Excommunication Vs. Resignation

[Mark Beesley]

We see, from time to time, assertions about what the Church can or cannot do when someone requests excommunication.

If a persons writes a letter requesting that their name be removed from the records of the Church, it is asserted, the Church must act on that request and cannot hold a disciplinary council to excommunicate that person.

I would like to know if anyone can provide a citation to any court case where the Church has been subject to either an injunction or money damages for holding a disciplinary council following receipt of a letter of resignation.

You can offer your own legal opinions if you would like, but I really would like to see some published authority . . . either a trial level memorandum of decision, or an appellate court decision.

What the Church does in practice may not necessarily be compelled by law. It may simply be a courtesy.

And remember, the answer to the following question is always yes: Can I sue?

The relevant question is always, Will I win?

[Damien the Leper]

A court case was cited in the Grant Palmer thread. Check it out.

[thesometimesaint]

The Church is a voluntary association and that association can be broken off by either party without legal fault or civil legal recourse.

From wiki: http://en.wikipedia.org/wiki/Voluntary_association

An unincorporated association has been defined as existing where two or more persons are bound together for one or more common purposes by mutual undertakings, each having mutual duties and obligations, in an organization which has rules identifying in whom control of the organization and its funds are vested, and which can be joined or left at will.

[USU78]

If somebody resigns and the Court follows a wholly internal excommunication process . . . and the resigner fails to show up, why does the resigner care what the organization he now formerly belonged to does? If he shows up, doesn't he acknowledge his continued membership, his resignation notwithstanding?

Just why would a court have any interest in entertaining a suit for alleged damage coming from a wholly internal, non-public disciplinary proceeding?

[Flyonthewall]

What is the difference between an institution removing the name of an individual from its records and an individual requesting their name removed? Isn't it effectively the same?

[thesometimesaint]

What is the difference between an institution removing the name of an individual from its records and an individual requesting their name removed? Isn't it effectively the same?

Effectively the same, but there may be some situations where excommunication is the more appropriate response to serious violations of Church and/or civil law.

[Mark Beesley]

A court case was cited in the Grant Palmer thread. Check it out.

The case cited in the Palmer thread is Guinn v. Church of Christ of Collinsville, 775 P.2d 766 (1989).

Marian Guinn was a member of a Collinsville congregation of the Church of Christ. She had a sexual relationship with a man who was not a member. Elders of the Church confronted her on three separate occasions, told her to end the relationship, and to confess her sins before the congregation. She was told that if she did not do so, her sins would be published to the congregation. Guinn resigned her membership before her misdeeds were published, i.e. a letter was read during services.

Following her resignation, the Elders read a letter in front of her former congregation informing the members of her sins and urging them to work to get Guinn to repent and return to the Church. The same letter was sent to four other Collinsville congregations and read aloud. Those congregations to whom the letter was read represented about 5 percent of the total population of Collinsvilles.

In her suit against the Church and the Elders for invasion of privacy and intentional infliction of emotional distress, the Oklahoma Supreme Court held that following her resignation from the Church, Guinn was no longer subject to Church discipline. Thus, the Church and Elders could not claim immunity from suit based on the First Amendment.

After holding that the church defendants were not immune, the Court recited what Guinn had to prove to recover:

In order to prevail on her claim for invasion of privacy by publication of private facts, Parishioner had to prove the four elements of that tort. She had the burden of showing that the Elders' statements (1) were highly offensive to a reasonable person, (2) contained private facts about Parishioner's life, (3) were a public disclosure of private facts and (4) were not of legitimate concern to the Church of Christ congregation.

Guinn, 775 P.2d at 781

As the above quote shows, while Guinn may very well have been able to prove the tortious elements in her suit, the procedures of the Church of Christ are clearly distinguishable from LDS Church discipline proceedings. The Church does not read an indictment in front of its congregations when someone is disciplined. There is no attempt to publicly shame a person to return to the fold. Indeed, the Church does not comment on disciplinary proceedings. Suffice it to say that Guinn does not appear to offer strong support for an argument that the Church could not, if it chose to do so, proceed with a disciplinary council after receiving a letter of resignation.

Additionally, Guinn was decided by the Oklahoma Supreme Court so it is binding precedent only in Oklahoma.

So, a former member of the LDS Church might be able to sue and the Church might not be able to assert an immunity defense, at least in Oklahoma, but given the confidential nature of Church disciplinary proceedings, it is unlikely a plaintiff could ever prevail on a theory of invasion of privacy or intentional infliction of emotional distress.

[CASteinman]

If somebody resigns and the Court follows a wholly internal excommunication process . . . and the resigner fails to show up, why does the resigner care what the organization he now formerly belonged to does? If he shows up, doesn't he acknowledge his continued membership, his resignation notwithstanding?

Just why would a court have any interest in entertaining a suit for alleged damage coming from a wholly internal, non-public disciplinary proceeding?

This was exactly my thinking. And (thinking civil law) I could see no damages. But the courts have imposed the rule.

[CASteinman]

What is the difference between an institution removing the name of an individual from its records and an individual requesting their name removed? Isn't it effectively the same?

I think so. However it would remove a degree of "authority" from the active enemies of the Church to not be able to claim "I Left" but have to say "They kicked me out".

[Mark Beesley]

This was exactly my thinking. And (thinking civil law) I could see no damages. But the courts have imposed the rule.

What courts have imposed what rule?

One court--the Oklahoma Supreme Court--has ruled that Church defendants cannot raise a First Amendment immunity defense based on actions taken after a person has resigned membership. Is there more that I have not yet seen?

[CASteinman]

One court--the Oklahoma Supreme Court--has ruled that Church defendants cannot raise a First Amendment immunity defense based on actions taken after a person has resigned membership. Is there more that I have not yet seen?

Oh, is that what it said?... I need to reread it. Honestly.. I am still a bit sick and I am not really operating 100%. Sorry for the error.

[Whiskeypete]

One thing that seems to be missing in this discussion is the idea that excommunication should be looked at as part of the repentance process at opposed to being a punitive action.

[SeekingUnderstanding]

So, a former member of the LDS Church might be able to sue and the Church might not be able to assert an immunity defense, at least in Oklahoma, but given the confidential nature of Church disciplinary proceedings, it is unlikely a plaintiff could ever prevail on a theory of invasion of privacy or intentional infliction of emotional distress.

I am not an attorney but here is my take. Once you have expressed your desire to leave the church, by the first amendment you are no longer a member of the church (at least as determined by the OK court). Since you are no longer a member, any church court action could be subject to libel / slander concerns. While results of disciplinary councils are not widely published, they are communicated to the 15+ people who participate in the hearing, ward councils, PEC's, and bishoprics. If you live in a highly mormon community this could have a real impact on your relationships.

It appears that the church changed its policy as a result of a suit brought by Norman Hancock in 1985 (if you believe what you read on the internet anyway ). Norman was accused of adultery (which he denied). After a period of probation and alleged spying by his SP, Norman wanted to resign. He was instead ex'ed for adultery. He sued based on the following:

On 13 December he filed suit against the Church and President Beazer on the basis that he had requested that his name be removed and that instead he had been subjected to an "illegal" church court in a defamatory action that damaged his reputation for honesty, integrity, and morality, that President Beazer had slandered him in the court by making "false, malicious, and slanderous" accusations of "illicit, improper, and immoral conduct," had violated his privacy, had placed him "in a false light in the public eye," and had permanently injured his "reputation, business and standing in the community" by making a public announcement to the ward officers that circulated swiftly throughout the community.

Edited April 8, 2013 by SeekingUnderstanding

[Saints Alive]

If somebody resigns and the Court follows a wholly internal excommunication process . . . and the resigner fails to show up, why does the resigner care what the organization he now formerly belonged to does? If he shows up, doesn't he acknowledge his continued membership, his resignation notwithstanding?

Just why would a court have any interest in entertaining a suit for alleged damage coming from a wholly internal, non-public disciplinary proceeding?

Excommunication is a disciplinary per the Church's definition.

1. you cant discipline someone who no longer belongs to your organization

2. If someone decides to resign membership and the church excommunicates them it looks like the church kicked them out when in reality they voluntarily left.

[Mark Beesley]

I am not an attorney but here is my take. Once you have expressed your desire to leave the church, by the first amendment you are no longer a member of the church (at least as determined by the OK court). Since you are no longer a member, any church court action could be subject to libel / slander concerns. While results of disciplinary councils are not widely published, they are communicated to the 15+ people who participate in the hearing, ward councils, PEC's, and bishoprics. If you live in a highly mormon community this could have a real impact on your relationships.

It appears that the church changed its policy as a result of a suit brought by Norman Hancock in 1985 (if you believe what you read on the internet anyway ). Norman was accused of adultery (which he denied). After a period of probation and alleged spying by his SP, Norman wanted to resign. He was instead ex'ed for adultery. He sued based on the following:

Hancock filed his suit by himself without an attorney. The suit was settled and the settlement is sealed. The Church reportedly agreed to record a resignation rather than excommunication in its internal records. There is no court decision related to the case.

[tyler90az]

Email the Confidential Records Department and ask them your questions Mark. Make sure to report back here what they say. Thank You

msr-confrec@ldschurch.org

[SeekingUnderstanding]

Hancock filed his suit by himself without an attorney. The suit was settled and the settlement is sealed. The Church reportedly agreed to record a resignation rather than excommunication in its internal records. There is no court decision related to the case.

I don't think I said there was a court decision related to the case. I don't even know if Hancock could have won (I obviously have no legal background). I do think the church is worried about the potential liability of such lawsuits (on the grounds of libel / slander etc) and that is why they changed their policy after the Hancock suit. I think the current policy of marking the removed record with any potential concerns and forgoing the Church Court makes a lot of sense.

[SeekingUnderstanding]

If somebody resigns and the Court follows a wholly internal excommunication process . . . and the resigner fails to show up, why does the resigner care what the organization he now formerly belonged to does? If he shows up, doesn't he acknowledge his continued membership, his resignation notwithstanding?

Just why would a court have any interest in entertaining a suit for alleged damage coming from a wholly internal, non-public disciplinary proceeding?

I think the main question is how "wholly internal" the whole process is kept. In the suit brought by Hancock mentioned above, Hancock alleges it was not kept internal at all and that he suffered damages as a result. While I agree that a wholly internal process is not disagreeable, in real world practice it is difficult to keep things wholly internal.

[USU78]

What courts have imposed what rule?

One court--the Oklahoma Supreme Court--has ruled that Church defendants cannot raise a First Amendment immunity defense based on actions taken after a person has resigned membership. Is there more that I have not yet seen?

It was the publication of private information in a semi-public forum, over the pulpit, that was the issue not covered by the Ist Amendment, as I read the summary: You cannot, with impunity, publish personal information following resignation. The case says nothing about whether you can proceed with discipline internally.

LDS practice has long been: no publication from the pulpit, and "need to know" on who gets the whys and the whethers on an excommunication.

[Mola Ram Suda Ram]

Excommunication is a disciplinary per the Church's definition.

1. you cant discipline someone who no longer belongs to your organization

2. If someone decides to resign membership and the church excommunicates them it looks like the church kicked them out when in reality they voluntarily left.

1 Yes you can. May be the discipline ,ie the excommuncation, wont hurt as much but you can still discipline them.

2 You cannot logically argue this. At the very least they kicked the person out as he was leaving. Why could both not be done at the same time?

[smac97]

We see, from time to time, assertions about what the Church can or cannot do when someone requests excommunication.

If a persons writes a letter requesting that their name be removed from the records of the Church, it is asserted, the Church must act on that request and cannot hold a disciplinary council to excommunicate that person.

I would like to know if anyone can provide a citation to any court case where the Church has been subject to either an injunction or money damages for holding a disciplinary council following receipt of a letter of resignation.

You can offer your own legal opinions if you would like, but I really would like to see some published authority . . . either a trial level memorandum of decision, or an appellate court decision.

What the Church does in practice may not necessarily be compelled by law. It may simply be a courtesy.

And remember, the answer to the following question is always yes: Can I sue?

The relevant question is always, Will I win?

I looked into this a few years ago. My conclusion was that the LDS Church would probably be allowed to proceed with an excommunication if the process was started before the resignation letter.

I also think that the Church would prevail even if this wasn't the case, because A) the plaintiff in such a case would need to be able to show "damages," and the Church conducting a private meeting where a person's status relative to the Church is discussed probably doesn't create cognizable legal injury; and B) the contrary position (that the government can regulate what can and cannot be said during the Church's ecclesiastical meetings) raises all sorts of First Amendment issues.

I'm busy now, but I'll try to get back to this later.

Thanks,

-Smac

[SeekingUnderstanding]

1 Yes you can. May be the discipline ,ie the excommuncation, wont hurt as much but you can still discipline them.

This is true, but the excommunication is not exempt anymore under the first amendment (and hence is much more open to lawsuits).

[Saints Alive]

2 You cannot logically argue this. At the very least they kicked the person out as he was leaving. Why could both not be done at the same time?

Logically, and legally, the moment you inform ANY representative of the Church that you resign your membership you are legally and officially no longer a member. You can't be kicked out of an organization you don't belong to. And then there is the whole slander issue.

[smac97]

Okay, here's the skinny:

1. Guinn was decided in 1989 by the Oklahoma Supreme Court. Here's a link to the text of that decision.

2. Guinn involved claims for the torts of "outrage" and "invasion of privacy" That is, the First Amendment did not protect the speech of the church in that case, thus letting Guinn sue under these theories.

3. The behavior of the church elders in Guinn would pretty much never be replicated in an LDS context (since disciplinary hearings are not publicized, and are not conducted in an "outrageous" manner). So those tort theories would not be available. I am hard-pressed to think of a tort theory which would be available where a person filed suit over an LDS disciplinary hearing.

4. Guinn has limited applicability, as it is only precedent in Oklahoma and it applied to a set of facts which, as noted above, would probably not be replicated in the LDS context. Moreover, a subsequent decision, also from the Supreme Court of Oklahoma, addresses the same general issue but involving claims against the LDS Church. This case, Hadnot v. Shaw, is therefore substantially more "on point" that Guinn. "]Here is a link to the Hadnot case.

5. In Hadnot, the Oklahoma Supreme Court specifically addressed whether the Guinn case applied to the following facts:

A. The plaintiffs were sisters and were formerly members of the LDS Church in Chickasha, Oklahoma.

B. The defendants were the Church, the bishop and his counselors.

C. Parishioners were each notified of and asked to be present at a Church disciplinary hearing called to determine their membership status. Neither attended. Following the hearing both parishioners received letters from the Church. The letter addressed to parishioner Hadnot was placed in her mailbox. This letter, which was opened and read by her husband, informed parishioner that the Church court determined her membership should be terminated because of her alleged fornication. The other sister was personally handed a letter also signed by a lay leader, which informed her of the Church court's decision to remove her from membership.

D. The sisters filed suit, apparently for "harm from wilful or grossly negligent delivery of the expulsion letters to parishioners" based on "(a) libel, (b) intentional or negligent infliction of emotional distress and © invasion of privacy (public disclosure of private facts, intrusion upon seclusion, and placing parishioners in a false light before the public)"; and "harm from communicating the letters' contents to the public" based on "(a) slander, (b) intentional or negligent infliction of emotional distress and © invasion of privacy (public disclosure of private facts, intrusion upon seclusion, and placing parishioners in a false light before the public)."

E. Summary judgment was granted in favor of the defendants.

F. One significant factual difference is that the Church in

Guinn

believed that a church member did not have the right to dissociate from it ("According to their beliefs, a member remains a part of the congregation for life. Like those who are born into a family, they may leave but they can never really sever the familial bond.). This is a radical, even dispositive, distinction between the situation in

Guinn

compared to the beliefs and practices of the LDS Church.

6. The Oklahoma Supreme Court specifically found that "the trial court correctly applied Guinn." Here are the specific excerpts of the decision, with commentary from yours truly:

"The church's jurisdiction exists as a result of the mutual agreement between that body and its member," and "(t)hat relationship may be severed freely by a member's positive act at any time."

I agree with this principle wholeheartedly.

"Until it is so terminated, the church has authority to prescribe and follow disciplinary ordinances without fear of interference by the state."

I agree with this principle wholeheartedly.

"The First Amendment will protect and shield the religious body from liability for the activities carried on pursuant to the exercise of church discipline. Within the context of ecclesiastical discipline, churches enjoy an absolute privilege from scrutiny by the secular authority."

I agree with this finding, and am grateful for it.

Now here is where it gets interesting:

"The church privilege extends in this case to activities or communications which occurred after excommunication if these may be termed as mere implementation of previously pronounced ecclesiastical sanction which was valid when exercised — i.e., that it was declared when Church jurisdiction subsisted."

In other words, if the LDS Church commences disciplinary proceedings, its right to continue those proceedings, and its right to enjoy the constitutional protections associated described above, then the individual cannot short circuit those proceedings by resigning.

"Within the concept of protected implementation are not only the religious disciplinary proceeding's merits and procedure but also its end product — the expulsion sanction."

In other words, the Church has the right to get to the "end product" of a disciplinary proceeding, and to do so without surrendering its constitutional protections.

"While excommunication would put an end to jurisdiction over any further offense, it does not abrogate the consequences flowing from the previously announced Church judicature."

Well said, Okies, well said.

"Parishioners admit that at no time during or after the proceedings at issue did they withdraw their Church membership. Thus the Church retained full subject matter and personal jurisdiction to adjudicate the two disciplinary cases against the parishioners. Upon excommunication, and while a parishioner remains under the church discipline, the ecclesiastical tribunal impliedly relinquishes the power of judicature over the parishioner for any other or future conduct, yet retains cognizance over the previously adjudicated matter for the purpose of implementing any extent ecclesiastical sanction."

I wish I could write like this.

The Court then shifts gears a bit:

"Sovereign only within her own domain, the church has no power over those who live outside of the spiritual community. The church may not be forced to tolerate as a member one whom it feels obliged to expel from its flock. On the other hand, no citizen of the state may be compelled to remain in a church which his conscience impels him to leave."

I quite agree with this reasoning.

"The Free Exercise Clause prohibits civil courts from inquiring into any phase of ecclesiastical decisionmaking — its merits as well as procedure."

This is generally referred to as the "Ecclesiastical Abstention" doctrine.

"In sum, if a matter lies within ecclesiastical cognizance, the church stands protected from any interference by the Free Exercise Clause. If it oversteps proper bounds, it will run afoul of the Establishment Clause insofar as its use of the state power may be in furtherance of a religious cause. As stated in Prince v. Commonwealth, '... religious activities which concern only members of the faith are and ought to be free — as nearly absolutely free as anything can be.'"

Just so.

"At the point when the church-member relationship is severed through an affirmative act either of a parishioner's withdrawal or of excommunication by the ecclesiastical body, a different situation arises. In the event of withdrawal or of post-excommunication activity unrelated to the church's efforts at effectuation of valid judicature, the absolute privilege from tort liability no longer attaches."

Pretty clear, I think.

"Any action at this point, if it is to be protected, must be justified by others means. Under these circumstances conditional privileges may be applicable. The church may take such steps as are reasonable to protect itself and to complete the process occasioned by the withdrawal or other termination of the consensual relationship with a member."

'Nuff said.

Hadnot rather clearly establishes what would happen if Guinn is applied in an LDS context. That is, the Church and its SOP for disciplinary proceedings would be in safe waters.

Thanks,

-Smac

[smac97]

Logically, and legally, the moment you inform ANY representative of the Church that you resign your membership you are legally and officially no longer a member. You can't be kicked out of an organization you don't belong to. And then there is the whole slander issue.

Well no. Not in Oklahoma, anyway (see my summary of the Hadnot case, supra).

Thanks,

-Smac