IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

June 11, 2009 Session

TWO RIVERS BAPTIST CHURCH, ET AL. v. JERRY SUTTON, ET AL.

Appeal from the Chancery Court for Davidson County

No. 07-2088-I Claudia Bonnyman, Chancellor

No. M2008-01730-COA-R3-CV - Filed May 20, 2010

Officers of a church appeal the trial court holding that under Tenn. Code Ann. § 48-66-102

the members of the church have a statutory right to church records. We find that the

members have a right to the records described in subsection (a) of the statute since such

access is unconditional and since enforcing this right does not entangle the court in religious

affairs in violation of the ecclesiastical abstention doctrine. However, the members failed

to articulate a “proper purpose” as required in Tenn. Code Ann. § 48-66-102(c) to gain

access to those records described in subsection (b) of the statute. Accordingly, we affirm the

trial court’s judgment in part and reverse in part.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed in Part, Reversed in Part

PATRICIA J. COTTRELL, P.J.,M.S., delivered the opinion of the court, in which ANDY D.

BENNETT and RICHARD H. DINKINS, JJ., joined.

Larry L. Crain, Abigail Southerland, Brentwood, Tennessee, for the appellants, Jerry Sutton,

et al.

Mark T. Freeman, Nashville, Tennessee, for the appellees, Two Rivers Baptist Church, et al.

OPINION

This suit began as a dispute between members of Two Rivers Baptist Church, (“the

Church”), a non-profit corporation, and its officers over governance of the Church. Initially,

fifty-four members (“the Members”) of the Church sued the senior pastor, Jerry Sutton, and

other Church officers (collectively “Church Officers”) under a variety of theories alleging

that the Church Officers had not governed the Church in accordance with internal governing
documents, mishandled Church finances, and acted in bad faith. The relief sought by the

Members included discovery to determine the extent of the Church Officers’ alleged

wrongdoing, the removal of the Church Officers, reimbursement of distributions previously

made to the senior pastor, and an order requiring the Church to hold a meeting “so that

certain governance issues can be addressed.” In addition, the Members also sought access

to Church records under the Non-Profit Corporation Act, specifically Tenn. Code Ann. §§

48-66-102 and 104 (“Act”).

The sole issue on appeal is whether the Members are entitled to access to Church

records under the Act, and it is important to understand the context of the request.

The Members filed motions to compel, and in its November 2007 order addressing

those motions, the trial court ordered the Church Officers to allow the Members access to

various Church records under the Act. The trial court found:

The Plaintiffs have met the requirements of Tenn. Code Ann. § 48-66-102(c).

The Plaintiffs stated they will use the records to determine their property rights

as members in the non-profit corporation church.

Consequently, the Church Officers were ordered to allow access to a variety of Church

records which included resolutions, minutes of meetings, accounting records, and

membership lists.

In response to a motion to dismiss, the trial court dismissed all of Members’ claims

by order February 4, 2008, except the claim pertaining to the records request under the Act.

The trial court found it lacked subject matter jurisdiction over the vast majority of the

Members’ claims because to rule on the claims against the pastor and the other Church

Officers would require the court to delve into internal governance of a religious group in

violation of the ecclesiastical abstention doctrine.

Although some of the records were produced, the Members later filed a motion to

compel regarding other records. On January 22, 2008, the trial court granted the Church

Members’ motion to compel finding that “pursuant to Tenn. Code Ann. § 48-66-101 et seq.,

the Plaintiffs sought to inspect and copy church records in order to address their member

property rights in the church building and its funds.” The court adopted the Members’ stated

reason for seeking the records and found:

The purpose for which the Plaintiffs are allowed access to these records, is not

to engage in lawsuit discovery, but rather to address their general property

rights as members of the non-profit corporation.

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Finally, on May 7, 2008, the trial court entered a final order on the inspection of the Church

records noting that most records had been made available to the Members, but ruling on final

points of disagreement.

The Members originally appealed the trial court’s decision to dismiss their numerous

claims against the Church Officers, but the Members’ appeal waslater voluntarily dismissed.

The Church Officers, on the other hand, appealed the trial court’s decision that Tenn. Code

Ann. § 48-66-102 required the Church Officers to produce Church records. Consequently,

the only issue on appeal is whether the Church Officers were required by Tenn. Code Ann.

§ 48-66-102 to produce the records as ordered by the trial court. Although given an

extension at the time to file a brief on the issue whether Tenn. Code Ann. § 48-22-102

required production of Church records, the Members did not file a brief or participate in oral

argument on appeal.

The issue before us is the extent to which Tennessee Code Annotated § 48-66-102

grants Members access to Church records. That statute, which governs access by members

to records of non-profit corporations, provides as follows:

48-66-102. Inspection of records by members. - (a) Subject to §

48-66-103(c), a member is entitled to inspect and copy, at a reasonable time

and location specified by the corporation, any of the records of the corporation

described in § 48-66-101(e) if the member gives the corporation a written

demand at least five (5) business days before the date on which the member

wishes to inspect and copy.

(b) A member is entitled to inspect and copy, at a reasonable time and

reasonable location specified by the corporation, any of the following records

of the corporation if the member meets the requirements of subsection (c) and

gives the corporation written notice at least five (5) business days before the

date on which the member wishes to inspect and copy:

(1) Excerpts from any records required to be maintained under §

48-66-101(a), to the extent not subject to inspection under subsection

(a);

(2) Accounting records of the corporation; and

(3) Subject to § 48-66-105, the membership list.

(c) A member may inspect and copy the records identified in subsection

(b) only if:

(1) The member's demand is made in good faith and for a proper

purpose;

(2) The member describes with reasonable particularity the purpose and

the records the member desires to inspect; and

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(3) The records are directly connected with the purpose for which the

demand is made.

(d) The right of inspection granted by this section may not be abolished

or limited by a corporation’s charter or bylaws.

(e) This section does not affect:

(1) The right of a member to inspect records under § 48-57-201 or, if

the member is in litigation with the corporation, to the same extent as

any other litigant; or

(2) The power of a court, independently of chapters 51-68 of this title,

to compel the production of corporate records for examination.

Thus, under Tenn. Code Ann. § 48-66-102, a Member’s right to access a record is

dependent upon the type of record involved. Tenn. Code Ann. § 48-66-102(a) and (b) create

two classes or types of records, with different requirements for their production. The records

described in subsection (a) are available to a member without condition; but a member is

entitled to access to the records described in subsection (b) only if the conditions in

subsection (c) are met.

Under subsection (a), a member may have access to the records listed in another

statute, Tenn. Code Ann. § 48-66-101(e), without condition. The records available to

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members without condition are those that the corporation is required to keep at its principal

office, specifically:

(1) Its charter or restated charter and all amendments to it currently in effect;

(2) Its bylaws or restated bylaws and all amendments to them currently in

effect;

(3) Resolutions adopted by its board of directors relating to the characteristics,

qualifications, rights, limitations and obligations of members or any class or

category of members;

(4) The minutes of all meetings of members and records of all actions

approved by the members for the past three (3) years;

(5) All written communications to members generally within the past three (3)

years, including the financial statements furnished for the past three (3) years

under § 48-66-201;

(6) A list of the names and business or home addresses of its current directors

and officers; and

This right is subject to Tenn. Code Ann. § 48-66-103(c) which allows the non-profit corporation 1

to charge for the copies.

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(7) Its most recent annual report delivered to the secretary of state under §

48-66-203.

Tenn. Code Ann. § 48-66-101(e).

On the other hand, a member’s statutory right to access certain other records of the

non-profit (but which are not included in subsection (a)) is governed by subsection (b) of

Tenn. Code Ann. § 48-66-102 and is explicitly conditioned upon the member’s request

meeting the conditions in subsection (c) of that statute. Tenn. Code Ann. § 48-66-102(b).

Those records include accounting records, membership lists, and other records set out in the

statute. The conditions of subsection (c) require, among other things, that the request be

made “in good faith and for a proper purpose” and that the records must be “directly

connected” with this “proper” purpose.

On appeal, the Church Officers argue the trial court erred in ordering them to produce

the records described in subsection (a) of Tenn. Code Ann. § 48-66-102, by reference to

Tenn. Code Ann. § 48-66-101(e), on the basis that the order violated the ecclesiastical

abstention doctrine.

The ecclesiastical abstention doctrine (sometimes called the church autonomy

doctrine, see, e.g., Bryce v. Episcopal Church in the Diocese of Colorado, 289

F.3d 648 (10th Cir. 2002)), is rooted in the First Amendment to the United

States Constitution, and its purpose is to prevent the civil courts from engaging

in unwarranted interference with the practices, internal affairs, and

management of religious organizations. Kedroff v. St. Nicholas Cathedral,

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344 U.S. 94, 116 (1952); Murrell v. Bentley, 286 S.W.2d 359, 365 (Tenn. Ct.

App. 1954). Civil courts cannot adjudicate disputes turning on church policy

and administration or on religious doctrine and practice. Serbian Eastern

Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-09 (1976); Presbyterian

Church v. Mary Elizabeth Hull Memorial Presbyterian Church, 393 U.S. 440,

446-47 (1969); Kedroff v. St. Nicholas Cathedral, 344 U.S. at 116; Gonzalez

v. Roman Catholic Archbishop, 280 U.S. 1, 16 (1929).

The First Amendment’s free exercise guarantee and its prohibition against laws respecting the establishment

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of religion have been made wholly applicable to the states by the Fourteenth Amendment. School District of Abington

Township v. Schempp, 374 U.S. 203, 215-216 (1963); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). Courts have

at times varied in their identification of the source of the ecclesiastical abstention doctrine as the Free Exercise Clause

or the Establishment Clause, or both. See Rosati v. Toledo Catholic Diocese, 233 F. Supp 2d 917, 920 (N.D. Ohio

2002)(stating that the majority hold that the doctrine is founded in the Free Exercise Clause)..

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“A consequence of this Nation’sfundamental belief in the separation of church

and state is that, under most circumstances, the First and Fourteenth

Amendments preclude civil courts from adjudicating church fightsthat require

extensive inquiry into matters of ‘ecclesiastical cognizance.’” Burgess v. Rock

Creek Baptist Church, 734 F.Supp. 30, 31 (D.D.C. 1990), citing Serbian

Eastern Orthodox Diocese v. Milivojevich, 426 U.S. at 709-10. The

underlying premise is that our system of government, through the First

Amendment, “has secured religious liberty from the invasion of the civil

authority.” Watson v. Jones, 80 U.S. 679, 730 (13 Wall.)(1872).

Anderson v. Watchtower Bible and Tract Society of New York, Inc., No. M2004-01066-COAR9-CV, 2007 WL 161035, at *4-5 (Tenn. Ct. App. Jan. 19, 2007).

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It is clear that the unconditional right to access under subsection (a) does not in this

case run afoul of the ecclesiastical abstention doctrine since it does not require the court to

become entangled in any way with church doctrine or disputes in order to decide the question

of access. Consequently, the trial court correctly ordered the Church Members to produce

the records described in subsection (a) of Tenn. Code Ann. § 48-66-102.

With regard to the second class of documents under subsection (b) and (c), the Church

Officers argue that constitutional principles protect these documents from access by

Members and, alternatively, that the trial court erred in finding the statute required access

since the conditions of subsection (c) were not met. We need not examine whether access

to the membership lists violates the Church Officers’ alleged associational right to privacy

under the First Amendment, because application of the statute to the facts herein does not

require production.

For the records under subsection (b), the Members relied upon their “property rights

in the church building and its funds” as the proper purpose. The purpose presented by the

Members and accepted by the trial court was to determine their property rights. However,

as has been previously held, unless there is an agreement to the contrary in some bylaw or

associational agreement, any decision about control of church property is to be decided by

a majority vote of the church. See Avondale Church of Christ v. Merrill Lynch, E2007-

The Tennessee Supreme Court similarly held long ago that courts of this State are without jurisdiction to

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inquire into or supervise the decisions of religious organizations. Nance v. Busby, 18 S.W. at 881, citing Watson, 80 U.S.

at 727. Tennessee courts have continued to refuse to hear disputes that are perceived to be purely ecclesiastical in nature.

Travers v. Abbey, 58 S.W. 247, 247-48 (Tenn. 1900) (holding that dispute over removal of pastor did not involve

property or personal rights, related to governance of and discipline by church, and courts would not review the decisions

of ecclesiastical judicatures); Martin v. Lewis, 688 S.W.2d 72, 73 (Tenn. Ct. App. 1985).

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02335-COA-R3-CV, 2008 WL 4853085, at *5-7 (Tenn. Ct. App. Nov. 10, 2008). It has

likewise been found that church members have no property rights in their contributions to

a church. Foster v. Collins, W2004-01959-COA-R3-CV, 2005 WL 3527656, at *7 (Tenn.

Ct. App. Dec. 27, 2005). Consequently, the Members have no property rights in the church

building or its assets. This is in accord with the generally accepted law on the subject.

Generally, a non-profit corporation, and not its members, ownsthe property of the non-profit.

12A FLETCHER CYC. CORP., 5707. Absent a departure by the majority from doctrine

accepted by the articles of incorporation, the minority has no right to claim church property

from a majority at the church membership. Id. See Cumberland Presbyterian Church v.

North Red Bank Cumberland Presbyterian Church, 430 S.W.2d 879 (Tenn. Ct. App. 1968).

In effect, the purpose specified by the Membersfor obtaining the recordsin subsection

(b) has no legal existence. We are cognizant that the Church Officers had the burden of

proof that the Members’ purpose was not proper and that a purpose is generally deemed

proper if related to legitimate interests of the shareholder and is not harmful to the

corporation. See City of Franklin v. Middle Tennessee Electric Membership Corporation,

M2007-1060-COA-R3-CV, 2009 WL 2365572, at *6-8 (Tenn. Ct. App. 2009). However,

as discussed above, the Members did not have a property interest in the church assets, which

was the reason relied upon before the trial court. Subsection (c)(2) requires the Member to

describe the purpose “with particularity.” Whether access would have been required had

another purpose been proffered by the Members is speculative at best.

Consequently, as it does not appear the Church Members enunciated a proper purpose

for the documents as required by Tenn. Code Ann. § 48-66-102(b) and (c), the trial court

erred when it required the Church Officers to produce those records.

The trial court is affirmed in part and reversed in part. Costs of this appeal are to be

apportioned fifty percent to the appellants and fifty percent to the appellees.

____________________________________

PATRICIA J. COTTRELL, P.J., M.S.

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