Asserting ‘Qualified Privilege’ In Lawsuits

In many states, this defense can be lost if churches don’t assert it in an answer to a lawsuit.

Church Law and Tax 1993-07-01 Recent Developments

Libel and Slander

Key point: “Affirmative defenses” must be asserted in an answer to a lawsuit or they will be waived. One such affirmative defense is the qualified privilege that protects statements made among church members concerning matters of common interest.

An Ohio appeals court ruled that the “qualified privilege” available to clergy and churches in some defamation cases can be lost if it is not asserted in an answer to a lawsuit, but that churches cannot be responsible for a pastor’s defamatory comments unless they are made in the course of his employment and in furtherance of the mission and functions of the church. A member of a local Baptist church approached the senior pastor with the idea of forming a “witnessing committee” to stimulate church membership. The committee was eventually created, and it formulated a three-part program. The second part included a “male chorus festival” to be held at the church. In conjunction with this function, the member claimed that he had personally expended roughly $375 for publicity. A collection was taken during the festival and at least three congregation members counted the proceeds ($381) that evening. This money was placed in a sealed envelope and given to the member’s spouse. On the following Sunday, the member was asked to bring the money to the church on the next day and to account for his expenditures. The envelope was subsequently opened, and the contents recounted to a total of $370. The trial testimony indicated that the envelope did not appear to have been opened until the recount, and that the collection money must have been originally miscounted. The member presented his expense receipts, which exceeded the $370 collected. The collection fund was then turned over to plaintiff as reimbursement. Shortly after this incident, the “witnessing committee” was disbanded. Some time thereafter, the member attempted to obtain copies from the church of its bylaws, regulations and constitution, but without success. He then contacted the Ohio attorney general’s office for assistance in obtaining these documents. An assistant attorney general called the pastor. During the course of this conversation, the pastor remarked to the assistant attorney general that “instead of [the church member] coming down to your office and making all of these complaints, what the church could do is to charge him and take him to court with misappropriation of church funds.” It was this remark that prompted the member so sue his church and pastor. A trial judge dismissed the lawsuit on the grounds that the pastor’s remark to the assistant attorney general was protected by a “qualified privilege,” and further could not be defamatory since it had been made to only one person. Generally, comments made among church members and regarding matters of common interest enjoy a qualified privilege, meaning that they cannot be defamatory unless they are made with “malice.” In this context, malice means a knowledge that the statements were false, or a reckless disregard as to their truth or falsity. The member appealed the dismissal of the case by the trial judge, on the basis of the following claims: (1) the pastor had failed to assert the defense of qualified privilege in their answer to the lawsuit, and accordingly it was waived; (2) the defense of qualified privilege did not apply to the circumstances in this case; and (3) the church was legally responsible for the defamatory statement of the pastor on the basis of the respondeat superior doctrine (explained below).

A state appeals court agreed with the church member with regard to his first two points. It agreed that “affirmative defenses” to a lawsuit must be asserted in a defendant’s answer or they are waived. Since neither the church nor the pastor asserted the defense of qualified privilege in their answers to the lawsuit, this defense was waived. This is a very important point. In many lawsuits brought against churches and clergy, a variety of affirmative defenses exist. However, under the law of most states, such defenses will be lost forever if they are not raised in the answer to the lawsuit. This is one of many reasons why it is so critical for churches to retain legal counsel who are familiar with church law. Attorneys with little if any experience in defending churches may not recognize all of the affirmative defenses that are available. And, a failure to recognize and assert such defenses in the answer to a lawsuit can prevent any future reliance upon them. This can have disastrous consequences in some cases.

The court upheld the dismissal of the lawsuit against the church. The member had argued that the church was legally responsible for its pastor’s defamatory comment on the basis of the legal doctrine of respondeat superior. Under this doctrine, an employer is legally responsible for the acts of an employee committed within the scope or course of employment. The court observed:

[P]laintiff claims that the trial court erred in directing a verdict in favor of the church based upon [the pastor] not being its “employee” …. Since the doctrine of charitable immunity no longer insulates religious institutions and other nonprofit organizations from tort, upon proper factual circumstances a church may now be held liable for its own torts as well as for the tortious acts of its employees or agents imputed to it by the respondeat superior doctrine. For respondeat superior to apply, the employee or agent must himself be liable for a tort, which was committed in the scope of his employment. Further, where the tort alleged is an intentional one, the behavior of the employee or agent giving rise to it must be calculated to facilitate or promote the business for which he was employed or engaged. The employer or principal is not liable for the independent, self-serving conduct of its employer or agent which does not so facilitate its business …. [W]hile plaintiff alleged an employment or agency relationship between the [pastor] and the church in his complaint, obviously to invoke the respondeat superior doctrine, he never developed the precise nature of that relationship from an evidentiary standpoint at trial …. Certainly, it was within [the pastor’s] scope of employment as a pastor to respond to the attorney general’s investigation relative to the production of the church’s bylaws and constitution. On those matters, [the pastor] had authority to communicate with [the assistant attorney general]. However, during the course of that conversation on those legal matters, it was not necessary for [the pastor] to inject his personal opinions as to plaintiff’s alleged misconduct. At trial, plaintiff did not introduce any evidence that [the pastor’s] gratuitous rendering of his personal evaluation of plaintiff’s alleged prior conduct in any way facilitated the church’s functions. During [the trial] plaintiff failed to demonstrate that it was within [the pastor’s] scope of employment, or duties as a minister, to publicly render personal opinions about members of the congregation. No evidence was offered by the plaintiff that [the pastor] was authorized by the church to make such statements, nor was there evidence before the trial court that the church ratified [his] conduct after the fact. The alleged defamatory remarks attributed to [the pastor] had nothing whatsoever to do with responding to [the assistant attorney general’s] official inquiry. There certainly was no evidence offered to suggest that [the pastor] was hired to engage in defamation or other intentional torts toward anyone, within or without the congregation. Additionally, plaintiff failed to show that the church should reasonably have foreseen that [the pastor] would have behaved in a tortious fashion …. [W]e conclude that, upon the facts as developed by plaintiff at trial, the respondeat superior doctrine was inapplicable to this case.

This language is very important, for it illustrates the difficulty of holding a church responsible for the intentional, self-serving conduct of its pastors or other agents. Churches frequently are sued on the basis of the respondeat superior doctrine for the conduct of their pastors, employees and volunteers. According to this court, churches cannot be legally responsible for the conduct of their workers or volunteers on the basis of this doctrine if the conduct was intentional, self-serving and not in furtherance of the mission and functions of the church. Cooper v. Grace Baptist Church, 1992 WL 443729 (Ohio App. 10 Dist. 1992, unpublished decision).

See Also: Defamation – Defenses

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