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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

SHEILA GILMORE,

Plaintiff

- Appellant, UNPUBLISHED October 4, 2018

v No. 337293

Oakland Circuit Court TRINITY MISSIONARY BAPTIST CHURCH,

and JOHN TOLBERT, LC No. 2016

- 154884

- CD

Defendants

- Appellees.

Before: J ANSEN

, P .J., and M ETER and S TEPHENS , JJ.

P ER C URIAM

.

Plaintiff appeals as of right the trial court’s order granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(4) and (C)(7). We vacate the trial court’s order and remand for further proceedings consistent with Winkler v Marist Fathers of Detroit, Inc , 500 Mich 327; 901 NW2d 566 (2017).

I. RELEVANT FACTS AN D PROCEDURAL HISTORY

This appeal arises out of the termination of plaintiff’s employment with defendant Trinity Missionary Baptist Church (Trinity). Plaintiff had worked for Trin ity for over 30 years, and at the time of her termination, was employed as Trinity’s business manager. In 2012, John Tolbert was installed as the Senior Pastor of Trinity. Shortly thereafter, plaintiff claimed Pastor Tolbert began asking her “when are yo u going to retire,” and generally treating her with distain and hostility.

In 2015 the tensions between plaintiff and Pastor Tolbert came to a head after Pastor Tolbert discovered that plaintiff was receiving an additional five weeks of vacation pay in addition to her regular weekly salary. Plaintiff claimed that a previous pastor had authorized the five weeks of vacation pay for all tenured employees in 1999. Pastor Tolbert claims that the agreement was made verbally, and he had no knowledge of such a n arrangement until late 2015,

when he discovered plaintiff had authorized her extra pay as Trinity’s new payroll service was preparing for the end of the year.

Pastor Tolbert convened a “personal ministry” to investigate plaintiff’s salary. In May

201 6, following the investigation, plaintiff was given two options: continue her employment with Trinity without the extra five weeks of vacation pay under the terms set forth in the written job- 2

- description for the business manager dated July 21, 2014, or ret ire. Plaintiff found neither option to be acceptable. Plaintiff was ultimately placed on a two

- week administrative leave, but was notified on July 28, 2016 that her employment status had been converted to a discharge, effective July 25, 2016.

On Septem ber 2, 2016, plaintiff filed a seven

- count complaint against Trinity and Pastor Tolbert, alleging age discrimination , hostile work environment, and retaliation in violation of the

Elliot

- Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq. , wrongful discha rge, breach of contract, defamation, and intentional infliction of emotional distress. In lieu of filing an answer, defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(4) and (C)(7). Defendants argued that plaintiff “seeks interven tion by the [c]ourt on matters that are at the heart of internal church governance.” Accordingly, defendants sought dismissal of plaintiff’s complaint on the basis that allowing the trial court to decide her claims would result in the trial court becoming “entangled in ecclesiastical questions of church governance.” The trial court agreed, and in a written opinion and order, granted summary disposition in favor of defendants on the basis that it lacked subject matter jurisdiction “because resolution of th e claims would involve an impermissible inquiry into the Church’s internal procedures.” Accordingly, the trial court’s jurisdiction was “prohibited by the First Amendment [of the United States Constitution] and summary disposition is appropriate.” 1 This appeal followed.

II. THE ECCLESIASTIC AL ABSTENTION DOCTRI NE

Plaintiff raises several issues relating to the trial court’s grant of summary disposition in favor of defendants. First, plaintiff argues that the trial court abused its discretion when

concl uding that it lacked subject matter jurisdiction over her claim of age discrimination due to the ecclesiastical abstention doctrine, born out of the First Amendment of the United States Constitution. We agree.

This Court reviews a trial court’s decision on a motion for summary disposition de novo.

Winkler , 500 Mich at 333. This Court also reviews de novo questions of subject matter jurisdiction and constitutional law. Id

.

Below, the trial court summarily d ismissed plaintiff’s complaint on the basis that it lacked subject matter jurisdiction to hear plaintiff’s claims, and that “jurisdiction by this [c]ourt is prohibited by the First Amendment[.]” In sum, although not mentioned by name, the trial

court ’s co nclusion that it lacked subject matter jurisdiction over plaintiff’s complaint was based

on the ecclesiastical abstention doctrine.

In Winkler , our Supreme Court explained:

The ecclesiastical abstention doctrine arises from the Religion Clauses of the First

Amendment of the United States Constitution and reflects this Court’s longstanding recognition that it would be inconsistent with complete and

1 The trial court also denied plaintiff’s motion for reconsideration- 3

- untrammeled religious liberty for civil courts to enter into a consideration of

church doctrine or church d iscipline, to inquire into the regularity of the proceedings to church tribunals having cognizance of such matters, or to determine whether a resolution was passed in accordance with the canon law of the church, except insofar as it may be necessary to do so, in determining whether or not it was the church that acted therein. Accordingly, we have consistently held that the court may not substitute its opinion in lieu of that of the authorized tribunals of the church in ecclesiastical matters, and that judi cial interference in the purely ecclesiastical affairs of religious organizations is improper. [ Winkler

, 500 Mich at 337

- 338 (quotation marks, citations, brackets, and footnote omitted).]

However, simply because a religious organization may be a defendan t in a civil action, the ecclesiastical abstention doctrine does not divest the trial court’s jurisdiction. Rather, the “doctrine informs how civil courts must adjudicate claims involving ecclesiastical questions; it does not deprive those courts of subje ct matter jurisdiction over such claims.” Id . at 337.

When a claim is brought against a religious entity, the relevant inquiry becomes,

whether the actual adjudication of a particular legal claim would require the resolution of ecclesiastical question s; if so, the court must abstain from resolving those questions itself, defer to the religious entity’s resolution of such questions, and adjudicate the claim accordingly. [ Id . at 341.]

Accordingly, the trial court’s grant of summary disposition on the basis of lack of subject matter jurisdiction in favor of defendants was erroneous. R emand to the trial court is appropriate in

order for the trial court to “determine whether and to what e xtent the adjudication of the legal and factual issues presented by the plaintiff’s claim would require the resolution of ecclesiastical questions

. ” Id . at 343. 2 The trial court does have subject matter jurisdiction over plaintiff’s claims, as well as “t he judicial power to consider [them] and dispose of [them] in a manner consistent with the guarantees of the First Amendment.” Id . at 344.

Given that remand for reconsideration in light of Winkler is appropriate, we need not address plaintiff’s remaini ng issues on appeal.

2 We note that Winkler was decided several months after the trial court made its challenged ruling, however we conclude that it should be given retroactive application. See W.A. Foote Mem Hosp v Mich Assigned Claims Plan , 321 Mich App 159

, 182 ; 909 NW2d 38 (2017) , lv pending (n othing that the “general principle is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former decision is bad law, but that it was never the law. ” (quotation marks and citation omitted); see

also WT Andrew Co, Inc v Mid

- State Surety Corp (After Remand) , 461 Mich 628, 632 n 1; 611 NW2d 305 (2000), quoting Gentzler v Smith , 320 Mich 394, 398; 31 NW2d 668 (1948).- 4

- We vacate the trial court’s order granting summary disposition in favor of defendants and remand for further proceedings consistent with Winkler . We do not retain jurisdiction.

/s/ Kathleen Jansen

/s/ Patrick M. Meter

/s/ Cynthia Diane Stephens