Update on Huntsman Lawsuit: Ninth Circuit Reverses Trial Court

[Analytics]

1 hour ago, smac97 said:

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.

It isn’t relevant in terms of carrying legal weight, but it is still the well-considered opinion of three federal judges who looked at this case in detail. That ain’t nothin.

1 hour ago, smac97 said:

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.  

It being vacated has no bearing on the validity of their analysis. 

 

[Calm]

8 minutes ago, Analytics said:

It being vacated has no bearing on the validity of their analysis. 

 

Isn’t it being vacated saying it isn’t legally valid?

[smac97]

1 hour ago, Calm said:

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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.

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.  

Your postulation has no value or relevance in a legal context.  The Huntsman lawsuit is pending in the Ninth Circuit right now.  The judges involved are being asked whether Huntsman's claims are "purely secular" based on modern American jurisprudence, not based on what some hypothetical court 2,000 years ago might have said or done.

1 hour ago, Calm said:

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

Yes.  And most cases involving a dispute about tithing will also be religious in nature, and hence barred by the Church Autonomy Doctrine.

It is theoretically possible to craft a complaint that threads the needle and pleads a tithing-related fraud claim that does not run afoul of the Church Autonomy Doctrine.  But I think this would be really, really hard to do, particularly in the context of the Church.

1 hour ago, Calm said:

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.

That would need to be part of a larger inquiry into fraud.  If the Church solicited tithing funds, and if such funds were donated, and if the Church thereafter used those funds for some sort of criminal or morally bereft purpose, then there might be a fraud claim.  But that didn't happen here.

As it is, Pres. Hinckley said that “tithing funds have not and will not be used to acquire this property. Nor will they be used in developing it for commercial purposes,” and instead that “funds for this have come and will come from those commercial entities owned by the Church. These resources, together with the earnings of invested reserve funds, will accommodate this program.”

There are, I think, only two ways the foregoing statement can form the basis for a fraud claim:

Option 1: "Tithing" funds were, in fact, used to fund City Creek. 

Option 2: "Tithing" is re-defined so that it refers to both voluntary donations by members and also earnings on invested reserves.

Both of these are supposedly supported by Nielsen's affidavit.

From paragraph 5:

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According to what the senior leadership of EPA informed me, in 1997 EPA was formed and was seeded with tithing money from the Church.

This is a substantial evidentiary issue, as David Nielsen was not a percipient witness to the formation of EPA or to it being "seeded with tithing money."

From paragraph 6:

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During my employment at EPA, EPA’s senior leadership and other EPA employees referred to and revered all funds of EPA as “tithing” money, regardless of whether they were referring to principal or earnings on that principal.

A few evidentiary problems here as well. 

First, hearsay.  Who said this?  And in what capacity?  Is this statement even admissible as evidence?

Second, there is no particularity here.  Who "referred to ... all funds of EPA as 'tithing' money, regardless of whether they were referring to principal or earnings on that principal"?  When did they say it?  Where?  How?

Third, how do these statements create a basis for a fraud claim?  How are the private and intra-company sentiments of EPA employees retroactively binding on Pres. Hinckley's 2003 statement?  When I got home from my mission in 1995, I was a little over 20.  A few times I privately referred to my two-year missionary service - amounting to 10% of my life to date - as a "tithe."  Does my abstract and metaphorical invocation of that word become relevant to and binding on Pres. Hinckley's statement in 2003?

Again from paragraph 6:

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In addition, during my time at EPA, tithing donations from the Church’s members were commingled with earnings that EPA had made. Every penny was referred to as the “widow’s mite.”

More evidentiary problems.  How is David Nielsen a percipient witness of "tithing donations" being "commingled with earnings that EPA had made"?  He doesn't say.

And what does "widow's mite" mean?  Is it a specific and exact reference to tithing and nothing else?  Might Fast Offerings also be privately characterized by Latter-day Saints as the "widow's mite"?  Are such references binding on Pres. Hinckley and his 2003 statement?

From paragraph 7:

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While I was at EPA, EPA’s funds were administered by a committee known as the Council on the Disposition of the Tithes (the “Council”). The Council was responsible for approving any distributions and/or withdrawals of the tithing funds maintained by EPA.

Again, Nielsen does not define "tithing funds" here.  He seems to conflate tithed monies which the Church transferred to EPA with earnings on investments.  But he merely presupposes this.  Was his presupposition during and after he worked at EPA (2010 and later) retroactively applicable to Pres. Hinckley's 2003 statement?  If so, why?  Says who?  Under what principle of law?

From paragraph 8:

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Based on statements made by EPA senior leadership including in the meeting described below, over a five-year period, the Council approved EPA’s withdrawal of approximately $1.4 billion in tithing funds to pay for the commercial development of the City Creek Mall. The Council likewise approved EPA’s withdrawal of $600 million in tithing funds to bail out a company called Beneficial Life Insurance Company.

"$1.4 billion in tithing funds to pay for the commercial development of the City Creek Mall."

Substantial hearsay problems here.  And again, he presupposes a conflation of "tithing" with earnings on investments.

From paragraph 11:

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Again, all of EPA’s funds were tithing funds and were treated by EPA as tithing funds; every penny was “the widow’s mite.”

I am not sure how David Nielsen is a percipient witness to the source of "all of EPA's funds."  I'm also not sure what "all of EPA's funds" means.  He does not explain this in his affidavit.  He seems to be referring to every penny held/managed/invested/generated by EPA.  That is, he seems to be defining "tithing" in his own, idiosyncratic way.

I will need to go back and look at how the trial court adjudicated the summary judgment motion.  If I had been representing the Church, I would have ripped apart Nielsen's affidavit on evidentiary grounds.

1 hour ago, Calm said:

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’

I suppose.  But to what end?  This is just a roundabout description of "tithing."

I could say "I am talking about the state that is east of Utah, south of Wyoming, north of New Mexico, and west of Kansas."  Sure.  Or I could just say "I am talking about Colorado."

1 hour ago, Calm said:

and the court accept that as a definition since the Church has officially created that category and labeled it Tithing?

That's not much of a definition.  More to the point, does that definition include "any monies generated by the Church post-donation via investments and such by EPA"?  This is, it seems, Nielsen's assertion.

Thanks,

-Smac

[smac97]

39 minutes ago, Analytics said:

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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.

It isn’t relevant in terms of carrying legal weight, but it is still the well-considered opinion of three federal judges who looked at this case in detail. That ain’t nothin.

But it ain't much o' somethin', neither.

39 minutes ago, Analytics said:

It being vacated has no bearing on the validity of their analysis. 

Their analysis will have no cognizable bearing on the Ninth Circuit's analysis.

And the Ninth Circuit's questions on Wednesday seemed to be heading away from what the three-judge panel concluded, and toward the reasoning set forth in cases such as In re Godwin, Ferrero, Harmston, and even portions of Gaddy (re: fraudulent nondisclosure).

Thanks,

-Smac

[Analytics]

43 minutes ago, Calm said:

Isn’t it being vacated saying it isn’t legally valid?

As I understand the situation, the court effectively said, “Let’s give the church a mulligan on that last hearing and opinion. We’ll pretend that last one didn’t happen and have a do-over in front of more judges."

We need to remember that there are two issues going on here:

1. Could a reasonable juror conclude that the Church knowingly misrepresented that no tithing funds were being or would be used to finance the shopping mall development and that Huntsman reasonably relied on the Church’s misrepresentations?
    
2. Is this dispute secular in nature because it does not implicate religious beliefs about tithing itself, nor does it require the courts to examine Huntsman’s religious beliefs about the appropriate use of church money.

On the first question, the panel had a split decision, with two judges saying its possible fraud occurred and the other one saying no way, it’s obvious no fraud occurred.

On the second question, the panel unanimously agreed with the circuit court--this is in fact a secular dispute.  

There are excellent arguments that the panel was wrong in their split decision.

I haven’t seen any good arguments that they were unanimously wrong about the secular nature of this.

[Calm]

33 minutes ago, smac97 said:

Your postulation has no value or relevance in a legal context

It was an analogy using a 2000 year old example,  of course it has no relevance to today’s legal context.  But I get it, it doesn’t make sense in the context you are using so I will stop trying to explain how my brain is looking at it.

[Calm]

45 minutes ago, smac97 said:

suppose.  But to what end?  This is just a roundabout description of "tithing."

To avoid having to define tithing as anything more than an accounting category and thereby avoid religious judgments.  Just wondering if that would work if the lawsuit was solely about tithing funds and not about investment income as well.  
 

With Rytting’s testimony the funds are differentiated, etc, I realize using a method of just pointing to the tithing slip and saying ‘that money was misused’ or something similar does not work in this lawsuit because it is about more than just the donations.  Just wondering if it might in another lawsuit where there was a possibility that tithing donations were actually used.

Edited September 27, 2024 by Calm

[Analytics]

16 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...

For me, the Huntsman case is so straight forward it’s hard to find an analogy that is even simpler than what we’re talking about. But I’ll try.

Say somebody in the ward is accused of stealing fast offering donations. Every month, he allegedly removes some cash from the envelopes and pockets the money. He eventually gets caught doing this, and the Church sues him to recover the money he had stolen.

The thief might argue, “Your honor, there is no secular definition for ‘fast offerings.’ That is a purely religious term with no secular definition. There is no way for the court to adjudicate whether I stole ‘fast offerings’ without the court determining what ‘fast offerings’ are in the first place. But the court can’t impose definitions of religious things upon churches! Therefore this case must be dismissed because of the church autonomy doctrine."

My response would be that in this context, "fast offerings" has a purely secular definition: it’s the money in the envelops that was categorized by the donor as “fast offerings.” Using this purely secular definition (which yes, @smac97, I just made up), a court could consider the purely secular facts of the case, ascertain if money really was stolen, and determine how much in damages the alleged thief should pay.

It really isn’t any more complicated than that. That is the conclusion every judge has come to that has issued an opinion on this case.

Edited September 27, 2024 by Analytics

[smac97]

@Analytics, just following up on my various CFRs:

1. This one:

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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.

2. This one:

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CFR3: The third CFR ("Chapter and verse, please, as to where you found these "secular" definitions of "tithing.") is duplicative of the first and second.

The precise definitions are found in the Church’s accounting manuals,

 

CFR, please.  Chapter and verse.  Where are these "precise definitions" from?  Which "manuals?"  When were they published?  By whom?  On what pages do these "precise definitions" appear?  What is the wording?

3. This one:

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If somebody says “the Church took in about $6 billion in tithing last month,” they are talking about a flow. If somebody else says, “the Church has a bucket of money with $30 billion of unspent tithing in it”, they are talking about a stock. The Church talks about these two different secular things, so there must be two different secular definitions for them. I’m not talking about defining “tithing” in a religious sense. I’m talking about defining it in a secular, accounting sense. 

Dandy!  CFR.  Please provide such a "secular, accounting" definition of tithing.  Chapter and verse, please.

4. This one:

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CFR2: Your 3rd definition, "One of three 'buckets of money' on the Church’s balance sheet that can be spent on different projects," also doesn't work.  You appear to have culled it from the Church's attorney's oral argument at yesterday's hearing.  But he was merely speaking metaphorically.  Nobody in or out of the Church defines "tithing" as "one of 'three buckets of money.'"  Moreover, this phrase does not "define" tithing.   If you dispute this, then please produce the source of this supposed definition and point us to where this source defines the term "tithing."

In accounting and in economics, financial numbers fall into two categories: stocks and flows.

 

This is nonresponsive.

Here, again, is my CFR: Please produce the source of this supposed definition {that tithing is "One of three 'buckets of money' on the Church’s balance sheet that can be spent on different projects," and point us to where this source defines the term "tithing."

5. This one:

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CFR 1: Your 2nd definition, "the amounts of money stated on the Church’s secular income statements that represent the donations that were given to the Church" doesn't work.  It is just a wordy restatement of the religious definition (not unlike "charitable contribution"). An amount listed on some IRS form does not "define" tithing.  If you dispute this, then please produce these supposed "secular income statements" and point us to where these documents define the term "tithing."

The Church produces financial statements but does not publicly disclose them.

 

CFR: Where did you get your 2nd definition?  Please cite, chapter and verse, its source. 

6. This one:

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From my viewpoint, in the context of this lawsuit “tithing” is a well-defined, secular concept.

Fine.  CFR.  Please present, chapter and verse, this "well-defined, secular" meaning of the word "tithing."

Where did it come from?  Who created it?  When?  Where?  Why is this definition binding on the Ninth Circuit Court of Appeals?

Or you could just skip to the end and admit that you are making this stuff up as you go along.

Thanks,

-Smac

[Analytics]

1 hour ago, smac97 said:

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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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. 

Full stop.

I didn’t know the district court agreed and dismissed the case based on the doctrine of ecclesiastical abstention. I thought the district court concluding that all the Church's statements were true and issued summary judgment.

Could you provide me a link to the district court decision where they dismiss this due to ecclesiastical abstention?

 

 

 

[smac97]

1 hour ago, Calm said:

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suppose.  But to what end?  This is just a roundabout description of "tithing."

To avoid having to define tithing as anything more than an accounting category and thereby avoid religious judgments.  

I don't think that would work, and I don't think Huntsman would even want to try.  He is engaging in a protracted exercise in equivocation.  When he says "fraud" was committed because the Church spent "tithing" on City Creek, what he means is that earnings on invested reserves were used for City Creek, and he wants this to count as "tithing," and for this re-definition to therefore let him proceed with suing the Church for fraud.

But as we saw in the hearing on Wednesday, I don't think the Ninth Circuit is buying into this line of reasoning.  To the contrary, they were markedly skeptical about, even hostile to, it.  One of the judges repeatedly challenged this premises, noting that Pres. Hinckley had differentiated between "tithes" and earnings on invested reserves.  From item 11 of my notes:

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11. The next part gets pretty interesting.  The attorney says that Pres. Hinckley's comments about tithing "may have been qualified." 

By "qualified," the attorney is referencing Pres. Hinckley's differentiation between tithes and other forms of income.

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The judge cuts him off: "It was qualified.  And your client apparently recognized that.  He understood it.  He heard it.  He saw that Pres. Hinckley was saying 'You've got tihing {over here (gesturing)}, and you've got reserve earnings {over there (gesturing)}.  And from the earnings of entities owned by the Church.  The Church has shown, by the record as I understand it, that that's all that was being used to do the City Creek development."  This is, in my view, a pretty devastating line of questioning.

And this judge was not the only one.  Another asked this (item 14) :

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Another judge interjects and asks the attorney for his "best case" that can be cited "that there was a misrepresentation here ... especially given that the Church told its members that it would fund the mall with earnings on invested reserves.  It appears that is what occurred."  The attorney disagrees that this is what occurred, and states that there is sworn testimony from David Nielsen that "principal tithing funds were used to fund City Creek Mall," and also that tithing was "commingled with earnings."  This line of inquiry is then cut off, which is too bad, because whether or not there is a "genuine issue of material fact" about whether "tithing funds were used to fund City Creek" seems like a pretty important issue.  That the Circuit did not address it in depth may suggest that they do not belief there is such a factual issue in play.

When a circuit court judge is asking you to explain the most fundamental factual averment of a fraud claim: "that there was a misrepresentation," then you've got a problem. 

When that judge couches the inquiry with "especially given that the Church told its members that it would fund the mall with earnings on invested reserves.  It appears that is what occurred," then you've got a pretty serious problem.

1 hour ago, Calm said:

Just wondering if that would work if the lawsuit was solely about tithing funds and not about investment income as well.  

I don't think this is possible.  Pres. Hinckley said "no tithing funds" were used.  Unless there is competent evidence that tithing funds were used, there is no fraud claim.  As the above judge put it, when asking about where the "misrepresentation" was, ""especially given that the Church told its members that it would fund the mall with earnings on invested reserves.  It appears that is what occurred."

Now, David Nielsen has asserted that "tithing" was used to fund City Creek.  I don't know that the unadorned and unsubstantiated say-so of a mid-level employee of the Church's "integrated auxiliary" is sufficient to create a genuine factual disputes.  It seems not, unless "tithing" is re-defined.   

1 hour ago, Calm said:

With Rytting’s testimony the funds are differentiated, etc, I realize using a method of just pointing to the tithing slip and saying ‘that money was misused’ or something similar does not work in this lawsuit because it is about more than just the donations.  Just wondering if it might in another lawsuit where there was a possibility that tithing donations were actually used.

"{A}nother lawsuit where there was a possibility that tithing donations were actually used" would not be sufficient to create a fraud claim unless the Church had specifically stated that tithing donations for ______________ purpose would not be used."  As I have noted previously:

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The law says that religious groups can

• accumulate a reserve fund and manage those funds,
• make investments for the continuing operation of the charity to advance its purposes,
• hold and utilize/operate substantial assets, such as “taxable businesses, either for investment purposes or because the businesses are closely aligned with their religious missions” or both,
• hold or otherwise use donated funds and not immediately disburse them directly for charitable/religious purposes, and so on.

All of this is, under the law, "common sense and common knowledge."

City Creek was, in some key ways, a one-off.  The Church made a specific public statement that a particular type of income held by the Church (tithing) would not be used for a particular project (City Creek), and that instead another source of funds (earnings in invested reserves) would be used.

Can you think of any other time in recent memory when the Church has done this?  I can't.

In recent news items, the Church is moving to have some of its real estate holdings in Florida annexed into the City of Orlando, and has also purchased "two huge farming portfolios in NSW and Queensland" for $1.1B, and has also announced the creation of a medical school at BYU.  It may well be that somewhere this is someone who has previously paid tithes to the Church who dislikes some or all of these and other of the Church's financial decisions.  But nobody is filing a lawsuit about them.

And consider the SEC mess.  Gaddy, Huntsman and the copycat lawsuits have all pointed to it in their pleadings, but AFAICS, none of these lawsuits is actually based on the Church's purported violation of SEC regulations.

Gaddy went pretty far out into LaLa Land in some of her fraud claims about the Church's history and doctrine, a massive error that Huntsman and the MDL plaintiffs have apparently tried to mostly avoid.  

The commonality between Gaddy, Huntsman and the MDL plaintiffs, the centerpiece of all of these lawsuits, is a fraud-based theory centering on City Creek, which theory in turn arises from Pres. Hinckley's 2003 statement (and, arguably, a few other public statements by other representatives of the Church).

Is the Church likely to, in the future, replicate Pres. Hinckley's 2003 remarks in providing specific assurances, the very assurances that Gaddy, Huntsman and the MDL plaintiffs are now using to sue the Church?  Um, no, not likely.  One of the Ninth Circuit judges touched on this during Wednesday's hearing (item 7 in my notes) :

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A judge cuts him off: "Does it matter that the April 2003 speech came from President Hinckley in this religious context?  In other words, this wasn't just any old speech.  It was given in a broader sense of describing the Church's activities and religious mission.  Isn't there a concern that if you're asking courts to start parsing these speeches, whether it's going to chill something within religious doctrine or internal church governance.  That a church leader might have to run a speech by legal before he can deliver a sermon?"  This is a solid point.  @Analytics endlessly faults the Church for not being sufficiently "transparent."  Huntsman's lawsuit, though, would seem to justify the Church's reluctance to speak publicly about matters of church governance (because, as this judge is pointing out, doing so exposes the church to lawsuits in which secular judges are asked to "parse" what is said).

Huntsman is teaching the Church a lesson: Transparency is bad.  Transparency gets you sued.  Pres. Hinckley's 2003 remarks included a very quick peek under the lid, a moment of elevated candor and disclosure about the Church's finances.  About expenditures that are utterly legal in every sense.  And the result?  Lawsuits.  Millions in legal fees.  Public slanders galore.

 

Thanks,

-Smac

Edited September 27, 2024 by smac97

[smac97]

1 hour ago, Analytics said:

Full stop.

I didn’t know the district court agreed and dismissed the case based on the doctrine of ecclesiastical abstention. I thought the district court concluding that all the Church's statements were true and issued summary judgment.

Could you provide me a link to the district court decision where they dismiss this due to ecclesiastical abstention?

Yes, the blog article got that point wrong,  The trial court dismissed Huntsman's lawsuit, but instead, citing Gaddy, specifically did not apply the Church Autonomy Doctrine.  See here.  Interestingly, though, Gaddy did use the doctrine when dismissing one type of fraud claim (fraudulent misrepresentation).

Thanks,

-Smac

Edited September 27, 2024 by smac97

[smac97]

1 hour ago, Analytics said:

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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...

For me, the Huntsman case is so straight forward it’s hard to find an analogy that is even simpler than what we’re talking about. But I’ll try.

Gaddy applied the Church Autonomy Doctrine as to fraudulent misrepresentation, but not to other claims. 

The trial court in Huntsman did not rely on the doctrine at all, but dismissed the suit on other grounds.  

The three-judge panel in Huntsman likewise did not apply the doctrine, but then reversed the trial court.

The Ninth Circuit on Wednesday spent a lot (most?) of the oral argument exploring the contours and applicability of the doctrine.

In re Godwin, Ferrero and other cases have also explored the application of the doctrine.

Smart men and women, sincerely devoted to the fair and impartial administration of the American system of laws, including the First Amendment, have been involved in these proceedings.  In my view, the doctrine remains mostly as it has been for many years now.  Huntsman and Gaddy are, I think, sort of outliers.  Interestingly, Huntsman seemed to rely on Gaddy, and Gaddy was authored by Judge Shelby, and Judge Shelby has been assigned to adjudicate the MDL lawsuit, and Judge Shelby's adjudication of the MDL lawsuit may well take into consideration the Ninth Circuit's evaluation of the Church Autonomy Doctrine in Huntsman.  Funny little world, innit?

1 hour ago, Analytics said:

Say somebody in the ward is accused of stealing fast offering donations.

There would likely be be no dispute about what "fast offering donations" means.  

And the legal issue would be about theft, not fraud.  These claims are worlds apart from each other.

1 hour ago, Analytics said:

Every month, he allegedly removes some cash from the envelopes and pockets the money.

I am my ward's clerk, so I am familiar with the process.  To remain undetected, he would have to alter the entries on the tithing sips, or else get rid of the slips altogether and hope that the donors don't notice the omissions when they are reviewing their donations near the end of the year.

1 hour ago, Analytics said:

He eventually gets caught doing this, and the Church sues him to recover the money he had stolen.

Got it.  

There would be no inquiry into what "fast offerings" means.  

1 hour ago, Analytics said:

The thief might argue, “Your honor, there is no secular definition for ‘fast offerings.’ That is a purely religious term with no secular definition. There is no way for the court to adjudicate whether I stole ‘fast offerings’ without the court determining what ‘fast offerings’ are in the first place. But the court can’t impose definitions of religious things upon churches! Therefore this case must be dismissed because of the church autonomy doctrine."

And the Church's attorney would say "The court can adjudicate whether he stole the Church's money.  Whether it is characterized as "fast offerings" or "tithing" or "humanitarian aid" has no bearing on his thievery."

In contrast, Huntsman's lawsuit is entirely based on Pres. Hinckley's remarks about "tithing," the meaning of which must be in dispute in order for a fraud claim to arise.

1 hour ago, Analytics said:

My response would be that in this context, "fast offerings" has a purely secular definition: it’s the money in the envelops that was categorized by the donor as “fast offerings.”

The judge would not indulge you in this exercise.  Nobody would dispute that the money, regardless of how it is characterized or where it came from and for what purposes, did not belong to the thief.

In contrast, Huntsman's lawsuit is entirely about how the money used to fund City Creek is characterized and where it came from and for what purposes.

1 hour ago, Analytics said:

Using this purely secular definition (which yes, @smac97, I just made up),

I'll take this as a tacit admission that you've been making up all the other "secular definitions" for tithing as well.  Please let me know if that is incorrect, and if so I look forward to you responding to my CFRs.

1 hour ago, Analytics said:

a court could consider the purely secular facts of the case, ascertain if money really was stolen, and determine how much in damages the alleged thief should pay.

Yep.  Because the dispute is not about what type of funds were stolen, but rather who owned the funds.

1 hour ago, Analytics said:

It really isn’t any more complicated than that. That is the conclusion every judge has come to that has issued an opinion on this case.

"Every judge" being . . . one.

Thanks,

-Smac

[smac97]

3 hours ago, Calm said:

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It being vacated has no bearing on the validity of their analysis. 

Isn’t it being vacated saying it isn’t legally valid?

In terms of procedure, it's a nothingburger.  It's not there.

In practical terms, I think the Ninth Circuit judges will probably review it.  Indeed, I think that review is what precipitated both the granting of en banc review and the skeptical reception Huntsman received on Wednesday regarding the applicability of the Church Autonomy Doctrine.

Oral argument is not intended to be some sort of sneaky or sleight-of-hand or "hide the ball" maneuver.  I have appeared before the Utah Court of Appeals several times, and the questions they ask generally give you a pretty good idea of where they are headed.

For example, a few years back I had a hearing before the Court of Appeals about an "excess proceeds" dispute.  A residential property in Park City had been foreclosed on, leaving a huge amount of money left over after the judgment creditor was paid, and the dispute was about who should get the money (the former owner, one or more of his creditors, etc.).  I went into the hearing loaded for bear, but I was surprised when the judges started asking about the trial court's factual findings.  The appellants had, in seeking an appeal, not raised any question or concern about the factual findings being insufficient.  None of the appellees had raised this issue in their briefs, either.  But the appellate court judges asked several questions about the factual findings, so we addressed that topic in an off-the-cuff way. 

After the hearing, the attorneys all got together and chatted briefly, and based on what was discussed at oral argument, we surmised that the Court of Appeals would be remanding (transferring back) the case to the trial court and instructing him to do more to develop the factual record.  A few weeks later, that is precisely what happened.

I think the Ninth Circuit is seriously concerned about the Church Autonomy Doctrine.  

Thanks,

-Smac

Edited September 27, 2024 by smac97

[Analytics]

22 minutes ago, smac97 said:

The trial court in Huntsman did not rely on the doctrine at all, but dismissed the suit on other grounds.  

It's more than that, isn’t it? Didn’t they decide the case was in fact secular?

22 minutes ago, smac97 said:

Interestingly, Huntsman seemed to rely on Gaddy, and Gaddy was authored by Judge Shelby, and Judge Shelby has been assigned to adjudicate the MDL lawsuit, and Judge Shelby's adjudication of the MDL lawsuit may well take into consideration the Ninth Circuit's evaluation of the Church Autonomy Doctrine in Huntsman.  Funny little world, innit?

I have no training in the law, other than occasionally reading legal opinions on things. Regarding church autonomy, my only training is reading the possibly inbred decisions you reference above. Every single one of these cases explains why these cases are secular (other than the fraudulent misrepresentation angle of Gaddy). I found their analyses and application of the law in these cases to be internally coherent and fair and correct, and it would seem to me that the other judges all agree with my sensibilities, which is why they continued to cite each other.

But my “legal training” as it were being limited to this small batch of documents can certainly color the way I see things--I don’t know what I don’t know.

22 minutes ago, smac97 said:

There would likely be be no dispute about what "fast offering donations" means.  

Likewise, in the Huntsman suit there isn’t really a dispute about what “tithing” means. That is why "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."

22 minutes ago, smac97 said:

I'll take this as a tacit admission that you've been making up all the other "secular definitions" for tithing as well.  Please let me know if that is incorrect, and if so I look forward to you responding to my CFRs.

Your CFRs have been asked and answered. While I “made up” the specific wording of the secular definitions of tithing I offered, nobody disputes them, just as nobody disputes the secular definition of “fast offerings” in my illustrative hypothetical.

 

Edited September 27, 2024 by Analytics

[webbles]

1 hour ago, Analytics said:

For me, the Huntsman case is so straight forward it’s hard to find an analogy that is even simpler than what we’re talking about. But I’ll try.

Say somebody in the ward is accused of stealing fast offering donations. Every month, he allegedly removes some cash from the envelopes and pockets the money. He eventually gets caught doing this, and the Church sues him to recover the money he had stolen.

The thief might argue, “Your honor, there is no secular definition for ‘fast offerings.’ That is a purely religious term with no secular definition. There is no way for the court to adjudicate whether I stole ‘fast offerings’ without the court determining what ‘fast offerings’ are in the first place. But the court can’t impose definitions of religious things upon churches! Therefore this case must be dismissed because of the church autonomy doctrine."

My response would be that in this context, "fast offerings" has a purely secular definition: it’s the money in the envelops that was categorized by the donor as “fast offerings.” Using this purely secular definition (which yes, @smac97, I just made up), a court could consider the purely secular facts of the case, ascertain if money really was stolen, and determine how much in damages the alleged thief should pay.

It really isn’t any more complicated than that. That is the conclusion every judge has come to that has issued an opinion on this case.

I don't see how this analogy works.  The entire argument is over whether or not President Hinckley's statement and the other statements were fraudulent.  Your analogy is just straight up theft that even the church's lawyer at the hearing said was outside the church autonomy doctrine.

[Analytics]

5 minutes ago, webbles said:

I don't see how this analogy works.  The entire argument is over whether or not President Hinckley's statement and the other statements were fraudulent.  Your analogy is just straight up theft that even the church's lawyer at the hearing said was outside the church autonomy doctrine.

And whether or not the church’s statements were fraudulent is something that can be secularly determined because they are about secular things: nobody disputes that “tithing” refers to the payments that people like Huntsman made that they designated on their donation slips as tithing. That is the money we are talking about, and we can talk about that money, what happened to it, what promises were made about it, and whether those promises constituted fraud without getting into religious issues.

Edited September 27, 2024 by Analytics

[smac97]

36 minutes ago, Analytics said:

It's more than that, isn’t it? Didn’t they decide the case was in fact secular?

"They" being the trial court?  Presided over by one judge?

36 minutes ago, Analytics said:

Quote

Interestingly, Huntsman seemed to rely on Gaddy, and Gaddy was authored by Judge Shelby, and Judge Shelby has been assigned to adjudicate the MDL lawsuit, and Judge Shelby's adjudication of the MDL lawsuit may well take into consideration the Ninth Circuit's evaluation of the Church Autonomy Doctrine in Huntsman.  Funny little world, innit?

I have no training in the law, other than occasionally reading legal opinions on things. Regarding church autonomy, my only training is reading the possibly inbred decisions you reference above.

I'm not sure I would put it that way.

36 minutes ago, Analytics said:

Every single one of these cases explains why these cases are secular (other than the fraudulent misrepresentation angle of Gaddy).

"Every single one" of . . . two cases.

And one of those cases, Gaddy, invoked the doctrine to dismiss the fraudulent nondisclosure claim.

And the other case, Huntsman, is on appeal, and the Ninth Circuit earlier this week spent a lot of the oral argument on the Church Autonomy Doctrine.

36 minutes ago, Analytics said:

I found their analyses and application of the law in these cases to be internally coherent and fair and correct,

Does that include Gaddy's dismissal of fraudulent nondisclosure as being barred by the Church Autonomy Doctrine?  Do you agree with that part of the decision?

36 minutes ago, Analytics said:

and it would seem to me that the other judges all agree with my sensibilities, which is why they continued to cite each other.

What other judges?

36 minutes ago, Analytics said:

But my “legal training” as it were being limited to this small batch of documents can certainly color the way I see things--I don’t know what I don’t know.

A little knowledge can be a dangerous thing.

36 minutes ago, Analytics said:

Likewise, in the Huntsman suit there isn’t really a dispute about what “tithing” means.

Yes, I really think there is.  That was amply attested to during the hearing on Wednesday.

36 minutes ago, Analytics said:

Your CFRs have been asked and answered.  While I “made up” the specific wording of the secular definitions of tithing I offered,

Ah.  So you made them up.  Good to know.

Now, why are you fabricated definitions of "tithing" binding on Pres. Hinckley and the Ninth Circuit Court of Appeals?

36 minutes ago, Analytics said:

nobody disputes them,

I surely do.

Thanks,

-Smac

Edited September 27, 2024 by smac97

[webbles]

16 minutes ago, Analytics said:

It's more than that, isn’t it? Didn’t they decide the case was in fact secular?

The District Court ruled that the First Amendment was not relevant - https://www.documentcloud.org/documents/21062391-huntsman-ruling.  See III-A

Quote

The Court concludes that the instant case presents a purely secular dispute.  To resolve the dispute, no analysis of church policy or doctrines is necessary.  Nor must a court or jury determine whether policies or doctrines allow Defendant to spend tithing funds on the City Creek project.  Rather, Defendant has already stated it would not spend tithing funds on thee City Creek project.  The only question whether that assertion was true or not.  That question can be resolved on the basis of accounting records and witness testimony, the scope of which need to not include the meaning of "tithing funds" or the purposes towards which religious doctrine allows Defendant to spend tithing funds.

 

The judge then rules that since only interest on tithing was used, then the case was dismissed.  Huntsman then argued to the 9th circuit that "interest on tithing" was still tithing or that the tithing money and the interest was co-mingled such that it was impossible to separate out what was tithing and what wasn't tithing.  I think it is this argument that brings it under the church autonomy doctrine.  Because now he is trying to argue the definition of tithing.  If we just use regular accounting procedures to determine if tithing was used, then Huntsman looses.  That's what the trial court ruled.  But Huntsman doesn't want to use regular accounting procedures.  He needs to expand the definition of tithing so that it encompasses the "interest on tithing".  This is the main reason why he includes the Nielsen affidavit.  In there, Nielsen testifies that all the money at EPA was "tithing" and so the money that went from the EPA to City Creek was, by his definition, tithing.

[Calm]

1 hour ago, smac97 said:

{A}nother lawsuit where there was a possibility that tithing donations were actually used" would not be sufficient to create a fraud claim unless the Church had specifically stated that tithing donations for ______________ purpose would not be used." 

Yes, I understand this.  It is a thought experiment, not a question about a real lawsuit.  I ask it to understand better where the law draws the lines and how it looks at what is religious and what isn’t.  It doesn’t even have to be our Church but another one who tithes in a similar fashion for my purpose.

Would that be sufficient identification if the Church of Mapleton was suspected of using their tithing funds they had committed to be used for the building up of the kingdom of God, iow, Mapleton, to buy a restaurant for the favorite grand nephew and niece of one of the members of their Head Pastor?  Members of the Church of Mapleton also submit tithing by filling out forms labeled tithing.

PS:  you could save yourself some effort if you finished reading my post before responding so.  For example, while it is not clear initially from this “Just wondering if that would work if the lawsuit was solely about tithing funds and not about investment income as well” that I was talking about a nonexistent lawsuit, by the time you get to the above it is clear.  If you had read more, you could have saved yourself writing two paragraphs with information I didn’t need.  But I get that you have your process just as I have mine as to how I develop ideas and questions and maybe it’s more work for you to change it than the effort you would save by reading the full post so you understand better what I am asking before you start responding.  As far as I am concerned as long as you do get there and my questions are answered, I am good.    But I will save some effort if you don’t mind, and hopefully you don’t, by not responding to where you give answers to questions I am not asking because it isn’t clear yet what I am asking.

Edited September 27, 2024 by Calm

[Calm]

1 hour ago, Analytics said:

Likewise, in the Huntsman suit there isn’t really a dispute about what “tithing” means.

So you are saying there is no debate on whether tithing includes investment income earned off of tithing or not?

[smac97]

27 minutes ago, Analytics said:

Quote

I don't see how this analogy works.  The entire argument is over whether or not President Hinckley's statement and the other statements were fraudulent.  Your analogy is just straight up theft that even the church's lawyer at the hearing said was outside the church autonomy doctrine.

And whether or not the church’s statements were fraudulent is something that can be secularly determined because they are about secular things:

C'mon, Roger.  In your analogy, nobody disputes that the Church Autonomy Doctrine would not bar a claim for theft.  This is nonsensical because A) nobody disputes that theft occurred (where in Huntsman the parties disagree a lot about whether fraud occurred), and B) the Church Autonomy Doctrine is a an affirmative defense and/or jurisdictional argument that would be invoked by the Church, not by the guy who stole the Church's money.

27 minutes ago, Analytics said:

nobody disputes that “tithing” refers to the payments that people like Huntsman made that they designated on their donation slips as tithing. 

But the Church does dispute that "tithing" refers to earnings on invested reserves.  This was addressed at length during the hearing on Wednesday.

27 minutes ago, Analytics said:

That is the money we are talking about,

The "money we are talking about" is in dispute.  When Pres. Hinckley referenced "tithing" in 2003, was he referring to (A) the voluntary donations by members of one tenth of their increase annually, or (B), both (A) and also any post-donation income generated from invested reserves?

27 minutes ago, Analytics said:

and we can talk about that money, what happened to it, what promises were made about it, and whether those promises constituted fraud without getting into religious issues.

Unless, of course, a litigant wants the court to re-define tithing so that it is both (A) and (B) above.

Thanks,

-Smac

[smac97]

4 hours ago, Analytics said:

As I understand the situation, the court effectively said, “Let’s give the church a mulligan on that last hearing and opinion. We’ll pretend that last one didn’t happen and have a do-over in front of more judges."

We need to remember that there are two issues going on here:

1. Could a reasonable juror conclude that the Church knowingly misrepresented that no tithing funds were being or would be used to finance the shopping mall development and that Huntsman reasonably relied on the Church’s misrepresentations?
    
2. Is this dispute secular in nature because it does not implicate religious beliefs about tithing itself, nor does it require the courts to examine Huntsman’s religious beliefs about the appropriate use of church money.

On the first question, the panel had a split decision, with two judges saying its possible fraud occurred and the other one saying no way, it’s obvious no fraud occurred.

On the second question, the panel unanimously agreed with the circuit court--this is in fact a secular dispute.  

There are excellent arguments that the panel was wrong in their split decision.

I haven’t seen any good arguments that they were unanimously wrong about the secular nature of this.

Gaddy applied the Church Autonomy Doctrine to bar her fraudulent nondisclosure claim.

The court held it could not examine the "materiality" component of the fraudulent nondisclosure claim without running afoul of the Church Autonomy Doctrine.

Materiality is a component of every species of fraud.

See also In re Godwin and Ferrero.

Thanks,

-Smac

Edited September 28, 2024 by smac97

[Analytics]

8 hours ago, Calm said:

So you are saying there is no debate on whether tithing includes investment income earned off of tithing or not?

Not that I’m aware of.

[Calm]

10 hours ago, Analytics said:

Not that I’m aware of.

Then in your view is the only issue more or less is whether to trust Pres Hinckley or Rytting’s testimonies no tithing was used?

The issue is whether or not they are lying?

——

This perception would seem to be a significant obstacle to agreement on this thread since smac, myself, and webbles at least appear to me to all believe this is a significant issue being argued by Huntsman’s lawyers. 

Bluntly but respectfully because I understand intelligent and reasonable people can see things very differently, I am having a hard time understanding why you are not seeing such a debate when it seems front and center to me. 

Edited September 28, 2024 by Calm