Decker ex rel. Decker v. Tschetter Hutterian Brethren, Inc.

• Citation: 1999 SD 62,594 N.W.2d 357
• Decision Date: 26 May 1999
• Docket Number: No. 20612,20612
• Parties: Mike DECKER, Anna Decker, Amos Decker, John Hofer, Lydia Hofer, Lydia Hofer, Ronald Hofer, Reinhart Hofer, Samuel Hofer, David Decker, Dorothy Decker; and Susanne Decker, David Decker, Jr., Daniel Decker, Elisabeth Decker, and Milinda Decker, minor children, By and Through their Guardian Ad Litem David DECKER; Jerry Decker, Betty Decker; and Julia Decker, a minor child, by and through her Guardian Ad Litem, Jerry Decker, Plaintiffs and Appellants, v. TSCHETTER HUTTERIAN BRETHREN, INC., and all Directors, Officers, Shareholders thereof who are not plaintiffs, Bur Oaks Hutterian Brethren, Inc., and all Directors, Officers, and Shareholders thereof who are not plaintiffs, Samuel Hofer, Aaron Hofer, Herman Decker, Jacob Hofer, George Hofer, Andrew Hofer, Jacob Jr. Hofer, Andy Hofer, Paul Hofer, David Hofer, Larry Decker, Richard Hofer, Jonathan Hofer, Sam Hofer, Jr., John Hofer, Jr., all in their individual capacity and in their capacity as Directors, Officers, and/or Shareholders of the above named corporations, together with all Jane Does who are married to the above named male defendants and who are residents of the colonies referenced above, together with all John Does and Jane Does who are children of the above named male defendants and who are residents of the colonies referenced above, Defendants and Appellees.
• Court: Supreme Court of South Dakota

Page 357

594 N.W.2d 357

1999 SD 62

Mike DECKER, Anna Decker, Amos Decker, John Hofer, Lydia Hofer, Lydia Hofer, Ronald Hofer, Reinhart Hofer, Samuel Hofer, David Decker, Dorothy Decker; and Susanne Decker David Decker, Jr., Daniel Decker, Elisabeth Decker, and Milinda Decker, minor children, By and Through their Guardian Ad Litem David DECKER; Jerry Decker, Betty Decker and Julia Decker, a minor child, by and through her Guardian Ad Litem, Jerry Decker, Plaintiffs and Appellants, v. TSCHETTER HUTTERIAN BRETHREN, INC., and all Directors Officers, Shareholders thereof who are not plaintiffs, Bur Oaks Hutterian Brethren, Inc., and all Directors, Officers and Shareholders thereof who are not plaintiffs, Samuel Hofer, Aaron Hofer, Herman Decker, Jacob Hofer, George Hofer, Andrew Hofer, Jacob Jr. Hofer, Andy Hofer, Paul Hofer, David Hofer, Larry Decker, Richard Hofer, Jonathan Hofer, Sam Hofer, Jr., John Hofer, Jr., all in their individual capacity and in their capacity as Directors, Officers, and/or Shareholders of the above named corporations, together with all Jane Does who are married to the above named male defendants and who are residents of the colonies referenced above, together with all John Does and Jane Does who are children of the above named male defendants and who are residents of the colonies referenced above, Defendants and Appellees.

No. 20612.

Supreme Court of South Dakota.

Argued Jan. 12, 1999.

Reassigned March 31, 1999.

Decided May 26, 1999.

Steven G. Haugaard and Wade D. Druin, Sioux Falls, for plaintiffs and appellants.

Jeffrey Sveen and Gregg Magera of Siegel, Barnett and Schutz, LLP, Aberdeen, for defendants and appellees.

GILBERTSON, Justice (on reassignment).

INTRODUCTION

¶1 This case calls for a determination by this Court as to whether the underlying dispute between the parties is secular, and thus appropriate for us to adjudicate, or whether it is religious and thus beyond the jurisdiction of the courts of the State of South Dakota.

FACTS

¶2 Here, as in Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 699, 96 S.Ct. 2372, 2376, 49 L.Ed.2d 151, 157 (1976) a case involving disputes of a religious nature, "[a] proper perspective on the relationship of these parties and the nature of this dispute requires some background discussion."

¶3 The Hutterite Religion traces its roots back to the time of the Reformation in Germany in the 1500's. It was founded by Jacob Hutter, its martyr, who is the source of the religion's name. Like others who have championed new religious ideas, Hutter ran afoul with the powers-at-be of his day and as a result he was burned at the stake in 1536. However, his beliefs survived him in the form of the Hutterite Church.

¶4 The Hutterite Church is a communal way of life and is based on the Book of Acts Chapter 2 ¹ and Chapter 4. ² For several centuries the Hutterites lived a communal agrarian lifestyle in several European countries. In the 1870's, religious persecution forced their relocation to the Midwestern United States and Canada. As a colony grew to approximately 100 to 150 members, rather than increase further, a spin-off colony would be created. Currently there are 63 colonies in North Dakota, South Dakota and Minnesota.

¶5 A colony is completely communal. The dining hall, church and school are communal. Members dress in similar clothing. The operation of the farming enterprises is also communal with the colony holding title to all real and personal property in the colony. Membership is voluntary but members are not permitted to own their own personal property. All individual labor and services are for the sole benefit of the colony and its church. To maintain this communal religious lifestyle, contact with the world outside the colony is limited only to what is regarded by colony leadership as necessary. ³ In return colony members are provided by the colony with all the necessities of life, including food, clothing, shelter and medical care from the cradle to the grave.

¶6 This litigation involves the Tschetter Hutterian Brethren Inc., and Bur Oaks Hutterian Brethren Inc., (hereinafter "the colony") which are nonprofit corporations organized under the laws of the State of South Dakota. An inspection of the Articles of Incorporation shows the operation of the economic enterprises of the colony is inseparable from its religious principles. ⁴ Membership in the colony is under the direction of the Board of Directors elected by a majority of voting members. ⁵ The By-Laws indicate the Board of Directors is guided by its religious faith and failure to follow the rules of the religion and colony can lead to expulsion from the colony and its church. ⁶

¶7 These colonies belong to the Schmiedleut Conference of the Church. Rev. Jacob Kleinsasser was Senior Elder or President of the Conference, which ordinarily is a lifetime appointment. This is a powerful position as the Senior Elder acts as the final arbiter or decision-maker regarding issues affecting the members of the Church and the colonies. In 1992 a book was published accusing Rev. Kleinsasser of improper financial dealings in regards to the Church and colonies. Based on these accusations a Conference meeting was held in December of 1992 which was attended by 173 ministers of the Hutterian Church. Ninety-five repudiated Rev. Kleinsasser's leadership as Senior Elder and opted to follow the leadership of Rev. Joseph Wipf. The remaining 78 ministers remained loyal to the leadership of Rev. Kleinsasser. Of the 63 colonies in the Dakotas and Minnesota, all but five repudiated the leadership of Rev. Kleinsasser.

¶8 The effect of this religious schism was felt throughout the colonies. Numerous colonies split into pro and anti Kleinsasser factions. This split occurred in the colonies involved in this litigation. Plaintiffs continue to follow Rev. Kleinsasser while the Defendants repudiated him and followed Rev. Wipf.

¶9 At the time of this schism the Tschetter Colony was under the religious leadership of Rev. Tom Decker. He remained loyal to Rev. Kleinsasser. The Plaintiffs in this action supported Rev. Decker and Rev. Kleinsasser. Rev. Decker refused to give Holy Communion, baptize or marry members of the colony who had repudiated Rev. Kleinsasser. Attempts at reconciliation between Rev. Decker and the majority of the colony were unsuccessful. In May of 1995, Rev. Decker resigned.

¶10 The majority of the colony who followed Rev. Wipf attempted to reconcile with the Plaintiffs. This proved unsuccessful. With tensions growing in the colony, Plaintiffs were given notice of a meeting to be held on March 27, 1995. The purpose of the meeting was to consider Plaintiffs' refusal to comply with the will of the majority of the colony residents concerning religious and colony matters. At that meeting the Plaintiffs were expelled by the majority from the colony and its church.

¶11 The Plaintiffs refused to recognize their expulsion by the majority. Rather than leaving the colony, most of the now excommunicated Plaintiffs chose to remain although refusing to participate in colony work and worship. Further attempts at reconciliation by the Defendants were unsuccessful. ⁷ The dispute festered and became further aggravated as time went on as the Hutterite religion does not recognize the use of secular courts to vindicate rights or eject non-members. Therefore, the majority Defendants were unable to convince and unwilling to force ⁸ these Plaintiffs to leave the colony. A review of affidavits from both sides to this litigation indicates the allegations in the complaint stem from the fact both factions still remain at the colony and dislike intensely the others' on-going presence. To encourage the Plaintiffs to vacate, the Defendants began shutting off utilities to the Plaintiffs' residences although only with advance notice. Plaintiff Mike Decker in his affidavit declared, "the Plaintiffs' family members have no desire to separate from the colony and have not separated from the Hutterite Church and its faith."

¶12 This litigation followed with the filing of the complaint by the Plaintiffs. It was one of a flurry of lawsuits instituted by Rev. Kleinsasser's followers in an attempt to retain control of the colonies split by the religious dispute. Although hardly a model of clarity, the lengthy complaint appears to allege tortious interference with a possessory interest and/or trespass to chattels, trespass, intentional infliction of emotional distress, negligent infliction of emotional distress, joint venture, oppression of corporate minority members, breach of fiduciary duty, implied trust and unjust enrichment. ⁹ All causes of action alleged by the Plaintiffs appear to have occurred in the colony or concern its control and the contents of its membership.

¶13 Plaintiffs apparently consist of every man, woman, child and baby in the Rev. Kleinsasser faction of the colony church. These Plaintiffs in their complaint sue every man, woman, child and baby who remain in the colony and its church who are also not members of the Plaintiffs' religious faction and thus are members of the Rev. Wipf faction. The only way for a church member to avoid being sued as a Defendant is to become a Plaintiff.

PROCEDURE

¶14 After both sides had filed pleadings, affidavits and documents, the trial court conducted a telephonic hearing on various matters. Although a more extensive hearing would have been preferable, the question is whether the trial court erred by determining this was in essence a religious dispute and was therefore justified in dismissing the lawsuit.

It is the rule in this state that jurisdiction must affirmatively appear from the record and this court is required sua sponte to take note of jurisdictional deficiencies, whether presented by the parties or not.... The test for determining jurisdiction is ordinarily the nature of the case, as made by the complaint, and the relief sought.

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