Discarding Relevant Video Evidence Leads to $500,000 Judgment Against School

This case illustrates why churches should preserve footage if a lawsuit is filed or anticipated.

Bio

State: Washington
Categories: Child Abuse, Church Records

Key point. Churches that discard potentially relevant records, including video footage, in a pending or threatened lawsuit may be subject to potentially severe sanctions by a court.

Some churches have installed video cameras on their premises as a way to detect criminal activity. In some cases, video cameras are installed in the church office to catch financial improprieties. But the most common use of this technology is to deter incidents of child abuse and to identify perpetrators.

Whatever the reason for using video cameras, church leaders should be aware of their legal obligation to preserve such evidence in the event of litigation.

A Washington state court case illustrates the importance of preserving video camera recordings in the event of litigation.

Background

A student (the “victim”) started first grade at a public school in December 2016. Another student (the “classmate”) was in the victim’s class and they rode the same school bus. On May 22, 2017, the victim told his mother that the classmate sexually abused him “almost every day” at school. He said the abuse had been happening in a school bathroom. The same day, the victim’s parents reported this to his teacher and a school counselor, who then informed the local police department.

During the 2016–2017 school year, the school used eight surveillance cameras. Cameras one through seven were outside the school building, and camera eight was inside a closet. Cameras one through four were not operating during the time the victim and the classmate attended school together.

The school buses also had surveillance cameras. The school installed a new camera system in its buses in April 2017, and that system retained footage for about 30 days. With no action taken to preserve footage, the camera systems automatically overwrote old footage to free up storage capacity. The school cameras retained footage for at least 30 days, but it could retain footage for up to 6 months.

A school-set schedule set forth parameters for retaining camera footage. The schedule prohibits the destruction of any footage subject to “ongoing or reasonably anticipated litigation.”

On June 6, 2017, the principal emailed the victim’s mother, confirming that, based on the principal’s investigation, inappropriate touching occurred. Up to this point in time, the school took no steps to preserve any video footage.

Instructed to preserve documents

On June 19, 2017, the school received a letter from a law firm informing it that it had been retained by the victim’s mother to represent the victim and requesting that it preserve documents related to the victim and the classmate, including surveillance video footage from the school and the buses from December 2016 onward.

On June 21, 2017, school employees received an internal litigation hold letter from its attorney instructing them to preserve documents relating to the victim and to suspend standard document destruction programs. The letter explained that “documents” included electronic information and that failure to preserve documents could lead to “severe sanctions.” Even still, the court noted, the school “did not take any steps to preserve video footage.”

On October 10, 2017, the victim sued the school. On November 9, 2017, the victim sought information, documents, and video recordings related to the victim and the classmate. The victim’s lawyers asked the school to identify:

“[E]ach document, which you possess or have the legal right to obtain, pertaining to [the victim] or [the classmate].”

“[E]ach document, which you possess or have the legal right to obtain, pertaining to video or audio recordings of [the victim] or [the classmate] on the premises of [the school] or on your school buses during the 2016–17 school year, including without limitation video recordings, audio recordings, and electronically stored information.”

“[E]ach document, which you possess or have the legal right to obtain, pertaining to your use of video or audio recording equipment on school buses, including without limitation identification of buses outfitted with recording equipment, procedures for use of the equipment, review processes for recording media, use of the equipment in documenting instances of inappropriate student behavior, and procedures for proper disposal of recording media.”

The law firm requested, “If any such document was, but is no longer, in [the school’s] possession …, please state what disposition was made of the document.” The firm’s request defined “document” to include “video recording[s].” The responses were due December 9, 2017.

For the first time, the school acted on December 8, 2017, to preserve surveillance camera footage. The school responded to the prior discovery requests by simply stating that it had no evidence responsive to the requests.

The plaintiff asked the court to order the school to provide “complete and nonevasive answers,” and on June 7, 2018, the trial court ordered the school to identify and produce all documents, including videos, related to the victim and the classmate by June 27, 2018. The school did not comply with this order.

The school “repeatedly violated discovery rules”

The trial court concluded that the school had “spoliated” school and bus camera footage. Merriam-Webster defines “spoliation” to mean “the act of plundering,” “the state of having been plundered especially in war,” or “the act of injuring especially beyond reclaim.”

The trial court also concluded that the school “repeatedly violated discovery rules and the court’s discovery orders.” The court granted a default judgment against the school and assessed damages at $500,000.

What this means for churches

Churches that operate surveillance cameras are certainly free to delete footage after a reasonable time if no actual lawsuit is pending and none is anticipated.

But once a lawsuit is filed, or one is anticipated based on facts known to church leadership, it is important to preserve all potentially relevant evidence, including documents, emails, videos, and audio recordings. A failure to do so may constitute “spoliation of evidence” which, as this case illustrates, can result in severe penalties, including a default judgment and monetary damages.

J.K. v. Bellevue School District, 500 P.3d 138 (Wash. App. 2021)

Legal Developments

‘Discovery Rule’ Allows Floating Statute of Limitations for Some Child Sexual Abuse Victims

Church Law and Tax Report ‘Discovery Rule’ Allows Floating Statute of Limitations for Some Child

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

Church Law and Tax Report

‘Discovery Rule’ Allows Floating Statute of Limitations for Some Child Sexual Abuse Victims

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 18th 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.

A Washington state appellate court ruled that the “discovery rule,” which extends the statute of limitations for child sexual abuse claims until victims “discover” that their emotional injuries were caused by the abuse, enabled an adult woman to sue her former church for the child abuse she suffered as a minor based on the acts of a volunteer youth worker. From 2002 through 2004 an adolescent female (the “victim”) was sexually abused by an adult youth group leader (the “defendant”) at her church. In 2007 she turned 18, and the next year she was married. Over the next several years she experienced sexual dysfunction and a lack of intimacy, and she and her husband argued about whether to have children. Her symptoms, including flashbacks, guilt, and other emotional problems, were worse than she had ever experienced, and the marital problems continued until their divorce in 2011. The victim was also confused about her sexuality. She engaged in a sexual relationship with another woman that also caused significant confusion in her life. The victim also experienced problems at work, and struggled to reconnect with her religion. The church was no longer a comforting influence in her life.

In 2011, at age 22, the victim began seeing a psychologist, and it was then, she later alleged, that she realized for the first time the serious effect of the abuse on her adult relationships, sexuality, work, and spirituality. The psychologist helped her understand how the sexual abuse she suffered as an adolescent triggered symptoms based on the different, new life events that she was experiencing.

In 2012 the victim sued the defendant. A trial court dismissed the lawsuit on the ground that it was filed after the expiration of the deadline prescribed by the statute of limitations. The victim appealed.

A state appeals court reversed the trial court’s dismissal of the plaintiff’s lawsuit, and directed the case to proceed to trial. The Washington statute of limitations for child sexual abuse civil claims states:

All claims or causes of action based on intentional conduct brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse shall be commenced within the later of the following periods … (c) Within three years of the time the victim discovered that the act caused the injury for which the claim is brought: PROVIDED, That the time limit for commencement of an action under this section is tolled for a child until the child reaches the age of eighteen years.

The court noted that “this special statute of limitations is unique in that it does not begin running when the victim discovers an injury. Instead, it specifically focuses on when a victim of sexual abuse discovers the causal link between the abuse and the injury for which the suit is brought … . This is because the legislature specifically anticipated that victims may know they are suffering emotional harm or damage but not be able to understand the connection between those symptoms and the abuse.”

According to this statute, the victim’s lawsuit was time-barred unless it was filed within three years of her discovery that her many emotional problems were caused by the abuse she suffered as a minor.

The court pointed out that “the victim claimed that she did not understand the full effect of the childhood sexual abuse until she entered counseling as an adult. Although she had dealt with serious symptoms of her abuse for many years, she presented evidence that, until recently, she was not aware that her new, adult difficulties with her marriage, her work, and connecting with religion were caused by the childhood abuse.” It was not until she sought counseling as an adult in 2011 that she “began to realize how seriously affected she was by the abuse “in relationships, sexuality, work, and spirituality and established the causal connection.”

The court concluded that there was sufficient evidence that the plaintiff had not connected her emotional problems with her abuse as a minor until she sought counseling in 2011 to allow her claims to proceed to trial. It observed:

In summary, the plaintiff argues that she experienced new or more serious injuries from her sexual abuse when she was married, became sexually active, discussed having children with her husband, got a job, and tried to reconnect with the church. She presented evidence that these injuries are new or more serious because she did not understand how her sexual abuse would affect these parts of her life until she actually had these experiences and entered into sexual abuse counseling [relationship with a psychologist] in 2011. This evidence … viewed in a light most favorable to the victim, demonstrates that material facts are in dispute. Thus, a jury must resolve the factual issues and determine whether the statute of limitations bars her claims.

What This Means For Churches:

Most states recognize some variant of the discovery rule, enabling victims of child sexual abuse to file lawsuits years, and in some cases decades, after the abuse occurred. All that is needed is evidence that victims of childhood sexual abuse did not realize that their emotional dysfunctions were caused by the abuse. This “discovery” often is triggered by the initiation of a counseling relationship as an adult. B.R. v. Horsley, 345 P.3d 836 (Wash. App. 2015).

Legal Developments

Church Is Liable for Molestation of Minor

Despite no prior incidents of misconduct, duty of care should have been enforced

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

Church Law and Tax Report

Church Is Liable for Molestation of Minor

Despite no prior incidents of misconduct, duty of care should have been enforced

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.

A Washington court ruled that a church could be liable for the molestation of a minor by a volunteer in the church’s scouting program, even without knowledge of prior incidents of misconduct by the volunteer. In the early spring of 1977, a stranger (the “defendant”) began attending a church. He was personable, but gave only a vague explanation of “what he did and who he was and where he came from.” The defendant offered to volunteer with the church’s Boy Scout troop, and the church leadership decided to accept him as a volunteer. The defendant quickly assumed substantial responsibilities for the troop’s activities, though he was never officially registered with the Boy Scouts of America. He conducted scout meetings every week, took the scouts on camping trips, and helped them earn their merit badges.

An adult male (the “victim”) claimed that the defendant began sexually molesting him in 1977, about a week after they met. The incidents occurred in various places, including the defendant’s home during sleepovers, in his car in the church parking lot, or during campouts. The defendant also molested at least two other scouts during scouting events and sleepovers. One of these other victims informed his mother, who reported the abuse to church leaders the same day. She was told not to call the police and that church leaders would “take care of it.” The church leaders tried to contact the defendant, who left town the same night. The church conducted a parents meeting. Parents were instructed to discuss the defendant with their sons. Questioned by his parents, the plaintiff denied that the defendant had molested him. He did not tell friends or siblings about it either.

In 2011, the plaintiff sued the church, regional and national agencies of the church, and the BSA. The plaintiff alleged that the defendants had a duty to protect him from the criminal acts of the defendant. He claimed that they failed in their duty in various ways: by failing to check into the defendant’s background, by allowing him to supervise the children in isolated settings without another adult present, and by failing to train scoutmasters or warn scouts and their families about the danger of sexual abuse in scouting.

The trial court dismissed the lawsuit on the ground that the defendants owed no duty to protect minors from a danger of which they were unaware. The victim appealed.

A state appeals court reversed the trial court’s dismissal of the case and ordered the case to proceed to trial.

The court’s ruling

On appeal, the defendants claimed that none of them owed a duty of protection to the plaintiff because they did not possess prior specific knowledge that the defendant posed a threat to boys. But the court ruled that such knowledge is not necessary to establish a duty of care. Instead, a duty of care can arise solely on the basis of a “protective relationship” such as that between a church or scouting program and minors in their custody. In such cases, all that is required is “knowledge of the general field of danger within which the harm occurred.” The court continued:

As a matter of public policy, the protection of children is a high priority. In general, therefore, we find churches (and other religious organizations) subject to the same duties of reasonable care as would be imposed on any person or entity in selecting and supervising their workers, or protecting vulnerable persons within their custody, so as to prevent reasonably foreseeable harm.

However, the court noted that a duty of care arising from a protective relationship “is limited by the concept of foreseeability.” That is, “the duty is to anticipate dangers which may reasonably be anticipated, and to then take precautions to protect children in its custody from such dangers … . A defendant’s actual knowledge of the particular danger is not required if the general nature of the harm is foreseeable under the circumstances. Therefore, even if there was no evidence that the church knew about specific past incidents of child sexual abuse in scouting, we would decline to decide as a matter of law that sexual abuse by adult scout volunteers was unforeseeable by the church.” The court noted that the plaintiff produced evidence that the danger of sexual abuse by an adult volunteer was one the church reasonably should have anticipated.

The court concluded: “We reverse as to the church and remand for trial. The church had a protective relationship with the victim. From this relationship, a duty arose to take reasonable precautions to protect children in the church’s care from foreseeable hazards, a category that may include the risk of child sex abuse by scout leaders. This duty does not depend on the church having prior knowledge that its volunteer scout leader was a molester.”

What This Means For Churches:

This case is important because it illustrates that a church may be liable for a volunteer worker’s acts of child molestation, even if it conducted a reasonable background check and had no knowledge of any prior acts of sexual misconduct by the volunteer. This is because foreseeability of harm is not necessary to impose a legal duty of care upon a church that has entered into a “protective relationship” with a minor. The protective relationship itself is all that is required for a church to have a duty of protection toward minors in its custody. The court did clarify that a church’s liability for acts of child molestation involving minors in its protective custody only extended to foreseeable harm, but it concluded that, in this context, all that was required was foreseeability of the “general nature of the harm,” such as the sexual abuse of minors by adult volunteers. N.K. v. Corporation of Presiding Bishop, 307 P.3d 730 (Wash. App. 2013).

Legal Developments

Conspicuously Display Provisions on Release Forms

Woman injured while receiving instruction sues fitness center.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington

Church Law & Tax Report

Conspicuously Display Provisions on Release Forms

Woman injured while receiving instruction sues fitness center.

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

A Washington state court ruled that a “waiver and release” provision in a fitness center membership agreement was not legally enforceable because it was not sufficiently conspicuous, and therefore a 74-year-old patron who was injured while receiving instruction on weightlifting equipment could sue the center. A 74-year-old woman (the “plaintiff”) had rotator cuff surgery on her right shoulder and heart surgery to put in a stent. After completing post-surgery rehabilitation her doctor recommended that she continue to exercise. She joined a fitness center located a block away from her house. Membership in the center required that she sign a membership agreement. The agreement contained a “Waiver and Release” paragraph that stated:

Waiver and Release: I am aware that physical exercise is a calculated risk activity and that using The Club’s exercise machines, free weights, aerobics, group fitness, tanning, babysitting services, personal training services, nutritional supplements, and any other facilities and related services offered by The Club involves inherent risks and dangers, including loss of or damage to personal property and serious personal injury or death. I am aware of and understand the scope, nature, and extent of the risks involved in the activities contemplated by this Release and Waiver. I voluntarily assume and freely choose to incur any and all such risks of loss, damage, or injury, including death, including, but not limited to, the risk of harms caused in whole or part by the unintentional conduct of The Club.

There is a signature line below the Waiver and Release provision that the plaintiff signed.

On her third visit to the fitness center, the plaintiff met with a personal trainer to learn how to use the weight machines. She had never used weight machines before. The personal trainer took her to one of the machines and began explaining it to her. During this session the plaintiff momentarily lost her balance and fell backward, striking her head on the floor. She sued the fitness center, claiming that the trainer’s negligence caused her injuries. A trial court dismissed the lawsuit on the basis of the signed waiver and release, and the plaintiff appealed.

The appeals court noted that “the general rule in Washington is that a waiver provision is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous.” In this case, the only question was whether the waiver and release in the membership agreement was “so inconspicuous that reasonable persons could reach different conclusions as to whether the document was unwittingly signed.”

Factors in deciding whether a waiver and release provision is conspicuous include “whether the waiver is set apart or hidden within other provisions, whether the heading is clear, whether the waiver is set off in capital letters or in bold type, whether there is a signature line below the waiver provision, what the language says above the signature line, and whether it is clear that the signature is related to the waiver.” The court concluded that the waiver and release provision was too inconspicuous to be legally enforceable:

Here, the two-page membership agreement mostly consists of small, page-wide, justified print, with some portions in boxes and in capital letters. Certain provisions are more prominent because they use capital letters and bold font. However, the only provisions that are in capital letters or bold font have to do with the member’s financial obligations …. The waiver and release paragraph is located three quarters of the way down the first page …. There is a signature line below the waiver and release provision with [the plaintiff’s] signature. Next to the line for the “Member’s Signature” is a line for a “Co-Signer Signature.” …

[While] the waiver and release is set apart by blank lines and includes a signature line below it … it is in the same small font size as the rest of the agreement and, unlike the financial provisions in the membership agreement … does not include any capital letters, boxes, or bold print. In addition, the location of the waiver and release, three quarters of the way down the page, in the middle of financial terms, could create the impression that the paragraph also relates to the financial obligations …. And the line for “Co-Signer” next to the line for “Member’s Signature” could suggest that the signature has to do with the plaintiff’s financial responsibility, not a waiver of liability.

Although the signature line in this membership agreement is below the waiver and release provision, it does not include bold font or capital letters … [and] is not conspicuously displayed within the larger document, nor is it clear that the content is a waiver and release of liability for negligence, rather than the financial obligations. In addition, here, all the provisions that are called to the attention of the reader in the membership agreement concern financial terms.

The court concluded that reasonable persons could disagree as to whether the waiver provision was conspicuously displayed, and on that basis it reversed the trial court’s dismissal of the case. Johnson v. Ubar, 2009 WL 807521 (Wash. App. 2009).

This Recent Development first appeared in Church Law & Tax Report, July/August 2010.

Legal Developments

Probation Conditions for Sex Offenders at Church

Check the probation arrangements of offenders who attend your church.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law & Tax Report

Probation Conditions for Sex Offenders at Church

Check the probation arrangements of offenders who attend your church.

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

Key point. In some cases, child molesters are given probation instead of imprisonment, subject to various conditions. If such a person attends a church, it is important for church leaders to be apprised of such conditions so that they can help to ensure that they are followed.

The Washington Supreme Court affirmed the revocation of a child molester’s probation as a result of his repeated violations of the terms of the probation which, among other things, barred him from attending church or other places frequented by minors. An adult male (“Brian”) was convicted of first degree rape of a child under the age of 12 for raping his 11-year-old developmentally disabled granddaughter. The trial court sentenced Brian to 123 months imprisonment but found that he qualified for a special sex offender sentencing alternative (SSOSA) suspended sentence. In imposing the SSOSA sentence, the trial court set a number of conditions, including that Brian “not frequent areas where minor children are known to congregate, as defined by the supervising community corrections officer” (CCO). The CCO specifically instructed Brian that places he could not frequent included parks, schools, churches, day cares, movie theaters, shopping malls, bowling alleys, skating rinks, video arcades, and Boys and Girls Clubs.

A few years later, the state determined that Brian had violated a term of his probation by having contact with minor children. He was later cited again for violating the terms of his probation by visiting a church, a park, and a school on three separate occasions. The court sanctioned Brian to 120 days of confinement and sexual deviancy treatment.

A year later, Brian’s community corrections officer (CCO) received a tip that Brian had been a regular visitor at a church’s food bank located on the premises of the church’s elementary school, and that on some occasions he arrived at the food bank at 7:30 a.m., though the food bank did not open until 9 a.m. The CCO visited the food bank one morning and observed several minors in close proximity. Brian admitted to the CCO he visited the food bank but denied seeing any minors present or knowing it was on school property. As churches and schools are considered places where children are known to congregate, the CCO determined that Brian once again had violated the terms of his supervision. The CCO recommended that the court revoke Brian’s SSOSA sentence and send him to prison to serve his suspended sentence. Following a hearing, the court accepted the CCO’s recommendation, finding that Brian was at high risk to reoffend and was difficult to monitor in the community.

On appeal, Brian argued that his suspended sentence could not be revoked without proof of willful violations of the terms of his sentence (i.e., that he frequented areas where he knew that minors congregated), and, that there was insufficient evidence to support the revocation. The state supreme court rejected Brian’s arguments, and authorized the commencement of his term of imprisonment. It concluded:

The government has an important interest in protecting society, particularly minors, from a person convicted of raping a child. That interest is rationally served by imposing stringent conditions related to the crime Brian committed. The condition forbidding Brian from frequenting areas where minors congregate serves as a way to prevent him from being in a situation where he would have an opportunity to again harm a child. Also, his rights are already diminished significantly as he was convicted of a sex crime and, only by the grace of the trial court, allowed to live in the community subject to stringent conditions.

… child molesters who are not currently in prison may be subject to a supervised probation arrangement that restricts their church attendance.

Those conditions, like the one at issue, serve an important societal purpose in that they are limitations on his rights that relate to the crimes he committed. Given the strength of that interest and Brian’s diminished rights as someone on a suspended sentence, the balance tips heavily in favor of not requiring a finding of willfulness … The evidence demonstrates that Brian went to a food bank located in an elementary school that is connected with a church. The trial court could reasonably conclude that the location of the food bank in a building housing a church school presented a risk to the safety or welfare of society. This violation, combined with his prior violations for visiting a church, high school, and a park on three separate occasions, justify revoking his suspended sentence.

Application. This case demonstrates that child molesters who are not currently in prison may be subject to a supervised probation arrangement that restricts their church attendance. Many church leaders have learned that sex offenders are attending their church. Knowing how to respond in such cases can be a difficult question. In many cases, probation arrangements prohibit a defendant from attending church under any circumstances, while in other cases a defendant is allowed to attend church but under strict conditions. A church’s exposure to liability is increased if it allows a known sex offender to attend services or other church activities without ascertaining the existence and conditions of a probation arrangement. State v. McCormick, 213 P.3d 32 (Wash. 2009).

This Recent Development first appeared in Church Law & Tax Report, March/April 2010.

Legal Developments

Youth Pastor Jailed for Sexual Misconduct

Clergy may face extremely severe consequences for sexual abuse and exploitation.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law & Tax Report

Youth Pastor Jailed for Sexual Misconduct

Clergy may face extremely severe consequences for sexual abuse and exploitation.

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

Key point 4-11.1. 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 Washington state court affirmed a 15-year prison sentence for a youth pastor for engaging in inappropriate sexual conduct with two female members of his youth group. The youth pastor (the “defendant”) had sexual intercourse with a member of his youth group on six occasions. He persuaded another member of the youth group to disrobe while they were communicating with a computer, web-cam, and cell phones. Both minors informed their mothers of the defendant’s conduct, and the defendant’s acts were reported to the police. The defendant was charged with first degree sexual misconduct for engaging in sexual intercourse with the one minor. He was also charged with unlawful communication with a minor for an immoral purpose and sexual exploitation for his use of a computer, web-cam, and cell phone in communicating with the other minor.

The court convicted the defendant as charged and sentenced him to an “aggravated, exceptional sentence” of 15 years in prison, concluding that “standard range sentence is too lenient under the facts and circumstances of this case,” since the defendant had used his position of trust as a pastor to sexually abuse and exploit the victims.

A state appeals court affirmed the conviction and sentence. It noted that “a trial court may impose a sentence outside the standard sentencing range if it finds that substantial and compelling reasons justify an exceptional sentence.” Such reasons existed in this case, the court concluded. State v. Ritter, 201 P.3d 1086 (Wash. App. 2009).

This Recent Development first appeared in Church Law & Tax Report, November/December 2009.

Legal Developments

Child Killed in Church Parking Lot

Consider taking steps to make your parking lot safer.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law & Tax Report

Child Killed in Church Parking Lot

Consider taking steps to make your parking lot safer.

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

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

A Washington court ruled that a church was not legally responsible for the death of a three-year-old child who was run over and killed by a vehicle that was pulling into a church parking lot. A church had a small parking lot with one row of angled parking spaces separated from the church building by a driveway. On the day of the accident, a mother was dropping her young children off at vacation bible school. She pulled into one of the angled parking spaces. She let her older children get out first and then helped her three-year old son (the “victim”) out of his car seat and onto the asphalt parking lot next to the driver side of her vehicle.

At the same time, a van driven by another woman entered the parking lot and came to a screeching halt to let the victim’s older siblings cross the driveway and enter the church. The victim’s mother, concerned by the noise of screeching breaks, left the victim next to her vehicle and went to check on her other children. After watching them safely cross the driveway and enter the church, she returned to the victim and discovered that he had moved approximately 15 to 20 feet away from her vehicle. Meanwhile, the van driver proceeded to drive toward the victim. The victim’s mother recognized the danger her son was in, and tried to catch up with him. As she ran toward him she saw him enter one of the vacant parking spaces just as the van driver pulled into the same space. The van struck and fatally injured the victim.

The victim’s parents sued the church, alleging that its negligence caused their son’s death. Specifically, they claimed that the church had been negligent in the following respects:

The parking spaces in the church parking lot were two feet shorter than the length prescribed by the city zoning ordinance.
The parking lot was too narrow to allow both angled parking and two-way traffic.
The church failed to post speed limit signs in the parking lot limiting the speed to a safe five miles per hour.
The parking lot lacked speed bumps.
The parking lot lacked a crosswalk.

The court concluded that the victim’s tragic death was not attributable to any negligence on the part of the church. It noted that a plaintiff in a negligence case must prove that “but for the defendant’s negligence, the injury would not have occurred,” or “put another way, there must be a direct link between the ways in which the defendant was negligent and the manner in which the plaintiff was injured.” This standard was not met, the court concluded:

There is no evidence that two-way traffic or parking space depth had anything to do with the van hitting [the victim] …. Perhaps, had the victim been trapped in the parking space with nowhere else to go, the depth of the space might have mattered, but no one was parked on either side of the space into which [the van] pulled. The experts also stated that the church should have used traffic devices like signs, speed bumps, and a crosswalk to raise drivers’ awareness and alert them to the dangers of hitting children in the area. But the evidence shows that [the van driver] braked to avoid hitting the [victim’s older siblings]. She came to a full stop even without a crosswalk. One wonders what sign would do a better job of alerting drivers to the presence of children than being forced to brake suddenly to avoid hitting two children. There is no evidence to suggest these measures would have prevented [the accident] ….

An accident reconstruction engineer testified at his deposition that the faded stripes designating parking spaces were too faint for the victim to see, thereby leading him to believe that it was a safe walking area. He further testified that, had the area been properly marked, the victim would have walked a different way and would have been more visible to [the van driver]. But the idea that clearly marked white lines would have somehow prevented a young child from walking into the space where [the van driver] hit him or made him more visible to her is pure speculation. [the engineer] did not provide any factual support for his assertion that had the area been better marked the accident would not have occurred.

Similarly, the court rejected the parents’ claims that the lack of a speed limit sign, and speed bumps, amounted to negligence: “Nothing suggests that a five mile per hour speed limit sign or any other slowing device would either have resulted in [the van driver] driving only five miles per hour or ensured that the victim … went in a direction that would have lead him to safety. In fact, nothing explains why the victim was incapable of getting out of the way or speeding up or why he chose to walk into the very same empty parking spot that the van driver chose to pull into when there was no one parked on either side of that spot. These were very unfortunate accidents of fate and not directly attributable to the church’s failure to establish a five mile per hour speed limit.”

Application. An accident such as this could happen in the parking lots of most churches. While a church may not be liable for an accident that would have occurred regardless of the care it exercised, this does not mean that churches do not need to take affirmative steps to make their parking lots safe, for a church is potentially liable for parking lot accidents that would not have occurred but for its failure to implement appropriate safety measures.

What safety measures should a church consider? First and foremost, church leaders should check with their local zoning agency to ensure that all of the requirements of the zoning ordinance are being met. These may include speed limit signs, speed bumps, crosswalks, sizing, and adequate lighting. Another good idea is to check with your public school district, and other youth-serving charities, to see what measures they have instituted to make their parking lots safe. Yi v. Kim, 2008 WL 115814 (Wash. App. 2008).

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

Legal Developments

Liability for Off-Campus Trips

Court rules school not liable for 15-passenger van fatality.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law & Tax Report

Liability for Off-Campus Trips

Court rules school not liable for 15-passenger van fatality.

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

Key Point Many churches own 15-passenger vans that are used to carry passengers on church-approved trips. The safety of these vehicles has been questioned in a number of safety advisories issued by the National Highway Transportation Safety Administration (NHTSA). Church leaders should be familiar with the risk that these vehicles pose, and take steps to manage that risk.

A federal court in Washington ruled that a school could not be liable for the death of a 15-year-old student while traveling in a 15-passenger van on a field trip that was not under the supervision or control of the school. A group of nine high school students were traveling to another city as part of the Upward Bound Program. The van hit black ice, the driver of the van lost control and the van rolled. During the rollover, two students sustained fatal injuries. The families of one of the deceased victims (a 15-year old girl) sued the school, claiming that it negligently supervised the victims by allowing them to travel in a 15-passenger van, and that it negligently failed to warn the victim or her parents of the dangers of riding in a 15-passenger van. The school argued that it was not legally obligated to supervise students not in its custody or control.

The Upward Bound Program is a federally funded program, organized and administered by Columbia Basin College (“CBC”), which targets high school students who generally would be the first students in their family to attend college or students from economically disadvantaged families. CBC employees visit various high schools and recruit students into the program. At the time of her death, the victim was on a field trip sponsored by CBC through its Upward Bound Program. The District approved the victim’s absence from school so that she could attend the field trip. The Upward Bound Program employees transported the victim, and others, in a 15-passenger van that day.

The victim’s parents presented evidence that use of a 15-passenger van was dangerous and improper for transporting high school students. They alleged that the school failed to ensure that its students who were participating in the Upward Bound Program were protected against traveling in an unsafe 15-passenger van. The school, however, asserted that use of 15-passenger vans for the transportation of students is perfectly legal, and that there are no federal or state restrictions that would prevent the use of these vans to transport high school students. The school asked the court to dismiss the lawsuit.

15-passenger vans

The court rejected the school’s request to dismiss the case. It conceded that there was no evidence that the use of the 15-passenger van was in violation of state or federal law, but it concluded that the parents had produced “sufficient evidence supporting their theory that the vans utilized for the field trip had known safety problems” to avoid a dismissal of their claims. The school’s liability for allowing students to ride in a 15-passenger van would have to be decided by a jury.

Negligent supervision

The parents claimed that the school was responsible for their daughter’s death on the basis of negligent supervision. The school asserted that even if 15-passenger vans presented known dangers, it was not legally obligated to supervise the victim or any of the other students because they were not in its custody or control at the time of the accident.

The court observed:

Schools are charged with the responsibility of supervising children under their control during the time that they are at school under the doctrine of “in loco parentis.” This duty to supervise and protect students is based on the assumption that the school has direct control of the student and the parent does not during the time the student is at school. A duty of reasonable care is imposed by law on the school to take certain precautions to protect the pupils in its custody from dangers reasonably to be anticipated. Responsibility of a school to supervise students is not limited to school hours, school property, or school curricular activities. The duty to supervise also extends to school sponsored extracurricular activities under the control of the school and within its scope of authority. To qualify as school sponsored, the activity must be within the scope of the school’s authority and the school must exercise control over the activities.

The basic premise for fault in a custodial supervision situation is that a school has the power to control the conduct of its students while they are in school or engaged in school activities, and with that power goes the responsibility of reasonable supervision. As noted by school, “it stands to reason that when the student is not in the district’s custody and control then the district does not stand in the shoes of the parent and does not have the power to control the conduct of the student.”

The court conceded that the school approved the victim’s absence from school so that she could attend the field trip, but it concluded that there was no evidence that it had control over the Upward Bound Program or the transportation related to the programs activities. The Upward Bound Program employees transported the victim, and others, in the 15-passenger van on the day of the accident. The school “did not exercise or assume control or supervision over the Upward Bound Program in general or the CBC planned and organized field trip. CBC was solely responsible for administering the Upward Bound Program, the school did not have any authority to make decisions regarding the program, and CBC exercised and assumed control and supervision over and arranged the transportation for the Upward Bound Program field trip.”

The court concluded that the school “had no authority to direct how the students would be transported on the Upward Bound Program field trips,” and therefore it could not be liable for the victim’s death on the basis of negligent supervision. It granted the school’s request to dismiss this claim.

Failure to warn

The parents claimed that the school was negligent for failing to warn its students and their parents of the dangers of traveling in a 15-passenger van. The court concluded that the parents produced sufficient evidence supporting their theory that 15-passenger vans have known safety problems. But, the court ruled that the school had no legal duty to warn the victim or her parents of the dangers associated with 15-passenger vans since the victim was not in the custody of the school when she participated in the Upward Bound Program field trip. As such, “the school did not have a legal duty to protect or keep her safe while she participated in the field trip. Because no legal duty existed, the school is not liable, as a matter of law, for failing to warn of alleged risks associated with 15-passenger vans.”

Application. This case is significant for two reasons. First, it contains an excellent analysis of the liability of a school, or church, for off-campus trips. Such trips are common, especially for church youth groups. As the court noted in this case, when a parent transfers custody of a minor child to a school, the school acts “in loco parentis” (in the place of the parent), and this means that it must exercise the same care that a parent would exercise in the supervision and protection of the child until custody is returned to the parent. This duty extends to activities that are off of school property that are “under the control of the school and within its scope of authority.” The very same reasoning applies to churches.

Second, the court concluded that the parents had presented sufficient evidence supporting their theory that the 15-passenger van utilized for the field trip had known safety problems to avoid a dismissal of their claims. Here is a recognition, by a federal court, of the potential dangers associated with these vehicles. However, the court concluded that the school could not be liable on the basis of negligent supervision for allowing students to ride in such a vehicle, or for failing to warn students and parents of the risks associated with these vehicles, since the victim was not in the custody of the school when she participated in the field trip. Campos v. Prosser School District, 2008 WL 4587298 (E.D. Wash. 2008).

This Recent Development first appeared in Church Law & Tax Report, July/August 2009.

Legal Developments

Youth Pastor Jailed for Sexual Misconduct

Acts of sexual misconduct by clergy carry severe consequences.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Denominations - Legal Liability, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Key Point 4-11.1. 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 Washington state court affirmed the conviction and 15-year prison sentence of a youth pastor who engaged in a sexual relationship with a member of the church youth group. Eric was the youth minister at a church and also taught at the church's school. On six occasions he had sexual intercourse with a member of his youth group (the "victim") who also attended the church school. Eric communicated with the victim via computer and the telephone. While communicating via the computer, he persuaded the victim to undress.

He then viewed her through a webcam. The victim later reported the incident to her mother, and she also disclosed their sexual relationship. The mother immediately reported the incidents to the police. The State charged Eric with six counts of first degree sexual misconduct, one count of communication with a minor for immoral purposes, and one count of sexual exploitation of a minor. A digital forensic specialist with the sheriff's office testified that he was able to recover chat logs and emails from Eric's and the victim's computers. The chat logs indicated that Eric was viewing webcam images. He explained a webcam picture is captured and then transmitted to the designated computer, but he could not recover the web camera pictures from Eric's computer because Web camera transmissions are viewed almost instantaneously rather than downloaded to the computer.

The court convicted Eric as charged, and the court imposed an exceptional sentence, running the 60-month sentence for the six counts of first degree sexual misconduct consecutive with the 120-month sentence for sexual exploitation of a minor. The court concluded "a standard range sentence is too lenient under the facts and circumstances of this case." The court also concluded that Eric was in a position of trust during the abuse of the victim. On appeal, Eric claimed that there was insufficient evidence to support his sexual exploitation of a minor conviction. He alleged that there was no evidence that he compelled the victim to "photograph" herself because a Webcam viewing is not considered a photograph. Under Washington law, a person is guilty of sexual exploitation of a minor if he or she: "aids, invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance." State law defines a "photograph" as a "print, negative, slide, digital image, motion picture or videotape. It includes anything tangible or intangible produced by photographing."

The court noted that "the legislature intended to draft the statute as broadly as possible to encompass any technology by which photographs containing child pornography could be reproduced and distributed." It concluded that interpreting the term "photograph" as broadly as possible to encompass any technology containing child pornography, "the sexually explicit acts viewed by Eric over his Webcam would be considered a photograph for purposes of [the statute]. A Webcam viewing would be characterized as an intangible digital image. Therefore, sufficient evidence exists to support the exploitation conviction."

Application. There are an array of legal consequences that often accompany acts of sexual misconduct by clergy. These include personal civil liability, liability for their employing church based on negligence or other grounds, and, as this case illustrates, possible criminal liability. The youth pastor in this case was sentenced to 15 years in prison for the relationship that he had with the victim. Five years of this sentence was for the acts of sexual intercourse. The remaining ten years was for "photographing" the victim with her Webcam. 2009 WL 473657 (Wash. App. 2009).

This Recent Development first appeared in Church Law & Tax Report, July/August 2009.

Legal Developments

Segregation of Damages

If this principle applies, exposure to monetary damages in sexual misconduct claims may be reduced.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law & Tax Report

Segregation of Damages

If this principle applies, exposure to monetary damages in sexual misconduct claims may be reduced.

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

Key point. Juries generally cannot assess monetary damages against two or more organizations for the same wrong. If a jury determines that a personal injury victim has suffered damages of a specified amount, it cannot assess this amount separately against more than one defendant since doing so would result in duplicate verdicts.

A federal appeals court ruled that juries, in assessing monetary damages in sexual misconduct claims, must “segregate” the church’s damages based on negligence from the perpetrator’s damages based on intentional or criminal acts. A church member sued his church and a staff member who sexually molested him. During the trial, the court instructed the jury to segregate damages caused by the perpetrator’s intentional acts from damages caused by the church’s negligence. The jury returned a verdict finding the church liable for only a small portion of the amount that was assessed against the perpetrator. The victim appealed, asking the appeals court to reverse the trial court’s order segregating damages, thereby allowing the church to be assessed the full amount of the damages. A federal appeals court, applying Washington law, affirmed the trial court’s order.

The court noted that the Washington Supreme Court had previously ruled that under Washington law damages resulting from intentional acts must be segregated from those resulting from negligence, and negligent defendants can be held jointly and severally liable only for the damages resulting from their negligence. Tegman v. Accident & Medical Investigations, Inc., 75 P.3d 497 (2003), citing Washington Revised Code 4.22.070. The Washington Supreme Court stressed that a negligent party “could not be held liable for any damages due to intentional acts.”

Application. Most if not all acts of sexual misconduct involve intentional acts by the perpetrator. When the perpetrator is a church employee or volunteer, the church may be liable on the basis of negligence in selecting, supervising, or retaining the wrongdoer. In many cases, juries assign greater culpability, and monetary damages, to the wrongdoer, and lesser culpability and damages to the negligent church. As this case demonstrates, some states require the segregation of damages, meaning that negligent parties cannot be assessed monetary damages based on the wrongdoer’s intentional acts. This is a significant principle, since in most cases those who commit acts of sexual misconduct lack the means to pay their share of a jury verdict. In many states, churches that are found to have been negligent in selecting, supervising, or retaining the wrongdoer can be forced to pay the full amount of damages assessed by the jury, even that portion that was allocated to the wrongdoer’s intentional acts. Church leaders should be familiar with the principle of segregation. If it applies, it may significantly reduce a church’s exposure to monetary damages in sexual misconduct cases involving intentional acts. Fleming v. Church of Latter Day Saints, 275 Fed.Appx. 626 (9th Cir. 2008).

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

Legal Developments

Child Abuse: Mandatory Reporters and Victims’ Rights

Victims of abuse may be able to sue a church as a result of leaders’ handling of the case.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Child Abuse Reporting

Church Law & Tax Report

Child Abuse: Mandatory Reporters and Victims’ Rights

Victims of abuse may be able to sue a church as a result of leaders’ handling of the case.

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

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

A Washington state court ruled that the state child abuse reporting law did not give victims of abuse a right to sue a church for monetary damages as a result of a minister’s failure to report abuse, but victims in some cases may be able to sue a church on the basis of emotional distress as a result of how church leaders handled the case. A minor female (the plaintiff) claimed that she told a minister that her stepfather was sexually abusing her and her sister. She met with the minister because she “just wanted the abuse to stop. That’s it.” The plaintiff further alleged that the minister responded, “I’m so glad you came and talked to me, because I don’t have to report it.” The minister explained that another minor female in the church had informed her school counselor that her father was molesting her, and this had resulted in the state investigating the allegation and ruining the father’s reputation in the community and bankrupting the family. The plaintiff stated that “[the] message came across pretty loud and clear [that] had I gone to somebody else, they would have reported it. And the situation, what happened to the other family, would be what would happen to my family.”

A few years later the plaintiff and her sister sued their church for negligence and emotional distress as a result of the continuing molestation they had endured as a result of the failure by the church to report the child abuse to civil authorities. After three weeks of trial the jury returned a verdict in the plaintiffs’ favor of $4.2 million based on emotional distress and a negligent failure to report the abuse. The church appealed.

Does the Reporting Statute Create a Civil Remedy?

A state appeals court began its ruling by addressing the question of whether the state child abuse reporting law, which is a criminal statute, provides a civil remedy for a failure to report. The court concluded that a private remedy could be inferred by the reading of the reporting statute, for the following reasons: (1) “Implying a remedy is consistent with the underlying intent of the statute-imposing civil consequences for failure to report motivates mandatory reporters to take action to protect victims of childhood sexual abuse.” (2) The reporting statute grants immunity from civil liability to “a person who, in good faith and without gross negligence, cooperates in an investigation arising as a result of a report made pursuant to this chapter.” A grant of immunity from liability “clearly implies that civil liability can exist in the first place. Accordingly, we conclude that a private cause of action is implied under the mandated reporting statute.”

Liability for Failure to Report

The Washington reporting statute defines a “mandatory reporter” to include several specified occupations, including a “social service counselor.” A social services counselor is defined as “anyone engaged in a professional capacity during the regular course of employment in encouraging or promoting the health, welfare, support or education of children, or providing social services to adults or families, including mental health, drug and alcohol treatment, and domestic violence programs, whether in an individual capacity, or as an employee or agent of any public or private organization or institution.”

The church claimed that the reporting statute did not impose a general duty to report child abuse, but only requires certain categories of professionals to report child abuse. Because ministers are not professional social service counselors, the church argued that it had no duty to report. The court agreed. It concluded that “the legislature did not intend the mandated reporting statute to apply to volunteer counselors who are not professional social service counselors and not acting in their regular course of employment.”

In summary, the court acknowledged that a right to sue for civil damages could be implied in the child abuse reporting law, but only with respect to mandatory reporters. And, since ministers ordinarily are not professional social service counselors, they are not mandatory reporters and therefore no civil remedy exists for a failure to report child abuse. As a result, the court dismissed the plaintiffs’ claim that the church was liable for a failure to comply with the child abuse reporting law.

The church also claimed that ministers are not included on the list of mandatory reporters, and so the church could not be liable for a minister’s failure to report. Once again, the court agreed.

Emotional Distress

The court concluded that the church could be liable for inflicting emotional distress on the plaintiffs. It quoted the trial judge: “If the jury finds that [the minister] basically discouraged the plaintiff from pursuing anything further because the family would break up, they’d be out on the streets, basically, everybody would be talking about her, if that’s true, then it seems to me that there’s plenty of room for a jury to find outrage, and that would be the basis of the outrage. This is a 13- or 14- year old girl. This is sexual abuse. Someone who gets the courage up to go talk to an adult, a male adult at that, I believe that there’s plenty of evidence there for a jury to find that the tort of outrage was indeed committed if they believe that occurred.”

Application. This case is significant for two reasons:

First, the court concluded that the state child abuse reporting law gave victims of abuse the right to sue mandatory reporters for negligence as a result of a failure to report known or reasonably evident cases of child abuse.

Second, the court concluded that churches may be liable on the basis of emotional distress for how they handle disclosures by minors of abuse, even though there is no legal duty to report the abuse to civil authorities. Doe v. Corporation, 167 P.3d 1193 (Wash. App. 2007).

This Recent Development first appeared in Church Law & Tax Report, September/October 2008.

Legal Developments

Former Director of Evangelization Sues Diocese for Wrongful Termination

Courts generally cannot resolve church employment disputes.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Child Abuse Reporting, Clergy - Removal

Church Law & Tax Report

Former Director of Evangelization Sues Diocese for Wrongful Termination

Courts generally cannot resolve church employment disputes.

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

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 Washington state appeals court ruled that the First Amendment prevented it from resolving a claim of wrongful termination by the former director of evangelization of a diocese. A Catholic diocese hired a man (“Bruce”) as director of evangelization. Bruce’s job description defined his duties to include the development and implementation of “evangelization adult formation programs in Christian discipleship, Scripture, the Catholic Faith as summarized in the Creed, Sacraments, Liturgy, Morality, Spirituality, Evangelization and Social Justice with the goal of preparing every Catholic for ministry in the Church and mission in society.” Bruce helped compile a handbook for the Deacon Formation Program and guidelines for the Parish Pastoral and Finance Councils. In this bishop’s opinion, Bruce’s job “was directly related to the teaching of the Catholic Faith and doctrine.”

The diocese discovered pictures on a priest’s computer of naked adolescent boys on a beach. When confronted, the priest attempted suicide. In response, the diocese sent him to a psychiatric facility. The computer was turned over to state and federal prosecutors, but no charges were filed. The priest returned to the diocese and was assigned to a church that operated a parochial school. Bruce disagreed with the handling of the situation, and expressed his dissatisfaction in writing. Thereafter, his duties were cut back to the point that he was forced to resign. He later sued the diocese for retaliatory discharge.

A trial court dismissed Bruce’s lawsuit, and the case was appealed. A state appeals court ruled that the “ministerial exception” required it to affirm the dismissal of Bruce’s claims. The court, in explaining the ministerial exception, observed: “Secular courts must avoid controversies between a church and its minister because the introduction of government standards to the selection of spiritual leaders would significantly, and perniciously, rearrange the relationship between church and state. Moreover, an investigation and review of such matters of church administration and government as a minister’s salary, his place of assignment and his duty could only produce by its coercive effect the very opposite of that separation of church and state contemplated by the First Amendment.”

The court concluded that Bruce’s position was ministerial, though he was not ordained, and therefore the ministerial exception applied. It noted that “In determining whether an employee is considered a minister for the purposes of applying the ministerial exception, we do not look to ordination but instead to the function of the position,” and that the ministerial exception “encompasses all employees of a religious institution, whether ordained or not, whose primary functions serve its spiritual and pastoral mission.” The court noted that the diocese hired Bruce as its director of evangelization, and that “evangelism by its very term means preaching the gospel.” Fontana v. Diocese of Yakima, 157 P.3d 443 (Wash. App. 2007).

This Recent Development first appeared in Church Law & Tax Report, January/February 2008.

Legal Developments

Non-Ministers and Wrongful Termination Claims

A former church employee’s job and duties did not trigger the ministerial exception, and a resolution of her wrongful discharge claim did not require the court to delve into religious doctrine.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Employment Practices, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Non-Ministers and Wrongful Termination Claims

A former church employee’s job and duties did not trigger the ministerial exception, and a resolution of her wrongful discharge claim did not require the court to delve into religious doctrine.

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

Key point 8-04. In most states, employees who are hired for an indefinite period are considered “at will” employees. This means that the employment relationship may be terminated at will by either the employer or employee, with or without cause, and with or without notice. The courts and state legislatures have created a number of exceptions to the at will employment rule. These exceptions limit the right of an employer to terminate an at will employee. Employees who are hired for a specific term are not at will employees, and they may be terminated only if the employer has “good cause.”

* A federal court in Washington ruled that the First Amendment did not prevent it from resolving a dismissed lay employee’s claim of wrongful termination against her former church. The parties in this case were the same as in the previous case. In this case, Beth sued her church and denominational agencies (the “church defendants”) for wrongful termination rather than sexual harassment discrimination under Title VII. She asserted that the church’s termination of her employment based on her accusations of sexual harassment against the senior pastor violated a “public policy against sex discrimination.”

The court noted that “there is no dispute that Beth was subjected to unwelcome and persistent sexual advances from [the senior pastor] contrary to Washington’s strong public policy against such behavior.” After she complained to the pastor about his conduct, he informed her that she would have to resign. The church’s associate pastor, also a member of the board, confirmed this decision. Beth later communicated to the other members of the church board the severity and frequency of the pastor’s misconduct. Nonetheless, the board did not question the pastors’ decision to terminate her.

The church claimed that questioning its justification for Beth’s termination would intrude upon its First Amendment right to the free exercise of its religion. The court acknowledged that the First Amendment “precludes claims that would require a jury to evaluate religious doctrine or the reasonableness of the religious practices followed [by a religious organization].” However, this principle “does not provide churches with absolute immunity to engage in [wrongful] conduct. So long as liability is predicated on secular conduct and does not involve the interpretation of church doctrine or religious beliefs, it does not offend constitutional principles.”

The court concluded that Beth’s wrongful discharge claim “turns on secular conduct because it, unlike her negligent supervision or sexual harassment claims, concerns a single decision by her employer: the only relevant decision that [the court] can reasonably attribute to [the church] is the decision by the pastors, unchallenged by the [other board members] to terminate Beth after she complained about the pastor’s harassing conduct.”

The court stressed that Beth was employed in an administrative role in which her “primary functions [did not] serve the church’s spiritual and pastoral mission,” and therefore she was not covered by the so-called ministerial exception (which generally prevents the civil courts from resolving employment disputes between churches and ministers).

The church also argued that Beth’s termination was “inextricably intertwined” with church discipline, deference to the senior pastor, and protection of the pastoral relation. The court disagreed. Although the senior pastor was disciplined and ultimately deposed, these developments were not relevant in assessing Beth’s claims. The court noted that “sexual harassment claims involving religious institutions often require analysis of a minister’s interactions, appropriate or otherwise, with members of his congregation. This necessity does not bring such cases within the ministerial exception: the constitutional guarantee of religious freedom cannot be construed to protect secular beliefs and behavior, even when they comprise part of an otherwise religious relationship between a minister and a member of his or her congregation. To hold otherwise would impermissibly place a religious leader in a preferred position in our society.”

The church also claimed that it was guided in its actions towards Beth by the church’s doctrine of discipline. The court acknowledged that “the propriety of her own conduct with respect to [the senior pastor] was a subject of the board’s inquiry. But a credibility dispute between accuser and accused is no different than might face any other secular employer investigating workplace sexual harassment. The board may well have had questions about Beth’s religious or moral transgressions, but the wrongfulness of her termination from a secular administrative position after reporting sexual harassment need not rest on questions of discipline, or of faith, or ecclesiastical rule, custom, or law ….”

The court concluded that the church’s attempt to inject doctrine in this lawsuit “does not of itself transform Beth’s wrongful-discharge claim into an ecclesiastical dispute. Nor would it preclude a jury from finding that [the church] lacked an overriding justification for her discharge.”

Application. As noted in the previous case summarized in this newsletter, Beth’s sexual harassment claim under Title VII was dismissed by a federal appeals court. However, as this case demonstrates, this did not prevent her from pursuing other claims against the church. In this case, the court rejected the church’s motion to dismiss her wrongful discharge claim. It concluded that Beth’s job and duties did not trigger the ministerial exception, and a resolution of her wrongful discharge claim would not require the court to delve into religious doctrine in violation of the First Amendment. Macdonald v. Grace Church Seattle, 2006 WL 2252866 (W.D. Wash. 2006).

Legal Developments

The Ministerial Exception and Lawsuits

A federal court in Washington ruled that the “ministerial exception” prevented it from resolving several claims against a religious organization.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Denominations - Legal Liability, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

The Ministerial Exception and Lawsuits

A federal court in Washington ruled that the “ministerial exception” prevented it from resolving several claims against a religious organization.

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

Key point 8-06. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying civil rights laws to the relationship between a church and a minister.

Key point 8-08.2. Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. It consists of both “quid pro quo” harassment and “hostile environment” harassment. Religious organizations that are subject to Title VII are covered by this prohibition. An employer is automatically liable for supervisory employees’ acts of harassment, but a defense is available to claims of hostile environment harassment if they have adopted a written harassment policy and an alleged victim fails to pursue remedies available under the policy. In some cases, an employer may be liable for acts of sexual harassment committed by nonsupervisory employees, and even non-employees.

Key point 8-17. The Fair Labor Standards Act mandates that employers pay the minimum wage, and overtime compensation, to employees who work for an enterprise engaged in commerce. There is no exception for religious organizations, but there are exceptions for certain classifications of employees.

* A federal court in Washington ruled that the “ministerial exception” prevented it from resolving several claims brought by a seminary student against a religious organization, including sexual harassment; retaliation; negligent hiring, retention, and supervision; violation of a state minimum wage law; and emotional distress. A seminary student from Mexico (the “victim”) was assigned to a parish in Washington to assist the officiating priest. He performed several duties including assisting the officiating priest in the conduct of worship services, answering the phone for the church, working with the church youth group, and setting appointments for couples seeking marriage counseling. The victim claimed that he was sexually harassed on numerous occasions by the officiating priest. To illustrate, he alleged that the priest frequently sent him sexually explicit emails and videos, repeatedly asked him to have dinner with him, told him that he was very handsome, dedicated songs to him, told him that he believed the church should accept homosexuals, and made sexual advances toward him during two spiritual retreats. The victim complained of this behavior to the archdiocese, which resulted in an internal investigation and the transfer of the victim to another parish. The victim claimed that the archdiocese took additional adverse actions against him on account of his accusations, and as a result he sued the archdiocese in federal court. The lawsuit asserted several grounds for relief, including (1) sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964; (2) negligent hiring, retention and supervision of employees; (3) violations of the state minimum wage law; and (4) emotional distress.

Title VII

Title VII of the Civil Rights Act of 1964 bars “covered employers” from discriminating in employment decisions on the basis of the race, color, national origin, sex (including sexual harassment), or religion of an employee or applicant for employment. Covered employers are those engaged in commerce and employing 15 or more employees.

The court acknowledged that the First Amendment guaranty of religious freedom has created a “ministerial exception” to Title VII, and that this exception prohibits a court from “inquiring into the decisions of a religious organization concerning the hiring, firing, promotion, rate of pay, placement or any other employment related decision concerning ministers and other non-secular church employees.” Further, the courts may make “a factual evaluation of the function of the position, rather than looking solely to ordination, in deciding whether the ministerial exception applies to a particular employee.” The court noted that the victim was directly engaged in the spiritual functions of the church, and so the ministerial exception applied even though he was not an ordained minister.

However, the court cautioned that ministerial exception “does not foreclose all employment claims against a religious employer, but simply limits them.” When a sexual harassment claim is made against a religious employer, “a plaintiff must show that he was sexually harassed and that the harassment created a hostile work environment. Because the evaluation of a sexual harassment claim involves an entirely secular inquiry that does not intrude into areas concerning the doctrines of a religious organization, it is allowed.”

If an employee creates a “hostile work environment” due to acts of sexual harassment, his or her employer may be liable in two situations:

First, if the hostile work environment results in an adverse employment action (i.e., discipline, dismissal) against a victim of the harassment, the employer may be held liable. The court concluded that the First Amendment prohibited a religious organization from being liable on this basis for sexual harassment committed by a member of the clergy. It observed, “The archdiocese is able to choose its representatives free from government interference and in accordance with the dictates of its faith and conscience. Because the federal judiciary cannot evaluate whether its employment decision was based on legitimate or illegitimate reasons without offending the First Amendment, such an inquiry is forbidden.”

Second, liability can be imposed on an employer for allowing a hostile work environment to exist. However, to avoid liability in this second scenario, an employer can assert a special affirmative defense. This affirmative defense has two elements. First, the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Second, a victim of the harassment unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer, or otherwise failed to avoid the alleged harm. The court noted that “the success of this defense requires a court to perform an inquiry into the actions of both the employer and the employee. However, the power of a court to conduct this inquiry is limited when a sexual harassment claim is made against a religious employer by an employee covered by the ministerial exception.” The court may only consider the following three questions: (1) Was the victim subjected to a hostile work environment? (2) If so, did he exercise reasonable care to correct that environment? (3) Did he unreasonably fail to avail himself of those measures?

Retaliation

Title VII prohibits employers from “retaliating” against victims of employment discrimination who challenge the discrimination. The victim in this case claimed that the archdiocese retaliated against him after he complained of the priest’s conduct by transferring him to another parish and reducing his duties. The court noted that a retaliation claim requires a victim of discrimination to prove that he or she suffered an “adverse employment action” as a result of disclosing the discrimination to the employer. However, the court concluded that “decisions concerning promotions, transfers, rates of pay, selection of assignments, and duties performed are all protected choice matters of church administration, and the court is prohibited from evaluating them. The victim is foreclosed, as a matter of law, from relying on these protected decisions as acts of retaliation.”

Negligent hiring, retention, and supervision

The victim claimed that the ministerial exception applied only to Title VII claims, and did not prevent him from suing the archdiocese for negligent hiring, retention, and supervision. The court disagreed:

The ministerial exception to Title VII is based not upon Title VII but, rather, on the First Amendment. Just as there is a ministerial exception to Title VII, there must also be a ministerial exception to any state law cause of action that would otherwise impinge on the church’s prerogative to choose its ministers or to exercise its religious beliefs in the context of employing its ministers.

The court pointed out that the very nature of the victim’s negligence claim would require it to evaluate the reasonableness of the archdiocese’s protected employment choices in order to ascertain if it acted negligently in hiring, retaining, or supervising the offending priest. It concluded that “this type of inquiry is prohibited by the First Amendment’s ministerial exception.”

Minimum wage claim

The court dismissed the victim’s claim that the archdiocese violated a state minimum wage law. It concluded:

This claim concerns decisions regarding the rate of pay for non-secular church employees and must also be dismissed under the ministerial exception. The … ministerial exception applies to both state and federal claims, and prohibits a court from inquiring into the decisions of a religious organization concerning the hiring, firing, promotion, rate of pay, placement or any other employment related decision concerning ministers and other non-secular church employees. This most certainly includes questions concerning the amount of compensation owed a visiting seminarian student. Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir.1999).

Intentional infliction of emotional distress

The victim claimed that the archdiocese was guilty of intentionally inflicting emotional distress upon him by reporting him to immigration authorities. The court noted that a claim of intentional infliction of emotional distress requires conduct that is “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.” The court concluded that this high standard was not met by the reporting of the victim to immigration authorities:

There is no possibility that reasonable minds could find that the archdiocese’s reporting of the victim to immigration authorities could be seen as conduct that is beyond all possible bounds of decency. Reporting persons who may be in this country illegally to the authorities is not conduct so extreme as to be unacceptable in civilized society. As a matter of law, reasonable minds could not differ as to whether providing notice to the proper authorities concerning suspected immigration violations rises to a level of outrage.

Application. This case is significant for the following reasons:

1. The court broadly construed the ministerial exception, and applied it not only to a sexual harassment and retaliation claim by a seminary student under Title VII, but also to (1) negligent hiring, retention, and supervision claims involving ministers, and (2) claims by ministers regarding compensation, including their entitlement to minimum wage and overtime under state or federal law.

2. The court ruled that the reporting of a foreign worker to immigration officials did not amount to an infliction of emotional distress for which the employer could be found liable. Alcazar v. Corporation of Catholic Archbishop of Seattle, 2006 WL 3791370 (W.D. Wash. 2006).

Legal Developments

Negligent Supervision and Sexual Offenses

A court rejected a plaintiff’s attempt to treat national, regional, and local churches as a “single employer” for liability purposes.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Denominations - Legal Liability, Sexual Harassment, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Negligent Supervision and Sexual Offenses

A court rejected a plaintiff’s attempt to treat national, regional, and local churches as a “single employer” for liability purposes.

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

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

Key point 10-18.2. Most courts have refused to hold denominational agencies liable for the acts of affiliated ministers and churches, either because of First Amendment considerations or because the relationship between the denominational agency and affiliated church or minister is too remote to support liability.

* A federal court in Washington ruled that it was barred by the First Amendment guaranty of religious freedom from resolving a former church office administrator’s claim that a denominational agency was responsible on the basis of negligent supervision for sexual offenses made toward her by the church’s senior pastor. Sarah was employed as a church’s office administrator by a “missions” church that had recently been started by a denominational agency (the “national church”). Due to its missions status, the church was administered and supported by the national church. Sarah’s responsibilities included assisting in church organization, providing administrative support for the church’s senior and associate pastors, managing the office assistant and the music director, and handling church correspondence. Sarah alleged that a few months after she was hired, the church’s senior pastor began to make romantic advances toward her. These advances increased in intensity and persistence, ultimately culminating in the church’s dismissal of both Sarah and the senior pastor. Sarah sued the national church, and a regional church, for wrongful dismissal as well as negligent supervision of the pastor. The court dismissed both claims.

Wrongful discharge

The court acknowledged that the state of Washington has “a clear, well-defined public policy against sex discrimination and retaliation.” However, it noted that the courts “do not impose liability for wrongful discharge on parties not properly considered employers of the complaining party.” Since neither the national church nor regional church was Sarah’s “employer,” neither could be liable on the basis of wrongful discharge.

The court rejected Sarah’s argument that the local church, regional church, and national church should all be considered a “single employer” that could be sued for wrongful discharge. It noted:

Even if the court had found that the defendants could be exposed to liability under a single employer or an indirect employer theory, the plaintiff has failed to show that there is a genuine issue of material fact that either the [national church or regional church] are properly considered a single employer (together with the local church). With respect to plaintiff’s single employer theory, many of allegations regarding the intertwining of the [national, regional, and local churches] have to do with the two umbrella organizations’ involvement with the pastors of affiliated churches. However, involvement with and even complete control over the pastors of the churches does not rise to the level of “interrelation of operations” and “centralized control of labor relations” [required by the single employer theory].

The court referred to a federal appeals court decision finding that a parent corporation and a subsidiary corporation were an “integrated enterprise” for liability purposes because, among other things, the parent kept the subsidiary’s accounts, issued its paychecks and paid its bills; the parent’s vice president was the subsidiary’s president; and, the parent had the authority to hire and fire the subsidiary’s employees. Kang v. U. Lim America, Inc. 296 F.3d 810, 815 (9th Cir. 2002). This “interrelation of operations” and “centralized control of labor relations” was sufficient to treat the two corporations as a single employer or “integrated enterprise” for liability purposes. But, the Washington court pointed out that the relationship between the national, regional, and local churches was far from the level of interrelationship required for them to be treated as a single employer, and therefore the national and regional churches were not liable for the local church’s dismissal of Sarah.

Negligent supervision

The court noted that Sarah’s lawsuit alleged that the national and regional churches had a duty to supervise the senior pastor in his interactions with her, and “knew or should have known that he was engaging in conduct that was causing severe emotional distress to her.” These allegations, the court concluded, challenged national and regional churches’ supervision of the pastor, and as such “fell within the scope of the ministerial exception, a constitutionally-derived exception to civil rights legislation that insulates a religious organization’s employment decisions regarding its ministers from judicial scrutiny.” The court concluded: “Plaintiff’s negligent supervision claim specifically challenges the [national and regional churches’] supervision of [the pastor] rather than a decision not to intervene to stop or curtail the sexual harassment. Judicial scrutiny of the defendants’ supervision of [a pastor] would require the court to examine the church’s decisions regarding its pastor. As a result, the court finds that the First Amendment bars plaintiff’s negligent supervision claim against the [national and regional churches].”

Application. This case is significant for two reasons. First, the court rejected the plaintiff’s attempt to treat national, regional, and local churches as a “single employer” for liability purposes. Every other court that has addressed this issue has reached the same conclusion. A judicial recognition of the single employer theory would make every national religious denomination automatically liable for every employment-related offense committed by an affiliated church. Such a rule of absolute liability would force denominational agencies to assume risks of catastrophic proportion that would jeopardize their viability. While this court did not address the issue, it is likely that such a result would violate the First Amendment guaranty of religious freedom. 2006 WL 1009283 (W.D. Wash. 2006)

Legal Developments

Church Property

A clause in a church deed limiting any future conveyance of the property to “Protestant evangelical churches” was not enforceable.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
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.

The Washington Supreme Court ruled that a clause in a church deed limiting any future conveyance of the property to 'Protestant evangelical churches' was not enforceable. A church purchased property in 1956 and received a deed conveying the property 'for the perpetual use of Protestant Evangelical Churches' of the community. The church eventually outgrew its facilities, and the congregation voted to sell its property and relocate to a larger facility. The church's efforts to sell its property to another evangelical church were unsuccessful. As a result, the church wanted to sell its property on the 'open market' and build new facilities a few miles away. A church member filed a lawsuit in which she asked the court to enforce the 'restrictive covenant' in the deed that barred the church from selling its property to anyone other than a 'Protestant evangelical church.' A trial judge ruled that the restrictive covenant did not prevent the church from 'deviating from the trust terms to allow for the sale of the subject property to finance a new church building to serve the Protestant evangelical community.' The case was appealed to the state supreme court.

The supreme court began its opinion by observing, 'This case requires us to consider whether an alleged restrictive covenant in a deed … prevents the receiving church from selling [its property] in order to relocate to a larger, nearby property.' The court then reached the following conclusions:

Sale versus use

The court noted that 'whether the 1956 deed in fact restricts the sale of the property at all is questionable,' since 'a stipulation that the property be used for the stated purpose does not, unambiguously at least, prohibit the sale of the property and application of the funds to the stated purpose. This is exactly what the church proposes doing with the property. It does not propose using the funds generated by the sale of the property for any unrelated objective.'

Charitable trust

The court ruled that the 1956 deed created a charitable trust, and that the intent of the creator of the trust (the previous owner) had 'one overriding and dominant intent' in conveying the property to the church, and that was 'to benefit the church and to provide for its success, growth, and endurance as a church, in ministering and spreading the gospel to the evangelical Protestants of the community, regardless of where the ministries were specifically located.' The court concluded, 'The primary aspect of this purpose was to assist and ensure the continuation of the Protestant evangelical ministries of the community through the church, regardless of where they were specifically located and regardless of the name of that church and to see that ministry carried on.' While there was also an intent to ensure that the property would be available for the Protestant evangelical churches of the community, 'this purpose was secondary to the [prior owner's] overriding and dominant intent.'

The 'equitable deviation' doctrine

The 'equitable deviation' doctrine empowers the courts to approve deviations in the stated purposes of trusts under certain conditions. This doctrine is explained in a respected legal treatise as follows: 'The court may modify an administrative or distributive provision of a trust, or direct or permit the trustee to deviate from an administrative or distributive provision, if because of circumstances not anticipated by the grantor the modification or deviation will further the purposes of the trust.' Restatement (Third) of Trusts § 66(1). The court stressed that 'it is important to recognize that the objective of equitable deviation is not to disregard the intention of the grantor, but rather to give effect to what the grantor's intent probably would have been had the circumstances in question been anticipated.' However, the party 'seeking permission to deviate from the trust terms has the burden of showing either changed circumstances or that relevant circumstances were unknown to the grantor.' Upon a finding of unanticipated changed circumstances, the court must then determine whether a proposed modification or deviation 'would tend to advance (or, instead, possibly detract from) the trust purposes.'

In summary, the court concluded that the doctrine of equitable deviation allowed it to approve a deviation from the trust's original purpose if (1) changed, unanticipated circumstances occurred, and (2) a deviation would further the purposes of the trust. As to the first requirement, the court described 'present-day material circumstances not anticipated by the grantor' including significant congregational growth; limitations with the building and property; stricter development and building codes; drastic changes in the community; and changes in the attitudes, expectations, and needs of parishioners compared with the 1950s. These findings supported the conclusion that present-day conditions presented 'circumstances not anticipated by the grantor' in the maintenance of the church and its service to the community.

The court also concluded that the second requirement (deviation would further the purposes of the trust) was met. It pointed to testimony that 'the church's mission, and thus the trust's primary purpose, would in fact be substantially impaired by continued habitation of the specific parcel of property.' The court noted that 'growth is an essential and necessary part of a successful evangelical church,' that the previous owner 'subscribed to growth being one of the obligations placed upon an evangelical Christian church,' and that there was numerous problems with the current property making it impracticable for the church to carry out its mission. The court concluded that 'based on substantial evidence introduced at trial, we now find, as a matter of law, that changed, unanticipated circumstances exist that are material to the trust's purpose, and permitting deviation from the alleged restriction on alienation would in fact further the primary purpose of the trust. As such, the facts of this case permit deviation.'

The court made two final observations. First, any proceeds from the sale of the property 'shall remain subject to the charitable trust, and the church must use those proceeds to provide a new church facility serving the Protestant evangelical community.' Second, the claim that the church had breached its fiduciary duty as trustee of a charitable trust if permitted to sell the property 'is rendered moot by this opinion.'

Application . This case illustrates the importance of church leaders being aware of the existence of any restrictive covenants that apply to church property. A restrictive covenant is a restriction on the use of property. Usually, such covenants appear in deeds (as was true in this case). Property owners, including churches, generally are legally bound by such restrictions. Here are some practical tips that will assist church leaders in dealing with restrictive covenants:

Never purchase property without a clear understanding of the existence of any restrictive covenants and how such covenants may limit the church's use of the property. The presence of a restrictive covenant can prevent a church from using property for its intended purpose. In most cases, restrictive covenants will be spelled out, or referenced, in the deeds to church property.
If your church owns property, be sure you are familiar with any restrictive covenants before you plan any changes in the use of the property.
In some cases, restrictive covenants can be modified or ignored because of widespread disregard by property owners, or because of substantial changes in the properties subject to the restrictions. However, as the church in this case learned, establishing such an exception can be a very costly legal battle that may take years. The attorneys fees you incur ordinarily will not be covered by any insurance policy, so they will be an expense the church must bear. Church leaders should never assume that a covenant can be ignored. Check with a real estate attorney for an opinion regarding the current viability of a covenant.
Church leaders also should be aware that restrictive covenants often provide that a property owner who violates the restrictions is required to pay the legal fees incurred by other property owners in enforcing them. In other words, restrictive covenants not only may prevent a church from using property for a purpose that violates the covenant, but they also may force the church to incur an unbudgeted and possibly substantial expense in paying the legal fees of neighbors who successfully sue to enforce the covenant. Niemann v. Vaughn Community Church, 113 P.3d 463 (Wash. 2005).

Legal Developments

Confidential and Privileged Communications

A Washington state appeals court ruled that a youth pastor’s confession to a church elder that he had molested members of the church youth group was protected by the clergy-penitent privilege.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington

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

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

Key point 3-08.05. In most states a counselee can waive the clergy-penitent privilege by disclosing the privileged communication to someone other than the minister. In some states the minister also may waive the privilege.
The Clergy-Penitent Privilege

A Washington state appeals court ruled that a youth pastor's confession to a church elder that he had molested members of the church youth group was protected by the clergy-penitent privilege and therefore could not be introduced in the youth pastor's criminal trial.

A church elder had a "vision" that the church's youth pastor (Pastor Tim) was involved with pornography. At the request of the senior pastor, the elder met with Pastor Tim to discuss the vision. During this meeting, Pastor Tim confessed to using pornography, and also admitted that he had molested specified children. The elder reported this information to the pastor. Church leaders later reported Pastor Tim's conduct to the police, and he was prosecuted. A trial court ruled that the elder was a "minister," and therefore Pastor Tim's confessions to him were not admissible in court as a result of the clergy-penitent privilege. The state appealed.

A state appeals court agreed that the elder was a minister for purposes of the clergy-penitent privilege since he claimed to be ordained. Further, the elder was acting as the pastor's representative when he met with Pastor Tim, and at his personal request. The court also concluded that Pastor Tim's confessions to the elder were privileged since the church's teachings encouraged confession of sin. The state contended that the clergy-penitent privilege only applies to "confidential" communications, and this requirement could not be met in this case since Pastor Tim did not have a reasonable expectation that his confessions of child abuse would be kept in confidence. The state also pointed out that the church had an official policy requiring the reporting of allegations of child abuse. The court relied on the testimony of several church members to the effect that the policy of reporting abuse did not apply to confidential information shared with pastors or elders.

The court also rejected the state's assertion that Pastor Tim "waived" the clergy-penitent privilege by attending a meeting where both ordained pastors and non-ordained members were present. At the meeting, Pastor Tim made general disclosures about having committed moral failures, but he did not reveal the specifics of the statements he made to the elder. He also drafted several letters to the victims' parents. The state argued that by doing so, Pastor Tim waived any privilege that may have attached to his conversation with the elder. The court agreed that statements made to the pastors and church members were not confidential and therefore not privileged, but it concluded that this did not apply to the confessions he made to the elder.

Application . There are three important aspects to this case. First, the court concluded that the church elder was a "minister" for purposes of the clergy-penitent privilege. It based this conclusion on the fact that the elder claimed to be "ordained." Many courts have ruled that church board members are not "ministers" for purposes of the clergy-penitent privilege, and the fact that the court based its decision on the elder's "ordained" status suggests that the court was breaking no new ground.

Second, the court rejected the state's argument that Pastor Tim could have no reasonable expectation that his confession of child abuse to the elder would have been kept in confidence, and therefore the confession was not privileged since it was not "confidential." If this argument had been accepted by the court, it would have meant that the clergy-penitent privilege could never apply to confessions of child abuse. The court rejected such a sweeping conclusion-even though the church had a policy requiring the reporting of child abuse.

Third, the court agreed that Pastor Tim "waived" the clergy-penitent privilege with respect to statements that he disclosed to a group of pastors and members of his church. However, this "waiver" did not apply to specific statements made to the elder that were not repeated to this informal group. This is an important point for pastors to bear in mind. Often, when they receive a confession of wrongdoing, they will encourage the confessor to repeat his or her statements to the church board. If the confessor repeats the statements to the board, the clergy-penitent privilege is waived, and so the pastor may be compelled to disclose the confession in court. Pastors should consider the ramifications of a waiver of the clergy-penitent privilege before encouraging a confessor to repeat his or her confession to the board or some other group within the church. State v. Glenn, 62 P.3d 921 (Wash. App. 2003).

Legal Developments

Confidential and Privileged Communications

The Washington Supreme Court ruled that the clergy-penitent privilege applied to confidential statements made to a pastor.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington

State v. Martin, 975 P.2d 1020 (Wash. 1999)

The Clergy-Penitent Privilege

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

Key point 3-07.5. In some states the clergy-penitent privilege only applies to communications made to a minister in the course of "discipline." While most courts interpret this requirement broadly to cover statements made in the course of spiritual counsel and advice, others have interpreted it narrowly to apply only to confessions made to Catholic priests.

The Washington Supreme Court ruled that the clergy-penitent privilege applied to confidential statements made to a pastor, and that the privilege was not waived when the pastor disclosed the communications to two others.

A distraught mother contacted a pastor and asked him to meet with her son. The pastor, who was not acquainted with either the mother or son, drove to the son's apartment where he was introduced by the mother as "the preacher." The mother remained in the apartment during the pastor's "spiritual" consultation with her son which lasted about an hour. The pastor met with the son on at least two other occasions before the son turned himself over to the police. One meeting took place at an army medical center, where the son was accompanied by his mother, wife, and several others, and the other at a friend's home. The pastor later shared the substance of the son's communications with two colleagues. The son was later charged with second degree murder for the death of his three-month-old son. The state alleged that the son caused the child's death by violently shaking him.

The prosecutor asked the trial court to determine whether the clergy-penitent privilege applied to the son's statements to the pastor. The trial court ruled that the privilege did not apply since the son had not sought out the pastor as a matter of church "discipline." The court then ordered the pastor to appear for a deposition so that he could be questioned about his meetings with the son. At the deposition, the pastor refused to answer questions regarding the content of those conversations based upon his constitutional right to religious freedom. The trial court ruled that the pastor had no constitutional right to refuse to testify, and informed him that he would be sent to prison for contempt of court if he refused to testify. A state appeals court reversed this decision and ruled that the clergy-penitent privilege protected the pastor from testifying against his will. The case was appealed to the state supreme court.

Availability of the clergy-penitent privilege

The Washington state clergy-penitent privilege states that

[a] member of the clergy or a priest shall not, without the consent of a person making the confession, be examined as to any confession made to him or her in his or her professional character, in the course of discipline enjoined by the church to which he or she belongs.

The court ruled that the privilege applied to the conversation between the pastor and the son. In reaching this conclusion, the court made the following important rulings:

(1) Confession

The court concluded that the church, and not the courts, should decide what types of communications constitute "confessions" within the meaning of a particular religion.

(2) Presence of a third party

The state asserted that the son's conversations with the pastor were not privileged because they were not confidential. The state noted that the mother was in the apartment during the pastor's initial meeting with her son, and that other individuals were present during the pastor's other visits with him. Further, the pastor shared the contents of the son's communications with two of his colleagues. The court conceded that "confidentiality is a necessary factor in establishing a testimonial privilege," and that "the mere presence of third persons during a confidential communication in some instances may [nullify] the privilege" since "the privilege protects only successful confidences." However, the court concluded that "the privilege is not [nullified] when the presence of the third person is necessary for the communication to occur, or … when the third person is another member of the clergy."

(3) Waiver

Did the pastor's disclosure to two colleagues of a portion of the son's communications constitute a "waiver" of the clergy-penitent privilege? No, concluded the court. It pointed out that the son "did not consent to this disclosure" and that "the privilege belonged to him, although the statute imposes responsibility for maintaining confidentiality upon the clergy. There was no waiver of confidentiality in this instance."

(4) In the course of discipline

The Washington state clergy-penitent privilege requires that the confession be made to a minister "in the course of discipline enjoined by the church to which he or she belongs." The court rejected the state's argument that this language limits the privilege to penitential confessions that are mandated by church doctrine. It concluded that this language applies to any confidential communication made by a person to a minister while acting in a professional capacity as a spiritual adviser.

Application.
What is the significance of this case? Consider the following:

(1) Confessions. The court interpreted the word "confession" broadly. This is a positive development, since many state clergy-penitent privilege laws use this word. A narrow interpretation would limit the privilege to penitential confessions mandated by church doctrine, such as confessions in the Roman Catholic faith.

(2) Presence of third persons. Perhaps most importantly, the court addressed the effect of third persons on the privilege. The court made two significant conclusions. First, the presence of a third person does not affect the privilege if that person is another minister. This is the first case to have addressed this question, and so it will be a relevant precedent in other states. It is common for a counselee to speak with two ministers. For example, an adolescent speaks with her youth minister, who in turn asks the senior pastor to participate in the conversation. Such arrangements are common in churches with more than one minister on staff. This case can be used as support for the conclusion that the presence of two ministers does not affect the privilege. Second, the court concluded that the privilege is not affected by a third party whose presence is "necessary for the communication to occur." Several state clergy-penitent privilege laws extend the privilege to situations in which a third person is present "in furtherance of the communication." This language suggests that the privilege will apply in a number of situations involving the presence of a third person. An example would be a church policy requiring a third person to be present during any opposite sex counseling sessions. Another would be counseling involving both a husband and wife, or parent and child. The Washington state clergy-penitent privilege does not contain language preserving the privilege when a third party is present "in furtherance of the privilege," but the court interpreted the privilege to include such a provision. This is a very significant ruling. Many state clergy-penitent privilege laws, like that of Washington, do not contain language preserving the privilege in the presence of third persons whose presence is "in furtherance of the communication." This case can be used as precedent by clergy in such states to argue that the privilege should apply in such situations as a matter of judicial interpretation.

Legal Developments

Recent Developments in Washington Regarding Wills, Trusts, and Estates

A Washington state court ruled that a sizable gift to a church in a decedent’s will was not the product of undue influence.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington

Church Law and Tax1999-09-01

Wills, Trusts, and Eestates

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

• Key point. A gift to a church contained in a decedent’s will may be invalidated if the church “unduly influenced” the decedent in making the gift.

• Key point. A non-attorney who assists a church member in drafting a will containing a gift to the church may be guilty of engaging in the unauthorized practice of law. This may jeopardize the validity of the gift to the church.

A Washington state court ruled that a sizable gift to a church in a decedent’s will was not the product of undue influence. It is common for church members to leave gifts to their church in a will. In some cases, family members object to these gifts and seek to void them by claiming that the church “unduly influenced” the member who made the gift. In some cases, church members or employees who are not attorneys assist members in drafting wills, and this represents another basis for challenging the legal validity of a will. The Washington court addressed both of these issues, and its conclusions will provide helpful guidance to church leaders.

A devout church member (“Mary”) who was retired and unmarried was diagnosed to be suffering from terminal cancer. She was scheduled to have surgery, followed by outpatient treatment as part of an experimental cancer program. On the evening before her surgery, Mary told a friend (“Judy”) that “I am not afraid to die, but I’m afraid of all the things I have to do before I die, like make a will.” Judy offered to call an attorney the next day. On the day of the surgery, Judy called her attorney, who was unable to prepare a will that day. He suggested that Judy purchase a “will kit” from a stationery store. Judy went to an Office Depot store and purchased a kit. Mary read the instructions that came with the kit and began discussing her desires with Judy. The day after the surgery, Judy retyped the language from the will kit onto her home computer, and inserted the information Mary had given her. Over the next couple of days, Mary made a few minor revisions to the document and then signed a final version in the presence of three witnesses. A few days later, Mary told some friends that she had just prepared her will, and that most of her estate would go “to the kingdom, for the Lord’s work.” She also confided that some of her family members might not be happy with her decisions. The friends later testified that Mary, though weak, was strong-willed and resolute. The will left a portion of the estate to family members, but the bulk of the estate went to her church and a parachurch ministry operated by Judy and her husband.

Mary died a few weeks after she signed her will. Her will was admitted to probate, and it was immediately challenged by a brother who claimed that the will was invalid for two reasons: (1) it was the product of fraud and undue influence, and (2) Judy engaged in the unauthorized practice of law in drafting the will.

Undue Influence

The court began its opinion by noting:

A will procured by undue influence is invalid. Undue influence must be proven by the contestants of a will, using clear, cogent, and convincing evidence. Influence becomes undue only when it overcomes the will of the testator, when the act of making the will is the result of such coercion that free agency is destroyed. Not every influence exerted over a person can be characterized as undue influence. Generally, influence exerted by giving advice, arguments, persuasions, solicitations, suggestions or entreaties is not considered undue unless it be so importunate, persistent or coercive and operates to subdue and subordinate the will of the testator and take away his or her freedom of action.

The court noted that the following factors are considered in deciding whether or not undue influence occurred: (1) did a beneficiary of the will occupy a fiduciary or confidential relationship with the donor; (2) did the beneficiary actively participate in the preparation of the will; (3) did the beneficiary receive an unusually or unnaturally large part of the estate; (4) the age of the donor; (5) the physical and mental health of the donor; (6) the nature of the relationship between the donor and beneficiary; (7) the opportunity for exerting undue influence; and (8) the naturalness of the gift. The court concluded that the brother had failed to prove by “clear, cogent, and convincing evidence” that Mary’s will had been the product of undue influence. The court characterized Mary as “a generous woman, prone to intense involvement” with her church and various other religious ministries. The court acknowledged that Judy and her husband took Mary into their home and cared for her while she was ill, and showed her many acts of kindness, but “exerted no undue influence over the disposition contained in her will.”

Unauthorized Practice of Law

The court noted that the unauthorized practice of law includes “legal advice and counsel and preparation of legal instruments by which legal rights and obligations are established.” It concluded that Judy’s actions “in selecting a will kit, discussing the distribution of assets and whether it was fair, obtaining the inventory of investments, typing the will, and arranging for the signing and witnessing of the will constituted the unauthorized practice of law.” The court also noted that the rules regulating the conduct of lawyers apply to laypersons who engage in the practice of law. Since lawyers who prepare a will for a client are barred from designating themselves as beneficiaries, the same was true of Judy. As a result, the court voided the gift to the ministry operated by Judy and her husband. However, the court upheld the validity of the rest of the will, including the gift to Mary’s church.

Application. This case illustrates a couple of important points.

(1) Undue influence. Family members occasionally challenge gifts to churches by elderly or infirm relatives. In many of these cases, family members assert that the church unduly influenced their relative into making the gift. This case illustrates the factors that the courts generally consider in deciding whether or not undue influence occurred. These factors provide church leaders with a useful checklist to consider in evaluating the possibility of an undue influence claim. In general, the risk of undue influence is all but eliminated in the case of gifts by mentally competent church members, regardless of age, who used an attorney (who was not a member of the church) to draft their will.

(2) Unauthorized practice of law. This case illustrates another important point. It may be tempting for churches to purchase one of the many “kits” that are available in office supply stores and bookstores to assist members in preparing their wills. To the extent such wills contain gifts to the church, they are subject to challenge. In re Estate of Marks, 957 P.2d 235 (Wash. App. 1998). [Undue Influence]

© Copyright 1999 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m80 c0599

Legal Developments

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

Richard R. Hammar, Attorney, CPA

Bio

State: Washington

Church Law and Tax1999-09-01

Sexual Misconduct by Clergy and Church Workers

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

• Key point. Adults who engage in sexual contacts with clergy during a counseling relationship may not sue their church after the statute of limitations has expired. Generally, the statute of limitations begins to run on the date of the last sexual encounter. In some states the statute of limitations does not begin to run until the victim “discovers” that he or she has experienced physical or emotional suffering as a result of the pastor’s acts. Other states do not recognize this so-called “discovery rule.”

A Washington state court ruled that the statute of limitations, and the first amendment, prevented three women from suing a pastor who had engaged in sexual contacts with them during counseling sessions several years before. In 1996, three women filed separate lawsuits against their former pastor and church, claiming that the pastor had engaged in inappropriate sexual contacts with each of them during private counseling sessions several years before. One of the women claimed that the pastor told her that the sexual part of their relationship was “just one more way to help [you] experience and know what ‘ultimate love’ really was, which in turn would help [you] lead a happier, more fulfilling life.” She “felt honored that a man of God who was so respected in the community had chosen [her].” She claimed that she “did not know that what [the pastor] was doing with [her] was something that pastors absolutely should not do with people who come to them for counseling.” The second woman claimed that the pastor had advised her to “overcome what he called [her] ‘good girl’ problem.” She felt ashamed of her sexual relationship with the pastor, but blamed herself. The third woman claimed that the pastor told her that “[i]t was through sinning … that we could experience the grace of God.” The women claimed that the pastor had been negligent in his pastoral counseling and had breached the fiduciary duty he owed them to act only in their best interests. The women also claimed that the church was responsible for the pastor’s acts since members of the church board were aware, or should have been aware, of the pastor’s misconduct but did nothing to intervene.

The pastor and church claimed that the women had filed their lawsuits after the statute of limitations had expired, and that any resolution of their claims by the civil courts would violate the first amendment guaranty of religious freedom. The women insisted that the so-called “discovery rule” extended the statute of limitation in their cases. They asserted they had not recognized that the pastor’s conduct was wrong until 1993, when they attended a church meeting in which allegations of the pastor’s inappropriate conduct with women were addressed. Until that time, they insisted that they did not know that their low self-esteem and inability to trust men or enter into relationships were the direct results of the pastor’s conduct. As for their claims against the church, the women argued that members of the church board concealed their knowledge of misconduct by the pastor, and these actions had the effect of suspending the statute of limitations. They also argued that resolution of their claims did not violate the first amendment because a court could decide them without interpreting church doctrine or practices. The women acknowledged that the statute of limitations for personal injuries in Washington is three years; that their last participation in inappropriate sexual acts with the pastor occurred in 1987; that the statute of limitations generally begins to run at the time of the last wrongful act, which in this case would have been 1987, meaning that their lawsuits should have been filed no later than 1990. However, the women all insisted that the statute of limitations was suspended until they “discovered” that their emotional injuries were caused by the pastor’s actions. In support of their position, the women introduced the affidavit of a licensed psychologist who stated that the women did not discover that their injuries were caused by the pastor until the congregational meeting in 1993.

The pastor countered by asserting that the women’s own testimony demonstrated that they were aware that they were being harmed by his actions. For example, one of the women testified that she was aware in 1987 that the adulterous relationship could have adverse consequences on her family as well as the pastor’s family. She also stated that going to the pastor’s home made her feel like “slime.” The other two women also testified that they were aware that the pastor’s actions were wrong at the time it was occurring, and threatened the stability of their marriages. They all testified to feelings of shame and guilt at the time they were engaging in sexual relations with the pastor.

A trial court dismissed the women’s lawsuits. The court noted that all three women ended their sexual conduct with the pastor in 1987, that counseling ceased no later than 1990, and that the women knew the sexual conduct was wrong and had caused them some emotional harm as illustrated by the fact they told no one of the conduct because they wanted to avoid public scrutiny. The court observed that the test for determining when the statute of limitation begins to run is when a plaintiff knows or should know, in the exercise of due diligence, the facts that give rise to the cause of action. The test does not require that a plaintiff recognize a breach of a legal duty or the existence of a legal cause of action. The court concluded that the women did not have to be aware that the pastor’s sexual conduct with them violated a counselor’s or fiduciary’s legal standard of care for the statute of limitations period to begin. The court concluded that the women’s lawsuit against the church for negligent supervision were also barred by the statute of limitations. It rejected their arguments that the statute of limitation was suspended by the fact that some members of the board of deacons had information about the pastor’s predatory behavior and concealed it. The court relied on the fact the church’s congregation, not its board, is responsible for hiring and firing the pastor. It held that because the women were all members of that congregation, they had implied knowledge of the facts. The court also concluded that it was barred by the first amendment from resolving the women’s claims, since any resolution of the women’s claims would force it to formulate a standard of care for a pastor’s work, or to determine whether a church was responsible for supervising a member of its clergy. In either case, the court would be “excessively entangled” with religion. The women appealed this ruling. A state appeals court affirmed the trial court’s ruling.

Statute of Limitations

The appeals court noted that the statute of limitations under Washington law for personal injuries is three years, and that this three-year period begins to run when a claim accrues. Under the discovery rule, a claim does not accrue until the plaintiff “discovers or reasonably should have discovered all of the essential elements of the possible cause of action.” The court concluded:

Here, the plaintiffs were all adults at the time of the alleged wrongful acts. It is undisputed that they considered the conduct to be wrong, at least in the sense that it had the potential of damaging their families and their own reputations if it became public knowledge. They also experienced psychological problems during and after the sexual misconduct, and they could have discovered the causal link between it and their injuries had they diligently sought treatment… . [T]he plaintiffs were aware of the wrongfulness of the conduct at the time it occurred, and, in the exercise of reasonable diligence, could have discovered the causal connection between the misconduct and their psychological injury before the statute of limitation had expired. In the circumstances present here, the trial court was correct in holding as a matter of law that the discovery rule did not extend the statute of limitation.

First Amendment

The court then addressed the women’s claim that the church was legally responsible for the pastor’s misconduct on the basis of negligent supervision. In support of their claim, the women attempted to prove that members of the church board were aware of the pastor’s predatory conduct, and yet did nothing to restrain him. Specifically, the women relied on the following evidence: A husband and wife served on the church board during the 1980s, and also served as advisors to the church’s college group. The wife learned that a young woman in the college group had complained to her that the pastor had attempted to kiss and fondle her in the church kitchen. The wife shared this incident with her husband, but neither revealed the information to anyone else. The wife later testified that she had serious doubts about the young woman’s truthfulness because she had admitted to having had “fantasies” involving men.

The church countered that the board, even though it was responsible for managing the religious and financial affairs of the church, had no authority to hire or to fire the pastor and as a result had no duty to supervise him. The church constitution sets forth the church’s governance. The members of the church board are elected by the congregation and are “responsible for the management of both its spiritual and temporal affairs.” The congregation chooses the pastor at a meeting called by the board. The constitution also provides that the congregation, by a vote of at least 51 percent, may terminate the pastor.

The court concluded:

The facts here do not require us to decide whether the first amendment forecloses all negligent supervision claims against churches based on the conduct of their ministers. In this case, the authority, as the pastor’s employer, belongs to all of the church’s members, who must act by majority rule if they are to discharge him or otherwise control his conduct. The determination of whether to impose liability on a church where the authority is so diffused would require the court to consider and interpret the church’s laws and constitution. To do so would violate the first amendment by entangling the judiciary with religion.

Application. This case is important for the following reasons: (1) It demonstrates the difficulty that adult victims of sexual misconduct face in filing lawsuits after the statute of limitations has expired. (2) The court rejected the women’s claim that the church was liable on the basis of negligent supervision for the pastor’s acts. It based this conclusion on the fact that the church board had no authority to hire or fire the pastor, and therefore had no authority to supervise him. This will be a useful precedent for church leaders to bear in mind if their church is sued as a result of the board’s alleged failure to supervise a pastor who is elected by the congregation. Germain v. Pullman Baptist Church, 1999 WL 539575 (Wash. App. 1999). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denominational Liability]