News Archive 2008 December

Arkansas Court of Appeal Rules That “Mormons are Not Protestant”

The Arkansas Court of Appeals recently handed down an unusual ruling in which a man was held in contempt for involving his children in the LDS Church. Actually, it’s not as dramatic as it sounds. When Joel and Lisa Rownak divorced in 2005 they agreed that their two children would be raised “in the Protestant faith.” Since this agreement was entered as part of the divorce decree, it was enforceable by the court. Subsequent to their divorce, Joel Rownak converted to Mormonism and involved his two sons in his new faith, including baptizing one of the boys. Rownak made several free speech arguments, but the Arkansas court still found in contempt of the decree. The court relied heavily on the fact that Rownak himself had asked for the language to be placed in the divorce decree.The interesting part of this case, as it relates to the Mormon Church, is the court’s discussion of whether the Church of Jesus Christ of Latter-day Saints was a Protestant church.

The court noted: Based upon testimony by appellant’s wife, a statement by the president of LDS that was publicized on the church’s website, and testimony by appellant, the court found the LDS church not to be a Protestant faith and found that appellant had promoted the LDS faith to his sons.Ark. App. CA08-193 p. 4. The question of whether Mormons are Protestants is mildly interesting, but it’s fairly clear cut. The Arkansas court didn’t seem to have much trouble coming to its conclusion. It would be more interesting if the divorce decree had required the children to be brought up “in the Christian faith.” Then you would have a U.S. court attempting to determine an issue about which there is significant disagreement among various denominations. What sources would a court consult in determining whether Mormonism is part of Christianity? Would a court consult the website, like the Arkansas court did on the Protestant issue? Or would the court instead rely on other religious authority outside of the LDS Church? And is even proper for a court to determine such controversial issues?As much as I’d like to see the outcome of such a case, it probably isn’t the sort of issue that a court should resolve. In the Arkansas case there really wasn’t much of a dispute over whether Mormonism was Protestantism. But it still raises some significant constitutional questions.

On this topic UCLA Law Professor Eugene Volokh opined: I think there are substantial limits on the enforceability of such contracts. The church property cases held that courts generally can’t make theological decisions, such as which claimant’s views are closer to orthodox (with a small “o”) Presbyterianism; and I think the logic extends also to the interpretation of contracts, wills, and trusts that call for such decisions. Nor can courts avoid this constitutional barrier by trying to figure out what the majority of members of a religion thinks (hard to do reliably, plus it assumes the conclusion of who constitutes “members of a religion,” and it privileges majority denominations within a religious group over minority denominations). And courts usually can’t avoid the constitutional barrier, I think, by asking what the parties intended the term to mean — the best test of a word’s intent is usually the word itself, and that is the very thing that calls for theological decisionmaking.

Free Online Legal Resources

For quite some time I’d been wanting to write an article about all the free legal research sources online. To highlight the alternatives to Westlaw and LexisNexis. Well the e-Justice Blog did all the work for me. They listed 100 different websites that cover a large range of resources from where you can look up case summaries, jurisdictions, and other historical documents to megalaw where you can look up everything from federal cases to legal forms to family law.

Why the Supreme Court got it wrong in Corp. of Presiding Bishop v. Amos

Over twenty years ago, the LDS Church played a small role in determining how the Establishment Clause meshed with Title VII of the Civil Rights Act of 1964. The case is Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, and it used to appear in a lot of constitutional law texts. I find the case interesting for a couple reasons: first, it’s amusing when sources such as Bruce R. McConkie’s Mormon Doctrine or the Book of Abraham are cited in a Supreme Court brief. Second, and more importantly, I think the outcome of the case was wrong and that the Mormon Church should have lost.

The facts are these: the Church of Jesus Christ of Latter-day Saints operated the nonprofit Deseret Gymnasium in Salt Lake City under its sub-organization, the Corporation of the Presiding Bishop (CPB). The CPB also had some management in Beehive Clothing, along with the Corporation of the President (COP), another entity within the Mormon Church. Several employees of Beehive Clothing and at least one employee of Deseret Gymnasium were terminated after failing or refusing to receive temple recommends. They brought suit against the CPB and the COP. Readers familiar with the organization of the Mormon Church will recognize that the CPB deals with many secular matters of church administration, such as property acquisition and the management of physical facilities (such as the Deseret Gymnasium). The gymnasium was open to the public and there was no evidence that the facility was used in religious services, or that physical exercise was part of the tenets of the Mormon faith. Beehive Clothing, in contrast, produces temple garments and temple clothing worn in LDS temple ceremonies.

Plaintiffs made several claims under federal and Utah State law, but the major issue was whether the plaintiffs’ terminations violated Title VII of the Civil Rights Act of 1964. The CPB raised the defense that §702 of the Act, which provided an exemption for religious entities from the equal employment requirements of Title VII.

This title shall not apply to . . . a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

The terminated employees argued that §702 violated the First Amendment’s non-establishment of religion clause because it favored religious employers over similarly situated non-religious employers.

The District Court applied what is known as the Lemon test, after the Supreme Court case Lemon v. Kurtzman (which really was derived from the prior Supreme Court cases of U.S. v. O’Brien and Clark v. Community for Creative Non-Violence). The Lemon test essentially requires that any statute affecting religion meet the following three requirements:

  • The statute must have a secular purpose.
  • If it has a secular purpose, the statute’s principle or primary effect must be one that neither inhibits nor promotes religion.
  • Lastly, the statute must not foster an “excessive government entanglement with religion.”

It seems clear that Title VII had a secular purpose (to prevent employment discrimination), and the statute didn’t entangle the government with religion. The real issue was whether the primary effect of §702 was to promote religion.

The Utah District Court declined to rule on whether §702 was constitutional as applied to the employees of Beehive Clothing due to a lack of evidence in the record. But the court did rule that §702 was unconstitutional as applied to Plaintiff Arthur Frank Mayson, the terminated building engineer at Deseret Gymnasium. Finidng that there was no clear relationship between the primary function which Deseret performs and the religious beliefs and tenets of the Mormon Church or church administration,” the Utah District Court granted summary judgment in favor of Plaintiff Mayson on his Title VII claim. The case was reopened to allow the federal government to intervene in support of Title VII, but the District Court again ruled in favor of Plaintiff Mayson. The CPB appealed.

By all accounts, the case we very well argued at the Supreme Court level, with Rex E. Lee representing the appellant Corporation of the Presiding Bishop. Lee had stepped down from his position as U.S. Solicitor General just two years earlier, so he was a well-known face at the Supreme Court. Numerous religious organizations submitted amicus briefs urging that the District Court ruling be overturned, while labor and employment groups did likewise in favor of affirmance.

In a unanimous ruling, the Supreme Court held that §702 of the Civil Rights Act of 1964 did not violate the First Amendment prohibition of the establishment of religion. The Court said:

A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to [have the primary effect of advancing religion] it must be fair to say that the government itself has advanced religion through its own activities and influence.

As impertinent as it may seem, I think the Supreme Court was dead wrong in Amos. This may be a tribute to the persuasive powers of Rex Lee and amici, but more likely, the Court failed to correctly evaluate the potential infringement on religion. Under my analysis, there doesn’t seem to be a free exercise basis for this exemption to Title VII, as applied to Plaintiff Mayson, because employing a building engineer who doesn’t hold an LDS temple recommend would result in negligible interference with religion, if any. I can’t think of a rational reason why a physical fitness facility should be exempted. Even the most liberal reading of the Word of Wisdom or statements by LDS Church leaders on exercise wouldn’t support an assertion that the activities of a gymnasium were central to Mormon theology. The only reason for the Supreme Court’s ruling in Corp. of Presiding Bishop v. Amos seems to be that without the preferential treatment, Title VII would violate the Free Exercise Clause. But if employing a non-believing or non-temple-worthy building engineer for a secular-use building doesn’t inhibit the free exercise of religion, this ruling seems indefensible.

Obviously, I would agree with the Court if Plaintiff Mayson had managed the facilities of an LDS temple. I think it would be fair to say that requiring a temple recommend (and the accompanying lifestyle and beliefs) in order to gain entrance to an LDS temple is a core tenet of LDS theology, and that any interference with this practice would violate the Free Exercise Clause.

The case of the Beehive Clothing workers presents a somewhat closer case. The Utah District Court dodged the question for lack of evidence, but it opined that plaintiffs were entitled to discovery on the following issues:

(1) the manufacturing of garments prior to 1960 and any subsequent changes;
(2) the distribution of garments prior to 1960 and any subsequent changes;
(3) the tax exempt status of Beehive;
(4) the past and current employees who were or are non-members of the Mormon Church;
(5) Beehive’s contracts, both past and current, with private commercial enterprises for the production of garments; and
(6) current hiring practices of the defendants’ garment and temple clothing manufacturing plants in Mexico and England.

I think the District Court was honing in on the issue of whether the employees of Beehive Clothing were involved in a religious activity. The production of clothing itself is not an inherently religious activity, of course. What might make the activity religious is the purpose for which the clothing is made. Also interesting is the fact that the plaintiffs terminated from Beehive Clothing were involved in the production process “before the garments were marked with certain religiously significant symbols,” which could favor an interpretation that the activities were not religious. However, since the employees also produced clothing worn in Mormon temple ceremonies, there still is a decent argument that their activities were religious in nature.

The questions posed by the District Court would likely help settle the question of whether temple clothing and garment production is a religious activity. Today, LDS temple garments and clothing may only be purchased by temple recommend-holders, and I think the activities of Beehive Clothing should safely be considered as religious activities. But there once was a time (aluded to by the District Court) when Mormon garments were available to order from the Sears Roebuck catalog, and until relatively recently anyone could buy them from Mormon distribution centers. I would still probably favor a ruling that Beehive’s activities were religious, if only for the aspect of temple clothing production, but it’s a close call. We’ll never know how the Supreme Court would have ruled on the issue because only Plaintiff Mayson’s claims were granted and appealed, but given the Court’s (in my opinion) faulty logic in Amos, perhaps it was better left undecided.

Networking Websites

A number of social networking sites hope they have lawyer appeal, including:

CasemakerX—A free social networking and research tool that allows law students to search primary federal and state law.

Facebook—The Hot Spot, it claims 90 million users. Though it began as a personal social network, its business application has grown.

LawLink—A no-cost lawyer-to-lawyer network with about 4,000 members, including the Santa Clara County (Calif.) Bar Association.

Legal OnRamp—an invitation-only site for some; in-house counsel can join without restriction, but law firm attorneys must be invited. The site stresses collaboration by sharing opinions, research, work product and other information. For such premium services as a “private ramp” accessible only to certain people and the ability to automate legal processes, members pay from $30,000-$100,000 per year.

LinkedIn—Boasted 25 million members as of July and claims 1 million new members join every month. For upgraded services, such as the ability to contact other members through the site, fees begin at $19.95 per month.

Martindale-Hubbell Connected—To launch in early 2009. Members will be able to determine whether the lawyers they’re researching are connected through their personal LinkedIn relationships. Membership will be free for attorneys who advertise in Martindale-Hubbell.

Merrill Lextranet 5.6—Merrill adds social networking. Membership is free to corporations using its case management programs. (Info only—must buy software and services to access )

MySpace—The Granddaddy, with more than 100 million members. Though some professionals use MySpace for business connections, many consider it youth-dominated and more of a personal site.

The Drug War on Mexico

The amount of violence of absolutely shocking. The Iraq war started on March 19, 2003 and since that time, (as of today) 4,209 American soldiers have been killed in combat. Since January 1 OF THIS YEAR through November 28 OF THIS YEAR (more than) 6,836 have been killed in the Mexican drug war. This would be scary if it were happening anywhere in the world but when you see how many people are being murdered in our back yard its scary. The problem isn’t likely to get better anytime soon, the Mexican government is plagued with corruption, budget shortages, lack of resources, and a very determined enemy. The amount of violent murders has many in Mexico calling for the reinstatement of the death penalty. Unfortunately, I don’t think that’s going to help the situation even if it were to happen.

Network It Up

As Scott Sigman rattles off some of the online social networks he’s joined, it’s plain he’s a true believer.

“MySpace was really the first. It’s for the younger crowd, but it’s OK,” says the associate at Bochetto & Lentz in Philadelphia. “Friendster is pretty much dead in the water. LinkedIn and Face­book are the two most popular, and Facebook is unbelievable. It has many of my attorney colleagues and high school and undergraduate friends. It’s an amazing way to connect with people from my past.”

Sigman has joined just about every online social networking site he can find. “I have pretty much an identical profile, with the same photo and bio on all,” he says, referring to a snapshot that plays off his Philadelphia roots by featuring him in a business suit while sporting vibrant red boxing gloves, Rocky-style.

Sigman is constantly working the sites to build more contacts that he hopes will bring him new business.

“My LinkedIn connections are probably near 1,000,” he boasts, “and I have about 965 friends on Facebook.”

It’s paying off, according to Sigman. “I get numerous requests for representation through LinkedIn and Facebook—at least 20 e-mails a month between the two sites,” says the former Philadelphia assistant district attorney. “I bring in an average of three to five cases a month from those contacts, whether it’s a driving-under-the-influence criminal case, civil representation or someone asking for a referral.”

That adds up to $20,000-$100,000 in legal business generated through online networking each year. “That’s cases and referrals for work on an hourly basis,” says Sigman. “On contingent fee cases, it could be in the millions. It’s an unlimited number.”

Sigman is an outlier, as they say in the statistical world, in both his involvement with and enthusiastic endorsement of social networks. But the two ends of the continuum of opinion about social networking can be seen in the statistics he rattles off. Five- or six-figure payoffs ain’t hay, many lawyers would say. But take in the effort to keep up with 2,000 or so contacts, and your yearly harvest divides down to between $10 and $50 per contact, others might argue.

Technical Question

I have recently attempted to submit my blog to the ABA Journal’s Blawg list; however there they have said that our RSS Feed has a problem and therefore can’t be submitted. They advised me to go to and submit the feed and make the changes that it suggests. However, upon attempting to validate the RSS feed it gave me a long list of XML fixes that need to be made. But does anyone know of a work around or any other suggestions? Thanks.

First ABA Accredited LLM, Completely Online

Thomas Jefferson School of Law remains the first and only law school to offer graduate law degrees and certifications entirely online at an ABA accredited law school.

The student body adds an interdisciplinary element to the educational experience. Although individuals with law degrees make up roughly half of the student body, the other half is drawn from the fields of accounting, finance, economics and other business disciplines. The result is an educational environment that permits the students to learn as much from each other as they do from the instructors and the courses they teach. Eventually, each student will belong to a growing international network of alumni who work in the most influential law firms, financial institutions and government agencies throughout the world.

Initially created to culminate in an LL.M. in international tax, the online program has grown to meet a wide range of career objectives and needs represented by the individuals who seek the flexibility that only this online program can offer. Additionally, students who do not seek a traditional law degree can pursue a course of study that culminates in a certificate in one of six areas of specialization. Both degree candidates and non-degree students may seek “Certificates of Expertise” to make themselves more marketable in the job field. The Thomas Jefferson School of Law ‘s online LL.M. in international tax is $1000 per credit hour.

Because so much of LLM programs are lecture based a student could view these lectures from their laptop in a different part of the country. Online LLM’s make a lot of sense and I can see more law school’s offering them in the future but then again when a school is based in San Diego who wouldn’t want to go to school there in person? It’s not like it’s in Ohio.

Church Zoning Passes Another Hurdle

A controversial church plan received a preliminary blessing Wednesday from East Hempfield Township officials — but also a warning that final approval will require more work. The township planning commission voted 5-1 to recommend approval of a preliminary plan submitted by the Church of Jesus Christ of Latter-day Saints to build a 25,790-square-foot Church.

However, the commission rejected the church’s request to endorse a final land development plan and demanded more detail before it comes back for consideration. The plan has already cleared hurdles with the zoning hearing board, obtaining a special exception for a church in a residential-1 zone. It still must go before supervisors for final approval.

Supervisors earlier this month considered — and abandoned — a motion to appeal the zoning board’s decision. The vacant 10.22-acre tract is at the corner of Harrisburg Pike and Sylvan Lane. The plan includes 236 permanent parking spaces, 51 temporary spaces in a grassy overflow lot and a sanctuary with a seating capacity of 320.

Planning commission chairman Keith Falco urged architects to add sidewalks and a landscape buffer around the parking lot before the plan comes back for final approval. David Blackman, from township planning and development, said East Hempfield wants sidewalks along Sylvan Lane and Sunwood Lane as part of the initial construction. A sidewalk along Harrisburg Pike should be delayed until officials determine a “codified plan” for the busy corridor, he said.

That means traffic heading west to the Route 283 exchange would have to exit onto Sunwood Lane, drive east to Sylvan Lane and turn onto Harrisburg Pike at a traffic signal. Residents have said the plan puts a burden on their residential lane. They also worry that motorists might turn west onto Sunwood Lane and cut through the neighborhood. Supervisors have said the church must restrict right turns by church patrons, possibly by placing temporary barriers on the street.

“A lot of us would love to see full access out onto Harrisburg Pike,” township planning director Mark Stivers said. “I think we agree that’s the best place for it.” However, he said, the township can’t overrule PennDOT’s decision.

Several residents said parking is inadequate for twice-annual church conferences, which church leaders have said could draw up to 900 people. Dan Crocker of 1004 Sunwood Lane said excess cars will park on the streets. And Edward Hunter of 1106 Sweetbriar Way said ordinances should require the church to provide 450 permanent parking spaces to handle the crowd.

But Falco said the issue will be addressed by a building code inspector during the final land development process. Karen Schmitz of 1110 Persimmon Drive argued the plan exceeds the 30 percent maximum lot coverage. The plan lists lot coverage at about 22 percent. Schmitz said the plan does not account for some drives, walks and impervious parking surfaces, which she said take coverage to closer to 35 percent. Blackman said he would look into the matter.

Several residents said church leaders are unwilling to meet with neighbors to address their concerns. But a church spokesman said later that efforts to meet with residents have been rebuffed. Falco urges both parties to get together and hammer out their differences.

Falco also said he wants the church to take another look at bringing traffic into the site from Harrisburg Pike. “There is a lot of cleanup that needs to be done,” he said. “There are some items and details that need to be worked out.” Planning commissioner Andrew Weaver voted against the motion. He said access issues should be resolved before a preliminary plan is approved.

The Legal Office of the Future?

There’s a new law office on 24th St. N.W. and M St., but you won’t find any partners roaming the halls. There aren’t any secretaries there either. The entire office, in fact, is only about 1,000 square feet.

It’s the newly opened D.C. location of Axiom, the law firm that started in New York seven years ago and touts itself as an innovative, less expensive alternative to traditional firms. Axiom, which employs 216 lawyers, doesn’t have a partnership, doesn’t use the billable hour, and its lawyers work from home or in the offices of clients. The new D.C. digs, like Axiom’s other offices in New York, San Francisco, Chicago, and London, serve largely as a hub for taking client calls that are then filtered out to the firm’s remote attorneys.

Will McKinnon, general manager in Washington, says he expects the office to be fully up and running by January. Presently, he and the office’s practice management head, Ben Lieber, are focused on recruiting. McKinnon says 26 lawyers have either joined or are in the final stages of accepting offers to start at Axiom. The office will have capabilities in transactional work, intellectual property, securities, and labor and employment. Axiom also hopes to get into government affairs and government contracts work in the District.

Lieber says the recruits are dominantly coming from large Washington and New York-based firms. “The household names,” he says, though he wouldn’t specify further. Lieber himself was once an associate at Covington & Burling, though he was most recently general counsel of the D.C. lobbying firm Carmen Group. Lawyers in Axiom’s other offices come from firms such as Latham & Watkins, Cravath, Swaine & Moore, and Skadden, Arps, Slate, Meagher & Flom. Lieber says Big Law attorneys are attracted to Axiom’s flexibility, since unlike at traditional firms, they get to choose their hours and client assignments.

They also escape the pressure of the billable hour, since Axiom bills clients by the week. McKinnon says Axiom’s rates break down to “one-half to one-third of the benchmark rate for big firms, which is generally $500 an hour.” Lieber says firmwide revenues will break $50 million this year, and that the average Axiom lawyer makes $210,000 a year.

It may be pulling talent from Big Law, but Axiom is a long way from becoming a serious competitor with traditional high-end firms. It operates a bit like a contract-attorney service, since Axiom lawyers are often assigned to work for months in the in-house legal departments of clients.

McKinnon and Lieber say the firm has not yet established clients in the D.C. area, but that it’s eyeing Fortune 1000 companies that operate here, and even federal government agencies. Axiom’s Web site lists companies such as Bank of America, NBC Universal, Sun Microsystems, and Yahoo as clients.

Mormon Missionary Shooter Found Guilty of First- Degree Murder

A jury has found James Boughton guilty of killing Morgan W. Young and wounding Joshua Heidbrink, two Mormon missionaries shot nearly three years ago while proselytizing door-to-door in the city.

The jury returned the verdicts Friday night against James Boughton Jr., 22, after deliberating more than two days in Chesapeake Circuit Court.

Judge Randy Smith asked the jury to return Monday morning for the sentencing phase of the trial. The jury found Boughton guilty of first-degree murder, malicious wounding, attempted malicious wounding and three counts of use of a firearm. Boughton, faces the possibility of life in prison.

Boughton, in suit and tie, stood in court as the verdict was read, with no outward sign of emotion. He was 19, a recent graduate from Deep Creek High School, at the time of his arrest for the crime.

Young and Heidbrink were in the Deep Creek section of Chesapeake proselytizing the night of Jan. 2, 2006, as a violent neighborhood dispute was unfolding. A hooded gunman had attempted to shoot an Elkhart Street resident, Gregory Banks Jr., and was fleeing the area when he crossed paths with the missionaries.

The missionaries assured the approaching gunman that they hadn’t seen anything, according to court testimony. The gunman, armed with a 9 mm gun, shot them both and fled. Young, 21, of Bountiful, Utah, died of a wound to the head. Heidbrink, then 19, from Greeley, Colo., managed to go for help at the nearby Charity House.

Commonwealth’s Attorney Nancy Parr and Deputy Commonwealth’s Attorney D.J. Hansen used DNA evidence and the testimony of a Chesapeake teen to link Boughton to the crime. The surviving victims, Heidbrink and Banks, were unable to identify the hooded gunman.

Boughton’s defense attorney, Andrew Sacks, argued his client was at a friend’s house in Camelot playing video games the night of the shootings. He produced several witnesses who supported the alibi. Sacks argued in court that the real shooter that night was Mario Felton, a 17-year-old who was feuding with Banks over $80 in drug money. Felton initially told police he was the one who fired the 9 mm weapon three times that night, but later told police he made the story up to cover for Boughton.

Jurors Continue Deliberations in Mormon Missionary Shooting Case

Jurors are expected to continue their deliberations today in the trial of James Boughton Jr., the Chesapeake man accused of shooting two Mormon missionaries nearly three years ago.

Jurors began deliberations Wednesday afternoon and spent much of the day Thursday deciding Boughton’s fate. The 22-year-old faces charges of first-degree murder, malicious wounding and three counts of use of a firearm.

Morgan W. Young and Joshua Heidbrink were shot the night of Jan. 2, 2006, while proselytizing in Deep Creek. Young died from a wound to the head. Heidbrink survived his injury.

Idaho Mormon Church Vandalized

The Bonneville County Sheriff’s Office is investigating a vandalism to an LDS Church construction site. This is the third time vandals have struck at the Mormon Church building on East Iona Road since construction began. This time, someone turned on the valves to the buildings fire sprinkler system over the weekend. When crews showed up Monday morning, they found water running everywhere. Up to six inches of water was on the floor in the gym and all the sheet rock that was just installed was destroyed. Work had to be halted while the water cleared out, says foreman Ken Gorver.

Ken Grover: “Well, we couldn’t do anything for a while because of the electrical inside. You didn’t want to walk in the water and get shocked, it was that deep in there. Running out the doors, covered all the floors like a waterfall inside, running across the parking lot.”

The sheriff’s office believes it’s juveniles committing the crimes but so far, they have not been able to identify who they are. Other vandalism crimes at the construction site include theft, spray painting and small fires inside the church.