Tennessee

Legal Developments

Child’s Injury Raises Questions of Church Liability

The case highlights the duty churches have to promptly identify and correct dangerous conditions.

Richard R. Hammar, Attorney, CPA
Bio

Key point 7-20.2 . A variety of defenses are available to a church that is sued as a result of an injury occurring on its premises.

A Tennessee court ruled that a church was not liable for severe injuries sustained by a five-year-old child who came into contact with a high-voltage power line on church property.

Downed, 4,000-volt power line causes severe injuries

When a church member arrived at church on a Saturday morning to teach a children’s Bible study, she learned that there was a power outage. Undeterred, she taught class by the light from the windows.

During the day, the class broke twice for the children to play outside. The children played in a mowed, grassy area between the fellowship hall and the sanctuary building; the grassy area was bounded by the fellowship hall and the sanctuary buildings on one side and woods on the other. The children played in the grassy area during their two breaks without incident.

After the Bible study, a five-year-old child returned to the same grassy area to play. Around 2 p.m., the child came in contact with a downed, 4,000-volt power line owned by a local utilities company. The shock produced by the power line burned over 40 percent of the child’s body and led to the amputation of his right hand and forearm.

The child’s parents sued the church.

­­They conceded that there was no evidence that the church created the dangerous condition that caused the child’s injuries, and that the church lacked actual notice of the dangerous condition, but they insisted that the church had “constructive notice” of the dangerous condition.

Constructive notice refers to knowledge of a fact that a person should have had upon the exercise of reasonable diligence. The trial court concluded that the church lacked constructive notice and dismissed the case.

The parents appealed.

Appeals court affirms dismissal

The appeals court affirmed the trial court’s dismissal of the case. It began its opinion by observing:

In a premises liability case, a plaintiff may establish constructive notice in two ways.

A plaintiff may (1) prove that a dangerous condition existed for such a length of time that a reasonably prudent property owner should have been aware of the dangerous condition’s existence or (2) prove that the dangerous condition resulted from a pattern of conduct, a recurring incident, or a general or continuing condition … The parents contend that they established constructive notice by proving that a dangerous condition existed for such a length of time that the church should have been aware of its existence.

The parents offered the affidavit of a licensed electrical engineer opining as to when the power line was downed.

The engineer testified that the power line was likely downed two days prior to the accident at 11:00 a.m. when a thunderstorm came through the area. And the power line was certainly down the morning prior to the accident when the church received an automated report of a “lost meter.”

Although a meter may not respond for other reasons, the most likely reason was the disruption of power caused by the downed power line. According to the parents “surely at least 26 hours is more than enough [time] for constructive notice.”

Generally, a jury must decide whether a dangerous condition existed long enough that a reasonably prudent property owner should have been aware of it. But the time element is not the only consideration in determining whether there is constructive notice of a dangerous condition. In addition to the time element, constructive notice requires some material competent evidence from which it can be logically inferred that the [church], by the exercise of ordinary care, would have or should have discovered the dangerous condition.

Here, such evidence is lacking. … But nothing indicates that the church would have or should have discovered the downed power line prior to the accident. …

Because the church did not cause the downed power line, in order to establish its liability, the parents had to prove that the church had either actual or constructive notice of the dangerous condition.

They conceded that the church lacked actual notice. … We conclude that the parents could not show that the church had constructive notice of the dangerous condition. They presented no evidence from which it could be logically inferred that church, by the exercise of ordinary care, would have or should have discovered the downed power line prior to the accident.

What this means for churches

This case illustrates an important legal principle.

Like any landowner, churches may be liable for injuries on their property due to a dangerous condition if they either created the condition or had actual or constructive notice of it.

Constructive notice refers to a dangerous condition that existed for such a length of time that the church should have been aware of its existence.

The principle of constructive notice imposes a duty on churches to regularly inspect their premises and promptly correct dangerous conditions.

A failure to do so may result in liability for injuries that occur.

Kelly v. Tewahedo Church, 2022 WL 202639 (Tenn. App. 2022)

Legal Developments

A Fired Pastor’s Defamation Suit Is Dismissed

Appeals court said the lawsuit was barred due to the “ecclesiastical abstention doctrine.”

Richard R. Hammar, Attorney, CPA
Bio

Key point 2-04.01. Most courts have concluded that they are barred by the First Amendment guarantees of religious freedom and nonestablishment of religion from resolving challenges by dismissed clergy to the legal validity of their dismissals.

A Tennessee appeals court ruled that a dismissed pastor’s defamation lawsuit against his former church was barred by the “ecclesiastical abstention doctrine.”

Background

A church’s board of elders called an emergency meeting to address inappropriate Facebook communications the pastor had with a female member of the congregation.

At this meeting the pastor’s resignation was requested. The pastor refused to tender his resignation, and thereafter he received a termination letter from the church that he refused to honor. As a result, a second termination letter was delivered to him. The pastor continued to defy the elders’ efforts to remove him from his position.

Pastor: church’s action not protected by the ecclesiastical abstention doctrine

The pastor sued his church, claiming it defamed him based on the following statements:

  • Communications made by church elders to a sound booth operator at the church, among others, about an improper relationship between the pastor and the sound booth operator.
  • Email and correspondence from the church’s administrative assistant informing the congregation of the pastor’s termination. The church’s elders had authorized sending the email to the church’s email distribution list.

The pastor insisted that any communications concerning his alleged inappropriate relationship with the sound booth operator had no connection to any ecclesiastical action or decision and, therefore, were not protected by the ecclesiastical abstention doctrine.

He also claimed that sending emails to the church’s email distribution list informing the congregation of the pastor’s termination did not trigger the ecclesiastical abstention doctrine, and therefore he could maintain his defamation lawsuit against the church.

The defamation claim was dismissed by the trial court on the basis of the ecclesiastical abstention doctrine. The pastor appealed this ruling to a state appeals court.

Appeals court: the trial court “was not in error”

The appeals court noted:

The ecclesiastical abstention doctrine, also commonly known as the church autonomy doctrine, precludes civil courts in this country from adjudicating “questions of discipline, or of faith, or ecclesiastical rule, custom, or law” or church polity, or the internal governance of religious organizations. . . .

The concern undergirding the ecclesiastical abstention bar is that “[i]f secular courts were to become embroiled in ecclesiastical controversies within a religious body, those courts would be allowed, or required, to substitute their judgment for that of church governing bodies on issues of doctrine, belief, or practice.”

Regarding defamation claims specifically, the court noted that “‘[a] number of courts have held that defamation claims arising out of minister employment or discipline disputes are outside the subject matter jurisdiction of the courts because all matters touching the relationship between pastor and church are of ecclesiastical concern and not subject to court review.’”

The court further noted:

“[T]he protection afforded by the First Amendment to church disciplinary proceedings applies to statements made after the church’s decision if the statements or actions are merely implementation of, still part of, inextricably related to, or a consequence of the decision.” . . . [F]or instance, “[a] church’s communication of the fact and reason for excommunication are protected from judicial inquiry and review . . . is as much within the rights protected by ecclesiastical abstention as is the church’s right to take such actions, even though it may carry some kind of negative implication about the expelled member.”

The court conceded that while “the bar posed by the ecclesiastical abstention doctrine is no doubt generally weakened with respect to statements made outside church membership, the ultimate issue is still whether the alleged defamations arise from or are inextricably linked to the protected religious decision.”

In rejecting the pastor’s defamation claims, the court concluded:

In the final calculus, “[c]onduct that is inextricably tied to the disciplinary process of a religious organization is subject to the First Amendment’s protection just as the disciplinary decision itself.” . . . Indeed, reviewing all of the asserted defamations in this case, they are, in our view, “too close to the peculiarly religious aspects of the transactions to be segregated and treated separately—as simple civil wrongs. . . . We, therefore, conclude that the trial court’s reliance on the ecclesiastical abstention doctrine was not in error. Accordingly, we affirm its summary dismissal of the pastor’s [defamation] claims.

What this means for churches

This case illustrates an important point. The ecclesiastical abstention doctrine precludes civil courts from adjudicating challenges by dismissed clergy over the legality of their dismissal, but it also bars the resolution of ancillary claims, such as defamation, breach of contract, and emotional distress, that result from the dismissal. Maize v. Friendship Church, 2020 WL 6130918 (Tenn. App. 2020)

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Legal Developments

“Church Autonomy” Applies in Church Name Dispute

Court barred by the ecclesiastical abstention doctrine from resolving a church member’s lawsuit challenging the legal validity of a vote by church members to change the name of the church.

Richard R. Hammar, Attorney, CPA
Bio

Key point 6-12.4. Most courts refuse to intervene in church disputes concerning the validity of a membership meeting that was not conducted in accordance with the procedural requirements specified in the church’s governing documents. However, some courts are willing to intervene in such disputes if they can do so without inquiring into religious doctrine or polity.

A Tennessee court ruled that it was barred by the ecclesiastical abstention doctrine from resolving a church member’s lawsuit challenging the legal validity of a vote by church members to change the name of the church.

In 2017 a church voted to change its name. A church member (the “plaintiff”) was upset with the new name, and filed a lawsuit against the church, pastor, and board of deacons, claiming that the vote to change the name was illegal and void. The plaintiff asked the trial court to set aside the vote, order a new vote, and enjoin the church from changing its name.

The church asked the court to dismiss the lawsuit on the ground that the “ecclesiastical abstention doctrine” deprived the court of jurisdiction over the case. The court agreed, finding that it did not have jurisdiction over the case because the ecclesiastical abstention doctrine precluded it from adjudicating any issue regarding the internal affairs and management of the church. The court explained that the plaintiff’s primary concern was whether each person who voted on the church’s name change was a member of the church. The court concluded that it did not have authority to determine whether each voter was a member of the church and, as a result could not resolve the plaintiff’s lawsuit. The plaintiff appealed.

A state appeals court began its opinion with a description of the ecclesiastical abstention doctrine:

The ecclesiastical abstention doctrine is derived from the Religion Clauses of the First Amendment to the United States Constitution. Its purpose is to prevent the civil courts from engaging in unwarranted interference with the practices, internal affairs, and management of religious organizations. The ecclesiastical abstention doctrine prohibits secular courts from redetermining the correctness of a decision by a religious tribunal on issues of canon law, religious doctrine, or church governance. . . .

Because of the freedom of religion guaranteed in the Constitution, religious organizations may establish their own rules and regulations for internal discipline and government and create tribunals for adjudicating disputes over these matters. When this choice is exercised, the Constitution requires that civil courts accept such tribunals’ decisions as binding. Decisions of the highest church tribunal are binding on civil courts in all cases of ecclesiastical cognizance. Claims that a religious tribunal or organization violated its own rules are not reviewable by courts.

When the ecclesiastical abstention doctrine applies, it functions as a jurisdictional bar that precludes civil courts from adjudicating disputes that are strictly and purely ecclesiastical in character and which concern theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required by them. . . . Because it is a bar to jurisdiction, the ecclesiastical abstention doctrine may be raised at any time as a basis for dismissal of the lawsuit.

The court added that while the ecclesiastical abstention doctrine precludes courts from adjudicating most questions arising from church activities, “it does not apply in every legal dispute regarding religious organizations.” For example, courts may address claims involving religious organizations “as long as they can do so using neutral principles of law and can refrain from resolving religious disputes and from relying on religious doctrine.” In other words, if the trial court could have adjudicated the dispute “without resolving questions of religious doctrine, polity, or practice,” the ecclesiastical abstention doctrine would not bar its jurisdiction. However, if the issue involves resolution of such questions, the ecclesiastical abstention doctrine “would function as a jurisdictional bar precluding the trial court’s resolution of this matter.”

The court noted that the plaintiff’s lawsuit alleges that nonmembers were allowed to vote on the church’s name change, which rendered the vote illegal and void under the church’s bylaws. The bylaws explain how an individual may become a member of the church:

Any natural person may become a member of the corporation at any regular church service by . . . trusting Jesus Christ as his or her personal Savior and Lord and making a public statement of this trust through the witness of believer’s baptism . . . and by a personal statement which includes: his or her salvation experience in Christ, subsequent witness through believer’s baptism . . . requesting membership and agreeing to conform to the rules and regulations as may from time to time be established by a majority vote of the members.

The court concluded that “by its plain language,” the requirements for membership are rooted in the religious doctrines and practices of the church:

The [main argument] in the plaintiff’s complaint is whether the votes on the church’s name change were cast by members. As set out above, membership requires compliance with religious doctrine and practice. As such, questions of membership are not within the purview of the court by operation of the ecclesiastical abstention doctrine. Furthermore, a church’s decision to change its name is a decision regarding the internal affairs and management of the church and is a decision in which civil courts are prevented from interfering. Additionally, a claim that a church violated its own rules is not reviewable by courts. For these reasons, the ecclesiastical abstention doctrine functions as a bar to the court’s jurisdiction and the trial court did not err in granting summary judgment in favor of the church.

What this means for churches

This case is an excellent example of the impact of the ecclesiastical abstention doctrine (sometimes called the “church autonomy” doctrine) on church disputes. Internal church disputes that concern “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them” are beyond the reach of the civil courts, and cannot be revived by appeals to “neutral principles of law.” Gunn v. First Baptist Church, 2018 WL 2749639 (Tenn. App. 2018).

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Legal Developments

A Tennessee Missions Agency’s Employment Contract Requires Employees’ Lawsuit to Be Resolved on Basis of Virginia Law

The goal of choice-of-law clauses in agreements is to have the most favorable state law apply to a transaction.

Richard R. Hammar, Attorney, CPA
Bio

Key point A choice-of-law provision designates the state law that will govern a legal transaction.

A federal appeals court ruled that a "choice of law" provision in a missions agency's employment contract requiring all employment disputes to be adjudicated on the basis of Virginia law was enforceable and required a missionary couple's lawsuit in a Tennessee court asserting various employment claims had to be resolved on the basis of Virginia law.

In 2006, a married couple (the "plaintiffs") began investigating the possibility of becoming missionaries with the International Mission Board of the Southern Baptist Convention (IMB). In 2008, the couple accepted missionary positions in India. The couple sold their home and most possessions, and the wife resigned from her job of 17 years. At the time of their assignment, the plaintiffs signed an employment contract stating: "Once approved for service, your relationship to the IMB will be that of an 'at will' employee of a Virginia religious, non-profit corporation, with all aspects of that relationship originating in Virginia and controlled by Virginia law."

The plaintiffs worked in New Delhi from January 2009 until November 2010. In October 2010, the IMB terminated the couple's employment, purportedly because they were no longer needed. The couple sued the IMB, and the Southern Baptist Convention, in a federal district court in Tennessee, claiming that their employment was terminated after they informed their superiors of illegal practices in the construction of the office building in New Delhi. These practices included bribes, false documents to procure permits, and unsafe building practices. The plaintiffs' lawsuit alleged various theories of liability under Tennessee law, including breach of contract and retaliatory discharge. The plaintiffs claimed that the choice-of-law provision should be disregarded because the IMB did not execute the contract in good faith. The plaintiffs claimed that Tennessee law should govern the dispute based on Tennessee's adherence to the doctrine of lex loci contractus, a presumption that a contract is "to be governed by the law of the jurisdiction in which it was executed absent a contrary intent."

The district court unequivocally rejected the application of this doctrine to the plaintiffs' employment relationship with the IMB, based on the clearly expressed "choice of law" provision that made Virginia law controlling in all employment disputes between the parties. The plaintiffs appealed to a federal appeals court, claiming that lex loci contractus governs and requires the application of Tennessee law to the parties' dispute.

The district court determined that the choice-of-law provision stating that Virginia law governs the employment relationship between the plaintiffs and the IMB was valid and enforceable. Accordingly, it concluded that the plaintiffs' "common law claims filed under Tennessee law related to their employment are deficient as a matter of law."

The appeals court agreed with the IMB that the choice-of-law provision was enforceable, and required the plaintiffs to assert claims under Virginia law in the Tennessee courts.

What this means for churches

Choice-of-law clauses are common in commercial agreements. The goal is to have the most favorable state law apply to a transaction. They are rarely used by religious organizations, but in some cases they should be considered. To be enforceable, most courts have ruled that a choice-of-law provision must designate the laws of a state having some connection with the parties (e.g., the location of at least one party, or the place where the contract was executed or will be performed). Church leaders should discuss this potentially significant topic with an attorney when drafting employment agreements and other documents, to see if the laws of another state would be more favorable to the church, and if there are sufficient contacts to warrant the choice of another state's laws. Nollner v. Southern Baptist Convention, 628 Fed.Appx. 944 (6th Cir. 2015).

Legal Developments

Pastor’s Letter to Congregation about Former Member’s Lawsuit Was Not Defamatory Due to Factual Nature

Church Law and Tax Report Pastor’s Letter to Congregation about Former Member’s Lawsuit Was Not

Church Law and Tax Report

Pastor’s Letter to Congregation about Former Member’s Lawsuit Was Not Defamatory Due to Factual Nature

Key point 4-02. Defamation consists of (1) oral or written statements about another person; (2) that are false; (3) that are “published” (that is, communicated to other persons); and (4) that injure the other person’s reputation.

Key point 4-02.1. Ministers may be liable for making defamatory statements if a civil court can resolve the dispute without any inquiry into church doctrine or polity.

A Tennessee court ruled that a pastor had not defamed a former church member by sending an email to members of the congregation explaining the church’s response to a recent lawsuit naming the church as a defendant. A former church member (the “plaintiff”) brought several lawsuits against his former pastor and church in which he alleged that the church and its agents injured him in furtherance of actions to fraudulently conceal child sexual abuse by one of its members. In an attempt to apprise members of the church’s position, the pastor wrote a letter to the congregation that was published in the church’s email newsletter. The email stated as follows:

Dear Brothers and Sisters,

I write to inform you that a former member [the plaintiff] has filed a lawsuit against our church, seeking damages and making a number of serious, but false allegations. You may read something in the papers tomorrow or soon thereafter about this. He has also sued [regional and national denominational agencies with which the church is affiliated].

The former member has made numerous complaints about our church for the last ten or eleven years. Our best efforts to resolve these matters proved unsuccessful. We are saddened that he has taken this step but will cooperate fully with authorities in the coming days. We will also keep you well informed as developments arise. Please keep the leadership of the church in your prayers, in particular the committee that will be handling this. Please contact any of these men, or any of the pastors if you have questions. Thank you for your prayers!

Warmly, in Christ,

Pastor Jim

The plaintiff’s most recent lawsuit named the plaintiff’s former pastor and church, and regional and national denominational agencies, as defendants. The lawsuit claimed that the defendants were liable on the basis of negligence, negligent and intentional infliction of emotional distress, false light invasion of privacy, and defamation. He sought $35 million in damages. The trial court dismissed all of the defendants except the pastor, and allowed plaintiff’s defamation claim against the pastor (based on the email sent to church members) to proceed.

The court noted that to successfully pursue a defamation claim a plaintiff must prove the following: “(1) a party published a statement; (2) with knowledge that the statement was false and defaming to the other; or (3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement.” The court stressed that for a communication to be defamatory “it must constitute a serious threat to the plaintiff’s reputation. [It] does not occur simply because the subject of a publication finds the publication annoying, offensive or embarrassing. The words must reasonably be construable as holding the plaintiff up to public hatred, contempt or ridicule. They must carry with them an element of disgrace.”

Further, because a defamatory statement must be “factually false in order to be actionable, comments upon or characterizations of published facts are not in themselves actionable.” A writer’s comments upon true and nondefamatory published facts are not actionable, even though [the comments] are stated in strong or abusive terms. The writer’s opinions have constitutional protection under the First Amendment.”

The court turned to the pastor’s email that the plaintiff claimed was defamatory. According to the plaintiff, the statements in the email “meant, were intended to mean, and were understood to mean that everything stated in the lawsuit was a lie, that he has been filing multiple lawsuits for ten or eleven years which are predicated on lies, that he is a liar, that he is fundamentally dishonest, and that he has been dishonest for at least ten or eleven years.”

The court noted that while the plaintiff “may have understood the email in this way, we disagree that the email could reasonably be construed as defamatory.” It concluded:

Most of the statements in the email are factually true. The email focuses upon the pastor’s statements that the lawsuit makes “a number of serious, but false allegations,” and that the plaintiff “has made numerous complaints about our church for the last ten or eleven years.” The latter statement is a factual one, and the former statement is a statement of opinion, denying the allegations of the lawsuit.

We do not find that the words of the email can reasonably be construable as holding the plaintiff up to public hatred, contempt, or ridicule. Rather, they are, at most, annoying, offensive, or embarrassing. [The pastor] was informing the members of his congregation of a lawsuit against him and the church. He gave his opinion that the allegations in the lawsuit were false, just as he would deny them in an answer filed in court. We hold, as a matter of law, that the email is not capable of conveying a defamatory meaning. Thus, the trial court erred in failing to dismiss this count of the complaint.

What This Means For Churches:

This case illustrates the importance of ensuring that all statements communicated to church members in a letter, email, or other means of communication be verifiably factual, especially when addressing matters that some present or former members may find controversial, hurtful, or accusatory. In the words of the old adage, “truth is a defense to defamation.”

Note, however, that while truthful communications cannot be defamatory, they may expose a church to a form of invasion of privacy known as “public disclosure of private facts.” Those who give publicity to the private life of another are subject to liability for invasion of privacy if the matter publicized is of a kind that would be highly offensive to a reasonable person and is not of legitimate concern to the public.

The key elements of this form of invasion of privacy are (1) publicity, (2) of a highly objectionable kind, (3) given to private facts about another. Publicity is defined as a communication to the public at large, or to so many persons that the matter is substantially certain to become one of public knowledge. It is not an invasion of privacy to communicate a fact concerning another’s private life to a single person. But a statement made to a small group, or an audience such as a church congregation, does constitute “publicity.”

The facts that are publicly disclosed must be private. There is no liability if one merely repeats something that is a matter of public record or has already been publicly disclosed. Thus, a minister who makes reference in a sermon to the prior marriage or prior criminal acts of a particular church member has not invaded the member’s privacy, if such facts are matters of public record.

The matter that is communicated must be such that a reasonable person would feel justified in feeling seriously aggrieved by its dissemination.

This type of invasion of privacy is perhaps the most significant for ministers, since ministers often are apprised of private facts about members of their congregations, and they have innumerable opportunities to divulge such information. Ministers must exercise caution in divulging private facts about members of their congregations, even when the communication is positive in nature and contains information that is factually true (and so would not be defamatory). Davis v. Covenant Presbyterian Church, 2015 WL 5766685 (Tenn. App. 2015).

* See also “Employment practices,” Presbyterian Church, 476 S.W.3d 612 (Tex. App. 2015). in the Recent Developments section of this newsletter.

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Legal Developments

Members’ Right to Inspect Church Records

Members may inspect records only if they have a “proper purpose” for doing so.

Richard R. Hammar, Attorney, CPA
Bio

A Tennessee court ruled that church members were not legally entitled to inspect certain records of their church on the basis of a provision in the state nonprofit corporation law giving members a right of inspection, since they lacked a "proper purpose" for their request.

The Tennessee nonprofit corporation law specifies that members have a legal right to inspect "accounting records" only if "a demand is made in good faith and for a proper purpose, the member describes with reasonable particularity the purpose and the records the member desires to inspect; and the records are directly connected with the purpose for which the demand is made."

Several members of a church sought to inspect the church's financial records as part of their investigation into financial mismanagement by the pastor and other church leaders. The church resisted this request, arguing that the members' request failed to satisfy all of the conditions required for inspection, and turning over the records would violate the church's constitutional right to freely exercise its religion. The trial court ruled that the members had a proper purpose since they were investigating suspected financial mismanagement, and therefore had a "property interest in the church assets."

A state appeals court reversed the trial court's decision, and ruled that the members failed to satisfy the requirements of the nonprofit corporation law for inspection of the church's financial records:

The members relied upon their "property rights in the church building and its funds" as the proper purpose. The purpose presented by the members … was to determine their property rights. However … unless there is an agreement to the contrary in some bylaw or associational agreement, any decision about control of church property is to be decided by a majority vote of the church. It has likewise been found that church members have no property rights in their contributions to a church. Consequently, the members have no property rights in the church building or its assets. This is in accord with the generally accepted law on the subject. Generally, a nonprofit corporation, and not its members, owns the property of the nonprofit. Absent a departure by the majority from doctrine accepted by the articles of incorporation, the minority has no right to claim church property from a majority at the church membership.

The court acknowledged that the church "had the burden of proof that the members' purpose was not proper." However, "the members did not have a property interest in the church assets, which was the reason relied upon before the trial court. [The law] requires the member to describe the purpose with particularity. Whether access would have been required had another purpose been proffered by the members is speculative at best."

What this means for churches

Tennessee, like most states, has a nonprofit corporation statute that empowers members of nonprofit corporations to inspect certain corporate records so long as they have a "proper purpose."

This court reached the remarkable conclusion that members who want to inspect a church's financial records in order to investigate suspected financial mismanagement do not have a proper purpose as a result of their "property rights in the church building and its funds" since (1) "unless there is an agreement to the contrary in some bylaw … any decision about control of church property is to be decided by a majority vote of the church"; and (2) "church members have no property rights in their contributions to a church," presumably since charitable contributions are gifts that by definition divest donors of any legal interest in their contributions unless there is a written agreement to the contrary. As a result, the members in this case had no property rights in the church building or its assets.

Two Rivers Baptist Church v. Sutton, 2010 WL 2025444 (Tenn. App. 2010).

Legal Developments

Jurisdiction Over Hiring Claims Different vs. Supervision Claims

First Amendment prevents court from resolving negligent hiring claim but not negligent supervision claim.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax Report

Jurisdiction Over Hiring Claims Different vs. Supervision Claims

First Amendment prevents court from resolving negligent hiring claim but not negligent supervision claim.

Key point 10-10.2. Many courts have ruled that the First Amendment prevents churches from being legally responsible on the basis of negligent supervision for the sexual misconduct of ministers.

Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.

* A Tennessee court ruled that the First Amendment guaranty of religious freedom prevented it from resolving a negligent hiring claim brought by a victim of childhood sexual abuse against the offending priest and his diocese, but did not prevent it from resolving a negligent supervision claim. In rejecting the victim’s negligent hiring claim against the diocese, the court observed: “The exercise of jurisdiction over matters pertaining to its decision of whom to hire and retain as a priest or clergyman would require an extensive entanglement into matters of religious doctrine or polity. Accordingly, the court may not exercise jurisdiction over [the victim’s lawsuit] insofar as it is based on claims of negligent hiring and negligent retention.”

However, the court concluded that the victim’s negligent supervision claim was not barred by the First Amendment:

The diocese asserts that the courts may not impose a duty on [it] with respect to the supervision of the diocese’s priests. To the extent that the imposition of such a duty would impact [its] supervision of a priest’s acts in matters of faith or doctrine, we must agree. However, this lawsuit implicates no doctrinal, theological, policy or internal administrative matter. Rather, it pertains only to the diocese’s duty to safeguard the physical safety of the children in its care. Although the diocese may hire and retain whomever it chooses as a priest, forgive whatever sins or shortcomings that priest may have, and supervise a priest’s duties insofar as doctrinal or theological matters are concerned in whatever manner it chooses, it may not hide behind the First and Fourteenth Amendments to avoid imposition of a civil duty of care to safeguard children against sexual abuse by its employees, including its priests.

Clearly, the Diocese’s duty to supervise its priests so as to prevent instances of child abuse can be imposed using neutral principles of law and without resort to or entanglement in matters of doctrine, theology or polity. We must agree with the Supreme Court of Mississippi that “the cloak of religion, which does not shield religious institutions from civil responsibility for fraud or breach of contract, surely cannot serve to shield such institutions from civil responsibility for more abhorrent conduct such as sexual molestation of a child. Nor should it shield those who fail in their duty to protect children from it.” Roman Catholic Diocese v. Morrison, 905 So.2d 1213 (Miss. 2005).

As we previously have stated, although the law cannot interfere with matters of religious doctrine or belief, it may interfere with conduct even when that conduct is motivated by religious doctrine when a compelling state interest is implicated. Some religious acts and practices by individuals must yield to the common good. We cannot fathom a more compelling state interest than the protection of children against sexual abuse. We can imagine no more neutral principle of tort law than that which imposes a duty upon an employer to supervise its employees in a manner designed to safeguard against the sexual abuse of minors.

Although the court concluded that the diocese could be sued for negligent supervision, it dismissed the case on the ground that it was filed after the statute of limitations had expired. Redwing v. Catholic Bishop, 2010 WL 2106222 (Tenn. App. 2010).

Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840. © 2011 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold 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. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Informing Church Members of Disciplinary Action

Court refuses to resolve expelled member’s defamation claim.

Richard R. Hammar, Attorney, CPA
Bio

Key point. According to the majority view, the civil courts will not resolve disputes challenging a church's discipline of a member since the First Amendment guaranty of religious freedom prevents them from deciding who are members in good standing of a church.

A Tennessee court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving a church member's defamation claims against his pastor based on a letter that was read to the congregation.

A man ("Owen") had attended the same church for 70 years and served as trustee for 30 years. Owen claimed that his pastor gave false information to an attorney about him, which the attorney placed in a letter that was sent to the pastor. The pastor read this letter to the entire congregation during a regular Sunday morning church service. While Owen was not identified as the subject of the letter at the reading, he believed that everyone knew the letter's remarks were about him. Owen later sued the pastor for defamation. The attorney's letter was attached to the lawsuit. The letter states, in relevant part:

I have been retained on behalf of the church to demand that you immediately cease abusive and threatening telephone calls, offensive language, threats of physical harm and other inappropriate contact to its members and board. As the church had to take the extraordinary measure of having to call the sheriff's department to have you removed from the premises, this letter is intended to make clear that you are not to come back onto the church property. Any attempt to come on the church property or on the pastor's residence for any reason will be viewed as criminal trespass. In such an event, the authorities will be contacted immediately and your arrest sought.

Moreover, you have and continue to make threatening and harassing phone calls to the pastor [and] members and deacons of the church. Please cease and desist all such harassing calls. Continued calls threatening the pastor's life, health or his family will be deemed harassment pursuant to [state law] and dealt with the to full extent as allowed by law. The church and [its pastor] desire to end this unfortunate turn of events peaceably. Therefore, they ask that you go your separate way and refrain from any future contact with the church, its pastor, deacons or members.

The act of informing the members of the church of disciplinary or expulsion actions is as much within the rights protected by ecclesiastical abstention as is the church's right to take such actions, even though it may carry some kind of negative implication about the expelled member.

Owen's lawsuit alleged that these statements were false and defamatory. According to the complaint:

My reputation for good character in the community and in the church has been damaged or destroyed by the false accusations made by the pastor against me. Indeed, the pastor caused me to be expelled from my lifelong church. The attorney's letter to me, which the pastor read to the church congregation ordered me not to come back upon church property and stated that if I did so the pastor would be arrested for the crime of trespassing.

The trial court dismissed the lawsuit on the basis of the so-called ecclesiastical abstention doctrine, which generally bars the civil courts from resolving internal church disputes over matters of doctrine or the qualifications of members. Owen appealed. A state appeals court affirmed the trial court's dismissal of Owen's lawsuit. The court explained the ecclesiastical abstention doctrine as follows:

The overriding rule remains that courts cannot intrude into purely religious decisions. Thus, as with any other claim brought in the context of an intrachurch dispute, the question is whether the defamation claims can be determined without running afoul of the First Amendment. That means, can the specific defamation claim alleged herein be adjudicated "without extensive inquiry … into religious law and polity" and "without resolving underlying controversies over religious doctrine?" That includes inquiry into religious law, court examination of religious belief, or court review of the correctness of the church tribunal's decision.

If, to resolve the particular claim brought, a court would need to resolve underlying controversies over religious doctrine, then the claim is precluded [citing the United States Supreme Court's 1976 ruling in Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976)]. Where the allegedly defamatory statements refer to or are based upon religious doctrine or church governance, resolution of the truth or falsity of those statements, a determination critical to a defamation action, would require courts to inquire into and resolve issues of church teachings and doctrine, clearly matters of ecclesiastical cognizance.

The court concluded that "it is clear that the exclusion of a member is an intricate part of church governance and, as such, the courts will not interfere." Owen insisted that the ecclesiastical abstention doctrine was inapplicable since he is not challenging or seeking compensation related to the decision to exclude him from membership in the church but, rather, is seeking compensation for the defamatory statements in the letter. The court disagreed, noting that "the ecclesiastical abstention doctrine does not cloak only the disciplinary or expulsion decision itself, but also statements made attendant to the decision." It continued:

The protection afforded by the First Amendment to church disciplinary proceedings applies to statements made after the church's decision if the statements or actions are merely implementation of, still part of, inextricably related to, or a consequence of the decision …. Thus, the church's communication of the fact and reason for excommunication are protected from judicial inquiry and review.

Announcing an expulsion or disfellowship to the members of a church is part of the disciplinary proceedings, particularly where instruction to church members regarding the expelled party is part of the church's belief and practice. Thus, the act of informing the members of the church of disciplinary or expulsion actions is as much within the rights protected by ecclesiastical abstention as is the church's right to take such actions, even though it may carry some kind of negative implication about the expelled member.

Statements to church members in regard to disciplinary actions against other members are privileged for the same reasons that the membership decision is protected [quoting Anderson v. Watchtower Bible & Tract Society, 2007 WL 161035 (Tenn. Ct. App. 2007)].

What this means to the church

This case illustrates the reluctance of the civil courts to resolve internal church disputes involving the discipline or dismissal of members. This reluctance led the court to reject Owen's claim that he had been wronged despite the fact that the pastor read the attorney's letter to the congregation. 2009 WL 3518184 (Tenn. Ct. App. 2009).

Legal Developments

Potential Problems with “Religious” Marriages

Ceremonies that don’t comply with legal requirements can have legal and tax consequences.

Richard R. Hammar, Attorney, CPA
Bio


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

A federal court in Tennessee ruled that a couple who lived together were not legally married, and therefore one partner was not entitled to money damages based on loss of consortium following injuries sustained by the other partner in a traffic accident. A couple had a "religious" marriage in their church, presided over by a church elder. However, the couple never obtained a marriage license. Instead, they testified that they obtained a "certificate" from their church documenting that they had been married. One partner was injured in a traffic accident, and the survivor sued the company that owned the other vehicle for "loss of consortium." The court ruled that only a married spouse can maintain a loss of consortium claim based on the death or incapacity of the other spouse. It concluded:

As far as the law of Tennessee is concerned, without a valid license, the plaintiffs do not have a valid marriage. The Tennessee Code section on marriage "licenses and permits" states that, "before being joined in marriage, the parties shall present to the minister or officer a license under the hand of a county clerk in this state, directed to such minister or officer, authorizing the solemnization of a marriage between the parties. Such license shall be valid for thirty (30) days from its issuance by the clerk." Multiple other code provisions reinforce this notion that obtaining a valid license from the county clerk is a necessary step toward a valid marriage, as it protects the State against recognizing marriages that are contrary to the public interest …. Plainly, in order to have a valid, recognized marriage under Tennessee law, there must be a marriage license. Here, there is no license, so there is no marriage that the state of Tennessee will recognize.

The couple claimed that, even if they did not have a license, they believed themselves to be married, they had a marriage ceremony, they obtained a "certificate" of marriage from their church, and they have co-habited for more than five years. The court was not impressed:

The plaintiffs believe in the validity of their marriage, but they affirmatively do not recognize the authority of the state of Tennessee to sanction or regulate the validity of their marriage. Therefore, reasonably, the plaintiffs can be viewed as "believing in the validity of their marriage," but also "knowingly living together in an unmarried state …." The couple's decision not to obtain a license was a knowing choice; their deposition testimony showed that they had both been married and divorced before …. This plainly shows that they are familiar with the formalities of marriage, including licensing.

The court stressed that this is not a case in which the parties attempted to obtain a license and there was a technical glitch, such that, in fairness, the marriage should be recognized. Rather, here the plaintiffs made the conscious choice to forego a basic requirement of a valid marriage in Tennessee. That is, of course, their choice, but nothing in fairness and equity dictates that the court should now, when it suits the couple's financial objectives to have a government-sanctioned marriage, recognize their marriage as valid for purposes of this case.

Application. Pastors occasionally are called upon by parishioners to perform a "religious" marriage ceremony without complying with the legal requirements for a valid marriage prescribed by state law. There are many reasons for doing so. For example, some regard the civil law requirements as an unnecessary nuisance, or even an unwarranted government intrusion into an essentially religious ceremony. In other cases, compliance with one or more of the requirements for a civil marriage may not be possible. Whatever the reason, pastors should understand that there are several potential legal and tax consequences associated with a "religious" marriage that is not in compliance with state law. These include the following:

  • Pastors may be subject to criminal penalties (typically a misdemeanor involving a fine or short prison sentence) under state law for performing a marriage that does not comply with state law. It is imperative for pastors to understand the possible application of such penalties before performing a religious marriage.
  • As this case illustrates, a religious marriage that does not comply with civil law requirements may preclude one spouse from suing for money damages based on "loss of consortium" for injuries sustained by the other.
  • In general, your tax filing status depends on whether you are considered unmarried or married. For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife. You are considered unmarried for the whole year if, on the last day of your tax year, you are unmarried. State law governs whether you are married or legally separated under a divorce or separate maintenance decree. An unmarried couple may not file a joint tax return as a married couple. Each files an individual tax return.
  • If a couple is "considered married" for the whole year they can file a joint return, or separate returns. A couple is "considered married" for the whole year if on the last day of the tax year they were living together in a common law marriage recognized in the state where they live or in the state where the common law marriage began. Only nine states currently recognize common law marriages, and in many of these states only some common law marriages are recognized.
  • An unmarried person may be able to file as head of household if certain conditions are met.
  • An unmarried couple cannot claim each other as an exemption on their individual tax returns.
  • An unmarried couple can claim each other as a dependent on their individual tax returns, unless certain conditions are met.
  • Unmarried persons cannot combine tax deductions, and cannot claim expenses paid by their partner.
  • The phaseout for an IRA deduction begins at a lower amount of income for unmarried persons than for married persons.
  • Married spouses generally avoid estate taxes upon the death of the first spouse. This is not necessarily the case with unmarried partners.
  • Married spouses generally can transfer property back and forth without gift taxes due to the unlimited marital deduction. This is not the case with unmarried partners.
  • If an employer provides health benefits to both employees and their "domestic partners," the amount paid by the employer is generally a tax-free fringe benefit to employees but is taxable to unmarried partners.
  • An unmarried partner generally cannot receive death benefits payable as a result of the death of the other partner. There is an exception for couples who have a "common law marriage" recognized under state law. However, these marriages are recognized in only nine states, and conditions apply.
  • Unmarried partners can execute wills (or other legally enforceable instruments) that leave some or all of their estate to a surviving partner. However, without a will, a deceased partner's estate that is not otherwise disposed of will be distributed according to the law of intestacy. Unmarried partners have no rights under intestacy laws. A few states have passed laws that permit domestic partners to receive a share of a deceased partner's estate.
  • If an unmarried couple ends their relationship, there generally is no right of alimony or support from one former partner to the other. A few states have enacted legislation that in some circumstances permits the provision of support (sometimes called "palimony") from one former partner to the other. Conditions apply. Becker v. Judd, 646 F.Supp.2d 923 (M.D. Tenn. 2009).

This Recent Development first appeared in Church Law & Tax Report, November/December 2010.

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Legal Developments

Take Care When Naming Your Church

Church names are protectable under trademark law.

Richard R. Hammar, Attorney, CPA
Bio


Key point A church name is a valuable property right that is protected by the legal principle of unfair competition. Protection also is available under federal trademark law.

A federal court in Tennessee ruled that the "Seventh-day Adventist" registered trademark had not been lost by becoming generic, and therefore the Seventh-day Adventist Church could enjoin a dissident pastor from using the words "Seventh-day Adventist" in his church's name. The General Conference of Seventh-day Adventists ("General Conference") is an unincorporated association that represents the interests of the Seventh-day Adventist Church. Organized in 1863, it constitutes the official organization of the Seventh-day Adventist Church. The church grew out of several congregations that believed that Christ's Second Advent was imminent and that the Sabbath should be observed on the seventh day of the week. None of these early churches called themselves "Seventh-day Adventist" and it was not until the congregations came together to create a formal church structure that the name "Seventh-day Adventist" was chosen. Since the official formation of the church, the names "Seventh-day Adventist" and "SDA" have been used by the Seventh-day Adventist Church as the church's name, and as its trade name in advertising and publishing. The church today has nearly one million members in the United States, as well as 3,500 ministers and 5,300 congregations. Worldwide, it has over 14 million members, 17,000 ministers, and 121,000 congregations.

The General Conference has registered the marks "Seventh-day Adventist," "Adventist," and "General Conference of Seventh-day Adventists," with the United States Patent and Trademark Office. These registrations protect the use of the "Seventh-day Adventist" mark in connection with several products and services including religious publications, medical insurance, educational services, church services, and missions. "SDA" is an acronym for "Seventh-day Adventist" that has not been registered. The General Conference claims that they are "legally equivalent terms," however, and that "SDA" has been used by the General Conference from 1863 onwards "as part of the corporate name, the trade name, in advertising, in publishing and publications, and in the performance of services."

A man (the "defendant"), who had been baptized in a Seventh Day Adventist church affiliated with the General Conference, decided to separate from the church because of a theological dispute. He formed his own church, naming it "A Creation Seventh Day & Adventist Church." While he was aware that the General Conference had trademarked the name "Seventh Day Adventist," he used it anyway, because he believed that he was divinely mandated to do so. He also created several Internet domain names containing the words "Seventh Day Adventist." His church had three members, and sponsored another church with the same name in Canada.

The General Conference sued the defendant in federal court, claiming that his use of the name "Seventh Day Adventist Church" infringed upon its registered trademarks, and amounted to unfair competition. The defendant argued that he was not guilty of trademark infringement since the names in question had become generic, or alternatively were descriptive but had not acquired secondary meaning. He also claimed that there is no chance of public confusion between his churches and Seventh-day Adventist churches.

"Seventh-day Adventist Church"

The court began its opinion by observing that "the existence and extent of trademark protection for a particular term depends on that term's inherent distinctiveness. Courts have identified four general categories of terms." The court described the four categories as follows:

A generic term is one that is commonly used as the name of a particular good or a description thereof. It is the weakest type of mark and cannot become a trademark.

A descriptive term is the next-weakest. It specifically describes a characteristic or ingredient of an article. It can, by acquiring a secondary meaning … become a valid trademark ….

A suggestive term suggests an ingredient or characteristic of a good and requires the public to use its imagination to determine the nature of that good. Examples are Citibank, which connotes an urban or modern bank, or Goliath, for wood pencils, connoting a large size. A suggestive term is considered stronger than one that is merely descriptive, and does not require proof of secondary meaning.

Fanciful and arbitrary marks are the strongest. A fanciful mark is a combination of letters or other symbols signifying nothing other than the product or service to which the mark has been assigned. Examples include Exxon and Kodak. An arbitrary mark has a significance recognized in everyday life, but the thing it normally signifies is unrelated to the product or service to which the mark is attached, such as Apple computers or Camel cigarettes.

Federal law specifies that a mark becomes "incontestable" five years after it has been registered if the owner files an affidavit with the Trademark Office asserting that no claim adverse to its ownership has been filed. The defendant did not challenge the claim that the "Seventh-day Adventist" mark was incontestable, but insisted that it had become generic because it referred to a religion or a set of religious beliefs, rather than to a specific church or denomination. Specifically, the defendant claimed that the General Conference's mark had become generic because "Seventh-day Adventism has evolved into a religion that has several denominations of followers who are all known as Seventh-day Adventists." In support, he claimed that there are at least two other break-away churches, in addition to his own, that are not affiliated with the General Conference and that use the term "Seventh-day Adventist" in their name: the Seventh Day Adventist Reform Movement, which was started in 1915, and the Davidian Seventh Day Adventists, founded in 1942. He also pointed out that there are denominations that use the terms "Seventh-day" or "Adventist" separately in their names, for example, the Seventh-day Baptists. As a result, the defendant argued that the terms "Seventh-day" and "Adventist" are generic and the mark "Seventh-day Adventist" is invalid.

The court noted that a registered mark's incontestable status "does not protect it from a challenge that it is or has become generic." Rather, a registered mark benefits from a presumption that it is not generic, and anyone who claims otherwise bears the burden of proof. The court concluded that the defendant failed to overcome the presumption that the General Conference's registered and incontestable mark was not generic:

The fact that two other small churches utilize the name does not establish that the relevant public does not associate it with the "mother" church. If anything, the fact that the defendant can point to only two other splinter groups founded in the last century that bear the name supports the conclusion that members of the relevant public would generally associate the term with the churches affiliated with the General Conference. The court also rejects the argument that the mark is generic because it "simply designates the twice-circumscribed category of people" who believe in celebrating the Sabbath on the seventh day of the week and in the imminent return of Jesus Christ …. The term "Seventh-day Adventist" did not come into being until the church bearing that name was founded in the mid-nineteenth century. And, as the defendant concedes, at best only a few congregations have adopted that name since, all of whom split off from the General Conference's church. Thus, the court cannot assume that the relevant public would view the term as a way to refer to a person who believes that the Sabbath should be celebrated on the seventh day and that the return of Jesus Christ is imminent and not primarily as a means of reference to a member of the General Conference's church ….

The court noted that the defendant had failed to introduce survey evidence showing whether the public believes that the term "Seventh-day Adventist" refers to a religion or to a specific denomination. It referred to a 1999 survey that found that 44 percent of the general public, consisting of adults 18 years and older, associated the term "Seventh-day Adventist" with a specific religious organization or church.

The court dismissed the defendant's argument that the General Conference's marks were descriptive, and had not acquired secondary meaning, since the marks were incontestable. It quoted from an earlier decision by the United States Supreme Court: "The language of the [federal trademark law] refutes any conclusion that an incontestable mark may be challenged as merely descriptive." Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189 (1985).

Application. This case is instructive for the following reasons:

First, it illustrates that church names are protectable under federal trademark law.

Second, it demonstrates that a church name that is protected by a registered trademark is not necessarily superior to a subsequent use of the same name (or a similar variant), even if the trademark has become incontestable. As the court pointed out, a registered mark's incontestable status "does not protect it from a challenge that it is or has become generic." However, a registered mark benefits from a presumption that it is not generic, and anyone who claims otherwise bears the burden of proof. The court concluded that the defendant failed to overcome the presumption that the General Conference's registered and incontestable mark was not generic. This conclusion was based in part on survey evidence introduced by the General Conference indicating that a significant percentage of the public associated the name "Seventh-day Adventist" with a particular denomination. This conclusion was not negated by the fact that a few breakaway groups were using "Seventh-day Adventist" in their names.

Third, even if a church name that is protected by federal trademark law has not become generic, the church may not enjoin unauthorized use of the same or a similar name by another entity unless it can demonstrate a "likelihood of confusion." This means that it is likely that the subsequent use of the same or similar name by another organization will cause public confusion regarding the identity and relationship of the two entities. The court used a helpful, and commonly used, set of eight factors in deciding if a likelihood of public confusion existed.

Fourth, the court acknowledged that trademark infringement requires that an infringing mark be used in interstate commerce. The court concluded that the defendant church's use of the name "Seventh-day Adventist" satisfied the commerce requirement in part because it used its name on its Internet web site. The court concluded that "the jurisdiction of the [trademark law] constitutionally extends to unauthorized uses of trademarks on the Internet, because the Internet is generally an instrumentality of interstate commerce." This is an important point, because it reinforces the conclusion that churches having an Internet presence are engaged in commerce and therefore are subject to the many federal laws that apply only to those organizations that are engaged in commerce. These include several labor and employment laws. General Conference Corp. of Seventh-day Adventists v. McGill, 2008 WL 2404036 (W.D. Tenn. 2008).

Trademarks

• See "Church names," General Conference Corp. of Seventh-day Adventists v. McGill, 2008 WL 2404036 (W.D. Tenn. 2008), in the recent developments section of this newsletter.

This Recent Development first appeared in Church Law & Tax Report, March/April 2009.

Legal Developments

Defamation: Statements of Opinion

Statements of opinion are generally not considered defamatory.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Defamation: Statements of Opinion

Statements of opinion are generally not considered defamatory.

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

Key Point 4-02. Defamation consists of (1) oral or written statements about another person; (2) that are false; (3) that are “published” (that is, communicated to other persons); and (4) that injure the other person’s reputation.

Key Point 7-17. Churches do not have to tolerate persons who disrupt religious services. Church leaders can ask a court to issue an order barring the disruptive person from the church’s premises. If the person violates the order, he or she may be removed from church premises by the police, and may be found to be in contempt of court.

A Tennessee court ruled that a statement made by a church member to police officers to the effect that another church member intended to kill someone was not defamatory since it was a statement of opinion rather than fact. A male church member (the “plaintiff”) claimed that a female pastor at his church made unfounded accusations of sexual harassment against him. The plaintiff filed a complaint with the church’s Staff-Parish Relations Committee against the pastor. He also wrote a poem, entitled “Assumptions,” which he sent via e-mail to the pastor. The poem tells a story in sixteen rhymed couplets of the arrival of “an attractive young lady” at the heavenly gates. She asks St. Peter if she can enter, and he offers her a hug “with arms opened wide.” She rejects the hug, and St. Peter rebukes her for her distrust and prejudice. He then pulls a chain, opening a door beneath the woman’s feet, with the result that “the devil embraced this woman on the other side.”

Shortly after composing this poem, the plaintiff arrived at church an hour before a scheduled worship service, and attached a copy of his poem to a bulletin board. A prefatory note attached to the poem stated that it was “One Christian’s Response to Allegations of Sexual Harassment.” A member of the Staff-Parish Relations Committee (Susan) was nearby, and as soon as the plaintiff left the hallway where the bulletin board was located, she removed the poem.

When the plaintiff returned to the hallway, an argument broke out between him and two other church members. Susan overheard the confrontation, and called the police. A police officer arrived promptly, and Susan allegedly blurted out, in the presence of her husband and the two other church members, that “he wrote a poem that threatened the life of one of our members.” The police officer escorted the plaintiff from the church premises, and the church trustees later told him not to return.

The plaintiff sued Susan for defamation, claiming that her statement spread through the congregation “like a wildfire,” that it caused him great mental anguish and emotional suffering, and that it was defamatory. He asked the court to award him $100,000 in compensatory damages, $50,000 for emotional pain and suffering, and $150,000 in punitive damages. A trial court dismissed the lawsuit and issued an injunction barring the plaintiff from entering church property or having contact with any church member. The plaintiff appealed.

A state appeals court noted that defamation consists of a false statement about another person that is publicized and injures the victim’s reputation. The court concluded that Susan’s statement to the police officer was not defamatory since it was a statement of opinion:

We consider [Susan’s] statement that [the plaintiff’s] poem amounts to a threat on someone’s life to be a matter of opinion, which should not be confused with a statement of fact. This distinction is important because a statement of opinion does not usually constitute actionable defamation, while a false statement of fact may do so …. It appears to us that she was not accusing [him] of committing a crime, but was merely giving excited expression to her opinion of the underlying meaning of his poem.

The court stressed that there was no “wholesale defamation exemption” for all statements of opinion, and that a statement of opinion can be defamatory if it “implies the allegation of undisclosed defamatory facts as the basis for the opinion.” But, “where there is no false representation of fact, one may not recover in actions for defamation merely upon the expression of an opinion which is based upon disclosed, non-defamatory facts, no matter how derogatory it may be.”

The court concluded: “[Susan] has been accused of saying that the plaintiff ‘wrote a poem that threatened the life of one of our members.’ We do not believe that such a statement is equivalent to saying that he threatened someone’s life, which under the circumstances might have amounted to an allegation of fact. Nor does it carry an implication that he threatened anyone at any other time or in any other manner than by writing a poem. The alleged statement is clearly opinion only, and we therefore agree with the trial court that it is not defamatory.”

The court agreed with the plaintiff, however, that the trial court’s injunction was too broad: “If strictly followed it would prevent him from associating with any church members for any purpose whatsoever, even if the other person agreed to or welcomed that contact.” The court limited the injunction to a ban on the plaintiff’s presence on church property. Kersey v. Wilson, 2006 WL 3952899 (Tenn. App. 2007).

This Recent Development first appeared in Church Law & Tax Report, July/August 2008.

Legal Developments

Church Childcare Program Forced to Seek License

Court concluded that licensing law did not violate church’s rights.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Church Childcare Program Forced to Seek License

Court concluded that licensing law did not violate church’s rights.

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

Key Point 13-02.1 In the Smith case (1990) the Supreme Court ruled that a neutral law of general applicability is presumably valid and need not be supported by a compelling government interest to be consistent with the first amendment, even if it interferes with the exercise of religion.

A Tennessee court ruled that a state law requiring church childcare agencies to be licensed did not violate the constitutional rights of a church-run program that refused to seek a license. A church operated a “Bible School” from 6:00 a.m. to 6:00 p.m., Monday through Friday, during the regular school year. Children arrived and left at various times throughout the day and could stay for any number of hours based on their parents’ needs. The Bible School enrolled children ages one to sixteen, and school-aged children were transported to and from their schools by church staff members. On days when schools were closed, the children could stay at the church all day. The Bible School enrollment mostly consisted of children of church members, but a few children were non-members who attended other churches. The church charged a weekly fee per child that varied by age. If the child only stayed at the church before or after school, the rates are reduced. While at Bible School, children learned Bible stories, scriptures, and songs, created Bible related arts and crafts projects, participated in learning centers, improved their writing, math, and reading skills, received help with their school homework, played inside and outside, took naps, and ate meals and snacks.

The church began operating the Bible School in 2000. In 2004, the church’s pastor contacted the fire department to determine whether the church’s facilities were in compliance with local fire codes. A fire inspector determined that the Bible School was subject to “daycare occupancy” standards of the safety code, and found a number of fire code violations during the inspection. The fire department also informed the Department of Human Services that the church appeared to be operating a childcare facility without a license.

A few weeks later, members of the Department of Human Services (“DHS”) visited the Bible School. They observed 36 preschool-aged children being cared for, and they were informed that older children would be returning from school that afternoon, for a total of 61 children enrolled that day. The DHS evaluators concluded that the church was operating a childcare agency subject to licensure pursuant to state law. Tennessee law requires any “childcare agency” to be licensed by the state, and defines a childcare agency as “any place or facility operated by any person or entity that provides childcare for 3 or more hours per day for at least 13 children who are not related to the primary caregiver.”

A letter was hand-delivered to the pastor, informing him of DHS’s conclusion and the applicable licensing laws. The letter stated that if the church continued to operate the Bible School without a license beyond a specified date, DHS would pursue a court-ordered injunction. The church did not apply for a license, and DHS representatives observed children being dropped off at the Church the following week. As a result, DHS filed a complaint seeking injunctive relief against the Bible School, its director, and the pastor (the “defendants”). Specifically, the complaint alleged that the defendants could keep no more than four children for more than three hours per day without some type of license, and that DHS staff had observed 36 children at the church and were told that 61 were enrolled for that day. Therefore, DHS claimed that the defendants were operating a childcare agency without a license in violation of state law.

The church insisted that its Bible School qualified for one of the exemptions from licensing: for “nurseries, babysitting services and other children’s activities that are not ordinarily operated on a daily basis.” It also claimed that the First Amendment guaranty of religious freedom barred the state from interfering with the operation of the Bible School. A trial court concluded that the church’s Bible School met the definition of a “child care center” and as such was subject to the licensure requirement; that none of the licensure exemptions applied to the Bible School since the church was providing long-term child care while the exemptions contemplated short-term care; and, that “religiously motivated conduct” is subject to reasonable control.

The court issued a restraining order prohibiting the Bible School from “opening or operating any child welfare agency without a proper active license issued by the Tennessee Department of Human Services.” When the church continued to operate the Bible School without a license, the trial court found the defendants in contempt of court. The defendants thereafter agreed to discontinue operation of its Bible School, but appealed the trial court’s rulings to a state appeals court. The church’s main argument was that the licensing requirements violated its constitutional right to freely exercise its religion. Specifically, the church asserted that becoming a licensed “daycare” would violate its religious beliefs because it believed that Jesus Christ is the founder of the church, and that the church should not be assigned to an entity such as the state of Tennessee.

A state appeals court rejected the church’s arguments, and ruled that the trial court acted properly in ordering the church to discontinue the operation of its unlicensed Bible School. It noted that the United States Supreme Court has ruled that “neutral laws of general applicability,” that apply to equally to all organizations and do not single out religion for unfavorable treatment, are presumptively constitutional without the need for the state to prove a compelling interest. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). To permit otherwise “would allow the professed doctrines of religious belief to be superior to the law of the land, and in effect permit every citizen to become a law unto himself.” As a result, “claims based on religious convictions do not automatically entitle persons to unilaterally establish the terms and conditions of their relations with government, and our constitutions do not give individuals veto power over government actions.”

The court concluded that the licensing law in this case was a neutral law of general applicability, and as such it did not violate the church’s constitutional rights. It was “a reasonable means of promoting a legitimate public purpose, and we must uphold it.”

The court acknowledged that some other states have enacted childcare licensing laws containing an exemption for church-run programs, but concluded that such exemptions, while constitutionally permissible, were not constitutionally required. It also pointed out that there are several states that “do not exempt religious entities from childcare licensing laws, and these license requirements have been upheld against [constitutional] challenges similar to the one in this case.” It referred to the following cases: North Valley Baptist Church v. McMahon, 893 F.2d 1139 (9th Cir. 1990) (California law); Darrell Dorminey Children’s Home v. Georgia Department of Human Resources, 389 S.E.2d 211 (Georgia 1990); State ex rel. Pringle v. Heritage Baptist Temple, Inc., 693 P.2d 1163 (Kansas 1985); State, Michigan Department of Social Services v. Emmanuel Baptist Preschool, 455 N.W.2d 1 (Michigan 1990); Health Services Division v. Temple Baptist Church, 814 P.2d 130 (New Mexcio 1991); State v. Corpus Christi People’s Baptist Church, Inc., 683 S.W.2d 692, 695 (Texas 1984).

The court also rejected the church’s proposal that it be allowed to “register” with the state as a less intrusive alternative to licensure, noting that such an alternative had been “considered and rejected as an insufficient means of serving the states’ interests in protecting the health, safety, and welfare of children in childcare centers.” Department of Human Services v. Priest Lake Community Baptist Church, 2007 WL 1828871 (Tenn. App. 2007).

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

Legal Developments

Clergy-Penitent Privilege and Observations

Ministers can be compelled to testify regarding their “observations” or general impressions of a counselee’s demeanor.

Richard R. Hammar, Attorney, CPA
Bio

Key point 3-07.1. In order for the clergy-penitent privilege to apply there must be a "communication." A communication includes verbal statements, but it also may include nonverbal acts that are intended to transmit ideas. Mere observations generally are not considered to be communications.

The Tennessee Supreme Court ruled that the clergy-penitent privilege did not prevent a pastor from testifying in a murder trial regarding his observations of the defendant during the several hours he met with him while awaiting trial.

An adult male (the "defendant") was convicted of three counts of premeditated murder for killing three restaurant employees, execution style. A jury sentenced him to death. While the defendant was in prison awaiting trial he became acquainted with a pastor who participated in a volunteer prison ministry.

The pastor spent more than 75 hours talking with the defendant. The pastor was called to testify at the trial regarding his conversations with the defendant. The trial judge ruled that the pastor could not testify as to his conversations with the defendant because the defendant had not waived his clergy-penitent privilege.

However, the judge allowed the pastor to testify regarding his general impressions of the defendant. In particular, he testified that the defendant did not focus on trial strategy but instead tended to concentrate on irrelevant details. He further testified that the defendant expended a great deal of energy trying to appear normal, often watching and mimicking the behavior of others. It was his opinion that the defendant behaved much like a twelve-year-old boy.

The defendant appealed his conviction on several grounds. One of his arguments was that he was "incompetent," and as such he lacked the capacity to "waive" the clergy-penitent privilege and therefore the trial judge erred in refusing to allow the pastor to testify regarding his conversations with the defendant. The court disagreed.

What this means for churches

The clergy-penitent privilege protects "communications" made to a minister while acting in a professional capacity as a spiritual adviser. Ministers cannot be compelled to testify regarding such communications. However, as this court noted, the privilege only extends to communications. Ministers can be compelled to testify regarding their "observations" or general impressions of a counselee's demeanor, since a person's demeanor is not a communication. State v. Reid, 2006 WL 3804398 (Tenn . 2006).

Legal Developments

Child Abuse

A Tennessee court ruled that a church was not liable for a former minister’s acts of child molestation.

Richard R. Hammar, Attorney, CPA
Bio


Key point 4-08
. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

A Tennessee court ruled that a church was not liable for a former minister's acts of child molestation as a result of its failure to report the incidents to the authorities as soon as it learned of them.

Edward became a Catholic priest in 1970. In 1986, a parent reported to the bishop of the diocese that Edward had molested her son when he was a minor. Edward admitted to the molestation when confronted by the bishop, and he was sent to a treatment facility where he allegedly admitted to molesting over thirty boys during the previous fourteen years. This information was included in reports sent to the diocese. The bishop claimed that he reported the mother's allegations to an employee of the state Department of Human Services, but the employee testified that she did remember the conversation.

Upon his release from treatment in 1987 Edward retained or had reinstated his priestly functions, but the diocese limited his activities to those not involving children. Nonetheless, he did involve himself in activities where children were present. In 1989 the diocese learned that Edward had given an underage boy a condom as a Christmas present, and based on this incident it removed him from the priesthood. Edward was ordered to halt performing any and all priestly functions, move off diocesan property, and not work for the diocese in any capacity.

Following his termination from the diocese, Edward moved into a mobile home community and began working for the local juvenile court. He soon began to molest young boys again. In 1991, Edward met a young boy (Jon) at the mobile home community where they all lived. He befriended the family and started taking Jon to school and to football games. In time, Jon began spending the night at Edward's trailer, where Edward began molesting him. The molestation occurred on numerous occasions. Jon's mother discovered the abuse in 1995 and reported her concerns to the police. In 1995 Edward met another family in the trailer park, and he began molesting the family's minor son (Jeremy) on a weekly basis for the next three years. Edward was arrested, tried, and convicted of multiple counts of child molestation, and was sentenced to 25 years in prison.

The parents of Jon and Jeremy sued the diocese, not for negligent hiring or supervision of Edward, but rather for "intentional infliction of emotional distress" based on its failure to report Edward to the authorities. Had the diocese reported the abuse, the parents claimed, Edward would have been prosecuted, convicted and imprisoned, and prevented from molesting their sons.

A trial court dismissed the lawsuit against the diocese, noting that "there is no cause of action for failure to report sex abuse when the alleged non-reported abuse takes place many years apart and involves different victims." The parents appealed.

A state appeals court agreed with the trial court's conclusion that the diocese could not be liable on the basis of intentional infliction of emotional distress for the victims' injuries. It defined intentional infliction of emotional distress as follows: "(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. (2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress (a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or (b) to any other person who is present at the time, if such distress results in bodily harm."

The court concluded that the parents did not meet the requirement that the conduct of the diocese must have been "directed at" a particular person. It observed, "Even if the diocese failed to report Edward when it should have, that conduct was not directed at the plaintiffs or at anyone with whom the plaintiffs had a close personal relationship …. The conduct of Edward in committing sexual assaults on the plaintiffs is so attenuated and remote from the actions of the diocese as to be non actionable."


Application
. Some states have enacted statutes imposing civil liability on mandatory child abuse reporters who do not report known or reasonably suspected incidents of abuse. However, in states without such laws, victims of child abuse have had difficulty persuading courts to impose liability on mandatory reporters who fail to report. This case illustrates this difficulty. The court concluded that a religious organization cannot be liable, on the basis of its failure to report child abuse, for a former minister's acts of child molestation. Doe v. Roman Catholic Diocese, 2003 WL 22171558 (Tenn. App. 2003).

Legal Developments

Recent Developments in Tennessee Regarding Marriage and Divorce

A Tennessee court ruled that a marriage was valid despite the husband’s claim that the officiating clergyman was not qualified to perform marriages and had failed to return a signed marriage license to the county clerk within three days of the marriage as required by law.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1999-01-01

Marriage and Divorce

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

• Key point. A person’s legal authority to solemnize marriages is determined by the tenets of his or her religion.

• Key point. A marriage is not necessarily void because a technical requirement is not met.

A Tennessee court ruled that a marriage was valid despite the husband’s claim that the officiating clergyman was not qualified to perform marriages and had failed to return a signed marriage license to the county clerk within three days of the marriage as required by law. An Iranian couple living in Tennessee were formally engaged in Iran in October of 1994. After returning to Tennessee, the man negotiated a marriage contract the woman’s father in accordance with Islamic custom. In this contract, the man agreed that his future wife’s dowry would be 1,400 Iranian gold coins and that he would pay her 10,000 Iranian gold coins if he violated any provision of the contract. Because Islamic law permits a man to have four wives, the man also agreed that he would not marry anyone else if the parties ever returned to live in Iran. The couple obtained a marriage license from the county clerk’s office in December of 1994. The man asked an acquaintance, Mr. Tarahian, to perform an Islamic “blessing” for the couple. A “blessing” is a formalized ceremony intended to hold out a couple as being married. Mr. Tarahian was not an “imam” (an Islamic spiritual leader roughly equivalent to a pastor or priest). On December 17, 1994, Mr. Tarahian blessed the couple in the presence of four witnesses. Following the ceremony, the couple and Mr. Tarahian signed a marriage certificate that was filed with a mosque in Nashville. Mr. Tarahian did not, however, receive or sign the Tennessee marriage license. The husband kept this document because it was one of the documents required to be filed with the government of Iran in order to make an official record of the marriage in that country. The couple could not begin living together as husband and wife following the blessing because Islamic custom required them to first have a formal wedding reception. A formal wedding reception took place on December 30, 1994. Problems arose within days of the reception. The husband informed his wife that he would not record their marriage license unless she would agree to sign another premarital agreement and relinquish her dowry and earlier marriage contract. He also asserted that their marriage was invalid because Mr. Tarahian did not have the authority to perform the Islamic blessing, and the marriage license was not filed with the county clerk’s office within three days of the marriage as required by law. The parties separated in January of 1995. The wife and Mr. Tarahian later completed and filed another marriage license form. Mr. Tarahian signed the form as the officiant but did not date his signature or indicate on the form that he was an “imam”. Apparently someone in the clerk’s office added the date and the designation before filing the license with the Tennessee Department of Health. The husband did not sign this marriage license.

The husband later sought an annulment, asserting that the marriage was invalid because Mr. Tarahian was not qualified to solemnize marriages and because the marriage license had not been returned to the county clerk within three days following the blessing. The trial court agreed with the husband on both grounds and entered an order finding the marriage to be void from its inception. The wife appealed. She wanted the annulment rescinded and a divorce granted in order to make her eligible for a larger share of her former husband’s property.

Solemnization of Marriage

Tennessee law provides that “[a]ll regular ministers of the gospel of every denomination, and Jewish rabbis, more than eighteen (18) years of age, having the care of souls …

may solemnize the rite of matrimony.” The appeals court noted that “since the courts look to the tenets of the particular religion to determine whether a particular person is a regular minister having care of souls [the husband] has the burden of proving that Mr. Tarahian cannot administer Islamic blessings under Islamic law.”

The court noted that Mr. Tarahian testified in a deposition that he was qualified to perform Islamic blessings and that he had performed a number of these blessings in the past. The husband countered by submitting two letters purporting to demonstrate that Mr. Tarahian was not recognized as an imam in Nashville’s Persian community. The court rejected these letters as inadmissible hearsay containing mere opinions “not relevant to Mr. Tarahian’s qualifications to solemnize marriages” under Tennessee law.

The court placed great reliance on the affidavit of an expert in Islamic Studies who explained that Islam “has consistently rejected the distinction between clergy and laity,” and that Islamic law “stipulates quite precisely that anyone with the requisite knowledge of Islamic law is competent to perform religious ceremonies, including marriage. One is not required to have an official position in a religious institution such as a mosque in order to be qualified to perform such ceremonies.” As a result, Mr. Tarahian, while not an imam, was clearly qualified to perform a marriage or blessing because of his knowledge of Islamic law.

Failure to return the Marriage License

The husband also asserted that the marriage was void because the marriage license was not filed with the county clerk within three days after the December 17, 1994 blessing. In fact, the original marriage license was never filed with the clerk’s office. The only license that was filed was the second marriage license that had been obtained by the wife and Mr. Tarahian, and that was filed nearly two months after the marriage.

The court noted that a marriage license had been filed with the clerk’s office, although after the deadline. Therefore, in order for the husband to prevail, he “must demonstrate that the late filing of a marriage license invalidates a marriage as a matter of law.” The court concluded that this could not be done:

The failure of an officiant to return the marriage license to the issuing clerk within three days after the ceremony does not invalidate the marriage. Thus, if Mr. Tarahian could solemnize marriages under Tennessee law, his failure to return the completed marriage license within the time required by [state law] does not undermine the validity of the marriage. The purpose of the filing requirement is to assure the preservation of a reliable, accurate record of a marriage. The filing of the second marriage license … satisfies this requirement as long as it contains the information required by law.

The court concluded that the second license “appears to be appropriate on its face” since it was signed by the officiant and contains all of the information required by state law (licenses do not need to be signed by both spouses under Tennessee law). The court also pointed out that the second license had not been rejected by either the clerk or the state department of health.

The court noted that “Tennessee protects the institution of marriage by presuming that regularly solemnized marriages are valid. Thus, persons challenging a marriage must provide cogent and convincing evidence that the marriage is invalid. [The husband] has not carried his burden.”

Application. This case illustrates a couple of important points. First, the court reached the extraordinary conclusion that a person need not be a member of the clergy to perform a valid marriage under state law. All that is necessary is that the person’s religion recognize him or her as possessing the authority to do so. This conclusion has been rejected by a number of other courts. Second, the court reached the more conventional conclusion that marriages are not necessarily void simply because not all of the technical requirements prescribed by state law are satisfied. Clergy who fail to comply with a technical requirement for marriages are not necessarily giving a couple a basis for an annulment at some later time. Aghili v. Saadatnejadi, 958 S.W.2d 784 (Tenn. App. 1997). [Performance of Marriage Ceremonies]

© Copyright 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m55 c0199

Legal Developments

Recent Developments in Tennessee Regarding Sexual Misconduct by Clergy and Church Workers

A Tennessee court ruled that a church-operated preschool was not legally responsible for a sexual assault committed by a 4-year-old boy on another 4-year-old boy, since the assault was not foreseeable.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1998-05-01

Sexual Misconduct by Clergy and Church Workers

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

• Key point. Churches are not necessarily responsible for unforeseeable sexual assaults committed by minors on other minors on church premises.

A Tennessee court ruled that a church—operated preschool was not legally responsible for a sexual assault committed by a 4—year—old boy on another 4—year—old boy, since the assault was not foreseeable. A 4—year—old boy (the “victim”) who was enrolled in a church—operated preschool program asked for permission to use the restroom which was located 40 feet down the hall. The teacher informed the victim that he would have to wait until another 4—year—old boy returned from the restroom. When the other boy returned to the classroom the teacher gave the victim permission to go to the restroom. While the victim was in the restroom, the boy who had just returned asked for permission to “get a drink.” The teacher allowed him to do so, but cautioned him not to enter the restroom. The teacher stood in the doorway of the classroom so she could monitor the boy and the classroom at the same time. A few moments later the teacher had to leave the doorway to attend to a crying child. Upon returning to the doorway some 2 or 3 minutes later, she saw the victim and the other boy running together down the hallway toward the classroom. While the teacher was attending the crying child the boy who had gone to get a drink entered the restroom and sexually assaulted the victim. Neither child was being supervised by an adult while absent from the classroom. The victim’s parents sued the church, claiming that it was responsible for their son’s injuries on the basis of negligent supervision. A trial court ruled in favor of the church, and the parents appealed.

The school conceded that it had a duty to exercise reasonable care in the supervision of children under its control. However, it insisted that a sexual assault between two 4—year—old boys was so unforeseeable that there was no duty to guard against it. The school’s director testified that the school had never received a complaint or report about sexual assaults or misconduct among its preschoolers, and that it had never received a complaint concerning the behavior of the boy who committed the molestation. The teacher who was on duty also testified that she knew of no prior sexual assaults involving children at the school, including the boys involved in this incident. The parents presented an expert in early childhood education who testified that (1) proper adult supervision required that the supervising adult be able to see or hear the child at all times; (2) it is not proper adult supervision to allow more than one child to leave a classroom unattended; and (3) a teacher cannot properly supervise a child in a restroom down the hall by occasionally standing in the doorway of a classroom.

A state appeals court ruled that the school was not guilty of negligent supervision because the sexual assault was not reasonably foreseeable. The court noted that there can be liability for negligence unless a victim’s injuries were a reasonably foreseeable result of the negligent behavior. This test was simply not met. The court observed:

[T]he acts alleged in the complaint are unforeseeable as a matter of law. The alleged acts would be considered vile and reprehensible between two adults, but between two four—year—old boys, the alleged acts are even more shocking and appalling. We do not believe that a reasonable person would ever foresee this type of behavior between boys of that age. The possibility of an accident of this general character could not have been foreseen by [the church or school]. [The school] presented affidavits showing that a sexual assault had never occurred in the school, and that the school had no reason to suspect this behavior from [the assailant]. Moreover, we should consider the fact that the teacher could not reasonably foresee that a child that had just used the restroom facilities would return to the restroom instead of the classroom after getting a drink of water in the school hall.

The parents insisted that “scuffles and pushing and shoving” between two preschool boys is foreseeable, and therefore a sexual assault is reasonably foreseeable. The court disagreed, noting that the injuries that result from a scuffle are different from those that result from a sexual assault. The victim in this case alleged “severe and irreparable emotional and physical damage.” The court noted that “these are the types of injuries that result from a sexual assault, not a scuffle or pushing and shoving.”

Application. The preschool was not liable for one reason-preschool staff were not aware of any prior sexual assaults occurring on its premises. As a result, the assault in this case was not foreseeable and therefore the preschool was not legally responsible for it. But what if school officials were aware of prior sexual assaults on school premises? The court might well have found the school liable since the assault by the 4—year—old would no longer have been unforeseeable. This case demonstrates a principle of fundamental importance to church leaders. When you become aware of sexual misconduct (or any other harmful conduct) on your premises, future harm becomes foreseeable. The legal significance of this is that the church is exposed to liability for future incidents on the basis of negligence because of the foreseeability of harm. Roe v. Catholic Diocese of Memphis, 950 S.W.2d 27 (Tenn. App. 1996). [Negligence as a Basis for Liability]

© Copyright 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m67 m10 m11 c0398

Legal Developments

Ownership of Church Parsonages

A Tennessee court addressed this matter in an interesting case.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1992-07-01 Recent Developments

Church Property

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

• A Tennessee court addressed the issue of ownership of a church parsonage in an interesting case. In 1953, a donor gave a home to a church. The deed contained the following language: “This land is given by us to the church for the purpose for the home for the Baptist pastor and no pastor shall occupy said place as a home unless he preaches `that you are saved by Grace through Faith in Jesus Christ and not by works.’ And in the event he refuses to preach such doctrine he will not be permitted to reside in said parsonage.” Many years later, the church purchased other property for the purpose of constructing a new parsonage, and it sought approval from a court to sell the existing parsonage and apply the proceeds to the construction of the new home. The original donor’s surviving family members challenged the church’s position, and claimed that they would own the property if the church ever attempted to sell it. A trial court disagreed with the family, and ruled that the church was the absolute and unconditional owner of the parsonage. Accordingly, the church could sell the original parsonage and apply the proceeds to the construction of the new building. The family appealed this decision. The family argued that the original deed was “conditional.” That is, the donor intended for the church to own the parsonage only so long as a Baptist pastor lived in the dwelling who preached “that you are saved by Grace through Faith in Jesus Christ and not by works.” The family maintained that this condition would be violated if the church ever sold the parsonage, and at such time the title would revert to them. The state appeals court rejected this position, and ruled in favor of the church. It stressed that the alleged “condition” in the deed was not a condition at all, but rather “merely words stating the purpose of the gift.” The court concluded that the creation of a conditional deed requires language that clearly calls for a reversion of the property to the donor in the event a specified condition is ever violated. The language in the this deed simply did not satisfy this requirement, the court concluded. Mitchell v. Jerrolds, 1991 WL 39587 (Tenn. 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: m21 c0492

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Legal Developments

Spiritual Counsel and the Clergy-Penitent Privilege

When is a conversation protected?

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1992-03-01 Recent Developments

Confidential and Privileged Communications

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

• A Tennessee appeals court concluded that statements made by a criminal suspect to his minister were privileged, and accordingly not admissible as evidence in a court of law. Tennessee law specifies that

no minister of the gospel … shall be allowed or required in giving testimony as a witness in any litigation, to disclose any information communicated to him in a confidential manner, properly entrusted to him in his professional capacity, and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipline, wherein such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted.

A burglary suspect made incriminating statements to his minister, which were admitted at trial. The trial court reasoned that the statements to the minister were not privileged since they were not made to him in his professional capacity. Rather, they “emanated from the closeness of the relationship between them.” The suspect was convicted, and he appealed his conviction on the ground that the state’s clergy-penitent privilege was violated. A state appeals court agreed. It observed:

Under the statute, communications are privileges which are made to a clergyman in his professional capacity in the course of his practice or discipline, as established by the rules or customs of his religious organization or denomination when the communicator is seeking spiritual counseling and advice. We conclude that the requirements of the statute are met to establish the communications are privileged. [The minister] is a licensed minister of the gospel … and the information was communicated by the defendant in a confidential manner [to the minister] who was acting in his professional capacity in the furtherance and discharge of his functions as a minister. The minister initiated the contact and transported the defendant to a motel and inquired “are you having problems?” The minister accompanied the defendant to the motel room and explained he intended to give “comfort to him” since the defendant was “really burdened down.” [The minister] further testified he didn’t distinguish between being the defendant’s minister or friend on that occasion. He explained he counselled the defendant to put his trust in God and assured that “God will not fail.” The minister also testified he believed the defendant when defendant expressed his belief that the Lord had sent the minister to him …. While the evidence does not delineate the minister’s duties, it may be reasonably inferred that the minister’s “course of his practice or discipline” is highly informal in nature and this informality is reflected in his relationship with the defendant and other church members. Clearly, the minister inquired of defendant’s troubles, consoled him, and counseled him to put his faith in God and the defendant felt the minister was God’s emissary. The evidence [does not support] the trial judge’s determination that the [conversation] between the defendant and the minister was due to their friendship.

Accordingly, the court found the communications to the minister to be privileged under state law. The significance of this case is the recognition that a conversation between a minister and another individual can be privileged (and not admissible in court) even if the two are friends. Friendship does not automatically preclude conversations from being privileged. The question is whether a particular conversation was motivated by a person’s desire to obtain spiritual counsel. If so, the conversation ordinarily should be privileged whether or not the person is a friend of the minister. Clergy can help to ensure that conversations are privileged by simply asking the counselee whether or not the purpose of the conversation is to seek spiritual counsel. If the answer is yes, this is almost irrefutable evidence that the conversation is privileged. Because the purpose of some conversations is not clear, clergy should keep this simple suggestion in mind. State v. Boling, 806 S.W.2d 202 (Tenn. App. 1990).

See Also: The Clergy-Penitent Privilege

© 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: m33 c0292

Legal Developments

Court Settles Debate Over Woman’s Last Will and Testament

The woman’s family and her church both claimed a certificate of deposit.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1991-03-01 Recent Developments

Wills, Trusts, and Estates

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

• A Tennessee appeals court was asked whether a last will and testament left a $100,000 certificate of deposit to her church, or to her relatives. The will specified that “I have not made a devise or bequest to any of my relatives in this will because they are all financially secure in their own right and do not need any little thing I have to offer.” The will also stated: “I direct that my executor shall allow the members of my family to select such item or items from my clothing, jewelry, household goods, personal effects and all other tangible personal property not otherwise specifically bequeathed, except securities and cash on hand or on deposit, as each of them may desire or want …. In the event that there is any of said personal property remaining, my executor is directed to sell the remaining property at public or private sale, as deemed most appropriate by my executor, and the proceeds therefrom shall be paid to the Eastminster Presbyterian Church.” At the time of her death, the woman owned a $100,000 certificate of deposit (in her name only) at a local bank. The church, and the woman’s relatives, both claimed to be entitled to the certificate of deposit on the basis of these provisions in the will. A trial court agreed with the church, and the relatives appealed. The state appeals court ruled that the relatives were entitled to the certificate of deposit. The court observed that the woman’s heirs were allowed to select items of “clothing, jewelry, household goods, personal effects and all other tangible personal property not otherwise specifically bequeathed, except securities and cash.” The only benefit the church received under the will was the proceeds from the sale of items other than securities or cash that the heirs did not select. Since the certificate of deposit was part of the “securities and cash” of the woman’s estate, the church had no claim to it under the will. In re Estate of Jackson, 793 S.W.2d 259 (Tenn. App. 1990).

© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m80 c0291

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Legal Developments

Invasion of Privacy

Can a church be sued for releasing information regarding the debts of a previous minister?

Richard R. Hammar, Attorney, CPA
Bio

Can a church be sued for releasing information regarding the debts of a previous minister?

That was the issue before a Tennessee state appeals court. The minister had been employed by a local Tennessee church in 1981 and 1982.

While there, he learned that his wife was contemplating divorcing him. He left the church and followed his wife to Pennsylvania, leaving behind many unpaid debts. The local church learned of the debts and reported them to the state office of the denomination.

A denominational officer repeatedly contacted the former minister and requested that the debts be paid. These efforts were unsuccessful. In 1985, the minister returned to Tennessee, began attending another church, and requested a transfer of his membership from the previous church to the church he presently was attending.

An officer of the previous church provided the new church with a listing of the minister's debts, and indicated that they remained unpaid. By the end of 1986, the minister still had not paid the bills, and he was threatened with disciplinary action by the denomination.

In 1987, he sued his denomination and former church for emotional damages that he allegedly suffered because of their publication of information regarding his debts. Such publication, the minister claimed, amounted to an "invasion of privacy."

A trial court and state appeals court both ruled in favor of the church and denomination. The appeals court acknowledged that "public disclosure of private facts" has been deemed by many states to constitute an "invasion of privacy." However, the court concluded that no "invasion of privacy" existed in this case since any such claim was barred by the state's statute of limitations (which required such lawsuits to be filed within one year of the date of the alleged injury).

The court observed that the disclosure of the minister's debts occurred more than one year before the filing of the lawsuit, and therefore the lawsuit was barred by the statute of limitations. The court was not required to determine whether or not the actions of the church and denomination amounted to an invasion of privacy.

This case is significant for two reasons. First, it indicates that churches face potential legal liability for publishing information regarding personal debts. It is important to emphasize that several courts have ruled that the public disclosure of personal debts does amount to an invasion of privacy.

Second, it illustrates the potential risks that a church faces in responding to reference requests. What can a church do to reduce this risk? It can refuse to respond to reference requests without first receiving a "release" form signed by the applicant (consenting to the reference, releasing the church from liability for statements made in good faith, and giving the applicant the option of waiving the right to see the reference). The church should also be careful to transmit any information directly to the person requesting the reference, and the letter (and envelope) should be labelled "personal and confidential."

The recipient should be instructed not to use the letter for any other purpose, and not to disclose its contents to anyone else. Finally, share no information that cannot be substantiated. Brooks v. Collinwood Church of God (Tenn. App. unpublished opinion 1989).

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