I Want It Back

There are two recent lawsuits filed against the LDS church that are worth taking a look at. Both lawsuits demand that the church return donations to the donor (or the donor’s heirs).

And both face a major impediment: as a general rule, if you make a charitable donation, you can’t get that donation back. And that’s the case even if the you have a falling out with the charitable organization. In fact, that’s the case even if the charitable organization uses your gift in a way that you, personally, find offensive. (In that case, you can certainly stop making charitable donations in the future, of course. But you don’t get your prior donations back.)

There are exceptions to this general rule, of course. And the plaintiffs in the two cases try to get around the rule by using two different exceptions.

Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-day Saints

James Huntsman of the well-known Huntsman family, filed a suit (complaint available here) in March asserting that the church had fraudulently induced him to pay tithing and demanding that the church return the tithing that he had paid. One California court (James lives in and paid tithing in California, so California law applies) explained that it is first year contract law that charitable donations cannot be reclaimed unless there’s fraud, violation of a confidential relationship or breach of trust.[fn1]

So James claims he was fraudulently induced to pay his tithing. Specifically, he claims that the church’s statements that it didn’t use tithing money to build City Creek mall was a false statement that he relied on in making his tithing payments.

Now in asserting fraud, James faces a significant hurdle: courts have recognized that “[f]raud is a serious charge, easy to allege and hard to prove.” As a result, federal court requires a heightened pleading standard when a plaintiff asserts fraud.

And what do courts mean by a “heightened pleading standard”? It means it’s not enough to just say in your first filing that the defendant did something wrong and prove it later. In the initial filing, you have to “plead fraud with particularity.” Broadly speaking, that means your very first filing has to lay out specifically the “who, what, when, where and how” of the fraud.

The church’s defense of the suit basically rests on three pillars. In no particular order, the church says that it didn’t lie (which would mean there’s not fraud), the suit is constitutionally impermissible under the First Amendment, and that James didn’t plead fraud with particularity.

The church filed a motion for summary judgment (which basically asks the court to rule on the case without going to trial). This case had a hearing on the motion scheduled for Monday. The judge has cancelled the hearing, though, and says he’ll make a ruling based on the submitted documents.

The ruling could do one of two things: it could grant the church’s motion for summary judgment, which would mean that the case (in its current form at least) is over and the church wins. Or it could deny the motion, which means the case would proceed to trial.

I suspect that the court will grant the motion for summary judgment based on deficiencies in the pleading of fraud. That is, I don’t think James pleaded fraud with the requisite particularity. The judge could, of course, rule on the factual and constitutional matters too, but judges generally like to take care of cases on the narrowest grounds possible. And I suspect that fraud is the narrowest ground possible. (I could clearly be wrong, of course, and we’ll all have to keep an eye on what happens next.)

Teichert v. Church of Jesus Christ of Latter-day Saints

In June, Tim Teichert filed a suit against the church. If his name sounds familiar, it’s because it is—Tim is the grandson of Minerva Teichert. Minerva died intestate (meaning without a will) in 1976. Her husband Herman died intestate in 1982. And Tim was appointed the administrator of his Herman’s estate.

In 1955, Minerva gave four paintings to the Cokeville, Wyoming ward. The paintings were to be displayed at the Cokeville building.

In 2014, the church moved one of the four paintings. In 2020, it moved the other four paintings.

Now, as I said earlier, generally a donor can’t get a donation back. But the suit alleges that these were conditional donations: Minerva and the bishop of the Cokeville ward at the time (Herman K. Teichert, her son) agreed that if the paintings were moved, ownership would revert back to Minerva or, if she had died, her heirs.

The paintings were moved. So will the estate get them back? The answer, I believe, depends on the answers to two questions. The first is, was there an agreement?

But that’s going to be a hard question to answer. The complaint says that Minerva never entered into a written agreement with the church. And, while a contract doesn’t have to be written to be enforceable, a written contract really helps as an evidentiary matter. Absent the written contract, Tim is going to have to present other evidence both that the contract existed and what the terms of the contract were. (And, since he’s the one asserting that there was a conditional contractual gift, the burden will be on Tim to show that there was an agreement and what that agreement said.)

It becomes harder because the two alleged parties to the contract—Minerva and her son Herman—have both died.

Perhaps Tim has other evidence of a contract. And at this stage of the litigation he doesn’t need to show it. But without evidence of a contract, the suit is dead.

That’s a factual impediment. But I suspect there’s also a legal impediment: was Herman an agent of the church in making this agreement.

Oh, sorry: “agent” is a legal term of art. It basically means, did Herman have the right to bind the church to a contract? It’s not obvious that he did. Today, I can imagine at most rare occasions where bishops are agents of the church and can enter into a contract that binds the church. In 1955, when the church was smaller and more centralized in the Mormon Corridor, its possible that bishops had a tighter relationship with the institutional church and that they did act as agents. But it’s possible that they didn’t.

And basically, if Herman didn’t have the legal authority to enter into a contract that bound the church, then even if he did enter into a contract with his mother, that contract would not be binding on the church.

Concluding Thoughts

Both of these cases are, I suspect, uphill battles for the plaintiffs. The rule that you can’t get your charitable donation back is a pretty ironclad rule. The exceptions are limited and narrow and the burden falls on the donor to prove that their case falls within one of the exceptions.

Still, it will be interesting to watch how these cases play out and resolve.

Irrelevant Musical Adendum

I really really wanted to title this post “I Want [It] Back” and use some sort of extended metaphor/riff on the Jackson 5’s “I Want You Back” to introduce it. That ended up being far too attenuated to make any sense at all, but nonetheless if you want to see an awesome 1970s music video, you should really watch them perform here.

[fn1] Word of God Fellowship, Inc. v. Coast Cmty. Coll. Dist., No. G033901, 2005 WL 1491297 (Cal. Ct. App. June 23, 2005), vacated, No. G033901, 2006 WL 1454737 (Cal. Ct. App. May 25, 2006).

Comments

  1. stephenchardy says:

    I enjoyed your summaries. They will help me follow the cases.

    The Jackson 5 was pure joy. Thanks!

  2. I thought the Huntsman suit was interesting because it moved away from the easy-to-dismiss ground that “the Church lied to me because it was never true and everyone in the COB knows it,” and went to actual factual statements about the mall that can be proved to be true or false. But I found Huntsman’s response pretty underwhelming, since it tacitly concedes that the distinction Pres. Hinckley made in conference a couple of decades ago did technically hold true–i.e., that only earnings of invested reserve funds would be used–but that “tithing” means lots of things to lots of people and so “tithing” was used for the mall as the average person would understand it. Put another way, even if the court gets away from pleading deficiencies under Rule 9, I don’t think they can prove fraud as a matter of law anyway (though that’s probably saying the same thing).

  3. A Turtle Named Mack says:

    In the Teichert case (and forgive me for not having read the full motion – not that I would really understand it, anyway), If the Bishop was her son and the paintings were displayed in the building, does that necessarily constitute a donation? Wouldn’t the Church need to demonstrate that the paintings were actually donated to the Church and were, therefore, the property of the Church, rather than simply being on display (on loan)? I’ve left plenty of things in our local building, and hope that doesn’t mean those things have become Church property. Where’s that basketball, and those back issues of Dialogue?

  4. Turtle, good question. In the complaint, Tim alleges that it was a conditional donation. (He also says loan, sometimes in the same sentence.) I suspect that even if he alleges it’s a loan, he’ll have the burden of showing that. Again, there’s no written agreement. The paintings were in the building for 70 years. That looks a lot like a donation to me, unless Tim has evidence that she asked about it or that she generally made loans of her paintings or otherwise had a habit of lending her paintings. I think that the default assumption, as long as the paintings sat there undisturbed, would be that it was a donation, given the amount of time and the (I assume) lack of any claim that it was lent until now.

    Ultimately, assuming that her son had the authority to contract on behalf of the church, this is going to be a factual question. And without a written agreement, and with all parties to the alleged oral agreement dead, proving that the paintings were a conditional gift or a loan is going to be tough lift. It’s not impossible but it does illustrate the benefits of actual writings if you’re doing something that isn’t standard.

    (Tim also argues that Minerva kept the copyright. This isn’t my area of expertise, but I suspect that’s right. When I buy a painting, I get the actual physical painting, but afaik, the copyright stays with the artist. The same as when I buy a record or a book. If the church wants to claim she also transferred the copyright to the paintings, I suspect it’s going to have a similarly tough time doing that, provided there is no written agreement. But since the church hasn’t filed its response yet, I don’t know what it’s going to claim.)

  5. John Mansfield says:

    A term I haven’t heard in a while is “agent bishop.” When multiple wards shared a building, one of the wards’ bishops was the agent bishop, with particular responsibilities for the upkeep of the building, and I suppose authority to arrange repairs and even hang paintings on walls. In our current era of facilities management, I don’t know if buildings still have an agent bishop. So I wonder if the agent bishops decades ago were called that because they were legal agents as considered in the post above.

  6. That’s a great question, John. We have a history of misusing (well, creatively using) legal terms. So I don’t know whether an “agent bishop” was an agent in the legal sense, though I now want to know the answer to the question that I didn’t have until two minutes ago!

  7. A Turtle Named Mack says:

    Thanks, Sam. That’s interesting as, since there’s no written document, it seems as though possession is nine-tenths? (I’m sure that’s not a legal standard, though).

    John – there are still agent Bishops, in some cases. Our building hosts 5 units, and one of the Bishops is designated as the agent Bishop – in charge of working with the city on various issues, or with neighbors, or requesting and approving any work or maintenance. Not sure that person would have formal approval authority over what hangs on the walls, though. That would probably be something all Bishops/Branch Presidents would weigh in on, if they cared. It’s a position that seems to rotate, and gets complicated as it rotates and there’s turnover in leadership. I’m also not sure what legal implications the role of agent Bishop holds. Does that person have authority to negotiate with the city about, for example, parking or waste disposal or noise (that might be a Stake President issue)? Is he authorized to sign contracts on behalf of the Church, or is it just that he’s the point-person for making sure unauthorized cars in the lot get towed, or that the fines get paid when the sidewalks aren’t shoveled because the Elder’s Quorums can’t get their acts together? I do think that’s a potential issue in the Teichert case – was the Bishop, or any Bishop, able to enter a binding contract with Minerva about a donation? I guess my tithing (which used to be submitted directly to my Bishop and not through the online bill-pay portal) is legally not mine once I hand it to the Bishop, which is binding. I’m out of my depth here, but this is interesting stuff.

  8. I see “agent bishop” and all I can think of is Mike McPheters and his writings about serving *four* terms as bishop while working as an FBI agent.

    I’m guessing that’s irrelevant here.

    But fun.

  9. nobody, really says:

    Multi-unit buildings still have an “agent bishop”, but it’s generally defined as “first ward meeting on Sunday”. That bishop is primary contact for scheduling, stocking toner and paper in the library, cleaning schedules, and acting as referee when the 14th ward Elder’s Quorum tries to claim “we play basketball every Saturday evening at this time”, and there’s a wedding reception going on.

    Ward buildings used to be built and owned by individual wards, and at some point the Office of the Presiding Bishop demanded all the deeds. For that Wyoming building, I suspect that the Church will try to claim that the family should have removed the paintings from the building at that time if they didn’t want ownership turned over.

  10. I am appalled that someone as wealthy as Huntsman would do such a thing. I understand why he is doing that (a little bit), but since when are the members of the LDS faith told where their tithing monies go? I was under the possible misapprehension that they went into a fund where they were used as needed for various Church projects, aid to the communities or disaster relief for areas that had natural disasters. I honestly don’t care where they spend my ‘widow’s mite”. Or I should more honestly say “I honestly DIDN’T care…” I considered that money to be, in a simplistic way, “God’s property”, not that I think God needs money. I don’t pay any tithing currently. I don’t always fully agree with what the Prophet says, because I’ve come to the realization that although he is a leader of our people as such, he’s still a man. And being human he will make mistakes. Trying to get back my donations (which was very sizable at one point), seems to me to be spitting in the face of God in a way, as well as admitting one’s faith is totally gone. Shame on that Huntsman guy!

  11. Thanks Ardis! And it’s absolutely not irrelevant, given that I stretched relevancy to include the Jackson 5. I’d love to hear more about that!

  12. Seem Handbook section 35.2 5 for the current scope of the agent bishop’s responsibilities. Basically he coordinates plans between the wards in the building. Scope is pretty limited. May have bee more significant back in the day when each unit was independently responsible for construction and operating of the building.

  13. Smug Tax Lawyer says:

    Brilliant summary of the case law and relevant statutory analysis. I’m sure the very expensive lawyers the Church has hired with tithing money to defend its interests will win these arguments in court. and when they do, all the smug tax lawyers will say, again, too bad, so sad you trusted your church leaders. Lolz.

  14. Smug Tax Lawyer, I’m not sure I follow what you’re saying. In neither case is there an issue of trusting church leaders. In both, rather, there’s the question of the default irrevocability of charitable donations and whether the particular situation falls within an exception to that default.

    In Huntsman’s case, the court may not reach factual questions because his (presumably high-priced) attorney doesn’t seem to have meet the procedural requirements for filing a fraud case. And any attorney can tell you that procedure matters. In the Teichert case, the fact that there is no written agreement and no living participant in the deal makes the plaintiff’s burden hard. But there are no lolz here.

  15. I couldn’t help but think Michael Jackson’s outfit looked like a visual aide a child would wear in Primary to sing “Jesus Wants Me For a Sunbeam”.

  16. Smug Tax Lawyer says:

    Yes, you are proving my point about smug lawyers, tax or garden variety. The church may not be found to be legally culpable for its actions here, but its leaders are not acting in good faith. Someone asked why someone as wealthy as Huntsman would initiate this litigation. It’s only someone with deep enough pockets who can afford to. The rest of us just carry on doing the best we can without making too much of a fuss. And the church counts on that. Now I will go back to my 280G analysis to see if I can find a way to make my wealthy clients even wealthier. It’s a fun job!

  17. Roger Hansen says:

    So the Church was ready to destroy the Minerva Teichart mural in Manti, but it now wants to establish ownership of 4 Teichart oils that were originally loaned (or donated) to her local Ward in Cokeville, the community where she lived and did much of her work. It is my understanding that Teichart had hoped to to teach at BYU, but the offer never came. Appreciation for her work has been late coming. I love her work.

    Why can’t the Church just sit down with the Teicharts and the Cokeville Ward and resolve this issue. To use the judicial system seems ridiculous. Please fire the lawyers and everyone negotiate in good faith. Somehow, the 4 paintings need to be in Cokeville. I’m pretty sure that is what Minerva would have wanted. And that should be a serious consideration.

    Years ago, I attended a funeral in Cokeville. I was pleasantly surprised to see and enjoy the 4 Teichart paintings.

  18. Roger, to be clear, the church didn’t invoke the judicial system. It was Tim Teichert who brought the suit. I don’t know what, if any, discussion occurred before the suit. At this point, they can certainly negotiate outside of the court system but it would require Tim to decide to drop the suit to get it out of the court system.

  19. Roger Hansen says:

    Well, if the Church took the paintings, maybe that was their only relief. The Church looks like a bully here, and worse they seem insensitive to local needs. The Church needs to “live the higher order” here. This seems like a repeat of the Arrington papers. The Church is running over its own members. Why does the Church need 4 Teicharts? She was a very prolific painter.

  20. Aussie Mormon says:

    Smug Tax Lawyer: “Someone asked why someone as wealthy as Huntsman would initiate this litigation. It’s only someone with deep enough pockets who can afford to. ”

    James Huntsman went to an entertainment based law firm, and his lawyer is an entertainment lawyer who deals with breach of contract law suits. If he was actually serious, he would have gone to a highly experienced fraud lawyer (since he was making a fraud claim).

  21. Hey Smug Tax Lawyer, I’m always glad when I help prove someone’s point.

    Just so I’m clear, though: your point is that the church (and by extension all other charitable groups) should give donations back to donors who become disillusioned with the charity or otherwise want their donations back?

    I mean, you do you, but that strikes me as the end of the charitable sector as we know it; a charity couldn’t afford to use unrestricted gifts if it always had to worry that donors would, sometime in the future, request their money back. I think the current system, that requires some sort of fraud (in the legal, not colloquial sense) before a donor has a shot at getting money back. But I suppose that a world without a charitable sector could function, albeit in a fundamentally different way.

  22. In the case of the paintings, why doesn’t the church just give them back? What’s four paintings in the grand scheme of things?

    I heard this advice once, “And if anyone wants to sue you and take your shirt, hand over your coat as well.” I don’t think it’s particularly wise, but, hey, nobody’s perfect.

  23. JK, I don’t know. And the church’s reply brief isn’t due yet; we’ll probably find out more as the litigation continues (if the litigation continues). So far we only have the complaint.

  24. I’m curious how many works by Teichert does the church own, and how well done is the conservation of that body of work? If she was my grandma, I would have a lot of questions, and I’d explore legal remedies too.
    I have seen canvases she painted in real life, usually in a temple hallway. It always gives me a little thrill. I understand how intractable courts of law can be, and the church is often the same. Or worse. As well, the church has been terribly tardy in showing appreciation for her work, even as late as last spring. I wish her heirs the best.

  25. Aussie Mormon says:

    “I’m curious how many works by Teichert does the church own”

    That could be quite hard to find out. In point 38 of their statement of claims, the plaintiff says
    “Additionally,Plaintiffs believe other paintings, not listed above* and currently unknown to Plaintiffs, were conditionally gifted or loaned to local Church congregations and buildings under similar circumstances and have been inappropriately claimed and relocated by the Church.”

    So if not even they have a list of all of her paintings, there could easily be some signed and unsigned paintings in some random building somewhere that only the building maintenance people know about.

    *They have listed 12 paintings in point 37

  26. While not as cool as a Jackson 5 reference, when I first glanced at the notification for this post I read “I want it back Sam Brunson”, and I wondered “What could Sam have taken from someone, such that they’d ask for it back?” I started envisioning someone with a simple Garden of Eden testimony of the Church where every Priesthood leader since Adam have always had a consistent and full view of the gospel, and have administered in their stewardships justly. Then after reading blog posts by Sam, the world went from black and white to having grey with differing opinions, wrestling with angels, and evolving understandings of the nature of God and our relationship with him. All of this complexity made them sad, and they want their pre-Sam Brunson innocence back.
    But that’s not what this post is. But it’s still a good post.

  27. Thanks, jader3rd; that is a wonderful story!

  28. When I toured the pre-dedication Star Valley, WY temple, the guides were very proud to be displaying works by local artists. All male artists, no Teicherts, nor did they know who she was. :(

  29. I’m with MDearest. The Church has been late to show any appreciation for Minerva Teichart’s art (and the recent actions with “renovations” in SLC and Manti don’t instill confidence in the current regime’s art appreciation). I can see why her descendents would do all they could to ensure that the artwork is valued and preserved.

    Sam, quick question – You mention that Tim doesn’t have a documented contract showing that the donation was conditional. Doesn’t the Church have any need to demonstrate their legal ownership of the paintings as having been officially donated in the first place? Or is this a “possession is 9/10 of the law” situation? Should I be careful about accidentally leaving my purse at the Church, lest it become Church property in perpetuity?

  30. Angela, that’s a really good question (and if anybody who does contract litigation wants to chime in, I’d love to hear it!). If I remember back to my law school days well enough, though, it’s the party that brings a suit who has the burden of proving facts. So if Tim were to take the painting and the church were to sue to get it back, the church would have the burden of proving that it was an unrestricted donation. But since Tim is the plaintiff, he has the burden of demonstrating that it was a conditional donation.

  31. (I mean, Tim would have to take it in some manner that wasn’t like criminal burglary, but imagining a world where Tim got the painting legally and not through the courts, then the burden would be on the church to demonstrate that it had been an unrestricted gift.)

  32. Rachel Whipple says:

    I don’t know a lot about the history of church buildings, but from what I do understand, local congregations used to have much more responsibility for and control over their buildings. They raised funds to build them, even hiring their own architects. Bishops served for decades, and there were paid custodians who cared for the building and grounds. In that kind of a scenario, it makes sense to make a deal with the bishop about paintings to hang in building and expect that he had the authority to keep his end of the deal. But it really would have been a deal with the local bishop/building/congregation, and NOT with the church as the broader institution.

    Since that deal was made (provided there was an agreement), the church has effectively nullified all local control over facilities. There is no local autonomy or control. So no bishop today could make such an agreement, but it doesn’t mean that it wasn’t a reasonable agreement at the time.

    I don’t know what we do with the fact that the contracting entity (the bishop as the agent of a local congregation) no longer exists as an autonomous entity. It seems that the obligations of the subsumed entity should be passed on to the enveloping one, but it gets tricky because there is not a clear point in time when the nature of the relationship between the local congregation and the larger church changed.

  33. I think that’s right Rachel. I suspect that if Tim can prove there was a contract, the agency question is going to be really tricky, as is the question of whether the church assumed ward obligations when it consolidated things. (I can also foresee some constitutional issues coming up, given that courts avoid ruling on the internal governance of churches.)

  34. Roger Hansen says:

    In the Teichart case, I would suggest that the Church negotiate in good faith and fire their lawyers. The money they save should be sent to WHO or some other worthy organization. One hint to the Church negotiators, member and public opinion is probably on the side of the Teichart relatives.

  35. Roger, that’s an interesting idea but not, ultimately, a viable one, for at least two reasons (one practical, one legal). The practical reason: when negotiating settlements, it’s generally the attorneys who do the negotiation. There are reasons for this, ranging from the practical–this is what attorneys do–to the ethical–there are ethical issues with one party’s attorney negotiating directly with the other party (so Tim’s attorneys would have to jump through some hoops to deal directly with the church).

    As for legal issues: as long as the case is in court, the church can’t represent itself. Entities are not allowed to appear pro se in civil disputes. That may or may not be a good rule but it is the current rule. So as long as there’s an ongoing lawsuit, the church can’t fire its attorneys.

    There’s also a question of whether firing the attorneys (a thing the church can’t do, but let’s pretend it can) would save any money. And ultimately that depends on how its law firm bills. Theoretically, billing by the hour or the transaction may save money. But if the church’s law firm charges a flat annual rate or if the church gets pro bono representation, losing the attorneys wouldn’t save any money.

  36. I read the T lawsuit and came away with the impression that the T family wants the paintings back in the building where some of the family still attends church. To me this speaks well of their intentions. I also think that the paintings are priceless and need to be protected. I suspect a settlement of some type is on the horizon.

  37. Interesting summary Sam. In the Huntsman suit do you think the judge might make anything of the argument that interest on its investments used to build City Creek came ultimately from tithing funds?

  38. Grateful Reader says:

    Why doesn’t the Church warn on tithing slips, “Just so you know, once you give this donation, you will have no control over where it goes and we won’t give it back.”

    Would that provide any legal protection to the Church? Yeah, you don’t need to tell me that’d look uncouth and turn people off. That’s not my question…would it make people think twice about donating.

  39. Bro. B, I don’t think so. Assuming the money came from investment return on tithing funds, there’s no lie—it didn’t come from tithing—so there’s no fraud. I don’t think the judge will even get that far, honestly, but I don’t think that ends up being a winning argument.

    Grateful Reader, that kind of disclosure might affect members’ decision to donate (or it might not), but it doesn’t make any difference from a legal perspective. With or without it, donations belong to the recipient, absent some sort of unusual circumstance. (And that kind of disclosure would be really weird—you don’t get it from NPR or the Red Cross or your local museum or any other exempt organization that I’m aware of.)

  40. The bottom of the online donation slip has a brief disclosure.

  41. nobody, really says:

    “The bottom of the online donation slip has a brief disclosure.”

    It hasn’t always been there.

  42. Aussie Mormon says:

    The disclosure was there previously, but only talked about missionary fund donations. Which I’m getting was to allow members to claim missionary fund donations as a tax deduction. (As the church was controlling it not the member, it was different to just sending it straight to their child).

  43. Aussie Mormon says:

    As an aside, the forms have also varied country to country. For a while in Australia, the forms had “I direct 75% of Tithing and 100% of Fast Offering donations listed below to go to the LDS Charitable Trust Fund” at the top of it, as during that time the government only let us claim 75% of our tithing as charitable donations for tax purposes.

  44. Stephen Hardy says:

    Sam: I need you to explain the entire world for me. Seriously: you may things seem so clear.

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