Here are the key takeaways:
Property damage requires immediate experts. Two property damage cases this month demonstrate the need to get experts involved in property damage cases immediately. In one case, one court found both church experts lacked reliable methodology or qualified expertise and disallowed their testimony. As such, the court appears ready to uphold the insurance company's denial of the church's claim. In the other case, the property owner took immediate steps to stop future damage to its property by a neighbor's decision to dig a ditch along the property line. It is important to get experts involved early in any incident, including property damage as shown in these cases.
Courts further split their analysis of the ecclesiastical abstention doctrine. We have advised churches for months that courts are starting to sidestep the First Amendment's ecclesiastical abstention doctrine. This month we have three cases involving that rule. In two cases, the courts found that a trial court would have to get too involved in a church's spiritual rules, internal governance, and church policies and procedures to separate the theological from the legal. As such the courts dismissed the cases for all intents and purposes. However, another court argued that the only ecclesiastical rules that a trial court would have to interpret were procedural and administrative. There is a blurry line between a church's policies and procedures manual and a church's procedural and administrative rules, if there is a line there at all.
Courts reached very different conclusions regarding a church's liability for sexual abuse in the church. One case this month has nothing to do with sexual abuse, but was interesting in that its claims were based on the Racketeer Influenced and Corrupt Organizations (RICO) Act. That is a very novel claim against a church, and the only RICO case we've found against a church involved the cover up of sexual abuse. However, in another case the court found that the church was unlikely to be found liable for the sexual abuses committed by a deacon when one church leader admitted at his criminal trial that she knew of previous sexual abuse allegations. Negligent hiring did not work because the church did not know of any allegations before appointing the deacon. Negligent retention did not work because although church leaders knew of the sexual abuse allegations, they did not know the outcome of those allegations. In that state, there is no separate case for negligent supervision. All that remained was a complaint for emotional distress, which the court implied its doubt of success considering it had already found the church had no duty. It is worthy to note that this deacon is now serving two consecutive life sentences plus an additional 75 years in prison.
Get free sample sexual abuse policies online now at www.churchgeneralcounsel.com/10CIC.
Several cases this month involved contract disputes between churches and vendors. These cases demonstrate several important legal doctrines for churches to understand. Make sure you have a litigation attorney that knows on what basis to file a contract claim. Make sure your conduct reflects your understanding of the agreement. Make sure you look out for arbitration clauses in contracts. Generally we think arbitration clauses are good things, but be careful - you may have to arbitrate your case in a foreign country. When doing business with a foreign company, be sure to understand that any dispute not subject to an arbitration clause may have to be heard in a federal court and not a local state court.
This month reveals more evidence that a U.S. Supreme Court decision on the application of sexual orientation and gender identity laws to people of faith is fast approaching. One case found that the State of Minnesota could not require videographers to video, produce, and master a wedding video for a same-sex couple because such a requirement would be forced speech. Several courts have reached the same conclusion; several others have reached the opposite. With that type of split in the various jurisdictions, it is likely that the Supreme Court will need to weigh in sooner rather than later.