Board Possessed Legal Authority to Fire Its Pastor

State nonprofit corporation law factored heavily in the court’s ruling.

Bio

State: Maryland
Categories: Clergy - Removal, Officers, Directors, and Trustees

Key point 6-02.02. Churches are subject to the provisions of their governing documents, which generally include a charter and a constitution or bylaws (in some cases both). A charter is the state-approved articles of incorporation of an incorporated church. Most rules of internal church administration are contained in a constitution or bylaws. Specific and temporary matters often are addressed in resolutions. If a conflict develops among these documents, the order of priority generally is as follows—charter, constitution, bylaws, and resolutions.

A Maryland appeals court ruled that a church’s board of trustees had the legal authority to terminate a pastor even though this authority was not specifically mentioned in the church’s governing documents.

Background

In the summer of 2016, a man met with a pastor regarding his desire to start a church. During their discussions, it was agreed that the pastor’s son-in-law would serve as pastor of the new church. At a meeting in October 2016, the pastor and three additional parties signed articles of incorporation, which were submitted to the Maryland Department of Assessments and Taxation. The department accepted the new church’s articles of incorporation, thereby initiating its existence as a nonprofit corporation.

The first section of the church’s articles of incorporation provided that five named persons had been “elected by the members of the congregation . . . to act as trustees in the name and on behalf of said congregation. . . .”

The third section of the articles of incorporation defined the corporation’s purposes as follows:

The Corporation is organized as a church exclusively for religious, charitable, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1986 (or the corresponding provision of any future United States Revenue Law), including for such purposes, but not limited to, promoting the cause of Christ; advancing the kingdom of God; winning the unsaved; reaching the unchurched; encouraging the development of all members and others in Christian living; and engaging in any other activity that is in the furtherance of section 501(c)(3) tax-exempt purposes.

On November 27, 2016, the church held an “ordination and sending” service for its new pastor. On that same day, church members unanimously voted to install the church’s official constitution, which “made no mention of appointing or dismissing clergy but did provide that the officers of the church had the authority to conduct all of the business affairs of the church” (quoting a state appeals court).

The church board voted to remove the pastor

In late 2018 and early 2019, church trustees began discussing removal of the pastor due to his conduct, including:

“bringing a gun into the church and leaving it unattended and accessible to children”;

“resisting the creation of a school and summer camp”;

“a lack of organizational skills”; and

“attempting to organize a ‘bow shoot’ at [the church] despite being informed that [the church] was not insured for such activity.”

On March 3, 2019, the church’s board met and voted on the removal of the pastor:

[T]he Board of Trustees convened, with all seven elected board members and the pastor, a trustee by virtue of his position as pastor in attendance. Five elected board members voted to remove the pastor, and two trustees and the pastor voted in opposition. Following the meeting, the pastor was issued a letter instructing him to remain away from [the church] and to vacate the [parsonage] on or before April 5, 2019.

The church asked a local court to issue a non-adversarial “declaratory judgment” addressing the legal authority of the trustees to oust the pastor.

The pastor claimed that the church “trustees had no authority to remove him as pastor” since the state nonprofit corporation law contained “no language expressly authorizing the trustees to ‘control any operation of the church‘ aside from the church’s assets.”

The pastor also argued that the decision to remove him involved “ecclesiastical matters” that should have been left to the church to decide.

The church trustees claimed that the language of the state nonprofit corporation law was “not exhaustive and that the trustees acted within the scope of their corporate authority.”

The trustees had “the authority to terminate”

The trial court concluded that “the question of who possesses the authority under the relevant governing documents to authorize the removal [of a pastor], and the validity of those documents, is a non-ecclesiastical matter that the Court can resolve without trespass to the First Amendment.”

The court found that the church trustees acted within the scope of their corporate and statutory authority when they voted to end the pastor’s tenure. The pastor appealed.

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

Churches in Maryland formally organize as religious corporations and thus, the trustees, not the congregation, constitute the corporation. . . . “[T]he purpose of [religious] incorporations . . . [is] to enable the church to attend more readily and efficiently to their temporal affairs, without any power or authority to interfere with forms of worship, articles of faith, or any other matter, relating strictly to spiritual concerns.” . . . [The Maryland Religious Corporations Law] states: “[u]nless otherwise provided by law or its charter, a Maryland corporation has the general powers, whether or not they are set forth in its charter,” to perform “every other act not inconsistent with law which is appropriate to promote and attain the purposes set forth in its charter.” Thus, a corporation’s board of directors [including a religious corporation’s board] has the power to manage “[a]ll business and affairs of a corporation. . . .”

Here, while the church’s incorporation documents did not expressly provide for the appointment or removal of a pastor, the trustees were clearly the “body corporate” and there were no documents conferring any authority to the congregation.

The court also found that the church never adopted a new or different constitution, and therefore, “the authority to terminate [the pastor] was vested in the governing body, i.e., the trustees. . . . As such, the trustees properly acted in accordance with their corporate authority.”

In responding to the pastor’s argument that the trustees lacked authority to terminate him because the firing of a pastor is an ecclesiastical matter reserved to the church, not the trustees, the court noted: “[H]ere, there was simply no evidence that the Board’s decision was based on disputes regarding religious doctrine, biblical interpretations or other ecclesiastical matters.”

Rather, the court added, the pastor’s “‘personal behaviors, organizational shortcomings, inability to manage . . . drove’ the decision.”

The court concluded: “In sum, the [church’s] Board of Trustees, in accordance with its Articles of Incorporation and applicable statutes, had the authority to terminate [the] pastor.”

What this means for churches

There are three points to note about this case.

First, the court concluded that the civil courts do not necessarily have to refrain from resolving all internal church disputes. The resolution of such disputes is barred by the First Amendment only in disputes regarding “religious doctrine, biblical interpretations or other ecclesiastical matters.”

Second, the court applied state nonprofit corporation law in determining the procedure for removing the church’s pastor since the church had not addressed this issue in its governing documents.

This illustrates the basic principle that state nonprofit corporation law is a “gap filler.” An incorporated church is generally free to address issues of administration and governance in its articles and bylaws in any manner it chooses, free from state interference. But, if a church neglects to address an issue in its governing documents, then state nonprofit corporation law will provide the answer.

Third, the case illustrates the legal effect of incorporation. Does it make a church subordinate to state corporate law? No. The court explained:

Churches in Maryland formally organize as religious corporations and thus, the trustees, not the congregation, constitute the corporation. . . . “[T]he purpose of [religious] incorporations . . . [is] to enable the church to attend more readily and efficiently to their temporal affairs, without any power or authority to interfere with forms of worship, articles of faith, or any other matter, relating strictly to spiritual concerns.”

Once again, churches can revise their governing documents to provide for any contingency, including the removal of a pastor. Vaughn v. Faith Bible Church, 241 A.3d 1028 (Md. App. 2020).

Legal Developments

‘Ministerial Exception’ Prevents Court from Resolving Dismissed Minister’s Wrongful Termination Lawsuit

The court concluded if the application of the ministerial exception is obvious from the face of a civil lawsuit, then a pre-discovery motion to dismiss is appropriate.

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland
Categories: Clergy - Discipline and Removal

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

A Maryland court ruled that it was barred by the "ministerial exception" from resolving a wrongful termination lawsuit that a dismissed minister filed against his former church.

A pastor (the "plaintiff") was hired as pastor of a Methodist church in 2009. His pastoral position was subject to a yearly employment contract, which was renewed in 2010, 2011, and 2012. At the end of 2012, the plaintiff's employment was terminated by the regional conference of the Methodist Church because it had "lost faith" in his spiritual leadership.

The plaintiff thereafter sued his church and Conference alleging wrongful termination based on his refusal to commit certain unlawful acts in connection with the administration of funds from a trust of which the church was a beneficiary. A year and a half before the plaintiff's termination, the church was informed that it was going to receive a bequest from a trust in the amount of $1,225,000. The trust provided that one half of the bequest was to be used for the general operation and maintenance of the church, while the other half was to be used for the upkeep of the church's cemetery.

The plaintiff, who before becoming pastor had worked as a financial manager at IBM for nearly 25 years and as the treasurer and chief financial officer of another Methodist Conference, was chosen by the church to administer the bequest. According to his lawsuit, the plaintiff quickly discovered that the church sold its cemetery in 2009 and no longer maintained a cemetery fund. He "determined that it would be a breach of trust—as well as fraud and tax evasion—for the church to accept the portion of the bequest relating to the upkeep of the cemetery." As a result, he advised the church's board of trustees to notify the bank that was serving as trustee that it no longer owned the cemetery and to ask the bank for guidance. But despite this advice, the vice chairman of the board of trustees instructed the plaintiff to request the full amount of the bequest from the bank and to deposit it into the church's general operating account. The plaintiff refused to follow these instructions and, in August of 2012, took his concerns about accepting the portion of the bequest that was meant for the cemetery fund to a Conference officer who informed him that his pastoral employment at the church was being terminated.

The trial judge dismissed the lawsuit on the ground that the plaintiff's claims "are fundamentally connected to issues of church doctrine and governance and would require court review of the church's motives for the discharge which is precluded by the ministerial exception." The plaintiff appealed. While he conceded that the ministerial exception bars secular courts from hearing disputes over church doctrine, he insisted that courts are not precluded from resolving employment disputes and contract claims like his that are purely secular and not rooted in religious beliefs. "The circuit court erred," he claimed, "because it opined that the immunity provided by the ministerial exception is absolute."

The plaintiff also noted that the trial judge had dismissed the case without allowing any "discovery" (interrogatories, depositions, and so on), and he asserted that claims like his should not be dismissed unless the court first permits a factual record to be developed through discovery and then determines, based on that record, that the claims would substantially entangle the courts in religious doctrine.

The church and Conference (the "church defendants") argued that the trial judge correctly applied the ministerial exception and thus did not err in dismissing the case. Quoting the United States Supreme Court's decision in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012), the church defendants asserted that the First Amendment's guarantee of religious freedom "prevents the government from interfering with the freedom of religious groups to select their own ministers." This principle is known as the "ministerial exception." The church defendants acknowledged that the Supreme Court's holding in Hosanna-Tabor was limited to precluding ministers from bringing claims of employment discrimination against their religious employers. However, they pointed out that other courts have extended the application of the ministerial exception to also preclude claims of wrongful discharge like the plaintiff's. The church defendants cited cases from numerous other jurisdictions, both state and federal, that have applied the ministerial exception to wrongful discharge claims. In sum, the church defendants argued that the plaintiff's claims would have required the court to engage in an impermissible inquiry into the church's doctrine and self-governance by in effect deciding whether or not the plaintiff was actually terminated for the stated reason that the church had "lost faith" in his spiritual leadership.

The church defendants further claimed that the trial judge had been correct in not permitting "pre-dismissal discovery." They contended that the lawsuit was sufficient on its face to demonstrate that the claims were precluded by the ministerial exception.

Application of the ministerial exception

The appeals court began its opinion by noting:

Two elements must be present for the ministerial exception to preclude a secular court from obtaining subject matter jurisdiction over a claim brought by an employee against his religious institution employer: First, the employee making the claim must qualify as a "minister"; and second, the claim must be the type of claim which would substantially entangle the court in the church's doctrinal decision-making and internal self-governance.

The court concluded that the plaintiff met the first element, and, with regard to the second element, "it is also clear that … wrongful discharge claims like the plaintiff's are precluded by the ministerial exception. Therefore, we shall hold that the circuit court did not err in granting the church defendants' motion to dismiss."

The court conceded that the Supreme Court has not addressed whether the ministerial exception applies to wrongful discharge claims as well as employment discrimination claims, but it noted that many other state and federal courts have said that it does and the court chose to follow those decisions.

The court concluded:

The [trial] court could not have heard the plaintiff's wrongful discharge claim without having to make a determination as to whether he was terminated in retaliation for refusing to obey the vice chairman's instruction regarding the portion of the bequest that was meant for the cemetery fund, or because the church had "lost faith" in his spiritual leadership. Such a determination is of the precise type that the ministerial exception precludes secular courts from making.

The court also rejected the plaintiff's argument that the trial court's "pre-discovery" dismissal of his claims was improper. It noted that other courts had affirmed pre-discovery dismissals of claims barred by the ministerial exception in cases where it was clear based on the face of the complaint that an inquiry into religious matters would have been necessary. It concluded that

we are currently presented with such a case, one in which the church has said all along that its decision to terminate the plaintiff's employment was motivated entirely by reasons of faith. Therefore, discovery was not necessary for the trial court to properly determine that the plaintiff's claim was barred by the ministerial exception, and, as such, we hold that the court did not err in granting the [church defendants'] motion to dismiss.

What this means for churches

This case is important for two reasons.

First, it illustrates the view of most courts that the ministerial exception bars the civil courts not only from resolving employment discrimination claims involving clergy and religious employers, but also wrongful termination claims not involving allegations of discrimination.

Second, the court rejected the plaintiff's argument that "pre-discovery" motions to dismiss are improper and that the courts always should allow clergy to pursue evidence by means of depositions, interrogatories, and other discovery techniques before ruling on a motion to dismiss. The court concluded if the application of the ministerial exception is obvious from the face of a civil lawsuit, then a pre-discovery motion to dismiss is appropriate. This is an important point, since it means that employment disputes between churches and clergy may be dismissed soon after a lawsuit is filed without the necessity of pursuing expensive and time-consuming discovery. 2016 WL 1065884 (Md. App. 2016).

Legal Developments

Court Rules Marriages Performed in Foreign Country Valid in Maryland

Ruling on Congo couple’s marriage suggests ceremonies with one spouse represented by proxy or long-distance communication may be valid.

State: Maryland
Categories: Marriage

Church Law and Tax Report

Court Rules Marriages Performed in Foreign Country Valid in Maryland

Ruling on Congo couple’s marriage suggests ceremonies with one spouse represented by proxy or long-distance communication may be valid.

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

A Maryland court addressed the validity of marriages performed in foreign countries in a ruling that will be relevant to many pastors. A man and woman, both natives of the Democratic Republic of Congo (formerly Zaire), met in 1993 and decided to marry. The marriage occurred in December of 1993. The husband was not able to physically attend his wedding due to his work schedule, but designated his cousin to represent him. In addition, the husband “participated” in the wedding over the phone. During the ceremony the husband was asked three questions: did he know the bride, did he like her, and did he want a dowry to be exchanged. He answered “yes” to each question. The marriage was consummated by the transfer of $200 cash, clothes, and a live goat.

After the wedding, the couple lived together and represented themselves as husband and wife. They moved to Virginia, where they purchased a home. In 1994, the couple participated in a “renewal of vows” ceremony at a church in Virginia. The couple obtained a “Proof of Marriage” certificate from the Congolese Embassy and brought it to the Virginia ceremony. The church provided them with a second certificate stating that they were “united in matrimony … in conformity with the laws of the State of Virginia and the Republic of Zaire.” The certificate also attested that “there were witnesses present at the ceremony, including one member of [the husband’s] family.”

The couple eventually moved to Maryland. The couple had three children, but their marriage deteriorated to the point that the wife sued for divorce and requested alimony and child support. The husband responded by asserting that the couple had never been legally married, and therefore there was no basis for alimony or child support. A trial court ruled that the marriage was valid, granted the divorce, and ordered the husband to pay alimony and child support. The husband appealed, claiming that a proxy marriage in the Congo was not entitled to recognition in Maryland.

A Maryland appellate court affirmed the trial court’s ruling. It noted that under the principle of comity “Maryland courts will honor foreign marriages that were valid where performed, even if the marriage would not have been valid if performed in Maryland.” The court cited two exceptions to this rule: “First, the marriage must not be expressly prohibited by the [state legislature]. Second, the marriage must not be repugnant to Maryland public policy.” The court concluded that the marriage in the Congo was valid where performed and therefore would be recognized in Maryland, and that neither exception applied:

[Maryland law] describes who can perform a marriage ceremony and when the ceremony must be performed. Neither this law, nor any other statute, precludes Maryland from recognizing a ceremony where one party participates by proxy—or in the manner that occurred here—and the ceremony is valid in another jurisdiction. To preclude validity, the statute must unequivocally void such marriages. The General Assembly has not prohibited recognition of a foreign marriage such as the one that occurred here. We also find that neither proxy nor phone marriages are repugnant to Maryland public policy. Maryland’s attitude is that marriage should not be set aside lightly.

The court noted that the Uniform Marriage and Divorce Act, which has been adopted by several states, declares “if a party to a marriage is unable to be present at the solemnization, he may authorize in writing a third person to act as his proxy. If the person solemnizing the marriage is satisfied that the absent party is unable to be present and has consented to the marriage, he may solemnize the marriage by proxy. If he is not satisfied, the parties may petition the … court for an order permitting the marriage to be solemnized by proxy.” An official comment to this portion of the Act further explains that “there are many reasons why, in individual cases, couples may prefer such a ceremony. So long as the marriage license procedure has been followed and the official performing the ceremony has no reason to doubt the intentions of the absent prospective spouse, there is no reason why a proxy marriage should be prohibited.”

The court further explained:

Distant marriages are becoming more and more common. Notably, two law professors at Michigan State University have been conducting a study, the E-Marriage Project, since 2008 … . The study looks at the marriage ceremonies of the 50 states. The two professors believe that states should go so far as to permit couples to marry using videoconferencing technologies such as Skype. They call this proposal “modernizing marriage,” and they compare a Skype marriage with other major business contracts that take place over videoconference every day.

The mounting recognition and research on distant marriages suggest that sometimes it may be a couple’s only option. The men and women who serve in our armed forces sacrifice a great deal of control over their daily lives for this country and they often are married by proxy. In addition, modern employment commitments often uproot one party from home for long periods of time. This may make personal participation in a marriage ceremony impracticable. Not permitting marriages by proxy or by phone could deprive these couples of the emotional and legal benefits that accompany marriage. [The marriage in this case] seems to illustrate such a situation. The husband was working in another country for his employer, yet the couple was still able to have a wedding ceremony in their native country with the husband participating by phone.

For these reasons, we are not persuaded that a marriage by proxy or by phone rises to the level of being repugnant to public policy. The types of marriages are not specifically prohibited by law, do not harm the liberties of either spouse, and it is not inconceivable in the future that such a marriage may be valid when performed in Maryland. The parties’ marriage in the Congo, where someone stood in for [the husband who] participated by phone, was valid in the Democratic Republic of the Congo and Maryland courts would find it valid in this State under the doctrine of comity. Recognizing that the parties’ marriage was valid, the circuit court did not err in granting a divorce, awarding alimony, dividing property, calculating child support, or awarding attorney’s fees.

What This Means For Churches:

This case is of interest because it suggests that clergy may perform marriages by proxy or electronic communications technology in situations when one or both spouse’s physical presence is not possible. Such marriages may occur in a number of possible scenarios, including:

emergencies
military deployment
incarceration
illness
employment
business necessity

This case demonstrates that pastors who are asked to perform a marriage by proxy, or electronic technology, should not assume that the ceremony will be invalid. In many states, the marriage will be lawful. Before responding to such a request, check with a local attorney to see if your state law recognizes these ceremonies. Tshiani v. Tshiani, 56 A.3d 311 (Md. App. 2012).

Legal Developments

Church’s Rights to Build Larger Facility Violated by County

Federal appeals court rules rights under Religious Land Use and Institutionalized Persons Act were violated.

State: Maryland
Categories: Church Property

Church Law and Tax Report

Church’s Rights to Build Larger Facility Violated by County

Federal appeals court rules rights under Religious Land Use and Institutionalized Persons Act were violated.

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

A federal appeals court ruled that a church’s rights under the federal Religious Land Use and Institutionalized Persons Act may have been violated by a county’s refusal to allow it to build a new and larger facility to accommodate its growing congregation. A Maryland church owns a place of worship and rents a nearby satellite facility. Its main facility seats 450 people and the satellite facility seats 300. Total weekly attendance for all services is about 1,500 people. To accommodate its congregation, the church must host four services every Sunday—three in its main facility and one in its satellite facility. The number of services restricts the length of the services, and forces communion to take place after the services.

Time and space limitations also sometimes require the church to cut short its important “altar call” practice, in which attendees may publicly dedicate their lives to Christ, join the church, or request specific prayers. After the service, the director of the altar call ministry conducts conversations with those who have come forward regarding their spiritual beliefs. Because the church itself lacks facilities to accommodate these conversations, the director must use a small, partitioned area in the visitor center.

Even with four services each Sunday, the church faces overcrowding, and ushers must sometimes prevent worshipers from entering the sanctuary. The church also lacks facilities for other programs, including religious education, health education, and various counseling services. And because adults use all available classrooms, the church is unable to provide programs for its youth.

For all of these reasons, the church purchased a 119-acre property in 2004 to construct a 3,000-seat church, a school, a daycare building, a social hall, and offices. The property is located in an area the county designated as an “agricultural reserve.” Under the county’s water and sewer plan, however, the county generally did not provide public service to properties in the agricultural reserve. The county denied the church’s request for an exception, but county officials rejected the request at a meeting in which they also approved an amendment to the water and sewer plan prohibiting public water and sewer service to private institutional facilities in the agricultural reserve.

The church challenged the county’s denial of its application for public water and sewer service as unlawful, arbitrary, capricious, unsupported by substantial evidence, and a violation of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). Two years later, a federal court dismissed the church’s challenge, and the church appealed.

The appeals court’s ruling

RLUIPA is a federal law that prohibits the implementation of any land-use regulation in a manner that:

imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—

(A) is in furtherance of a compelling governmental interest; and

(B) is the least restrictive means of furthering that compelling governmental interest.

RLUIPA defines “religious exercise” to include “the use, building, or conversion of real property for the purpose of religious exercise.”

The appeals court observed that “when a religious organization buys property reasonably expecting to build a church, governmental action impeding the building of that church may impose a substantial burden,” and “this is so even though other suitable properties might be available, because the delay, uncertainty, and expense” of selling the current property and finding a new one are themselves burdensome.”

In rejecting the county’s argument that any burden to the church was not substantial because it already owned one facility and rented another, the court noted:

[The church] has presented considerable evidence that its current facilities inadequately serve its needs. Specifically, insufficient space forces it to hold four services every Sunday, and to shorten services, interfering with Communion and the church’s altar call practice. Its present facilities are overcrowded, requiring ushers to turn people away from services and limiting its ability to offer various programs. The pastor testified that the lack of adequate facilities creates a sense of disunity because the congregation is divided into so many separate services.

The court stressed that “a governmental regulation violates RLUIPA by imposing a substantial burden on religious exercise only if the regulation [is not] the least restrictive means of furthering a compelling governmental interest.” The court concluded the county failed to demonstrate that its water and sewer plan was the least restrictive means of furthering that interest, and noted that the county failed to present any evidence that its interest in preserving the integrity of the agricultural reserve “could not be served by less restrictive means, like a minimum lot-size requirement or an individualized review process.”

What This Means For Churches:

This case illustrates the application of RLUIPA to churches, and demonstrates how this law can provide churches with valuable protection when their building plans are obstructed by government regulations. Bethel World Outreach Ministries v. Montgomery County Council, 706 F.3d 548 (4th Cir. 2013).

Key point 7-03.3. Most courts apply the “neutral principles of law” rule in resolving disputes over the ownership and control of property in “hierarchical” churches. Under this rule, the civil courts apply neutral principles of law, involving no inquiry into church doctrine, in resolving church property disputes. Generally, this means applying neutral legal principles to nondoctrinal language in any one or more of the following documents: (1) deeds to church property; (2) a church’s corporate charter; (3) a state law addressing the resolution of church property disputes; (4) church bylaws; or (5) a parent denomination’s bylaws.

Legal Developments

Former Organist Sues Church

Court rules that church organist is not a ministerial employee.

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland
Categories: Clergy - Removal, Employment Practices

Church Law & Tax Report

Former Organist Sues Church

Court rules that church organist is not a ministerial employee.

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

Key Point 2-04.1 Most courts have concluded that they are barred by the first amendment guarantees of religious freedom and non establishment of religion from resolving challenges by dismissed clergy to the legal validity of their dismissals.

Maryland’s highest state court ruled that it was not barred by the First Amendment guaranty of religious freedom from resolving a former church organist’s lawsuit against his former church, since he was not a “ministerial” employee. An 11-year-old boy (the “plaintiff”) began working for a church as its organist in 1958, and served until 1976. From 1976 to 1991 he pursued other employment, and then returned to the church as its organist from 1991 to 2001. During all of these years he served the church without a written employment contract. In 2001, the plaintiff entered into a two-year employment contract with the church to serve as its “organist/pianist/keyboard accompanist.” The contract described the plaintiff’s duties as follows:

To support the Gospel message through the music ministry of the church and to encourage the congregation to assume as active part in their musical participation at all liturgical parish functions.
To provide organ/piano/keyboard music and musical accompaniment to both the congregation and the choirs of the church at the 10:30 a.m., 12:00 noon and 1:15 p.m. Sunday services; to provide the same at the weekly Saturday 5:15 p.m. service; to provide same at special liturgical celebrations … to provide musical accompaniment for the congregation at the 7:00 p.m. Monday night weekly novena service.
To build and sustain congregational song at all liturgies.
To assist in selecting music associated with the worship at all liturgies in which he/she participates.
To assist in planning the music associated with the above mentioned liturgies.
To participate in special liturgical celebrations when requested, especially Christmas, Lenten and Easter liturgies, Confirmation, First Communion, and Reconciliation liturgies.
To work under the very general supervision of the choir directors of the Liturgical Choir and the Hispanic Choir.
To attend parish staff meetings when appropriate.

For the performance of these duties, the plaintiff was to receive an annual salary of $26,500, in addition to other benefits, including hospitalization insurance. The contract provided that the parties could terminate the employment contract “by mutual agreement” with 90 days advance notice.

In 2001, the plaintiff informed the pastor that he had been sexually abused by a parish choirmaster from 1958 to 1964. Immediately after reporting the sexual abuse, the plaintiff claimed that his employment situation began to deteriorate, as the pastor began to find fault with his performance. Prior to reporting the abuse, his performance record had been exemplary; he had never received a negative performance evaluation or warning during the some 29 years of employment with the church.

A few months later, the plaintiff was informed that he should retire from his position, and was offered up to $2,000 to seek psychiatric counseling. His employment was later terminated unilaterally by the church, without advance notice, based on his “apparent inability to work cooperatively.” The plaintiff later sued the church, alleging breach of contract, wrongful discharge, and emotional distress against the church, its pastor, and the archdiocese. The archdiocese asked the court to dismiss the lawsuit on the basis of the “ministerial exception.” This judge-made doctrine, which is based on the First Amendment guaranty of religious liberty, bars the civil courts from resolving employment disputes between churches and “ministers.” The archdiocese stressed that “music plays a vital role in a number of religious faiths,” including in the Catholic faith, and has deep religious significance. It cautioned that a judicial resolution of the plaintiff’s claims would endorse governmental interference with religion. A trial court agreed, and dismissed the lawsuit. The plaintiff appealed.

The Court of Appeals (the highest state court in Maryland) ruled that the ministerial exception did not apply to the plaintiff, and ordered the case to proceed to trial. It noted that for a church employee to be deemed a “minister” for purposes of the ministerial exception, his or her role must “consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision in religious ritual and worship.” The court concluded that “we simply are not convinced that plaintiff’s role was supervisory in any respect, involved any form of church governance, or directly required the teaching or the spreading of the religious faith.” It noted that the plaintiff “was not in absolute control of the music played, and he did not lead any choirs, teach any hymns, or control any part of the church services in which he participated. He was neither required to have specialized knowledge of the Catholic faith, nor expected to have any particular religious training. All he needed was knowledge of how to play an organ …. [T]he duties that [he] actually performed, while they occurred during church services, were not ministerial in any sense.”

The court stressed that the plaintiff did not lead the choir or congregation in song, but merely accompanied them. Nor did he “preach or inculcate values,” or “decide how the message was expressed. He was not … in a teaching role, in a position where his own beliefs affected his ability to perform his job …. He was not a music minister. He was not a pivotal figure at the church, did not plan any liturgies himself, and he was not in charge of the church’s musical life. He did not teach the choir any music, and he was not listed as parish staff.”

The court acknowledged that other courts had applied the ministerial exception to church music directors, but it concluded that each of these cases was distinguishable because of the nature of the tasks performed:

Assemany v. Archdiocese of Detroit, 434 N.W.2d 233 (1988). The ministerial exception applied to a church music director who was in charge of the Catholic liturgy in the church, and had a leadership role in the parish.
Egan v. Hamline United Methodist Church, 679 N.W.2d 350 (Minn. App. 2004). The ministerial exception applied to a church music director who was “responsible for managing and rehearsing the church choir, selecting and preparing music for regular Sunday services and other special services, playing the organ, and supervising other church music groups, such as the children’s choir and the handbell choir.”
Miller v. Bay View United Methodist Church, 141 F.Supp.2d 1174 (E.D. Wis. 2001). The ministerial exception applied to a church’s “music director and choir director” whose duties included “choosing appropriate musical selections for the Sunday worship services and preparing and directing the choirs in leading the congregation in song, researching the religious themes of the upcoming services in religious books and selecting music that coincided with the religious themes and meanings of that particular service as well as encouraging and promoting music ministry outreach.”
Starkman v. Evans, 198 F.3d 173 (5th Cir.1999). The ministerial exception applied to a church’s “choirmaster and director of music,” whose was required to have a masters in music and extensive study in church music, choral conducting, worship, choral vocal methods, hymnology, Bible, theology, Christian education, and church history and doctrine. The job description for this position stated that the person was responsible for planning worship liturgy, coordinating church and worship activities relating to the church’s music ministry, rehearsing with choirs and conducting those choirs, hiring musicians and lower level music ministry directors, and writing articles about the church’s music ministry for the weekly church bulletin, and introducing liturgical seasons for worship services. The music director acknowledged that for her and her congregation, music was a form of prayer and an integral part of worship services and Scripture readings.
Fassl v. Our Lady Perpetual Help Roman Catholic Church, 2005 WL 2455253 (E.D. Pa. 2005). The ministerial exception applied to a church’s director of music, whose job description included an ability to teach, to lead, and to encourage active participation of the congregation in liturgical celebrations and an ability to work with volunteers who participate in the church’s music ministry. The position required “a thorough understanding of and love for the liturgy of the church and the relationship of music to the liturgical life of the church.” The director of music directed three to five masses per weekend, planned music for liturgies, directed multiple church choirs, and prepared and played for penance services, all school liturgies, all other Holy Days, and contemporary and teen music groups.
Hope International University v. Superior Court, 14 Cal.Rptr.3d 643 (Cal. App. 2004). The court noted that “individuals whose function is essentially liturgical, that is, connected to the religious or worship service of the organization” are a “relatively easy case” of when the ministerial exception applies, and listed among the examples “music and choir directors.”

The court concluded that it was clear that the plaintiff failed to perform the kinds of duties mentioned in these cases, and therefore he was not a “minister” for purposes of the ministerial exception. As a result, the court rejected the request of the archdiocese to dismiss the lawsuit.

Application. This case will help church leaders know if the ministerial exception applies to their music minister or director. If the exception applies to a music minister or director, then the civil courts will not resolve that person’s employment-related claims.

Three judges dissented from the court’s opinion. They concluded that the plaintiff’s duties were sufficiently religious for the ministerial exception to apply. Archdiocese of Washington v. Moersen, 925 A.2d 659 (Md. 2007).

This Recent Development first appeared in Church Law & Tax Report, March/April 2008.

Legal Developments

Exempt vs. Non-Exempt Employees

A federal court in Maryland addressed the question of whether a secretary is entitled to overtime compensation for hours worked in excess of 40 during the same work week.

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland
Categories: Employment Practices

Church Law & Tax Report

Exempt vs. Non-Exempt Employees

A federal court in Maryland addressed the question of whether a secretary is entitled to overtime compensation for hours worked in excess of 40 during the same work week.

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

Key point 8-17. The Fair Labor Standards Act mandates that employers pay the minimum wage, and overtime compensation, to employees who work for an enterprise engaged in commerce. There is no exception for religious organizations, but there are exceptions for certain classifications of employees.

* A federal court in Maryland addressed the question of whether a secretary is entitled to overtime compensation for hours worked in excess of 40 during the same work week. A former secretary (the “plaintiff”) of a charitable organization sued the charity for failing to pay her overtime compensation in violation of the Fair Labor Standards Act (FLSA). In general, the FLSA requires employers to pay compensation at a rate of one and half times a non-exempt employee’s regular rate of pay for hours worked in excess of 40 in the same week. The plaintiff worked for the charity from 1982 until 2005, holding a variety of positions, all of which involved secretarial duties. When she began, she was a nonexempt “social services secretary.” In 1985, plaintiff’s title became ” administrative secretary.” Later, her title became ” executive secretary.” During her tenure as “executive secretary” she worked as an assistant to the executive director and exercised some supervisory responsibility over one or more others.

Until 1992, the charity designated plaintiff as a non-exempt employee under the FLSA, and paid her overtime compensation. In 1992, the charity designated her as exempt under the FLSA and discontinued paying her overtime compensation. At that time, the plaintiff signed an employment agreement in which she acknowledged her exempt status.

Plaintiff claims that, in 2002, she began working overtime hours. Upon inquiring about her exempt status, plaintiff was told she was exempt because she “supervised the receptionist.” Plaintiff asserts that she did not have this supervisory role, which she says was a minor part of her duties in any event, until more than eight years after the company first designated her as exempt. There was no receptionist position until then.

The charity did not require exempt employees to record daily hours worked but only whether they were present on a particular day, recording eight hours regardless of the actual hours worked. Plaintiff adhered to this policy, and so she had no detailed accounting of her actual hours after 1992.

Plaintiff’s employment formally terminated in 2005, and later that year she filed her lawsuit seeking unpaid overtime compensation for the period 2002 through 2005. The charity insisted that she was an exempt administrative employee under FLSA, and therefore it was under no obligation to pay her overtime compensation.

The court began its opinion by noting that defendants in FLSA cases “have the burden to prove by clear and convincing evidence that an employee qualifies for exemption …. Exemptions from the FLSA’s overtime pay requirements are narrowly construed … in order to further Congress’ goal of providing broad federal employee protection.”

Department of Labor regulations define what constitutes employment in an executive or administrative capacity. Under the regulations, to show that an employee is exempt as an administrative employee, an employer must show that its employee is one who is “(1) compensated on a salary or fee basis at a rate of not less than $455 per week; (2) whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and (3) whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.” 29 C.F.R. § 541.200(a).

The plaintiff conceded that the charity satisfied the first of these elements. The dispute was over the final two elements. As to the second element, the court noted that “although it is clear that the plaintiff’s work was non-manual office work, the issue presented is whether it was directly related to the management or general business operations of her employer. To meet this standard, the charity must show that she engaged in activities such as running the business itself or determining its overall course, not just in the day to day carrying out of business affairs.”

The court concluded that “a reasonable jury could easily conclude that plaintiff’s work was essentially and predominantly clerical in nature, and not administrative or managerial. Indeed, her former boss described her duties, in part, as ‘providing secretarial support across various departments’ including scheduling and dealing with vendors. Likewise, plaintiff described at length in her deposition her secretarial duties, which included ordering supplies, taking minutes at company meetings, completing forms, and, under supervision, distributing petty cash.”

The charity pointed to the plaintiff’s job description, which gave her “authority to delegate assignments” and authority to oversee the receptionist, as evidence that she worked in an administrative capacity. Defendant also argues that plaintiff agreed to this job description. The court was unimpressed, noting that “the job description is not the most important consideration—her actual duties are.” It also noted that many if not most of the duties described in the job description “may be viewed as clerical duties that are quite common for secretaries and not essentially managerial. The description includes duties such as having authority from the executive director to delegate assignments to be completed, overseeing all work completed by the receptionist, and directing her in order of priorities, and maintaining special events. Simply speaking, the existence of a hierarchy among clerical staff does not mandate the conclusion that the plaintiff’s work was directly related to management or general business operations.”

In summary, the court concluded that the charity had failed to prove, by clear and convincing evidence, that the plaintiff’s duties qualified for the administrative employee exemption from the FLSA.

The court also concluded that the charity failed to prove the third element of its defense, namely, that her primary duties include the exercise of discretion and independent judgment with respect to matters of significance. It observed: “While it is clear that some of plaintiff’s duties entailed the exercise of discretion and independent judgment, e.g., meeting with office equipment dealers and evaluating their prices … those duties were not her primary duties …. Moreover … as to those of her duties classified as among her primary duties, the exercise of discretion and independent judgment in the performance of such duties was not in respect to matters of significance.” As a result, the court ruled that the charity had failed to establish that the plaintiff was an exempt administrative employee under the FLSA.

The charity argued that the plaintiff’s enjoyment, over many years, of the benefits of exempt employee status should preclude her overtime claim. These benefits included flexible hours, longer lunches, and working less than full days. The court found this defense “interesting,” but refused to recognize it.

Finally, the charity argued that the plaintiff’s evidence for overtime hours actually worked was too speculative, since no records were kept. The court agreed that this was a problem, but concluded that she “has projected sufficient evidence to get to the jury as to some amount.”

Application. This case is important for the following reasons:

First, it provides a helpful interpretation of the “administrative” employee exemption under the FLSA, and confirms that some “executive secretaries” will not qualify for exemption under FLSA. This means that they are entitled to overtime pay, and that a failure on the part of a church to recognize this obligation may lead to a significant unbudgeted and uninsured liability.

Second, it demonstrates that an employer cannot make an employee exempt under the FLSA by simply reclassifying the employee as exempt, or by changing the employee’s job description if this does not accurately reflect the actual duties performed.

Third, employers must establish that an employee is exempt under FLSA by clear and convincing evidence. It is imperative for church leaders to understand the significance of this. Clear and convincing evidence is a more difficult burden of proof than the typical “preponderance of the evidence” standard that applies in most civil cases. This makes it more difficult for an employer to establish that an employee is exempt under FLSA. As a result, churches should not presume that an employee is exempt under FLSA without clear and convincing evidence that this is the case. Doubts should be resolved against exemption. If there is any doubt, legal counsel should be consulted. Remember, treating a non-exempt employee as exempt can lead to a significant liability for unpaid overtime compensation. Bertrand v. Children’s Home, 489 F.Supp.2d 516 (D. Md. 2007).

Legal Developments

Child Abuse Reporting

Maryland’s highest court ruled that the state child abuse reporting law included a school teacher after school hours who molested a minor while driving her home from school.

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland
Categories: Child Abuse, Child Abuse Reporting

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.

Maryland's highest court ruled that the state child abuse reporting law which limited reportable abuse to abuse inflicted by parents or "a person responsible for the supervision of a child" included a school teacher after school hours who molested a minor while driving her home from school.

The court's decision provides helpful guidance in the interpretation of reportable child abuse, since many states have laws restricting reportable abuse to acts committed by parents or others responsible for the care of a minor. A teacher volunteered to drive a 14-year-old girl home following classes on the last day of school, and en route he stopped at his home and engaged in sexual intercourse with the girl. Although the teacher had driven the victim home from school on prior occasions, the victim's mother was unaware of this practice. The school principal later testified that teachers had no responsibility for students after the school day ended when not engaged in any official school activity. The teacher was later found guilty of felony child abuse under a state law that specified, "A parent or other person who has permanent or temporary care or custody or responsibility for the supervision of a child or a household or family member who causes abuse to the child is guilty of a felony." Although the teacher was neither a parent nor a family member of the victim, the trial court found that he had "responsibility for the supervision" of the victim at the time of the alleged misconduct. The teacher appealed, claiming that he was not a person having "supervision of a child" after the end of the school day while driving a student home, and so he could not be guilty of violating the law. The state court of appeals (the highest court in Maryland) upheld the teacher's conviction. The court observed,

It is absurd to suggest that when a parent entrusts her child to a school that that parent does not impliedly consent to any reasonable assistance that a teacher may provide to assure the child's return home from school. In other words, it may be reasonably assumed by both parent and teacher that a parent impliedly consents to all reasonable measures taken by a teacher to assure the safe return of the child from school, including personally driving that child home. Once a teacher assumes the task of personally transporting a child from school to home with the implied consent of the parent, he or she also assumes the responsibility of supervising that child.

The court also noted that there was no "break" in the "teacher and student relationship" that existed between the teacher and the victim. It acknowledged that "such a break, depending on its length and nature, can dispel the teacher's duty to supervise." For example,

Had the teacher and [the victim] met, for example, after they had parted, at a location unconnected with the school, we might have reached a different result in this case. But that is not the case here. Indeed, the teacher's offer to give the child a ride home was made on school premises while the child was still under the supervision of the teacher. And the trip home began on school premises. From the moment he extended his invitation until the time he and [the victim] had sexual intercourse, she was never for long, if ever, either out of his sight or, for that matter, out under his influence or control. At bottom, a teacher-student relationship is based on the student's trust and acquiescence to her teacher's authority. At no time was there a temporal break in that relationship so that we might conclude the relationship inducing both trust and acquiescence to authority have at least temporally ended.

Application . Several states define reportable child abuse as abuse that is inflicted by a parent or other person "responsible for the supervision of a child." This case suggests that this definition can be met by a teacher even outside of school hours and off of school property so long as there has been no "break" in the teacher-student relationship. The court based its decision in part on a Missouri case in which a teacher was convicted of felony child abuse against a student after a school play when the teacher offered to drive the student home. The student accepted the ride and the teacher made a detour to his own home. Sexual contact occurred during the ride. The teacher challenged the evidence that there existed a custodial relationship between himself and the victims. The court described the scope of the student-teacher relationship as follows: "Teachers are undeniably charged with the care and custody of students. When parents send their child to school, they entrust the teacher with that child's well-being. A teacher's duty of care and custody extends beyond the confines on the schoolyard. By virtue of a teacher's position, he was able to exert influence upon [the victim], not only within the confines of the school, but outside of it as well." Anderson v. State, 2002 WL 31812670 (Md. 2002).

Legal Developments

Recent Developments in Church Property Rulings

Maryland’s highest court ruled that a local congregation that voted to disaffiliate from a national church after more than a century of association was entitled to retain its property.

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland

Church Law and Tax1999-01-01

Church Property

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

• Key point. A church affiliated with a hierarchical denomination may be able to retain its property if it disaffiliates from the parent denomination, despite a provision to the contrary in denominational bylaws.

Maryland’s highest court ruled that a local congregation that voted to disaffiliate from a national church after more than a century of association was entitled to retain its property. A church affiliated with the African Methodist Episcopal (AME) Church voted in 1993 to disaffiliate from the national church as a result of what it perceived to be burdensome financial demands and a decline in moral conditions within the denomination. Both the dissident congregation and the national church claimed ownership of the church’s property, and a court was asked to determine the rights of the parties. A trial court ruled in favor of the local congregation, and the national church appealed. The Maryland Court of Appeals (the highest state court) agreed. It cautioned, however, that a national church may retain control of the property of a dissident congregation in any or more of the following three ways:

1. requiring the local churches to place reverter clauses in the deeds to [their] property; 2. providing in their constitutions or other authoritative sources for the reversion of local church property upon the withdrawal by a local congregation, with an implied consent by the local church to the reversion provision; 3. obtaining from the [legislature] an Act providing for that result. Moreover, we have recognized that a Maryland religious corporation … may adopt a presbyterial or episcopal polity and, thus, may provide for the holding of the local church property subject to the provisions of the constitution, charter, or bylaws of the denomination and the action of the authoritative agencies of such denomination.

The court concluded that none of these exceptions applied in this case. While conceding that the AME Church was hierarchical in structure, it concluded that the national church’s constitution “was silent on the issue of the ownership and control of local church property, although it recommended deeding such property to trustees to be held in trust for the church and the insertion of deeds of provisions providing for the reversion of the property … in the event of the church’s becoming extinct or failing to remain doctrinally compatible.” As a result, it was “plain that it was never contemplated that the property of the local churches should be subject to the control” of the national church. Board of Incorporators v. Mt. Olive African Methodist Episcopal Church, 703 A.2d 194 (Md. 1997). [State Court Rulings Regarding Church Property Disputes]

© Copyright 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m21 m39 c0199

Legal Developments

Recent Developments in Maryland Regarding Church Elections

A Maryland court ruled that a church dispute over an election did not have to be arbitrated but could be resolved by a civil court.

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland

Church Law and Tax1998-03-01

Church Elections

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

• Key point. The civil courts are prohibited by the first amendment from resolving questions of church membership.

• Key point. The civil courts must apply “neutral principles of law” in evaluating whether or not a valid church election occurred. If an inquiry into doctrine or membership is required, the courts may not intervene.

A Maryland court ruled that a church dispute over an election did not have to be arbitrated but could be resolved by a civil court. A dispute arose in a church between the pastor and board. The board decided to call a special business meeting to take a vote on the pastor. The church bylaws require that all special business meetings be preceded by at least one week’s notice from the pulpit, and this requirement was met. Prior to the date set for the meeting the pastor announced that he would convene his own special business meeting in three days for the purpose of electing new board members. No elections were held at this meeting. Instead, the pastor appointed new board members. A day later the special business meeting called by the board was held, and the pastor was voted out of office. Both the board and pastor questioned the legality of the business meeting called by the other. The board sued the pastor, claiming that his appointment of new board members was invalid. The trial court ruled that the case had to be resolved by arbitration pursuant to a Maryland law requiring arbitration of any church dispute over voting rights or the “fair conduct of an election.”

A state appeals court ruled that this dispute did not have to be arbitrated since it did not involve voting rights or the fair conduct of an election. The court noted that the board’s lawsuit claimed that the special business meeting called by the pastor was invalid because it failed to comply with the notice requirement set forth in the church’s bylaws. The court added: “In our view, the fulfillment of a procedural prerequisite for an election pertains to the existence of an election rather than to the fair conduct of an election. The phrase `fair conduct of an election’ presupposes that what took place was, in fact, an election.” The court noted that if the church bylaws “set forth a specific, secular requirement that must be met in order to hold an election, and that requirement is not met, then the election was never held. It is void. Such a situation requires an examination into the very existence of an election, not the fairness of the way it was conducted.” As a result, the dispute did not have to be arbitrated but rather could be resolved by the civil courts. However, the court cautioned that the civil courts may only apply “neutral principles of law” in evaluating whether or not a valid election occurred, and that “any question of doctrine or membership is nonjusticiable.”

Application. There is one additional aspect to this case that should be noted. The court pointed out that the church had two sets of bylaws that differed in “material respects.” It was not clear which set was valid. Such a dilemma is not uncommon. Many churches have different versions of bylaws. In some cases, these represent newer and older versions, but in others they do not. Obviously, having conflicting sets of bylaws can cause confusion. Are you aware of conflicting sets of bylaws in your church? If so, the legally valid document must be identified. Often this can be done through a careful reading of the minutes of the annual business meetings of the church. Consider the appointment of a committee to research the issue and make a report to the official board. Congregational endorsement may be necessary in some cases. The assistance of an attorney will be invaluable in resolving such an issue. Seat Pleasant v. Long, 691 A.2d 721 (Md. App. 1997). [ Procedural Requirements of Church Business Meetings, Judicial Resolution of Church Disputes]

Legal Developments

Churches as Historic Landmarks

Restriction of a church’s right to demolish a building may violate the First Amendment.

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland
Categories: Church Property

Key point. Restriction of a church's ability to demolish or renovate its sanctuary as a result of a local "landmarks" law may violate the church's first amendment right to freely exercise its religion.

A federal court in Maryland ruled that a church's first amendment right to the free exercise of religion was violated by a city "landmarks" ordinance that barred the church from demolishing an old chapel to construct a new facility. A Catholic church sought to replace its old chapel, which was in disrepair, with smaller, modern facilities, and to add gardens and a parking lot. Because the chapel was part of the city's historic district, the church could not demolish the chapel without first securing permission from a city "historic preservation commission." The church's application for permission was denied by the commission, and the church sued the city arguing that the commission's actions violated its constitutional right to the free exercise of religion. In particular, the church argued:

The Archdiocese of Baltimore and the [parish] have a religious obligation to place the spiritual needs of the faithful entrusted to their care above concern for the preservation of a dilapidated building …. Based on their religious beliefs regarding worship, ministry, education, association, and expression, [the parish] wishes to demolish [the chapel] …. Demolition … is the cornerstone of the parish's plans to improve worship … to increase accessibility to worship and other religious services for the handicapped, elderly and other parishioners, and to use its property as an expression of religious belief.

Church officials submitted affidavits asserting that (1) the chapel is "ecclesiastical property that must be administered in pursuit of the proper ends of the church"; (2) under church law "property may not be amassed for its own sake or to serve purely secular goals, but must be used to serve in meeting the spiritual needs of the people"; and (3) "the construction and renovation plans [of the parish] are motivated by our sincerely—held Catholic beliefs regarding worship, ministry, association, education, expression and church administration." Numerous parishioners also submitted affidavits explaining that the existing building failed to satisfy the needs of the congregation, and that the new construction was crucial to the spiritual growth of the parish.

The court concluded that this evidence demonstrated conclusively that the church's decision to demolish the chapel "involves the exercise of the Roman Catholic faith and implicates first amendment free exercise principles." The court conceded, however, that according to the Supreme Court's 1990 decision in the Smith case the church's first amendment rights would not be violated by a "neutral law of general applicability." It referred to a 1993 Supreme Court decision in which the Court observed:

a law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the first amendment, a law restrictive of religious practice must advance interests of the highest order and must be narrowly tailored in pursuit of those interests. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).

The city insisted that the landmarks ordinance was a neutral law of general applicability, and therefore was valid without the need for demonstrating a compelling government interest. The court disagreed. It emphasized the fact that the landmarks ordinance had a series of exemptions, making it "significantly different" from the "across—the—board" neutral law of general applicability addressed in the Smith case. Unlike the law in Smith , the landmarks ordinance "has in place a system of individual exemptions" demonstrating a "legislative judgment that the city's interest in historic preservation should, under certain circumstances, give way to other interests." The court then stressed that the Supreme Court in Smith

recognized that where the government enacts a system of exemptions, and thereby acknowledges that its interest in enforcement is not paramount, then the government "may not refuse to extend that system [of exemptions] to cases of religious hardship without compelling reason." Accordingly, the city's zoning regulation is not entitled to enforcement under the principles set forth in Smith. As a "law restrictive of religious practice," the [landmarks ordinance] must instead "advance interests of the highest order and be narrowly tailored in pursuit of those interests."

The court concluded that the city failed to demonstrate such a compelling government interest, and therefore its refusal to permit the church to demolish its chapel amounted to a violation of the first amendment.

What this means for churches

This case is important. As the Supreme Court observed in the Smith case, the constitutionality of a law that burdens religious practice depends to a large extent on the "neutrality" of the law with respect to religion. As a result, as the Supreme Court noted in Smith , "a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has an incidental effect of burdening a religious practice."

However, a law that burdens religious practice must be supported by a compelling government interest if it: (1) is not neutral toward religion; (2) is not of general applicability; or (3) contains exemptions that do not apply to religious practice. The city landmarks ordinance, by containing exemptions that did not cover religious institutions, could not adversely impact religious practice without a compelling government interest. This is an argument that apparently was not made in the Supreme Court's recent decision striking down the Religious Freedom Restoration Act (see the feature article in this issue). Keeler v. Mayor and City Council, 940 F. Supp. 879 (D. Md. 1996).

Legal Developments

Man Sues Diocese and Two Priests Over Abuse

The lawsuit was barred by the statute of limitations.

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland
Categories: Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law and Tax 1997-07-01

Sexual Misconduct by Clergy and Church Workers

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

A Maryland court ruled that a 34—year—old adult’s lawsuit against a diocese and two priests who molested him when he was a minor was barred by the statute of limitations. The victim was repeatedly molested by the two priests while serving as an altar boy over a period of 6 years. The priests gained his trust by giving him money and gifts. One of the priests used pornographic materials while molesting the victim, and also took pornographic pictures of him. The victim claimed that the archdiocese learned as early as 1967 that one of the priests was a pedophile, and required him to undergo therapy. The priest was later assigned to the parish in which the victim served as an altar boy. The victim claimed that it was not until he was 33 years old (in 1994), when his marriage was “falling apart,” that he first became aware that he had been injured as a result of the priests actions. He sued the priests and the archdiocese in 1995, when he was 34 years old. He claimed that the archdiocese was legally responsible for his injuries on the basis of negligent hiring, placement, and supervision. A state appeals court concluded that the victims lawsuit was barred by the Maryland statute of limitations, which requires personal injury lawsuits to be filed within 3 years of the date a victim “knew or, with due diligence, reasonably should have known of the wrong.” The victim claimed that he was aware of the priests conduct but did not appreciate the offensiveness of it or realize that he had been harmed until he began experiencing marital difficulties in 1994, and therefore the statute of limitations should not start running until that date. A state appeals court disagreed, concluding that “if any memory of sexual abuse suffered during childhood survives into adulthood, the statute of limitations begins to run when the victim reaches the age of majority.” Further, “even if no memory at all survives into adulthood, the limitations period still begins to run on the date the victim reaches the age of majority.”

The court also ruled that the victims claims against the archdiocese were barred by the statute of limitations. The victim insisted that under Maryland law the statute of limitations may be suspended if the archdiocese fraudulently prevented him from learning of a legitimate legal claim. The court conceded that the statute of limitations may be suspended when a victims knowledge of a legal claim is prevented by anothers fraud. However, it concluded that the archdiocese had not engaged in any fraudulent attempt to prevent the victim from discovering his legal claims. The court observed:

[W]hen the priests molested [the victim] he was immediately on notice of potential claims against the priests as well as against the archdiocese as their employer …. Once on notice of one [legal claim] a potential plaintiff is charged with responsibility for investigating, within the limitations period, all potential claims and all potential defendants with regard to the injury ….

Nowhere does [the victim] allege that, once he inquired of the archdiocese, the church negligently or deliberately misled him as to what it knew about the priests …. [T]he alleged wrongdoing described in portions of the [lawsuit] occurred [before] the sexual battery that harmed [the victim]. [He] is alleging that, at some time before he was abused, the archdiocese knowingly put the priests in a position to abuse him by concealing prior incidents in which the priests abused other children. This cannot support a claim that the archdiocese concealed a cause of action from [the victim]. [He] does not allege that after the priests abused [him] the archdiocese committed a fraud that prevented him from knowing of its wrongdoing or from discovering his claims.

Application. This case is important for the following reasons: (1) It illustrates the dilemma that adult survivors of child sexual abuse often face when they sue the offender (and his employer)-they must demonstrate that they were injured by the abuse, but doing so may result in the dismissal of their claim since it will trigger the statute of limitations. (2) This case also demonstrates another important principle-churches and denominational agencies can be legally responsible on the basis of negligent selection for the sexual misconduct of clergy and other workers if they had prior knowledge of similar acts of misconduct. However, such prior knowledge may be insufficient grounds to suspend the statute of limitations (on the basis of “fraudulent concealment” of a legal claim) in cases of child sexual molestation. Doe v. Archdiocese of Washington, 689 A.2d 634 (Md. App. 1997). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability—Defenses]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m67 m65 m37 c0497

Legal Developments

“Repression” and the Statute of Limitations

In some states, the “discovery rule” allows victims to sue for past abuse.

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland

Church Law and Tax 1997-05-01

Sexual Misconduct by Clergy and Church Workers

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

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

The Maryland Court of Appeals (the highest state court) ruled that an adult’s “repression” of memories associated with childhood sexual abuse is not a sufficient basis for suspending or delaying the statute of limitations. Two female students at a Catholic high school alleged that they were subjected to severe and repeated acts of sexual molestation by a priest to whom they had been sent for counseling. They alleged that the molestation began when they were in ninth grade and continued all the way up until their graduation. The victims claimed that following their graduation from high school they “ceased to recall” the abuse due to the process of “repression.” It was not until twenty years later, during counseling, that they “recovered” their memories of the abuse. They filed a lawsuit against the priest, their former school, and the archdiocese. A state appeals court ruled that the lawsuit had to be dismissed on the basis of the statute of limitations. Maryland law requires such lawsuits to be filed within three years after a minor attains her eighteenth birthday. The court acknowledged that in some cases the “discovery rule” has been applied-meaning that the statute of limitations does not begin to run until the victim “discovers” that his or her injuries were caused by a particular event. However, the court refused to apply the discovery rule to cases of recovered memories of childhood sexual abuse. It reached the following conclusions:

(1) The concept of repression is defined as the selective and involuntary forgetting of information that causes pain. Repressed information is not forgotten, but instead is stored in the unconsciousness and may be recovered at a later time if the anxiety associated with the memory is removed.

(2) Several professional studies attempt to validate the concept of repression.

(3) Several other professional studies discredit the concept of repression. These studies assert that there is absolutely no scientific evidence to support the claim that repression exists.

(4) It is impossible to distinguish between repression and “faking.”

(5) Since serious disagreement exists within the psychological community regarding the validity of repression theory, it would be inappropriate for a court to recognize it.

The court concluded that “we are unconvinced that repression exists as a phenomenon separate and apart from the normal process of forgetting.” And, because the discovery rule does not help those who merely forget their injuries or legal claims, it should not help those who claim that their memories were repressed and later recovered.

Application. This case will be a helpful precedent for churches to use when they are sued for alleged incidents of molestation occurring many years ago. The court’s analysis and rejection of the “repression” theory will be invaluable in challenging the use of this theory to extend the statute of limitations. Doe v. Maskell, 679 A.2d 1087 (Md. 1996). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denomina tional Liability]

Legal Developments

Former Candidate for Priesthood Sues for Defamation

Many courts are unwilling to resolve this type of claim.

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland
Categories: Defamation, Freedom of Religion

Church Law and Tax 1997-05-01

Clergy—Removal

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

• Key point. It is the prevailing view that the civil courts are prohibited by the first amendment guaranty of religious freedom from resolving lawsuits brought by dismissed clergy challenging their dismissals, particularly if the resolution of such a dispute would require consideration of ecclesiastical matters.

A Maryland court ruled that a former candidate for the priesthood could not sue his diocese or church officials for defamation. The candidate entered seminary and pursued training in preparation for ordination as a priest. Less than a year before he was to be ordained, he was informed by a church official that he was being “released” from the diocese and as a result would never be considered for the priesthood. The candidate sued the archbishop on behalf of the diocese and various church officials, claiming that the decision to “release” him was based on defamatory information shared with the diocese. Specifically, the candidate claimed that a priest provided a reference to church officials in which he asserted that the candidate had engaged in “sexually motivated conduct” with certain staff members in a former parish. The candidate claimed that church officials repeated this information with knowledge that it was false and with an intent to harm his chances for ordination to the priesthood. He sought more than $2 million in damages. A trial court dismissed the case and the candidate appealed.

A Maryland appeals court agreed that the case had to be dismissed. It quoted from a landmark United States Supreme Court ruling in 1976:

In short [the Constitution] permits 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, 46 U.S. 696 (1976).

The court acknowledged that the Supreme Court has not addressed a case involving a defamation claim by a minister or former minister. However, it insisted that “the withdrawal of ecclesiastical controversies from civil jurisdiction has been a broad one.” It referred to another Supreme Court decision declaring any dispute concerning “theological controversy, church discipline, ecclesiastical government, or the conformity of members of the church to the standard of morals required of them” to be beyond the authority of the civil courts to resolve. Watson v. Jones, 80 U.S. 679 (1871). The purpose of such a view is “to free civil courts completely from entanglement in questions of religious doctrine, polity, and practice.”

The court was not prepared to say that the civil courts can never resolve disputes between a church and its ministers. However:

When the conduct complained of occurs in the context of, or is germane to, a dispute over the plaintiff’s fitness or suitability to enter into or remain a part of the clergy … it is difficult to see how the forbidden inquiry could be avoided. Questions of truth, falsity, malice, and the various privileges that exist often take on a different hue when examined in the light of religious precepts and procedures that generally permeate controversies over who is fit to represent and speak for the church ….

It is apparent from these allegations … that the very heart of the [lawsuit] is a decision by [the candidate’s] clerical supervisors to prevent him from becoming a priest. The allegedly defamatory statements were made by them with that intent, thereby evidencing a determination on their part-whether valid and fair or invalid and unfair-that [the candidate] was not a suitable candidate for the priesthood. That the offensive conduct was so directed is what brings this case squarely within the protective ambit of the first amendment.

Application. This case illustrates the reluctance so often expressed by the civil courts to intervene in disputes between churches and ministers. While a minority of courts have been willing to become involved in such disputes if they can do so without delving into religious doctrine, most have been unwilling to do so under any circumstances. All courts agree that they cannot intervene in such disputes if doctrinal issues or the fitness of clergy will be involved. Downs v. Roman Catholic Archbishop, 683 A.2d 808 (Md. App. 1996). [Terminat ion, Defamati on, Judicial Resolution of Church Disputes]

Legal Developments

Who Controls the Property of a Disaffiliated Church?

Court rules that a parent denomination retains control of a church’s property.

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland
Categories: Church Property

Key point. The property of a local church affiliated with a hierarchical denomination may revert to the denomination if the church votes to disaffiliate.

A Maryland court ruled that a parent denomination retained control of the property of a local congregation that voted to disaffiliate. The congregation of a church affiliated with the African Methodist Episcopal (AME) Church voted in 1993 to disaffiliate from the parent body as a result of what it perceived to be burdensome financial demands and a decline in moral conditions within the denomination.

Both the dissident congregation and the AME Church claimed the church's property, and a court was asked to determine the rights of the parties. The court ruled that the local congregation was entitled to retain its property. It based its conclusion on the fact that the church's deed did not contain a "reverter clause" transferring title back to the national church in the event of a disaffiliation.

The court further relied upon the AME Church Discipline (the national church's primary body of governing rules). This resource contained no provision for local church property being held in trust by the national church, and like the local church's deed, contained no reverter clause. The national church appealed, and an appeals court reversed the trial court's ruling and awarded the church's property to the national church.

The court acknowledged that the deed and the AME Church Discipline did not contain any trust provision or reverter clause. However, the court insisted that these omissions did not require that the seceding church retain its property. Quite to the contrary, "the absence of an explicit reverter upon withdrawal clause does not necessarily mean that the local church is entitled to retain control of its property."

Rather, a court must consider all relevant documents. The court concluded that two other documents clearly vested control of the property in the national church. The first document was the church's articles of incorporation, which specified that the "powers and authority of the trustees shall be in subjection to the discipline of said church."

The court concluded that the phrase "said church" had to refer to the national church since "there is simply no such thing as a local discipline of any AME congregation." The court concluded: "Based exclusively on the language in the [articles of incorporation] requiring that the trustees hold the property `in trust' for the AME Church, we hold that [the local church] was not entitled to retain control of the land after their departure from the AME Church." The court concluded that the local church trustees, on the basis of trust law, owed a duty of loyalty to the national church which precluded them from allowing the local congregation to retain control of the property following the congregation's withdrawal from the AME Church.

Rather, the local trustees had a duty to ensure that the property remained for the use and benefit of the membership of the AME Church….In other words, in light of the trustees' powers under…principles of trust law pursuant to the [articles of incorporation], we conclude that once the local members chose to discontinue fellowship with the AME Church, the trustees were without power to allow the departing members to retain control of the property because that was not for the benefit of the membership of the… AME Church…. Accordingly, although there may be no explicit reverter upon withdrawal provision in this case, we are satisfied that the trust provision in the [articles of incorporation] had the same effect.

The court rejected the local church's contention that "in order for a parent church to retain control of local church property there invariably must be an explicit reverter upon withdrawal provision." Board of Incorporators v. Mt. Olive African Methodist Episcopal Church, 672 A.2d 679 (Md. App. 1996).

Legal Developments

Arbitration of Church Disputes

Court rules that arbitrators’ decision is final.

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland
Categories: Arbitration

Church Law and Tax 1994-03-01 Recent Developments

Arbitration

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

• Key point: Church disputes in many states can be resolved through arbitration. In some states, arbitration decisions are final and not appealable to the civil courts.

• A Maryland court ruled that the decision of a panel of arbitrators in a church dispute was final and not subject to review by a civil court. A church experienced a bitter internal dispute over the question of who were the church’s lawful trustees. A lawsuit was filed by one of the two warring factions, which prompted the other faction to file a motion to compel arbitration pursuant to a state law permitting arbitration of disputes over church elections. The statute provides:

If any contest arises over the voting rights or the fair conduct of an election: (1) Each contending party shall appoint one individual from among the members of a neighboring church or the same religious persuasion or, if there is no such church, from among the members of any other church; and (2) the two appointed individuals shall select a third, similarly qualified, individual. The arbitrators shall meet at the place where the contest arose and hear and determine the matter. The judgment or award of the arbitrators, signed and acknowledged by them, is final.

An arbitration proceeding was conducted, and the arbitrators ruled in favor of one of the two factions. The other faction attempted to have this decision reviewed by a civil court. It claimed that arbitration decisions under the statute were “final” only in cases involving church polity or doctrine, and that this limitation did not apply in this case since it involved matters of “general corporation law” rather than church polity or doctrine. A state court agreed that arbitration rulings under the statute are final (and not reviewable by the civil courts) only in cases involving polity or doctrine. It based this interpretation on the fact that the purpose behind the arbitration statute was to make it “unnecessary for courts to resolve issues of church polity that inevitably arise in disputed church elections. Thus it follows that the word ‘final’ has a different meaning than it has in a dispute not involving issues of church polity.” Nevertheless, the court concluded that the present dispute did involve a matter of church polity or doctrine, since any determination of who are the lawful trustees of a church cannot be made without considering such matters. Therefore, no review by the civil courts was permissible. The court noted that even if it had concluded that this case did not involve polity or doctrine, it still would have upheld the arbitrators’ decision since it was not “completely irrational.” American Union of Baptists, Inc. v. Trustees of the Particular Primitive Baptist Church, 632 A.2d 226 (Md. App. 1993).

© Copyright 1994, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m03 m16 c0294

Legal Developments

Failure to Pay Property Taxes

Churches that fail to pay taxes may lose property in a tax sale.

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland
Categories: Church Property

Church Law and Tax 1991-03-01 Recent Developments

Church Property

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

• Can a church lose a portion of its property in a tax sale because of its failure to pay property taxes? Yes, said a Maryland state appeals court. A church received a parcel of vacant land as a gift. Church officials did not believe that the church was required to pay property taxes on the land. They assumed that the land had tax-exempt status, and they had no knowledge of taxes assessed against the property by the county. Tax bills were sent to the title insurance company that provided the church with an insurance policy on the donated land, since its address was the only address listed on the deed to the property. The tax collector assumed that this was the church’s address. The legal name of the church that appeared on the deed and in the recorder’s office was different from the name the church used in the telephone directory and on its church sign, and so the collector had no way of knowing that the address on the deed was not the church’s address. Eventually, the tax collector sold the property at a tax sale. The church was unaware that the tax sale was occurring, since it never received notice of the sale. The only notice of the sale appeared in a newspaper. The church challenged the sale of its property on the grounds that it had innocently assumed that the property was tax-exempt, that it never received a tax bill, and that it never received actual notice of the tax sale. All of these grounds were rejected by the state appeals court, which upheld the sale of the church’s property. In rejecting the church’s claims that it was unaware of the property’s tax status, or of the tax sale, the court observed that vacant land is not tax-exempt under Maryland law and therefore the church’s assumptions regarding the donated property’s tax status were unreasonable. Further, the church had been “less than diligent in failing to ascertain that taxes were in default [and] that the sale had been made ….” The court emphasized that the notice in the newspaper was sufficient since there were no other reasonable means of contacting the church under the circumstances. In short, “the church enjoys no special status in relation to the property at issue because of the religious nature of its organization.” What is the significance of this case to local churches? Simply this—when acquiring real estate (whether by purchase or gift), be certain of two things. First, that the address of the church listed on the deed is correct. And second, if the legal name of the church as it appears on the deed is different from the name commonly used by the church (in the telephone directory, on the church sign, etc.), be sure to list both names. For example, if the legal name of a church is First Baptist Church and the commonly used name is “Baptist Temple,” then the deed should recite the church’s name as “First Baptist Church, also known as Baptist Temple.” Be sure to make the attorneys handling any acquisition of church property aware of both points. St. George Antiochian Orthodox Christian Church v. Aggarwal, 576 A.2d 224 (Md. App. 1990).

© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m21 m70 c0291

Legal Developments

Construction Projects – Part 2

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

Richard R. Hammar, Attorney, CPA

Bio

State: Federal

Church Law and Tax 1990-05-01 Recent Developments

Construction Projects

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

• A federal appeals court ruled that a local Methodist church could not sue the manufacturer of asbestos plaster for the cost of removing the plaster from church ceilings. The church, which was constructed in 1961 the Maryland, used an asbestos plaster on all ceilings at the direction of the building’s architect. The church was consecrated in 1962 and has been in continuous use ever since. A portion of the church ceiling was replaced in 1969, and asbestos-laden plaster was used again. In 1985, the church became concerned over the possibility that asbestos materials may have been used in the construction of the church. An investigation confirmed the presence of asbestos in the ceilings, and the church trustees immediately ordered its removal—at a cost of $225,000. In 1988, the church sued the manufacturer of the ceiling plaster, seeking to recover the removal costs, and alleging that the plaster posed a health hazard to those who frequently occupied the building. The church claimed that the manufacturer breached certain warranties, and was guilty of negligence and “fraudulent concealment” of a hazardous condition. The manufacturer’s defense was that the lawsuit was barred by the Maryland 20-year statute of limitations. A federal trial court granted a summary judgment in favor of the manufacturer, without letting the case go to a jury. The church appealed, and a federal appeals court affirmed the trial court’s ruling in favor of the manufacturer. The court concluded that the state 20-year statute was a “statute of repose” rather than a statute of limitation, and accordingly it was not suspended during the period of fraudulent concealment of a hazardous condition. Further, the court rejected the church’s claim that federal hazardous waste laws (notably “CERCLA”) extended the time for filing a lawsuit or gave property owners a right to recover the cost of asbestos clean-up. First United Methodist Church v. U.S. Gypsum, 882 F.2d 862 (4th Cir. 1989).

© Copyright 1990, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m35 0390

Legal Developments

Personal Injuries – Part 4

On Church Property or During Church Activities

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland
Categories: Defamation, Invasion of Privacy, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law and Tax 1990-05-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Can a youth pastor be sued for publicizing information regarding an alleged illicit affair between an associate minister and a church employee? Yes, concluded a Maryland state court. The employee had been raised in the church, and had been active in church work. When she became old enough, she volunteered to work with the church youth group, and with a traveling drama group. The drama group was under the direction of the associate pastor, with whom the employee worked very closely. She accompanied the group for four months each year as a counselor. When she graduated from college, she was hired by the church as the associate director of youth ministry (a salaried position). Because she continued to work with the drama group on a volunteer basis, the employee worked for both the associate minister and youth minister. While she was on a church-sponsored trip to the Holy Land (led by the associate minister), the youth minister entered her office to look for a file he needed. While there, he discovered a file containing personal notes from the associate minister to the employee. The notes confirmed the youth minister’s growing suspicion that the two were engaged in a sexual relationship. He immediately shared the notes with the associate minister’s wife, and offered specific details of when and where he believed the two had met privately. A few days later, the youth minister shared his allegations with the employee’s mother, and suggested to her that her daughter and the associate minister may not return from their trip overseas. The associate minister’s wife discussed the allegations with her husband, and concluded that the relationship was not sexual in nature. The youth minister accepted the wife’s decision, and retracted his allegations. He apologized to the associate minister and the female employee for the pain he had caused them, and promised never to repeat his suspicions again. Despite his promise, the youth minister soon repeated his suspicions to members of the drama group, and in very little time the entire congregation was aware of the allegations. Soon the employee began receiving unsettling telephone calls and mail from church members. Eventually, the church convened a special committee that investigated the matter and dismissed the employee. Subjected to scorn in her church and neighborhood, and unable to find a job commensurate with her skills, the former employee sued the youth pastor for defamation of character and invasion of privacy. She also sued the church, claiming that by dismissing her it had “ratified” the youth pastor’s allegations. A jury awarded the former employee $230,000 in general damages, and an additional $105,000 in “punitive damages”. Both the youth pastor and church appealed, and a state appeals court upheld the jury’s verdict. The court acknowledged that a plaintiff suing a “public figure” (such as a pastor) for defamation of character must prove not only that the pastor publicized false statements that injured the plaintiff’s reputation, but also that the defendant acted with “malice”. Malice in this context means that the defendant either knew that the statements he uttered were false, or that he uttered them with a reckless disregard as to their truth or falsity. The court concluded that the former employee had established that the youth pastor acted with malice—since he had repeated statements that he had acknowledged were not true. St. Luke Evangelical Lutheran Church v. Smith, 568 A.2d 35 (Md. 1990).

Legal Developments

Freedom of Religion – Part 2

Church Law and Tax 1989-11-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland
Categories: Freedom of Religion

Church Law and Tax 1989-11-01 Recent Developments

Freedom of Religion

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

• Can the IRS assess a “frivolous” tax return penalty against a married couple who reduced their federal income tax liability by 36% in order to avoid paying for “war preparation” contrary to their religious beliefs? Yes, concluded a federal district court in Maryland. The couple had attached a letter to the tax return in question, noting their objection to the government’s use of federal tax money for military preparedness and stating that use of their tax payments for military activities conflicted with their religious convictions. The IRS asserted negligence penalties and a $500 “frivolous return penalty” against the couple. The court, in upholding the frivolous return penalty, observed: “[D]eductions and credits are matters of legislative grace. If Congress has not specifically legislated them, they do not exist. There is no provision in the Internal Revenue Code authorizing the deductions taken by [the couple]. [The frivolous return penalty] was specifically enacted to deter non-payment of taxes based on a taxpayer’s disagreement with the uses to which tax payments will be put. The Court accordingly must find [the couple’s] deduction frivolous ….” Snyder v. United States, 714 F. Supp. 761 (D. Md. 1989).

© Copyright 1989, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m47 c0689