measures” should be taken by pastors and others who engage in counseling. Unfortunately, such measures were not taken in this case. No restrictions or “boundaries” were placed by the church on the offending pastor’s counseling activities. There are a number of ways to deal with this risk, including the following:

Method #1 – the third person rule

One effective way to deal with this risk is to adopt a policy prohibiting any male minister or counselor on staff from counseling privately with an unaccompanied female (i.e., opposite sex counseling) unless a third person is present. The third person should be the minister’s or counselor’s spouse, another minister on staff, or a mature and trusted church employee (preferably female). The presence of a third person probably will negate the “clergy—penitent” privilege for clergy counselors, meaning that either the pastor or counselee can be compelled to answer questions in a court of law regarding the communications that occurred. In most cases, loss of the clergy—penitent privilege is more than outweighed by the reduced risk that will occur.

There have been no reported cases involving a claim of sexual seduction of a male counselee by a female counselor. As a result, churches using female counselors are reducing their risks significantly. Of course, there remains the possibility of an unstable male counselee making unfounded accusations against a female counselor, and as a result churches using female counselees may want to consider adopting the same precautions that apply to male counselors.

Method #2 – women counsel women

Since the vast majority of cases of inappropriate sexual behavior involve male counselors and female counselees, churches can significantly reduce their risk by using women to counsel women.

Method #3 – “intermediate measures”

There are other defensive measures that some churches have tried, such as use of a plate glass window in the pastor’s office making all counseling sessions clearly visible to office staff, or leaving the door to the counseling room open. Such practices can be effective in reducing risk, so long as there are other persons visible in the church office during all counseling sessions. Obviously, this may not be possible in all situations. For example, many smaller churches have no other office workers who can observe counseling sessions.

Some churches seek to reduce risk by imposing “boundaries” on the counseling ministry. For example, some churches (1) require a third person to be present for any counseling occurring off of church premises; (2) allow one—on—one counseling on church premises only during office hours if other staff members are present and visible; (3) limit counseling sessions to 45 minutes; and (4) permit no more than 5 counseling sessions with the same person during a calendar year.

Churches that adopt these lesser measures must recognize that they are not reducing risk as much as if they applied the “third person rule” or required women to counsel women. It is absolutely imperative that churches adopting these lesser measures incorporate them into official church policy and strictly monitor them to prevent any deviations. Remember, windows or open doors are of no value if a counseling session extends beyond normal office hours and the church staff leaves-or if there is no staff to “observe” counseling sessions.

2. Transference recognized. It is significant that the court recognized what psychologists call the “transference phenomenon.” The court defined transference as “a process whereby a patient undergoing psychotherapy for a mental or emotional disturbance (particularly a female patient being treated by a male psychotherapist) develops such overwhelming feelings of warmth, trust, and dependency towards the therapist that she is deprived of the will to resist any sexual overtures he might make.” Recognition of the transference phenomenon makes it more likely that a court would reject “consent” as a defense to an incident of sexual misconduct by a counselor.

3. Counselees who forbid disclosure. The woman informed her church’s new associate pastor of her involvement with his predecessor. However, she refused to permit him to disclose the information on the ground that she was “not ready to tell anyone else.” The court concluded that the associate pastor was prohibited by the woman’s own instructions to disclose to anyone what she had told him regarding the former pastor’s misconduct.

The court also noted that the woman’s communications to the new associate pastor were privileged and could not be disclosed without her permission.

4. Negligent selection. The court concluded that the church and denominational agency were not responsible for the woman’s injuries on the basis of negligent selection. The court acknowledged that employers can be liable on the basis of negligent selection for injuries caused by their employees, but only if they “knew or should have known” of an employee’s “propensity for misconduct.” The court concluded that neither the church nor the denominational agency was guilty of negligent selection, since neither had knowledge of any prior activities by the offending pastor suggesting that he posed a risk of harm to others.

In addition, the court noted the precautions that were taken prior to the time the associate pastor was ordained, including the following: (1) he had graduated from seminary and then worked for two years in a lay position before applying to be ordained; (2) as part of the ordination process he was required to submit letters of recommendation to the ordination committee; (3) as part of the ordination process he was required to submit academic transcripts to the ordination committee; (4) as part of the ordination process he was required to undergo psychological testing; and (5) as part of the ordination process he was required to undergo extensive interviews by the ordination committee.

5. Negligent retention. The court rejected the woman’s claim that the church and denominational agency were responsible for her injuries on the basis of negligent retention of the offending pastor. The court concluded that the church and denominational agency were not negligent in retaining the pastor despite their knowledge of (1) rumors about the offending pastor’s relationship with another woman who was a church employee; (2) a letter to the senior pastor from a prospective church member claiming that the offending pastor came to her house in an intoxicated condition, made inappropriate comments and touched her on the knee; and (3) the woman’s disclosure of the offending pastor’s misconduct to the new associate pastor. The court concluded that the circumstances surrounding each allegation did not demonstrate negligence on the part of the church or denominational agency in retaining the offending pastor.

Georgia Court Upholds Will Donating Part of an Estate to Charity

Deceased was not a victim of ‘undue influence,’ court says.

Yancey v. Hall, 458 S.E.2d 121 (Ga. 1995)

Key point. A gift of property to a church that is contained in a decedent's will can be invalidated if the gift was the product of "undue influence."

A Georgia court ruled that a gift of a portion of an estate to a church agency was not invalid on the ground that the attorney who drafted the will suggested the charity.

A man (the deceased) went to an attorney to have a will drafted. The deceased had no surviving spouse or children, and left $50,000 of his estate to a niece and $1,000 to a nephew. The smaller amount distributed to the nephew was based on the deceased's expressed belief that his nephew was a ne'er do well who drank a lot. The deceased expressed a desire to leave the balance of his estate to charity, and the attorney suggested a particular church agency. The deceased agreed with this recommendation, and a will was drafted and signed containing these provisions.

Following the death of the deceased, the will was filed with a probate court. The nephew challenged the will on two grounds. First, he insisted that the gift to the church agency was invalid on the ground that it was the product of the attorney's undue influence of the deceased. Second, he claimed that the will was invalid on the ground that it was based on the deceased's mistaken belief that the nephew was a ne'er do well who drank a lot.

The Georgia Supreme Court rejected the nephew's claims. First, it ruled that the attorney's suggestion of a particular charity in response to the deceased's expression of a desire to leave a portion of his estate to a charity was not undue influence. The court observed that [a]n influence becomes undue so as to invalidate a will only when it is extended to such a degree as to override the discretion and destroy the free agency of the [deceased]. The attorney's mere advice or suggestions fell far below this standard. Second, the court rejected the nephew's claim that the will should be invalidated on the basis of mistake.

The nephew insisted that the deceased left him only a nominal amount based on a mistaken assumption that he was a ne'er do well who drank a lot. The nephew claimed that he had not had a drink in 20 years, and therefore the deceased was operating under a mistaken assumption in drafting the will. The court disagreed. While a will can be invalidated in some cases on the basis of mistake, this rule does not apply to a mistake resulting from an error of judgment after investigation or from negligent or willful failure to make a proper investigation by means of which the truth could be readily and surely ascertained.

The court noted that the nephew and the deceased lived only a mile apart and they saw each other on a daily basis. As a result, if the deceased gave the nephew $1,000 on the basis of a mistaken belief that he was a ne'er do well who drank a lot, he deliberately arrived at his conclusion of fact after an investigation satisfactory to himself, without choosing, as he might easily have done, to make one more thorough and searching. That his conclusion was wrong affords no cause for destroying his [will].Undue Influence

The Hidden Threat of Reverter Clauses

Churches may lose property if they accidently trigger a reverter clause.

Key point: The deeds to some church property specify that the church shall remain in possession so long as the property is used for church purposes, and that if the property ever ceases to be so used it shall revert to the person who conveyed the property to the church. The effect of such deeds can come as an unpleasant surprise to church leaders.

Can a church lose its property if it ceases to use it for religious purposes? That was the issue before the Georgia Supreme Court in a recent case.

The court ruled that the property of a Baptist church "reverted" to the previous owner when the church moved to another location. In 1947 a landowner transferred property to a Baptist church with a deed that contained a "reverter clause." This clause specified that the church would own the property "only so long as said lot is used for church purposes, it being expressly provided that if said lot of land should ever cease to be used for such church purposes, then the title thereto … shall immediately revert to the [previous owner]."

The church constructed a building on the property and used it continually as its place of worship. In 1979 the majority of the church's membership voted to move to another location. A minority continued to worship at the original site, with the permission of the majority. Shortly after the majority of members vacated the property, the prior owner filed a lawsuit claiming that the majority's relocation triggered the reverter clause—meaning that neither the majority nor minority of church members had any further right to the property.

A trial court rejected the prior owner's claim, and the case was appealed to the state supreme court. The supreme court ruled that the reverter clause had been triggered by the majority's relocation, and that the prior owner was entitled to the property. It observed:

[T]he language of the reverter clause is clear that the property is to be used for the "sole use, benefit and enjoyment of [the church] and the members thereof, the same to be used as a place of divine worship by the congregation of said church," and that title reverts when the property is not used "for such church purposes." The use of the property by the minority which formed its own congregation … is not a permitted use of the property by [the majority] under the plain language of the reverter clause, even though that use is with the permission of the majority …. Accordingly, the property reverted to [the prior owner] in 1979 when it was no longer used by the majority for its church purposes.

What this means for churches

What is the significance of this case to your church? Consider this—many churches received title to their property by means of a deed containing a similar restriction. It is imperative for church leaders to be aware if such a condition exists. This can be easily determined by inspecting the deed to the church property.

While the language of these conditional deeds varies, it is common to condition a church's ownership of deeded property on continuous use of the property for religious purposes. Such a condition would mean that a church could not sell its property to a buyer who did not plan on using the property for religious purposes. Some of these conditional deeds are even more restrictive, conditioning a church's ownership on continued use of the property as a church of a specified religious denomination. Under such a clause, a church could not sell its property to a buyer other than another church of the same denomination.

In some cases (as in the Georgia case) a deed conditions a church's ownership on continued use of the property for religious purposes by the congregation that purchased the property. This is even more restrictive, for a church could not sell the property to anyone without triggering a reversion in favor of the previous owner. Obviously, this is a matter that must be taken very seriously.

Our recommendation—check the deed or deeds to your church property to determine if any conditions exist. If they do, it is possible in some cases to have them "released" by the previous owner (if he or she is willing to do so). Often this is done by having the previous owner execute a quitclaim deed. If the previous owner is no longer living (a fairly common circumstance) then the condition can be released only by all of the legal heirs of the deceased owner. This can be a very cumbersome process. First Rebecca Baptist Church v. Atlantic Cotton Mills, 440 S.E.2d 159 (Ga. 1994). 8B4, 9C1

Related Topics:

Liability for Workers with Criminal Records

Churches are only liable if criminal record correlates to the injuries a worker may cause, court rules.

Worstell Parking, Inc. v. Aisida, 442 S.E.2d 469 (Ga. App. 1994)

Key point: Churches that hire a worker with a criminal record are not necessarily responsible for injuries the worker causes to others. There must be a correlation between the criminal record and the kind of injury caused by the worker in order for the church to be responsible for the injuries on the basis of negligent selection.

A Georgia court ruled that an employer was not responsible for a worker's assault despite his criminal record, since the criminal record did not reveal any crimes of violence.

While the case did not involve a church, the court's conclusions will be relevant to churches and other religious organizations that often are accused of negligently hiring workers with criminal records. A parking lot attendant assaulted a customer without provocation. The customer sued the assailant's employer on the basis of negligent hiring. That is, the employer was responsible for the customer's injuries as a result of its negligence in hiring the attendant despite his criminal record. In fact, the attendant had been convicted for various drug offenses. The court concluded that evidence of these crimes did not suggest that the attendant posed a risk of assault or other violent behavior. It observed:

An employer's liability for negligent hiring or retention of an employee requires proof that the employer knew or should have known of the employee's violent and criminal propensities …. [T]he record contains an affidavit of [the parking lot's] owner and manager [who] stated that he had no knowledge that the parking attendant was a violent person and that he was not aware of any prior violent acts or violent propensities of the attendant. [He] also stated that he had never received any complaints about the attendant. [The victim] alleges that the [employer] had constructive notice of the attendant's violent propensity because the attendant checked "yes" in response to a question on his employment application regarding whether he had been arrested for any criminal charges, excluding minor offenses. Although the record reflects that the attendant had been convicted of several violations of [drug laws], the record is devoid of any evidence that the parking attendant had a propensity towards violence or that [his employer] knew of that propensity. Furthermore, [the victim's] argument that [the employer] had a duty to investigate the attendant's past behavior before [it] employed the attendant is without merit.

This case is important for a number of reasons, including the following:

  • Most importantly, it illustrates that employers (including churches) are not automatically responsible on the basis of negligent hiring for assaults and other injuries caused by their employees. As the court observed, "[a]n employer's liability for negligent hiring or retention of an employee requires proof that the employer knew or should have known of the employee's violent and criminal propensities."
  • An employer's affidavit can be helpful in getting a lawsuit dismissed based on negligent hiring—if the employer had no prior knowledge of an employee's violent or criminal propensities. The court placed great emphasis on the employer's affidavit in this case. The affidavit contained the following representations: (1) The employer had no knowledge that the parking attendant was a violent person; (2) the employer was not aware of any prior violent acts or violent propensities of the attendant; and (3) the employer had never received any complaints about the attendant.
  • The case illustrates that hiring an employee with a criminal record does not necessarily make the employer responsible for the employee's assaults or other criminal behavior on the basis of negligent hiring. There must be some correlation between the criminal record and the assault. The court concluded that prior drug convictions do not suggest that a prospective employee poses a risk of assault or other violent behavior. Note that two other cases reviewed in this newsletter addressed this same issue. A feature article entitled "Liability for Child Molestation Occurring on Church Premises" reviews a decision of a Texas appeals court. Doe v. Boys Clubs of Greater Dallas, 868 S.W.2d 942 (Tex. App. Amarillo 1994). The court concluded that prior convictions for driving while intoxicated do "not put a reasonable person on notice that [one] might be a pedophile." A recent development under the topic "sexual misconduct by clergy and church workers" addresses a decision of a Washington appeals court. Carlsen v. Wackenhut Corp., 868 P.2d 882 (Wash. App. Div. 2 1994). The Washington court ruled that an employer could be sued on the basis of negligent hiring for a sexual assault by one of its employees. The court noted that the employee had a previous criminal conviction for robbery, and concluded that this placed the employer on notice that the individual had a "propensity for violent behavior" (including a sexual assault)
  • The court ended its opinion by observing that the victim's "argument that [the employer] had a duty to investigate the attendant's past behavior before [it] employed the attendant is without merit." This suggests that the parking lot owner had no duty to investigate the attendant's past criminal behavior before hiring him.

While not all courts would agree with the court's conclusions, the case will be a useful precedent for churches who are sued as a result of the misconduct of employees and volunteers.

Reliability of Children’s Claims of Molestation

How is the reliability of children’s statements determined?

Church Law and Tax1994-11-01Recent Developments

Sexual Misconduct by Clergy and Church Workers

Key point: Some courts have listed factors to consider in evaluating the reliability of a child’s accusation of molestation. These factors may be helpful to churches in evaluating allegations of molestation.

A Georgia appeals court listed several factors to consider in evaluating the reliability of a child’s claim that he was molested. The factors may be useful to churches in evaluating similar claims. Here they are: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same, and the nature of the child’s statement and type of language used; and (10) the consistency between repeated out-of-court statements by the child.

The court concluded that “[o]ur review of the record, including the transcript of the interview of the victim by the social service specialist, indicates that the victim’s statements, introduced through hearsay at trial, were made originally by the victim in a spontaneous manner without apparent coaching. Although there was evidence presented that the victim had originally named other possible perpetrators, her later statements consistently named the defendant. We find that a sufficient showing of indicia of reliability … was established as to all out-of-court statements made by the victim and testified to by witnesses at trial.” White v. State, 440 S.E.2d 68 (Ga. App. 1994).

See Also: Failure to Report Child Abuse

Churches’ Liability for Children in Their Care

What legal responsibility do churches have to supervise children?

Church Law and Tax 1994-11-01 Recent Developments

Sexual Misconduct by Clergy and Church Workers

Key point: A church can be legally responsible on the basis of negligent supervision for the abduction and molestation of a child who wanders off of church premises.

In a decision that will be of direct relevance to churches, a Georgia court ruled that a local Boys Club could be sued by the parents of a 5-year-old boy who was abducted and molested when he wandered off the Boys Club premises without adult supervision. The victim was enrolled in a summer day camp conducted by the Boys Club in his community. Boys in the program ranged from 6 to 11 (an exception was made in the case of the victim), and the boys were to be under the direct supervision of an adult worker at all times. An adult was stationed at a desk by the front door of the facility, and no child was allowed to leave the premised unattended. Nevertheless, the victim was able to walk out the front door and go around the building to look at the swimming pool without adult supervision. While outside, the boy was abducted and sexually molested. No adult staff member was aware of the victim’s absence until his big brother brought it to the staff’s attention. A search proved fruitless. The boy was later found in a nearby forest by police. About a month before the abduction a staff member called the victim’s parents to inform them that the boy was missing. After a thorough search the boy was found asleep in a small room on the premises. The victim’s parents expressed concern about this incident and were assured that the staff would in the future watch the victim closely and keep track of his whereabouts. The parents later sued the Boys Club and a trial court dismissed the lawsuit. The parents appealed, and a state appeals court ruled that the parents could sue the Boys Club on the basis of negligent supervision. The appeals court began its opinion by explaining the “duty of care” that is imposed on institutions that care for or work with children:

The measure of duty of a person undertaking control and supervision of a child to exercise reasonable care for the safety of the child is to be gauged by the standard of the average responsible parent; such person is not an insurer of the safety of the child and has no duty to foresee and guard against every possible hazard. The measure of precaution which must be taken by one having a child in his care, who stands in no relation to the child except that he has undertaken to care for it is that care which a prudent person would exercise under like circumstances. As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm.

Applying this standard to the facts of this case, the court concluded that the question remained “whether a prudent person caring for a five or six-year-old child under similar circumstances would have allowed the child to leave the building without an older person, and thus whether [the Boys Club] breached its duty of care.” Accordingly the trial court erred in dismissing the lawsuit. Further, the court pointed out that there was evidence that the Boys Club “undertook to ensure that [the victim] was under the direct supervision of an adult at all times and that a child of his age would not leave the building unattended or unquestioned,” and that it promised the victim’s parents that it would watch the victim and keep track of his whereabouts. The court observed:

When one promises to do something and another reasonably and foreseeably relies on that promise, the promisor has a duty to perform the promised act in a non-negligent manner. Accordingly, the duty imposed on [the Boys Club] in this case is not only the general duty owed by anyone who undertakes the care of a child but also the duty arising from [its] policies and its promises to [the victim’s] parents to enforce those policies and [the parents’] reliance on those promises.

The court rejected the Boys Club’s argument that its negligence was “superseded” by the intervening and unforeseeable criminal act of the molester. In other words, the Boys Club may have been negligent, but it cannot be responsible for an unforeseeable criminal act. The Boys Club stressed that no similar incidents had ever occurred on its premises. The court rejected this argument. It concluded that in the case of negligent supervision “what is reasonably foreseeable is not exclusively dependent upon what is known about a specific place.” In other words, the fact that no abductions had ever occurred on the premises did not mean that such a risk was unforeseeable. The proper question is “what may happen to any child at any place.” Based on this standard the court concluded that the risk of abduction was foreseeable, and accordingly the Boys Club’s negligence was not cut off. The court noted that “[o]ne has only to read the daily newspapers … to appreciate the prevalence of child abduction and abuse in our society.”

A dissenting judge warned that the court’s decision makes any person or organization that works with children an “insurer” of their safety, thereby increasing to an unacceptable degree the potential liability of all who care for children. The dissenter lamented, “[i]s the Sunday School teacher in a relatively crime-free rural community now required reasonably to foresee that a child who physically strays from the fold will be abducted from church property even though no similar acts have ever occurred previously in that community?” The dissenter concluded by observing that “the potential for expansion of parental and volunteer care giver liability posed by this broad language is self-evident.” Wallace v. Boys Club of Albany, Georgia, Inc., 439 S.E.2d 746 (Ga. App. 1993).

See Also: Negligent Supervision

Related Topics:

Church Liability for Murders Related to Ministers’ Affairs

A Georgia court dismissed such a case.

Church Law and Tax1994-09-01Recent Developments

Sexual Misconduct by Clergy and Church Workers

• A Georgia appeals court dismissed a daughter’s lawsuit against a priest and Catholic diocese claiming that her father murdered her mother and then killed himself as a result of an adulterous affair between the mother and a priest. The daughter claimed that her mother had been seduced by the priest, and that her father shot and killed her mother and then shot himself after finding out about it. The daughter claimed that the diocese was responsible for her parent’s deaths on the basis of negligent hiring and retention of the priest. She insisted that if the diocese had adequately investigated the matter and “defrocked” the priest, the deaths would not have occurred. The priest denied any wrongdoing and insisted that “the only relationship between him and [the mother] was that of the usual relationship between a priest and his parishioner.” A trial court granted the motion of the priest and diocese for a “summary judgment” in their favor on the ground that there was no competent evidence that an affair ever occurred. The daughter appealed, arguing that evidence of the affair did exist. Specifically, the daughter alleged that her mother told her sister that she had been seduced by the priest several days after the seduction allegedly occurred. The daughter acknowledged that this was hearsay evidence, but that it was admissible in court under the so-called “necessity” exception to the general rule that hearsay testimony is not admissible. Under the necessity exception, hearsay testimony is admissible in court if there is a special necessity to do so (for example, the person who spoke the words is now deceased) and there is ample proof of the trustworthiness of the alleged testimony. The appeals court concluded that this test was not satisfied, since it did not find the deceased mother’s alleged statements to be trustworthy. The court observed: “We find no evidence of trustworthiness. To the contrary, all signs point to the unreliability of [the mother’s] declarations. She told a friend that she did not have an affair with [the priest] and in an official church investigation by the church she denied any involvement with the priest. She wrote a letter to [her] archbishop in which she stated that she had fantasized an affair with [the priest] because her husband was away on business and she was lonely. She asked the archbishop for forgiveness and stated that she was seeking professional help. What is more [the father] believed [his wife] was having an affair with [another person, named Michael]. In a suicide note, he fingered [Michael] as his wife’s lover. Finally, a greeting card was found at the scene of the [parents’] murder/suicide. The care was addressed to Michael and bore [the mother’s] handwriting.” The court concluded that the priest and diocese “produced evidence demonstrating that [the priest] did not have a sexual relationship with [the mother]. [The daughter] has failed to come up with evidence to the contrary. It follows that the trial court did not err in granting summary judgment to [the priest and diocese]. The court’s decision is strengthened by the fact that it was upholding the trial court’s summary judgment in favor of the priest and diocese. The significance of a summary judgment cannot be overstated, since it represents a decision that the prevailing party is entitled to win as a matter of law without the necessity of a jury trial. The court in essence says that reasonable minds could not disagree as to the outcome of the case, and therefore it should be disposed of summarily. Such a ruling is an especially strong statement of the merits of the prevailing party’s position. Clearly, it is a much stronger vindication of the position of the priest and diocese than a jury verdict in their favor. Boehm v. Abi-Sarkis, 438 S.E.2d 410 (Ga. App. 1993).

See Also: Seduction of Counselees and Church Members | Negligence as a Basis for Liability – Defenses | Cases Finding Denominations Not Liable

Related Topics:

Are Pledges Legally Enforceable?

In some cases, a financial pledge may be legally enforceable.

Key point: A promise to make a charitable contribution to a church may be legally enforceable if the promisor receives something of value ("consideration") for his or her promise.

Can a person who promises to make a $25,000 contribution to a church be compelled to honor his commitment? That was the issue before a Georgia appeals court.

A church purchased property from an individual for $375,000. In the contract of sale the seller promised to donate $5,000 to the church each year for the next five years (for a total contribution of $25,000). When the promised donations were not made, the church sued the seller for breach of contract. The seller claimed that his promise to make the donations was unenforceable because of lack of "consideration" for his promise.

A trial court ruled in favor of the seller, concluding that a commitment or promise is not enforceable unless the promisor receives something of value ("consideration") in return. The court concluded that the seller received no value for his promise to make the donations, and therefore the promise was not enforceable.

The church appealed, and a state appeals court agreed with the church. It observed: "[A]lthough [the seller] asserts the promise to pay the church $25,000 was without consideration … nothing in the [record] shows that to be the case. [The sales contract] recites that the promise to pay $25,000 was made as additional consideration for the church to buy [the seller's] property." The case was sent back to the trial court for further proceedings. First Baptist Church v. King, 430 S.E.2d 635 (Ga. App. 1993).

Members Block Church’s Disposition of Assets

In some states, members may challenge a church board’s decision to dispose of assets.

Key point: Church members may have the right under state law to have a receiver appointed by a civil court to oversee the disposition of the church's assets.

A Georgia court ruled that church members could obtain a court order blocking a church's planned disposition of its assets, and appointing a receiver to oversee the church's property.

A church was organized in 1976 and at one time had as many as 80 members. By late 1989, membership had dwindled to 23 and the church's board of trustees (consisting of the pastor, the pastor's son-in-law, and a third person) decided to sell the church property to a commercial buyer for $725,000. From these proceeds the church paid off a first mortgage loan of $164,000, a second mortgage loan of $156,000 owed to the pastor, and closing costs of $75,000 ($29,000 of which was paid to the pastor who was a licensed real estate broker and who served as a broker in the sale).

The last church meeting occurred in 1990, at which time a majority of the members present approved as "retirement benefits" for the pastor a lump sum gift of $100,000 and transfer of the parsonage. The remaining proceeds of the sale were to be used for religious activities with the pastor having control of the funds.

Some of the church members brought a lawsuit against the pastor and the church in which they sought a court order dissolving the church corporation, the appointment of a receiver to take control of the church's assets, an injunction prohibiting the pastor or church from disposing of church assets, and proper disposition of those assets.

A trial court appointed a receiver over some of the church's assets and forbade the pastor from disposing of the assets in his control. The pastor later sued one of the members who brought the lawsuit, claiming that he had defamed him by referring to him as "Jim Bakker on a smaller scale." A jury later awarded the members who brought the lawsuit $56,000 of the $156,000 mortgage debt paid to the pastor, the full $29,000 real estate commission paid to the pastor, and the remaining church funds of $200,000.

However, the pastor was awarded the parsonage and the $100,000 retirement gift, but the pastor's defamation suit was dismissed. The pastor appealed this ruling to a state appeals court, claiming that (1) the trial court's exercise of jurisdiction over this dispute was prohibited by the first amendment's guaranty of religious freedom; (2) the members who brought the lawsuit lacked "standing" to do so since they did not represent a majority of the church's members; and (3) the first amendment prohibits the appointment of a receiver over church assets.

The appeals court rejected all of these claims. In rejecting the pastor's claim that civil court resolution of this dispute violated the first amendment, the court quoted from a 1969 decision of the United States Supreme Court:

[T]he first amendment severely circumscribes the role that civil courts may play in resolving church property disputes. It is obvious, however, that not every civil court decision as to property claimed by a religious organization jeopardizes values protected by the first amendment. Civil courts do not inhibit free exercise of religion merely by opening their doors to disputes involving church property. Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440 (1969).

The court concluded that the trial court's exercise of jurisdiction over this dispute was permissible since "the property dispute here was capable of resolution by reference to neutral principles of law … without infringing upon any first amendment values." Next, the court rejected the pastor's claim that the members who brought the lawsuit lacked "standing" to do so. It observed:

Courts are reluctant to [intervene] in questions affecting the management of the temporalities of a church; but when property is devoted to a specific doctrine or purpose, the courts will prevent it from being diverted from the trust …. [I]f the majority of the church depart from its organization and doctrines, they do not represent the church, and such majority cannot divest the church property from the trust to which it has been devoted. Accordingly, under the circumstances presented by the [this] case, particularly where the resolution of the property dispute strictly followed neutral principles of law, the [members who brought the lawsuit] had standing in this action alleging a diversion of the church property from the purpose for which the church and its assets had been devoted.

In rejecting the pastor's contention that the first amendment prohibits a civil court from appointing a receiver over church assets, the court observed:

Under [state] law the superior court has full power to liquidate the assets and affairs of a nonprofit corporation when it is established that the acts of the directors or those in control of the corporation are illegal or fraudulent, the assets are being misapplied or wasted, or where the corporation is unable to carry out its purposes. [State law] authorizes the superior court to issue injunctions or appoint a receiver as needed to preserve the corporate assets. Inasmuch as the church chose to incorporate under the Georgia Nonprofit Corporation Code, and appointment of a receiver is authorized under those codified neutral principles of law regarding liquidation of nonprofit corporations, we reject the contention that the first amendment prohibited the involuntary receivership in this case.

This case illustrates some of the legal remedies that are available to church members in some states who want to challenge decisions of the church board to dispose of church assets. Crocker v. Stevens, 435 S.E.2d 690 (Ga. App. 1993).

Related Topics:

Ten Commandments Displayed in Courthouse

Court rules that display violates First Amendment.

Church Law and Tax 1994-01-01 Recent Developments

Freedom of Religion

Key point: A display of the Ten Commandments on a courthouse wall may violate the first amendment’s prohibition of the establishment of religion. But, such a display would be permissible if part of a larger display of other important documents in the evolution of American law.

A federal district court in Georgia ruled that the display of the Ten Commandments on a courthouse wall violated the first amendment’s ban on the establishment of religion. The court emphasized that no other source of American law was displayed, and accordingly the display represented an impermissible promotion of Judaism and Christianity. However, the court quoted with approval from the following statement of United States Supreme Court Justice Stevens in a recent case:

A carving of Moses holding the Ten Commandments, if that is the only adornment on a courtroom wall, conveys an equivocal message, perhaps of respect for Judaism, for religion in general, or for law. The addition of carvings depicting Confucius and Mohammed may honor religion, to an extent that the first amendment does not tolerate any more than it does the permanent erection of a large Latin cross on the roof of city hall. Placement of secular figures such as Caesar Augustus, William Blackstone, Napoleon Bonaparte, and John Marshall alongside these three religious figures, however, signals respect not for great proselytizers but for great lawgivers. It would be absurd to exclude such a fitting message from a courtroom, as it would to exclude religious paintings by Italian Renaissance masters from a public museum.

The court asked the county to come up with a display, including the Ten Commandments, that met this test. Harvey v. Cobb County, 811 F. Supp. 669 (N.D. Ga. 1993).

See Also: Display of Religious Symbols on Public Property

Child Care

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

Church Law and Tax 1990-09-01 Recent Developments

Child Care

The Supreme Court of Georgia ruled that a state law requiring a church-operated children’s home to be licensed by the state did not violate the church’s constitutional rights. A Baptist church opened a children’s home, but did not seek a license from the state. After receiving complaints about the home, a state agency investigated and found numerous violations. The state sought a court order prohibiting the continued operation of the home, and the church responded by claiming that the state licensing law violated the constitutional guaranty of religious freedom. A trial court rejected the church’s position, and ordered the church to apply for a license. Rather than apply for a license, the church appealed the trial court’s order. The state supreme court unanimously rejected the church’s claim that the licensing requirement violated its constitutional rights. It noted that “the regulations governing child caring institutions are not used or applied to direct, limit or regulate the religious content or teachings of any child caring institution’s program. The requirement of licensure does not itself in any degree impair [the church’s] freedom to believe, express and exercise [its] religious beliefs.” Accordingly, the state licensing law did not impose an impermissible burden on the church’s constitutional rights. The court also concluded that the licensing requirement did not violate the constitutional right of parents to direct the education and upbringing of their children. It observed that “there is not indication that [the church] have legal custody of the children in the home.” Darrell Dorminey Children’s Home v. Georgia Department of Human Resources, 389 S.E.2d 211 (Ga. 1990).

Related Topics:

Child Abuse – Part 2

Church Law and Tax 1990-03-01 Recent Developments Child Abuse Richard R. Hammar, J.D., LL.M., CPA

Church Law and Tax 1990-03-01 Recent Developments

Child Abuse

Can a church and church officials be legally responsible for fatal injuries inflicted on a child by a foster parent selected by the church? That was the issue before a Georgia court in a recent case. The child, who was a mentally-retarded eleven-year-old, was left with the church by her natural parents when they moved to Hawaii. The church had difficulty locating a foster family, and was forced to place the child with a family that had received no training in foster parenting and no orientation or guidance regarding the needs of a mentally-retarded child. The foster father soon determined that the child “needed to be disciplined.” One evening, he slapped her and “pushed her head into the floor.” After the child stopped breathing, the foster parents rushed her to a hospital emergency room where the child died following surgery. The surgeon testified that the child died of a blood clot on the brain caused by the rupture of blood vessels, and that such a condition could only have been caused by “a very significant amount of force.” Following the child’s death, her natural parents sued the church and various church leaders for their negligence in placing the child with the foster parents. Specifically, the natural parents argued that the church and church leaders had been negligent in placing their child with foster parents who were not adequately trained or screened. The foster parents were also sued. The jury found the church and certain church leaders responsible, but refused to find the foster parents responsible. A state appeals court ruled that the church and church officials could not be legally responsible if the foster parents were not, and accordingly it dismissed the case against them on the ground that the jury had found the foster parents innocent. The court observed that “the jury reached a verdict in favor of the [foster parents] …. This constitutes a finding that [they] were not liable for [the child’s] death. If [they] were not liable for her death, there can be no liability on the part of those who placed [her] with the [foster parents], or who were responsible for supervising the foster care after placement.” In other words, if the foster parents were innocent, how could the church and church officials be responsible for placing the child with the foster parents? LDS Social Services Corp. v. Richins, 382 S.E.2d 607 (Ga. App. 1989).

Related Topics:

Personal Injuries – Part 3

On Church Property or During Church Activities

Church Law and Tax 1990-01-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

A Georgia state appeals court ruled that a church was not responsible for the drowning death of a six-year-old boy who drowned in a pond located on church property. The pond was located in a fenced, wooded area owned by the church and situated next to an apartment complex in which the boy lived. The drowning victim (who could not swim) and a few friends entered the church’s property without the permission or knowledge of the church, and while they were playing a friend pushed the victim into the pond. The court noted that five conditions must be met in order for a landowner to be legally responsible for the death of a trespassing child: (1) the landowner knows or has reason to know that children are likely to trespass on the land where the condition (that caused the death) exists; (2) the condition causing a child’s death is one which the landowner knows (or should have known) would create an unreasonable risk of death or serious bodily injury to trespassing children; (3) children, because of their youth, do not discover the condition or realize the risk involved in coming into contact with it; (4) the utility to the landowner of maintaining the condition and burden of eliminating it are slight compared with the risk to children involved; and (5) the landowner fails to exercise reasonable care to eliminate the danger or otherwise to protect trespassing children. The court agreed that a trial court’s “summary judgment” in favor of the church was appropriate under the circumstances, since it was clear that the deceased boy’s parents could not prove that all five conditions were present. It further observed that “there is a consistent line of Georgia cases” holding that ponds are not “attractive nuisances” (i.e., they do not satisfy the five conditions specified above). Adams v. Atlanta Faith Memorial Church, 381 S.E.2d 397 (Ga. 1989).

Related Topics:

Taxation – Part 2

Church Property

Church Law and Tax 1990-01-01 Recent Developments

Taxation – Church Property

• Is a campground owned and operated by an association of churches exempt from property taxes? Yes, concluded a Georgia state appeals court in an important ruling. The Atlanta Baptist Association owns a 640-acre campground that contains various improvements including worship facilities, a dining hall, cabins, meeting rooms, a swimming pool, and ball fields. About one-third of the property is undeveloped, but is used for nature walks, outdoor Bible studies, and prayer. All of the structures were financed by church contributions. While user fees are charged for use of the facilities, they are not enough to cover operating expenses, and the deficit is made up of subsidies provided by the Atlanta Baptist Association. The facilities are used exclusively by adult and youth church groups of various denominations. The Association requires that each group conduct a religious program during its stay, and it “previews” each program to ensure that scheduled events include “worship and knowledge of God, Bible study, and prayer.” Recreational activities, such as swimming and softball, are regularly incorporated into such programs. A county tax assessor attempted to tax the entire 640-acre campground (arguing that the facility was operated primarily as an income-producing recreational facility), and the Association appealed to a local court that ruled in favor of the Association. A state appeals court upheld the ruling of the trial court, and affirmed the exempt status of the campground under a state law exempting properties used as a “place of religious worship.” The court concluded that “the evidence establishes without dispute that religious activities are an integral part of every aspect of the use of the property. Although the recreational facilities which are provided to visitors are secular in nature, their use was shown to be intimately connected and intertwined with the religious activities to which the property is primarily dedicated. The fact that visitors are charged feeds which are applied towards the operating expenses of the facility does not alter its fundamentally religious character. In light of the foregoing authorities, and on the basis of the uncontroverted evidence in the present case, we hold that the trial court did not err in concluding as a matter of law that the property was exempt from taxation as a place of religious worship.” Pickens County Board of Tax Assessors v. Atlanta Baptist Association, Inc., 381 S.E.2d 419 (Ga. App. 1989).

Clergy – Part 8

Discipline and Dismissal

Church Law and Tax 1990-01-01 Recent Developments

Clergy – Discipline and Dismissal

Does a civil court have the authority to resolve a lawsuit filed by a dismissed minister against his former employer? No, concluded a Georgia state appeals court. The minister had been selected by the Episcopal Diocese of Georgia to serve as minister for two mission churches. After serving for a year, he was terminated by the diocese from both positions against his wishes. He later sued the diocese seeking money damages for an alleged breach of an employment contract. The minister relied on a manual (the “Diocesan Directives”) furnished him at the time he accepted the two pastorates. The manual specified that “when a clergyman accepts the Diocesan’s call to fill a mission cure in the Diocese, such acceptance constitutes an implied agreement that his tenure will be for a minimum of three years. Resignation prior to three years, unless such termination is by mutual agreement by the Bishop and the clergyman, constitutes a breach of contract.” The minister asserted that this language created a binding three-year contract which the Diocese breached when it terminated him prior to the end of the three-year term. The appeals court ruled in favor of the Diocese on the ground that the civil courts have no legal authority to resolve ecclesiastical disputes: “The civil court cannot take jurisdiction of an ecclesiastical issue even if the parties present it for resolution, because the first amendment [guaranty of religious freedom] prohibits such action by the civil judicial system. The entanglement of civil authority into ecclesiastical affairs which is prohibited by our fundamental law and which was one of the promptings of the creation of this nation is evident in this lawsuit. A priest sues his church, bringing into a civil court dispute over his termination as [priest of two mission churches]. He seeks monetary damages representing lost wages, consequential damages, interest and costs, claiming breach of an alleged civilly enforceable contract governing his call.” In other words, the minister sought to place before a civil court “the question of whether the bishop, as head of the church in Georgia, was legally justified in removing him from [his positions].” The court, in concluding that its resolution of the dispute would impermissibly entangle it in ecclesiastical matters, observed: “For the court to decide whether a binding civil contract was intended; for the court to construe the meaning of that contract if there is one, or leave to a jury its construction if ambiguity raises questions of fact; for the court or jury to determine whether canons or manual directives control; and most clearly, for a jury to decide whether ‘a pastoral situation’ occurred which warranted removal of the missions’ spiritual leader; all of these incursions into religious controversy constitute a large leap beyond the constitutional boundary. Inextricably entangled is whether the priest’s performance of his duties as a priest met with the requirements of his church as measured by ecclesiastical concerns.” The court quoted with approval a 1976 United States Supreme Court decision concluding that “civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.” The issue involved here, concluded the Georgia court, “fell within this territory.” Four of the court’s nine judges dissented from the court’s ruling, noting that the civil courts routinely monitor employment contracts and that to deny clergy the same benefit amounted to an “unfair, hostile, and discriminatory treatment by government toward religion.” The dissenters also were troubled by the broad implications of the court’s ruling. For example, may a “church defeat a [lawsuit] for back pay for services rendered by a priest merely by asserting that its doctrine prohibits it from acknowledging such debts?” The dissenters felt that the civil courts do have authority to resolve controversies involving “property rights only” not involving any “resolution of an ecclesiastical or theological dispute.” McDonnell v. Episcopal Diocese of Georgia, 381 S.E.2d 126 (Ga. 1989).

Church Property – Part 1

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

Church Law and Tax 1989-09-01 Recent Developments

Church Property

What recourse does a church have if the low bidder on a church construction project attempts to withdraw its bid on the basis of an alleged computational error? That was the issue before a Georgia state appeals court in a recent case. The church invited bids for the construction of a new facility, and warned bidders (in the bidding instructions) that “negligence on the part of a bidder in preparing the bid confers no right for the withdrawal of the bid.” The contractor that made the lowest bid was awarded the contract. However, a few days later it informed the church that it was withdrawing its bid on the basis of “an error in adding certain estimated costs.” The church sued, arguing that the contractor had agreed that negligence on its part would not excuse an erroneous bid. A trial court rejected the church’s motion for a summary judgment, and the church appealed. A state appeals court ruled that the contractor did have a legal right to withdraw its bid. It observed that a contractor may withdraw an erroneous bid if (1) the other party knew (or should have known) of the mistake and attempts to “snap up the offer and profit thereby,” or if (2) the following conditions are satisfied: (a) the mistake is of such a nature that enforcement of the contract, under the circumstances, would be “unconscionable” (i.e., shocking to the conscience); (b) the mistake relates directly to the obligation assumed by the mistaken party; (c) the other party would not be prejudiced or harmed by the withdrawal of the mistaken bid. The court acknowledged that the church was not aware that the lowest bid was mistaken (it was only 7% lower than the next lowest bid), but it did conclude that the other factors necessary to justify the withdrawal of a bid were present. Specifically, the mistake related to the nature of the contractor’s obligation under the contract, the church was not prejudiced by the withdrawal of the bid (“it lost only what it sought to gain by taking advantage of the contractor’s mistake”), and allowing the church to take advantage of the mistake “would not be just.” With regard to the warning in the bidding instructions that negligence in the preparation of a bid would not enable a contractor to withdraw a bid, the court simply observed that “provisions such as these have … never been held effective when equitable considerations dictate otherwise.” First Baptist Church v. Barber Contracting Co., 377 S.E.2d 717 (Ga. App. 1989).

Wills, Trusts and Estates – Part 2

Church Law and Tax 1989-07-01 Recent Developments Wills, Trusts, and Estates Richard R. Hammar, J.D.,

Church Law and Tax 1989-07-01 Recent Developments

Wills, Trusts, and Estates

The Supreme Court of Georgia ruled that a family could not privately agree to the settlement of an estate, that originally had included a charitable trust, without the participation of a state officer. A decedent left a will which distributed the bulk of his $25 million estate to a charitable trust for the purpose feeding starving people and “giving Bibles to those who need to know Jesus Christ.” The will was submitted to probate, but various relatives filed challenges. Eventually, family members agreed to a private settlement of the estate which left a much smaller portion of the estate to a charitable trust and more of the estate to the family. The state director of revenue objected to the settlement, citing a state law specifying that no court can modify or terminate a charitable trust without his participation. The family maintained that the revenue director’s participation was not necessary since no modification or termination of a trust was involved. They pointed out that the will of the decedent was never admitted to probate, and accordingly the charitable trust that was established in the will was never established. The state supreme court disagreed with the family, and ordered the state revenue director’s participation in the proceeding. It concluded that the case “does involve the modification of a charitable trust, notwithstanding the fact that the trust is one which a deceased individual sought to establish in an unprobated will.” The court based its decision in part on the state policy of according the revenue director broad powers in supervising charitable trusts. This case illustrates that in some cases the provisions of a will, though unequivocally leaving a gift to charity, can be subverted by a private agreement among the family. This principle often comes as a surprise to churches and other charities. Collins v. Citizens & Southern Trust Co., 373 S.E.2d 612 (Ga. 1988).

Court Ruled Internal Church Dispute Does Not Justify a Breach of Contract

Church could have made appropriate revisions in the contract to protect itself against a claim of breach.

An internal church dispute does not justify a breach of contract with an outside vendor, ruled a Georgia state court.

A church entered into a contract to sell its property to a commercial business after its congregation voted to merge with another congregation. A dissatisfied minority filed lawsuits in state court seeking to stop the proposed merger and disputing the church's legal ownership to its property. The church was unable to resolve these disputes, and as a result, was unable to fulfill its obligations under the contract by the commercial buyer.

The church attempted to defend its breach of the contract on the basis of its internal problems and the lawsuits that had been filed against it by the dissident members. Such excuses were summarily rejected by the court, which noted that the church had been aware, at the time it executed the contract of sale, of the lawsuits against it by the dissident members, and it could have made appropriate revisions in the contract to protect itself against a claim of breach. Solid Rock Baptist Church v. Freight Terminals, Inc., 361 S.E.2d (Ga. App. 1987)

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