Pastor steals ‘love offerings,’ gets three years in prison

Case reveals how ‘love offerings’ raise many complex questions and issues for churches, church leaders.

Bio

State: Texas
Categories: Criminal Liability, Excess Benefit Transactions

Key point 7-21. Embezzlement refers to the wrongful conversion of funds that are lawfully in one’s possession.

A Texas pastor was charged with theft of U.S. currency valued between $2,500 and $30,000 from his church, a third-degree felony.

The pastor pleaded “not guilty,” and the case proceeded to a jury trial.

At trial, the evidence showed that the pastor represented to his church members that he had a “calling” to support a South African church and orphanage in need of financial assistance.

The church and its members directed “love offerings” to the pastor to support the South African church and orphanage.

Tip: “Love offerings” from a church to its pastor almost always constitute taxable income to the pastor.

The church’s elders began questioning the legitimacy of the pastor’s representations, which were later revealed to be false.

The “love offerings” occurred from August 2017 until October 2017.

Pastor sentenced with theft

The jury found the pastor guilty. Following the jury’s guilty verdict, the trial court gave the pastor a three-year prison sentence. The pastor appealed.

A state appeals court found no basis for an appeal and affirmed the trial court’s verdict.

Why this case matters to church leaders

There are aspects to this case that merit consideration by church leaders. Consider the following:

1. Control over funds

The court concluded that the church members’ “love gifts” to the pastor were not tax-free, even though he claimed that he would use them exclusively to help a church and orphanage in South Africa. The reason: the donated funds were not sufficiently subject to the church’s control. It was entirely up to the pastor to decide how the funds were spent. The fact that the pastor failed to use the funds for the church and orphanage in South Africa underscores the problem.

2. Discretionary funds and the ‘constructive receipt’ tax rule

It is a common practice for a congregation to set aside a sum of money in a discretionary fund and give a minister the sole authority to distribute the money in the fund. In some cases, the minister has no instructions regarding permissible distributions. In other cases, the congregation establishes some guidelines, but these often are oral, ambiguous, and nonaccountable. Many ministers and churches are unaware of the potential tax consequences of these arrangements.

The IRS could assert that the full value of the discretionary fund constitutes taxable income to the minister, even if the minister does not benefit from the fund. The mere fact that the minister could benefit from the fund may be enough for the fund to constitute taxable income.

The basis for this result is the “constructive receipt” rule, which is explained in income tax regulation 1.451-2(a):

Income although not actually reduced to a taxpayer’s possession is constructively received by him in the taxable year during which it is credited to his account, set apart for him, or otherwise made available so that he may draw upon it at any time, or so that he could have drawn upon it during the taxable year if notice of intention to withdraw had been given. However, income is not constructively received if the taxpayer’s control of its receipt is subject to substantial limitations or restrictions.

For a discretionary fund to constitute taxable income to a minister, it is essential that the minister have the authority to “draw upon it at any time” for his or her personal use. This means the fund was established without any express prohibition against personal distributions.

EXAMPLE: The Tax Court ruled that a pastor was required to report as taxable income $182,000 in deposits to a church bank account over which he exercised complete dominion and control. This case supports the view that church contributions to discretionary funds over which a pastor has complete control represent taxable income to the pastor. The court concluded:

[The minister] had unfettered access to the funds in the church accounts, and there is no evidence that the church congregation had any say over how those funds were used. Indeed, the only member of the church congregation who testified at trial had no knowledge of the church’s finances, suggesting that [the pastor] did not share any information about church finances with the congregation. The facts show that [he] fully controlled the church accounts, used money in those accounts at will, including to pay personal expenses, and were not accountable to anyone in their congregation for their use of the church funds. Accordingly, we conclude that [the pastor] exercised dominion and control over the church bank accounts. Consequently, all deposits into those accounts, except those from nontaxable sources, are properly includable in petitioners’ gross income. 101 T.C.M. 1550 (2011).

3. Love gifts

This case demonstrates once again that “love gifts” to a pastor represent taxable income and should be so reported by the pastor and the church.

4. Charitable contributions

Contributions by church members to a pastor’s discretionary fund will not be tax deductible by donors, assuming that the pastor has sole discretion on distributions from the fund. This is because charitable contributions must be made to, or for the use of, a “qualified charitable organization.” Section 170(c) of the tax code defines qualified organizations to include, among others, any organization that satisfies all the following requirements:

created or organized in the United States (or a United States possession);
organized and operated exclusively for religious, educational, or other charitable purposes;
no part of the net earnings of which inures to the benefit of any private individual; and
not disqualified for tax exempt status under section 501(c)(3) by reason of attempting to influence legislation, and which does not participate or intervene in any political campaign on behalf of any candidate for public office.

Donations to a pastor earmarked for a discretionary fund over which he or she exercises sole dominion does not satisfy this definition.

5. Excess benefit transaction

The IRS can impose an excise tax against a “disqualified person,” and in some cases against church board members individually, if excessive compensation is paid to the disqualified person. Most senior pastors will meet the definition of a disqualified person. These taxes, known as intermediate sanctions, are substantial (up to 225 percent of the amount of compensation the IRS determines to exceed reasonable compensation).

As a result, governing boards or other bodies that determine clergy compensation should be prepared to document any amount that may be viewed by the IRS as excessive. This includes salary, fringe benefits, and special-occasion gifts. If in doubt, the opinion of a tax attorney should be obtained.

The IRS deems any taxable fringe benefit provided to an officer or director of a tax-exempt charity (including a church), or a relative of such a person, to be an automatic excess benefit that may trigger intermediate sanctions, regardless of the amount of the benefit, unless the benefit was timely reported as taxable income by either the recipient or the employer.

As a result, the failure of the pastor, or his employing church, to report the offerings as taxable income made them an automatic excess benefit subjecting the pastor, and possibly members of the church board, to substantial excise taxes as noted above.

6. Donations to foreign charities

The pastor’s assertion that he was raising funds for a church and orphanage in South Africa raises the question of the deductibility of contributions made to churches and charities in other countries. The IRS summarizes the rules as follows:

You can’t deduct contributions to . . . foreign organizations other than certain Canadian, Israeli, or Mexican charitable organizations. . . . Also, you can’t deduct a contribution you made to any qualifying organization if the contribution is earmarked to go to a foreign organization. However, certain contributions to a qualified organization for use in a program conducted by a foreign charity may be deductible as long as they aren’t earmarked to go to the foreign charity. For the contribution to be deductible, the qualified organization must approve the program as furthering its own exempt purposes and must keep control over the use of the contributed funds. The contribution is also deductible if the foreign charity is only an administrative arm of the qualified organization. . . .

You may be able to deduct contributions to certain Canadian charitable organizations covered under an income tax treaty with Canada. To deduct your contribution to a Canadian charity, you generally must have income from sources in Canada. See IRS Publication 597 (Information on the United States–Canada Income Tax Treaty) for information on how to figure your deduction.

You may be able to deduct contributions to certain Mexican charitable organizations under an income tax treaty with Mexico. The organization must meet tests that are essentially the same as the tests that qualify U.S. organizations to receive deductible contributions. The organization may be able to tell you if it meets these tests. (IRS Publication 526)

7. Internal controls

This case provides a useful lesson in the importance of maintaining good “internal controls” over a church’s financial resources, and the problems that can occur when internal controls are neglected.

Learn best practices for establishing internal controls with our online course, “Safeguarding Your Church’s Finances.”

8. Criminal consequences

The case illustrates that church leaders like this pastor who mishandle church funds may be subject to both tax penalties and criminal liability.

Zitha v. State, 2023 WL 3526080 (Tex. App. 2023).

Legal Developments

Inaction and Cover-up Create Significant Liability in Sexual Misconduct Case

Church leaders chose not to report sexual misconduct by a church program leader against a minor and covered up details, prompting a lawsuit.

Richard R. Hammar

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

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.

Key point 6-08. State and federal laws provide limited immunity to uncompensated officers and directors of churches and other charities. This means that they cannot be personally liable for their ordinary negligence. However, such laws contain some exceptions. For example, officers and directors may be personally liable for their gross negligence or their willful or wanton misconduct.

Background

A church employee (Jon) ran a church-based program (the “academy”) offering afternoon, weekend, and summer singing and dancing classes.

He also directed the academy’s dance team, which consisted of a group of ten standout dancers. They traveled to other states to perform.

One member of the dance team was a minor (the “victim”). Because of his participation on the dance team, the victim spent a lot of time with Jon, who became a mentor and a friend.

The victim’s mother described the mentorship as “a natural thing.” Sometimes Jon and the victim went to see a movie or grab a meal.

In July 2009, when the victim was 17 years old, he participated in an overnight church dance team trip supervised by Jon.

Jon shared a hotel suite with a handful of boys, including the victim. One night, while everyone slept, Jon crept to the victim’s bed, reached under the covers, and fondled him. The next day, Jon confessed to Brian, an adult chaperone (who was a volunteer and former pastor).

Brian counseled Jon on ways to tame his “dark thoughts.”

In July 2010, shortly after the victim turned 18, the dance team traveled to another overnight event.

As before, Jon shared a suite with a handful of boys, including the victim.

Again, Jon crept over to the victim’s bed while everyone slept, and fondled him under the covers.

The next day, Jon again confessed to Brian. Brian suspected the victim was not asleep when Jon touched him.

The next day Brian—and two members of the pastoral staff—met with Jon.

Jon explained what had happened the night before. The church leaders sent Jon to counseling.

They told him he was not to be alone with any minors.

The church leaders did not report that information to the victim, his parents, parents in the church community, or the police.

They did not terminate Jon’s employment.

They did not restrict Jon’s access to children.

A confrontation

In 2014, the victim talked to his parents. The parents confronted Jon, who told them about the 2009 and 2010 incidents, as well as his subsequent conversations after each incident with church leaders, and the leaders’ decision to send him to counseling.

The victim’s father demanded a meeting with church leaders, and at that meeting church leaders (1) acknowledged that the church mishandled the situation, (2) agreed to fire Jon (he resigned before being terminated), and (3) falsely advised the parents that the accusations had been reported to the police.

The victim and his family disassociated from the church, which had been the focus of their lives. They sued the church on the following grounds:

negligence,
negligent hiring,
negligent supervision,
negligent retention,
negligent failure to warn,
negligent misrepresentation, and
vicarious liability.

The lawsuit was set for trial in August of 2021, but a trial court dismissed it based upon procedural and evidentiary arguments made by the church. The victim and his family appealed. The appellate court reversed the trial court’s decision and sent the case back to the trial court. No further information about the case’s status was available as of the date of this publication.

Why this case matters to churches, church leader, and board members

The facts of this case, and the potential legal liability caused by it, illustrate several scenarios that can lead to significant liability for a church.

Consider the following:

1. Overnight youth trips

Both acts of molestation happened on overnight trips involving minors.

Such trips pose a significant risk to churches because (1) they are inherently difficult to supervise, (2) they are often targeted by pedophiles, and (3) monetary damages awarded by juries can be substantial and well above insurance coverage limits.

Churches can do many things to reduce the risks associated with such trips.

First, align your precautions with those taken by local public schools and youth-serving agencies, including youth sports teams, regarding sleeping arrangements and overnight trips. This can help with establishing the church’s exercise of care, which may help reduce potential vulnerabilities for children and also help demonstrate the church’s efforts to match its practices with other community institutions. This step also may help negate a claim involving negligence.

Second, contact your local police department, child abuse reporting agency, church insurance company, and denominational offices for additional information and guidance.

Document in writing every conversation with every agency to include who you spoke with, when you spoke with them, and the response each representative offered.

And third, avoid “power imbalances” when establishing sleeping arrangements. Many believe that having only minors of the same age in a room (no ‘power imbalances”) may be the least risky arrangement. The risk goes up with the addition of older children or an adult. Relatedly, also evaluate what the maximum number of minors in each room should be. Again, check with the public school district and reputable charities to learn from their examples.

2. Off-site socialization and “mentoring”

Jon and the victim “met socially outside of the academy’s activities to see a movie or grab a meal.” Such unsupervised and often spontaneous meetings exposed the church to potential risk. It also exposedthe adult to founded or unfounded accusations of misconduct. Such liaisons should be discouraged or prohibited unless a second adult is continually present.

3. Child abuse reporting

Jon met with members of the pastoral staff and explained his actions regarding his abuse of the victim The church chose not to report the abuse to authorities.

The church’s decision not to report may have violated state child abuse reporting laws. It also needlessly exposed other adolescents to the risk of abuse. And finally, it exposedthe church to the risk of liability based on negligence.

4. Jon’s employment

The church’s leaders did not immediately terminate Jon’s employment following his confession. They did not restrict his access to children, but they told him he was not to be alone with any minors. Members of the pastoral staff then later lied to the parents about filing an incident report with the police, which had not been done.

Placing a known or credibly accused child molester in a position involving immediate access to minors is one of the most significant legal risks that a church can take. That is because it may constitute gross negligence.

Church leaders should be familiar with the concept of gross negligence for the following three reasons:

(1) Punitive damages. Courts can award “punitive damages” for conduct that amounts to gross negligence. Punitive damages are damages awarded by a jury “in addition to compensation for a loss sustained, in order to punish, and make an example of, the wrongdoer.” They are awarded when a person’s conduct is particularly reprehensible and outrageous. This does not necessarily mean intentional misconduct. Punitive damages often are associated with reckless conduct or conduct creating a high risk of harm.

To illustrate, in one case, a punitive damage award was based on the fact that church officials repeatedly and knowingly placed a priest in situations where he could sexually abuse boys. The church also failed to supervise him and disclose his sexual problem.

Clearly, church officials did not intend for the priest to molest anyone. But, under the circumstances, the jury concluded that the church’s actions were sufficiently reckless to justify an award of punitive damages.

Church leaders must understand that reckless inattention to risks can lead to punitive damages, and that such damages may not be covered by the church’s liability insurance policy.

It is critical to note that many church insurance policies exclude punitive damages.

This means that a jury award of punitive damages represents a potentially uninsured risk.

Accordingly, it is critical for church leaders to understand the basis for punitive damages, and to avoid behavior which might be viewed as grossly negligent.

(2) Loss of limited immunity under state law. State and federal laws provide uncompensated officers and directors of nonprofit corporations (including churches) with immunity from legal liability for their ordinary negligence. This is an important protection. However, such laws do not protect officers and directors from liability for their gross negligence.

(3) Personal liability. Church leaders who are guilty of gross negligence are more likely to be sued personally than if their behavior is merely negligent. Indifference by church leaders to information that clearly demonstrates improper behavior by a staff member or volunteer worker can be viewed by a court as gross negligence, and this will make it more likely that the church leaders will be sued personally.

So how can churches and church leaders reduce the risk of such tragic outcomes and liabilities? My 14-step plan for churches provides a comprehensive approach.

Key point. Look at these precautions as ways to protect minors rather than as a risk management tool. If your goal is risk reduction, compliance is likely to suffer. Compliance is higher and of longer duration when leaders are motivated primarily by a desire to protect minors.

John Doe v. Church, 2023 WL 3476834 (Cal. App. 2023).

Legal Developments

Texas Appellate Court Affirms Dismissal of Decades-Old Abuse Claim

Court said the victim could not establish certain facts that would trigger an exception to the state’s statute of limitations for a civil claim.

Richard R. Hammar, Attorney, CPA

Bio

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

Key point 10-16.4 — The statute of limitations specifies the deadline for filing a civil lawsuit. Lawsuits cannot be brought after this deadline has passed. There are a few exceptions that have been recognized by some courts: (1) The statute of limitations for injuries suffered by a minor begins to run on the minor’s eighteenth birthday. (2) The statute of limitations does not begin to run until an adult survivor of child sexual molestation “discovers” that he or she has experienced physical or emotional suffering as a result of the molestation. (3) The statute of limitations does not begin to run until an adult with whom a minister or church counselor has had sexual contact “discovers” that his or her psychological damages were caused by the inappropriate contact. (4) The statute of limitations is suspended due to fraud or concealment of a cause of action.

Summary: A Texas state appellate court affirmed a trial court’s decision to dismiss claims brought by a victim against his former church for the child abuse he suffered as a minor based on the acts of two priests.

Decades-old abuse claim involved sexual molestation

In 1978, an adult male (“Doe”) was a 16-year-old student at a Catholic school (“school”) in Dallas, Texas. The school’s president and its principal— both Jesuit priests— invited Doe and a friend (“G.L.”) to a religious retreat in Mobile, Alabama.

At this event, Doe was sexually molested by a priest. The priest got the student drunk and sexually assaulted him. Doe claimed he had no prior sexual experience and did not realize what had happened to him. Doe woke up and told G.L. what happened. Doe testified that after the assault, “I was so scared and then I went to go wake up G.L. to tell him what had happened and—and when I told him what happened and he didn’t believe me and I didn’t know what to think. I was scared. I was hurting, and I just wanted to go home.”

The two boys left Mobile “within a day or so” of the assault.

Shortly after returning to Dallas from Mobile, Doe’s family moved to Harlingen.

The offending priest was later transferred to an assistant pastor position in Shreveport, Louisiana, where he sexually assaulted more children. He was removed from the ministry in 1986.

Doe claimed that he “had absolutely no memory of what the priest had done to me from the time we left Mobile.”

In 2018, Doe was living in Corpus Christi, Texas. G.L. visited Corpus Christi, and he contacted Doe. They met for dinner and discussed their time at the school and the trip to Mobile. During that conversation, Doe remembered the priest’s sexual assault on him for the first time in 40 years.

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G.L. claimed when he was in Mobile in 1978, Doe told him that “he was uncomfortable with something that the priest had done to him.”

G.L. continued, “At the time, I didn’t think much of what he told me and I didn’t ask him any questions. Instead, I responded to [Doe] saying something along the lines that—‘these Jesuits are pretty demonstrative with their affection, don’t take it too seriously.’”

In 2018, Doe told G.L., “I tried to tell you about what the priest did to me when we were in Mobile.”… A few months later, G.L. saw the priest’s name on a list of “credibly accused” clergy. G.L. reported the priest’s sexual assault of Doe to the school’s president. Doe sued the school and the Catholic Society of Religious and Literary Education (the “church defendants”).

4-Part Series: Expanding Abuse Victims’ Rights and What It Means for Churches

As state and federal lawmakers understandably expand abuse victims’ rights, Church Law & Tax examines what it all means for churches.

Child abuse scandals continue to garner widespread media attention as well as the attention of lawmakers nationwide. As more victims come forward, often years or decades after suffering alleged abuses, they learn their state’s statute of limitations prevents them from seeking damages from the perpetrator…

Evidence revealed the defendants in the decades-old abuse claim knew as early as January 1975 about the priest’s sexual abuses. The evidence also revealed the defendants intervened to stop an investigation, and acted to keep the information from becoming public.

Letters between the defendants in December 1977 discuss the priest’s history “of overt homosexual encounters with two high school boys.”

The church defendants took no action “on the supposition that the condition had been brought under control.” However, a few weeks later the priest made sexual advances toward a 14-year-old boy.

Doe sued the church defendants on March 14, 2019, almost 41 years after the incident. Doe identified the following bases of liability:

1. Respondeat superior and other types of agency (a principal is responsible for the acts of its agents committed within the scope of agency).

2. The church defendants were negligent by:

failing to report to the police and other authorities the priest’s known sexual assaults of children,
assigning the priest to locations where children were located, knowing he had sexually assaulted children,
failing to investigate the priest’s known sexual assaults of children, and
failing to have written policies in place regarding sexual assaults.

3. The church defendants were negligent by retaining the priest and failing to properly supervise him when they knew or should have known he had abused children.

4. The church defendants were in a special fiduciary relationship with Doe which they breached “by subjecting him to … a known pedophile.”

5. The church defendants violated their fiduciary duties by failing to disclose “the extent of the problem of sexual abuse of children by the Roman Catholic clergy.”

The church defendants filed a motion for summary judgment as a matter of law, arguing Doe’s decades-old abuse claim was barred by the applicable statute of limitations in Texas. In Texas, civil lawsuits must be filed within two years of the date of an injury.

The trial court granted the defendants’ motion and dismissed Doe’s claims.

Doe files an appeal

Doe appealed the trial court’s decision.

The appellate court first explained the purpose of the statute of limitations, citing a prior state supreme court decision:

Limitations statutes afford plaintiffs what the legislature deems a reasonable time to present their claims. They also protect defendants and the courts cases where the search for truth may impaired by the loss of evidence. Loss of evidence can come from the death or disappearance of witnesses, fading memories, disappearance of documents or otherwise. The purpose of a statute of limitations is to establish a point of repose and to terminate stale claims. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex. 1990).

The appellate court then noted that a statute of limitations “begins to run when a cause of action accrues” and that under the “legal injury rule,” a cause of action accrues “when a wrongful act causes some legal injury, even if the fact of injury is not discovered until later and even if all resulting damages have not yet occurred.”

In this case, “the priest’s assault on Doe occurred in August 1978. Doe was sixteen at the time, so the limitations period did not begin to run until Doe turned eighteen in 1980. … The limitations period was two years. Thus, limitations expired in 1982, two years after Doe turned eighteen, unless accrual of Doe’s causes of action was deferred or the running of the limitations period was tolled.

Doe failed to establish elements of discovery rules

Doe acknowledged that he did not file his lawsuit within two years from the date of injury and therefore the statute of limitation potentially barred his legal claims against the church defendants. However, Doe insisted that the discovery rule applied and deferred the accrual of his decades-old abuse claim until he remembered the assault in 2018.

The appellate court noted that the “discovery rule” is an exception to the general rule that a cause of action accrues at the time of the injury, deferring the accrual of a cause of action ”until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to the cause of action.”

The court noted that it applied the discovery rule “only when the nature of plaintiff’s injury is inherently undiscoverable and the evidence of injury is objectively verifiable.”

The court concluded that Doe failed to establish these elements. As a result, the discovery rule did not extend the limitation period beyond two years.

What this means for churches

Many states have adopted a “discovery rule” that suspends the statute of limitations in sexual abuse cases until the victim “discovers, or with reasonable diligence should have discovered, the injury.”

The discovery rule potentially exposes churches to the possibility of a decades-old abuse claim.

Although the appellate court affirmed the trial court’s decision that such an exception did not apply to Doe’s specific claims, church leaders still must note this possible exception to their respective state’s statute of limitations. Furthermore, many states are extending the periods of time for civil claims involving child sexual abuse to be brought or abolishing the statute of limitations for child sexual abuse claims altogether.

There are some important considerations for leaders to especially note:

1. Churches to should keep church insurance policies permanently. That’s because a decades-old abuse claim may require a church to produce a copy of the insurance contract for the year the misconduct happened. In many cases, churches are unable to do so, and face a potentially sizable uninsured risk.

2. To invoke the discovery rule, an adult survivor of childhood sexual abuse must demonstrate that they had no prior knowledge connecting the abuse with the perpetrator. This can be a challenge because it often requires the victim to describe the injury and its effect without realizing that, in doing so, the availability of the discovery rule may be compromised. As the court in this case noted: “Because Doe ceased to remember the assault almost immediately, he could not have told his parents or anyone else.”

3. In recent years, several states have abolished the statute of limitations in child sex abuse cases. This development underscores the need for churches to retain permanently all liability insurance policies.

4. The court cited the following facts that help corroborate allegations of abuse: “A confession by the abuser; a criminal conviction; contemporaneous records or written statements of the abuser such as diaries or letters; medical records of the person abused showing contemporaneous physical injury resulting from the abuse; photographs or recordings of the abuse; an objective eyewitness’s account. …”

5. When shopping for church insurance, church leaders should carefully examine policies for sex abuse coverage. Many insurance policies omit coverage for sex abuse claims involving minors or limit it significantly. Additional coverage for sexual abuse and sexual misconduct may need to be purchased.

Doe v. Jesuit College Preparatory School, 2022 WL 2352953 (Tex. App. 2022)

Legal Developments

Court Affirms Massive Prison Sentence for Pastor

The case underscores the need for vigilance in safeguarding and monitoring adult interactions with minors.

Richard R. Hammar, Attorney, CPA

Bio

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

Key point 4-11.01. Clergy who engage in sexual contact with an adult or minor are subject to civil liability on the basis of several legal theories. They also are subject to criminal liability.

A Texas appeals court affirmed five life sentences plus 220 years in prison—all to run consecutively, rather than at the same time—for a pastor who sexually abused three minors, including his biological daughter.

Pastor convicted on 16 counts

A pastor (the “defendant”) was charged with sexually assaulting three minors. The victims alleged that the pastor had shared sexually explicit photos with them using social media, and on several occasions, while taking several minors home after church, he would take one of the victims home last so he could drive her to a secluded place and molest her.

The charges related to all three victims were tried in a single, consolidated jury trial. The jury found the defendant guilty of five counts of aggravated sexual assault of a child, nine counts of sexual assault of a child, and two counts of indecency with a child by contact. The pastor appealed the convictions, as well as the sentencing handed down by the trial court. A Texas appellate court, aside from modifying the judgments to more accurately reflect the correct provisions of the state’s penal code, affirmed the judgments and the sentencing.

Read Richard R. Hammar’s 14-step plan for minimizing the risks of child molestation in churches.

What this means for churches

This case is important for four reasons.

First, it illustrates the importance of adopting and enforcing a “two-adult” policy. Such a policy simply says that no minor is ever allowed to be alone with an unrelated adult during any church activity.

Such a policy would have prevented the pastor from transporting minors home in the church van if at any point during the drive he was alone with one minor. A two-adult policy reduces the risk of child molestation, and reduces the risk of false accusations of molestation.

Second, this case demonstrates that, as a “best practice,” churches should prohibit any direct or private messaging on any social media platform (including email) by a member of the pastoral staff, lay employee, or volunteer, with unrelated minors.

To reinforce the validity of such a policy, contact your local public school district and find out what, if any, restrictions the district places on communications between teachers and students.

Third, this case illustrates the importance of addressing high-risk behaviors. Often, those who molest minors in churches or church activities have openly engaged in high-risk behaviors, including:

Unrelated minors spend the night in a leader’s home.

An adult leader drives a vehicle with one or more unrelated minors on board, and no other adults.

An adult goes on day trips with an unrelated minor.

An adult goes on overnight trips with an unrelated minor.

A leader spends the night in a hotel with one or more unrelated minors.

A leader meets one or more unrelated minors in malls or other places where minors congregate.

An adult leader sleeps in a tent with an unrelated minor during a campout.

These, and similar, “grooming” behaviors are associated with many incidents of sexual abuse involving youth and children’s ministry leaders in churches. They must be promptly confronted and stopped.

Fourth, note the severity of the defendant’s punishment. The court sentenced him to five life sentences, plus 220 years in prison, with the sentences to run consecutively and not concurrently.

Wesley v. State, 2021 WL 5931683 (Tex. App. 2021).

Legal Developments

Understanding Restrictions Placed on Property Deeds

Ruling offers insights into two types of conditions that may affect how a church owns, uses, sells, or gives away its land.

Richard R. Hammar, Attorney, CPA

Bio

State: Texas
Categories: Church Property

Key point 7-14. Some deeds to church property contain a “reversion” clause stating that title will revert back to the previous owner in the event that a specified condition occurs. The courts will enforce such provisions, so long as they can do so without interpreting church doctrine.

Deeds to church property may contain restrictions on the sale or use of the property imposed by the prior owner. A recent ruling by a Texas court illustrates why it is important for church leaders to be familiar with any such restrictions prior to any changes involving church property, including a different type of use or a transfer of the property to another party through a sale or gift.

Background

In 1935, George Dew conveyed to a church a two-acre tract of land. The deed provides:

It is the intention and purpose of the grantor herein to convey the surface rights in the above described land to said religious organization and its successors, for use as a church premises and for such religious purposes, with the understanding and agreement that if said premises are not used for said purposes, or if used and thereafter abandoned for religious purposes, then said premises herein granted are to revert to the grantor.

To have and to hold said premises as above described unto said religious organization and its successors and assigns, for use only as a church premises and for religious purposes so long as said premises are used for said purposes, subject to the condition that said premises herein granted shall in the event said premises are not used for said purposes, or should they be used for religious purposes and thereafter abandoned for said purposes, then said premises are to revert to the grantor.

Dew died a few weeks after the conveyance.

In recent years, the church sued Dew’s heirs in order to determine the status of the property. The church asked the court for a declaration that Dew’s reversionary interest terminated upon his death.

The church alleged, and the court found, that donors and investors were denying the church financial assistance to expand “because it is believed that [Dew’s heirs] may have some future nonpossessory vested interest in the property.”

One of Dew’s heirs counterclaimed for a declaratory judgment that she is “a holder of a reversionary interest under the terms of the deed.”

The trial court concluded:

Dew conveyed to the church “a fee simple surface estate, subject to a condition subsequent” and not a “fee simple determinable with possibility of reverter”;

Any right of entry for breach of the condition subsequent “was solely for the life of [Dew] and terminated upon his death on December 28, 1935, and therefore the condition subsequent is now invalid and unenforceable[.]”

The trial court signed a final judgment consistent with these findings, declaring, among other things, that Dew’s heirs have no future interest in the property.

One of the heirs appealed.

“Possibility of reverter” or “right of entry”

On appeal, the parties agreed that the following excerpts from George Dew’s will created a “future interest” (emphasis added):

“[W]ith the understanding and agreement that if said premises are not used for [religious] purposes . . . then said premises herein granted are to revert to the grantor.”

“[S]ubject to the condition that said premises herein granted shall in the event said premises are not used for said purposes . . . then said premises are to revert to the grantor.”

The parties asked the court to determine if the “reversionary interest” in George Dew’s will was a “possibility of reverter” or “right of entry.” The court explained the difference between these two kinds of future interests in property:

The historical distinction between the two types of reversionary interests is that a possibility of reverter is said to transfer possession of the property automatically to the holder of the reversionary interest upon satisfaction of a condition, while a right of entry requires some action on behalf of the holder of the interest to take possession of the property after the condition is broken. . . . Although the distinction often makes no difference. . . . We agree with the trial court and the Church that [the heir’s] interest was a right of entry rather than a possibility of reverter.

The parties agree that the deed uses language that has been associated with creating either a possibility of reverter or a right of entry. Language such as “so long as” and “revert” may indicate a possibility of reverter while language such as “subject to the condition” may indicate a right of entry. . . . When there is doubt which type of interest was intended, the doubt must be resolved in favor of a right of entry as it is “in a sense less onerous upon the grantee in that, under such a construction, the estate does not terminate automatically with the occurrence of the stated contingency, but only after re-entry or its equivalent is made by the grantor.”

Accordingly, we resolve any doubt in the church’s favor and hold that [Dew’s heirs] retained a right of entry rather than a possibility of reverter under the deed.

What this means for churches

This case is relevant to churches for three reasons.

1. Deeds to property may contain conditions on uses and transfers of the property

Two common restrictions on property (whether related to uses or transfers) are “powers of reentry” and “possibilities of reverter.” These interests are similar, but they have very different legal consequences. A possibility of reverter arises when one person transfers property to another by means of a deed containing language clearly providing that title will automatically revert to the prior owner if the current owner violates a restriction in the deed.

Language creating a possibility of reverter includes words such as “so long as,” “until,’ or “until such time as.”

To illustrate, assume that A transfers land to B with a deed specifying that title is transferred “so long as” B uses the property for church purposes. Here, the language is clear that if the land ceases to be used for church purposes, it will automatically revert to A. The significance of this is that the reversion of title to A is automatic and requires no action by a court.

On the other hand, deeds often contain conditions that do not call for an automatic reversion of title to the previous owner upon the occurrence of some condition. In such cases the prior owner has a “right of reentry.” Such a right does not vest automatically in the prior owner. Rather, the prior owner must go to court to have his or her interest recognized. As this case illustrates, this is a more uncertain interest in property since it does not operate automatically.

2. Check the church’s property deed for restrictions

Church leaders should check their property deeds to see if they contain conditions that may give the prior owner either a possibility of reverter or a right of reentry. In either case, the prior owner may attempt to claim title to the church’s property in the event the specified condition is violated.

However, if the prior owner retained a possibility of reverter, the transfer of title back to the prior owner occurs immediately. This can cause major problems for a church when it belatedly discovers that it no longer owns its property.

3. This case illustrates the courts’ negative attitude toward restrictions

This case demonstrates the negative attitude the courts have toward restrictions on the sale of property by charities. In some states, laws have been enacted giving the civil courts the authority to extinguish such restrictions. If your church deed contains restrictions on the sale of property, you may want to consult with a local attorney concerning the existence of such a law in your state.

Moroney v. St. John Missionary Baptist Church, 638 S.W.3d 698 (Tex. App. 2021)

Legal Developments

Intentional and Grossly Negligent Acts Negate Release Forms

A Texas appellate court says a signed release form didn’t bar an injured soccer player from pursuing an assault lawsuit.

Richard R. Hammar, Attorney, CPA

Bio

State: Texas
Categories: Personal Injuries on Church Property or During Church Activities

Key point 10-16.06. A release form is a document signed by a competent adult that purports to relieve a church from liability for its own negligence. Such forms may be legally enforceable if they are clearly written and identify the conduct that is being released. However, the courts look with disfavor on release forms, and this has led to several limitations, including the following: (1) release forms will be strictly and narrowly construed against the church; (2) release forms cannot relieve a church of liability for injuries to minors, since minors have no legal capacity to sign such forms and their parents’ signature does not prevent minors from bringing their own personal injury claims after they reach age 18; (3) some courts refuse to enforce any release form that attempts to avoid liability for personal injuries on the ground that such forms violate public policy; and (4) release forms will not be enforced unless they clearly communicate that they are releasing the church from liability for its negligence.

A Texas court ruled that release forms that purport to relieve a person of liability for intentional acts and gross negligence is unenforceable as contrary to public policy. The decision underscores the cautions church leaders must exercise in making decisions about events and activities, including ones that involve release forms.

Background

On September 7, 2016, during a soccer match between two teams, a player on one team (the “plaintiff”) alleged that a player on the other team (the “defendant”) attacked him deliberately during the game.

The plaintiff suffered a “severe concussion, facial fractures that required surgery and . . . ongoing loss of sensation and nerve damages as a consequence of the violent act.”

The plaintiff sued for assault

The plaintiff sued the defendant for assault. The defendant asked the court to dismiss the case on the ground that the plaintiff’s injuries were an inherent risk of the game, and further claimed that the plaintiff had released his claims in a release form he signed prior to participating in any games at the local soccer club.

The plaintiff produced two witness statements in which the witnesses recalled the incident and claimed that the defendant “acted intentionally and that the move was not an accident stating [the defendant] did not appear to be trying to use his head to intercept the soccer ball, but instead appeared to intentionally hit [the plaintiff’s] face with the back of his head. . . . [The defendant’s] act was intentional and not an accident.”

The plaintiff insisted that, as a matter of public policy, release forms cannot extinguish intentional injuries like assault and so the plaintiff’s assault claim was not released by the release signed with the soccer club.

The trial court agreed with the defendant and dismissed the plaintiff’s lawsuit. The plaintiff appealed.

Court: Release forms do not cover assaults

A state appeals court began its opinion by observing:

“Generally, a contractual provision ‘exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.’” . . .

This court has previously held that “pre-accident waivers of gross negligence are against public policy.” . . . Other appellate courts have held that pre-injury waivers of gross negligence violate public policy and are void. . . . This is because “gross negligence involves conduct that poses an extreme risk of harm to others and an actor that proceeds with conscious indifference to the rights, safety, or welfare of others. . . . Turning to intentional conduct, such as an assault, the considerations are the same as those with gross negligence—an actor that poses an extreme risk of harm to others and proceeds to intentionally, knowingly, or recklessly cause bodily injury to another. “[E]nforcing a provision to allow one party to intentionally injure another with impunity violates the law.”

The defendant insisted that the plaintiff waived his rights to bring a lawsuit “because [his] present claim for the intentional tort of assault is subject to the release document.” The release in this case stated:

THE RELEASING PARTIES HEREBY RELEASE, WAIVE, DISCHARGE, AND COVENANT NOT TO SUE THE RELEASED PARTIES FROM ANY AND ALL CLAIMS RELATED TO OR ARISING FROM THE CLUB OR THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS ARISING FROM OR RELATED TO PERSONAL INJURY, ACCIDENTS OR ILLNESSES (INCLUDING DEATH), AND/OR PROPERTY LOSS.

The court continued:

The release in this case is a broad form release, purporting to release “all actions and causes of action” related to or arising from the “club” or “activity” including, [the defendant] argues, any claim for assault. It is important to note that in the context of the release argument, [the defendant] has not argued that [the plaintiff] has specifically consented to the alleged assault in this case by virtue of participation in the game of soccer. Instead, [the defendant] argues that [the plaintiff] has, by virtue of the release agreement between [the plaintiff] and the soccer club, released [the defendant] from any assault [the defendant] may inflict upon [the plaintiff] during any game played while at the club. “The law of torts imposes standards of conduct for the protection of others against unreasonable risk of harm. One cannot exempt himself from such liability for harm that is caused either intentionally or recklessly.” RESTATEMENT (SECOND) OF CONTRACTS § 195. . . . [T]o the extent that the trial court concluded that the release in this case released the claim of assault between [the plaintiff] and [the defendant], the trial court erred. . . . Such a conclusion would insulate a party from its future, deliberate, wrongful conduct and is against public policy.

What this means for churches

Many churches, schools, youth-serving charities, and recreational venues attempt to reduce the risk of liability for injuries occurring during sponsored events by having participants sign a form that purports to exempt the host organization from liability for injuries caused by its own negligence. Such forms typically are called release forms, waivers of liability, or assumptions of risk.

Understanding Release Forms

Go deeper on this topic in the “Release Forms” section of attorney Richard Hammar’s Legal Library. Therein you’ll find guidance on the legal requirements for valid forms, instructive case studies pertinent to this issue, reasons release forms are often disfavored by the courts, and more.

All too often, churches and other organizations use forms found online, and with no legal input or review. This can result in forms that are useless or of limited value.

As this case illustrates, several courts have ruled that release forms cannot release claims for injuries caused by the gross negligence or intentional acts of another.

Church leaders should not assume that a release or assumption of risk form signed by a competent adult will apply to deaths or injuries caused by the gross negligence of the church or its agents. Distinguishing between ordinary negligence and gross negligence is often a difficult task, but this distinction is significant because it generally will determine the validity of a release form or assumption-of-risk form. One court noted:

Negligence is defined as “any conduct, except conduct recklessly disregardful of an interest of others, which falls below the standard established by law for protection of others against unreasonable risk of harm.” A claim for gross negligence, however, sets the evidentiary hurdle at a higher elevation:

[G]ross negligence is an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them. Stated conversely, a wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist. . . .

“[W]e have viewed gross negligence ‘as something more than simple negligence, and likely more akin to reckless conduct.’”

How can a church be guilty of gross negligence? It is possible, depending on an examination of all the facts and circumstances, that the following practices could be grossly negligent:

A church’s governing board refuses to institute a policy to reduce the risk of child molestation at church or during offsite church activities. The church uses a volunteer in its children’s ministry without conducting a criminal records check or obtaining references. A church volunteer sexually molests a child during a church activity. It is later discovered that the volunteer is a pedophile who molested a child at a previous church.

A church uses a van to transport children to an offsite activity. The church selects a driver whose driving record was not examined. The driver’s negligence results in a collision that injures some of the children. It is later determined that the driver had a suspended driver’s license.

A church board is aware that the youth pastor frequently sends and reads text messages on his cellphone while driving his car on church business. Nothing is done about it. The youth pastor swerves into an oncoming lane of traffic while texting his girlfriend and collides with another vehicle.

The church youth group goes swimming at a lake. No lifeguards are present, and the church provides only two chaperones to oversee 50 minors. Neither chaperone is certified in CPR. One of the minors drowns, and no one is available to start CPR.

It is important for church leaders to be familiar with the concept of gross negligence for the following three reasons.

First, the presence of gross negligence renders release and assumption-of-risk forms as unenforceable.

Second, the same legal standard used to determine gross negligence is also used to determine the availability of “punitive damages.” Punitive damages are damages that a court can award to an injured person, over and above compensatory damages, based on the defendant’s gross negligence or willful and wanton conduct. Church leaders should be aware that public policy does not allow entities to insure against their gross negligence. Thus, punitive damages are not covered under church insurance policies.

Third, gross negligence negates the limited immunity from personal liability accorded to the uncompensated officers and directors of churches and other nonprofit organizations. This means these individuals can be personally liable to an injured plaintiff if gross negligence is found.

These potentially adverse consequences make it imperative for church leaders to understand the concept of gross negligence, and to avoid any decisions that, in retrospect, may be grossly negligent.

Brennan v. Kaufman, 2021 WL 3729257 (Tex. App. 2021).

Legal Developments

Court Could Resolve Malpractice Suit Against Deacon

The First Amendment does not necessarily bar all claims that may touch upon religious conduct.

Richard R. Hammar, Attorney, CPA

Bio

State: Texas
Categories: Malpractice

Key point 4-05 . Most courts have rejected clergy malpractice as a basis for liability in all cases. A few courts have found clergy members guilty of malpractice for engaging in sexual misconduct with an adult or minor, or if they engage in “nonreligious” counseling.

A Texas appeals court ruled that it was not barred by the First Amendment or “ecclesiastical abstention doctrine” from resolving a clergy malpractice lawsuit against a religious organization.

Background

A married couple were active members of a Catholic church for 15 years. The wife sought out a church deacon for marriage and family counseling.

In time, the husband (the “plaintiff”) noticed an unusual closeness between the deacon and his wife, and he discovered that the two were having an affair. The couple later divorced.

Appeals court: not all religious conduct claims are necessarily barred

The plaintiff sued the deacon and archdiocese on several grounds, including malpractice (negligent counseling). A trial court dismissed all claims, and the plaintiff appealed.

On appeal, the plaintiff argued that the trial court should have allowed the claims of professional malpractice to proceed to trial because some courts have recognized causes of action for such claims.

The appeals court made the following observation:

Pursuant to the First Amendment, government action is not permitted to burden the free exercise of religion by interfering with an individual’s observance or practice of a particular faith or by encroaching on a church’s ability to manage its internal affairs. . . . Accordingly, the First Amendment “severely circumscribes” the role that civil courts may play in resolving church-related ecclesiastical disputes. . . . For example, civil courts cannot inquire into matters concerning “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.” (Serbian E. Orthodox Diocese for U.S. of Am. & Can. v. Milivojevich, 426 U.S. 696, 713-14 (1976)). This constitutional limitation is implemented in Texas through the ecclesiastical abstention doctrine.

However, the First Amendment does not necessarily bar all claims that may touch upon religious conduct. . . Churches, their congregations, and their hierarchies function within the civil community and, where appropriate, are subject to rules governing property rights, torts, contracts, and criminal conduct. . . . Texas courts decide non-ecclesiastical issues based on the same neutral principles of law applicable to other entities while deferring to religious entities’ determinations on ecclesiastical and church policy questions.

As the Texas Supreme Court noted, the “differences between ecclesiastical and non-ecclesiastical issues will not always be distinct” because many disputes “require courts to analyze church documents and organizational structures to some degree.” Masterson v. Diocese, 422 S.W.3d at 606 [2013]. Therefore, the court must determine whether a particular dispute is “ecclesiastical” or simply a civil law controversy in which a church or church official happens to be involved—a determination made by examining the substance and effect of the plaintiff’s petition . . . (“the key inquiry is whether a judicial resolution will encroach on the institution’s governance and affairs”).

The court noted that “courts have addressed a wide variety of disputes involving religious organizations; here, we focus on those analyzing the ecclesiastical abstention doctrine in the counseling context.” The deacon and archdiocese argued “that claims based on marital counseling services provided by a member of the clergy impinge on a church’s ability to manage its affairs” and therefore are barred by the ecclesiastical abstention doctrine. The court disagreed:

[T]he allegations at issue here do not clearly intrude upon a religious matter or interfere with the Archdiocese’s ability to manage its internal affairs. [The plaintiff] does not allege that the conduct forming the basis of his claims (i.e., the family and marriage counseling . . .) was grounded in religious doctrine or otherwise undertaken pursuant to guidance from the Archdiocese. Instead, [the plaintiff] alleges that [the deacon] was having [an affair with his wife] and had a history of “inappropriate relationships with others.” These general allegations do not implicate any religious standards or indicate that judicial resolution of this dispute will encroach upon the Archdiocese’s internal affairs or religious doctrine. Therefore, they do not affirmatively demonstrate that the underlying dispute is inherently ecclesiastical as necessary to warrant First Amendment protection.

What this means for churches

Ministers who engage in counseling as a part of their ministry should be aware of the following conclusions regarding “clergy malpractice”:

No court has found a minister liable on the basis of malpractice for the content of his or her counseling.

Most courts have refused to find ministers liable on the basis of malpractice for sexual misconduct with counselees, on the basis of either or both of the following two grounds.
First, by exempting clergy from the licensing requirements that apply to other counselors, most state legislatures recognize that “the secular state is not equipped to ascertain the competence of [pastoral] counseling.” Second, “it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors” since such a duty “would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity” (the court quoting from a 1981 law review article).

A few courts have recognized malpractice claims against clergy in either or both of the following two situations: sexual misconduct with an adult or minor, or “nonreligious” counseling.

It is advisable for churches to obtain counseling liability or malpractice insurance. While the likelihood of a church being successfully sued for clergy malpractice is very remote, the likelihood of being sued for clergy malpractice is conceivable. With malpractice insurance, the insurer will be responsible to retain and pay for the church’s legal defense.

Mosby v. Kleinguetl, 2021 WL 824779 (Tex. App. 2021).

Legal Developments

Ecclesiastical Abstention Doctrine Bars Court from Intervention in Dispute over Church Bylaw Compliance

Court could not adjudicate this case without interfering in inherently ecclesiastical matters of pastoral selection and church discipline.

Richard R. Hammar, Attorney, CPA

Bio

State: Texas
Categories: Church Members, Clergy - Selection, Judicial Resolution of Church Disputes

Key point 2-01.4. The selection of a minister is an ecclesiastical decision that the civil courts ordinarily will not review—even when it is alleged that a church failed to follow its own internal procedures in the selection of a minister, or the selection process was discriminatory.

Key point 6-10.1. 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.

Key point 9-07. The First Amendment allows civil courts to resolve internal church disputes so long as they can do so without interpreting doctrine or polity.

A Texas court ruled that the “ecclesiastical abstention” doctrine prevented it from resolving an internal church dispute regarding a church’s compliance with its bylaws in selecting a new pastor and dismissing several dissident members.

In January 2012, a pastor died and a dispute arose over the church’s efforts to fill the pastoral vacancy. With respect to a vacancy, the church’s bylaws provided:

In the event of a vacancy, a pulpit committee composed of Deacons and members (five people on the committee) shall be appointed by the church to seek out a suitable Pastor and their recommendations will constitute a nomination though any member has the privilege of naming other nominations according to the policy established by the church. The committee shall bring to the consideration of the church one minister at a time. Elections shall be by secret ballot; an affirmative vote of three-fourth of those present being necessary for a choice. The Chairman of Deacons and Trustees shall have the right to meet with the Pulpit Committee at any time.

The secretary of the church board convened a meeting to elect a pulpit committee. The pulpit committee was comprised of the board secretary and other individuals and eventually selected a nominee for pastor. However, other members of the church, including the Chairman of the Deacons and the Chairman of the Trustees, opposed the actions of the pulpit committee.

On October 13, 2012, a meeting was held at which the deacons, trustees, and congregation voted to adopt a “resolution to restore order in the church.” The resolution found that the pulpit committee “has engaged in a campaign of intimidation, threats, assault, falsehoods, and manipulation.” The resolution expelled from church membership persons involved with the pulpit committee on the grounds that they “have hurt the Church, decreased its membership, distracted from its Christian mission, and continue to cause damage to the Church.” A new pastor was elected and installed a month later, on November 17, 2012.

The dismissed members (the “plaintiffs”) sued the church and sought monetary damages based on their expulsion. They argued that the church had failed to follow its bylaws in selecting a new pastor. The church claimed that the pulpit committee was properly constituted under the church’s bylaws and that the dismissed members had violated the church’s bylaws by interfering with the pulpit committee; holding unauthorized meetings; expelling the dismissed members from membership and changing the locks so that they could not access the church; and selecting the new pastor.

The church asked the court to dismiss the lawsuit on the ground that it lacked jurisdiction over the plaintiffs’ claims under the ecclesiastical abstention doctrine because adjudicating the claims would require the trial court to review the church’s discipline of the dismissed members and to impermissibly involve itself in the pastoral selection process. After a hearing, the court dismissed the case.

A state appeals court affirmed the trial court’s ruling. It began its decision by noting that the First Amendment’s guaranty of religious freedom “precludes civil courts from delving into matters focused on theological controversy, church discipline, ecclesiastical government, or the conformity of the members of a church to the standard of morals required of them.” The court continued: “Courts do not have jurisdiction to decide questions of an ecclesiastical or inherently religious nature, so as to those questions they must defer to decisions of appropriate ecclesiastical decision makers.”

The courts are not precluded from resolving all church disputes. They may, for example, “apply neutral principles of law to non-ecclesiastical issues involving religious entities in the same manner as they apply those principles to other entities and issues… . Thus, courts are to apply neutral principles of law to issues such as land titles, trusts, and corporate formation, governance, and dissolution, even when religious entities are involved.”

The court conceded that “the line between required judicial action and forbidden judicial intrusion will not always be distinct because many disputes require courts to analyze church documents and organizational structures to some degree.

The plaintiffs insisted that their claims arose solely from “the church’s failure to abide by non-ecclesiastical terms of the church’s bylaws and, therefore, the trial court had jurisdiction to adjudicate the case under neutral principles of law.” According to the plaintiffs, the questions they raised—including whether the church complied with church bylaws in electing the new pastor and whether the church acted properly in dismissing the plaintiffs—”were non-ecclesiastical because they are governed by non-ecclesiastical provisions in the church’s corporate documents.” The court disagreed:

The mere fact that a church’s corporate documents—here, its bylaws—prescribe a pastoral selection process does not make cases involving a pastoral selection dispute categorically reviewable by a civil court. Instead, whether neutral principles may be applied to a claim turns on the substance of the issues it raises. Consequently, the fact that the church’s bylaws in this case contain provisions governing the process for pastoral selection does not compel the conclusion that a dispute over that process is reviewable …. Here … [the plaintiffs’] claims are inextricably intertwined with the selection of the church’s new pastor and the church’s expulsion of members—two issues long recognized to be inherently ecclesiastical and of prime importance to the exercise of religious liberty ….

In sum, although plaintiffs characterize their claims as purely secular because they rest on provisions of the church’s corporate documents, the trial court could not adjudicate this case without interfering in inherently ecclesiastical matters of pastoral selection and church discipline. Therefore, we hold that the trial court correctly concluded that it lacked jurisdiction over the case under the ecclesiastical abstention doctrine.

What this means for churches

This case is important because of the court’s conclusion that the ecclesiastical abstention doctrine applies to the interpretation of a church’s governing documents if doing so would implicate “ecclesiastical matters of prime importance to the exercise of religious liberty,” which the court concluded, include pastoral selection and the discipline of members. Moultin v. Baptist Church, 498 S.W.3d 143 (Tex. App. 2016).

Legal Developments

Court May Rule on ‘Secular Contract’ Between Church and Former Employee

Church Law and Tax Report Court May Rule on ‘Secular Contract’ Between Church and Former

State: Texas
Categories: Employment Practices

Church Law and Tax Report

Court May Rule on ‘Secular Contract’ Between Church and Former Employee

Key point 8-24. A reference letter is a letter that evaluates the qualifications and suitability of a person for a particular position. Churches, like other employers, often use reference letters to screen new employees and volunteers. Churches often are asked to provide reference letters on current or former workers. The law generally provides employers with important protections when responding to a reference letter request. However, liability may still arise in some cases, such as if the employer acts with malice in drafting a reference letter.

Key point 9-07. The First Amendment allows civil courts to resolve internal church disputes so long as they can do so without interpreting doctrine or polity.

A Texas court ruled that the “ecclesiastical abstention doctrine” and the “ministerial exception” did not prevent it from resolving various legal claims brought by a former church employee against the church. A woman (the “plaintiff”) was dismissed from her position as Elementary Ministries Director at a Presbyterian church. She sent a demand letter to the church asserting that she had been terminated for making allegations of sexual harassment against a church elder. She later signed a “Confidential Separation Agreement and Release” under the terms of which the church paid her $25,000 and agreed that she could “classify the end of the employment relationship as a resignation, rather than a termination … for purposes of … future employment offers.”

The agreement included a confidentiality clause applicable to the plaintiff and a provision that “in the event that she is asked about her separation of employment, she may reply only with the words ‘we have reached an amicable parting,’ but will not otherwise indicate the nature of the resolution of these matters.” In addition, the parties agreed not to “disparage” the other.

The plaintiff subsequently was hired by a seminary as its development officer. This position required her to participate in fundraising efforts for the seminary. An elder at the church where she was previously employed also served on the board of trustees for the seminary. He contacted the seminary’s board chair to ask whether the plaintiff’s references had been checked. The board chair contacted the president of the seminary, who instructed its vice president for business affairs to check the plaintiff’s references. The vice president then contacted the head of human resources at the church, who told him that she could not discuss the reason the plaintiff left “because of a severance agreement,” but she added that she “could not think of a circumstance under which the church would rehire her or that she would want to come back.”

The vice president also contacted the church’s executive pastor, who stated that he “could not disclose the reasons why the plaintiff left because of the existence of an agreement … but it should be obvious that there were issues, otherwise there would not be an agreement.” The executive pastor also stated that “it would be difficult for her to carry out her duties to raise funds from the church” or from “anywhere in Houston.”

The seminary terminated the plaintiff’s employment because she misrepresented the circumstances surrounding her departure from the church, and its concern that she would not be able to solicit donations for the seminary.

The plaintiff sued the church on the following grounds:

breach of contract (for violating the severance agreement’s “non-disparagement” clause);
intentional infliction of emotional distress;
defamation; and
fraudulent inducement.

The church claimed that the trial court lacked jurisdiction because the church is immune from liability under both the “ecclesiastical abstention doctrine” and the “ministerial exception.” The church also claimed that (1) the plaintiff had waived her right to enforce the provisions of the severance agreement by giving the church “authorization to provide full details concerning her past employment” to the seminary in her employment application; (2) the church’s behavior was not extreme and outrageous for purposes of the intentional infliction of emotional distress claim; and (3) the plaintiff waived her fraudulent inducement claim by releasing all claims that existed as of the date of the agreement.

The trial court dismissed all claims against the church, and the plaintiff appealed.

Application of the ecclesiastical abstention doctrine and ministerial exception

The plaintiff argued on appeal that the trial court erred in ruling that the ecclesiastical abstention doctrine prevented it from resolving her legal claims because they involved the breach of a “secular contract.”

The court noted that the ecclesiastical abstention doctrine provides that the First Amendment guaranty of religious freedom prohibits the civil courts “from exercising jurisdiction over matters concerning theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.” Under this doctrine, “courts will not attempt to right wrongs related to the hiring, firing, discipline, or administration of clergy … . Although such wrongs may exist and be severe, and although the administration of the church may be inadequate to provide a remedy, the preservation of the free exercise of religion is deemed so important a principle it overshadows the inequities which may result from its liberal application.”

However, the Texas Supreme Court has also recognized that while the First Amendment affords broad protection to the free exercise of religion, it does not necessarily bar all claims which may touch on religious conduct. For example, “churches, their congregations, and hierarchy exist and function within the civil community [and] can be as amenable to rules governing civil, contract, or property rights as any other societal entity.

In determining whether the ecclesiastical abstention doctrine applies, “courts must analyze whether a particular dispute is ecclesiastical or simply a civil law controversy in which church officials happen to be involved.” To resolve this issue, courts “must look to the substance and effect of a plaintiff’s complaint to determine its ecclesiastical implication … . A court may interpret church documents under neutral principles of law when it can do so in purely secular terms without relying on religious precepts in resolving the conflict … . However, if the matter cannot be determined by the court without resolving a religious controversy, then the court must defer to the resolution of the doctrinal issue by the authoritative ecclesiastical body.”

The plaintiff claimed that the severance agreement stated that “the church agrees that it will not disparage [the plaintiff],” and that the church violated the agreement by stating, through its agents, that: (1) she “would not be able to raise funds on behalf of the seminary anywhere in Houston or within her region”; (2) it “could not think of a circumstance under which the church would rehire her or that she would want to come back”; and (3) “it should be obvious that there were issues, otherwise there would not be an agreement.”

The church claimed that a determination of whether it disparaged the plaintiff would fall within the ecclesiastical abstention doctrine because it would require the court to evaluate (1) the reasons the church decided to terminate her and to settle her claims for sexual harassment, (2) the decision to notify the seminary of the church’s issues with her, and (3) whether such decisions were in the best interest of the church, the seminary, and the Presbyterian community in Houston.

The court concluded that the ecclesiastical abstention doctrine did not apply:

We may interpret a contract in a civil law controversy in purely secular terms when doing so does not require us to rely on religious precepts or resolve a religious controversy … . We are not required to intervene in the hiring, firing, discipline, or administration of the church’s clergy, address the church’s standards of morality, or address any other matters traditionally held to involve religious doctrine. Similarly, we are not required to interpret any church constitution, by-laws, or other governing documents. Finally, we are not asked to decide matters relating to the congregational or hierarchical nature of the church. We conclude that this lawsuit, revolving around the church’s purported disparagement of the plaintiff in violation of the Agreement, is a civil law controversy in which church officials happen to be involved. Accordingly, the ecclesiastical abstention doctrine does not apply.

The ministerial exception

The church claimed that the “ministerial exception” required dismissal of the plaintiff’s claims. Under this doctrine, “if an employee is a minister, courts are precluded from reviewing the employment decision regardless of whether the claims are ecclesiastical in nature.” The court noted that the United States Supreme Court has recognized the ministerial exception; however, “the Court concluded that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.” Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 132 S.Ct. 694 (2012).

The court ruled, on procedural grounds, that the ministerial exception did not apply, since the church had used it in an attempt to deprive the court of jurisdiction rather than raising it as an “affirmative defense” in its response to the plaintiff’s lawsuit.

Waiver of claims

The church argued that the plaintiff waived all her claims by filling out an online employment application for her position at the seminary in which she “authorized all her prior employers to provide full details concerning her past employment.”

The plaintiff insisted that this authorization did not waive her rights under the confidentiality and antidisparagement clauses of the severance agreement, and that she was entitled to rely on the church to honor its obligation under the agreement not to disparage her.

The court concluded that even if the plaintiff had authorized the church to speak with the seminary when it was considering her for employment, the church “nevertheless was bound to communicate in accordance with the terms of its Agreement. We conclude that in signing the authorization, the plaintiff did not unequivocally manifest the intent not to assert any of her rights under the Agreement. In other words, she did not authorize the church to disparage her. Accordingly, the church has not conclusively established that the plaintiff intended to waive her claims by signing the authorization.”

The emotional distress claim

The court noted that to succeed with an intentional infliction of emotional distress claim, a plaintiff is required to prove that a defendant’s conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” This means that “except in circumstances bordering on serious criminal acts, even claims stemming from heinous acts … rarely have merit as intentional infliction claims.”

The court concluded: “Here, the church’s actions purportedly resulted in the plaintiff’s termination of employment with the seminary based on the church’s instigating a conversation with the seminary about her departure from the church and providing an unfavorable reference. While these actions may be interpreted as callous, meddlesome, mean-spirited, officious, overbearing, and vindictive, they do not rise to the level of extreme and outrageous conduct required to maintain an intentional infliction of emotional distress claim.”

The severance agreement

The plaintiff asserted that the church was guilty of “fraudulent inducement” by inducing her to sign the severance agreement on the basis of its confidentiality and nondisparagement provisions which it subsequently violated. In the agreement, the plaintiff released the church “from any and all claims … which [the plaintiff] now has or may have … whether now known or unknown.” The agreement further provided that the release “extended to all claims of every nature and kind, known or unknown, arising from, attributable to, or related to any of the claims released” and agreed to

waive and assume the risk of any and all claims for damages which existed as of the date of the release, but of which she did not know or expect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect her decision to enter into the release.

The church argued that the plaintiff released her fraudulent inducement claim because it would have existed at the time she signed the agreement.

The court noted that “a release that clearly expresses the parties’ intent to waive fraudulent inducement claims … can preclude a claim of fraudulent inducement, depending on the circumstances.” But it concluded that the plaintiff had not clearly expressed such an intent:

The plaintiff released all claims that existed at the time she signed the Agreement. However, reading the Agreement as a whole, there is no express waiver of any fraudulent inducement claims or any indication that she disclaimed reliance on any of the church’s representations about the matters in dispute in this case. Thus, the Agreement does not reflect a clear and unequivocal intent to disclaim reliance on representations or to waive fraudulent-inducement claims … . We conclude that the church has not established as a matter of law that the plaintiff released her fraudulent inducement claim by agreeing to release her claims existing at the time she signed the Agreement.

What This Means For Churches:

This case is relevant to church leaders for the following reasons:

1. The “ecclesiastical abstention” doctrine does not preclude civil courts from resolving all internal church disputes. While the courts may not exercise jurisdiction “over matters concerning theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them,” they can resolve “civil law controversies in which church officials happen to be involved.”

2. The “ministerial exception” generally bars the civil courts from resolving employment disputes between churches and clergy. However, the court noted an important procedural limitation: the exception operates as “an affirmative defense, not a jurisdictional bar.” This means that the exception must be raised as an affirmative defense in a church’s response to a lawsuit, and not in a motion to dismiss a case based on a civil court’s lack of jurisdiction to adjudicate a claim.

3. Perhaps most importantly, the court concluded that a provision in the plaintiff’s employment application with the seminary authorizing the seminary and all prior employers to “provide full details concerning her past employment” did not amount to a waiver of the confidentiality and nondisparagement provisions in the severance agreement.

Churches often use severance agreements when a decision is made to terminate an employee, and such agreements may contain a confidentiality or nondisparagement clause. This case demonstrates that such provisions may take priority over a “release” that is later signed by a terminated employee that releases former employers from liability for anything they share about the employee. As a result, church leaders should not provide a reference on a former employee, even if the employee signed a release that releases former employers from liability for what they share in a reference, if a severance agreement was executed by the church and the employee that contains a nondisparagement clause.

4. It is also worth noting that the court concluded that the plaintiff’s fraudulent inducement claim against the church had not been waived by the general language in the severance agreement waiving all claims against the church since it had not been specifically identified as a claim that was being waived. As noted in a Feature Article in the September/October 2016 issue of Church Law & Tax Report, releases must explicitly reference claims that are being released in order to be legally valid. Presbyterian Church, 476 S.W.3d 612 (Tex. App. 2015).

Legal Developments

Church Narrowly Avoids Liability in Advertising Services of Babysitter Who Later Molested Children

Church Law and Tax Report Church Narrowly Avoids Liability in Advertising Services of Babysitter Who

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

Church Law and Tax Report

Church Narrowly Avoids Liability in Advertising Services of Babysitter Who Later Molested Children

Key point 10-04. A church may be liable on the basis of negligent selection for a worker’s molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.

A Texas court ruled that a church was not liable for the sexual molestation of two children by a teenager who had been selected as a babysitter by the victims’ parents due to false information in a flyer that had been made available to parents of young children. In the summer of 2007, a married couple (the “plaintiffs”) enrolled their two young sons in a church-operated childcare center. A 20-year-old college student (Lydia) worked at the center as a teacher and swimming instructor in a summer job between her junior and senior years of college. Lydia’s mother (Beth) spent the first part of the summer of 2007 teaching vacation Bible school at the church. She had five years’ prior experience working at the childcare center and wished to return to work there. She applied and, in August, the center rehired her to work as a teacher. Her class included one of the plaintiffs’ boys and she developed a warm rapport with the parents.

After Lydia returned to college in the fall, she asked her mother to circulate a flyer to school parents to let them know that she would be available for babysitting during her winter break. The school often circulated flyers that advertised events and personal services by placing them in the children’s backpacks. Under the school’s policy, it prescreened each proposed flyer. If the school approved the flyer, it charged $20 to circulate it.

In late fall, Beth circulated an approved flyer offering Lydia’s babysitting services. The flyer explained that Lydia was Beth’s daughter, that she had been a summer school swimming teacher at the center, that she was CPR-certified, and that she would provide references upon request. The plaintiffs hired Lydia to babysit for their sons during the winter break.

Near the end of 2007, Beth prepared a similar flyer, this time advertising her son Mark’s availability for babysitting services. The childcare center approved this flyer and gave permission to her to circulate it. The flyer went home in the children’s backpacks, along with other materials that the school distributed. Though the flyer states that Mark was “part-time summer help” and a “vacation bible school worker,” at the time the plaintiffs read the flyer, the childcare center had not yet employed him. It also had not performed a criminal background check on him, and it had not trained him to work with children. The childcare center had, however, offered the possibility that Mark could work part time the following summer as summer school help.

The plaintiffs discussed the possibility of hiring Mark, and, despite some doubts, decided to do so, because, according to the flyer, he had experience working with children and, in particular, experience working at the childcare center. They did not ask him directly whether he had such experience.

The plaintiffs hired Mark in the first week of January 2008. He went to the plaintiffs’ home while they were present. According to the boys’ mother, Mark was paid “to come to the house to spend time with us, interact with the boys, and get to know them, because my overriding concern was just the transition of them getting to know someone new.” The mother’s first impression of Mark was not positive, but she thought, “okay, maybe he’s just not good with grown-ups,” and that “he must be good with kids or the center wouldn’t have hired him.”

Mark first babysat alone with the boys at the plaintiffs’ home a couple of weeks later. He babysat for them five to ten times between January and June 2008. Toward the end of that period, the boys’ mother noticed a change in his attitude. It caused her concern, and she decided to stop hiring him.

Meanwhile, following up on the center’s offer to employ him that summer, Mark completed his application for summer employment at the center in February 2008 and cleared a criminal background check. Mark worked at the center as a paid employee for one day, in late June. On that day, the plaintiffs’ sons disclosed to their parents that Mark had molested them while he was babysitting. The parents contacted law enforcement, and Mark was arrested. The childcare center immediately discontinued his employment.

Mark later admitted to having sexually assaulted the boys. He pleaded guilty to felony charges and was sentenced to 12 years’ imprisonment. Before his arrest, Mark had no criminal history and no record of any school misconduct that would warrant suspension.

The plaintiffs sued the church and its childcare center (collectively, the “Church”), and Beth, Mark’s mother, who also was a teacher at the childcare center. The jury returned a verdict in favor of the plaintiffs. It found that:

The childcare center violated the Texas Deceptive Trade Practices Act (DPTA) by either “(a) representing that Mark had sponsorship, approval, status, affiliation, or connection that he did not have, or (b) representing that services are or will be of a particular standard, quality, or grade if they were of another,” they did so knowingly, and Beth did so intentionally.
In preparing the flyer, Beth knowingly and intentionally failed to disclose information and engaged in an unconscionable course of conduct “with the intention to induce [the plaintiffs] into a transaction they otherwise would not have entered into if the information had been disclosed.”
Beth was acting in the scope of her employment in circulating the flyer.

The church appealed.

The appeals court’s decision

The court noted that to prevail on a DTPA claim, the plaintiffs were required to prove that they were consumers; they “detrimentally relied” on the false, misleading, or deceptive act or practice; and the false, misleading, or deceptive act or practice was a “producing cause” of their injuries. If a DTPA claim is based in part upon a failure to disclose material information, the statute also requires proof that the defendant knew the information and failed to bring it to the plaintiffs’ attention.

The jury found that the plaintiffs would not have hired Mark but for the representations in the flyer, and that those representations were a substantial factor in bringing about their damages. But the appeals court disagreed:

A legal cause sufficient to impose civil liability for the criminal conduct of another is lacking in this case … . The relationship between Mark and the plaintiffs developed independently of Beth and the church. After the initial flyer, all of the contact between Mark and the plaintiffs took place at the plaintiffs’ home … . The plaintiffs own interactions with Mark informed their decision to continue to hire him. By the time of the abuse, the connection between the representations in the flyer and Mark’s presence in the plaintiffs’ home was too attenuated to cause the plaintiffs’ injuries….. The misrepresentations in the flyer created a condition that later made the grievous injuries possible—it was not a producing cause of them.

What This Means For Churches:

This case illustrates the potential risk churches face when they endorse or recommend to the congregation a member’s services, especially when the recommendation is accompanied by false information. While the appeals court concluded that the church was not liable for the false information shared with the victims’ parents about Mark’s prior childcare experience or the church’s steps to screen him, the trial court disagreed with this conclusion as might other courts. Further, the appeals court relied in part on the length of time that transpired between the false recommendation and the incidents of abuse, and the fact that all the abuse occurred off of church premises. The court’s decisions likely would have been different but for these two circumstances. The lesson is clear: churches should avoid recommending person’s services to the congregation unless they are fully vetted and the text of any recommendation is verifiably accurate.

This case also demonstrates that churches may be liable under state “deceptive trade practices” legislation for communicating false information to members concerning the fitness and suitability of youth workers. Bryant v. S.A.S., 416 S.W.3d 52 (Tex. App. 2013).

Legal Developments

Churches’ Right to Remove Clergy

Church Law and Tax Report Churches’ Right to Remove Clergy Key point 2-04.1. Most courts

State: Texas
Categories: Charters, Constitutions, and Bylaws, Clergy - Removal

Church Law and Tax Report

Churches’ Right to Remove Clergy

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

A Texas court ruled that the civil courts are barred by the “ecclesiastical abstention doctrine” from resolving church disputes over the dismissal of ministers. In September of 2013 a pastor telephoned several church members to call a meeting for that evening. During the meeting the pastor confessed that he had taken money from the church to pay expenses for his sick mother. He asked the members if they wanted to retain him as pastor, and according to one of the attendees, most of the members present at the meeting agreed to forgive him and retain him.

One member disagreed, claiming that members had not received proper notice of the meeting. Ultimately, the pastor decided that a second meeting should be held the next evening. At the meeting the members again voted to retain him. The pastor believed that any issues related to his misappropriation of money had been resolved during these two meetings. But the following Saturday, as he arrived at church to prepare for the Sunday morning service, he was handed a letter stating that the church was terminating him for embezzling church funds. The letter was signed by two of the three board members listed in the church’s 2010 articles of incorporation filed with the Texas Secretary of State.

The pastor sued the two board members (the “defendants”), claiming that they had changed the church’s locks and unlawfully excluded him. He asked the court to issue an injunction restraining the defendants from interfering with his duties as minister. He claimed that neither defendant had the power to fire him because (1) one of the defendants had resigned from the church board, and the other had been removed, and (2) the church’s bylaws did not confer upon the directors the authority to terminate the minister.

The trial court determined that the two meetings called by the pastor did not comply with the church bylaws’ notice requirement, and that a special meeting complying with the bylaws’ notice requirement should be held. The pastor appealed.

A state appeals court noted that the so-called “ecclesiastical abstention doctrine” prevents the civil courts from “delving into matters focused on theological controversy, church discipline, ecclesiastical government, or the conformity of the members of a church to the standard of morals required of them.” The court noted that the church bylaws “contain provisions regarding the notice required for special meetings of members and directors, requiring that seven days’ notice be given at a regular worship service of the congregation or printed in the bulletin for special meetings of members.” The court noted that “no provision in the bylaws governs the basis for or manner in which a minister may be terminated,” and that “the bylaws did not specifically authorize directors to remove the minister.”

The court concluded: “The bylaws contain no provisions regarding termination of a minister. Thus, we cannot merely construe the bylaws under neutral principles of law to resolve the parties’ dispute … . Accordingly, we hold the trial court lacked jurisdiction over this dispute under the ecclesiastical abstention doctrine.”

What This Means For Churches:

The court referred to a recent ruling by the Texas Supreme Court, Masterson v. Diocese of Northwest Texas, 422 S.W.3d 594 (Tex. 2013). In Masterson, the Texas Supreme Court concluded that “whether a church’s vote to disassociate from a diocese complied with the church’s bylaws was reviewable using neutral principles of law to determine whether the church or the diocese owned the church building.” Masterson “reaffirmed that courts should defer to religious entities’ decisions on ecclesiastical and church polity questions,” but held that “courts are to apply neutral principles of law to issues such as land titles, trusts, and corporate formation, governance, and dissolution, even when religious entities are involved.” After Masterson, “it is unclear whether the propriety of the termination of a minister, which older cases seemed to suggest was a categorically unreviewable ecclesiastical question, may now be reviewed applying neutral principles of law in cases in which the question turns on the substance of a document to which neutral principles of law may be applied, such as an incorporated church’s bylaws.”

In this case the church bylaws were silent on how the pastor could be removed, and so the court could not apply neutral principles of law to interpret them. Anderson v. Truelove, 446 S.W.3d 87 (Tex. App. 2014).

Legal Developments

Exemption of Unemployment Services in the Employ of a Church Doesn’t Violate First Amendment

Terminated employee unable to sue church for lack of unemployment benefits.

Richard R. Hammar, Attorney, CPA

Bio

State: Texas
Categories: Compensation and Benefits, First Amendment

Key point. The exemption of church employees from state unemployment compensation laws does not violate the First Amendment's Establishment or Free Exercise of Religion Clauses.

A Texas court ruled that the exemption of services in the employ of a church from the unemployment compensation system did not violate the First Amendment's prohibition of the establishment of religion.

A church terminated the employment of its pianist and organist (the "plaintiff"). The plaintiff filed a claim for unemployment benefits. His claim was denied because he had not earned sufficient covered wages to establish a claim for unemployment benefits. The plaintiff filed a lawsuit arguing that exemption of church employment in establishing a claim of unemployment benefits violated the First Amendment's guarantees of the nonestablishment and free exercise of religion.

Background

Under the Texas unemployment compensation system, employers make contributions in the form of excise taxes to the compensation fund. Eligible individuals who are unemployed through no fault of their own may receive unemployment benefits from the compensation fund. An individual is eligible for unemployment benefits if he or she is totally unemployed in a "benefit period." Employment covered by the unemployment compensation system generally includes service performed by an individual for wages. There are, however, a number of exemptions, including "service in the employ of a church." The Federal Unemployment Tax Act (FUTA) contains an identical exemption from the definition of "employment." Service in the employ of a church or a religious organization has been exempted from the Texas unemployment compensation system since it was established in 1936.

First Amendment's "Establishment Clause"

The plaintiff claimed that the exemption of services performed for a church from the definition of covered employment violated the Establishment Clause of the First Amendment. The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion."

When, as in this case, a law "affords a uniform benefit to all religions," rather than "drawing distinctions on religious grounds," a court should evaluate whether the law violates the Establishment Clause under the three-part test in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under this test, a law (1) must have a secular legislative purpose, (2) must have a principal or primary effect that neither advances nor inhibits religion, and (3) must not foster "an excessive government entanglement with religion."

The plaintiff claimed that the tax exemption for churches under the unemployment statute did not meet the first prong of the Lemon test because it did not have a secular purpose. The court noted that "a statute need not have exclusively secular objectives to meet the secular purpose standard; the touchstone is neutrality, and it is only when the government acts with the ostensible and predominant purpose of advancing religion that it violates the first prong of the Lemon test."

In this case, the Texas legislature stated the purpose of establishing the unemployment compensation system was to provide for the support of individuals who were unemployed through no fault of their own. The purpose for the exemption of service in the employ of a church from the definition of employment in the FUTA (which is identical to the exemption in the Texas statute) was "to address a concern that coverage of workers whose employment patterns are irregular or whose wages are not easily accountable would adversely affect administration of the program. These purposes are secular in nature."

The court also noted that the exemption of church employment was not the only variety of employment that was exempt under the unemployment statute. Rather, "a number of types of work are excluded from employment … reflecting the legislature's decision that the entities for whom that work is performed should not be subject to the burden of paying the tax required by the unemployment compensation system." The breadth of the exemptions "demonstrates the exemption [of church employment] was not aimed at establishing, sponsoring, or supporting religion."

The court concluded that the exemption of church employment from unemployment coverage did not violate the second or third prongs of the Lemon test (a principal effect that neither advances nor inhibits religion, and no excessive entanglement between church and state).

First Amendment's "Free Exercise of Religion" Clause

The plaintiff claimed that the exemption of church employment from unemployment coverage under the Texas statute violated his constitutional right to the free exercise of his religion, specifically his right to play music during worship services. The Free Exercise Clause provides that "Congress shall make no law … prohibiting the free exercise [of religion]."

The court noted that a free exercise claim will be sustained only if the government "has placed a substantial burden on the observation of a central religious belief" without "a compelling governmental interest justifying the burden." The government imposes a substantial burden on the free exercise of religion by forcing an individual to choose between "following the precepts of his religion and forfeiting benefits," or by "putting substantial pressure on an adherent to modify his behavior and to violate his beliefs." However, an individual's right to freely exercise his religion "is not necessarily violated simply because his religious practice is burdened by a governmental program."

The court concluded that the plaintiff provided no explanation of how the exemption in the unemployment statute put substantial pressure on him "either to modify his behavior or to violate his religious beliefs. Further, we can discern nothing about the exemption that affected his ability to play music during church services, violated his religious beliefs, or required him to work under conditions forbidden by his religion … . We conclude that exempting service performed in the employ of a church from the definition of employment placed, at most, an inconsequential burden on the plaintiff's ability to play music during church services and does not violate his right to freely exercise his religion."

What this means for churches

This is one of the few cases to directly address the constitutionality of the exemption of church employees from coverage under state unemployment compensation laws. The court's conclusion that this exemption is constitutional will be a useful precedent in future challenges in other states. Spicer v. Texas Workforce Commission, 430 S.W.3d 526 (Tex. App. 2014).

Legal Developments

Ministerial Exemption Prevents Court from Resolving Lawsuit

Texas court claims they’re unable to resolve wrongful dismissal claim.

State: Texas
Categories: Clergy - Removal, Employment Practices

Church Law and Tax Report

Ministerial Exemption Prevents Court from Resolving Lawsuit

Texas court claims they’re unable to resolve wrongful dismissal claim.

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

A Texas court ruled that the so-called “ministerial exception” prevented it from resolving a dismissed pastor’s lawsuit claiming that he had been wrongfully dismissed by his church. In 2009, a pastor entered into an employment agreement with a church. The agreement provided that the pastor would serve as pastor of the church for a five-year period with the possibility of two additional five-year terms. In 2011 the church terminated the pastor’s employment.

The pastor sued the church, and both state and national denominational agencies (the “church defendants”) for breach of contract and infliction of emotional distress. He sought damages for loss of future and past wages, punitive damages, and attorney’s fees. The trial court dismissed the pastor’s lawsuit on the basis of the “ministerial exception” which holds that the First Amendment guaranty of religious freedom prohibits the civil courts from resolving employment disputes between churches and clergy.

A state appeals court affirmed the trial court’s dismissal of the case. The court noted that the First Amendment’s guaranty of religious freedom “precludes, among other things, government action that burdens the free exercise of religion by encroaching on the church’s ability to manage its internal affairs.” To enforce this constitutional provision, “the courts have utilized the ecclesiastical abstention doctrine and the ministerial exception.” The ecclesiastical abstention doctrine “prohibits civil courts from exercising jurisdiction over matters concerning theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.” The ministerial exception “provides that civil courts lack subject matter jurisdiction to decide cases concerning employment decisions by religious institutions concerning a member of the clergy or an employee in a ministerial position.” The court noted that the United States Supreme Court unanimously affirmed the ministerial exception in 2012. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012).

The court concluded: “The pastor claims that the church harmed him by terminating his employment. To determine the efficacy of his claims, the courts would have to decide whether the termination of his employment was wrongful or premature. The free exercise clause of the Constitution prohibits the courts from reviewing employment decisions regarding ministers.” The court quoted from the Supreme Court’s decision in the Hosanna-Tabor case:

Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

The court noted that if it were to second guess the church’s decision to terminate the pastor it would “deprive the church of its right to shape its own faith and mission by imposing an unwanted minister … . Further, any monetary award by the court would operate as a penalty on the church for terminating an unwanted minister. Clearly, failure to extend Hosanna-Tabor to the present case would result in the untenable consequence of the court establishing religion and preventing the free exercise thereof in violation of the First Amendment.”

What This Means For Churches:

This case illustrates the unwillingness of the civil courts to review decisions by churches to terminate ministers. It also demonstrates that this unwillingness extends not only to wrongful termination claims, but also related claims including defamation and emotional distress. Reese v. General Assembly of Faith Cumberland Presbyterian Church in America, 425 S.W.3d 625 (Tex. Ap. 2014).

Legal Developments

Ministerial Exception Prevents Courts from Making Defamation Charges

Pastor accused by church leaders of producing pornography is unable to claim defamation in the courts

State: Texas
Categories: Clergy - Discipline and Removal, Defamation, Employment Practices

Church Law and Tax Report

Ministerial Exception Prevents Courts from Making Defamation Charges

Pastor accused by church leaders of producing pornography is unable to claim defamation in the courts

Defamation

Key point 8-10.1. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying employment laws to the relationship between a church and a minister.

Key point 10-15. The First Amendment limits, but does not eliminate, a church’s liability for defamation.

A Texas court ruled that the “ministerial exception,” which bars civil courts from resolving employment disputes between churches and pastors, prevented it from resolving an associate pastor’s claim that he had been defamed by church leaders who accused him of producing and accessing pornography. A church’s associate pastor (the “plaintiff”) alleged that church officials sought his resignation because he revealed to them that the church had financial problems. In particular, he claimed that he informed church officials “that the church’s financial condition was deteriorating and that they might have to hold a membership meeting of the church to discuss the financial options available.” The plaintiff claimed that the lead pastor did not like this financial news because it “reflected on his ability to run the church and it prevented him from making an overseas trip using church funds.” According to the plaintiff, the lead pastor “began a campaign to solicit negative comments in the form of letters from various members to be used as a reason to embarrass him into resigning from his position.”

The plaintiff asserted that church leaders “falsely accused him of producing and disseminating pornography.” The allegedly false accusations were based on an e-mail that the plaintiff sent to the lead pastor in which he attached a proposed announcement to be made during an upcoming church service that depicted a couple lying in bed with the caption “Ignite Your Marriage at [our church]. Mattress not included.” The plaintiff insisted that the couple depicted in the image were fully clothed, and therefore the accusation of pornography was false and defamatory.

The plaintiff sued the lead pastor, and church for defamation, conspiracy, interference with contract and prospective contract, negligence, and intentional infliction of emotional distress. He asked for injunctive relief and monetary damages. The trial court dismissed the lawsuit, and the plaintiff appealed.

A state appeals court began its opinion by noting that “the ecclesiastical abstention doctrine prevents secular courts from reviewing many types of disputes that would require an analysis of theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required.” The doctrine provides that “civil courts are to accept as final, and as binding on them the decisions of an ecclesiastical institution on such matters.”

The related “ministerial exception” refers to the application of the ecclesiastical abstention doctrine in the employment context. It provides that “civil courts lack subject matter jurisdiction to decide cases concerning employment decisions by religious institutions concerning a member of the clergy or an employee in a ministerial position … . Although wrongs may exist in the ecclesiastical setting, and although the administration of the church may be inadequate to provide a remedy, the preservation of the free exercise of religion is deemed so important a principle that it overshadows the inequities that may result from its application.”

The court concluded that the ecclesiastical abstention doctrine and ministerial exception required the dismissal of the plaintiff’s claims against the lead pastor and church:

Each of his causes of action are based on [the church defendants] allegedly taking action against him for conduct that they viewed as inappropriate for an associate pastor. There was no evidence adduced that his reputation was harmed outside of the church community, nor was there evidence that the church defendants took any action outside the context of their deliberations regarding the plaintiff’s fitness for service as an associate pastor with the church. Instead, the evidence demonstrated that “the individual defendants did not publish the alleged defamatory statements to third parties outside of the church membership” and that “the substance and nature of his claims is to recover for an intangible injury to his reputation and for emotional distress allegedly caused by the church defendants’ statements and actions in connection with the employment dispute.” The evidence established that the actions underlying the plaintiff’s claims—specifically, the lead pastor’s assertions that the plaintiff distributed pornography—took place entirely within the context of church officials’ internal efforts to remove him from his position. Thus, trial on the plaintiff’s claims would require an analysis of “church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required.” The ecclesiastical abstention doctrine precludes subject matter jurisdiction over those causes of action.

What This Means For Churches:

This case demonstrates the important principle that the ministerial exception not only bars civil court review of wrongful dismissal claims by clergy, but also any claims collateral to adverse employment decisions including defamation, conspiracy, and emotional distress.

The case is also important because the court concluded that the ministerial exception required dismissal of the plaintiff’s interference with contract claim. Such a claim arises when one party shares information with an employer that leads to the termination of an employee. This basis of liability is sometimes asserted against churches and denominational agencies that share negative information about a minister that leads to the termination of his or her employment by another church. The plaintiff insisted that his interference with a prospective contract claim was based on an allegation that “he was removed from consideration for a job at another church” based on the false charge of using pornography. In rejecting this basis of liabliity, the court observed that “this allegation is also based on acts allegedly taken within the context of the church’s internal employment procedures. It is barred by the ministerial exception.” 399 S.W.3d 690 (Tex. App. 2013).

Legal Developments

Local Church Retains Control of Property

Court denies Episcopal national church ownership of building used by newly dissociated church.

Richard R. Hammar, Attorney, CPA

Bio

State: Texas
Categories: Denominations - Legal Liability

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

The Texas Supreme Court ruled that a church that withdrew from the national Episcopal Church retained control of its property in a dispute with the national church.

Due to doctrinal differences with the Episcopal Church ("national church"), some members of a local Episcopal church (the "church") proposed disassociating from the national church and organizing as an independent church. The church conducted a called meeting during which the following resolutions were presented: (1) amend the corporate bylaws to, among other changes, remove all references to the national church; (2) withdraw the local congregation's membership in and dissolve its union with the national church; (3) revoke any trusts that may have been imposed on any of its property by the national church. The resolutions passed by a vote of 53 to 30.

After the parish vote, the local diocese of the national church took the position that the church could not unilaterally disassociate from the Diocese and that the vote did not have any effect on the church's relationship with the diocese or national church. The diocese held a meeting with the faction of the church loyal to the national church and appointed a new priest. The loyal faction elected a board (vestry), and the diocese recognized the loyal faction as the legitimate church.

Nevertheless, the withdrawing faction continued to use the parish property, so two vestry members of the loyal faction and the diocese asked a local court for a ruling recognizing the loyal faction as the true church, and affirming that all the parish property was held in trust for the national church. The national church filed a motion for summary judgment. It asserted that the Episcopal Church is a hierarchical church; its canons and rules provide that all property of a parish is held in trust for use of the national church and the respective diocese; and, when congregations of hierarchical churches split, Texas courts defer to the decisions of the church's superior hierarchical authority as to which faction comprises the true church.

In support of its position, the national church noted that in 1979 it amended its canons, adding Canon I.7.4 (often referred to as the "Dennis Canon") and I.7.5 for the purpose of placing church property in trust:

Section I.7.4. All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitutions and Canons.

Section I.7.5. The several Dioceses may, at their election, further confirm the trust declared under the foregoing Section 4 by appropriate action, but no such action shall be necessary for the existence and validity of the trust. (Emphasis added).

The trial court granted the national church's motion for summary judgment, and this ruling was affirmed by a state appeals court. The case was appealed by the dissident faction to the Texas Supreme Court.

The Texas Supreme Court began its opinion by observing: "The question before us is what happens to the property when a majority of the membership of a local church votes to withdraw from the larger religious body of which it has been a part." The court noted that there are at least two methods for resolving church property disputes without violating the First Amendment guaranty of religious freedom—"deference" and "neutral principles of law."

Deference

The court noted that "whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of [the] church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them" (quoting the decision of the United States Supreme Court in Watson v. Jones, 80 U.S. 679 (1872)). The deference rule is mandatory in such cases.

The court conceded that "differences between ecclesiastical and non-ecclesiastical issues will not always be distinct, and that many disputes of the type before us will require courts to analyze church documents and organizational structures to some degree. Further, deferring to decisions of ecclesiastical bodies in matters reserved to them by the First Amendment may, in some instances, effectively determine the property rights in question."

The court concluded that "absent specific, lawful provisions in a corporation's articles of incorporation or bylaws otherwise, whether and how a corporation's directors or those entitled to control its affairs can change its articles of incorporation and bylaws are secular, not ecclesiastical, matters."

Neutral principles of law

While the judicial deference to church authority is mandatory in disputes involving "discipline, faith, or ecclesiastical rule, custom, or law," this is not necessarily the case in church property disputes that do not implicate such issues. If a church property dispute can be resolved without inquiring into church doctrine or practice, then there are several potential ways for the courts to intervene. The Texas Supreme Court noted that the neutral principles of law approach was one such method, and it officially sanctioned it as the applicable rule for the resolution of church property disputes by Texas courts so long as the deference rule does not apply.

What, then, is the neutral principles of law approach to resolving church property disputes that do not implicate church doctrine? The court explained: "Under the neutral principles methodology, ownership of disputed property is determined by applying generally applicable law and legal principles. That application will usually include considering evidence such as deeds to the properties, terms of the local church charter (including articles of incorporation and bylaws, if any), and relevant provisions of governing documents of the general church."

The national church insisted that, under the neutral principles of law approach, the courts should apply the Dennis Canon, and award title to the national church or diocese. In support of this argument, the national church claimed that, according to the United States Supreme Court's decision in Jones v. Wolfe, 443 U.S. 595 (1979), "a superior hierarchical church organization's amendment to its constitution to include a trust provision is sufficient to establish a trust in property held by its subordinate churches." The national church pointed to the following excerpt from the Supreme Court's ruling in Jones:

At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.

The court disagreed that the Dennis Canon was dispositive, for several reasons. First, the national church's pleadings and briefs only claimed that the church's property was retained by the national church as a result of the deference rule. The status of the property under the neutral principles of law approach was not addressed. Since the court rejected the deference rule in church property disputes, the national church's appeal to the deference rule was unavailing.

Second, if the effect of the Dennis Canon was to award title to the church property to the faction loyal to the national church, this "would subject the corporation's decision makers and the parish members who were qualified to vote under the bylaws to the dictates of persons not identified in corporate governing documents as having the right to make, control, or override corporate decisions." In this regard, the court added that when the church incorporated in 1974, the state nonprofit statute provided that "the power to alter, amend, or repeal the bylaws or to adopt new bylaws shall be vested in the members, if any, but such power may be delegated by the members to the board of directors." No provision empowered an "external entity … to amend them absent specific, lawful provision in the corporate documents," and there was no such provision in the church's bylaws.

Third, the court stressed that the church "was incorporated pursuant to Texas corporation law and Texas law dictates how the corporation can be operated, including how and when corporate articles and bylaws can be amended and the effect of the amendments." The court found no provision in the church's articles of incorporation or bylaws requiring amendments to be subject to the approval of the diocese or national church. To the contrary, the articles of incorporation and bylaws specified that "qualified parish members were entitled to elect the vestry and amend the bylaws."

Fourth, the court noted that "even assuming a trust was created by the Dennis Canon … we disagree that the Canon's terms make the trust expressly irrevocable as Texas law requires … . The Canon simply does not contain language making the trust expressly irrevocable … . Even if the Canon could be read to imply the trust was irrevocable, that is not good enough under Texas law. The Texas statute requires express terms making it irrevocable."

Fifth, the court noted that the national church "did not cite Texas law to support their argument that under the [church] was precluded from revoking any trusts actually or allegedly placed on its property."

Two justices dissented from the court's opinion. These justices would have awarded title of the church property to the national church. One reason for doing so was the doctrine of estoppel. They explained:

Alternatively, I believe the [national church] prevails under the doctrine of quasi-estoppel. The [national church] did not formally plead quasi-estoppel as an affirmative defense, though they did allege facts to support it. The summary judgment evidence establishes the applicability of the doctrine and precludes [the church] from claiming that it may revoke the trust in conjunction with its withdrawal from the national church. Quasi-estoppel precludes a party from asserting, to another's disadvantage, a right inconsistent with a position previously taken. The doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one to which he acquiesced, or from which he accepted a benefit … . Prior to [this dispute, the church] had promised conformity to the national church's doctrine and to its Constitutions and Canons; had accepted grants as well as no-interest and low-interest loans from the national church and the Diocese to assist in building the church; had declared that the church property was "secured from the danger of alienation … from those who profess and practice the Doctrine, Discipline, and Worship of this [Episcopal] Church"; and had accepted the conveyance of the property from the Diocese after the property trust provisions were added to Canons. Having made these promises and accepted these benefits [the church] may not now contend it is free to disregard these positions because a majority of its members have voted to do so.

The Texas Supreme Court rejected this argument, noting that "summary judgment may only be granted based on grounds pleaded and expressly presented in a motion for summary judgment. The national church neither pleaded estoppel nor urged it as a ground for summary judgment." So, the court rejected this potentially decisive argument on the ground that the national church failed to raise it in its motion for summary judgment.

What this means for churches

Note the following implications of this ruling:

First, the neutral principles of law approach to resolving church property disputes is now the official way for Texas courts to resolve such disputes.
Second, the deference rule requires civil courts to defer to the decisions of church bodies on matters of faith and polity.
Third, the court's ruling was not a ruling on the merits. Rather, the court was reversing the trial and appellate courts' award of summary judgment in favor of the national church. The court's ruling sends the dispute back to the trial court for trial. It is possible that the trial court, and appellate court, would again rule in the national church's favor.
Fourth, the court rejected the national church's estoppel argument since it had not been raised in its pleadings. Presumably, this argument can be raised in the trial court.
Fifth, the national church's pleadings and briefs only claimed that the church's property was retained by the national church as a result of the deference rule. The status of the property under the neutral principles of law approach was not addressed. Since the court rejected the deference rule in church property disputes, the national church's appeal to the deference rule was unavailing. The national church will have the opportunity to address its interpretation of neutral principles of law on remand of the case to the trial court.
Sixth, as the court noted, several other courts have reached the opposite conclusion and awarded title to the property of dissident Episcopal churches to the denomination. Masterson v. Diocese of Northwest Texas, 2013 WL 4608632 (Tex. 2013).

Legal Developments

Court Intervention in Church Legal Disputes

If religious doctrine is involved, courts typically won’t intervene in governance disputes.

Richard R. Hammar, Attorney, CPA

Bio

State: Texas
Categories: Charters, Constitutions, and Bylaws, Church Members

Church Law & Tax Report

Court Intervention in Church Disputes

If religious doctrine is involved, courts typically won’t intervene in governance disputes.

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

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 Texas appeals court ruled that it was barred by the “ecclesiastical abstention doctrine” from resolving a lawsuit brought by former church members alleging that the church failed to follow its bylaws in various respects. Former members of a church (the “plaintiffs”) sued the church and its trustees (the “defendants”) alleging that they breached their obligations to the plaintiffs, as members of the church, by failing to conduct elections for trustees; improperly conducting general meetings without a quorum; adopting amendments to the bylaws in violation of those bylaws; disenfranchising numerous members of the church who were critical of the trustees’ policies and procedures; refusing to allow these disenfranchised members to participate in meetings and refusing to provide them copies of church documents; establishing a mandatory monthly membership fee of $30; refusing to honor the members’ petitions to call special meetings or place matters on the agenda for other meetings; and altering the trustee-nomination procedure and committee-appointment process so that only persons appointed by them could be eligible for appointment.

The plaintiffs asked the court for a declaration that the amended bylaws were of no effect, all disenfranchised members would be restored to full rights as members, and the $30 membership fee invalidated.

The defendants claimed that the “ecclesiastical abstention doctrine” applied to divest the court of jurisdiction to hear the plaintiffs’ claims. The trial court agreed with the defendants and dismissed the lawsuit. The plaintiffs appealed on the ground that a resolution of their claims was not barred by the First Amendment or the ecclesiastical abstention doctrine since a civil court could resolve all of the claims using “neutral principles of law” requiring no inquiring into church doctrine.

A state appeals court affirmed the trial court’s ruling dismissing the case. It noted that the ecclesiastical abstention doctrine is based on the First Amendment’s free exercise of religion clause, which prohibits “governmental action that burdens the free exercise of religion by encroaching on a church’s ability to manage its internal affairs.” However, the court acknowledged that the civil courts have the authority to resolve “purely secular disputes that do not require an inquiry into religious doctrine.”

The court noted that the plaintiffs’ primary argument was that the church’s bylaws were changed inappropriately. It noted that “the church’s failure to follow its bylaws on a matter of internal governance is a matter of internal church governance and ecclesiastical concerns, and the courts may not interfere with that decision.” The court concluded:

The neutral principles of law approach does not apply here because the plaintiffs complain about matters of internal church governance. The disputes in this case do not involve contract, property, or civil rights. Instead, the plaintiffs contend that the trustees failed to comply with the bylaws when they allegedly called for elections, conducted meetings, and amended the bylaws; disenfranchised members; refused to allow those disenfranchised members to participate in meetings; refused to provide disenfranchised members copies of church documents; and established a mandatory monthly membership fee. Whether a church failed to “follow its bylaws on a matter of internal governance is also a matter of internal church governance and ecclesiastical concerns,” and we may not interfere with that decision.

Nor do courts have jurisdiction to decide who may or may not be members of the church. We conclude that the trial court lacked jurisdiction to hear the plaintiffs’ claims because they involve matters of internal church governance.

What This Means For Churches:

All courts would agree that they are prohibited by the First Amendment from resolving any internal church dispute requiring an interpretation of church doctrine or polity. However, the courts interpret doctrine and polity differently. Some courts, such as this one, interpret the concepts of doctrine and polity broadly to include a church’s adherence to its bylaws on matters of internal church governance. But other courts have taken a narrower view of doctrine and polity and have been willing to resolve some disputes involving church governance, so long as no inquiring into doctrine or polity is involved. 2011 WL 2685969 (Tex. App. 2011).

This Recent Development first appeared in Church Law & Tax Report, July/August 2012.

Legal Developments

Who Is Considered a Minister?

Courts may use various tests to determine whether the ministerial exception applies to an individual.

Richard R. Hammar, Attorney, CPA

Bio

State: Texas
Categories: Clergy - Removal, Employment Practices

Church Law & Tax Report

Who Is Considered a Minister?

Courts may use various tests to determine whether the ministerial exception applies to an individual.

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

Key point 8-10.1. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying employment laws to the relationship between a church and a minister.

A federal court in Texas ruled that the “ministerial exception” prevented it from resolving a church music director’s claim that his church’s decision to terminate his employment amounted to unlawful age and disability discrimination. An adult male (the “plaintiff”) was terminated from his position as a church’s music director. He sued the church and the governing diocese (the “defendants”), claiming that his dismissal violated federal laws prohibiting discrimination in employment on the basis of age and disability. The defendants asked the court to dismiss the case on the basis of the “ministerial exception” doctrine, which generally prohibits the civil courts from resolving employment disputes between churches and persons in ministerial positions.

In determining whether the ministerial exception applied to the plaintiff, the court noted the following facts:

The plaintiff was responsible for the music at worship services, including the choir.
He selected music for each Sunday.
At each worship service he would direct the choir in four hymns, one octavo, one psalm, the Lord’s Prayer, the Hallelujah, and the Kyrie.
He practiced with the choir and taught them how to read music.
He decided who would perform as cantors at the services.
He printed and chose content for the worship aids handed out during services.

In 2007 the plaintiff had knee replacement surgery, and was terminated a few months later.

The court concluded that the plaintiff was a “minister” for purposes of the ministerial exception, and therefore it was barred by the First Amendment from resolving his claims. It acknowledged that the courts “have not adopted a uniform general test” for deciding who is a minister. Some courts utilize the “primary duties” test, which asks whether the employee’s primary duties are religious in nature. Others use a version of the “primary duties” test, without adopting it. Others use a three-part test first announced in 1999 by a federal appeals court. Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999). The so-called Starkman test identified three factors to consider in deciding if a church employee is a “minister” for purposes of the ministerial exception:

(1) Are employment decisions regarding the position at issue made “largely on religious criteria”?

(2) Is the employee authorized to perform the ceremonies of the church?

(3) “Probably most important is whether [plaintiff] engaged in activities traditionally considered ecclesiastical or religious.”

The Starkman court held that it is “sufficient” to deem an employee’s function “ministerial” if only the third prong is satisfied. It concluded that a church’s music director was a “minister” and therefore her lawsuit accusing her employing church of employment discrimination had to be dismissed.

The Texas court concluded that the plaintiff was a minister under the Starkman test. Its analysis of the three Starkman factors is summarized below.

1. employment decision made largely on religious criteria

The plaintiff insisted that he was merely a bookkeeper, sound person, custodian, and accompanist, and did not serve any ministerial or pastoral functions. He claimed that his position was entirely secular and that he did not have any special education or experience in liturgical music or liturgical norms.

The church defendants pointed to the plaintiff’s job description for evidence of religious criteria. The job description includes a “Brief Job Summary” that reads: “This position reports to the Pastor and is responsible for leading, coordinating, evaluating and guiding the Choirs, Cantors, Orchestra and instrumental musicians that participate in [church] liturgies except for the 5:30 Sunday evening Mass. This position has wide authority to exercise independent judgment and discretion within the scope of the job.” The “essential duties” described in the job description include producing high-quality liturgical music, and leadership for the church’s choirs and instrumental musicians, including rehearsals, preparation, and music selection. The job description further states that the job requires “knowledge of” liturgical procedures, a wide range of liturgically appropriate music, including Gregorian chant, and documents and teachings of the Catholic Church related to music ministry.

The court concluded that the evidence was too tenuous and conflicting to say that this factor supported ministerial status.

The court concluded that while the plaintiff “tries to downplay his liturgical responsibilities,” in fact “all of this evidence shows that he was qualified and authorized to perform ceremonies in the church.”

2. qualified and authorized to perform the ceremonies of the Church

The second Starkman factor addresses whether the plaintiff was qualified and authorized to perform ceremonies of the church. The court concluded that he was, despite his claim that he was merely an accompanist, sound man, and bookkeeper. The court noted that his own deposition “revealed that he was much more.” He testified that as music director he was responsible for the music at the Saturday night Mass, Sunday morning Masses, and for the choir … that at a typical Mass he would direct the choir in four hymns, one octavo, one psalm, the Lord’s Prayer, the Hallelujah, and the Kyrie; he picked the music for each Sunday from a list of prescribed hymns contained in certain books, id. at 126-129; picked the octavos performed by the choir during the Mass; determined who could perform at the Masses and what music they could perform; practiced with the choirs every Tuesday and taught them how to read music; hired various outside coaches to help with the choirs; organized who would perform as cantors at the services; hired replacement cantors and piano players for the times he went on vacation; and printed and chose content for the worship aids handed out at Masses.

3. engaged in activities traditionally considered ecclesiastical or religious

The third Starkman factor, most determinative in this case, is whether the plaintiff “engaged in activities traditionally considered ecclesiastical or religious.” The court concluded that they were. It quoted from the testimony of an expert in Canon Law:

Music enhances the liturgy and is not considered a performance …. In the Catholic Church, sacred music supports the church’s prayer by enriching its elements. A music director is integral to the Catholic Mass, including the celebration of the Liturgy of the Word and Liturgy of the Eucharist. The music director is also integral to the celebration of the other important religious ceremonies and sacraments of the Catholic Church …. A music director also serves the Church’s spiritual and pastoral missions by designing and implementing a music program through which the faithful are able to more appropriately worship God in the Mass, other liturgies, and prayerful events. Additionally, through music, the Music Director is to develop fellowship among the faithful. As such, the Music Director at the Church leads an important spiritual and religious fellowship for the Church that is essentially religious in nature. In conclusion, the Music Director, including [the plaintiff] is a worship leader of the Church.

The court concluded:

As Music Director, plaintiff’s responsibility was to lead and provide music for the Mass, including liturgical portions such as the Psalm and Kyrie. Plaintiff was not merely an accompanist and the evidence does not support that he believed this. He stated in a letter to a [deacon] that, “we rightly thought that by our labor we were helping to unfold the Creator’s work and contributing, by our personal industry, to the realization in history of the divine plan.” Plaintiff has presented no evidence that somebody else led the Choir at the Masses. Plaintiff’s claims that the choir led itself is without merit …. Moreover, even assuming he delegated some of his duties to others, Plaintiff was responsible for the final product presented to the congregation. His role as Music Director was ecclesiastical and spiritual.

The court concluded: “As music director, the plaintiff performed functions that are considered ecclesiastical or religious. He participated in religious rituals and played a spiritual leadership role at [the church]. His dismissal from his position as music director was painful for him and his family (who were also highly involved in the church), expressly because of the relationship between his position at the church and his spiritual beliefs. Accordingly, the ministerial exception applies and the plaintiff’s age and disability discrimination claims are barred.”

What This Means for Churches:

This case provides helpful guidance in the definition of the term “minister” for purposes of the ministerial exception. In 2012, the United States Supreme Court unanimously affirmed the ministerial exception, but declined to define the term “minister.” That is understandable, since it would be difficult to fashion a definition that would apply in all cases. The Supreme Court left the definition of this essential term to other courts in other cases.

The court in this case chose to apply the Starkman test. A minority of courts that have applied the ministerial exception have used this test. Many more courts have applied a definition that focuses on a person’s primary duties: “As a general rule, if the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered ‘clergy.'” Rayburn v. General Conference of Seventh-day Adventists772 F.2d 1164 (4th Cir. 1985).

In many cases, both tests will produce similar results.

One other aspect of this case merits attention. The court placed great weight on the plaintiff’s job description. The importance of job descriptions in ministerial exception cases cannot be understated. Churches should review job descriptions, especially for non-ordained staff, to see if employees who might meet the definition of “minister” for purposes of the ministerial exception have job descriptions that highlight and stress their religious functions. Catholic Diocese, 2011 WL 4352771 (W.D. Tex. 2011).

This Recent Development first appeared in Church Law and Tax Report, May/June 2012.

Legal Developments

Is a Church Obligated to Share Member Records?

State nonprofit corporation law may override protection of privacy.

Richard R. Hammar, Attorney, CPA

Bio

State: Texas
Categories: Church Records

Key point 6-03.1. Church members generally have no right to inspect church records unless such a right is conferred by state nonprofit corporation law, a church's charter or bylaws, state securities law (if the church has issued securities), or a subpoena. Church records enjoy no privilege against disclosure, with the exception of documents that are protected by the clergy-penitent privilege under state law.

A Texas court ruled that persons who have been dismissed from membership in a church no longer have a right under the state nonprofit corporation law to inspect church records.

A married couple (the "plaintiffs") became increasingly dissatisfied with various ecclesiastical and secular church policies, including how the church handled its finances. The plaintiffs requested access to the church's financial books and records pursuant to a provision in the state nonprofit corporation law giving members a right to inspect corporate books and records. Their main concern was how the church had disposed of a donation they made to the church's building fund a few years earlier. In particular, they wanted to determine if the church had spent their designated donation for some other purpose.

Dissatisfied with the church's response, the plaintiffs sent the church a second request, through their attorney, to examine the church's financial records. The church allowed them to see some financial records, but not enough to satisfy them. A few days later, in accordance with its bylaws, the church revoked the plaintiffs' membership. The church insisted that this action was not the result of the financial inquiries, but rather due to the plaintiffs' longstanding and increasingly vehement disagreements with the church's ecclesiastical doctrines.

The church claimed that it made many efforts over the years to address the plaintiffs' concerns, including arranging for special meetings with an independent mediator, but ultimately these efforts failed. The church's members voted to remove the plaintiffs as members at a specially called business meeting.

The plaintiffs sued their former church. They alleged that while they were allowed to see some records, they were not permitted to copy them. They asked the court to order an audit of the church's financial records for the previous three years "to verify that [the church's] expenditures are for church-related purposes," "to determine whether or not the acts of the pastor and the board of deacons are illegal, oppressive, or fraudulent," and "to determine whether or not corporate assets have been misapplied or wasted."

The church asked the court to dismiss the lawsuit on the ground that the plaintiffs' claims implicated religious matters that were beyond the jurisdiction of the civil courts. It also argued that the plaintiffs lacked "standing" to pursue their claims since they were no longer members and had no legal right to inspect records or dictate church practices. Alternatively, it asked the court to order the financial records to be turned over to an independent CPA for an audit, at the church's expense.

The plaintiffs also sued each member of the church's board of deacons, claiming that (1) the deacons themselves had denied the plaintiffs access to the church's books and records; (2) the plaintiffs' monetary donations to the church "were not used for their intended purposes"; (3) the deacons, jointly and severally, had "misappropriated and converted" the plaintiffs' donations of money and property; and (4) the deacons had "excommunicated" the plaintiffs for seeking access to the church's financial records.

The lawsuit claimed that the deacons were liable on the basis of conversion, breach of fiduciary duty, misapplication of fiduciary property, and fraud. The church provided a legal defense for the deacons because of a provision in the church's bylaws obligating the church to indemnify the deacons.

The trial court accepted the church's proposal of an independent audit, and indicated that it might shift the cost to the plaintiffs if the audit uncovered no wrongdoing. The audit revealed some gaps in the church's records but no fraud. Consequently, the church filed a motion to require the plaintiffs to reimburse its audit expenses, which totaled $21,380.

The same day, the church again asked the court to dismiss the case on the grounds that (1) the court lacked jurisdiction over the plaintiffs' claims because they implicated ecclesiastical matters; (2) the audit conclusively established that the church had not engaged in wrongdoing; (3) the plaintiffs lacked standing and failed to allege a viable cause of action. The court dismissed all claims against the church and its deacons, and ordered the plaintiffs to reimburse the church for the cost of the audit.

The church and its deacons later asked the court to impose sanctions against the plaintiffs on the ground that their lawsuits were "frivolous, groundless, and brought in bad faith as a form of retaliation." The church and deacons requested sanctions equal to their attorney's fees. The court agreed that sanctions were appropriate, and ordered the plaintiffs to reimburse the church and deacons for all legal expenses incurred in defending against the plaintiffs' lawsuits. The plaintiffs appealed all of the trial court's rulings.

A state appeals court agreed with the trial court's dismissal of all of the plaintiffs' claims, and also upheld the trial court's award of sanctions to the church and deacons, and the reimbursement of the expenses of the independent audit.

What This Means For Churches

Church leaders often wrestle with the question of whether or not to honor requests by members to inspect various kinds of corporate records. Here are some points that church leaders should consider:

Most state nonprofit corporation laws give the members of incorporated churches a legal right to inspect books and records for a proper purpose and a reasonable time. The right of inspection is not absolute. It only exists if a church is incorporated under a state nonprofit corporation law that gives members such a right.
The right of inspection only extends to members. Several courts have ruled that members whose membership is revoked no longer have the legal authority to inspect church records.
The right of inspection only extends to those records specified in the statute creating the right.
Most such laws provide that the member may inspect documents "for a proper purpose" at a "reasonable time."
The court concurred with the church's suggestion to have an independent CPA conduct an audit of the church's financial records in order to ascertain the validity of the plaintiffs' claim that their designated contributions to the church were not being spent according to their designations. The court also concluded that the cost of the audit could be assessed against the plaintiffs since it failed to turn up any evidence that supported their claims of financial mismanagement and fraud.
The case illustrates the possible imposition of sanctions against plaintiffs who bring frivolous lawsuits against churches or other defendants. Generally, trial courts can impose sanctions "on a party, its attorney, or both for filing a groundless instrument in bad faith or for the purpose of harassment." The term "groundless" is defined as having "no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law." Sanctions may include costs and attorney's fees incurred to defend against the groundless suit. It is not uncommon for churches to be the targets of frivolous lawsuits. Church leaders, and their attorneys, should keep in mind this remedy in egregious cases. Though rarely awarded, the threat of sanctions can be a powerful deterrent.
Some churches do not have members. Rather, they are governed by the lead pastor and in some cases an advisory board appointed by the pastor. Nonprofit corporation laws empowering members to inspect corporate records would not apply to churches with this governance model.
Any decision to withhold documents from a member should be made with the advice of an attorney.

2010 WL 2010792 (Tex. App. 2010).

Legal Developments

Interference with Contract

Student sues official who informed a potential employer of his arrest.

Richard R. Hammar, Attorney, CPA

Bio

State: Texas
Categories: Employment Practices, Overtime Pay

Church Law & Tax Report

Interference with Contract

Student sues official who informed a potential employer of his arrest.

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

Key Point 8-24. A reference letter is a letter that evaluates the qualifications and suitability of a person for a particular position. Churches, like other employers, often use reference letters to screen new employees and volunteers. Churches often are asked to provide reference letters on current or former workers. The law generally provides employers with important protections when responding to a reference letter request. However, liability may still arise in some cases, such as if the employer acts with malice in drafting a reference letter.

A Texas court dismissed a lawsuit brought by a university student against a school official who informed a prospective employer of the student’s arrest for public lewdness. A university student (the “plaintiff”) was working toward a degree in elementary education. While on his way to a student teaching assignment at an elementary school, he stopped at a men’s restroom in a public park. Another man followed him into the restroom, the two had sex, and they were subsequently arrested and charged with public lewdness. The restroom in the park was under surveillance because of numerous complaints about drug use and lewdness around children. The plaintiff pleaded no contest to the offense and was placed on deferred adjudication.

School officials decided that the plaintiff could obtain his teacher certification if two requirements were met: (1) he must make “full disclosure” about his arrest to his prospective employer, and (2) the employer must confirm in writing to university officials that he had “fully disclosed” his arrest.

The plaintiff applied for a fourth grade teaching position at a public school. He informed the principal that he had been arrested for public lewdness, but provided no other details. He prepared a letter for the principal to sign that was addressed to the university, affirming that he had been “totally forthcoming about his arrest record and has provided all documentation related to his arrest.” Because the letter “raised flags” of concern, the principal Brown placed a reference-check call to the university concerning the plaintiff. A university official (the “defendant”) referred to the existence of a newspaper article discussing the arrest. The official later testified that she told the principal about the newspaper article so that she would have the information and not be “blindsided” if a parent were to inquire about the incident.

The elementary school conducted a routine criminal background check on the plaintiff, which showed that he had received deferred adjudication for public lewdness. The plaintiff, however, had answered “No” to a question on his application that asked if he had “ever been convicted of a felony or offenses involving moral turpitude and/ or received probation or deferred adjudication.” Although the plaintiff had already been assigned a classroom and placed in paid training, the school ultimately declined to allow him to teach.

The plaintiff sued the defendant for interference with contract. The court noted that interference with contract requires proof of (1) the existence of a contract subject to interference; (2) a willful and intentional act of interference; (3) the act was the cause of plaintiff’s damages; and (4) actual damage or loss. The court concluded that the defendant’s reference to a newspaper article concerning the plaintiff during his conversation with the school principal was not a “willful and intentional act of interference.” It noted:

A willful act involves more than simple participation in some act with a breaching party. The defendant must knowingly induce one of the contracting parties to breach its obligations. There must be some act interfering with a contract or act persuading a party to a contract to breach; for example, offering better terms or other incentives. Liability for intentional interference may not be based on a simple finding that the defendant performed certain acts; there must be a finding that the defendant performed certain acts with the knowledge or belief that interference with a contract would result from that contract.

The act at issue in this case is the telephone conversation between [the defendant and the school principal] during which the defendant mentioned the newspaper article. Plaintiff alleges in his petition that the defendant “made it clear that she believed that hiring or retaining plaintiff as a teacher would embarrass both the school and the university ….” The principal stated that the defendant did not read her the article or provide her a copy …. This is the entirety of the evidence on which the plaintiff relies to support his assertion that the defendant advised the school that hiring the plaintiff would create problems; he refers to no other evidence that the defendant expressed any opinion to the principal, the only school administrator with whom she had contact, concerning his employment, and our review of the record finds no other evidence. In the defendant’s deposition, she said that she responded to the principal’s question about the plaintiff because she thought that she should have the information to “avoid being blindsided” by a parent who might have seen the article. The defendant had no previous relationship with the principal. The record does not show any further contact with the principal or any other school administrator to whom she could have communicated a negative recommendation about the plaintiff.

The court concluded that no jury could conclude that the defendant “performed an act intended to knowingly induce the school to breach its contract with the plaintiff, or that the conversation with the principal was done with the knowledge or belief that it would interfere with the plaintiff’s TISD contract. Accordingly, the defendant conclusively negated the element of tortious interference that requires a willful and intentional act …. The plaintiff produced no countervailing evidence that the defendant offered the school some inducement to breach its contract with the plaintiff or that her reference to a newspaper article served as a negative inducement for the school to breach the contract.”

The court further noted that the plaintiff had “admitted that the defendant was not acting maliciously but in the best interests of the university and the teacher education program,” which precluded a finding of willful and intentional interference with contract.

Application. Note the following considerations:

1. According to the principle of “interference with contract,” a former employer may be liable if it intentionally interferes with an existing employment relationship. To illustrate, assume that a church dismisses an employee (Jill) because of embezzlement, and Jill is later hired by another church. The pastor of the former employer discovers that Jill is now working for another employer, and he calls the employer and shares details about Jill’s embezzlement. Based on this unsolicited communication Jill is dismissed by her new employer. She later sues her former church and pastor for “interference with contract.” To prove interference with contract, Jill must demonstrate the existence of a contract (an employment relationship), and some intentional act by her former church or pastor that interfered with that contract.

2. Interference with contract requires malicious intent. The defendant must have willfully and intentionally engaged in conduct that interfered with another’s employment contract. In this case, the court concluded that the defendant’s reference to a newspaper article in her conversation with the principal could not reasonably be construed an act “intended to knowingly induce the school to breach its contract with the plaintiff.” In support of this conclusion, the court referred to the following facts: (1) the defendant did not read the article to the principal or provide her a copy; (2) the defendant expressed no opinion to the principal concerning the plaintiff’s employment; (3) the defendant communicated with no other school employee; (4) the defendant did not initiate the contact with the principal; (5) the defendant’s sole purpose in referring to the newspaper article was to prevent the principal from “being blindsided” by a parent who might have seen the article; (6) the defendant had no previous relationship with the principal; (7) the defendant had no further contact with the principal or any other school administrator to whom she could have communicated a negative recommendation about the plaintiff.

3. Some courts have extended the principle of interference with contract to the pre-employment stage, referring to this as “interference with prospective contractual relations.” This requires proof of the following elements: (1) a “reasonable probability” that the plaintiff would have entered into the prospective relationship or contract; (2) a wrongful act by the defendant that prevented the relationship from occurring; (3) the defendant did such act with a conscious desire to prevent the relationship from occurring, or knew that the interference was certain or substantially certain to occur as a result of the defendant’s conduct; and (4) the plaintiff suffered actual harm or damage as a result of the defendant’s interference.

4. Some courts have ruled that the so-called “ministerial exception” prevents them from resolving interference with contract claims involving clergy. 2008 WL 5264886 (Tex. App. 2008).

This Recent Development first appeared in Church Law & Tax Report, September/October 2009.

Legal Developments

The Ministerial Exception and Sex Discrimination

The First Amendment generally prevents courts from resolving church employment claims.

Richard R. Hammar, Attorney, CPA

Bio

State: Texas
Categories: Clergy - Removal, Schools

Church Law & Tax Report

The Ministerial Exception and Sex Discrimination

The First Amendment generally prevents courts from resolving church employment claims.

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

Key Point 8-10.1. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying employment laws to the relationship between a church and a minister.

A federal court in Texas ruled that it was barred by the ministerial exception from resolving a dismissed seminary professor’s claim that her dismissal was a result of unlawful sex discrimination in violation of Title VII of the Civil Rights Act of 1964. A religious seminary hired a female professor (the “plaintiff”) in its School of Theology. She soon was elevated to the rank of assistant professor, which was a tenure-track position. The plaintiff was the only female to teach in the School of Theology. In 2003 the seminary hired a new president. The president met with the plaintiff, and assured her that his appointment would not jeopardize her position. Some of the members of the seminary’s board of trustees expressed concern over whether hiring a woman to teach in the School of Theology was consistent with the church’s teaching that “while both men and women are gifted for service in the church, the office of pastor is limited to men as qualified by scripture.” The plaintiff’s employment was the result of a compromise between members of the board of trustees that resulted in placement of a limitation on her scope of employment to the teaching of Hebrew and Aramaic grammar, syntax, and exegesis. The compromise included an expression that the purpose of her position was “to help students gain facility in the handling of the Hebrew and Aramaic text of the Old Testament.” The courses plaintiff taught during her employment as a non-tenured member of the faculty were limited pursuant to the compromise. Even with the compromise, there were members of the board of trustees who opposed her presence on the faculty.

In 2006 the plaintiff was informed by the seminary that “her contract was terminated, effective December 31, 2006.” The plaintiff alleged that the president informed her that his reason for not renewing her contract and for not recommending her for tenure was that she was a woman. The chair of seminary’s board of trustees later informed a local newspaper that hiring a woman to teach men was a “momentary lax of the parameters.”

The plaintiff sued the seminary, claiming that her termination constituted unlawful sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The court dismissed the plaintiff’s claims on the basis of the ministerial exception as well as the broader “ecclesiastical abstention doctrine”:

The courts are prohibited by the First Amendment from involving themselves in ecclesiastical matters, such as disputes concerning theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required. If the claim challenges a religious institution’s employment decision, an important inquiry is whether the employee is a member of the clergy or otherwise serves a ministerial function. If the answer is “yes,” the “ministerial exception” applies, thus preventing court review of the employment decision without further question as to whether the claims are ecclesiastical in nature. The court has concluded that a review by this court of the employment decision of [the seminary] concerning plaintiff’s employment is prohibited by the ecclesiastical abstention doctrine as well as the ministerial exception.

The record clearly establishes that seminary is a “church” and that plaintiff is a “minister” as contemplated by the ministerial exception doctrine. Moreover, the record establishes as a matter of law that the employment decision made by defendants concerning plaintiff was ecclesiastical in nature. If the court were to allow plaintiff’s claims to go through the normal judicial processes, the procedural entanglements would be far-reaching in their impact upon seminary as a religious organization. The substantive implications of resolution by the courts of a dispute such as the one presented by the instant action would constitute an inappropriate state intrusion into an area where seminary has a legitimate claim to autonomy in the elaboration and pursuit of its own beliefs and practices ….

The court is satisfied … that the decision … to terminate plaintiff was religiously motivated. No rational finder of fact could make a finding to the contrary. The employment decision was the product of a sincerely held religious belief on the part of members of the Board of Trustees; and, the summary judgment record so strongly supports such a finding that no reasonable finder of fact could find otherwise. There is no counterbalance that would outweigh the interest evidenced by the First Amendment in protecting the sanctity of the decision-making of defendants that resulted in the termination of plaintiff’s employment. The seminary must be free to decide for itself, free of interference of the courts, matters of church governance, such as the identities of those who will be permitted to teach courses in the preparation of students for church ministry.

The plaintiff alleged several other claims against the seminary besides sex discrimination, including breach of contract, fraud, and defamation. The court ruled that these claims were also barred by the ministerial exception. 543 F.Supp.2d 594 (N.D. Tex. 2008).

This Recent Development first appeared in Church Law & Tax Report, September/October 2009.