Third "Tithing" Lawsuit Under Way

[smac97]

Here: LDS Church faces third lawsuit over alleged tithing misuse

Quote

The Church of Jesus Christ of Latter-day Saints is facing another lawsuit over the alleged misuse of member tithings — this time filed in the state of California by a married couple.

This is the latest lawsuit to come from the fallout of whistleblower David Nielson, a former senior portfolio manager with the Church’s investment arm, Ensign Peak Advisors. In December 2019, Nielson claimed the Church misused billions of dollars in tithes, including $1.4 billion to fund the City Creek Center in downtown Salt Lake City.

The plaintiffs, Gene and Michelle Judson, who have been members of the Church since 1967 and 1971, respectively, echoed Nielson’s claims in their lawsuit. The California couple explained in court documents that they believed their tithing was to be used for charitable and welfare purposes or to build and maintain temples and support missionary work.

Instead, they claim the Church used their tithes – an estimated $40,000 between 2003 and 2020 – to help fund the construction of the City Creek Center mall in downtown Salt Lake City. The Judsons described themselves in court documents as “not wealthy” and at times living on limited means, but still routinely paid tithing on an annual basis, until recently.

This sounds like the same stuff we've seen in the other lawsuits under discussion on this board, centering on the notion that leaders of the Church promised that "tithing" would not be used for City Creek, but that tithing was, in fact, used.  This theory only works if "tithing" is substantially, even radically, re-defined.  And I think that re-definition will necessarily implicate the Ecclesiastical Abstention doctrine, which means the courts being asked to adjudicate these disputes with the Church will decline to do so, which means that these folks will have wasted their time, money and effort on a futile endeavor.

Quote

“The misrepresentation made by Defendants through their agents and employees — including the president of the LDS Church and other high-ranking LDS Church leaders who were also members of Defendant LDS Corporation — that tithing funds would not be used to finance City Creek Center or other commercial, for-profit, purposes were false, intentional, and made to induce Plaintiffs and Class Members to pay tithing funds in spite of Defendants having amassed a $100 billion fund,” alleges the lawsuit.

I hope the Church files a Motion to Dismiss.

Quote

ABC4 has reached out to the Church for comment on the newest lawsuit but has not received a reply by the time of publication. In the past, the Church has repeatedly stated that it did not use tithing funds for projects such as the City Creek Center, but rather the interest from investments.

The Judsons are asking to be awarded damages not only for themselves but for class members also affected by the alleged tithing misuse.

This is the second such lawsuit filed against the Church in California and the third lawsuit overall since Nielson made his allegations.

In 2019, James Huntsman, the brother of former Utah Gov. Jon Huntsman Jr., filed for the return of the $5 million he donated before he left the Church. Another lawsuit was filed in the United States District Court of Utah in October 2023 by three Church members claiming to have donated a collective total of $350,000 over the years they say were also misused.

The Church has previously sought to dismiss the lawsuit filed by Huntsman and has so far found limited success. A U.S. District Court dismissed Huntsman’s lawsuit in September 2021; however, two years later, that ruling was overturned and the lawsuit was reinstated.

The article includes a link to the Complaint, if you want to read it.  Notably, the attorney who filed this lawsuit on behalf of the Judsons, David B. Jonelis, is also representing James Huntsman in his lawsuit against the Church.

Thanks,

-Smac

[Tacenda]

They are coming out of the woodwork, these lawsuits. Some on the ex board mention everyone needs to download their tithing donations before it's gone. I don't even think one could, or they only go so many years back online right? 

[Rain]

Just had a thought. IF they claimed tithing on taxes and win the lawsuit will they have to amend every year they claimed? Or do they just pay taxes on the amount won? If I had to amend all those years it would be a great incentive to me not to sue!

[JustAnAustralian]

If they think it's only the third, they aren't paying attention. See my other thread (linked below). 

 

 

 

8 hours ago, Tacenda said:

don't even think one could, or they only go so many years back online right? 

I can access mine online back to 2014.

 

 

[Tacenda]

6 hours ago, JustAnAustralian said:

If they think it's only the third, they aren't paying attention. See my other thread (linked below). 

 

 

 

I can access mine online back to 2014.

 

 

I know that's what I said, it goes back a few years but not the entirety. Is there a way to see how much tithing someone pays to the church in their lifetime? Maybe if someone keeps records from day one, not that I would sue. And doubt it would ever happen. But from the post I saw on reddit, they act as if they need to quickly download their tithing record. 

[pogi]

21 hours ago, smac97 said:

Here: LDS Church faces third lawsuit over alleged tithing misuse

This sounds like the same stuff we've seen in the other lawsuits under discussion on this board, centering on the notion that leaders of the Church promised that "tithing" would not be used for City Creek, but that tithing was, in fact, used.  This theory only works if "tithing" is substantially, even radically, re-defined.  And I think that re-definition will necessarily implicate the Ecclesiastical Abstention doctrine, which means the courts being asked to adjudicate these disputes with the Church will decline to do so, which means that these folks will have wasted their time, money and effort on a futile endeavor.

I hope the Church files a Motion to Dismiss.

The article includes a link to the Complaint, if you want to read it.  Notably, the attorney who filed this lawsuit on behalf of the Judsons, David B. Jonelis, is also representing James Huntsman in his lawsuit against the Church.

Thanks,

-Smac

If previous cases are any indicator, the church will most assuredly file a motion to dismiss.  That has had on and off success so far as James Huntsman's case was dismissed, then had that ruling overturned and was reinstated. 

I can't imagine the damage this would cause the church if they lost the case - courts would be flooded with lawsuits against the church.  I just don't ever see that happening.  You are right, this is a futile endeavor and waste. 

[Danzo]

13 hours ago, Rain said:

Just had a thought. IF they claimed tithing on taxes and win the lawsuit will they have to amend every year they claimed? Or do they just pay taxes on the amount won? If I had to amend all those years it would be a great incentive to me not to sue!

You would report the money as income in the year you received the tithing "Refund"

The same way you would report a refund of any money you had taken a deduction for.  Its called the tax benefit doctrine.

You could (if the refund was large enough) pay a higher rate on the refund than the benefit you got from deducting it in the first place.

 

Edited February 1, 2024 by Danzo

[Calm]

3 hours ago, Tacenda said:

I know that's what I said, it goes back a few years but not the entirety. Is there a way to see how much tithing someone pays to the church in their lifetime? Maybe if someone keeps records from day one, not that I would sue. And doubt it would ever happen. But from the post I saw on reddit, they act as if they need to quickly download their tithing record. 

My guess is they keep enough years for anyone who might need it for a tax audit or something, which is 7 years in the US.  After that, it would be a waste of storage space for the vast majority of people.

[rpn]

22 hours ago, smac97 said:

In the past, the Church has repeatedly stated that it did not use tithing funds for projects such as the City Creek Center, but rather the interest from investments.

Those who are bringing these suits (at least since the first one) are complaining about the use of the interest made on the reserves ----- tithing that exceeds immediate need, being invested in ways that generate income.  It is that income that WAS used.  (Not that I agree with the lawsuits because of course the church has to invest funds not immediately needed somewhere and there is no better use than cleaning up the neighborhood across from Temple Square.   I sometimes think that the members/former members who make these arguments simply don't understand economic activity.

[smac97]

4 minutes ago, rpn said:

Quote

In the past, the Church has repeatedly stated that it did not use tithing funds for projects such as the City Creek Center, but rather the interest from investments.

Those who are bringing these suits (at least since the first one) are complaining about the use of the interest made on the reserves ----- tithing that exceeds immediate need, being invested in ways that generate income.  It is that income that WAS used. 

If so, that income was not "tithing."

4 minutes ago, rpn said:

(Not that I agree with the lawsuits because of course the church has to invest funds not immediately needed somewhere and there is no better use than cleaning up the neighborhood across from Temple Square.   I sometimes think that the members/former members who make these arguments simply don't understand economic activity.

Or they are acting out of anger, willful blindness/ignorance, and goading from unscrupulous others.

I feel badly for the old couple in California.  They are being taken for a ride, and they'll likely be both financially and emotionally (and even spiritually) much worse off for the experience.

Thanks,

-Smac

[smac97]

On 2/1/2024 at 1:46 AM, JustAnAustralian said:

If they think it's only the third, they aren't paying attention. See my other thread (linked below). 

Hmm.  This spate of lawsuits may actually end up helping the Church.  See here (from the Tribune) :

Quote

LDS Church slapped with a string of new ‘copycat’ tithing lawsuits

Faith’s lawyers point to these class-action cases as reasons the appellate court needs to revisit its ruling in James Huntsman’s fraud lawsuit, warning that religious freedoms are at risk.

By Tony Semerad  | Feb. 5, 2024, 6:00 a.m.

I think this is quite right.  The more of these lawsuits that come out, the stronger the Church's First Amendment arguments will come into play, and likely be substantiated.

Quote

The Church of Jesus Christ of Latter-day Saints is sounding alarm bells about a spate of new class-action lawsuits filed recently against the Utah-based faith and its investment firm over tithing.

Similar federal complaints filed in Utah, Illinois, Tennessee, Washington and California aim to recover donations made by former Latter-day Saints in light of allegations that the church fraudulently used tithing funds to finance City Creek Center, a luxury mall in downtown Salt Lake City.

The latest of these suits surfaced Monday in U.S. District Court in California, seeking a refund of $40,000 on behalf of an elderly couple living in San Leandro, near Oakland. The church and its investment arm, Salt Lake City-based Ensign Peak Advisors, “now face a reckoning in a multitude of jurisdictions,” attorneys for Gene and Michelle Judson wrote.

The couple’s case, their lawyers added, seeks to hold high-ranking church leaders and Ensign Peak officials “accountable for their misconduct and hubris.”

The add-on of "hubris" doesn't help these lawyers, as it may lend credence to the idea that these lawsuits are more about "pound of flesh"-style actions taken by former adherents which center on intra-group disagreements about how the Church should spend its funds and who gets to make those decisions.  As Kathleen Flake put it back in 2019:

Quote

Kathleen Flake, the Richard Lyman Bushman Professor of Mormon Studies at the University of Virginia, falls in the latter group. In an article she penned for the university, she argues, “At some point, even with reliance on investments that augment membership offerings, the Church’s commitments to the members would become impossible to meet. The larger problem is, as any Bible-reader knows, tithing is about faith, not about money.”

Noting that tax law experts have already discredited the claims of a whistleblower alleging the Church of Jesus Christ improperly saves money, Flake highlights a few of the lesser-known aspects of the church’s charitable work:

“That it has an unusually robust welfare and disaster relief system may be known, but its scope can hardly be represented here except in passing: food production and supply centers, immigrant services, employment centers, literacy programs and access to higher education, family counseling, and drug addiction services, as well as its own version of Goodwill.”

Pondering the merit of added transparency for the church’s finances, Flake asks why the church doesn’t simply open up its records.

Her answer: The alleged problem is not about financial malfeasance, “it’s about competing views of what should be done with Church money and who gets to say so.”

“In other words,” Flake concludes, “this is a power struggle ... and one that we’ve seen before from those who don’t understand Mormonism and how it handles its money.”

The more these lawsuits start to look like an intra-group dispute or power struggle, the less inclined civil courts will be to allow them to proceed.

Back to the Trib article:

Quote

Church attorneys warn the new string of court actions — with five of them filed since late October — signals a wave of legal peril headed toward the faith and other religious groups.

The cases confirm their assertion, the lawyers contend, that a prior ruling in the high-profile case brought by Utahn James Huntsman “would open the floodgates for ‘copycat’ suits endangering religious liberty and church autonomy.”

Yep.

Quote

The Utah-based faith filed lengthy briefs in October and November, arguing the decision violated free speech and religious protections and threatened to expose it and other faiths, nonprofits, colleges, universities and other groups to unwarranted, unconstitutional legal intrusions.

In a Jan. 22, 2024, letter to 9th Circuit Court Clerk Molly Dwyer, church lawyer Paul Clement said that continued class-action assaults against the church and other religions “are inevitable” as long as the decision to resurrect Huntsman’s personal fraud lawsuit remained on the books.

“While Huntsman dismissed those prognostications as ‘catastrophizing,’” Clement wrote, the “copycat suits filed in four months and the looming prospect of [consolidation] make clear that the threat is real.”

The church argues that Huntsman’s case lures the courts into legal territory shielded by the First Amendment’s protections of the free exercise of religion, adding that it threatens to erode church autonomy by subjecting the actions and statements of faith leaders to legal review.

I think this is a pretty solid argument.

Quote

In nearly identical language, the recent class-action suits contend that none of their allegations implicate religious beliefs, practices, doctrines or how the church is organized or governed.

To me, this says three things:

First, that these lawsuits really are "copycats" of prior suits (the plaintiff's attorney in the most recent one, filed in California, is the same guy representing Huntsman).

Second, these denials are necessary to continue using fraud claims as a pretext for disgruntled members to wage lawfare against the Church.

Third, I don't think this assertion works given that the central factual and legal issue common to all of these lawsuits is the meaning of "tithing," which necessarily "implicate{s} religious beliefs, practices, doctrines or how the church is organized or governed."  IMO, there is no way for judges to adjudicate the claims in these lawsuits without A) wading into a religious debate about the meaning of "tithing," and B) taking a side in that debate.  And the only way for the plaintiffs to win would be for C) the courts to impose their definition{s} of "tithing" onto the Church and D) give such imposed-by-the-secular-courts definitions retroactive effect (so as to apply to statements by Pres. Hinckley and others re: City Creek).  I think the Ecclesiastical Abstention doctrine precludes these things.

Boy, am I grateful to live in the United States, and to have constitutional protections for the Church.

Thanks,

-Smac

Edited February 5, 2024 by smac97

[carbon dioxide]

A bad lawsuit is a bad lawsuit regardless of how many times it is copied. 

[Analytics]

On 2/5/2024 at 11:19 AM, smac97 said:

I think this is quite right.  The more of these lawsuits that come out, the stronger the Church's First Amendment arguments will come into play, and likely be substantiated.

The Church’s best argument is that while it didn’t meet general standards of financial transparency, the way it allocated resources was within the broad way that it indicated and no fraud was committed. 

The First Amendment arguments are weak. Imagine a similarly situated organization that is a secular non-profit instead of a Church. Imagine that non-profit doing something that made it liable in a civil suit brought on by its donors. Do you really want to argue that churches can engage in that exact same actionable behavior because the First Ammendment gives them the right to commit what would be fraud if it was committed by any organization that wasn’t recognized by the government as being a church? The first amendment guarantees people freedom of religion. It doesn’t (or at least shouldn’t) grant churches the right to defraud people.

On 2/5/2024 at 11:19 AM, smac97 said:

The add-on of "hubris" doesn't help these lawyers, as it may lend credence to the idea that these lawsuits are more about "pound of flesh"-style actions taken by former adherents which center on intra-group disagreements about how the Church should spend its funds and who gets to make those decisions.  As Kathleen Flake put it back in 2019:

The more these lawsuits start to look like an intra-group dispute or power struggle, the less inclined civil courts will be to allow them to proceed.

Back to the Trib article:

Yep.

I think this is a pretty solid argument.

To me, this says three things:

First, that these lawsuits really are "copycats" of prior suits (the plaintiff's attorney in the most recent one, filed in California, is the same guy representing Huntsman).

Yes, they are copycat suits. To the extent Huntsman’s suit is valid, similarly situated people might have valid suits, too.

On 2/5/2024 at 11:19 AM, smac97 said:

Second, these denials are necessary to continue using fraud claims as a pretext for disgruntled members to wage lawfare against the Church.

Are these people disgruntled former members waging lawfare against the Church as you say now, or is it an intra-group power struggle as you said in a previous paragraph? Your mind reading might be more convincing if you kept it consistent. 

On 2/5/2024 at 11:19 AM, smac97 said:

Third, I don't think this assertion works given that the central factual and legal issue common to all of these lawsuits is the meaning of "tithing,”...

No it isn’t; the more I hear this argument the sillier it sounds. The issue isn’t whether the Church uses the government-approved definition of tithing. The issue is whether the Church was being honest with the members who made the donations. If the Church says tithing money wasn’t used, would a reasonable member of the Church think this means the Church didn’t use tithing directly or indirectly? And if reasonable members would generally think this means it didn’t use tithing money directly or indirectly, would this misunderstanding constitute a lie that rises to the level of actionable fraud?

On 2/5/2024 at 11:19 AM, smac97 said:

Boy, am I grateful to live in the United States, and to have constitutional protections for the Church.

The Constitution should give the Church the same protections it gives any other corporation. The constitution shouldn’t give the Church a license to commit what would otherwise be fraud.

[The Nehor]

Don’t see anything new in this one. Probably won’t go anywhere.

[smac97]

On 2/7/2024 at 7:56 AM, Analytics said:

The Church’s best argument is that while it didn’t meet general standards of financial transparency, the way it allocated resources was within the broad way that it indicated and no fraud was committed. 

I don't think that's the best argument. 

First, there are no legally cognizable "general standards of financial transparency" that apply to religious groups, so it does not make sense to appeal to a legal standard that does not exist.

Second, the remainder of what you say here still plays around in the "false representation" area, but then adds a conclusory bit ("no fraud was committed").  It presupposes a series of factual findings sufficient to establish, or negate, a fraud claim.  That's what trials are for, and no argument that requires vindication via a trial is going to be better than an argument that gets the case dismissed before going to trial.

Third, the Ecclesiastical Abstention arguments are just getting stronger and stronger as more and more cases are filed.  If this doctrine is dispositive, then there's no need for a trial.  Thus, it is the better argument to assert.

On 2/7/2024 at 7:56 AM, Analytics said:

The First Amendment arguments are weak.

I respectfully disagree.

On 2/7/2024 at 7:56 AM, Analytics said:

Imagine a similarly situated organization that is a secular non-profit instead of a Church.

Respectfully, no, let's not imagine that.  "A secular non-profit" does not have the constitutional protections arising from the First Amendment that are applicable to the Church, so it cannot be "similarly situated" to the Church.

On 2/7/2024 at 7:56 AM, Analytics said:

Imagine that non-profit doing something that made it liable in a civil suit brought on by its donors.

Your lack of legal training is showing through here.

On 2/7/2024 at 7:56 AM, Analytics said:

Do you really want to argue that churches can engage in that exact same actionable behavior because the First Amendment gives them the right to commit what would be fraud if it was committed by any organization that wasn’t recognized by the government as being a church?

First, neither I nor anyone else is arguing that.

Second, there is ample case law that answers your inquiry.  That you don't know about it (or that you do know about it but don't apply it here) weakens your legal analysis.  A lot.

Third, you are not paying attention to the Ecclesiastical Abstention doctrine.  You can't just sidestep constitutional jurisprudence and expect the judge to follow you in that dance.  He won't.

Fourth, the Ecclesiastical Abstention doctrine is plainly implicated here, whereas it would have no application to "a secular non-profit."

Fifth, in addition to not applying constitutional jurisprudence, you are also failing to apply legal reasoning for fraud claims.  

Sixth, there are perhaps more than one elephant in the room re: fraud claims.  Falsity is the most obvious, but there's also scienter, reliance, and reasonableness. 

Seventh, I think falsity and scienter both necessitate a secular definition of an ecclesiastical concept (tithing), and attempting to retroactively impose - or superimpose - that meaning onto the statements by Pres. Hinckley et al. necessarily requires the court to wade into waters deemed out-of-bounds by the Ecclesiastical Abstention doctrine.

On 2/7/2024 at 7:56 AM, Analytics said:

The first amendment guarantees people freedom of religion. It doesn’t (or at least shouldn’t) grant churches the right to defraud people.

Nobody is suggesting this.  The case law is pretty clear about this.  That you are saying this rather strongly indicates that you are not familiar with the subject matter to any particular degree of rigor.

Legal analysis is not rocket science, but it nevertheless requires some specialized training and experience.  Amateurs can do fairly well in "big picture" kinds of ways if they really apply themselves, but your comments here don't indicate any particular effort to understand, let alone master, the relevant legal precepts.

On 2/7/2024 at 7:56 AM, Analytics said:

Quote

Second, these denials are necessary to continue using fraud claims as a pretext for disgruntled members to wage lawfare against the Church.

Are these people disgruntled former members waging lawfare against the Church as you say now, or is it an intra-group power struggle as you said in a previous paragraph? Your mind reading might be more convincing if you kept it consistent. 

Let us embrace the healing power of "and."

Some have had their membership removed, some are nominally still members.  All are "disgruntled."

Anyhoo, the underlying point remains: The folks are mouthing legal assertions that are necessary to maintain a pretext.

On 2/7/2024 at 7:56 AM, Analytics said:

Quote

Third, I don't think this assertion works given that the central factual and legal issue common to all of these lawsuits is the meaning of "tithing,”...

No it isn’t;

Yes, I think it is.

On 2/7/2024 at 7:56 AM, Analytics said:

the more I hear this argument the sillier it sounds.

Neophytes often have such a reaction, which usually speaks more to their lack of experience and competence in the law than to the actual points of law and legal reasoning under discussion.

On 2/7/2024 at 7:56 AM, Analytics said:

The issue isn’t whether the Church uses the government-approved definition of tithing.

First, nobody is talking about "the government-approved definition of tithing."

Second, the issue, instead, is about the meaning of tithing as it was used by Pres. Hinckley and others.

Third, the prospect of a secular court superimposing a secular definition of "tithing" onto comments made by a religious figure is perhaps one of the most pristine examples of things that are barred under the Ecclesiastical Abstention doctrine.

Fourth, the various plaintiffs in these lawsuits are all relying on a tortured redefinition of the term that answers neither to the Church's nor the government's definition of the term.

On 2/7/2024 at 7:56 AM, Analytics said:

The issue is whether the Church was being honest with the members who made the donations.

Again, you can't simply sidestep constitutional jurisprudence.  That is what you are doing here.

You are also not applying the basis tort-based prima facie elements of fraud here.

On 2/7/2024 at 7:56 AM, Analytics said:

If the Church says tithing money wasn’t used,

Then that places the meaning of "tithing" front and center.

A moment ago, responding to my comment about the meaning of tithing being "the central factual and legal issue common to all of these lawsuits," you called it "silly."  Now you are placing that word at the center of what you are saying "{t}he issue is."

On 2/7/2024 at 7:56 AM, Analytics said:

would a reasonable member of the Church think this means the Church didn’t use tithing directly or indirectly?  And if reasonable members would generally think this means it didn’t use tithing money directly or indirectly, would this misunderstanding constitute a lie that rises to the level of actionable fraud?

The only way to answer these questions is to first establish the meaning of "tithing," which earlier you said is "silly," and which I have said several times is an impossible thing for secular courts to do without running afoul of the Ecclesiastical Abstention doctrine.  

Again, you can't simply sidestep constitutional jurisprudence, but you keep doing so, over and over.

On 2/7/2024 at 7:56 AM, Analytics said:

The Constitution should give the Church the same protections it gives any other corporation.

You are ignoring the First Amendment.  You are making legal arguments that  pretend it does not exist.  This sort of thing works in an online forum where spouting off has no downside or accountability.  But in a secular court, you would not be saying such things (or if you did, you would be challenged on them in ways that I don't think you are prepared to address).  

On 2/7/2024 at 7:56 AM, Analytics said:

The constitution shouldn’t give the Church a license to commit what would otherwise be fraud.

It doesn't.  And nobody has suggested it does.  Nobody.  

I encourage you to do some study on this topic.  I previously provided a partial assessment back in 2022 by discussing a fraud case against James Harmston:

Quote

The law is pretty clear that charitable contributions, once made, become the property of the Church, to be used within its reasonably-exercised discretion.  Courts are, in the main, constrained from adjudicating religious disputes, which I think would extend to disputes as to how a religious group spends donated funds.  Theoretically, there are circumstances in which a charitable institution might use fraudulent representations to encourage/solicit donations.  See, e.g., this story from 2002:

Quote

A jury has sided with two former members of an apocalyptic church who sued seeking repayment of nearly $300,000 they had made in contributions to the 7-year-old church that endorses polygamy and preaches that the world will soon end and only its members will be saved.

The jury in 6th District Court awarded Kaziah Hancock a total of $270,000 and Cindy Stewart $20,325, with separate amounts to be paid to them by the church for fraud, breach of contract and intentional infliction of emotional distress.

Counts against the church of racketeering and unjust enrichment were dismissed.

The jury upheld the women's contentions that the church's founder, Jim Harmston, swindled them out of money and failed to fulfill several promises including a face-to-face meeting with Jesus Christ.

Hancock and Stewart maintained Harmston had taken advantage of their spiritual needs. Hancock also has said that church members were taught they could meet Christ if they turned over all their possessions to the church.

The church, meanwhile, plans to appeal.

And this KSL article:

Quote

Two women who gave their life savings to an apocalyptic religious group say they are victims of fraud.

Now, Kaziah Hancock and Cindy Stewart took their lawsuit against The True and Living Church of Jesus Christ of Saints of The Last Days to the Utah Court of Appeals.

They claim the church failed to make good on promises that the women get land and see Christ in return for their money.

Stewart turned over her life savings to the church. Hancock sold her farm and gave the church the proceeds.

In return, church leader Jim Harmston allegedly promised the women membership in the "Church of the Firstborn," that they would see Christ face-to-face, and be given land.

...
And here:

Quote

Kaziah Hancock and Cindy Stewart won almost $300,000 in damages in January from a breakaway Mormon sect in Manti, Utah, based on their lawsuit for fraud. The suit charged self-proclaimed prophet Jim Harmston of failing to keep several promises, including one to produce Jesus Christ in the flesh. Hancock also claimed that Harmston had persuaded her to donate 67 acres of land to the church, promising that it would give her a new place to live. The church did make one payment toward a new home for Hancock, but then Harmston informed her that God had told him to stop paying.

As you can see, the news coverage tends to focus on the religious quid pro quo (donation of land now in exchange for other land later and a face-to-face meeting with Jesus).  

From one of the appeals of the foregoing case:

Quote

B. No Adjudication of Church Doctrine Necessary to Grant Relief

 ¶ 15 The trial court's second reason for denying Plaintiffs' motion to amend was that the Third Amended Complaint would require the fact finder to impermissibly judge the Church's religious doctrines.   Civil actions that “require the courts to review and interpret church law, policies, or practices in the determination of the[ir] claims are barred by the First Amendment under the entanglement doctrine.”  Franco v. The Church of Jesus Christ of Latter-day Saints, 2001 UT 25,¶ 15, 21 P.3d 198.

 ¶ 16 Here, Plaintiffs are alleging a variety of causes of action arising from the same set of decidedly secular facts.   Both of the Plaintiffs assert that they gave money to the Church in exchange for promises of future earthly benefits.   Hancock alleges that she was promised land and support;  Stewart alleges that she was promised repayment of her retirement funds including the costs and penalties of early withdrawal.

 ¶ 17 “[C]hurches must have ‘power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.’ ”  Id. (quoting Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952)).   But here, Plaintiffs' claims do not necessarily implicate the Church's government, faith, or doctrine.²  Rather, each of the claims stated in the Third Amended Complaint is supported by allegations of secular activity potentially amounting to violations of generally applicable civil law.   Cf. Employment Div. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (upholding criminal laws of general applicability even though those laws interfere with sincerely held religious beliefs).   Accordingly, the trial court erred when it relied on the entanglement doctrine to deny Plaintiffs' motion to amend.
...
2.   This is not to say that every allegation in the Third Amended Complaint avoids conflict with the First Amendment.   For example, Plaintiffs' allegation that Hancock “never met Christ face to face as promised” appears to be an entirely religious matter beyond the courts' ability to adjudicate.

Note that the Utah Court of Appeals allowed the litigation to proceed based on "decidedly secular facts" (that is, Hancock claimed "she was promised land and support," and Steward claims she was promised repayment of her retirement funds").  However, the Court describes that "face to face" meeting promise as apparently "an entirely religious matter beyond the courts' ability to adjudicate."

So as regarding funds donated to a religious group, "secular" disputes can be adjudicated, but "religious" ones cannot.  The Church is already well insulated from most "secular" disputes because it makes no contractual arrangements with donors, and any promised blessings would, I think, all end up being properly characterized as "entirely religious matter{s}."

This is why James Huntsman took the "fraud" approach in his lawsuit against the Church.  He was trying to characterize his tithes as being solicited based on assurances as to how the Church would and would not spend tithed donations, and that the Church's involvement in the City Creek project constituted a form of fraud.  

The Hancock lawsuit is interesting because of it managed to avoid dismissal under the Ecclesiastical Abstention doctrine, and also prevail at the trial court on a fraud claim against a religious group.  The foregoing evaluation by the Utah Court of Appeals includes the kinds of analysis you need to do in order to meaningfully address the Huntsman lawsuit and its copycats.

Thanks,

-Smac

Edited February 10, 2024 by smac97

[Analytics]

13 hours ago, smac97 said:

I don't think that's the best argument. 

First, there are no legally cognizable "general standards of financial transparency" that apply to religious groups, so it does not make sense to appeal to a legal standard that does not exist.

My argument doesn’t appeal to “legally cognizable ‘general standards of financial transparency.” What I am suggesting is that the Church didn’t commit fraud because it never explained how it deploys its resources with enough detail for a lie to have been told. It’s statements were too vague for anybody to rely on them. I’ve consistently said that people shouldn’t make significant donations to charities or churches without first reviewing the detailed financial statements. The plaintiffs ignored my advice and made donations to the Church. The consequences are on them.

13 hours ago, smac97 said:

Third, the Ecclesiastical Abstention arguments are just getting stronger and stronger as more and more cases are filed.

I disagree. This isn’t about the doctrinal definition of “tithing”, nor is it about any other ecclesiastical question. 

13 hours ago, smac97 said:

 If this doctrine is dispositive, then there's no need for a trial.  Thus, it is the better argument to assert.

Have any of the plaintiff’s stated that they are asking the courts to resolve an ecclesiastical question?

[smac97]

On 2/10/2024 at 7:27 AM, Analytics said:

Quote

I don't think that's the best argument. 

First, there are no legally cognizable "general standards of financial transparency" that apply to religious groups, so it does not make sense to appeal to a legal standard that does not exist.

My argument doesn’t appeal to “legally cognizable ‘general standards of financial transparency.”

Then why are you presenting this argument in a legal context?  You literally framed your statement as "{t}he Church’s best argument" to use in response to a civil lawsuit.

We're not talking about mere abstract differences of opinion.  We are addressing the substantive merits, or lack thereof, of lawsuits against the Church. 

On 2/10/2024 at 7:27 AM, Analytics said:

What I am suggesting is that the Church didn’t commit fraud because it never explained how it deploys its resources with enough detail for a lie to have been told.

Again, your lack of legal training is showing through here.

No attorney anywhere would deploy the argument you espouse above as "the best" one.  This is not how the law operates.  The attorneys and the judge are evaluating, inter alia, 

(A) whether a statement was made,
(B) about a presently-existing material fact,
(C) which was false, and
(D) the representor (here, the Church)
-(D)(1) made the statement while knowing the statement was false, or else
-(D)(2) made the statement recklessly and without regard for its truthfulness, and
(E) the representor made the statement with the specific intent for the induce reliance on it by the recipient of the statement.

There are further elements to a fraud claim, but these are the ones that pertain to the Church's putative behavior.

Nobody disputes (A) (that the Church made statements to the effect that no tithing would be used to fund the City Creek Mall development).

There is a very big dispute about (B), both as to the "fact" (that no "tithing" would be used) and its "materiality."

There is also a very big dispute about (C), that is, the "falsity" of the statement.

There is also a very big dispute about (D)(1) and (D)(2).

I don't think there's much of a dispute about (E).  The Church was intending to induce members to rely on its statements (that no tithing would be used).

Your purported "best argument" doesn't really fit well anywhere in this analysis.  It might fit in (A) (the Church made a statement, but it was too vague to be a predicate for a fraud claim), or (B) (the Church made a statement, but was too vague to reference "a presently-existing material fact"), or (C) (the Church made a statement, but the statement was too vague to be categorized as "false"), or (D)(1) (the Church made a statement, but it was vague, so the Church did not have the intent (scienter) to present it as a "false" statement).

On balance, I'd say your argument might fit the most in (C), but that still does not make it the "best argument."  Most arguments about (C) are going to be heavily fact-dependent, and thus require litigation and discovery and trial prior to the factfinder reaching a decision.  Alternatively there are a variety of arguments the Church can utilize to avoid litigation and trial, most or all of which are going to be better than one that can only be tested via litigation/discovery/trial.

On 2/10/2024 at 7:27 AM, Analytics said:

It’s statements were too vague for anybody to rely on them. I’ve consistently said that people shouldn’t make significant donations to charities or churches without first reviewing the detailed financial statements.

"Reliance" on the Church's statements, and whether such reliance was "reasonable," is a part of fraud analysis.  However, this portion is also very fact-dependent, and thus requires litigation/discovery/trial, and thus is an inferior or secondary argument.

I am not saying that "too vague for anybody to rely on them" is an unworkable argument, but it's far from the "best" one.

On 2/10/2024 at 7:27 AM, Analytics said:

The plaintiffs ignored my advice and made donations to the Church. The consequences are on them.

You are focusing on reasonable reliance.  I don't see that as the "best" way to avoid litigation/discovery/trial.

On 2/10/2024 at 7:27 AM, Analytics said:

Quote

Third, the Ecclesiastical Abstention arguments are just getting stronger and stronger as more and more cases are filed.

I disagree. This isn’t about the doctrinal definition of “tithing”, nor is it about any other ecclesiastical question. 

Yes, it is about these things.  Not only is this facially apparent from what has happened so far (the adjudicative bodies have addressed these issues), several non-profit groups - none of which is affiliated with the Church - have filed amicus briefs in this case in the Ninth Circuit:

Quote

The Becket Fund for Religious Liberty, a Washington, D.C.-based nonprofit law firm representing " all religious traditions” in the case, has filed a brief saying all tithing disputes “are inherently religious” and that courts “cannot second-guess the content of sermons.”

“Freedom of religion could not survive,” the firm warns, “if courts had power to investigate every complaint about a church’s internal decisions, thus becoming endlessly entangled in religious decision-making.”

This is a plain reference to the Ecclesiastical Abstention doctrine.

On 2/10/2024 at 7:27 AM, Analytics said:

Have any of the plaintiff’s stated that they are asking the courts to resolve an ecclesiastical question?

Of course not.  But the Plaintiff's say-so and denial of what it is "asking the courts to resolve" does not settle the question.

Thanks,

-Smac

[Analytics]

22 hours ago, smac97 said:

Then why are you presenting this argument in a legal context?  You literally framed your statement as "{t}he Church’s best argument" to use in response to a civil lawsuit.

For review, here is what I said:

"The Church’s best argument is that while it didn’t meet general standards of financial transparency, the way it allocated resources was within the broad way that it indicated and no fraud was committed."

The clause “while it didn’t meet general standards of financial transparency” is background information; it isn’t part of the legal argument itself. The actual argument is that “the way it allocated resources was within the broad way that it indicated."

 

22 hours ago, smac97 said:

No attorney anywhere would deploy the argument you espouse above as "the best" one.  This is not how the law operates.  The attorneys and the judge are evaluating, inter alia, 

(A) whether a statement was made,
(B) about a presently-existing material fact,
(C) which was false, and
(D) the representor (here, the Church)
-(D)(1) made the statement while knowing the statement was false, or else
-(D)(2) made the statement recklessly and without regard for its truthfulness, and
(E) the representor made the statement with the specific intent for the induce reliance on it by the recipient of the statement.

There are further elements to a fraud claim, but these are the ones that pertain to the Church's putative behavior.

Okay, let’s frame it that way.

22 hours ago, smac97 said:

Your purported "best argument" doesn't really fit well anywhere in this analysis. 

Of course it does. Here’s how.

(A) The Church made a statement, but it was vague. People speculated about what it meant, but most members (e.g. Pahoran, Kim Pearson) came to the wrong conclusion. Some people think the Church lied. Some are trying to rewrite history about how the membership interpreted the remarks at the time. My position is that the ‘statement” was so vague and unsupported, it was barely a statement at all.

(C) I don’t think the statement was true or false. Perhaps it was misleading, but it was so vague it was neither true nor false. It was meaningless. 

(D) I think the statement was knowingly vague.

(E) The statement was made to reassure people about something they were doing anyway. It wasn’t meant to be relied on.

That’s the way I see it. I admit that I am more than a bit pedantic in matters of finance, but let me give an example of where I’m coming from. If an organization deliberately said false things on an SEC Form 13F, that would meet the definition of fraud you laid out. But compare deliberately saying false things in these carefully constructed, detailed government reports to making a vague two-sentence declaration that “no tithing money was used.” One is a very well-defined, precise declaration that is intended to be relied on. The other is a vague statement that wasn’t clear at the time and was interpreted differently by different people.

22 hours ago, smac97 said:

Yes, it is about [

the doctrinal definition of “tithing”, and other ecclesiastical questions].  Not only is this facially apparent from what has happened so far (the adjudicative bodies have addressed these issues), several non-profit groups - none of which is affiliated with the Church - have filed amicus briefs in this case in the Ninth Circuit:

As a hypothetical, say the money for the mall came directly out of tithing donations--there was no interest--the donations went straight from the tithing envelops to the mall developers. Could the Church argue something like the following? "The doctrinal definition of tithing is giving 10% of your increase to the Lord. Some people only pay a so-called “partial tithing” which doctrinally speaking, isn’t tithing at all. The money used to build the mall didn’t come from actual tithing, it came from subset of money in the tithing account that was partial tithing (i.e. not tithing). Thus what I said was doctrinally true: no tithing was used."

Now, you can have all the doctrinal disputes you want about whether partial tithing is tithing. But regardless of the doctrine, the fact remains that a statement like this would be purposely misleading.

Perhaps lawyers believe that the Ecclesiastical Abstention doctrine gives churches license to deliberately mislead their flocks without threat of legal repercussions. You say that’s not what it does, but look at how it is being used here. Think about it from the jury’s perspective. Playing the Ecclesiastical Abstention card in a case like this sure seems like holding churches to a lower standard of honesty than the rest of the population, because it tries to shift the conversation away from whether the Church was deliberately misleading the membership to what the doctrinal definition of tithing is. Would a jury go along with this? 

Edited February 13, 2024 by Analytics

[Analytics]

23 hours ago, smac97 said:

You are focusing on reasonable reliance.  I don't see that as the "best" way to avoid litigation/discovery/trial.

Yes, it is about these things.  Not only is this facially apparent from what has happened so far (the adjudicative bodies have addressed these issues), several non-profit groups - none of which is affiliated with the Church - have filed amicus briefs in this case in the Ninth Circuit:

This is a plain reference to the Ecclesiastical Abstention doctrine.

Let me explain from a different angle why I find this so unconvincing.

Plaintiff: The Church said they wouldn’t use A to make C, but we now know they used A to make B and then used B to make C. Therefore they used A to make C. Fraud!

Defense: We didn’t use A to make C. We used B to make C!

Plaintiff: But using A to make B so that you can use B to make C is using A to make C!

Defense: Whether or not that is true depends on the definition of A and that’s a religious question outside of the court’s purview!

Analytics: That’s a weak argument. The definition of A has nothing to do with it.

Smac97: The definition of A has everything to do with it! You’re obviously not a lawyer.

Analytics: Is that supposed to be an insult?

 

Edited February 13, 2024 by Analytics

[smac97]

2 hours ago, Analytics said:

Let me explain from a different angle why I find this so unconvincing.

Plaintiff: The Church said they wouldn’t use A to make C, but we now know they used A to make B and then used B to make C. Therefore they used A to make C. Fraud!

Defense: We didn’t use A to make C. We used B to make C!

Plaintiff: But using A to make B so that you can use B to make C is using A to make C!

Defense: Whether or not that is true depends on the definition of A and that’s a religious question outside of the court’s purview!

Analytics: That’s a weak argument. The definition of A has nothing to do with it.

Smac97: The definition of A has everything to do with it! You’re obviously not a lawyer.

Analytics: Is that supposed to be an insult?

No, it's a neophyte's caricature of a substantive explanation of the applicable law.

Thanks,

-Smac

[Analytics]

38 minutes ago, smac97 said:

No, it's a neophyte's caricature of a substantive explanation of the applicable law.

Thanks,

-Smac

If you aren’t interested in how a non-attorney (such as a member of the jury) interprets your arguments, that is your prerogative. 

[smac97]

12 minutes ago, Analytics said:

Quote

No, it's a neophyte's caricature of a substantive explanation of the applicable law.

If you aren’t interested in how a non-attorney (such as a member of the jury) interprets your arguments, that is your prerogative. 

I am more interested in a reasonable and informed interpretation and understanding and discussion of how the substantive law works in the real world.  Your comments are generally not conducive to that end because you insist on superimposing your neophyte understanding of the law and declaring it to be include the "best argument" for the Church to use.  

Thanks,

-Smac

[Analytics]

1 minute ago, smac97 said:

I am more interested in a reasonable and informed interpretation and understanding and discussion of how the substantive law works in the real world.  Your comments are generally not conducive to that end because you insist on superimposing your neophyte understanding of the law and declaring it to be include the "best argument" for the Church to use.  

Thanks,

-Smac

I’m not an attorney, but my understanding is that on occasion non-attorneys find themselves on juries. If I’m right about that, the view of non-attorneys has a lot to do with how the law works in the real world. If I were an attorney, I’d be very interested in understanding how potential members of the jury think and how they interpret my arguments. But maybe real attorneys don’t care about that kind of thing. I wouldn’t know.

A “neophyte” is someone who is new at something. I’m not a neophyte. I’m a layman. And to me, you come across as incapable of explaining what Ecclesiastical Abstention has to do with this case. And that makes me think that on that issue, the plaintiffs are right.

[smac97]

16 minutes ago, Analytics said:

Quote

I am more interested in a reasonable and informed interpretation and understanding and discussion of how the substantive law works in the real world.  Your comments are generally not conducive to that end because you insist on superimposing your neophyte understanding of the law and declaring it to be include the "best argument" for the Church to use.  

I’m not an attorney, but my understanding is that on occasion non-attorneys find themselves on juries.

Yes.

16 minutes ago, Analytics said:

If I’m right about that, the view of non-attorneys has a lot to do with how the law works in the real world.

Not really.  Juries decide the facts, the law is decided by the judge.  And the discussion here, centering on the prima facie elements of fraud, have far more to do with questions of law than questions of fact.

16 minutes ago, Analytics said:

If I were an attorney, I’d be very interested in understanding how potential members of the jury think and how they interpret my arguments. But maybe real attorneys don’t care about that kind of thing. I wouldn’t know.

My brother-in-law, a pediatrician, has occasionally bemoaned the impact of websites like WebMD, as he feels that people with little or no broad training in medicine read them and come away giving their neophyte understanding undue and unearned confidence and credit.

Similarly, I have occasionally litigated against pro se litigants, some of whom, like you, have read some things here and there, and have come away with a shallow, narrow, blinkered understanding of "the law," but in which they repose undue and unearned confidence and credit.

16 minutes ago, Analytics said:

A “neophyte” is someone who is new at something.

You are experienced in litigating civil fraud claims?  By all means, lay out your experience.

For myself, I have litigated civil fraud many dozens of times, in both state and federal courts in Utah.  In 2017 I published an article in the Utah Bar Journal: A Primer on Pleading Fraud Claims in Utah.

I can speak extemporaneously as to the prima facie elements of a fraud claim, its various "species" (fraud, fraudulent nondisclosure, negligent misrepresentation, negligent nondisclosure, etc.), the requisite quantum of evidence ("clear and convincing"), the most common flaws in fraud claims, key decisional authorities, and on and on.  I am occasionally called upon by other attorneys and law firms to help them "vet" fraud claims (both to support or negate them).

I am not a "neophyte" in litigating civil fraud claims.  I think you are.  What you have written here demonstrates your lack of familiarity with this area of law.

16 minutes ago, Analytics said:

I’m not a neophyte. I’m a layman.

Synonyms for "layman":

Quote

• believer
• dilettante
• follower
• member
• neophyte
• novice
• outsider
• proselyte
• recruit
• secular

Regardless of what you call yourself, your comments in this thread do not indicate much in the way of familiarity with the substantive law, either in theory or in practice.

16 minutes ago, Analytics said:

And to me, you come across as incapable of explaining what Ecclesiastical Abstention has to do with this case.

I have done so many times.  

1. The gravamen of the fraud claims in these lawsuits is that the Church made statements to the effect that no "tithing" would be used to fund development of the City Creek Mall.

2. The prima facie elements of "fraud" in California are:

Quote

 “‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ”  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)  To maintain any fraud action, a plaintiff must show that he or she changed position in reliance upon the alleged fraud and was damaged by that change of position.  (Civ. Code, § 1709.) 

Utah tort law parses this out a bit finer (though in practice I think the result is the same in both CA and UT) :

Quote

The elements of fraud in Utah are:

"(1) a representation;
(2) concerning a presently existing material fact;
(3) which was false;
(4) which the representor either (a) knew to be false, or (b) made recklessly, knowing that he [or she] had insufficient knowledge on which to base such representation;
(5) for the purpose of inducing the other party to act upon it;
(6) that the other party, acting reasonably and in ignorance of its falsity;
(7) did in fact rely upon it;
(8) and was thereby induced to act;
(9) to his [or her] injury and damage."

Element (1) is clearly met.  Nobody disputes that the Church made "representation{s}" about "tithing" not being used to finance City Creek.

Element (2) cannot be evaluated by a factfinder without running headlong into the Ecclesiastical Abstention Doctrine.  The representation has to be about a "fact."  Here the "fact" centers on whether "tithing" was used to fund City Creek.  There is no way to evaluate whether the representations about "tithing" were about a "presently existing material fact" without first reaching a legal conclusion about what Pres. Hinckley et al. meant when they used the word "tithing."  There is no way for a secular court to adjudicate what ecclesiastical leaders meant by "tithing" without violating the Ecclesiastical Abstention Doctrine. The ecclesiastical abstention doctrine, also known as the ecclesiastical abstention principle or the ecclesiastical abstention doctrine, is a legal principle that states that civil courts should refrain from adjudicating disputes that are primarily religious in nature.  This doctrine stems from the First Amendment to the United States Constitution, which prohibits the government from interfering with religious beliefs and practices. The principle recognizes that religious organizations have the autonomy to govern themselves and make decisions about internal religious matters without interference from secular authorities.  Under the ecclesiastical abstention doctrine, courts typically refrain from resolving disputes involving matters such as religious doctrine, church governance, ministerial appointments, and disciplinary actions against clergy members. Instead, they defer to the internal decision-making processes of religious organizations.

Element (3) also cannot be evaluated by a factfinder without running headlong into the Ecclesiastical Abstention Doctrine.  The only way for a Court to adjudicate the falsity of statements about "tithing" is to define the term.  The Court cannot define the term without interpreting and applying the Church's doctrine, the intent of its ecclesiastical leaders in using the term, etc. without running afoul of the Ecclesiastical Abstention Doctrine.

In contrast, consider the Hancock lawsuit I referenced earlier, which is interesting because of it managed to avoid dismissal under the Ecclesiastical Abstention doctrine, and also because the plaintiffs prevailed at the trial court on a fraud claim against a religious group.  However, in that case, the allegations of fraud centered on what the Utah Court of Appeals noted were "decidedly secular facts":

Quote

Both of the Plaintiffs assert that they gave money to the Church in exchange for promises of future earthly benefits.  Hancock alleges that she was promised land and support; Stewart alleges that she was promised repayment of her retirement funds including the costs and penalties of early withdrawal.
...
{E}ach of the claims stated in the {Plaintiffs'} Complaint is supported by allegations of secular activity potentially amounting to violations of generally applicable civil law. 

As a generalization, using money to invest in a mall is clearly "secular activity."  However, the issue here is the use of tithing monies 

However, the Plaintiffs' claims were not totally within bounds:

Quote

This is not to say that every allegation in the Third Amended Complaint avoids conflict with the First Amendment.  For example, Plaintiffs' allegation that Hancock “never met Christ face to face as promised” appears to be an entirely religious matter beyond the courts' ability to adjudicate.

In the current spate of lawsuits, various courts are being asked to adjudicate both the meaning of "tithing" and whether the monies used to fund City Creek qualify under the Court-imposed definition.  That has "Ecclesiastical Abstention" written all over it.  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.

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 is why I have been critiquing your "best argument" claims.  The "best arguments" are those which, if successful, deprive the civil courts of jurisdiction.

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.")

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.

Can civil courts identify and utilize "neutral principles of law to non-ecclesiastical issues" when defining "tithing" and ascertaining Pres. Hinckley's intent when he used that word?  I don't think so.

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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."). 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.").

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.

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.

Another line of cases has applied ecclesiastical abstention to defamation suits stemming from pastoral statements. 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 ; see also Westbrook v. Penley , 231 S.W.3d 389, 391 (Tex. 2007) (court lacked jurisdiction to hear claims arising from pastor encouraging congregation to "shun" former parishioner for "biblically inappropriate" relationship); Thiagarajan , 430 S.W.3d at 594-95 (declining to hear defamation suit between church members over emails about church policy);  In re Alief Vietnamese All. Church , 576 S.W.3d 421, 425-426 (Tex.App.--Houston [1st Dist.] 2019, no pet.) (court lacked jurisdiction over suit based on pastor's rebuke of church member before congregation when rebuke was grounded in church bylaws outlining how disputes were to be handled).

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. 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.

"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.  Accordingly, the court lacked any jurisdiction to hear the fraud claim upon which the challenged expenditures was based."

I think this is how things will eventually turn out in the Huntsman case and its progeny.

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

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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 what Huntsman et al. are doing.  They are "attempt{ing} to invoke" the jurisdiction of secular courts by framing their 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.

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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:

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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.

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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.

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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."

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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."

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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."

Getting back to the prima facie elements of fraud...

Element (4) (scienter) also cannot be evaluated by a factfinder without running headlong into the Ecclesiastical Abstention Doctrine.  See the foregoing citations.

There are numerous other defects in Huntsman's theory as pertaining to the remaining elements, but various courts throughout the United States have applied the Ecclesiastical Abstention doctrine to circumstances very similar to those presented in the Huntsman case.  You may well want, on ideological grounds, for this doctrine to not apply here, but that's wishful thinking on your part.

Thanks,

-Smac

[Analytics]

3 hours ago, smac97 said:

Not really.  Juries decide the facts, the law is decided by the judge.  And the discussion here, centering on the prima facie elements of fraud, have far more to do with questions of law than questions of fact.

Not sure if I agree with that.

3 hours ago, smac97 said:

Element (2) cannot be evaluated by a factfinder without running headlong into the Ecclesiastical Abstention Doctrine.  The representation has to be about a "fact."  Here the "fact" centers on whether "tithing" was used to fund City Creek.  There is no way to evaluate whether the representations about "tithing" were about a "presently existing material fact" without first reaching a legal conclusion about what Pres. Hinckley et al. meant when they used the word "tithing."  There is no way for a secular court to adjudicate what ecclesiastical leaders meant by "tithing" without violating the Ecclesiastical Abstention Doctrine. 

I think you are wrong on the facts because you are equivocating the word “tithing.” Religious points of doctrine aren’t used to build malls; dollars in a bank account are. This isn’t a question of religious doctrine--it is a question of accounting. People make donations to the church that are explicitly categorized as “tithing,” and the church has an explicit revenue account in its accounting system called “tithing revenue.” When Hinckley said “tithing funds have not and will not be used to acquire this property” he was making a factual statement about accounting. He wasn’t talking about doctrine.

Arguing that in this context tithing is an esoteric religious concept and not an accounting one sounds like a rationalization that was made up by attorneys after the fact and is not something that Hinckley was actually saying at the time. 

3 hours ago, smac97 said:

Element (3) also cannot be evaluated by a factfinder without running headlong into the Ecclesiastical Abstention Doctrine.  The only way for a Court to adjudicate the falsity of statements about "tithing" is to define the term. 

In the context of this dispute, the term “tithing" is defined in the Church’s accounting system. Is the Church really arguing that in terms of its accounting system, “tithing funds” refer to something other than the funds in its accounting system that are labeled “tithing funds”? If they are making that argument, I find it weak. 

3 hours ago, smac97 said:

The Court cannot define the term without interpreting and applying the Church's doctrine...

Again, “tithing funds” is an accounting term that is well-defined in the Church’s accounting system. It has nothing to do with doctrine.

3 hours ago, smac97 said:

In contrast, consider the Hancock lawsuit I referenced earlier, which is interesting because of it managed to avoid dismissal under the Ecclesiastical Abstention doctrine, and also because the plaintiffs prevailed at the trial court on a fraud claim against a religious group.  However, in that case, the allegations of fraud centered on what the Utah Court of Appeals noted were "decidedly secular facts":

Likewise, “tithing funds” referring to the funds labeled “tithing funds” in the Church’s accounting system is a decidedly secular fact.

3 hours ago, smac97 said:

As a generalization, using money to invest in a mall is clearly "secular activity."  However, the issue here is the use of tithing monies 

However, the Plaintiffs' claims were not totally within bounds:

In the current spate of lawsuits, various courts are being asked to adjudicate both the meaning of "tithing" and whether the monies used to fund City Creek qualify under the Court-imposed definition.  That has "Ecclesiastical Abstention" written all over it.  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.”)

That is a totally different situation. "Hawthorne also asserted that Couch's "misrepresentation of the Bible" was fraud...” Just because courts aren’t going to adjudicate on whether Hawthorne “misrepresented the Bible” doesn’t mean it can’t adjudicate on whether the Church deployed the funds in its accounting system the way it said it would. 

3 hours ago, smac97 said:

; 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.”).

That lawsuit is about somebody suing a church for excommunicating him. 

3 hours ago, smac97 said:

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

It depends on the context. “Tithing” can also be a well-defined account in an accounting system.

3 hours ago, smac97 said:

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."

I don’t see how. The plaintiffs are arguing (or at least should be arguing) that “tithing funds” refer to the funds in the Church’s accounting system that are labeled “tithing.” The Church’s attorney trying to turn that into a theological controversy sounds like lawyers making things up after the fact to win a case. 

3 hours ago, smac97 said:

This is why I have been critiquing your "best argument" claims.  The "best arguments" are those which, if successful, deprive the civil courts of jurisdiction.

Is that like saying that Trump’s “best argument" in the January 6 case is that he had absolute immunity because if he could somehow convince the courts that was the case, he’d avoid trial?

3 hours ago, smac97 said:

Can civil courts identify and utilize "neutral principles of law to non-ecclesiastical issues" when defining "tithing" and ascertaining Pres. Hinckley's intent when he used that word?  I don't think so.

"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.  Accordingly, the court lacked any jurisdiction to hear the fraud claim upon which the challenged expenditures was based."

I think this is how things will eventually turn out in the Huntsman case and its progeny.

This case isn’t about whether the way the Church uses its resources is “proper”. It is about whether they committed fraud by explicitly lying about how its resources would be deployed.