                          STATE OF MICHIGAN

                           COURT OF APPEALS



RICHARD P. HILLENBRAND,                                            FOR PUBLICATION
                                                                   September 15, 2015
               Plaintiff-Appellant,                                9:00 a.m.

v                                                                  No. 319127
                                                                   Saginaw Circuit Court
CHRIST LUTHERAN CHURCH OF BIRCH                                    LC No. 13-019736-CK
RUN,

               Defendant-Appellee,
and

LUTHERAN CHURCH-MISSOURI SYNOD,

               Amicus Curiae.



Before: WILDER, P.J., and SERVITTO and STEPHENS, JJ.

STEPHENS, J.

       Plaintiff appeals as of right from the opinion and order of the trial court granting
defendant’s motion for summary disposition under MCR 2.116(C)(4). We affirm.

                                      I. BACKGROUND

        Defendant is a Lutheran church. Plaintiff served as pastor at defendant church for seven
years, from 2005 until his employment was terminated in 2012. In 2013, plaintiff filed a
complaint against defendant that alleged defendant, as a member of The Lutheran Church –
Missouri Synod (“LCMS”), wrongfully terminated plaintiff’s employment in violation of
LCMS’s constitution. Plaintiff requested that the trial court enjoin defendant’s termination of
plaintiff as its pastor, order defendant to reinstate plaintiff as its pastor, order defendant to
remove any reference to defendant’s termination of plaintiff as its pastor, and order the
restoration of plaintiff’s rights under his employment agreement with defendant.

       According to plaintiff, LCMS’s constitution required the employment dispute to be
presented to an LCMS Dispute Resolution Panel (“hearing panel” or “panel”). A hearing was
held before such a panel on August 17, 2012 and August 18, 2012. Defendant withdrew its
membership from LCMS and stated it would not participate in the hearing. The panel ruled that
defendant’s decision to terminate plaintiff’s employment as its pastor “should be reviewed and
                                               -1-
revised.” The panel further concluded that plaintiff was entitled to compensation from the date
that defendant terminated plaintiff’s employment as its pastor, March 11, 2012, “until said time
when Plaintiff receives and, if he so chooses as led by the Holy Spirit, accepts a call to another
congregation,” in the amount of $59,800 as an annual salary, as well as $12,500 for additional
out-of-pocket expenses related to health insurance, retirement benefits, and costs related to the
hearing.

         In lieu of filing an answer to plaintiff’s complaint, defendant filed a motion for summary
disposition under MCR 2.108(B), MCR 2.116(C)(4), and MCR 2.116(C)(7). Defendant asserted
that it was entitled to summary disposition because the Ecclesiastical Abstention Doctrine
prevented courts from determining whether a church violated its own policies and procedures. It
also argued that it was entitled to summary disposition because, as a common-law arbitration, its
agreement to be bound by a hearing before an LCMS panel was unilaterally revocable. Plaintiff
filed a response to defendant’s motion, arguing that because LCMS was hierarchical, as opposed
to congregational, the hearing before the panel was binding and should be enforced as such.

        After a hearing, the trial court issued a written opinion and order granting defendant’s
motion for summary disposition. The trial court found that LCMS was congregational and not
hierarchical. The trial court found that the plain language of LCMS’s 1983 resolution created a
hierarchical relationship only as to the “initial call to become a pastor and not for the decision to
terminate a call.” The trial court further found that even if the 1983 resolution language applied
to a pastor’s termination, the only remedy available would be to revoke defendant’s membership
in LCMS. Lastly, the trial court found that LCMS did not have authority to bind defendant
during the hearing because defendant was no longer an LCMS member and had withdrawn its
consent prior to the hearing. Plaintiff motioned the court for reconsideration of its opinion, but
was denied.

       This appeal followed. LCMS was granted leave to file an amicus curiae brief.1

                                 II. SUMMARY DISPOSITION

       Plaintiff maintains that the trial court’s grant of summary disposition to defendant was
erroneous because LCMS is a hierarchical organization. We disagree.

        “[This Court] review[s] the trial court’s grant or denial of summary disposition de novo.”
Teadt v Lutheran Church Missouri Synod, 237 Mich App 567, 574; 603 NW2d 816 (1999). A
trial court’s interpretation of an organization’s constitution and bylaws is also reviewed de novo.
Slatterly v Malidol, 257 Mich App 242, 250-251, 256; 668 NW2d 154 (2003). The Court
reviews a trial court’s findings of fact for clear error. City of Detroit v Ambassador Bridge Co,
481 Mich 29, 35; 748 NW2d 221, reh den 481 Mich 899 (2008). “A trial court’s factual findings
are clearly erroneous only when the reviewing court is left with the definite and firm conviction
that a mistake has been made.” Id. (Citation and quotation marks omitted).


1
 Hillenbrand v Christ Lutheran Church of Birch Run, unpublished order of the Court of
Appeals, May 28, 2014 (Docket No. 319127).


                                                -2-
        Summary disposition is appropriate under MCR 2.116(C)(4) when a court lacks
jurisdiction over the subject matter of an action. When reviewing such a motion, this Court
“must determine whether the pleadings demonstrate that the defendant was entitled to judgment
as a matter of law, or whether the affidavits and other proofs show that there was no genuine
issue of material fact.” Manning v Amerman, 229 Mich App 608, 610; 582 NW2d 539 (1998), lv
den 459 Mich 948 (1999).

       “[T]he First and Fourteenth Amendments to the United States Constitution protect
freedom of religion by forbidding governmental establishment of religion and by prohibiting
governmental interference with the free exercise of religion.” Bennison v Sharp, 121 Mich App
705, 712; 329 NW2d 466 (1982). “Both Religion Clauses bar the government from interfering
with the decision of a religious group to fire one of its members.” Hosanna-Tabor Evangelical
Lutheran Church and Sch v EEOC, ___ US ___; 132 S Ct 694, 702; 181 L Ed 2d 65 (2012). The
United States Supreme Court has confirmed “that it is impermissible for the government to
contradict a church’s determination of who can act as its ministers.” Id. at 704.

        Under the Ecclesiastical Abstention Doctrine, “where the facts indicate that a
denomination is hierarchical, ‘civil courts may not redetermine the correctness of an
interpretation of canonical text or some decision relating to the government of the religious
polity,’ . . . but must defer to the resolution of those issues ‘by the highest court of a hierarchical
church organization[.]’ ” Lamont Community Church v Lamont Christian Reformed Church, 285
Mich App 602, 616; 777 NW2d 15 (2009), quoting Smith v Calvary Christian Church, 462 Mich
679, 684; 614 NW2d 590 (2000); see also Bennison, 121 Mich App at 713. “[W]hen a
denomination is determined to be hierarchical, trial courts have jurisdiction to enter a judgment,
but the judgment must resolve the matter consistent with any determinations already made by the
denomination.” Id.

        “The determination of whether a denomination is hierarchical is a factual question.” Id.
at 615, citing Calvary Presbyterian Church v Presbytery of Lake Huron of the United
Presbyterian Church, 148 Mich App 105, 113; 384 NW2d 92 (1986). A denomination is
hierarchical if it “is but a subordinate part of a general church in which there are superior
ecclesiastical tribunals with a more or less complete power of control . . . .” Bennison, 121 Mich
App at 720. “A denomination is organized in a hierarchical structure when it has a central
governing body which has regularly acted within its powers while the looser congregational
structure generally has all governing powers and property ownership remaining in the individual
churches.” Lamont, 285 Mich App at 618 (citation and quotation marks omitted). Stated
differently, a church organization is congregational if it is self-governing; a church organization
is hierarchical if it is “part of and governed by a larger organization.” Little v First Baptist
Church, Crestwood, 475 US 1148, 1148; 106 S Ct 1802; 90 L Ed 2d 347 (1986) (emphasis
added).

       The trial court found it lacked jurisdiction over the subject matter of this lawsuit under
MCR 2.116(C)(4) because LCMS was congregational. Our review of the trial court’s grant of
summary disposition, therefore, begins with an examination of whether LCMS is hierarchical or
congregational.



                                                 -3-
       According to defendant’s articles of association, its members “shall worship and labor
together according to the discipline, rules and usage of [LCMS] in the United States of America
from time to time authorized and declared by the delegate convention.”

        Article VII of LCMS’s constitution, entitled “Relation of the Synod to its Members,”
states as follows:

               1. In its relation to its members the Synod is not an ecclesiastical
       government exercising legislative or coercive powers, and with respect to the
       individual congregation’s right of self-government it is but an advisory body.
       Accordingly, no resolution of the Synod imposing anything upon the individual
       congregation is of binding force if it is not in accordance with the Word of God or
       if it appears to be inexpedient as far as the condition of the congregation is
       concerned.

               2. Membership of a congregation in the Synod gives the Synod no equity
       in the property of the congregation.

Article XIII, “Expulsion from the Synod,” ¶ 1, provides that “[m]embers who act contrary to the
confession laid down in Article II and to the conditions of membership laid down in Article VI
or persist in an offensive conduct shall, after previous futile admonition, be expelled from the
Synod.” Article XIV grants LCMS the right to “adopt bylaws that are consistent with and do not
contradict the Constitution of the Synod, which controls and supersedes such bylaws and all
other rules and regulations of the Synod.”

         Under § 1.10.1.1 of LCMS’s bylaws, “[t]he use of the Synod’s conflict resolution
procedures shall be the exclusive and final remedy for those who are in dispute.” Section 1.10.2
states, in part, as follows regarding the conflict resolution procedures:

       It shall be the exclusive remedy to resolve such disputes that involve theological,
       doctrinal, or ecclesiastical issues except those covered under Bylaw sections 2.14-
       2.17 and except as provided in Bylaw 1.10.3. It is applicable whether the dispute
       involves only a difference of opinion without personal animosity or is one that
       involves ill will and sin that requires repentance and forgiveness. No person or
       agency to whom or to which the provisions of this dispute resolution process are
       applicable because such person or agency is a member of the Synod may render
       these provisions inapplicable by terminating that membership.

Section 1.10.3, however, indicates that, “[t]his chapter provides evangelical procedures to
remedy disputes only and does not set forth procedures for expulsion from membership.” It also
indicates that “[w]hile Christians are encouraged to seek to resolve all their disputes without
resorting to secular courts, this chapter does not provide an exclusive remedy for . . . [d]isputes
arising under contractual arrangements of all kinds”. Under § 1.10.7.4, ¶ (d), the final decision
of a dispute resolution hearing panel is “binding upon the parties.”

      LCMS’s 1983 resolution, entitled “To Reaffirm Essential Congregational Polity of the
Synod,” states that “[t]he word ‘hierarchical’ is repugnant to Missouri Synod Lutherans because
etymologically it refers to ‘rule by the priesthood’ ” and is defined differently by civil courts than
                                                 -4-
theology. It continues, stating that “[i]n past instances the Synod has utilized the legal
nomenclature ‘hierarchical’ in legal proceedings in order to preserve to member congregations
and others who associate together within the Synod the right to resolve disputes freely in
accordance with established synodical procedures.”

       The LCMS resolution then states as follows:

               Resolved, That The Lutheran Church – Missouri Synod reaffirms that its
       synodical polity is essentially and principally congregational in nature and
       therefore is ordinarily referred to as a congregational polity; and be it further

               Resolved, That the Synod acknowledges that under the definition and
       application of the word “hierarchical” in civil law there are aspects in the
       relationships within the Synod between and among congregations (e.g. Article II,
       Confession; the calling of certified and endorsed pastors only; agreements to
       abide by adjudicatory procedures and their final determinations) which under civil
       law may apply, express, or evidence what the courts regard as hierarchical
       dimensions; and be it further

               Resolved, That, believing that Scripture (1 Cor. 6) requires that we make
       every effort to avoid disputes or to resolve them internally when they do arise, of
       the two constitutional methods for resolving church disputes by the civil courts,
       the Synod favors the “neutral principles of law” method whenever it can be
       applied, and that when neutral principles cannot be applied to resolve a particular
       controversy, the Synod declares that it is able and willing to resolve disputes
       internally; and be it further

              Resolved, That while we believe the courts should recognize that there are
       church polities other than “congregational” and hierarchical,” unless and until
       courts do so, the present status of case law compels us to use certain legal
       terminology; and be it finally

               Resolved, That with the previously outlined explanation, the Synod
       declares itself as satisfied with the procedures heretofore followed by the Synod
       in instances involving these issues.

         Although its resolution and bylaws both apparently attempt to create an “exclusive,”
“final,” and “binding” dispute resolution process, LCMS’s constitution unequivocally states that
it “is not an ecclesiastical government exercising legislative or coercive powers, and with respect
to the individual congregation’s right of self-government it is but an advisory body.” LCMS has
made it clear through its constitution, bylaws, and resolution that individual congregations,
including defendant, are self-governing. There is no question that at the time plaintiff was
removed as defendant’s pastor, defendant was “part of” LCMS; however, LCMS’s constitution,
its controlling document, expressly indicates that defendant is not “governed by” LCMS. See
Little, 475 US at 1148. Based on the plain reading of LCMS’s constitution, LCMS “is but an
advisory body” and not a governing body. Therefore, LCMS is congregational in nature.



                                                -5-
        Plaintiff and LCMS ask this Court to find LCMS to be a hybrid entity: generally
congregational, but hierarchical in nature regarding confession, ministerial call, and its dispute
resolution process. We decline to do so. We conclude that we are bound by LCMS’s
unequivocal statement in its constitution that it “is not an ecclesiastical government exercising
legislative or coercive powers, and with respect to the individual congregation’s right of self-
government it is but an advisory body.” LCMS’s constitution provides that it “controls and
supersedes such bylaws and all other rules and regulations of the Synod.” Therefore, even if the
resolution indicates that LCMS has hierarchical dimensions, such an indication is in direct
conflict with and superseded by the constitution’s statement that LCMS does not affect an
individual congregation’s right of self-government.

         LCMS’s contention that its resolution is consistent with its constitution rests on the
conclusory statement that its “Commission on Constitutional Matters” decided that it was. In
short, LCMS’s own determination is not binding on this Court if this Court “could enforce [the
documents] without engaging in a searching and therefore impermissible inquiry into church
polity . . . .” Lamont, 285 Mich App at 617 (citation omitted).

        Further, LCMS’s constitution declares that “no resolution of the Synod imposing
anything upon the individual congregation is of binding force . . . if it appears to be inexpedient
as far as the condition of the congregation is concerned.” Stated differently, LCMS’s resolutions
are not binding on individual congregations if the individual congregations deem them
“inexpedient.” This statement clearly leaves individual congregations open to adopt or disregard
LCMS’s resolutions based on that congregation’s “condition.” Interpreting this as advisory,
rather than binding, is consistent with LMCS’s self-imposed “advisory body” label.

        Contrary to plaintiff and LCMS, the trial court refrained from delving into the polity of
the church. Courts are permitted to enforce a denomination’s constitutional provisions only if
those constitutional provisions are expressed in a way that would not require courts to make an
impermissible inquiry into church polity. Id. When examining religious documents, “a civil
court must take special care to scrutinize the document in purely secular terms, and not to rely on
religious precepts . . . .” Jones v Wolf, 443 US 595, 604; 99 S Ct 3020; 61 L Ed 2d 775 (1979).
Here, because the plain language of LCMS’s constitution expressly indicates that it is not a
governing body. It is for this reason that our Court need not “accept the interpretation provided
by the denomination.” Lamont, 285 Mich App at 617. We have merely applied the general
principles of contract law to this situation. See, e.g., Madiol, 257 Mich App at 256 (“Bylaws are
generally construed in accordance with the same rules used for statutory construction. Thus, we
must first look at the specific language of the bylaw. If the language is unambiguous, the
drafters are presumed to have intended the meaning plainly expressed.”).

        It is worth noting, however, that Article VIII (“Separation”) of defendant’s revised
constitution states as follows:

               If, at any time, a separation shall take place on account of doctrines, the
       property of the congregation and all benefits therewith connected shall remain
       with those communicant members who continue to adhere in confession and
       practice of Article III of this constitution. In event of any disagreement that may
       lead to possible separation, the final decision relative to Article III shall rest with

                                                -6-
       the Board of Appeals of the Lutheran Church-Missouri Synod. In the event the
       congregation shall totally disband, the property and all rights connected therewith
       shall be transferred to the Michigan District of the Lutheran Church-Missouri
       Synod.

However, Article X (“Synodical Membership”), again in the revised constitution, specifically
states the following:

              This congregation shall be affiliated with the Lutheran Church-Missouri
       Synod as long as the confessions and constitution of said Synod are in accord with
       the confession and constitution of this congregation as laid down in Article III.

              This congregation shall, to the best of its ability, collaborate with said
       Synod and assist it in effecting all sound measures intended for the building up of
       the Kingdom of God.

When considering Article XIII in relation to the document as a whole, it seems apparent that
defendant “affiliated” itself with LCMS, but did not subordinate itself in a hierarchical
relationship. See AFSCME Council 25 v State Employees’ Retirement System, 294 Mich App 1,
24; 818 NW2d 337, lv den 490 Mich 935 (2011) (“Every provision of the constitution must be
interpreted in light of the document as a whole, and no provision should be construed to nullify
or impair another.”)

        Plaintiff relies heavily on Hosanna-Tabor Evangelical Lutheran Church & Sch v EEOC,
supra. In that case, a Michigan Lutheran Church and School, which was also a member of
LCMS, terminated a “called” teacher’s employment after she began suffering from and was
diagnosed with narcolepsy and missed approximately seven months of teaching. Id. at 700. The
reasons given for her termination were insubordination, disruptive behavior, damage to her
working relationship with the church and school, and threatening to take legal action. Id. The
teacher filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging
that her employment was terminated in violation of the Americans with Disabilities Act, 43 USC
12101 et seq. Hosanna-Tabor, 132 S Ct at 700. The EEOC and the teacher sued the church and
school requesting that she be reinstated to her former position. Id.

        The issue before the United States Supreme Court was whether the teacher was a
minister, which would entitle the church and school to protection under the “ministerial
exception” of the Civil Rights Act, 42 USC 2000e et seq., and other employment discrimination
laws. Hosanna-Tabor, 132 S Ct at 705. The Court found that she was; therefore, the Court
concluded, “the First Amendment requires dismissal of this employment discrimination suit
against her religious employer.” Id. at 709. The Court explained that whether it reinstated the
teacher to her previous position or ordered compensatory and punitive damages, “[s]uch relief
would depend on a determination that Hosanna-Tabor was wrong to have relieved [the teacher]
of her position, and it is precisely such a ruling that is barred by the ministerial exception.” Id.
The Supreme Court explained that “[b]y requiring the Church to accept a minister it did not
want, such an order would have plainly violated the Church’s freedom under the Religion
Clauses to select its own ministers.” Id. Plaintiff contends that Hosanna-Tabor directly controls
the outcome of this case in his favor.

                                                -7-
        In Hosanna-Tabor, the Supreme Court was faced with determining whether a religious
organization’s freedom to select its ministers was implicated by an employment discrimination
suit, which it held that it was. Hosanna-Tabor, 132 S Ct at 705. In the instant case, however,
plaintiff is asking this Court to do exactly what the United States Supreme Court said courts
should not, i.e., impose an unwanted minister on a church:

               The members of a religious group put their faith in the hands of their
       ministers. Requiring a church to accept or retain an unwanted minister, or
       punishing a church for failing to do so, intrudes upon more than a mere
       employment decision. Such action interferes with the internal governance of the
       church, depriving the church of control over the selection of those who will
       personify its beliefs. By imposing an unwanted minister, the state infringes the
       Free Exercise Clause, which protects a religious group’s right to shape its own
       faith and mission through its appointments. According the state the power to
       determine which individuals will minister to the faithful also violates the
       Establishment Clause, which prohibits government involvement in such
       ecclesiastical decisions. [Id. at 706.]

       The United States Supreme Court, citing Serbian Eastern Orthodox Diocese for the
United States of America and Canada v Milivojevich, 426 US 696; 96 S Ct 2372; 49 L Ed 2d 151
(1976), expressly refused to determine whether the church, not LCMS or the employee, followed
the required procedures in terminating the teacher’s employment. Hosanna-Tabor, 132 S Ct at
705. The Court made no reference to LCMS’s position on whether the teacher’s employment
was properly terminated. In the instant case, plaintiff is asking this Court to determine that
defendant failed to follow the proper procedures in terminating his employment, and to reinstate
him through that process based on LCMS’s position. This would involve analyzing the church’s
decision to terminate plaintiff’s employment as its pastor in the exact manner that Hosanna-
Tabor forbids.

       In acknowledging that this is a complicated question, we conclude that the trial court did
not err in concluding that LCMS is congregational in nature and therefore, properly granted
summary disposition to defendant.

     III. THE EFFECT OF THE DECISION OF THE DISPUTE RESOLUTION PANEL

        Plaintiff also argues that the trial court erred in finding that defendant could withdraw
from the Synod because defendant’s withdrawal nullified the ruling of the decision of the dispute
resolution panel. Because LCMS’s bylaws prohibit its members from terminating their
membership in a manner that renders a decision of the dispute resolution panel inapplicable, we
agree.

        This Court reviews a trial court’s interpretation of an organization’s bylaws de novo.
Slatterly, 257 Mich App at 250-251. Review of a trial court’s findings of fact is for clear error.
Ambassador Bridge Co, 481 Mich at 35. “A trial court’s findings of fact are clearly erroneous
only when the reviewing court is left with the definite and firm conviction that a mistake has
been made.” Id.


                                               -8-
        As discussed, bylaw drafters are presumed to have intended the meaning plainly
expressed. Slatterly, 257 Mich App at 255-256. This Court “presume[s] that every word has a
meaning and should avoid any construction that would render any party of a bylaw nugatory.”
Id. at 256.

       Section 1.10.2 of LCMS’s bylaws states the following: “No person or agency to whom
or to which the provisions of this dispute resolution process are applicable because such person
or agency is a member of the Synod may render these provisions inapplicable by terminating that
membership.” In a letter dated June 18, 2012, defendant informed LCMS that it was
withdrawing its membership effective that day “due to the politics involved with the Missouri
Synod – Michigan District” and because it wanted “a pastor that cares about them.” In a letter
dated August 8, 2012, defendant informed LCMS that it would not be attending and was not
agreeing to be bound by any dispute resolution hearing conducted by LCMS.

        The plain language of Bylaw section 1.10.2 clearly indicates that an LCMS member
cannot terminate its membership in a way that renders the dispute resolution hearing process
inapplicable. Here, two months before the dispute resolution hearing was scheduled to take
place, defendant terminated its membership and refused to attend the dispute resolution hearing.
The contents of the June 18 letter appear to reference the issue of plaintiff’s employment. As
defendant was not permitted to render the dispute resolution hearing inapplicable in that manner
under § 1.10.2, its doing so was improper. Therefore, the trial court erred in any finding that
permitted defendant to do so.

       Nevertheless, any decision from the dispute resolution panel would have been advisory
and not binding on the parties as plaintiff argues.

        LCMS is “but an advisory body” and is not a legislative or coercive body that affects its
individual congregations’ right to self-government. Any recommendations it, or its individual
committees including its dispute resolution panel, make are merely advisory under its
constitution, and each congregation may or may not choose to follow them. The panel’s own
wording further indicates that its decision was advisory and not binding. In concluding whether
the panel had authority to act in this matter, it stated “that it does have authority to act in this
matter to either uphold the action of the congregation in removing [plaintiff] or advise the
congregation to review and revise its decision.” Then, in determining whether defendant
“should . . . be advised to review and revise its decision,” the dispute resolution panel concluded
that defendant’s decision “should be reviewed and revised.” Lastly, in determining what
“restitution” was owed from defendant to plaintiff, the panel concluded by stating, in part, as
follows: “While it is beyond the purview and scope of this Panel to determine every such
damage, we did conclude that, on the basis of the documentary evidence, we could advise to an
amount of restitution . . .” (emphasis added). The record supports the trial court’s finding that
the panel’s decision was merely advisory. The very most that the panel’s decision would have
done was to require defendant to “revisit and revise” its decision to remove plaintiff as its pastor.
It follows that defendant would still be permitted to choose not to abide by the panel’s advice.

        Because LCMS’s constitution and bylaws, as well as the hearing panel’s decision itself,
are expressly advisory in nature, the trial court did not err in concluding that the dispute
resolution panel’s decision was advisory.

                                                -9-
Affirmed.




                   /s/ Cynthia Diane Stephens
                   /s/ Kurtis T. Wilder
                   /s/ Deborah A. Servitto




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