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Archive for the tag “owner”

Court’s Determination of Church’s Voting Membership Upheld

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

“In Fairfield Pentecostal Church v. Johnson, (LA App., June 3, 2015), a Louisiana state appeals court upheld a trial court’s decision determining a church’s voting membership for purposes of a special vote on whether to dismiss the pastor, saying in part:

The trial court determined at the hearing that none of the members on the original roll had been disfellowshipped; and it allowed another list of members gathered in November 2013 by Reverend Franks, who had kept no roll since his installment in 2010, to be counted toward the membership roll. In order to prevent the solicitation of new members for purposes of litigation, the trial court limited the membership to these two lists. We can think of no more equitable solution.”

You can learn more about this issue here.

7th Circuit Keeps RLUIPA Suit Against Chicago Alive

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

“In World Outreach Conference v. City of Chicago, (7th Cir., June 1, 2015), the U.S. 7th Circuit Court of Appeals breathed new life into a RLUIPA case that has been in litigation for 9 years. The court reversed the district court’s grant of summary judgment to the city of Chicago as to claims against the city for damages because of delays in granting licenses to World Outreach so it could operate a former YMCA building for its religious purposes. World Outreach argued it lost some $591,000 that it could have made by housing Hurricane Katrina evacuees in the building. The court’s opinion by Judge Posner included comments about the power of aldermen in Chicago politics.  Judge Cudahy concurred with one of the shortest and most cryptic opinions ever:

Unfortunately; and I think the opinion must be stamped with a large “MAYBE.”

(See prior related posting.) RLUIPA Defense blog reports on the decision”

You can learn more about this issue here.

Connecticut Legislature Makes Religious Exemption From Vaccination Requirements Marginally More Difficult

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

“On Tuesday, the Connecticut General Assembly gave final passage to HB 6949 (full text) and sent it to the governor for his signature.  The bill places additional procedural requirements on parents seeking to exempt their children on religious grounds from vaccination requirements.  As reported by WNPR:

Currently, [parents or guardians] must simply present a statement that the immunization would be contrary to the child’s religious beliefs. But under the bill which cleared the Senate Tuesday, such statements must be submitted annually and officially “acknowledged” by a notary public, attorney, judge, family support magistrate, court clerk, deputy clerk or justice of the peace.

However another bill pending in the legislature would, if enacted, require the notarized statements be submitted only when the child enters kindergarten and when he or she enters 7th grade.”

You can learn more about this issue here.

Oregon Tax Court Says Rectory Not Tax-Exempt

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

“In St. Mary Star of the Sea Catholic Church, Astoria v. Clatsop County Assessor, (OR Tax Ct., May 6, 2015), an Oregon Tax Court magistrate held that a residential structure located 1.5 miles from the church used as a church rectory did not qualify for a property tax exemption “because the evidence shows the rectory is not reasonably necessary to carry out the religious aims of the church…”  The court said in part:

Although [the parish priest] does write sermons and homilies at the rectory, those duties do not require close physical proximity to the church…. The other uses of the rectory have no direct connection to the church; they certainly do not require a rectory in close proximity to the church. There was generalized testimony about the availability of guest bedrooms for visiting priests, deacons, and seminarians, but no specific testimony or other evidence that such officials have stayed at the subject property and, if so, how many and how often they were there….

Forbes reports on the decision.”

You can learn more about this issue here.

Church Sues Over Zoning Restrictions That Are Forcing It To Move

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

“The San Diego Reader reports on a lawsuit filed May 28 by the San Diego Christian Worship Center against the city challenging zoning restrictions that will force the church to relocate in September.  The city granted the church a 5-year conditional use permit in 2010, and the church made $700,000 of improvements to its site. In 2014 the city changed the zoning in the area to “prime industrial,” which does not allow churches, and the city says it will not renew the conditional use permit. The church lacks the resources to find a new building. Apparently the complaint contends that the new zoning designation, which excludes instructional studios and entertainment venues as well as churches, amounts to a prior restraint on First Amendment expression.  The church also claims– presumably invoking RLUIPA– that the cost of preparing an application every 5 years to renew its conditional use permit imposes a substantial burden on its exercise of religion.  It will cost $50,000 to $100,000 to prepare the application, which must include an environmental impact statement. ”

You can learn more about this issue here.

Supreme Court Rules Against Abercrombie In Title VII Religious Accommodation Case

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

“In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., (Sup. Ct., June 1, 2015), the U.S. Supreme Court today reversed the 10th Circuit’s holding on when employers must offer a reasonable accommodation for an employee’s religious practices.  The 10th Circuit had held that Abercrombie & Fitch did not violate Title VII of the 1964 Civil Rights Act when it failed to reasonably accommodate Samantha Elauf’s need to wear a headscarf because Elauf had not informed the company that she wore the hijab for religious reasons and would need an accommodation. (See prior posting.)  In an opinion by Justice Scalia, 7 justices held:

Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.

Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions….

A request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability.

Justice Alito concurred only in the judgment, urging a different test for liability.  He concluded that Abercrombie is liable only if it had knowledge that Elauf wore her headscarf for religious reasons, but that there was sufficient evidence that Abercrombie had such knowledge that the court should not have granted summary judgment to defendants.

Justice Thomas dissented, arguing that Abercrombie’s actions did not amount to disparate treatment (or intentional discrimination):

Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf ’s religious practice of wearing a headscarf…. In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices. To be sure, the effects of Abercrombie’s neutral Look Policy, absent an accommodation, fall more harshly on those who wear headscarves as an aspect of their faith. But that is a classic case of an alleged disparate impact.

Politico reports on the decision.”

 

District Court Applies Hobby Lobby To Auto Dealership

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

“In Holland v. U.S. Department of Health and Human Services, (D WV, May 29, 2015), a West Virginia federal district court, applying the Supreme Court’s Hobby Lobby ruling, issued a permanent injunction barring federal authorities from enforcing the Affordable Care Act contraceptive coverage requirement, as in effect June 30, 2014, against a West Virginia auto dealership. The complaint (full text) in the case was brought by Joe Holland Chevrolet, Inc., a closely-held corporation, and its 91% owner who became a born-again Christian in 1996. Joe Holland objects to providing coverage for Plan B and ella, contraceptives that he considers abortifacients. Charleston Daily Mail reports on the decision. Liberty Institute issued a press release on the decision.”

You can learn more about this issue here.

Proof of Mailing Not Very Taxing

The Supreme Court of Pennsylvania clarified the interpretation of the statutory notice requirements for tax sales in the matter of Horton v. Washington County, 81 A.3d 883 (2013). The underlying claim involved Plaintiffs’ not having paid real estate taxes for the Property for the years 2007 and 2008 to Washington County’s Tax Claim Bureau (“Bureau”). Due to the delinquent taxes, the Bureau pursued and perfected a tax sale of the Property.

Specifically, the Court analyzed 72 P.S. Section 5860.602(e) and the statutory phrase “proof of mailing” in order to provide guidance as to how notice of a tax sale is to be provided to the interested parties.

The Plaintiffs in the matter owned real estate in Pennsylvania (“Property”) from which they operated an insurance business while they resided in Florida. Plaintiffs did not use the Property as a mailing address. Furthermore, the deed to the Property contained errors, namely the Plaintiffs’ names were misspelled and it indicated that the Property was a residence as opposed to a business. Significantly, the Bureau was never provided with correct information about Plaintiffs’ actual residence.

Before conducting the above-mentioned tax sale, the Bureau made a variety of efforts to locate and notify the Plaintiffs of the tax sale. The Bureau’s efforts included: mailing a courtesy letter to the Property in April 2008 (which was returned by the United States Postal Service (“USPS”) as “no such number”); mailing a pre-sale warning letter to the Property in May 2009 (returned by the USPS as “return to sender – attempted – not known – unable to forward”); mailing a certified letter with restricted delivery to the Property (returned by the USPS as “not deliverable as addressed – unable to forward”) in July 2009; posting the Property later in July 2009 (personal service was not perfected and there was no answer at the Property); in August 2009 placing a notice in three (3) local newspapers for the tax sale; and, later in August 2009, sending an additional final notice of the sale to the Property (returned as “not deliverable as addressed – unable to forward”). The sale took place in September 2009 and by October 2009 the Bureau mailed several post-sale notices to Plaintiffs at the Property via certified mail (all were returned as not deliverable).

Based on the above, a tax sale of the Property occurred and was perfected; Plaintiffs subsequently filed a petition to set aside the tax sale. At the trial of this matter, Plaintiffs testified that they never received any tax bill, any notice of tax delinquency, or any notice of the tax sale; they also admitted that the Bureau was not responsible for any of the errors on the Deed to the Property and conceded that the errors would make it difficult for the Bureau to locate them. Plaintiffs also argued that the Bureau did not exercise reasonable efforts to investigate their whereabouts. The trial court granted Plaintiffs’ petition to set aside the tax sale. Specifically, the trial court ruled that Bureau did not provide a “proof of mailing” of notice of the sale to Plaintiffs. The Bureau appealed to the Commonwealth Court which upheld the decision of the trial court, ruling that a “proof of mailing” can only be satisfied with a USPS Certificate of Mailing (Form 3817). The Bureau then appealed to the Pennsylvania Supreme Court.

On appeal to the Pennsylvania Supreme Court, the only issue to be decided was whether Plaintiffs were provided sufficient notice under the applicable statute. The Court noted that Pennsylvania precedent requires the Bureau to strictly comply with the statute’s notice provisions in order to ensure Plaintiffs received due process of law before being deprived of Property. The case turned on an interpretation of 72 P.S. Section 5860.602(2)’s language requiring a “proof of mailing.”

When determining how to interpret the term “proof of mailing” the Court looked to legislative intent and other parts of the same statute. The Court found it significant that multiple official USPS mailing terms are used in the relevant statute, but the term “proof of mailing” is not a USPS term for a specific service. As a result, the Court could not conclude that the term “proof of mailing” referred to a specific USPS service or form.

The Court noted that, as described above, the Bureau did send correspondence and other notices to the Property and provided USPS documents as proof that those mailings did, indeed, occur (albeit they were returned); therefore, the Court ruled, the Bureau did provide the proof of mailing as required by the statute. As a result, the Court remanded the matter back to the trial court for consideration of the other issues raised by Plaintiffs in view of the Court’s ruling that they received adequate notice.

In ruling as it did, as described above, the Court overruled prior cases and specifically confirmed that, as far as notice for tax sales are concerned, “proof of mailing” merely means providing documentary proof of mailed correspondence and does not refer to a specific USPS service or form.

Originally published in Upon Further Review on August 18, 2014 and can be seen here.

Episcopalian Evicted and Vestry Vacated

As he was leaving Canterbury Cathedral on December 29, 1170, King Henry II of England, frustrated with Archbishop of Canterbury St. Thomas à Becket, mumbled under his breath those fateful words [w]ill no one rid me of this turbulent priest? Four knights who accompanied the King heard his grumble and, later that same day, returned to the Cathedral and martyred the great Saint on the stairs leading to the quire. Fortunately for the Rt. Rev. (now Bishop) David Moyer (Bp. Moyer), the Episcopal Diocese of Pennsylvania was able to rid itself of him in a much less bloody way, but it took a rather impressive amount of litigation to do it.

Over the last decade or so, due to theological division, with the Episcopal Church (Episcopal Church or National Church) choosing to proceed down a wide and liberal road and the orthodox within it choosing to proceed down a narrow and traditional road, a variety of civil litigation has emerged across the country between the Episcopal Church and the orthodox within it. The litigation has mostly regarded the status of church property held by an orthodox congregation within a liberal diocese, the status of an orthodox diocese within the liberal National Church, or the status of an orthodox clergyman relative to a liberal bishop above him.

The issues described above in general have been raging since about 2002 specifically in Montgomery County Court between Bp. Moyer, who was once an orthodox Episcopal priest and rector of the parish Church of the Good Shepherd in Rosemont (Good Shepherd), and the liberal Episcopal Diocese of Pennsylvania (the Diocese) and its equally liberal diocesan bishop, Rt. Rev. Charles E. Bennison (Bp. Bennison). I have written about the above issues and the litigation between Good Shepherd, Bp. Moyer, and the Diocese and/or Bp. Bennison previously in Upon Further Review. With regard to the issue of property ownership, my January 9, 2009, article National Church v. Regional Diocese: Property Ownership by a Religious Institution (which can be found here), described the legal issues surrounding the property disputes within the Episcopal Church. My March 9, 2009, article Episcopalian In-Fighting Spreads to Montgomery County Courthouse (which can be found here), described the legal issues surrounding the defrocking of Bp. Moyer by Bp. Bennison.

Although the precise issues in the above cited articles are slightly beyond the scope of the instant article, they certainly can help the reader get a clearer picture of the legal landscape over which Good Shepherd, the Episcopal Church, the Diocese, Bp. Moyer, and Bp. Bennison have trod in Montgomery County Court to set the tone for the matter described below, In Re: the Church of the Good Shepherd Rosemont, Pennsylvania Incorporated, No.: 09-0609. Suffice it to say here that the Court has essentially ruled that Bp. Moyer is no longer an employee of the Diocese and has no right to engage in clerical functions within the context of the Diocese and/or the Episcopal Church. The matter before the Court in In Re: the Church of the Good Shepherd Rosemont, Pennsylvania Incorporated is the determination of who has rightful control over the property of Good Shepherd and whether Bp. Moyer may reside in the its rectory.

The Diocese and the Episcopal Church (Petitioners) filed a Petition for Citation against Good Shepherd, Bp. Moyer, and members of Good Shepherds parish Vestry (the layman’s governing body) for possession of the Good Shepherd property and the removal of both Bp. Moyer and the Vestry members for attempting to obstruct and/or remove Petitioners from possession and/or control of the aforesaid property. After a complex web of responsive pleadings, including a series of opposing preliminary objections, the Petitioners filed for Summary Judgment against Good Shepherd and it is in the context of summary judgment that Judge Stanley Ott entered the Order at issue herein.

The Court reviewed the history of Good Shepherds property. Good Shepherd was incorporated in 1870 and in the charter for the parish it declared that it was a member of both the National Church and Diocese. The charter is consistent with the canons and constitutions of both the Diocese and National Church which mandate that parish property is held in trust for the Diocese and, in turn, the National Church. The canons and constitutions also prohibit parish property from being alienated without the consent of the Diocese. The deed to the parish was transferred to the Diocese in 1910 but was subsequently deeded back to the parish in 1967 with the proviso that it be used for worship according to the doctrine and discipline of the National Church.

The primary issue addressed by Judge Ott is who or what controls Good Shepherds property. In support of its petition, Petitioners set forth six (6) arguments: (1) Good Shepherd announced that it is no longer a part of the Diocese and/or National Church and was seeking affiliation with another denomination; (2) Good Shepherd continued to employ Bp. Moyer despite his defrocking in 2002 and the Diocesan canons requiring parishes to only employ clergy licensed by the Diocese; (3) Bp. Moyer entered Holy Orders in another denomination; (4) Good Shepherd has employed other priests not licensed by the Diocese; (5) Good Shepherd has used parish assets to support activities to subvert the Episcopal Church and/or the Diocese; and (6) the diocesan canons authorize the bishop, with consent of the Standing Committee (the Diocese’s layman’s governing body), after a determination has been made that a parish ceased to act in accordance with the Diocese’s constitution and canons, to take necessary measures to take over the parish’s property. The Diocese, through both its Standing Committee and bishop, believed that due to the actions of Bp. Moyer and the members of the Vestry, Good Shepherd had ceased to act within the canons and constitution of the Diocese and were taking necessary measures to take over its property.

Good Shepherd, in response to the Petition, answered the above six (6) arguments as follows: (1) it denied that it has determined to sever ties with the National Church or Diocese; (2) it alleged Bp. Moyer, though not licensed in the Diocese, was licensed by other Dioceses of the Episcopal Church, Anglican Communion, and the Archbishop of Canterbury; (3) it alleged parish assets are still used for the benefit of the Episcopal Church; (4) it denied that the Episcopal Church was hierarchical; (5) it denied that Bp. Moyer entered Holy Orders in a different church; and (6) it alleged the applicable canons and constitutions, when read in concert, do not indicate parish property is held in trust. Finally, Good Shepherd provided various arguments that the Diocesan Bishop of Pennsylvania did not have authority, under the canons and constitution, to bring the action against it.

As an initial matter, the Court, due to the United States Constitutions First Amendment guarantee of the freedom to practice ones religion, ruled that it could not inquire into the propriety of the internal governance or administration of the Church at issue. Further, it also refused, on the same grounds, to rule as to whether Bp. Moyer, who received Holy Orders in another branch of Anglicanism, can still be deemed an Episcopal priest. Regardless of the preceding, the Judge did not believe that either of the above was necessary to make a ruling on the Petition at issue. The Court ruled that although a church was involved, neutral legal principles could be applied to resolve the property dispute raised in the Petition without directly engaging any religious issues.

After all of the above were considered, the Diocese elected to restrict the relief it sought simply to a determination that the rector (Bp. Moyer) and the Vestry members be removed. Presumably the Diocese believed that all of the property dispute issues would be moot if it could successfully oust the rector and Vestry members who they believed were actively engaged in separating Good Shepherd from the Diocese and/or the National Church.

In analyzing the Episcopal Church’s structure, the Court found that it is hierarchical in nature, with a National Church having authority over a diocese which, in turn, has authority over a parish. The Court found that the Vestry of Good Shepherd could be viewed as having taken action to attempt to sever Good Shepherd from both the Diocese and the Episcopal Church. The Court, in the previous case, also found that Bp. Moyer had been defrocked in 2002 and is without license to function as a priest in either the Diocese or the Episcopal Church. With consideration of the above findings, the Judge ruled that it is the will of the Petitioners to evict both Bp. Moyer and the Vestry members and that they had authority to do it. The Petitioners decided to oust Bp. Moyer and the Vestry members because of the very divergent theological and ecclesiastical views between the parties and the Court refused to get involved in those issues. As Bp. Moyer is no longer employed by either the Diocese or National Church, and the Diocese, within an hierarchical church, having control over its property, the Diocese simply has the authority to evict Bp. Moyer out of Good Shepherds rectory and remove the Vestry members from their positions.

Due to the Courts ruling, Bp. Moyer must vacate the rectory immediately, and the Vestry members must immediately step down. Like the knights who martyred St. Thomas, the Petitioners herein, with reference to Bp. Moyer and the Vestry members, can say “let us away this fellow will arise no more.”

Originally published on November 9, 2011 in “Upon Further Review” and can be found here.

The Hidden Inequity in Unemployment Compensation Law

As everyone knows, the current financial climate is precarious at best, which makes knowing one’s rights under Pennsylvania Unemployment Compensation Law vital to one’s financial future. Conventional wisdom, which is largely correct, is the following: an employer must pay unemployment compensation taxes for employees and those employees can collect unemployment compensation benefits if separated from employment (presuming, of course, they meet the statutory eligibility requirements). For unemployment compensation purposes, an employee is basically defined as someone who is dependant upon the business for which he works for income, works for a fixed rate of remuneration from the business for which he works, and whose work is completely controlled by that same business.

Perhaps an employee is best described by what it is not. In contrast to an employee is an independent contractor. Independent contractors, by statutory definition, are ineligible for benefits. An independent contractor is defined by 43 P.S. § 753(l)(2)(B), and the cases decided thereunder, as the following: (1) being free from the direction and control of a purported employer and (2) having an independent business that is not reliant upon a single source for his business. While the above language means is often determined on a case by case basis, general guidelines have been provided in well established Pennsylvania case law. Characteristics of someone who is free from direction and control include, but are not limited to, the following: the individual (1) does not have his taxes withheld by an alleged employer; (2) can accept or reject work at his own discretion; (3) can work for competing entities without fear of reprisal; (4) can control how a job is performed; (5) works without a fixed rate for remuneration; (6) supplies his own tools and/or supplies to accomplish his work; (7) does not receive “on the job training” from the alleged employer; (8) sets his own hours of work; (9) sets his own parameters for his work; and (10) is not dependant upon a single source for his business. As an independent contractor is not an employee, and therefore not eligible for benefits, if one contracts with an independent contractor no unemployment taxes need be paid for that person.

The general rule is if unemployment compensation taxes are paid for an individual, then that person can collect benefits; in the alternative if someone cannot collect benefits, then the unemployment compensation taxes do not have to be paid for that person. However, is there a situation where the tax must be paid for someone but that individual cannot collect? In the context of Unemployment Compensation, the analysis of what makes an employee, as contrasted from an independent contractor, converges onto an owner of a business in a way that is inequitable. The inequity appears to be derived from exploiting both sides of businesses as legal entities independent from both its owners and employees.

An owner of a business, who works and earns income for the business he owns, is considered to be an “employee” for whom unemployment compensation taxes must be paid because the owner depends upon the business for his income and the business completely controls the owner’s work. However, in reality, as the owner of the business, he controls what work the business does and how it is performed. Therefore, the business owner simultaneously controls and directs the business (fitting the criteria for an independent contractor) on the one hand, while being dependant upon and controlled by the business for both work and income (fitting the criteria for an employee) on the other hand. Taking full advantage of a business owner’s dual role as independent contractor and employee, Pennsylvania Unemployment Law as presently written and interpreted, treats a business owner as either an employee or independent contractor when it most benefits the government as opposed to the owner. Therefore, although a business owner pays unemployment compensation taxes on his own income from his business because he fits the criteria of an employee, if that same business owner becomes separated from the business for any reason (except for the exception detailed below) then that business owner is ineligible to collect unemployment benefits because he also meets all of the criteria for an independent contractor listed above. Therein lays the hidden inequity: a business owner must essentially pay a tax for which he cannot receive the benefit.

The only exception that would allow a typical business owner to collect unemployment benefits is if he is forced to terminate his relationship with the business through an involuntary bankruptcy. An involuntary bankruptcy is considered to be analogous to the involuntary termination of one’s employment from an employer. Perhaps this is a clue as to the rationale behind the general rule that business owners must pay for but cannot collect unemployment benefits for themselves. A business owner is essentially his own employer and could hire himself and lay himself off repeatedly at will, theoretically making himself eligible for unemployment benefits over and over again. Perhaps lawmakers believed a business owner holds too much control over the employment relationship with the business itself to allow him to collect benefits.

It is interesting to note that, aside from the above exception, a Pennsylvania statute specifically carves out an exception for real estate and insurance agents in 43 P.S. § 753(l)(4)(17). The statute specifically indicates that although real estate and insurance agents may own, at least in part, the businesses for which they work, unemployment compensation law will specifically deem them to be exclusively independent contractors as opposed to simultaneously employees. Therefore, there is no requirement under Pennsylvania statute for real estate and insurance agents to pay unemployment compensation taxes. Thus far, the cases decided under 43 P.S. § 753(l)(4)(17) have not expanded its application beyond the specific exceptions for real estate and insurance agents to include individuals in other professions but with the same sort of owner/employee arrangement relationship.

Most people expect to have the safety net of unemployment compensation benefits if they unfortunately lose their job. However, if one owns a business and pays unemployment compensation taxes for oneself, he should be aware that the payment of the tax does not entitle him to collect the benefit. This may be clearly inequitable on its face, but until it is changed it is imperative that business owners be aware that the safety net they may be hoping for will not catch them if they can no longer work for their business.

Originally published in “Upon Further Review” on October 8, 2009 and can be found here and on my website here.

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