                                                 RENDERED: DECEMBER 18, 2014
                                                            TO BE PUBLISHED

                    uptrtur (Ciand 01eIRrtrturk
                                 2013-SC-000803-MR


ST. JOSEPH CATHOLIC ORPHAN                                                 APPELLANTS
SOCIETY, ET AL.


                    ON REVIEW FROM COURT OF APPEALS
V.                     CASE NO. 2013-CA-001391-MR
                JEFFERSON CIRCUIT COURT NO. 13-CI-0001781


HONORABLE BRIAN C. EDWARDS,                                                   APPELLEE
JUDGE, JEFFERSON CIRCUIT COURT

AND

ST. JOSEPH HOME ALUMNI ASSOCIATION, ET AL.                  REAL PARTIES IN INTEREST



            OPINION OF THE COURT BY CHIEF JUSTICE MINTON

      AFFIRMING DENIAL OF WRIT, REVERSING DENIAL OF MOTION TO
             DISMISS, AND REMANDING WITH INSTRUCTIONS

       After being removed from their seats on St. Joseph Catholic Orphan

Society's Board of Trustees, certain individuals who also identify themselves as

members of the St. Joseph Home Alumni Association,' filed suit against St.

Joseph and the newly-elected Board members. 2 The suit challenges the




       1 Robert Beam, Frank Campisano, Milton Hettinger, Jack Fihe, John Straub,
Francis Paalz, Billie Satterly, and Charlie Steier along with the St. Joseph Home
Alumni Association, are the Appellees, real parties in interest, in this writ proceeding
and plaintiffs in the underlying suit. For the sake of brevity, they will be jointly
referred to as the "Alumni."
       2 The newly-elected Board members were Thurman Senn, Kelly Henry, James
Hillebrand, Barbara Carter, Craig Harbsmeier, and Charles Nopper. They, along with
St. Joseph, are the appellants in this action.
validity of the Board's resolution effectuating their removal and seeks

reappointment of the ousted members to St. Joseph's Board of Trustees.

       St. Joseph sought dismissal of the suit, arguing the trial court was

without subject-matter jurisdiction because of the application of the

ecclesiastical-abstention doctrine. The trial court denied St. Joseph's motion

to dismiss because it found the ecclesiastical-abstention doctrine inapplicable.

       St. Joseph is now before this Court seeking a writ of mandamus

requiring the trial court to dismiss the underlying action. It again claims the

trial court is without subject-matter jurisdiction to hear the Alumni's cause of

action because of the application of ecclesiastical abstention. The Court of

Appeals, where this writ action originated, declined to issue a writ, concluding

ecclesiastical abstention did not apply because the underlying case could be

adjudicated on the basis of neutral principles of law. St. Joseph appeals the

writ denial to this Court as a matter of right. 3

       Before this Court, St. Joseph contends the Court of Appeals erred in

declining to issue a writ because, regardless of the neutrality of the applicable

secular law, the underlying suit is one concerning the internal governance of a

religious entity. As such, St. Joseph argues, the ecclesiastical-abstention

doctrine applies and deprives the circuit court of subject-matter jurisdiction to

hear the suit.


       3 Kentucky Rules of Civil Procedure (CR) 76.36(7)(a) ("An appeal may be taken
to the Supreme Court as a matter of right from a judgment or final order in any
proceeding originating in the Court of Appeals."); see also Ky. Const. § 115 ("In all
cases, civil and criminal, there shall be allowed as a matter of right at least one appeal
to another court . . . .").

                                             2
      We affirm the denial of a writ by the Court of Appeals, but we do so on

other grounds. We conclude the ecclesiastical-abstention doctrine does not

divest our courts of subject-matter jurisdiction to hear cases they are otherwise

authorized to adjudicate. So the issuance of a writ is improper. Instead, we

reason that the ecclesiastical-abstention doctrine is to be applied as an

affirmative defense akin to the ministerial exception, including the right to an

interlocutory appeal following a trial court's denial of its application. As such

and in the interests of judicial economy, we treat St. Joseph's petition for a writ

of mandamus as an interlocutory appeal from the trial court's denial of its

motion to dismiss based on the ecclesiastical-abstention doctrine. And on the

merits of St. Joseph's claim, we agree that the underlying action presents a

question of ecclesiastical governance, which means that the ecclesiastical-

abstention doctrine prohibits the underlying action from going forward in the

trial court. Accordingly, we reverse the trial court's order denying St. Joseph's

motion to dismiss, and we remand the case to the trial court with instructions

to dismiss the action.


                    I. FACTUAL AND PROCEDURAL HISTORY.

   A. We are Constrained to Deny Alumni's Untimely Motion for
      Enlargement of Time to File a Brief. Without a Brief From the
      Appellees, we Accept the Appellant's Version of the Facts and
      Issues.

      Before our customary recitation of the circumstances encompassing this

case, we must address a pending motion that bears directly on our view of the




                                         3
relevant facts. Alumni has not filed a timely brief in response to St. Joseph's

brief and has moved this Court for an enlargement of time to do so.

      The original deadline for Alumni's appellees' brief was March 3, 2014.

Alumni first moved this Court for an enlargement of time on that date,

requesting the deadline be extended to March 21, 2014. We granted Alumni's

motion with little objection from St. Joseph. But Alumni failed to meet this

extended deadline and did not mail their appellees' brief to the Court until

March 24, 2014, one working day after the deadline. 4 The clerk returned

Alumni's brief, which prompted the pending motion for an enlargement of time

to allow Alumni to file its appellees' brief.

      When a party seeks an enlargement of time after the expiration of the

time period to be enlarged, as is the case here, the Court may, in its discretion,

grant the enlargement if it finds "the failure to act was the result of excusable

neglect." 5 Our predecessor court has defined excusable neglect as "the act of a

reasonably prudent person under the same circumstances." 6 Alumni's counsel

attempts to show excusable neglect by citing his transcription of the incorrect

date in his calendar and distraction caused by his mother's impending

surgery.%




      4   March 22 and 23 constituted a weekend.
      5   CR 6.02(b).
      6   Conlon v. Conlon, 293 S.W.2d 710, 712 (Ky. 1956).
        St. Joseph is quick to point out that Alumni's counsel's mother was not
scheduled to have surgery until March 25, 2014, four days after the deadline had
already passed.

                                           4
      We are unconvinced that Alumni has shown its failure to comply with

this Court's deadline was the result of excusable neglect. We cannot find that

incorrectly transcribing the filing deadline, a date Alumni's counsel specifically

requested when seeking the first enlargement, constitutes excusable neglect. 8

                                                                                        Andwearliksucovndthasel'procuinadbyhs

mother's impending surgery rises to the level of excusable neglect. The surgery

was scheduled to take place four days after the filing deadline for the brief, and

counsel does not disclose the nature of the procedure or the precipitating

condition to allow us to gauge what level of preoccupation might befall "a

reasonably prudent person" in counsel's circumstances. To be sure, family

medical emergencies and ongoing medical treatment may give rise to excusable

neglect in some instances, but the existence of a relative's scheduled medical

procedure, without more, does' not precipitate the kind of neglect that excuses

failure to comply with filing deadlines. Alumni's motion for an enlargement of

time is, therefore, denied.

      Because we have denied Alumni's motion for enlargement of time, we

have no brief from Alumni filed consistently with our rules. 9 CR 76.12(8)(c)

provides the range of penalties that may be levied against an appellee for failing

to file a timely brief. In our discretion, we may: "(i) accept the appellant's

statement of the facts and issues as correct; (ii) reverse the judgment if



       8 See AK Steel Corp. v. Carico, 122 S.W.3d 585, 586 (Ky. 2003) ("[A]
misunderstanding over the filing date is not the type of excusable neglect that would
enlarge the time for filing . . . .").
      9   CR 76.12(2).

                                           5
appellant's brief reasonably appears to sustain such action; or (iii) regard the

appellee's failure as a confession of error and reverse the judgment without

considering the merits of the case."'

      St. Joseph urges us to reverse the ruling of the Court of Appeals because

its brief "reasonably appears to sustain such action." Although St. Joseph's

argument is not unreasonable, reversal of the decision of the Court of Appeals

would result in dismissal of Alumni's underlying claim. The fault for failing to

comply with the deadline ostensibly lies with Alumni's counsel, so dismissal of

Alumni's cause of action seems too harsh a punishment to levy against the

faultless party. We find it more appropriate to accept St. Joseph's version of

the facts and issues as true. So the facts portrayed below are completely

aligned with those presented by St. Joseph.

   B. The Facts and Issues Before This Court.

      St. Joseph Catholic Orphan Society was founded in Louisville by several

German-Catholic parishes in 1848. These parishes worked together to manage

the orphanage according to the teachings of the Roman Catholic Church. St.

Joseph has since incorporated, but its Catholic roots endure.

      A golden cross adorns the dome atop the orphanage, and a statue of St.

Joseph holding the infant Jesus stands above the main entrance. A

functioning Roman Catholic chapel lies at the center of the orphanage, but St.

Joseph does not proselytize or force religion upon its residents or employees.

      Beyond housing and educating needy and at-risk youth, St. Joseph's

Articles of Incorporation include "assist[ing] the Roman Catholic Archbishop of


                                         6
Louisville in providing for the care, counseling, and education of children" as

its mission This principle is echoed in the preamble of its bylaws, stating that

St. Joseph "operates according to the beliefs, teaching, and mission of the

Catholic Church."

      St. Joseph's relationship with the Roman Catholic Church is also

recognized in its tax treatment. St. Joseph enjoys federal tax-exempt status

based on a group exemption granted to the United States Conference of

Catholic Bishops: This exemption applies to all organizations operated,

supervised, or controlled by the Roman Catholic Church. St. Joseph is still

required to make tax filings in light of its exempt status, but does not make the

required filings on its own behalf. Instead, the Archdiocese of Louisville

includes St. Joseph's documentation in its own filings. St. Joseph also

successfully held itself out as a religious entity when claiming its ERISA

retirement plan was a "religious plan."

      The Roman Catholic Archbishop of Louisville (or his designee) is also

provided a permanent seat on St. Joseph's Board of Trustees. The Board's

actions are "subject to [the Archbishop's] authority in matters concerning the

beliefs, teachings, and mission of the Roman Catholic Church," and the Board

cannot amend its bylaws without the Archbishop's determination that the

proposed amendments are not in conflict with Roman Catholic Church

doctrine. The Archbishop also has the authority to invalidate any Board action

he finds contrary to the Roman Catholic Church's beliefs, teaching, or mission.




                                          7
      Earl Hartlege was a member of St. Joseph's Board of Trustees when

several employees accused him of harassment. In response to these

allegations, the Board entertained a vote to remove Hartlege. A simple majority

voted in favor of his removal, but St. Joseph's bylaws require a two-thirds

majority to remove a Board member. So Hartlege was not removed.

      Outraged over Hartlege's continued presence on St. Joseph's Board,

some Board members") resigned immediately following the unsuccessful

removal vote. The Archbishop withdrew his personal representative shortly

thereafter, citing concern over potential liability as a result of Hartlage's alleged

harassment and continued post on the Board of Trustees.

       St. Joseph's annual meeting took place nearly six months after the

unsuccessful attempt to remove Hartlage. During the meeting, concerned

members, including the resigned Board members, proposed a resolution

replacing the then-current Board members and amending St. Joseph's bylaws

to include measures to protect against Board-member misconduct. The

resolution passed resoundingly by a vote of 113 to 8. The Archbishop approved

the resolution in full after concluding that it was not contrary to beliefs,

teaching, or mission of the Roman Catholic Church.

      The ousted Board members, along with the St. Joseph Home Alumni

Association, 11 filed suit challenging the resolution effectuating their removal.



       10   Including Appellants Senn, Henry, Hillebrand, and Nopper.
       11 Although it is a named party in both this action and the underlying suit, it
appears that St. Joseph Home Alumni Association is not a registered entity of any
kind. This may raise questions, including its ability to prosecute a suit in its name, in

                                             8
The Alumni alleged the resolution was ineffective because it was not passed in

accord with St. Joseph's bylaws. The suit sought vacation of the amendment

to St. Joseph's bylaws, an injunction preventing the newly-installed Board

members from holding themselves out as St. Joseph's Board of Trustees,

restoration of the Alumni to their positions on St. Joseph's Board of Trustees,

and, alternatively, resumption of voting on the challenged resolution after

reasonable notice to the membership of St. Joseph.

      St. Joseph responded to the Alumni's complaint with a motion to

dismiss, arguing, among other matters, the trial court's subject-matter

jurisdiction was barred by the ecclesiastical-abstention doctrine. The trial

court found the ecclesiastical-abstention doctrine inapplicable and denied St.

Joseph's motion to dismiss because it concluded St. Joseph was not acting on

behalf of the Roman Catholic Church when convening its annual meeting. St.

Joseph then moved the trial court to stay the underlying case pending

disposition of a writ proceeding adjudicating its jurisdictional challenge. St.

Joseph filed its petition for writ of mandamus, and the trial court granted the

requested stay.

      The Court of Appeals declined to issue a writ, finding that ecclesiastical

abstention does not apply in St. Joseph's case because neutral principles of

secular law can be applied to resolve the dispute. This appeal followed.



the future, but those tentative issues are not presently before us, so we do not raise
them on our own. See Harrison v. Leach, 323 S.W.3d 702 (Ky. 2010) (holding that
issues, such as standing, that may be waived are not to be raised on an appellate
court's own motion).

                                            9
                                        II. ANALYSIS.

      The issuance of a writ is an extraordinary remedy. As such, a writ may

issue in only very limited circumstances:

      A writ of prohibition may be granted upon a showing that (1) the
      lower court is proceeding or is about to proceed outside of its
      jurisdiction and there is no remedy through an application to an
      intermediate court; or (2) that the lower court is acting or is about
      to act erroneously, although within its jurisdiction, and there
      exists no adequate remedy by appeal or otherwise and great
      injustice and irreparable injury will result if the petition is not
      granted. 12

       St. Joseph seeks the first class of writ, alleging the trial court was

without jurisdiction to hear the underlying case by virtue of the ecclesiastical-

abstention doctrine. By erroneously denying its motion to dismiss and

allowing the case to proceed, the trial court, St. Joseph argues, acted outside

its jurisdiction.

      The standard for writs of the first class—like the one sought here—is

often misconstrued to require the petitioner prove irreparable harm and the

lack of an adequate remedy on appeal. We take this opportunity to reiterate

those elements apply only to writs of the second class where the petitioner

claims the lower court is acting erroneously but within its jurisdiction.' 3




       12   Hoskins v. Mariele, 140 S.W.3d 1, 10 (Ky. 2004).
       13   Davis v. Wingate, 437 S.W.3d 720, 724 (Ky. 2014); Hoskins, 140 S.W.3d at 9-
10.

                                             10
       St. Joseph's challenge to the trial court's subject-matter jurisdiction to

adjudicate the case below presents solely an issue of law, which we review de

novo. 14

   A. Ecclesiastical Abstention is not a bar to Subject Matter Jurisdiction.
                                                                -




       We find it prudent to determine the ecclesiastical-abstention doctrine's

impact on trial court subject-matter jurisdiction before addressing the

doctrine's application. Although our case law has routinely considered

ecclesiastical abstention a bar to trial court jurisdiction, we have yet to analyze

that doctrine in light of our jurisprudence addressing subject-matter

jurisdiction. Courts in other jurisdictions have reached various conclusions

when deciding the effect of ecclesiastical abstention, 15 so we find now to be an

appropriate juncture to revisit our ecclesiastical-abstention precedent as it

relates to the subject-matter jurisdiction of the courts of this Commonwealth.

    1. Kentucky's treatment of ecclesiastical abstention, though deeply
       rooted, is lacking a serious analysis of subject-matter jurisdiction
       principles.

       The ecclesiastical-abstention doctrine, discussed in greater detail below,

is a mechanism employed to prevent secular courts from violating the



       14 Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004); Lee v. George,
369 S.W.3d 29, 33 (Ky. 2012) ("In the context of extraordinary writs, jurisdiction'
refers not to mere legal errors but to subject-matter jurisdiction, which goes to the
court's core authority to even hear cases.") (internal citations and quotation marks
omitted).
        15 See, e.g., Westbrook, Jr. v. Penley, 231 S.W.3d 389, 394, n.3 (Tex. 2007)
 (noting that "[m]ost courts agree that the general prohibition on the adjudication of
religious questions, once triggered, precludes further adjudication of the issue in
 question," and compiling cases that treat ecclesiastical abstention as "a question of
justiciability," "an affirmative defense to liability," and a "subject-matter bar to
jurisdiction").

                                            11
guarantees embodied in the Establishment and Free Exercise Clauses of the

First Amendment. Broadly, this doctrine prohibits secular courts from

adjudicating quintessentially ecclesiastical issues, such as matters relating to

faith, doctrine, and ecclesiastical governance. To be sure, the mere

involvement of a church or other religious entity in a suit before a secular court

does not require invocation of the ecclesiastical-abstention doctrine.

      Our treatment of the ecclesiastical-abstention doctrine as a bar to

subject-matter jurisdiction can be traced to the seminal case on the matter,

Marsh v. Johnson. 16 In Marsh, our predecessor court held that "secular courts

have no jurisdiction over ecclesiastic controversies." 17 This holding was in

"recognition of the vital principle of separation of church and state" guaranteed

by the First Amendment. 18 But Marsh failed to provide further citation or

analysis explaining why that vital principle must bar jurisdiction instead of

protecting First Amendment guarantees in another manner. 19

      The Marsh holding remained the eminent declaration of the

ecclesiastical-abstention doctrine in the Commonwealth until it found a home




       16   82 S.W.2d 345 (Ky. 1935).
       17   Id. at 346.
       18   Id.
       19The Marsh court may have lacked a bit of precision in its use of jurisdiction
because, due to the procedural posture of the case, the precise nature of the
application of the ecclesiastical-abstention doctrine—whether a bar to jurisdiction, a
form of mandatory abstention, or an affirmative defense—was irrelevant. The end
result was the same: reversal of the trial court and dismissal of the cause of action.

                                           12
in a more recent iteration of controlling ecclesiastical-abstention case law,

Music v. United Methodist Church. 2°

      In Music, a case heavily relied upon by St. Joseph, we recognized Marsh's

holding that secular courts are without jurisdiction to decide non-secular

controversies and, citing the First and Fourteenth Amendments, held that

ecclesiastical abstention preempts the subject-matter jurisdiction of Kentucky

courts. 21 Unlike in Marsh, the precise effect of ecclesiastical abstention did

impact the outcome of Music. Just as here, the issue presented in Music was

the propriety of a writ of the first class based on the application of the

ecclesiastical-abstention doctrine. A writ could only issue if ecclesiastical

abstention barred the trial court's subject-matter jurisdiction. But the Music

court neglected to analyze the impact of ecclesiastical abstention on the trial

court's subject-matter jurisdiction. Its holding was instead anchored in

specious citations to Marsh and the First and Fourteenth Amendments. 22

      The most recent of our trilogy of ecclesiastical-abstention cases is Kirby

v. Lexington Theological Seminary. 23 Kirby, of course, cites Marsh as the

starting point of our ecclesiastical-abstention jurisprudence. 24 But Kirby

appears to soften our stance on ecclesiastical abstention operating as a bar to

subject-matter jurisdiction when framing the precedential value of Music. We


      20   864 S.W.2d 286 (Ky. 1993).
      21   Id. at 290.
      22
           Id.
      23   426 S.W.3d 597 (Ky. 2014).
      24   Id. at 618.

                                          13
explained that, when faced with an ecclesiastical controversy, "Music stands for

the proposition that secular courts must cede jurisdiction," 25 implying courts

retain jurisdiction in the face of the application of ecclesiastical abstention.

      These cases speak in terms of jurisdiction and subject-matter jurisdiction

but avoid a more robust analysis as required here. The time has come for an

examination of the effect of ecclesiastical abstention through the lens of

subject-matter jurisdiction principles.

   2. Applying Principles of Subject-Matter-Jurisdiction Jurisprudence,
      Ecclesiastical Abstention Does not Operate to Divest Kentucky
      Courts of Subject-Matter Jurisdiction.

    - Kentucky circuit courts are courts of "general jurisdiction," 26 meaning

they "shall have original jurisdiction of all justiciable causes not vested in some

other court." 27 This jurisdiction, and the jurisdiction challenged when seeking

a writ of the first class, as St. Joseph does here, refers to the circuit court's

subject-matter jurisdiction. 28 A court acts outside its jurisdiction only "where

[it] has not been given, by constitutional provision or statute, the power to do

anything at all." 29 In addressing the viability of a court's subject-matter




      25   Id. (emphasis added).
      26   KRS 23A.010(1).
      27   Ky. Const. § 112(5) (emphasis added).
       28 Davis, 437 S.W.3d at 725 ("Jurisdiction, when used here, refers to subject-
matter jurisdiction . . . .").
      29   Daugherty v. Telek, 366 S.W.3d 463, 467 (Ky. 2012).

                                            14
jurisdiction, we seek to decide "whether a court has the ability to hear 'this

kind of case' instead of 'this case. "' 30

       To aid in our determination of whether ecclesiastical abstention prevents

general-jurisdiction courts from hearing a broad "kind of case" or "this case"

specifically, it is instructive to contemplate the analysis relevant to assessing

the pertinence of ecclesiastical abstention. When addressing whether to invoke

the doctrine, "[c]ourts must look not at the label placed on the action but at the

actual issues the court has been asked to decide." 31 This analytical process

makes clear that courts must look past the type of case presented and to the

case-specific issues presented when contemplating the application of the

ecclesiastical-abstention doctrine. There is no one type of case that Kentucky

courts are universally unable to hear as a result of ecclesiastical abstention.

Instead, when religious issues permeate distinct cases of a traditionally-

recognized type, such as employment disputes, tort suits, or business-

association conflicts, Kentucky courts are without authority to adjudicate that

specific case.

       That all cases where ecclesiastical abstention applies have similar

characteristics, namely that they involve ecclesiastical issues, does not render

them a type of case any more than cases invoking qualified governmental

immunity are a case type for purposes of precluding circuit-court jurisdiction.

We, therefore, conclude that ecclesiastical abstention does not divest Kentucky

      30 Harrison, 323 S.W.3d at 705 06 (citing Gordon v. NKC Hospitals, Inc., 887
                                        -



S.W.2d 360, 362 (Ky. 1994); Duncan v. O'Nan, 451 S.W.2d 626, 631 (Ky. 1970)).
       31   Kirby 426 S.W.3d at 619. (internal quotation marks and citation omitted).

                                             15
courts of subject-matter jurisdiction because it does not render our courts

unable to hear types of cases, only specific cases pervaded by religious issues.

To hold otherwise would be to require all plaintiffs to plead affirmatively the

inapplicability of ecclesiastical abstention in their complaint to establish proper

subject-matter jurisdiction. 32

       Other courts have reached a similar conclusion when faced with this

issue. The Indiana Supreme Court has held that Indiana courts, "with general

authority to hear matters like employment disputes[, are] not ousted of subject

matter or personal jurisdiction because the defendant pleads a religious

defense." 33 Likewise, the Tenth Circuit concluded the application of the

church-autonomy doctrine is not a challenge to the court's subject-matter

jurisdiction, and "the assertion that the First Amendment precludes the .. .

suit is similar to a government official's defense of qualified immunity." 34

       Determining what the ecclesiastical-abstention doctrine is not—a bar to

subject-matter jurisdiction—begs the question of what it is. In answering this

question, we find persuasive our reasoning espoused in Kirby, used to

conclude the ministerial exception—a related doctrine also borne of the First

Amendment's religion clauses—operates as an affirmative defense. We

reasoned "the ministerial exception does not strip a court of its jurisdiction but,

        32 Daugherty, 366 S.W.3d at 467 ("Once filed, a court has subject matter
jurisdiction of the case so long as the pleadings reveal that it is the kind of case
assigned to that court by a statute or constitutional provision.").
       32 Brazauskas v. Fort Wayne South Bend Diocese, Inc., 796 N.E.2d 286, 290
                                     -



(Ind. 2003).
       34Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 654 (10th
Cir. 2002).

                                             16
instead, simply disallows the forward progress of the particular suit." 35 This

description is particularly applicable to ecclesiastical abstention in light of our

holding above. Consistent with the logic of Kirby, and in recognition of the

similar purposes served by both the ministerial exception and ecclesiastical

abstention, we conclude that the ecclesiastical-abstention doctrine is an

affirmative defense.

      Like other affirmative defenses recognized by this Commonwealth,

ecclesiastical abstention operates in confession and avoidance, meaning that

even assuming the plaintiff's allegations to be true, he is nonetheless not

entitled to recover. So, just as in Kirby, we draw an analogy to perhaps the

most commonly encountered defense of confession and avoidance, qualified

governmental immunity, and aver that the ecclesiastical-abstention defense is

to be applied in a manner that is procedurally consistent with the application

of qualified governmental immunity. Specifically, the party asserting the

ecclesiastical-abstention defense bears the burden of proving its applicability,

the applicability of the ecclesiastical-abstention defense is a question of law to

be decided by the court as a threshold matter, and the denial of ecclesiastical

abstention is "subject to prompt appellate review. 36



      35   Kirby, 426 S.W.3d at 608.
       36 Breathitt Cnty. Bd. of Educ. v. Prater, 292 S.W.3d 883, 886 (Ky. 2009); see
also Kirby, 426 S.W.3d at 609 n.45 ("Interlocutory appellate review is available—even
in the absence of a final judgmentbecause the denial of immunity is a 'substantial
claim[] of right which would be rendered moot by litigation and thus [is] not subject to
meaningful review in the ordinary course following a final judgment.' Id. Likewise, the
denial of a religious institution's assertion of the ministerial exception . . . is
appropriate for interlocutory appeal.").

                                           17
      We pause to acknowledge that the ecclesiastical-abstention approach we

adopt today, on our own motion, is a departure from our precedent. As the law

was situated when St. Joseph was aggrieved by the trial court's unfavorable

ecclesiastical-abstention ruling, our precedent dictated the only tenable avenue

of redress was via a petition for a writ challenging the trial court's subject-

matter jurisdiction to hear the underlying case. 37 Today, we reject that path

and forge a new one in which parties similarly situated to St. Joseph—parties

aggrieved by a trial court's rejection of the ecclesiastical-abstention defense—

are afforded an immediate appeal instead of being forced to seek an

extraordinary remedy by writ. In the end, the only difference between the

method of redress we today reject and the one we replace it with is a mere

technical one, which brings us to a crossroads in the present case.

      We must decide whether to allow this technicality, which was not

extensively argued in briefing, to win the day and mandate denial of the relief

St. Joseph seeks. We find that equity and judicial economy mandate we reach

the merits of St. Joseph's claim. This shift in our ecclesiastical-abstention

jurisprudence was unexpected, and St. Joseph had followed the appropriate

path to redress by seeking a writ. So St. Joseph's actions in pursuing this

action cannot be faulted. But if we deny St. Joseph a writ without reaching the

merits of its claim, it will be too late for St. Joseph to avail itself of the

interlocutory review procedure we establish today. Further, if a tolling

provision is found to apply allowing St. Joseph the benefit of an immediate


      37   Music, 864 S.W.2d at 290.

                                           18
appeal, it will present the same argument, under the same standard of review—

de novo—that we would decide today. So, in contemplation of equity and

judicial economy, we will consider the merits of St. Joseph's argument that the

trial court erred in failing to terminate litigation on the basis of ecclesiastical

abstention as if this were an interlocutory appea1. 38

   B. The Trial Court Erred in Denying St. Joseph's Motion to Dismiss on
      the Basis of Ecclesiastical Abstention.

      The concept of ecclesiastical abstention or church autonomy has long

been recognized as a necessary corollary to the First Amendment's religion

clauses. To protect the rights embodied in the Free Exercise and

Establishment Clauses of the First Amendment, ecclesiastical abstention

provides "a spirit of freedom for religious organizations, an independence from

secular control or manipulation—in short, power to decide for themselves, free

from state interference—matters of church government as well as those of faith

and doctrine." 39 Thus, when resolution of a case is "dependent on the question

of doctrine, discipline, ecclesiastical law, rule, or custom, or church

government," secular courts must abstain from hearing the case. 49 Put

differently, "where resolution of the disputes cannot be made without extensive




       38 See Bryce, 289 F.3d at 654-55 (affirming a trial court's conversion of a motion
to dismiss for lack of subject-matter jurisdiction based on ecclesiastical abstention to
a motion for summary judgment).
      39 Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344
U.S. 94, 116 (1952).
      49   Watson v. Jones, 80 U.S. 679, 680 (1871).

                                            19
inquiry by civil courts into religious law and polity, the First and Fourteenth

Amendments mandate that civil courts shall" not act. 41

       "At bottom, the ecclesiastical-abstention doctrine is primarily interested

in preventing any chilling effect on church practices as a result of government

intrusion in the form of secular courts." 42 But churches are not the only

benefactors of ecclesiastical abstention. All religious organizations are entitled

to protection under the First Amendment, so all suits that present an

ecclesiastical character, those "which concern[] theological controversy, church

discipline, ecclesiastical government, or the conformity of the members of the

church to the standard of morals required of them" fall within the scope of the

ecclesiastical-abstention doctrine. 43

       The mere inclusion of a religious organization as a party to a suit does

not necessarily implicate the ecclesiastical-abstention doctrine. 44 Secular

courts are not prohibited from hearing cases involving religious organizations

where the dispute can be resolved by the application of neutral principles of

      41 Serbian E. Orthodox Diocese for U.S. of America and Canada v. Milivojevich,
426 U.S. 696, 709 (1976).
       42   Kirby 426 S.W.3d at 619.
       43   Watson, 80 U.S. at 733.
        44 "We reiterate that the intent of ecclesiastical abstention is not to render 'civil
and property rights . . . unenforceable in the civil court simply because the parties
involved might be the church and members, officers, or the ministry of the church."'
Kant v. Lexington Theological Seminary, 426 S.W.3d 587, 596 (Ky. 2014) (quoting
Jenkins v. Trinity Evangelical. Lutheran Church, 825 N.E.2d 1206, 1212 (Ill.App. 2005)).
"It must never be overlooked that the church alone has jurisdiction of communion,
faith, or discipline, and the members must submit to such rules and regulations
governing these matters as may be prescribed by their church, but the church does
not always have exclusive jurisdiction over property or personal liberty, or over any
right which it is the duty of the civil power to protect." Thomas v. Lewis, 6 S.W.2d
255, 257 (Ky. 1928).

                                             20
secular law. 45 But "[t]he 'neutral principles' doctrine should not be extended to

religious controversies in the area[] of church government." 46

      In its analysis of the merits of St Joseph's claim, the Court of Appeals

concluded ecclesiastical abstention to be inapplicable because it found the

underlying suit could be adjudicated to resolution through the application of

neutral principles of law without wading into doctrinal waters. St. Joseph

challenges this conclusion, arguing that this case concerns the internal

governance of a religious organization, and neutral principles of law may not be

applied to such cases.

      We agree with St. Joseph that the neutral-principles doctrine does not

extend to issues of ecclesiastical governance, 47 so we now analyze whether the

suit brought by Alumni presents an issue of internal government of a religious

organization. This, of course, requires a two-pronged analysis in which we

must decide: (1) if the underlying suit presents an issue regarding the internal

government of St. Joseph, and (2) if St. Joseph is a religious organization.

      It is axiomatic that the underlying dispute is about the internal

governance of St. Joseph. The crux of the controversy revolves around who is

entitled to govern St. Joseph by way of their position on the Board of Trustees.

Alumni's counsel conceded as much at oral argument before the Court of

Appeals, and its complaint seeks removal of the current Board and



      45   Kirby 426 S.W.3d at 618 (citing Jones v. Wolf, 443 U.S. 595 (1979)).
      46   Music, 864 S.W.2d at 288.
      47   Id.

                                            21
reinstatement of Alumni. It could not be clearer that this suit concerns the

internal governance of St. Joseph. We are now left to decide whether St.

Joseph is a religious organization.

      The definition of religious entity is not so narrow as to apply ecclesiastical

abstention only to traditional religious entities such as churches, synagogues,

and mosques. Instead, purported religious organizations will be considered

such "whenever that entity's mission is marked by clear or obvious religious

characteristics." 48

      St. Joseph's religious mission is no more clearly described that in its

Articles of Incorporation where part of its mission is to "assist the Roman

Catholic Archbishop. of Louisville in providing for the care, counseling, and

education of children." The preamble to St. Joseph's bylaws also asserts it

"operates according to the beliefs, teaching, and mission of the Catholic

Church."

       St. Joseph's religious identity can also be seen in its unique relationship

with the Roman Catholic Archbishop of Louisville. He (or his designee) has a

permanent seat on St. Joseph's Board of Trustees. The Archbishop must

review any amendments to St. Joseph's bylaws to ensure that they are

consistent with the "beliefs, teachings, and missions" of the Roman Catholic

Church before they can be effectuated. The Archbishop is also vested with the




      48   Kirby, 426 S.W.3d at 609 (quoting Hollins v. Methodist Healthcare, Inc., 474
F.3d 223, 226 (6th Cir. 2007)).

                                            22
power to invalidate unilaterally any action of the Board that he deems contrary

to the principles of Roman Catholicism.

       The campus of St. Joseph is adorned with many of the embellishments of

religious symbolism expected in a religious institution, including crosses and a

statue of St. Joseph and the infant Jesus prominently displayed atop the roof

above the main entrance.

       Other facts not necessarily relevant to show St. Joseph's religious

mission but are nonetheless pertinent to show St. Joseph's general religious

nature include: its tax-exempt status under the United States Conference of

Catholic Bishops' group exemption; the inclusion of its tax filings in the

Archdiocese tax return; and, its successful claim that its ERISA retirement

plan qualified as a "religious plan."

       Upon consideration of the facts before us, we are constrained to conclude

that St. Joseph is a religious organization. Although there are surely

countervailing facts not outlined above, any such facts are not within our reach

because of Alumni's failure to file a timely brief in the record, and our requisite

deference to the facts as outlined by St. Joseph. 49 Therefore, we conclude that

the trial court erred by denying St. Joseph's motion to dismiss. We find

applicable to the present case the ecclesiastical-abstention defense because the



        49 We urge the bench and bar to recognize that our conclusion that St. Joseph
is a religious organization under the ecclesiastical-abstention defense is of very limited
precedential value. Our inability to weigh the entire factual scenario surrounding the
operation of St. Joseph has constrained us to reach the conclusion we do today. This
case is not to stand for the proposition that every similarly situated orphanage or
allegedly religious entity is entitled to the benefit of ecclesiastical abstention.

                                              23
underlying suit unquestionably concerns the internal governance of a religious

entity.


                                     III. CONCLUSION.

          Based on the foregoing, we affirm the Court of Appeals' denial of a writ

because we conclude the ecclesiastical-abstention doctrine is not a bar to

subject-matter jurisdiction. But we conclude the underlying suit presents an

issue of ecclesiastical governance that is subject to ecclesiastical abstention.

So we reverse the trial court's denial of St. Joseph's motion to dismiss.

Accordingly, this case is remanded to the trial court for entry of an order

dismissing the complaint.



          All sitting. All concur:




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COUNSEL FOR APPELLANTS:

Walter L. Sales
Leah Rupp Smith
Joseph A. Bilby
Stoll Keenon Ogden PLLC

Charles Harding Cassis
Jennifer Kaelin Luhrs
Goldberg Simpson, LLC


The Honorable Brian Clifford Edwards
Judge, Jefferson Circuit Court, Division Eleven


COUNSEL FOR REAL PARTIES IN INTEREST:

Charles Thomas Hectus
Hectus Law Office

William Joseph Walsh IV
Buchenberger Walsh, PLLC




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