Litigation

2001 Annual Conference Statement

We, the members of the Haxtun, Colorado Church of the Brethren, in counsel with one another, respectfully request clarification on the Church of the Brethren’s position regarding litigation and appropriate Christian response.

The Haxtun, Colorado Church of the Brethren acknowledges with appreciation the enthusiasm by which alternative dispute resolution processes have been received in the Church of the Brethren, and we wholeheartedly support the renewed emphases on ethics in ministry and congregational relations. However, we view a continuing trend on the part of some members, churches and district bodies, mirroring the larger society, to seek legal counsel and remedy as a first rather than last resort. We affirm the need to more fully understand what it means today as children of God in a sometimes complex world of litigation and liability to deal lovingly and justly with our brothers and sisters with whom we are in conflict.

We are alarmed by the destructive nature of familial disputes in the courts involving questions of child custody and divorce. We are saddened when we hear of litigation over job recommendations involving pastoral placements. We observe individuals, businesses and organizations, including churches, hesitant to realize their full potential out of fear of liability.

A previous query from the Spindale, N.C. Church of the Brethren to Annual Conference requested a study of the relation between Christian ethics and principles and the established system of laws and order. The resulting Annual Conference decision noted that “[t]he Christian must respond to any problem, first of all, as Christian. It is God, revealed in Jesus Christ, who sounds the drum to which we march… The Christian knows that love can heal where law can only restrict unless it is enlivened by true regard for each other’s welfare.” CHURCH OF THE BRETHREN, STATEMENT OF THE 1977 ANNUAL CONFERENCE: ETHICS. LAW AND ORDER 2 (1977). The statement did not provide further comment on how members should respond to litigation demands present in today’s society.

This is more than a call for a list of alternative resolution processes of which there are many. Rather, it is a call to affirm our Christian stance when we are faced with litigation, as willing or unwilling litigants, as brothers and sisters in Christ, and as members of the Church of the Brethren.

Affirmed and Passed to the Western Plains District Board, by the Haxtun Church of the Brethren, on 18 Jan 1998.

Rev. Roy Pfaltzgraff, Pastor
Deb Crossland, Church Clerk

Action of the District Board: On February 28, 1998, the Western Plains District Board agreed to forward the query to the 1998 District Conference, meeting in McPherson, KS for inclusion in the conference agenda.

Ken Frantz, Board Chair
Sharon Leonard, Writing Clerk

Action of the Western Plains District Conference: Passed on to Annual Conference, by the Western Plains District Conference, meeting on August 7, 1998 in McPherson Kansas.

Larry L. Ditmars, Moderator
Sharon Leonard, Writing Clerk

Action of the 1999 Annual Conference: Alma Long, a Standing Committee member from the Northern Ohio district, presented the recommendation from Standing Committee that the query be accepted, that a three member study committee be elected to draft a position paper and report back to the 2001 Annual Conference. Additionally, the position paper may include, but not be limited to, the following:

1. examination of the biblical texts in light of their cultural context;
2. provision of our denominational and historical perspective;
3. interpretation of the biblical texts in light of our contemporary setting;
4. compilation of alternatives to litigation;
5. identification of appropriate and inappropriate responses to and uses of litigation for individuals, congregations, and church agencies.

The delegate body adopted the recommendation of Standing Committee. Jeff A Bach, Janet Mitchell-Dix, and Marty Smelt West were subsequently elected to serve on the committee. Janet Mitchell-Dix later resigned from the committee, and Timothy Monn was appointed to fill the vacancy.

Report of the Committee

This paper responds to the query by affirming our Christian approach when facing the challenges of litigation. This paper offers more than alternative resources; it offers a new commitment to God’s reconciling grace in how we deal with conflict.

1. Litigation is not the preferred way to resolve disputes

   The major problem facing us is not litigation, but conflict. How should we, as congregations and as members of the Church of the Brethren, resolve conflicts? We firmly believe Brethren should use their best efforts to promote methods of resolving disputes that do not require litigation.

   We urge members of the Church of the Brethren to find alternatives to litigation. Church of the Brethren congregations, districts and the denomination shall cultivate among our members a new sense of mutual dependence and trust, responsibility and accountability grounded in the grace of Jesus Christ to help mediate disagreements between believers. The goal we seek as a Christian community is that litigation among members and by members would become undesirable and ultimately unnecessary.

   In modern America, litigation has become a primary way to resolve disputes, but it may not be the best way. Litigation itself is a very long and involved process. Even when people decide to use litigation, or become unwilling participants in litigation, they retain the option to settle disputes at any time during the process, through mediation, counseling, or some other settlement process. Thus, litigation and alternative dispute resolution systems may be complimentary to each other, neither excluding the use of the other.

   When we speak of litigation in this paper, we are referring to contested court hearings, pitting one side against the other. We are not referring to the myriad of administrative-type determinations or Judicial acts, such as approving settlement agreements in divorce proceedings or property transfers in probate proceedings, delegated to our legal system in the United States.

2. Our Heritage

   In urging our members to avoid litigation, we look to the New Testament for guidance.

   We put our trust in Jesus Christ and the reconciliation he makes possible by grace with God and with others. We believe that the new era of Christ’s reign has already begun while we await its fulfillment. We believe the New Testament gives the fullest witness to Christ and is sufficient authority for our faith. As followers of Jesus, we have alternatives of reconciliation that secular judicial processes cannot offer.

   Jesus’ instructions to disciples to make friends with an accuser before a court hearing (likely a Jewish court) (Mart. 5:25) result from the possibilities of faith. The teaching, to offer more to one who would sue than what is asked, is possible only for those who have seen in Jesus God’s new way of acting, and who share the risks of this new way with a faith community of fellow disciples. The context of the Sermon on the Mount, in which these teachings appear, promises alternatives of reconciliation for those who trust in Jesus’ way. Similarly, the process of restoring relationships disrupted by sin, as described in Matthew 18, promises hopeful alternatives to Christians, signs to others of God’s reconciling way. Jesus also reminds us that broken interpersonal relationships affect our relationship with God. (Matt. 5: 23)

   Paul’s advice to the Corinthians that recourse to secular courts is a defeat for Christians (1 Cor. 6) grows out of a similar conviction that for Christians, an alternative exercise of power leading to reconciliation is open through Jesus’ living, his death and resurrection.

   The letter of James names specifically the evil of wealth and material desire as the cause of litigation against the poor (James 2:6). In contrast, God has chosen the poor and honors them, entrusting disciples with care for the poor that models Jesus’ ministry. The letter of James repeatedly affirms that only God is a just judge.

   All of these biblical teachings arose in a setting in which Jewish law and the law of the Roman empire impinged upon and at times conflicted with the lives of early Christians. Non-Jewish Christians had little relationship to Jewish courts. None of these systems resembled the court system of American democracy. Yet there is little evidence in the New Testament that Jesus or the ancient church imagined that special conditions could make litigation among believers a desirable practice. Indeed, some of the same dangers of Jesus’ time, such as the rich exploiting the poor, are still lively dangers in courts in democratic governments. Jesus and the many early Christians who were not Roman citizens had no access to the privileges of Roman law which Roman Christians, such as Paul, had.

   At the same time that Jesus and the New Testament direct believers away from litigation as an avenue to resolve disputes, Acts suggests that at least Paul did not entirely dismiss the legal system’s aid. He used the privilege of his Roman citizenship for redress of injustice by demanding a public apology for being beaten without charges (Acts 16:37-40). He appealed his arrest in Jerusalem to an imperial hearing (Acts 25:11). At the same time, he refused to take advantage of the weaknesses of Roman justice by not giving bribes (Acts 24:26). There may be times when Christians could morally use legal opportunities.

   Brethren, being disciples of Jesus who look to the teachings of the New Testament, reflect similar mixed attitudes about the legal system. Repeatedly, Brethren have counseled members against using litigation in an adversarial role. However, Brethren seemed to have used legal instruments and processes in matters related to real estate, wills, trusts and businesses. In the nineteenth century, Annual Meeting reluctantly gave permission for Brethren acting as executors of estates to use the legal system to collect outstanding debts. Typically, Annual Meeting encouraged people in such situations to consult with their congregations for moral guidance to know what were the limits which faithfulness to Christ would place on such proceedings.

   In light of the New Testament teachings, we view with regret the times the Church of the Brethren as a denomination has engaged in litigation. Examples occurred during the divisions of the 1880s, when in a few cases, the body now known as the Church of the Brethren litigated to retain ownership of church property. Sadly, such instances have also occurred in the twentieth century.

   Thus, the Brethren, like the New Testament Christians, have not been absolute purists in never using recourse to the legal system. At the same time, Brethren have traditionally accepted the New Testament view that judicial systems arc not desirable nor conducive for the kind of reconciliation that Jesus Christ makes possible. The teachings of the New Testament, the guidance of the Holy Spirit, and the moral counsel of the discipleship community have all made Brethren reluctant to use the legal system and to be cautious when approaching it. In contrast to historical Brethren values and practice, however, litigation today has become a more prominent dispute resolution system in American life. Furthermore, members of the Church of the Brethren no longer live separate and apart from mainstream society. As a result, Brethren find themselves in a very different world in the twenty-first century regarding the use and frequency of litigation.

3. Litigation has become the United States’ primary dispute resolution system.

   American society resolves disputes in a variety of ways, but the most common way has become litigation in the state and federal court systems. Since World War II, the use of litigation has expanded significantly. In 1954, the U. S. Supreme Court helped fuel this process in the area of civil rights, by ruling that government-sanctioned racial segregation violated the federal constitution. Consequently, many federal and state laws were passed, giving both people of color and white women access to the courts for the first time to contest discrimination. Litigation expanded beyond business disputes and criminal law into new areas of civil rights.

   Another area where litigation has expanded significantly is in the area of family law. As American society began to break out of traditional family patterns, family disputes became more common, leading to increases in the incidence of divorce. Because our society had not developed any alternative dispute resolution system, use of courts and litigation became the primary way to resolve disputes over family and financial issues arising out of divorce.

4. Alternatives to litigation

   Despite this expansive use of litigation, it is not a caring or healing method of dispute resolution. As Christians, we must develop alternatives.

   In urging members to avoid litigation, we recognize that this will be difficult, and will require strong congregational support. In the past, Annual Conference referred members to counsel with their congregations when questions about litigation arose. This advice is still sound, although many congregations have failed to cultivate the levels of trust, accountability, mutual support and financial aid to make this advice credible. We recommend that the Church of the Brethren start anew to become the kinds of congregations that help one another avoid litigation. If we seek to avoid litigation, it will be especially necessary to help bear the burdens of members who might otherwise be discriminated against if they do not use litigation to secure fair legal treatment.

   In seeking alternatives to litigation, mediation is currently the most common alternative dispute resolution being developed in many communities. We encourage Brethren to expand use of mediation services offered by church-related organizations, including several related to the Brethren and other Anabaptist groups. We recommend that the Church better inform members about mediation alternatives. We encourage the Church to set goals for increasing the number of people who have received training in mediation skills. We ask the Church to provide financial support to make possible the training of more mediators.

   When members find themselves the objects of unwilling litigation, we urge congregations, districts and the denomination to strongly encourage mediation services, with the Church sharing the costs of mediation that members incur. Should members incur costs as the result of unwilling litigation, congregations, districts and the denomination may prayerfully choose to share those costs.

   In the spirit of reconciliation modeled by Christ, mediation is the preferred way to resolve conflicts. This is particularly important in family disputes that involve children, where continuing cooperation between parents is needed. Churches should count financial aid for mediation as a part of the ministry to families facing divorce, along with counseling and spiritual care in the hope of reconciliation and restoration. We recommend that congregations take active roles of ministry to families in dispute, and not remain passive or consider such conflicts to be “Private matters.” Family disputes and divorce affect the whole congregation where they occur. We ask that congregations offer counseling and mediation ministries that offer the hope of reconciliation rather than adversarial litigation.

5. The legal system is also used in the United States to offer protection and care.

   We recognize that in a limited number of situations, litigation may be the only way to channel violence into a nonviolent alternative. In family disputes, the legal system offers protection to spouses and children from the violence of other family members. The 1996 Congregational Ethics paper recognizes this and recommends that congregations comply with state laws mandating the reporting of physical abuse of children. It recommends that congregations go beyond any legal duties and deal with problems of abuse “forthrightly, promptly, and fairly, to stop the behavior in question, minister to any victim, effect change in the violator, and seek reconciliation” (Guideline 20). Again, the legal system offers some, but limited, protection from psychological and/or physical abuse within families. In family violence situations, some Brethren believe litigation and the intervention of a court may be preferable to mediation. When a significant power imbalance exists between the parties to a dispute, court intervention may help equalize such a power imbalance when the church cannot or will not help. If Brethren wish to assist members in avoiding litigation, then we must be willing to intervene and protect the most vulnerable among us from any further abuse.

   Another area where some Brethren have been active for years in using the legal system for protection has been in asylum litigation, seeking to use the U.S. legal system to protect immigrants from political and physical abuse in their homelands. As U.S. immigration laws have become harsher and less hospitable to immigrants since 1996, this is one area where Brethren may be called upon to support increased litigation as an alternative to violence.

   In international disputes, litigation is beginning to develop as a viable alternative to violence and war. Attention is called to our 1996 Statement on Nonviolence and Humanitarian Intervention:

   “In rejecting violence, but acknowledging the necessity for nonviolent initiatives, and physical restraint in a fallen world, Brethren must urge alternatives to military action, including mediation, negotiation, and nonviolent tactics… We endorse efforts to abide by and enforce international laws that prohibit military aggression and the denial of human rights—rules that have been established by the international community and are in accord with our understanding of the Gospel.”

   We recognize the expanding use of litigation in the field of international law as an alternative to physical violence and war.

   Just as our modern society has turned to the legal system to provide justice and protection, so have some Church of the Brethren members turned to legal careers to pursue ministries of justice and reconciliation. Many Brethren lawyers give credit to their religious beliefs as a source of encouragement in pursuing legal careers, despite the historical opposition of the denomination to the adversarial use of the legal system.

6. Study Issues for Congregations and Individuals

   This paper does not resolve all aspects for Brethren facing litigation, nor could it. It may create conflict in discussions about how to resolve conflict. This document is intended as a tool for congregations to work together to respond faithfully when circumstances might invite litigation. Such work calls for continued study, discussion and action grounded in faith in Jesus Christ and the New Testament. We recommend the following topics for further study.

   1. Congregations should discuss and plan what steps they are willing to take, including what costs they will bear, if they seriously want to help members avoid or forego litigation. We imagine this involves developing plans that deal realistically with the impact of foregoing litigation, and the caring ministries such alternatives will require.
   2. We encourage Brethren in all careers, including legal careers, to examine what it means to be conformed to Christ in our occupations and daily living.
   3. We recommend further study of the issues involved when a church body considers using litigation or the threat of litigation in pursuing their property or financial interests. We imagine this issue will need attention from the General Board, district boards, and congregational boards.

We commend to our members and congregations the witness of Jesus, and of the early Christians and the Brethren who have sought alternative ways of resolving conflict, rather than using litigation.

Jeffrey A. Bach, Chair
Timothy L. Monn, Recorder
Martha Smeltzer West

Action of the 2001 Annual Conference: Marty Smeltzer West presented the report with other members of the study committee present. The delegate body adopted the report with one amendment that has been incorporated into the text.

Committee expenses for travel, lodging, meals, and misc.

July 1999 – June 2000	$ 918.92
July 2000 – June 2001	2,067.46
Total committee expenses	$2,986.38