Suit Challenges Constitutionality of Tax Code Parsonage Allowance

This is from religionclause.blogspot.com which you can find here:

“In a lawsuit filed this week, the Freedom From Religion Foundation is again challenging the constitutionality of the Internal Revenue Code’s parsonage allowance.  The complaint (full text) in Gaylor v. Lew, (WD WI, filed 4/6/ 2016), contends that Section 107 of the Internal Revenue Code–which allows clergy to exclude from taxable income a housing allowance paid as part of their compensation– violates the Establishment Clause.  The suit was brought by two FFRF officers who also received housing allowances.  One of the plaintiffs is an ordained minister who in prior years when employed by a church was able to claim the allowance.  In 2014, the 7th Circuit dismissed a similar suit on standing grounds because plaintiffs had not sought to exclude their FFRF allowances on their federal income tax returns or claim a tax refund. (See prior posting.) This time plaintiffs did file amended returns seeking a refund of taxes paid on their housing allowances. FFRF issued a press release announcing the filing of the lawsuit.”

You can learn more about this issue here.

9th Circuit: Denial of Exemption For Use of Cannabis Does Not Impose Substantial Burden On Religious Exercise

This is from religionclause.blogspot.com which you can find here:

In Oklevueha Native American Church of Hawaii v. Lynch, (9th Cir., April 6, 2016), the U.S. 9th Circuit Court of Appeals held that a church and its founder were properly denied an exemption from federal laws that prohibit the possession and distribution of cannabis. Under RFRA, denial of an exemption does not impose a “substantial burden” on plaintiffs’ exercise of religion because the primary sacrament of the church is peyote.  Plaintiffs consume cannabis only as a substitute. They do not claim that peyote is unavailable or that cannabis serves a unique religious function.

You can learn more about this issue here.

Business Owner Unsuccessful In Suing Churches That Opposed New Strip Club

This is from religionclause.blogspot.com which you can find here:

“In Harrington v. Hall County Board of Supervisors, (D NE, March 31, 2016), a Nebraska federal district court dismissed a number of claims brought by the owner of an adult entertainment company against two churches that circulated a petition opposing attempts to open a strip club in Hall County, Nebraska. The court also dismissed claims against a director of one of the churches.  The adult entertainment company owner alleged that the churches engaged in a conspiracy to adopt and enforce an unconstitutional zoning resolution. Plaintiff also alleged violations of the antitrust laws, defamation, tortious interference with business relationships, infliction of emotional distress, and negligence.  The court additionally rejected the claim that individual members of the County Board of Supervisors violated the Establishment Clause when at a public hearing they thanked supporters of the petition for supporting Christian values.”

You can learn more about this issue here.

Qualified Immunity For Commissioners Asking Religious Questions To Constable Candidate

This is from religionclause.blogspot.com which you can find here:

“In Lloyd v. Birkman, (WD TX, April 1, 2016), a Texas federal district court held that members of the Williamson County (Texas) Commissioners’ Court enjoyed qualified immunity in a suit by an unsuccessful candidate for County Constable.  The position was normally an elected one, but the current Constable resigned and the next election was over one year away. Thus under state law the Commissioners had the power to appoint a new Constable to serve until the next general election.  During interviews for the position, Commissioners asked candidates about their church membership, views on gay marriage and abortion, and political ideology. Plaintiff contended that these questions violated his rights of free expression and association, as well as the free exercise and establishment clauses. The court, however, concluded that there was not “clearly established law” that this line of questioning was improper in the context of private interviews for an interim appointment to a normally elective position. (See prior related posting.) ”

You can learn more about this issue here.

Refusal To Enter Requested Surname on Birth Certificate Did Not Violate Free Exercise Rights

This is from religionclause.blogspot.com which you can find here:

“In Nix El v. Williams, (D DC, March 30, 2016), the D.C. federal district court rejected a claim by the father of a newborn daughter that his religious rights were infringed when D.C. Department of Health officials refused to list his daughter’s surname on her birth certificate as “Nix El” rather than as “Nix”, the parents’ surname. D.C. statutes require the surname to match that of a family member. Plaintiff, who is a member of the Moorish Science Temple, contended that he wished to add “El” to his daughter’s name because it is a title of nobility. In the suit, plaintiff had asked for declaratory and injunctive relief, compensatory damages of $136 million plus punitive damages of $1 million per day for each day his daughter did not have a birth certificate.”

You can learn more about this issue here.

Montana Court Issues Preliminary Injunction To Allow Parochial School Participation In Tax Credits

This is from religionclause.blogspot.com which you can find here:

“According to The Missoulian, in Montana on Thursday, a state trial court judge issued a preliminary injunction barring the Montana Department of Revenue from enforcing its rule that excludes religiously affiliated schools from participating in the state’s new School Contributions Tax Credit law. (See prior posting.) The Department of Revenue takes the position that participation in the school aid program by religiously affiliated schools violates state constitutional bans on that prohibit direct and indirect payments or appropriations to religious or sectarian schools. ”

You can learn more about this issue here.

Strict Compliance with the Municipal Liens Act is Required to Collect

The Commonwealth Court of Pennsylvania (“Court”), in the matter of City of Philadelphia v. Manu, 2013 WL 4768308, has made it clear that it expects strict compliance with the black letter of the Municipal Liens Act (“Act”). Defendant Agnes Manu (“Manu”), who litigated pro se, appealed an Order of the Court of Common Pleas of Philadelphia (“CCP”) denying her motion to strike or vacate and that provided the context for the Court to make its ruling and issue its opinion accordingly.

The procedural history of this matter is somewhat complex. Manu owns real estate (“Property”) in Philadelphia that is allegedly the subject of a municipal lien held by the City of Philadelphia (“City”). In January 2011 the City filed a petition with the CCP requesting permission to sell the Property free and clear of all encumbrances for delinquent water and sewer rents. The liens claimed by the City included one entered on August 27, 1987 for an unpaid water/sewer bill totaling $0.00 (no, that is not a typographical error) which was amended in its January 2011 petition to include an alleged claim of $657.54, plus interest and penalties, for City taxes allegedly owed in 1986.

In its January 2011 petition, the City identified seven (7) different parties, along with the United States, which/who allegedly have an interest in the Property based on the tax information certificate, and requested the CCP to issue a rule upon these aforesaid parties. For reasons which are unclear from the record available, the CCP issued a rule only upon Manu and directed that service should be made in the matter for writs of scire facias pursuant to the Act. The CCP granted Manu’s request for additional time to respond to the aforesaid rule, but instead of responding to the rule, Manu elected to file a motion to stay the proceedings on the basis that she had filed an appeal nunc pro tunc with the Board of Revision of Taxes due to, Manu alleged, never having received service of any tax assessment notice since 1998. Perhaps, due to the fact that Manu failed to respond to the rule, and filed a motion to stay instead, the CCP entered orders denying the motion to stay and granting the City permission to sell the Property as it requested and described above. The CCP indicated that it was satisfied that the rule was properly served and, indeed, served upon all relevant parties.

A few days after the above two (2) orders by the CCP were entered, Manu filed a motion for clarification as she could not discern whether the lien was for water/sewer bills or real estate taxes, nor was it clear how much she owed; the CCP denied this motion. Subsequent to the motion for clarification, Manu then filed a motion to strike or vacate the CCP order permitting the sale of the Property due to lack of jurisdiction based on the failure to effect proper service pursuant to the Act; this motion, too, was denied by the CCP and Manu appealed that denial. The appeal of this denial is the subject of the Commonwealth Court case described herein. While the above was transpiring, another party, namely Informational Management Group, Inc., filed a petition to intervene and open on the basis that it, too, was never properly served with the underlying lien and was not joined into the case by the City as an indispensable party; the CCP denied this petition as well.

When analyzing this matter, the Court began by emphasizing that the Act lays out a specific, detailed, and exclusive procedure which must be followed with precision. Furthermore, the Court made it clear that the City had the burden of proving strict compliance with the Act. In its review of how the CCP handled this case, the Court observed that the CCP did not even require substantial compliance with the Act, let alone strict compliance. Namely, the petition filed by the City did not provide a list of all the municipal claims at issue or a sense of their magnitude; indeed a lien which totals $0.00 is absurdly the opposite of demonstrating its magnitude, even if the City later revealed it is actually pursuing at least $14,702.99. In addition, without any explanation in the record, and at variance with the requirements of the Act, the CCP issued a rule only upon Manu instead of all interested parties and, further, none of the parties were served in the manner required by the Act. The Court noted that the Act is somewhat confusing inasmuch as one (1) section requires personal service and posting whilst another requires posting and first class mail; what was not confusing to the Court was that the record of the proceedings in CCP revealed that service was not perfected on any party using any of the above-listed options. Moreover, even if service was perfected, the Act requires the CCP to hold a hearing to determine whether service was properly perfected on all parties, whether there was contemporaneous publication of the rule, and whether the facts alleged in the petition are true. Needless to say, the CCP record contained absolutely no evidence that such a hearing was ever held. The CCP must make an independent inquiry into whether the City strictly complied with the Act and the CCP record reveals no such inquiry ever occurring.

Finally, the City attempted to argue that Manu’s appeal was untimely filed. The Court dispensed with this argument by pointing out that the CCP continued to retain jurisdiction over the Property when the sale of the same had neither occurred nor concluded. Regardless, the Court ruled that a petition to open a judgment can be filed at any time when there is a lack of subject matter jurisdiction and Manu’s claim that not all parties were served and, indeed, not all indispensable parties were joined into the case, clearly deprives the CPP of subject matter jurisdiction over the case.

In the final analysis, the Court in the instant matter made it abundantly clear that a municipality pursuing liens must strictly comply with all of the terms of the Act in order to collect on its alleged liens and Courts of Common Pleas must ensure compliance.

Originally published in Upon Further Review on October 22, 2013 and can be viewed here.