Hutterville Hutterian Brethren, Inc. v. Waldner , 2010 S.D. LEXIS 161 ( 2010 )

#25553-a-SLZ
2010 S.D. 86IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
HUTTERVILLE HUTTERIAN
BRETHREN, INC., a South Dakota
non-profit Corporation, Plaintiffs,
and
JOHNNY WIPF, ALVIN HOFER,
and JAKE HOFER, SR., Individually,
as voting members and as directors
and/or officers of Hutterville
Hutterian Brethren, Inc., Plaintiffs and Appellants,
v.
JOHN G. WALDNER, GEORGE
WALDNER, SR., TOM WALDNER
and KENNITH WALDNER, as voting
members of Hutterville Hutterian
Brethren, Inc., Defendants and Appellees.
* * * *
APPEAL FROM THE CIRCUIT COURT
OF THE FIFTH JUDICIAL CIRCUIT
BROWN COUNTY, SOUTH DAKOTA
* * * *
HONORABLE JACK R. VON WALD
Judge
* * * *
JAMES E. MCMAHON
ROCHELLE R. CUNDY of
Murphy, Goldammer & Prendergast, LLP
Sioux Falls, South Dakota Attorneys for appellants.
JODY ODEGAARD SMITH
DON E. PETERSEN of
Morgan Theeler LLP
Mitchell, South Dakota Attorneys for appellees.
* * * *
ARGUED ON OCTOBER 5, 2010
OPINION FILED 11/17/10
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ZINTER, Justice
[¶1.] In this case we must determine whether a dispute regarding
governance of a religious corporation involves issues over which courts have subject
matter jurisdiction. We conclude that underlying religious controversies over
church leadership and the validity of member excommunications so pervade the
governance issue that it is beyond the jurisdiction of secular courts.
Background and Procedural History
[¶2.] Hutterville Hutterian Brethren, Inc. (Hutterville) is a nonprofit
religious corporation organized under the laws of South Dakota. As set forth in its
articles of incorporation, the purpose of the corporation is to promote the Hutterian
religious faith and the Hutterian Church.
[¶3.] Hutterian Church members live an agrarian, communal life based on
the Bible’s New Testament. Hutterville operates a farming enterprise, which is also
communal. All real and personal property is owned by the Hutterville Colony, and
all individual labor and services are for the sole benefit of the Colony and the
Hutterian Church. For a more detailed description and history of the Hutterite
colonies and their religion, see Decker ex rel. Decker v. Tschetter Hutterian Brethren,
Inc., 1999 S.D. 62, ¶¶ 3-5, 594 N.W.2d 357, 359.
[¶4.] In 1992 there was a schism within the Canadian-United States
Hutterian Church. Ninety-five of the 173 ministers of the local colonies repudiated
Rev. Jacob Kleinsasser’s leadership as Senior Elder. Senior Elder is a powerful
position because the Senior Elder acts as the final arbiter of issues affecting
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members of the Hutterian Church and the colonies. Those colonies that repudiated
Rev. Kleinsasser’s leadership opted to follow Rev. Joseph Wipf.
[¶5.] Although all parties claimed membership in the Hutterian Church, the
leadership followed and the resultant church affiliation at Hutterville Colony are
disputed issues in this case. The parties claimed church membership in one of three
ways. Appellees claimed membership through Hutterville Colony’s affiliation with
the Hutterian Brethren Church Group I, Schmieden-Leut Conference Inc., which
followed Rev. Kleinsasser. Appellants claimed membership through Hutterville
Colony’s affiliation with the Hutterian Brethren Church, Schmiedeleut Conference
Inc., which followed Rev. Wipf. But at times, both parties merely referred to
membership in “the Hutterian Church.” For ease of reference we use the latter,
most general description of the Church at Hutterville Colony except when necessary
to address a party’s specific contention.
[¶6.] Following the 1992 schism, most of the colonies adopted a new
constitution and reaffirmed their faith in the Hutterian Church as led by Rev. Wipf.
But Appellee George Waldner, Sr., the minister of the Hutterville Colony, remained
loyal to the leadership of Rev. Kleinsasser. Therefore, Hutterville Colony was one of
five South Dakota colonies that remained loyal to Rev. Kleinsasser and did not
reaffirm its faith under Rev. Wipf. Nevertheless, individuals following Rev. Wipf
were permitted to live in Hutterville Colony. This litigation arose out of the two
factions’ subsequent attempts to obtain control of the corporate governance of
Hutterville.
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[¶7.] The governance dispute had two phases. The first occurred through
the time the circuit court made a preliminary determination of Hutterville’s officers
and directors. The second occurred following the court’s ruling and a purported
excommunication of the court-determined officers and directors. The first phase
started in 2008, when Hutterville was controlled by Appellee officers and directors
who followed Rev. Kleinsasser. Appellee George Waldner, Sr., Appellee John G.
Waldner, and Appellant Johnny Wipf were directors and officers. George Waldner,
Sr. was president, John G. Waldner was secretary-treasurer, and Johnny Wipf was
vice president.
[¶8.] In 2008 and 2009, Appellant Johnny Wipf and other members of
Hutterville began attempts to replace the Appellee officers and directors.
Appellants wanted to obtain control of Hutterville in order to repudiate Rev.
Kleinsasser and follow Rev. Joseph Wipf. In August 2008, in an attempt to prevent
this attempted change of governance, Appellee George Waldner, Sr. called a special
meeting of Hutterville. The members at this meeting removed Appellant Johnny
Wipf (as a director and vice president) and Appellee John G. Waldner (as a
director). Appellee Tom Waldner was elected secretary-treasurer and vice president
(replacing Johnny Wipf), and Appellee Kennith Waldner was elected as a director.
[¶9.] Additional meetings and elections, however, resulted in further
officer/director replacements giving Appellants control. Nevertheless, Appellees
refused to recognize the new officers and directors. Appellees also refused to
relinquish control of the business and property of Hutterville’s farming enterprise.
As a result, in August 2009, Appellants commenced this action seeking a
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declaration that the individually-named Appellants – Johnny Wipf, Jake Hofer, Sr.,
and Alvin Hofer – were the properly elected directors of Hutterville. Appellants
also applied for a temporary restraining order to prevent Appellees – George
Waldner, Sr., Tom Waldner, and John G. Waldner – from acting as directors.
Appellees responded by applying for a temporary restraining order seeking to
restrain Appellants from acting as directors of Hutterville.
[¶10.] After hearing, the circuit court denied Appellees relief and granted
Appellants’ application for a temporary restraining order (also treated as a
preliminary injunction by stipulation of the parties). In reaching its decision, the
circuit court analyzed Hutterville’s articles of incorporation and bylaws regarding
meeting requirements. Based on those provisions, the court concluded that the
then-existing officers of Hutterville were: Appellant Johnny Wipf – president and
secretary-treasurer; and, Appellant Jake Hofer, Sr. – vice president. Hutterville’s
directors were determined to be Appellants Johnny Wipf, Jake Hofer, Sr., and Alvin
Hofer, along with Appellee Kennith Waldner. The court ordered that Appellees
George Waldner, Sr., John G. Waldner, and Tom Waldner were precluded from
acting as officers or directors of Hutterville unless they were properly elected.
[¶11.] The second phase of the governance dispute developed after the circuit
court’s decision. Although the individual Appellants had obtained control of
Hutterville, George Waldner, Sr. remained the minister of the Church. And, on
August 18, 2009, Appellee George Waldner, Sr. and two other Church elders issued
a Church resolution purportedly excommunicating the Appellants. Entitled,
“Resolution of Action Taken By Hutterian Church Group I,” the resolution provided:
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The undersigned, being duly authorized by Hutterian Church
Group I to act on its behalf, hereby declare that Johnny Wipf,
Alvin Hofer and Jake Hofer Sr., residents of Hutterville
Hutterian Colony, are hereby excommunicated/removed as
Members of the Hutterian Church, effective as of August 19,
2009. As a result of such excommunication, the said Johnny
Wipf, Alvin Hofer and Jake Hofer Sr. shall no longer be
considered Members of Hutterian Church Group I, nor shall they
be entitled to attend services or participate in Church activities.
(Emphasis added.) Three other voting members in the Johnny Wipf/Rev. Joseph
Wipf faction were excommunicated in a similar manner.
[¶12.] On October 18, 2009, following the excommunications, a special
meeting of Hutterville was held. The corporate minutes identify the fifteen voting 1
members who were present and the five voting members who were absent. The
minutes do not mention the presence or absence of the six people who were
“excommunicated.” The stated purpose of the meeting was to fill director and
officer “vacancies” previously held by Appellants. The minutes indicate that the
vacancies existed because Appellants had been excommunicated and “one who is not
a member of the Hutterian Brethren Church Group I, Schmieden-Leut Conference
Inc.” cannot be a member of Hutterville. The minutes reflect that, by unanimous
vote, Appellee George Waldner, Sr. was elected director and president, and Appellee
Tom Waldner was elected director, vice president, and secretary-treasurer.
1. Article XIV of the articles of incorporation and Article I Section I of the
bylaws provide that “[t[here shall be two classes of members. Voting
members shall be all male, married members and all others shall be non-
voting members[.]” The record reflects that certain other non-married males
may be voted into a voting membership.
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[¶13.] In response to the October 18 election, Appellants moved to amend
their temporary restraining order and preliminary injunction to reflect that they
had not vacated their positions as officers and directors. To support this request,
Appellants disputed their excommunications. They submitted affidavits of Mike
Tschetter and Johnny Wipf. Tschetter’s affidavit alleged that Appellants Johnny
Wipf, Jake Hofer, Sr., and Alvin Hofer remained “members of the Hutterian
Brethren Church.” Johnny Wipf’s affidavit similarly alleged that he, Jake Hofer,
Sr., and Alvin Hofer remained “members of the Hutterite Church.”
[¶14.] Appellee George Waldner, Sr. submitted an affidavit disputing Mike
Tschetter’s and Johnny Wipf’s affidavits. Waldner, Sr. asserted that the Appellants
“had been excommunicated/removed as members of the Hutterian Brethren Church
Group I, Schmieden-Leut Conference, Inc.” He also asserted that “one who is not a
member of Hutterian Brethren Church Group I, Schmieden-Leut Conference, Inc. is
not a member of [Hutterville].”
[¶15.] The circuit court heard argument regarding these new events and
scheduled an evidentiary hearing. But before the hearing, Appellees moved to
dismiss Appellants’ complaint for lack of subject matter jurisdiction. In support of
their motion, Appellees submitted another George Waldner, Sr. affidavit. In this
affidavit, Waldner, Sr. specifically alleged that “Hutterville members belong to the
Hutterian Brethren Church Group I, Schmieden-Leut Conference, Inc.” He alleged
that Rev. Kleinsasser was the senior elder or president of that conference. And, he
alleged that the Appellants were excommunicated “for failing to recognize and abide
by the rules of the Hutterian Brethren Church and for failing to agree to abide by
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the rules, regulations, directives, and authority of the presiding elder or elders of
the Hutterian Church.” At his deposition, George Waldner, Sr. explained that the
Appellants belonged to a different Church than the Church at Hutterville Colony.
Waldner maintained that the Church at Hutterville Colony was the Hutterian
Brethren Church Group I, Schmieden-Leut Conference, Inc., and the Appellants
belonged to a different Church:
A: Johnny Wipf and this group left our church. They joined the
different church. . . . This is church group one. . . . They joined
a different church, a reformed church. . . . They announced that
they joined another church. They don’t live in this church where
I am as the minister.
Q: But they belong to the Hutterian Brethren Church?
A: I don’t know if it’s Hutterian Brethren. It’s a different
church. It’s a reformed church.
Q: It’s a Hutterian Brethren Church.
A: It’s a different church.
Q: Is it called the Hutterian Brethren Church?
A: It’s a church group. They do not belong to our church.
Q: So you don’t know what the name of their church is?
A: I don’t know. It’s a reformed – yeah, it’s a reformed church.
It’s a Hutterite Reformed Church. 2
[¶16.] Appellants responded by submitting another Tschetter affidavit
claiming church membership through a different conference. Tschetter alleged that
on November 10, 2009, the elders “of the Schmiedeleut [C]onference . . . reaffirmed
that Johnny Wipf and his group were accepted and were members of the Hutterite
2. George Waldner, Sr.’s testimony was subject to vigorous cross-examination.
The cross-examination reflected that no Hutterville corporate documents
specifically referred to the “Group I” conference. Nevertheless, Waldner, Sr.
held to his position. As is discussed, infra ¶ 31, the corporate bylaws do
require membership adherence to the presiding bishop of the Hutterian
Church to which Hutterville members belong through Hutterville’s “local
church.”
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Brethren Church.” Tschetter further disputed Appellee Waldner’s assertion that
one who was not a member of the Hutterian Brethren Church Group I, Schmieden-
Leut Conference, Inc. was not a member of Hutterville. Tschetter finally impliedly
challenged the excommunications. Tschetter alleged that Appellees were not
members of the Schmiedeleut Conference, the “true Church,” and that the Jacob
Kleinsasser faction was not part of the Schmiedeleut Conference:
[T]he Jacob Kleinsasser faction [which the Appellees follow] is
not a member of the Schmiedeleut Conference of the Hutterian
Brethren Church as indicated by George Waldner in his
Affidavit. In fact, in Canada they have been refused the ability
to use the name “Schmiedeleut” Conference. That name lies
with the “true Church” which is part of the Schmiedeleut
Conference[.]”
(Emphasis added.)
[¶17.] After a hearing, the circuit court dismissed Appellants’ complaint
under SDCL 15-6-12(b)(1) for lack of subject matter jurisdiction. The court
concluded that the matter had become a religious dispute that deprived the court of
jurisdiction under the First Amendment. Appellants appeal contending that this
case only presents secular issues of civil corporate governance.
Decision
[¶18.] The issue is whether court resolution of the governance issue would
impermissibly entangle secular courts in religious disputes involving church
doctrine. A SDCL 15-6-12(b)(1) motion to dismiss for lack of subject matter
jurisdiction is a recognized method of raising this First Amendment issue. Decker,
1999 S.D. 62, ¶ 14, 594 N.W.2d at 362. We review jurisdictional issues de novo.
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City of Sioux Falls v. Missouri Basin Mun. Power Agency, 2004 S.D. 14, ¶ 9, 675
N.W.2d 739, 742.
[¶19.] Appellants first argue that the circuit court would not have to consider
the religious disputes regarding the controlling elders, “true church” affiliation, and
the validity of the excommunications. Appellants point out that these issues were
not raised in the complaint, answer, or counterclaim. Those pleadings only raised
issues regarding compliance with corporate articles and bylaws governing the
removal of members, directors and officers, and the requirements for meetings.
Appellants argue that the circuit court could restrict its review to those non-
religious issues raised in the pleadings.
[¶20.] But we are presented with a factual Rule 12(b)(1) subject matter
jurisdiction question. Therefore, courts consider matters outside the pleadings.
Decker, 1999 S.D. 62, ¶ 14, 594 N.W.2d at 362 (citing Osborn v. United States, 918
F.2d. 724 (8th Cir. 1990)). As Osborn explained:
A court deciding a motion under Rule 12(b)(1) must distinguish
between a “facial attack” and a “factual attack.” In the first
instance, the court restricts itself to the face of the pleadings,
and the non-moving party receives the same protections as it
would defending against a motion brought under Rule 12(b)(6). .
. . In a factual attack, the court considers matters outside the
pleadings, and the non-moving party does not have the benefit
of 12(b)(6) safeguards.
918 F.2d at 729 n.6 (citations omitted). In factual attacks, the court must also
weigh the evidence and resolve disputed issues of fact affecting the merits of the
jurisdictional dispute.
Because at issue in a factual 12(b)(1) motion is the trial court’s
jurisdiction-its very power to hear the case-there is substantial
authority that the trial court is free to weigh the evidence and
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satisfy itself as to the existence of its power to hear the case. In
short, no presumptive truthfulness attaches to the plaintiff’s
allegations, and the existence of disputed material facts will not
preclude the trial court from evaluating for itself the merits of
jurisdictional claims.
Id. at 730. Thus, evidentiary hearings, affidavits, documents, and live testimony
may all be considered to resolve the subject matter jurisdiction dispute. Id.[¶21.] Because Appellees raised a factual Rule 12(b)(1) attack, we may not
simply ignore the factual allegations regarding true church leadership, church
affiliation, and the validity of the excommunications. Instead, we must determine
whether the corporate governance issues can be resolved without resolving those
disputes involving religious doctrine.
[¶22.] “The First Amendment to the United States Constitution and art VI, §
3 of the South Dakota Constitution preclude civil courts from entertaining religious
disputes over doctrine, leaving adjudication of those issues to ecclesiastical
tribunals of the appropriate church.” Decker, 1999 S.D. 62, ¶ 16, 594 N.W.2d at
362. The fact that a portion of the dispute involves secular claims does not override
this constitutional protection. Id. “Even when possession or ownership of church
property is disputed in a civil court, ‘there is substantial danger that the State will
become entangled in essentially religious controversies or intervene on behalf of
groups espousing particular doctrinal beliefs.’” Id. (quoting Serbian E. Orthodox
Diocese for the U.S. and Can. v. Milivojevich, 426 U.S. 696, 709, 96 S.Ct. 2372, 2380,
49 L.Ed.2d 151, 162 (1976)). Therefore, a civil court may only adjudicate a church
controversy if it can do so “without resolving underlying controversies over religious
doctrine.” Milivojevich, 426 U.S. at 710, 96 S.Ct. at 2381.
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[¶23.] Control of Hutterville is governed by its articles and bylaws.
Appellants argue that the relevant corporate documents regarding membership,
meeting requirements, and removal of members, directors and officers do not
incorporate religious doctrine and no tenet or rule of the Hutterian Church is
implicated. Therefore, Appellants argue that control of Hutterville is a secular
issue that the circuit court could adjudicate under “neutral principles of law.” See
Decker, 1999 S.D. 62, ¶ 18, 594 N.W.2d at 364 (citing Jones v. Wolf, 443 U.S. 595,
604, 99 S.Ct. 3020, 3026, 61 L.Ed.2d 775 (1979)). “The neutral-principles approach
calls for a completely secular examination . . . into church documents . . . , state
statutes and other relevant evidence to determine [the dispute].” Id. “The key to
the neutral-principles approach is that such determination is to be made
‘exclusively on objective, well-established concepts of [ ] law familiar to lawyers and
judges.’” Id. (quoting Jones, 443 U.S. at 603, 99 S.Ct. at 3025).
[¶24.] In Decker, this Court concluded that it could not apply the neutral-
principles approach in considering a number of civil causes of action arising out of
the same Rev. Kleinsasser/ Wipf control struggle in another Hutterite colony. In
that case, Tschetter Hutterian Brethren, Inc. was split between members following
Rev. Joseph Wipf and those following Rev. Kleinsasser. The majority of the colony
(those who followed Rev. Wipf) voted to expel members who followed Rev.
Kleinsasser. The Rev. Kleinsasser followers refused to leave and filed suit in an
attempt to retain control of the colony. Their suit involved a number of causes of
action, but all alleged acts had their origin in the Rev. Kleinsasser/Wipf controversy
and “arose from their excommunication from the church and attempted expulsion
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from the colony.” Id. ¶ 20, 594 N.W.2d at 364. Although those plaintiffs requested
a determination of “whether these acts were done with malice thus purporting to
negate any claim of religious privilege,” id., the circuit court concluded that the suit
was essentially a religious dispute. We affirmed, citing Jones, 443 U.S. at 609 n. 7,
99 S.Ct. at 3028, for the proposition that the neutral principles of law doctrine “runs
afoul of the First Amendment . . . when church doctrine and policy ‘pervade’ the
documents governing the church[.]” Id. ¶ 18, 594 N.W.2d at 364. In concluding that
the Rev. Kleinsasser/Wipf religious dispute pervaded all causes of action, we
explained:
[T]here is no separation of religious life from a secular life in a
Hutterite colony because there is no separate secular life. The
colony is run and its members, whether the followers of Rev.
Kleinsasser or Rev. Wipf, all conduct their lives on religious
absolutes based on the Bible and the Ten Commandments[.]
Id. ¶ 23, 594 N.W.2d at 365.
[¶25.] Appellants, however, point out that in this case both parties filed
pleadings invoking the court’s jurisdiction to determine Hutterville’s corporate
governance under its articles and bylaws. Although both factions sought court
intervention, it initially appeared this dispute could be determined under neutral
principles. In fact, in its first decision, the circuit court resolved the director/officer
dispute by a neutral-principles review of Hutterville’s articles of incorporation and
bylaws regarding quorums and the calling of special meetings.
[¶26.] But after the circuit court’s initial decision, the nature of this dispute
changed. The individual Appellants were purportedly excommunicated and another
election was held based upon “vacancies” created by the excommunications. The
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minutes reflect that at the subsequent election, the Appellees were elected officers
and directors of Hutterville by a majority of the voting members (even if the six
“excommunicated” members were still considered voting members). And
significantly, even though Appellants argue that the governance issue may be
resolved by neutral principles governing corporate law, Appellants themselves
advanced religious arguments to sustain their claims to director and officer
positions. They submitted affidavits contesting the validity of their
excommunications. They argued that George Waldner, Sr. and the other two
excommunicating elders were not the elders of the true Hutterian Church. They
specifically asserted that the Rev. Kleinsasser faction, whose senior elders
purportedly excommunicated Appellants, did not follow the “true Church,” and that
Appellants remained members of the “true Church.” Consequently, this case is like
Decker. It requires resolution of a dispute over “[one group’s] excommunication from
the church[.]” Id. ¶ 20, 594 N.W.2d at 364. The neutral-principles approach does
not apply in such cases as it “has never been extended to religious controversies in
the areas of church government, order and discipline, nor should it be.” Hutchison
v. Thomas, 789 F.2d 392, 396 (6th Cir. 1986).
[¶27.] Appellants, however, argue that the circuit court could avoid the
excommunication and related true elder/church issues if the court only determined
the validity of calling and conducting the October 18 special meeting wherein
Appellees were elected. Appellants contend that the circuit court could restrict its
review to determining whether sufficient officers and directors called, and whether
sufficient members were present to conduct, the meeting. Appellants point out that
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under Article XIV of the articles of incorporation (regarding membership of
Hutterville), membership is granted to all persons residing at the colony who are
dependent upon its treasury for support. Appellants also point out that neither this
Article nor any other corporate provision mentions removal of members, officers, or
directors by excommunication. Because the purportedly excommunicated members
continued to reside in, and were supported by, the Colony, Appellants contend they
retained their positions in Hutterville notwithstanding the alleged
excommunications. This contention, however, overlooks other articles and bylaws
tying Hutterville membership, directorships, and officerships with membership in
the Hutterian Church.
[¶28.] Hutterville’s articles of incorporation and bylaws reflect that
governance of the corporation is inseparable from membership in the Hutterian
Church and compliance with its religious principles. First, religious language
pervades Hutterville’s requirements for membership, 3 the position necessary to
constitute quorums and elect directors who elect the officers that call meetings of
3. The bylaws contain the following religious provisions regarding membership:
 “All members of this Corporation shall recognize and abide by
the rules of the Hutterian [C]hurch, . . . and each and all of the
members agree to abide by the rules, regulations, directives, and
authority of the presiding bishop or bishops of the Hutterian
Church to which all members of this corporation, through its
local church, belong.”
 All members must “follow the teachings and tenets of the
Hutterian Brethren Church.”
 All members “shall recognize and abide by the rules of the
Hutterian Brethren Church . . . and each and all of the members
agree to abide by the rules, regulations, directives and authority
of the presiding bishop or bishops of the Hutterian Church[.]”
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the corporation. Specifically, Article XI of the articles of incorporation provides:
“This corporation is a church and a religious corporation and its members shall be
associated with the Hutterian Church[.]” Indeed, Appellants concede that
Hutterville’s articles and bylaws “refer to its members as being church members.”
Appellant’s Br. 21. Second, regarding the board of directors, Article II section 1 of
the bylaws provides that “a director [on the board of directors] need not be a
member of the corporation, but must be a member of the Hutterian Church.”
Finally, regarding officers, the articles and bylaws are silent. At oral argument,
however, all parties agreed that a person cannot be an officer of Hutterville unless
that person is also a member of the Church.
[¶29.] Thus, Church membership is a prerequisite for all three positions. A
person cannot be a member, director, or officer of Hutterville unless that person is a
member of the Hutterian Church. For that reason, to determine Appellants’
corporate governance issue involving quorums of the voting members and the
validity of calls of meetings, the circuit court would have to determine the status of
the Appellants’ membership in the Church. To determine that membership issue,
the circuit court would have to determine the validity of the Appellants’ purported
excommunications. And that necessarily leads to the religious questions of what is
the “true” Hutterian Church at Hutterville Colony and who are its “true” elders?
[¶30.] Although these are obvious religious questions, Appellants argue these
questions may also be avoided because irrespective of conference affiliation, they
remain members of the broad “Hutterian Church.” Although Appellants
acknowledge Appellees’ position that Appellants were excommunicated from the
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Group I, Schmieden-Leut Conference, Appellants point out that the articles and
bylaws are silent regarding membership in groups or conferences of the Hutterian
Church. Appellants further point out that in many religions, a person is considered
a member of a church irrespective of the person’s association with a particular
conference, division, synod, assembly or subdivision.
[¶31.] But determining the local church affiliation at Hutterville Colony is
necessary to determine the corporate governance issue under Hutterville’s articles
and bylaws. A determination of local affiliation is necessary because the articles
and bylaws tie Hutterville membership to the local Church. Article XI of the
articles provides that “[a]ll rights of membership, ground for their expulsion and
managerial rules over the members of the corporation . . . shall be prescribed by the
[b]y-laws, none of which shall be contrary to the tenets, rules or faith of the
Hutterian Church.” One such bylaw, Article IX, section 3, ties members’ adherence
to the authority of the presiding bishop or bishops of the Hutterian Church to which
all members of the corporation belong through the local church. That bylaw
provides:
All members of this Corporation shall recognize and abide by the
rules of the Hutterian Brethren [C]hurch, . . . and each and all of
the members agree to abide by the rules, regulations, directives,
and authority of the presiding bishop or bishops of the Hutterian
Church to which all members of this corporation, through its
local church, belong.
(Emphasis added.) Therefore, the circuit court could not look simply to Appellants’
status as members of the “Hutterian Church.” To determine voting membership in
Hutterville, the circuit court would have to determine the “true” Church and elders
at Hutterville Colony in order to determine validity of the excommunications. This
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would ensnare the circuit court in determining whether Rev. Kleinsasser or Rev.
Wipf was the “presiding” leader of the Hutterian Church at Hutterville Colony and
whether Appellants failed to abide by that leader’s authority. But as the Supreme
Court noted in Milivojevich, civil courts have no subject matter jurisdiction when it
comes to such matters of “theological controversy, church discipline, ecclesiastical
government, or the conformity of the members of the church to the standard of
morals required of them.” 426 U.S. at 714, 96 S.Ct. at 2382.
[¶32.] Appellants’ reliance on Second International Baha‘i Council v. Chase,
326 Mont. 41, 106 P.3d 1168 (2005) and Viravonga v. Samakitham, 372 Ark. 562,
279 S.W.3d 44 (2008) is misplaced. The controversy in Chase followed a schism
within the Second International Baha‘i Council resulting in different parties
claiming the right to control church property through membership on a governing
board. Chase claimed that opposing board members had “automatically” been
removed from membership for “covenant-breaking.” But both parties relied on the
same resolution that “by its own terms constitute[d] an authoritative ruling on the
precise point” at issue. Chase, 326 Mont. at 48, 106 P.3d at 1174. Under that single
controlling resolution, automatic removal was not authorized: “a finding by the
Board . . . [was] a necessary precondition for involuntary removal.” Id. Therefore,
the court did not need to determine the religious question whether covenant
breaking had occurred. It only determined the “ordinary factual inquir[y]” whether
the Board had acted (made a finding) to remove members under the controlling
resolution. Id. That purely secular task is far different than determining
Appellants’ dispute, which would involve determining the leaders, members, and
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affiliation of the Hutterian Church at Hutterville Colony.
[¶33.] Similarly, in Viravonga the court “did not delve into matters that were
essentially religious in nature, but rather applied neutral principles of law
concerning election procedures” in a board of directors election. 372 Ark. at 571,
279 S.W.3d at 50-51. To the extent there was a religious dispute regarding voter
eligibility, the trial court utilized provisional ballots. Those ballots demonstrated
that if the trial court had erred in considering a religious issue of voter eligibility,
there was no prejudice. Therefore, the Arkansas Supreme Court did not reach the
First Amendment question on that issue. Finally, the remaining issues regarding
membership and power to remove members were not controlled by religious
doctrine. They were controlled solely by a historical issue of fact regarding an
affiliation that had taken place before the current controversy. Therefore, unlike
the case we consider today, the membership and removal issues in Viravonga could
be decided by simple neutral principles. Id. at 574, 279 S.W.3d at 53.
Conclusion
[¶34.] Voting memberships, directorships and officerships of Hutterville are
inseparable from religious principles and contemplate local Church membership.
Accord Decker, 1999 S.D. 62, ¶ 6, 594 N.W.2d. at 359. After the excommunications
and the October 2009 election, a resolution of the governance question became
dependent upon resolution of a dispute regarding membership in and expulsion
from the “true” Hutterian Church by the “true” church elders of the local church at
Hutterville Colony. Such matters of membership are shielded from judicial scrutiny
under the First Amendment. See Alexander v. Shiloh Baptist Church, 62 Ohio
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Misc.2nd 79, 84-85, 592 N.E.2d 918, 922 (Ohio Com. Pl. 1991). See also Burgess v.
Rock Creek Baptist Church, 734 F. Supp. 30, 33 (D.D.C. 1990) (providing, “the
question of determining who is and who is not a member of [this Baptist] Church is
a matter of ecclesiastical cognizance”); Grunwald v. Bornfreund, 696 F. Supp. 838,
840-41 (E.D.N.Y. 1988) (providing, “[t]he mere expulsion from a religious society,
with the exclusion from the religious community, is not a harm from which courts
can grant a remedy”); Nunn v. Black, 506 F. Supp. 444, 448 (D.Va. 1981)
(concluding that in a hierarchical church, “this court is compelled by the First
Amendment to avoid adjudicating the issue of whether the plaintiffs’ expulsion was
in accordance with procedure prescribed by the [church]”). Because religious issues
arising from the Rev. Kleinsasser/Wipf controversy pervade the corporate
governance issue, corporate governance cannot be decided without “extensive
inquiry into religious doctrine and beliefs” of the Hutterian faith. See Decker, 1999
S.D. 62, ¶ 22, 594 N.W.2d. at 365 (quoting Wollman v. Poinsett Hutterian Brethren,
Inc., 844 F. Supp. 539, 543 (D.S.D. 1994)). Therefore, South Dakota courts have “no
constitutional basis to interfere[.]” See id. ¶ 24, 594 N.W.2d. at 365. “[A]djudication
. . . by the courts of this state is precluded by the First Amendment to the United
States Constitution and art VI, § 3 of the South Dakota Constitution.” See id.
[¶35.] Affirmed.
[¶36.] GILBERTSON, Chief Justice, and KONENKAMP, MEIERHENRY,
and SEVERSON, Justices, concur.
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