Here is the information in regards to the actions of the leading ministers of the Church of God Restoration. They attempted to take the property owned by the local Church of God congregation, and here is what the judge stated. What his thoughts were. Here you will see how this group of ministers just does what they want, without due process, at you the members expense.
- Jeff Redington
Administrator - The Church of God Restoration Exposed Web Site.
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Attached is the transcript of Judge Moynihan's oral decision (we call it an oral decision rather than a verdict) which we scanned and are transmitting to you in the form of a text file. Hopefully you will be able to look at it and forward it along.
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF WHATCOM
THE CHURCH OF GOD, )
Plaintiff, )
VS ) NO. 00-2-01344-9
RON WALTER, et al, ) COURT'S ORAL DECISION
Defendants. )
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___________________REPORTER' S TRANSCRIPT__________________
BE IT REMEMBERED that on July 26, 2001,the above-entitled and numbered cause came regularly on for hearing before the HONORABLE MICHAEL MOYNIHAN, Judge of the above-entitled Court, sitting in Department 1 of the Whatcom County Superior Court, in the City of Bellingham, County of Whatcom, State of Washington.
The plaintiff appeared through Mr. Harry Johnsen, Attorney at Law, Bellingham, Washington;
The defendants appeared through Mr. Charles Tull, Attorney at Law, Bellingham, Washington; BOTH SIDES having announced ready for hearing, the following proceedings occurred, in part, to-wit:
Gloria Hanson, CCR, RDR
Official Court Reporter
PROCEEDINGS OF JULY 26, 2001
THE COURT: Let me start off by saying I see some things sitting up here that the other parties don't see, so some of my comments may be things that the parties didn't argue directly; but, nevertheless, that's how I got to where I am.
This case came in front of me on what's known as a motion for summary judgment some time back, and the attorneys in chambers before the trial started, each one wondered why neither of them had won their case. And the reason why I denied the motion for summary judgment is I wasn't clear about the facts; and after hearing the trial, I'm really glad I denied it, because the facts have now become very, very clear to me.
I'd like to start off by saying that it is the duty of this Court to weigh the credibility of the witnesses, and I'd like to say that I found the testimony of Ron Walter and Mr. Hightower to be extremely credible. And if there's any conflict between their testimony and that of any other person, let it be known that I've resolved such a conflict in favor of Walter and Hightower.
I recall once in a case here a long time ago, Dave McEachran was prosecuting somebody for something, and he was trying to find out the weakness of the defendant's case. He said, "You know, if the facts are on your side, you pound the facts. If the law is on your side, you pound the law. If neither are there, you pound the table."
Well, in terms of how it's presented to me, the plaintiff was pounding the law; he had the law on his side. And it seems to me from the very beginning, here's where the law is on the side of the plaintiff. That's going to decide the case, of course. It's obviously the duty of the plaintiff and plaintiff's attorney to present the facts and tie them to the law.
On the other hand, it seemed the facts are on the side of the defendants; then, of course, it's the duty of Mr. Tull to present the facts and tie them to the law, so that everything is going to be resolved this way.
Let me tell you right now, the bottom line is --I'm not going to keep you hanging in suspense; I'll explain every one of my steps as I go through -- I'm convinced in this case that the plaintiff did not succeed and that the defendants did.
First of all, let me start off with what I think are two glaring problems or concerns that I saw in this case. They deal with the attempted removal of Mr. Ron Walter from his position as director and his position as president. Of course, the other issue we'll deal with, congregational churches, I'll touch on a little bit later on.
The problem or concern that I had, it was Ron Walter who had called the meeting in California. It wasn't called by Ray Tinsman, and it wasn't called by any of the churches. It was Mr. Walter who called the meeting for his stated purpose, to try and resolve problems that he saw with the church. I don't want to get involved in what they discussed, because it's not important to me; and, besides, we as judges in courts can't get involved in the teachings and what the churches do among themselves.
But what is important and creates a glaring hole in the plaintiff's case is that Ron Walter only communicated directly with Daniel Layne, aside from some comments with Siegfried, and no one else, and yet on the word of Layne, actions were taken to attempt to forfeit office held by Ron Walter.
Ray Tinsman, I kind of enjoyed his testimony, but he said that he didn't speak with Walter. He didn't speak with Hightower and didn't speak to Sharp. Yet when he was right down there in the room, he was willing to vote to forfeit offices held by those three members. Also, Mr. Tinsman said, "You know, we weren't that far apart. He's got a few differences that we could have resolved."
Anyway, it's inconceivable to me that one can make such a tremendously important decision as to a person's future, their position or occupation, without having at least a list of charges brought before them or some sort of alleged violations that would give Walter, Hightower and Sharp the chance to be heard and to defend themselves against it. Also, a special meeting called for one purpose can't be turned into a meeting for another purpose without giving notice to all the parties, and this wasn't done. Mr. Walter, it was his meeting; he called it; he decided to go back home. That should be the end of it.
Instead, Mr. Layne and others turned it into a meeting to consider ousting Walter, Hightower and Sharp without giving them notice. That's what they were going to do.
I'd like to point out something in Exhibit No. 6 in the letter by Brian Hansen. You may have that exhibit in front of you. Anyway, there's one paragraph that says "These members may have the right to know in what way they have been disengaged from the ministerial body and its teachings." And it seems to me this right to me should be in advance of any action taken to disengage them or forfeit them from their offices.
Anyway, the statement, whatever Mr. Layne said to the other ministers, obviously was hearsay based upon what Walter told him over the phone, and any comments that Mr. Siegfried -- I can't remember his last name; I can't pronounce his last name; let me put it that way; I'm just going to say "Siegfried." So, anyway, they voted to forfeit the office.
Let me digress. You've heard of due process, because Mr. Hightower talked about this a bunch of times. The due process clause that exists in the constitution of the United States and Amendments five and 14 was put there for one purpose: It was put there so that people would be treated fairly. Courts can differ as to what due process means. In fact, Mr. Johnsen asked questions on cross-examination. He talked about and asked about due process.
Well, I'll tell you from my standpoint as a judge, from the standpoint of the Court, due process means that people are going to be treated fairly. Before you can be fired, you must have a hearing. Before that, you should have an opportunity to be heard. Due process is replete with all sorts of opportunities for persons. They can have their day in court. To make it as brief as possible, that idea of fair play, due process, permeates our entire body of law.
In the case at hand, Ron Walter and the other two ministers were not treated fairly. In fact, nothing could be further from the truth. Walter called the meeting, felt he was going nowhere, decided to return to Nooksack. While he may have had some idea that Daniel Layne and the others would take some action against him, basic notions of decency and fair play would require that some sort of a hearing be held before he was deprived of any position or office; obviously that wasn't done.
Ron Walter and the other two ministers were not given a list of charges against them. They never really had an opportunity to defend them. The attempted removal is of no effect; they're still directors. Ron Walter is still the president, and the attempt to replace them is void and of no effect.
The second major problem in this area is the law in the State of Washington dealing with non-profit corporations states the articles or bylaws may contain a procedure --and in my notes I italicized or underlined the word "procedure" because it exists in the law. RCW 24.03 -- I think it's .103 -- states that for removal of a director... and in the absence of a procedure, then the law applies.
But the law states that articles and/or bylaws may contain a procedure for the removal of a director. There is no procedure for the removal of a director in these bylaws. There's no procedure for removal of a director in the articles; therefore, you have to go to the Washington State law which says: ".. .any director may be removed by two-thirds of the vote cast by members having voting rights..." Obviously, it's an impossibility. If you've got Hightower and Walter on one side and Layne and Ellis on the other, you're never going to get two-thirds. You're going to get 50-50 every time that happens, because there's no procedure at all. Obviously, under the law of the State of Washington, attempted removal of Walter and Hightower was improper, void and of no effect.
At this point the Court has no choice at all except to recognize Ron Walter as the president of the corporation. Furthermore, Mr. Walter and Mr. Hightower are still directors of that corporation. Further on as I go, the attempted replacement of Walter and Hightower would also be illegal, because of a violation of RCW 24.03.465, which requires Walter and Hightower to agree, in writing and signed by them, to any action taken without a regularly scheduled meeting. Apparently there was some effort by Ellis and Layne to replace them with other people, Tinsman and -- the name escapes me for the moment. That is void and of no effect.
So we are basically deadlocked as far as that. It is for this reason that I cannot recognize Mr. Johnsen as the attorney for the corporation, and any attempt to represent the corporation without the approval of Mr. Walter is ultra vires. However, he obviously is recognized as attorney by Layne, Ellis and Mutch.
I would expect at this time or in the future that Walter is going to get together with the others to decide if there is going to be an attorney to represent the church. Then they can move from that point.
Okay. I'd like to address the law in the State of Washington as it relates to churches. Now, here my language is going to be kind of rambling, because I put this together pretty quickly.
It appears to the Court and it is undisputed that the entire congregation, with the exception of one or two, maybe three or perhaps four, people have remained with Ron Walter. And so while I'm kind of wondering what "harmony" still means, I'm not going to get into that, because I'm not allowed to get into legal -- excuse me -- religious terms. But the question pops up: Is it determined by Daniel Layne what harmony in Bellingham or Nooksack is or is it to be determined by the congregation in California where Daniel Layne is a member?
It is an inescapable and undisputed fact that the Nooksack campground was initially purchased by James Hightower and another for the sole purpose of providing a place for the Nooksack congregation to meet and worship. The congregation in Nooksack worked for years to pay off the mortgage and become self-sufficient, with Ron Walter as the president -- excuse me -- pastor for several years; obviously, he remains as the pastor today.
It's an undisputed and inescapable fact that each of these congregations -- I'm talking about all those congregations -- are autonomous, whether it's the California congregation led by Layne or the one in Ohio or the others. The autonomy or independence from each other operates to provide a place for the members to meet and worship.
Seems to me that when Daniel Layne realized that he was losing control of the Nooksack congregation, he executed a power play by convincing the other members that Ron Walter had left the Church of God and was no longer in harmony with the ministerial body. Well, nothing could be further from the truth. Obviously nothing could be more unfair and inequitable.
It seems to me that if the actions of Daniel Layne were to be upheld, then the Nooksack congregation would be evicted from their own campground that they have struggled so hard to provide for themselves. They would have no effective place to worship in Whatcom County. Contrary to their intentions, title to the campground would be transferred to a church in California.
There is another issue that is on direct collision with the non-profit corporation act, and that is the law that relates to churches. When one of the witnesses was asked what sort of association exists here, who hadn't been coached, he said, "It's an association that's formed by God.' Well, Mr. Tull was looking for a little bit more than that. Seemed to me after lunch they came back and started using the word "congregation." I even asked Mr. Johnsen, "Are you asserting that this is hierarchical or congregational form?" He said, "Congregational."
All that means is it makes it real easy, for there are only two basic types of churches recognized in the State of Washington, and they are hierarchical or congregational.
Now, you all know that the Roman Catholic Church is hierarchical. The Pope, cardinals, bishops and priests are all appointed by somebody else, and people, when they join those churches, know that. Now, that's, however, I think clearly because of the fact that many people objected to the types of edicts that came from a hierarchical structure that congregational churches become popular. Nobody likes to be told by somebody in Rome what they're supposed to be doing next week. If they're going to decide, they will decide for themselves.
Regardless of what Daniel Layne said, here he seemed to indicate it was a hierarchical thing. The Church of God Restoration is a congregational church. The members, the majority of the members determine church policy and what's going to happen to the Church of God congregation. They can transfer authority to a board, an organization or a pastor or some other for various purposes; but, remember, if they give it, they can take it back.
In that regard, I'd like to quote from some of the cases in our U. S. Supreme Court and from the State of Washington, and I told my reporter ahead of time that I forgot to write down all the cites, but I did write down the quotes.
"It is stated as a general rule that a majority of church organizations may direct and control church matters consistently with the particular and general laws of the organization or denomination to which it belongs, and it is generally held that a majority of those present and voting at a regular meeting of a church or religious society governs, and its action is binding on the whole body.In such actions the non-voting must be counted as willing to be bound by the action of the majority of those who vote."
Make sense? Certainly makes sense to me. "The polity approach focuses upon the organizational structure of the church in question to determine whether the local church is congregational or whether it a subordinate unit of a hierarchical organization. When the local church is congregational, that is, governed independent of any other ecclesiastical body, the property dispute is resolved by the ordinary principles which govern voluntary associations."
There was discussion about a principle called the "neutral principles" approach, and I'd like just to move on very quickly to the next one.
When the Washington State Supreme Court had the opportunity to rule upon a church property dispute, the Court expressly rejected the neutral principles method, and, instead, reaffirmed the polity approach of WATSON V JONES, which is a U. S. Supreme Court case. It said in JONES --excuse me -- PRESBYTERY OF SEATTLE V ROHRBAUGH, 79 Wn.2d 367:
"The threshold issue in this jurisdiction, at least when a property dispute is involved, is whether the church is hierarchically or congregationally organized. We see no logical reason why a different approach should be used to determine when the civil courts have jurisdiction over religious disputes not involving property.
"Therefore, the jurisdictional threshold question remains whether it is an independent congregation or a member of a hierarchically-organized church. If the latter is the case, the civil courts must defer to the church hierarchy's resolution of this matter, despite the fact that this type of dispute could otherwise be resolved by a civil tribunal. However, the determination of whether a church is hierarchical or congregational and whether the local church is a member of the hierarchical church presents questions of fact."
This is a congregational church; there's absolutely no doubt. Even Mr. Johnsen admitted that at the very last when I asked him at end of argument. It's a congregation, period. Daniel Layne seemed to kind of indicate that it is hierarchical. Some of the bylaws seemed to indicate that it is a hierarchical organization. I'm going to address that in a moment. The Court continued:
"Under the WATSON approach" -- that's 80 U.S. Supreme Court, 20 L.Ed. 666 -- "in a congregationally structured church, courts enforce the property decisions made either by a majority of its members or by such other local organism as it may have instituted for the purpose of ecclesiastical government.
"Many church organizations take the form" - this is where we're going to get into it "of a multiple voluntary non-profit association. Such an association generally consists of (1) one organization with many branches, or, (2) a number of autonomous units confederated together."
That's what we've got, a bunch of autonomous confederated units. That's what we have here is a congregation.
And in CHURCH AT SEATTLE V HENDRIX, which is the case you all cited here, it says:
"There is no dispute as to the applicable law. It is conceded that the general rule of law applicable to a church, congregational and nondenominational in its organization" -- which is what we have here -- "is that the majority controls the policies and its property."
I conclude that this church, the Church of God Restoration Inc., is a congregational church. They formed initially as a congregation and practiced as a congregation since the inception, and despite what the articles and bylaws state, the congregation has never acceded to be anything but a congregation.
It is undisputed that the articles and bylaws --and you can quote me on this and underline it -- were not approved by the congregation. They were -- the articles and bylaws were never approved by the congregation. They were approved by the people who were authorized to transfer property. And therefore this property transfer was proper, but they did not give up their rights as a congregation, because it was never approved by a majority of the congregation. I cannot stress that enough.
Even though a congregation can delegate certain duties and powers to a board or president or pastor, only the congregation can by majority rule change its designation and character from congregation to hierarchical or give up those rights to another outside agency. That was never done in this case. The congregation did vote to appoint members to sell property and to sign deeds, but the important question of changing the designation and character was never put to a vote. The power to sign the deed that was granted on March 26, 1992, was valid; it was never revoked. There was authority to sign the offered documents, but that can never be bootstrapped or interpreted to mean that the congregation gave up its designation and character as a congregation.
Now, if there is an allegation that the signing of the deed and signing of the articles and bylaws operated to change that designation in character, then they are void and ineffective, because they were not done by a majority of the congregation.
Moving on, this is a congregational church, and the undisputed congregation met and unanimously voted and agreed to support Ron Walter. Based on that, it is the conclusion of the Court that Ron Walter is the president, the pastor, regardless of what the bylaws say.
Since the congregation met in May of the year 2000, and since the congregation voted to amend the by-laws and install new directors, probably -- I say 'probably' -- it can be considered to be a legal meeting. But what a congregation gives, a congregation can take away, as long as it is done by a majority of the congregation.
However -- and this is where I'm going to issue an order -- to resolve any doubts, and since it appears that any action of the Board of Directors would result in a deadlock, it is the order of this Court that there will be a general meeting of the corporation and a general meeting of the congregation combined on or before August 15th of the year 2000, with notice to who is listed as a member or director or campground leader. If persons are unable to travel to Nooksack for the meeting, they can be permitted to attend by means of a telephone conference with a speaker phone.
However, only members of the congregation that are eligible to vote are those who are listed as members of the congregation, and only those that are determined to be members of the congregation as of today, today's date. For those purposes -- for those purposes, it will be Ron Walter, who, after consultation with the present congregation, will certify who are the members. Again, only those members will be allowed to vote. The results of the election will become a part of the record and filed with this Court.
Now, I looked very carefully at RCW 24.03.1031, which is called "Judicial Removal of a Director." A judge can remove a director only if the Court finds that a director acted fraudulently or with dishonesty toward the corporation and if the removal would be in the best interests of the corporation. While I think there may be sufficient facts here that would authorize me to remove Mr. Layne as the director, I'm not willing to do so at this time. If for some reason or another it came back to me and there were other actions that need to be taken or that could be taken, at that point I would consider it, only after a motion by Mr. Tull and an opportunity for Mr. Layne to be represented.
I'd like you all to know that this decision really does nothing more than to restore what should be the status quo and does nothing more than recognize that the Church of God Restoration, Inc., is the same body that existed prior to the incorporation. It is up to the congregation to decide what the congregation wants to do.
There's one other thing I forgot to mention; I've only touched upon it very briefly. The congregation made its decision based upon a majority. In the bylaws it appears that the right to select a pastor of this congregation goes to somebody else, another board. That was never voted upon by a majority of the congregation. This basically takes away the right of the congregation and gives it to a higher authority. That is improper; basically it's illegal, and so, therefore, that is also void.
I can't stress enough the fact that the law in the State of Washington is very, very clear. It tells us as judges we are not going to get into the religious principles, the religious tenets, religious interpretations of the various churches. But it does say when it comes to congregational matters, the majority of the congregation rules. The congregation can decide if they want to do something, that's their business.
If you think I've left anything out, go ahead.
MR. TULL: You said that the meeting would be August 15, 2000. You meant 2001?
THE COURT: Yes. I meant three or two weeks from now. I'm sorry.
MR. JOHNSEN: I have some questions. I certainly don't desire to make any argument.
THE COURT: Sure. Go ahead.
MR. JOHNSEN: If I understand you correctly, the Washington State corporation is in existence. Its current directors are the four who were originally -- well, who were appointed by the Board of Directors. The bylaws that were adopted by the Court are currently in effect. That's what I think. I couldn't understand from your
THE COURT: Only to the extent that I am ordering it, because we're going to have a deadlock. That's something they can do. It's absolutely necessary that the Court order it, and I'm ordering a general meeting of the corporation, the congregation, the members of the congregation. Since this is a majority rule congregation, they will vote for the members of the Board, and they will vote for members of the congregation if necessary.
So if there is a conflict between my order, then as far as I'm concerned, because of the deadlock you're going to go absolutely nowhere. So what's contained in the bylaws regarding non-voting membership is excluded from my decision, because I need to get a decision from these people as to what it is they want to do. So they're going to elect new members of the Board of Directors. They're going to do it by majority vote of the congregation.
If there's going to be a real problem, if there's to be a real problem -- and I don't think there is --then I'm going to discuss or entertain motions to relieve Daniel Layne for actions inimical to the corporation. But that's for another day.
MR. JOHNSEN: Let me put your mind at ease. In consultation with my clients after court, they said whatever the effect of the decision was, they would abide by it.
THE COURT: Fine.
MR. JOHNSEN: I don't think there's going to be any kind of further disputes. But the vote is to determine who the directors of the corporation will be from that point forward?
THE COURT: Yes
MR. JOHNSEN: And in all other respects the bylaws are not affected for -- except perhaps for the section on the selection of the pastor; is that correct?
THE COURT: Well, if they immediately decide that they want to change the bylaws and adopt the ones that were adopted in
MR. JOHNSEN: A newly-elected director could do that under the bylaws?
THE COURT: March, 2000 -- that's right. You know, it's seems to me -- it even seems, as a passing note, that if they want to disincorporate, if they want to go back to an association, they can go back to an unincorporated association; but I'm not going to concern myself with that.
MR. JOHNSEN: It would only result in a dispute that hasn't arisen.
THE COURT: Right
MR. JOHNSEN: And the corporation does own the property. The deed to the -- the deed to the corporation was valid?
THE COURT: Yes
MR. JOHNSEN: We may come back with one. There's concern about the name of the corporation. The individuals I guess who I now represent feel strongly that if the Court's decision is as it has been that the name of the corporation should not include the word "Restoration." Perhaps it's something we can resolve, because they still feel there's a recognized separate group of churches that these folks are not connected with and I don't feel that they believe they are connected with. If we can't resolve this, we may come back with that issue. Thank you.
MR. TULL: I'm pretty -- my clients will not worry about having "Restoration" in there. They probably will -- and just looking at them, they say they wouldn't have a problem.
A VOICE: We better vote on it.
THE COURT: Good idea. Let them vote on it. There's one idea that just keeps coming in and out of my mind real quick. Yes, yes, and it is this: That which exists in the bylaws that says members shall be non-voting members had to have been approved by a majority of the congregation for the congregation to give up that right. See what I'm getting at? That's another one of those things. If the majority says yes, if the majority says no, if the congregation goes out right now and says, "We vote to remove that," it is void and of no effect, because it was never approved by the majority.
If all of those things were approved by a majority of the congregation, you would have won, Mr. Johnsen. But if none of these things was approved by the majority, they should have the right to transfer property. They did; they sold six lots. That was approved, because they gave those people the authority to do that. But that's where it ended; the authority ended there.
They gave them the authority, as far as I'm concerned, to transfer the property to the corporation, but they never gave them authority to take away their rights as a congregation. So if there's a conflict between what the congregation has and anything else, I'm going to have to say that's what keeps running in and out of my mind. The congregational law in the State of Washington is very clear: Majority decides.
So once they've gone ahead and made a decision regarding what they are going to do with the new directors, so on and so forth, I'd like that to be made part of the court file.
Mr. Tull, you have to prepare the Findings of Fact, Conclusions of Law, and you can get all this stuff from the reporter. If you have any other questions, I will be around.
MR. TULL: Thank you, very much, Your Honor.