Higgs v. Bole (Ex parte Bole)

• Citation: 103 So.3d 40
• Decision Date: 31 August 2012
• Docket Number: 1110868 and 1110892.
• Court: Supreme Court of Alabama
• Parties: Ex parte Tom BOLE. (In re Lawton Higgs, Sr. v. Tom Bole). Ex parte Reverend Ron Schultz. (In re Lawton Higgs, Sr. v. Tom Bole).

103 So.3d 40

Ex parte Tom BOLE.

(In re Lawton Higgs, Sr.

v.Tom Bole).

Ex parte Reverend Ron Schultz.

(In re Lawton Higgs, Sr.

v.Tom Bole).

1110868 and 1110892.

Supreme Court of Alabama.

Aug. 31, 2012.

John R. Lavette of Morris & Lavette, PC, Birmingham, for petitioner Tom Bole.

Terry McElheny of Dominick Feld Hyde, P.C., Birmingham, for petitioner Reverend Ron Schultz.

Donald W. Stewart and John E. Lawes of Stewart & Stewart, P.C., Bessemer, for respondent.

WISE, Justice.

Lawton Higgs, Sr., formerly a pastor and pastor emeritus at the Church of the Reconciler (“COR”), a United Methodist church, brought an action in the Jefferson Circuit Court against Tom Bole, a lay member of COR, alleging defamation, invasion of privacy, and intentional infliction of emotional distress. During the proceedings, Higgs filed a civil subpoena requesting the production of certain documents from Reverend Ron Schultz, the district supervisor of the South Central District of the North Alabama Conference of the United Methodist Church (“the Conference”). Reverend Schultz filed a verified objection to and a motion to quash the civil subpoena based on First Amendment concerns. Subsequently, Bole filed a motion to dismiss the claims against him, alleging that the trial court did not have subject-matter jurisdiction over the claims based on the First and Fourteenth Amendments to the United States Constitution; the trial court denied Bole's motion. The trial court later entered an order in which it granted in part and denied in part Reverend Schultz's motion to quash. In case no. 1110868, Bole petitioned for a writ of mandamus requesting that this Court dismiss Higgs's claims against him. In case no. 1110892, Reverend Schultz petitioned for a writ of mandamus asking this Court to quash the subpoena in its entirety on the basis that the records subpoenaed by Higgs were privileged, ecclesiastical records of the United Methodist Church. We grant the petition in case no. 1110868 and dismiss the petition in case no. 1110892.

Factual Background and Procedural History

Higgs served as the pastor of COR from 1993 until he retired in 2005. After he retired, Higgs continued to serve in the capacity of pastor emeritus and as a full-time volunteer at COR. His responsibilities as pastor emeritus were “[t]o be present, to give spiritual leadership and create an environment of hope and care for the participants there, particularly during the day program.” (Higgs's deposition, at p. 14.) He also testified that he was the president of the Board of the Reconciler Development, Inc. (“RDI”), a nonprofit corporation committed to providing resources for the homeless and to raising funds to help support the operating budget of COR. Higgs's son, Kevin Higgs (“Kevin”), was a senior minister at COR.

In his affidavit, Bole stated that he had served in COR's ministry to the homeless, had served on COR's financial committee, had served on COR's personnel board, and had served as COR's banquet and auction chair. Bole stated that the pastor and board of COR had asked him “to undertake to organize its financial records” and that he “undertook to do so.” He also stated that in early 2011 Reverend Schultz asked him “to report to him on matters concerning the financial affairs and governance at COR.” On March 18, 2011, Bole wrote a letter to Reverend Schultz, stating:

“I currently serve on the Personnel Board and Finance Committee of COR. I have served the church for the past four years. During the past two years, I have attempted to introduce some changes regarding financial accountability and transparency. Having been a business owner of more than one business, I felt as though this was necessary in order for us to gain more financial support from the business community and from grant opportunities.

“During this period, though we have made progress, I have witnessed several accounting irregularities and a resistance to complete accountability and transparency. Examples include not being able to locate and track donations for specific projects. On 10/13/08, Reverend Lawton Higgs wrote a letter of gratitude to W.T. Ratliff [sic] of Collateral Mortgage for a $50,000 pledge for the construction of a shower and laundry facility. I have asked both Lawton and Kevin [Higgs] if this money was received and if so, what happened to it. Neither one can give me a definitive answer. Because at that time there were no meaningful accounting records, I have not been able to trace the funds. I suspect they were deposited in the account of Reconciler Development, a company for which no records have ever been made available. Collateral Mortgage is now out of business and Mr. Ratcliff [sic] has had all of his numbers disconnected.

“There has also been cash missing from the offering before it could be counted and deposited.

“In July of 2008, we received a $5,000 grant from Jefferson County for these same facilities. This was a non-pass-through grant[;] however, the money was comingled [sic] with the operating account. We had until 9/30/09 to render an accounting of the expenditures. This has not been done.

“The church received a $10,000 check from Mary Butterworth, also earmarked for the showers and laundry. These funds were also comingled with general operating funds and were never accounted for.

“The church received a $15,000 check from Crumly Chapel UMC and a $5,000 check from independent Presbyterian Church which were also comingled and unaccounted for.

“To my knowledge, there are no funds reserved for this project and it is clear that they were used to supplement operating expenses. Each time I try to create a trail for the flow of these funds, I am met with poor memories.

“There are other examples of this sort of financial management[;] however, I would like to turn your attention to another disturbing matter. Many members and visitors, including myself, have complained about the political rhetoric that occurs during the Sunday sermon. Rather than preaching the Gospel, much of the sermon is either praising liberal politicians or deaminizing [sic] conservative ones. In fact, when Holy Scripture is read, names and places are replaced with political figures and cities with which they do not agree. Birmingham City officials are called out and blamed for the plight of the homeless. They are also confronted in public demonstrations and interviews. Personal responsibility is rarely addressed. Many homeless people sleep during the service and some come in high on alcohol or drugs.

“In addition, many instances of sexual acts and the selling of drugs on church grounds and inside the building take place. The Higgs[es] refuse to hold these people accountable nor are we allowed to call the police. This behavior not only defiles God's house but it is disturbing to volunteers and visitors, especially to the number of young people who are there.

“Lastly, there are a number of homeless veterans and several veterans who volunteer at the church, including myself and a very prolific financial supporter. Kevin has made it clear that he sees our government and our military as imperialist[ ] war mongers. I see this as a very divisive attitude.

“In closing, while I do not know what the answer is, I do know that there will soon be a mass volunteer exodus if changes are not made.”

Subsequently, Reverend Schultz sent a letter dated March 31, 2011, to Higgs. That letter stated, in pertinent part:

“This letter is to inform you in writing that an investigation is being conducted at Church of the Reconciler regarding recent allegations made in reference to yourself as Pastor Emeritus and the current Senior Minister. You are asked to remove yourself from activities at Reconciler until you are informed that the investigation has been completed.”

The Conference issued a “Resolution of Complaint” (“the resolution”) dated May 23, 2011. The resolution stated, in pertinent part:

“It is normal procedure to suspend clergy while investigations are conducted. In this case however, in lieu of suspension, the Cabinet directed the Reverends Higgs[es] to step away from the ministry and take an extended vacation while the investigation was conducted. This was done so that Rev. Kevin Higgs' medical insurance coverage and pension would remain intact.

“ Findings

“The Bishop and Cabinet find the financial records of [COR] to be in shambles. The only clear and accurate financial statement that can be produced for this ministry is for the year 2010. There is evidence of carrying large credit debt on high interest credit cards, missing payments and incurring penalties, paying minimum payments and thus increasing the debt through high interest charges. There is also evidence that Rev. Higgs Sr. (Retired) overstepped his authority and directed [COR] funds to be used to pay debts incurred by a 501.3c [sic] entity established by Rev. Higgs Sr. to address housing needs of the homeless community. There is also evidence that on one occasion grant money was used by [COR] for needs other than those specified in the Grant.

“....

“We find no evidence indicating a need to pursue formal charges against these ministers.

“ Resolution

“The Complaint against Rev. Kevin Higgs and Rev. Lawton Higgs Sr. is hereby dismissed.”

On May 26, 2011, Reverend Schultz sent out an e-mail to several different recipients. The subject line of the e-mail was “Church of the Reconciler update.” In the e-mail, Schultz stated:

“Thank you for your patience over the last several weeks as the Disciplinary process has been followed regarding the complaints filed against Kevin and Lawton Higgs.

“I am pleased to share with you that the Bishop and Cabinet are satisfied that a just resolution has been reached and that no evidence has been found that would lead to judicial charges.

“Therefore the complaint is dismissed and Kevin remains a minister in good standing with the North Alabama Conference and Lawton remains in good standing in his retired relationship.

“....

“As we...