Civil Liability for Failure to Report Child Abuse

Mandatory reporters who fail to report abuse can be subject to possible criminal liability and can be sued for money damages by the victims of abuse.

Richard R. Hammar, Attorney, CPA

Bio

State: Arkansas
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.

A federal court in Washington ruled that a mandatory child abuse reporter’s failure to report the abuse of a minor by a church worker could result not only in criminal liability for the reporter, but also civil liability for the reporter and his employing church. A minor (the “plaintiff”) who was sexually molested by a church worker sued the church, claiming that it was liable for the worker’s acts on the basis of its failure to comply with the state child abuse reporting statute.

The church insisted that the state child abuse reporting law imposes criminal liability on mandatory reporters who fail to report abuse, but does not explicitly impose civil liability, and therefore the plaintiff could not sue the church for monetary damages in a civil lawsuit. The court conceded that courts in other states have generally refused to allow victims of child abuse to sue mandatory reporters who fail to report, but it noted that all of those rulings were in other states.

The plaintiff acknowledged that the reporting statute did not explicitly authorize civil lawsuits for failure to report, but argued that such a right could be “implied” from the statute. It pointed to a Washington Supreme Court case that articulated three factors for the courts to consider in deciding if a statute creates a civil remedy: “First, whether the plaintiff is within the class for whose benefit the statute was enacted; second, whether legislative intent, explicitly or implicitly, supports creating or denying a remedy; and third, whether implying a remedy is consistent with the underlying purpose of the legislation.”

The court concluded that these factors supported a finding in this case that the state child abuse reporting law created a civil remedy in favor of abused minors and against mandatory reporters who fail to report abuse:

The plaintiff, a victim of childhood sexual abuse, certainly falls within the class of persons the statute is designed to protect. Washington courts have clearly stated that the mandatory reporting statute is designed “to secure prompt protection or treatment for the victims of child abuse ….” Second, the legislative intent behind the statute supports the creation of a civil remedy. It is true that [the statute] provides a penal remedy, but not a civil remedy. [The church] asserts that such a penal remedy indicates that the legislature did not intend to imply a civil remedy also. However, this court recognizes, just as Washington state courts have recognized, that when a statute is enacted for the protection of a particular class of individuals, a violation of its terms may result in civil as well as criminal liability, even though the former remedy is not specifically mentioned therein …. The logical conclusion is that the legislative intent supports the creation of a civil remedy for victims of child sexual abuse when those mandated to report the abuse fail to do so. Likewise, the Court finds that implying a civil remedy is consistent with the underlying purpose of the statute. The declared intent of the statute is “to prevent further abuses, and to safeguard the general welfare of such children.” RCW 26.44.010. Implying a civil cause of action against those who are mandated to report child abuse, but fail to do so, will motivate those required to report to take action, and furthers the goals of the statute itself. Accordingly, the Court finds that there is an implied private cause of action stemming from the statutory requirement to report child abuse.

Application. Eight states (Arkansas, Colorado, Iowa, Michigan, Montana, New York, Ohio, and Rhode Island) have enacted laws that create civil liability for failure to report child abuse. In these states victims of child abuse can sue adults who failed to report the abuse. Not only are adults who fail to report abuse subject to possible criminal liability (if they are mandatory reporters), but they also can be sued for money damages by the victims of abuse. In each state, the statute only permits victims of child abuse to sue mandatory reporters who failed to report the abuse. No liability is created for persons who are not mandatory reporters as defined by state law.

Most state child abuse reporting laws do not specifically authorize victims of abuse to sue mandatory reporters who failed to report the abuse. Several courts have addressed the issue of whether to recognize such a civil remedy apart from any specific language in the statute creating one. Most have not. The decision of the Washington federal court reflects the minority position. As a result, mandatory reporters in Washington may be subject to both criminal and civil liability for failing to report known or reasonably suspected incidents of child abuse. Fleming v. Corporation of the President of the Church of Jesus Christ of Latter Day Saints, 2006 WL 753234 (W.D. Wash. 2006).

See a summary of the child abuse reporting laws of all 50 states.

Legal Developments

Confidential and Privileged Communications – Part 2

The Montana Supreme Court ruled that statements made by a child molester to a deacon and the deacon’s spouse were not protected by the clergy-penitent privilege.

Richard R. Hammar, Attorney, CPA

Bio

State: Montana

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

• Key point 3-07.3. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister. The Clergy-Penitent Privilege

• Key point 3-07.4. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister acting in a professional capacity as a spiritual adviser. The Clergy-Penitent Privilege

The Montana Supreme Court ruled that statements made by a child molester to a deacon and the deacon's spouse were not protected by the clergy-penitent privilege. A man ("Brian") sexually molested his stepdaughter over a period of years. Brian and his family began attending a church, and he informed two members of the church about his prior acts of molestation. One of these church members was a "nonordained deacon," and the other was his wife, who held no official church office. The first meeting between Brian and the deacon occurred at the church. Brian sought the help of an associate minister, and the deacon sat in on their meeting. In the following months, Brian met with the deacon and his wife in their home to discuss his problems associated with his conduct toward his stepdaughter. The deacon and his wife were both present for some of these meetings. However, Brian would talk to the wife alone when the deacon was not available.

The local police began an investigation into Brian's alleged acts of molestation. They interviewed the deacon and his wife, who disclosed that Brian had confessed to them that he had molested his stepdaughter. Brian later opposed the introduction of this testimony in court on the ground that it was privileged under the state "clergy-penitent privilege." The trial court ruled that the testimony was not privileged, and the prosecution then called the deacon's wife to testify about the conversations with Brian. A jury found Brian guilty, and sentenced him to 30 years in a state penitentiary. Brian appealed his conviction on the ground that the deacon's wife should not have been allowed to testify. In particular, Brian argued that he considered the deacon to be a "representative" of his church and a spiritual advisor and he believed conversations held at the deacon's house would be kept confidential.

The state supreme court quoted the Montana clergy-penitent privilege: "A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs." The court made the following conclusion:

Although we have never clarified the definition of "clergy" under [the clergy-penitent privilege], nothing in the record suggests that [a deacon's wife] is a clergy person. [The wife] testified that she was not a minister, clergyman, or deacon of the [church]. She stated that the church does not ordain women. She also stated that she did not have any special counseling role within the church. Therefore, the [trial court] did not abuse its discretion in admitting statements [Brian] made to [the deacon's wife].

The court also concluded that statements made to the deacon in his wife's presence were not privileged "even if we were to conclude that [the deacon] met the definition of clergy." The statute states that "a clergyman or priest cannot … be examined as to confessions made to him." The statute "clearly creates a testimonial privilege for a clergyman or priest; the statute does not expressly create a testimonial privilege for a nonclerical church member for statements made in his or her presence. In interpreting a statute, we cannot add what has been omitted."

The court noted that the other requirements of the clergy-penitent privilege were not met. In particular, there was substantial evidence that Brian's statements "were not made to clergy persons acting in their professional character." While Brian considered the deacon to be "a representative of my church and my spiritual adviser," he did not claim that the deacon's wife fulfilled the same functions. Moreover, while the deacon suggested that Brian approached him as "somebody to lean on … to talk to and confess out [his] sins," his wife testified that Brian approached them because "he was concerned about his conduct and about going to jail."

Application. It is common for church members to seek direction and solace from board members and other church officials. While the motivation in seeking out a board member may be to obtain spiritual counsel, this fact does not mean that the conversation is protected by the clergy-penitent privilege. As this case illustrates, the privilege applies only to conversations with a minister. Further, the minister must be sought out in his or her professional capacity as a spiritual adviser, and the communications must be confidential. So, despite Brian's belief that he was seeking out the deacon and his wife for spiritual counsel and he assumed their conversations would not be disclosed to anyone else, the couple were legally able to testify about those conversations. Church board members should keep this in mind when they are sought out by church members for spiritual counsel, especially if someone confesses to criminal activity. Board members should consider directing such persons to a member of the pastoral staff so that their conversation may be protected by the clergy-penitent privilege. State v. Gooding, 989 P.2d 304 (Mont. 1999).

© Copyright 2000 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: m33 m37 c0600

Legal Developments

Recent Developments in Montana Regarding Confidential and Privileged Communications

The Montana Supreme Court ruled that statements made by a child molester to lay leaders in his church were not protected from disclosure by the clergy-penitent privilege.

Richard R. Hammar, Attorney, CPA

Bio

State: Montana

Church Law and Tax1999-01-01

Confidential And Privileged Communications

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

• Key point. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister acting in a professional capacity as a spiritual adviser.

The Montana Supreme Court ruled that statements made by a child molester to lay leaders in his church were not protected from disclosure by the clergy-penitent privilege. A father (the “defendant”) was charged with sexually abusing his nine-year-old stepdaughter. He pleaded not guilty to the charge, and a trial date was set. While awaiting trial, the defendant and his wife divorced, but both began attending the same church. The church allows its members to confess their sins to one another, but no church member has the authority to formally forgive sins. Rather, the church believes forgiveness only comes from God. After an evening church service which both the defendant and his former wife attended, the two of them and the stepdaughter encountered each other in a restaurant parking lot. The defendant began talking with his stepdaughter, and apologized to her, presumably in an attempt to prevent her from testifying against him.

Concerned with the nature of this conversation, the former wife suggested that they continue the conversation inside the restaurant in the presence of a married couple from church who were also present. This couple served as “lay leaders” in the church, although they were not ordained ministers. The conversation continued in the back of the lobby area of the restaurant with everyone sitting on chairs. During this conversation the defendant admitted to sexually molesting his stepdaughter. At the defendant’s criminal trial, the court allowed the lay leaders to testify concerning the defendant’s comments during their conversation in the restaurant. Largely as a result of this evidence, the defendant was convicted of child molestation. He appealed his conviction, claiming that the statements he made in the restaurant were protected from disclosure by the clergy-penitent privilege, and that the lay leaders should not have been allowed to testify regarding them. He insisted that the lay leaders were functioning in their professional character as clergy during the conversation at the restaurant, and in the course of discipline enjoined by the church. Further, because of the “religious setting” of the meeting, he assumed that his statements would be kept confidential.

The state supreme court ruled that the conversation was not protected by the clergy-penitent privilege. The Montana clergy-penitent privilege specifies that “a clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs.” The court concluded that even if the lay leaders were “clergy” (it declined to resolve this question), the statements made in their presence by the defendant were not privileged since they were not directed at them in their “professional character” as clergy “acting in their religious roles … pursuant to the practice and discipline of the church.” To the contrary, the defendant “was not making a confession to [them] for the purpose of receiving forgiveness or for spiritual or religious counseling, guidance, admonishment or advice.”

The court pointed out that the restaurant meeting was a continuation of the defendant’s conversation with his former wife and stepdaughter which began after evening church services. Since the former wife felt uncomfortable facing the defendant by herself as he attempted to “set things right” with his former stepdaughter, she asked him to continue their conversation inside the restaurant and she also asked the two lay leaders (without explaining the subject of their conversation) to serve as “facilitators” while she and the defendant and stepdaughter talked. The court noted that the conversation continued in the back of the lobby area of the restaurant, a public place, with everyone sitting on chairs. No representations of confidentiality were made during the conversation.

The court concluded:

Even assuming that [the two lay leaders] were clergy persons in the church, nothing in the record suggests that they were acting as ministers or counselors at the time they facilitated the [restaurant] conversation. [The defendant], not yet a church member at the time … had not previously sought spiritual advice or counseling from either [of the lay leaders]. Further [he] did not ask to meet with [the two lay leaders] for the purpose of confession or for religious guidance, counseling, admonishment or advice. Rather, [his former wife] requested that [the lay leaders] be present … but only to serve as facilitators. Moreover [the defendant] did not ask for, and the [lay leaders] did not give, any spiritual advice or forgiveness. No prayers were given and nothing was said about forgiveness. Rather, [the defendant] volunteered his statements without apparent encouragement in order to set things right with his stepdaughter so that she would not have to testify at court proceedings. In this regard, [the defendant’s] statements were directed at [his former wife and stepdaughter], not the [lay leaders]. Finally, [the defendant] had no reasonable expectation that his statements would be held in confidence. [He] did not seek and the [lay leaders] did not make any representations of confidentiality. Instead, [he] made his statements in a public place to his ex-wife and stepdaughter in the presence of the [two lay leaders].

Application. This case illustrates an important aspect of the clergy-penitent privilege. The privilege generally applies only to statements made to ministers acting in their professional capacity as spiritual advisers. It is often difficult to determine whether or not this requirement is met. However, this ruling provides some useful insights. Conversations begun between two persons, and which later are expanded to include a minister, may not be privileged. As the Montana court concluded, such conversations may be viewed as a continuation of a private conversation, rather than as an effort to seek out a minister for spiritual counsel. Second, the court mentioned on a number of occasions that the conversation took place in a restaurant, and that such a public setting made it less likely that the conversation was privileged. This certainly does not mean that privileged communications cannot occur in public settings. The ultimate test is one of confidentiality, and this can be met as easily in a restaurant as in a pastor’s office-assuming that the conversation cannot be overheard by others. Ministers who have any doubts as to the privileged status of a particular conversation should ask the counselee the following question: “Are you speaking with me in my professional capacity as a spiritual adviser?” If the answer is yes, then the minister will be able to share this answer if a question later arises regarding the privileged nature of the conversation. State v. MacKinnon, 957 P.2d 23 (Mont. 1998). [The Clergy-Penitent Privilege ]

© 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: m33 m10 c0199

Legal Developments

“Just Compensation” for Condemned Property

Churches are entitled to compensation for condemned property.

Richard R. Hammar, Attorney, CPA

Bio

State: Montana
Categories: Church Property

Church Law and Tax 1994-03-01 Recent Developments

Eminent Domain

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

• Key point: While church property can be taken by a city pursuant to “condemnation” (eminent domain), a church is entitled to “just compensation” for any property that is taken.

• The Montana Supreme Court was asked to determine if a trial court properly computed the amount of money to be paid to a church whose property was taken by condemnation. A city condemned 0.31 acres of a church’s parking lot to facilitate the construction of a sewer main. The city offered to pay the church $25,000 for the property, but the church determined (on the basis of an appraisal) that $58,000 would be a reasonable settlement. After a jury trial the church was awarded $14,500 for the parcel taken and $2,500 for damages to its remaining property, for a total award of $17,000. The church appealed this decision to the state supreme court on three grounds. First, it argued that the trial court erred in not allowing the church to present evidence to the jury about the “cost to cure” method of valuing the condemned property. This method would require the city to compensate the church for the cost of additional property purchased by the church to replace the condemned property. The supreme court rejected the church’s position: “[J]ust compensation for a public taking of private land is to be computed as: fair market value of land taken plus value of remainder before taking minus value of remainder after taking. The cost to cure method is an alternative method of compensation. The [trial court] was under no obligation to allow discussion or testimony of such a method.” Second, the church argued that the trial court had erred in not allowing church representatives to testify regarding the value of the condemned property. The supreme court also rejected this position: “The history of the church from its beginnings until the present, and its plans for the future, are irrelevant in determining the actual damage as of the valuation date. The [trial court] did not err in limiting the testimony of the property owner.” Finally, the church argued that the trial court erred in refusing to inform the jury that the city had determined that the parking requirements for the church were 272 spaces. The supreme court agreed with the church. The court observed:

[T]he church was entitled to damages for the fair market value of that property which was taken by the city’s condemnation. However, it was also entitled to damages for the depreciation to its remaining property which resulted from the taking. The property taken was the church’s parking lot. In order to evaluate the depreciation to the church’s remaining property, the jury had to know what is parking requirements were and whether those requirements could be satisfied on the remaining property. Prior to trial, the parties entered tin the following stipulation: “Parking requirements under city’s zoning ordinance for the subject property are 272 spaces.”

Based upon its reliance on that stipulation, the church offered proof that it would have to either purchase additional property at a cost of about $50,000, or make alterations to its remaining property at a cost of $26,350, in order to satisfy the city’s parking requirement and receive a certificate of occupancy after completing the building improvements that were then under way ….

Apparently uncertain about what the future parking requirements would be, the jury awarded damages for the depreciation of the church’s remaining property in the amount of $2,500. This was one-tenth of the minimum amount which the testimony established would be necessary to comply with what the city had previously agreed would be the church’s parking requirements. The church had a right to rely on the stipulation when preparing for trial and putting on proof of its damages. We hold that the [trial court] erred by not instructing the jury that the city had agreed that 272 parking spaces were required and that failure to do so prejudiced the [church].

The supreme court reversed the jury’s verdict of $17,000 and sent the case back to the trial court for further consideration with the understanding that the jury would be instructed that the church would need 272 parking spaces after the condemnation. Great Falls v. Temple Baptist Church, Inc., 859 P.2d 1015 (Mont. 1993).

Court: Diocese Does Not Have to Turn Over Records

Montana law has strict protection of privacy.

Richard R. Hammar, Attorney, CPA

Bio

State: Montana
Categories: Church Records

• Key point: Confidential church personnel records ordinarily must be disclosed in response to a subpoena. However, there are limited exceptions to this rule.

• The Montana Supreme Court ruled that a Catholic diocese did not have to turn over its personnel records on a priest who was charged with deviate sexual misconduct. A priest was charged with two counts of deviate sexual misconduct. He pled not guilty to the charges, and presented the prosecution with a list of 15 character witnesses who were prepared to testify in his favor concerning his exemplary behavior. The prosecutor sought a subpoena to obtain the priest's personnel file from the diocese. The purpose of the subpoena was to seek reports of similar misconduct, disciplinary actions, transfers, and potential witnesses who could be called on to rebut the priest's 15 character witnesses. A judge issued the subpoena and it was delivered to the diocese, but the diocese refused to surrender any of its personnel records. The diocese agreed to a private ("in camera") inspection of the personnel file in the judge's chambers in the presence of the chancellor of the diocese. The file was nearly two inches thick, and was marked "confidential—to be opened by the bishop of the diocese only." The judge made the following comments while opening and reviewing the file: "I open this with reluctance. All right. The court has in summary fashion reviewed the documents. I will say on the record, I consider these to be highly personal documents, private documents of the diocese …. Any my impression [is] that these documents will not be disclosed." The judge later explained his decision as follows: "[T]he diocese has compelling rights of privacy to its personnel files and all of the documents contained therein. The file is clearly marked to be private …. We have the strongest privacy laws in this state of all of the states, and I find that the [prosecution] cannot show compelling interest to crack open private church documents such as these." This decision was appealed by the prosecutor, and the state supreme court upheld the trial judge's decision in favor of the diocese. The court acknowledged that the subpoena power is very broad. However, it not without limits. One of those limits pertains to some personnel records. The court observed: "When discovery of documents such as personnel records are at issue, privacy rights are undoubtedly at stake. Montana adheres to one of the most stringent protections of its citizens' right to privacy in the country. Montana's treatment of privacy rights is more strict than that offered by the federal constitution. The privacy interest in [the priest's] personnel records at the Catholic diocese must be weighed against the state's need to discover the same." The court noted that under the state constitution, privacy interests are protected so long as a party has an expectation of privacy and "society is willing to recognize that expectation as reasonable." The court concluded that the personnel records of the diocese satisfied this test, and accordingly they did not have to be turned over to the prosecutor in response to the subpoena. However, the court pointed out that there is no "blanket unavailability" of such records to the state, and that each case must be evaluated independently. Further, the court pointed out that the personnel files of the diocese were not the prosecutor's only means of locating information. Much of the information sought by the prosecutor could be obtained by conducting an independent investigation. In summary, this ruling is a natural result of the increasing tendency of courts and legislatures to protect the "right of privacy," and it will be of interest to other churches and denominational agencies both in and outside of the state of Montana. Ironically, the same right (privacy) that is the basis for the limited legalization of abortion protected the records of the Catholic diocese in this case from mandatory disclosure to the state. State v. Burns, 830 P.2d 1318 (Mont. 1992).

Court Ruled Pastor Was an Employee of His Church for Purposes of Workers Compensation Coverage

Classification means the church must pay workers compensation insurance.

Richard R. Hammar, Attorney, CPA

Bio

State: Montana
Categories: Workers Compensation

Key point: In some states, clergy are considered to be employees protected by workers compensation law. This may mean that their employing church must pay workers compensation insurance for both clergy and lay employees.

The Montana Supreme Court ruled that a Lutheran pastor was an employee of his church for purposes of workers compensation coverage, and accordingly the church had to pay workers compensation insurance for him.

The church argued that its pastor was self-employed rather than an employee, and pointed out that the pastor reported his federal income taxes and social security taxes as a self-employed person. It also vigorously maintained that the relationship between a church and its pastor is a purely theological matter, and that by "calling" a pastor a church "does not set up a relationship of employer to employee, but rather a relationship of pastor to a congregation, as a shepherd."

The church claimed that its constitutionally protected right to practice its religion would be violated if the state could force it to treat its pastor as an employee for purposes of workers compensation coverage. The state supreme court disagreed. It began its opinion by rejecting the church's contention that the pastor was self-employed rather than an employee. It acknowledged that self-employed persons were not covered by workers compensation, but it concluded that the pastor was an employee for purposes of workers compensation coverage despite the fact that he reported his income taxes and social security taxes as a self-employed person.

The court noted that the definition of the term employee is a broad one for workers compensation purposes, and that it can be established if an employer furnishes equipment and supplies to a worker. It noted that the church in this case provided most if not all of its pastors equipment and supplies, including an office, place of worship, and clerical vestments, and in addition provided a support staff consisting of a full-time secretary and a part-time bookkeeper. The court then noted: "[T]he furnishing of equipment is strong evidence of control and of a lack of independence and by itself is sufficient to establish the pastor's status as an employee. When an employer furnishes valuable equipment, an employment relationship almost invariably exists."

The court also rejected the church's claim that its first amendment rights were violated by the state's classification of its pastor as an employee. It noted that "the state may regulate affairs impacting religious activity when there is an overriding governmental interest in so doing." The provision of workers compensation benefits is such an interest, the court concluded. This conclusion was reinforced by the fact that the church had paid workers compensation insurance for its pastor for several years without objection.

The court acknowledged that the civil courts cannot interfere with the relationship between a church and its pastor, but it concluded that in this case only the relationship between the church and the workers compensation system was being scrutinized.

What this means for churches

This case is an important development for the following reasons. First, it illustrates that clergy will be considered "employees" subject to workers compensation law in a number of states, even if they report their income taxes and social security taxes as self-employed persons. In other words, the classification of a minister as an employee for purposes of workers compensation coverage is an entirely independent issue that is not affected by the minister's status for federal tax purposes. Second, this case illustrates that the definition of the term minister is very broad for purposes of workers compensation coverage. Third, the court in this case concluded that under the state constitutional guaranty of religious freedom a "compelling state interest" is still needed to justify an interference with religious freedom.

In 1990, the United States Supreme Court ruled that a compelling state interest no longer is necessary to justify an interference with religious freedom under the first amendment to the United States Constitution. The Montana case illustrates that the protection of religious liberty may be stronger under some state constitutions than under the United States Constitution.

Finally, this case suggests that churches should review carefully their ministers' status for workers compensation purposes. Do you pay workers compensation insurance for the ministers on your staff? If not, why not? Are you assuming that the ministers are self-employed? If so, this is a very risky assumption. Keep in mind that one of the most common exclusions in church insurance policies is for injuries sustained by employees in the course of their employment. Such injuries are excluded from coverage because it is assumed that such persons are covered under workers compensation. As a result, churches that do not pay workers compensation insurance premiums for their ministers may be incurring a significant uninsured risk. If you do not believe that your ministers are covered by workers compensation, you should discuss this with a local attorney for further clarification. St. John's Lutheran Church v. State Compensation Insurance Fund, 830 P.2d 1271 (Mont. 1992)

Legal Developments

Snow and Ice on Church Property

Failure to clear church property can result in unexpected liabilities.

Richard R. Hammar, Attorney, CPA

Bio

State: Montana
Categories: Church Property, Personal Injuries on Church Property or During Church Activities

Church Law and Tax 1991-03-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Failure to remove snow and ice from church property can result in unexpected liabilities. The Montana Supreme Court upheld a jury’s award of more than $400,000 to a young woman who was injured when she slipped and fell on an icy church sidewalk. The woman had arrived at the church at 6AM to perform volunteer work. Several inches of snow had fallen during the night, but she entered the church without difficulty. While she was in the church, the church janitor shoveled the sidewalks. Usually, he applied salt shoveled sidewalks to prevent ice accumulation, but on this occasion he did not. By 9AM, the woman had completed her activities, and exited the building. As she left, she noticed that the sidewalk had been shoveled, and she started to walk towards her car. The sidewalk was level for several feet, and she had no difficulty negotiating it. However, the last several feet of the sidewalk sloped sharply downward where 2 steps had been replaced by a “slope” to enable handicapped and elderly individuals to enter the church more easily. There were no railings at any point along the sidewalk. As the woman was descending this slope, she slipped and fell, landing on her head and neck. As a result of her injuries, she had to undergo 5 operations to her cervical spine. She sued the church, alleging that it had been negligent in the construction and maintenance of the sidewalk, and that it had failed to warn her of the dangerous condition. A trial court ruled in the woman’s favor, and the church appealed to the state supreme court. The church argued that it was not responsible for “natural accumulations” of snow and ice, that it had no duty to warn of a danger that was clearly apparent to a reasonable person, and that the sidewalk was not negligently constructed or maintained. The court concluded that “a property owner may be held liable for falls on accumulations of ice and snow where the hazard created by the natural accumulation is increased or a new hazard is created by an affirmative act of the property owner. Even where such a condition is actually known or obvious, a property owner may be held liable if he should have anticipated that injuries would result from the dangerous condition.” The court concluded that the church janitor’s act of shoveling the sidewalk without applying any salt left the sidewalk covered with a “sheen of ice” that constituted a new hazard different from the natural accumulation of snow and ice that existed previously. It was this hazard, along with the dangerous slope of the sidewalk (without a railing), that constituted negligence on the part of the church. This case demonstrates the risks that churches face in not adequately responding to snow and ice accumulations on their property, and in maintaining steeply “sloped” sidewalks. There is little doubt that this tragic injury could have been avoided had salt been applied to the shoveled sidewalk, and had the church constructed a railing along the steep portion of the sidewalk (or constructed it in such a way that the slope was more gradual). These are important considerations for churches to keep in mind. Davis v. Church of Jesus Christ of Latter Day Saints, 796 P.2d 181 (Mont. 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: m58 m86 c0291

Legal Developments

Clergy – Part 1

Taxes

Richard R. Hammar, Attorney, CPA

Bio

State: Montana

Church Law and Tax 1989-03-01 Recent Developments

Clergy – Taxes

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

• Many clergy have asked whether they are subject to a “penalty” if they make only one “estimated tax payment” at the end of a year in lieu of four quarterly payments over the course of the year. A federal court in Montana addressed this issue recently, and agreed with the IRS that taxpayers who are required to use the estimated quarterly tax procedure must pay their estimated taxes (income tax and social security tax) in four equal quarterly installments on April 15, June 15, September 15, and the following January 15. Waiting until the end of the year to pay the full amount of estimated taxes will result in an underpayment penalty for the three preceding quarters, concluded the court. Generally, any taxpayer who is not subject to income tax withholding is required to estimate and prepay both federal income taxes and social security taxes by using the estimated tax procedure. Clergy are required to utilize the estimated tax procedure since they are always exempt from the tax withholding obligations (unless they are employees who have entered into a voluntary withholding arrangement with their employing church). Accordingly, clergy should be careful to properly estimate and prepay their income tax and social security tax obligations in four equal installments on April 15, June 15, September 15, and the following January 15, in order to avoid any underpayment penalty. Clergy not familiar with this procedure should obtain a copy of IRS Form 1040-ES. Note that your first quarterly estimated tax installment must be mailed no later than April 17, 1989 (April 15th falls on a Saturday). Veis v. United States, 88-2 USTC para. 9616 (D. Mont. 1988).

© 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: m27 c0289

Legal Developments

Jehovah’s Witness congregation could not sue the church for defamation

The Montana Supreme Court ruled that a husband and wife who had been "disfellowshipped" from

Richard R. Hammar, Attorney, CPA

Bio

State: Montana
Categories: Defamation, First Amendment

The Montana Supreme Court ruled that a husband and wife who had been "disfellowshipped" from a Jehovah's Witness congregation could not sue the church for defamation.

The couple had been disfellowshipped for marrying contrary to church doctrine. In announcing the decision to the congregation, the overseer remarked that the couple had been living in adultery according to church teachings and had been disfellowshipped for "conduct unbecoming Christians." The overseer added that "we got the filth cleaned out of the congregation, now we have God's spirit."

The court concluded that such comments were not defamatory since they were privileged and protected by the constitutional guaranty of religious freedom. As to the defense of privilege, the court remarked that "it is firmly established that statements of church members made in the course of disciplinary or expulsion proceedings, in the absence of malice, are protected by a qualified privilege." The remarks of the overseer were privileged, concluded the court, and did not involve malice since "malice is defined as reckless disregard for the truth [and] does not include hatred, personal spite, ill-will, or a desire to injure."

The court added that it "would be violating the [church's] right to free exercise of religion if [it] were to find [the church's] statements actionable under state defamation law." Rasmussen v. Bennett, 741 P.2d 755 (Mont. 1987).

Legal Developments

Is a Church Required to Give a Pregnant Employee Her Job Back?

Must a church guarantee a pregnant employee her job back after the birth of her

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Employment Practices

Must a church guarantee a pregnant employee her job back after the birth of her child?

This question is being asked by many churches as a result of a recent Supreme Court ruling. Title VII of the federal Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, prohibits most employers from discriminating in any employment decision (including disability leave and job reinstatement) on the basis of pregnancy or childbirth. Among other things, this means that employees temporarily disabled by childbirth must be treated the same as employees temporarily disabled by any other disability (such as cancer, heart disease, or a bone fracture).

In 1978, the State of California enacted a law requiring employers subject to Title VII to provide unpaid disability leave and the assurance of job reinstatement to all female employees temporarily disabled by childbirth so long as they were physically unable to return to work (but in no event more than four months). No other group of employees received these special privileges. Accordingly, the law was challenged on the ground that it treated employees preferentially on the basis of childbirth contrary to Title VII's requirement of neutrality.

The Supreme Court, in upholding the California law, concluded that Title VII forbids less favorable but permits more favorable disability leave and reinstatement privileges on account of childbirth. Accordingly, the State of California could require unpaid disability leave of up to four months, plus job reinstatement guarantees, for employees temporarily disabled by childbirth without requiring similar guarantees for employees temporarily disabled by other conditions.

However, this ruling is of limited relevance to churches for two reasons. First, the Court merely upheld a California law; it did not declare a national policy. Second, the California law only applies to California employers subject to Title VII of the Civil Rights Act of 1964.

In general, covered employers include only those employing fifteen or more employees and who are engaged in a business or activity "affecting commerce." California churches and religious organizations employing fewer that fifteen persons are automatically excluded from the law. And, even those California churches and religious organizations employing fifteen or more persons are only covered to the extent that they are engaged in an activity affecting commerce.

Over the past several years the courts have so loosely interpreted the concept of "affecting commerce" that it is likely that some larger churches and religious organizations employing fifteen or more persons will be covered by the law. The nature and degree of commercial activities is a key consideration in making this determination. It remains to be seen whether other states will follow California in adopting legislation giving pregnant employees mandatory leave and job reinstatement privileges.

The Court observed that Montana and Connecticut already had similar provisions. California Federal Savings and Loan Association v. Guerra, 107 S. Ct. 683 (1987).