REL:10/24/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
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the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2014-2015
____________________
1130539
____________________
Burns Church, Inc., and Stephen Etheridge
v.
Alabama District Council of the Assemblies of God, Inc., and
Burns Assembly of God Church
Appeal from Geneva Circuit Court
(CV-13-90082)
PER CURIAM.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Stuart, Bolin, Parker, Murdock, Shaw, Main, Wise, and
Bryan, JJ., concur.
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Moore, C.J., dissents.
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MOORE, Chief Justice (dissenting).
I respectfully dissent from the Court's decision to
affirm the summary judgment in favor of the Alabama District
Council of the Assemblies of God, Inc. ("the District
Council"), and Burns Assembly of God Church in their action
against Stephen Etheridge and Burns Church, Inc. Though this
ecclesiastical dispute incidentally affects property rights,
the courts of the State of Alabama lack jurisdiction to
intervene in this dispute, which is based upon disparate
interpretations of church governing documents and doctrine and
conflicting claims of church membership. I believe that the
Court should have dismissed this appeal for lack of subject-
matter jurisdiction.
I. The Parties
The District Council, an appellee, is located in
Montgomery and is the governing body of all Assemblies of God
churches in Alabama. The District Council incorporated in 1942
as a nonprofit religious corporation under Alabama law. The
District Council acts under the General Council of the
Assemblies of God, which is located in Springfield, Missouri,
and is the governing body of all Assemblies of God churches in
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the United States ("the General Council"). Burns Assembly of
God Church, the other appellee, is located in Geneva County
and is an unincorporated religious association that acts under
the authority of the District Council and the General Council.
Burns Church, Inc., an appellant, is also located in Geneva
County. It was incorporated in 2006 as a nonprofit religious
corporation under Alabama law. Stephen Etheridge, the other
appellant, is the pastor of Burns Church, Inc.
II. Facts and Procedural History
Burns Assembly of God Church has maintained a house of
worship in Geneva County for close to 100 years. For many
years, Burns Assembly of God Church has been affiliated with
both the District Council and the General Council. In October
2002, the members of Burns Assembly of God Church called
Etheridge to be their pastor. In that capacity, Etheridge also
served as chairman of the board of directors of the church.
At some point, Etheridge and the directors voted to
excommunicate a number of church members whom Etheridge and
the directors believed to be contentious and disruptive, who
were not tithing as required by the standards for church
membership in the bylaws of Burns Assembly of God Church, or
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who were no longer actively attending worship services, which
is a cause for discipline under the bylaws. The course of
action chosen by Etheridge and the directors caused disharmony
and contention between, on the one side, Etheridge, the
directors, and the remaining members (hereinafter referred to
collectively as "the Etheridge faction") and, on the other
side, the excommunicated members ("the excommunicated
faction"). The excommunicated faction did not appeal the
decision on excommunication, as allowed by the bylaws.
However, the excommunicated faction did request a hearing with
the District Council, whose leaders met with approximately 40
people who expressed their concerns about Etheridge's
leadership.1
The excommunicated faction continued to assemble and to
meet for weekly worship at another location, also under the
name Burns Assembly of God Church. The excommunicated faction
1
In 2005, Joe Cotton, one of the excommunicated members
and a former director, sued Etheridge and Burns Assembly of
God Church, asking the trial court for a judgment declaring
that his excommunication from membership in the church was
improper. Etheridge and Burns Assembly of God Church moved to
dismiss Cotton's action on the ground that matters of church
membership are not to be decided by civil courts. On January
16, 2008, the trial court entered a summary judgment against
Cotton.
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associated itself with the District Council, which instructed
Etheridge and the directors to seek to restore the
excommunicated faction to fellowship pursuant to the General
Council's bylaws and the bylaws of Burns Assembly of God
Church. The District Council attempted, without success, to
mediate the dispute between the Etheridge faction and the
excommunicated faction.
The District Council recognized the excommunicated
faction as being the only true members of Burns Assembly of
God Church. The excommunicated faction operated under the
District Council's authority, adhered to Assemblies of God
doctrines, and retained the District Council's suggested
constitution and bylaws. The excommunicated faction appointed
a board of trustees and officers and, in time, chose a pastor.
The Etheridge faction incorporated as a nonprofit corporation
and took the corporate name of Burns Assembly of God, Inc.
Etheridge served as president of Burns Assembly of God,
Inc. He was also serving as pastor of the church operating as
Burns Assembly of God, Inc., when the District Council
announced its decision to remove him as pastor, to revoke his
ministerial credentials, to dissolve the board of trustees of
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Burns Assembly of God, Inc., and to place Burns Assembly of
God, Inc., under the supervision of the District Council.
Etheridge challenged his dismissal under a provision of the
bylaws of the General Council, and the District Council
subsequently rescinded its actions.
After further attempts at reconciliation failed, the
Dothan Sectional Committee of the District Council sent
Etheridge and Burns Assembly of God, Inc., a letter in which
it recommended that the church "come under the supervision of
the Dothan Sectional Committee." Otherwise, the letter warned,
the Committee would "recommend to the District Presbytery the
withdrawal of endorsement of the pastor's credentials, and of
the church's affiliation with the Assemblies of God."
Several days later, the District Council voted to revoke
Etheridge's ministerial license on the grounds of a "general
inefficiency in ministry, a record of assembly breaking
instead of making, a contentious, non-cooperative spirit, and
arbitrary rejection of district counsel." The District Council
forwarded its decision on Etheridge's dismissal to the General
Council's credentials committee for approval and notified
Etheridge of its decision regarding his dismissal.
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While Etheridge's dismissal was pending before the
General Council, the members of Burns Assembly of God, Inc.,
voted unanimously to amend the portions of their church
constitution governing affiliation with the District Council
and the General Council and the disposition of property upon
disaffiliation from the Assemblies of God. A representative of
the District Council testified that Burns Assembly of God,
Inc., had the authority to adopt those amendments and that the
District Council accepted the amendments.2
The following month, the General Council concurred with
the District Council's decision and revoked Etheridge's
ministerial license. Burns Assembly of God, Inc., then held a
special business meeting in which Burns Assembly of God, Inc.,
severed its affiliation with the Assemblies of God. Etheridge
served as chairman of this business meeting, contrary to the
District Council's constitution and minutes.3 District Council
representatives were not present at this business meeting,
although the General Council's constitution required their
2
There is no indication in the record that the General
Council accepted those amendments.
3
"No minister dismissed by the Assemblies of God may be
allowed to pastor or have ministry in an Assemblies of God
church." District Council Minutes § 3(b).
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attendance.4 The District Council was notified of the
disaffiliation, and the corporate name of the church was
changed to Burns Church, Inc.
Etheridge did not appeal the General Council's revocation
of his ministerial license, as allowed by the General
Council's constitution. However, Etheridge continued to serve
as a pastor, and Burns Church, Inc., continued to use the
property on which the original Burns Assembly of God Church
had operated.
The District Council and the excommunicated faction sued
Etheridge, seeking a judgment declaring that the Burns
Assembly of God Church formed by the excommunicated faction is
a valid congregation under the laws of Alabama and declaring
it to be the rightful owner of the church property. On April
12, 2012, the trial court issued an order, stating:
"Burns Church, Inc., [and] its trustees are
indispensable and necessary parties to this action.
Either Burns Church, Inc.[,] or the Burns Assembly
4
"In the event the termination of affiliation with the
General Council of the Assemblies of God is under
consideration by an affiliated assembly, the pastor or board
shall invite the district officers to participate in a
specially-called business meeting for the expressed purpose of
giving the district officers the opportunity to present the
case for continued General Council affiliation." Art. VI, §
3(D), General Council Const.
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of God, Inc.[,] has title to the property in
question, right of possession of the property in
question[,] and [the] right to manage the affairs of
the church and hire or fire pastor and staff.[5]
"....
"THEREFORE, IT IS ORDERED AND ADJUDGED AS FOLLOWS:
"1. That the matter for Declaratory Judgment is
dismissed.
"2. That [the] parties are entitled to a jury
trial on disputed issue [sic] of fact.
"3. If there are no issues as to any material
fact, ... Summary Judgment may lie."
(Capitalization in original.) Burns Church, Inc., was later
added as a defendant. The District Council and the
excommunicated faction filed an amended complaint asserting,
among other claims, claims of trespass and conversion and
seeking an eviction.
The trial court set the case for a jury trial to begin on
May 13, 2013. After a pretrial conference, the trial court
issued an order stating that "[t]he parties agreed that the
5
The trial court's summary-judgment order of November 12,
2013, clarifies that the April 12 order "referred to 'Burns
Assembly of God, Inc.,' which should have been 'Burns Assembly
of God,' the plaintiff." The trial court indicated that its
April 12 order did not determine "who owned the property, but
that either the Plaintiff or the Defendant owned the
property[,] which would be determined at trial or summary
judgment."
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most critical issue at this time is a legal issue concerning
ownership of the property that would be best decided by the
Court" and that "all agreed that the jury trial scheduled for
May 13, 2013 should be continued."
The District Council and the excommunicated faction then
filed a separate quiet-title action against Etheridge and
Burns Church, Inc., and moved for a summary judgment in that
action. The trial court consolidated the declaratory-judgment
action and the quiet-title action into an action identified by
a single case number. Burns Church, Inc., and Etheridge
opposed the plaintiffs' motion for a summary judgment, and the
trial court held a hearing on the motion to determine the
rightful owner of the church property.
Burns Church, Inc., and Etheridge argued that the trial
court's April 12, 2012, order was a final judgment that
determined that Burns Church, Inc., was the true owner of the
property. Burns Church, Inc., and Etheridge also argued that
Burns Church, Inc., owned the property on the ground that
Burns Church, Inc., is the proper successor to Burns Assembly
of God, Inc. The District Council and the excommunicated
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faction argued that as a result of prior conveyances, the
District Council held title to the church property.
On November 12, 2013, the trial court entered a summary
judgment in favor of the District Council and Burns Assembly
of God Church. Burns Church, Inc., and Etheridge filed a
postjudgment motion to alter, amend, or vacate the judgment,
which the trial court denied after a hearing. This appeal
followed.
III. Discussion
A. Jurisdictional Separation of Church and State
Before considering the merits of this appeal, this Court
should have determined whether it had subject-matter
jurisdiction over this ecclesiastical dispute. This Court has
recognized that it is our judicial duty "to consider lack of
subject matter jurisdiction ex mero motu." Ex parte Smith, 438
So. 2d 766, 768 (Ala. 1983). "As is the case with all
churches, the courts will not assume jurisdiction, in fact
[have] none, to resolve disputes regarding their spiritual or
ecclesiastical affairs." Abyssinia Missionary Baptist Church
v. Nixon, 340 So. 2d 746, 748 (Ala. 1976). The courts lack
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jurisdiction over ecclesiastical disputes because of the
jurisdictional separation of church and state.
"In accordance with the principles of our
institutions and the organic law [Art. I, § 3, Ala.
Const. 1901 (religious freedom)], the courts refrain
from interfering when the office or functions are
purely ecclesiastical or spiritual, disconnected
from any fixed emoluments, salary, or other
temporalities."
State ex rel. McNeill v. Bibb St. Church, 84 Ala. 23, 33, 4
So. 40, 40 (1888). The jurisdictional separation of the
institution of the church from the institution of the state is
a fundamental part of the English common law; it predates
Magna Carta and remains in force in Alabama.6 See § 1-3-1,
Ala. Code 1975 ("The common law of England, so far as it is
not inconsistent with the Constitution, laws and institutions
of this state, shall, together with such institutions and
laws, be the rule of decisions, and shall continue in force,
except as from time to time it may be altered or repealed by
the Legislature.").
6
See Yates v. El Bethel Primitive Baptist Church, 847 So.
2d 331, 352 (Ala. 2002) (Moore, C.J., dissenting) ("[T]he
principle of the institutional separation of church and state
became firmly established in the common-law jurisprudence of
England and thereafter, as a result, in the jurisprudence of
America."(surveying history of Magna Carta)).
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Under § 1-3-1, the jurisdictional separation of church
and state is also "an institution" of Alabama law. The word
institution, as used in § 1-3-1, means "[a]n elementary rule,
principle, or practice." Black's Law Dictionary 918 (10th ed.
2014). Noah Webster defined "institution" as an
"[e]stablishment; that which is appointed, prescribed, or
founded by authority and intended to be permanent.... We apply
the word institution to laws, rites, and ceremonies, which are
enjoined by authority as permanent rules of conduct or of
government." Noah Webster, American Dictionary of the English
Language "Institution" (1828).
Thus, while the jurisdictional separation of church and
state is part of our common law, it is also an "institution,"
i.e., an established, elementary, and permanent rule of law.
The Court should apply this rule of law in this and all
ecclesiastical disputes, with the understanding that the
jurisdictional separation of church and state binds both
church and state to their respective jurisdictions and spheres
of authority.
B. Courts Have No Jurisdiction Over This Ecclesiastical
Dispute
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The question presented is which faction of members of the
original Burns Assembly of God Church has the right to control
the use and disposition of the property -- the Etheridge
faction or the excommunicated faction. In this intra-church
ecclesiastical dispute, the Court must look to the decisions
made within the structure of church government.
"Where factional divisions occur in an
ecclesiastical body, the rule of the civil courts is
that 'the title to church property ... is in that
part of [the ecclesiastical body] which is acting in
harmony with its own law, and the ecclesiastical
laws, and usages, customs, and principles which are
accepted among them before the dispute began, are
the standards for determining which party is
right.'"•
Gewin v. Mount Pilgrim Baptist Church, 166 Ala. 345, 349, 51
So. 947, 948 (1909) (quoting Reorganized Church of Jesus
Christ of Latter-Day Saints v. Church of Christ, 60 F. 937,
953 (1894)) (emphasis added).
The Assemblies of God is a hierarchical church with a
presbyterian form of government, with "authority in an
ascending order of bodies, each of which is composed by
representatives of the laity and the clergy." Calvin Massey,
Church Schisms, Church Property, and Civil Authority, 84 St.
John's L. Rev. 23, 26 n.5 (2010). The Assemblies of God's form
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of church government blends elements of congregational
autonomy with a cooperative system of oversight and
accountability provided by ascending levels of church
councils. See Atkins v. Walker, 284 N.C. 306, 314, 200 S.E.2d
641, 646 (1973) ("A denomination may be, in its government,
congregational in part and connectional in part."); Western
Conference of Original Free Will Baptists of N.C. v. Creech,
256 N.C. 128, 140, 123 S.E.2d 619, 627 (1962) ("A church may
be congregational in some respects and connectional in
others."); 66 Am. Jur. 2d Religious Societies § 2 (2014)
(same).
The Assemblies of God has the unquestioned right of
ecclesiastical government of all the members, local
assemblies, and officers within its fellowship.
"'The right to organize voluntary associations to
assist in the expression and dissemination of any
religious doctrine, and to create tribunals for the
decision of controverted questions of faith within
the association, and for the ecclesiastical
government of all the individual members,
congregations, and officers within the general
association, is unquestioned. ... It is of the
essence of these religious unions, and of their
right to establish tribunals for the decisions of
questions arising among themselves, that those
decisions should be binding in all cases of
ecclesiastical cognizance, subject only to such
appeal as the organism itself provides for.'"
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Hundley v. Collins, 131 Ala. 234, 245, 32 So. 575, 579 (1902)
(quoting Watson v. Jones, 80 U.S. (13 Wall.) 679, 729 (1871)).
The Court has stated that "[t]he courts will not interfere
with mere factional differences arising in ecclesiastical
bodies, or in disparate interpretations of doctrine. Such
matters are left for settlement to the societies." Davis v.
Ross, 255 Ala. 668, 671, 53 So. 2d 544, 546 (1951).
"[T]he civil courts will not interfere in case of a
division in a religious society unless property
rights are affected, nor even then if the basis of
the schism is due merely to a disparate
interpretation of doctrine. Such matters must be
settled by the society itself."
Mount Olive Primitive Baptist Church v. Patrick, 252 Ala. 672,
674, 42 So. 2d 617, 618 (1949) (emphasis added). The basis of
the present dispute is a disparate interpretation of church
doctrine, constitutions, and bylaws. In such cases, the United
States Supreme Court has explained:
"There are occasions when civil courts must draw
lines between the responsibilities of church and
state for the disposition or use of property. Even
in those cases when the property right follows as an
incident from decisions of the church custom or law
on ecclesiastical issues, the church rule controls."
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Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church
in N. America, 344 U.S. 94, 120-21 (1952) (footnote omitted;
emphasis added).
The District Council classifies mature local churches
within the Assemblies of God as "[s]overeign [a]ssemblies"
with "their full share of responsibility for the maintenance
of Scriptural order." Art. XI, § 2(b), District Council Const.
The District Council also recommends that local church boards
"be authorized ... to remove from the list of active [church]
members all names of those ... who may have fallen into sin
and whose lives may have become inconsistent with the
standards and teachings of the assembly." Art. I, § 6,
Suggested Constitution and By-Laws for Local Assemblies. At
the same time, such assemblies are "organized under the
supervision of the district officiary and shall be amenable to
the district in all matters which affect the peace and harmony
of the fellowship." Id. (emphasis added). Burns Assembly of
God Church was required to "meet the standards approved by the
General Council and the District Council in regard to
membership, doctrine, order, methods, conduct, and all other
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matters affecting the harmony of the fellowship as a whole."
Art XI, § 1, District Council Const. (emphasis added).
Accordingly, a ruling by this Court or the trial court
for either the Etheridge faction or the excommunicated faction
constitutes a usurpation of the District Council's and the
General Council's ecclesiastical jurisdiction over Burns
Assembly of God Church. If, on the one hand, this Court
affirms the judgment of the trial court and rules for the
District Council and the excommunicated faction (as the Court
has done), this Court must necessarily conclude that the
District Council has the authority under its ecclesiastical
constitution to intervene in the local church dispute on
behalf of the excommunicated faction, thus effectively
controlling the church property. The United States Supreme
Court has explained:
"'[C]ivil courts do not inquire whether the relevant
(hierarchical) church governing body has power under
religious law (to decide such disputes).... Such a
determination ... frequently necessitates the
interpretation of ambiguous religious law and usage.
To permit civil courts to probe deeply enough into
the allocation of power within a hierarchical church
so as to decide ... religious law (governing church
polity) ... would violate the First Amendment in
much the same manner as civil determination of
religious doctrine.'"
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Serbian E. Orthodox Diocese for United States of America &
Canada v. Milivojevich, 426 U.S. 696, 708-09 (1976) (quoting
Maryland & Virginia Eldership of the Churches of God v. Church
of God at Sharpsburg, Inc., 396 U.S. 367, 369 (1970) (Brennan,
J., concurring)). Likewise, this Court should have declined in
this case to explore the allocation of ecclesiastical
authority between local Assemblies of God churches and the
District Council, as doing so violates the jurisdictional
separation of church and state.
If, on the other hand, the Court were to reverse the
trial court's judgment, the Court would essentially declare
that the members of the Etheridge faction are true church
members and that the members of the excommunicated faction are
not, even though the District Council recognizes them as such.
This would constitute a rejection of the ecclesiastical
decision of the District Council, contrary to the
jurisdictional separation of church and state. Because
Alabama's courts have no jurisdiction "to revise ordinary acts
of church discipline or pass upon controverted rights of
membership," Gewin, 166 Ala. at 349, 51 So. at 948, this Court
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cannot question the District Council's decision to intervene
in the dispute on behalf of the excommunicated faction.
In addition, Etheridge is both chairman of the board of
directors and corporate president of Burns Church, Inc., and
thus the principal officer of the alleged property-holding
corporation. In early June 2008, the General Council revoked
Etheridge's ministerial license with the Assemblies of God.
However, Etheridge continued to pastor Burns Assembly of God,
Inc., after he had been dismissed from the Assemblies of God.
Etheridge presided over the business meeting in which the
members of Burns Assembly of God, Inc., voted to sever
affiliation with the Assemblies of God. If the Court should
conclude that Burns Church, Inc., owns the church property,
the Court would thereby countenance the proceedings Etheridge
led at Burns Assembly of God, Inc., after he had been
dismissed from the Assemblies of God. In effect, the Court
would be overruling Etheridge's dismissal from the Assemblies
of God, which was affirmed by the General Council, the highest
ecclesiastical body in the Assemblies of God. Similar to
Milivojevich, supra, the resolution of the dispute between the
Etheridge faction and the excommunicated faction affects not
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only church property, but also the structure and
administration of the Assemblies of God.
"Resolution of the religious disputes at issue
here affects the control of church property in
addition to the structure and administration of the
American-Canadian Diocese. This is because the
Diocesan Bishop controls respondent Monastery of St.
Sava and is the principal officer of respondent
property-holding corporations. Resolution of the
religious dispute over Dionisije's defrockment
therefore determines control of the property. Thus,
this case essentially involves not a church property
dispute, but a religious dispute the resolution of
which under our cases is for ecclesiastical and not
civil tribunals. Even when rival church factions
seek resolution of a church property dispute in the
civil courts there is substantial danger that the
State will become entangled in essentially religious
controversies or intervene on behalf of groups
espousing particular doctrinal beliefs."
Milivojevich, 426 U.S. at 709 (emphasis added); see also Ex
parte Central Alabama Conference, 860 So. 2d 865, 867 (Ala.
2003) ("[T]he First Amendment prohibits a court's resolving
property disputes on the basis of religious practice or
doctrine.").
IV. Conclusion
The mere fact that this intra-church dispute affects
property rights does not give the Court jurisdiction over this
action. This Court lacks jurisdiction to adjudicate the rights
of the parties as to the church property because this church
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schism is based upon disparate interpretations of church
governing documents and doctrine and conflicting claims of
church membership. These matters must be settled by the
District Council and the General Council, not by the courts.
I believe that this Court should have dismissed this appeal
for lack of subject-matter jurisdiction. Therefore, I dissent.
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