Update on Huntsman Lawsuit: Ninth Circuit Reverses Trial Court

[Analytics]

54 minutes ago, smac97 said:

As regarding "tithing," yes, I think it is (and you are).

There are all sorts of words that have readily and necessarily "secular" meanings:

• Baseball
• DNA
• Hiccup
• Television
• Canada

If President Hinckley had used any of these words, his comments could have been "understood and applied without reference to religion or religious doctrine," and so on.  

From the Deseret News article:

"Tithing is a quintessential religious issue."  "Quintessential."  As in "perfectly typical or representative of a particular kind of person or thing."

"I don't know of any use of the term tithing that is not religious in context."

Can you say the same about words like baseball, Canada and hiccup?  Nope, nope and nope.

We have spent who knows how many posts with you insisting that somehow, somewhere, there is a "secular" definition of "tithing" that the lower court should use to examine Pres. Hinckley's comments in 2003.  And yet even with multiple CFRS, you still can't come up with a citation.  Instead, you have made up definitions out of whole cloth.  Fabricated.  Concocted.  Contrived.  Invented.

As between ChatGPT and Judge Milan Smith, I'll go with the latter.

Thanks,

-Smac

 

That really isn’t an answer to the question I gave you. Judge Milan Smith was asking a question here; nothing more.

In contrast to Judge Smith’s question, Judges Kim McLaine Wardlaw, William A. Fletcher, and Edward R. Korman unanimously offered the following analysis in their opinion (Judge Korman dissented in part, but agreed with the other two judges on the issues of Church Autonomy that I quote below).

Note that their opinion is in complete harmony with what ChatGPT said. I’ll put in bold the items that I think are especially pertinent to the analysis I’ve already offered:

As an alternative and independent basis for affirming the
district court, the Church argues that Huntsman’s fraud
claim is barred by the First Amendment, under what the
district court referred to as the “church autonomy doctrine.”

We generally refer to the doctrine upon which the
Church relies as the “ecclesiastical abstention doctrine.”
Puri v. Khalsa, 844 F.3d 1152, 1162–64 (9th Cir. 2017). The
doctrine prohibits courts from deciding “internal church
disputes involving matters of faith, doctrine, church
governance, and polity.” Bryce v. Episcopal Church in the
Diocese of Colo., 289 F.3d 648, 655 (10th Cir. 2002); see
10 HUNTSMAN V. CORPORATION OF THE PRESIDENT
also Jones v. Wolf, 443 U.S. 595, 602 (1979); Serbian E.
Orthodox Diocese for U.S. & Can. v. Milivojevich, 426 U.S.
696, 713 (1976). The doctrine is “a qualified limitation,
requiring only that courts decide disputes involving religious
organizations ‘without resolving underlying controversies
over religious doctrine.’” Puri, 844 F.3d at 1164 (quoting
Maktab Tarighe Oveyssi Shah Maghsoudi, Inc. v. Kianfar,
179 F.3d 1244, 1248 (9th Cir. 1999)).

In support of its First Amendment argument, the Church
contends that “Huntsman objects to the use of any Church
funds for City Creek.” (Emphasis in original.) In so
contending, the Church selectively quotes from Huntsman’s
brief and misrepresents the nature of his claim. Huntsman
does not object to the use of Church funds for the City Creek
Mall project. Rather, he objects to how the Church
represented the project would be funded. Huntsman
contends that the Church solicited tithes from him by
misrepresenting the purposes for which the tithes were being
and would be used. Specifically, Huntsman contends that
the Church denied that tithing funds would be and were used
to pay for the City Creek Mall project when, in fact, tithing
funds were being used for that purpose.

The ecclesiastical abstention doctrine protects First
Amendment rights by avoiding court entanglement “in
essentially religious controversies” or the state intervening
on behalf of a particular religious doctrine. See Serbian E.
Orthodox Diocese, 426 U.S. at 709. But these
“considerations are not applicable to purely secular disputes
between third parties and a particular defendant, albeit a
religious affiliated organization, in which fraud . . . [is]
alleged.” Gen. Council on Fin. & Admin. of the United
Methodist Church v. Superior Ct. of Cal., Cnty. of San
Diego, 439 U.S. 1355, 1373 (1978) (Rehnquist, J., in
HUNTSMAN V. CORPORATION OF THE PRESIDENT 11
chambers). That is because “under the cloak of religion,
persons may [not], with impunity, commit frauds upon the
public.” Id. (quoting Cantwell v. Connecticut, 310 U.S. 296,
306 (1940)).

While there is no in-circuit case directly on point, there
is a closely analogous decision by a district court in the
Tenth Circuit. In Gaddy v. Corp. of President of Church of
Jesus Christ of Latter-Day Saints, 551 F. Supp. 3d 1206,
1211, 1215 (D. Utah 2021), former members of the Church
brought a civil RICO claim contending that the Church’s
statements about tithing were false. The district court held
that the First Amendment did not bar plaintiffs’ claims
because the claims “d[id] not implicate religious principles
of the Church or the truth of the Church’s beliefs concerning
the doctrine of tithing . . . or [if] its members were acting in
accord with what they perceived to be the commandments of
their faith.” Id. at 1225–26. Like the fraud claims in Gaddy,
the fraud claim here does not implicate religious beliefs
about tithing itself.

The Free Exercise Clause is violated if “the truth or
verity of respondents’ religious doctrines or beliefs [is
submitted] to the jury.” United States v. Ballard, 322 U.S.
78, 86 (1944); see also United States v. Rasheed, 663 F.2d
843, 847 (9th Cir. 1981). In the case before us, we are not
required to rely on or interpret the Church’s religious
teachings to determine if it misrepresented how it was using
tithing funds. Nor are we required to examine Huntsman’s
religious beliefs about the appropriate use of church money.
Instead, as presented to us, the questions are secular. The
questions are whether the Church’s statements about how it
would use tithing funds were true, and whether Huntsman
reasonably relied on those statements when he made tithing
contributions. A court or jury can answer these questions
based on secular evidence and analysis. See Elvig v. Calvin
Presbyterian Church, 375 F.3d 951, 963 (9th Cir. 2004);
Puri, 844 F.3d at 1167 (“The dispute, which ‘concern[s] the
[d]efendants’ actions, not their beliefs,’ turns entirely on
‘what the [defendants] did, . . . and the texts guiding [their]
actions can be subjected to secular legal analysis.’”)
(alterations in original) (emphasis removed) (quoting Elvig,
375 F.3d at 963, 968)). A court or jury can look at public
statements and relevant financial records of the Church to
determine what church officials said about how the City
Creek Mall project would be financed and to determine what
funds were actually used to finance the project. A court or
jury can assess Huntsman’s reliance by looking to the
Church’s and Huntsman’s evidence and asking if Huntsman
reasonably relied on the Church’s statements in deciding
whether to tithe.

I see the issue the same way these three judges do. In yesterday’s hearing, didn’t Huntsman’s attorney say that all judges who have ruled on this have agreed on the above?

Above, I provided a secular definition of tithing that in the context of this case, nobody disagrees with. Using that definition, "a court or jury can look at public statements and relevant financial records of the Church to determine what church officials said about how the City Creek Mall project would be financed and to determine what funds were actually used to finance the project."

That’s the way I understand the law. If you have a detailed explanation for how Judge Kim McLaine Wardlaw, Judge William A. Fletcher, and Judge Edward R. Korman are unanimously in left field on this issue, I’d love to hear. 

Edited September 27, 2024 by Analytics

[Calm]

6 hours ago, smac97 said:

"A court can comfortably evaluate if these statements about {whether Jesus Christ was the Son of God} without encroaching on the Church’s religious principles."

I really should be reading an assignment I have, but no way can I let this go, lol.

I think a better analogy to looking at why Analytics is claiming it can be labeled  secular would be whether or not Jesus calmed the seas or raised the dead because this was said to be seen by others and could be observed by anyone who happened by if the court had been called at that time and they could have called witnesses. Those events involved something concrete, observable that was done as Analytics is saying something was done with the tithing that can be evaluated as legal or not.  Of course for us in our time those events in Jesus’ life are not observable and the evidence of witnesses isn’t the kind accepted in court and therefore it is a religious issue whether we choose to believe or not.

In essence Analytics is saying we are discussing secular things if I understand him correctly because we can look at the tithing issue as something along the lines of tracking money to discover drug trafficking connections where in this case in my thought experiment someone in law enforcement who decided to test leadership’s word that no tithing dollars recorded all the serial numbers of the bills for a massive tithing donation to see where those dollars ended up (of course this is actually not possible now because the concrete dollars get exchanged for digital money being tracked by computers and accounting ledgers more or less).  
 

Remember I am only doing this to show the secular nature of the analysis so it doesn’t have to be exactly the same or even possible, it just has to be the same method of analysis…a secular analysis, not a religious ones. Or one uses secular tools to do the work, not religious ones which would be not only prayer and blessings, but examining what doctrine is.  
 

So the first stop of this obviously unrealistic thought experiment after they submit contribution would be a safe place to keep the dollars, a vault where all the tithing dollars*** are collected (let’s pretend it is before computers and the Church only exists in one city so when people pay tithing in cash, it gets taken to a vault).

***this assumes the Church views these dollars as tithing after they have been received, which I believe they do or there would be no need to issue reassurance that tithing dollars were not used for whatever.  I don’t believe this is an issue but if the Church challenged this, said it was only a shorthand way of talking about the funds and doctrinally it was no longer tithing, that seems to get into the religious side of things and we are over to Smac’s arguments of the Court not going there  

And to make the tracking example easier, bear with me for a little idiotic make believe session….To parallel how investing tithing causes wealth to accumulate, let’s say with the dollars having nothing to do all day, they get up to a little fun, pair off and have lots of baby dollars. EPA in this fantasy manages tithing dollars by overseeing this vault and helps the reproduction process along by playing romantic music and dimming the lights at appropriate times and then taking care of the wee things so they grow big and healthy.  

Baby dollar bills can also be tracked because they have half of the serial number of each parent so you could see the result of the saving/investment process in a very concrete way and track where even the additional income goes once they are old enough to be sent out on their own.   When money was needed for the City Creek project, someone at EPA got out a big fish net and grabbed out enough bills to meet the demand.

Continuing the thought experiment, you can imagine it in two ways….in looking at the bills used to pay for CC and BL (law enforcement pounces just as someone from the Church hands over the bags of money to the builders) everyone notices there are no serial numbers of the tithing dollars because when dollars are old enough to leave home, they get put in their own vault. But plenty of offspring because the EPA caregivers always leave the tithing dollars in their vault and never take them out, but use the vault that houses all their offspring for withdrawals.   This is apparently the case given Rytting’s description of where the funds came from  

Or another scenario since the tithing and the earned income is all one fund, it is the same vault and when the net goes in, chances are some tithing dollars come out too.  At which point the law enforcement guy has proven church leadership was wrong, mistaken, or lied when they said no tithing dollars were used.

Depending on the accounting processes used, EPA could figuratively treat the fund as if there were multiple vaults or could treat the fund as one source.  The Court could legitimately looking at the accounting process, get expert testimony that could determine which method is used.  Nothing of a religious nature is needed for this. 
 

Analytics, am I close enough so far?

But what if it is found that there are two vaults used and no tithing dollars were spent, only the offspring?

This is where imo we switch from a concrete secular argument—involving tracking the tithing and investment money whether in my fairy tale or in reality through looking at the accounting process—to defining what tithing is if Huntsman and others still want to claim tithing was used when no tithing dollars get tracked to the projects because of being kept separate by a vault or by accounting methods….is tithing not only the dollars that were contributed, but the dollars those contributed bills produced?

I don’t see how the court can decide the offspring are the same or different without defining what tithing is first.

So I think up to this part of Analytics’ argument secular methods of analysis can be applied to the argument, as could be with tracking serial numbers of money donated to LDS Philanthropies to see if they made their way to anything besides the humanitarian projects they were committed to 100% or with less effort looking at the accounting methods and money transactions that took place. (depending of course on if there is standing to insist donations to LFDP are part of the suit).

Analytics, feel free to tell me this is nothing like you are thinking.  It was fun enough to justify my time investment. I am loving the imagery of dollars speed dating and cozying up to each other, haven’t quite figured out how the birth goes, but mom and dad playing with junior is sweet.  My only debate is whether to start them off as pennies or one dollar bills.

Edited September 27, 2024 by Calm

[Calm]

5 hours ago, smac97 said:

. The attorney responds that the judge's recitation of "the record" is actually just "the Church's position," and not "what the record shows."  He then says that Huntsman "doesn't differentiate," and that he "took President Hinckley at his word."  I think the attorney is stepping in it here.  He is disputing what "the record" of the case states, which really isn't going to be in dispute.  And he says Huntsman didn't "differentiate" between principal and earnings in the way that President Hinckley differentiating these sources of funds, but then he says Huntsman took President Hinckley "at his word."  So this is pretty incoherent stuff.  The judge apparently picked up on this right away: "Okay, if you take him at his word, then you take the first statement that he would understand what President Hinckley was talking about, right?"

This seems to me to be the crux of the case. If treated in the way the judge appears to be doing, I would view this as keeping it secular, they are bumping the ball back and forth about what was done, how the members, the Church, Pres Hinckley, and Huntsman acted rather than parsing word meanings or the whys. If the court steps in and says, wait a minute, what is Pres Hinckley talking about here when he says tithing and then takes it upon itself to figure that out, they have entered the religious playing field. 

Edited September 27, 2024 by Calm

[Calm]

3 hours ago, smac97 said:

Huntsman’s argument is that church leaders misrepresented how they paid for City Creek. He believes they used tithing funds, based on a three-page declaration by David Nielsen, a disaffected former church member who worked at Ensign Peak after the City Creek project began, according to one of the judges.

 

Do we have that 3 page document available to be read?  I missed it if this was mentioned before. 

[Calm]

3 hours ago, smac97 said:

Boy, the more I think about it, the worse the "Mother Mary" analogy sounds

Two different people with the same name implies the case is about two different things both labeled tithing…I am not seeing the connection unless he means that tithing is a label used for just the principal and also is used for both the principal, original donation amount and any increase that comes from it.  But if so that is an awkward analogy because Mary McCartney is not Mary, mother of Jesus and then some, even in the eyes of her son I am guessing. 

[Calm]

4 hours ago, smac97 said:

The judges asked both attorneys about whether Huntsman needed to rely on President Hinckley’s statement.

“It goes to the question of what motivates someone to tithe,” said Rosen, who observed the hearing in the courtroom. “I think that goes to the religious purpose of tithing. Generally, you tithe because it’s a religious command to give 10% of your income, not because of a particular use of the funds. You don’t tithe because the money is going to be used for ‘x’ project or ‘y’ thing.”

This, this, this…

However, people do give more than 10% to tithing and my guess is some don’t see the excess as an obligation but as an expression of gratitude or desire to contribute to the growth of the Church.  And I suppose if this can be applied to the excess, there may be members who apply it to the full amount because they feel no obligation to pay tithing for some reason. Perhaps they see it as a temporary commandment that is not needed now. Or misinterpreted. 

And because the money is submitted with the donation slip marking the amount in the tithing slot, the Church counts it as tithing even if I could get in a debate about whether it is actually tithing or not if it was not given in response to the command to tithe.  Certainly as far as the Church knows, it was.

”Clement said the church should win either way.

“At a certain point, money is fungible,” he said. “If the church hadn’t been as careful in its accounting, I think I would still be up here saying, what are we talking about? In year 2003 alone, the church had earnings on reserve funds that are well in advance on anything they spent on this project, and so there’s just no issue that they had to go into current year’s tithing.””

Yes, this*** is what I have been saying forever so of course he is right.

***or something close enough for me to crow 

Edited September 27, 2024 by Calm

[Calm]

4 hours ago, smac97 said:

If President Hinckley had used any of these words, his comments could have been "understood and applied without reference to religion or religious doctrine," and so on.

I can see two ways of looking at this.

Asking “was tithing paid or not?” can lead to two types of questions:

1) checking the person’s records to check to see if the amount given was entered…simple accounting and what I think Analytics means by using secular. (typical response of members…if they have access to such records)

2) responding to the question with “what do you mean was tithing paid, what is tithing?” (response by someone who never heard of tithing).  This gets into a religious discussion because it will talk about the purpose of tithing, that it is a commandment and why.  
 

So if the court is just tracking where the money was spent, secular…if the court wants to decide if the money spent was truly tithing or not (not what fund it was from, but what it is meant to be, it’s religious.

Edited September 27, 2024 by Calm

[Calm]

Quote

 “In fact, I don’t know of any use of the term tithing that is not religious in context. What am I missing?”

How about the use of it as a category in accounting?  If I have a budget plan including 10% of my paycheck going to tithing and I give it to the loan officer in order to evaluate how large of a loan I can get, isn’t that a secular context?

Instead of “definition”, maybe the term “usage” is more applicable. 

Edited September 27, 2024 by Calm

[Analytics]

8 hours ago, Calm said:

Two different people with the same name implies the case is about two different things both labeled tithing…I am not seeing the connection unless he means that tithing is a label used for just the principal and also is used for both the principal, original donation amount and any increase that comes from it.  But if so that is an awkward analogy because Mary McCartney is not Mary, mother of Jesus and then some, even in the eyes of her son I am guessing. 

Here's his point. 

In one case, “tithing” is a religious commandment. The religious aspects of tithing is that you have to pay it to go to the temple, it’s 10% of your income, if you pay it the windows of heaven will be opened, if you pay it you won’t be burned in the second coming, etc. 

If somebody sued over these things, e.g. (they wouldn’t issue a temple recommend because they didn’t think you really paid a full tithing, the windows of heaven didn’t open up, somebody paid tithing and got burned anyway, etc.), then the courts would rightly apply the church autonomy doctrine. Those things are all intrinsically religious in nature; making a ruling on one of those cases would "implicate religious principles of the Church or the truth of the Church’s beliefs concerning the doctrine of tithing . . . or [if] its members were acting in accord with what they perceived to be the commandments of their faith.” The courts won’t touch issues like that, and rightly so.

In another sense, “tithing” are the real-world dollars and cents that are donated to a church and are designated as “tithing” on the donation slips. These real-world dollars are used to do real-world things, such as to build temples or buy shares of Nvidia. Issues involving these real-world dollars and cents are intrinsically secular in nature. If a church allegedly promised tithing would not be used to build a mall, and if the church allegedly broke that promise, a court can evaluate the alleged promise and evaluate the alleged way the money was spent and determine whether or not a binding promise was broken or not. And it can do all this without judging the truthfulness of the church’s truth claims or telling the church how it should handle its internal affairs.

Summarizing it again:

Religious Definition: The commandment that you must pay 10% of your increase, “increase” is interpreted to mean income, this must be paid to the Church, this is required for a temple recommend, you’ll be burned if you don’t pay it, if you do pay it the windows of heaven will open up, the Church has no official position on whether “income” means gross or net, but many people ask themselves whether they want gross blessings or net blessings, “partial tithing” isn’t really tithing, etc.

The church autonomy doctrine forbids the courts from getting involved in that. The church can teach whatever it wants, do whatever it wants internally, and if somebody thinks a promised blessing didn’t work out, the church won’t get involved.

Secular Definition: Tithing are the real-world dollars and cents that are donated to the Church and marked as “tithing” on the donation slips. This is a secular definition because you don’t need to believe anything about the religious implications or motivations of tithing to understand, for example, that Huntsman is talking about $5,000,000 of contributions that he did in fact make and did in fact label as “tithing” on the donation slips. Courts can determine whether this is true or false without getting involved in church doctrine or religious issues. Likewise, it can evaluate how these real-world funds were really was allocated, and any promises made about these real-world financial decisions.

[Analytics]

8 hours ago, Calm said:

How about the use of it as a category in accounting?  If I have a budget plan including 10% of my paycheck going to tithing and I give it to the loan officer in order to evaluate how large of a loan I can get, isn’t that a secular context?

Instead of “definition”, maybe the term “usage” is more applicable. 

Bingo.

[smac97]

12 hours ago, Calm said:

I can see two ways of looking at this.

Asking “was tithing paid or not?” can lead to two types of questions:

1) checking the person’s records to check to see if the amount given was entered…simple accounting and what I think Analytics means by using secular. (typical response of members…if they have access to such records)

2) responding to the question with “what do you mean was tithing paid, what is tithing?” (response by someone who never heard of tithing).  This gets into a religious discussion because it will talk about the purpose of tithing, that it is a commandment and why.  

So if the court is just tracking where the money was spent, secular…

I agree.  "If."

Alternatively, if the legal theory being presented is that "the money" is "tithing," and that "tithing" refers to both voluntary donations by members and also earnings on invested reserves, then this amounts to a re-definition of the word, which re-definition cannot occur without violating the Church Autonomy Doctrine.

12 hours ago, Calm said:

if the court wants to decide if the money spent was truly tithing or not (not what fund it was from, but what it is meant to be, it’s religious.

That, I think, is perhaps the central concern expressed by the Ninth Circuit on Wednesday.

Thanks,

-Smac

Edited September 27, 2024 by smac97

[smac97]

9 hours ago, Calm said:

Quote

Boy, the more I think about it, the worse the "Mother Mary" analogy sounds

Two different people with the same name implies the case is about two different things both labeled tithing…

Yep.  The analogy is poor, even self-defeating, for at least two reasons.

First, it is imbued with the fallacy of equivocation:

Quote

The fallacy of equivocation occurs when a key term or phrase in an argument is used in an ambiguous way, with one meaning in one portion of the argument and then another meaning in another portion of the argument.

 Huntsman is equivocating, or is attempting to.  He says he's talking about "tithing," but what he is really talking about is earnings on invested reserves (because that is what was spent on City Creek).  So "'tithing' referring to voluntary donations of one tenth of one's income" is what Pres. Hinckley was talking about, while "'tithing' referring to earnings on invested reserves" is that Huntsman is talking about.  

Second, the equivocation/ambiguity here undermines Huntsman's fraud claim.  Just put the "Mother Mary" in President Hinckley's mouth with something like this: "Today, on Mother's Day, we come together to honor all mothers everywhere.  I invite all Latter-day Saints everywhere to join with me in contemplating in particular the life of that one mother, Mary, who in difficult circumstances bore her son in Bethlehem...."

9 hours ago, Calm said:

I am not seeing the connection unless he means that tithing is a label used for just the principal and also is used for both the principal, original donation amount and any increase that comes from it.  

Yes, I think that is what he is saying, in a circumlocutory way.

9 hours ago, Calm said:

But if so that is an awkward analogy because Mary McCartney is not Mary, mother of Jesus and then some, even in the eyes of her son I am guessing. 

Yep.

Imagine Huntsman suing Pres. Hinckley for fraud, based on the "Mother Mary" thing.  The complaint would include something like this: "Comes now plaintiff, by and through counsel, and hereby alleges fraud against Gordon Bitner Hinckley based on the patently false statements he made about Mary bearing her son.  Mr. Hinckley's claim is patently correct, since Mary bore her son, Paul, at Walton Hospital in the Walton area of Liverpool, England, and not in Bethlehem.  But for this patently false - and purely secular - factual statement, Mr. Huntsman would not have joined Mr. Hinckley in honoring mothers by contemplating the life of Mary..."

Even assuming Huntsman could successfully plead the other elements of fraud based on this hypothetical statement, does the "misrepresentation" work?  How can it, when Huntsman is referring to Mary Patricia (née Mohin), while Pres. Hinckley was speaking of Mary, the mother of Jesus as recorded in the New Testament?  Huntsman's fraud claim only works if the court retroactively applies Huntsman's definition of "Mary" onto Pres. Hinckley.

Thanks,

-Smac

[smac97]

9 hours ago, Calm said:

Quote

The attorney responds that the judge's recitation of "the record" is actually just "the Church's position," and not "what the record shows."  He then says that Huntsman "doesn't differentiate," and that he "took President Hinckley at his word."  I think the attorney is stepping in it here.  He is disputing what "the record" of the case states, which really isn't going to be in dispute.  And he says Huntsman didn't "differentiate" between principal and earnings in the way that President Hinckley differentiating these sources of funds, but then he says Huntsman took President Hinckley "at his word."  So this is pretty incoherent stuff.  The judge apparently picked up on this right away: "Okay, if you take him at his word, then you take the first statement that he would understand what President Hinckley was talking about, right?"

This seems to me to be the crux of the case. If treated in the way the judge appears to be doing, I would view this as keeping it secular, they are bumping the ball back and forth about what was done, how the members, the Church, Pres Hinckley, and Huntsman acted rather than parsing word meanings or the whys. If the court steps in and says, wait a minute, what is Pres Hinckley talking about here when he says tithing and then takes it upon itself to figure that out, they have entered the religious playing field. 

Pretty much.  

If Pres. Hinckley had been talking about a topic like baseball or hiccups or Canada, the meaning and ambit of such concepts are purely secular, so federal courts could examine them without resorting to interpretation of religious doctrine, scrutinizing church governance and decision-making, and so on.

As it is, Pres. Hinckley was speaking about tithing, which is, as one of the Ninth Circuit judges observe, "a quintessential religious issue."  As another asked: “How can a church have a secular definition of a religious obligation?”

Thanks,

-Smac

[smac97]

10 hours ago, Calm said:

I really should be reading an assignment I have, but no way can I let this go, lol.

I think a better analogy to looking at why Analytics is claiming it can be labeled  secular would be whether or not Jesus calmed the seas or raised the dead because this was said to be seen by others and could be observed by anyone who happened by if the court had been called at that time and they could have called witnesses.

Well, no.  Christians believed these events are "factual" insofar as they are believed to have really happened.  But they are still religious claims, not secular ones.  Courts cannot adjudicate a dispute about whether "Jesus calmed the seas" through the application of neutral principles of American law.

10 hours ago, Calm said:

Those events involved something concrete, observable that was done as Analytics is saying something was done with the tithing that can be evaluated as legal or not.  

I don't think this holds.  Asking a federal judge to examine whether "something was done with the tithing" requires that the court define both "something" and "tithing."  The "something" is "funding City Creek."  "Tithing" refers to . . . what?  Voluntary donations of one tenth of one's increase annually?  Or does it refer to such voluntary donations and also any earnings the Church may realize by investing reserve funds?  Huntsman's lawsuit will require the federal courts to apply the latter.  But this is an exercise in equivocation, and it runs afoul of the Church Autonomy Doctrine.

10 hours ago, Calm said:

In essence Analytics is saying we are discussing secular things if I understand him correctly because we can look at the tithing issue as something along the lines of tracking money to discover drug trafficking connections where in this case in my thought experiment someone in law enforcement who decided to test leadership’s word that no tithing dollars recorded all the serial numbers of the bills for a massive tithing donation to see where those dollars ended up (of course this is actually not possible now because the concrete dollars get exchanged for digital money being tracked by computers and accounting ledgers more or less).  

Craig Paxton previously described the Church's funding of City Creek as "classic money laundering."  It appears that Roger concurs with this assessment, since he has recently and approvingly quoted Craig's comments.  Roger has similarly slandered the Church along these lines (e.g. "The problem is the Church’s alleged dishonesty with donors...").

I think this is mostly neither here nor there.  It presupposes what "tithing" means, and it presupposes that Huntsman's exercise in equivocation can work to avoid the Church Autonomy Doctrine ("'tithing' referring to voluntary donations of one tenth of one's income" is what Pres. Hinckley was talking about, versus "'tithing' referring to earnings on invested reserves" is that Huntsman is talking about).

10 hours ago, Calm said:

Remember I am only doing this to show the secular nature of the analysis so it doesn’t have to be exactly the same or even possible, it just has to be the same method of analysis…a secular analysis, not a religious ones. Or one uses secular tools to do the work, not religious ones which would be not only prayer and blessings, but examining what doctrine is.  

So a federal judge can define "tithing" without "examining what {the Church's} doctrine {about tithing} is"?  

How?

Thanks,

-Smac

[smac97]

12 hours ago, Analytics said:

Above, I provided a secular definition of tithing that in the context of this case, nobody disagrees with.

You did?  CFR, please.  Where?  Which post?  What is this "secular definition of tithing"?

And where did you get this definition?  CFR, please.  Chapter and verse.

And after you respond to these CFRs, please explain how or why this "secular definition" is binding on Pres. Hinckley and on the federal judiciary. 

Thanks,

-Smac

[smac97]

47 minutes ago, Analytics said:

In one case, “tithing” is a religious commandment.

A "religious commandment" to do what?  

To pay one tenth of one's increase annually, correct?  

Where, other than Huntsman's say-so, do we get the notion that tithing also refers to the Church's earnings on invested reserves?

47 minutes ago, Analytics said:

The religious aspects of tithing is that you have to pay it to go to the temple, it’s 10% of your income, if you pay it the windows of heaven will be opened, if you pay it you won’t be burned in the second coming, etc. 

What are the "secular" aspects to tithing?  For Huntsman's fraud claim to work, those aspects must include the notion that tithing also refers to the Church's earnings on invested reserves?

So who is that decided that tithing includes these additional aspects?  When?  Where?  And why is that person's say-so binding on Pres. Hinckley and the federal judiciary?

47 minutes ago, Analytics said:

If somebody sued over these things, e.g. (they wouldn’t issue a temple recommend because they didn’t think you really paid a full tithing, the windows of heaven didn’t open up, somebody paid tithing and got burned anyway, etc.), then the courts would rightly apply the church autonomy doctrine.

If if somebody (perhaps with the initials "J.H.") were to sue the Church by arguing that "tithing" means both members donating one tenth of one's increase annually and also the Church's post-donation realization of income from invested reserves, then the courts would also "rightly apply the church autonomy doctrine."  This is so because Huntsman's lawsuit is an exercise in equivocation and re-definition, and one which runs afoul of the Church Autonomy Doctrine.

47 minutes ago, Analytics said:

Those things are all intrinsically religious in nature; making a ruling on one of those cases would "implicate religious principles of the Church or the truth of the Church’s beliefs concerning the doctrine of tithing . . . or [if] its members were acting in accord with what they perceived to be the commandments of their faith.” The courts won’t touch issues like that, and rightly so.

Secular courts re-defining "tithing" to include the Church's post-donation realization of income from invested reserves would also "implicate religious principles of the Church or the truth of the Church’s beliefs concerning the doctrine of tithing."

47 minutes ago, Analytics said:

In another sense, “tithing” are the real-world dollars and cents that are donated to a church and are designated as “tithing” on the donation slips.

That is not "another sense."  It is just a loose restatement of what tithing means in a Latter-day Saint Context.

And notably, it does not advance Huntsman's lawsuit, which will require the courts to include in the definition of tithing "the real-world dollars and cents that are donated to a church" and also  the Church's post-donation realization of income from invested reserves.

47 minutes ago, Analytics said:

These real-world dollars are used to do real-world things, such as to build temples or buy shares of Nvidia.

But where "{t}hese real-world dollars" used to fund City Creek?

Nope.

47 minutes ago, Analytics said:

Issues involving these real-world dollars and cents are intrinsically secular in nature.

Unless, of course, these "issues" involve courts to include in the definition of tithing "the real-world dollars and cents that are donated to a church" and also  the Church's post-donation realization of income from invested reserves.  Such an exercise runs afoul of the Church Autonomy Doctrine.

47 minutes ago, Analytics said:

If a church allegedly promised tithing would not be used to build a mall, and if the church allegedly broke that promise, a court can evaluate the alleged promise and evaluate the alleged way the money was spent and determine whether or not a binding promise was broken or not. And it can do all this without judging the truthfulness of the church’s truth claims or telling the church how it should handle its internal affairs.

But the courts cannot do this without first settling the meaning of "tithing."  And the only way Huntsman's lawsuit works if if the courts include in the definition of tithing "the real-world dollars and cents that are donated to a church" and also  the Church's post-donation realization of income from invested reserves.  Such an exercise runs afoul of the Church Autonomy Doctrine.

47 minutes ago, Analytics said:

Summarizing it again:

Religious Definition: The commandment that you must pay 10% of your increase, “increase” is interpreted to mean income, this must be paid to the Church, this is required for a temple recommend, you’ll be burned if you don’t pay it, if you do pay it the windows of heaven will open up, the Church has no official position on whether “income” means gross or net, but many people ask themselves whether they want gross blessings or net blessings, “partial tithing” isn’t really tithing, etc.

The church autonomy doctrine forbids the courts from getting involved in that. The church can teach whatever it wants, do whatever it wants internally, and if somebody thinks a promised blessing didn’t work out, the church won’t get involved.

Secular Definition: Tithing are the real-world dollars and cents that are donated to the Church and marked as “tithing” on the donation slips. This is a secular definition because you don’t need to believe anything about the religious implications or motivations of tithing to understand, for example, that Huntsman is talking about $5,000,000 of contributions that he did in fact make and did in fact label as “tithing” on the donation slips. Courts can determine whether this is true or false without getting involved in church doctrine or religious issues. Likewise, it can evaluate how these real-world funds were really was allocated, and any promises made about these real-world financial decisions.

You're just making this stuff up as you go along.

Thanks,

-Smac

[Analytics]

15 hours ago, smac97 said:

Yes.  I think I commented on this back when the lawsuit was first filed.  I was surprised that the Church chose to go into the merits of the lawsuit and then filed a Motion for Summary Judgment (as opposing to filing a Motion to Dismiss, presumably based on the Church Autonomy Doctrine and other grounds for dismissal under Rule 12).

This was addressed at the hearing yesterday.  One of the judges asked why the Church had not sought dismissal under the Church Autonomy Doctrine as a threshold matter.  The attorney's explanation was, in essence, that the Church felt it had done nothing wrong, and so wanted to defend its reputation on the merits.  It later determined that one of the arguments for dismissal should of been, and still was, the Church Autonomy Doctrine.

I suspect the real reason they went with the Motion for Summary Judgment argument first was because that is in fact their stronger argument. I suspect the judge who asked about it knew this and wanted to see if the Church’s attorney would admit it.

This case will set an important, high-profile precedence on the Church autonomy doctrine, and I think that is why the judges all took so much interest in it. I think the Judges asked challenging questions about it because they wanted to show how much they were thinking about it diligently. And I suspect Judge Smith’s “What am I missing?” question was actually intended as a softball so that Huntsman’s attorney could explain how tithing funds do in fact have a secular definition--we are not talking about religious doctrine, we are merely talking about specific real-world donations that were made, and alleged specific real-world promises that were made about how those funds would or would not be deployed in the real world. All this is secular and doesn’t infringe on the Church’s right to teach and believe and govern itself in any way it chooses.

Here Is My Prediction (Bookmark This So You Can Say “I Told You So!”)

The Ninth Circuit will reaffirm what the Circuit Court said and what the three-judge panel unanimously said: this case is secular, and the Church’s motion to dismiss based on church autonomy is DENIED. They will articulate the limits of church autonomy in language that will be quoted for years. What they might do is give the Church a small win by saying that since some of Hinckley’s comments were made in a religious setting, those specific comments are inadmissible as evidence because of church autonomy.  But that won’t change the fact that the motion to dismiss based on Church Autonomy will be denied.

After they deny the motion to dismiss, they will look at the motion for summary judgement. In a split decision, they’ll rule in the Church’s favor and conclude that “no reasonable juror could find that the Church had fraudulently misrepresented how tithing funds were used."

Edited September 27, 2024 by Analytics

[smac97]

10 hours ago, Calm said:

Quote

The judges asked both attorneys about whether Huntsman needed to rely on President Hinckley’s statement.

“It goes to the question of what motivates someone to tithe,” said Rosen, who observed the hearing in the courtroom. “I think that goes to the religious purpose of tithing. Generally, you tithe because it’s a religious command to give 10% of your income, not because of a particular use of the funds. You don’t tithe because the money is going to be used for ‘x’ project or ‘y’ thing.”

This, this, this…

I think it is a huge stretch for Huntsman to claim that he relied on Pres. Hinckley's 2003 statement when he paid tithing.  He was paying tithing well before 2003, and continued to do so for many years after.  So we are supposed to believe that Huntsman's pre-2003 tithes in obedience to a religious commandment, but his post-2003 tithes were entirely reliant on one statement made by Pres. Hinckley about the funding of City Creek?  That in the absence of Pres. Hinckley's 2003 statement, Huntsman would have not paid tithes after 2003?  That Huntsman's ongoing tithes were based on the nuances of the Church's accounting practices?

And he is saying this with a straight face, is he?

But this is more an issue of credibility and probative value as to Huntsman's say-so.  

Thanks,

-Smac

[Analytics]

1 minute ago, smac97 said:

A "religious commandment" to do what?  

To pay one tenth of one's increase annually, correct?  

Those are religious issues outside the scope of what the Court is considering. Therefore, your questions are irrelevant.

1 minute ago, smac97 said:

Where, other than Huntsman's say-so, do we get the notion that tithing also refers to the Church's earnings on invested reserves?

This has nothing to do with what Huntsman actually said and is irrelevant to the case.

Have you read why the circuit court plus all three members of the 9th circuit panel unanimously denied the Church’s motion to dismiss based on church autonomy? I agree with them.

1 minute ago, smac97 said:

What are the "secular" aspects to tithing?

It's what’s in the accounting system.

1 minute ago, smac97 said:

For Huntsman's fraud claim to work, those aspects must include the notion that tithing also refers to the Church's earnings on invested reserves?

I know this argument is your pet and is very precious to you. I get it. However, the way every court who has offered an opinion on this looks at it, the question is whether the Church had fraudulently
misrepresented how tithing funds were used, and that the Church’s motions to dismiss based on Church autonomy are denied. 

1 minute ago, smac97 said:

So who is that decided that tithing includes these additional aspects?  When?  Where?  And why is that person's say-so binding on Pres. Hinckley and the federal judiciary?

I know you see it this way. I see it the way the judges do who all denied the Churches motions to dismiss based on Church autonomy.

1 minute ago, smac97 said:

If if somebody (perhaps with the initials "J.H.") were to sue the Church by arguing that "tithing" means both members donating one tenth of one's increase annually and also the Church's post-donation realization of income from invested reserves, then the courts would also "rightly apply the church autonomy doctrine."  This is so because Huntsman's lawsuit is an exercise in equivocation and re-definition, and one which runs afoul of the Church Autonomy Doctrine.

That isn’t what James Huntsman is suing about. "In support of its First Amendment argument, the Church contends that 'Huntsman objects to the use of any Church funds for City Creek.' (Emphasis in original.) In so contending, the Church selectively quotes from Huntsman’s brief and misrepresents the nature of his claim. Huntsman does not object to the use of Church funds for the City Creek Mall project. Rather, he objects to how the Church represented the project would be funded. Huntsman contends that the Church solicited tithes from him by misrepresenting the purposes for which the tithes were being and would be used."

1 minute ago, smac97 said:

But the courts cannot do this without first settling the meaning of "tithing." 

Repeating this mantra doesn’t make it true.

1 minute ago, smac97 said:

You're just making this stuff up as you go along.

I'm confident my sensibilities on the issue of church autonomy are in harmony with 100% of the judges who have issued opinions on the topic in this case.

[Analytics]

@smac97,

We’ve spent a lot of time talking about how you view the case and how you think the only way Huntsman can win is asking the courts to impose a definition of “tithing” on the Church, retroactively apply this new definition to things Hinckley has said, use that court-imposed definition of a religious doctrine to change the meaning of Hinkley’s words from what he intended to something else, and then declare Hinckley committed fraud based on this post hoc recasting of his words.

I get that you see it that way. 

But what do you think of the opinions of the Circuit Court and the Appeals Court panel? Can you explain to me why I am wrong for seeing the issues the same way they do? See below (For readability, I removed the references, which can be seen in the original here)

As an alternative and independent basis for affirming the district court, the Church argues that Huntsman’s fraud claim is barred by the First Amendment, under what the district court referred to as the “church autonomy doctrine.”

We generally refer to the doctrine upon which the Church relies as the “ecclesiastical abstention doctrine.” The doctrine prohibits courts from deciding “internal church disputes involving matters of faith, doctrine, church governance, and polity.” The doctrine is “a qualified limitation, requiring only that courts decide disputes involving religious organizations ‘without resolving underlying controversies over religious doctrine.’” 

In support of its First Amendment argument, the Church contends that “Huntsman objects to the use of any Church funds for City Creek.” (Emphasis in original.) In so contending, the Church selectively quotes from Huntsman’s brief and misrepresents the nature of his claim. Huntsman does not object to the use of Church funds for the City Creek Mall project. Rather, he objects to how the Church represented the project would be funded. Huntsman contends that the Church solicited tithes from him by misrepresenting the purposes for which the tithes were being and would be used. Specifically, Huntsman contends that the Church denied that tithing funds would be and were used to pay for the City Creek Mall project when, in fact, tithing funds were being used for that purpose.

The ecclesiastical abstention doctrine protects First Amendment rights by avoiding court entanglement “in essentially religious controversies” or the state intervening on behalf of a particular religious doctrine. But these “considerations are not applicable to purely secular disputes between third parties and a particular defendant, albeit a religious affiliated organization, in which fraud . . . [is] alleged.”  That is because “under the cloak of religion, persons may [not], with impunity, commit frauds upon the public.” 

While there is no in-circuit case directly on point, there is a closely analogous decision by a district court in the Tenth Circuit. In Gaddy v. Corp. of President of Church of Jesus Christ of Latter-Day Saints, former members of the Church brought a civil RICO claim contending that the Church’s statements about tithing were false. The district court held that the First Amendment did not bar plaintiffs’ claims because the claims “d[id] not implicate religious principles of the Church or the truth of the Church’s beliefs concerning the doctrine of tithing . . . or [if] its members were acting in accord with what they perceived to be the commandments of their faith.” Like the fraud claims in Gaddy, the fraud claim here does not implicate religious beliefs about tithing itself.

The Free Exercise Clause is violated if “the truth or verity of respondents’ religious doctrines or beliefs [is submitted] to the jury.” In the case before us, we are not required to rely on or interpret the Church’s religious teachings to determine if it misrepresented how it was using tithing funds. Nor are we required to examine Huntsman’s religious beliefs about the appropriate use of church money. Instead, as presented to us, the questions are secular. The questions are whether the Church’s statements about how it would use tithing funds were true, and whether Huntsman reasonably relied on those statements when he made tithing contributions. A court or jury can answer these questions based on secular evidence and analysis. (“The dispute, which ‘concern[s] the [d]efendants’ actions, not their beliefs,’ turns entirely on ‘what the [defendants] did, . . . and the texts guiding [their] actions can be subjected to secular legal analysis.’”)  A court or jury can look at public statements and relevant financial records of the Church to determine what church officials said about how the City Creek Mall project would be financed and to determine what funds were actually used to finance the project. A court or jury can assess Huntsman’s reliance by looking to the Church’s and Huntsman’s evidence and asking if Huntsman reasonably relied on the Church’s statements in deciding whether to tithe.

Edited September 27, 2024 by Analytics

[smac97]

1 hour ago, Analytics said:

This case will set an important, high-profile precedence

I hate to be pedantic, but the term is "precedent."

1 hour ago, Analytics said:

on the Church autonomy doctrine,

It will?  Aren't you the same guy who has been insisting that the Church Autonomy Doctrine is irrelevant to the Huntsman case?

1 hour ago, Analytics said:

and I think that is why the judges all took so much interest in it.

I agree.

See, e.g., Hawthorne v. Couch, 911 So.2d 907, 910 (La. App. 2d Cir. 2005) (“The issue of tithing is at its core a purely ecclesiastical matter.”); Glass v. First United Pentecostal Church of DeRidder, 676 So.2d 724, 735 (La. App. 3d Cir. 1996) (“Furthermore, tithing is at the root of ecclesiastical doctrine. If these complaints are in any way related to discipline on such, they would fall outside of the Court's jurisdiction.”).

See also this holding in El Pescador Church, Inc. v. Ferrero, 594 S.W.3d 645 (Tex. App. 2019) :

Quote

At its core, this is a dispute between factions in a non-denominational church. But specifically, we are asked to review several dispositive motions granted in favor of the pastor, his wife, and two other individuals, all of whom who were alleged to have breached one or more duties to the non-profit corporation that established the church.
...
The suit alleges five causes of action: (1) conversion, (2) breach of fiduciary duty, (3) fraud, (4) the unauthorized practice of public accounting, and (5) the unauthorized  practice of law. 
...
The fraud allegation is asserted against Hector Ferrero through his own acts or omissions, and the other defendants through their "aid and support[.]" The claim is based on the representation to the congregation that Hector Ferrero was entitled to solely conduct the management and operations of the Church, and as a result, he dispossessed the board of directors of management over the Church.

It looks like Ferrero took over the church, which was a non-profit corporation (and, therefore, ostensibly generally subject to the laws that govern non-profit corporations).

Quote

We begin by addressing one issue sua sponte , which was not raised below or mentioned in the parties' opening briefs.

The Free Exercise Clause of the First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. The First Amendment governs conduct of the several states by virtue of the 14th Amendment. See Cantwell v. Connecticut , 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). Aside from interfering with an individual's observance or practice of a particular faith, government action can burden the free exercise of religion by encroaching on a church's ability to manage its internal affairs. See, e.g., Kedroff v. St. Nicholas Cathedral , 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952) ; Westbrook v. Penley , 231 S.W.3d 389, 395 (Tex. 2007). Accordingly, the Free Exercise Clause "severely circumscribes the role that civil courts may play in resolving church property disputes[.]" Presbyterian Church v. Hull Church , 393 U.S. 440, 449, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969).

"{T}he Free Exercise Clause 'severely circumscribes the role that civil courts may play in resolving church property disputes[.]'"

I think this would likely have some bearing on the limitations of secular courts face when asked to resolve church financial disputes.  This is particularly so where, as here, the financial dispute only arises when the disgruntled former church member seeks to re-define "tithing" to mean both voluntary donations by members and also earnings on invested reserves, then this amounts to a re-definition of the word, which re-definition cannot occur without violating the Church Autonomy Doctrine.

Quote

Specifically, civil courts cannot inquire into matters concerning "theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them." Serbian E. Orthodox Diocese for U. S. of Am. and Canada v. Milivojevich , 426 U.S. 696, 713-14, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976), quoting Watson v. Jones , 80 U.S. 679, 733, 13 Wall. 679, 20 L.Ed. 666 (1871). We follow this same limitation in Texas under a doctrine referred to as ecclesiastical abstention. Masterson v. Diocese of N.W. Texas , 422 S.W.3d 594, 601 (Tex. 2013) ; Episcopal Diocese of Ft. Worth v. Episcopal Church , 422 S.W.3d 646, 650 (Tex. 2013).

"{C}ivil courts cannot inquire into matters concerning 'theological controversy, church discipline, {or} ecclesiastical government.'"

"Tithing" is plainly a religious/doctrinal/theological concept.  Its meaning, particularly when that term was used by Pres. Hinckley et al., is disputed by Huntsman and those that have followed him.  That sure sounds like a "theological controversy."

Quote

The ecclesiastical abstention doctrine is more than just a limitation on a court's actions, it is a limitation on its subject matter jurisdiction. Masterson , 422 S.W.3d at 605-06. And we are "obligated to review sua sponte issues affecting jurisdiction." M.O. Dental Lab v. Rape , 139 S.W.3d 671, 673 (Tex. 2004) ; see also Rusk State Hosp. v. Black , 392 S.W.3d 88, 103 (Tex. 2012) ("Subject matter jurisdiction cannot be waived or conferred by agreement, can be raised at any time, and must be considered by a court sua sponte."). This would include the question of ecclesiastical abstention. Singh v. Sandhar , 495 S.W.3d 482, 491 n.8 (Tex.App.--Houston [14th Dist.] 2016, no pet.) (trial court could have correctly dismissed claims covered by ecclesiastical matters even if not raised by the parties); Thiagarajan v. Tadepalli , 430 S.W.3d 589, 596 n.3 (Tex.App.--Houston [14th Dist.] 2014, pet. denied) ("[T]his court is obligated to address the existence of  subject matter jurisdiction sua sponte regardless of whether the parties challenged it.").

This may be relevant to the Ninth Circuit's comments on Wednesday.  They were curious why the Church did not first seek dismissal based on the Church Autonomy Doctrine.  It's a fair question, but not one that is injurious to the Church because that doctrine is, as noted above, "a limitation on {the courts'} subject matter jurisdiction," a challenge to which jurisdiction "cannot be waived" and "can be raised at any time," and even "must be considered by a court sua sponte."

Quote

Yet while ecclesiastical abstention prevents us from resolving some disputes, it does not shield all suits simply because a parishioner or church is a party-litigant. Courts also have an obligation to resolve disputes and "cannot delegate their judicial prerogative where jurisdiction exists." Masterson , 422 S.W.3d at 606 (courts must "fulfill their constitutional obligation to exercise jurisdiction where it exists, yet refrain from exercising jurisdiction where it does not exist."). Moreover, churches and their congregations "exist and function within the civil community," and therefore they are "amenable to rules governing property rights, torts, and criminal conduct." Williams v. Gleason , 26 S.W.3d 54, 59 (Tex.App.--Houston [14th Dist.] 2000, pet. denied) ; see also Pleasant Glade Assembly of God v. Schubert , 264 S.W.3d 1, 12 (Tex. 2008) ("[R]eligious practices that threaten the public's health, safety, or general welfare cannot be tolerated as protected religious belief.")

The non-use of tithes for City Creek does not "threaten the public's health, safety, or general welfare."

Quote

For those disputes that we can resolve, Texas courts must apply a "neutral principles methodology" meaning they "apply neutral principles of law to non-ecclesiastical issues involving religious entities in the same manner as they apply those principles to other entities and issues." Masterson , 422 S.W.3d at 606 ; Episcopal Diocese of Ft. Worth , 422 S.W.3d at 650 ("But courts applying the neutral principles methodology defer to religious entities' decisions on ecclesiastical and church polity issues such as who may be members of the entities and whether to remove a bishop or pastor, while they decide non-ecclesiastical issues such as property ownership and whether trusts exist based on the same neutral principles of secular law that apply to other entities."). For property ownership disputes, neutral principles "will usually include considering evidence such as deeds to the properties, terms of the local church charter (including articles of incorporation and by laws, if any), and relevant provisions of governing documents of the general church." Masterson , 422 S.W.3d at 603.

For issues about the meaning and ambit of tithing, I think the courts will have a hard time locating "neutral principles methodology" that do not entail defining tithing so that it refers to both voluntary donations by members and also earnings on invested reserves, then this amounts to a re-definition of the word.  Such re-definition cannot occur without violating the Church Autonomy Doctrine.

Quote

As our supreme court noted, the "differences between ecclesiastical and non-ecclesiastical issues will not always be distinct, and that many disputes of the type before us will require courts to analyze church documents and organizational structures to some degree." Id. at 606 ; see also Tran v. Fiorenza , 934 S.W.2d 740, 743 (Tex.App.--Houston [1st Dist.] 1996, no pet.) ("The difficulty comes in determining whether a particular dispute is ‘ecclesiastical’ or simply a civil law controversy in which church officials happen to be involved.").

Boy, that is an apt description of what the Ninth Circuit is addressing.

Quote

In so deciding, "courts must look to the substance and effect of a plaintiff's complaint to determine its ecclesiastical implication, not its emblemata." Tran , 934 S.W.2d at 743, citing Green v. United Pentecostal Church Int'l , 899 S.W.2d 28, 30 (Tex.App.--Austin 1995, writ denied) ; see also Mouton v. Christian Faith Missionary Baptist Church , 498 S.W.3d 143, 149-50 (Tex.App.--Houston [1st Dist.] 2016, no pet.) (sustaining challenge to jurisdiction because appellants' claims were "inextricably intertwined with inherently ecclesiastical issues"); Williams , 26 S.W.3d at 59 ("Whether this suit is ecclesiastical, or concerns property rights, torts, or criminal conduct, is determined by first examining the substance and effect of the [plaintiffs'] petition--without considering what they use as claims--to determine its ecclesiastical implication.").

This is where I think your over-reliance on Huntsman's pleadings becomes apparent.  The Courts are not bound by his say-so, by his complaint's "emblemata."  Instead, the Ninth Circuit will "look to the substance and effect of a plaintiff's complaint to determine is ecclesiastical implication{s}."  This is how, I think, the Ninth Circuit ended up asking all sorts of questions about the Church Autonomy Doctrine.  The "substance and complaint" of Huntsman's lawsuit requires defining tithing so that it means both members donating one tenth of one's increase annually and also the Church's post-donation realization of income from invested reserves.

Quote

While the dividing line is not always clear, existing case law gives us some guide posts. First, questions of church  membership and the discipline of church members uniformly invoke ecclesiastical abstention. Thus, in Mouton v. Christian Faith Missionary Baptist Church , the court declined to hear a suit inextricably intertwined with the selection of the church's pastor and the church's expulsion of members--both issues are "long recognized to be inherently ecclesiastical and of prime importance to the exercise of religious liberty." Mouton , 498 S.W.3d at 150. Similarly, in Singh v. Sandhar , a trial court erred in involving itself with validation of members eligible to vote in a church election, as well as requiring the election in the first place. One faction in the church had filed suit to set aside an election for a governing council, claiming the election violated the church's bylaws. Singh , 495 S.W.3d at 485. The trial court ordered a new election, and then partially entangled itself into a dispute over the list of persons eligible to vote. Id. at 485-86. The appellate court, however, concluded that ecclesiastical abstention precluded both the trial court's role in policing the voter list, as well as the initial decision to order a new election. Id. at 490-91, 493. Absent a question of property rights, the internal governance dispute was beyond the scope of trial court's jurisdiction. Id.

This is inapplicable to Huntsman's lawsuit.

Quote

Along similar lines, the exclusion of persons from entering church property may raise an ecclesiastical matter. In Retta v. Mekonen , a trial court entered an injunction prohibiting a church from excluding from worship services any person who was peaceably participating in the service. 338 S.W.3d 72, 75 (Tex.App.--Dallas 2011, no pet.). The issue arose because the church, in apparent contravention of its own bylaws, had required monthly membership dues that several parishioners failed to pay. Id. at 74. The appellate court concluded, however, that a church has a right to control its membership without government interference, which includes the authority to determine who could be excluded from the property. Id. at 76. Moreover, the church's failure to follow its own bylaws on a matter of internal governance was also a matter of ecclesiastical concern, which courts are likewise prohibited from interfering with. Id. at 77.

Also inapplicable to Huntsman.

Quote

Another line of cases has applied ecclesiastical abstention to defamation suits stemming from pastoral statements.

This is very applicable to Huntsman's lawsuit.  Pres. Hinckley's 2003 statement would, I think, plainly qualify as a pastoral statement.

Quote

The court in In re Godwin confronted a defamation suit based on the pastor publicly "marking" a former member of the church by accusing him of bribery and slander. 293 S.W.3d 742, 749 (Tex.App.--San Antonio 2009, orig. proceeding). "Marking" is a concept that the church claimed was founded in the scriptures. Id. at 748. While acknowledging that there could be some outer limit to abstention in the defamation context, the court nonetheless concluded that defamation and intentional infliction of emotional distress claims based on the marking were beyond the jurisdiction of the courts. Id. at 749 ;

Huh.  So "marking" seems to have been a term of art, a word used in a particularly religious way by a religious group.  And regardless of whether the statement would ultimately have been found to be defamatory, the court said that the Church Autonomy Doctrine preemptively barred the court's from adjudicating defamation and IIED claims about the statement because they involved a religious concept ("marking").

I suspect the Ninth Circuit may take a similar hey-we-don't-have-jurisdiction-to-address-this approach to Huntsman's claims relative to Pres. Hinckley's 2003 statement about "tithing."

Quote

In re Godwin raised another issue. The former church member alleged that the church had misused church funds, which formed the basis of a fraud allegation. 293 S.W.3d at 749-50.

I would not be at all surprised to see the Ninth Circuit cite In re Godwin in their decision in Huntsman.  Even though it comes from Texas, the same generalized principles and parameters about the Church Autonomy Doctrine will apply.  Indeed, I suspect several of the Ninth Circuit judges reviewed In re Godwin prior to Wednesday's hearing, as it is about as on-point to Huntsman as you can get: "The former church member alleged that the church had misused church funds, which formed the basis of a fraud allegation."

Quote

Some of the disputed financial expenditures, however, were approved by a committee based on the church's doctrine. Id. Necessarily, the determination of whether the financial expenditures were proper would have required an inquiry into whether the expenditures were justified by the church's religious doctrine and practices. Id. Accordingly, the court lacked any jurisdiction to hear the fraud claim upon which the challenged expenditures was based. Id.

It appears that Godwin did not involve a plaintiff seeking to couch a quintessentially religious term and concept - tithing - in "purely secular" terms, as Huntsman is doing.  Still, the holding here may play out: "Necessarily, the determination of whether the financial expenditures were proper would have required an inquiry into whether the expenditures were justified by the church's religious doctrine and practices."  Such an inquiry is barred by the Church Autonomy Doctrine.

Here is a link to the In re Godwin case.  An excerpt:

Quote

Nail's fraud claim, which alleges Godwin and ENCF used church funds for improper purposes, also appears to concern an ecclesiastical matter. In Harris v. Matthews, 361 N.C. 265, 643 S.E.2d 566, 571 (2007), plaintiffs alleged a church pastor, secretary, and chairman of the church's board of trustees made improper financial expenditures. Upon reviewing the plaintiffs' allegations, the court stated "[d]etermining whether actions, including expenditures, by a church's pastor . . . were proper requires an examination of the church's view of the role of pastor,  staff, and church leaders, their authority and compensation, and church management." Id. The court explained:

[b]ecause a church's religious doctrine and practice affect its understanding of each of these concepts, seeking a court's review of the matters presented here is no different than asking a court to determine whether a particular church's grounds for membership are spiritually or doctrinally correct or whether a church's charitable pursuits accord with the congregation's beliefs. None of these issues can be addressed using neutral principles of law.

Id.

Similarly, in Wolter v. Delgatto, No. 14-05-00055-CV, 2006 WL 664214, *2 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (mem. op.), the plaintiff accused her former church of conversion and misusing church funds in connection with a development project. The plaintiff argued the trial court had subject matter jurisdiction over her claims against the church because they related to financial and not doctrinal matters. Id. The court of appeals, however, disagreed. Id. The Wolter court explained the plaintiffs case concerned whether the church followed its constitution when it became involved with a housing and urban development project. Id. The court emphasized that "[t]his is true despite [the plaintiff's] attempt to invoke the trial court's jurisdiction by framing her claims in civil terms." Id. The court therefore concluded the plaintiffs "claims, viewed substantively and considering the effect of their resolution by a civil court, relate to how and when [the church] may spend its resources and are thus ecclesiastic in nature." Id.

"The plaintiff argued the trial court had subject matter jurisdiction over her claims against the church because they related to financial and not doctrinal matters.  The court of appeals, however, disagreed ... {explaining that} the plaintiff's case concerned whether the church followed its constitution when it became involved with a housing and urban development project ... The court emphasized that '[t]his is true despite {the plaintiff's} attempt to invoke the trial court's jurisdiction by framing her claims in civil terms.'"  This is precisely what Huntsman is doing.  He is "attempt{ing} to invoke" the jurisdiction of secular courts by framing his disagreements with the Church as "claims in civil terms" (that is, as "fraud" claims).  

"The court therefore concluded the plaintiff's 'claims, viewed substantively and considering the effect of their resolution by a civil court, relate to how and when {the church} may spend its resources and are thus ecclesiastic in nature.'"  I think this is how Huntsman and its progeny will turn out.

Quote

Like the plaintiffs in Harris and Wolter, Nail raises allegations about misuse of church funds. Nail asserts Godwin and ENCF were poor stewards of church funds and failed to use the church's resources for "good church purposes." From the mandamus record before us, it appears some of the disputed financial expenditures may have been approved by ENCF's Finance Committee, which, under ENCF's belief system, owes a responsibility to God to ensure the church is run properly. In addition, it appears a biblical basis may exist to support some of the other disputed financial expenditures. The determination of whether Godwin and ENCF's financial expenditures were proper in this case requires an inquiry into whether the expenditures were justified in light of ENCF's religious doctrine and practices. Because this is the type of ecclesiastical inquiry courts are forbidden to make, we conclude the trial court abused its discretion by asserting jurisdiction over Nail's fraud claim.

"The determination of whether Godwin and ENCF's financial expenditures were proper in this case requires an inquiry into whether the expenditures were justified in light of ENCF's religious doctrine and practices. Because this is the type of ecclesiastical inquiry courts are forbidden to make, we conclude the trial court abused its discretion by asserting jurisdiction over Nail's fraud claim."

Yep.

Back to the Ferrero case:

Quote

One area where courts have not uniformly abstained, however, are property ownership disputes. That issue reached the Texas appellate courts following a schism in the Episcopal faith over a doctrinal dispute.  The Texas Supreme Court heard one such suit in Masterson . Some members of a local parish sought to leave the national organization ("The Episcopal Church") and the regional diocese that oversaw the parish. 422 S.W.3d at 597-98. The parishioners did so by voting to amend the bylaws of the Texas non-profit corporation that established the parish. Id. The diocese refused to honor the amendments, and it appointed a new priest-in-charge and recognized a group of loyal parishioners who elected a new vestry (a parish's governing council). Id. A lawsuit followed, seeking in part declarations as to who controlled the parish property, and which faction represented the true parish. Id. at 598. On cross-motions for summary judgment, the trial court and intermediate court of appeals sided with the diocese and national church. Id. at 599-600.

The Texas Supreme Court reversed and remanded. The court agreed that the trial court lacked jurisdiction over whether the diocese's bishop was authorized to form a new parish, recognize its membership as the "true" parish, and whether he could or did authorize that parish to establish a vestry. Id. at 608. These were ecclesiastical matters of church governance over which the trial court properly deferred to the bishop's exercise of ecclesiastical authority. Id. But those decisions did not necessarily determine the property ownership issue, nor did they govern the secular legal question of the validity of the parish members' vote to amend the bylaws and articles of incorporation. Id. at 610. The court held that the corporation, with its secular existence derived from state law and its articles of incorporation and bylaws, is subject to a neutral principles' determination. Id. As such, whether the corporation's bylaws were complied with when a vote was taken to disassociate the corporation from the hierarchical church was reviewable. Id.

Application

...

Based on these landmarks, we conclude that the trial court lacked the subject matter jurisdiction to hear the claims against Hector Ferrero, Rosa Ferrero, and Sanchez. Of the three theories asserted in the petition, the conversion allegation comes closest to the Masterson line of cases. Yet that claim does not involve any issue of title to property. Nor does it seek any declaration of who has access to, or control over the Church's personal property or accounts. For that matter, it does not seek any sort of declaration  as to who the officers or directors of the Church are. Rather, it only seeks monetary damages for the defendants' respective roles in the conversion of personal property, the tithe, and the bank account. To develop the case for those monetary damages, however, the Church would necessarily embroil the courts into membership, church discipline, and church governance matters. That is to say, the claim for monetary damages would require more than a neutral principles analysis of the articles of incorporation. The spark for monetary relief will touch several ecclesiastical matters. We reach that conclusion both from the pleaded allegations and the evidence that the Church offered in response to the motions for summary judgment.

"To develop the case for those monetary damages, however, the Church would necessarily embroil the courts into membership, church discipline, and church governance matters. That is to say, the claim for monetary damages would require more than a neutral principles analysis of the articles of incorporation. The spark for monetary relief will touch several ecclesiastical matters."

The same can be said, I think, about Huntsman's allegations.

Quote

The Church's pleaded allegation under the conversion count claims that the defendants wrongfully exercised control over Church property "by changing the bank where funds are deposited, changing the locks to the temple, taking control of the tithe, and subjecting any and all parities [sic] that disagree with these actions to intimidation, ridicule, and humiliation directed from the pulpit to the faithful." These claims largely fall within areas previously held as triggering ecclesiastical abstention. See Retta , 338 S.W.3d at 75 (access to church property); In re Godwin , 293 S.W.3d at 749 (statements made from pulpit and use of church monies); Hawkins v. Friendship Missionary Baptist Church , 69 S.W.3d 756, 759 (Tex.App.--Houston [14th Dist.] 2002, no pet.) (in absence of controlling governing document, a power struggle between the Church, its deacons, and the pastor could not be resolved only on neutral principles of law, but would require reference to religious doctrine or polity).

"The Church's pleaded allegation under the conversion count claims that the defendants wrongfully exercised control over Church property 'by changing the bank where funds are deposited, changing the locks to the temple, taking control of the tithe, and subjecting any and all parities [sic] that disagree with these actions to intimidation, ridicule, and humiliation directed from the pulpit to the faithful.' These claims largely fall within areas previously held as triggering ecclesiastical abstention."

The same can be said, I think, about Huntsman's allegations.

Quote

Additionally, the evidence that the Church used to respond to the motion for summary judgment shows how its case is inextricably intertwined with ecclesiastical issues.

"{I}nextricably intertwined with ecclesiastical issues."

That sure sounds a lot like the Ninth Circuit judge's observation that "tithing ... is a quintessential religious issue."

Quote

That evidence consists of two affidavits that in themselves do not state any substantive facts germane to the conversion claim. Rather, the affidavits attempt to prove up other documents, such as the original articles of incorporation, demand letters and responses to the demand letters, and most importantly, the meeting minutes from the January 18, 2014 church meeting. The meeting minutes state that "the congregation requested to place in discipline the Treasurer--Armando Oaxaca and for him to be destitute of the position of Treasurer." The minutes conclude that "Oaxaca can't function as Treasurer since he is not attending services or tithing to the congregation." Discipline of church members, particularly based on a scriptural concept such as tithing, are uniquely ecclesiastical. See Mouton , 498 S.W.3d at 150 (declining to hear discipline and membership issues); Hawthorne v. Couch , 911 So.2d 907, 910 (La. App. 2d Cir. 2005) ("The issue of tithing is at its core a purely ecclesiastical matter."); Glass v. First United Pentecostal Church of DeRidder , 676 So.2d 724, 735 (La. App. 3d Cir. 1996) ("Furthermore, tithing is at the root of ecclesiastical doctrine. If these complaints are in any way related to discipline on such, they would fall outside of the Court's jurisdiction."). Additionally, the minutes state that the "bank account is the property of [the Church] and no money shall be used unless it is approved by two thirds vote of the congregation of [the Church]." The Church's summary judgment proofs showed that while the bank account was moved, any expenditures were approved by a two-thirds vote of the congregation. At best, this raises an internal governance issue for which the courts should abstain. See In re Godwin , 293 S.W.3d at 749-50 (declining to hear fraud claim over disputed use of church funds); Hawkins , 69 S.W.3d at 759 (declining to  hear dispute that in part involved deacons attempt to interfere with pastor's expenditure of funds).

• "Discipline of church members, particularly based on a scriptural concept such as tithing, are uniquely ecclesiastical."
• "'The issue of tithing is at its core a purely ecclesiastical matter.'"
• "{T}ithing is at the root of ecclesiastical doctrine. If these complaints are in any way related to discipline on such, they would fall outside of the Court's jurisdiction."
• "At best, this raises an internal governance issue for which the courts should abstain."

Kinda hard to square this with Huntsman's lawyer's insistence that Huntsman's dispute about tithing is purely secular, just a matter of "accounting."

Quote

The other claims--fraud and breach of fiduciary duty, equally implicate facts that are inextricably intertwined with internal church governance, the role of the pastor in church affairs, membership in the congregation, and statements of the pastor from the pulpit. The breach of fiduciary allegations itself claims Hector Ferrero "has misused the pulpit to gain the control of the purse and the power over the congregation for his sole benefit." The fraud allegation also refers to representations made to the congregation and misleading the congregation about internal church governance. We likewise conclude the trial court also lacked the jurisdiction to hear those claims under ecclesiastical abstention.

"{Fraud claims} equally implicate facts that are inextricably intertwined with internal church governance, the role of the pastor in church affairs, membership in the congregation, and statements of the pastor from the pulpit."

"The fraud allegation also refers to representations made to the congregation and misleading the congregation about internal church governance. We likewise conclude the trial court also lacked the jurisdiction to hear those claims under ecclesiastical abstention."

Wow.  I can practically envision the Ninth Circuit judges' desks littered in dogeared copies of In re Godwin, Ferrero, etc.

1 hour ago, Analytics said:

I think the Judges asked challenging questions about it because they wanted to show how much they were thinking about it diligently.

They weren't just posturing.  They were expressing their most substantive concerns about the dispute, and those concerns centered heavily on the Church Autonomy Doctrine.

They were also giving some indications as to where they were headed in their examination.

1 hour ago, Analytics said:

And I suspect Judge Smith’s “What am I missing?” question was actually intended as a softball so that Huntsman’s attorney could explain how tithing funds do in fact have a secular definition--we are not talking about religious doctrine, we are merely talking about specific real-world donations that were made, and alleged specific real-world promises that were made about how those funds would or would not be deployed in the real world.

Um, no.  That was not a "softball."

1 hour ago, Analytics said:

Here Is My Prediction (Bookmark This So You Can Say “I Told You So!”)

The Ninth Circuit will reaffirm what the Circuit Court said and what the three-judge panel unanimously said: this case is not secular, and the Church’s motion to dismiss based on church autonomy is DENIED. They will articulate the limits of church autonomy in language that will be quoting for years. What they might do is give the Church a small win by saying that since some of Hinckley’s comments were made in a religious setting, those specific comments are inadmissible as evidence because of church autonomy.  But that won’t change the fact that the motion to dismiss based on Church Autonomy will be denied.

After they deny the motion to dismiss, they will look at the motion for summary judgement. In a split decision, they’ll rule in the Church’s favor and conclude that “no reasonable juror could find that the Church had fraudulently misrepresented how tithing funds were used."

My prediction goes the other way, that is, the Ninth Circuit will find that the Church Autonomy Doctrine applies to most or all of Huntsman's claims, much in the ways it applied in In re Godwin and Ferrero.  

I don't know if I would have said this prior to the hearings this week.  Frankly, I think the Ninth Circuit's review of Huntsman was substantially superior to the Tenth Circuit's review of Gaddy.

Thanks,

-Smac

Edited September 27, 2024 by smac97

[Analytics]

48 minutes ago, smac97 said:

I hate to be pedantic, but the term is "precedent."

Thank you. I hate making mistakes like that.

48 minutes ago, smac97 said:

It will?  Aren't you the same guy who has been insisting that the Church Autonomy Doctrine is irrelevant to the Huntsman case?

I've been arguing that the Church’s motions to dismiss based on the autonomy doctrine will continue to be denied for the reasons stated by 100% of the judges who have ruled on this issue. Church autonomy is relevant because the Church keeps making motions based on this, but the motions will continue to be denied for the same reasons they always have been.

48 minutes ago, smac97 said:

"Tithing" is plainly a religious/doctrinal/theological concept.  Its meaning, particularly when that term was used by Pres. Hinckley et al., is disputed by Huntsman and those that have followed him.

No, it isn’t. They’re talking about the dollars that Huntsman has donated to the Church that were categorized as “tithing.” If there is a dispute about this that is pertinent to the claims Huntsman is actually making, it would be of the form, “While Huntsman says he’s paid over $5 Million in tithing, our records prove he’s actually paid less than $500,000 in tithing in his entire life."

That is what a factual dispute would look like in this case, and the actual truth of the matter could be figured out by a forensic accountant without encroaching on religious/doctrinal/theological issues. That is why, summarizing the unanimous opinion of the judges on the 9th Circuit Appeals Panel,  Judge W. Fletcher said:

"The panel rejected the Church’s argument that Huntsman’s fraud claims are barred by the First Amendment. The panel held that the ecclesiastical abstention doctrine did not apply because the questions regarding the fraud claims were secular and did not implicate religious beliefs about tithing itself. Nor was the panel required to examine Huntsman’s religious beliefs about the appropriate use of church money."

48 minutes ago, smac97 said:

This is where I think your over-reliance on Huntsman's pleadings becomes apparent.  The Courts are not bound by his say-so, by his complaint's "emblemata."  Instead, the Ninth Circuit will "look to the substance and effect of a plaintiff's complaint to determine is ecclesiastical implication{s}."  This is how, I think, the Ninth Circuit ended up asking all sorts of questions about the Church Autonomy Doctrine. 

Are you aware that a panel of Ninth Circuit judges have already offered an opinion on these issues? That is what I’m relying on, not Huntsman’s pleadings. 

It’s theoretically possible that the unanimous decisions on the church autonomy motions will all be reversed now. But that would be a stunning change of direction.

48 minutes ago, smac97 said:

The "substance and complaint" of Huntsman's lawsuit requires defining tithing so that it means both members donating one tenth of one's increase annually and also the Church's post-donation realization of income from invested reserves.

You keep saying that, but I don’t hear anybody else saying that. Three judges have already said that "the Church selectively quotes from Huntsman’s brief and misrepresents the nature of his claim,” and I can’t help but wonder if you are the one relying too heavily on the Church’s pleadings and their misrepresentations of Huntsman.

48 minutes ago, smac97 said:

I suspect the Ninth Circuit may take a similar hey-we-don't-have-jurisdiction-to-address-this approach to Huntsman's claims relative to Pres. Hinckley's 2003 statement about "tithing."

If the Ninth Circuit did choose to reverse what the panel unanimously said about church autonomy, would they have to explain the flaws in the panel’s analysis? What do you think those flaws are? 

48 minutes ago, smac97 said:

Um, no.  That was not a "softball."

I thought it was. As the panel concluded, this is a secular dispute and there are secular, uncontroversial definitions of the words involved. We don’t need to have a theological discussion to ascertain the truth about how much “tithing” James Huntsman contributed. We don’t need to have theological discussion to ascertain what the church did with the money. In the words of the panel:

"In the case before us, we are not required to rely on or interpret the Church’s religious teachings to determine if it misrepresented how it was using tithing funds. Nor are we required to examine Huntsman’s religious beliefs about the appropriate use of church money. Instead, as presented to us, the questions are secular. The questions are whether the Church’s statements about how it would use tithing funds were true, and whether Huntsman reasonably relied on those statements when he made tithing contributions. A court or jury can answer these questions based on secular evidence and analysis."

-Judge William A. Fletcher, speaking of the James Huntsman v. Church Lawsuit

Edited September 27, 2024 by Analytics

[smac97]

59 minutes ago, Analytics said:

@smac97,

We’ve spent a lot of time talking about how you view the case and how you think the only way Huntsman can win is asking the courts to impose a definition of “tithing” on the Church, retroactively apply this new definition to things Hinckley has said, use that court-imposed definition of a religious doctrine to change the meaning of Hinkley’s words from what he intended to something else, and then declare Hinckley committed fraud based on this post hoc recasting of his words.

I get that you see it that way. 

But what do you think of the opinions of the Circuit Court and the Appeals Court panel? 

I don't know what you are referencing here.  There was 1) the District Court's decision (which is the one under review by the Ninth Circuit), and 2) the three-judge panel's now-vacated-and-no-longer-relevant decision.

59 minutes ago, Analytics said:

Can you explain to me why I am wrong for seeing the issues the same way they do?

I've been doing that a lot.  See, for example, my recent post quoting In re Godwin and Ferrero, as well as the cases they cite (Hawthorne, Glass, Kedroff, Serbian, Masterson, Tran, Mouton, Singh, Harris, Wolter, etc.), as well as Harmston and Gaddy.  I have read or reviewed these cases fairly extensively over a period of years, as well as many others.  I suspect you have not, and that you have instead focused solely on the trial court's decision and the three-panel decision (the latter, again, has been vacated and is therefore not part of the Ninth Circuit's assessment).

The application of the Church Autonomy Doctrine has been amply addressed throughout the United States.  While the factual underpinnings of these cases differ from each other in varying degrees, the overall picture painted as to the scope and application of the Church Autonomy Doctrine is, in my view, pretty clear.

Huntsman's attorneys, to their credit, have been working pretty hard to thread the needle and avoid the Church Autonomy Doctrine.  It mostly worked at the trial court, though is a pyrrhic sort of way (since Huntsman lost on the merits).  However, I think the Ninth Circuit rather clearly signaled that it thinks the doctrine does apply, and that the Ninth Circuit's application of it will be similar to that in In re Godwin and Ferrero.  We'll have to wait and see.

59 minutes ago, Analytics said:

See below (For readability, I removed the references, which can be seen in the original here)

As an alternative and independent basis for affirming the district court, the Church argues that Huntsman’s fraud claim is barred by the First Amendment, under what the district court referred to as the “church autonomy doctrine.”

We generally refer to the doctrine upon which the Church relies as the “ecclesiastical abstention doctrine.” The doctrine prohibits courts from deciding “internal church disputes involving matters of faith, doctrine, church governance, and polity.” The doctrine is “a qualified limitation, requiring only that courts decide disputes involving religious organizations ‘without resolving underlying controversies over religious doctrine.’” 

In support of its First Amendment argument, the Church contends that “Huntsman objects to the use of any Church funds for City Creek.” (Emphasis in original.) In so contending, the Church selectively quotes from Huntsman’s brief and misrepresents the nature of his claim. Huntsman does not object to the use of Church funds for the City Creek Mall project. Rather, he objects to how the Church represented the project would be funded. Huntsman contends that the Church solicited tithes from him by misrepresenting the purposes for which the tithes were being and would be used. Specifically, Huntsman contends that the Church denied that tithing funds would be and were used to pay for the City Creek Mall project when, in fact, tithing funds were being used for that purpose.

The ecclesiastical abstention doctrine protects First Amendment rights by avoiding court entanglement “in essentially religious controversies” or the state intervening on behalf of a particular religious doctrine. But these “considerations are not applicable to purely secular disputes between third parties and a particular defendant, albeit a religious affiliated organization, in which fraud . . . [is] alleged.”  That is because “under the cloak of religion, persons may [not], with impunity, commit frauds upon the public.” 

While there is no in-circuit case directly on point, there is a closely analogous decision by a district court in the Tenth Circuit. In Gaddy v. Corp. of President of Church of Jesus Christ of Latter-Day Saints, former members of the Church brought a civil RICO claim contending that the Church’s statements about tithing were false. The district court held that the First Amendment did not bar plaintiffs’ claims because the claims “d[id] not implicate religious principles of the Church or the truth of the Church’s beliefs concerning the doctrine of tithing . . . or [if] its members were acting in accord with what they perceived to be the commandments of their faith.” Like the fraud claims in Gaddy, the fraud claim here does not implicate religious beliefs about tithing itself.

The Free Exercise Clause is violated if “the truth or verity of respondents’ religious doctrines or beliefs [is submitted] to the jury.” In the case before us, we are not required to rely on or interpret the Church’s religious teachings to determine if it misrepresented how it was using tithing funds. Nor are we required to examine Huntsman’s religious beliefs about the appropriate use of church money. Instead, as presented to us, the questions are secular. The questions are whether the Church’s statements about how it would use tithing funds were true, and whether Huntsman reasonably relied on those statements when he made tithing contributions. A court or jury can answer these questions based on secular evidence and analysis. (“The dispute, which ‘concern[s] the [d]efendants’ actions, not their beliefs,’ turns entirely on ‘what the [defendants] did, . . . and the texts guiding [their] actions can be subjected to secular legal analysis.’”)  A court or jury can look at public statements and relevant financial records of the Church to determine what church officials said about how the City Creek Mall project would be financed and to determine what funds were actually used to finance the project. A court or jury can assess Huntsman’s reliance by looking to the Church’s and Huntsman’s evidence and asking if Huntsman reasonably relied on the Church’s statements in deciding whether to tithe.

A few thoughts:

First, you are placing too much weight and meaning on the three-judge panel's decision.  It's not part of the equation because it was vacated.  

Second, the panel decision having been vacated means that the Ninth Circuit's examination of Huntsman's lawsuit is based only on the trial court's decision.  And trial courts get reversed all time.

Fourth, your "the way every court who has offered an opinion on this looks at it" argument does not work because the only "opinion" in view is the one from the trial court.  

Fifth, a reversal of the trial court's findings re: the Church Autonomy Doctrine seems very possible, even the most likely outcome, based on A) the hearing on Wednesday (in which the Ninth Circuit judges focused heavily on it, posing questions that were clearly skeptical of Huntsman's argument that it does not apply; and B) the outcome of decisional authorities from other jurisdictions, such as those in In re Godwin and Ferrero.

Thanks,

-Smac

[Calm]

2 hours ago, smac97 said:

Christians believed these events are "factual" insofar as they are believed to have really happened.  But they are still religious claims, not secular ones

You missed my point.  I am not talking about how it would be looked at now, but in the past.  If a court had been called back when Jesus was alive…say to prove whether or not Lazarus was raised from the dead because someone was claiming it wasn’t Lazarus, that could be something that was a secular decision…is Lazarus Lazarus or not.  And then if Lazarus was proved to be himself, then was Lazarus dead or wasn’t he….calling enough witnesses that said he stunk, it was past the third day, etc proves Lazarus was dead.  Next step to prove was Lazarus raised from the dead by Jesus.  Simply calling witnesses that saw it and accepting that as the necessary witness of him being raised from the dead by Jesus could make it a secular question, I am guessing.

Christ being the Son of God would always be religious because even the appearance of God to say he was his son would be seen as a religious event because there would be a debate whether that was God or not.  

Of course any court case on the life of Jesus in the here and now will be a religious one.

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So a federal judge can define "tithing" without "examining what {the Church's} doctrine {about tithing} is"?  

Is it defining tithing if the judge states ‘we want to track where the money went that was submitted to the Church for the first category of  donations slip?’ Not a challenge, serious question based on your previous comment.

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Asking a federal judge to examine whether "something was done with the tithing" requires that the court define both "something" and "tithing."  The "something" is "funding City Creek."  "Tithing" refers to . . . what?  Voluntary donations of one tenth of one's increase annually?  Or does it refer to such voluntary donations and also any earnings the Church may realize by investing reserve funds?  Huntsman's lawsuit will require the federal courts to apply the latter.  But this is an exercise in equivocation, and it runs afoul of the Church Autonomy Doctrine.

If this is the level that judges look at each time in a case, then I can see why it would always be a religious issue.  But could Huntsman just say ‘I am talking about money donated in the first category listed by the Church on their donations slip when I say tithing’ and the court accept that as a definition since the Church has officially created that category and labeled it Tithing?

 

Edited September 27, 2024 by Calm

[smac97]

32 minutes ago, Analytics said:

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"Tithing" is plainly a religious/doctrinal/theological concept.

No, it isn’t.

Yes.  it is.  The Ninth Circuit judge called it "a quintessential religious issue."  Another asked: “How can a church have a secular definition of a religious obligation?”  See also Glass v. First United Pentecostal Church of DeRidder, 676 So.2d 724, 735 (La. App. 3d Cir. 1996) ("Furthermore, tithing is at the root of ecclesiastical doctrine. If these complaints are in any way related to discipline on such, they would fall outside of the Court's jurisdiction") (emphases added)); Hawthorne v. Couch, 911 So.2d 907, 910 (La. App. 2d Cir. 2005) (“The issue of tithing is at its core a purely ecclesiastical matter”) (emphasis added).

See also this law firm blog article: Donors to local religious entities have a legal path to successfully sue religious denominations for return of donations based on fraud.

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In a potentially groundbreaking case, the Ninth Circuit Court of Appeals has ruled that a church member may proceed with a lawsuit to recover donations when a denomination fraudulently told its members that it was using tithes and offerings for charitable means, when in fact the funds were used for a commercial enterprise.

In Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 76 F. 4^th 962 (9^th Cir., 2023), the Plaintiff was a member of the Defendant denomination and donated multiple millions of dollars to the Defendant for charitable means. In 2019, the Plaintiff learned of an IRS complaint made by a prior employee of a money management funds of the Defendant denomination that it was using tithes and offerings to pay for a shopping mall and a commercial insurance company. Prior to that time, the Defendant denomination put out several publications and press releases stating the no tithes and offerings would be used for the commercial real estate venture. The Plaintiff donor requested his donations back, and when they refused sued alleging fraud.

The denomination moved to dismiss the complaint based on the theory of ecclesiastical abstention, claiming that the truth or veracity of the religious doctrine or beliefs was not justiciable and could not be addressed by a civil court. The district court agreed and dismissed the case based on the doctrine of ecclesiastical abstention. The Court of Appeals, however, reversed finding that the fraud claims alleged in the complaint did not implicate religious beliefs about tithing itself. This conclusion was reached after reviewing a similar decision where the claims pled was based on RICO. Gaddy v. Corp. of President of Church of Jesus Christ of Latter-Day Saints, 551 F. Supp. 3d 1206, 1211, 1215 ( D. Utah 2021)

I think that this law firm is characterizing the three-judge panel's decision in Huntsman as "potentially groundbreaking" is a pretty good indicator of it being, well, "groundbreaking."  New.  A significant and surprising departure from legal precedent.

I think the Ninth Circuit likewise saw Huntsman as "potentially groundbreaking."  I also think that the Ninth Circuit's questions during the hearing on Wednesday are pretty good indicators that they think Huntsman (and, by extension, Gaddy) got it wrong in relation to the Church Autonomy Doctrine.

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Finding that the fraud claim presented to the court is secular in nature, the Court of Appeals reversed the dismissal and remanded to the trial court for a jury to determine the veracity of the fraud claim.

The impact of this decision could be significant. And it raises the bar higher for churches who raise funds for one thing, only to use the money for another. The donor seeking money back from a denomination would need to clearly articulate the facts rising to fraud to survive a motion to dismiss and subsequent appeal.

It could be that the Ninth Circuit also sees Huntsman as modifying the application of the Church Autonomy Doctrine (in that it "raises the bar higher for churches"), and that this modification is wrong.

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It would not be surprising to see the Supreme Court weight into this issue, to help clarify the cases in which a civil court has jurisdiction over a case involving religious entities. There is a very narrow line of case law which allows civil courts to review property dispute cases. Whether civil courts can look at fraud, RICO or other actions remain to be seen.

I would welcome SCOTUS review of Huntsman, because 1) I think it would create a more definitive precedent for the application of the Church Autonomy Doctrine in the context of tithing-related claims, and 2) I think the SCOTUS would strengthen the Church Autonomy Doctrine along the lines of In re Godwin, Ferrero, and - it seems - the Ninth Circuit's forthcoming decision in Huntsman.

Of course, the Church would incur significant additional legal fees in the process, but perhaps preserving religious liberty against undue governmental incursions is worth the expense.  And boy, I think lots of religious groups would come out with amicus briefs galore in support of the Church's position.  America presently enjoys a robust protection of First Amendment freedoms, including those enjoyed by religious groups.

Meanwhile, Huntsman would also bear significant legal expenses if this matter were to proceed to the Supreme Court.  My admittedly-somewhat-based-in-schadenfreude hope is that he will have, at that point, spent tons of his money in a quixotic "lawfare" effort against the Church, only to not just lose in the effort, but also to have spent substantial sums of his own wealth to create important legal precedent which will benefit the Church.

 

32 minutes ago, Analytics said:

They’re talking about the dollars that Huntsman has donated to the Church that were categorized as “tithing.”

Put more succinctly: "They're talking about {} tithing."

32 minutes ago, Analytics said:

If there is a dispute about this that is pertinent to the claims Huntsman is actually making, it would be of the form, “While Huntsman says he’s paid over $5 Million in tithing, our records prove he’s actually paid less than $500,000 in tithing in his entire life."

If there is a dispute about this that is pertinent to the claims Huntsman is actually making, it would be of the form, "Are federal courts at liberty to accommodate a litigant's request to re-define a quintessentially religious term and concept - 'tithing' - so that it not only refers to an adherent's voluntary donation of one tenth of his increase and also any earnings the Church may realize by investing reserve funds, and to then impose that definition on a religious group?  Or is such an exercise a violation of the Church Autonomy Doctrine?"

32 minutes ago, Analytics said:

That is what a factual dispute would look like in this case, and the actual truth of the matter could be figured out by a forensic accountant without encroaching on religious/doctrinal/theological issues. That is why, summarizing the unanimous opinion of the judges on the 9th Circuit Appeals Panel,  Judge W. Fletcher said:

"The panel rejected the Church’s argument that Huntsman’s fraud claims are barred by the First Amendment. The panel held that the ecclesiastical abstention doctrine did not apply because the questions regarding the fraud claims were secular and did not implicate religious beliefs about tithing itself. Nor was the panel required to examine Huntsman’s religious beliefs about the appropriate use of church money."

Are you aware that a panel of Ninth Circuit judges have already offered an opinion on these issues? That is what I’m relying on, not Huntsman’s pleadings. 

Are you aware that the three-judge panel's opinion was vacated? 

Are you also aware that a vacated opinion has no legal force or effect? 

Are you also aware that the Ninth Circuit's en banc review is not about the three-judge panel's decision, and is instead about the decision of the trial court's decision?  That the en banc appellate review is de novo (that is, the en banc Circuit Court will be deciding the issues without reference to any legal conclusion or assumption made by the three-judge panel)?

32 minutes ago, Analytics said:

It’s theoretically possible that the unanimous decisions on the church autonomy motions will all be reversed now.

The three-judge panel's decision was vacated.  It is an unthing.  It does not exist.

The only "decision" under review is the one by the District Court.

32 minutes ago, Analytics said:

But that would be a stunning change of direction.

I don't think so.  Lower courts get reversed all the time.  Moreover, Huntsman (at the trial court) and Gaddy both seemed to depart from precedent more than they followed it.  Again, see In re Godwin, Ferrero, etc.  

The application of the Church Autonomy Doctrine is not an all-or-nothing thing.  Gaddy, for example, barred some of the fraud claims about doctrinal matters, and eventually explicitly dismissed one of the fraud claims (fraudulent nondisclosure) as violating the Church Autonomy Doctrine:

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"To prevail on a claim for fraudulent nondisclosure, a plaintiff must prove by clear and convincing evidence that (1) the defendant had a legal duty to communicate information, (2) the defendant knew of the information he failed to disclose, and (3) the nondisclosed information was material." The court concludes it cannot adjudicate the duty or materiality elements without running afoul of the church autonomy doctrine.

As it happens, "materiality" is an element of all fraud claims, so I'm not sure how Judge Shelby decided that evaluating materiality as to "fraudulent nondisclosure" is barred by the doctrine, but evaluating materiality as to positive fraud is not barred.

32 minutes ago, Analytics said:

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The "substance and complaint" of Huntsman's lawsuit requires defining tithing so that it means both members donating one tenth of one's increase annually and also the Church's post-donation realization of income from invested reserves.

You keep saying that, but I don’t hear anybody else saying that.

The Ninth Circuit addressed this at length.  See my prior notes.

32 minutes ago, Analytics said:

Three judges have already said that "the Church selectively quotes from Huntsman’s brief and misrepresents the nature of his claim,” and I can’t help but wonder if you are the one relying too heavily on the Church’s pleadings and their misrepresentations of Huntsman.

The opinion of those three judges was vacated.

And I'm spending little time quoting the Church's pleadings, and am instead focusing on Huntsman's pleadings, and on decisional authorities touching on the Church Autonomy Doctrine in various contexts.

32 minutes ago, Analytics said:

If the Ninth Circuit did choose to reverse what the panel unanimously said about church autonomy,

No.  The Ninth Circuit vacated the panel's decision.  There's quite a difference between the two.  

32 minutes ago, Analytics said:

would they have to explain the flaws in the panel’s analysis?

No.  The en banc review is de novo.  I suppose they might cite some portions of the now-vacated decision from the three-judge panel, but I doubt it will happen.

Instead, the en banc review will be of the trial court's decision only.

32 minutes ago, Analytics said:

What do you think those flaws are? 

I've been over this.  Ad nauseam.  

32 minutes ago, Analytics said:

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Um, no.  That was not a "softball."

I thought it was.
 

Well, okay.  I suspect you haven't had much experience in appellate work.  When an attorney recites the first sentence of his opening remarks, and is immediately cut off by a circuit court judge saying "Counsel, how can you say that?", that's not a "softball" question.

32 minutes ago, Analytics said:

As the panel concluded, this is a secular dispute and there are secular, uncontroversial definitions of the words involved.

The panel's decision was vacated.  

The Ninth Circuit, in my view, gave some pretty strong indications that it thinks the lawsuit is not purely secular, and instead one that is barred by the Ecclesiastical Abstention Doctrine.

32 minutes ago, Analytics said:

We don’t need to have a theological discussion to ascertain the truth about how much “tithing” James Huntsman contributed.

I agree.  Because how much tithing he donated is not in dispute.

What is in dispute, however, is whether "tithing" was spent on City Creek.  To answer that, the federal courts will need to understand what "tithing" means, and then apply that meaning to Pres. Hinckley's 2003 remarks in which he differentiated between tithes and other sources of income.  And the federal courts would need to do all this without running afoul of the Church Autonomy Doctrine.

Thanks,

-Smac