        IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


KIDANE BEYENE, GEBAR OGBE,                                          No. 78215-1-1
TAAME BEYENE, and TEMESGHEN
SAHLU,                                                              DIVISION ONE

                                 Appellants,                        UNPUBLISHED OPINION

                V.

TESFALDET TEKLE, ASEFASH
GHIRMAY, GHIRMAY SEQUAR, ISSAC
MEDIN, OGBAMICHAEL GOITOM, GAIM
DESTA, DEACON SHISHAY
MEBRAHTU, and DEBRE GENET
KIDISTI SELLASSIE ERITREAN
ORTHODOX CHURCH, a Washington
nonprofit corporation (as nominal
defendant for derivative purposes only),

                                 Respondents.                       FILED: May 20, 2019

         ANDRUS, J. — Four members of the Debre Genet Kid isti Sellassie Eritrean

 Orthodox Churchl appeal the trial court's dismissal of their claims against former

 elected members of the Church Administration. Beyene claims, among other

 things, that these individuals embezzled Church funds, misused Church assets,

 and failed to adhere to the Church's charter in conducting financial audits, holding

 meetings, and conducting elections.




          1 We will refer to the appellants collectively as "Beyene" for purposes of clarity. We will
 refer to the respondents collectively as "the Church."
No. 78215-1-1/2

        The trial court dismissed all of Beyene's claims, concluding the court lacked

subject matter jurisdiction. Because there are disputed issues of fact that must be

resolved before we can determine the applicability of the ecclesiastical abstention

doctrine, the ministerial exception, and the doctrine of deference to ecclesiastical

tribunals, we reverse and remand to the trial court to resolve these disputes of fact.

                                             FACTS

        Debre Genet Kidisti Sellassie Eritrean Orthodox Church, originally formed

in 1995, is a registered nonprofit corporation under the Washington Nonprofit

Corporation Act, chapter 24 RCW. It has between 100 and 120 active members

and another 100 to 150 inactive members. It is a part of the Eritrean Orthodox

Tweahdo Church Diocese of North America. The word "Tweahdo" is a Ge'ez2

word meaning "being made one" and refers to the belief in the one single unique

"Nature of Christ."

        In January 2015, the church members adopted a charter outlining the

Church's mission, structure, and leadership, the responsibilities of its priests and

deacons, and a dispute resolution process.3 Under the charter, the Church is

managed by a Church Administration, made up of a chairman, vice chairman,

secretary, treasurer, cashier, property manager, and head of Sunday school. The

Church Administration is elected every two years at what it calls a "Congress,"




         2 Ge'ez is an ancient language of Ethiopia from the South Semitic language family. Its
modern descendants are Tigre and Tigrinya. Heron, Cyril A., "A Christian Oasis: The Role of
Christianity and Custom in the Law of Ethiopia," 51 Cornell Intl L. J., no. 3, 753, 758 n. 43(2018).
         3 Beyene characterized the charter as the equivalent of a set of articles and bylaws of a
corporation. The Church, however, characterized the document as a "religious" document that
specifies how members will resolve their disputes internally.

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No. 78215-1-1/3

identified as the highest authority of the Church. The Congress, composed of at

least 51 percent of the Church's members, also elects an internal audit committee.

       Haile Woldelibanos, the current chairman of the Church, testified that the

Church has a hierarchical organizational structure led by the Congress. However,

Father Tesfamariam Weldeslassie, an ordained priest with the Church for over 25

years, testified that the Church is not hierarchical but is instead a congregational

church owing no duty or allegiance to any higher religious body.

       Beyene brought this lawsuit as a derivative action on behalf of the Church

against certain members who served as the Church Administration between 2015

and 2017. Beyene alleged that (1) the former Church Administration members

failed to conduct regular meetings in violation of article 23 of the charter; (2) the

March 25, 2017 election was not conducted per the charter;(3)the charter articles

governing the contractual responsibilities of the Church's priests were violated; and

(4)the former chairman distributed Church funds to his family members and others

in violation of the charter. Beyene sought a court order requiring a third-party audit

of the Church's property; requiring the Church to operate "in accordance with its

Articles of Incorporation and its Bylaws;" awarding damages against individual

respondents; and enjoining the individual respondents from involvement with the

Church as members of any future Church Administration.

       The Church moved to dismiss the complaint, contending that under the First

Amendment, the trial court lacked subject matter jurisdiction to adjudicate claims

involving the Church.      The Church presented evidence that the Church

Administrators named in the lawsuit were tasked with ensuring that the spiritual



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No. 78215-1-1/4

mission of the Church was fulfilled, guided by the spiritual principles of the Church.

These Church Administrators—all volunteers—were elected during a 2017

Congress, and were responsible for overseeing general meetings, strengthening

the relationship of the Church to its members, overseeing religious programs,

monitoring religious education programs, overseeing financial matters, and

employing priests.     Woldelibanos testified that Beyene himself had become

dissatisfied with Church Administration only after he was not elected to the Church

Administration during the 2017 Congress. He testified that Beyene began to raise

concerns about the way in which the prior Church Administration had interpreted

religious doctrine and managed the Church's relationship with priests hired by the

Church.

       Father Weldeslassie, however, testified that nothing in the Church's charter

precluded the court from intervening to resolve the members'disputes. He testified

that the Church Administration does not have any authority or responsibility for the

spiritual or religious aspects of the Church. He stated that responsibility for

spiritual or religious aspects is the sole responsibility of the priests and deacons of

the Church.

       Father Weldeslassie also testified that one of the primary issues in the

lawsuit is a request for an audit of Church property, including finances. He stated

that the request for financial audits "do not in any way involve Church doctrine or

beliefs." He denied that the dispute involved any Church spiritual matters. A

former Church Treasurer, Habte Micheal Ogba Micheal, and another founding

member of the Church, Alem G. Andemariam, similarly testified that the financial



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No. 78215-1-1/5

concerns raised by Beyene do not involve questions of Church doctrine or spiritual

matters.

       Furthermore, a former Secretary of the Church, Ghirmai Haile Sequar, and

a former Treasurer, Issac Medin, both named defendants in the lawsuit, testified

that when they were in office, they were concerned that certain Church

Administration officials were not following the Church's bylaws and failed to hold

regular meetings, to respond to questions about the management of Church

property and cash, to produce useable financial statements, to report all expenses

and income, and to conduct accurate audits. They also testified that these

concerns did not involve any tenants of the Eritrean Orthodox Church.

       The trial court granted the Church's motion to dismiss, concluding that the

ecclesiastical abstention doctrine and "the ministerial exception" barred it from

exercising subject matter jurisdiction over the claims. It stated that "[t]he Complaint

brought by the Plaintiffs implicates ecclesiastical matters and the Church's

selection of its spiritual leaders." It concluded that "any decision by this Court

would improperly entangle the Court in religious matters contrary to the First

Amendment."

       The trial court also concluded that the Church is "a hierarchically structured

church" with disputes governed by a dispute resolution provision of its charter, that

the "Plaintiffs agreed to be bound by the Church's Religious Charter and the

Plaintiffs submitted their claims to the decision-making ecclesiastical tribunal of the

Church," and that IT should be the Church's tribunal, in light of Church doctrine,

policies, and religious beliefs, that resolves the Plaintiffs' dispute, not this Court."



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No. 78215-1-1/6

       Beyene appeals, challenging the trial court's reliance on these deferential

doctrines to conclude it lacked subject matter jurisdiction over his claims.

                                     ANALYSIS

       CR 12(b)(1) permits a party to seek dismissal of a lawsuit based on a lack

of subject matter jurisdiction. A challenge to subject matter jurisdiction may be

either facial or factual. Outsource Servs. Mprnt., LLC v. Nooksack Bus. Corp., 172

Wn. App. 799, 806, 292 P.3d 147(2013). If the challenge is factual, the trial court

must weigh the evidence to resolve disputed jurisdictional facts. Id. at 807. The

party asserting subject matter jurisdiction bears the burden of proof on its

existence. Id. at 807. When a court grants a CR 12(b)(1) motion based on a

factual challenge, the appellate court accepts "the factual determination that

underpins the decision unless it is clearly erroneous." Id. at 807(internal quotation

marks omitted) (quoting 2 JAMES WM. Moore, MOORE'S FEDERAL PRACTICE, §

12.30[5], at 12-49 (3d ed. 2012). If the challenge is facial, only the sufficiency of

the pleadings is at issue and the existence of subject matter jurisdiction is a

question of law that the appellate court reviews de novo. Id.

       In this case, the Church raised a factual challenge to the trial court's subject

matter jurisdiction. It submitted evidence, by way of declaration testimony, to

support its argument that Beyene's claims should be barred by the ecclesiastical

abstention doctrine, the "ministerial exception," and the doctrine of deference to

ecclesiastical tribunals.   Beyene, in turn, submitted controverting declaration

testimony to defeat the applicability of these doctrines.




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No. 78215-1-1/7

        Courts generally may exercise subject matter jurisdiction over civil, contract,

and property rights involving church controversies.                 Org. for Preserving the

Constitution of Zion Lutheran Church of Auburn v. Mason (Mason), 49 Wn. App.

441, 445, 743 P.2d 848 (1987); see also Jones v. Wolf, 443 U.S. 595, 602, 99 S.

Ct. 3020,61 L. Ed. 2d 775(1979)(civil courts have the general authority to resolve

property disputes among factions within a congregation).                            Additionally,

controversies within a church over its leaders' compliance with its articles of

incorporation, bylaws, or constitution may be amenable to civil court resolution.4

Mason, 49 Wn. App. at 445-46. And secular courts may, in general, resolve

employment contract disputes asserted against a church.                      Gates v. Seattle

Archdiocese, 103 Wn. App. 160, 166-67, 10 P.3d 435 (2000).

        But because the First Amendment prohibits courts from entangling

themselves in matters of church doctrine or practice, several doctrines have

developed to limit civil courts' subject matter jurisdiction.               The ecclesiastical

abstention doctrine instructs courts to abstain from resolving disputes concerning

a religious organization's ecclesiastical affairs. Rentz v. Werner, 156 Wn. App.

423, 433, 232 P.3d 1169 (2010). "The First Amendment does not provide

churches with absolute immunity to engage in tortious conduct. So long as liability

is predicated on secular conduct and does not involve the interpretation of church

doctrine or religious beliefs, it does not offend constitutional principles." C.J.C. v.

Corp. of Catholic Bishop of Yakima, 138 Wn.2d 699, 728, 985 P.2d 262 (1999)


         4 Indeed, this very Church was previously a party in a lawsuit in which members challenged
the legality of board elections. See Kidisti Sellassie Orthodox Tewehado Eritrean Church v. Medin
noted at 118 Wn. App. 1022(2003)(unpublished)(court concluded election notice failed to comply
with RCW 24.03.080).

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No. 78215-1-1/8

(citing Sanders v. Casa View Baptist Church, 134 F.3d 331, 336 (5th Cir.), cert.

denied, 525 U.S. 868 (1998)).

       Whether the ecclesiastical abstention doctrine bars any claim requires a

factual inquiry, decided on a case-by-case basis. See Mason, 49 Wn. App. 446

(interpretation of an ambiguous contractual provision between congregation

members did not involve any ecclesiastical or doctrinal issues and was therefore

"within civil court jurisdiction in Washington"); Barnett v. Hicks, 114 Wn.2d 879,

880, 792 P.2d 150 (1990)(ecclesiastical abstention doctrine did not bar the court

from looking at whether a church's articles and bylaws had been violated); Gates,

103 Wn. App. at 166 (ecclesiastical abstention doctrine barred the court from

analyzing a pastoral assistant's employment contract because the dispute involved

evaluation of religious scripture, doctrine, and principles).

       A second doctrine asserted by the Church is the "ministerial exception" to

civil jurisdiction. Controversies touching on the relationship of a church and its

ministers are normally avoided by secular courts because the "introduction of

government standards to the selection of spiritual leaders would significantly, and

perniciously, rearrange the relationship between church and state." Gates, 103

Wn. App. at 166 (quoting Rayburn v. Gen. Conf. of Seventh-Day Adventists, 772

F.2d 1164, 1169(4th Cir. 1985). This "ministerial exception" would preclude a court

from adjudicating any claim that involves a church's selection or termination of its

ministers or spiritual leaders. Id. at 168-69, Elvio v. Ackles, 123 Wn. App. 491,

496, 98 P.3d 524 (2004) ("civil courts may not adjudicate matters involving a

church's selection of its spiritual leaders.")



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No. 78215-1-1/9

       The final doctrine raised in this case is the doctrine of deferring to the

decision of an ecclesiastical tribunal. A court may decline to resolve controversies

within a church when it has its own tribunal process for resolving them. Mason,49

Wn. App. at 445-46. This jurisdictional inquiry requires a court to "examine the

intrinsic characteristics of the church denomination involved . . . and determine

whether the civil courts must defer to mechanisms within that organization, which

were designed to resolve and render binding decisions in such disputes." Id. at

446.

       Under Mason, the focus is on the organizational structure of the church in

question. If the church is "congregational," or governed independent of any other

ecclesiastical body, the dispute should be resolved by the ordinary principles

governing nonprofit corporations. Id. at 447. If the local church, however, is a

subordinate member of some general church organization in which there are

superior ecclesiastical tribunals, the court must defer to and enforce a decision of

the highest church tribunal that has ruled on the questions. Id. "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." Id. at 448.

       Beyene has raised a number of different claims, some of which may fall

within the jurisdiction of civil courts, but some of which may not, depending on the

facts. Beyene alleged embezzlement, conversion, and the illegal distribution of

charitable assets.   For example, the complaint alleged that certain Church

Administration members unlawfully distributed Church funds to friends and family,

which appears to be purely secular conduct. These allegations, on their face,



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No. 78215-1-1/10

could fall within a civil court's jurisdiction to resolve property disputes without

implicating any church doctrine; therefore, they would not implicate ecclesiastical

matters.

        Beyene also alleged that the former Church Administration members failed

to conduct regular member meetings, failed to properly report on the Church's

finances, and failed to approve employment contracts with the Church's priests.

Beyene asserted a claim of "tortious interference," alleging that individual

defendants, acting for their own interests, "are attempting to cause, and have

caused the Church to fail to provide the services set forth in the Bylaws."5 Beyene

has also asserted a claim of "unauthorized assumption of corporate powers,"

alleging that individual defendants have "purported to act as the Church, a

nonprofit corporation without authority to do so." Finally, Beyene requested,

among other things, a court order enjoining individual defendants from having any

future involvement as members of the Church Administration or as auditors.

       Some of these allegations or claims could, depending on the facts, infringe

on or implicate church practice or doctrine. For example, Woldelibanos testified

the charter is a religious document under which the Administration members are

tasked with making decisions consistent with the Church's sectarian mission. He

also testified that Beyene's concerns are not related to financial mismanagement,

but are instead focused on how the Administration was interpreting religious

doctrine and managing relationships with priests the Church had hired. Beyene's

evidence, however, indicates the charter is not religious in nature and the


        5 Beyene confirmed at oral argument that any reference to bylaws in the complaint is a
reference to the charter.

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No. 78215-1-1/1 1

Administration members have no spiritual or religious responsibilities. Father

Weldeslassie testified that none of the individual defendants had any spiritual or

religious responsibilities within the Church.

       It is also unclear from the complaint if Beyene challenged any decision by

the former Church Administration members to retain any priests or seeks a court

order to enjoin spiritual leaders from retaining such roles within the Church. Such

claims or requests for relief could in fact interfere with the Church's ecclesiastical

affairs. If the trial court were to conclude that Beyene's claims relating to the

priests' contracts or the request to bar certain individuals from holding

administrative roles are not efforts to dictate who can serve as a spiritual leader in

the Church, the ministerial exception would seem inapplicable. On the other hand,

if Beyene is challenging the Church members' right to select their own spiritual

leaders, the exception might apply.

       The record does not indicate that the trial court weighed the evidence to

resolve these disputed jurisdictional facts. Because the trial court did not apply the

proper standard under Outsource Servs. Momt., there are no findings of

jurisdictional facts for this court to review.

       We also lack sufficient findings to review the trial court's conclusions that

the Church is "a hierarchically structured church," or that Beyene "submitted [his]

claim to the decision-making ecclesiastical tribunal of the Church." There is no

evidence in this record that the Church is a subordinate member of a general

church organization with a superior ecclesiastical tribunal or that any such tribunal

issued a binding decision on Beyene's claims.


                                         -11-
No. 78215-1-1/12

       There is a dispute resolution provision in the charter.         According to

Woldelibanos, article 25 of the charter requires all "misunderstandings" to be

resolved by mediation. If mediation is unsuccessful,"members would vote on the

decision taken by the mediators." Woldelibanos testified that the Church had

selected a team of five mediators to try to help the parties resolve the disputes and

if the parties remain unwilling to resolve the matter, "the mediators will make a

proposal based on their findings at a general meeting so that the Church members

can vote on how to proceed." He stated that "[t]he Church's Charter indicates that

the vote by the Church members ultimately determines the outcome of the

dispute."

       But there is no evidence that disputes must be submitted for resolution to a

tribunal outside of the local church itself. A decision of a majority of a church's

members is typically not the type of ecclesiastical decision-making process to

which civil courts defer. See Southside Tabernacle v. Church of God, 32 Wn. App.

814, 819,650 P.2d 231 (1982). Father Weldeslassie testified that the Church pays

for itself and manages itself and that there is no higher affiliate body that resolves

disputes. This evidence suggests the Church has no "ecclesiastical tribunal" of

the type referred to in Mason. Where the record is insufficient for the appellate

court to review a crucial issue, we must remand to the trial court. 49 Wn. App. at

449.

       We conclude there are issues of disputed jurisdictional fact that the trial

court must resolve under CR 12(d) before determining the applicability of the

doctrine of ecclesiastical abstention, the ministerial exception, or the doctrine of



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No. 78215-1-1/13

deferring to an ecclesiastical tribunal. We therefore reverse and remand for further

proceedings consistent with this opinion.

      \Reversed.



                                                  ,A\-ce.L4.4A2.)


WE CONCUR:




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