Church Members Sue to Remove Pastor

Courts cannot inquire into religious doctrine.

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio

Church Law and Tax 1994-11-01 Recent Developments

Clergy – Removal

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

• Key point: The civil courts cannot resolve disputes in either hierarchical or congregational churches regarding questions of “who will preach from the pulpit” if any inquiry into religious doctrine would be required.

• An Ohio court ruled that it lacked jurisdiction to resolve a lawsuit brought by members of a church seeking to compel the removal of their pastor. A group of members in a Baptist church filed a lawsuit against their pastor and board of trustees alleging breach of contract and breach of fiduciary duties. The members claimed that their pastor breached his contract by becoming employed by an insurance company without first seeking or obtaining the consent of the church. The members also claimed that the church trustees breached their fiduciary duties to the members of the church by failing and refusing to take action against the pastor despite their knowledge of his outside employment. The members asked the court to terminate the pastor’s contract of employment, and to award them $50,000 in damages. The pastor’s contract contained the following provision regarding outside employment: “Employee shall devote his entire time and the best of his ability to the business of the church, and shall not become associated or indirectly interested in another church or business without first obtaining consent of the [church].” The pastor accepted outside employment, allegedly without seeking or obtaining prior approval of the church. However, the board of trustees claimed that the pastor’s outside employment was approved by the congregation at a special business meeting. The members who brought the lawsuit countered by insisting that actions taken at the special business meeting were invalid since defective notice was given and no quorum was present. They claimed that the notice of the special business meeting was defective since no purpose was specified. Further, the members claimed that only 10% of members were present at the special meeting and that the church constitution defined a quorum as 25% of members in “matters pertaining to the pastor.” A trial court dismissed the members’ lawsuit, and they appealed. A state appeals court upheld the trial court’s dismissal of the case. The court began its opinion by observing: “It is well established that civil courts lack jurisdiction to hear or determine purely ecclesiastical or spiritual disputes of a church or religious organization.” The court noted that “[g]enerally, the question of who will preach from the pulpit of a church is an ecclesiastical question, review of which by the civil courts is limited by the first [amendment] to the United States Constitution.” However, the court then determined that whether or not the civil courts can assert jurisdiction over cases involving the termination of ministers depends on whether the church is hierarchical or congregational in structure:

In questions involving “who should preach from the pulpit,” a court must first consider whether the church is hierarchical or congregational. If the church is hierarchical, civil courts generally lack jurisdiction to hear the dispute. Civil courts “are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law” …. However, where the dispute involves non-doctrinal contractual disputes, a civil court retains jurisdiction to hear the dispute. Nonetheless, civil courts must not infringe upon a hierarchical church’s disposition of an ecclesiastical dispute.

If the church is congregational, a civil court retains jurisdiction to determine whether the decision concerning “who shall preach from the pulpit” was made by the proper church authority …. The court’s jurisdiction is limited to purely secular issues, and the court must not be involved in ecclesiastical issues.

The court noted that a Baptist church is congregational, but it concluded that the issues raised by the members’ lawsuit were ecclesiastical in nature and accordingly not reviewable by a civil court. It observed:

[The members allege] that the trustees breached their fiduciary duties to the congregation by not seeking to terminate the contract between the church and [the pastor]. [They] apparently argue that a majority of the members of the congregation are in favor of terminating the contract of employment. However, inquiry into the relationship between the trustees and the congregation in matters concerning the pastorship would require the courts to consider each party’s views of “who should occupy the pulpit.” Review of such matters would further require the court to determine the issue of whether the trustees’ performance of their duties as trustees met the standards of the congregation and would therefore involve an inquiry into ecclesiastical concerns. Therefore, pursuant to the first [amendment] to the United States Constitution, civil courts lack subject matter jurisdiction to entertain such matters ….

The members insisted that the civil courts can determine if the proper church authority decided to remove a minister in a congregational church, and that this is all they were attempting to accomplish. The court disagreed:

The church’s constitution provides further light on the subject of the court’s jurisdiction. Article VIII provides that … the “church may not terminate its relationship with the pastor except by vote of the church at a meeting called for this purpose at which a two-thirds majority of those present have voted in favor of the termination.” Thus, the church’s right to terminate the contract with [the pastor] can be accomplished only by a vote of the church at a meeting called for this purpose, at which a two-thirds majority of those present have voted in favor of the termination. In the present case, although [the members] argue that a civil court has jurisdiction to determine whether the appropriate church authority has made a decision regarding the pastorship, the record does not reveal, and [the members] make no allegations, that a meeting was ever called to determine whether [the pastor] should be terminated as pastor. Moreover, the decision of the individual members of the congregation on how and whether to vote for the termination of [the pastor’s] pastorship with the church would require a review of each member’s subjective view on the issue of [the pastor’s] termination. This would require the court to inquire into the ecclesiastical question of “who should preach from the pulpit.” Thus, while [the members] correctly argue that civil courts have jurisdiction to determine whether the appropriate church authority made a decision concerning a pastor’s termination or retention, [they] would have this court intervene and make this decision for the appropriate church authority. To the contrary, the present case does not require the lower court to determine whether the pastor’s termination was made by the appropriate church authority, since such decision has never been made. The decision in the present case was never reached, nor was a meeting even called to determine such issues. The church’s own constitution provides the means to make such decision, and this court will not allow the church’s constitution to be subverted by an apparent minority of congregation members who seek to bypass the church’s internal mechanisms in order to have the pastor removed. It is worth repeating that the procedure for termination of the pastor is provided for in the constitution, and there is no record that this provision has been complied with or that the [members] herein have ever attempted to comply with internal church procedures. For the civil courts to intervene under such circumstances, where there is a complete failure on the part of [the members] to follow the procedures outlined in the church’s own constitution for the removal of a pastor, would constitute an unconstitutional attempt to inquire into the purely ecclesiastical matter of “who shall preach from the pulpit” at the congregation’s expense. The trial court was, therefore, correct in granting [the pastor’s and trustees’] motion to dismiss for lack of subject matter jurisdiction pursuant …. Tibbs v. Kendrick, 637 N.E.2d 397 (Ohio App. 8 Dist. 1994).

Parents Challenge Children’s Dismissal from Church-Run School

Can a church-operated school be sued for dismissing a student?

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio

Church Law and Tax 1994-07-01 Recent Developments

Schools

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

• Key point: A church-operated school generally cannot be sued for dismissing a student unless the dismissal violates a contractual right or the school clearly abused its discretion in enforcing its policies and regulations.

• An Ohio appeals court dismissed a lawsuit brought by the parents of two children challenging the legality of their children’s dismissal by a church-operated school. A couple enrolled their two children, ages 8 and 10, in a church-operated private school. The couple signed an application for enrollment specifying that they would “uphold the student handbook.” The school handbook contained a provision stating that “[i]f a parent has a question or concern related to a classroom situation, he should first meet with the particular classroom teacher. If the matter is not resolved, the administrator is the proper person to contact …. If a parent feels that he cannot accept the decision or explanation given by the administrator, his final recourse is to take the matter before the school board, with the administrator and teacher present, by submitting a written request for such a meeting to the administrator.” Soon after the two children were involved in the school, the 8-year-old (a girl) was sexually touched by two male students. The male students were warned to refrain from such conduct in the future. A few weeks later, one of these same boys had sexual contact with the girl again. Shortly after this incident, another boy spit on the girl. The girl’s mother was enraged by these incidents and confronted the school administrator. The mother called the administrator “unchristian” and accused him of “working with the devil.” When all efforts to resolve the tension failed, the administrator asked the parents to withdraw their children from the school. The parents later sued the school and its administrator for wrongfully dismissing their children. A trial court dismissed the lawsuit, and the parents appealed. In upholding the trial court’s dismissal of the lawsuit, the appeals court observed:

There is no question that the relationship between the parties here is a contractual one, that the terms of that relationship may be expressed in school policies and handbooks, and that those expressed terms may govern the circumstances under which a student may be expelled. Because contracts for private education have unique qualities, they are to be construed in a manner which leaves the school board broad discretion to meet its educational and doctrinal responsibilities. Absent a clear abuse of discretion by the school in the enforcement of its policies and regulations, courts will not interfere in these matters. Thus, in order to state a … claim in these circumstances, the plaintiff must adduce evidence of a violated contractual right or evidence that the school clearly abused its discretion in enforcing its policies and regulations. In the present case [the parents] have failed to adduce any evidence of a failed contractual right. They have also failed to present any facts to show a clear abuse of discretion on the part of [the school or its administrator]. On the contrary, the evidence suggests that [the school and administrator] acted within their proper discretion in removing the … children. The record demonstrates that [the administrator] … responded promptly to the complaints by [the mother] in a manner that he believed would yield fairness to all parties involved. The [parents] refused to agree to his disposition of the matters, bypassed the grievance procedures, engaged in confrontational tactics and failed to abide by the school handbook. After [the mother] called [the administrator] unchristian and accused him of working with the devil, [he] felt that he could not work together with [the family] and that the best interest of all parties would be served by the removal of the children from the school.

This case illustrates the importance of having clearly stated grievance policies in school handbooks, and of following those policies. Allen v. Casper, 622 N.E.2d 367 (Ohio App. 8 Dist. 1993).

Legal Developments

Relevance of Previous Criminal Acts to Employment Decisions

Are prior criminal acts relevant in deciding whether to use a worker?

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio

Church Law and Tax1994-05-01Recent Developments

Sexual Misconduct by Clergy and Church Workers

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

• Key point: A prospective worker’s previous criminal act may have occurred so long ago that it no longer is relevant in evaluating whether or not to use the worker.

• In a significant ruling, an Ohio appeals court ruled that an employer was not liable for a worker’s rape of a 9-year-old girl even though the employer failed to discover that the worker had been convicted of a similar crime 20 years earlier. A metropolitan housing authority hired a general contractor to perform work on some of its apartment units. The general contractor hired a subcontractor who hired a worker to lay floor tiles in vacant apartment units. One morning the subcontractor found two young girls in a vacant apartment with the worker. When questioned, the worker explained that the girls were “helping him.” The subcontractor told the worker that he did not like the arrangement, but did nothing about it. Later that day, the worker took one of the girls (9 years old) to a closet and raped her. The girl and her mother later sued the subcontractor, claiming that it was responsible for the girl’s injuries on the basis of negligent selection and negligent supervision. A trial court dismissed the lawsuit, and the girl and her mother appealed. A state appeals court upheld the dismissal of the lawsuit. In rejecting the claim that the subcontractor was responsible for the girl’s injuries on the basis of “negligent selection” of the rapist, the court observed:

[The subcontractor’s] only duty was to exercise ordinary care. No facts were offered which would give rise to a duty to conduct a criminal background check. Neither side actually presented any evidence of [the worker’s] criminal history. [The subcontractor’s] deposition indicates he was not aware of [the worker’s] past criminal record but said it would not have made any difference since it was more than twenty years old. The trial court found that even if the history were known, it was so remote that it could not reasonably afford a basis of liability against [the subcontractor for the worker’s] future criminal acts. Based upon the state of the record in this case, we must concur that no facts were offered which could establish such a duty.

The court also rejected the claim that the subcontractor was responsible for the girl’s injuries on the basis of its “negligent supervision” of the worker. It observed:

[The victim and her mother] argue that the mere presence of the two young girls alone with [the worker] while he was working in the vacant apartment, when coupled with [the subcontractor’s] knowledge that [the worker] knew at least one of the girls, would put a reasonably prudent person on notice that his employee would sexually assault one of the girls. [The victim and her mother] also point to [the subcontractor’s] statement that “I don’t like it” and [his] failure to do anything about “it.” [The victim and her mother] contend that these facts are sufficient to raise genuine issues of fact that [the subcontractor] negligently breached his duty to supervise [the worker]. Taken at its very best, under circumstances most favorable to the plaintiffs, this might put a reasonably prudent person on notice that the children might be injured by some negligent act at the work site. However, it is a giant leap to say an employer must anticipate the future criminal acts of his employee. In the absence of known criminal propensity, this criminal act was not reasonably foreseeable and cannot be attributed to any act or omission by [the subcontractor]. We reject this argument.

This ruling is significant for the following reasons:

Reasonable care. The court emphasized that employers only have a duty of exercising “reasonable care” with respect to their workers. They are not “guarantors” of the safety of persons who come in contact with their workers.
20-year-old conviction. The most extraordinary aspect of the court’s ruling was its conclusion that a 20-year-old criminal conviction was not relevant in evaluating a worker’s suitability for working around minors. The court observed: “The trial court found that even if the history were known, it was so remote that it could not reasonably afford a basis of liability against [the subcontractor for the worker’s] future criminal acts. Based upon the state of the record in this case, we must concur that no facts were offered which could establish such a duty.” What does this mean? This is one of the first indications by a court that the relevance of a criminal conviction may diminish with time. Many church leaders have wondered whether they should use a prospective youth worker who was convicted of a crime many years ago. This case suggests that it may not be negligent to do so in some cases. The time interval in this case was 20 years. There are three points to emphasize here. First, very few courts have addressed the issue of the relevance of old criminal convictions in evaluating the suitability of workers. Other courts may not reach the same result as this court. Accordingly, this case should not be relied upon without the advice of legal counsel. Second, this case will be very useful in defending against a lawsuit that seeks to hold a church liable for the sexual misconduct of a worker with an old criminal conviction. Third, medical authorities generally have concluded that pedophilia is an incurable condition that at best can be controlled under very limited circumstances. Pedophilia refers to sexual contact with (or orientation toward) pre-adolescent minors. If pedophilia is incurable, then the number of years that have passed since a prospective worker was convicted of a crime involving inappropriate contact with a pre-adolescent minor is not relevant. It does matter that the conviction occurred 20 or even 40 years ago. If the conviction was based on pedophilic behavior, and pedophilia is incurable, then a church should never give such a person a “second chance” and place him or her in a position involving contact with minors.
Criminal record checks. Another extraordinary aspect of the court’s ruling was its conclusion that the subcontractor did not even need to conduct a criminal records check. It noted that the subcontractor only had a duty to exercise “ordinary care” and that “[n]o facts were offered which would give rise to a duty to conduct a criminal background check.” In other words, not only was it irrelevant that the worker was convicted of a crime 20 years before he was hired, but it also was irrelevant that the worker’s employer never conducted a criminal records check.
Negligent supervision. The court acknowledged that the worker’s employer was aware that he was alone with two young girls on the day of the rape; that he knew one of them; and, that the employer informed the worker that he “did not like” the fact that the worker was using young girls to “help him” in his work. However, the court insisted that such information did not make the employer responsible for the worker’s conduct. It noted that “it is a giant leap to say an employer must anticipate the future criminal acts of his employee. In the absence of known criminal propensity, this criminal act was not reasonably foreseeable and cannot be attributed to any act or omission by [the subcontractor].” This aspect of the court’s ruling will be helpful to churches that are sued for criminal acts of molestation committed by youth workers. A church may be aware of some information that suggests a higher degree of supervision is warranted with respect to a particular worker. But, it is a “giant leap” to say that on the basis of this information a church must anticipate future criminal conduct. The court concluded that a criminal act (raping a 9-year-old girl) is not reasonable foreseeable and therefore cannot be attributed to the employer in the absence of “known criminal propensity.” Since the employer did not know of any prior criminal behavior by the worker and had no duty to conduct a criminal records check to find out, it could not be responsible for the worker’s criminal act.

In conclusion, this case will be helpful in the defense of churches that are sued for the acts of child molestation by youth workers. However, as noted above, it should not be relied upon by any church without the advice of legal counsel. Peters v. Ashtabula Metropolitan Housing Authority, 624 N.E.2d 1088 (Ohio App. 11 Dist. 1993).

See also the feature articles in this newsletter entitled “Denomination Found Liable for Pastor’s Misconduct” and “Personal Liability of School Officials for Sexual Misconduct of Teachers.”
See Also: Negligent Selection | Negligent Supervision

Legal Developments

Denominations’ Liability for Sexual Misconduct Occurring in Churches

This case will be of interest to denominational officers.

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio

Church Law and Tax 1994-05-01 Recent Developments

Denominations – Legal Liability

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

• Key point: A religious denomination is not necessarily legally responsible for the acts of sexual misconduct that occur in affiliated churches.

• In a case that will be of interest to denominational officers, an Ohio appeals court ruled that a national hotel chain was not responsible for the rape of a woman at one of its local franchises. A campus ministry organization leased a ballroom room at a local Best Western hotel for a social event and hired three women to serve as disk jockeys. At about 1:30 AM, one of the female disk jockeys left the ballroom to use the ladies restroom. While there, she was attacked and sexually assaulted. The woman sued not only the local hotel but also the Best Western national organization, arguing that both organizations failed to provide adequate security. A trial court dismissed the lawsuit against the national organization on the ground that no agency relationship existed between it and the local hotel. The woman appealed, arguing that the national Best Western organization exercised sufficient control over the local hotel to establish an agency relationship which made the national organization responsible for injuries occurring on the local unit’s premises. The appeals court began its opinion by observing:

We begin our analysis by recognizing that, not every relationship of principal and agent creates vicarious responsibility in the principal for acts of the agent. A principal and agent can be in the relationship of a master and servant, or simply in the status of two independent contractors. If a particular agent is not a servant, the principal is not considered a master who may be held vicariously liable for the negligent acts of the agent. Thus, in order for Best Western to be held vicariously liable for the alleged negligence of [the local hotel], the relationship between them must have been that of master and servant. In determining whether the [relationship between Best Western and the local hotel] was one of master and servant or simply that of two independent contractors, we are given guidance by our Supreme Court, which has declared: “[T]he basic inquiry is whether such person is subject to the alleged employer’s control or right to control with respect to his physical conduct in the performance of the services for which he was engaged …. The hallmark of an employee-employer relationship is that the employer not only controls the result of the work but has the right to direct the manner in which the work shall be accomplished; the hallmark of an independent contractee-contractor relationship is that the person engaged in the work has the exclusive control of the manner of performing it, being responsible only for the result.”

[The victim] is correct insofar as she contends that the hallmark of a master-servant relationship is that the master possesses the right to control the manner in which the servant’s work is accomplished. However, she urges us to apply what we believe is an overly-broad conception of what constitutes “control.” Best Western does not “direct the manner in which the work is to be accomplished” simply by having a marketing agreement with [the local hotel]. “It is the element of continuous subjection to the will of the principal which distinguishes the … agency agreement from other agreements.” Restatement (Second) of Agency, § 1(1), comment b (1957) (emphasis added) …. [W]e believe that the focus of our inquiry should be whether the alleged master has day-to-day control over the manner of the alleged servant’s performance.

The court pointed out that in this case the local hotel, and not the national Best Western organization, managed the day-to-day operations of the hotel and made all of the decisions relating to its operation. The employees of the hotel were hired, fired, paid, and supervised by the local hotel’s managers. The local hotel set the prices for the various services it provides. Best Western has no ownership interest in the local hotel. To the contrary, one hundred percent of the stock in the hotel is owned by a local family. Best Western is paid a fixed amount each year ($23,500) for its services. Moreover, the agreement between Best Western and the local hotel specifically provides that their relationship is one of independent contractor, and that Best Western has “no responsibility for the … safety of the premises.” It also gives the local hotel the right to voluntarily end its association with Best Western at any time for any reason. The court concluded that “[f]or these reasons, there is clearly not the necessary control by Best Western of day-to-day operations to establish a master-servant relationship.” The court rejected the victim’s argument that the Best Western program of quality control and its corresponding rules and regulations and the programs and workshops Best Western conducts in order to achieve this goal are enough to establish control or the right to control. It observed: “[T]he fact that Best Western sets certain standards in order to maintain a uniform quality of inn service only addresses the result of the work and not the manner in which it is conducted. Here, it is [the local hotel] which decides the manner in which it will meet the quality criteria set by Best Western. Such an arrangement does not constitute a master-servant relationship, but rather is indicative of an independent contractor-contractee relationship …. The victim further pointed out that if the local hotel failed to adhere to these quality control requirements (which were checked in biannual inspections) Best Western could terminate the hotel from using its trade name. The court responded:

Such a sanction, however, does not indicate that there is continuous subjection to the will of the alleged master so as to constitute a master-servant relationship …. Rather, it merely reemphasizes that [the local hotel], which has the ability to voluntarily terminate its relationship with Best Western at any time, is an independent entity which controls its own destiny. Best Western cannot compel [the hotel] to alter its conduct. It merely has the ability to either terminate its relationship with [the hotel] or threaten to terminate it. We conclude that this type of marketing arrangement simply does not evidence the type of day-to-day control over the manner of performance which would establish a master-servant relationship.

The court referred to two other cases in which courts had rejected the argument that national hotel chains were legally responsible for injuries that occurred on the premises of local units. In one of the cases, a Maryland court ruled that control by Holiday was “totally lacking,” and that general oversight does not constitute “control” under the law:

Although Holiday Inn retained the right to conduct periodic inspections as a means of insuring adherence to Holiday Inn standards, it took no part in the day-to-day operation of the hotel. Associates merely purchased a product from Holiday—a uniform system of inn service—that carried with it an obligation to maintain certain standards prescribed by the seller. But “the fact that one of the parties has subsidiary duties to act for the interests of another, as where a purchaser of goods from a manufacturer agrees that he will advance the interests of the manufacturer in certain respects, does not create an agency relation with respect to the sale.” Restatement (Second) of Agency § 13, comment c (1958). The right possessed by Holiday Inn to insure compliance with its franchise standards constitutes no more than the right to enforce such a subsidiary duty.

In the second case involving a Ramada Inn hotel, a North Carolina court concluded:

[W]e find no evidence that [Ramada Inn] retained or exercised the kind of detailed control over the daily operation of the [local hotel] that would establish a principal-agent relationship. The general purpose of the contract is the maintenance of uniform service within, and public good toward, the Ramada Inn system. Otherwise, [the local hotel] operates the facility on its own behalf. The agreement primarily requires [the local hotel] to comply with certain standards in the construction, furnishing, and advertising of the facility. Apart from the imposition upon [the local hotel] to maintain its accommodations “in a clean, attractive, safe and orderly manner,” the twenty-page contract imposes no standards nor makes any other provision with respect to security of the premises. Under the agreement, [Ramada Inn] neither retained authority over, nor established standards for, hiring, firing, supervision, or discipline of personnel or myriad other details of the day-to-day operation. Moreover, although [it] has retained the right to conduct regular inspections of the accommodations to insure compliance with the contract and rules of operation, [its] actual control is limited to a right to terminate the franchise agreement and collect damages for any noncompliance [by the local hotel]. Under these circumstances, we conclude that no actual agency relationship existed that would justify holding [Ramada Inn] responsible for [the local hotel’s] security arrangement.

The court also rejected the victim’s claim that Best Western was responsible for her injuries on the basis of “apparent agency.” Apparent agency refers to a relationship that arises when one organization represents that another is its servant or agent and thereby causes a third person to rely upon the care of skill of the apparent agent. The “principal” or “master” is legally responsible for the acts of the apparent agent under these circumstances. The court rejected the application of this legal doctrine to the facts of this case:

Under the facts of this case, we fail to see how [the victim] can be said to have relied upon the apparent authority of [the local hotel] to avoid being the victim of this random act of violence. Our review of the record indicates that [she] has presented no evidence which even remotely supports her allegation that she relied upon the fact that [the local hotel] represented Best Western, as its agent, on the night she was sexually assaulted …. [She] was hired by a third party, a campus ministry group, wholly unrelated to either Best Western or [the local hotel] to work as a disc jockey on the night of [the incident]. [She] neither contracted nor negotiated with Best Western or [the local hotel]; the ministry group specified to [her] where the function was to take place. She simply agreed to show up at the designated place, on the designated night and play music for a social function sponsored by the ministry group. Our review of the record not only indicates that she did not rely on the fact that the designated place carried the name “Western,” but that it appears she would have performed the service she had contracted to at most any location the campus ministry group had designated. Thus, Best Western cannot be held vicariously liable for the alleged negligence of [the local hotel] under the theory of apparent authority.

This case will be directly relevant to religious denominations that are sued on the basis of injuries occurring on the premises or during the activities of affiliated churches or agencies. It demonstrates that more than a common name and some points of connection will be required to hold a denomination liable for the actions of local churches. As the court observed, what is required is continuous control by the principal over the day-to-day activities of the agent. This is a difficult standard to meet, and clearly does not characterize the relationship between many denominations and affiliated churches. The decision also is significant because of its rejection of the apparent agency theory. Very few persons who are injured on church property or during church activities can claim that they relied upon the “apparent authority” of the local church to avoid being hurt. Myszkowski v. Penn Stroud Hotel, Inc., 634 A.2d 622 (Pa. Super. 1993). See also the feature article in this newsletter entitled “Denomination Found Liable for Pastor’s Misconduct”.

Legal Developments

Termination of Retirement Benefits

Court rules that retired pastor can sue his former church for breaching its promise to pay him in retirement.

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio
Categories: Breach of Contract, Retirement Plans

Church Law and Tax 1994-05-01 Recent Developments

Retirement Plans

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

• Key point: A church’s promise to pay a retiring pastor a portion of his former salary for the rest of his life may be legally enforceable.

• An Ohio appeals court ruled that a retired pastor could sue his former church for breaching its promise to pay him one-third of his former salary for the remainder of his life. The retired pastor had become the pastor of a local Baptist church in 1958. In 1971 he suffered a heart attack and was hospitalized. While he was recuperating, a church deacon told him that the church had voted to pay his full salary for the remainder of his lifetime. That promise was never fulfilled because the pastor later recovered and resumed his pastoral duties. In 1980, the pastor again experienced heart problems. Under the advice of his doctor, he approached the deacons of the church about his retirement. He proposed that his salary be reduced after retirement through a series of gradual “step-downs,” to an amount approximately one-third of the salary he was then receiving. This proposal was accepted by the deacons, and an agreement was approved that contained that placed the pastor on “disability retirement” status, conferred upon him the title “pastor emeritus,” allowed him to set up an office in the church, and agreed to pay him retirement benefits according to the step-down schedule agreed to by the deacons. The pastor also was obligated to aid, assist and advise whomever the church called as its next pastor, to the extent that his health would permit. The pastor and deacons recommended to the church congregation that it approve the agreement, which it did by unanimous vote at a business meeting in 1980. In 1985 the congregation was advised by a church officer that the retirement benefits being paid to the former pastor under the 1980 agreement should continue for his lifetime, The church congregation again unanimously reaffirmed the agreement. From 1980 through 1990, the retired pastor occasionally preached at the church, taught Sunday School classes there, served on the budget committee, and helped with various administrative matters. Retirement benefits were paid throughout this period according to the agreement. In 1990, however, church officials notified the former pastor that he had been dismissed from membership in the church and that no more payments would be made to him. All other benefits, such as the free office space, were also discontinued. The former pastor sued the church, claiming that it had breached its contract to pay him retirement benefits for life. The church insisted that there was no legally binding contract obligating the church to pay the former pastor retirement benefits for life, and that the payments made by the church from 1980 until 1990 were gifts. A jury ruled in favor of the retired pastor, awarding him $151,000 (representing the present value of all amounts due under the agreement for the balance of the pastor’s life expectancy). The church appealed. The church argued on appeal that the agreement to pay the pastor retirement benefits was not a legally enforceable contract for two reasons. First, there had been no “meeting of the minds,” and second, the pastor had given no “consideration” in exchange for the church’s promise to pay him retirement benefits. The appeals court rejected both of these arguments. It acknowledged that “one of the elements essential to a valid contract is a meeting of the minds of the parties as to the terms of the contract.” However, it rejected the church’s claim that no such “meeting of the minds” had occurred. With regard to the church’s claim that there was no “consideration” for the church’s promise to pay retirement benefits, the court observed: “Consideration is, of course, an element necessary for a binding contract, and a complete lack of any consideration is a valid defense to a breach of contract action.” The court noted that consideration refers to something of value given by a promisee (the pastor) in exchange for the promisor’s (the church) promise. The court concluded that the pastor in fact had given something of value to the church in exchange for its promise to pay him retirement benefits: “[He] was obligated to aid, assist and advise whomever the church called as a new pastor, to the extent that [his] health would allow.” This commitment on the part of the pastor was sufficient consideration to make the agreement with the church a legally enforceable contract. The court further observed that “consideration is not deemed legally insufficient merely because it is inadequate.” However, the court rejected the jury’s verdict in the amount of $151,000, and instead ordered the church to pay the pastor the agreed upon retirement benefits for the remainder of his life.

The court rejected the church’s argument that the church constitution gave it the right to terminate the promise to pay retirement benefits to the former pastor. The church constitution specified that

[a] statement of consideration shall be drawn up in writing by the committee and the pastor at the time of his call and shall be presented to the church for approval. Said statement shall include such consideration as salary, vacation, retirement, convention expenses, and any others deemed advisable by the church or the pulpit committee. Said statement may be changed or altered by mutual agreement between the church and the pastor at any time. When mutual agreement cannot be reached, said statement may be changed by a two-thirds majority of the members present and voting.

The church argued that this provision controlled the contract between the former pastor and the church and that it gave the church the legal right to terminate the payments made to the former pastor. The court rejected this position, noting that the evidence presented by both the pastor and the church “was consistent in establishing that the church constitution, while applying to active pastors, did not apply to retired pastors or retirement benefits paid to former pastors.”

Finally, the church suggested that its decision to terminate retirement benefits to the former pastor was justified because it was based on the church’s dismissal of the former pastor from church membership (an act protected by the first amendment). The court again disagreed:

The church argues that its decision to dismiss a pastor or member from its membership is protected by the first amendment to the United States Constitution and that such decisions are not reviewable by courts of law. A review of the record in this case clearly reveals that not only did all parties and the court agree with this general proposition but, more important, that the right of the church to dismiss [the former pastor] from membership in the church was never an issue in this case and that the trial court explicitly instructed the jury not to inquire into or consider that issue, in accordance with the church’s [request]. Brads v. First Baptist Church, 624 N.E.2d 737 (Ohio App. 2 Dist. 1993).

Former Teacher Cannot Sue for Defamation

School officials’ comments protected because they were a matter of “common interest.”

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio

McCartney v. Oblates of St. Francis de Sales, 609 N.E.2d 216 (Ohio App. 6 Dist. 1992)

Key point: Statements made to others concerning a matter of common interest are protected by a "qualified privilege," meaning that they cannot be defamatory unless made with malice.

An Ohio appeals court ruled that a former teacher at a church-operated school could not sue school officials for defamation since the allegedly defamatory statements made by the school officials concerned a matter of "common interest" and accordingly were privileged.

A teacher at a church-operated school was convicted of contributing to the delinquency of a minor for providing alcohol to one of his students. He advised school officials of his conviction, and was permitted to remain on the faculty both as a teacher and yearbook adviser. A few years later, his teaching contract was not renewed. A priest was hired to replace him as teacher and yearbook adviser. When the former teacher continued to associate with student members of the yearbook staff, two priests (who served as administrators at the school) contacted the parents of two of these students and informed them that the former teacher had been convicted of "corrupting a minor," implied that he was a homosexual, and recommended that they not permit their sons to associate with such a person.

The former teacher learned of these statements, and sued the priests for defamation. A trial court dismissed the lawsuit, and the former teacher appealed. A state appeals court agreed with the trial court that the statements made by the priests were not defamatory since they were protected by a qualified privilege. The court defined defamation as a false oral or written statement made about another person that injures his or her reputation. However, it noted that

[a] communication made in good faith on any subject matter in which the person communicating has an interest … is privileged if made to a person having a corresponding interest … even though it contains matter which, without this privilege, would be [defamatory] …. The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. The privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest ….

The court concluded that the remarks made by the priests concerning the former teacher were privileged under this test:

As a matter of public policy, educators and parents share a common interest in the training, morality and well-being of the children in their care. Because of this shared interest, a relationship exists between the educators of a child and the parents of that child in which a right, and in many instances a duty, to communicate information concerning the education and well-being of that child arises. The occasions presented in this case are examples of such a relationship …. [S]tatements made by a teacher and a principal which relate to a former teacher's interference in the educational process or commission of acts which are potentially harmful to the well-being of a student, when made to the parents of the student involved, can be motivated by a common interest in education or safety of that student. Further, the statements were imparted only to those parents who had a common interest in their continued association with the yearbook …. Accordingly, the trial court properly found that a qualified privilege existed as a matter of law.

A qualified privilege means that statements cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements either knew they were false, or made them with a reckless disregard as to their truth or falsity. Malice "cannot be inferred from evidence of intent to injure, ill will or personal spite … [r]ather, the evidence must demonstrate with convincing clarity that the defendants were aware of a high probability of falsity." The court concluded that the former teacher had failed to prove that the priests made the statements maliciously. All the former teacher offered were conclusory allegations that the priests acted with malice. He had failed to present any evidence that the priests "were aware of a high probability of falsity."

See also "Denominations—legal liability," Marshall v. Munro, 845 P.2d 424 (Alaska 1993).

Legal Developments

Molestation Suit Against Church Choir Director Tossed

Statute of limitations had expired.

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio

Doe v. First United Methodist Church, 1992 WL 281323 (Ohio App. 9 Dist. 1992—unpublished decision)

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

An Ohio appeals court threw out a lawsuit brought by a 25-year-old man who had been repeatedly molested as a minor by a church choir director.

The victim had been molested over a period of 3 years (from 1981 through 1984) when he was between 15 and 18 years of age. He turned 18 in July of 1984. In July of 1991, shortly after his 25th birthday, the victim filed a lawsuit against the choir director and his church. He alleged that the director was guilty of assault and battery, and that the church had been negligent in the selection and supervision of the choir director.

Ohio has a 1-year statute of limitations for assault and battery, meaning that a lawsuit alleging assault and battery must be brought within one year following the alleged wrongdoing. Ohio has a 2-year statute of limitations for bodily injury resulting from negligence. Obviously, these statutes had expired long before the victim brought his lawsuit in 1991. However, the victim insisted that the statutes had not expired since he did not discover the nature and extent of his injuries until he sought psychological help in September of 1989.

A trial court dismissed the lawsuit, concluding that the statutes of limitations began running on the victim's 18th birthday (in 1984), and not when he sought counseling in 1989. The victim appealed, and a state appeals court upheld the trial court's decision. With regard to the claim of assault and battery against the choir director, the court noted that the 1-year statute of limitations for assault and battery expired prior to the time the victim brought his lawsuit even if the statute did not begin to run until he sought counseling in 1989.

Further, the court refused to allow the victim to "utilize other theories of law to transform this battery into another type of action with a longer limitations period." This would "totally defeat this limitation which always has been set deliberately short at one year." The court acknowledged that the lawsuit against the church was brought within the 2-year statute of limitations for negligence if the statute began to run on the date the victim sought counseling. However, it refused to apply a "discovery" rule in this case. The court observed:

Because [the victim's] action against the … church was not based on assault, but rather on the alleged negligence … the bodily injury two-year limitation applied. Thus, as to [the church] we must determine when [the victim's] cause of action accrued. Although the offensive conduct at issue occurred repeatedly between 1981 and 1984, all of the applicable statutes of limitations were tolled until [the victim's] eighteenth birthday on July 7, 1984. [The victim] argues that because he did not discover the extent of his psychological injuries until he sought counseling in 1989, his cause of action did not accrue until that time. In general, a cause of action exists from the time the wrongful act was committed. However, application of this general rule sometimes served to bar an injured party's right to recovery before he was even aware of its existence. Thus, the discovery rule was developed in certain bodily injury and medical malpractice cases to ease "the unconscionable result to innocent victims who by exercising even the highest degree of care could not have discovered the cited wrong." This case does not involve any claim that [the victim] had repressed his memory of these incidents with [the choir director]. When [the victim] turned eighteen he was fully aware of [the choir director's] prior tortious actions. Although he might not have been aware of the full extent of his injuries at that time, he knew he had in fact been assaulted. Thus, there is no reason to toll the running of the statute of limitations.

This is an important development. Many adult survivors of child sexual molestation have brought lawsuits many years (and in some cases decades) after their 18th birthday, claiming that they had not "discovered" the nature and extent of their psychological harm until they sought professional counseling. A number of states (perhaps as many as 15) have adopted the so-called "discovery rule," under which the statute of limitations does not begin to run until an adult survivor of child sexual molestation discovers the nature and extent of his or her injuries, whenever that may occur. Of course, such a rule presents extraordinary difficulties for a church in attempting to defend itself. In some cases, church leaders cannot even remember the alleged molester, much less the precautions that were followed in selecting or supervising this person. Because of these difficulties, a majority of states have rejected the discovery rule.

This case illustrates the majority rule. But this case is important for another reason. The court rejected the victim's assertion that he was not aware of his injuries until he sought counseling when he was 25 years old. The court observed: "This case does not involve any claim that [the victim] had repressed his memory of these incidents with [the choir director]. When [the victim] turned eighteen he was fully aware of [the choir director's] prior tortious actions. Although he might not have been aware of the full extent of his injuries at that time, he knew he had in fact been assaulted."

What was the court saying? Simply this—adult survivors of child sexual molestation should not be permitted to sue churches years or decades after an incident of molestation simply by asserting that they were not aware of their injuries until they sought counseling. Of course, in some cases such a claim will be legitimate, particularly in cases involving molestation of young children. But when a victim is a teenager, such a claim will be more difficult to prove. Because of the almost impossible burden that is imposed on churches in such cases to disprove allegations of negligence for an alleged incident that occurred many years before, courts should view such claims of "delayed discovery" with skepticism. This reasoning will be useful to churches in those states that recognize the discovery rule.

Legal Developments

Can a Church Dismiss Members Who Sue the Church?

Court refused to issue an order prohibiting the church from conducting a meeting to dismiss the 75 members for suing the church.

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio
Categories: Church Members, First Amendment

Can a church dismiss members who sue the church? That was the issue before an Ohio court.

A local Baptist church experienced an ongoing internal dispute over whether or not to build a new sanctuary. A group of 75 members sued the church, pastor, and board of deacons, challenging certain decisions that had been made. The board of deacons later voted (9 to 5) in favor of recommending to the congregation that the membership of all 75 dissidents be terminated.

A congregational meeting was called to vote on the issue, but the dissidents immediately sought a court order preventing the meeting from occurring. The dissidents argued that their church membership was a valuable right (some of them were fifth generation members of the church) that was being denied by the church’s action. They also claimed that the church bylaws did not authorize the board to dismiss members for suing the church. The church bylaws did authorize discipline or dismissal on the basis of “immoral or un-Christian conduct,” but the dissidents argued that this language did not extend to lawsuits brought against the church. They stressed that the right to go to court for the redress of grievances is a fundamental civil right that was not specifically restricted by the church bylaws.

On the other hand, the church vigorously maintained that members who sue the church are guilty of “un-Christian” behavior since “there is a basis in Scripture for the exclusion from church membership of those who take church disputes outside the church for resolution.” The court agreed with the church, and refused to issue an order prohibiting the church from conducting a meeting to dismiss the 75 members for suing the church.

The court based its decision on a 1976 decision of the United States Supreme Court, in which the Supreme Court concluded that the civil courts must accept the decisions of hierarchical churches concerning discipline of members and clergy. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976). The Ohio court acknowledged that a Baptist church is “congregational” rather than hierarchical in structure, and accordingly the Supreme Court’s 1976 decision did not directly apply in this case. However, the court concluded that there should be no distinction between congregational and hierarchical churches regarding the effect of their decisions to discipline members. The court observed:

Creating a different standard for civil court review of church disputes for hierarchical and congregational churches would create differing levels of government intrusion into church affairs, presumably with more intrusion in the congregational houses of worship. But courts and government, under the first amendment, are required to treat all religious faiths equally and neutrally …. In light of this fundamental principle of neutrality, a civil court could not allow the decisions of a hierarchical church to go unchallenged while making detailed inquiries into the practices of a congregational church. Accordingly, the [the Supreme Court’s Serbian decision] should extend to congregational churches …. A secular court should not resolve disputes over who can be a member of a particular church regardless of whether that church is hierarchical or congregational.

The court also relied on the following language from an 1871 decision of the United States Supreme Court:

All who unite themselves to such a body [the general church] do so with an implied consent to its government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for. Watson v. Jones, 80 U.S. 679 (1871).

The Ohio court further observed that “recent cases from other jurisdictions support the concept that congregational churches are free from secular court scrutiny of their internal practices and discipline.” Noting that civil court review of church property disputes is very limited, the court concluded: “The first amendment concerns which militate against court entanglement with property disputes of religious groups would be even more strongly applicable to membership problems within churches. The question of who is one’s co-religionist is more nearly central to issues of faith and practice revered by the first amendment than secular concerns such as who has the deed to the house of worship.”

What this means for churches

This case is important because it supports the right of churches to dismiss members for suing their church. Further, the court conceded that the 75 members who sued their church had violated a church bylaw prohibiting “un-Christian” conduct. A church wishing to impose discipline on members who sue the church should amend its bylaws to clarify that suing the church will be deemed unscriptural and unacceptable conduct. Appropriate scriptural references (e.g., 1 Corinthians 6:1-8) should be cited. Alexander v. Shiloh Baptist Church, 592 N.E.2d 918 (Ohio Com. Pl. 1991).

Legal Developments

Recovery of Assets for an Estate

Court rejects church’s attempt to recover assets for an estate.

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio
Categories: Wills, Trusts, and Estates

Church Law and Tax 1992-07-01 Recent Developments

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

• An Ohio appeals court rejected a church’s attempt to recover assets for an estate of which it was a beneficiary. An individual (the “testator”) executed a will on February 7, 1990, leaving all his bank accounts to a church. On March 5, 1990, the testator and a friend went to the testator’s bank and, while there, the testator had all of his accounts and certificates of deposit placed in the joint names of himself and the friend as joint tenants with right of survivorship. The friend had not contributed to any of these funds and did not thereafter contribute anything to them. The testator died on August 29, 1990. On several occasions prior to the testator’s death, the friend withdrew varying sums of money from the joint and survivorship funds totalling approximately $118,000. Within hours after the testator’s death, the friend closed the last survivorship account by withdrawing the remaining balance. The church filed a complaint in the probate court alleging that the testator’s friend was in possession of assets belonging to the testator’s estate. The church asked the court to order the friend to return to the estate all monies he had taken from the testator’s bank accounts and certificates of deposit. The probate court refused to grant the church’s request. It found that there was clear and convincing evidence that the testator intended on March 5, 1990, to make his friend a co-owner of the accounts. The court found “particularly persuasive” the testimony of the branch manager at the bank on the issue of the intent of the testator on March 5, 1990, when the joint accounts were created.” This decision was appealed by the church to a state appeals court, which affirmed the probate court’s decision. St. James Episcopal Church v. Handorf, 1991 WL 261823 (Ohio App. 1991 unpublished).

© Copyright 1992, 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: m80 c0492

Legal Developments

Dismissed Ministers Sue Church and Denomination

Courts cannot intervene in ministerial employment disputes.

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio

Church Law and Tax 1992-07-01 Recent Developments

Clergy – Removal

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

• An Ohio appeals court dismissed a lawsuit brought by two dismissed ministers against their church and denomination. In 1983, a church hired a husband and wife as co-pastors. A contract was signed that specified that their ministry could be “terminated by either party upon 90 days written notice.” In 1987, the husband and wife were dismissed as pastors by the church. Later that year, they filed a lawsuit against their former church, alleging that (1) the church breached its oral commitment to them to retain them for “seven to ten years”; (2) the church dismissed them without “good cause”; (3) two church officers wrongfully interfered with their employment contract; (4) the church defamed them by publishing negative comments regarding their ministry and alleged financial misconduct: (5) the church (and two officers) subjected them to severe emotional distress by having their checks dishonored and by having the police physically remove them from the church during a worship service. A trial court dismissed the lawsuit on the grounds that the lawsuit “failed to state a claim upon which relief can be granted.” The former pastors appealed. A state appeals court upheld the dismissal of the lawsuit. The court began its opinion by observing that “the Supreme Court of the United States has established the general rule that religious controversies are not a proper subject of civil court inquiry, and that civil courts must accept ecclesiastical decisions of church tribunals as it finds them.” In rejecting the co-pastors’ first two claims, the court observed: “The question of just cause under either an oral or written contract necessarily concerns internal church discipline governed by ecclesiastical rule, custom, and law.” In rejecting the co-pastors’ third claim, the court noted: “According to the constitution and bylaws [of the church] the officers … comprise the general board. If involuntary termination is deemed appropriate by the general board, the board shall make appropriate recommendations to the congregation for its vote. Review of subjective judgments by religious officers and bodies, such as involuntary termination of co-pastors, necessarily requires inquiry into ecclesiastical matters. Civil courts cannot constitutionally intervene in such a dispute.” In rejecting the claim of defamation against the church for publishing remarks critical of the co-pastors’ ministry and financial dealings, the court concluded: “One who falsely and without a privilege to do so publishes a slander which ascribes to another conduct, characteristics, or a condition incompatible with the proper conduct of his lawful business, trade, or profession is liable to the other. However, inquiry by a civil court into the truth or falsity of the statements by [church officials] would require review of subjective judgments made by religious officers and bodies concerning [the co-pastors’] conduct of the pastorate and financial misdealings. Inquiry would be ecclesiastical in nature and constitutionally prohibited.” In rejecting the co-pastors’ fifth claim, the court observed: “[W]e may not inquire into the propriety of [the co-pastors’] involuntary termination. Once they were terminated from employment, the [church] could use any legal means to prevent them from gaining access to church property.” The court acknowledged that the United States Supreme Court has authorized civil courts to resolve church property disputes by applying nondoctrinal “neutral principles of law.” However, it emphasized that the “neutral principles doctrine has never been extended to religious controversies in the areas of church government, order and discipline.” Accordingly, it had no application in a case involving pastoral termination. Salzgaber v. First Christian Church, 583 N.E.2d 1361 (Ohio App. 1991).

Zoning Law and Church Property

Does a Little League program violate zoning law?

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio
Categories: Church Property, Zoning

Church Law and Tax 1992-03-01 Recent Developments

Zoning

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

• An Ohio appeals court ruled that a church could use its property to conduct a “Little League” baseball program, despite the claim of a neighbor that such use violated local zoning law. A Methodist church established a baseball diamond on vacant land that it owned in order to operate a Little League baseball program. The church maintained that it is a fundamental tenet of Methodism that worship involves not only religious services, but also reaching out to the community through sponsorship of activities such as scouting and Little League. The baseball program sponsored by the church is for children ages 6 to 12. The season extends from April to late June, during which time about 4 games are played each week from 6 to 8 p.m. on weekdays and on Saturday mornings. To reduce parking problems in front of the complaining neighbor’s house, “no parking” signs were installed on his property and orange pylons were placed in front of his property during games. Despite these precautions, the neighbor sued the church, demanding that the baseball program be discontinued. He claimed that the program violated local zoning law. The church property was located in a residential zone, which permitted churches and “church use.” A trial court agreed with the neighbor that the operation of a baseball program on church property was not a permitted use of church property in an area zoned for “church use.” The church appealed. A state appeals court agreed with the church and permitted the baseball program to continue. The court observed: “The trial court appears to suggest that a church is only a building and any use of the building or land adjacent must be necessary to the operation of that building as a church. We disagree.” The court noted that the Ohio Supreme Court had not addressed this issue specifically, but that courts in other states had done so and they generally ruled in favor of the church. For example, one court in a similar case concluded:

A church is more than merely an edifice affording people the opportunity to worship God. Strictly religious uses and activities are more than prayer and sacrifice and all churches recognize that the area of their responsibility is broader than leading the congregation in prayer. Churches have always developed social groups for adults and youth where the fellowship of the congregation is strengthened with the result that the parent church is strengthened. To limit a church to being merely a house of prayer and sacrifice would, in a large degree, be depriving the church of the opportunity of enlarging, perpetuating, and strengthening itself and the congregation.

Accordingly, the Ohio court concluded that “activities such as sponsoring a Little League baseball program on land owned by, and adjacent to, the [church] are incidental to, and form a part of, the public worship program of [the church] and are permitted under the city zoning ordinances as a church use.” The court emphasized that zoning ordinances must be construed “in favor of the property owner” (whose use of property is being questioned) and “in favor of the free use of property.”

The neighboring landowner, in his defense, pointed out that the church had been denied a tax exemption for the baseball field on the ground that it was not necessary for purposes of religious worship. The court rejected the relevance of this argument, pointing out that statutes allowing a tax exemption for houses of public worship are to be strictly construed against the property owner, whereas zoning ordinances are to be construed in favor of the property owner. This case represents a balanced interpretation of the term church use in the context of a municipal zoning ordinance, and it should be of use to several churches both in Ohio and in other states. Cash v. Brookshire United Methodist Church, 573 N.E.2d 692 (Ohio App. decided 1988, reported 1991).

Church-Run Schools and the Equal Pay Act

An Ohio court ruled that a church-operated school is subject to the Act.

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio
Categories: Schools

Church Law and Tax 1991-11-01 Recent Developments

Employee Relations

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

• A federal district court in Ohio ruled that a church-operated school was subject to the Equal Pay Act. The school, consisting of instruction from preschool through secondary levels, was operated by four Church of Christ congregations. The school adopted a policy of paying its teachers who qualified as a “head of household” an additional allowance of $1,500 per year. A “head of household” was defined as a teacher who was married with dependent children. The sponsoring churches adhered to the conviction that the Bible places the responsibility of the “head of a family” on the husband. Accordingly, the head of household allowance was not paid to a female unless her husband was either absent or unable to work. The Equal Employment Opportunity Commission (“EEOC”) charged the school with violating the Equal Pay Act, and demanded that all employees be paid the head of household allowance (regardless of gender). The EEOC also ordered the school to pay “back pay” of $132,000 to female employees who had been denied the allowance in the past. The school maintained that (1) the Equal Pay Act did not apply since the school’s alleged discrimination was not based on gender (but rather adherence to a religious principle), (2) the teachers were “ministers” and as such were not subject to the Act, and (3) application of the Act to the school employees violated the first amendment guaranty of religious freedom. The court rejected all of the school’s defenses, and ruled in favor of the EEOC. The court began its opinion by noting that the provisions of the Equal Pay Act (a part of the federal minimum wage and overtime compensation law) specifically apply to the employees of church-operated schools. The court then rejected each of the school’s 3 defenses. In rejecting the school’s first argument, the court insisted that the school’s “head of household” allowance policy was in fact based on gender “albeit as a means of giving witness to a religious belief that men and women occupy different family roles.” In rejecting the school’s second argument, the court acknowledged that the teachers and administrators viewed themselves as teachers of the Christian faith who considered their work religious ministry and a religious calling. The court responded to this perception by noting that the school’s “designation of these persons as ‘ministers’ for religious purposes does not determine their extra-religious legal status. There is no indication that any of the teachers are ordained ministers of the churches, nor do they perform sacerdotal functions. Although it appears undisputed that the principles of the Christian faith pervade the school’s educational activities, this alone would not make a teacher or administrator a ‘minister’ for purposes of exempting that person from the [Fair Labor Standards Act’s] definition of ’employee.'” In rejecting the school’s third argument, the court concluded that “the compelling interests underlying the Equal Pay Act substantially outweigh its minimal impact on [the school’s] religious beliefs …. [The school] remains free to practice its religious beliefs in ways that do not unlawfully discriminate in its wage scales on the basis of gender. Accordingly, the court finds the [school’s] free exercise argument is without merit.” In support of its decision, the court noted that while the school insisted that the Bible makes a distinction between the familial roles of men and women, “it concedes that the Bible does not mandate that men must be paid more than women for identical tasks.” E.E.O.C. v. Tree of Life Christian Schools, 751 F. Supp. 700 (S.D. Ohio 1990).

Fair Labor Standards Act

© 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: m42 m65 m43 c0691

Legal Developments

Child Care Worker, Dismissed for Striking Child, Sues Former Employer

An Ohio court recently faced a difficult issue.

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio
Categories: Breach of Contract, Child Abuse

Church Law and Tax1991-07-01Recent Developments

Child Abuse

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

• Can a child care worker who is dismissed for striking a child sue the child care facility for breach of contract and defamation? That was the difficult question presented to an Ohio state appeals court. A child care center hired a woman as the head teacher in a class of 2-year-old children. The center enrolled a 2-year-old boy who cried a great deal during his first few days at the facility. An employee informed the director that the teacher in the 2-year-old class had struck the boy. When the director entered the classroom, she saw the boy crying hysterically. As she was removing the boy from the room, she noticed a hand-mark on his face. Upon being questioned, the boy stated (and demonstrated) that the teacher had put her hand over his mouth and shook him. The teacher was confronted with this information, but denied it. However, she offered no other explanation as to the boy’s condition. The director was not satisfied that the teacher was being truthful, and accordingly she dismissed her. A teaching assistant later confirmed that the teacher had abused the boy by putting her hand over his mouth, shaking him, and telling him to “shut up.” The director later reported the incident to the boy’s mother, and to the state department of human services. The fired teacher sued the center, alleging defamation and breach of contract. She claimed that the center’s personnel manual constituted a contract, and that the center “breached the contract” by terminating her without utilizing “progressive discipline,” and by terminating her without “good cause.” She claimed that these actions were required by the personnel manual. Further, the fired employee claimed that she had been defamed by the director’s communications to the boy’s mother, to other workers at the center, to the president of the center’s board of directors, and to the state. A trial court rejected all of the teacher’s claims, and dismissed the lawsuit. The teacher appealed to a state appeals court, which also rejected her claims. The court noted that the teacher was an “employee at will” since she had been hired for an indefinite term. As an employee at will, she could be dismissed at any time for any reason. The court rejected the teacher’s claim that the personnel manual limited the center’s right to terminate her. It noted that the manual “specifically states that hitting or abusing a child is grounds for termination of service.” In rejecting the defamation claim, the court noted that the director was required by state law to report suspected cases of abuse to the department of human services, and so this communication did not constitute defamation. Further, there was no evidence that the director ever informed other workers at the center as to the reason that the teacher had been terminated. With respect to the communications made to the boy’s mother, and to the president of the center’s board of directors, the court concluded that such communications “enjoyed at least a qualified privilege” since they were matters of “common interest.” As such, the communications would not be defamatory unless they were made with “malice.” The court observed that “the record is devoid of evidence of actual malice on the part of [the director in communicating] the statements. On the contrary, the record reveals that [she] acted properly and reasonably under the circumstances.” Lail v. Madisonville Child Care Project, 561 N.E.2d 1063 (Ohio App. 1990).

Child Abuse Reporting | Failure to Report Child Abuse | Child Abuse Reporting | Child Abuse Reporting by Child Care Workers

Legal Developments

Sales Tax and Religious Organizations

The Ohio Supreme Court recently ruled on this issue.

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio

Church Law and Tax 1991-03-01 Recent Developments

Taxation – Sales

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

• The Ohio Supreme Court ruled that a religious organization was not liable for sales taxes on its purchases within the state. Ohio law exempts from sales tax any sale of property “to churches.” State law further provides that no exemption applies to sales made in the course of any “trade or business.” The state assessed taxes on most purchases made by a religious organization known as “The Way.” It disputed the organization’s claim that it was a “church,” and also concluded that the organization’s sales of books and tapes constituted a “trade or business” that precluded any tax exemption. The state supreme court ruled in favor of the organization. First, it concluded that the organization was a church: “It has adherents. It adopts the Bible as the main source of its dogma, it propagates a comprehensive set of religious objectives and beliefs which attempt to answer its adherents’ religious concerns, and it conducts services …. It employs ministers who preside at sacramental ceremonies, operates schools to train ministers, and sends forth missionaries to spread its beliefs.” Second, the court ruled that the organization’s sale of tapes and records did not constitute a “trade or business.” It concluded that the organization “advances religion by selling these materials. Despite receiving more for these items than it paid for them, The Way did not distribute any profit to its trustees, officers, or employees, but, instead, paid them modest salaries. The Way accumulated these profits and expanded its operations, including building a new church facility. Moreover, The Way’s prime source of funding came from voluntary contributions. The Way’s motive is to advance its religion, and it employs books and tapes in a functionally related way to accomplish this. Selling books and tapes to its followers is not a business but a means to its religious ends.” The Way International v. Limbach, 552 N.E.2d 908 (Ohio 1990).

Legal Developments

Dismissed Member Sues Church

The First Amendment prevents courts from resolving such cases.

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio

Church Law and Tax 1991-01-01 Recent Developments

Church Membership

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

• A federal district court in Ohio ruled that the constitutional guaranty of religious freedom prevented it from resolving a lawsuit brought by a dismissed church member against her former church. A member of a local Baptist church had been active in church activities for 40 years. In 1984, the church’s pastor resigned, and the member assisted him in relocating to another church. The new pastor intepreted the member’s actions in assisting the former pastor as a resignation of her membership, and he transferred her membership to the former pastor’s new church. The member insisted that she was merely “helping a friend,” and had no intention of resigning her membership or transfering to the new church. Nevertheless, the church terminated her membership and treated her like a non-member, refusing to allow her to vote in church elections and attempting to bar her from attending church services. The former member filed a lawsuit, asking a court to rule that she was still a member in good standing since the church had acted “arbitrarily” in dismissing her. She also sought monetary damages for “emotional distress.” The federal court began its opinion by observing that it was being asked to resolve “what the courts have recognized as the most intractable of disputes—a church fight.” The court observed that the constitutional guaranty of religious freedom prevents the civil courts from resolving church disputes that “require extensive inquiry into matters of ecclesiastical cognizance.” It acknowledged that there were a few narrow exceptions to this rule. However, it emphasized that the United States Supreme Court ruled in 1976 that the civil courts cannot disturb the decision of a church tribunal on the ground that the decision was “arbitrary” (i.e., the church tribunal did not follow its stated procedure). It observed that the Supreme Court’s ruling involved a “hierarchical” church, but it could “discern no justification for refusing to apply the … analysis and reasoning of the Supreme Court … involving hierarchical churches to this case” (involving a “congregational” church). As a result, if the church’s decision to terminate the woman’s membership was a matter of “ecclesiastical cognizance,” then the constitution prohibits the civil courts from addressing the member’s allegations whether or not the church was hierarchical or congregational in structure. The court concluded that it could think of no matter that would “more directly implicate ecclesiastical considerations” than church membership determinations. As a result, “this court must not interfere with the fundamental ecclesiastical concern of determining who is and who is not a [church] member.” It added that “the mere expulsion from a religious community is not a harm for which courts can grant a remedy.” The court acknowledged that the dismissed member insisted that the church had violated its own internal rules in terminating her membership. However, it insisted that the Supreme Court’s 1976 ruling prevented the civil courts from reviewing and overruling church decisions solely on the ground that the church failed to follow its own internal rules and procedures. Such decisions, though “arbitrary,” are not reviewable by the civil courts. To rule otherwise would “undermine the general rule that religious controversies are not the proper subject of civil court inquiry.” The court added: “By its very nature, the inquiry which the [former member] would have the court undertake into the circumstances of her termination plunges an inquisitor into a maelstrom of church policy, administration, and governance. It is an inquiry barred by the [constitution] … even if the termination was a simple mistake or was arbitrary and not in accordance with the procedures set out in the [church’s] constitution.” The court also rejected the former member’s claim for money damages based on her alleged “emotional distress.” Such a claim is “so inextricably linked” with matters of “ecclesiastical cognizance” protected by the constitution, that it is barred. The “constitutional guaranty of the free exercise of religion requires that society tolerate the type of harms suffered by the [former member] as a price well worth paying to safeguard the right of religious difference that all citizens enjoy.” This case is significant for the following reasons: (1) It recognizes that churches have broad authority and independence in membership determinations. Such determinations have constitutional protection. While it would be unwise to assume that this authority is without limit, it is nevertheless a substantial freedom. (2) The court applied the Supreme Court’s 1976 decision to a congregational church. The Supreme Court’s decision applied to a hierarchical church, and some have questioned whether or not the ruling would apply with equal force to congregational churches. Of course, only the Supreme Court can say whether or not it intended its earlier ruling to apply to congregational churches. However, until it does so, decisions by the lower federal courts to apply the ruling to congregational churches are significant precedents. Burgess v. Rock Creek Baptist Church, 734 F. Supp. 30 (D.D.C. 1990).

Legal Developments

Personal Injuries – Part 1

On Church Property or During Church Activities

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1990-05-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Is a church responsible for the homosexual rape of a 6-year-old boy occurring on church property during Sunday School? That was the issue before an Ohio state appeals court in a significant ruling. The boy attended a Sunday School class of about 45 first and second graders at a Nazarene church. One adult female teacher was present on the day of the rape along with two teenage volunteers (one male and one female). During “story time,” the victim became disruptive, and the teacher allowed the male volunteer to “take him back and color” in an unused room. The adult teacher did not check on the boy for the remainder of the Sunday School session. The boy’s mother alleged that the male volunteer took her son to an unused room, slapped him into submission, raped him, and threatened to hurt or kill him if he “told anyone.” The boy and his mother later sued the church, the pastor, the Sunday School teacher, and the alleged rapist and his parents. The lawsuit sought money damages for personal injuries, emotional distress to the mother, loss of services, and medical and psychological expenses. With regard to the church, the lawsuit alleged that the boy’s injuries were a result of the church’s “negligent supervision” of its agents, and that the church had “willfully, wantonly and recklessly placed [the alleged rapist] in a position of control and supervision of the child, causing the aforesaid injuries.” The pastor and Sunday School teacher were sued personally for negligent supervision and negligently allowing the alleged rapist to have custody of the boy. A trial court awarded a “summary judgment” in favor of the church, and its pastor and Sunday School teacher. The victim and his mother appealed this judgment, and a state appeals court affirmed the trial court’s ruling. The appeals court noted that the church and its pastor and teacher were being sued for negligence, and it observed that “legal liability for negligence is based upon conduct involving unreasonable risk to another, which must be established by affirmative evidence tending to show that such conduct falls below the standard represented by the conduct of reasonable men under the same or similar circumstances. The established test of negligence is the conduct of a reasonably prudent man in like circumstances. [N]egligence does not consist of failing to take extraordinary measures which hindsight demonstrates would have been helpful.” The court further observed that a church is “not an insurer of the safety” of persons on its premises, but rather has only a “duty of ordinary care to avoid injury consistent with [existing] facts and circumstances.” Did the church and its pastor and teacher violate this duty of ordinary care toward the victim and his mother? No, the court concluded. It emphasized that the victim and his mother “have presented no evidence that [the church or its pastor or teacher] knew, or in the exercise of reasonable diligence should have known of or anticipated a criminal sexual assault by [the alleged rapist] upon another.” The victim and his mother placed great significance upon evidence that “a similar incident had occurred several years earlier.” In rejecting the relevance of this evidence the court observed simply that “there is no evidence that the church or its agents knew, or in the exercise of diligence, should have known of such prior activity.” Finally, the court noted that the victim and his mother cited no legal authority in support of their position. As a result, the appeals court upheld the summary judgment in favor of the church and its pastor and teacher. This ruling is significant for a number of reasons. First, it illustrates that churches are not “guarantors” or insurers of the safety of children (or adults) on their premises. They are legally responsible only for those injuries caused by a breach of their duty or ordinary care. Second, the appeals court’s ruling affirmed the trial court’s summary judgment in favor of the church and its pastor and teacher. The significance of a summary judgment cannot be overstated, since it represents a decision that the prevailing party is entitled to win as a matter of law without the necessity of a jury trial. The court in essence says that reasonable minds could not disagree as to the outcome of the case, and therefore it should be disposed of summarily. Such a ruling is an especially strong statement of the merits of the prevailing parties’ position. Clearly, it is a much stronger vindication of the position of the church and its pastor and teacher than a jury verdict in their favor. Third, the court hinted that its decision might have been different had the church (or its pastor or teacher) been aware of prior incidents of molestation by the alleged rapist. The court’s ruling was based squarely on the assumption that no such knowledge existed. Fourth, it is interesting that the church was not found negligent in having only one adult supervisor for a class of 45 first and second graders. Other churches should not take comfort in this aspect of the court’s ruling, for it is entirely possible that courts in other states would find such a low teacher-pupil ratio to be evidence of negligence. Finally, note that the court did not rule in favor of the alleged rapist or his parents. The liability of these persons will be decided by a jury. It will be interesting to see if the jury finds the alleged rapist’s parents responsible for the boy’s injuries. Any further developments in this case will be reported in future editions of Church Law & Tax Report. Bender v. First Church of the Nazarene (Ohio App. unpublished opinion 1989).

© Copyright 1990, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m58 m86 m10 m67 c0390

Legal Developments

Wills, Trusts and Estates – Part 1

Church Law and Tax 1990-05-01 Recent Developments Wills, Trusts and Estates Richard R. Hammar, J.D.,

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio
Categories: Wills, Trusts, and Estates

Church Law and Tax 1990-05-01 Recent Developments

Wills, Trusts and Estates

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

• An Ohio state appeals court was asked to determine whether an ambiguous clause in a decedent’s last will and testament left her estate to a local Methodist church. The will, which was executed in 1951, conveyed a large portion of the estate to a local charity with the stipulation that the funds be used to “build.” If the charity did not use the funds to “build” within 10 years of receipt, then the funds (with interest) were to be distributed to a local Methodist church. Following the decedent’s death in 1984, the charity accepted its share of the estate, and proposed to use the funds to remodel its present structure rather than build a new one. A trial judge ruled that the term “build” (as contained in the will) meant either to build a new building or remodel the current facility. The church appealed this decision, and a state appeals court ruled that “simply put, ‘build’ means [to] build.” The court continued, “the word ‘build’ is defined in Webster’s New World Dictionary as ‘to make by putting together materials, to construct.’ The words ‘remodel’ and ‘refurbish’ are not synonyms for the work ‘build.'” Accordingly, the appeals court concluded that if the charity did not use the funds to build a new facility, then the funds had to be transferred to the church. Riegel v. United Methodist Church (Ohio App. unpublished opinion 1989).

Legal Developments

Personal Injuries – Part 1

On Church Property or During Church Activities

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio

Church Law and Tax 1989-11-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Is a church legally responsible for the emotional distress suffered by the parents of a three-year-old child who wandered away from a church-operated child care center and who was found and returned unharmed by a neighbor two hours later? No, concluded a state appeals court in Ohio. The parents had dropped their child off at the church in the morning, and were called later that day by a church employee who informed them of the incident. The parents claimed to have suffered “severe emotional distress” as a result of the incident, and they sued the church on account of its “negligent infliction of emotional distress.” A trial court ruled in favor of the church, and the parents appealed. The state appeals court also ruled in favor of the church. It noted that under Ohio law the parents’ claim of “negligent infliction of emotional distress” required a finding that their emotional distress was a “reasonably foreseeable” consequence of the church’s negligence. “Reasonable foreseeability,” observed the court, requires three findings—(1) the parents were near the scene of the accident, not a distance away; (2) the parents “contemporaneously observed” the accident rather than learn about it from others some time later; and (3) the parents and the victim (the child) were related. Since the parents were “not near the scene of the incident” and “did not observe [their son’s] wandering but learned of it hours later after [his] safe return,” their emotional distress was not reasonably foreseeable and accordingly the church was not liable for negligent infliction of emotional distress. Of course, had the child not been found, or had he suffered any type of injury, the church could have been sued for “negligent supervision” of children under its custody and control. There is little doubt that the church would have been legally liable in such a case. Therefore, the Ohio ruling should not be interpreted as creating any form of legal immunity for churches that operate child care centers. The court ruled in favor of the church solely because the child had been returned unharmed, and the parents were unable to prove all of the technical elements necessary to support their claim of negligent infliction of emotional distress. Edwards v. Mt. Washington Baptist Day Care Center, 541 N.E.2d 465 (Ohio App. 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: m58 m86 m11 c0689

Legal Developments

Zoning

Church Law and Tax 1989-07-01 Recent Developments Zoning Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio
Categories: Church Property, Zoning

Church Law and Tax 1989-07-01 Recent Developments

Zoning

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

• What recourse does a church have if a city encourages it to purchase property for the construction of a new facility and then denies the church’s application for a building permit and site approval? None, concluded the Ohio Supreme Court in an unfortunate decision. Church representatives initially met with city officials to explain their plans for the construction of a three-stage religious complex (the third stage involved the construction of a chapel). City officials, by letter, encouraged the church to purchase the property. Accordingly, the church sold its former sanctuary, spent nearly $1.5 million to purchase the new property, began conducting services in a local public high school auditorium, and submitted a site plan to the local building commissioner. To the church’s surprise, the building commissioner rejected the site plan for the following reasons: (1) increased traffic congestion; (2) auxiliary buildings (e.g., a gymnasium, administrative facility, classroom, library) planned by the church were to be constructed prior to the chapel, and accordingly were not permitted uses since they were not “accessory” to a pre-existing church building; and (3) soil erosion and water runoff. Nevertheless, the church applied for a building permit, which was rejected by the city. The church then sued the city, seeking a court order compelling the city to approve the site plan and building permit. A state appeals court granted the city’s motion to dismiss, and the church appealed to the state supreme court which also ruled in the city’s favor. The supreme court observed that “a church is a permitted use in the zoning district in which the property is located. However, absent construction of the church … the accessory buildings, which are to be built first, are not allowed uses. In addition, [the church] did not attempt to resolve problems with soil erosion, drainage and traffic enumerated by the planning commission.” The court conceded that “given a resolution of the problems concerning land use and the sequence of construction, plan approval and a building permit could issue.” A dissenting justice stressed that: (1) under Ohio law it was not proper to deny a site plan or building permit because of fears of increased traffic congestion; (2) the church had agreed, before it submitted its site plan for approval, to construct the chapel prior to the “accessory buildings”; and (3) the soil erosion and water runoff problems were adequately dealt with in the church’s site plan. The dissenter concluded that “the planning commission’s disapproval of the site plan simply because it prefers that the land not be used as it is zoned constituted unlawful rezoning without legislative action and is an abuse of discretion.” The Chapel v. City of Solon, 530 N.E.2d 1321 (Ohio 1988).

Legal Developments

Clergy – Part 3

Malpractice

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio
Categories: Clergy Malpractice, Malpractice

Church Law and Tax 1989-01-01 Recent Developments

Clergy – Malpractice

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

• The Ohio Supreme Court recently addressed the issue of clergy malpractice. Here are the facts. A husband and wife who had been experiencing marital problems went to a Lutheran minister for counseling. They selected him because “he held himself out to the public … as a minister and counselor trained and able to provide counseling for marital difficulties.” During the final three or four weeks of counseling, the minister allegedly engaged in consensual sexual relations with the wife. These relations, and the counseling, ended when the husband learned of the affair. The husband, who was later divorced from his wife, sued both the minister and his church. The suit against the minister alleged “clergy malpractice,” breach of fiduciary duty, fraud, misrepresentation, nondisclosure, and intentional infliction of emotional distress. The suit against the church alleged liability based on negligent supervision and negligent training of the minister. The husband alleged that the minister’s actions resulted in his divorce and caused him to suffer “mental and emotional anguish, shock, nervousness, and depression.” A trial court dismissed both suits, and a state appeals court ruled that the husband could sue the minister for intentional infliction of emotional distress (it dismissed all of the other allegations). The case was then appealed to the state supreme court, which dismissed all of the husband’s charges against both the minister and church. The supreme court began its decision by acknowledging that clergy are not immune from legal liability for their actions. It observed that “religious leaders have been held liable for obtaining gifts and donations of money by fraud; for undue influence in the transfer of property; for the kidnapping of a minor; for unlawful imprisonment; and for homosexual assault.” The first amendment guaranty of religious freedom did not prevent liability in these cases, and did not protect the minister in the present case, since “we find it difficult to conceive of pastoral fornication with a parishioner or communicant as a legitimate religious belief or practice in any faith.” The court then proceeded to reach the following conclusions: (1) the minister was not guilty of clergy malpractice since malpractice implies negligent conduct and the minister’s actions were intentional in nature; (2) the allegation of intentional infliction of emotional distress failed since this allegation “in truth and effect asserts an action for … alienation of affections” (i.e., enticing a spouse to lose his or her affections for the other spouse)—and such a tort was abolished by the Ohio legislature in 1978; and (3) the allegations of breach of fiduciary duty, fraud, misrepresentation, and nondisclosure were similarly rejected, since they all sought damages based on the minister’s seduction of the wife, and as such were barred by the state law prohibiting lawsuits based on “alienation of affections”. The court also concluded that the church was not liable: “[A]n underlying requirement in actions for negligent supervision and negligent training is that the employee is individually … guilty of a claimed wrong against the employer. Because no action can be maintained against [the minister] in the instant case, it is obvious that any imputed actions against the church are also untenable.” The court emphasized that it found the alleged conduct on the part of the minister to be “reprehensible,” but concluded that there was no basis for relief available to the husband. A dissenting judge expressed outrage at the result reached by the court, and observed: “[The husband] and his wife sought counseling from [the minister] in order to overcome their marital problems. Not only was [the minister] aware that such problems existed, but he was consulted for those very problems. Armed with this knowledge and cognizant of the great emotional strain and vulnerability experienced by his clients at that time, it is alleged that [the minister] sought not to remedy the situation but rather to exploit his position in order to obtain sexual gratification. Given [his] knowledge and experience, there exists a jury question as to whether he intentionally sought to inflict emotional harm upon [the husband].” Stock v. Pressnell, 527 N.E.2d 1235 (Ohio 1988).