Church loses bid to dismiss lawsuit

The Herald-Sun/January 27, 2003
By Beth Velliquette

Hillsborough -- A couple who has challenged their church's stand not to disclose its financial records won their first scrimmage in court Monday when a judge denied a motion to dismiss the lawsuit.

John and Vicki Tubiolo filed their suit against Abundant Life Church in October, claiming the Hillsborough church has refused to let them look at the financial records. While denying the church's motion to dismiss the lawsuit, Orange County Civil Superior Court Judge Kenneth Titus said he would not rule on the church's request for him to rule against the Tubiolos before the lawsuit goes any farther.

"I am not gloating over this because I feel the church is being hurt," said John Tubiolo after the hearing. "We didn't want to be here. Absolutely not."

Tubiolo said he loves the members of the church and the pastor. "It's just that there were things we felt we needed to look into and that's what we did," he said.

John Tubiolo said the church grew out of a Bible study group he and two other men held in a basement in the early 1980s. He and the two men founded the church, which grew to include a day school.

When the church recently decided to construct another building, Tubiolo said he became curious about how much debt the church had and whether it could afford the building, so he asked to see the financial records.

As a member of the church, he said, he had a right to see the records but was never given a chance to look at them. "What we wanted was a financial report with the beginning balance, the ending balance and what happened in between," Tubiolo said.

After he said he was denied the opportunity to look at the records, he contacted attorney Joe Marion, who wrote a letter to the church saying that they would be at the church on Sept. 6 to inspect and copy the records.

On Sept. 5, the Tubiolos said, they were dismissed from the church membership.

During the hearing, the church's attorney, Paul Klein, said the courts should have no jurisdiction in the disagreement between the Tubiolos and the church because of the Constitutional separation of church and state.

The Constitution gives churches the right to discipline their members, and the courts have no say in that, Klein argued.

The Tubiolos do not have a right to sue the church because they were not members when they filed the lawsuit, he said. It would be inappropriate for the court to interfere with the church's spiritual discipline of the Tubiolos by dismissing them from membership, Klein added.

In dismissing the Tubiolos from his congregation, Pastor David Smith wrote a letter referring to the laws of the church and enclosed a copy of a section of bylaws, Marion said. That was a surprise to the Tubiolos, he pointed out, because they didn't think the church had ever passed a set of bylaws, and when the Tubiolos asked for a copy of the bylaws, they never received it, he said.

"We've never received anything in minutes or bylaws," Marion said.

Did the persons who signed the dismissal letter have the authority to terminate their membership, Marion asked. "The evidence offered by the plaintiffs is they did not," he said.

In a separate argument against the church's motion to dismiss the case, Marion said Abundant Life is not registered as a religious association. It must follow the rules of a nonprofit organization since that is how it is registered. Under that statute, a member may be dismissed if the organization does it in a fair and reasonable manner, the attorney said.

The Tubiolos aren't asking that the court rule on the reasons the couple was dismissed from Abundant Life, but rather whether the church did it in a fair and reasonable manner, Marion said.

The church was not fair or reasonable, he added, because they gave the Tubiolos no warning they were going to be dismissed and did not give the Tubiolos any opportunity to defend themselves against the church's decision.

"We were asking for certain records as allowed by North Carolina nonprofit corporations," Marion said. "We're not asking what they did or didn't do as far as Christian spiritual discipline. We're talking about the manner."

In making his decision, Titus said the court did not want to interfere with church matters. But since the church was registered as a nonprofit corporation, he said the motion for dismissal was inappropriate.

Titus added that he also would not rule on a motion for summary judgment, because he has not heard any evidence since there has been no exchange of materials between the two parties. They have until June 1 to give each other those materials, he said.

"It may be a question of fact once the discovery takes place," the judge said.

Klein said he would file an appeal on the judge's decision not to dismiss the Tubiolos' lawsuit.

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