Update on Huntsman Lawsuit: Ninth Circuit Reverses Trial Court

[smac97]

12 minutes ago, Analytics said:

The Church’s attorneys say there is no duty owed. The plaintiffs’ attorneys say there is. Personally, I don’t know.

The law in Utah says that there is no duty owed.

Thanks,

-Smac

[Analytics]

4 hours ago, Calm said:

Given the complexity of law, I would not depend on ChatGPT to determine anything in a legal sense as of yet.  

Of course not. I didn’t ask ChatGPT to make a legal ruling on the case, only to summarize the plaintiffs actual arguments. When I read their specific arguments, they appear to be secular in nature. ChatGPT agrees with me. 

4 hours ago, Calm said:

If the way donations are made/directed are tied to the missions of the Church, which are of a religious nature, how can that be a secular*** thing?

The plaintiffs are merely asking the Church to be honest to donors about how donations will be used. The Church can do anything it wants with its money, but it has to be honest about how it is used. Whether or not they promised that no tithing would be used to fund the mall is something that a court can evaluate without judging the Church’s religious doctrine. Whether or not donations were used to fund the mall is something that a court can evaluate without judging the Church’s religious doctrine. 

4 hours ago, Calm said:

For example, building temples and doing temple work is part of our missions to perfect the Saints and redeem the dead.  And this requires a great deal of funding (not only building and maintaining temples, but the Family History Library and everything attached to collecting and extracting records and keeping our own records of family history and temple work done).

The plaintiffs thought their donations would be going towards this kind of thing and not to buying tens of billions of shares of stock. The Church is free to buy stock if that’s what their religious mission is, but according to the plaintiffs, they have an obligation to be transparent about that so that donors can make an informed decision about whether or not to donate.

4 hours ago, Calm said:

On a purely secular basis, there is no solid purpose for funding temple work past the marriages of living patrons (there is a civil aspect only for living marriages, the government does not get informed about baptisms of any type or proxy sealings) because all other rituals there are performed to meet the requirements of religious beliefs.  Therefore any justification of funds directed towards the temple will be almost always religious in nature (we have temples to baptize and seal our dead can in no way be seen as a secular statement, imo).

***denoting attitudes, activities, or other things that have no religious or spiritual basis (google)

The actual lawsuit merely argues that the Church should be transparent with donors so that donors can make an informed decision about whether or not to make donations.

4 hours ago, Calm said:

Just to clarify, what you see is being required is only what amounts to accounting…where did the money go, not what the money went there?  If that is not so, can you clarify what you mean by “how donations are used” because “how” is ambiguous here, it can speak to nature (it is used to describe the type of project as in secularly or religiously or for specifics, City Creek or missionary program).

But are the plaintiffs also not asking the judge to decide whether or not funding a profit making venture such as City Creek can be part of the mission of the Church?

No, they are not asking the judge to decide whether or not funding a profit making venture such as City Creek can be part of the mission of the Church.

Let me repeat that in bold: No, they are not asking the judge to decide whether or not funding a profit making venture such as City Creek can be part of the mission of the Church.

They are merely expecting the Church to be honest with donors about how money will be used so that the donors can make informed decisions about whether or not to donate.

4 hours ago, Calm said:

Is it not part of the mission of the Church to stay functional, to have funds available to support what it sees as redeeming the dead, perfecting the Saints, etc.  If so, investing of funds to build wealth that can sustain the Church and be used for specific projects has a religious purpose. 

The Church’s mission can be whatever they want it to be. But shouldn’t they be honest with donors so that they can make informed decisions about whether or not to donate?

[Analytics]

Just now, smac97 said:

The law in Utah says that there is no duty owed.

Thanks,

-Smac

A plain reading of the law says there is. 

[smac97]

9 minutes ago, Analytics said:

A plain reading of the law says there is. 

Okay.  Please provide such a reading.

[Analytics]

 

17 minutes ago, smac97 said:

I've said quite a bit about the doctrine and why it applies. 

And what you said has been entirely unpersuasive because it rests on taking a snipet of the actual lawsuit out of context.

17 minutes ago, smac97 said:

Judge Shelby applied it in Gaddy.  The Church has invoked it.  There is no way Judge Shelby can avoid it as you have been trying to do.  It is facially relevant and applicable.

I would expect Judge Shelby to do what I have done and evaluate the actual lawsuit and not merely rely on the Church’s mischaracterization of it as you do. I fully expect him to say that it isn’t applicable because the actual lawsuit is secular in nature--the actual lawsuit is about secular issues of financial transparency, not religious dogma.

17 minutes ago, smac97 said:

Now, it may be that Judge Shelby will examine the MDL lawsuit under the rubric of this doctrine and find it (the doctrine) inapposite.  I think the likelihood of this, though, is very low. 

The plaintiffs have a big team of excellent attorneys and if you were to read their actual lawsuit, you’d see that they bend over backwards to ensure that their actual claims are secular in nature. The fact that you need to take a fraction of a sentence out of context to make the lawsuit appear religious proves the point. If I had to bet, I think this suit will be dismissed, but not because of ecclesiastical abstinence arguments.

[Calm]

18 minutes ago, Analytics said:

. Whether or not they promised that no tithing would be used to fund the mall is something that a court can evaluate without judging the Church’s religious doctrine.

But doesn’t that entail the court defining what tithing is since the Church said no tithing was used and as far as I know stands by that statement?

And since they did not pull so much money out of the fund that it ever dropped below the amount they put in, if someone says ‘tithing was put in the reserve fund, you used the reserve fund, therefore tithing was used’, the Church can say ‘we never touched the principal and only that is tithing’.

Quote

The plaintiffs thought their donations would be going towards this kind of thing and not to buying tens of billions of shares of stock.

So they would have been okay with the tithing sitting in a low interest bank account earning diddly while waiting to be used rather than in a higher yield, but relatively risk free investment till needed?

Quote

according to the plaintiffs, they have an obligation to be transparent about that so that donors can make an informed decision about whether or not to donate.

And where is that duty claimed by the Church or imposed by law?

Edited September 22, 2024 by Calm

[Analytics]

7 minutes ago, smac97 said:

Okay.  Please provide such a reading.

13-22-23 Fiduciary capacity.

Every person soliciting, collecting, or expending contributions for charitable purposes, and every officer, director, trustee, or employee of any person concerned with the solicitation, collection, or expenditure of those contributions, shall be considered to be a fiduciary and acting in a fiduciary capacity.

Repeating what I’ve said over and over, I think the Church makes some excellent arguments, and their arguments about what this actually means (i.e. the Church says "But contrary to Plaintiffs’ suggestion, this provision does not say charities owe a fiduciary duty to donors (and no court has so held); rather, it recognizes that certain people owe a fiduciary duty to the charity.”)

The Church’s reading of this rings true to me, and I would expect them to win on this point. But, I want to withhold judgement until I see how the plaintiffs respond. In either case a plain reading of the text says that a “fiduciary duty” is owed to somebody, and that is all I was saying above.

 

[Calm]

19 minutes ago, Analytics said:

But shouldn’t they be honest with donors so that they can make informed decisions about whether or not to donate?

There is a difference between honesty and transparency.  I can be completely honest while saying nothing.  The plaintiffs have not shown the Church has been dishonest about where donations go.

As far as transparency, a “should” question sounds less legal and more moral and therefore not appropriate for a lawsuit.

For a lawsuit, the question needs to be imo, does the law require that level of transparency (as far as I can tell from smac’s quotes it does not) and has the Church committed/contracted to that level of transparency (big “no” there, imo).

[Calm]

2 minutes ago, Analytics said:

13-22-23 Fiduciary capacity.

Every person soliciting, collecting, or expending contributions for charitable purposes, and every officer, director, trustee, or employee of any person concerned with the solicitation, collection, or expenditure of those contributions, shall be considered to be a fiduciary and acting in a fiduciary capacity.

Repeating what I’ve said over and over, I think the Church makes some excellent arguments, and their arguments about what this actually means (i.e. the Church says "But contrary to Plaintiffs’ suggestion, this provision does not say charities owe a fiduciary duty to donors (and no court has so held); rather, it recognizes that certain people owe a fiduciary duty to the charity.”)

The Church’s reading of this rings true to me, and I would expect them to win on this point. But, I want to withhold judgement until I see how the plaintiffs respond. In either case a plain reading of the text says that a “fiduciary duty” is owed to somebody, and that is all I was saying above.

 

But what is that fiduciary duty as it is not defined/specified in that quote.  Where does the law say a fiduciary duty requires that level of transparency?

Edited September 22, 2024 by Calm

[Analytics]

8 minutes ago, Calm said:

But doesn’t that entail the court defining what tithing is since the Church said no tithing was used and as far as I know stands by that statement?

That is one of Smac’s longstanding arguments. I would argue that everything the Church has said on this needs to be taken in context. The issue isn’t about the religious and doctrinal definition of “tithing.” The issue is how a reasonable member would interpret the Church’s assurances.

8 minutes ago, Calm said:

And since they did not pull so much money out of the fund that it ever dropped below the amount they put in, if someone says ‘tithing was put in the reserve fund, you used the reserve fund, therefore tithing was used’, the Church can say ‘we never touched the principal and only that is tithing’.

Those are secular issues the courts can evaluate without stepping on the church’s right to believe whatever religious things it wants to.

8 minutes ago, Calm said:

So they would have been okay with the tithing sitting in a low interest bank account earning diddly while waiting to be used rather than in a higher yield, but relatively risk free investment till needed?

I don’t think so.

 

[Calm]

5 minutes ago, Analytics said:

Those are secular issues the courts can evaluate without stepping on the church’s right to believe whatever religious things it wants to.

I think I agree if the claim is only the amount of the donation is tithing because that can easily be shown to be defined as tithing by showing tithing receipts and the donation being listed in the tithing slot.

But if the attempt is to include in tithing the interest that comes from the donations, unless the court or the plaintiffs have documents that label the EPA funds as “tithing” and only “tithing”, thus demonstrating that is what the Church defined the fund as, that seems to get into a religious definition as to what tithing is because if the Church says the donations only are tithing and court disagrees, it has to define what tithing is….which is a religious exercise because tithing is a religious label and duty.

Edited September 22, 2024 by Calm

[Calm]

7 minutes ago, Analytics said:

I don’t think so.

If the Church was not ready to use tithing donations, what is the expectation?

[Analytics]

1 minute ago, Calm said:

I think I agree if the claim is on,y the amount of the donation is tithing because that can easily be shown to be defined as tith8ng by showing tithing receipts and the donation being listed in the tithing slot.

But if the attempt is to include in tithing the interest that comes from the donations, that seems to get into a religious definition as to what tithing is because if the Church says the donations only are tithing and court disagrees, it has to define what tithing is….which is a religious exercise because tithing is a religious label and duty.

It seems that in the context of the statement in question, “tithing” is shorthand for “donations that were made under the ‘tithing’ designation.” After all, if somebody donates $100 to the Church and marks it as “tithing” on the slip, is the Church going to treat that $100 differently if it finds out that from a doctrinal perspective it wasn’t really  “tithing” because the donor wasn’t paying a full 10% of his increase?

From my perspective it is an accounting issue, not a doctrinal one.

[Analytics]

1 minute ago, Calm said:

If the Church was not ready to use tithing donations, what is the expectation?

I think the expectations are that reserve funds should be roughly in the neighborhood of 3-months to 3-years of annual expenses. If the Church needed to save way more than that, it should disclose what it’s doing to the donors.

[Calm]

12 minutes ago, Analytics said:

the Church needed to save way more than that, it should disclose what it’s doing to the donors.

Why?  What difference would it make in regards to tithing?

Edited September 22, 2024 by Calm

[Calm]

Analytics, I am guessing these feel like no brainer obvious points to you and it is frustrating that I am not getting it…I am guessing this because I feel that way myself some, lol.  I appreciate you playing Sisyphus here with this conversation. 
 

Smac too.  His stuff is very informative.

Both of you doing the grunt work of digging through the lawsuit, etc  

Each post adds nuances for me, brings attention to things I pushed aside as unimportant, etc.  Appreciate the effort and the willingness to respond to my questions and observations when you likely feel it’s been asked and answered.  

Edited September 22, 2024 by Calm

[webbles]

32 minutes ago, Analytics said:

I think the expectations are that reserve funds should be roughly in the neighborhood of 3-months to 3-years of annual expenses. If the Church needed to save way more than that, it should disclose what it’s doing to the donors.

I looked around online to try and understand what the possible fiduciary duty the church might have to donors.  The Utah code (13-22-23) doesn't really state whether the duty is to donors but I did discover that California had a more explicit law, Section 17510.8 of the Business and Professional Code

Quote

Notwithstanding any other provision of this article, there exists a fiduciary relationship between a charity or any person soliciting on behalf of a charity, and the person from whom a charitable contribution is being solicited. The acceptance of charitable contributions by a charity or any person soliciting on behalf of a charity establishes a charitable trust and a duty on the part of the charity and the person soliciting on behalf of the charity to use those charitable contributions for the declared charitable purposes for which they are sought. This section is declarative of existing trust law principles.

So in California, there is a fiduciary relationship between the Church and any donors to the Church.  Since it is explicitly stated, I thought maybe there would be some explanations of what exactly that entails.  I found https://www.adlercolvin.com/wp-content/themes/adlercolvin/pdf/Charitable-Solicitation-Regulation-Frequently-Asked-Questions.pdf which is from a California law firm.  In the question 3, it answers what exactly must be disclosed.  It doesn't name anything about reserve funds.  In question 5, its answer does say "In general, charities and their fundraisers may not misrepresent the purpose of the charity or the nature, purpose, or beneficiary of a solicitation." but I don't see how a reserve (of any size) would be misrepresenting anything.

I also found https://oag.ca.gov/sites/all/files/agweb/pdfs/charities/publications/guide-webinar.pdf which is from California's Attorney General.  On page 13, it says "Once funds have been donated for a specific purpose, charities have a fiduciary duty to spend those funds only on that purpose. (E.g., Bus. & Prof. Code, § 17510.8."  I don't see how a reserve fund would cause a problem there either.  Tithing donations are done for "building up the church" and a reserve fund fits that bill.

So, I'm not sure there is any fiduciary duty to disclose anything about the reserve fund.

[Calm]

20 minutes ago, webbles said:

in California, there is a fiduciary relationship between the Church and any donors to the Church.

Sometimes laws differentiate between a charity and a church.

Tithing dollars also are not seen by our church as the same as a charity donation, which would fall in line with donations to the humanitarian fund and my guess also things like the temple patron fund and other funds that are not taught to be a duty for a faithful member.  Not sure where fast offerings fall as they are also fulfilling a commandment, but left much more to our discretion as well as being identified as for a humanitarian purpose.

Edited September 22, 2024 by Calm

[Calm]

4 hours ago, Calm said:

Why?  What difference would it make in regards to tithing?

I would love to hear your response to this, Analytics.  I think the difference between “tithing” and “charity donation” is massive, but also a religious one.  I think that because as far as our teachings are concerned where the tithing gets spent is irrelevant to whether or not we pay it as faithful members….there is no qualification attached to the commandment such as “you only need to pay tithing as long as you agree with how it will be spent”.  In fact the term “pay tithing” rather than “donate tithing” demonstrates the very different role tithing and charity hold in our doctrine.  Also any funds designated as tithing by the member aren’t going to be relabeled as fast offerings just because those funds may eventually end up covering welfare expenses.  Iow, it’s not the end result that identifies something as tithing.  It is the intent of the person paying it and the Church receiving it (a nonmember may donate money to the Church as their way to fulfill the tithing commandment in the scripture,  but the Church will not receive it as such even if they end up using that amount in identical ways as the tithing paid by members.  (And I assume the nonmember will also get blessings from doing so as rich as any member who sacrifices at the same level as the nonmember.)

It seems the Church’s seeing tithing and charity donations differently would be irrelevant to the law though since tithing is a voluntary payment.  Still in one country it does make a difference, Australia, as that country sees the usual method of paying tithing as more of a service fee.****  I am uncertain if it makes a difference in the US.  If it does, seems like that would be a religious question and therefore out of the purview of the State to define what is tithing and what is a donation…

This was a ramble, but I meant it to explain why I am interested in the why it makes a difference where the tithing dollars go to the plaintiffs.

****The Church, however, is more flexible and is fine with tithing of Australian Saints going to a fund that is then used for overseas developing countries.  Which to me means tithing is the act of me giving to God’s work as he has directed me to 1/10th of my increase (however you want to define it, I like it being income as that seems more appropriate than just 1/10 of the increase of my total wealth because if I am greedy one year and spend a lot on low value things, I may have very little total increase; seems inappropriate to basically keep money from God because I have been greedy).  Tithing is not the act of the Church taking that money and doing anything with it, so if it eventually goes to the Church’s work of maintaining chapels, missionary etc, great or if it goes to fund the BYUs as it might have when we lived in Canada, wonderful, or if it goes straight to humanitarian projects, all work for me because tithing is what happens on my end.  The only thing I see the Church doing with tithing is receiving it.  Once it is in the Church’s possession, it is no longer tithing in my view.

The Church doesn’t always talk about it that way though, they say things along the lines of “your tithing dollars at work”, so I get why others have a broader view of tithing….though I still can’t fathom why someone would assume “earned interest” from “tithing” is also “tithing” or would assume the Church sees it that way since when discussed they were differentiated.

Edited September 23, 2024 by Calm

[JustAnAustralian]

5 hours ago, smac97 said:

"Parties friendly to the church's legal position."  I suspect these briefs are from other religious groups who don't agree with the Church on some doctrinal/religious issues, but are entirely on its side as to the legal issues on display in Gaddy.

Yes. General Conference of Seventh-Day Adventists, Jewish Coalition for Religious Liberty and National Association of Evangelicals. (per Court Listener)

[smac97]

18 hours ago, smac97 said:

If livestreaming technology keeps its promise, interested Utahns will be able to watch the historic arguments scheduled this week remotely, with one session before the 10th U.S. Circuit Court of Appeals starting Monday at 9 a.m. MDT...

 

I listened to the 9:00 a.m. session just now.  My notes:

1. From the YouTube description: 23-4110 UT Gaddy, et al., Appellants v. Corp. of the President of the Church of Jesus, et al.; Becket Fund for Religious Liberty,et al., Amici Curiae (General Conference of Seventh-Day Adventists, et al. to participate in oral argument as Amici Curiae with 3 minutes ceded by Appellee.)

The Church is the "Appellee" here, and it has given three minutes of fifteen minutes of oral argument to the General Conference of Seventh-Day Adventists to allow it to have a say (of sourts) in the proceedings.  The SDA has filed a "Friend of the Court" brief, which is submitted by "an individual or organization that is not a party to a legal case, but that is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case."

2. Kay Burningham spoke first.  Putative class action lawsuit.  I missed the first few minutes.  She wants to address the "brown stone in a hat" issue (referring to how The Book of Mormon was translated) and also as to the issue of how tithing was spent.  She spoke of "we" as in former members of the Church.  She says the Church Autonomy doctrine does not apply because, per Watson, two showings are required: 1) church can believe whatever they want as long as it is not against public morals, and 2) people who join a church do so with implied consent. 

3. Judge asked why it matters whether leaders of the Church believe in church doctrine?  She says because the leaders say they will not lead the Church astray.  He asked: "If the church leaders do believe it {the doctrines}, do you lose your lawsuit?"  She said "Yes."  The judge then said "Oh, I would have thought that even if the church leaders do believe the doctrines, there would still be room for a fraud/RICO claim re: negligent misrepresentation."  She then qualified her "Yes," and then went on to talk about how The Book of Mormon was translated, and that what the leaders said about the translation was "not true."  Judge says: "When you say 'not true,' we're headed into deep waters" (Church autonomy doctrine).  Another judge: Most religious leaders have doubts on occasion.  If so, then you can always avoid the Church Autonomy Doctrine by claiming the leader did not, in the moment, believe it."  She says "Facts are different from beliefs."  Facts are empirically provable, beliefs are not.  You need to sincerely believe facts, and the stone is evidence of fraud.  They commissioned artwork re: Joseph Smith translating from the plates.  Judge: But nobody has repudiated the Gold Plates, right?  Kay: Pres. Nelson told us that the plates were translated via stone-in-a-hat method and not directly from Joseph looking at the plates.

4. Judge: Re: Use of tithes, required for membership?  Kay: For full membership (going to temple), yes.  Judge: My impression is that plaintiffs claimed they wouldn't have tithed had they known about City Creek funding.  Would they have left the Church?  Kay: They would not have tithed, or they would not have reduced their tithes.  Judge: Judge Shelby held that allegations re: fraud were not pleaded with particularity.  In contrast, Huntsman has been very precise.  Your plaintiffs are not as precise.  Judge: Is tithing the Church's sole source of income?  Kay: Yes, but also no.  There are profit-making ventures.  

5: Mr. Jordan, the Church's attorney, spoke.  Appellants are asking to reverse for a jury trial re: whether Joseph Smith saw 1 or 2 personages in a vision, whether he used a seerstone, etc.  Judge: How does this case require adjudication of church doctrine?  I think they're saying there are two versions.  We don't care which one is true.  We would have headed for the exit had we known of two versions?  Jordan: They are asking for an orthodoxy trial.  Judge: But we don't care which version is true.  They are saying a seerstone was used.  The Church agrees wtih this, and this was not revealed for decades.  Plaintiffs are saying if they had known this, they would have walked.  Jordan: We don't dispute that the Book of Mormon is true, that it was translated by the gift and power of tone.  We dispute that it was translated by a clear stone or an opaque stone.  The inconsistency the plaintiffs allege is A) use of a seerstone, or B) artwork depicting Joseph looking at gold plates.  They are asking the court to "intrude on the miraculous, on the matters of faith."  Church history is  full of references to the seerstone, to the Urim & Thummim.  Judge: That is not their argument.  They are saying that they weren't told about the seerstone, and that this omission was fraudulent.  Jordan: They are asking the court to prescribe how the Church should teach its doctrine.  They want the Court to tell the Church what to emphasize and what to teach.  Judge: Is there any limit on what a Church can conceal about its beliefs and avoid RICO.  Jordan: There is no limit.  

6. Judge: Switching to Church Autonomy Doctrine: Do you agree that the plaintiffs can bring a RICO claim based on statements re: how tithing funds were used, whether tithing funds were directly sent to fund City Creek.  Judge: Plaintiffs don't have to plead "reliance" with particularity.  Judge: They are alleging that tithing ("principal") was used.  Jordan: This all comes down to a definition of tithing.  It's not earning on bond coupons.  It's not stock dividends.  it is a donation from an individual.  Pres. Hinckley differentiated between tithing and earnings on invested funds.  Judge: What about an affidavit in the record?  Jordan: That affidavit says the man, David Nielsen, attended a meeting at EPA and said "We think of everything as tithing."  That's an expression of an executive, not a church leader, that all of the funds under management.  Judge: Is the affidavit enough to allege that "tithing" was directly used for commercial development, in contravention of what the church has said?  Jordan: No.  There is no allegation in the record about tithing itself having been used, just earnings on tithing.  Judge: I will look again.  I think it is in the affidavit, and not fully in your brief.  Jordan: They are trying to conflate the two (tithing and interest).

7. Gene Sheir: I represent three religious groups.  Nearly every religious group will face lawsuits like this one if the lawsuit proceeds. Disaffected Catholics can sue their Church.  This would turn on theological issues and what church leaders actually believe.  Judge: But this case is about concealment.  Sheir: People accuse religious groups of hiding information all the time, particularly as to religious issues.  If those claims can proceed as RICO claims, the floodgates are open.  The Court should respond as it did in Bryce, which is that the issue must be wholly secular.  If even partially religious, then CAD applies.  Judge: If a church leader has said that tithing will not be used.  Sheir: "Tithing" is an inherently religious term.  Judge: How is it dangerous to religious freedom to tell churches that they need to tell their members where the money is going?  Sheir: This conversation we are having illustrates the danger.  This court should not define "tithing" and impose it on the Church.

Ran out of time.

In sum: The Tenth Circuit hammered both sides.  This is pretty standard stuff.

Thanks,

-Smac

[Analytics]

20 hours ago, smac97 said:

I think your "loaded and risible" questions are designed to allow you to sidestep the substantive law, and to provoke and offend rather than advance a reasoned, clinical evaluation of the MDL lawsuit.

I've said quite a bit about the doctrine and why it applies.  Judge Shelby applied it in Gaddy.  The Church has invoked it.  There is no way Judge Shelby can avoid it as you have been trying to do.  It is facially relevant and applicable.

Now, it may be that Judge Shelby will examine the MDL lawsuit under the rubric of this doctrine and find it (the doctrine) inapposite.  I think the likelihood of this, though, is very low. 

Thanks,

-Smac

I've been thinking more about this and reconsidering whether I’m allowing my own biases to get in the way of a clinical analysis of the situation. 

I still think I am the one offering a more clinical analysis of the alleged facts and substantive law, and that you are the one sidestepping the actual issues by misrepresenting the nature of the lawsuit and how the law applies in this situation.

You are correct that Judge Shelby applied the Ecclesiastical Abstention Doctrine to Gaddy. However, judge Shelby’s analysis is pretty much identical to my own analysis and  to ChatGPT's.

Judge Shelby concluded that with regards to the alleged lies about how tithing would be spent, Gaddy's theory “is based on a secular dispute” and that "the church autonomy doctrine does not apply as a defense."

Here is what Judge Shelby said in context:

As alleged in the Amended Complaint, the court concludes Gaddy's third alternative civil RICO theory is based on a secular dispute concerning statements by Church leadership about the specific ways tithing, once received, would in fact be spent. Justice Jackson provided a helpful example in his dissenting Ballard opinion in the context of criminal convictions based on misrepresentations of religious beliefs. There, he distinguished liability for fraud based on religious expressions with liability based on the misuse of donations, stating: "I do not doubt that religious leaders may be convicted of fraud for making false representations on matters other than faith or experience, as for example if one represents that funds are being used to construct a church when in fact they are being used for personal purposes."

This example highlights the distinction between the religious teachings behind the principle of tithing, and the Church's statements to its members about its use of tithing proceeds.

Here, Gaddy does not challenge the Church's tithing doctrine or teachings related to it. The court does not read her Amended Complaint to advance a claim that the doctrine is false. Gaddy instead points to specific factual statements allegedly made by the Church through its representatives concerning the Church's use of tithing funds and alleges those statements are false. The inquiry required to adjudicate this claim does not implicate religious principles of the Church or the truth of the Church's beliefs concerning the doctrine of tithing. This claim further does not require the court to determine whether the Church or its members were acting in accord with what they perceived to be the commandments of their faith. Gaddy has instead challenged secular representations concerning the use of money received by the Church. While the statements were made by Church officials, the church autonomy doctrine does not apply as a defense. The Church has not asserted any other challenge to Gaddy's RICO claim based on this alternative theory of liability. Accordingly, Gaddy's RICO claim based only on this alternative theory survives the Church's Motion to Dismiss...

The Motion [to dismiss] is DENIED as to Gaddy's third alternative civil RICO theory of liability relating to alleged misrepresentations concerning the Church's use of tithing.

(page 17 of Shelby’s July 28, 2021 decision)

What am I missing here? Why do you think the chances are "very low" that Judge Shelby will be consistent and apply the law in this class action case in the same way he did in Gaddy?

Edited September 23, 2024 by Analytics

[Analytics]

17 hours ago, Calm said:

I would love to hear your response to this, Analytics.  I think the difference between “tithing” and “charity donation” is massive, but also a religious one.

What do you think about the way Judge Shelby explained it in the post I just made to Smac?

That is how I see it.

[Calm]

15 minutes ago, Analytics said:

What do you think about the way Judge Shelby explained it in the post I just made to Smac?

That is how I see it.

I didn’t see where Shelby addressed the difference between tithing and donations, where with the second there is a possible right to know where those funds go, but none with the former.  Unless you mean this part:

Quote

claim further does not require the court to determine whether the Church or its members were acting in accord with what they perceived to be the commandments of their faith

I have not anticipated that the doctrine that tithing is not a gift or donation, but a returning to God of what is his coupled with the inference made by many that the devout member would of course pay tithing whatever the use of the tithing is and therefore the member need not know what tithing is spent on nor is it a problem if spent on others things would be argued in the court. My guess is the law sees no difference since they can’t determine or shouldn’t if God really commanded such or not.  Plus that would be an argument on whether the Church is required to be transparent or not and not if the Church was accurate with the details it chose to disclose even if there was no obligation to do so.

Edited September 23, 2024 by Calm

[juliann]

1 hour ago, smac97 said:

 

I listened to the 9:00 a.m. session just now.  My notes:

1. From the YouTube description: 23-4110 UT Gaddy, et al., Appellants v. Corp. of the President of the Church of Jesus, et al.; Becket Fund for Religious Liberty,et al., Amici Curiae (General Conference of Seventh-Day Adventists, et al. to participate in oral argument as Amici Curiae with 3 minutes ceded by Appellee.)

The Church is the "Appellee" here, and it has given three minutes of fifteen minutes of oral argument to the General Conference of Seventh-Day Adventists to allow it to have a say (of sourts) in the proceedings.  The SDA has filed a "Friend of the Court" brief, which is submitted by "an individual or organization that is not a party to a legal case, but that is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case."

2. Kay Burningham spoke first.  Putative class action lawsuit.  I missed the first few minutes.  She wants to address the "brown stone in a hat" issue (referring to how The Book of Mormon was translated) and also as to the issue of how tithing was spent.  She spoke of "we" as in former members of the Church.  She says the Church Autonomy doctrine does not apply because, per Watson, two showings are required: 1) church can believe whatever they want as long as it is not against public morals, and 2) people who join a church do so with implied consent. 

3. Judge asked why it matters whether leaders of the Church believe in church doctrine?  She says because the leaders say they will not lead the Church astray.  He asked: "If the church leaders do believe it {the doctrines}, do you lose your lawsuit?"  She said "Yes."  The judge then said "Oh, I would have thought that even if the church leaders do believe the doctrines, there would still be room for a fraud/RICO claim re: negligent misrepresentation."  She then qualified her "Yes," and then went on to talk about how The Book of Mormon was translated, and that what the leaders said about the translation was "not true."  Judge says: "When you say 'not true,' we're headed into deep waters" (Church autonomy doctrine).  Another judge: Most religious leaders have doubts on occasion.  If so, then you can always avoid the Church Autonomy Doctrine by claiming the leader did not, in the moment, believe it."  She says "Facts are different from beliefs."  Facts are empirically provable, beliefs are not.  You need to sincerely believe facts, and the stone is evidence of fraud.  They commissioned artwork re: Joseph Smith translating from the plates.  Judge: But nobody has repudiated the Gold Plates, right?  Kay: Pres. Nelson told us that the plates were translated via stone-in-a-hat method and not directly from Joseph looking at the plates.

4. Judge: Re: Use of tithes, required for membership?  Kay: For full membership (going to temple), yes.  Judge: My impression is that plaintiffs claimed they wouldn't have tithed had they known about City Creek funding.  Would they have left the Church?  Kay: They would not have tithed, or they would not have reduced their tithes.  Judge: Judge Shelby held that allegations re: fraud were not pleaded with particularity.  In contrast, Huntsman has been very precise.  Your plaintiffs are not as precise.  Judge: Is tithing the Church's sole source of income?  Kay: Yes, but also no.  There are profit-making ventures.  

5: Mr. Jordan, the Church's attorney, spoke.  Appellants are asking to reverse for a jury trial re: whether Joseph Smith saw 1 or 2 personages in a vision, whether he used a seerstone, etc.  Judge: How does this case require adjudication of church doctrine?  I think they're saying there are two versions.  We don't care which one is true.  We would have headed for the exit had we known of two versions?  Jordan: They are asking for an orthodoxy trial.  Judge: But we don't care which version is true.  They are saying a seerstone was used.  The Church agrees wtih this, and this was not revealed for decades.  Plaintiffs are saying if they had known this, they would have walked.  Jordan: We don't dispute that the Book of Mormon is true, that it was translated by the gift and power of tone.  We dispute that it was translated by a clear stone or an opaque stone.  The inconsistency the plaintiffs allege is A) use of a seerstone, or B) artwork depicting Joseph looking at gold plates.  They are asking the court to "intrude on the miraculous, on the matters of faith."  Church history is  full of references to the seerstone, to the Urim & Thummim.  Judge: That is not their argument.  They are saying that they weren't told about the seerstone, and that this omission was fraudulent.  Jordan: They are asking the court to prescribe how the Church should teach its doctrine.  They want the Court to tell the Church what to emphasize and what to teach.  Judge: Is there any limit on what a Church can conceal about its beliefs and avoid RICO.  Jordan: There is no limit.  

6. Judge: Switching to Church Autonomy Doctrine: Do you agree that the plaintiffs can bring a RICO claim based on statements re: how tithing funds were used, whether tithing funds were directly sent to fund City Creek.  Judge: Plaintiffs don't have to plead "reliance" with particularity.  Judge: They are alleging that tithing ("principal") was used.  Jordan: This all comes down to a definition of tithing.  It's not earning on bond coupons.  It's not stock dividends.  it is a donation from an individual.  Pres. Hinckley differentiated between tithing and earnings on invested funds.  Judge: What about an affidavit in the record?  Jordan: That affidavit says the man, David Nielsen, attended a meeting at EPA and said "We think of everything as tithing."  That's an expression of an executive, not a church leader, that all of the funds under management.  Judge: Is the affidavit enough to allege that "tithing" was directly used for commercial development, in contravention of what the church has said?  Jordan: No.  There is no allegation in the record about tithing itself having been used, just earnings on tithing.  Judge: I will look again.  I think it is in the affidavit, and not fully in your brief.  Jordan: They are trying to conflate the two (tithing and interest).

7. Gene Sheir: I represent three religious groups.  Nearly every religious group will face lawsuits like this one if the lawsuit proceeds. Disaffected Catholics can sue their Church.  This would turn on theological issues and what church leaders actually believe.  Judge: But this case is about concealment.  Sheir: People accuse religious groups of hiding information all the time, particularly as to religious issues.  If those claims can proceed as RICO claims, the floodgates are open.  The Court should respond as it did in Bryce, which is that the issue must be wholly secular.  If even partially religious, then CAD applies.  Judge: If a church leader has said that tithing will not be used.  Sheir: "Tithing" is an inherently religious term.  Judge: How is it dangerous to religious freedom to tell churches that they need to tell their members where the money is going?  Sheir: This conversation we are having illustrates the danger.  This court should not define "tithing" and impose it on the Church.

Ran out of time.

In sum: The Tenth Circuit hammered both sides.  This is pretty standard stuff.

Thanks,

-Smac

I listened to it. My concern was the judge/s (I couldn't distinguish them by voice only so they will all be judge to me) seemed oblivious to how church history and doctrine develop. The plantiff seems to demand that doctrine/practice be decided by picking a moment in time of her choice. I don't know how these legal proceedings go or what to expect but there is a multi-century development of every church's doctrines and I don't think these judges are knowledgable in that area. As someone trained in scholarship, that concerns me greatly if they are going to get into that.