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Civil Practice – Subject Matter Jurisdiction – One Superior Court Judge Overruling Another – Tort/Negligence – Defamation – Constitutional – First Amendment

Civil Practice – Subject Matter Jurisdiction – One Superior Court Judge Overruling Another – Tort/Negligence – Defamation – Constitutional – First Amendment

Lippard v. Holleman (Lawyers Weekly No. 012-080-17, 16 pp.) (Robert Hunter Jr., J.) Appealed from Iredell County Superior Court (Martin McGee, J.) N.C. App. Unpub.

Holding: In a defamation case arising from a pastor’s words from his pulpit, one superior court judge had already denied a motion to dismiss for lack of subject matter jurisdiction, and there had been no change in circumstances; therefore, a second superior court judge had no authority to grant a second motion to dismiss for lack of subject matter jurisdiction.

We vacate the trial court’s order dismissing plaintiffs’ defamation claim.

In an unappealed order, Judge Anna Mills Wagoner denied defendants’ motion to dismiss for lack of subject matter jurisdiction. Two years later, Judge Martin McGee granted defendants’ motion to dismiss, holding the issue of subject matter jurisdiction was an exception to the general rule against one superior court judge overruling another. Judge McGee held “All of the alleged defamatory statements involve internal communication between leaders of the church and church members regarding matters of church governance, leadership, and membership.”

Plaintiffs appeal Judge McGee’s order.

No appeal lies from one superior court judge to another. Calloway v. Ford Motor Co., 281 N.C. 496, 189 S.E.2d 484 (1972). Absent a showing of changed circumstances, a superior court judge may only overrule an earlier order if the first judge’s order was either void or voidable. An order is void ab initio only when it is issued by a court that does not have jurisdiction.

We note that Judge McGee erroneously found the issue of subject matter jurisdiction is itself an independent exception to the Calloway rule. The denial of a motion to dismiss for lack of subject matter jurisdiction is usually an unreviewable interlocutory order.

However, our Supreme Court has held that there is appellate jurisdiction over a trial court’s order denying a motion to dismiss brought by a religious entity seeking to invoke the First Amendment’s prohibition against civil encroachment in ecclesiastical matters. Harris v. Matthews, 361 N.C. 265, 643 S.E.2d 566 (2007). The “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” and thus affects a substantial right. Id. Therefore, rather than asking one superior court judge to countermand one of his colleagues, defendants were free to seek appellate review of Judge Wagoner’s order.

Given to the established bases for overruling an existing order, Judge Wagoner’s order was not vulnerable to attack. First, as established above, while the order was interlocutory, it was subject to appellate review. Second, Judge Wagoner’s order was not discretionary. Our courts have previously applied the exception to the Calloway rule to purely discretionary rulings, such as class certification, motions to amend, and motions to seal documents in a domestic case.

Here, the issue of jurisdiction is basically one of law. Because Judge Wagoner’s order decided a question of law, her decision was not discretionary, and falls outside the scope of the narrow exception to the Calloway rule.

Finally, defendants failed to carry their burden of showing changed circumstances. At no point during the hearing before Judge McGee did defendants show that plaintiffs’ voluntary dismissal of their claims against the church or plaintiffs’ loss of counsel prior to the first hearing had any effect on the case following entry of Judge Wagoner’s order. Similarly, although defendants referenced the dismissal of identical claims in another lawsuit, the trial court’s order in that case, refusing to rule on matters in the instant case precisely because Judge Wagoner had already ruled on the issue, cannot possibly create changed circumstances sufficient to overturn Judge Wagoner’s ruling.

In order to show Judge Wagoner’s order was not void ab initio, and because the trial court may need further guidance on the issue of First Amendment applications in subsequently resolving this issue, we will briefly discuss the subject matter jurisdiction issue.

Although courts have no jurisdiction over ecclesiastical questions, they may adjudicate a case involving a religious organization if the dispute may be settled by application of neutral principles of law that are equally applied in all such disputes.

Our courts have not yet considered whether a statement issued by a religious leader or made from the pulpit creates an actionable defamation claim capable of adjudication under neutral principles of tort law. However, several federal courts and out-of-state courts have confronted this question and concluded the First Amendment does not create a categorical bar to such defamation claims.

Rather, the court must review the specific elements of the plaintiff’s claim and determine whether and to what extent the dispute is founded on doctrinal matters. If such consideration reveals a purely secular dispute between third parties and a particular defendant, albeit a religiously affiliated organization, the First Amendment will not bar jurisdiction. If the court would have to determine the truth of the defendants’ statements and, in doing so, would examine and weigh competing views of church doctrine, the result is entanglement in a matter of ecclesiastical concern that is barred by the First Amendment.

This line between an ecclesiastical and a secular dispute can be difficult to discern, and requires an intensive inquiry into the relevant facts and applicable laws. Defamation and religious questions are legally contextual. Libel may sometimes cloak itself in religious terminology, but that would not prevent civil adjudication of a claim.

We need not decide at this stage of the pleadings whether defendants’ statements regarding the plaintiffs are justiciable because we hold that some of the statements can be read contextually as libel per se. For example, the defendant-minister’s accusation of criminal conduct can be construed as libel per se against plaintiff Barry Lippard. Thus, we conclude Judge Wagoner’s order was not void ab initio.

The complaint contains sufficient facts to state a claim for defamation which is outside the ecclesiastical boundary line of the First Amendment. The trial court can revisit this issue of whether or not the ecclesiastical boundary line is violated if and when the parties come forward with a forecast of evidence to support a motion for summary judgment.

Vacated and remanded.

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