Fowler v. Bailey

OPALA, Chief Justice,

concurring.

I concur generally in today’s pronouncement that (a) the plaintiffs’ quest for reinstatement of their church membership status is not cognizable in secular courts and (b) that their mid-litigation expulsion from church membership mooted any claims they may have had for relief from diversion of church property to non-church use. I join in affirming the trial court’s dismissal of the plaintiffs’ action to compel inspection of records, but I write separately to stress that neither as church members nor as excommunicated parishioners do the plaintiffs have standing to press their probe into church records.

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THE ANATOMY OF LITIGATION

While members of St. Andrew Baptist Church, the plaintiffs sued their pastor as well as church trustees and deacons for access to the church books and records. The purpose of the suit was to inquire into the use, abuse or misuse of church property.1 The plaintiffs’ allegations assume as a legal given that their membership status entitles them to a property interest in the church assets. They were expelled from church membership shortly after bringing the lawsuit. The trial court sustained the defendants’ demurrer to plaintiffs’ evidence. The Court of Appeals affirmed and we granted certiorari.

II

CHURCH MEMBERSHIP STATUS DOES NOT GIVE STANDING TO ONE WHO SEEKS TO EXAMINE CHURCH RECORDS

Serbian Eastern Orthodox Diocese, Etc. v. Milivojevich2 teaches that standing to press a claim against one’s church must rest on a property interest recognized by secular law (the civil law of the state) and not on one predicated upon ecclesiastical law (the law of the church or denomination).3 A dispute that is primarily of a doctrinal nature or internal church governance lies solely within ecclesiastical cognizance.4 In contrast, an individual’s right to church property may be cognizable in a secular court.5 One who seeks to press a claim against one’s church must be a so-called “Hohfeldian plaintiff” 6 — i.e., a per*150son who has a personal7 or proprietary interest at stake within the meaning of the state’s civil law.8 The plaintiffs, now expelled church members, are non-Hohfeldi-an plaintiffs. The interest they tendered below for judicial vindication is neither personal nor proprietary. A church member is not invested with a proprietary interest in the assets of his church or religious denomination. Neither members nor nonmembers acquire an interest in the church through their tithes or contributions. Donations to one’s church are viewed in law as no more than gifts.9

As non-Hohfeldian plaintiffs, both before and after their expulsion, these excommunicated parishioners had no standing to probe into the church’s books and records. Their demand for access to these documents, based solely on membership, is not predicated on a legally cognizable interest. A person litigating against a church cannot ground standing on his ecclesiastical rank (as in Serbian) or his parishioner status. A secular court is without cognizance to settle a quest for church membership reinstatement or a controversy over one’s claim to recognition of church membership status within an ecclesiastical body.10 That question must be reserved for church judicature. Our First Amendment jurisprudence teaches that the constitutionally mandated respect for exclusive ecclesiastical cognizance over church membership comes to an end when a person’s consensual allegiance to a religious community stands withdrawn.11 It is then that the power of judicature for claims arising from post-withdrawal interaction of the abandoned congregation with a parishioner may pass to secular (civil) courts.12

In short, these plaintiffs, who attempt to bootstrap mere church membership into standing required for a property interest recognition, press a demand contrary to Serbian’s teaching. One’s membership status in a church confers no interest in the property of that church.13

*151SUMMARY

A parishioner’s claim against the church for inspection of her records must be based on the principles of secular law. A person litigating with a church (whether a clergyman or parishioner) cannot predicate standing on ecclesiastical rank or parishioner status. Standing in that context must be Hohfeldian in its purest form. These plaintiffs could not press their claim for inspection of records or for accounting based on mere parishioner status, even if they had been retained as members in good standing as a matter of internal religious discipline.

. Plaintiffs allege in their petition that defendants have breached their fiduciary duty to the plaintiffs and the other members of the church by various abuses of church property, such as (a) listing church real estate for sale, increasing church employees' salaries and purchasing equipment and automobiles without approval of church members; (b) using church funds for excessive travel, entertainment, personal or family purposes and for payment of telephone and gasoline credit card charges by unauthorized persons; (c) disposing of church property for less than fair market value; (d) charging members for the use of church facilities for weddings and funerals; and (e) submitting incorrect insurance claims and failing or refusing to account for the proceeds.

. 426 U.S. 696, 708-710, 96 S.Ct. 2372, 2380-2381, 49 L.Ed.2d 151 (1976). There, a defrocked bishop sued his church, claiming that the defrockment was wrongful and arbitrary under the internal doctrines of the church and seeking a declaration that he should remain in control of the diocesan property. The Court holds the dispute was primarily of a doctrinal nature — one that lies solely within ecclesiastical cognizance — because the religious issue determined the right to control the church property. Serbian teaches that civil courts may decide only those church property disputes which do not require resolution of underlying doctrinal controversies.

. Oklahoma case law is not without explicit and firm commitment to the First Amendment jurisprudence of the U.S. Supreme Court. See Hadnot v. Shaw, Okl., 826 P.2d 978, 988 (1992), and Guinn v. Church of Christ of Collinsville, Okl., 775 P.2d 766, 773 (1989). Hadnot and Guinn teach that ecclesiastical decisionmaking on internal governance in the church and on matters of faith or religious creed are not subject to reexamination in civil courts. The former opinion notes that the "Free Exercise Clause prohibits civil courts from inquiring into any phase of ecclesiastical decisionmaking — its merits as well as procedure." Id. 826 P.2d at 988. Because religious judicature is immune from any civil court inquest, it is also protected from intrusion by discovery. Id. at 989.

. In Guinn the absolute privilege against scrutiny by secular authority did not apply to a tort victim who was no longer a member of a church when the tortious acts were committed. Id., supra note 3. Hadnot teaches that any activity outside of valid church judicature is not absolutely privileged and may be discoverable. Hadnot, supra note 3 at 990.

. Serbian, supra note 2, 426 U.S. at 710, 96 S.Ct. at 2381.

. A Hohfeldian plaintiff is one who seeks a judicial determination that he has "a right, a privilege, an immunity or a power” vis-a-vis the opposite party in litigation. Jaffe, The Citizen As Litigant In Public Actions: The non-Hohfel-dian or Ideological Plaintiff, 116 U.Pa.L.Rev. 1033 (1968). A non-Hohfeldian plaintiff, on the other hand, sues to secure judicial relief that would benefit other persons or the community as a whole. Id. The qui tarn plaintiff of the common law, who sues primarily to benefit a public entity, is typically non-Hohfeldian. State ex rel. Trimble v. City of Moore, Okl., 818 P.2d 889, 894 (1991); see Flast v. Cohen, 392 U.S. 83, 120, 88 S.Ct. 1942, 1963, 20 L.Ed.2d 947 (1968) (Harlan, J., dissenting); Scott, Standing in the Supreme Court — A Functional Analysis, 86 Har. L.Rev. 645, 660-662 n. 1 (1973); Davis, Standing: Taxpayers and Others, 35 U.Chi.L.Rev. 601, 604-607 (1968); see also Sierra Club v. Morton, 405 U.S. 727, 732 n. 3, 92 S.Ct. 1361, 1364-1365, n. 3, 31 L.Ed.2d 636 (1972); Clark v. Valeo, 559 *150F.2d 642, 675 (D.C.1977). In a stockholder’s derivative suit the plaintiff is in the very same category. Warren v. Century Bankcorporation, Inc., Okl., 741 P.2d 846, 847, 853 (1987).

The words right, privilege, power and immunity are used in this context in their Hohfeldian sense, i.e., as shown by his [Hohfeld's] table of jural opposites and correlatives:

"Jural Opposites (right ( (no-right privilege duty power disability immunity liability

Jural Correlatives (right ( (duty privilege no-right power liability immunity disability"

W.N. Hohfeld, Fundamental Legal Conceptions 36 (1923).
"In a suit [against the Governor] for accounting [of expenditures from his legislative mansion allowances] petitioners [news reporters] would occupy the status of so-called ‘non-Hohfeldian’ plaintiffs, i.e. persons whose interest tendered for judicial vindication is neither personal nor proprietary.” Oklahoma City News Broadcasters Ass'n v. Nigh, Okl., 683 P.2d 72, 78 n. 2 (1984) (Opala, J., concurring in result); see Johnson v. Walters, Okl., 819 P.2d 694, 708, 713 n. 28 (1991) (Opala, C.J., concurring in part and dissenting in part); In re Initiative Petition No. 349, Okl., 838 P.2d 1, 24 (1992) (Opala, C.J. dissenting); Flast, supra, 392 U.S. at 119, 88 S.Ct. at 1962 n. 5 (Harlan, J., dissenting) (where the non-Hohfeldian plaintiffs sought to enjoin an unauthorized use of collected revenue).

. For the meaning of "personal” interest, see 76 O.S.1991 § 6. Its terms are;

"Besides the personal rights mentioned or recognized under law, every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations.” (Emphasis mine.)

. A former church member may have standing as a Hohfeldian plaintiff to press a claim for tortious acts arising from post-withdrawal or from post-excommunication church activity or from conduct unrelated to the church’s efforts at effectuation of its valid judicature. Hadnot, supra note 3; Guinn, supra note 3.

. Stone v. Salt Lake City, 356 P.2d 631, 634 (Utah 1960).

. Serbian, supra note 2, 426 U.S. at 710-711, 96 S.Ct. at 2381.

. Torcaso v. Watkins, 367 U.S. 488, 493-495, 81 S.Ct. 1680, 1682-1684, 6 L.Ed.2d 982 (1961); Guinn, supra note 3 at 776.

. Watkins, supra note 11, 367 U.S. at 493-495, 81 S.Ct. at 1682-1684; Guinn, supra note 3 at 776.

. Serbian, supra note 2, 426 U.S. at 710-711, 96 S.Ct. at 2381.