A Minnesota court recognizes an important principle, C.B. ex rel. L.B. v. Evangelical Lutheran Church in America, 726 N.W.2d 127 (Minn. App. 2007)
• Article summary. In a case of enormous importance to denominational agencies, a Minnesota appeals court applied the "bar association analogy" in concluding that a regional and national church were not liable for the sexual misconduct of a pastor since the relationship between the church entities and credentialed clergy (which resembled the relationship between state bar associations and licensed attorneys) was too attenuated to justify the imposition of liability on the church entities for clergy misconduct. This case is the second court to recognize this important analogy. The court's ruling also addressed a number of other significant issues. This article will summarize the facts of the case, review the court's opinion, and assess its significant.
• Key point 10-02.1. Employers may be liable on the basis of respondeat superior only for the acts of employees.
• Key point 10-02.3. Churches can be legally responsible on the basis of the respondeat superior doctrine for the actions of their employees only if those actions are committed within the course of employment and further the mission and functions of the church. Intentional and self-serving acts of church employees often will not satisfy this standard.
• Key point 10-09.2. Some courts have found churches not liable on the basis of negligent supervision for a worker's acts of child molestation on the ground that the church exercised reasonable care in the supervision of the victim and of its own programs and activities.
• Key point 10-18.3. There are several legal defenses available to a denominational agency that is sued as a result of the acts or obligations of affiliated clergy and churches. These include a lack of temporal control over clergy and churches; a lack of official notice of a minister's prior wrongdoing in accordance with the denomination's governing documents; lack of an agency relationship; the prohibition by the First Amendment of any attempt by the civil courts to impose liability on religious organizations in a way that would threaten or alter their polity; and elimination or modification of the principle of joint and several liability.
A Minnesota appeals court ruled that a local church, as well as regional and national denominational agencies, were not liable for the sexual molestation of a young girl by a retired pastor. The court's ruling addressed several key issues, all of which are summarized in this feature article.
Facts
A pastor (Pastor Owen) and his wife returned to their farm following his retirement. Shortly after returning to his home community, Pastor Owen occasionally conducted worship services in his former church for a fixed fee when the current pastor was unavailable. He also resumed a close friendship with a former parishioner and her husband and two young children. The two families often spent Christmas and birthdays together, and Pastor Owen and his wife regularly babysat the two children. The children frequently visited the farm to play with the animals. Eventually, the children began referring to Pastor Owen and his wife as "grandpa" and "grandma."
Eventually, one of the two children, a young girl (the "victim"), started spending the night at the farm. At about the same time, the victim was having difficulty with her school work. Because Pastor Owen's wife was a retired teacher, she began helping the child improve her grades.
One morning, after having spent the previous evening at the farm, the victim told her mother that she had been sexually abused by Pastor Owen. The parents sought the advice of their current pastor, who they claim instructed them to "stay silent." The police were not informed of the abuse until several months later when an unnamed person made a report. Pastor Owen was charged with child abuse, and pleaded guilty to second-degree criminal sexual conduct. Both Pastor Owen, and the pastor who advised the family to "stay silent," were asked to resign their ministerial credentials by their denomination (the "regional church").
The victim, through her parents, sued Pastor Owen. She also sued the local church and regional and national denominational offices (the "church defendants"). The victim claimed that the church defendants were responsible for Pastor Owen's misconduct on the basis of respondeat superior, negligent supervision, and ratification. Under the legal doctrine of respondeat superior, an employer generally is responsible for the negligent acts of its employees committed within the course of their employment. A trial court dismissed the victim's claims against the church defendants, but allowed her claims against Pastor Owen to proceed. The victim appealed the dismissal of her claims against the church defendants.
The Court's Ruling
Summarized below are the court's responses to each of the victim's three theories of liability—respondeat superior, negligent supervision, and ratification.
(1) Respondeat superior
The appeals court noted that under the respondeat superior doctrine, "an employer is vicariously liable for the acts of an employee committed within the course and scope of employment." The victim argued that an employment relationship existed between Pastor Owen and the church defendants because he was an ordained minister in good standing and his name was on the "clergy roster." Further, she claimed that the regional and national churches exercised enough control over a pastor's ministry to give rise to an employment relationship. In particular, she noted that the regional and national churches (1) determine who is qualified to be a minister; (2) demand that ministers agree and abide by their constitutions and bylaws; and (3) retain the authority to discipline ministers, including the authority to remove them from their pastoral ministry. Such evidence, the victim concluded, was sufficient evidence of control by the regional and national churches to establish an employment relationship between them and all ordained clergy.
The court acknowledged that there was evidence tending to support the existence of an employment relationship between the regional and national churches and ordained clergy:
Both the [regional and national churches] have constitutions under which a minister must abide. There is evidence in the record that both the [regional and national churches] can be involved in the disciplinary process. For example, testimony by church officials indicated that if the [regional and national churches] became aware of inappropriate behavior by a minister, the church entities could request that the minister resign. If the pastor declined to resign, the [regional and national churches] could use the process of discipline outlined in the constitutions to force his or her resignation.
Nevertheless, the court concluded that the fact that the regional and national churches "set certain standards for ministers, and can be involved in disciplinary proceedings, does not automatically mean a true employment relationship exists" that would support the imposition of liability on the church entities for the misconduct of ministers.
The court drew an analogy to the relationship between attorneys and the state supreme court. In Minnesota, the supreme court "through the Rules of Professional Conduct, sets forth the rules and standards by which lawyers must adhere. If these rules are violated, the court may discipline the responsible attorney. But this relationship between the supreme court and the disciplined attorney is not an employment relationship. There has to be something more." Similarly, the regional and national churches in this case had "limited control over the pastor." But, "the congregation, not the umbrella entity, has the responsibility for hiring and firing the pastor, setting forth the terms and conditions of employment, supplying the pastor with parsonage, vacation and supplies, and paying the pastor. [It] is the congregation, not the [regional or national churches], which employs the minister."
The court further concluded that Pastor Owen was not an employee of the local church where he occasionally filled in: "When the church needed a fill-in pastor because the full-time pastor was unavailable, the church would contact a retired pastor, such as Pastor Owen, and request that he fill in. When Pastor Owen filled in as a retired pastor, he was paid approximately $60-80 for each day that he provided his service. The church did not withhold taxes from his paycheck and he was not provided with vacation or health benefits. The record shows that he occasionally served as a fill-in pastor at other churches …. As a retired minister, he was more of an independent contractor than an employee of the church."
The court concluded that the church defendants were not liable on the basis of respondeat superior for Pastor Owen's acts of molestation because an employment relationship did not exist. In addition, his wrongful acts were not committed in the course of his employment, as required by the respondeat superior doctrine. Rather, the occurred at Pastor Owen's farm where the victim was visiting to obtain tutoring assistance from Pastor Owen's wife. The victim never alleged that she went to visit Pastor Owen "for any type of religious counseling or any other reason connected to his status as a retired minister." In fact, she testified that she never attended any religious service conducted by Pastor Owen, and knew him only as a family friend.
(2) Negligent supervision
The court noted that for the victim to prevail on her negligent supervision claim, she had to prove that Pastor Owen's conduct was foreseeable, and that the church defendants failed to exercise reasonable care in supervising him. The court defined foreseeability as "a level of probability that would lead a prudent person to take effective precautions." If Pastor Owen's abusive behavior was objectively foreseeable, then the inquiry must focus on whether the employer took reasonable precautions to prevent the abuse.
The victim claimed that Pastor Owen's abuse was foreseeable because of the following "red flags": (1) the victim's frequent overnight visits with Pastor Owens and his wife; (2) the lavishing of inappropriate and expensive gifts on the victim by both Pastor Owens and his wife; and (3) on at least one occasion, the victim had to be dragged, kicking and screaming, by her parents to Pastor Owen's car to spend time with him and his wife.
The court concluded that the victim failed to establish that the church defendants were responsible for Pastor Owen's acts on the basis of negligent supervision, because (1) Pastor Owen was not an employee of any of the church defendants, and (2) his abusive acts were not foreseeable. The court observed:
[The victim has] failed to provide any evidence that any of the church entities were aware of the alleged "red flags." Even if they were aware of the alleged "red flags," [the victim] fails to establish how these "red flags" should have put [the church defendants] on notice of the abuse. In light of [victim's] relationship with [Pastor Owen and his wife] it would not be abnormal for her to spend the night at [their home] or for [them] to buy nice gifts for somebody they considered to be their granddaughter. It is not abnormal for a teenager to put up a fuss when instructed that she spend time with a tutor to work on her school work. There is nothing in these "red flags" to indicate that Pastor Owen was abusing the vicitm, or that [the church defendants] were aware of the existence of these "red flags."
Ratification
The victim asserted that the church defendants were responsible for her injuries as a result of their "ratification" of Pastor Owen's behavior. Specifically, she claimed that by not taking immediate disciplinary action against him when they learned of the abuse, the church defendants ratified his behavior. The court acknowledged that an employer can be liable for the wrongful acts of an employee "by approving and ratifying such conduct, irrespective of whether that conduct is intentional or negligent." However, the court concluded, "ratification is inapplicable here because ratification has only been found in the context of an employer-employee relationship."
Relevance to other churches and ministers
What is the relevance of this case to church leaders? Consider the following points:
1. In general. A decision by a Minnesota appeals court is not binding in any other state, and may be reversed by the state supreme court. However, there are some aspects to the court's decision that are instructive for all churches.
2. The significance of employee status. The court concluded that the victim's lawsuit had to be dismissed because Pastor Owen was not an employee of any of the church defendants. Without an employment relationship, the court observed, there could be no liability based on respondeat superior, negligent supervision, or ratification. The court acknowledged that each of the church defendants had some ties with Pastor Owen, but nothing close to the level of control required for an employer-employee relationship.
• Key point. The court's decision would have been quite different had Pastor Owen been an employee of the local church rather than a "fill-in" pastor. The church may well have been found liable on the grounds of respondeat superior or ratification. The court's conclusion that Pastor Owen's abusive conduct was not foreseeable would have precluded liability based on negligent supervision.
3. Negligent supervision. The court noted that an employer's liability based on negligent supervision requires not only an employer-employee relationship, but also an injury that was reasonably foreseeable. The court concluded that the following "red flags" did not render Pastor Owen's abusive acts foreseeable: (1) the victim's frequent overnight visits with Pastor Owen and his wife; (2) the lavishing of inappropriate and expensive gifts on the victim by both Pastor Owen and his wife; and (3) on at least one occasion the victim had to be dragged, kicking and screaming, by her parents to Pastor Owen's car to spend time with him and his wife. However, the court stressed that it was the long-standing, close relationship between Pastor Owen and the victim's family that prevented these "red flags" from making Pastor Owen's abusive acts foreseeable.
• Key point. Without Pastor Owen's long and close relationship with the victim's family, the "red flags" cited by the victim may well have been sufficiently suspicious to make his abusive acts reasonably foreseeable. Many cases of child molestation have occurred while minors are spending the night in a staff member's home. Many of these cases have been addressed in previous issues of this newsletter. Church leaders should view this as a high risk practice that should be prohibited except in the most limited circumstances (i.e., the staff member is a close relative of the minor).
4. The "bar association analogy." Perhaps the most significant aspect of the court's decision was its use of the "bar association analogy." In recent years several plaintiffs have attempted to hold denominational agencies liable for the acts of ministers that they ordain or license. The argument is that the act of ordaining or licensing to a minister, and the retention of authority to discipline or dismiss a minister for misconduct, constitutes sufficient "control" to make the denomination liable for the minister's actions.
It is true that many denominational agencies ordain or license ministers; require ministerial credentials to be renewed annually; and reserve the authority to discipline or dismiss ministers whose conduct violates specified standards. In some cases, ministers are required or expected to provide annual contributions to the denomination. However, in most cases, the denomination retains no authority to supervise or control the day-to-day activities of ministers. It may be authorized to discipline or dismiss a minister following an investigation, but ordinarily it has no authority to independently monitor or supervise the day-to-day conduct of ministers, and no such authority is ever exercised.
The authority of many denominations to license and ordain clergy, require annual renewals of ministerial credentials, and discipline or dismiss clergy found guilty of specified misconduct, is precisely the same authority that is exercised by state professional accrediting organizations, such as bar associations. Like denominational agencies, the bar association (or, in some states, the state supreme court) has the authority to license attorneys, require annual renewals, and discipline or dismiss attorneys for violations of professional standards. In addition, many require annual contributions. However, this limited authority does not give the bar association any right to control or supervise the day-to-day activities of attorneys, and it is for this reason that no bar association has ever been sued on account of a licensed attorney's malpractice, much less been found liable, and religious organizations should be treated no differently.
An identical analogy can be made to any professional licensing organization (e.g., physicians, CPAs, veterinarians, dentists, nurses, morticians), since they all exercise about the same degree of control—they issue licenses and retain the right to discipline or dismiss licensees for violations of a professional code of conduct, but they have no authority to supervise licensees' day-to-day activities.
The civil courts are beginning to recognize the bar association analogy. The first court to do so was a federal appeals court in the case of Alford v. Commissioner, 116 F.3d 334 (8th Cir. 1997). The court, in addressing the question of whether Pastor Alford, an Assemblies of God minister, was an employee of the national church ("General Council") and one of its regional agencies ("District Council"), made the following observation:
The General Council's and District Council's right to control Alford during the relevant years extended primarily to their function in awarding credentials to ministers like himself. Generally, the church has established certain criteria that must be met for an individual such as Alford to obtain credentials initially and to renew that status annually. There are standards for the education a minister must acquire (which he must obtain and pay for himself) and for his performance on certain tests. Other requirements include subscribing to the doctrinal statement of the Assemblies of God, which sets forth the religious beliefs of the church, its ministers, and its members, and to the form of church government. Ordained ministers must preach thirteen times a year, but topics are not decreed by the regional or national organizations. Ministers holding credentials cannot preach in churches other than Assemblies of God churches without permission of the District Council. Ministers may be disciplined for what the church considers failure to follow church doctrine and for lapses in personal conduct, and may, in fact, have their credentials revoked. With some exceptions not relevant here, a minister must tithe to both the regional and national organizations. Attendance at certain meetings is expected, but not required. Thus it is apparent that, while the regional and national churches had doctrinal authority to exercise considerable control over Alford as regards his beliefs and his personal conduct as a minister of the church, they did not have "the right to control the manner and means by which the product [was] accomplished."
The [trial court] and the United States make much of the fact that Alford, as a minister holding credentials, was "amenable" to the General Council and to the District Council in matters of doctrine and conduct. But this is not unusual in such a profession, and actually is merely a shorthand way of describing the parent church's doctrinal and disciplinary control discussed above. The control exercised by the regional and national organizations, and their right to control Alford, was no more nor less than most professions require of individuals licensed or otherwise authorized to work in the profession. State bar associations, for example, have certain education requirements and demand a certain level of performance on a bar examination before an individual can be licensed to practice law. On an annual basis, such associations require the payment of dues and often the completion of continuing legal education in order for an attorney to retain his license. State bar associations are empowered to monitor attorneys' behavior and to discipline them as they see fit, including the revocation of an attorney's license to practice law (disbarment). Yet no one would suggest that, by virtue of this right to control an attorney's working life, the bar association is his employer, or even one of his employers.
Obviously, the importance of this case cannot be overstated. It will effectively refute, in many cases, attempts by plaintiffs to hold denominational agencies accountable for the acts of their ordained and licensed ministers.
The second reference to the bar association analogy was the Minnesota appeals court decision addressed in this article. The court compared a religious denomination's ordination and discipline of ministers to similar functions performed by the state supreme court. In Minnesota, the state supreme court licenses attorneys and retains the authority to discipline those who violate a code of professional ethics. The appeals court concluded that this relationship was too attenuated to establish an employment relationship, and as a result the regional and national churches could not be liable for Pastor Owen's abusive acts.
• Key point. Any regional or national church that issues ministerial credentials, and that disciplines ministers who violate a code of conduct, can use the bar association analogy. It is a powerful and compelling argument. The bottom line is this—no bar association has ever been sued, much less found liable, for the malpractice of an attorney; why should religious organizations be treated differently?
• Example. The Alabama Supreme Court compared an attempt to impute legal liability to a denomination as a result of the misconduct of a minister "to situations where a young man may be in a seminary and the seminary is asked to supply a preacher or a minister for a congregation. The fact that the young minister may have some alma mater does not make the seminary responsible for his behavior in the event he elects to commit a burglary or some other act which he might consider to be ordained by divine aegis or providence. It would not in and of itself make the seminary responsible for his behavior." Wood v. Benedictine Society of Alabama, Inc., 530 So.2d 801 (Ala. 1988).
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