So Mormons have a lay ministry. Hence, there is a real sense in which we are “the Church.” This raises some interesting questions about what counts as official Church action and what doesn’t. Consider the case of Martin v. Johnson, 151 Cal. Rep. 816 (Cal.App. 1979).
The case arose out of a lawsuit brought by the indefatigable anti-Mormon Walter R. Martin against Bruce A. Johnson, several local institutes, the Church of Jesus Christ of Latter-day Saints, the Corporation of the First Presidency, and several other church entities. Martin, also known on Orange County talk radio as “The Bible Answer Man,” has been writing anti-Mormon screeds since the 1950s and is among those theologians subscribing to the Satanic-inspiration theory of Mormon origins. Johnson wrote a pamphlet responding to Martin in 1972, which suggested that Martins arguments and use of sources were a bit . . . ahem. . . creative. Martin sued for defamation and libel. He also sued the Church on the theory that because Johnson was a Mormon elder defending the Mormon Church operating as the Church’s agent, which made the Church liable for his actions under the doctrine of respondant superior. This is the legal rule that makes an employer liable for the acts of its employees. (This marvelous rule, for example, lets you sue McDonalds when Jim Bob sells you a cup of over hot coffee rather than simply suing Jim Bob.) Martin lost the suit, but it raises an interesting question.
If every Mormon priesthood holder is an ordained minister of the Church, how do we differentiate their actions from the actions of the Church itself. In the 19th century one of the big objections to the admission of Utah as a state was the activity of the Church in Utah politics. One of George Q. Cannon’s favorite arguments was that because every active Mormon above a certain age was a Church official of some sort or another. Hence, he argued, it would be impossible to get the Church out of politics without excluding all of the “better sort of men.” Where do we draw the lines between personal and corporate action?
Well, as I assume the court would in an action alleging liability under a respondeat superior theory, we could look to see if the action was done somehow in the course of the man’s duties as an Elder of the Church of Jesus Christ of Latter-day Saints. That would be a good starting point.
Perhaps evidence of these duties would consist of passages from the Doctrine and Covenants, as well as from the Handbook of Instructions, and finally testimony regarding whether the actions supposedly subjecting the Church to respondeat superior are those typically understood by the lay person to be duties of the Elders.
That would be where I would start (of course, after checking to see precisely what the elements of respondeat superior were in my state- which I haven’t done yet.)
Come to think of it, I am sure these issues were raised in that Oregon case not too long ago where the Church was sued because a bishop allegedly knew that an older man had a history of molesting children but failed to warn the family who took the old man in.
(see http://www.thelinkup.org/denom/mormo.html)
There, the Bishop’s alleged actions (or inactions) seem to have been deemed those of “the Church”, and the Church settled that lawsuit after some very unfavorable rulings by some Oregon judges (some of which dealt with the respondeat superior liability of the Church for the Bishops actions/inactions?)
Does anyone know more about this?
What Jordan talks about above sounds like a reasonable basis for determining whether a person is acting in behalf of the Church or themselves. Even though ever mature male has priesthood, they could probably not be said to be acting on behalf of the Church unless they are acting within a specific sphere of church stewardship (a calling that they have).
I’m trying to think of two similar examples that might somehow contribute towards the distinction.
What if I’m out hometeaching and I hit someone with my car on the way? Perhaps the injured person could argue that the Church has some responsibility in the matter, since I was fulfilling an official Church errand. But if my car hits someone while I’m out getting my own groceries or some similar activity, the Church has no direct connection to my actions.
I haven’t studied the law and I doubt these examples are very good … but I’m just trying to contribute to the direction of how the question might be answered.
” haven’t studied the law ”
nobody’s perfect… ;->
No easy answer from me. I’ll only add that this is an enormously important issue for the church, and one its lawyers face constantly. The titles of the various priesthood offices–deacon, teacher, priest, elder, etc.–complicate matters, particularly for those not familiar with Mormon terminology and culture. In most churches, these titles signify an individual who has been given express authority, in a legal sense, to act on behalf the church. I don’t mean to make light of the priesthood, but it doesn’t make much sense to hold the entire church liable for the misadventures of a 12 or 16 year old malcontent. Yet, in places other than the Mountain West, it’s not terribly difficult to envison this scandalous teaser on the local news: “Mormon Priest seen making sexual advances on local high school girl after church services” (translated, 16 year old kid kisses girlfriend after youth dance).
Nate,
Your comment reminds me of a line from Independence Day (yes, that Will Smith movie) that I really like.
Albert Nimzicki: “I’m not Jewish.”
Julius Levinson: “Well, nobody’s perfect.”
Jordan,
My understanding is that the Oregon judge’s unfavorable rulings had more to do with the fact the Church was liable under a respondeat superior theory that the abuser–a High Priest–was a church actor, by virtue of his being a High Priest.
I read some of the church’s briefs, and they were arguing that the office of High Priest is given to male members at about the age of 40.
Since the church settled, there’s nothing precedential about it, but it would be a horrible precedent to say that the church could be held liable for any priesthood-holder’s actions.
Without precipitating a thread derail, I’d note that who is “the Church” and under what circumstances is a question that bears a fair amount of social and religious weight, in addition to its legal consequences. When the recent press release was issued announcing that “the Church” supported a particular kind of constitutional amendment, the potential meaning of that term made me wonder a bit.
…it would be a horrible precedent to say that the church could be held liable for any priesthood-holder’s actions.
Would it be horrible to hold the Church liable for tortious harm caused by a priesthood-holder’s actions even if it occurred in the performance of his priesthood duties? This is generally the standard that we apply to other organizations, including the Catholic Church.
Greenfrog is touching on where the distinction needs to be made. The Church shouldn’t be held responsible for anything or everything that a priesthood holder does but should be perhaps be held accountable for what priesthood holders do in the process of performing their Church duties and responsibilities.
“I read some of the church’s briefs, and they were arguing that the office of High Priest is given to male members at about the age of 40.”
That’s pretty interesting–I mean, that’s certainly common practice, but I’ve never seen it officially acknowledged or prescribed.
Yes- that is probably why the Church settled (to avoid such horrible precedent based on the bad way things were going in that case).
As to respondeat superior, the starting point needs to be the degree of control that the Church exerts on the priesthood holders and in turn whether the action in issue was within the scope of the control exerted by the Church on the priesthood holder.
A hole in the theory is that commonplace priesthood holders are not employed by the Church. I think that would defeat respondeat superior as to them. Bishops might be an exception to that, as well as missionaries, because both of these offices literally represent the Church, and not just in the generic way that all members represent the Church. The doctrine could hold as to those in Church leadership–those who have left their mundane professions behind in order to serve in the Seventy, the Quorum on the Twelve, or the First Presidency.
John, The doctrine of respondeat superior does not require “employment” in the sense that you seem to be using it. Traditionally, the doctrine was applied to master-servant relationships, but modern courts and commentators use the terms “employer” and “employee.” Determining whether someone is a servant — as opposed to an independent contractor — is pretty complicated, but you were right to finger control as the key. One way to think about this: if the Church controls the “details of [the priesthood holder’s] work,” then he is a servant. I would think that there is a pretty strong case for this level of control with respect to some activities, but even in the strongest case, the scope of the employment is likely to be fairly narrow.
Our identification with the Church may explain why many members see “suing the Church” as an enormous betrayal. When that happens, one of our own is turning on us, trying to put our tithes in their own (and their lawyers’) pockets.
Scott
So far there has been a good discussion as to what counts as “Church Action” from a legal standpoint in determining liability. However, perhaps Nate intended for the discussion to be broader than that.
My question is what constitutes “Church Action” in other realms? For example, I had a Stake President once who had an affair and eventually was excommunicated for the Church as a result. During the time he was having the affair, he did all sorts of wacky things, including initiating disciplinary proceedings against a faithful member of the Stake High Council who suggested that something might be wrong in this Stake President’s personal life. Would such a proceeding count as official Church Action?
What if an imprudent bishop, before knowing all the facts of a certain situation, moved to initiate action against a member of his ward? Would this be Church Action?
Those maybe aren’t the best examples, but can you see what I mean? When is something done by someone in a Church office Church Action (not in the legal sense) and when is it his/her personal opinion/prejudices?