Recent Developments in New Jersey Regarding Confidential and Privileged Communications

A New Jersey court ruled that some documents maintained by a Catholic Archdiocese were not subject to disclosure in a civil lawsuit.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey

Church Law and Tax1999-07-01

Confidential and Privileged Communications

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

• Key point. The clergy-penitent privilege is not limited to oral conversations between a minister and counselee. It can apply to letters and other documents that result from a confidential communication between a counselee and a minister who is acting as a spiritual adviser. Examples include counseling notes made by a minister, or letters written by a church member to a minister containing a confession or a request for spiritual assistance.

A New Jersey court ruled that some documents maintained by a Catholic Archdiocese were not subject to disclosure in a civil lawsuit. Two adult brothers sued a priest and their church and an archdiocese as a result of injuries they allegedly suffered when they were sexually molested by the priest some thirty years before. The brothers claimed that the church and archdiocese were legally responsible for the priest’s actions on the basis of negligent selection and negligent supervision. The brothers asked the archdiocese to turn over all documents contained in the files of its “vicar for priests,” along with any other documents regarding sexual misconduct by any priest form the 1960s to the present. The archdiocese insisted that it was protected from turning over these documents on the basis of the clergy-penitent privilege and the first amendment guaranty of religious freedom. In particular, the archdiocese asserted that the files of the vicar for priests “were of a confidential nature of the highest order” because

the vicar for priests serves as a confidant to priests in need. Accordingly, all priests who confide in the vicar for priests do so with an expectation of privacy and confidentiality. The relationship is the same as a confessional matter with any other penitent. Through the vicar for priests, priests in distress seek counsel and support regarding matters related to the stresses and tension involved in ministry.

The vicar for priests stated that he could not turn over information in his files because “such a production would completely undermine the function of the vicar for priests for all present and future priests could never rely on the confidentiality of their consultations with the vicar.”

Clergy-penitent Privilege

Were correspondence and other materials contained in the vicar’s files protected from disclosure by the clergy-penitent privilege? The clergy-penitent privilege is set forth in the following New Jersey statute:

Any communication made in confidence to a cleric in the cleric’s professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which the cleric belongs or of the religion which the cleric professes, shall be privileged. Privileged communications shall include confessions and other communications made in confidence between and among the cleric and individuals, couples, families or groups in the exercise of the cleric’s professional or spiritual counseling role …. The privilege accorded to communications under this rule shall belong to both the cleric and the person or persons making the communication ….

The court concluded that documents in the vicar’s files containing statements made by the offending priest to the vicar “are protected by the privilege,” since

it is undisputed that the vicar was acting in his professional character, or as a spiritual adviser, when, or if [the offending priest] confided in him respecting the alleged sexual assaults or any other personal or professional matter …. Priests confide in the vicar with the expectation of privacy and confidentiality; the relationship is the same as a confessional matter with any other penitent. Priests in distress seek counsel and support regarding matters related to the stresses and tensions involved in their ministry. Thus … [the vicar] received such communications in confidence as a “confidant to priests in need.” Thus, so long as [the offending priest’s] communications to the vicar were “confessions” or otherwise made with the expectation of confidentiality, these communications are protected against disclosure.

The court cautioned that not every document in the vicar’s files was necessarily privileged. Only those documents reflecting “communications made in confidence” to the vicar while he was acting as a spiritual counselor were protected by the privilege.

First Amendment

Does the first amendment guaranty of religious freedom protect internal church records from disclosure in the course of litigation? Not necessarily, the court concluded. It observed:

[T]he first amendment does not protect a member of the clergy from actions arising out of sexual misconduct that occur during a time when a clergy member is providing counseling to a parishioner. If the first amendment does not shield the clergy from [civil litigation] involving alleged sexual misconduct, it follows that it does not protect against application of [the subpoena power] to uncover relevant material in personnel files related to the alleged sexual misconduct.

Moreover, the maintenance of personnel files, generally speaking, is nothing more than a normal administrative procedure of any organization, whether it be religious or secular. It can hardly be argued that the ordinary maintenance of such files is a practice which is “rooted in religious belief.” Maintenance of the files does not involve religious doctrine. Discovery would not impinge upon the administration of the church or its customs or its practices. There is no usurpation of the decision-making function of a religious organization. Simply put, there is no religious dispute involved in the production of personnel files in the discovery phase of trial. Thus, there is no occasion for the church [or archdiocese] to claim a privilege of nondisclosure under the first amendment.

Application. This case illustrates an important point-the clergy-penitent privilege is not restricted to oral conversations between ministers and those they counsel. It also may protect documents that reflect the substance of privileged communications, such as (1) letters from church members to their pastor that contain confessions or seek spiritual guidance; (2) copies of letters from a pastor in response to a request for spiritual counsel; or (3) counseling notes made by a pastor during or after counseling sessions.

There is one other aspect of this case that is worth noting. The New Jersey clergy-penitent privilege statute quoted above covers “communications made in confidence” between a minister and “individuals, couples, families or groups.” This language is helpful, for it clarifies that the privilege will apply in the context of marriage or family counseling, even though “third persons” are present. Corsie v. Camanalonga, 721 A.2d 733 (N.J. Super. 1998). [The Clergy-Penitent Privilege ]

© Copyright 1999 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 c0499

Legal Developments

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

A New Jersey court ruled that a church may be liable for injuries sustained by a neighborhood child while playing on church premises.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey

Church Law and Tax1999-03-01

Personal Injuries-on Church Property or During Church Activities

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

• Key point. Churches may be legally responsible for injuries suffered by trespassing children because of a dangerous condition on church property. Churches also may be liable for injuries sustained by adults while attempting to rescue such children from harm.

A New Jersey court ruled that a church may be liable for injuries sustained by a neighborhood child while playing on church premises. A church was located on a large lot without a fence. The lot contained a low point where rain water accumulated. One day it rained quite heavily and a deep pond-like puddle formed in the low area. A 3-year-old child who lived across the street often played on the church’s property. She looked out the window of her home and noticed her tricycle on the church’s property and wanted to bring it out of the rain. Her mother (the “victim”) instructed the little girl to stay in the house and told her that she would retrieve the tricycle. The mother crossed the street to get the tricycle and noticed the large pond-like puddle that had accumulated on the church’s property as a result of the rain. The tricycle was on the other side of puddle and the mother began walking around the puddle to retrieve it. Suddenly, she heard her little girl behind her saying that she would get the tricycle. The mother instantly realized that her daughter had walked into the large puddle and was in the middle of it. The mother was fearful that due to the young age of the child and given the depth of the water that the child was in danger. She immediately walked towards the child, but before she could reach her, she slipped in the mud under the water, fracturing her leg. The mother sued the church.

A state appeals court concluded that the church could be sued for the mother’s injuries. It quoted the general rule from section 339 of the Restatement (Second) of Torts, a respected legal treatise that is recognized in most states:

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

The court concluded that each of these conditions was met. First, the pastor knew that children played on the church’s property. Second, the pastor was aware of the accumulation of water on the property after a heavy rain, and the risk this posed to small children. Third, the pastor should have realized that the flooding condition on the property created an unreasonable risk of serious harm to young children. Fourth, the burden of eliminating the danger was slight compared with the risk to children. The pastor testified that the cost of installing a fence to keep children from walking in the area was approximately $2,000. The court pointed out that the church in fact did install a fence following the incident. Fifth, the church failed to exercise reasonable care to eliminate the danger or otherwise to protect the children. At the time of the incident, “the church had taken no steps to remove the condition or to warn children of the danger.”

The court noted that the Restatement addresses liability of property owners associated with injuries to children caused by artificial conditions on their property. Was this condition satisfied? Yes, concluded the court:

[T]he ponding-effect was an artificial condition. The church buildings and the parking lot had been constructed on the property. The engineer testified that rain water from portions of the roof and from the stone driveway area contributed to the accumulation of water in the low area. The church building, with the resulting flow of rain water from the roof and the stoned parking lot were not natural conditions of the land, but instead were artificial conditions contributing to the accumulation of rain water on the property.

The court concluded that if a church owes a duty of care to a trespassing child under the Restatement analysis summarized above, it also owes a duty of care to an adult rescuer. As a result, the church could be responsible for the mother’s injuries incurred while attempting to save her child from the dangerous condition on the property.

Application. It is common for neighborhood children to play on church property. Perhaps this is true of your church. If so, this case should be considered carefully, since it presents an excellent review of the basis for church liability to trespassing children who are injured while playing on church property. It also illustrates that parents and other adults who are injured while “rescuing” a child from a dangerous condition on church premises may also be able to sue the church for injuries received. In summary, if trespassing children play on your property, and there is a potentially dangerous “artificial” condition, then you should consider the feasibility of eliminating the condition or making it less accessible to young children. Warning signs are often of limited value, since they cannot be read or comprehended by younger children. Blackburn v. Broad Street Church, 702 A.2d 1331 (N.J. Super. 1998). [Premises Liability]

Legal Developments

Recent Developments in New Jersey Regarding Sexual Relationships with Counselees

The New Jersey Supreme Court allowed a woman to sue her pastor and church as a result of a sexual relationship that was initiated by the pastor.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey

Church Law and Tax1998-07-01

Sexual Relationships with Counselees

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

• Key point. Some courts have allowed pastors to be sued on the basis of a “breach of a fiduciary duty” for engaging in sexual relations with a counselee in the course of a counseling relationship.

• Key point. The courts have refused to recognize “clergy malpractice” as a basis of legal liability, even in cases involving sexual misconduct.

• Key point. Church officials may be liable if they disclose to church members that a pastor has engaged in sexual relations with a counselee in the course of a counseling relationship.

The New Jersey Supreme Court allowed a woman to sue her pastor and church as a result of a sexual relationship that was initiated by the pastor. The woman’s lawsuit alleged that she had sought counseling from a pastor of her church, and that the pastor became aware of her emotional vulnerabilities and exploited those vulnerabilities to induce her to engage in sexual acts with him. The woman filed a complaint with a “standing committee on clergy ethics” of her denomination, and the committee later determined that the minister had “violated his pastoral relationship” with the victim by engaging in inappropriate sexual behavior toward her.” The committee “sanctioned” the minister. The woman then sued her pastor and church, claiming that the pastor’s actions amounted to “clergy malpractice,” a breach of a fiduciary duty that he owed her, and emotional distress. She also sued the successor pastor of her church (to whom she had disclosed the sexual relationship) because of his unauthorized disclosure of the affair and her identity to congregational members in sermons and personal correspondence. A state appeals court dismissed all of the woman’s claims, and she appealed to the state supreme court.

Clergy malpractice

The court rejected the woman’s claim that the pastor was guilty of clergy malpractice. It noted that “no other court in the United States” has recognized this basis for liability, and for good reason:

Several problems inhere in a claim for clergy malpractice. First, such a claim requires definition of the relevant standard of care. Defining that standard could embroil courts in establishing the training, skill, and standards applicable for members of the clergy in a diversity of religions with widely varying beliefs. Furthermore, defining such a standard would require courts to identify the beliefs and practices of the relevant religion and then to determine whether the clergyman had acted in accordance with them. The entanglement could restrain the free exercise of religion.

Breach of a fiduciary duty

The court noted that if a “fiduciary relationship” exists between a pastor and counselee, then the pastor may be legally responsible for “breaching” that duty by taking advantage of the counselee’s emotional vulnerability by initiating a sexual relationship. It concluded that a fiduciary relationship does exist between pastors and counselees:

The essence of a fiduciary relationship is that one party places trust and confidence in another who is in a dominant or superior position. A fiduciary relationship arises between two persons when one person is under a duty to act for or give advice for the benefit of another on matters within the scope of their relationship. The fiduciary’s obligations to the dependent party include a duty of loyalty and a duty to exercise reasonable skill and care. Accordingly, the fiduciary is liable for harm resulting from a breach of the duties imposed by the existence of such a relationship. Trust and confidence are vital to the counseling relationship between parishioner and pastor. By accepting a parishioner for counseling, a pastor also accepts the responsibility of a fiduciary. Often, parishioners who seek pastoral counseling are troubled and vulnerable. Sometimes, they turn to their pastor in the belief that their religion is the most likely source to sustain them in their time of trouble. The pastor knows, or should know of the parishioner’s trust and the pastor’s dominant position.

The court stressed that the first amendment does not prevent clergy liability based on a breach of fiduciary duty: “Unlike an action for clergy malpractice, an action for breach of fiduciary duty does not require establishing a standard of care and its breach. Establishing a fiduciary duty essentially requires proof that a parishioner trusted and sought counseling from the pastor. A violation of that trust constitutes a breach of the duty.” Further, it pointed out that “[t]he free exercise of religion does not permit members of the clergy to engage in inappropriate sexual conduct with parishioners who seek pastoral counseling,” and, that the pastor’s actions were “not an expression of a sincerely held religious belief [but rather were] an egregious violation of the trust and confidence [the woman] reposed in him.”

The court concluded: “Ordinarily, consenting adults must bear the consequences of their conduct, including sexual conduct. In the sanctuary of the church, however, troubled parishioners should be able to seek pastoral counseling free from the fear that the counselors will sexually abuse them.”

Emotional distress

The court concluded, without comment, that the woman could sue the pastor for “negligent infliction of emotional distress.”

The successor pastor’s liability for public disclosures

The woman claimed that she met with the successor pastor to discuss the previous pastor’s “inappropriate physical conduct” with her. The successor pastor knew that she had been receiving in—patient care at a psychiatric hospital and that she had tried to commit suicide five days before the meeting. The woman claimed that the successor pastor owed her a duty of care “not to publish any identifying information, including her identity and the nature and extent of [the previous pastor’s] inappropriate sexual behavior with her, to the members of [her church].” A few weeks after their meeting the successor pastor published an open letter to the congregation in which he identified the woman and described some details of the previous pastor’s inappropriate sexual behavior. He did the same in a sermon. The woman insisted that she was opposed to these disclosures, but that the successor pastor had induced her to “consent” to them through his “negligent misrepresentation” that his disclosures were for her benefit and were part of his pastoral care of her. She claimed that his actions amounted to a breach of a fiduciary duty and an invasion of privacy. Further, the woman claimed that the successor pastor falsely suggested to the congregation that she and the previous pastor “were engaged in a voluntary romantic relationship between two consenting, mature adults rather than an abusive relationship between a pastoral care provider and pastoral counselor and a client.” As a result, she claimed that he was liable on the basis of negligent infliction of emotional distress, negligent misrepresentation, defamation, and “depiction in a false light.”

The court noted that all of the successor pastor’s alleged wrongs occurred in sermons and in letters to church members. It conceded any evaluation of these sermons and letters by a court “might entangle a court in religious doctrine.” As a result, it referred the case back to the trial court to determine whether or not the woman’s claims against the successor pastor could be resolved without reference to doctrine.

Application. This case is important for the following reasons: (1) It demonstrates that liability of clergy and churches on the basis of “clergy malpractice” is dead. (2) It suggests that any counseling relationship between a pastor and parishioner is fiduciary in nature, that as a result a pastor owes certain fiduciary duties to the counselee, and that those duties are breached when the pastor initiates a sexual relationship with the counselee. (3) Recognition of pastoral (and church) liability based on a breach of fiduciary duty does not violate the first amendment guaranty of religious freedom. (4) Pastors and denominational leaders who publicly disclose (without consent) the identity of a counselee who engaged in sexual relations with another pastor may be liable on the basis of a number of legal theories, even if the disclosures are made solely to church members. F.G. v. MacDonell, 696 A.2d 697 (N.J. 1997).
[Invasion of Privacy, Clergy Malpractice, Seduction of Counselees and Church Members, Judicial Resolution of Church 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: m67 m86 m29 c0498

Legal Developments

Recent Developments in New Jersey Regarding Employment Practices

A New Jersey court ruled that a church acted properly in dismissing its music director for criminal acts.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey

Church Law and Tax1998-07-01

Employment practices

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

• Key point. Churches generally are not liable for sharing truthful references about a former worker when asked to do so by another church.

• Key point. Churches generally are not liable on the basis of wrongful termination for dismissing an employee because of criminal behavior.

A New Jersey court ruled that a church acted properly in dismissing its music director for criminal acts. The music director entered into a one—year employment contract with a church in 1994. The contract contained the following provision for termination:

The parties involved shall give notice of termination of employment at least thirty days in advance of the termination. The termination time must be completed by the employee or if the employer does not wish the termination to be completed the employer shall fulfill all contractual financial agreements.

After working for the church for a few months, the music director was arrested for possession of illegal anabolic steroids. It was later disclosed that the music director had been taking steroids to assist him with bodybuilding, and that he had previously ordered several shipments of steroids shipped directly to the church to avoid detection. One package recovered by the police contained 290 tablets of methandrostenolone, 240 tablets of oxandrolone, and 9 vials of deca durabolin. A few days later the pastor of the church learned of his music director’s arrest from a newspaper article. The pastor met with the music director that day and urged him to resign. The next day the music director removed all of his personal belongings from his church office. The pastor wrote him a letter that read, in part:

Because of this unfortunate incident I believe it absolutely necessary that you and I meet as soon as possible to discuss a resolution to this matter vis—a—vis your continued employment by St. Anthony’s Church in the position of Music Director. As you recall, during that meeting I solicited your thoughts on how we might resolve the matter. However, you told me that you were unable to offer any resolution. Because I had all day to reflect on the matter, and because of the gravity of the situation caused by you never informing me of the arrest on Church property, as well as your use of the Church’s address to receive these illegal substances, I had arrived at what I considered to be the best solution possible for all involved …. As I told you during that meeting, I think it is essential … because of the serious nature of the matter … that it would be best for you to resign immediately from your position here at St. Anthony’s. At the conclusion of our meeting you indicated acceptance of my proposal and you kindly returned to me your Church keys that evening.

The music director sent the pastor a letter stating that he intended to continue his duties at the church unless he was fired. He also wrote that if he was not fired, he would show up for choir rehearsal the next day. The pastor immediately replied by fax that it was clear that the music director had resigned by virtue of his returning his keys, removing his personal belongings, and not appearing for mass after his resignation. The music director responded by fax that he did not resign and intended to continue unless fired. The pastor sent another fax stating: “Let me make it perfectly clear that you are not to come on Church property, and you are not to cause any disruption with choir or Masses.”

A few days later the music director applied to another church for similar employment, but his application was rejected when the church contacted the previous church and was informed by the pastor of what had happened. The music director sued his former church, alleging breach of contract. He also claimed that the pastor, by informing the other church of the music director’s criminal activities, had wrongfully “interfered with his prospective economic advantage.”

Responding to the reference request

The trial court dismissed the music director’s assertion that the church had wrongfully interfered with a “prospective economic advantage.” It noted that the music director could not show that “there was an intentional, without justification, interference” with his economic advantage. Further, the court pointed out that the pastor had disclosed the information only after it was requested, and the information was of criminal conduct admitted by the music director and covered in the newspaper. Additionally, the pastor was protected by a “qualified privilege” for employment references, meaning that he could not be liable unless his reference contained information that the pastor knew to be false. The music director did not appeal this ruling.

Wrongful termination

The trial court also rejected the music director’s claim that he had been wrongfully terminated by the church. A state appeals court agreed. It noted that there was some uncertainty whether the music director had resigned or been terminated. But even if he had been terminated, the court concluded that the church could not be liable. It based its decision on two grounds. First, it noted that “in every contract there is an implied covenant of good faith and fair dealing.” The music director violated this covenant by his behavior:

Even where, as here, the employee performs the duties contracted for satisfactorily, criminal activity by the employee can justify his discharge for breach of an employment contract …. It is clear that [the music director] intentionally ordered the anabolic steroids for his personal use and had them shipped to St. Anthony’s address. This constituted a breach of the implied conditions of [his] contract of employment. The receipt of anabolic steroids at work indirectly involved St. Anthony’s in the commission of a criminal offense and constituted gross misconduct. The criminal offense while not immediately injurious to St. Anthony’s, eventually resulted in his arrest on church property and a newspaper report naming St. Anthony’s as the [music director’s] employer.

Second, the court concluded that employees have a “duty of good conduct.” It based this duty on the following language from a respected legal treatise:

[An employee] is subject to a duty not to conduct himself with such impropriety that he brings disrepute upon the [employer] or upon the business in which he is engaged …. The nature of the business and the position of the agent determine what reputation the agent has agreed to maintain and what conduct can be expected from him …. [A]lthough the employer has no control over the conduct of such persons when they are not engaged in his work, he has such interest in the general integrity of his business household that it may be a breach of duty for one of them to acquire a deserved reputation for loose living, or to commit a serious crime. Restatement (Second) of Agency, ⊥ 380 (and comment).

The court concluded that “when the duty of good conduct is violated by an employee, the employer has good cause to terminate a contract and the termination will not support a cause of action for breach of contract.” It continued:

By virtue of his arrest [the music director] brought negative publicity to St. Anthony’s. Moreover, steroid use, especially through intravenous injection, carries various health and behavioral risks to others. Injecting steroids creates an increased risk of contracting any number of infectious diseases. Further, steroids have been known to cause “rages” where the slightest provocation “can cause an exaggerated, violent and often uncontrolled response.” Id. at 451. Plaintiff served in a position where he would come into contact with many members of the parish. St. Anthony’s could not have been expected to tolerate the risk that plaintiff might contract a communicable disease or attack a member of the parish. As a result [the church] had good cause to terminate the employment contract by virtue of [the music director’s] breach of the implied covenant of good faith and fair dealing and because of the risks created by his illicit steroid use.

30 day notice provision

The music director noted that the contract (quoted above) required the church to provide him with 30 days notice of termination, and that if it did not, then it had to pay him for an additional 30 days. The court disagreed that this provision gave the music director a right to 30 days additional compensation: “We are convinced that [the music director] having breached the employment contract, and having been rightfully discharged for cause, should not be allowed to recover termination pay under the termination clause of the breached contract. This is particularly so where it would have been so strikingly improvident for the pastor to have permitted [him] to continue for the thirty day period referred to in the termination clause.”

Application. This case is important for two reasons:

• It is one of the few cases to address the liability of churches for providing “negative” references on former workers. The trial court concluded that the church was not liable for the pastor’s disclosure of the music director’s criminal activities to the other church-even though it resulted in the rejection of his application. This decision was based on the following considerations: (1) the reference had been requested by the other church; (2) the pastor disclosed criminal behavior that had been acknowledged by the music director; (3) the information disclosed by the pastor was published in the newspaper; and (4) the pastor was protected by a “qualified privilege for employment references.” The “qualified privilege for employment references” refers to the fact that some courts have said that employers cannot be liable for employment references unless they act maliciously (meaning that they share information they know to be false, or with a reckless disregard as to its truth or falsity).

• The court recognized that employees have a “duty of good conduct.” Churches in any state that recognizes this principle will have significant legal protection when they dismiss an employee for misconduct. McGarry v. Saint Anthony of Padua Roman Catholic Church, 704 A.2d 1353 (N.J. Super. 1998).
[Termination of Employees]

Legal Developments

Recent Developments in New Jersey Regarding Zoning

A New Jersey court ruled that a city zoning board acted properly in allowing a church to construct a sanctuary and preschool on an undeveloped tract, despite the protests of neighbors.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey

Church Law and Tax1998-03-01

Zoning

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

• Key point. A church can establish a child care facility on its property even if such a use is not specifically permitted under local zoning law, so long as it is an “accessory use” of the church’s property.

A New Jersey court ruled that a city zoning board acted properly in allowing a church to construct a sanctuary and preschool on an undeveloped tract, despite the protests of neighbors. A Seventh Day Adventist church purchased a 10—acre tract of land in a “low density residential” zone. Churches are a permitted use in this zone. The church applied to the local zoning board for site plan approval to construct a 15,000 square—foot church on the site. The proposed facility included a religious sanctuary, fellowship hall, offices, a library, and a preschool. During the board hearing, much of the testimony focused on whether the increased traffic generated by the proposed church facilities would cause a traffic hazard in the area on Saturday mornings and afternoons when the church’s religious services are conducted, and on weekday rush hours when children would be dropped off and picked up from the preschool. The board considered the church’s traffic consultant’s testimony that the entranceway would present a safe and efficient means of traffic flow to and from the property. It also consulted with the city’s own planning officials. After additional studies, the board approved the church’s site plan application. Neighboring landowners challenged the board’s approval in court on the following grounds: (1) the preschool component of the site plan application “constituted a variant use” requiring separate site plan approval; and (2) the site plan approval for the church was arbitrary, capricious, and unreasonable since the board failed to consider traffic congestion on abutting streets. A state appeals court rejected both arguments.

A church preschool is a permitted “accessory use”

The neighboring landowners insisted that a preschool is not a permitted use of property in a low density residential zone, and that it is not an “accessory use” to the principal use of the property as a church. The court agreed that a preschool is not a permitted use of property in a low density residential zone. It also conceded that the zoning statute permits only 12 kinds of “accessory uses” in such zones, and this list does not include preschools. However, the court concluded that these facts did not prevent the church from operating a preschool on its property. It referred to the “settled rule” that “an accessory use need not derive from the express terms of the ordinance; an accessory use is implied as a matter of law as a right which accompanies the principal use.” The court continued:

The term accessory uses as used by the courts may be predicated upon a specific provision relating to accessory uses found in the ordinance, or may be based upon the concept that whether or not the ordinance provides for accessory uses, the litigated use is one so customarily incidental to the principal use of the zoning lot that it is, as a matter of law, a part of the permitted use …. In our view, it is not consistent with “the letter and underlying philosophy” [of the zoning] ordinance to conclude that its drafters intended to abrogate this settled zoning principle simply because it enumerated specific “permitted” accessory uses. We note, for example, that public playgrounds and public and parochial schools and colleges are permitted in the [low density residential] zone. We doubt that the [city] intended that lighting for the playgrounds or athletic fields for the schools are prohibited because lighting and athletic fields are not among the twelve specified items enumerated as permitted accessory uses in the zone.

The court further noted that the zoning ordinance provides a general definition of an “accessory use,” as one which is (1) “subordinate to” and serves a principal use; (2) located on the same lot as the principal use; and (3) “customarily incidental” to the principal use. This definition, noted the court, “strongly suggests that the [ordinance] intended to extend permitted accessory uses beyond those enumerated in the [low density residential] zone, provided that the proposed use satisfies the three—prong test under the definition. To conclude otherwise would render the general definition of accessory use superfluous.” The court concluded that the listing of 12 permitted accessory uses in the zoning ordinance “were intended only to provide examples of valid accessory uses for ease of administration, they were not intended to exclude accessory uses, implied as a matter of law, as a right which accompanies the principal use.”

The court then addressed the question of whether a church—operated preschool was a permitted accessory use. The court observed that the church’s proposed day care center “clearly satisfied” two of the three prongs of the accessory use test under the ordinance. It would be located on the same lot as the church. It would also be “subordinate” to the church “in that it will utilize less than twenty percent (3,000 square feet) of the 15,000 square—foot proposed church structure.” The question was whether the day care center was “customarily incidental” to the church’s principal use as a place of worship. The court observed: “Churches today are rapidly expanding their activities and ministries, particularly in the areas of education and social services. Thus, church buildings, once used solely for weekly worship, have become the center of diverse parochial and community activities conducted throughout the entire week, day and night.” It then quoted with approval from a decision by another court in an almost identical case finding that a child care center was an accessory use of a church:

The day care program is subordinate to the principal use of the church. It was created by the governing body of the church and funded by the church. The governing body determined the curriculum for the program and hired a director. The record shows that the church operates the day care to attract new members to the church and accomplish its mission of preaching the gospel and serving the community. Similarly, the day care is subordinate in area to the principal building and use of the church. The day care service contributes to the comfort and convenience of the church parishioners by providing child care for them. The day care is located on the same lot as the church and it is located in the same zoning district. City of Richmond Heights v. Richmond Heights Presbyterian Church, 764 S.W.2d 647 (Mo.1989).

The court referred to data showing that a significant percentage of preschool children are enrolled in child care programs, and that “church—housed programs probably constitute the largest group of day care providers in the nation.” The court concluded: “What is clear from this modern trend is that a church’s ministry is not confined to prayer or dissemination of its religious beliefs. Religious institutions consider day care centers as part of their spiritual mission, not necessarily in advancing their religious teachings, but by providing a valuable community service. Grounded on this broad—based commitment, we are persuaded that a church—operated day care center is … an incidental use of church facilities.”

Approval of the church’s site plan

The court then addressed the neighboring landowners’ claim that the approval of the church’s site plan was arbitrary, capricious and unreasonable because the board failed to consider potential traffic problems which may be caused by vehicles using the church facilities. The court rejected this claim on the basis of the board’s extensive consideration of the traffic issue which involved the testimony of the church’s traffic consultant and the city’s own plan.

Application. This case will be helpful to any church that is considering the creation of a preschool or child care facility. One of the first questions that must be addressed by church leaders before embarking upon such a program is whether or not it will be a permitted use of church property under the local zoning ordinance. In many cases, church leaders will discover that the ordinance does not specifically permit child care centers on their property. This case illustrates that such an omission does not prevent the operation of a child care facility. Such a use will be permitted if it is an “accessory use” of the church’s property. This case will strongly support such a conclusion.

There is one other aspect of this case that deserves mention. The court cautioned that the task of defining a church’s accessory uses has a constitutional dimension “regarding the degree to which the first amendment requires accommodation of various activities on church property.” It referred to another case in which a court found that a homeless shelter was a permitted accessory use of a church. St. John’s Evangelical Lutheran Church v. City of Hoboken, 479 A.2d 935 (N.J. Super..1983). The court in that case permitted the shelter on the basis of the first amendment’s guaranty of religious freedom, holding that the shelter was necessary to the church because it fulfilled the church’s religious obligations. The court referred to another case in which a court ruled that the constitutional guaranty of religious freedom extends to a day care center for children because such a use falls “well within the ambit of religious activity.” Unitarian Universalist Church v. Shorten, 314 N.Y.S.2d 66 (Sup.Ct.1970). Such cases provide a powerful inducement to city planners in evaluating a church’s request to operate a child care facility. Shim v. Washington Township Planning Board, 689 A.2d 804 (N.J. Super. 1997). [Zoning Law for Churches, Zoning Law and Churches]

Legal Developments

Volunteers’ IRAs May Not Be Seized to Satisfy a Judgment

Not all of a volunteer’s personal assets may be available to pay for damages.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey

Church Law and Tax 1997-05-01

Volunteer Workers-Personal Liability

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

• Key point. Volunteer workers are personally liable for acts of sexual molestation they commit in the course of their duties. However, their IRAs and pension funds may not be accessible to satisfy a judgment or verdict.

A New Jersey court ruled that the IRA account of a volunteer worker who molested a child could not be seized to satisfy a jury verdict against him. The volunteer served as a swimming instructor for a public elementary school. Following a swimming lesson an 8-year-old girl complained that the instructor had touched her in the vaginal area. As a result of this incident the instructor was convicted of child molestation and was sued in a civil lawsuit by the girl’s parents. A jury returned a verdict of $325,000. The family’s attorney attempted to seize the volunteer’s IRA account in an effort to satisfy the verdict. A court ruled that the IRA account could not be used to satisfy the verdict. It based its ruling on a state law that makes “trust funds” exempt from the reach of creditors. The court concluded that IRA accounts are a form of trust fund.

Application. This case illustrates the personal hardship that volunteers may suffer if they injure persons in the course of their duties. A church’s insurance policy may not cover verdicts or judgments finding the volunteer liable for monetary damages, meaning that the volunteer will be personally responsible to pay the damages. As this case illustrates, not all of a volunteer’s personal assets may be available to pay for such damages. In some cases, IRA accounts will not be available. C.P. v. Piscataway Township, 681 A.2d 105 (N.J. Super. 1996 ). [Church Officers, Directors, and Trustees, Church Members]

© 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 m79 c0397

Legal Developments

Charitable Immunity Law

In some states, charities are immune from lawsuits by beneficiaries.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: Personal Injuries on Church Property or During Church Activities

Church Law and Tax 1997-05-01

Personal Injuries-on Church Property or During Church Activities

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

• Key point. Some states protect charities from being sued by the beneficiaries of their services who are injured or damaged as a result of those services. The fact that a charity in such a state carries liability insurance will not necessarily affect its immunity from liability.

A New Jersey court dismissed a lawsuit brought against a church by a person injured on church premises on the basis of a state charitable immunity law that immunizes charities from liability for injuries sustained by “beneficiaries”. A Greek Orthodox congregation conducted an annual festival designed to introduce the community to the Greek Orthodox faith and the Hellenic culture. A resident of the community, who was not a member of the church, attended the festival and was seriously injured when he slipped on a sidewalk as he was leaving. He sued the church, claiming that the church’s negligence in maintaining and supervising its property caused his injuries. The church asked the court to dismiss the case on the basis of a New Jersey “charitable immunity” law specifying that “[n]o nonprofit corporation … organized exclusively for religious, charitable, educational or hospital purposes shall … be liable to respond in damages to any person who shall suffer damages from the negligence of any agent or servant of such corporation … where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation ….” The trial court dismissed the case on the ground that the patron was a “beneficiary” of the church and accordingly the church could not be liable for his injuries. The patron appealed, claiming that the festival was a commercial, fund-raising event that was not entitled to the protection of the charitable immunity law. An appeals court disagreed. In language that will be useful to other churches seeking to demonstrate the religious purpose of related activities, the court quoted from a 1939 decision:

Although a church’s main purpose may be to provide a place of worship and spiritual guidance, [its] function is not so narrowly confined. It is not limited to sectarian teaching and worship. In the modern view, exercises designed to aid in the advancement of the spiritual, moral, ethical and cultural life of the community in general are deemed within the purview of the religious society. A social center is now commonly regarded as a proper adjunct of the local church-conducive to the public good, as well as advantageous to the congregation. Bianchi v. South Park Presbyterian Church, 8 A.2d 567 (N.J. 1939).

The court concluded that the church’s annual festival furthered its religious purposes: “Without doubt, the church here was engaged in the performance of the charitable objectives it was organized to advance, inasmuch as it was attempting to demonstrate to the community the rich traditions of the Greek Orthodox Church and the importance of the Hellenic culture in the orthodox religion as expressed through Greek food and dance.” The fact that the patron paid for a dinner at the festival did not change his status as a beneficiary of the church’s religious mission. Further, the fact that the patron may not have felt that he was a beneficiary of the church’s religious mission is not relevant, since the test is whether or not the church was engaged in the performance of its religious or charitable purposes at the time of the injury.

Application. This case certainly is significant to churches in New Jersey, or in those other jurisdictions that recognize a similar form of charitable immunity. The court’s broad definition of charitable immunity will be helpful to churches in such states in avoiding liability for unintended injuries. But churches in all states will benefit from the court’s broad definition of “religious purposes.” The court insisted that such purposes cannot be relegated to religious worship, but must also encompass many other forms of religious expression. Such a definition will be useful to churches that operate programs or ministries in addition to conventional worship services. To illustrate, if the “religious” nature of such a program or ministry is challenged by governmental agencies in the context of zoning, property taxes, or some other law or regulation, a church can refer to cases such as this in support of a broad definition of religion. Loder v. The Church, 685 A.2d 20 (N.J. Super. 1996).[Negligence as a Basis for Liability]

Legal Developments

Teacher Sues School for Age and Sex Discrimination

In many cases, non-ministerial employees may sue churches.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey

Church Law and Tax 1997-05-01

Employment Practices

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

• Key point. The first amendment prohibits the civil courts from applying federal or state discrimination laws to the clergy-church relationship. However, most courts have ruled that this prohibition does not extend to church employees who are not ministers or who perform no ministerial functions.

• A New Jersey court ruled that a lay teacher could sue a Catholic high school for age and sex discrimination. The teacher had been employed from 1983 to June of 1991 to teach English and history. In 1991 she was informed that her position was being eliminated due to “budget problems”. The teacher sued the school, claiming that the real reason she was being terminated was because of her gender and age (in violation of federal nondiscrimination law). As proof, she alleged that the school later replaced her with a younger, male teacher. The school defended itself by insisting that all teaching positions at a Catholic high school are “religious” in nature, and that the first amendment prohibits the civil courts from applying civil rights laws to such positions. In support of its position, the school noted that the contract signed by its teachers stated that all teachers are to “exemplify Christian principles and ideals” in the performance of their duties, and are to open each class with prayer. Further, the school asserted that “parochial school teachers, no matter what the subject matter being taught, are performing a ministerial function … inculcating faith, values, and moral precepts into the students” and that “secular subjects in a parochial school are important vehicles for the propagation of the faith.” The court acknowledged that civil rights laws cannot be applied to ministers or lay employees performing ministerial functions for a church or religious school. It quoted the prevailing test as follows: “[I]f the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, the first amendment precludes judicial resolution of the dispute.” However, the court concluded that the lay teacher in this case did not satisfy this test. It observed:

[T]he fact that faculty members serve as “exemplars of practicing Christians” does not automatically make their duties ministerial …. A teacher of secular subjects need not be considered a religious leader. Here … enforcing the prohibition against discrimination would have no impact on religious belief, doctrine, or practice …. Thus, since the underlying dispute does not turn on doctrine or polity, the court should not abdicate its duty to enforce secular rights.

Application. This case illustrates an important point-while most courts have ruled that civil rights laws do not apply to ministers (or lay employees performing ministerial functions), many courts have been willing to apply such laws to lay employees who do not perform ministerial functions. The court in this case quoted the test most commonly used by the courts. This test asks whether or not an employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship. The court refused to extend this test to a lay teacher (of English and history) at a Catholic school. Gallo v. Salesian Society, Inc., 676 A.2d 580 (N.J. Super. 1996). [Labor Laws, Terminat ion of Employees, The Civil Rights Act of 1964, Judicial Resolution of Church Disputes]

Legal Developments

Woman Sues Church Over Affair with Pastor

Court allowed lawsuit on the basis of clergy malpractice.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: Clergy Malpractice, Counseling

Church Law and Tax 1997-03-01

Malpractice

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

• Key point. Some courts have allowed pastors to be sued on the basis of “clergy malpractice” for engaging in sexual relations with a counselee in the course of a counseling relationship.

• Key point. Churches may be sued for invasion of privacy or defamation if they disclose to church members that a pastor has engaged in sexual relations with a counselee in the course of a counseling relationship.

A New Jersey court allowed a woman to sue her church for “clergy malpractice” as a result of a sexual relationship that was initiated by her pastor. The woman’s lawsuit alleged that she had sought counseling from a pastor of her church, and that the pastor became aware of her emotional vulnerabilities and exploited those vulnerabilities to induce her to engage in sexual acts with him. The woman filed a complaint with a “standing committee on clergy ethics” of her denomination, and the committee later determined that the minister had “violated his pastoral relationship” with the victim by engaging in inappropriate sexual behavior toward her.” The committee “sanctioned” the minister. The woman then sued her church, claiming that the pastor’s actions amounted to “clergy malpractice.” A trial court dismissed the case on the ground that clergy malpractice is not a recognized theory of liability because it would unduly “entangle” the courts with religion in violation of the first amendment. The woman appealed, and a state appeals court ruled that the woman could sue the church for clergy malpractice.

The court acknowledged that a number of courts have rejected liability based on clergy malpractice. The most notable example was the California Supreme Court’s decision in the Nally case in 1988 (fully addressed in a prior issue of this newsletter). The Nally case involved a lawsuit by parents seeking damages for the suicide of their son. The parents sued their son’s church and four pastors who had counseled him. The parents claimed that the church and four pastors had failed in their duty to recognize that their son was suicidal and to refer him to psychiatric care. The court held that the four pastors, as “nontherapist counselors,” had no duty to refer a counselee to psychiatric care. The court refused to extend the duty to prevent suicide, previously imposed on psychiatrists and hospitals caring for a suicidal patient, to non—licensed nontherapist counselors who provide counseling on “spiritual matters.” The court observed that “it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity.” The New Jersey court concluded that the Nally case was not relevant for three reasons: “First, constitutional considerations played a minimal role in the court’s analysis. Second, the alleged breach of duty was closely connected with the content of the counseling and advice provided by the counselors. Lastly, Nally did not involve exploitation of the counselee for the counselors’ sexual gratification.”

The court observed that “malpractice” is nothing more than the negligent performance of a professional service and “a deviation from the standards of performance applicable to the professional service in question.” The court expressed concern over potential first amendment violations when civil courts apply the concept of malpractice to members of the clergy. However, it was unwilling to conclude (as many other courts have done) that the first amendment bars recognition of civil liability for clergy malpractice in all cases. The court observed:

Regarding the risk of undue entanglement in ecclesiastical affairs arising out of a case of clergy malpractice, we share the concerns of those courts that have addressed the issue. We are, however, persuaded that those concerns are overstated in circumstances, such as the present case, involving a cleric’s sexual misconduct …. We conclude that one test to determine whether a cause of action against a cleric is cognizable in civil courts is whether adjudication of the claim requires an evaluation of dogma or ritual, or other matters of purely ecclesiastical concern. In the present case, it is unlikely that [the church] will assert that sex with a counselee by a pastoral counselor is sanctioned by or somehow involves tenets of the … church, or would otherwise create an entanglement with religious beliefs or rituals of first amendment concern.

Moreover, there is a bright line between counseling culminating in a sexual relationship with a counselee and other types of harms allegedly resulting from a failed counseling relationship. Thus, we do not share the concern … that to recognize a cause of action for the sexual exploitation of a child would place civil courts “on the slippery slope.”

The court concluded that “[w]e perceive no impenetrable barrier … to establishing a standard of care applicable to cleric—counselors in the context of an allegation that the counselor used his position to sexually exploit the counselee.” The court cautioned that it was now up the woman to prove “an applicable standard of care, show that [the pastor] breached this standard, and prove the damages flowing from that breach.”

The court then turned its attention to another claim made by the woman-the legal liability of another pastor at the same church who informed the congregation of the sexual relationship. The woman sued this pastor as well, claiming that by informing the congregation the pastor had breached a fiduciary duty, invaded her privacy, made negligent misrepresentations, committed defamation, and placed the woman in a “false light.” The appeals court ruled that the woman could pursue this claim as well.

This case is important for a number of reasons. First, it demonstrates the liability of clergy and churches on the basis of “clergy malpractice” is not dead. It is still recognized as a viable claim by some courts in the context of inappropriate sexual behavior. Second, it reaffirms the view of nearly all courts that clergy cannot be sued on account of the content of their counseling. It is only their actions that may result in liability. Third, the court announced a new test for determining whether or not a lawsuit against a minister can be resolved by the courts-would resolution of the lawsuit require the court to engage in “an evaluation of dogma or ritual or other matters of purely ecclesiastical concern”? Fourth, the court allowed the woman to sue another pastor who informed the congregation of the affair. This illustrates the risks associated with communicating such information, even to members. The woman asserted that it was inappropriate for her name to have been mentioned, since this suggested that she was equally at fault for a relationship that she insisted was due entirely to the pastor’s exploitation of her emotional vulnerability. F.G. v. MacDonell, 677 A.2d 258 (N.J. Super. 1996). [Invasion of Privacy, Clergy Malpractice, Seduction of Counselees and Church Members, Judicial Resolution of Church Disputes]

Legal Developments

Sex Discrimination in Schools

Court rules that nun cannot sue school and archdiocese.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: Freedom of Religion

Church Law and Tax 1997-01-01

Employment Practices

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

• Key point. The civil courts ordinarily will not interfere with the decisions of religious organizations to dismiss clergy or other church employees who perform ministerial functions.

A New Jersey court ruled that a Catholic school and archdiocese could not be sued on the basis of sex discrimination by a lay principal who was replaced by a nun. The lay principal had been employed by Catholic parochial schools for many years. The archdiocese closed the principal’s school during a reorganization, and opened a new school. The principal was not selected to be principal of the new school. Rather, the archdiocese selected a nun on the ground that her status was important in carrying out the religious mission of the school. The former principal sued the archdiocese, claiming sex discrimination in violation of federal law. A court dismissed the lawsuit, noting that a church has a constitutionally protected right to make employment decisions regarding “ministers” free from civil court review. The court concluded that the principal’s role at the new school was “ministerial”: “The principal is in charge of students’ religious education; she supervises the teachers, plays a significant role in curriculum development, is liaison between the school and the religious community, and is the guiding force behind the school’s spiritual mission. Her functions are more than merely financial or logistic.” The court quoted with approval from another New Jersey decision finding that an “employee’s duties are ministerial when they consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.” Welter v. Seton Hall University, 608 A.2d 206 (N.J. 1992). The court concluded that “it is well settled … that the free exercise [of religion] clause demands that courts abstain from deciding ministerial church employees’ claims of discrimination,” and that “the position of a principal in a parochial school is a ministerial one and that selecting a nun to be the principal of the new school in this case was an ecclesiastical decision, thus necessitating judicial abstention.” Sabatino v. Saint Aloysius Parish, 672 A.2d 217 (N.J. Super. 1996). [ Title VII of The Civil Rights Act of 1964]

Legal Developments

Letters to Ministers and the Clergy-Penitent Privilege

When is written communication protected?

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: Confidential and Privileged Communications

Church Law and Tax 1994-09-01 Recent Developments

Confidential and Privileged Communications

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

• Key point: In some cases, a letter written to a minister may be covered by the “clergy-penitent privilege” and accordingly be immune from involuntary disclosure in a court of law. However, this may not be the case if the letter is left open in plain view in the author’s home, since under these circumstances the communication may not be “confidential”.

• A New Jersey court ruled that a letter written by a murderer to his pastor, and left in plain view in his home after he killed 5 members of his family, was not protected from disclosure in court by the clergy-penitent privilege since it was not considered “confidential”. The facts of this case are tragic. One morning after his three children had gone to school, a man (the “defendant”) shot and killed his wife while she was sitting at the breakfast table. He then proceeded to the third floor of his home where his mother lived and shot and killed her. He then returned to the first floor, dragged his wife’s body into the living room, and ate lunch. After lunch, he went to the bank to cash some checks, and then placed a stop order on his mail at the post office. Later in the afternoon, defendant shot and killed his three children when they returned home. The defendant then stopped all milk and newspaper deliveries and made arrangements for the children’s absences from school and other activities, as well as his own absence from work. He then wrote letters to several relatives and a long letter to his pastor in order “to tell somebody about what had occurred.” Defendant also composed some other notes with instructions concerning funeral arrangements for his family members. He then ate supper and went to bed. Early the next day, he packed some of his possessions and shipped them by railway express. He drove to Kennedy Airport and abandoned his car there. He then went to New York City by public transportation and commenced a circuitous trip ending in Denver, where he obtained a new social security card under a fictitious name. He took a job as a cook and “kept a low profile life,” changing his appearance from time to time and avoiding any trouble. He “made sure not even to get a parking ticket,” and avoided situations such as passport applications which, he believed, required fingerprinting. One month after the killings, the police were summoned to the house by concerned friends. After consulting with these friends and some neighbors who expressed particular concern for the defendant’s mother, the police and two of the friends entered the house through the only unlocked window they found, on the side porch. The bodies were discovered. Shortly thereafter, the police officer in charge of the investigation arrived. He and other police officers assisting him read a note which they found on top of a desk in the study. The note was addressed “to the finder” and signed by the defendant. It contained a request that the authorities be contacted. Another note on the front of a locked desk drawer was labelled “guns and ammo.” A police officer pried the drawer open and found two firearms and some assorted ammunition. Notes were also attached to the two file cabinets. One attached to the middle drawer of the smaller cabinet was addressed to the defendant’s pastor. The note on the larger filing cabinet contained the name of defendant’s employer. Inside the smaller file cabinet the police found an unsealed file folder that also was addressed to the defendant’s pastor. The folder contained a five-page letter to the pastor in which the defendant confessed to killing the members of his family. The letter was not in a separate envelope. The folder also contained photocopied stock certificates, a checkbook and an interest computation slip. The police also found a letter in the top drawer of one of the file cabinets which was addressed to the defendant’s employer. Despite a lengthy and intensive investigation, the police could not locate the defendant. Then, some 18 years later, the crime was featured on a network television broadcast. The defendant was identified as a result of this broadcast and was arrested a few days later. He was tried and convicted for murder and sentenced to 5 consecutive life terms. He appealed his conviction on the ground that it was based in part on the letter to his pastor in which he confessed to the murders. The defendant insisted that this letter was protected from disclosure in court by the clergy-penitent privilege. The clergy-penitent privilege under New Jersey law provides:

[A] clergyman, minister or other person or practitioner authorized to perform similar functions, or any religion shall not be allowed or compelled to disclose a confession or other confidential communication made to him in his professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which he belongs or of the religion which he professes, nor shall he be compelled to disclose the confidential relations and communications between and among him and individuals, couples, families or groups with respect to the exercise of his professional counseling role.

A state appeals court ruled that the clergy-penitent privilege was not violated since it did not apply to the facts of this case. It observed: “Defendant’s invocation of the clergy-communicant (priest-penitent) privilege is insupportable. It is clear both from the very terms of [New Jersey law] and the history of the privilege that it protects confidential communications only. The letter to [the pastor], left for anyone to find and read, cannot be considered to have been made with a reasonable expectation of confidentiality.” State v. List, 636 A.2d 1054 (N.J. Super. A.D. 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: m33 c0594

Legal Developments

Liability Insurance and Immunity from Lawsuits

Insurance does not necessarily affect a charity’s immunity from a lawsuit brought by a beneficiary.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey

Church Law and Tax 1994-03-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Key point: Some states protect charities from being sued by the beneficiaries of their services who are injured or damaged as a result of those services. The fact that a charity in such a state carries liability insurance will not necessarily affect its immunity from liability.

• A New Jersey court ruled that a state charitable immunity law that immunizes charities from liability for injuries sustained by “beneficiaries” was not affected by the fact that a charity purchases liability insurance. New Jersey law specifies that “[n]o nonprofit corporation … organized exclusively for religious, charitable, educational or hospital purposes shall … be liable to respond in damages to any person who shall suffer damages from the negligence of any agent or servant of such corporation … where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation ….” A drug rehabilitation center was sued by a patient who was injured on the center’s premises. The state charitable immunity law clearly prevented the patient (who was a beneficiary of the charity’s services) to sue. However, the patient argued that he should be allowed to sue the charity since it carried liability insurance and its assets would not be depleted to the extent that any court judgment did not exceed the insurance policy limits. The court disagreed. It began by describing the purpose of the charitable immunity law: “[If a charity’s assets] were used to satisfy the damages suffered by recipients of the charity through the negligence of the agents or servants of the charity, the [assets] would be diverted to purposes not within the charitable intention of the founders and patrons of the charity, and thus the benevolent object would be subverted. The common good and welfare is deemed the better served by the preservation of the [charity’s assets] than by [their] diversion to the making of compensation for injury to beneficiaries attending the operation of the charity.” The court concluded that this purpose was not affected by the fact that a charity has obtained liability insurance: “Insurance premiums are based on a number of variables, one of which is the nature of the risk to be insured. If a nonprofit charitable organization seeks to purchase insurance, the premiums charged to that organization should be lower than other organizations whose purposes are not charitable in nature due to the immunity status afforded by the Charitable Immunity Act. However, if courts were to hod that the Charitable Immunity Act was inapplicable to insured charitable organizations, then the premiums charged to such charitable organizations would ordinarily be higher due to this greater risk of exposure to liability for negligence claims. Therefore, the court rejects [the patient’s] argument because the eventual costs of paying these claims would fall on the charities themselves in the form of higher insurance premiums, thereby depleting the resources of such organizations which are available for the pursuit of their charitable purposes.” This case will be relevant to churches and other religious organizations in New Jersey, as well as those other states that have a similar charitable immunity provision. Pelaez v. Rugby Laboratories, Inc., 624 A.2d 1053 (N.J. Super. L. 1993).

Legal Developments

Seminary Professor Cannot Take Tenure Dispute to Court

Professor “played a ministerial role” at college, court said.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey

Alicea v. New Brunswick Theological Seminary, 608 A.2d 218 (N.J. 1992)

Key point: The civil courts ordinarily will not interfere with the decisions of religious organizations to dismiss clergy performing ministerial functions, unless the organization has consented to civil court review in an employment contract or handbook.

In a case decided the same day as the Seton Hall case, the New Jersey Supreme Court ruled that it had no authority to review the decision of a Reformed seminary to deny a professor tenure.

The professor was an ordained minister who taught courses on church history and urban ministry. The court refused to review the professor's claim that he had improperly been denied tenure. It emphasized that (unlike the nuns involved in the Seton Hall case) the professor in this case "clearly played a ministerial role" and "played an instrumental role in training ministers" who would be the spokespersons of the Reformed Church. The court explained:

[B]oth this court and the United States Supreme Court have recognized that "there are many cases in which court intervention is simply inappropriate because judicial scrutiny cannot help but violate the first amendment" [guaranty of religious freedom] …. Some cases, because of the doctrinal nature of the dispositive issue, should not be in our courts …. When state action would impose restrictions on a religious institution's decisions regarding employees who perform ministerial functions under the employment relationship at issue, courts may not interfere in the employment relationship unless the agreement between the parties indicates that they have waived their free-exercise rights and unless the incidents of litigation—depositions, subpoenas, document discovery and the like—would not unconstitutionally disrupt the administration of the religious institution.

The court declined the professor's request to send the dispute to a faculty-student committee for resolution (this was an option mentioned in the seminary's faculty manual). It observed: "We do not intend to foreclose a holder of ecclesiastical office, including a minister, from enforcing contractual provisions that expressly impose mandatory safeguards amenable to constitutional application of neutral principles la law. However, we cannot enforce contractual provisions, like those in [the faculty manual] that are both vague and clearly optional."

Legal Developments

Priest’s Lawsuit Against Diocese

Court rules that it cannot resolve the case.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey

Church Law and Tax 1992-03-01 Recent Developments

Clergy – Removal

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

• A New Jersey appeals court ruled that it had no authority to resolve a lawsuit brought by a priest against his diocese. A Catholic priest was arrested and charged with several sexual offenses involving a minor. Two days later, he was suspended from all priestly functions by his bishop. The priest later sued his bishop and diocese, claiming that the bishop had breached a promise to pay for all legal fees incurred in his defense. He sought $2.5 million in damages. A state appeals court ruled that it had no authority to resolve such a dispute. It acknowledged that “temporal matters of a church affecting civil, contract or property rights may be resolved in civil courts. Thus, secular courts may decide civil disputes between a religious body and its members or its clergy if those disputes involve purely secular issues and can be resolved without entanglement with matters of faith, discipline or doctrine.” The priest argued that this was such a case, since the court need only apply neutral principles of contract law to determine whether or not the bishop made a commitment (to pay legal fees) that he did not honor. The court rejected the priest’s assessment of the case, noting that it “ignores the relationship between the parties.” It observed:

[The priest] relies both on [the bishop’s] verbal promise of support and the church’s preexisting similar duty. In order to reach the contention that defendants have not honored these obligations, a civil court would necessarily inquire into the nature (religious or secular) of these alleged obligations. This inquiry would, of course, involve a searching an detailed exploration of the doctrine and practice of the Roman Catholic Church in order to determine the existence of such obligations. Civil courts are enjoined from such inquiry by the first amendment …. Accordingly, a determination of [the priest’s] claims would involve more than simply the secular questions of whether such promises were made and subsequently dishonored.

Further, whether or not the bishop had the authority to bind the diocese by his alleged promises is “an ecclesiastical matter, requiring inquiry into the structure of the Roman Catholic Church regarding the relationship between a bishop and his diocese. An agency relationship between a bishop and his diocese may only be determined by reference to church law.”

In summary, the priest’s claims “are replete with ecclesiastical issues, the resolution of which require impermissible court inquiry into the doctrine and practices of the Roman Catholic Church. These entanglements between religious and secular issues compel this court to refrain from exercising jurisdiction over this matter.” What is the significance of this ruling? Consider the following two points. First, it illustrates the reluctance of the civil courts to become involved in any dispute between clergy and their church or ecclesiastical superiors. While the courts often say that they will resolve purely “secular” church disputes involving application of neutral legal principles, this case demonstrates that “purely secular disputes” are rare in clergy-church controversies. Disciplined or dismissed clergy cannot invoke the assistance of the civil courts merely be asserting “secular” grounds for relief. Second, and just as importantly, the court concluded that the priest’s allegations of an agency relationship between the bishop and diocese were an ecclesiastical matter beyond the ability of the civil courts to resolve. This is a significant conclusion that will be useful to denominational offices that are sued as a result of the activities of affiliated churches and clergy. This case suggests that any allegation of liability based on a “agency relationship” between a denominational office and an affiliated church or minister is an ecclesiastical matter that can be resolved only “by reference to church law.” Accordingly, the civil courts are without legal authority to resolve such claims. McElroy v. Guilfoyle, 589 A.2d 1082 (N.J. Super. 1990).

Zoning Law and the Civil Rights Act

Church sues for damages due to a city’s unconstitutional actions.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: Church Property, Zoning

Church Law and Tax 1992-03-01 Recent Developments

Zoning

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

• New Jersey state appeals court confirmed that a church is entitled to monetary damages resulting from a city’s denial of its constitutional right to religious freedom, but it refused to award any damages to a church whose rights were violated by a city’s actions. A city arbitrarily denied a church’s request for permission to construct a radio tower on its property, and the church sued the city for monetary damages under the federal Civil Rights Act which authorizes persons to collect money damages from those who violate their constitutional rights. The court concluded that the church was entitled “to recover such damages as it may prove.” The church produced evidence of damages amounting to nearly $800,000, comprised mostly of the projected revenues it lost by not being able to broadcast programs for some four years during the lawsuit. The state appeals court concluded that the proper measure of damages was the lost property value resulting from the city’s denial of the church’s constitutional rights. Since the value of the church’s property was in no way diminished by the city’s denial of the tower permit, the court refused to award the church any monetary damages. In summary, the court acknowledged that churches can sue for monetary damages resulting from a city’s denial of their constitutional rights. However, in the context of zoning law, the proper measure of a church’s damages for a city’s unconstitutional actions is loss in property value. Burlington Assembly of God Church v. Zoning Board, 588 A.2d 1297 (N.J. Super. 1990).

Denial of Tenure at Seminaries

Can a court resolve a professor’s claim that he was improperly denied tenure?

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: Employment Practices, Schools

Church Law and Tax1991-07-01Recent Developments

Schools

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

• Can a civil court resolve a seminary professor’s claim that he was improperly denied tenure? No, said a New Jersey appeals court. The professor had been hired to teach at New Brunswick Theological Seminary, an educational institution affiliated with the Reformed Church in America (the “Church”). The seminary was founded in 1784. Its purpose remains the preparation of “men and women for educational and faithful leadership in the church.” It offers no secular degrees or courses of study. Every president has been an ordained minister of the Reformed Church, and all faculty and administrators are ordained clergy. The seminary is accountable to the Church, and subject to the supervision of the Church’s Board of Theological Education. The seminary’s policies regarding appointments, tenure, and dismissals, are set forth in a comprehensive faculty personnel manual. A dispute arose at the seminary over the status of a professor who claimed to have been promised a tenured position at the completion of his doctoral studies by the previous seminary president. When the current president refused to honor the previous president’s alleged promise (which was not contained in any written agreement), the professor resigned and later sued the seminary for wrongfully denying him tenure, and for “forcing” him to resign. The professor argued that the former president had the legal authority to grant him a tenured position. The seminary vigorously denied the professor’s allegation, claiming that only the Board of Theological Education had such authority. The faculty manual was somewhat ambiguous on this point. The professor further insisted that the dispute did not involve religious doctrine, and accordingly the civil courts had jurisdiction. He urged the court to apply “neutral principles” of contract law in resolving the claim. A trial court dismissed the former professor’s lawsuit, and the case was appealed. A state appeals court agreed with the trial court, and affirmed the dismissal of the lawsuit. The court concluded that while the civil courts may resolve contract disputes involving religious organizations if no religious doctrine or practice is implicated, this was not the case here. On the contrary, a resolution of the professor’s claim that the former president (without the approval of the Board of Theological Education) had the authority to grant him a tenured position “would require a searching examination of the polity and administration of the [Reformed] Church. If, as presently appears, the locus of appointive authority is ambiguous, a careful scrutiny of past practices and customs would be necessary. To permit civil courts to probe deeply into the allocation of power within a religious organization would result in a pervasive secular intrusion into Church government and administration …. In short, insinuation by civil courts into the customs, usages of the bylaws and the constitution, into the administration and polity of the Church in the hope of uncovering clues with respect to where the power to grant tenure resides, would threaten the freedom of the Church from secular entanglement.” In support of its conclusion, the court cited with approval a case in which the United States Supreme Court ruled that the first amendment guaranty of religious freedom grants religious organizations “independence from secular control,” and the “power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” The court emphasized that it was not leaving the former professor “without a remedy.” It observed that the faculty manual provides an optional grievance procedure, and concluded that the Church and seminary “are obliged by their established procedures to provide [the professor] with a forum for resolution of his claim.” This case is yet another in a long line of court decisions refusing to resolve ministers’ claims of wrongful discharge. Alicea v. New Brunswick Theological Seminary, 581 A.2d 900 (N.J. Super. A.D. 1990).

Termination | Decisions of State and Lower Federal Courts

© 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: m65 m43 c0491

Legal Developments

Charitable Immunity Laws

Such a law recently prevented a church from being sued.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: 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

• In a significant ruling, a New Jersey appeals court ruled that a state “charitable immunity” law prevented a church from being sued by the family of a boy who was injured seriously while attending a church day camp. A Baptist church operated a summer day camp for grade school children that was designed to “integrate biblical truth into the lives of children through formal teaching and informal activities such as crafts and games.” A boy was injured while participating in a camp activity. While his parents had registered him in the camping program, neither the parents nor the boy attended the church or had any other contact with it. The parents sued the church, alleging that their son’s injuries were caused by the church’s negligence. The church asked the court to dismiss the lawsuit against it on the basis of a state “charitable immunity” law that prevented charitable organizations from being sued on the basis of negligence by “beneficiaries” of their charitable activities. The New Jersey statute specifies: “No nonprofit corporation … organized exclusively for religious, charitable [or] educational … purposes shall … be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation … where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation ….” The trial court rejected the church’s request to dismiss the case, and the church appealed. A state appeals court agreed with the church that the charitable immunity statute prevented the victim’s parents from suing the church, and accordingly it dismissed the lawsuit against the church. The court observed that the statute provides legal immunity to nonprofit organizations with respect to injuries caused to their “beneficiaries” by their agents or representatives. The court concluded that these two requirements were satisfied in this case. Clearly, the church was a nonprofit religious organization. And second, the victim was a beneficiary. The court reasoned that one is a beneficiary who participates in an activity of a charity that furthers its charitable objectives. Since the victim was participating in a camp that existed to further the religious objectives of the church, he was a beneficiary of the church and therefore could not sue it on the basis of its alleged negligence. In defending the statute, the court observed: “The principle of charitable immunity was deeply rooted in the common law of New Jersey. The principle is premised on the fact that charitable associations are created to pursue philanthropic goals and the accomplishment of those goals would be hampered if they were to pay tort judgments in cases similar to this matter …. [A] person who makes a charitable contribution expects his donation to further the goals of the organization, and not to be used to satisfy lawsuits which bear no direct relationship to those goals.” The court also emphasized that the charitable immunity statute reflects the inapplicability of the “respondeat superior” doctrine to charitable organizations. This is a very significant observation. Most lawsuits against churches are based on the respondeat superior doctrine, which makes employers legally responsible for the misconduct and negligence of their agents and employees. This doctrine is based on one fundamental consideration—employers can allocate the cost of the injuries and damages that their agents cause by simply increasing the price of their products. While this principle may have merit in the context of commercial corporations that have the ability to increase the price of their products to pay for the negligence of their workers, it has no application whatever to a church that has no “product” to sell. Hopefully, more courts will see this vital distinction. There are other states that have charitable immunity laws. Rupp v. Brookdale Baptist Church, 577 A.2d 188 (N.J. Super. 1990).

Legal Developments

Arbitration

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

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: Arbitration

Church Law and Tax 1990-09-01 Recent Developments

Arbitration

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

• May arbitration agreements be used to resolve ecclesiastical disputes? This interesting question was considered by a New Jersey court in a significant case. A synagogue and its rabbi were embroiled in a “lengthy and destructive dispute” that they agreed to submit to binding arbitration by a panel of ecclesiastical experts (a “Beth Din”). The “arbitration agreement” signed by the parties specified:

Blessed be the Lord. This is to certify that we the undersigned fully accept upon ourselves the following judgment of the Beth Din of the Union of Orthodox Rabbis of the United States and Canada … to adjudicate between us according to their judicious wisdom, we affirm hereby that we have accepted upon ourselves to obey and fulfill the judgment which shall issue forth from this Beth Din whether it be verdict or compromise, according to the determination of the aforementioned judges without any appeal whatsoever before any Beth Din under Jewish law or any civil court, but it is incumbent upon us to obey the verdict of the aforementioned Beth Din without any further complaint. All of the above was entered into voluntarily … without any reservations whatsoever in a recognizable and legally binding manner and is entered into in a manner so to be completely and lawfully binding.

After an extended hearing involving “voluminous documentary evidence” and “lengthy oral testimony,” the Beth Din ordered the synagogue to pay the rabbi $100,000, and asked the rabbi to resign “for the sake of peace” (it found no other basis to remove him). The synagogue appealed this arbitration order to a state civil court. A state appeals court upheld the decision of the Beth Din, and rejected the synagogue’s appeal. It observed that the “arbitration agreement” was entered into “freely and voluntarily, with an awareness on the part of both sides as to the meaning and significance of that form of religious dispute resolution.” The court rejected the synagogue’s claim that it had not “voluntarily” entered into the agreement. It observed that the synagogue’s president had signed the agreement, and this bound the synagogue. The court noted that the authority of a civil court to review an arbitration award is “extremely limited,” and is not permissible “absent proof of fraud, partiality, [or] misconduct on the part of the arbitrators ….” Since there was no evidence of any of these grounds, the decision of the Beth Din had to be affirmed and enforced by the civil courts. The court concluded that “the law favors dispute resolution through consensual arbitration, and so the award is presumed to be valid. So it is here. On this record, the Beth Din’s decision and award must be confirmed.” The court further “encouraged mutual compliance with this court judgment without the compulsion of court process.” In other words, if the parties did not voluntarily recognize the arbitration decision, the court would compel them to do so. What is the significance of this decision? Consider the following observations. First, it illustrates that the civil courts generally favor arbitration as a means of dispute resolution. This is particularly true in the context of ecclesiastical disputes, which often involve issues that are best left to church leaders. Second, the courts will enforce arbitration decisions, even in the context of religious organizations, unless the decisions were based on fraud, or partiality or misconduct on the part of the arbitrators. Third, agreements to arbitrate must be voluntary, and should be in writing and signed by authorized persons. Finally, church leaders should recognize that a substantial percentage of lawsuits involving churches are brought by “insiders” (members and others attending services). Accordingly, church leaders should consider the advantages of adopting an arbitration procedure within the local church (e.g., as a part of the bylaws). If properly drafted, such a procedure could reduce the numbers of church lawsuits resolved by the civil courts. Of course, any such procedure would have to (1) ensure impartiality, (2) be voluntarily and knowingly adopted by a church and its members alike, (3) specifically identify the disputes to be submitted to arbitration, (4) describe the procedure to be employed, and (5) be coordinated with the church’s liability insurance company. Clearly, the adoption of such a procedure would require careful study and preparation, but the potential advantages are significant—the resolution of at least some church disputes through a private and internal process. We will have more to say about this significant subject in future issues of Church Law & Tax Report. Elmora Hebrew Center v. Fishman, 570 A.2d 1297 (N.J. Super. 1990).

© 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: m03 m16 c0690

Legal Developments

Zoning – Part 3

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

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: Zoning

Church Law and Tax 1990-09-01 Recent Developments

Zoning

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

• A federal appeals court was asked to decide whether a church’s constitutional rights were violated by a city ordinance prohibiting churches from meeting without a special use permit. An Evanston, Illinois zoning ordinance permits churches to locate anywhere in the city provided they obtain a special use permit from the city. To secure a permit, a church must file a detailed plan for the use of the facilities and pay a fee of approximately $400. The city zoning board then holds a hearing and renders a decision. The entire process takes between four and six months. Churches conducting services without a permit are guilty of a misdemeanor and are subject to fines of $25 to $500 per day. A small, fundamentalist church began conducting services in Evanston without a permit. The church met in the pastor’s apartment, and then in a rented hotel room. It sought a permanent location, but allegedly could not find one since landlords either were unwilling to rent to the church until it obtained a permit, or increased the rent to an unaffordable level. The church filed a lawsuit against the city in federal court, alleging that its constitutional rights were violated by the city’s permit procedure. Specifically, it argued that the procedure violated the constitutional guarantees of religious freedom and the “equal protection of the laws.” With regard to the equal protection claim, the church claimed that other organizations (e.g., theaters, funeral homes, hotels, community centers) were not required to obtain permits to operate, and thus the permit procedure treated churches differently and less favorably without any apparent basis. The federal trial court dismissed the church’s religious claim, but it did agree that the city’s permit procedure violated the church’s constitutional right to the “equal protection of the laws,” and it awarded the church nearly $18,000 in damages under title 42, section 1983 of the United States Code. This law (referred to as “section 1983” by lawyers) allows persons and organizations whose constitutional rights are violated to sue the offender for money damages—even if the offender is a city or other government unit. Significantly, the court granted the church a “summary judgment,” meaning that it found the church’s position so clearly correct that it refused to submit the case to a jury. The city promptly appealed this decision to a federal appeals court, which dismissed the case on the technical ground that the church lacked “standing” to challenge the city’s permit procedure. The federal Constitution, as interpreted by the Supreme Court, forbids the federal courts from resolving a case unless the plaintiff has “standing”—meaning that the plaintiff has suffered “some actual or threatened injury” and that the injury “fairly can be traced to the challenged action and is likely to be redressed by a favorable decision.” The appeals court concluded that the church lacked standing under this definition and accordingly could not maintain its lawsuit against the city. Why did the church lack actual or threatened injury? For two reasons. First, the city had never enforced the special permit requirement and accordingly there was no threat of legal consequences if the church disregarded it. The court observed: “A party must reasonably assert that it fears enforcement in order to establish standing. Here, given [the city’s] historic policy of non-enforcement and [the church’s] repeated violations of the ordinance without any municipal retaliation, [the church] cannot reasonably assert that they fear enforcement.” Second, the court rejected the church’s claim that its difficulty in locating permanent facilities was caused by the ordinance and established standing. The court found this claim too “conjectural” and “abstract” to create standing. It noted that the church had failed to produce any affidavits from landlords who refused to rent to the church because of its refusal to obtain a permit. It also observed: “[The church] relies on the mere possibility that, absent the ordinance, it could have more easily acquired rental property …. Such speculative claims cannot constitute distinct and palpable injury for purposes of standing. Claims of such vague economic harm are precisely the type of abstract or conjectural allegations spurned by the Supreme Court. [The church] never applied for a special use permit, nor was threatened with punishment for operating a church facility in violation of the ordinance. Thus, any fear of enforcement or increased difficulty in securing housing does not present any real controversy before the court.” This case is very significant (despite the appeals court’s crabbed interpretation of the standing requirement) since it represents another example of a court (in this case, the federal district court) awarding a church monetary damages under “section 1983” for a violation of a church’s constitutional rights. The importance of such rulings cannot be overstated—for they represent a recognition of an extremely potent weapon that is available to churches. To be sure, the federal appeals court dismissed the case, but it did so on for technical reasons that in no way diminish the significance of the trial court’s decision. Further, the appeals court seemed to concede that it would have affirmed the district court’s award of monetary damages had the city ever enforced its permit procedure, or had the church presented more evidence of the unwillingness of landlords to rent to the church. In many cases, these factors will be present, and presumably churches in such cases will be entitled to monetary damages. This, indeed, is a significant development that should be of interest to all church leaders, and their advisers. Love Church v. City of Evanston, 896 F.2d 1082 (7th Cir. 1990).

Legal Developments

Charitable Contributions – Part 1

Church Law and Tax 1989-11-01 Recent Developments Charitable Contributions Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: Charitable Contributions

Church Law and Tax 1989-11-01 Recent Developments

Charitable Contributions

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

• Is a “pledge” legally enforceable? That was the issue before a New Jersey state appeals court in an important case. An individual pledged to give a specified amount of money to a religious organization, but later changes his mind. The organization filed a lawsuit seeking a court order compelling the individual to honor the pledge. A trial court ruled in favor of the organization, and the individual appealed. The state appeals court began its opinion by noting that “the great bulk of [states], including New Jersey, hold that a charitable pledge constitutes an enforceable contract.” This rule admittedly has created some confusion, since an enforceable contract generally consists of an exchange (each party gives and receives something of value). But what benefit does the donor receive in exchange for his or her pledge? Why should a pledge be viewed as an enforceable contract rather than as an unenforceable statement of intent to make a gift? The court reviewed a number of theories that have been used to support the characterization of pledges as enforceable contracts, but found none of them satisfactory. It candidly observed that “the real basis for enforcing a charitable [pledge] is one of public policy—enforcement of a charitable pledge is a desirable social goal.” The court continued: “Lightly to withhold judicial sanction from such obligations would be to destroy millions of assets of the most beneficent institutions in our land, and to render such institutions helpless to carry out the purposes of their organization.” In conclusion, most courts view the enforceability of charitable pledges as socially desirable, and accordingly they characterize them as “contracts” in order to ensure their enforceability even though it is doubtful that they qualify as valid contracts. The New Jersey court correctly observed that charitable pledges are “disguised as a contract in order to effectuate a public policy.” Whether based on contract law or public policy, most courts view charitable pledges as legally enforceable commitments. Obviously, few religious organizations would consider suing a donor to enforce a pledge. On the other hand, religious organizations often incur sizable obligations (buildings, missions commitments, etc.) in reliance upon pledges, and they may be able to persuade reluctant donors to recognize their moral obligation to honor their pledges if they realize that the courts view pledges as binding legal commitments. Jewish Federation v. Barondess, 560 A.2d 1353 (N.J. Super. 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: m08 c0689