Pastor, Church & Law

§ 6.12.01

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Key point 6-12.01. Church membership meetings must be conducted in accordance with the procedural requirements ordinarily specified in the church's governing documents. The most common requirements pertain to notice, quorum, and voting.

A church's charter or bylaws typically specifies procedures for the convening and conduct of church membership meetings. State nonprofit corporation law may impose additional procedural requirements on incorporated churches, although in most cases state corporation law will apply only if the church's charter or bylaws are silent. If there is no specific charter, bylaw, or statutory provision governing church meetings, the established custom of the church generally will control.[348] McDaniel v. Quakenbush, 105 S.E.2d 94 (N.C. 1958). For example, where it was the established custom of a church to give notice of the annual church membership meeting by public announcement during Sunday morning services on the two Sundays before the date set for the proposed meeting, a court ruled that the election of officers at a purported annual meeting was invalid since this custom was not followed.[349] Coates v. Parchman, 334 S.W.2d 417 (Mo. 1960).

The procedural requirements causing the greatest amount of controversy and confusion are notice, quorum, and voting requirements. These subjects will be considered individually.

1. NOTICE

The church membership ordinarily must be notified of the date, time, and place of both annual and special membership meetings. This "notice" requirement usually is found in the church's bylaws, but it also may appear in the corporate charter or in the body of parliamentary procedure adopted by the church. For example, Robert's Rules of Order Newly Revised, which has been adopted by many churches, specifies:

With the possible exception of motions that related to procedure without direct reference to a particular substantive item of business, only business mentioned in the call of a special meeting can be transacted at such a meeting. If, at a special meeting, it becomes urgent in an emergency to take action for which no notice was given, that action, to become legal, must be ratified by the organization at a regular meeting (or, if the ratification cannot wait, at another special meeting properly called for that purpose).[350] ROBERT'S RULES OF ORDER NEWLY REVISED § 9 (11th ed. 2011).

If a church is incorporated and its bylaws do not contain notice requirements, the state nonprofit corporation law ordinarily will contain the applicable requirements. To illustrate, section 14 of the Model Nonprofit Corporation Act, which has been adopted by many states, specifies:

Unless otherwise provided in the articles of incorporation or the bylaws, written notice stating the place, day and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, should be delivered not less than ten nor more than fifty days before the date of the meeting, either personally or by mail … to each member entitled to vote at such meeting.

Section 7.05 of the Revised Model Nonprofit Corporation Act, which has been adopted by a few states, specifies that "a corporation shall give notice consistent with its bylaws of meetings of members in a fair and reasonable manner." The Act goes on to specify that notice is "fair and reasonable" if (1) the corporation notifies its members of the place, date, and time of each annual, regular, and special meeting of members no fewer than 10 (or if notice is mailed by other than first class or registered mail, 30) nor more than 60 days before the meeting date; (2) notice of an annual or regular meeting must include a statement of purpose only with respect to any of the following matters—director conflict of interest, indemnification of officers or agents, amendment of the articles of incorporation, amendment of the bylaws, mergers, some sales of corporate assets, dissolution by directors or members; and (3) notice of a special business meeting must include "a description of the matters for which the meeting is called."

Unincorporated churches that have no bylaws or written regulations are bound by their established customs regarding notice of church membership meetings. However, some courts have held that notice requirements established by custom can be disregarded if the notice actually given is more likely to provide notice to all church members than the form of notice prescribed by custom.[351] State Bank v. Wilbur Mission Church, 265 P.2d 821 (Wash. 1954).

A church must comply with the manner and method of giving notice prescribed in its charter or bylaws, in applicable state nonprofit corporation law, or by established church custom. Failure to follow applicable notice requirements may render any action taken at the improperly called meeting invalid.

Case study. A church convened a special meeting of the congregation. Notice of the meeting consisted of announcements from the pulpit on the three consecutive Sundays prior to the meeting. These announcements did not indicate that a vote would be taken on the minister's continued employment. At the meeting, a motion was made from the floor to terminate the minister's services. The minister, acting as chairman of the meeting, ruled the motion out of order since there had been no prior notice that such a vote would be taken. A deacon then proceeded to conduct a vote over the minister's objection, and the members present voted to terminate the minister's services. The ousted minister attempted to return to the pulpit on the following Sunday, but was prevented from doing so. The church later obtained a court order prohibiting the minister from attempting to occupy his former position. The minister appealed this decision, arguing that the church had improperly fired him since it had not given proper notice of the business to be transacted at the congregational meeting. A state appeals court agreed. It noted that neither the church's charter nor bylaws specified the type of notice needed for special meetings. And, since the charter and bylaws were silent, the state nonprofit corporation law under which the church was incorporated had to be consulted. A provision in this law specified that "unless otherwise provided in the [charter] or bylaws … the authorized person calling a members' meeting shall cause written notice of the time, place and purpose of the meeting to be given to all members entitled to vote at such meeting, at least ten days and not more than sixty days prior to the day fixed for the meeting." Notice of the church's special congregational meeting was defective since it was not in writing (it had been announced from the pulpit), and it failed to specify the purposes of the meeting. "The notice of the meeting was clearly deficient," concluded the court, "and the meeting was therefore invalid."[352] Bethlehem Missionary Baptist Church v. Henderson, 522 So.2d 1339 (La. App. 1988). This case is significant for two reasons. First, it emphasizes the significance of giving proper notice of church business meetings. Second, the case illustrates the principle (which is followed in many states) that an incorporated church may be governed by state nonprofit corporation law in the event that it fails to address certain matters of administration and operation in its charter or bylaws. Of course, churches in such states are free to adopt provisions contrary to the nonprofit corporation law in their own charter or bylaws, and such provisions will be controlling. But in the event that they fail (for whatever reason) to address certain issues of church administration in their organizational documents, state law may step in to "fill the void."

Case study. An Ohio court ruled that a church business meeting was invalid since the pastor had moved the time of the meeting from "immediately following the morning service" to 1:00 PM that afternoon.[353] Mt. Eaton Community Church, Inc. v. Ladrach, 2009 WL 56923 (Ohio App. 2009).

Actions taken at church membership meetings have been declared void under the following circumstances: (1) notice of a special meeting was read publicly by a church secretary instead of by a church trustee as required by the applicable state nonprofit corporation law;[354] Hayes v. Brantley, 280 N.Y.S.2d 291 (1967). (2) a pastor publicly notified his congregation during a worship service that a special meeting would be convened immediately following the service, though the church's bylaws stipulated that notice of special meetings had to be mailed to members at a prescribed time in advance of a meeting;[355] Mount Zion Baptist Church v. Second Baptist Church, 432 P.2d 328 (Nev. 1967). (3) a pastor convened a special meeting following a Sunday morning service without any notice other than an oral announcement during the service, despite an applicable provision in state nonprofit corporation law requiring written notice to be posted in a conspicuous place near the main entrance of the church for at least seven days before the meeting;[356] Bangor Spiritualist Church, Inc. v. Littlefield, 330 A.2d 793 (Me. 1975). (4) a small number of members present at a Wednesday evening church service publicly called a special meeting of the church membership for the following Saturday, in violation of an established church custom requiring notice to be read publicly during at least two Sunday morning services prior to such a meeting;[357] In re Galilee Baptist Church, 186 So.2d 102 (Ala. 1966). and (5) a church's attempted removal of its trustees at a special business meeting was "null and void" since the church had not fulfilled the legal notice requirements imposed by state law for calling a special business meeting.[358] First Union Baptist Church v. Banks, 533 So.2d 1305 (La. App. 1988).

One state supreme court has observed that "it is proper for the courts to inquire whether a congregational meeting, at which church business is to be transacted, was preceded by adequate notice to the full membership, and whether, once called, the meeting was conducted in an orderly manner." However, "once the court is presented with sufficient evidence regarding the regularity of the meeting, it will then generally refuse to inquire further as to the fruits of the meeting."[359] McKinney v. Twenty-fifth Avenue Baptist Church, Inc., 514 So.2d 837 (Ala. 1987).

The courts have held that action taken at an improperly called meeting will be invalid no matter how many members are present, and that even a majority of church members present at an improperly called meeting cannot "validate" the meeting by waiving the notice requirements.[360] Hollins v. Edmonds, 616 S.W.2d 801 (Ky. 1981); Bangor Spiritualist Church, Inc. v. Littlefield, 330 A.2d 793 (Me. 1975); Brooks v. January, 321 N.W.2d 823 (Mich. App. 1982); Old Folks Mission Center v. McTizic, 631 S.W.2d 433 (Tenn. 1981). However, action taken at an improperly called meeting can be ratified or affirmed by the church membership at a properly called meeting.[361] Hill v. Sargent, 615 S.W.2d 300 (Tex. 1981).

If notice has been given according to a church's bylaws, a meeting may not be challenged by a disgruntled minority. Thus, when oral notice of a special church membership meeting was announced from the church pulpit in accordance with the church's bylaws, a minority of members who had ceased attending the church and therefore did not receive actual notice of the meeting were not permitted to overturn the actions taken at the meeting on the basis of inadequate notice.[362] Gelder v. Loomis, 605 P.2d 1330 (Okla. 1980). See also Zimbler v. Felber, 445 N.Y.S.2d 366 (1981).

Case studies

• A California court ruled that it was not barred by the First Amendment guaranty of religious freedom from resolving a lawsuit brought by dismissed members challenging the legal validity of their dismissals, since the church was congregational rather than hierarchical in polity and a "civil or property" right was involved. The court concluded that this dispute did implicate the members' civil and property rights, namely, "the right under the church constitution to petition the board to call a special congregational meeting, and the right not to be expelled from the church except as provided in the constitution." The court concluded: "This case does not require the court to decide whether the members' actions violated the biblical principles upon which the church is founded, but whether the church may discipline members for exercising rights guaranteed them by the civil law under which the church is organized." The court stressed that it was only dealing with a "congregational" church that was not subject to the rules of a church hierarchy. It conceded that "there is a constitutionally significant difference between a situation where a higher judicatory tribunal within a hierarchical church has resolved an internal dispute in a local church." [363] The Cross Church Men's Society v. Executive Committee, 2005 WL 555270 (Cal. App. 2005).
• A Michigan court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving a dismissed pastor's claim that his dismissal was legally void because of noncompliance with procedural requirements. Twenty-two members at a church business meeting voted sixteen to six in favor of the pastor's dismissal. The pastor claimed that the vote was invalid because it did not comply with a bylaw notice provision requiring that special meetings be held only if notice is given on the two preceding worship services. The court disagreed: "The pastor fails to note that the vote was not taken at a special meeting, but rather at a regular business meeting of the church. Under the church's bylaws, regular church business meetings are conducted on the Saturday before the first Sunday of each month, and there are no special notice requirements for the regular meetings. The meeting in question was held on … the Saturday immediately preceding the first Sunday in October. Thus, it was a regular business meeting, not a special one, and no special notice was required."[364] White v. First United Baptist Church, 2002 WL 1575243 (Mich. App. 2002).
• A Missouri court ruled that a church's board of directors was not properly elected in accordance with the state nonprofit corporation law at a specially called business meeting, and therefore had to be removed. The court noted that the notice for the meeting said nothing about the meeting's purpose, and in particular made no mention of elections of board members. As a result, the meeting was not a "special meeting" because it was not called according to the procedures set out in the nonprofit corporation law, and therefore the election of the board members was invalid. [365] First Missionary Baptist Church v. Rollins, 151 S.W.3d 846 (Mo. App. 2004).
• A New York court ruled that a church business meeting in which the board of deacons was deposed was invalid because the church failed to comply with the notice requirements contained in the church's bylaws. The court concluded that while the members of a church corporation "have the authority to amend their constitution and bylaws, such action must be preceded by appropriate notice. Since no notice was given before the meeting, the action taken then is null and void. Thus, the former deacons remain members of the board of deacons." [366] Briggs v. Noble, 2004 WL 829439, (N.Y. App. 2004). See also A New York court ruled that a specially called church business meeting was invalid because notice of the meeting failed to state the purpose.
• An Ohio court ruled that an attempt by church members to remove all of the members of the church board at a specially called membership meeting was invalid because the notice requirements prescribed by state nonprofit corporation law were not followed. The church's bylaws did not address how notice was to be provided for membership meetings, and so the nonprofit corporation law applied. According to this provision the members who called the "special meeting" were required to state the purpose of the meeting and provide at least ten days' notice of the special meeting. Because this notice requirement was not followed, the meeting at which the board was ousted was void. Further, the other actions taken at that meeting (appointment of a new board, and reinstatement of the pastor) also were void. [367] Calvary Congregational Church v. Eppinger, 2000 WL 193216 (Ohio App. 2000).
• A Pennsylvania court ruled that a financial transaction approved by the church board in a special meeting was null and void because the board did not comply with the applicable notice requirements. The court noted that the special board meeting in which the transaction was approved was "held on two days notice [which] means that the meeting was held in violation of [the state nonprofit corporation law] that requires written notice of a special meeting of the board of a nonprofit corporation be given to each director or member of that board at least five days before the day named for the meeting. Any action taken at that meeting was, therefore, void." [368] In re the Lord's New Church, 817 A.2d 559 (Pa. Common. 2003).
• A Washington court ruled that a church's election of new board members was legally invalid because the church failed to comply with state nonprofit corporation law in providing the members with notice of the meeting. The state nonprofit corporation law requires that notice of an annual or special meeting be delivered "not less than 10 or more than 50 days" before the date of the meeting. Since the notice of the church meeting had been given 7 days before the meeting, the election was invalid and the newly elected board members were not the duly elected board of directors of the church. The court ordered a court-supervised election of board members, consistent with state nonprofit corporation law. It concluded that this order did not violate the First Amendment guaranty of religious freedom since "the issues in this case are not ecclesiastical but rather concern property rights and nonprofit corporate law." [369] Kidisti Sellassie Orthodox Tewehado Eritrean Church v. Medlin, 2003 WL 22000635 (Wash. App. 2003).

2. QUORUM

Churches should and often do prescribe in their charter or bylaws the number of members that must be present at general or special membership meetings in order for business to be transacted. This minimum number is generally called a quorum. State nonprofit corporation law specifies a quorum for incorporated churches that have not defined this term in their charter or bylaws. To illustrate, section 16 of the Model Nonprofit Corporation Act provides:

The bylaws may provide the number or percentage of members entitled to vote represented in person or by proxy, or the number or percentage of votes represented in person or by proxy, which shall constitute a quorum at a meeting of members. In the absence of any such provision, members holding one-tenth of the votes entitled to be cast on the matter to be voted upon represented in person or by proxy shall constitute a quorum.

Established church custom will control in the case of unincorporated churches having no bylaws or written regulations.

Ordinarily, so long as a quorum is present, a majority of members has the authority to act on behalf of the entire membership provided the meeting was properly called and a greater number or percentage of votes is not mandated by church charter or bylaws. This of course means that in some cases a minority of members can bind a church.[370] Padgett v. Verner, 366 S.W.2d 545 (Tenn. 1963). For example, if a church's bylaws fix the quorum at 50 percent of the voting members, then as few as 26 percent of the total membership can act on behalf of the church. On the other hand, efforts to avoid minority rule by boosting the quorum requirement may result in too few members being present to conduct business.

If a church has no bylaw provision or established custom concerning quorums, it is unnecessary to demonstrate that a majority or any other percentage of the total membership attended a particular meeting in order to validate the action taken at the meeting.[371] State Bank v. Wilbur Mission Church, 265 P.2d 821 (Wash. 1954).

3. VOTING

in general

Unless otherwise restricted by charter, bylaw, statute, or custom, every member of a church congregation is entitled to vote at a membership meeting, and a majority of those members present at a duly called meeting at which a quorum is present can take action on behalf of the church. Section 15 of the Model Nonprofit Corporation Act defines the voting rights of members as follows:

The right of the members … to vote may be limited, enlarged or denied to the extent specified in the articles of incorporation or the bylaws. Unless so limited, enlarged or denied, each member … shall be entitled to one vote on each matter submitted to a vote of the members.

Church charters, bylaws, customs, and applicable state nonprofit corporation laws occasionally impose limitations on the right to vote. To illustrate, some nonprofit corporation laws restrict the right to vote in church membership meetings to members who have contributed financially to the support of the church.[372] First Slovak Church of Christ v. Kacsur, 65 A.2d 93 (N.J. 1949) (members held not qualified to vote because they did not satisfy the statutory requirement that they "contribute regularly" to the support of their church); Anthony v. Cardin, 398 N.Y.S.2d 215 (1977) (holding that contributions of ten cents per week were inadequate to satisfy the statutory requirement that voting members contribute to the support of the church). Churches themselves sometimes enact similar resolutions or bylaws. For example, a church can adopt a resolution restricting the right to vote to members who are "paid up" and who do not neglect their offerings for three consecutive months. Such a resolution will prohibit any member from voting who has neglected to pay offerings for three consecutive months even if the failure to pay was a matter of conscience.[373] Sixth Baptist Church v. Cincore, 91 So.2d 922 (La. 1957).

If the right to vote is not restricted by charter, bylaw, custom, or statute, then some courts have ruled that all members of a church may vote in a church membership meeting regardless of age [374] Hopewell Baptist Church v. Gary, 266 A.2d 593, 597 (N.J. 1970) (rejected contention that only members who had attained the age of 21 years be permitted to vote despite fact that almost two-thirds of a church's 900 members were under 21, since "[s]ound policy dictates that this court refrain from establishing such a limitation by judicial fiat"). See also In re Galilee Baptist Church, 186 So.2d 102 (Ala. 1966); Randolph v. Mount Zion Baptist Church, 53 A.2d 206 (N.J. 1947). or sex.[375] Smith v. Riley, 424 So.2d 1166 (La. App. 1982). And, where the signing of a church's bylaws was a condition of church membership, a person who joined the church but failed to sign the bylaws was ineligible to vote.[376] Kubilius v. Hawes Unitarian Congregational Church, 79 N.E.2d 5 (Mass. 1948). Churches occasionally restrict the right to vote to members who have attended the church for a prescribed period, and of course such limitations must be satisfied in order for a member to be eligible to vote.

A member's right to vote may be lost by voluntary withdrawal from a church. Certainly, members who quit attending a church and publicly state that they will never be back have abandoned their membership and no longer are eligible to vote in membership meetings.[377] Lewis v. Wolfe, 413 S.W.2d 314 (Mo. 1967). But in many cases determining with certainty whether a member has voluntarily withdrawn from a church is difficult, since withdrawal often is a process that sometimes is temporarily or permanently reversed. Churches can reduce confusion in this area by defining voting membership in terms of prescribed attendance or financial support.

Members wishing to contest some irregularity in a particular election or vote must object to the irregularity at the meeting. One court has ruled that objections to voting procedures must start when a vote is being taken, not months later when the events have passed from peoples' minds and the matters that were voted on have been accomplished. [378] Cosfol v. Varvoutis, 213 A.2d 331 (Pa. 1965).

proxy voting

Section 15 of the Model Nonprofit Corporation Act recognizes proxy voting:

A member entitled to vote may vote in person or, unless the articles of incorporation or the bylaws otherwise provide, may vote by proxy executed in writing by the member or by his duly authorized attorney-in-fact. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. …

Proxy voting refers to voting by means of a substitute. For example, a church member designates another member to vote on his behalf at a membership meeting. Churches rarely intend to permit proxy voting. Robert's Rules of Order Newly Revised specifically discourages it:

Ordinarily, it should neither be allowed nor required, because proxy voting is incompatible with the essential characteristics of a deliberative assembly in which membership is individual, personal, and non-transferable. … Voting by proxy should not be permitted unless the state's corporation law … absolutely requires it.[379] ROBERT'S RULES OF ORDER NEWLY REVISED § 45 (11th ed. 2011).

Few if any state nonprofit corporation laws require proxy voting. Rather, they recognize proxy voting only in the event that a corporation has not eliminated this type of voting by a provision in its charter or bylaws. This can lead to unexpected consequences when an incorporated church's charter and bylaws do not prohibit proxy voting.

Case studies

• During a regular church business meeting, a member moved to terminate the services of the church's minister. Of the members present, 42 voted to retain the minister, and 32 voted to remove him. In addition, one of the 32 dissidents produced a list of 57 proxy (absentee) votes to remove the minister from office. The moderator of the business meeting refused to recognize the proxy votes, and the attempt to remove the minister failed. The dissident members thereafter filed a lawsuit seeking a court order upholding the validity of proxy votes in church business meetings. A state trial court ruled against the dissidents, and the case was appealed directly to the Alaska Supreme Court. In an important decision, the court reversed the trial court and held that the proxy votes should have been counted. It based its decision on the provisions of the Alaska Nonprofit Corporations Act (under which the church had incorporated) which authorized proxy voting by members of nonprofit corporations absent a contrary provision in an organization's charter or bylaws. The court rejected the church's claim that requiring it to recognize proxy votes violated the constitutional guaranty of religious freedom. Finally, the court observed that a church could easily avoid the recognition of proxy votes by simply amending its charter or bylaws to so state. [380] Herning v. Eason, 739 P.2d 167 (Alaska 1987). But see First Union Baptist Church v. Banks, 533 So.2d 1305 (La. App. 1988).
• A Jewish congregation called a special business meeting to determine whether or not to retain its rabbi. The congregation, by a vote of 23 to 21, voted to submit the dispute to a panel of three orthodox rabbis for a final decision. The minority challenged this vote on the ground that four proxy votes (which were not counted at the business meeting and which agreed with the minority) were improperly disregarded at the meeting. Had they been counted, the vote would have been 25 to 23 against submitting the dispute to an arbitration panel. The court observed that the state nonprofit corporation law (under which the synagogue had been incorporated) permits proxy voting unless prohibited by the corporation's charter or bylaws. The court noted that the bylaws adopted "Robert's Rules or Order," which rejects proxy voting. The court concluded that this case perfectly illustrated the reason why proxy voting is discouraged: "It is obvious from the tenor of the membership meeting … that the congregation was split almost evenly among those members who 'loved' [the rabbi] or 'disliked' him vociferously. Such a meeting, by its nature, would call for extensive deliberation. Who can tell how many congregants were swayed to vote one way or the other based upon the arguments presented at the meeting?" [381] Frankel v. Kissena Jewish Center, 544 N.Y.S.2d 955 (1989).
• A New York court refused to recognize proxy voting in a congregational meeting conducted by a synagogue. The court concluded that proxy voting was not permissible since it was not authorized by the synagogue's charter (articles of incorporation) or bylaws—even if the membership voted at a meeting to permit it. The court observed that unless specifically authorized by state nonprofit corporation law, or a church's articles of incorporation or bylaws, "proxy voting by members of a religious corporation is not authorized." As a result, proxy votes should not have been counted at the synagogue's membership meetings. [382] Holler v. Goldberg, 623 N.Y.S.2d 512 (Sup. 1995).
• An Ohio court ruled that the members of a nonprofit corporation could not vote by proxy at a special business meeting since proxy voting was not authorized in the corporation's articles of incorporation or bylaws.[383] Hecker v. White, 688 N.E.2d 289 (Ohio App. 1996). It noted that Ohio's Nonprofit Corporation Law specifies that "unless the articles of incorporation or the regulations otherwise provide, no member who is a natural person shall vote or act by proxy." While the corporation's bylaws allowed amendments by proxy voting, the articles of incorporation did not. Since the proposed amendment involved the definition of "members" in the articles of incorporation, proxy voting was not authorized and was invalid.

Incorporated churches not wanting to recognize proxy voting should review their charter and bylaws to determine if either contains a provision prohibiting it. If not, an amendment would be in order. It should not be assumed that a church's formal adoption of Robert's Rules of Order Newly Revised will result in the prohibition of proxy voting.

how many votes are required?

After determining the qualified voting members of a church who are present at a church membership meeting, a church must ensure that all other voting requirements imposed by charter, bylaw, custom, or statute are satisfied. Often there is confusion over the number of votes required to adopt a particular action. For example, if the church bylaws require a particular vote to be by "a majority of members," does this mean a majority of the total church membership or a majority of those members present at a duly convened membership meeting? If only a majority of those present at a membership meeting is required, then it is possible for an action to be adopted by a minority of the total church membership. To illustrate, if 60 percent of the total church membership attends a duly convened meeting, and 55 percent of those present vote to take a particular action, then the church has taken an official action even though only 33 percent (i.e., 55 percent of 60 percent) of the total church membership assented to it. Can this be said to constitute a vote by a majority of members?

Of course, a church can and should define the term majority of members to avoid this confusion. For example, a provision in a church's bylaws requiring that a particular kind of vote be by majority vote of the church's total membership would preclude action by a majority of members present at a duly called meeting unless they comprised a majority of the church's entire membership. But if a church nowhere defines majority of members, or any other term relating to the required number of votes needed to adopt an action, the fraction or percentage of votes needed to adopt an action generally has reference to the members present at a duly called meeting and not to the entire church membership.[384] Mack v. Huston, 256 N.E.2d 271 (Ohio 1970). See generally FLETCHER CYC. CORP. § 2020 (perm. ed. 2008). To illustrate, section 16 of the Model Nonprofit Corporation Act specifies that "a majority of the votes entitled to be cast on a matter to be voted upon by the members present or represented by proxy at a meeting at which a quorum is present shall be necessary for the adoption thereof unless a greater proportion is required by … the articles of incorporation of the bylaws."

One court was asked to define the term three-fourths of the voting members present in a controversy involving the dismissal of a pastor.[385] Blanton v. Hahn, 763 P.2d 522 (Ariz. App. 1988). Certain members of the congregation became dissatisfied with a new pastor, and a special church business meeting was called to determine whether or not he should be discharged. Of the 26 members who attended the meeting, 18 voted to discharge the pastor and 8 did not vote. The church bylaws specified that "a pastor may be terminated by the church congregation … but only if … the vote equals or exceeds three-fourths of the voting members present." The pastor refused to acknowledge that the vote resulted in his dismissal, since less than "three-fourths of the voting members present" had voted to dismiss him (18 is only 70 percent of 26). Several disgruntled members of the congregation disagreed with this interpretation, and petitioned a court for a ruling recognizing that the congregational vote had resulted in the dismissal of the pastor. The members argued that the phrase "three-fourths of the voting members present" should be interpreted to mean three-fourths of the individuals who actually cast votes at the business meeting rather than three-fourths of all members actually present and eligible to vote. Since all 18 of the persons who actually voted at the meeting voted to dismiss the pastor, 100 percent of the votes were cast in favor of dismissal.

A state appeals court ruled that the pastor had not been lawfully dismissed in the meeting in question. The court relied on Robert's Rules of Order, which had been adopted by the church (in its bylaws) as the governing body of parliamentary procedure. The following excerpt from Robert's Rules of Order was quoted by the appeals court in support of its decision in favor of the pastor:

Assume, for example, that at a meeting of a society with a total membership of 150 and a quorum of 10, there are 30 members present, of whom 25 participate in a given counted vote. Then, with respect to that vote: a two-thirds vote is 17; a vote of two-thirds of the members present is 20; a vote of two-thirds of the entire membership is 100. … Regarding these bases for determining a voting result, the following points should be noted—voting requirements based on the number of members present, while possible, are generally undesirable. Since an abstention in such cases has the same effect as a negative vote, these bases deny members the right to maintain a neutral position by abstaining. For the same reason, members present who fail to vote through indifference rather than through deliberate neutrality may affect the result negatively.[386] Id. at 524 (emphasis in original).

According to this language, concluded the court, the phrase "three-fourths of the voting members present" meant three-fourths "of the individuals present and eligible to vote." Accordingly, the pastor had not been dismissed by the congregational vote since less than three-fourths of the members present and eligible to vote had voted to dismiss him.

If a church's charter, constitution, or bylaws do not designate the required percentage of votes for an affirmative action, then there is a presumption of majority rule. The United States Supreme Court has observed that "majority rule is generally employed in the governance of religious societies."[387] Jones v. Wolf, 443 U.S. 595, 607 (1979). Other courts similarly have concluded that majority representation is presumed to apply to church determinations unless such a presumption is overcome by express provision in the church's organizational documents, or by a provision in the constitution or bylaws of a parent denomination.[388] Foss v. Dykstra, 342 N.W.2d 220 (S.D. 1983).

Occasionally, a church's charter, bylaws, and, in some cases, its constitution contain conflicting provisions regarding the required number of votes necessary for adoption of a particular action. As has been noted elsewhere, provisions in the charter prevail over provisions in the constitution, bylaws, or resolutions; provisions in the constitution prevail over provisions in the bylaws, or resolutions; and provisions in the bylaws prevail over provisions in resolutions.[389] See § 6-02.2, supra. In most cases, an incorporated church is bound by the provisions of state nonprofit corporation law only where it has not expressly provided otherwise in its own charter, constitution, or bylaws.

Case study. The South Carolina Supreme Court ruled that it lacked the authority to resolve an internal church dispute regarding the percentage vote required to retain the pastor in a vote of confidence. The group supporting the pastor argued that the church bylaws required a three-fourths vote of the congregation for a "no-confidence" vote, while the group opposing the pastor argued that only a simple majority vote was needed. The court ruled that it was without legal authority to "dictate procedures for the church to follow in terminating its pastor."[390] Knotts v. Williams, 462 S.E.2d 288 (S.C. 1995).

other methods of voting (by hand, secret ballot, absentee voting)

Votes can be cast orally, by show of hands, or by secret ballot. The method used is governed by the church's charter or bylaws. If the charter and bylaws are silent, established church custom will control. The members present at a meeting can also approve of a particular manner of voting if the church charter or bylaws do not speak to the subject. It has been held that a vote will be upheld even if it was not conducted by secret ballot as required by the corporate bylaws if no one objected to the vote during the meeting.[391] FLETCHER CYC. CORP. § 2017 (perm. ed. 2008). Robert's Rules of Order Newly Revised, which has been adopted by many churches, specifies:

The bylaws of the organization may prescribe that the vote be by ballot in certain cases, as in the election of officers and in admission to membership. Any vote related to charges or proposed charges before or after a trial of a member or an officer should always be by ballot. Except as may be otherwise provided by the bylaws, a vote by ballot can be ordered by a majority vote—which may be desirable in any case where it is believed that members may thereby be more likely to vote their true sentiments.[392] ROBERT'S RULES OF ORDER NEWLY REVISED § 45 (11th ed. 2011).

Absentee voting is not ordinarily permitted unless expressly sanctioned by charter, bylaw, custom, or statute. Again, Robert's Rules of Order Newly Revised, specifies:

It is a fundamental principle of parliamentary law that the right to vote is limited to the members of an organization who are actually present at the time the vote is taken in a legal meeting. Exceptions to this rule must be expressly stated in the bylaws. … An organization should never adopt a bylaw permitting a question to be decided by a voting procedure in which the votes of persons who attend a meeting are counted together with ballots mailed in by absentees, since in practice such a procedure is likely to be unfair.[393] Id.

Case study. A Utah court ruled that an action taken by members of a nonprofit association by mail-in ballot was invalid since it was not authorized by nonprofit corporation law or the association's own bylaws.[394] Levanger v. Vincent, 3 P.3d 187 (Utah App. 2000).