in this particular case where life church purchased an insurance policy from state farm to cover wrongful acts from its directors and officers that were committed in furtherance of a church operation they purchased that insurance policy cover the claim and to defend that claim state farm and tonight both of them that's why we have this lawsuit what's the scope of what you're asking for you're asking for just the damages that were stipulated with mayor koch or us king for that if we were to find that there's at least a fact issue about whether they were whether he was acting in the course of the church duties then you would get to the question of the criminal act how would that be determined because these were criminal penalties that were being asserted but in a civil context so would there be additional evidence offered in the coverage case or are you already barred by the fact that the courts already engage in a meaningful discovery on that issue but more to the point i'm just trying to understand procedurally your argument on what would happen if in fact there appears to be coverage but we have a six collision you're saying they didn't put it but the court allowed them to present it right they didn't pay and so then what is it that we would be sending back because didn't the state courts find violations of statutes that have criminal up what would be different in other words we know that the state court found that these contributions were improperly made ok what would be necessary in addition because these are both quite civil cases so we're talking avinza reasonable doubt isn't the issue what additional evidence would be necessary to convert it from civil to criminal also firstly it was not a criminal matter that is important to remember that there was no criminal punishment it was the decision on the merits here so a player early what happened was that if there's a decision asserting essentially race you cutting his insurance company on the finding that the church was liable because of the minister evidence here that this was done in the operation of the church ok well so there's two points you just made one is what the pleading said the pleadings would have to do with the duty to defense if the pleadings assert that the pastor was acting in the course and scope of his work for the church and court held the only way word of life was held liable was because of the minister has to be as strict and and to the extent as they form feels like a sound to me like you're trying to bind them to that frightening whatever you want to call i this well you know i don't think that just because you have a right to express yourself that that necessarily means the state can't put some parameters on that such as going through a designated you know committee or a designated campaign fined or whatever i mean there can be some rules around this whole sector but the only question here is whether it was operations of the church and  rabbit there's the issue of whether this is it whether there's coverage at all whether you all fall within the coverage that your duty to you have a burden to prove that then if you do fall within coverage it was an act of the church then they have a subpoenaed and so on and i think something of the same thing was occurring here exactly right so  the morning you don't know representing state farm voids and as they were pointed out there are two issues and there's two points i wish to emphasize on those two issues which are before the court this is a coverage case  concerning the word of life policy and the question is whether this policy which covers officers and directors for only those wrongful acts directly related to the operations of the church we have al judgment that his actions were directly related to the operation of the charts because the recall election was basically a ministry of the trial court found that he didn't present any evidence on that and brown now argue about the evidence of the findings in state court i mean the problem is i might say i'm not responsible for this car accident i didn't do it but then the jury can't says i did and i want my auto carrier to pay him the bill i don't know that passing consistent i didn't hit him from behind or i didn't i wasn't negligent in this but then the jury says yeah you were i want the lot of coverage to cover that why is that inconsistent well i was watching a football game last night and i thought of an a football team in their game against claims and he says that from the pope that he uses of web site associated with the church to say that he urges people to facts which showed that this particular action of the minister speaking from the pope using the website encouraging hoping to minister speak from the pope and it's not related to the operations of the church but i may agree or disagree with whatever they're saying but i mean that it seems to me like the quintessential operation the church but actually the quintessential operations of the church are defined by the church  do with the employment of a of a teacher in the in the church school right and it said and the the argument made by the then solicitor general was that the operation of the church is basically confined to the ministerial function or something and you can include a school in the supreme court said as a constitutional matter of course it does now i'm not saying that that doesn't govern legally but in our historical and common understanding hospitals missions minister but they can't they can't intervene publicly albeit in violation of technical election law to support a measure that they earlier supported as a moral principle whether they can or not that's not their operation that's quote political why is it you explain it whether or not it is not a question determined by the corners a corner said it was acting on behalf of the church ok you know that is duty defended even deffeyes where you have to prove you know what happened but the starting place for that is what was found in the underlying liability action was dipping over something not all actions of a church it's an officer in director's policy that says two things in that policy want it must be directly related to the operations of the church in the second thing it says it must be in your duties of managing the church that's why not everything which is said from the pulpit is necessarily managing the church and directly related to the operations of the church so it isn't something higher than an action what the the texas election code says that the an agent can get the church in trouble agent gets up whether it's the pastor or whether it's the person who's passing out the pla to put your ten dollars in can get a church in trouble if they used church property to support a recall election without going to the popper's procedure so you do not have to be the pastor to say but for the recall election anybody could have done that and it was not part of his press tauriel duties to do that anybody anybody could have done that would not have caused the church to be held responsible that's not correct because the election codes as any agent of the church would hold a lot i don't know that the guy passing out the collection plate is an agent of the church if the person had the permission of the church to do what he did one thing i look at before i came here is is churches all the time on the on the on the brochures which they passed out in the beginning say go to so and so's cr or do this they have all kinds of announcements which are made which are not the operations of the church in the reason i think the facts are important here is even in my trivial one someone could later say there are a lot of alumni of the university of alabama who live in el paso and the reason i was supporting that is because i was trying to increase the number of people who would attend my church by reaching out to all of the supported and believed was part of its ministry why isn't that an operation of the church it is no not singing a hymn in the middle of christmas but it is you know it's what the church has decided to do  in most churches the minister is considered the pilot of the plane and i tell you this is pilot in want to take off we are taking off ok so this isn't just an ordinary guy passing out the collection plate he decides to take a little collection for a campaign or something at the same time this is the guy that runs the church that's why he said specifically i am not doing this but then the court found against that down that no you didn't do it he doesn't have to be doing it as he said i'm not doing this is the pastor of work of life church but he could be doing it as an agent the pastor of life church that's why i point out the person is passing out the plate he's not doing it as an official officer or director of the church he's doing it as an agent of the church well if a deacon had been on this website soliciting all the members to participate in the recall effort do you think it would have had much effect i don't know well of course well you course you do the fact that it is the pastor who apparently runs a pretty large church who is spearheading this saying not because it was easy to do because i pod i had to do it and other pastors encouraged me to do it that sounds pretty pastore old to me and other pastors other businesspeople he listed a whole i know but i mean still it sounds like a pastor all effort to me he could have s those same words in and asking you to support the university of alabama and you could have there was a problem is that when you you know if i'm sitting up here in my robe and i tell you that you need to sit down at the table but i pastor on the church website in the church process with your robe on in essence you really can't divorce yourself from being a pastor frankly as judges were sort of subject to when those were ever we are but you know that was another question you said would also work w pastor even an action of a comedian let me go back to the language of the policy because the district court didn't talk about this quote managing the church and i question that the district court said there are two issues to the action qualify as wrongful act and then they directly relate to operations of the church then it drops down to a footnote and says when used in this provision the unqualified word insured means of following any of you directors offices or trustees a duly elected and be within the scope of their duties on your behalf is that where you ma'am when you were saying managing the church absolutely but it's within the scope which is different from managing the church well it has to be i think the management just sort of informs us as to what will so you were paraphrasing you weren't quoting the direct operations i think yes or yes but as far as quote managing the church i think that's a that it's not as broad as within the scope of their duties on the managing body page fourteen of the district court opinion footnote thirty four read from the policy well did the district court misquoted you may have put in the other sections of the section i was mayor member his name the mayor is a thief he still has stolen money from the city and i know this and lazing jemma let's pray for him because he is evil and he said that as part of his sermon would that be covered in the libel operation the church forward to know why we're praying for him it's not that he has cancer it's that in the end again i'm just a hypothetical i don't mean to impugn this mayor i don't know him it's fine i'm just saying what if that were what he said i think the man is evil and therefore we need to pray for him that sounds religious it sounds like something that could come up and yet it also sounds like something the mayor might view as libel i think if all you had was that the there is no evidence was that the pastor said from the do to fall within the d n o b could come in and say the things the conclusions he said in his affidavit he could have said look we're trying to increase in just instead of saying i'm not doing this is a pastor he's he could say i am doing this is  pastor i do believe that supporting this recall election will increase our flock i do believe you know all the things that he wanted to say he could have said those things at the time  that because i have a problem with this notion of self serving affidavits as just about servings right here i don't care but it is a red herring because if i say you ran the red light that's a self serving affidavit but i can testify to that and maybe the only evidence i have so why would we in his affidavit evidence because they're not facts behind it they're just conclusions so a fact for instance in the in the articles of incorporation there are some secular things you can do buy and sell real estate for the state court findings have no relevant i mean the district court can even cite them the state court findings were that this was an action not that it was management in the actions of the church it was not management or direction of the church pastor brown and found only that pastor brown violated the election code but but but we we disagree on that and i get to just a couple minutes on the if i may yet let's talk about the criminal aspect do you agree it's your burden to prove the criminal exclusion yes it's you agree that it is your burden to prove every element of the crime no what element of the crime would you not have to prove to warrant the criminal exclusion any other really because it doesn't lead where did he plead that there was an intentional or you said he had to plead every element where is that put them disagreeing with your premise you don't have to knowingly violate the selection code election code is very clear that when you are making a contribution you only have to knowingly make it not know that it's abolishing the law so i'm sorry yes when you're making it you just have to know that you and where did he plead mens rea a in the complaint i mean the if there is to be some knowing or intentionally requirement and i'm asking where is that played in the complaint from the mayor because he said he when he made when he did it is there's no there's been no question that he knowingly used church property it wasn't an accident he didn't code has a lot of stuff in it that is very very picky and it is i'm not sure and there's very few prosecutions under it and maybe that's because they're looking for something more than just you didn't file this quite with the right dotted reason that's important here is the duty to defend which we started off with you look at the pleadings and the pleadings were violated of nine for just requires that you know that you made and that's not a if you think it's a crime in the state of texas to make a contribution to know that you're making one even if you don't know that it's illegal absolutely i think that in the court of criminal appeals from said text me let me ask you do you concede that there was a duty to defend oh found that you can't violate the one for b because it's unconstitutional then there's no liability there's nothing to pay if however in this is where you get into the race to cut it if you go all the way to the texas supreme court in this particular case and there is a finding that it was a criminal act in you article this is not a criminal prosecution so that's totally you know support flow as to what exactly happened he you look at the proceedings as to whether they played a criminal act and we cited our case to but i'm just talking i'm just being responsive to your point that the word criminal acts has some talismanic significance here when the entire nature of the defend that i'm suing you like the o j simpson or incident of courts should rule in favor of the insurance company when there are technical you know there are been books written about a thousand felonies a day that every person is violating various regulatory and so on events unknowingly most of the time now and so the insurance company should be able to say their criminal act even when there are no prosecute and we appreciate your argument and you got a little extra time i'm sorry  because it's an insurance company doesn't mean they lose every case but so while certainly ambiguities are construed against the insurance companies certainly they can't undo a limit the policy you know retroactively he still you give them the ordinary meaning of the phrase  work that the criminal acts exclusion was played by saying you violated oh and i'm for which is itself a criminal statute even if that's totally false i mean again falsity truth has no impact on duty to defend just the eight corners so if the eight corner say like the hype about the murder you murdered my relative and i'm suing you for that and then you say you pass it off to your homeowners carrier and they go away but we don't cover murder that's a criminal act exclusion is all about the pleadings live you still remember the case with the drive by shooting and they said i think that's griffin they said as a matter of law a drive by shooting an auto accident ok your hand out or how you dress it up now how did they get there well because they said that drive by shooting is not and so that was based just on the on the pleadings this beamer so how is this different from the drive by shooting and my response to be based on what was pled those were not criminalize neither was the allegation a recall petitions and encourage people like when you plead that somebody did something negligently and intentionally you know in the alternative that that would still need to be covered even though the intentional would not be covered the negligent would they  covered i'm sorry defended that there would be this one sentence that says you rode over me three times negligently and i mean alternative you drove or remain three times intentionally because you hated me that you would still have to defend and so you're saying because there are other allegations that are not criminal acts that that would have to be defended even though there are al it potentially allegations of criminal comes in are they all connected because there is really