An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-900


Filed: 17 January 2006


v .                         Wake County
                            Nos. 03 CVS 11344;

    Appeal by plaintiffs from order entered 19 September 2003 by Judge Donald Stephens in Wake County Superior Court. Heard in the Court of Appeals 2 February 2005.

    David Curtis Smith, Attorney PLLC, by David C. Smith, for plaintiffs-appellants.

    Harris Flanagan & Hilton, P.A., by Anthony E. Flanagan, for defendant-appellee.

    JACKSON, Judge.

    Members of Christian Chapel United Church of Christ (the “Church”), an unincorporated association in Apex, North Carolina, disagreed as to whether or not Pastor David Dolby was terminated by a vote of the Church's membership on 26 July 2003. Pastor David Dolby (“Pastor Dolby”) has served as Pastor of the Church for approximately twenty years. The Church has operated under a Constitution and bylaws for more than thirty years. In 1978, the Church adopted a set of bylaws, which provided, inter alia, how the pastor of the Church was to be hired and terminated, the procedure for electing officers, and the process for how meetings were to becalled and held. The bylaws state that removal of the Church's Pastor must be done through a recommendation of the Board of Deacons (“Deacons”) with the approval of the Church Council, and with a majority vote of the church membership. The Pastor has the authority to call regular meetings of the membership, and also may call special meetings of the membership and the congregation. According to the bylaws, the Church Council served as the executive body of the Church; however, at some point, the Church Council ceased to exist and the Church's Deacons assumed most of the Church Council's authority.
    In 1982, Pastor Dolby was hired pursuant to the relevant provisions of the bylaws. Around June 2003, Pastor Dolby and the Deacons began to have problems, and the Deacons called for a meeting of the membership to be held on 26 July 2003. By letter dated 3 July 2003, the Deacons informed the Church's membership that a vote would take place on 26 July 2003 regarding Pastor Dolby's continued employment. In violation of the bylaws, the Church Council did not approve this meeting. The letter sent to the church membership stated the date, time, and procedure for the vote and contained a form which allowed members to vote by absentee ballot. The bylaws, however, made no specific provision for the use of absentee ballots.
    Subsequently, on 6 July 2003, Pastor Dolby gave notice of a special meeting of the membership to be held on 20 July 2003. On 20 July 2003, the issue of Pastor Dolby's termination was brought before the membership, and the membership voted to take no actionuntil the procedures for termination of a Pastor, as provided for in the bylaws, had been followed.
    On 26 July 2003, the Deacons proceeded with the meeting they had called for the membership, and conducted a vote of the membership on the issue of Pastor Dolby's continued employment. The members in attendance, and those voting by absentee ballots, voted forty-six (46) to eleven (11) in favor of terminating Pastor Dolby. A quorum, which required ten percent (10%) of the membership to be present, had been met at the 26 July 2003 meeting. On 30 July 2003, the Deacons notified Pastor Dolby in writing of his removal, and notified the membership by mail of the same on 31 July 2003.
    On 21 August 2003, Church members Clarence Boone, Albert Walden, Jennie Brown, Diane Moon, and Jo Harris (collectively “plaintiffs”) filed a complaint against Christian Chapel United Church of Christ (“defendant”) seeking, specifically, declaratory relief. Plaintiffs sought to establish that proper procedure had been followed under the bylaws as to the termination of Pastor Dolby's employment. The plaintiffs further requested the trial court to enter a preliminary injunction against defendant over the Church's funds and activities at the Church. There is no indication in the record that defendant filed an answer in response to plaintiffs' complaint.
    On 21 August 2003, the trial court entered a Consent Order signed by plaintiffs, the Chairman of the Board of Deacons, and Judge Donald Stephens. The trial court ordered, in pertinent part:(1) no person may disrupt the regularly conducted worship services, including the prohibition of any reference to this legal action; (2) there shall be no change in various individuals elected to hold office in the Church during the pendency of this litigation as the bylaws have not expired for any officer, committee member, or elected official, including Deacons and Trustees; and (3) Pastor Dolby shall not act as Pastor until this matter is resolved and the Court has determined whether proper procedure was followed in the congregational vote to remove Pastor Dolby.
    On 28 August 2003, defendant, along with Pastor Dolby and the Church Council, filed a separate complaint against plaintiffs, including a Motion for Injunction, Motion to Intervene, and demand for a jury trial, alleging breach of contract, breach of fiduciary duty, and fraud. Defendant requested that the trial court enter a temporary restraining order and preliminary injunction order, enjoining plaintiffs from interfering with the operation of the Church or from taking possession of the Church's property. D efendant further requested the trial court to award defendant late fees, costs and expenses, damages in excess of ten thousand dollars ($10,000.00), treble damages, a jury trial, and any further relief the trial court deems appropriate. On 4 September 2003, defendant filed a motion to set aside the 21 August 2003 consent order.
    On 11 September 2003, the trial court held a hearing on defendant's Motion to Intervene, Motion for injunctive relief, and Motion to Set Aside the Consent Order. The trial court entered an order on 19 September 2003, in favor of defendant, stating thatanother vote of the Church's membership would take place within the next forty-five days and that the previous membership vote had not been in accordance with the Church bylaws or constitution. The trial court ordered that: (1) the date and time of the special meeting would be determined by agreement of the parties; (2) the parties would select a moderator to preside over the special meeting and the vote; (3) the moderator would be paid from the funds and proceeds of the Church; (4) all members who were members of the Church as of 26 July 2003 must be allowed to vote under the supervision of the selected moderator; and (5) each of these eligible members must receive written notice of the special meeting.
    On 19 October 2003, a second vote was held addressing Pastor Dolby's termination. Based on the individuals present, the membership voted eighty-seven (87) to zero (0) to retain Pastor Dolby. A large number of the Church's members were absent from this meeting. The court left it to the parties to settle all other issues. Plaintiffs made no objections to any of the court's findings from the 19 September 2003 order. Plaintiffs now appeal from the trial court's 19 September 2003 order.
    Plaintiffs assert the trial court erred by ordering a vote of the Church's membership concerning retention of Pastor Dolby, thereby violating plaintiffs' First Amendment right against excessive government entanglement with religion. Plaintiffs further contend that religious organizations have a First Amendmentright to establish their own rules and regulations for internal discipline and government. We agree.
    According to the Constitution of the United States, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I. The First Amendment is made applicable to our state through the Fourteenth Amendment. Everson v. Board of Education, 330 U.S. 1, 8, 91 L. Ed. 711, 719 (1947) (citing Murdock v. Pennsylvania, 319 U.S. 105, 87 L. Ed. 1292 (1943 )). In the instant case, the appropriate standard of review of plaintiffs' claimed First Amendment violation is de novo. “It is well settled that de novo review is ordinarily appropriate in cases where constitutional rights are implicated.” Piedmont Triad Airport Auth. v. Urbine, 354 N.C. 336, 338, 554 S.E.2d 331, 332 (2001), cert. denied, 535 U.S. 971, 152 L. Ed. 2d 381 (2002); see, e.g., Ornelas v. United States, 517 U.S. 690, 696-97, 134 L. Ed. 2d 911, 918-19 (1996); State v. Rogers, 352 N.C. 119, 124, 529 S.E.2d 671, 674-75 (2000).
    It is well settled in our state's caselaw that courts are prohibited from considering or resolving purely ecclesiastical matters. Tubiolo v. Abundant Life Church, Inc., 167 N.C. App. 324, 605 S.E.2d 161 (2004), appeal dismissed and disc. review denied, 359 N.C. 326, 611 S.E.2d 853 (2005), cert. denied, __ U.S. __, 163 L. Ed. 2d 59 (2005); Braswell v. Purser, 282 N.C. 388, 393, 193 S.E.2d 90, 93 (1972). In Tubiolo, this Court stated that an ecclesiastical matter is:
        “one which concerns doctrine, creed, or form of worship of the church, or the adoption andenforcement within a religious association of needful laws and regulations for the government of membership, and the power of excluding from such associations those deemed unworthy of membership by the legally constituted authorities of the church; and all such matters are within the province of church courts and their decisions will be respected by civil tribunals.”

Id. at 327, 605 S.E.2d at 163-64 (quoting Conference v. Piner, 267 N.C. 74, 77, 147 S.E.2d 581, 583 (1966), overruled in part on different grounds by Atkins v. Walker, 284 N.C. 306, 200 S.E.2d 641 (1973)).
    However, although the United States Constitution guarantees freedom of religion and establishes a firm principle of separation of church and state, “the courts do have jurisdiction as to civic, contract, and property rights which are involved in . . . a church controversy.” Id. at 327, 605 S.E.2d at 163 (quoting Braswell, 282 N.C. at 393, 193 S.E.2d at 93). This Court cannot “referee ecclesiastical disputes,” but it may “adjudicate 'property disputes', provided that this can be done without resolving underlying controversies over religious doctrine.” Id. at 329, 605 S.E.2d at 164 (citing Atkins, 284 N.C. at 316-17, 200 S.E.2d at 648). “Where civil, contracts or property rights are involved, the courts will inquire as to whether the church tribunal acted within the scope of its authority and observed its own organic forms and rules.” Conference v. Creech, 256 N.C. 128, 140-41, 123 S.E.2d 619, 627 (1962).
    “[I]n the establishment and exercise of church polity . . . [this Court has] no jurisdiction or right of supervision.” Id. at140, 123 S.E.2d at 627 (citing Bouldin v. Alexander, 82 U.S. 131, 21 L. Ed. 69 (1872)). Thus, a court may not issue rules or conditions for Pastor Dolby's “readmission” to the Church, thereby placing him once again in good standing in the Church. See id. at 141, 123 S.E.2d at 628.
    Based on the facts alleged in both plaintiffs' and defendant's complaints, the order from which plaintiffs appeal grants relief far in excess of that to which defendant was entitled. See id. at 141, 123 S.E.2d at 627 (citing Collins v. Simms, 254 N.C. 148, 118 S.E.2d 402 (1961)). “The legal . . . tribunals of [this] State have no jurisdiction over, and no concern with, . . . ecclesiastical questions and controversies.” Reid v. Johnston, 241 N.C. 201, 204, 85 S.E.2d 114, 117 (1954). The instant case does not involve civil, contract, or property rights. Although the trial court was well within its authority to interpret the Church's bylaws, it was not allowed to order a new vote of the Church's membership.
    We hold the trial court acted properly in interpreting the Church's bylaws and finding that the Church had violated the procedure called for in said bylaws, with respect to terminating Pastor Dolby. Despite this, however, we hold the trial court violated separation of church and state when it ordered the Church to issue a new vote. The trial court's ordering of a new vote of the membership concerned an ecclesiastical matter that the trial court could not entertain. Plaintiffs merely asked “whether proper procedure was followed in removal of Dolby as Pastor of ChristianChurch,” not for the court to fashion a remedy of its own choosing. In so doing, the court exceeded its authority and intervened into the ecclesiastical matters of the church. Having determined that the vote was in violation of the bylaws, the court should have stepped back and directed the church to resolve on its own the matter of whether or not to retain Pastor Dolby's services.
    Accordingly, the trial court's order mandating the Church to conduct a new vote of its membership on the issue of whether or not to retain Pastor Dolby is reversed.
    As we have reversed the trial court's 19 September 2003 order, plaintiffs' additional issues on appeal are now moot, and therefore we need not address them.
    Affirm in part, reverse in part.
    Judge HUNTER concurs in results only.
    Judge CALABRIA concurs.
    Report per Rule 30 (e).

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