Opinion
A121224.
6-24-2009
FIRST ASSEMBLY OF GOD CHRISTIAN CENTER OF PITTSBURG, CALIFORNIA, Plaintiff, Cross-defendant, and Appellant, v. BRIDGEWAY et al., Defendants, Cross-complainants, and Respondents.
Not to be published in Official Reports
This case involves a secular dispute dressed as a schism. Appellant First Assembly of God Christian Center of Pittsburg, California (First Assembly) appeals from the superior courts order granting in part First Assemblys request for a preliminary injunction and the relief sought by respondents Timothy L. Combs (Tim Combs) and Cathie L. Combs (Kyah Combs) (collectively, Combs respondents) in a cross-complaint brought pursuant to Corporations Code section 9418. First Assembly challenges certain factual findings and seven mandates contained in the superior courts order on various grounds. We affirm the challenged factual findings, but hold that the court abused its discretion and exceeded its authority under Corporations Code section 9418 in issuing the seven mandates. We further hold that these findings and mandates, except for one part of the courts procedure for resolving membership disputes, did not violate constitutional protections for religion discussed in Lemon v. Kurtzman (1971) 403 U.S. 602 (Lemon), and Episcopal Church Cases (2009) 45 Cal.4th 467. We vacate these seven mandates and remand this matter for further proceedings consistent with this opinion. We reject, or, in light of our rulings, have no reason to further consider, the remainder of First Assemblys arguments.
BACKGROUND
First Assembly is a religious nonprofit corporation organized and existing under the laws of the State of California with two campuses. One, located in Pittsburg, California, is known as the "Lighthouse," and the other, located in Antioch, California, is known, among other things, as the "Bridgeway Church."
First Assemblys Complaint
In January 2008, First Assembly filed a verified complaint against Bridgeway, a California corporation (Bridgeway corporation), and the Combs respondents (collectively, respondents) for trespass, conversion, statutory conversion of checks, intentional interference with economic relationship, violations of the Unfair Business Practices Act, imposition of constructive trust, request for accounting, breach of contract, declaratory relief, a temporary restraining order, preliminary and permanent injunctions, and money damages.
First Assembly alleged that its former Senior Pastor Larry Combs and its board of directors (Board) appointed Tim Combs as interim pastor in July 2007. Based on certain alleged misconduct, the Board terminated Tim Combss employment in early December 2007, and terminated the employment of his wife, Kyah Combs, as the Bridgeway Churchs worship leader at the same time. The Board changed the locks and security codes at the Bridgeway facility, but Tim Combs and his supporters gained access and refused to stop holding services there. The facilitys security codes were changed without the Boards knowledge or consent and the Board could not access the facility, while Tim Combs continued in possession.
First Assembly further alleged that on December 16, 2007, Tim Combs held a special business meeting with congregants at the Bridgeway facility and caused the purported "election" of a First Assembly board of directors and of himself as senior pastor. First Assembly did not authorize the December 16, 2007, business meeting, which was not properly announced beforehand, and the decisions made there were not in keeping with First Assemblys constitution and bylaws. It was further alleged that Tim Combs was not an accredited or ordained pastor with the Assemblies of God, was not eligible to serve as senior pastor pursuant to the charter and policies of The General Council of Assemblies of God, and was not First Assemblys senior pastor or a member of its Board.
It was further alleged that Tim Combs subsequently held himself out as the senior pastor of First Assembly. Check donations to First Assembly were deposited in a Bank of America account that First Assembly believed was owned and controlled by Bridgeway corporation, and Bridgeway corporation and/or Tim Combs caused the freezing of certain First Assembly bank accounts. Tim Combs continued to use a First Assembly credit card, and withheld lease income from a Bridgeway facility tenant.
Respondents subsequently filed a verified answer to First Assemblys complaint. They admitted "that TIM COMBS is not presently an accredited or ordained minister of The General Council of the Assemblies of God," and that he had "been in the past and resigned in good standing."
The Combs Respondents Cross-Complaint
In February 2008, the Combs respondents filed a cross-complaint pursuant to Corporations Code section 9418, which provides for summary court proceedings to resolve disputes about the election of directors to the Board of non-profit religious corporations. The Combs respondents named as cross-defendants First Assembly, and the individuals who purported to be the Board members of First Assembly: Nathan Hanohano, Richard Bronaugh, Edward Marquardt, Doug Gustafson, Tim Russell, Ramon Torres, Dan Adams, and Tony Yadao.
The Combs respondents alleged in their cross-complaint that a quorum of First Assembly members had attended the December 16, 2007 meeting and elected a new First Assembly board of directors and pastor pursuant to the constitution and bylaws of First Assembly. The cross-defendants were not the duly elected First Assembly board, had no authority to administer First Assembly, had held a meeting to elect the cross-defendants that was not properly noticed, and had refused to recognize the results of the December 16, 2007 special meeting, thereby creating a controversy over who were the true members of the First Assembly Board.
The Combs respondents sought a declaration from the court that they were members in good standing of First Assembly who were entitled to vote in First Assembly elections, and that the election of cross-defendants to the First Assembly Board was null and void because of the December 16, 2007 meeting and the fact that the Combs respondents were entitled to participate in elections. In the alternative, the Combs respondents sought an order for a new election to elect directors and a pastor of First Assembly. They also asked, "[t]o the extent necessary to ensure a proper new election, and in conformity with the Articles of Incorporation and Bylaws of [First Assembly], that the court determine the validity of the issuance of memberships and the right of persons to vote."
First Assemblys Application for a Preliminary Injunction
The Initial Briefing
First Assembly argued in support of its application for a temporary restraining order and an order to show cause that respondents actions were causing irreparable and great harm to it, including the ongoing loss of use of the Bridgeway Church, the ongoing dispossession of its tangible and intangible intellectual property, the loss of membership and members to whom First Assembly owed a duty and shared a mission purpose, the ongoing loss of revenue and income as monies were diverted by respondents, diminishing savings and cash flow that were causing hardship to its school employees, the possible loss of ownership of its premises through potential foreclosure or distress sale, the chaotic ongoing confusion in the eyes of third parties as to First Assemblys identity, and the ongoing infringement of its trade name.
First Assembly submitted a declaration from Hanohano, who identified himself as the senior pastor, president, and chairman of the Board of First Assembly. Hanohano stated that First Assembly had the right to use the name "Assembly of God" and "Assemblies of God" only so long as it shall be "a cooperative unit of the Northern California-Nevada District of The General Council of the Assemblies of God." He described First Assembly as "an affiliated assembly" of the "Northern California and Nevada District Council of The General Council of the Assemblies of God [district council]." According to Hanohano, as an affiliated assembly, plaintiff church is "under the supervision of the [d]istrict [c]ouncil pursuant to article XI, section 2 of the Constitution of The General Council of the Assemblies of God." He attached a December 10, 2007 letter from the district councils assistant superintendent stating that First Assemblys official Board consisted of certain individuals, including Hanohano as pastor, and not including Tim Combs. He further stated that he was hired as senior pastor "on or about December 17, 2007." He made numerous assertions regarding the Combs respondents termination, the December 16, 2007 special meeting, and the constitution and bylaws of First Assembly (which were also submitted to the court) that were consistent with First Assemblys allegations in its complaint.
Hanohano also attached articles of incorporation which, as amended, state as one of its specific and primary purposes "[t]o function as a local Assembly of God in harmony with the Constitution and Bylaws of the General Assemblies of God, . . . Northern California and Nevada District Council, Inc., Santa Cruz, California." The articles also provide that the corporation "shall have the right to use the name `Assembly of God or `Assemblies of God only so long as it shall be a cooperative unit of the Northern California and Nevada District of the General Counsel of the Assemblies of God[.]" Furthermore, in the event of the winding up and dissolution of the corporation, the remaining assets are to be distributed to certain Assemblies of God entities, depending on which are in existence at the time.
Richard Bronaugh (spelled "Bronough" by the Combs respondents in their cross-complaint, but apparently the same person) and Edward Marquart also submitted declarations in support of First Assemblys application which made contentions about First Assembly, its incorporation, Hanohanos hiring, the Combs respondents termination, the December 16, 2007 special meeting, and the constitution and bylaws of First Assembly that were virtually the same as those contained in Hanohanos declaration.
Respondents opposed the application by contending that the church was "in transition," and that "[a]lthough one church, Lighthouse and Bridgeway began to develop very different styles, and by the churchs own admission `very different visions, ministries, music, philosophies and target ministries. " The Board passed a motion at a September 20, 2007 meeting "to separate Bridgeway and Lighthouse into two separate cost centers, write new bylaws to allow executive pastors at each location, and track results for [the] next two year[s]." The Board wrote to the membership:
"In moving toward this goal, our attorneys have advised us to treat each church as a `cost center acting independently of each other as to ministry and vision and finance. The Board would serve as board of both churches for a season until it is clear that both churches could function on their own. At that time, debt and assets could be divided and Bridgeway given its own corporate identity and board. This would require the consent of a majority of the membership held at that time. [¶] The next step in this process of birthing a new church is to call a different pastor for each location at Bridgeway and Lighthouse, and Pastor Tim Combs has been appointed interim pastor at Bridgeway church."
Respondents contended that a discussion about this separation had been on-going for some time, as indicated by correspondence from the district superintendent, James R. Braddy.
Respondents also argued that the Boards "no confidence" vote in Tim Combs was made without proper notice, that the district council considered him the most appropriate choice to lead the Bridgeway membership, and that he led a church community of significant size that would be disrupted if First Assembly were granted its requested relief. Respondents contended that approximately 110 of the 130 official church members attended Bridgeway and that nearly 600 people attended or affiliated with Bridgeway on a weekly basis.
Respondents also argued that First Assembly was not likely to prevail on the merits of its complaint because it would be unable to establish any actionable harm, since there was "ample evidence" that there had been a vote to separately operate the two facilities and eventually split into two corporations. They also contended that the district council had approved Tim Combs as pastor for Bridgeway.
The court issued an order to show cause, but not the requested temporary restraining order. It subsequently issued certain interim orders regarding certain monies, bank accounts, and the payment of school payroll prior to the order to show cause hearing. These interim orders are not subjects of this appeal.
Further Briefing
In their opposition to the order to show cause, respondents repeated many of their previous arguments.
First Assembly replied that Tim Combs was validly terminated by the Board from an interim pastor position, and lacked the credentials to be an ordained pastor in the Assemblies of God. It stressed that the freezing of First Assemblys bank accounts as a result of Tim Combss misconduct was causing great disruption and jeopardizing the future of its schools, and that any purported harm to respondents was not as great as that to First Assembly.
First Assembly submitted another Hanohano declaration. Hanohano stated that he was informed and believed that the Board, rather than vote in September 2007 to establish Lighthouse and Bridgeway as two separate churches, "voted merely to approve the concept of a trial, experimental basis of limited separation for two years before implementation of legal separation would be considered by the Board and the church members." Hanohano was further informed and believed that the Board soon reconsidered this concept, "as there was doubt that separating the churches legally was actually a laudable objective. While there was and has been no Board resolution to officially rescind the prior resolution, the Board is not currently in favor of the objective and has not been at any time since . . . Tim Combs [was] terminated and [the Board] has no plans to actively pursue the prior resolution." Hanohano also contended that Sunday service attendance at Bridgeway had "decreased significantly" in the two months that respondents had controlled the church, while attendance at the Lighthouse church had increased from 40 to about 130 people.
The Combs Respondents and their attorney submitted declarations in further opposition to First Assemblys application for a preliminary injunction. The Combs respondents contended that they remained members of First Assembly with the rights of members, including the right to appeal any notice of removal from membership to the members of the church.
First Assembly replied that Tim and Kyah Combs were no longer members of First Assembly because they had been given notice at the time of their termination " `that their presence on either Lighthouse or Bridgeway properties after that time would be considered trespassing and they would be subject to arrest. "It also contended that under the bylaws, the Pastor and the Board had the authority to " `remove from the list of active members all names of those who may have withdrawn from the fellowship. " It argued that, based on the Combss actions in establishing "their own church," they had in effect disassociated themselves from First Assembly.
Arguments Regarding the Combs Respondents Cross-Complaint
In support of their ex parte application for an order to show cause for an expedited hearing on their cross-complaint, the Combs respondents submitted a declaration by Tim Combs, who stated that he left a senior pastor position elsewhere in 2005 to join his father at First Assembly in order to replace him when he retired, that his father soon became ill, that he, Tim Combs, had been preaching Sunday morning services at First Assembly since that time, and that he eventually became pastor at the Bridgeway church. In July 2007, his father retired effective October 31, 2007, and expressed his strong desire that Tim Combs be First Assemblys pastor. Tim Combs was appointed interim pastor until the annual business meeting, when he could be elected by First Assemblys membership, and the Board members asked him to begin involving himself in the administration of the church. After he began attending Board meetings in September 2007, Board members reacted negatively to questions and concerns he expressed about certain Board members qualifications to serve on the Board and the lack of attention to corporate formalities. He was informed that Marquardt, rather than he, would chair the Board, but nonetheless was given a raise in salary " to commensurate with that of a Senior Pastor" and a loan to purchase a home.
Tim Combs stated he was preparing for such things as the nomination of Board members and elections when "everything fell apart." The cross-defendants met in secret without him and without a quorum present. He continued to serve as pastor at the Bridgeway campus, but the cross-defendants, "without any pastoral approval, hired personnel and began marshaling all of the [First Assembly] assets that came into the Bridgeway campus to the Lighthouse campus." Relations between the campuses "chilled." He was called to a meeting in early December 2007 at the Lighthouse campus and told he "had become a nuisance and undermined the Board and formed a corporation without their approval (even though one of the cross-defendants actually prepared the proposed Bylaws for the Bridgeway Corporation)." He subsequently heard Marquardt state that the Board intended to close the Bridgeway campus and sell it.
Tim Combs stated that after this meeting, more than one-third of the churchs members signed a petition attached to his declaration pursuant to the First Assembly bylaws calling for a special meeting of the assembly. The petition states: "We . . . hereby state that Pastor Tim Combs is our Senior Pastor. We worship and follow the direction and vision he has for Bridgeway Church. By signing this petition, we are making our voices heard and demanding that no further decisions be made or attempted to be enforced regarding Bridgeway Church until the meeting scheduled for December 16 at 6 p.m. At that time, our votes will speak for themselves."
Tim Combs declared that the petition "was placed in my hands and an announcement was made on the two (2) Sundays prior to the meeting." Notices on regular-sized paper were posted in conspicuous places on each campus, including at the Lighthouse campus on December 8, 2007, which states in large capital, bold letters, "SPECIAL BUSINESS MEETING ON SUNDAY, DECEMBER 16, 2007 AT 6 PM IN THE BRIDGEWAY SANCTUARY. YOUR ATTENDANCE IS KEY TO THE FUTURE OF THE BRIDGEWAY CHURCH." Tim Combs further asserted that he mailed notice of the "special business meeting to all the membership on December 7, 2007."
According to Tim Combs, at the December 16, 2007 special meeting, "the active membership elected [him] as their pastor by a vote of 73 to 4. The active membership also elected a new board of directors." He attached to his declaration copies of a sign up sheet and minutes for the meeting. The minutes are for the "Bridgeway and Lighthouse Church," state that the intent of the meeting was to elect a board and senior pastor, that the "[c]urrent board is not an elected body of the membership," and report the election of Tim Combs as senior pastor, and of a new board after the suspension of the bylaws and constitution.
First Assembly argued in its opposition to the order to show cause that Tim and Kyah Combs lacked standing to cross-complain because, among other things, they were not members of First Assembly, having disaffiliated themselves. They further contended that the existing Board members were entitled to serve under the First Assembly bylaws.
First Assembly contended specifically that Hanohano had been properly elected as senior pastor at a December 2, 2008 "special meeting." It argued that while the bylaws allowed special meetings of the assembly "after proper notice has been given . . . provided the meeting has been agreed upon by a majority of the Board of Directors," neither the bylaws nor the constitution specified what this "proper notice" should be and that, "[i]n this instance, [First Assembly] was unable to provide advance notice to the full active voting membership of the church because . . . cross-complainants had wrongfully deprived [First Assembly] of the membership list;" as a result, cross-complainants could not assert election defects because of their "unclean hands."
First Assembly further argued that the December 16, 2007 elections were invalid, that Tim Combs was not nominated for senior pastor by the Board as required by the bylaws, and that he was not an accredited or licensed Assemblies of God minister. The petition for the special meeting improperly referred to him as senior pastor rather than to his possible election at a special meeting, had not been delivered to the proper church officers, and contained only 26 names that plaintiff could "verify." First Assembly argued that there was no need for new elections, nor was there any legitimate reason for the court to determine the active membership of the church, particularly because membership was based in part on a persons beliefs, making it unconstitutional for the court to determine because it was "inherently ecclesiastical."
The Combs respondents replied that the "issue presented requires a determination as to which of the two sets of board of directors, if either of them, is the proper board of directors, who are the real parties in interest." They contended that they had not been notified that they were no longer voting members as required by First Assemblys bylaws. Also, if the court found the December 16, 2007 elections were invalid, "the voting members [of First Assembly] are still entitled to their special meeting and the court should order it, but only after ensuring that the cross-defendants and their attorneys have not `cooked the books of the voting members."
The Hearing on Both Matters
In its tentative ruling, the trial court denied both the request for a preliminary injunction and the cross-complaint because they involved determinations regarding First Assemblys constitution, bylaws, and membership in violation of the separation of church and state provided for in the United States Constitution. The court ordered the parties to arbitration with Braddy instead.
First Assemblys Arguments
We summarize those arguments made at the March 11, 2008 hearing that are relevant to this appeal.
First Assembly counsel argued that the Board never voted to separate into two facilities but, rather, approved the "concept that perhaps the church would eventually separate." "[A]t the time that [the Combs respondents] were terminated, the decision to pursue that had been changed, so it doesnt matter what it once might have been." Counsel further argued that the Combs respondents had been properly terminated, that notice was not required to terminate them, and that the district councils view was not relevant. Counsel represented that Tim Combs was not a credentialed minister with Assemblies of God, and contended, without offering any evidence, that Tim Combs had misrepresented on his resume that he received a degree from Bethany College, where he had "flunked out."
First Assembly counsel also specially appeared for cross-defendants Hanohano, Bronaugh, and Yadao (First Assembly counsel). Apparently, there was a dispute about whether or not service was properly effected with regard to all the named cross-defendants, an issue that is not argued on appeal.
Counsel for both sides agreed that First Assembly was a "sovereign" church, but disagreed as to whether the Board or the church members were empowered to ultimately resolve their dispute. First Assembly counsel supported the position that the Board was ultimately in control by arguing that under First Assemblys constitution, the Board was the custodians of all church property and the arbitration committee for all unresolved disputes submitted to them. He argued the court could not order the parties to arbitration with the district because of the churchs sovereignty and that, in any event, Bridgeway corporation, the corporate defendant, was never a member of the church.
First Assembly counsel also argued that the court did not have the constitutional authority to determine the status of First Assemblys members because under the churchs bylaws, membership criteria included whether a person was practicing a "consistent, Christian life." First Assembly had determined that the Combs respondents had disassociated themselves from the church and were no longer members, which the court could not disturb. Also, under First Assemblys constitution, persons who may be out of harmony with the churchs teachings or ministries, or who may fall under condemnation through sinful or worldly practices, become inactive members and lose their voting privileges until they are restored to the fellowship, their standing to be settled by the Board. Thus, even if the Combs respondents remained members, their memberships were inactive and they were not entitled to vote. Therefore they had no standing to bring their cross-complaint, and the court could not determine otherwise without violating the separation of church and state.
Respondents Arguments
Respondents counsel argued that the primary issue was whether the December 16, 2007 election was valid. If it was, the case was over; if not, the voting members were entitled to a meeting where they could vote on whether or not to keep their Board or elect a new one, particularly because First Assemblys governing documents required that it hold an annual shareholders meeting in the first quarter of the year. First Assembly counsel disagreed, contending that, while First Assemblys constitution said such an annual meeting "should" occur, it was not mandatory, and that the meeting had not occurred because respondents had taken the membership list.
Regarding membership, respondents counsel represented that the Combs respondents insisted on their membership, and would continue to do so until the voting members of the church said otherwise, as provided for in the bylaws. Respondents counsel argued that the court would not unconstitutionally interfere with church affairs by reviewing First Assemblys bylaws to be sure that they were followed, and could, under the Corporations Code, "get involved with membership" by reviewing corporate membership records to determine who was entitled to vote at the shareholders meeting. He asserted that it could be determined if there was an active membership roll, that the person who maintained the list was present, and offered her as a witness.
The Courts Order
The court stated at the hearing that it was "prepared to rule that the December 16, 2007 meeting was not a valid meeting," but, having not decided what to do, took the matter under submission.
In its subsequent written order, the court found that First Assembly was a religious nonprofit corporation that was "a congregational, sovereign church and a cooperative unit in the Affiliated Assembly of the Northern California and Nevada District Council of Assemblies of God," owned two campuses, and employed approximately 54 school employees and three church employees. Respondents "have never been vested with title to either of the relevant premises or other assets, and no purchase or transfer agreement exists." The court further found:
"Church members in good standing are `real parties in interest, and as such are voting members who ultimately speak for the religious corporation (Church). Consideration must be given, therefore, to the wishes and desires of the church members. Voting members in good standing have the ultimate right to determine the future destiny of Church by vote at noticed annual or special meetings in accordance with the governing documents, although day to day decisions are made by the Board, officers, and Senior Pastor and in compliance with the governing documents."
The court also found that between September and December 2007, a rift between the parties had developed, and Tim Combs and his supporters "determined to disassociate from [First Assembly] and commence operating the [Bridgeway] facility as a separate and independent group," as indicated by their December 16, 2007 elections.
The court found that First Assemblys bylaws provided that the pastor is to be elected at a special meeting of voting members by two-thirds of the vote of the members present, with one-half of total voting members constituting a quorum at any members meeting according to the constitution. It found that the Board had voted to offer Hanohano the position of senior pastor on December 2, 2007. The court also found that "[a]pparently, Rev. Hanohano was not elected by membership in accordance" with the bylaws, but was "confirmed" by the district council.
The court also found that on December 4, 2007, Tim Combs and Kyah Combs had been terminated as employees and given 24 hours to vacate all premises belonging to the church, but had not done so. However, the Board took no action regarding the church membership status of Tim Combs and Kyah Combs, and that they remained members of the church.
The court further found that respondents essentially took over the Bridgeway campus on December 9, 2007; that the First Assembly Board had been confirmed by the district counsel on December 10, 2007; that "[a]pparently, [the December 16, 2007] meeting was not noticed and held in accordance" with the bylaws "and if not, actions taken would not be valid," and that "[t]he `election on 12/16/07 does not appear to comply with [First Assemblys] governing documents." However, the court also stated that it did not have sufficient evidence to determine the validity or invalidity of the December 16, 2007 meeting and the actions taken therein.
Based on these findings and the weight of the evidence available to the court, it granted relief in part as to both First Assemblys request for a preliminary injunction and respondents cross-complaint. First Assembly was given temporary oversight over all financial and business aspects of both campuses, treated as separate cost centers, pending further court order and decisions that would be made at a specially called business meeting of the membership.
Second, because "[a]pparently, a significant number of voting members" of First Assembly wished to separate the two campuses and engage in religious activities at the Bridgeway campus led by Tim Combs as pastor and the board elected on December 16, 2007, Tim Combs and this board were allowed oversight over all strictly religious activities at the Bridgeway campus pending further orders of the court and decisions at the special business meeting of the membership. The campus would act independently as a ministry and its religious activities.
Third, respondents would take all action necessary to unfreeze First Assemblys bank accounts.
Fourth, no decision about the re-employment of respondents would be made, as that was to be determined at the special membership meeting. First Assembly was to pay expenses for the Bridgeway campus.
Fifth, respondents were to turn over all business and financial documents and records relating to the Bridgeway campus to the First Assembly Board, as well as all funds in their possession or control generated from activities occurring at the Bridgeway campus.
Sixth, because the court did "not have sufficient evidence to determine the validity or invalidity of the 12/16/07 meeting and actions taken," it ordered that an annual/special membership meeting take place on or before May 18, 2008. The court appointed a special master and a referee "to preside over the meeting, vote counting and other proceedings relating to the meeting . . . to ensure that the meeting is conducted in accordance with Roberts Rules of Order and the governing documents of [First Assembly]." Notice of the meeting was to be provided in accordance with First Assemblys constitution and bylaws, and was to include an agenda. Consistent with First Assemblys governing documents, the membership was to vote by written ballot on whether or not to separate the Lighthouse and Bridgeway campuses into two separate, sovereign churches.
If the membership voted to separate, it was to elect a board of directors to serve the future Bridgeway facility, with nominations for board members to come from the floor, and elect a pastor for the facility as well. The special master and referee would resolve any dispute regarding the validity of membership by any individual voting. If the special master determined that the validity of membership involved a religious question, such as regarding tenets of faith, rather than a strictly legal or secular matter, he was to refer the question to Braddy for final determination, "in order to avoid taking any action which would infringe on separation of powers."
In addition, the court ordered respondents and their agents and employees to stay 100 yards away from the Lighthouse campus, and that the Board was to have full access to the Bridgeway campus, but was not to interfere with respondents religious activities.
The court ended its order by stating: "The parties and [First Assembly] members should recognize that the orders made herein are an effort by the court to stabilize the situation in light of the dispute which has arisen and that permanent orders will be made after the membership meeting. The court hopes to avoid appointment of a receiver or more drastic remedies and that if the decision is made to separate the two campuses that can be carried out along the lines set forth in Mr. Braddys Roadmap to Reconciliation dated 1/11/08."
Subsequently, First Assembly appealed portions of the courts order that it considers severable from those parts which granted it relief, which contention respondents do not challenge. Respondents filed a cross-appeal, but have since dismissed it.
On May 16, 2008, during the pendency of this appeal, we issued an order staying the trial court orders that the respondents and the board "selected" on December 16, 2007, be allowed responsibility and oversight over "all strictly religious activities" at the Antioch campus, that First Assembly pay the Combs respondents the salaries they were paid at the time of their employment terminations, and that a special membership meeting take place to render a decision on the re-employment of the Combs respondents, as well as all the courts orders flowing from the order for a special membership meeting.
At our request, the parties also submitted supplemental briefing discussing the impact of Episcopal Church Cases, supra, 45 Cal.4th 467, on their analyses.
DISCUSSION
First Assembly seeks reversal because, it contends, the trial court made erroneous and prejudicial factual findings that are not supported by substantial evidence regarding the churchs polity, the powers of the membership, and the membership status of the Combs respondents. It also seeks reversal of seven of the "mandates" contained in the courts order, which it argues violate its freedom of religion and procedural due process rights, and/or represent abuses of discretion.
First Assembly also argues that the superior court abused its discretion by not granting its request for a preliminary injunction in its entirety, and committed reversible error by its failure to dismiss respondents cross-complaint with prejudice.
Much of First Assemblys arguments center around the protections afforded to religion under our federal and state Constitutions. We reject most of these arguments, concluding that most of the issues First Assembly raises do not implicate ecclesiastical matters and can be resolved by resort to neutral principles of law and the plain reading of First Assemblys governing documents. We nonetheless conclude that the trial court abused its discretion in issuing the seven mandates First Assembly challenges, and vacate those portions of the courts order and remand this matter to the trial court for further proceedings consistent with this opinion.
I. Legal Standards
A. Constitutional Protections of Religion
The First Amendment of the United States Constitution provides in pertinent part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." (U.S. Const., 1st Amend.) The due process clause of the Fourteenth Amendment has been held to incorporate the guarantees of the First Amendment, thereby limiting the powers of the states. (Everson v. Board of Education (1947) 330 U.S. 1, 15; Episcopal Church Cases, supra, 45 Cal.4th at p. 479, fn. 2.)
Article I, section 4 of the California Constitution similarly states: "Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The Legislature shall make no law respecting an establishment of religion."
The United States Supreme Court has articulated a test to determine whether state action unconstitutionally interferes with religion in Lemon, supra, 403 U.S. 602. In Singh v. Singh (2004) 114 Cal.App.4th 1264 (Singh), these three criteria relate to the purpose, effect, and entanglement involved in such state action: "The United States Supreme Court established three criteria, which must be satisfied to avoid conflict with the establishment clause: First, the challenged government activity must have a secular legislative purpose; second, the principal or primary effect of the activity must be one that neither advances nor inhibits religion; and third, the activity must not foster an excessive government entanglement with religion. [Citation.]
"Under the first criterion, inquiry into the purpose of the challenged government action should be deferential and limited. If the government articulates a plausible secular purpose, this should be accepted absent a contrary showing by the challenger. [Citation.] Whereas the first criterion of the Lemon test involves a determination whether the purpose behind the challenged action is to endorse or disapprove religion, the second or effect criterion `asks whether, irrespective of governments actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. [Citation.] Applying an objective standard, the question becomes whether the challenged action is sufficiently likely to be perceived by reasonable adherents of the controlling religion as an endorsement, or by reasonable nonadherents as a disapproval, of their individual religious choices. [Citation.] The third criterion of the Lemon test concerns entanglement with religion and contemplates a determination whether the state will be required to monitor the challenged government activity for its religious content in order to assure that it does not have the unintended effect of encouraging or discouraging religion. (Lemon, supra, 403 U.S. at p. 619.)" (Singh, supra, 114 Cal.App.4th at pp. 1286-1287.)
We do not interfere with First Assemblys constitutional rights regarding religion if we simply require that it follow the procedures contained in its governing documents based on the application of neutral principles of law. (Concord Christian Center v. Open Bible Standard Churches (2005) 132 Cal.App.4th 1396, 1408 (Concord Christian Center).) We discussed the development of this neutral principles doctrine at great length in Singh, supra, 114 Cal.App.4th at pages 1275-1281, and we concluded that, as stated in an earlier appellate opinion, " ` "[A]s long as the court does not have to resolve the doctrinal propriety [of a churchs action] in order to determine who has legal control of the property, there is no unconstitutional intervention by the state in church affairs." " (Id. at p. 1281, quoting In re Metropolitan Baptist Church of Richmond, Inc. (1975) 48 Cal.App.3d 850, 858-859.)
Our states Supreme Court recently reviewed a church dispute and made it clear that this neutral principles approach is the proper one. The court held that "[s]tate courts must not decide questions of religious doctrine; those are for the church to resolve. Accordingly, if resolution of the property dispute involves a doctrinal dispute, the court must defer to the position of the highest ecclesiastical authority that has decided the doctrinal point. But to the extent the court can resolve the property dispute without reference to church doctrine, it should use what the United States Supreme Court has called the ` "neutral principles of law" approach. [Citation.] The court should consider sources such as the deeds to the property in dispute, the local churchs articles of incorporation, the general churchs constitution, canons, and rules, and relevant statutes, including statutes specifically concerning religious property, such as Corporations Code section 9142." (Episcopal Church Cases, supra, 45 Cal.4th at p. 473.)
Similarly, in Jones v. Wolf (1979) 443 U.S. 595, which also involved a church property dispute, the United States Supreme Court explained that " ` the First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes. [Citation.] Most importantly, the First Amendment prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice. [Citations.] As a corollary to this commandment, the Amendment requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization." (Id. at p. 602.) The court went on to state that, "[s]ubject to these limitations, however, the First Amendment does not dictate that a State must follow a particular method of resolving church property disputes. Indeed, `a State may adopt any one of various approaches for settling church property disputes so long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith. " (Ibid.) The court further cautioned that, in examining religious documents, such as a church constitution to resolve a property dispute, a court "must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts." (Id. at p. 604.)
Our own Supreme Court long ago stated that "[t]he general rule that courts will not interfere in religious societies with reference to ecclesiastical practices stems from the separation of church and state, but has always been qualified by the rule that civil and property rights would be adjudicated." (Rosicrucian Fellow. v. Rosicrucian etc. Ch. (1952) 39 Cal.2d 121, 131.) "Ecclesiastical matters include in the main, creeds and proper modes of exercising ones belief. While the principle that courts will not purport to exercise ecclesiastical jurisdiction is settled as an abstract proposition, they will determine civil and property rights which depend essentially on the contracts of the parties as evinced by rules, regulations, practices and customs accepted and followed." (Ibid.) "Clearly, courts cannot intrude into a religious organizations determination of religious or ecclesiastical matters such as theological doctrine, church discipline, or the conformity of members to standards of faith and morality. . . . `Ecclesiastical matters include in the main, creeds and proper modes of exercising ones belief. " (Singh, supra, 114 Cal.App.4th at p. 1275.)
This court relied on the "neutral principles" doctrine in Singh, supra, 114 Cal.App.4th 1264, to determine whether the corporate bylaws of a church were being observed in the selection of directors. We noted in Singh that our Supreme Court previously had held in Providence Baptist Church v. Superior Ct. (1952) 40 Cal.2d 55 (Providence ), that " `where a religious society has no tribunal but the congregation, a court may determine whether the meeting at which a pastor was removed was properly conducted according to the usage, contracts and rules of the society, or according to pertinent principles of law where civil and property rights, such as the emoluments of the property rights, are involved, and that in so doing the court is not interfering with any ecclesiastical function. " (Singh, at p. 1277, quoting Providence, supra, at pp. 61-62.)
B. Standards of Review
The interpretation of corporate documents, such as bylaws and corporate constitutions, is a matter of legal interpretation and, therefore, subject to our de novo review. Such documents "are to be construed according to the general rules governing the construction of statutes and contracts." (American Center for Education, Inc. v. Cavnar (1972) 26 Cal.App.3d 26, 32.)
We are unaware of a case discussing the standard of review for findings made in a hearing conducted pursuant to Corporations Code section 9418. We generally review factual findings in support of a ruling or judgment pursuant to a substantial evidence standard of review as well, and "must consider all the evidence in the light most favorable to the prevailing parties, giving them the benefit of every reasonable inference, and resolving conflicts in support of the judgment." (Concord Christian Center, supra, 132 Cal.App.4th at pp. 1408-1409.)
"We review an order granting a preliminary injunction, under an abuse of discretion standard, to determine whether the trial court abused its discretion in evaluating the two interrelated factors pertinent to issuance of a preliminary injunction—(1) the likelihood that the plaintiffs will prevail on the merits at trial, and (2) the interim harm that the plaintiffs are likely to sustain if the injunction were denied as compared to the harm the defendant is likely to suffer if the preliminary injunction were issued. [Citation.] Abuse of discretion as to either factor warrants reversal." (Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1299.) Furthermore, " `[i]n determining the validity of the injunction, we look at the evidence presented to the trial court to determine if there was substantial support for the trial courts determination that the plaintiff was entitled to the relief granted. [Citation.] `Where the evidence before the trial court was in conflict, we do not reweigh it or determine the credibility of witnesses on appeal. "[T]he trial court is the judge of the credibility of the affidavits filed in support of the application for preliminary injunction and it is that courts province to resolve conflicts." [Citation.] Our task is to ensure that the trial courts factual determinations, whether express or implied, are supported by substantial evidence. [Citation.] Thus, we interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial courts order. " (Id. at p. 1300.)
II. The Courts Factual Findings
A. The Trial Courts Congregational Church Finding
First Assembly contends that the court improperly found it to be a "congregational" church. We disagree.
In its supplemental briefing, First Assembly argues that whether or not it is a congregational church is not necessarily relevant under the neutral principles approach embraced by our Supreme Court in Episcopal Church Cases, supra, 45 Cal.4th 467. However, it maintains that its polity is relevant "for the limited purpose of engagement of the ecclesiastical rule of judicial deference (that is, for the limiting purpose of ascertaining its ecclesiastical authority). Thus, here, the courts must defer to the Fellowships board of directors who have spoken on all relevant ecclesiastical matters." Since First Assemblys deference argument is a major issue of this appeal, we address the parties arguments regarding First Assemblys polity.
After the parties agreed at hearing that First Assembly was a "sovereign" church, the court found that First Assembly "is a religious nonprofit corporation, is a congregational, sovereign church and a cooperative unit of the Affiliated Assembly of the Northern California and Nevada District Council of Assemblies of God."
First Assembly argues on appeal that it is "a fully sovereign and autonomous local assembly fellowship within a larger cooperative fellowship body having district and national organizations with service functions." As a result, its "tenets of faith must be the same as that espoused at the national organization" as indicated by its articles of incorporation. First Assembly further argues that its "constitution and bylaws set up the polity and structure of [First Assembly] as a cooperative fellowship unit. In short, the constitution and bylaws set up a corporation to be run by a board of directors, chaired by a senior pastor and with officers, which board is the decision-making authority and dispute resolution tribunal for [First Assembly] (except in the two limited instances . . . where the voting members act as such)." It contends that "[u]nder its governing documents, [First Assemblys] board is its ecclesiastical tribunal and authority as to employment and membership matters whose decisions are entitled to respect by our courts."
Respondents argue that First Assembly has waived this argument by failing to first raise it to the trial court, admitted to the trial court that it was a congregational church, and is in fact a congregational church.
1. Judicial Notice
First Assembly relies in part on a single-page document, which First Assembly represents is the page of the website for the General Council of the Assemblies of God, and requests that we take judicial notice of it. The document does not come under the Evidence Code sections 452, subdivision (h), and section 459, subdivision (a), the provisions that First Assembly relied upon in its request. It is not properly authenticated, having been submitted upon information and belief only. First Assemblys contention to the contrary, it seeks judicial notice of the truth of the documents content. It argues the documents representation of organizational structure is "completely consistent" with First Assemblys statements about its polity contained in the record. The argument has no meaning unless the documents contents are accurate. Therefore, we deny First Assemblys request for judicial notice.
2. Waiver
First Assembly has waived a part of its appellate claim by insisting to the court below that, although it was a sovereign church, its Board retained significant powers to make decisions. Some of its appellate argument is consistent with that argument and, therefore, is not waived.
To the extent that First Assembly argues for the first time on appeal that it is not a "congregational" church because, as an Assemblies of God fellowship, it is required to follow certain religious tenets of the Assemblies of God, it has waived this argument by not first raising it below. First Assembly argues that it had no reason to discuss these requirements because the superior court did not raise the issue of its polity, i.e., that it was congregational in nature, until its written order. However, it represented to the superior court that it was a "sovereign" church, and went so far as to argue at hearing that, as such, it could not be compelled to participate in a district council arbitration. First Assembly thereby raised the issue of its relationship with the Assemblies of God. It should have made all arguments about the effect of that relationship at that time, but did not. Accordingly, First Assembly has waived its Assemblies of God "fellowship" argument on appeal. (See, e.g., Estate of Westerman (1968) 68 Cal.2d 267, 279.)
3. The Merits
a. The "Fellowship" Argument
First Assembly first argues that it is not a "congregational" church because its governing documents establish that it "is a cooperative unit (fellowship assembly) affiliated with a district within the `General Council of the Assemblies of God. "
"[A] congregational church . . . is one `strictly independent of other ecclesiastical associations, and [one that] so far as church government is concerned, owes no fealty or obligation to any higher authority. " (Concord Christian Center, supra, 132 Cal.App.4th at p. 1409.) In other words, a "congregational" church is one "governed solely by itself." (Iglesia Evangelica Latina, Inc. v. Southern Pacific Latin American Dist. of the Assemblies of God (2009) 173 Cal.App.4th 420, 434.)
First Assemblys "fellowship" argument does not establish that its affiliation with Assemblies of God affects its ability to govern itself. In fact, we do not see the relevance of its "fellowship" argument in light of its own acknowledgement to the trial court that it is a sovereign church. Indeed, its characterization is not meaningfully different from the courts own finding, since the court found not only that it is a congregational church, but also that it is a cooperative unit of the Affiliated Assembly of the Northern California and Nevada District Council of Assemblies of God.
First Assembly argues that its "articles of incorporation leave no doubt that [First Assembly] is a cooperative unit (fellowship assembly) affiliated with a district within the `General Council of the Assemblies of God. " The articles of incorporation, as amended, state that one of the two specific and primary purposes of First Assembly is "[t]o function as a local Assembly of God in harmony with the Constitution and Bylaws of the General Council of the Assemblies of God, Springfield, Missouri, and the Assemblies of God, Northern California and Nevada District Council, Inc., Santa Cruz, California." They also provide that the corporation has the right to use the name "Assembly of God" or "Assemblies of God" "only so long as it shall be a cooperative unit" of the district council. Furthermore, the articles include a provision which provides for the distribution of assets upon winding up to the district council, provided that it exists and has a tax-exempt status.
This argument raises a false issue. If First Assembly is such a cooperative unit, its affiliation with Assemblies of God does not alter its independent nature or interfere with its governance. First Assemblys constitution makes this independent status clear. It states in the preamble: "We, whose name appear upon the assembly roster under the above date [September, 2001], do hereby recognize ourselves as a local assembly governed by these bylaws only." (Italics added.) Therefore, we reject First Assemblys "fellowship" argument as any basis to find error in the courts order.
Also, First Assemblys argument suggests a misunderstanding of our standard of review. It argues that there was "substantial evidence, in toto (as seen in the articles of incorporation as amended, the constitution, the bylaws, and the transcript of the hearing) that it is neither a hierarchical or a congregational type of church and has the polity described." Of course, as we have discussed, we conduct a de novo review of the text of the governing documents and, to the extent we consider extrinsic evidence, we determine whether substantial evidence supports the trial courts ruling, not First Assemblys argument. Also, arguments made at the hearing are not evidence, although we have reviewed them.
b. The "Board" Argument
First Assembly also objects to the superior courts "congregational" finding based on the argument that its Board, not the membership, is in charge of the church. First Assembly goes so far as to argue that its Board in effect acts as an "ecclesiastical tribunal" to which we must afford judicial deference on matters of polity, membership, and with regard to the Boards interpretations of its own governing documents pursuant to Serbian Orthodox Diocese v. Milivojevich (1976) 426 U.S. 696, 714 (Serbian).) We do not agree.
First Assemblys constitution and bylaws indicate clearly that First Assemblys members, not its Board, ultimately govern the church, establishing its congregational nature. The membership must approve virtually every major decision regarding First Assemblys property, directors, pastor, membership, and governance. Its constitutions preamble states that the assembly members enacting the constitution "do hereby recognize ourselves as a local assembly governed by these bylaws only." (Italics added.) Furthermore, article II, section 1 of First Assemblys constitution provides, "This assembly shall have the right to govern itself according o the standards of the New Testament scriptures . . . ." (Italics added.) First Assemblys constitution provides that the assembly "shall have the right to issue certificates of license and ordination to any qualified minister working at [First Assembly] or any extension ministry thereof" (art. II, § 4); elects First Assemblys officers at its annual business meeting (art. VI, § 2); may call for special meetings by petition signed by one-third of the membership, subject to certain notice requirements (art. VI, § 2); owns and holds all property of the assembly in its corporate name, which cannot be sold, leased, mortgaged or otherwise disposed of without the assemblys recommendation by a two-thirds vote (art. IX); and may amend or change the constitution by a two-thirds vote (art. X).
Similarly, First Assemblys bylaws provide that the assembly, by a two-thirds vote, elects the churchs pastor. (Art. II, § 1.) The assembly must confirm, also by two-thirds vote, any Board removal of a senior pastor who has serious charges preferred against him or whose ministry has ceased to be effective. (Art. II, § 5(B).) Any incumbent under charges must have the opportunity for a fair and impartial hearing of his case before the assembly if he so desires. (Art. II, § 5(D).) In the case of a directors removal or resignation, the Board has the power to appoint someone to fill that office only until the next annual business meeting of the assembly, at which time the assembly elects someone to fill the unexpired term. (Art. II, § 5(E).) Any member removed from the list of active members for cause may, if their appeal to the Board is not granted, appeal to the congregation directly, which determines the members status by a majority vote. (Art. III, § 5.) The bylaws themselves are amended by a majority vote of the membership. (Art. IX.)
The First Assembly Board has significant powers. According to the constitution, the Board acts as the "the custodians of all the church property and shall also act as the arbitration committee for unresolved disputes submitted to them." (Art. V, § 2.) It sets the time and place for the assemblys annual business meeting (art. VI, § 2); may call for a special meeting of the membership (art. VI, § 3); meets monthly to conduct "the routine business for the assembly" (art. VI, § 5); and must authorize any new employment positions and all proposed employee terminations (art. XI, § 1).
First Assembly argues that this provision establishes that the Board determines property matters, and that "[t]here is nothing in the governing documents to suggest that the Board is required to present its decisions on such matter [sic] for a confirming or other vote to the members." As we have already indicated, article IX of First Assemblys constitution states that "[a]ll property of the assembly shall be deeded to the assembly and held in its corporate name. No property of the assembly shall be sold, leased, or mortgaged or otherwise disposed of without the same have [sic] first been recommended by a vote of at least two-thirds (2/3) of the voting membership who are in attendance at a regular meeting or a special meeting of the assembly which has been called for the consideration of the proposal. (Italics added.) This clear language mandates that the assembly must recommend any disposition of First Assembly property by a two-thirds vote before the disposition can take place. First Assemblys position to the contrary is unsupportable based on this clear language.
According to First Assemblys bylaws, the Board acts in the examination of applicants for membership, in the administration of the discipline of the assembly (art. I, § 2), and nominates pastor candidates for the assemblys consideration. (Art. II, § 1.) It may ask for the resignation of the pastor in the event that there are serious charges preferred against him or his ministry has ceased to be effective, its determination will result in the pastorate being considered vacant if the membership confirms it (art. II, § 5(B)), and it may arrange for an interim pastor and interim Board members. (Art. II, § 5(B), (D).) The Board renders final decisions about persons applying for membership. (Art. III, § 2.) The Board, along with the pastor, subject to a members right to appeal to the assembly as we have discussed, is "authorized to revise the membership roll of the assembly semi-annually, and to remove from the list of active members all names of those may who have withdrawn from the fellowship or who may have fallen into sin and whose lives may have become inconsistent with the standards and teachings of the assembly." (Art. III, § 5.)
Furthermore, as First Assembly emphasizes, the Board is authorized by First Assemblys constitution to sit as an arbitration committee regarding certain disputes. Article IV, section 2 of its constitution states in full: "There shall be a Board of Directors of five (5) or more members who shall qualify for the office according to the laws of the state. They shall be the custodians of all the church property and shall also act as the arbitration committee for unresolved disputes submitted to them. After hearing both sides of a dispute, they shall decide by majority vote the disposition of the matter. Such decision shall be final and binding on all parties. Any disputes between members or between members and the church or schools shall be submitted to said committee for final resolution."
Although these board powers are significant, we reject First Assemblys arguments that the Board governs the church, and constitutes an ecclesiastical tribunal to which we must defer on such matters such as polity and membership. Recently, the Fourth District summarized the deference we must afford to such a tribunal in New v. Kroeger (2008) 167 Cal.App.4th 800:
"The restriction on civil courts interfering with internal matters of religious institutions is most severe in what are known as `hierarchical churches, such as the Episcopal Church. `By definition, a hierarchical church is one in which individual churches are "organized as a body with other churches having similar faith and doctrine[, and] with a common ruling convocation or ecclesiastical head" vested with ultimate ecclesiastical authority over the individual congregations and members of the entire organized church. [Citations.] It has long been established that in such a hierarchical church, an individual local congregation that affiliates with the national church body becomes `a member of a much larger and more important religious organization, . . . under its government and control, and . . . bound by its orders and judgments. [Citations.] In contrast, a congregational church is defined as one `strictly independent of other ecclesiastical associations, and [one that] so far as church government is concerned, owes no fealty or obligation to any higher authority. " (Concord Christian Center, supra, 132 Cal.App.4th at p. 1409.)
"The United States Supreme Court has held that in the case of hierarchical religious entities . . . the civil courts must accept as binding and defer to decisions by religious tribunals with respect to religious doctrine, practice, faith, ecclesiastical rule, discipline, custom, law, and religious entity governance and administration." (New v. Kroeger, supra, 167 Cal.App.4th at p. 816.)
The New v. Kroeger court further explained: "More recently, in Serbian, supra, 426 U.S. at page 709, the court explained the jurisdiction of civil courts over disputes within religious organizations in this manner: `[W]here resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them. " (New v. Kroeger, supra, 167 Cal.App.4th at p. 817.)
As First Assembly points out in its supplemental briefing to this court, our Supreme Court adopted the neutral principles approach, rather than the "principles of government" approach, for the resolution of church property disputes in Episcopal Church Cases, supra, 45 Cal.4th 467, arguably making the question of polity irrelevant to the resolution of such disputes. Furthermore, we observed in Singh that, "no matter whether the religious organization is hierarchical or congregational, it is clear that the decisions of the highest religious tribunal on questions of discipline, faith, or ecclesiastical rule, custom, or law must be accepted." (Singh, supra, 114 Cal.App.4th at p. 1280.) Nonetheless, the discussion we quote from New v. Kroeger, supra, 167 Cal.App.4th at page 816, indicates that for a body to serve as an ecclesiastical tribunal, it must be " `vested with ultimate ecclesiastical authority over . . . members of the entire organized church. " (Id. at p. 815.)
It is clear that First Assemblys Board is not an ecclesiastical tribunal as argued by First Assembly for several reasons. First, as we have discussed, the congregation ultimately has control over First Assembly, including over the Board, as indicated by its preamble, its powers to elect directors and a pastor, and its penultimate authority to change its constitution and bylaws, among other things. As we have previously observed, where the question presented is whether certain matters are "`being handled in accordance with the bylaws and rules of the church corporation or such bylaws and rules are being properly observed by the governing body of the church, those aggrieved may seek redress through court action. " (Singh, supra, 114 Cal.App.4th at pp. 1277-1278.)
Second, First Assemblys governing documents indicate that the Board is not intended to control ecclesiastical matters. To the contrary, article I, section 2 of its bylaws merely authorize the Board to act "in an advisory capacity" to the pastor "in all matters pertaining to the assembly in its spiritual life and in the ministry of its ordinances." The pastor is ultimately accountable to the assembly, via the assemblys election and removal powers.
Third, while the Board does have arbitration powers as stated in article V, section 2 of First Assemblys constitution, the assembly established these powers in its governing documents, and may take that power away. In any event, these arbitration powers are irrelevant because First Assembly has never argued that the Board ever conducted any review, or made any determinations, as an arbitration committee relevant to this dispute. Article V, section 2 requires that the Board determine arbitration matters only "[a]fter hearing both sides of a dispute." The record is devoid of any such proceedings. Therefore, these arbitration powers have never been invoked in this dispute.
Furthermore, "it is a rule of statutory interpretation that a specific statute shall take precedence over a more general one touching on the same subject." (Santa Clara Valley Transportation Authority v. Rea (2006) 140 Cal.App.4th 1303, 1318.) Therefore, First Assembly cannot maintain that the Boards arbitration powers override the more specific provisions in the constitution and bylaws, such as the provisions indicating that it does not generally have ecclesiastical authority and that a person may appeal to the assembly any Board decision to take away that persons membership. Certainly, on the issue of membership, it is the assembly, not the Board, which makes the ultimate determination. Therefore, the Board is not an ecclesiastical tribunal regarding membership questions.
Fourth, contrary to the implication of First Assemblys argument, we do not need to defer to its interpretation of its governing documents pursuant to Serbian, supra, 426 U.S. at page 714, unless the provisions involve religious doctrine and the like. (Ibid.)
In short, none of the Boards powers takes priority over the assemblys ultimate authority over First Assembly. The assembly ultimately must determine First Assemblys leadership, recommend the disposition of First Assemblys property, and decide the membership status of persons appealing to it. The assemblys approval is necessary for virtually every major First Assembly decision, and it alone can change First Assemblys governing documents. Therefore, First Assembly is a "congregational" church, and "sovereign" as both parties have agreed.
B. Control of First Assemblys Destiny
First Assembly also argues that, given that it is not a congregational church and that its Board, as opposed to its members, is charged with making the most important decisions for First Assembly, the trial courts finding that "[v]oting members in good standing have the ultimate right to determine the future destiny of Church" is not true. This too is incorrect.
We reject First Assemblys characterizations about its Boards authority and find that First Assembly is a congregational church. Also, First Assembly neglects to quote the trial courts entire "future destiny" finding. That is, the court found that First Assemblys voting members have the ultimate right to determine the churchs future destiny "by vote at noticed annual or special meetings in accordance with the governing documents, although day to day decisions are made by the Board, officers, and Senior Pastor and in compliance with the governing documents." Thus, the court tied its finding to First Assemblys governing documents, and acknowledged that the Board, officers, and pastor also had certain decision-making authority.
First Assembly also argues that the voting members cannot change the tenets of faith to which First Assembly subscribes, "nor . . . do they have the unfettered right to usurp the decision-making powers of [First Assemblys] board of directors under [First Assemblys] constitution and bylaws." First Assembly does not explain this argument in this portion of its brief, but presumably it is referring to its contention that First Assembly must comply with the tenets of the General Council of the Assemblies of God. First Assembly does not establish the merits of this argument, since we see no reason based on the record before us why First Assemblys membership could not choose to disaffiliate from Assemblies of God. Furthermore, First Assemblys governing documents indicate it is a congregational church with the assembly, rather than the Board, ultimately in charge.
In short, First Assembly does not establish that the court erred in its "future destiny" finding. As we discuss post, we do not agree, however, with all of the courts rulings regarding the agenda that the court ordered be followed in the mandated annual/special meeting.
C. The Combs Respondents Membership Status and Standing to Sue
First Assembly argues that the superior court erred when it found that "[n]o action was taken on [the Combs respondents] church membership status, the specific procedure for which is set forth in the Bylaws, Article III, Sec. 5. Thus, they remain members of the church." First Assembly contends that the Combs respondents "disaffiliated" themselves by seeking to create a new church based on different religious tenets, as well as by their failure to live according to the religious tenets articulated in First Assemblys governing documents. As non-members, First Assembly argues, the court should have found that they had no standing to file their cross-complaint. This is also incorrect.
First Assembly does not contend that Hanohano or its Board revised the membership roll, or removed from the list of active members the names of the Combs respondents. Instead, First Assembly argues that the Combs respondents lost their membership as a result of Board action on December 4, 2008; "disaffiliated" themselves by their efforts to start a new church that followed different religious tenets than those followed by First Assembly; and were "automatically" disaffiliated by their failure to live by the religious tenets outlined in First Assemblys governing documents, as interpreted by the Board. We discuss these arguments one at a time.
1. No Board Action Taken Regarding Membership Status
First Assembly argues that the Combs respondents lost their membership because they "were terminated on December 4, 2008 and told to remove their belongings from Bridgeway Church within 24 hours and thereby disfellowshipped at that time." We find that substantial evidence supports the courts finding that First Assembly took no action with regard to the Combs respondents membership status.
As supporting evidence for its view that the Board acted to remove the Combs respondents from membership, First Assembly cites to the allegations of its own complaint, its own memorandum of points and authorities in support of its ex parte application, and the December 4, 2007, Board minutes. This evidence is unpersuasive. First Assemblys complaint is verified by Hanohano and Bronaugh on the basis of their information and belief only, which is not competent evidence. (See, e.g., Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1498 ["[a]n averment on information and belief is inadmissible at trial, and thus cannot show a probability of prevailing on the claim"].) Its cited memorandum, while argument, refers to what appears to be the declarations of Hanohano, Bronaugh, and/or Marquardt. Each recounts in virtually identical language that on December 4, 2007, the Board "passed a unanimous resolution terminating the employment" of Tim Combs as interim pastor; terminated Kyah Combss "employment as worship leader at the Bridgeway facility, having been appointed to that position starting on or about November 1, 2007," and directed both "to remove their belongings from plaintiffs property within 24 hours with Board supervision." The December 4, 2007 meeting minutes similarly state that the Combs respondents were "advised that their presence on either Lighthouse or Bridgeway properties after that time would be considered trespassing and they would be subject to arrest." None of this evidence indicates that the Board ever considered, or made any determinations, about the Combs respondents membership status. Therefore, the trial court did not err by not concluding that the Combs respondents lost their membership as a result of Board action on December 4, 2007.
2. No Disaffiliation
First Assembly also contends that the Combs respondents "subscribe to tenets of faith different from those of [First Assembly]" and engaged in actions that "disaffiliated" themselves from First Assembly. To the extent First Assembly contends that the court should have found that the Combs respondents acted to disaffiliate themselves from First Assembly, we disagree.
Along with the standards of review we have discussed ante, generally courts review factual findings related to standing questions pursuant to a substantial evidence standard of review. (E.g., Berclain America Latina v. Baan Co. (1999) 74 Cal.App.4th 401, 404-405.)
In this sub-part, we merely discuss the facts related to the contention that the Combs respondents acted to disaffiliated themselves from First Assembly, not that they purportedly engaged in conduct that violated First Assemblys religious tenets.
First Assembly does not base its argument on any specific Board determinations that the Combs respondents disaffiliated themselves from membership in First Assembly. Instead, it refers to the purported differences between First Assemblys tenets of faith and those listed on pages from respondent Bridgeway corporations website that Hanohano submitted below via declaration, and contentions First Assembly made below that the Combs respondents disaffiliated themselves by creating their own non-denominational church that was not affiliated with Assemblies of God Church and had its own religious tenets. First Assembly argues that "[s]ince Tim and Kyah Combs preach a set of tenets of faith different from that of [First Assembly] this is an endorsement of the religion practiced and preached by Tim and Kyah Combs and a disapproval of [First Assemblys] religion." First Assembly also cites to argument it made below that Tim Combs, by certain statements he made in an open letter to congregants, "undermined the basic charter of the church and has, in effect, disaffiliated himself from [First Assembly] and the Assemblies of God."
First Assemblys contentions do not establish that the trial court erred by failing to conclude that Tim Combs or Kyah Combs disaffiliated themselves from First Assembly. The Combs respondents insisted that they remained active members of First Assembly. They also continued to act consistent with the intent to continue to participate in First Assembly. Along with their filing of their cross complaint, they signed a sign-in sheet for the December 16, 2007 meeting, which was entitled the "Bridgeway and Lighthouse Churches Membership Roster," and participated in that meeting, the minutes of which stated that it was a business meeting of the "Bridgeway and Lighthouse Church." Tim Combs also indicated in the declaration he submitted in support of an application for an order to show cause regarding the Combs respondents cross-complaint, that First Assembly members had petitioned for a special business meeting, and elected a new board and him as pastor at the meeting itself.
In short, the superior court was provided with overwhelming evidence that the Combs respondents acted with the intention to continue their membership in First Assembly. The court did not commit error by not determining that they had "disaffiliated" themselves from the church.
3. No "Automatic" Loss of Membership Rights
First Assembly also argues that the trial court erred by failing to give effect to those provisions in its governing documents which provide for "the automatic loss of active voting membership when a person no longer practices a Christian lifestyle[.]" We again disagree.
As we have discussed, the trial court found that "[n]o action was taken on [the Combs respondents] membership status, the specific procedure for which is set forth in the Bylaws, Article III, Sec. 5. Thus, they remain members of the church."
According to First Assembly, the trial court erroneously interpreted article III, section 5. First Assembly argues that "[t]he membership roster . . . does not reflect who [First Assemblys] current voting members are except when it is periodically updated. Notice of loss of membership occurs upon such updates."
First Assembly further argues that the trial court, and presumably this court, "must defer to a religious organizations own interpretation and construction of its governing documents." It bases this argument on Serbian, supra, 426 U.S. 696, and quotes a passage from that opinion which states: "[I]t is the essence of religious faith that ecclesiastical decisions are reached and are to be accepted as matters of faith whether or not rational or measurable by objective criteria. Constitutional concepts of due process, involving secular notions of `fundamental fairness or impermissible objectives, are therefore hardly relevant to matters of ecclesiastical cognizance." (Id. at pp. 714-715, fn. omitted.) First Assembly concludes that, since it has asserted to the court that written notice follows loss of membership, but does not precede it, "the court cannot impose its belief of what is fair in terms of notice and timing of any such notice onto [First Assembly]."
This argument cannot be maintained. Serbians holding is limited to "ecclesiastical decisions of church tribunals." (Serbian, supra, 426 U.S. at p. 713.) First Assembly argues that its Board constitutes such a tribunal with regard to membership status issues but, as we have already discussed, we disagree with this characterization. We agree that we must defer to the Boards—and the assemblys—determinations about whether a person has failed to follow the religious standards required of First Assembly members. However, that does not mean that the court must defer to a boards interpretation of the procedures that it must follow pursuant to its bylaws and constitution. (See., e.g, Burnett v. Banks (1955) 130 Cal.App.2d 631, 636 [court had the power in view of the property right involved to review the validity of a church board of deacons removal of plaintiffs from membership in the corporation]; Corp. Code, § 9418, subd. (c) [courts may, "determine the validity of the issuance of memberships and the right of persons to vote"].)
Furthermore, the superior court, and this court, may consider and determine the procedures that must be followed to effect the loss of a First Assembly membership according to First Assemblys constitution and bylaws because these procedures do not implicate any ecclesiastical matters or questions of religious doctrine whatsoever, and may be determined by our application of neutral principles of law regarding the interpretation and construction of these documents. (See Episcopal Church Cases, supra, 45 Cal.4th at p. 473; Singh, supra, 114 Cal.App.4th at p. 1277; Providence, supra, 40 Cal.2d at pp. 61-62; Concord Christian Center, supra, 132 Cal.App.4th at p. 1408.)
Accordingly, First Assemblys deference argument has no merit.
First Assembly argues in various parts of its briefing to this court that the Combs respondents "automatically" lost their membership. It argues that, pursuant to article IV, section 2 of its constitution, "one can automatically (i.e., without revising the membership roster) fall out of active, voting membership." It argues that "[u]nder its governing documents, the [First Assembly] board is exclusively vested with that power to determine membership within [First Assembly], subject only to the right of the voting members to make a membership reinstatement decision when, and only when, a dismissed member who has had his/her name removed from the membership roll, appeals to the assembly to try to make his/her case for reinstatement as an active member." Their arguments suggest that the Combs respondents lost their membership simply because they did not fully subscribe "to the tenets of faith of the Assemblies of God to be and remain a member" of First Assembly, and "no longer met the membership requirements" of First Assembly. Consistent with this view, First Assembly asserts that the superior court "does not give full meaning to each provision of the governing documents concerning membership in that, e.g., it does not give effect to the automatic loss of active voting membership when a person no longer practices a Christian lifestyle[.]"
First Assembly relies on article IV, section 2, of its constitution for its automatic loss of active membership argument. It states: "Enrolled member who shall without good cause absent themselves from the services of the assembly, and who cease to contribute of their means to its support, who may be out of harmony with its teachings or its ministries, or who shall be under charges for misconduct, or who may have fallen under condemnation through sinful or worldly practices, shall be considered as inactive members and shall lose their voting privileges until they are restored to the fellowship, their standing to be settled by the definite action of the assembly through its elected officers. " While this provision does not spell out particular procedures to be followed in the event that enrolled members engage in conduct such that they "shall be considered inactive members," First Assemblys bylaws do. Article III, section 3 states:
"Any member of the assembly who shall willfully absent himself from the regular services for a period of three consecutive months, or who shall be under charges, shall be temporarily suspended from active voting membership pending investigation and final decision of his case.
"Unscriptural conduct of doctrinal departure from the tenets of faith held by this assembly shall be considered sufficient grounds upon which any person, may be disqualified as a member. [Biblical citations.]"
Article III, section 5 further provides: "The Pastor and the Board of Directors shall be authorized to revise the membership roll of the assembly semi-annually, and to remove from the list of active members all names of those who may have withdrawn from the fellowship or who may have fallen into sin and whose lives may have become inconsistent with the standards and teachings of the assembly. If a name is removed for cause, the one whose name is removed shall be notified of the action of the Pastor and the Board of Directors through the Secretary. If appeal is made to the Board of Directors for reconsideration of their action and reinstatement is not granted, the dismissed member may appeal to the congregation. The action of the Assembly, by a majority vote, shall be considered final. [Biblical citations.]"
These bylaw provisions each and together indicate that people cannot "automatically" lose their membership without action regarding this membership status being taken by the Board and, in certain circumstances, by their congregation. The provisions contain references to persons being "suspended" "pending investigation and final decision of their cases," to possibly being "disqualified," to their "removal from the list of active members," and to their right of appeal to the Board for "reconsideration of their action" and, if reinstatement is not granted, to their right to "appeal to the congregation" for a "final" vote. These references make clear that there is no "automatic" loss of membership in the absence of affirmative action. We decline to further analyze these procedures, as no actions regarding membership are before us.
As we have discussed, the record is devoid of any indication that the Board, or anyone else, took any action regarding the Combs respondents membership status.
In short, we conclude that the Combs respondents did not lose their membership automatically, or otherwise. Accordingly, the trial court did not err when it did not find that the Combs respondents lacked standing to pursue their cross-complaint.
First Assembly also argues that the trial court erred by referring to article III, section 5 of the bylaws, thereby suggesting that a person cannot lose their membership before receiving notice that their name has been removed from the membership roster. The trial court did not make this specific finding, however, simply referring correctly to the fact that no action was taken pursuant to this provision. The exact workings of article III, section 5 are not before us in the absence of any action by the First Assembly Board about the membership status of the Combs respondents.
We also express no opinion regarding whether or not the Combs respondents are or are not practicing a Christian lifestyle according to First Assemblys religious tenets.
III. The Trial Courts Mandates
First Assembly challenges seven "mandates" in the trial courts order, which ordered that Tim Combs and the board elected at the December 16, 2007 special meeting, have responsibility and oversight over strictly religious activities of Bridgeway Church; that First Assembly pay salaries to the Combs respondents; that a special membership meeting be held to render a decision about reemploying the Combs respondents; that members decide at this meeting whether or not to divide First Assemblys two campuses into separate, sovereign churches; that if the members vote to divide the campuses, they then vote for a board of directors for the separate Bridgeway church, with nominations coming from the floor; that if the members vote to divide the campuses, they vote for a senior pastor for the Bridgeway church; and that any dispute at this meeting about the validity of any voting individuals church membership be submitted to a special master, who may refer membership disputes involving religious issues to Braddy for resolution.
First Assembly complains that these seven mandates violate the federal and state constitutional protections for the establishment of religion and free exercise of religion. It relies heavily on its view that these mandates violate the three-part test regarding government action and the establishment clause set forth in Lemon, supra, 403 U.S. 602. First Assembly argues in the alternative that the trial court abused its discretion and exceeded its statutory authority in issuing the seven mandates. We reject First Assemblys constitutional arguments, except with regard to the courts order that religious questions about membership should be finally determined by Braddy, although we see no reason why he could not act with the parties consent as a mediator with regard to such issues.
We agree, however, that the courts mandates were abuses of discretion and in excess of its authority, and must be vacated on that basis. The court did not state the precise legal authority for any of the mandates. Under the right circumstances, the court could have issued orders similar to those it issued, such as an order that a special meeting of the membership required by First Assemblys governing documents take place, pursuant to its broad equitable powers, which were invoked by First Assemblys request for a preliminary injunction, and/or its authority pursuant to Corporations Code section 9418. It has been said, for example, that "the object of equity is to do right and justice" without being "confined by the rigid rules of law." (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 770-771.) Thus, "a court of equity, having once acquired jurisdiction, will adjust all the differences between the parties arising from the cause of action in order to do complete justice and prevent further litigation, whether or not the particular relief was requested." (Sears v. Rule (1945) 27 Cal.2d 131, 149 [affirming the award of money judgments based on issues that were not raised in the pleadings].)
Similarly, Corporations Code section 9418 provides courts with the authority to "determine the person entitled to the office of director or may order a new election to be held or appointment to be made, may determine the validity of the issuance of memberships and the right of persons to vote and may direct such other relief as may be just and proper." (Corp. Code, § 9418, subd. (c))
Nonetheless, the court erred in issuing the seven mandates because there was no factual or legal support for them under the circumstances before it.
A. Abuse of Discretion and Lack of Authority
In its order, the court attempted to fashion a solution to the dispute between the parties. The order appears to result from the courts misconstruction of, and indecision about, the validity of the elections of Tim Combs as pastor and of a new First Assembly board at the December 16, 2007 meeting. In addition, the court placed considerable emphasis in its order on the Boards September 2007 decision to separate the Bridgeway and Lighthouse campuses into two different cost centers, write new bylaws to allow executive pastors at each location, and track results for two years. The court should not have relied on these matters for its mandates. In doing so, it abused its discretion (Denham v. Superior Court (1970) 2 Cal.3d 557, 566) and, to the extent it relied on its authority pursuant to Corporations Code section 9418, exceeded that authority.
1. The December 16, 2007 Meeting
The court stated in its order: "Apparently, a significant number of voting members of [First Assembly] wish to separate the two campuses, attend services and engage in other religious activities at the Antioch campus, with defendant Timothy Combs as their Pastor and under his leadership and that of the board which was `selected on 12/16/07." (Fn. omitted.)
On this basis, the court ordered its first two mandates, providing that Tim Combs and the board "selected" on December 16, be in control of the religious activities on the Antioch campus, which the court stated was to "act independently as to ministry and religious activities" on a temporary basis until the special/annual membership meeting, and that Tim and Kyah Combs be compensated for their work at the Bridgeway Church.
The courts statement indicates it misconstrued the purpose of the December 16 meeting and elections. As respondents acknowledge, the "actions taken by those present at the special meeting of December 16, [2007] were intended to be taken with regard to the entire church, and were not actions of several wishing to secede from [First Assembly]." As we have discussed, the membership sign-in sheet for the meeting and its minutes establish that this was the case. Therefore, the court had no basis for issuing mandates because it was unsure about the validity of elections that it thought were intended to create a new church at the Antioch campus.
Furthermore, the court erred by not finding that these elections, whatever their purpose, were invalid. They indisputably did not comply with First Assemblys governing documents. The trial court made three statements about the meeting in its written order. On the one hand, the court stated in a footnote that "[a]pparently, this meeting was not noticed and held in accordance with Article II, Sec. 2 of the By-Laws and if not, actions taken would not be valid." It also stated that "[t]he `election on 12/16/07 does not appear to comply with [First Assemblys] governing documents." On the other hand, the court stated that "[t]he court does not have sufficient evidence to determine the validity or invalidity of the 12/16/07 meeting and actions taken." The last statement cannot be maintained. The undisputed facts are clear: at a minimum, the December 16, 2007 meeting was improperly noticed and, therefore, its elections were invalid.
Specifically, article VI, section 3 of First Assemblys constitution provides that special business meetings of the assembly may be called by petition having been signed by not less than one-third of the active membership of the assembly, with the petition placed in the hands of the pastor or secretary and an announcement made on the two Sundays prior to the date of the meeting. The undisputed evidence offered by respondents makes clear that these procedural requirements were not met. Respondents, via a declaration from Tim Combs, asserted that a third of the church members signed the petition. However, the petition attached to his declaration did not refer to a special meeting of the First Assembly membership. Instead, it declared that Tim Combs was the pastor of the undersigned, and referred to a meeting at the Bridgeway Church without explanation of the meetings scope or purpose. The evidence indicates that the petition was not properly delivered to First Assemblys pastor or secretary either, as Tim Combs represented that it was merely placed in his hands, although he held neither of these positions at the time, his employment as pastor having been previously terminated by the Board on December 4, 2007. Based on these undisputed facts, the court should have found that the December 16, 2007 meeting was not properly organized and the elections were not valid. The courts finding that it could not determine whether or not the meeting was valid is not supported by any evidence, and must be reversed.
We also have serious questions about the notice procedures described by Tim Combs in his declaration, which he vaguely describes as giving notice to the membership of a "special meeting." The only specific proof of such announcements offered by respondents was a written notice attached to Tim Combss declaration, which he declared had been posted on the two campuses. The notice referred to a special meeting at the "Bridgeway Church" and stated that "your attendance is key to the future of the Bridgeway Church." Such notice is insufficient for several reasons. First, the constitution calls for "announcements" to be made "on" the two Sundays prior to the special meeting to the assembly. Second, the posted notices indicated only that there was a special meeting regarding the Bridgeway Church, suggesting the meeting would only address matters specific to the campus, and not to the entire First Assembly membership. We need not find that the notice procedures employed by Tim Combs were inadequate to conclude that the December 16, 2007 meeting was not properly organized. Therefore, we do not address these issues further.
Accordingly, while the Combs respondents remained members of the church, the December 16, 2007 meeting did not provide them with any viable legal claim of employment, or of authority over religious affairs at the Bridgeway Church. The December 16 meeting also did not provide any basis for the court to require that the members hold a special/annual meeting in order to vote to create a separate church.
As we have discussed, Tim Combss employment as pastor was terminated by the Board on December 4, 2007. First Assembly argues that in any event, Combs was not qualified to be a pastor at First Assembly. We express no view on his qualifications.
2. The September 2007 Board Resolution
In its order, the trial court also improperly placed considerable emphasis on the Boards September 2007 decision to separate the Bridgeway and Lighthouse campuses into two different cost centers, write new bylaws to allow executive pastors at each location, and track results for two years. This decision, whether or not it remained in force, did not provide a basis for the courts order of a membership vote on whether or not to create a new church. It was for the churchs membership and the Board to determine the progress to be made, or not made, toward the goals stated in September 2007 as they saw fit. We are not aware of any evidence in the record indicating that the Board violated any church policy or commitment with regard to this September 2007 decision, including when it terminated Tim Combs as pastor. If the First Assembly membership disagreed with this decision, it was entitled to take action pursuant to First Assemblys governing documents, and we are not aware that First Assembly took any actions that impeded their ability to do so.
We do not rely on Hanohanos representations to the trial court via a declaration that the Board later changed its mind regarding these goals, since he made these representations based upon information and belief. (See, e.g., Evans v. Unkow, supra, 38 Cal.App.4th at pp. 1497-1498.)
The trial court appears to have taken action on behalf of these members, who made no effort to appear in the litigation, declaring them to be a "real parties in interest" in its order. This ruling also has no basis in the circumstances before the court, since the Boards resolution in September 2007, not the membership vote of December 16, 2007, was the only direct evidence of a move towards the creation of separate churches. This has led to the oddity before us on appeal: First Assembly indicates by its appeal that it does not want a vote to separate the two campuses to occur, and respondents concur, stating in their opposition brief to this court that they "do not acquiesce in the finding that anyone wishes to separate the two campuses."
Again, under the right circumstances, the court could order an annual/special meeting of First Assembly to determine an uncertain election of a director pursuant to Corporations Code section 9418 or the courts equitable powers, consistent with the procedures outlined in First Assemblys governing documents. (See Episcopal Church Cases, supra, 45 Cal.4th at p. 473; Singh, supra, 114 Cal.App.4th at p. 1277; Providence, supra, 40 Cal.2d at pp. 61-62; Concord Christian Center, supra, 132 Cal.App.4th at p. 1408.) For example, should the Board refuse to allow an annual meeting of the First Assembly membership in the first quarter of the year, which meeting appears to be required by article V, section 2 of First Assemblys constitution, we see no reason why the court could not order such a meeting.
First Assemblys argument that, because this constitutional provision states that a meeting "should not be later than the first quarter" (italics added), they are not required to conduct such a meeting during the first quarter is not before us for determination in this appeal. However, we find First Assemblys argument to be unpersuasive.
That is not what the trial court ordered in this case, however. It went well beyond such matters to give the Combs respondents authority for which there was no legal basis, and to require that the First Assembly membership vote on whether to reemploy the Combs respondents, vote on whether to create a new church at Bridgeway and elect a pastor and board of such a church if approved. The court also set up a court-supervised monitoring of this special/annual meeting to resolve membership disputes. As well-intentioned as the court may have been to attempt to expeditiously resolve this dispute, it had no basis for these mandates given the circumstances before it. Therefore, the court abused its discretion and exceeded its authority under Corporations Code section 9418. These mandates must be vacated.
B. Constitutional Issues
Although we do not need to address First Assemblys arguments regarding the constitutionality of the courts mandates in light of our determination that the court abused its discretion and exceeded its authority, we briefly discuss these matters in light of our remand of this matter for further proceedings consistent with this opinion.
First Assembly argues that the courts mandates violated the three-part test outlined in Lemon, supra, 403 U.S. 602, in that they were for a nonsecular purpose, in effect interfered with First Assemblys constitutional rights regarding religion, and required the trial court to become entangled in ecclesiastical matters. Except for the seventh mandates requirement that Braddy determine religious questions of membership, we are unpersuaded by First Assemblys arguments.
Regarding the seven mandates challenged, the trial courts order evidenced plausible secular purposes. As First Assembly concedes, these include that the court wished to give voice to First Assemblys "members in good standing," who the court deemed to be "real parties in interest" in the dispute, and to stabilize the situation in light of the disputes between the parties. First Assembly does not persuade us that the court had any religious purpose for its order. First Assembly contends that "upon closer scrutiny, the clearly discernable and very specific overriding and common purpose behind the challenged mandates is not only [to] give a voice to [First Assemblys] members in good standing but to do so by compelling that a new polity of majority rules be instituted for [First Assembly]." (Fn. omitted.) We fail to see the argument. The courts order appears based on its conclusion that First Assembly is a congregational church, with which we agree. We do not see any violation of the first prong of the Lemon test.
Putting aside Braddys role for the moment, we also do not think the courts mandates violated the "effect" or "entanglement" prongs of the Lemon test. The court, although misguided about the significance of the December 16, 2007 meeting and the September 2007 Board resolution, did not by its mandates have an effect on, or become entangled with, any ecclesiastical matters or religious questions. Instead, it simply sought to enforce what it thought was required by Board decisions and elections that had, or might have, been conducted pursuant to First Assemblys governing documents. For example, if in fact the December 16, 2007 elections were valid, Tim Combs had been duly elected pastor and a new board had been duly elected (albeit both for the entire First Assembly, not just the Bridgeway campus). To the extent that the court had a legitimate reason to believe in the validity of such elections, it had the authority pursuant to its equitable powers and/or Corporations Code section 9418 to take steps to ensure these elections were not undermined until the dispute could be resolved, such as by new elections. The questions raised about these elections related to civil and property rights only, implicated questions of notice and the like, and, given First Assemblys congregational nature and lack of an ecclesiastical tribunal, did not implicate any questions of religious doctrine or ecclesiastical matters. The courts orders were based on its application of neutral principles regarding the procedures called for by First Assemblys governing documents. (See Episcopal Church Cases, supra, 45 Cal.4th at p. 473; Singh, supra, 114 Cal.App.4th at p. 1277; Providence, supra, 40 Cal.2d at pp. 61-62; Concord Christian Center, supra, 132 Cal.App.4th at p. 1408.) Therefore, we do not find that these orders, as misguided as they were, violated the constitutional protections for religion as argued by First Assembly.
Although First Assembly argues that the trial court did not apply the neutral principles analysis, it is obvious from its order that it was attempting, consistent with such an analysis, to determine the validity of these elections based upon First Assemblys governing documents, and did not consider any ecclesiastical matters, or favor any religious doctrine in intent or effect. The court was appropriately focused on whether or not a sovereign, congregational churchs membership had held elections consistent with its governing documents that should be enforced.
First Assembly makes numerous arguments for why the mandates violate the second prong of the Lemon test that are unpersuasive. It contends the court expressed an endorsement of the set of tenets of faith advocated by the Combs respondents because it gave them control of the religious activities at the Bridgeway Church, ordered that First Assembly pay them to "preach a different set of tenets of faith," gave them the use of the Bridgeway Church to the exclusion of First Assembly, and made Tim Combs pastor there despite the "overwhelming" evidence that he was not qualified to be an Assemblies of God minister, all despite the fact that the Combs respondents were not members of First Assembly. We see no evidence of the court making any determinations regarding such ecclesiastical matters. As we have indicated, the court based its order on its findings, albeit incorrect, regarding decisions that had, or might have, been made by the Board and the membership pursuant to First Assemblys governing documents. Moreover, the court did not err by finding that the membership status of the Combs respondents had not changed.
First Assembly also argues the courts mandates violate the third prong of the Lemon test, and would cause excessive government entanglement with religion. Again, we are not persuaded, with the exception of Braddys role as outlined in the seventh mandate. First Assemblys arguments are largely based on its view that the Board, not the membership controls the church; as we have discussed, this is incorrect. First Assembly also argues that the court will "inevitably" need to further intervene in the event members were to vote to create a new church, but this is speculation. It argues that the courts order "sets up a mechanism not just for physical separation, but for religious doctrinal secession too." We disagree. Again, the court, albeit incorrectly, was simply attempting to resolve a dispute between the parties based on its view of decisions made pursuant to First Assemblys governing documents.
With regard to the seventh mandate that First Assembly challenges on appeal, the courts order that any dispute at the special/annual meeting about the validity of any voting individuals church membership be submitted to a special master, who may refer membership disputes involving religious issues to Braddy for resolution, we see no reason why the court could not, under the right circumstances, exercise its equitable powers, or its powers pursuant to Corporations Code section 9418, subdivision (c), to appoint a special master to resolve membership disputes at an appropriately called special meeting—or to resolve such disputes prior to such a meeting—to the extent these disputes can be resolved by the application of neutral principles and do not violate any aspect of the Lemon test. For example, given our conclusion that First Assemblys governing documents require that affirmative actions be taken before a members voting privileges and/or membership can be taken away, a special master could be appointed to ensure such procedures have been conducted in the face of a challenge to a persons membership status. (See, e.g., Singh, supra, 114 Cal.App.4th at pp. 1288-1291 [approving of the courts procedures for resolving membership disputes, including the appointment of a special master to ensure that the established procedures are followed].)
However, the courts order that the special master refer to Braddy of the district council for "final resolution" any "validity issue [that] relates to a religious question, i.e., tenets of faith" does violate the "entanglement" criterion of the Lemon test and goes beyond the application of neutral principles. (It also contradicts the sovereign, congregational nature of First Assembly). In the absence of any support for such a procedure in First Assemblys governing documents, a court-ordered dispute resolution procedure that resolves religious questions amounts to the courts monitoring of membership disputes for religious content, which is impermissible. (See Singh, supra, 114 Cal.App.4th at pp. 1290-1291 ["[i]n settling any dispute regarding membership, the special master cannot make any determinations regarding the qualifications of that person, but only as to whether the criteria or qualifications have been applied fairly to that person"].) First Assemblys governing documents outline the procedures which are to be followed in determining whether or not a church member abides by First Assemblys religious tenets. The court may take action to ensure that these procedures are followed, but may not become involved in any manner, including via appointed masters and referees, with determining whether a member has followed the tenets themselves.
IV. Other Issues
First Assembly raises several other issues in challenging the courts decisions. It argues that several of the mandates violated its procedural due process rights under the federal and state constitutions on various grounds; that the challenged mandates are not only unconstitutional, but abuses of discretion; that certain of the courts challenged mandates amounted to a denial of parts of First Assemblys request for a preliminary injunction that the court erred in refusing to grant; and that the court committed reversible error by its failure to dismiss the cross-complaint with prejudice. In light of our conclusions regarding the findings of fact and mandates First Assembly challenges in this appeal, we need not further address these issues to the extent we have not done so already, except for one, which we now address.
The two issues specifically raised by First Assembly in support of this preliminary injunction argument are addressed elsewhere in this opinion. We leave it to the trial court to determine what further relief is or is not appropriate in light of our opinion and the circumstances facing the court upon remand.
First Assembly argues that all the challenged mandates flow from the hearing on the cross-complaint (as well as some perhaps being denials, in part of its request for preliminary injunction) and, since these mandates are unconstitutional and "can never be cured upon revival of the action," the court erred by failing to dismiss the cross-complaint with prejudice. This is incorrect, if only because the Combs respondents challenged the election of Pastor Hanohano (and others) to the Board, alleging that they, as church members, were entitled to vote in such an election.
Article I, section 1 of the bylaws provides that the pastor serves as the chairman of the Board, among other things. Article II, section 1 of the bylaws provides that the pastor, once nominated by the Board, is elected by secret ballot at a special meeting of the assembly by a two-thirds vote of all votes cast. Article VI, section 3 of the constitution provides that special meetings may be called when necessary after proper notice has been given by the pastor or secretary.
The court found that "[a]pparently, Rev. Hanohano was not elected by membership in accordance" with the bylaws, but was "confirmed" by the district council, a reference to a December 10, 2007 letter from the district council "confirming" the official Board of First Assembly, and listing Hanohano as pastor and a member of the Board. The districts view of the Board, however, did not establish anything conclusive, since First Assembly is a sovereign church of a congregational nature.
A review of the record raises questions about Hanohanos election. The Boards December 2, 2007 minutes do not list Hanohano as a Board member, and Hanohano declared to the court below that he accepted the position on December 17, 2007. First Assembly contended to the court below that Hanohano had been properly elected as senior pastor at a December 2 "special meeting." The December 2, 2007 Board minutes state that the Board offered the position to Hanohano after the assembly had voted unanimously in favor of it. However, First Assembly acknowledged to the trial court that the bylaws require that "proper notice" be given for such meetings, but contended that, "[i]n this instance, [First Assembly] was unable to provide advance notice to the full active voting membership of the church because . . . cross-complainants [had] wrongfully deprived [First Assembly] of the membership list"; as a result, cross-complainants could not assert election defects because of their "unclean hands." The court provided no ruling on this "unclean hands" ruling, apparently because it considered its other rulings, including those challenged on appeal, dispositive of the dispute, making such a ruling unnecessary.
In light of the courts failure to rule on this "unclean hands" affirmative defense, its finding that "apparently" Hanohano was not elected senior pastor—and therefore to the Board —in accordance with the bylaws, our reversal of the courts ordered special/annual meeting procedure, and our ruling that the Combs respondents remain members of First Assembly, we cannot conclude that the court should have dismissed the cross-complaint with prejudice, since at the very least there appears to be an issue regarding Hanohanos election to the Board.
We do not mean to suggest that Corporations Code section 9418 applies to the elections of church pastors, but the bylaws indicate that the election of a person to the positions of senior pastor and chairman of the board of directors happen simultaneously, as a result of the same vote. Elections of directors of a nonprofit religious corporation are subject to Corporations Code section 9418. We see no reason to exclude pastors from this category, to the extent that they are also elected to church boards.
We do not mean to suggest that issues regarding the election of other Board members must be excluded from consideration upon remand. We state no opinion on the subject, having not reviewed these matters. In light of the questions raised by Hanohanos election, we need not do so to determine that dismissal of the cross-complaint is inappropriate at this point.
First Assembly complains that the courts order, as written, could be construed as affording certain relief to respondent Bridgeway corporation as if it were a member of First Assembly. We agree with First Assembly that there is no evidence that respondent Bridgeway corporation is a member of First Assembly, or has any rights or privileges of membership in First Assembly. The court should distinguish between respondents in any orders so as not to create confusion on this issue.
Finally, we note that nothing herein is intended to prevent the trial court from exercising its discretion pursuant to its equitable and statutory powers to stabilize the situation in the event that this dispute continues, provided that it does not interfere with ecclesiastical matters. For example, while the court may not become involved in determining whether or not a person has met the religious standards for membership in First Assembly, it may order that any such membership questions be completely resolved, including by any appeals to the membership and with the participation of a special master to review the procedures employed in any membership decisions, prior to any special or annual meeting of the membership, including a special or annual meeting which has been organized pursuant to First Assemblys governing documents to resolve questions about First Assemblys Board, pastor, direction, or other matters in dispute between the parties.
DISPOSITION
The challenged factual findings are affirmed. The seven mandates First Assembly challenges on appeal are vacated for the reasons stated herein. We remand this matter to the trial court for further proceedings consistent with this opinion. The stay imposed by our order of May 16, 2008, is dissolved. The parties are to bear their own costs of appeal.
We concur:
Kline, P.J.
Richman, J.