Lippard v. Holleman ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-873
Filed: 19 May 2020
Iredell County, No. 13 CVS 2701
KIM and BARRY LIPPARD, Plaintiffs,
v.
LARRY HOLLEMAN and ALAN HIX, Defendants.
Appeal by Plaintiffs from order entered 17 April 2018 by Judge Mark E. Klass
in Iredell County Superior Court. Heard in the Court of Appeals 14 March 2019.
Seth B Weinshenker, P.A., by Seth B. Weinshenker, for plaintiffs-appellants.
Gibbs & Associates Law Firm, LLC, by Seth J. Kraus and E. Bedford Cannon,
for defendants-appellees.
MURPHY, Judge.
Kim Lippard (“Mrs. Lippard”) and Barry Lippard (“Mr. Lippard”) (together,
“Plaintiffs”) allege multiple claims of defamation against Larry Holleman
(“Holleman”) and Alan Hix (“Hix”) (together, “Defendants”). The First Amendment
does not permit courts to hear defamation claims when they were made during an
internal religious dispute regarding ecclesiastical matters. We affirm the trial court’s
grant of summary judgment in favor of Defendants.
LIPPARD V. HOLLEMAN
Opinion of the Court
BACKGROUND
Plaintiffs were members of Diamond Hill Baptist Church (“DHBC”), where
Mrs. Lippard had served as church pianist and vocalist. Holleman was the Pastor of
the Church and Hix was Minister of Music. Holleman was DHBC’s leader and was
“responsible for leading [DHBC] to function as a New Testament Church.” This
included leading the congregation and DHBC staff to perform their tasks and caring
for the DHBC members. Hix directed DHBC’s music organization. Its purpose was
“to teach music, train persons to lead, sing, and play music, [and] provide music in
the [DHBC] and community.” Under Hix’s direction, the music organization
“provide[d] and interpret[ed] information regarding the work of the [DHBC] and
denomination.”
On 8 August 2012, Mrs. Lippard and Hix had a disagreement over the re-
assignment of a music solo. The solo was originally assigned to Mrs. Lippard for an
upcoming Sunday morning service. Hix, however, asked another choir member to
perform the solo and Mrs. Lippard was upset about the reassignment. When an
internal conflict between church members arises, DHBC’s bylaws maintain that “the
pastor and the deacons will take every reasonable measure to resolve the problem in
accord with Matthew 18.”
As church leader, Holleman began meeting with Mrs. Lippard and Hix to
facilitate a “reconciliation” between them and an “improved relationship based on
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biblical passages.” On 26 August 2012, after several unsuccessful reconciliation
meetings, Holleman met with the Board of Deacons (“Deacons”) to discuss whether
Mrs. Lippard should be dismissed from her position as DHBC pianist. At the
meeting, the Deacons voted to recommend Mrs. Lippard’s dismissal to DHBC’s
Church Personnel Committee (“the Personnel Committee”). Three days later,
Holleman informed Mrs. Lippard that the Deacons had voted to recommend her
dismissal.
In response to a voice message from Mr. Lippard, Holleman arranged further
counseling sessions between Mrs. Lippard and Hix. The sessions were to continue
seeking a “reconciliation” between the two and were scheduled for late September
through October 2012.
Ultimately, the Deacons announced its decision to again recommend Mrs.
Lippard’s dismissal and re-submitted its recommendation to the Personnel
Committee. The Personnel Committee met and voted to recommend to the full
congregation that Mrs. Lippard be dismissed as DHBC pianist. The decision had to
be approved by an affirmative vote of three-fourths of DHBC members. On 13
November 2012, Holleman delivered a letter to Mrs. Lippard, setting forth the
reasons for his recommendation to dismiss her as pianist.1
1 Although the 13 November letter Holleman sent to Mrs. Lippard is not included in the
Record, Plaintiffs assert the 13 November letter is a shortened version of a 28 November 2012 letter
made available to the full DHBC congregation, which is included in the Record. Defendants do not
contest this assertion.
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On 25 November 2012, during the morning DHBC church service, Holleman
announced to his congregation that there would be a “church-wide” meeting and a
vote in three days. At that meeting, DHBC staff would be discussed and it was part
of the responsibilities of members to be present for the discussion and to vote. He
also said that a written letter explaining a motion and absentee ballots for the motion
would be made available.
At the “church-wide” meeting on 28 November 2012, Holleman delivered a
sermon on the motion to terminate Mrs. Lippard from the pianist position. He
repeatedly stated that the recommendation for Mrs. Lippard’s dismissal stemmed
from her “unwillingness to commit” to the DHBC’s reconciliation process. After the
meeting, Holleman left printed copies of his 28 November 2012 sermon in the foyer
for members of the congregation. He also made a letter available titled “Concluding
Comments to the Present disciplinary Actions by The Body of Deacons and the
Personnel Committee (November 13, 2012).” It said, “I (we) have yet to hear you
acknowledge any personal responsibility for your failures.” The letter concluded that
Mrs. Lippard, “by placing conditions upon [her] obedience to the scriptures as they
regard reconciliation, ha[s] been the obstacle to that reconciliation.”
In a sermon on 2 December 2012, Holleman advocated for the DHBC
congregation to remove Mrs. Lippard from the pianist position. Ballots were
distributed stating the Deacons recommended the dismissal of Mrs. Lippard “due to
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her unwillingness to admit to any wrongdoing, or to commit unconditionally to the
process of reconciliation.” The congregation voted against dismissal, and Mrs.
Lippard remained in her position. Holleman and Hix also continued in their
respective leadership positions.
Plaintiffs allege that, after the vote, Holleman and the Deacons unsuccessfully
sought to remove them as members of DHBC, and that Defendants continued to
speak with members of the congregation about Plaintiffs. Plaintiffs contend that in
Holleman’s sermons he “continued . . . to defame [Plaintiffs] by consistently preaching
against those who would not commit to reconciliation,” alluding to Plaintiffs.
Plaintiffs further contend Hix said to a DHBC member that “[Mr.] Lippard is a liar
and you and other people like you are believing him instead of the Scripture.” On 8
January 2013, Hix also emailed DHBC member Tony Brewer (“Brewer”) about the
situation, stating Plaintiffs were “openly denying” “verifiable facts” about the
reconciliation process.
Holleman also communicated with others about Plaintiffs. When Brewer
complained of the efforts to remove Plaintiffs, Holleman sent a letter to him alleging
that Mrs. Lippard “refuses to acknowledge any wrongdoing, and that she was
unwilling to commit unconditionally to the process of reconciliation.” In a 6 April
2013 email, Holleman claimed Mr. Lippard once “blocked [Hix’s] exit from the music
room and was aggressively going after [Hix], pointing his finger in [Hix]’s face, an
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action [Holleman] recently learned was illegal and could have very well been reported
as a crime.” Holleman also emailed DHBC member A.W. Myers (“Myers”), stating
Mrs. Lippard failed to acknowledge her own role in the dispute between her and Hix.
In August 2013, Mrs. Lippard resigned her position as DHBC pianist and Plaintiffs
began attending another church.
A. Unpublished Lippard
Shortly after Mrs. Lippard’s resignation, Plaintiffs filed this action against
DHBC and Defendants, alleging they were defamed by Defendants, who Plaintiffs
also allege committed ultra vires corporate activities. In their answer, Defendants
moved to dismiss Plaintiffs’ complaint under N.C.G.S. § 1A-1, Rule 12(b)(1) for lack
of subject matter jurisdiction. Plaintiffs voluntarily dismissed their claim against
DHBC without prejudice, leaving only their claims against Defendants. Defendants’
Rule 12(b)(1) motion to dismiss was denied by Judge Anna Mills Wagoner on 25 May
2014. Defendants later moved to dismiss Plaintiffs’ second cause of action for ultra
vires activities, and Judge Theodore Royster granted Defendants’ motion, leaving
only the claims for defamation against Defendants.
After retaining new counsel, Plaintiffs filed a separate civil action (No. 15-CVS-
606) against Defendants and DHBC upon nearly identical claims of defamation, ultra
vires activities, and negligent supervision while the claims in the 2013 case were still
active. Defendants moved to dismiss the claims in No. 15-CVS-606 and made an oral
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motion to dismiss the claims in this case as well. Judge Michael Duncan dismissed
the claims in No. 15-CVS-606 while refusing to rule on Defendants’ oral motion to
dismiss the claims in this case, finding that Judge Wagoner had previously ruled on
that issue.
Defendants filed an additional motion to dismiss Plaintiffs’ remaining
defamation claims in this case on 16 February 2016 for lack of subject matter
jurisdiction under N.C.G.S. § 1A-1, Rule 12(b)(1) and failure to state a claim upon
which relief can be granted under N.C.G.S. § 1A-1, Rule 12(b)(6). Judge Martin B.
McGee heard the motion on 21 March 2016 and dismissed Plaintiffs’ defamation
claim in an order, stating “[t]he First Amendment deprives the [c]ourt of jurisdiction
to resolve this dispute involving internal communications between church leadership
and members of the congregation relating to issues of membership and music
leadership.”
Plaintiffs appealed and we vacated and remanded the judgment to the trial
court in an unpublished opinion. Lippard v. Holleman, No. COA16-886, 253 N.C.
App. 407, 798 S.E.2d 812, 2017 WL 1629377, at *3 (2017) (unpublished) (hereinafter
Unpublished Lippard).2 In vacating and remanding the trial court’s dismissal of
Plaintiffs’ claims under Rule 12(b)(1), we held that Judge McGee’s grant of
Defendants’ motion to dismiss impermissibly overruled Judge Wagoner’s denial of
2 Our recognition of the law of this case does not convert the holding in our previously
unpublished opinion into binding precedent. See Rule 30(e).
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Defendants’ motion to dismiss in the same action. We reasoned subject matter
jurisdiction is not an exception to the general rule that “one Superior Court judge
may not correct another’s errors of law; and . . . ordinarily one judge may not modify,
overrule, or change the judgment of another Superior Court judge previously made
in the same action.” Unpublished Lippard, 2017 WL 1629377, at *3 (quoting
Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972)) (internal
quotations omitted). We further held that none of the recognized exceptions to the
Calloway rule applied. See id. at *5. Although we discussed jurisdiction and the
ecclesiastical entanglement doctrine under the First Amendment in dicta, our opinion
did not reach the merits of the issue currently before us.
B. Decision on Remand
On remand to the trial court, Defendants filed a motion for summary judgment
under N.C.G.S. § 1A-1, Rule 56, stating there was no genuine issue as to any material
fact and they were entitled to judgment as a matter of law. Judge Mark E. Klass
granted Defendants’ motion on the following grounds: (1) the First Amendment
barred Plaintiffs’ claims because “inquiry into the falsity of the claimed ‘defamatory
statements’ would cross the ecclesiastical limitations prohibited by the First
Amendment”; (2) “Defendants are entitled to judgment as a matter of law in their
individual capacities” because Plaintiffs “failed to raise any forecast of evidence that
Defendants made any of their statements in their individual capacities”; (3)
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Defendants are entitled to judgment as a matter of law in their representative
capacities because Plaintiffs voluntarily dismissed Defendants’ principal, DHBC; (4)
none of Defendants’ statements were defamatory per se as a matter of law; and (5)
Plaintiffs failed to “provide any evidentiary forecast that they suffered special
damages because of any of Defendants’ allegedly defamatory per quod statements.”
Plaintiffs appealed.
ANALYSIS
Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that any party is entitled to a
judgment as a matter of law.” N.C.G.S. § 1A-1, Rule 56(c) (2017). “We review a trial
court’s order granting or denying summary judgment de novo.” Craig ex rel. Craig v.
New Hanover County Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 353 (2009)
(internal citations omitted).
“Subject matter jurisdiction is conferred upon the courts by either the North
Carolina Constitution or by statute.” Harris v. Pembaur, 84 N.C. App. 666, 667, 353
S.E.2d 673, 675 (1987). “The question of subject matter jurisdiction may be raised at
any time . . . .” Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d
83, 85 (1986). “It is a universal rule of law that parties cannot, by consent, give a
court, as such, jurisdiction over subject matter of which it would otherwise not have
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jurisdiction. Jurisdiction in this sense cannot be obtained by consent of the parties,
waiver, or estoppel.” Pulley v. Pulley, 255 N.C. 423, 429, 121 S.E.2d 876, 880 (1961)
(quoting Hart v. Thomasville Motors, Inc., 244 N.C. 84, 88, 92 S.E.2d 673, 676 (1956)).
A. First Amendment Ecclesiastical Entanglement Doctrine
Plaintiffs argue the trial court erred in granting summary judgment to
Defendants for lack of subject matter jurisdiction on First Amendment grounds.
According to Plaintiffs, their defamation claims do not require the trial court to
impermissibly weigh church doctrine because “it is the conduct of [Defendants] in
carrying on reconciliation proceedings and defaming [Plaintiffs] in the course of such
proceedings, and not the reconciliation proceeding itself, that is at issue.” In contrast,
Defendants argue the trial court correctly held that the defamation claim is barred
under the ecclesiastical entanglement doctrine because, to determine whether the
alleged defamatory statements were false, courts would “becom[e] entangled in the
statements made during the course of [DHBC]’s religious disciplinary and
administrative activities between the Lippards, Holleman, Hix, and members and
choir members of DHBC.” We hold that determining the truth or falsity of
Defendants’ alleged defamatory statements—where the content of those statements
concerns whether Plaintiffs complied with DHBC’s practices—would require us to
interpret or weigh ecclesiastical matters, an inquiry not permitted by the First
Amendment.
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“The Establishment Clause and the Free Exercise Clause of the First
Amendment prohibit any ‘law respecting an establishment of religion, or prohibiting
the free exercise thereof.’” Doe v. Diocese of Raleigh, 242 N.C. App. 42, 47, 776 S.E.2d
29, 34 (2015) (quoting U.S. Const. amend. I.). “As applied to the states through the
Fourteenth Amendment, the First Amendment also restricts action by state
governments and the servants, agents and agencies, of state governments.” Hill v.
Cox, 108 N.C. App. 454, 461, 424 S.E.2d 201, 206 (1993) (citation and quotation marks
omitted). There is “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.” Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am.,
344 U.S. 94, 116, 97 L. Ed. 120 (1952) (emphasis added). “For the First Amendment
rests upon the premise that both religion and government can best work to achieve
their lofty aims if each is left free from the other within its respective sphere.”
McCollum v. Bd. of Ed., 333 U.S. 203, 212, 92 L. Ed. 649 (1948). We “are prohibited
‘from becoming entangled in ecclesiastical matters’ and have no jurisdiction over
disputes which require an examination of religious doctrine and practice in order to
resolve the matters at issue.” Doe, 242 N.C. App. at 47, 776 S.E.2d at 34-35 (quoting
Johnson v. Antioch United Holy Church, Inc., 214 N.C. App. 507, 510, 714 S.E.2d 806,
810 (2011).
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An ecclesiastical matter is one which concerns doctrine,
creed, or form of worship of the church, or the adoption and
enforcement within a religious association of needful laws
and regulations for the government of membership, and
the power of excluding from such associations those
deemed unworthy of membership by the legally constituted
authorities of the church; and all such matters are within
the province of church courts and their decision will be
respected by civil tribunals.
Doe, 242 N.C. App. at 47, 776 S.E.2d at 35 (quoting E. Conference of Original Free
Will Baptists of N.C. v. Piner, 267 N.C. 74, 77, 147 S.E.2d 581, 583 (1966), overruled
in part on other grounds by Atkins v. Walker, 284 N.C. 306, 200 S.E.2d 641 (1973)).
Hearing disputes over these matters is prohibited because of two concerns: “(1) by
hearing religious disputes, a civil court could influence associational conduct, thereby
chilling the free exercise of religious beliefs; and (2) by entering into a religious
controversy and putting the enforcement power of the state behind a particular
religious faction, a civil court risks ‘establishing’ a religion.” Id. at 48, 776 S.E.2d at
35 (internal quotation marks omitted) (quoting Emory v. Jackson Chapel First
Missionary Baptist Church, 165 N.C. App. 489, 492, 598 S.E.2d 667, 670 (2004)).
These dangers demand dismissal “when ‘no neutral principles of law exist to
resolve claims’ so that [a] court can ‘avoid becoming impermissibly entangled in the
dispute[.]’” Id. at 58, 776 S.E.2d at 41 (alterations omitted) (quoting Harris v.
Matthews, 361 N.C. 265, 273, 643 S.E.2d 566, 571 (2007)). This necessitates an
answer to a “dispositive question[:] whether resolution of the legal claim requires the
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court to interpret or weigh church doctrine.” Smith v. Privette, 128 N.C. App. 490,
494, 495 S.E.2d 395, 398 (1998) (citing Serbian E. Orthodox Diocese v. Milivojevich,
426 U.S. 696, 710, 49 L. Ed. 2d 151, 163 (1976)). Only when an “issue to be
determined in connection with [a party’s] claim is a purely secular one,” then
“[n]eutral principles of law govern th[e] inquiry and . . . subject matter jurisdiction
exists in the trial court over th[e] claim.” Doe, 242 N.C. App. at 55, 776 S.E.2d at 39
(emphasis added); see also Smith v. Raleigh Dist. of N.C. Conference of United
Methodist Church, 63 F. Supp. 2d 694, 713 (E.D.N.C. 1999) (holding that “[a] court
must determine whether the dispute is an ecclesiastical one about discipline, faith,
internal organization, or ecclesiastical rule, custom or law, or whether it is a case in
which it should hold religious organizations liable in civil courts for purely secular
disputes between third parties and a particular defendant, albeit a religiously
affiliated organization”) (internal marks and citations omitted).
In Harris, our Supreme Court reaffirmed the importance of avoiding
entanglement in matters such as ecclesiastical governance, doctrine, practice,
questions, roles of officials, and internal decision-making. Harris v. Matthews, 361
N.C. 265, 271-73, 643 S.E.2d 566, 570-572 (referencing Serbian E. Orthodox Diocese
v. Milivojevich, 426 U.S. 696, 710, 49 L. Ed. 2d 151, 163 (1976); Md. & Va. Eldership
of Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 368, 24 L. Ed.
2d 582, 583 (1970) (per curiam); Presbyterian Church in U.S. v. Mary Elizabeth Blue
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Hull Mem’l Presbyterian Church, 393 U.S. 440, 449, 21 L. Ed. 2d 658, 665 (1969)).
The Supreme Court concluded that
[w]hen a party brings a proper complaint, where civil,
contract, or property rights are involved, the courts will
inquire as to whether the church tribunal acted within the
scope of its authority and observed its own organic forms
and rules. But when a party challenges church actions
involving religious doctrine and practice, court
intervention is constitutionally forbidden.
Harris, 361 N.C. at 274–75, 643 S.E.2d at 572 (internal marks and citations omitted)
(emphasis added).
Although our courts have not previously decided whether the ecclesiastical
entanglement doctrine applies to defamation claims, “the principles set out [in
Harris] concerning the limitations placed by the First Amendment on the subject
matter jurisdiction of civil courts to adjudicate claims against religious entities are
equally applicable here.” Doe, 242 N.C. App. at 49, 776 S.E.2d at 36. Again, “[t]he
dispositive question is whether resolution of the legal claim[s] requires the court to
interpret or weigh church doctrine. If not, the First Amendment is not implicated
and neutral principles of law are properly applied to adjudicate the claim.” Id. at 49,
776 S.E.2d at 36 (alteration in original) (quoting Smith v. Privette, 128 N.C. App. 490,
494, 495 S.E.2d 395, 398, appeal dismissed, 348 N.C. 284, 501 S.E.2d 913 (1998)).
Defamation claims present a unique challenge under this doctrine because, in North
Carolina, as in other states, these claims include as an essential element the falsity
of the defendant’s alleged statements. See Parker v. Edwards, 222 N.C. 75, 78, 21
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S.E.2d 876, 878-89 (1942) (“It may be stated as a general rule . . . that a defamatory
statement, to be actionable, must be false.”).
Harris maintains that our courts must avoid entanglement in ecclesiastical
matters, doctrine, and practice. See Harris, 361 N.C. at 269-75, 643 S.E.2d at 569-
72. Not only do we dismiss claims that involve examining or weighing doctrine, but
we also dismiss claims that involve examining or weighing ecclesiastical matters.
Doe, 242 N.C. App. at 46-58, 776 S.E.2d at 34-41; see Harris, 361 N.C. at 270, 643
S.E.2d at 569 (“The constitutional prohibition against court entanglement in
ecclesiastical matters is necessary to protect First Amendment rights identified by
the ‘Establishment Clause’ and the ‘Free Exercise Clause.’”). As discussed above,
ecclesiastical matters go beyond following church scripture or texts, and our
precedent has shown the breadth of ecclesiastical matters and church doctrine.
In Doe, we distinguished two tort claims that implicated the ecclesiastical
entanglement doctrine. On the one hand, we allowed an individual’s negligent
supervision claim against a diocese and a bishop that stemmed from an alleged sexual
assault, reasoning that neutral principles of law permitted adjudicating an
individual’s claim that the diocese and bishop knew or should have known of the
danger posed by the priest to an individual because of his sexual attraction to minors.
Doe, 242 N.C. App. at 51-55, 776 S.E.2d at 36-39. We concluded there was no need to
determine issues such as whether the priest should have been incardinated, allowed
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to remain a priest, or whether the priest’s relationship with the diocese should have
been severed. Id. On the other hand, we could not adjudicate the same individual’s
negligence claim based on defendants’ failure to compel the priest to undergo sexually
transmitted disease (STD) testing. Id. at 56, 776 S.E.2d at 40. We reasoned that the
liability theory was premised on tenets of the Catholic church, namely, the degree of
control existing in the relationship between the bishop and priest. Id.
Our Supreme Court held in Harris that a trial court could not judge “the proper
role of . . . church officials and whether . . . expenditure[s were] proper in light of . . .
religious doctrine and practice.” Harris, 361 N.C. at 273, 643 S.E.2d at 571.
Therefore, “[b]ecause a church’s religious doctrine and practice affect its
understanding of each of [the concepts at issue], [this is like] asking a court to
determine whether a particular church’s grounds for membership are spiritually or
doctrinally correct or whether a church’s charitable pursuits accord with the
congregation’s beliefs,” which are barred. Id. Religious doctrine permeates a church’s
understandings of numerous aspects of its religious practice. See id.Various other North Carolina cases inform what is included in the
ecclesiastical entanglement doctrine. We held in Emory that we could not look into a
church’s internal customs or practices. Emory v. Jackson Chapel First Missionary
Baptist Church, 165 N.C. App. 489, 493, 598 S.E.2d 667, 670-71 (2004) (barring an
examination of informal meeting notice requirements). Yet, in Azige, we reaffirmed
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that courts may resolve church disputes through neutral principles of property law
without necessarily becoming entangled in internal church governance concerning
ecclesiastical matters. Azige v. Holy Trinity Ethiopian Orthodox Tewahdo Church,
249 N.C. App. 236, 239, 790 S.E.2d 570, 572-73 (2016). Likewise, in Smith, we did
not have to interpret or weigh doctrine in a negligent retention and supervision claim
because the claims merely raised the issue of whether church officials knew or had
reason to know of a cleric’s propensity to engage in sexual misconduct. Smith, 128
N.C. App. at 495, 495 S.E.2d at 398.
United States Supreme Court decisions also support our longstanding aversion
for entanglement in ecclesiastical matters. Religious disputes can include “matters
of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.” See
Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713, 49 L. Ed. 2d 151(1976). Indeed, more than 150 years ago, the United States Supreme Court held that
religious disputes could cover “theological controversy, church discipline,
ecclesiastical government, or the conformity of the members of the church to the
standard of morals required of them . . . .” Watson v. Jones, 80 U.S. 679, 733, 20 L.
Ed. 666 (1871). “[Watson] radiates . . . 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.” Kedroff, 344 U.S. at 116, 97 L. Ed. 120 (emphasis added).
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Under our precedent and United States Supreme Court precedent, religious
doctrine and ecclesiastical matters are expansive. Statements made during religious
disputes can include a religion’s internal customs, practices, beliefs, faith, theology,
morality, membership, organization, governance, rules, law, discipline, and degree of
control between members. The nature of speech, and alleged defamatory statements
in particular, more easily touch upon these subjects than negligence or property
claims. To illustrate, a corporation’s communications are riddled with corporate
issues and business matters, just as a religion’s internal communications are riddled
with religious issues and ecclesiastical matters. It is then unlikely that a church’s
internal communications will be “purely secular.” See Doe, 242 N.C. App. at 55, 776
S.E.2d at 39 (holding that we have subject matter jurisdiction over an issue when a
“claim is a purely secular one” because “[n]eutral principles of law [can] govern th[e]
inquiry”).
For defamation claims, we must consider whether a statement is true or false
without examining or inquiring into ecclesiastical matters or church doctrine. See
Doe, 242 N.C. App. at 48, 776 S.E.2d at 35. Those matters permeate much of a
religion’s internal communications, and so it will be a rare occurrence when a
religion’s internal statements are purely secular. We must remain cautious of
deciding the truth or falsity of a religion’s internal communications because doing so
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risks chilling the religion’s “associational conduct” or putting our pen’s power “behind
a particular religious faction.” See id. at 48, 776 S.E.2d at 35.
Finally, we cannot favor religions with scripture and disfavor religions without
scripture. Religions without authoritative scripture or internal documentation would
be more susceptible to defamation claims than those without. We cannot
disadvantage religions that lack such texts. Nor can we decide if a religion has
sufficiently deep ecclesiastical points of faith and practice compared to others. The
First Amendment serves to prevent exactly this sort of picking of winners and losers
in ecclesiastical matters.
B. The Statements
Plaintiffs argue several communications by Defendants were defamatory. For
simplicity, we divide analysis of these communications into discrete sets of
statements. We hold that determining the falsity of the statements—an essential
element of a defamation claim under North Carolina law—would require our courts
to examine or inquire into ecclesiastical matters or church doctrine. This is not
permitted by the First Amendment or North Carolina precedent. We analyze these
communications in turn.
1. 13 November 2012 Letter
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The first statement Plaintiffs challenge is contained in the 13 November letter
addressed from Holleman to Mrs. Lippard and later sent to DHBC’s congregation in
an expanded form. Plaintiffs primarily challenge the following statement from the
letter: “I (we) have yet to hear you [Mrs. Lippard] acknowledge any personal
responsibility for your failures.” Plaintiffs claim that the statement is false “in that
[Mrs.] Lippard ha[d] acknowledged her share of responsibility in the dispute with
Hix.”
Further context from the 13 November letter shows the ecclesiastical context
of the challenged statement. In the 13 November letter, Holleman stated the
Deacons’s recommendation to dismiss Mrs. Lippard came from the Deacons’s belief
that “[Mrs. Lippard,] by placing conditions upon [her] obedience to the scriptures as
they regard reconciliation, ha[s] been the obstacle to that reconciliation.” Holleman
stated that, during a reconciliation meeting, he had posed six questions drawn from
Ephesians 4 to Mrs. Lippard, with three more direct questions asking her to admit
failures in those areas. He continued, saying “it’s true you answered ‘yes’ but you
followed that answer three times with the condition of your demand for satisfactory
answers from [Hix.] What was evident then was that you had missed the essence of
the Biblical text . . . .” Holleman went on to identify four “personal failures” of Mrs.
Lippard “that are obviously and Biblically demonstrated as failures or sinful”: (1) her
immediate response to the song reassignment; (2) that she “failed in [her] continued
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Opinion of the Court
resistance to the disciplinary actions of the church,” specifically noting that “Hebrews
12:11 exhorts [DHBC members] to be ‘exercised’ or ‘trained’ by [the reconciliation
process]”; (3) Mrs. Lippard’s alleged “slanderous comments about a fellow believer”;
and (4) her “implied accusation that [Hix] had intentionally concealed the music for
his solo . . . .”
Plaintiffs ask us to determine the truth or falsity of Holleman’s claim that he
and the Deacons had not heard Mrs. Lippard “acknowledge any personal
responsibility for [her] failures.” What is apparent from the 13 November letter is
that the acknowledgment of personal responsibility Holleman refers to is
acknowledgment in the context of reconciliation between persons under biblical
doctrine as DHBC understands it. Courts cannot undertake such an inquiry.
To determine whether Mrs. Lippard’s conduct constituted an
“acknowledge[ment] of personal responsibility” under these conditions would require
courts to interpret religious doctrine. Here, the statement at issue is whether Mrs.
Lippard acknowledged personal responsibility for her failures. To determine the
truth or falsity of that statement, the trial court would have to determine (1) what
Mrs. Lippard’s “failures” were, in biblical context, and (2) whether Mrs. Lippard’s
conditional response to the questions asking her to admit failures based on the text
of Ephesians 4 was sufficient under DHBC doctrine. We hold the ecclesiastical
entanglement doctrine under the First Amendment prohibits this inquiry.
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2. 28 November 2012 Sermon
Plaintiffs next contend statements Holleman made in a 28 November 2012
sermon delivered to the DHBC congregation were defamatory. Plaintiffs challenge
Holleman’s statement that “[Mrs. Lippard] had yet to acknowledge any wrongdoing
and that this refusal was the basis for the Deacon’s [sic] recommendation [to dismiss
her as staff church pianist].” They further challenge Holleman preaching that the
Deacons’s decision was based on Mrs. Lippard’s “unwillingness to commit” to DHBC’s
reconciliation process; that Mrs. Lippard’s refusal to accept responsibility “for any
possible error was as strong, if not stronger than ever[]”; and that Mrs. Lippard “never
conceded to any wrongdoing.” Plaintiffs also challenge Holleman’s claims that Mrs.
Lippard accused Hix of lying and intentionally hiding sheet music and making
slanderous comments about a fellow choir member.
The content of the 28 November sermon restates and expands on the 13
November letter and our analysis demands the same result. The record shows that
Holleman delivered the challenged statements during a sermon explaining the
Deacons and Personnel Committee’s decision to recommend Mrs. Lippard’s
termination as church pianist and advocating for the congregation to approve that
termination. Specifically, Holleman describes the sermon and gathering as “a
necessary, though infrequent, part of New Testament Church life and ministry,” and
the attempted “reconciliation process” and recommendation for termination as an
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“application of church discipline” and as “follow[ing] the New Testament pattern for
church discipline.”
At the outset of the 28 November sermon, Holleman taught that the
disciplinary process is based on Matthew 18:15-17. Further, as initially stated in the
13 November letter, Holleman’s comments throughout the 28 November sermon
made clear that his appeal for commitment to the reconciliation process and
acceptance of personal responsibility from Mrs. Lippard stems from following
Ephesians 4:3. Plaintiffs contend Mrs. Lippard “was always willing to commit to the
reconciliation process, having attended all the reconciliation meetings,” and that she
had acknowledged personal responsibility for her failures because she “had in fact
apologized numerous times for any perceived or actual missteps on her behalf.” These
assertions, however, only illustrate that what is at issue here is not merely a matter
of fact, but what constitutes “willingness to commit” to DHBC’s reconciliation process
and “acceptance of personal responsibility” in accordance with its doctrine.
To evaluate the truth or falsity of these statements, we would need to inquire
into religious doctrine and practice. In particular, we would have to decide whether,
as Plaintiffs contend, Mrs. Lippard’s mere attendance at reconciliation meetings
constituted “willingness to participate” in those meetings, and whether her asserted
apologies to Hix sufficed for “acceptance of personal responsibility” in the context of
DHBC’s reconciliation process. Resolving these questions would involve our courts
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in determining such essential points of doctrine as what “reconciliation,”
“wrongdoing,” and “acceptance of personal responsibility” mean, which would
necessarily involve interpretation of Matthew 18 and Ephesians 4. Courts cannot
make such determinations without running afoul of the First Amendment.
3. Ballot and Absentee Ballot
Plaintiffs next contend the language of the Ballot and Absentee Ballot (“the
ballots”) disseminated to the congregation was defamatory. The specific language
Plaintiffs challenge, which was identical on the ballots, stated:
The Deacons & Personnel Committee recommend that
[Mrs.] Lippard be immediately dismissed from her duties
as church pianist, due to her unwillingness to admit to any
wrongdoing, or to commit unconditionally to the process of
reconciliation.
Then, “based upon the following three questions,” the ballots asked congregants to
“render a decision”:
[1]. Have [Mrs. Lippard]’s actions been clearly
demonstrated to her and to you as wrong according to the
Scriptures?
[2]. Have the efforts of the Deacons, Personnel
Committee and Pastor to restore her into the fellowship of
the Body of Christ been sufficiently exercised with careful
deliberation, patience, and graciousness, and according to
the Scriptures?
[3]. Has [Mrs. Lippard] responded positively as
instructed by the Scriptures?
Plaintiffs’ defamation claim based on the language of the ballots, which is similar to
statements made by Holleman in the 13 November letter and 28 November sermon,
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Opinion of the Court
is barred by the ecclesiastical entanglement doctrine of the First Amendment. To
determine the truth or falsity of the claim that Mrs. Lippard was “unwilling[] to admit
to any wrongdoing, or to commit unconditionally to the process of reconciliation,” we
would have to inquire into whether the actions Mrs. Lippard took throughout the
reconciliation process comported with DHBC’s understanding of the requirements of
scripture. The ecclesiastical entanglement doctrine prohibits this inquiry.
4. Communications by Hix about Mr. Lippard
Plaintiffs next argue two statements by Hix were defamatory. They contend
oral communications made by Hix to an unidentified congregant on 23 December
2012 were defamatory. They also contend an email sent to Brewer, a DHBC choir
member, on 8 January 2013 contained a defamatory statement.
Plaintiffs allege that on 23 December 2012, Hix said “[Mr.] Lippard is a liar
and you and other people like you are believing him instead of Scripture.” 3 Without
conceding the statement was made, Defendants contend the statement “was made in
the context of Hix’s interpretation of and Mr. Lippard’s compliance with scripture.”
Therefore, Defendants argue, “[a]n inquiry into the falsity of the statement would
require a comparison of Mr. Lippard’s conduct with Scripture, which also prohibits
lying.” We presume “people like [Brewer]” refers to other DHBC members who
3 We cannot separate the 23 December 2012 statement into two parts and must read it as a
whole because it is a complete sentence without a comma that would indicate a compound sentence of
two thoughts.
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Opinion of the Court
support Plaintiffs. To decide whether Mr. Lippard lied and if people like Brewer
believed Mr. Lippard instead of DHBC’s interpretation of scripture, we would need
to inquire into DHBC’s definition of lying, when to believe scripture, and how
scripture determines whom to believe. This is an issue over DHBC’s internal customs,
practices, morality, and degree of control between members. It cannot be said that
this statement is purely secular. Analyzing the truth or falsity of this statement
would require us to assess whether the alleged words or deeds comport with or
contravene the teachings of scripture regarding lying and DHBC’s interpretation of
it, an inquiry prohibited by the First Amendment.
Plaintiffs also contend the following statement from an 8 January 2013 email
to Brewer is defamatory: “Note that there are verifiable facts and Biblical scriptures
which [Plaintiffs] are openly denying and defying.” Defendants again argue that “[a]n
inquiry into the falsity of the statement would require a comparison of [Plaintiffs’]
conduct with Scripture and whether they were openly denying and defying the
Scripture.” As we discussed above regarding the 13 November 2012 letter, Plaintiffs
ask us to determine the truth or falsity of Hix’s claim that Plaintiffs were “openly
denying and defying” “verifiable facts and Biblical scriptures.”
This statement arose when Brewer was concerned that “taking anyone off the
[Special Music] schedule” was an inappropriate “form of discipline in a church
setting.” Hix replied, in part, that
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Opinion of the Court
[Brewer] might want to look closely and note that while
[Mrs. Lippard] and [Mr. Lippard] were removed from the
Special Music schedule, that I also removed myself from
that rotation. Note also that there are verifiable facts and
Biblical scriptures which they are openly denying and
defying. Those facts and scriptures still stand. The church
vote allowed [Mrs. Lippard] to keep her position as pianist,
but it did not answer the biblical appeal for reconciliation.
That appeal was extended by 17 out of 18 of our senior
church leaders. Until [Mr. Lippard] and [Mrs. Lippard] are
prepared to respond to the appeal which was, has been, and
continues to be extended in biblical love, it would not be
appropriate to restore them to a position of leading worship
within the church.
For many, music is worship as it is a celebration of faith and often a time of prayer.
Confirming the veracity of Hix’s claim would require us to inquire into and examine
DHBC’s internal discipline process, biblical appeals for reconciliation, and Hix’s
ability to direct and control the members of DHBC’s music organization. Hix’s
assessment of whether Plaintiffs are “openly defying” “verifiable facts and Biblical
scriptures” directly informed his decision of whether “it would . . . be appropriate to
restore them to a position of leading worship within [DHBC].” Further, an inquiry
into the falsity of whether Plaintiffs were “openly denying and defying” “verifiable
facts and Biblical scriptures” would also, again, require us to examine DHBC’s
customs and practices relating to the biblically-based reconciliation process. The
ecclesiastical entanglement doctrine under the First Amendment prohibits this
inquiry as well.
5. Communications by Holleman about Plaintiffs to his Congregation
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Opinion of the Court
Plaintiffs next contend statements made by Holleman to various church
members regarding Plaintiffs were defamatory. Specifically, Plaintiffs cite a 16
January 2013 letter from Holleman to Brewer, a 6 April 2013 email from Holleman
to Brewer, and a 25 April 2013 email to Myers.
a. 16 January 2013 Letter
Plaintiffs allege that a litany of excerpts from the 16 January letter were
defamatory. Among others, Plaintiffs claim the following statements made by
Holleman were defamatory: (1) “I was not exaggerating when I said to the church
that [Plaintiffs] have been confronted with appeals for reconciliation 26 times since
2010[]”; (2) “Obviously, [Mrs. Lippard] is not required to do these things [(i.e.,
voluntary service to the church)] as a part of her job description but if there was an
eagerness to serve as a staff member and a joyful participant in the ministry of
[DHBC], it seems that she might find a place of service[]”; (3) “I can’t imagine why
[Mrs. Lippard] would have been resistant to the idea [of voluntary service] to this
day, but that resistance certainly doesn’t communicate a spirit of willingness and
cooperation”; (4) “[Mrs. Lippard is] the present obstacle to reconciliation between her
and [Hix]”; and (5) “No doubt there are more strategies against the church leadership
playing out tonight.”
Analyzing the falsity of excerpts (1)-(4) would require us to interpret or weigh
DHBC’s interpretation of scripture and doctrine. For example, in determining
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Opinion of the Court
whether it is true that “[Plaintiffs] have been confronted with appeals for
reconciliation 26 times,” we would have to determine what constitutes an appeal for
reconciliation within DHBC. Whether Mrs. Lippard was a “joyful participant in the
ministry of the church” and had “a spirit of willingness and cooperation” ultimately
turn on the meaning of those terms within DHBC membership and doctrine. Finally,
determining the falsity of Holleman’s identification of Mrs. Lippard as “the present
obstacle to reconciliation between her and [Hix]” would again require us to interpret
the reconciliation process and the responsibilities of participants according to
scripture as interpreted by DHBC. Each of these examinations would cross the
ecclesiastical boundary line under the First Amendment.
The fifth excerpt that “there are more strategies against the church leadership
playing out tonight” does not directly invoke scripture, but it does involve other
ecclesiastical matters.4 The excerpted statement arose in the midst of Holleman
explaining, to a member of his congregation, his thoughts on the ongoing dispute,
controversy, conversations, confrontations, and involvement of fellow DHBC
members:
I am in heartfelt agreement with you here [that the “back-
and-forth” must stop]. Since the vote, the only action taken
by the church leadership has been to delay [the Lippards’]
reinstatement into the solo rotation. I’ve given our reasons
above. While I can’t speak for every member, as far as I’m
aware, every new conversation or controversy has been
4 We note scriptural interpretations of this phrase are possible, but Defendants do not make
any such argument on appeal.
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Opinion of the Court
initiated by [the Lippards], or by those who have been
advocating for their position. You yourself have attempted
to engage me in conversation at the church. You have
asked to speak with James Orbison. And now you’ve
written this letter and had it delivered to me, Bryan
Sherrill, and Bill Wooten. [Mr. Lippard] has confronted
[Hix] multiple times, and this very day, I’ve met with Billy
Lynch for breakfast, whom [Mr. Lippard] had confronted at
Church with a copy of Alan’s directives to [Mrs. Lippard].
I’ve learned that [Mr. Lippard] has e-mailed [Hix]
requesting an explanation for why he and [Mrs. Lippard]
have not been returned to the solo rotation. And Bryan
Sherrill indicates that [Mr. Lippard] called him today
attempting to “catch” me in some mistake. These are just
a few. No doubt there are more strategies against the
church leadership playing out tonight. The only time I or
the church leadership have engaged in further
conversation has been when we have been compelled to
answer publicly some charge of wrong doing. You claim
that you want the back-and-forth to stop yet here I am, a
month after the church vote, writing out an answer to your
uninformed accusations of our mishandling of the past
issues, while [Hix] and Bryan are fielding additional
complaints and accusations from [Mr. Lippard]. It would
seem that in large part the back-and-forth ceasing is up to
you and [Mr. Lippard]. For my part, you are reading what
is at least near to being my last word on the matter. As to
your accusation that “Someone, mainly [Hix], wants [Mrs.
Lippard] off the piano.” Short of making a motion for [Mrs.
Lippard’s] dismissal from the fellowship of the church,
what disciplinary action would you have suggested? I
think the Deacons brought the best recommendation they
could bring that would communicate to [the Lippards] the
seriousness of an irreconcilable spirt while also providing
grace and room for their appropriate response. I doubt that
they would have been any less enraged by a suspension,
given the fact that [Mr. Lippard] rejected my offer that he
and [Mrs. Lippard] might, like [Hix], take a leave of
absence until the matter could be resolved. Your
accusation that “mainly” [Hix] wanted [Mrs. Lippard]
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Opinion of the Court
removed from the piano, says more about you [sic] personal
opinion of [Hix] than it does about the reality of the issue.
I’m sure that [Hix’s] attempts at trying to find a way to
work with [Mrs. Lippard] have been a source of frustration
for him over the years, but never has he indicated in the
slightest that her removal was the solution. [Hix]
recognized early on that the roots of their contentious
relationship were primarily in [Mrs. Lippard’s] personal
dislike of him. His willingness to participate in the series
of meetings I had with them was evidence of his desire to
address those roots and to make whatever adjustments
were needed to better their relationship. Having presided
over those meetings, I am convinced that he [sic] effort was
sincere. To summarize, nothing in [Hix’s] behavior over
the past several months would support your claim that his
(or our) aim has been [Mrs. Lippard’s] removal as church
pianist.
This quote itself is excerpted from a 13-page pastoral letter. The letter is a formal
“Pastoral Response” to a complaint filed by a member of the church. The letter and
the complaint “regard[] [Mrs.] Lippard” and her “recent disciplinary action.” The
letter concludes that “God Himself will be the judge of this and while I hope that men
will know my heart, I cannot ultimately be persuaded of my rightness or wrongness
by their Biblically unsubstantiated opinions alone.”
Plainly, this controversy and ongoing dispute with the Plaintiffs is a matter of
DHBC’s internal membership, organization, governance, discipline, and degree of
control between members. We cannot decide the rightness or wrongness of this
statement by a pastor communicating with his flock.
b. 6 April 2013 Email
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Opinion of the Court
Plaintiffs also contend Holleman defamed them in a 6 April email to Brewer.
In the email, Holleman stated:
There were several there the Wednesday night that [Mr.
Lippard], with [Mrs. Lippard] behind him, blocked [Hix’s]
exit from the music room and was aggressively going after
[Hix], pointing his finger in [Hix’s] face, an action I recently
learned was illegal and could have very well been reported
as a crime.
This excerpted statement does not directly involve scripture, but it does involve
DHBC’s customs, doctrine, and practice regarding membership and member conduct.
This accusatory excerpt was made in the midst of an extensive multi-page email chain
that contains several references to scripture and discusses DHBC and Holleman’s
handling of the dispute:5
[Header of the 6 April 2013 9:07 AM email from Brewer to
Holleman.]
Hi [Holleman,]
I guess due to you not replying to the last E-Mail, you
disagree with having a meeting with [Mrs. Lippard] and
[Mr. Lippard].
I am very saddened[.] Could it be that they were wronged
and have additional information to prove it[?] Could it be
that others should also be present at a meeting to address
their part of the issues[?] Could it be that you and the
committ[e]es were totally right[?] By giving them an
additional meeting[,] could [it] settle the whole matter or
not[?] There is everything to gain and nothing to lo[]se. Is
5Alterations to the email chain include adjusting the names of the parties for consistency,
removing extraneous spacing and parentheses, adding paragraph breaks, and correcting some
grammatical and spelling errors.
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Opinion of the Court
everything better now by not giving them additional
attention or not? When I was the[re] last[, DHBC]
members were going around telling other members not to
speak to [Mr. Lippard].
Is this Christian actions[?] By not giving them the needed
attention they deserve[?] You, committee members and
others should give them an apology for the way things were
handled. You know yourself that [Mr. Lippard] was only
protecting his wife and trying to get someone[’s] attenti[on]
about setting up a meeting and settling the Issues!
[Holleman] I have been very concerned about your ministry
and would not want anything to hinder that[.] Also[,] I
always try to think of [DHBC] and ways [to] prevent
conflict. [DHBC] has been through many Issues in the
past. Mostly petty issues which t[ea]r the cong[r]e[g]ation
apart[.] WE should learn from our mistakes[.]
However[,] it appears that we don’t always. That’s also
partially why our membership does not grow. I trust that
everyone will do what[’]s right through this conflict by
showing love and concern for all, even through conflicts.
Signed[,]
[Brewer]
[Header of the 6 April 2013 5:25 PM email by Holleman
replying to Brewer.]
I didn’t respond because you wrote that you had said all
you wanted on the matter. My assumption was that you
had also heard all you wanted.
You’re correct in assuming that I and the Deacons, and the
Personnel Committee will not provide another meeting
with [Mr. Lippard] and [Mrs. Lippard]. We have had 5
meetings with [Mr. Lippard] and [Mrs. Lippard] and if you
count the [DHBC]-wide meeting, they’ve had no fewer than
6 opportunities to ask their questions. In each of these
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Opinion of the Court
meetings we have answered their questions along with
numerous times in one on one conversations.
The Deacons have indicated to [Mr. Lippard] that if he
wanted to have a conversation about reconciliation, we
would be happy to have that conversation. We will not
provide [Mr. Lippard] with a public platform to make
accusations against [Hix] or the leadership which he
cannot give evidence for beyond his own suspicions. I
Timothy 5:19 says, “Receive not an accusation against an
elder without two or three witnesses.” True, [DHBC]
doesn’t elect elders, but leaders serve the same function,
particularly staff members. How would you like it if a
single person came to me and demanded a church meeting
to publicly accuse you of all kinds of things without having
a single substantial piece of evidence or a witness to
validate those accusations? Would you be so eager for that
meeting? I think not.
So then your suggestion that we abandon the Biblical
instruction and “give [Mr. Lippard] all the meetings he
wants” to make all the accusations he wants certainly does
not have the good and health of [DHBC] in mind. You are
advocating for [Mr. Lippard]’s desire to do what the
scriptures forbid. I am certain that if [Mr. Lippard] had
any substantial evidence to validate any of his claims, we
would have been informed by now via phone call, E-mail,
or personal contact. He certainly has not been reluctant to
raise his “points” thus far.
I would add that you continue to refer to “others being in a
meeting.” I’m at a loss to understand why you and [Mr.
Lippard] cannot seem to understand that [Hix] hasn’t been
a part of the discussions since August 22, 2012? We’ve not
been defending [Hix], or his actions past or present, yet
every time you send an e-mail or every time [Mr. Lippard]
confronts someone, it involves [Hix]. The actions of the
Leadership and 59% of [DHBC] are not a vindication of
[Hix] or his actions, they are simply the actions resulting
from [Mr. Lippard] & [Mrs. Lippard]’s refusal to yield to
what the Word of God says.
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I very much protest your implied accusation that [Mr.
Lippard] has some information that we are trying to
suppress by not allowing him to have a meeting. I think
seven months of meetings and discussions is ample, in fact
abundant, time for him to have brought such evidence
forward.
Your opinion is getting pretty clear. You obviously agree
with [Mr. Lippard] that we or (I) have not acted Biblically
or in a Christian manner towards [Mr. Lippard] and [Mrs.
Lippard]. If that’s true then I ask that you provide some
evidence of that beyond your own opinion. Otherwise you
are very close to becoming a false witness against those
who are called to lead [DHBC] according to God’s word.
(Ephesians 4:11-12)
An additional meeting will not settle the whole matter,
because the “matter” to be settled is whether or not [Mr.
Lippard] and [Mrs. Lippard] are going to obey God and the
scriptures. They have refused to yield from the beginning
to the Word of God. I am exhausted with trying to explain
that to you, and your continuing advocacy for [Mr. Lippard]
and [Mrs. Lippard] have made it increasingly difficult for
us to keep directing their attention to the Biblical
injunction to be reconciled. Your encouraging them and
lending a sympathetic ear, have only deepened their
resolve to reject our appeals and while you think yourself
to have been acting in a Christian manner toward them,
you have actually (unwittingly or not) contributed to
pushing them farther away from the Lord and the true
peace that might have been, and still may be, found in Him.
That [Mr. Lippard] and [Mrs. Lippard] are out of fellowship
with God and [DHBC] is painfully evident in the methods
they are employing against the leadership of [DHBC]. I
can’t tell you how many times [Mr. Lippard] has twisted
my words to make them say something to fit his agenda.
He even claimed that I admitted to him that “I framed him
and [Mrs. Lippard] with the August 22nd meeting.”
Absurd! He always fails to inform folks that I was very
explicit with the conditions set for the meeting, days before,
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Opinion of the Court
at the start, and again at the conclusion of that meeting.
[Mr. Lippard] agreed to those conditions, and even
admitted later that he did so because he knew that it was
the only way he could get a face to face meeting with [Hix].
I ask you[: W]ho was being dishonest there? I was
completely straightforward and transparent about the
nature of that [Wednesday] meeting [on 22 August 2012],
and he agreed only so that he could conceal his true motive.
That should tell you that [Mr. Lippard] and [Mrs. Lippard]
did not come into that meeting seeking reconciliation as
was the stated purpose, but to confront [Hix] with their
accusations. And accuse they did! [Mr. Lippard] finally
just interrupted me bluntly, dismissed the scripture I had
used, and demanded of [Hix] an explanation for the song
reassignment. [Hix] answered and that didn’t satisfy them
and [Mr. Lippard] and [Mrs. Lippard] immediately went
after him. At that point, as indicated to them beforehand,
I ended the meeting and informed them that matter would
follow the Matthew 18 mandate. There were witnesses
there to confirm everything I’ve said about that
[Wednesday] meeting.
No person in leadership has endorsed anything less than
respectful behavior toward [Mr. Lippard] and [Mrs.
Lippard]. If there are members, leadership and otherwise
who have who have refused to speak to [Mr. Lippard] and
[Mrs. Lippard], they have not done so at my request. I have
been cordial and respectful to [Mr. Lippard] and [Mrs.
Lippard], prior to the church vote and following it.
If folks have been standoffish, it might have something to
do with [Mr. Lippard] and [Mrs. Lippard]’s behavior. Some
folks have witnessed their confrontations. There were
several there the Wednesday night that [Mr. Lippard], with
[Mrs. Lippard behind him, blocked [Hix]’s exit from the
music room and was aggressively going after [Hix], pointing
his finger in [Hix]’s face, an action I recently learned was
illegal and could have very well been reported as a crime.
(emphasis added).
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Add to these the numerous “parking lot” confrontations,
and angry telephone calls, and it might at least explain
why some folks are avoiding them. I’m not suggesting that
this is the right response, but you make it sound as though
the folks that are “shunning” them are doing so without
any provocation at all. To be honest with you, there are a
few that are even frightened by [Mr. Lippard]’s
aggressiveness, and I’ve told him this. Having said this, I
would say that the withholding of full fellowship from a
rebellious and disobedient (To the Scriptures) believer has
Biblical precedent (2 Thessalonians 3:14-15; Romans
16:17-18).
For this reason, while I have tried to speak to [Mr. Lippard]
and [Mrs. Lippard] at every opportunity, and be respectful
and cordial, I have not treated them in such a way as to
imply or suggest to them that they have been restored to
full fellowship with [DHBC]. They cannot reject the Word
of God and refuse to be reconciled to their brothers and still
enjoy a proper fellowship with God and it is wrong and
unloving to treat them in such a way as to obscure that
reality. If the Lord brings to mind by the Holy Spirit or
through His word that I have wronged or acted wrongly
toward [Mr. Lippard] and [Mrs. Lippard] or anyone else,
you can be assured that I will make that right without
delay. But as I’ve said to you multiple times already, if you
or [Mr. Lippard] and [Mrs. Lippard] can demonstrate
Biblically that this issue has been mishandled or that grace
and mercy and the humility of Galatians 6:1 has been
omitted, I will gladly apologize.
Did you know that I have submitted for the review of four
fellow Pastors, a written account of every action we’ve
taken and every decision I’ve personally made, including
all the arguments that [Mr. Lippard] and others have
raised[?] [A]nd do you know that they have not discovered
a single error in our handling of it, and in fact have
commended the [DHBC] leadership for the thoroughness
and Biblical consistency with which they’ve navigated
through this issue[?] Obviously God will be the final judge,
but I find great encouragement that four of my mentors,
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Opinion of the Court
Pastors who have been in the ministry for years, have said
that they weren’t sure that they would have “handled” it as
well.
For this grace, I am deeply grateful to God. I have spent
hours agonizing over decisions and the words with which I
should convey them, and in my flesh, I would have surely
failed miserably, but all the while, God was impressing me
to just follow the Word. With His grace, and to His glory,
that’s exactly what we’ve done. I am content if we have
been pleasing to Him. You may have been concerned about
me personally, but I don’t think you have been concerned
about “the ministry to which God has called me.” In fact, I
don’t think you really understand that ministry.
For me, church is not merely a background scene in front
of which I live my life. I’m not just pulpit furniture that
just happens to be in place each Sunday morning, Sunday
night, and Wednesday. When I stand in that Pulpit, I feel
the weight of the responsibility to “rightly divide the
Word.” There is an urgency in my heart that almost makes
me feel as though if I don’t preach in such a way as to
display the glory of Christ, I will have utterly failed.
There’s a desperation in my heart that everyone present
might see that we don’t just have a religious book in our
hands but the very word and voice of God Almighty. You
may think that my aim is to “keep the peace,” but you
forget that the Lord Himself said, “Think not that I have
come to bring peace on the earth, but a sword….” (Matthew
10:34-39).
Oh don’t misunderstand, I’m a peace lover too. By nature
I’m not confrontational at all. But I will not settle for a
superficial peace that continues to allow sin to fester and
grow under the surface, only to erupt at the slightest
“petty” disagreement, and I’m fully aware that that
position will not be appreciated by all. Jesus said as much,
if you’ll read the entire reference mentioned above (Mat.
10:34-39)[.]
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Opinion of the Court
You’re right, [DHBC] in large part has not learned from its
past mistakes and one of those mistakes has been to avoid
confrontation when it was actually confrontation that was
needed to expose the root that caused it. (1 Corinthians
11:18-19) Equally contributing to that error is the
unbiblical idea of the church as a collection of individuals,
completely without accountability. We’ve adopted an
Americanized Christianity that has everyone as
independent and self-determining lone-rangers. Did you
know that nothing could be farther from the Bible? What
[DHBC] has never learned is that without willful
submission to becoming accountable to God and other
believers, the intimacy that everyone claims to want and
enjoy is impossible. So resistant are we to the ideal of
humble submission and willful vulnerability that we’ve
decided that we would settle for a shallow, soon to be
broken, intimacy. I suspect that [DHBC] has settled for
that for so many years that they’ve began to think that’s
the norm. It’s not…I assure you!
The Lord can change that though, and I think that’s what
He might be up to in all of the last seven months. The
question I suppose is this: “will I, will you, will [Mr.
Lippard] and [Mrs. Lippard], will [DHBC] trust God
enough to simply obey Him? Will we wait for him to lead
us through the darkness of this present valley, believing
with our whole heart that there’s a bright meadow on the
other side?[”]
This may be more than you can digest in one reading, but
I don’t think I need to say much more than this. No, I
absolutely don’t agree with you on multiple Biblical
grounds, but the increasingly antagonistic and accusatory
tone of your e-mails suggest to me that I’m alienating you
ever farther and since that makes no sense and is not
ultimately helpful, I’ll just leave things as they are.
I would add one more question. With the exception of my
leaving the jobsite angrily many years ago, [i]n the 28 years
you have known me and in the 7 years I’ve served as Pastor
at [DHBC], have you observed anything in my character
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Opinion of the Court
that would suggest to you that I would have acted as
maliciously in this issue as [Mr. Lippard] has undoubtedly
portrayed me to you and others? [I]f not, I can’t understand
how you would so quickly attribute to me the character he
suggests.
If I have in fact acted as treacherously and deceitfully as
[Mr. Lippard] would have you believe, there is a
constitutional recourse available to you and [Mr. Lippard].
You can develop and circulate a petition for my dismissal
as Pastor. You can force a motion before [DHBC] with a
petition signed by 25% of the membership and [DHBC] will
be forced to vote on the matter.
To be honest, if I am guilty of what [Mr. Lippard] charges
me with and what you suspect me of, you would be well
within your Christian duty to do exactly that.
Respectfully and Prayerfully,
Larry
[Header of the 6 April 2013 6:45 PM email from Brewer to
Holleman.]
Hi [Holleman,]
I know that the committee members were addressing [Mrs.
Lippard] only, I knew that then[.] However[, Hix] was [a
part] of the conflict with the song and as Director. This
part is my real issue. I have had issues with [Hix] before
and believe there [is] more to it. [N]o one is perfect[.]
[H]owever[, Hix] should be willing to address their issues.
That may be why they want another meeting. Another
meeting can[’]t hurt and may settle it all. No reply
necessary[.]
[Brewer]
[Header of the 7 April 2013 email from Brewer to
Holleman.]
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Opinion of the Court
I was thinking about the letter overnight. I think how
ironic you twist and turn things around and now blaming
me. I guess I am to blame for at least one thing[—s]howing
concern[.]
Let me ask you this[, d]id [Mrs. Lippard] agree to go
through reconciliation about the issues 2 1/2 years ago and
did you say things were going well[?] Did you say that you
were going to recommend to the [D]eacons to drop the
issues[?] If that is the case, why was that reinstated as a
problem[?] I have said in the beginning that [Hix] should
be at the meeting on Wednesday night in question. The
song issue has not been settled. Until [Hix] is willing to
meet with [Mrs. Lippard] and [Mr. Lippard] and settle
their issues. There is no reconciliation. I don’t know what
they wanted to discuss in a meeting[.] But[,] I think
another meeting is necessary. If [Hix] had been present at
the Wednesday night meeting in question, things could
have been possibly settled. I never intended to question
your abilities[.] Only to grab your attention[.] I would not
want you to lo[]se your job over this. Also[, i]t bothers me
big time that this can and does affect [DHBC] membership.
We must handle issues above board as quickly as possible.
Sign
[Brewer]
Reply
As in Harris, we would be forced to determine whether the statement at issue
is proper in light of DHBC’s customs, doctrine, and practice regarding membership
and conduct. The statement arose from Holleman’s observations of how “folks” in the
church “have been standoffish” and “have witnessed [Plaintiffs’] confrontations.” The
email’s language, after the statement, explicitly discusses that “withholding of full
fellowship from a rebellious and disobedient (To the Scriptures) believer has Biblical
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Opinion of the Court
precedent (2 Thessalonians 3:14-15; Romans 16:17-18).” Looking into DHBC’s
membership governance and how it should react to what it considers improper
conduct would require examining church customs, doctrine, and practice.
c. 25 April 2013 Letter
Finally, Plaintiffs contend Holleman defamed them in the 25 April letter to
Mr. Myers. Specifically, Plaintiffs challenge Holleman’s statement that “[Hix]
indicated his willingness to acknowledge his own failures and ask forgiveness. [Mrs.
Lippard] did not!” They argue that statement is false because “[Mrs. Lippard]
apologized to Hix several times, even in writing, for any perceived or actual missteps
on her behalf.” As in the 28 November 2012 sermon discussed above, we are barred
from evaluating this statement under the ecclesiastical entanglement doctrine
because, in determining the truth or falsity of the claim that Mrs. Lippard did not
“acknowledge [her] own failures and ask forgiveness,” we would have to interpret and
weigh DHBC doctrine to determine what constitutes “acknowledgement” of failures
and “ask[ing] forgiveness” as part of DHBC’s process of reconciliation. Therefore,
analysis of this statement is barred by the First Amendment.
None of the statements at issue here are purely secular, but we can imagine
scenarios where members of a religion make defamatory statements wholly apart
from religion. Churchgoers could make defamatory statements against one another
outside their religious lives and instead in their personal, business, academic, or
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Opinion of the Court
other aspects of their temporal existence. But the statements at issue here were
made between members of the same congregation—including its pastor—about an
internal dispute regarding ecclesiastical matters. All the statements before us would
unconstitutionally require examining or interpreting ecclesiastical matters or
religious doctrine, and we may not do so under the First Amendment or the North
Carolina Constitution.
CONCLUSION
Plaintiffs appeal the trial court’s grant of summary judgment and argue
several errors. We affirm the trial court’s order on the ground that all statements
Plaintiffs challenge are barred by the ecclesiastical entanglement doctrine. Having
determined all of Plaintiffs’ claims on this ground, we do not address Plaintiffs’
remaining challenges.
AFFIRMED.
Judge BERGER concurs.
Chief Judge MCGEE concurs in part, dissents in part, and concurs in the
judgment in a separate opinion.
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No. COA18-873 – Lippard v. Holleman
McGEE, Chief Judge, concurring in part, dissenting in part, and concurring in
the judgment.
I disagree with the majority that the ecclesiastical entanglement doctrine
under the Establishment Clause and Free Exercise Clause of the First Amendment
and Article I, Section 13 of the Constitution of North Carolina bars the courts of our
state from considering defamation claims as to all the alleged statements challenged
by Plaintiffs in the present case. I would hold that some of the claims at issue are
barred by the ecclesiastical entanglement doctrine; however, four others are not.
I. Summary
In determining whether the ecclesiastical entanglement doctrine bars the
courts of our state from considering an issue, the fundamental question is “whether
resolution of the legal claim requires the court to interpret or weigh church doctrine.”
Smith v. Privette, 128 N.C. App. 490, 494, 495 S.E.2d 395, 398, appeal dismissed, 348
N.C. 284, 501 S.E.2d 913 (1998) (citing Serbian E. Orthodox Diocese v. Milivojevich,
426 U.S. 696, 710, 49 L.Ed.2d 151, 163 (1976)). In the context of a defamation claim,
which in North Carolina as in other states includes as an essential element the falsity
of the statement made, whether courts may apply neutral principles to resolve the
claim depends on whether determining the truth or falsity of the allegedly
defamatory statement “requires the court to interpret or weigh church doctrine.”
Although the majority applies this test correctly in some places, in others it expands
this analysis by holding that courts are barred from analyzing defamation claims
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
where they arise out of “matter[s] of [] internal membership, organization,
governance, discipline, and degree of control between members[,]” even when the
allegedly defamatory statements do not on their face address those topics and
determining the truth or falsity of those statements would not require our courts to
pass upon ecclesiastical issues, such as where one party accuses another of a crime,
or of lying about “verifiable facts.” The majority’s reading is at odds with precedent
in this state and would “go beyond First Amendment protection and cloak [religious]
bodies with an exclusive immunity greater than that required for the preservation of
the principles constitutionally safeguarded,” Smith, 128 N.C. App. at 495, 495 S.E.2d
at 398 (citation omitted), effectively prohibiting recovery by those harmed by
tortfeasors on the basis of the victims’ religious affiliation.6
In the case of defamation claims, I would hold that courts must evaluate the
specific elements of the claim, including the falsity of the alleged statement, and
determine whether “resolution of [the truth or falsity of the alleged statement]
requires the court to interpret or weigh church doctrine. If not, the First Amendment
is not implicated and neutral principles of law are properly applied to adjudicate the
claim.” Smith, 128 N.C. App. at 494, 495 S.E.2d at 398. Based on this analysis, I
concur with the majority’s holding for some of Plaintiffs’ defamation claims that they
6 See N.C. Const. Art. I, sec. 18 (“every person for an injury done him in his lands, goods,
person, or reputation shall have remedy by due course of law[.]”); id. Art. I, sec. 19 (“No person shall
be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the
State because of . . . religion . . . .”).
2
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
are barred because resolving the claims would require courts to interpret or weigh
church doctrine. For four allegedly defamatory statements discussed below, however,
I disagree and would hold that there is no need for the court to interpret or weigh
church doctrine in its adjudication of the truth or falsity of these claims. Therefore,
I dissent in part.
For the claims that I would hold are not barred by the ecclesiastical
entanglement doctrine, I would nevertheless hold that Plaintiffs have not shown
sufficient evidence for libel per se or special damages as required for libel or slander
per quod. Therefore, I concur in the majority’s judgment affirming the trial court’s
grant of summary judgment for Defendants.
II. Analysis
The Establishment Clause and Free Exercise Clause of the First Amendment
and Article I, Section 13 of the North Carolina Constitution prohibit civil courts “from
becoming entangled in ecclesiastical matters.” Doe v. Diocese of Raleigh, 242 N.C.
App. 42, 47, 776 S.E.2d 29, 35 (2015) (citation omitted); see Harris v. Matthews, 361
N.C. 265, 270, 643 S.E.2d 566, 569 (2007) (“The constitutional prohibition against
court entanglement in ecclesiastical matters is necessary to protect First Amendment
rights identified by the ‘Establishment Clause’ and the ‘Free Exercise Clause.’”
(citation omitted)). Our Supreme Court has long defined an “ecclesiastical matter”
as
3
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
one which concerns doctrine, creed, or form of worship of
the church, or the adoption and enforcement within a
religious association of needful laws and regulations for the
government of membership, and the power of excluding
from such associations those deemed unworthy of
membership by the legally constituted authorities of the
church; and all such matters are within the province of
church courts and their decisions will be respected by civil
tribunals.
E. Conference of Original Free Will Baptists of N.C. v. Piner, 267 N.C. 74, 77, 147
S.E.2d 581, 583 (1966) (citation and quotation marks omitted), overruled in part on
other grounds by Atkins v. Walker, 284 N.C. 306, 200 S.E.2d 641 (1973).
In the present case, however, Plaintiffs challenge neither the “adoption and
enforcement within a religious association of needful laws and regulations for the
government of membership,” nor DHBC’s “power of excluding from such associations
those deemed unworthy of membership by the legally constituted authorities of the
church.”7 Whether ecclesiastical matters are implicated in Plaintiffs’ claims for
defamation in the present case turns on whether the claims “concern doctrine, creed,
or form of worship of the church.”
“The dispositive question” in determining whether a court is barred from
deciding a cause of action because it would become entangled in ecclesiastical matters
7 In a previous case this Court held the same plaintiffs were barred from doing so. See Lippard
v. Diamond Hill Baptist Church, ___ N.C. App. ___, ___, 821 S.E.2d 246, 249 (2018) (holding plaintiffs’
claim they were improperly excluded from church even though they did not “take any action to have
themselves removed from church membership” was ecclesiastical matter under above definitions)
(citation omitted).
4
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
“is whether resolution of the legal claim requires the court to interpret or weigh
church doctrine. If not, the First Amendment is not implicated and neutral principles
of law are properly applied to adjudicate the claim.” Smith, 128 N.C. App. at 494,
495 S.E.2d at 398 (citing Milivojevich, 426 U.S. at 710, 49 L.Ed.2d at 163). The
application of the ecclesiastical entanglement doctrine to defamation claims is a
question of first impression in North Carolina and our precedents delineate the
contours of the ecclesiastical entanglement doctrine and are applicable here.
A. North Carolina Caselaw on Ecclesiastical Entanglement Doctrine
In Atkins v. Walker, 284 N.C. 306, 200 S.E.2d 641 (1973), which this Court
described as the “seminal case” on the ecclesiastical entanglement doctrine in Emory
v. Jackson Chapel First Missionary Baptist Church, 165 N.C. App. 489, 493-94, 598
S.E.2d 667, 671 (2004), a dissenting faction of a Baptist church filed a complaint
against members of the church and the pastor seeking a declaration that the plaintiffs
were the “true congregation,” that the pastor-defendant “be restrained from
continuing to act as its pastor” and that the defendants be required to surrender the
church property to the plaintiffs. Walker, 284 N.C. at 307, 200 S.E.2d at 642. The
complaint alleged that a division had arisen in the congregation and the plaintiffs
remained faithful to the previous doctrines and practices of the church while the
defendants had departed from those doctrines and practices. Id. at 307, 200 S.E.2d
at 643. The trial court submitted questions to the jury asking it to determine (1)
5
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
whether plaintiffs remained faithful to the doctrines and practices of the church as
previously practiced and (2) whether the defendants “departed radically and
fundamentally from the characteristic usages, customs, doctrines and practices of the
[church.]” Id. at 308, 200 S.E.2d at 643.
Our Supreme Court applied the Supreme Court of the United States’ decision
in Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial
Presbyterian Church, 393 U.S. 440, 21 L.Ed.2d 658 (1969), reasoning that “questions
must be resolved on the basis of [neutral] principles of law”—principles “developed
for use in all property disputes.” Id. at 319, 200 S.E.2d at 650 (citation omitted). For
example, courts could determine “(1) [w]ho constitutes the governing body of this
particular [] church, and (2) who has that governing body determined to be entitled
to use the properties.” In contrast, the First Amendment and Article I, Section 13 of
the Constitution of North Carolina prohibit a decision of property rights based on “a
judicial determination that one group of claimants has adhered faithfully to the
fundamental faiths, doctrines and practices of the church . . . while the other group
of claimants has departed substantially therefrom.” Id. at 318, 200 S.E.2d at 649.
Although our Supreme Court noted that the plaintiffs could have prevailed “by
showing that such action was not taken in a meeting duly called and conducted
according to the procedures of the church,” id. at 320, 200 S.E.2d at 651, it concluded
there was no evidence in the record to support such assertion and the trial court’s
6
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
opinion must have been based on an inquiry barred by the ecclesiastical
entanglement doctrine. Id. at 321, 200 S.E.2d at 651.
Notably, Atkins does not bar all inquiries in disputes over church property
merely because the property is church property, the parties are religious members
and organizations, or the dispute arose in a religious context. Rather, our Supreme
Court held that “[i]t nevertheless remains the duty of civil courts to determine
controversies concerning property rights over which such courts have jurisdiction and
which are properly brought before them[.]” Id. at 318, 200 S.E.2d at 649. Relying on
Presbyterian, our Supreme Court stated that “[n]either the First Amendment to the
Constitution of the United States nor the comparable provision in Article I, Section
13, of the Constitution of North Carolina deprives those entitled to the use and control
of church property of protections afforded by government to all property owners alike,
such as . . . access to the courts for the determination of contract and property rights.”
Id. at 318, 200 S.E.2d at 649. In conclusion, “[w]here civil, contract[,] or property
rights are involved, the courts will inquire as to whether the church tribunal acted
within the scope of its authority and observed its own organic form and rules.” Id. at
320, 200 S.E.2d at 650 (quoting W. Conference of Original Free Will Baptists v. Creech,
256 N.C. 128, 140-41, 123 S.E.2d 619, 627 (1962)).
In Harris v. Matthews, our Supreme Court reaffirmed the principles of Atkins
and applied them to a new cause of action—a claim for breach of fiduciary duty by a
7
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
minority faction of a congregational church against the pastor, secretary, and chair
of the board of trustees, based on the allegation that the pastor-defendant “ha[d]
usurped the governmental authority of the church’s internal governing body.” Harris,
361 N.C. at 272, 643 S.E.2d at 571. The Supreme Court noted that the plaintiffs
claimed the defendants breached their fiduciary duty “by improperly using church
funds, which constitutes conversion.” Id. at 273, 643 S.E.2d at 571. Our Supreme
Court held that the issue of whether the expenditures were proper could not be
resolved by neutral principles of law because “[d]etermining whether actions,
including expenditures, by a church’s pastor, secretary, and chairman of the Board of
Trustees were proper requires an examination of the church’s view of the role of the
pastor, staff, and church leaders, their authority and compensation, and church
management[,]” and “[b]ecause a church’s religious doctrine and practice affects its
understanding of each of these concepts[.]” Id. at 273, 643 S.E.2d at 571. Although
the ecclesiastical entanglement doctrine barred the claim at issue, the Harris Court
reaffirmed that “[w]here civil, contract[,] or property rights are involved, the courts
will inquire as to whether the church tribunal acted within the scope of its authority
and observed its own organic forms and rules.” Id. at 274-75, 643 S.E.2d at 572(citation omitted).
This Court has applied the principles of the ecclesiastical entanglement
doctrine in Atkins and Harris to other causes of action and clarified the test for
8
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
whether the ecclesiastical entanglement doctrine will bar courts from considering a
claim. In the leading case of Smith v. Privette, the plaintiffs, former church
employees, sued a United Methodist Church, the District of the North Carolina
Conference of the United Methodist Church, and the North Carolina Conference of
the United Methodist Church (together, “church defendants”), alleging claims for
negligent retention and supervision based on sexual misconduct by a pastor against
the employees. Reversing the trial court, this Court held the ecclesiastical
entanglement doctrine under the First Amendment did not bar courts from deciding
the negligent retention and supervision claims. Smith, 128 N.C. App. at 495, 495
S.E.2d at 398. This Court held that, in determining whether the ecclesiastical
entanglement doctrine would bar a claim, it must answer “the dispositive question”
of “whether resolution of the legal claim requires the court to interpret or weigh
church doctrine. If not, the First Amendment is not implicated and neutral principles
of law are properly applied to adjudicate the claim.” Id. at 494, 495 S.E.2d at 398
(citing Milivojevich, 426 U.S. at 710, 49 L.Ed.2d at 163). This Court applied that test
and held that while “the decision to hire or discharge a minister is inextricable from
religious doctrine and protected by the First Amendment from judicial inquiry,” the
plaintiffs’ claim, rather than requiring “the trial court to inquire into the [c]hurch
[d]efendants’ reasons for choosing Privette to serve as a minister,” “instead presents
the issue of whether the [c]hurch [d]efendants knew or had reason to know of
9
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
Privette’s propensity to engage in sexual misconduct,” which is “conduct that the
[c]hurch [d]efendants do not claim is part of the tenets or practices of the Methodist
Church.” Id. at 495, 495 S.E.2d at 398 (internal citation omitted). Therefore, “there
[wa]s no necessity for the court to interpret or weigh church doctrine in its
adjudication of the [p]laintiffs’ claim for negligent retention and supervision.” Id. at
495, 495 S.E.2d at 398. In so holding, this Court noted that “[t]he First
Amendment . . . does not grant religious organizations absolute immunity from
liability.” Id. at 494, 495 S.E.2d at 397. “Indeed, the application of a secular standard
to secular conduct that is tortious is not prohibited by the Constitution.” Smith, N.C.
App. at 494, 495 S.E.2d at 397 (internal citations and quotation marks omitted).
In Emory v. Jackson Chapel First Missionary Baptist Church, the plaintiff
church members brought an action against the church and the pastor, alleging they
provided insufficient notice to plaintiffs as required by the church bylaws for a
meeting at which the church altered its corporate structure and that defendants also
violated the plaintiffs’ contractual and property rights by failing to follow the
procedure. This Court explicitly noted that “[o]ur Supreme Court has held that a
trial court’s exercise of jurisdiction is improper only where ‘purely ecclesiastical
questions and controversies are involved.’” Id. at 492, 598 S.E.2d at 670 (quoting W.
Conference of Original Free Will Baptists of N.C. v. Creech, 256 N.C. 128, 140, 123
S.E.2d 619, 627 (1962)). This Court held the ecclesiastical entanglement doctrine
10
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
barred the trial court from determining whether the defendants provided the
plaintiffs with sufficient notice under the bylaws, because ambiguities existed in the
bylaws and “long-established church customs exist[ed] that may [have] alter[ed] the
interpretation of the notice requirements [in the bylaws].” Id. at 492, 165 N.C. App.
at 670. Thus, “the trial court would be required to delve into ‘ecclesiastical matters’
regarding how the church interprets the [] notice requirements and types of meetings
[in the bylaws.]” Id. at 493, 598 S.E.2d at 671 (quoting Piner, 267 N.C. at 77, 147
S.E.2d at 583). In addition, this Court noted that, while plaintiffs asserted contract
and property rights were implicated, the “heart of this matter [wa]s a change in the
structure of the church” and “the claims of [the] plaintiffs [] only tangentially
affect[ed] property rights.” Id. at 494, 495, 598 S.E.2d at 671, 672. Thus, there was
no “substantial property right” affected by the incorporation and the trial court
properly held the ecclesiastical entanglement doctrine barred the claim. Id. at 495,
598 S.E.2d at 672.
Although the plaintiffs’ claims in Emory “only tangentially affect[ed] property
rights,” id. at 495, 598 S.E.2d at 672, this Court has clarified the relationship between
church membership as an ecclesiastical matter and property rights in subsequent
cases. In Tubiolo v. Abundant Life Church, Inc., 167 N.C. App. 324, 605 S.E.2d 161(2004), we held that “membership in a church is a core ecclesiastical matter[,]” and
“[i]t is an area where the courts of this State should not become involved.” Tubiolo,
11
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
167 N.C. App. at 328, 605 S.E.2d at 164. However, we also held that “the plaintiffs’
membership in the defendant is in the nature of a property interest, and that the
courts do have jurisdiction over the very narrow issue of whether the bylaws were
properly adopted by the defendant.” Id. at 329, 605 S.E.2d at 164 (citing Bouldin v.
Alexander, 82 U.S. 131, 139-40, 21 L.Ed. 69, 71-2 (1872)). Therefore, the case was
distinguishable from Emory, because membership rights were implicated and “[t]his
inquiry [into whether the bylaws were properly adopted] can be made without
resolving any ecclesiastical or doctrinal matters.” Id. at 329, 605 S.E.2d at 164-65.
Nevertheless, this Court provided an important caveat on Tubiolo in Azige v. Holy
Trinity Ethiopian Orthodox Tewahdo Church, 249 N.C. App. 236, 790 S.E.2d 570(2016), where we held that the trial court was barred from considering issues based
on church membership status because the issues “would require interpretation of
[church] bylaws which do impose doctrinal requirements.” Azige, 249 N.C. App. at
242, 790 S.E.2d at 575. For example, “[t]he courts c[ould ]not determine the ‘immoral
behavior’ of plaintiffs for purposes of the bylaws . . . .” Id. at 244, 790 S.E.2d at 575.
These claims “raise questions which . . . would ‘require[] the court to interpret or
weigh church doctrine’ in contravention of the First Amendment,” violating the test
in Smith. Id. at 244, 790 S.E.2d at 575 (quoting Davis v. Williams, 242 N.C. App.
262, 892, 774 S.E.2d 889, 892 (2015)).
12
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
Besides property claims which involve ecclesiastical matters, this Court has
also addressed tort and contract claims under the ecclesiastical entanglement
doctrine. In Doe v. Diocese of Raleigh, the plaintiff filed complaints against the
Diocese of Raleigh, the Bishop of the Diocese, and a priest of the diocese alleging,
among other claims, claims for negligence against the Diocese and the Bishop,
arguing they negligently supervised the priest and failed to educate the plaintiff
about boundaries or require STD testing by the priest. Doe, 242 N.C. App. at 43-44,
776 S.E.2d at 32-33. Relying on Smith and Harris, this Court “examine[d] each of
[the p]laintiff’s remaining causes of action against the Diocese [d]efendants in order
to determine whether its adjudication would require ‘an impermissible analysis by
the court based on religious doctrine or practice.’” See id. at 49, 776 S.E.2d at 36
(citing Johnson v. Antioch United Holy Church, Inc., 214 N.C. App. 507, 711, 714
S.E.2d 806, 810 (2011); Harris, 361 N.C. at 274, 643 S.E.2d at 572).
As to the claim for negligent supervision, this Court analogized to the negligent
supervision claim in Smith and held that in Doe, as in Smith, the ecclesiastical
entanglement doctrine did not bar courts from determining whether the elements of
negligent supervision could be established because, in both cases, there was a
“commonsense understanding that sexual misconduct is not ‘part of the tenets or
practices of the [church.]’” Id. at 54, 776 S.E.2d at 38-39. Furthermore, this Court
held that adjudicating the negligent supervision claim would not require the trial
13
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
court to determine issues that “are inextricably bound up with church doctrine,” “such
as (1) whether [the priest] should have ever been incardinated; (2) whether he should
have been allowed to remain a priest; or (3) whether his relationship with the Diocese
should have been severed.” Id. at 55, 776 S.E.2d at 39. “[T]he issue to be determined
in connection with [the p]laintiff’s negligent supervision claim [wa]s a purely secular
one.” Id. at 55, 776 S.E.2d at 39.
In contrast, this Court held courts were barred from considering plaintiff’s
claim that the Diocese negligently failed to compel the priest to undergo STD testing
because “this theory of liability is premised on the tenets of the Catholic church—
namely, the degree of control existing in the relationship between a bishop and a
priest,” and it “seeks to impose liability based on the Diocese [d]efendants’ alleged
failure to exercise their authority over a priest stemming from an oath of obedience
taken by him pursuant to the church’s canon law.” Id. at 56, 776 S.E.2d at 40
(emphasis in original). Thus, this claim fails because “a civil court is constitutionally
prohibited from ‘interpos[ing] its judgment’ on the proper role of church leaders and
the scope of their authority ‘[b]ecause a church’s religious doctrine and practice affect
its understanding of each of these concepts.’” Id. at 56, 776 S.E.2d at 40 (quoting
Harris, 361 N.C. at 273, 643 S.E.2d at 571).
Finally, this Court addressed a claim for breach of contract in Bigelow v.
Sassafras Grove Baptist Church, 247 N.C. App. 401, 786 S.E.2d 358 (2016). In
14
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
Bigelow, a pastor claimed the defendants, a Baptist church and its deacons, breached
a contract and violated the North Carolina Wage and Hour Act by failing to pay him
compensation and benefits after he became ill pursuant to a written contract entered
into between himself and the defendants. Bigelow, 247 N.C. App. at 402, 786 S.E.2d
at 360. This Court held the argument that “the First Amendment of the United
States Constitution immunizes, without exception, a religious institution from
liability arising out of a contract between the religious institution and its ministerial
employees,” was inconsistent with Smith. Id. at 411, 786 S.E.2d at 366.
Furthermore, this Court held the plaintiff’s claims did not “ask[] the court to address
ecclesiastical doctrine or church law”; rather, they “require[d] the court only to make
a secular decision regarding the terms of the parties’ contract and to apply the neutral
principles of the Wage and Hour Act.” Id. at 411-12, 786 S.E.2d at 366. Therefore,
the ecclesiastical entanglement doctrine did not bar courts from considering the
plaintiffs’ contract claims.
B. Application of Ecclesiastical Entanglement Doctrine to Defamation Claims
In summary, although the issue of the application of the ecclesiastical
entanglement doctrine to defamation claims is a question of first impression for North
Carolina, our state’s extensive caselaw on the doctrine is “equally applicable here.”
See Doe, 242 N.C. App. at 49, 776 S.E.2d at 36.
15
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
Our courts must look to the specific elements of the cause of action to determine
whether “neutral principles of law exist to resolve plaintiffs’ claims.” Harris, 361 N.C.
at 273-74, 643 S.E.2d at 571. For instance, in Harris, our Supreme Court looked to
the specific elements of the cause of action for breach of fiduciary duty and, in
particular, the specific theory under the element of breach advanced by the plaintiff
(i.e., “improperly using church funds,” or “conversion”) in order to determine whether
the ecclesiastical entanglement doctrine would bar the claim. See id. at 273, 643
S.E.2d at 571. Because resolving that specific element would require courts to
determine whether actions by the church leadership were “proper” based on the
church’s view of the roles of those individuals, the Supreme Court held the claim in
that case was barred. Id. at 273, 643 S.E.2d at 571. Our courts have first identified
the cause of action and the specific elements of that claim at issue in determining
whether the claim is barred by the ecclesiastical entanglement doctrine. Our courts
then determine whether “neutral principles of law exist to resolve plaintiffs’ claims.”
Harris, 361 N.C. at 273-74, 643 S.E.2d at 572; see Atkins, 284 N.C. at 319, 200 S.E.2d
at 650 (“[D]eterminations must be made pursuant to ‘neutral principles of law,
developed for use in all property disputes.’” (citation omitted)). This Court has held
that we must answer “[t]he dispositive question” of “whether resolution of the legal
claim requires the court to interpret or weigh church doctrine. If not, the First
Amendment is not implicated and neutral principles of law are properly applied to
16
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
adjudicate the claim.” Smith, 128 N.C. App. at 494, 495 S.E.2d at 398 (citing
Milivojevich, 426 U.S. at 710, 49 L.Ed.2d at 163).
In the present case, Plaintiffs allege multiple claims for defamation, including
libel and slander per se and libel and slander per quod. “In order to recover for
defamation, a plaintiff generally must show that the defendant caused injury to the
plaintiff by making false, defamatory statements of or concerning the plaintiff, which
were published to a third person.” Desmond v. News and Observer Pub. Co., 241 N.C.
App. 10, 16, 772 S.E.2d 128, 135 (2015) (citation omitted). The only element of
defamation that Defendants argue violates the ecclesiastical entanglement doctrine
is the first element: the falsity of the alleged statement. I would hold that, in order
to determine whether courts are barred from considering a claim for defamation, they
must evaluate the specific elements of the claim, including the falsity of the alleged
statement, and determine whether “resolution of [the truth or falsity of the alleged
statement] requires the court to interpret or weigh church doctrine. If not, the First
Amendment is not implicated and neutral principles of law are properly applied to
adjudicate the claim.” Smith, 128 N.C. App. at 494, 495 S.E.2d at 398. However, if
resolution of the claim would require courts to interpret or weigh church doctrine, the
ecclesiastical entanglement doctrine under the First Amendment and Article I,
Section 13 of the Constitution of North Carolina prohibit them from adjudicating the
claim.
17
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
This statement of the law, grounded in our Court’s precedent and first adopted
from United States Supreme Court precedent, is more consistent with precedent than
that adopted in the majority’s opinion, which states that “[f]or defamation claims, we
must consider whether a statement is true or false without examining or inquiring
into ecclesiastical matters or church doctrine.” The majority’s imprecise rule
conflates the broad prohibition against courts becoming entangled in “ecclesiastical
matters” with the test adopted in Smith for determining whether “neutral principles
of law are properly applied to adjudicate the claim.” Smith, 128 N.C. App. at 494,
495 S.E.2d at 398 (citing Milivojevich, 426 U.S. at 710, 49 L.Ed.2d at 163). Where
neutral principles of law can be applied, resolving the claim would not impermissibly
entangle the court in ecclesiastical matters. For instance, in Tubiolo, this Court held
that “[m]embership in a church is a core ecclesiastical matter.” Tubiolo, 167 N.C.
App. at 328, 605 S.E.2d at 164. We nevertheless held that “the plaintiffs’ membership
in [a church] is in the nature of a property interest, and []the courts do have
jurisdiction over the very narrow issue of whether the bylaws were properly adopted
by the [church].” Tubiolo, 167 N.C. App. at 329, 605 S.E.2d at 164.
The majority incorrectly asserts, relying on Doe, that “[o]nly when an ‘issue to
be determined in connection with [a party’s] claim is a purely secular one,” then
“[n]eutral principles of law govern th[e] inquiry and . . . subject matter jurisdiction
exists in the trial court over th[e] claim.’” Maj. Op. at 13 (emphasis in original)
18
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
(quoting Doe, 242 N.C. App. at 55, 776 S.E.2d at 39). This is a misstatement of Doe
and contrary to Emory where this Court noted that “[o]ur Supreme Court has held
that a trial court’s exercise of jurisdiction is improper only where ‘purely ecclesiastical
questions and controversies are involved.’” Emory, 165 N.C. App. at 492, 598 S.E.2d
at 670 (quoting Creech, 256 N.C. at 140, 123 S.E.2d at 627); accord W. Conference of
Original Free Will Baptists v Creech, 256 N.C. 128, 140, 123 S.E.2d 619, 627 (1962)
(“The legal or temporal tribunals of the State have no jurisdiction over, and no
concern with, purely ecclesiastical questions and controversies . . . but the courts do
have jurisdiction, as to civil, contract[,] and property rights which are involved in, or
arise from, a church controversy.” (quoting Reid, 241 N.C. 201, 85 S.E.2d 114)).
Under Doe, while a claim being “purely secular” is a sufficient condition to avoid the
ecclesiastical entanglement doctrine, it is not a necessary one, and there may at times
be a gray area of questions between those that are “purely secular” and “purely
ecclesiastical.”
The majority’s approach to defamation claims does not consider our precedent
which provides that “the courts do have jurisdiction, as to civil, contract[,] and
property rights which are involved in, or arise from, a church controversy.” Creech,
256 N.C. at 140, 123 S.E.2d at 627 (emphasis added) (quoting Reid, 241 N.C. 201, 85
S.E.2d 114). Where “neutral principles of law exist to resolve plaintiffs’ claims,”
Harris, 361 N.C. at 273-74, 643 S.E.2d at 571-72, courts have not only the power but
19
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
the duty to resolve the plaintiffs’ claims, because “[n]either the First Amendment to
the Constitution of the United States nor the comparable provision in Article I,
Section 13, of the Constitution of North Carolina deprives [participants in religious
life] of protections afforded by government to all . . . , such as . . . access to the courts
for the determination of [civil, ]contract[,] and property rights.” Atkins, 284 N.C. at
318, 200 S.E.2d at 649. In the case of defamation claims, I would hold that neutral
principles of law exist and the ecclesiastical entanglement doctrine does not bar a
claim where resolving the claim’s elements, including determining the truth or falsity
of the alleged defamatory statement, would not require the court to interpret or weigh
church doctrine.
C. Analysis of Plaintiffs’ Claims
I concur in the majority’s analysis of Plaintiffs’ defamation claims based on
statements made by Mr. Holleman in the 13 November 2012 Letter, the 28 November
2012 Sermon, the Ballot and Absentee Ballot, claims based on four statements made
in the 16 January 2013 letter Mr. Holleman sent to Mr. Brewer, and the claim based
on a statement made in the 25 April 2013 letter Mr. Holleman sent to Mr. Myers.
Analyzing these statements would require our courts to “interpret or weigh church
doctrine,” and, therefore, resolving the claims would impermissibly entangle courts
in ecclesiastical questions in violation of the First Amendment and Article I, Section
13 of the Constitution of North Carolina.
20
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
I disagree with the majority’s analysis of Plaintiffs’ defamation claims based
on the 23 December 2012 oral statement allegedly made by Mr. Hix to an unidentified
congregant; the statement in the 8 January 2013 email to Mr. Brewer, a church choir
member; one claim based on a statement made in the 16 January 2013 letter Mr.
Holleman sent to Mr. Brewer; and the claim based on a statement made in the 6 April
2013 email Mr. Holleman also sent to Mr. Brewer. In its analysis of these statements,
the majority expands the ecclesiastical entanglement doctrine to bar defamation
claims that can be resolved by the application of neutral principles of law. I will
analyze these statements in turn.
(1) 23 December 2012 Alleged Oral Statement by Mr. Hix
Plaintiffs argue the following statement they allege Mr. Hix made to an
unidentified DHBC congregant on 23 December 2012 is defamatory: “[Mr.] Lippard
is a liar and you and other people like you are believing him instead of Scripture.”
[R18, 157] In response, Defendants argue the statement “was made in the context
of Mr. Hix’s interpretation of and Mr. Lippard’s compliance with Scripture” and that
“[a]n inquiry into the falsity of the statement would require a comparison of Mr.
Lippard’s conduct with Scripture, which also prohibits lying. (E.g., Rev. 21:8)” Def.
Br. at 29-30 The majority argues that “we would need to inquire into DHBC’s
definition of lying, when to believe scripture, and how scripture determines whom to
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LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
believe,” and that “[t]his is an issue over DHBC’s internal customs, practices,
morality, and degree of control between members.”
This statement contains two independent clauses, each with a complete
thought. First, I would hold that courts would not have to interpret or weigh church
doctrine in order to determine the truth or falsity of the first part of the claim, that
“[Mr.] Lippard is a liar.” Contrary to the arguments of Defendants and the majority,
the meaning of “liar” in this alleged oral statement is not ambiguous and would not
require interpretation of the Book of Revelation, or interpretation or weighing of
“DHBC’s definition of lying” to determine. In interpreting allegedly defamatory
statements, our courts construe the meaning of statements “as ordinary people would
understand” them. Renwick v. News and Observer Pub. Co., 310 N.C. 312, 319, 312
S.E.2d 405, 409 (1984). In ordinary usage, “liar” means “a person who tells lies,” and
“lie” means, inter alia, “an assertion of something known or believed by the speaker
to be untrue with intent to deceive.” See Merriam-Webster’s Collegiate Dictionary
716, 717 (11th Ed. 2003). Although Mr. Hix is an employee of DHBC, there is no
indication that there is a special “definition of lying” unique to DHBC. Therefore, I
would hold courts are not barred from determining a claim based on the alleged
statement by Mr. Hix that Mr. Lippard is a liar.
Second, the majority argues that “you and other people like you are believing
him instead of Scripture” means that “we would need to inquire into . . . when to
22
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
believe scripture, and how scripture determines whom to believe[,]” to determine the
truth or falsity of the claim that Mr. Lippard is a liar. However, courts would only
need to determine whether Mr. Lippard knowingly made factually untrue statements
with the intent to deceive or not, an inquiry which does not require interpreting or
weighing church doctrine. I would hold the second phrase does not sufficiently allege
a defamation claim against Mr. Lippard because it is a statement of opinion and not
fact and does not target Mr. Lippard, but other unnamed churchgoers. Assuming the
alleged statement is capable of verification and directed against Mr. Lippard, I would
hold considering the particular implied claim that Mr. Lippard is not following
scripture is barred by the ecclesiastical entanglement doctrine, as courts cannot
determine whether Mr. Lippard is contravening scripture without inquiring into
what scripture requires.
That this claim would be barred does not affect the alleged statement that Mr.
Lippard is a liar. In a footnote, the majority argues that “[w]e cannot separate the
23 December 2012 statement into two parts and must read it as a whole because it is
a complete sentence without a comma that would indicate a compound sentence of
thoughts.” Maj. Op. at 26 I would not hold the absence of a comma in a written
allegation of an oral statement is dispositive of its interpretation; rather, because
both conjuncts can stand alone as individual sentences, they are independent clauses
and each expresses a complete thought. But even taken as a whole, in the alleged
23
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
statement Mr. Hix still accuses Mr. Lippard of being a liar, an allegation courts are
capable of determining the truth or falsity of which without weighing church doctrine.
Therefore, I would hold the ecclesiastical entanglement doctrine cannot bar Plaintiffs’
claim that Mr. Hix defamed Mr. Lippard by claiming he was a liar.
(2) 8 January 2013 Email by Mr. Hix to Mr. Brewer
Plaintiffs also allege defamation based on Mr. Hix’s statement in a subsequent
email to Mr. Brewer, a choir member, stating: “Note also that there are verifiable
facts and Biblical scriptures which [Plaintiffs] are openly denying and defying. Those
facts and scriptures still stand.” This statement, like the last by Mr. Hix, mixes
allegations that Plaintiffs are lying—“there are verifiable facts . . . which [Plaintiffs]
are openly denying . . .”—with allegations that Plaintiffs are contravening scriptural
requirements—“there are . . . Biblical scriptures which [Plaintiffs] are
openly . . . defying.” At deposition, Mr. Hix said “[t]he facts that the (sic) late and/or
not showing up for worship services when we’re paying her to be on the schedule”
were the “verifiable facts” to which he was referring. R756 Here, as in the previous
statement, I would hold that courts are not barred from considering a defamation
claim based on the allegation that Plaintiffs are “openly denying” “verifiable facts,”
or lying. I would hold that determining the truth or falsity of whether Plaintiffs were
“openly denying” the “verifiable fact” that Ms. Lippard was repeatedly late or not
24
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
showing up for worship services would not require courts to interpret or weigh church
doctrine and courts are not barred from making that limited inquiry.
(3) 16 January 2013 Letter by Mr. Holleman to Mr. Brewer
Mr. Holleman sent a lengthy letter on 16 January 2013 to Mr. Brewer.
Plaintiffs argue, among others, five statements contained in the letter are
defamatory. Defendants contend courts are barred from considering each of these
statements based on the ecclesiastical entanglement doctrine. While I concur with
the majority that courts are barred from considering four of the statements because
they would require courts to interpret or weigh church doctrine, I disagree with the
majority’s holding that courts are barred from considering the following statement
written by Mr. Holleman: “No doubt there are more strategies against the church
leadership playing out tonight.” I would hold courts are not barred from considering
this claim because determining the truth or falsity of whether “there [were] more
strategies against the church leadership playing out” would not require the
interpretation or weighing of church doctrine. The letter stated in pertinent part:
[A]s far as I’m aware, every new conversation or controversy has been initiated
by [the Plaintiffs], or by those who have been advocating for their position [as
opposed to the church leadership]. You yourself have attempted to engage me
in conversation at the church. . . . You have written this letter and had it
delivered to me, Bryan Sherrill, and Bill Wooten. [Mr. Lippard] has confronted
[Mr. Hix] multiple times, and this very day, I’ve met with Billy Lynch for
breakfast, whom [Mr. Lippard] had confronted at Church with a copy of [Mr.
Hix’s] directives to [Ms. Lippard]. I’ve learned that [Mr. Lippard] has e-mailed
[Mr. Hix] requesting an explanation for why he and [Ms. Lippard] have not
been returned to the solo rotation. And Bryan Sherrill indicates that [Mr.
25
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
Lippard] called him today attempting to “catch” me in some mistake. These
are just a few. No doubt there are more strategies against the church
leadership playing out tonight. [R105]
In their brief, Plaintiffs argue this statement implies “nefarious motives ascribed to
Ms. Lippard by [Mr.] Holleman.” Pl. Br. at 48 The context of the statement makes
clear that “strategies” in this context means “a careful plan or method” and “a clever
stratagem,” here with a negative connotation. See Merriam-Webster’s Collegiate
Dictionary 1233 (11th Ed. 2003). Mr. Holleman is accusing Ms. Lippard of
coordinating the meetings and stirring dissension. The truth or falsity of the
statement that “there [were] more strategies against the church leadership playing
out [that ]night” could be determined by a court without inquiring into religious
doctrine or practice, such as by determining whether Ms. Lippard asked or instructed
others to communicate on her behalf or to actively oppose the action of the church
leadership. Therefore, I would hold the claim is not barred by the ecclesiastical
entanglement doctrine.
Although the majority concedes that this statement “does not directly [involve]
scripture” it nevertheless argues that “it does involve other ecclesiastical matters.”
However, the majority does not rely on the definition of “ecclesiastical matter”
adopted by our Supreme Court. It does not argue that this is a matter “which
concerns . . . the adoption and enforcement within a religious association of needful
laws and regulations for the government of membership[,]” nor that it concerns “the
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LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
power of excluding from such associations those deemed unworthy of membership by
the legally constituted authorities of the church . . . .” Piner, 257 N.C. at 77, 147
S.E.2d at 583. The Plaintiffs’ claim that this statement is defamatory is neither.
Instead, the majority asserts that “[p]lainly, this controversy and ongoing
dispute with the Plaintiffs is a matter of DHBC’s internal membership, organization,
governance, discipline, and degree of control between members” and that “[w]e cannot
decide the rightness or wrongness of this statement by a pastor communicating with
his flock.” Maj. Op. at 32-33 “[B]ut,” contrary to the majority’s argument, “the courts
do have jurisdiction, as to civil, contract[,] and property rights which are involved in,
or arise from, a church controversy.” Creech, 256 N.C. at 140, 123 S.E.2d at 627(emphasis added) (quoting Reid, 241 N.C. 201, 85 S.E.2d 114). An act that would
otherwise give rise to an actionable tort claim is not immunized merely because it
arose in the context of a communication between a pastor and a churchgoer where
neutral principles of law could be applied to resolve the claim. See Smith, 128 N.C.
App. at 495, 495 S.E.2d at 398 (concluding that a holding “that a religious body must
be held free from any responsibility for wholly predictable and foreseeable injurious
consequences of personnel decisions, although such decisions incorporate no
theological or dogmatic tenets—would go beyond First Amendment protection and
cloak such bodies with an exclusive immunity greater than that required for the
preservation of the principles constitutionally safeguarded.” (internal citation
27
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
omitted)); accord Bigelow, 247 N.C. App. at 411, 786 S.E.2d at 366 (holding
“unsupported assertion” that First Amendment “immunizes, without exception, a
religious institution from liability arising out of a contract between the religious
institution and its ministerial employees . . . cannot be reconciled with Smith.”).
Contrary to the majority’s argument, resolving this claim does not require courts to
determine the “rightness or wrongness” of the pastor’s statement; resolving the claim
merely requires that courts determine the truth or falsity of it. That particular
question “does not directly [involve] scripture,” as the majority concedes, and would
not require courts to interpret or weigh church doctrine. Therefore, I would hold it
can be resolved by the application of neutral principles of law and is not barred by
the ecclesiastical entanglement doctrine.
(4) 6 April 2013 Email by Mr. Holleman to Mr. Brewer
Finally, the Plaintiffs also argue that the following statement in the 6 April
2013 email to Mr. Brewer was defamatory:
There were several there the Wednesday night that [Mr.
Lippard], with [Ms. Lippard] behind him, blocked [Mr.
Hix’s] exit from the music room and was aggressively going
after [Mr. Hix], pointing his finger in [Mr. Hix’s] face, an
action I recently learned was illegal and could have very
well been reported as a crime. [R 115]
Determining the truth or falsity of this allegation of the commission of an allegedly
criminal act would not require courts to interpret or weigh church doctrine any more
than the same accusation from any other person based on any other crime would.
28
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
The statement does not allege that Plaintiffs violated an ecclesiastical law, which
would require such interpretation or weighing of doctrine. Rather, determining the
truth or falsity of this statement merely requires courts to determine whether or not
Mr. Lippard in fact “blocked [Mr. Hix’s] exit from the music room and []aggressively
[went] after [Mr. Hix], pointing his finger in [Mr. Hix’s] face.” [R115] Therefore, I
would hold this claim could be resolved based on the application of neutral principles
of law and is not barred by the ecclesiastical entanglement doctrine.
The majority argues deciding this particular claim is indistinguishable from
Harris because “we would be forced to determine whether the statement at issue is
proper in light of DHBC’s doctrine and practice regarding membership and conduct.”
[Maj. at 42] This is a misreading of Harris. In Harris, the reason the court would
have had to inquire into whether expenditures made by the church leadership were
“proper” to resolve the claim was because the cause of action the plaintiffs alleged
was breach of fiduciary duty, and the only theory alleged by the plaintiffs for the
specific element of breach of fiduciary duty was that the defendants “improperly
us[ed] church funds, which constitutes conversion.” Harris, 361 N.C. at 273, 643
S.E.2d at 572. Therefore, determining whether the church leadership’s challenged
action was proper was an essential issue to the claim before the court. Here, in
contrast, the issue is whether Mr. Holleman’s statement about Plaintiffs was true or
false; the court need not determine whether this statement or Mr. Holleman’s actions
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McGEE, C.J., concurring in part and dissenting in part
were “proper” or consider “how [DHBC] should react to what it considers improper
conduct” to resolve the claim. [Maj. at 42, 43]
I would hold that Plaintiffs’ claims based on these statements are not barred
by the ecclesiastical entanglement doctrine because courts could evaluate the specific
elements of each of these claims, including the falsity of the alleged statement,
without interpreting or weighing church doctrine. Therefore, “the First Amendment
is not implicated and neutral principles of law are properly applied to adjudicate the
claim[s].” Smith, 128 N.C. App. at 494, 495 S.E.2d at 398; see Harris, 361 N.C. at
273-74, 643 S.E.2d at 571 (holding claims barred by ecclesiastical entanglement
doctrine “[b]ecause no neutral principles of law exist to resolve plaintiffs’ claims.”).
D. Substantive Defamation Claims
Although I concur with the majority that the ecclesiastical entanglement
doctrine bars courts from analyzing most of Plaintiffs’ claims, and I dissent and would
hold that four claims are not barred, there remain other issues to resolve. In granting
summary judgment to Defendants, the trial court also held (1) “[a]s a matter of law,
none of the Defendants’ statements are defamatory per se” and (2) “Plaintiffs did not
provide any evidentiary forecast that they suffered special damages because of any of
Defendants’ allegedly defamatory per quod statements.” R919 On appeal, Plaintiffs
argue that they “have met all the elements of defamation cases [(sic)] whether per se,
or per quod.” I disagree, and I would hold that, for the claims that I believe are not
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LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
barred by the ecclesiastical entanglement doctrine, Plaintiffs have failed to show the
claims constitute libel or slander per se or per quod.
“Three classes of libel are recognized under North Carolina law.” Renwick,
310 N.C. at 316, 312 S.E.2d at 408.
They are: (1) publications obviously defamatory which are
called libel per se; (2) publications susceptible of two
interpretations one of which is defamatory and the other
not; and (3) publications not obviously defamatory but
when considered with innuendo, colloquium, and
explanatory circumstances become libelous, which are
termed libels per quod.8
Id. at 316, 312 S.E.2d at 408 (quoting Arnold v. Sharpe, 296 N.C. 533, 537, 251 S.E.2d
452, 455 (1979)).
Libel per se is a publication which, when considered alone
without explanatory circumstances: (1) charges that a
person has committed an infamous crime; (2) charges a
person with having an infectious disease; (3) tends to
impeach a person in that person’s trade or profession; or (4)
otherwise tends to subject one to ridicule, contempt or
disgrace.
Skinner v. Reynolds, 237 N.C. App. 150, 152, 764 S.E.2d 652, 655 (2014) (citations
omitted) (emphasis omitted).
Further: [] Defamatory words to be libelous per se must be
susceptible of but one meaning and of such nature that the
court can presume as a matter of law that they tend to
disgrace and degrade the party or hold him up to public
hatred, contempt or ridicule, or cause him to be shunned
8 In contrast, slander—an “oral defamatory utterance[]”—is only actionable per se or per quod, not as
a publication susceptible of two interpretations. Penner v. Elliott, 225 N.C. 33, 34, 33 S.E.2d 124, 125
(1945).
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LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
and avoided. Although someone cannot preface an
otherwise defamatory statement with ‘in my opinion’ and
claim immunity from liability, a pure expression of opinion
is protected because it fails to assert actual fact. This Court
considers how the alleged defamatory publication would
have been understood by an average reader. In addition,
the alleged defamatory statements must be construed only
in the context of the document in which they are contained,
stripped of all insinuations, innuendo, colloquium and
explanatory circumstances. The articles must be
defamatory on its face within the four corners thereof.
Id. at 152-53, 764 S.E.2d at 655 (internal citations and quotations omitted) (emphasis
omitted).
In their brief, Plaintiffs do not identify which of the dozens of allegedly
defamatory statements they cite are defamatory per se. Upon my review of the record
and the briefs, the only statement not barred by the ecclesiastical entanglement
doctrine that Plaintiffs might colorably argue was libel per se was Mr. Holleman’s
description of Plaintiffs’ alleged behavior in the 6 April email to Mr. Brewer, which
Mr. Holleman characterized as “illegal” and “could very well have been reported as a
crime.”9 There is a question as to whether the behavior alleged—“block[ing] [Mr.
Hix’s] exit from the music room,” “aggressively going after [Mr. Hix],” and “pointing
his finger in [Mr. Hix’s] face”—constitutes an “infamous crime.”
9 Despite Plaintiffs’ repeated assertions, none of the statements alleged “tend[] to subject [Plaintiffs]
to ridicule, contempt, or disgrace” as a matter of law. Skinner, 237 N.C. App. at 152, 764 S.E.2d at
655.
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LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
“At common law, . . . an infamous crime is one whose commission brings
infamy upon a convicted person, rendering him unfit and incompetent to testify as a
witness, such crimes being treason, felony, and crimen falsi.” Aycock v. Padgett, 134
N.C. App. 164, 166, 516 S.E.2d 907, 909 (1999) (citations omitted). Under N.C. Gen.
Stat. § 14-39 (2017), the felony of kidnapping includes an “unlawful[] confine[ment],
restrain[t], or remov[al] from one place to another [of] any other person 16 years of
age or over without the consent of such person” for one of several enumerated
purposes. False imprisonment is a lesser included offense of kidnapping. State v.
Pigott, 331 N.C. 199, 210, 415 S.E.2d 555, 562 (1992). “The difference between
kidnapping and the lesser included offense of false imprisonment is the purpose of
the confinement, restraint, or removal of another person: the offense is kidnapping if
the purpose of the restraint was to accomplish one of the purposes enumerated in the
kidnapping statute.” Id. at 210, 415 S.E.2d at 562 (citation omitted). False
imprisonment was a misdemeanor at common law and, as it was not superseded by
N.C.G.S. § 14-39, remains so in North Carolina. See State v. Fulcher, 34 N.C. App.
233, 242, 237 S.E.2d 909, 915 (1977), affirmed by State v. Fulcher, 294 N.C. 503, 243
S.E.2d 338 (1978) (“The common-law crime of false imprisonment, a general
misdemeanor, has not been superseded by the new kidnapping statute because there
may be an unlawful restraint without the purposes specified in the statute.”).
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LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
The conduct Mr. Holleman alleges occurred, being Mr. Holleman’s blocking of
Mr. Hix in the music room with his body, does not rise to the level of kidnapping or
false imprisonment, as there is nothing in the statement to indicate Mr. Hix was truly
confined or restrained. Even assuming, arguendo, that Mr. Hix was confined against
his will, there is no evidence in the statement by Mr. Holleman that he claimed
Plaintiffs acted with one of the specific purposes enumerated in the kidnapping
statute. See N.C.G.S. § 14-39. Therefore, at most, the conduct Mr. Holleman
describes would be false imprisonment. As it is only a misdemeanor, not a felony,
and not treason or a crimen falsi, false imprisonment is not an “infamous crime.”
Therefore, the allegedly defamatory statement in the 6 April email, like the rest of
the statements Plaintiffs allege were defamatory, is not libel per se.
Plaintiffs further contend the trial court erred in granting Defendants’ motion
for summary judgment on the basis that Plaintiffs failed to “provide any evidentiary
forecast that they suffered special damages because of any of Defendants’ allegedly
defamatory per quod statements.” I disagree.
Libel per quod may be asserted when a publication is not
obviously defamatory, but when considered in conjunction
with innuendo, colloquium, and explanatory circumstances
it becomes libelous. To state a claim for libel per quod, a
party must specifically allege and prove special damages as
to each plaintiff.
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LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
Skinner, 237 N.C. App. at 157, 764 S.E.2d at 657-58 (internal quotations and citations
omitted). This Court has distinguished special damages from general damages as
follows:
General damages are the natural and necessary result of
the wrong, are implied by law, and may be recovered under
a general allegation of damages. But special damages,
those which do not necessarily result from the wrong, must
be pleaded, and the facts giving rise to the special damages
must be alleged so as to fairly inform the defendant of the
scope of plaintiff’s demand.
Griffin v. Holden, 180 N.C. App. 129, 138, 636 S.E.2d 298, 305 (2006) (citing Rodd v.
W.H. King Drug Co., 30 N.C. App. 564, 568, 228 S.E.2d 35, 38 (1976)). “Special
damage, as that term is used in the law of defamation means pecuniary loss, as
distinguished from humiliation.” Williams v. Rutherford Freight Lines, Inc., 10 N.C.
App. 384, 387, 179 S.E.2d 319, 322 (1971) (citing Penner v. Elliott, 225 N.C. 33, 33
S.E.2d 125 (1945)) (additional citations omitted). Indeed, “emotional distress and
mental suffering are not alone sufficient to establish a basis for relief in cases which
are actionable only per quod.” Id. at 390, 179 S.E.2d at 324 (citations omitted). Of
course, some pecuniary damages may stem from mental anguish and humiliation,
such as the cost of psychological treatment attributable to the defamatory statement.
See, e.g., Tallent v Blake, 57 N.C. App. 249, 255, 291 S.E.2d 336, 340-41 (1982)
(“Special damages include illness sufficient to require medical care and expense.”);
Araya v. Deep Dive Media, LLC, 966 F. Supp. 2d 582, 599-600 (W.D.N.C. 2013)
35
LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
(holding that cost of treatment and psychological counseling for emotional distress
satisfied requirement for special damages in libel per quod claim).
Furthermore, at summary judgment, a plaintiff must “produce an evidentiary
forecast to support a prima facie showing of special damages to survive defendant’s
motion for summary judgment on [a] claim of libel per quod.” Griffin, 180 N.C. App.
at 138, 636 S.E.2d at 305 (citing Renwick, 310 N.C. at 312, 312 S.E.2d at 408 ). Mere
allegations and “pure speculation” are insufficient at this stage. Id. at 138-39, 636
S.E.2d at 305. In the present case, Plaintiffs claim they have suffered “damages for
injury to their reputation and mental anguish and humiliation,” in addition to
seeking punitive damages and “full reimbursement of their attorney’s fees.” R159,
181 Mr. Lippard also claims that “his reputation as a builder home inspector and
real estate agent has been tarnished as a result of the publication of [the 28 November
sermon] and the other defamatory remarks attributed to [Defendants] against [Mr.
Lippard].” Pl. Br. at 42
Plaintiffs fail to meet their burden of producing a forecast of evidence sufficient
to make a prima facie showing of special damages. Mental anguish and humiliation
are not sufficient to satisfy the requirement for special damages. See Williams, 10
N.C. App. at 387, 179 S.E.2d at 322. Rather, to survive a motion for summary
judgment, Plaintiffs must show “pecuniary loss, as distinguished from humiliation.”
Williams, 10 N.C. App at 387, 179 S.E.2d at 322. However, despite their general
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LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
allegation, Plaintiffs have failed to show any particular pecuniary damages arising
from the mental anguish, emotional harm, and humiliation they claim to have
suffered, such as costs for therapy or mental health care.
Mr. Lippard additionally claims that Defendants’ alleged statements have
“tarnished” “his reputation as a builder, home inspector[,] and real estate agent,” and
that his “yearly income from 2010 through 2016” is “proof of pecuniary injury as a
result of the defamation of [Defendants].” Pl. Br. at 42 Mr. Lippard’s reported
income shows $13,804.00 for 2010, $31,169 for 2011, $9,824.00 for 2012, and $18,008
for 2013, the year following the publication of the majority of the allegedly defamatory
statements at issue. R159 Mr. Lippard has failed to show how the allegedly
defamatory statements resulted in pecuniary harm. Without more, any connection
between Plaintiffs’ income and Defendants’ statements, particularly those allegedly
defamatory statements which courts are not barred from considering by the First
Amendment, is “pure speculation.” Griffin, 180 N.C. App. at 138-39, 636 S.E.2d at
305. Plaintiffs have failed to show special damages so as to warrant denial of
Defendant’s motion for summary judgment on the libel and slander per quod claims.
III. Conclusion
In the case of defamation claims, I would hold that courts must evaluate the
specific elements of the claim, including the falsity of the alleged statement, and
determine whether “resolution of [the truth or falsity of the alleged statement]
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LIPPARD V. HOLLEMAN
McGEE, C.J., concurring in part and dissenting in part
requires the court to interpret or weigh church doctrine. If not, the First Amendment
is not implicated and neutral principles of law are properly applied to adjudicate the
claim.” Smith, 128 N.C. App. at 494, 495 S.E.2d at 398. Based on this analysis, I
concur with the majority’s holding for some of Plaintiffs’ claims that they are barred
because resolving the claims requires courts to interpret or weigh church doctrine.
For the four allegedly defamatory statements discussed above—Mr. Hix’s oral
allegation that Mr. Lippard is a liar and written allegation that Plaintiffs denied
“verifiable facts,” along with Mr. Holleman’s statements that “strategies” were
playing out against church leadership and that Mr. Lippard allegedly committed a
crime—I disagree and would hold that there is no need for the court to interpret or
weigh church doctrine in its adjudication of the truth or falsity of these claims.
[The majority’s] contrary holding—that a religious body must be held free from
any responsibility for [allegedly defamatory statements,] although such
[statements] incorporate no theological or dogmatic tenets—[]go[es] beyond
First Amendment protection and cloak[s] such bodies with an exclusive
immunity greater than that required for the preservation of the principles
constitutionally safeguarded.
Smith, 128 N.C. App. at 495, 495 S.E.2d at 398 (citation omitted). Therefore, I dissent
in part. For these claims that I would hold are not barred by the ecclesiastical
entanglement doctrine, I would nevertheless hold that Plaintiffs have not shown
sufficient evidence for libel per se or special damages as required for libel or slander
per quod. Therefore, I concur in the majority’s judgment affirming the trial court’s
grant of summary judgment for Defendants.
38