Litigation Historically in Mormon Courts

I have interviewed lawyers about dispute resolution in several religious traditions. These systems, applying Catholic, Jewish, and Muslim practices, are still in use today. But I recently had the amazing opportunity to learn about a system of dispute resolution in the Church of Jesus Christ of Latter Day Saints that rose in the Nineteenth Century and fell in the Twentieth. Nathan Oman, the Rita Anne Rollins professor of law at the William and Mary Law School in Williamsburg, Virginia, wrote a fascinating article on the subject, and was kind enough to speak with me, too.

Why should you continue reading this post about litigation in Mormon courts?

• You are interested in how a distinct group sharing close bonds but facing numerous hardships resolved its disputes outside of the government system.

• You are interested in a fascinating part of American pioneer history.

• You’ve read some of my shorter posts and are ready for a longer one.

Nathan Oman is the Rita Anne Rollins professor of law at the William and Mary Law School in Williamsburg, Virginia.

When did the Mormon court system arise?  
The Church of Jesus Christ of Latter Day Saints formally organized in 1830.  At the time, the dominant religious organizations in the United States were Protestant churches.  And it was very common in Protestantism at the time for churches to have an internal disciplinary system.  Those systems were set up to punish misbehavior by using expulsion from the church as a penalty.  So when the LDS church was organized, the church took it as axiomatic that it should have a disciplinary structure.  

That structure was used almost immediately for commercial disputes.  There is evidence that, within 18-24 months of the founding of the church, the church was mediating contract disputes at church conferences.  The church appointed committees to handle contract disputes, preferring mediation over adjudicating a winner or a loser.  Ultimately, the goal was to get the two parties to agree with each other.

Over the next ten to fifteen years, the church developed a much more complicated and court-like system of adjudication. By 1844, the church had a three-tiered judiciary.  In the first instance, there were small local courts, called Bishop’s Courts.  Above them was a High Council.  And at the apex is the First Presidency, which was the final appellate authority in the church.

I cite 1844 as the date when this system is in place since that is when the founder of the church, Joseph Smith, is murdered.  At that time, the center of the church is in Nauvoo, Illinois.

How did the Mormon system co-exist with the system of state-run courts?
By 1840, the LDS church developed a rule that one member, or latter day saint, could not sue another in a secular court.  The church considered that to be religious misconduct, citing the Epistle of Paul, which urged followers not to not air dirty laundry in front of non-believers.

Following this rule, if a church member sued another in secular court, the defendant could submit the case to the Bishop’s Court, and the Bishop’s Court could just say that it had jurisdiction over the dispute and threaten to expel the plaintiff from the church if it did not proceed in that court.

Although church members were supposed to sue in church court, there were times where they could use secular courts and get away with it.

Still, the church courts were very busy.  In the early 1840s, Mormons were subject to chronic mob violence and they decided to go out west.  By 1847, they settled in Utah, Southern Idaho, Nevada, and Arizona.  They were isolated and far from the center of the federal government.  Although there was a territorial government, where they were, ecclesiastical institutions were more vibrant and powerful.  Therefore, the Church court system was the dominant way to resolve disputes in pioneer Utah throughout the 19th century.

How did the Mormon courts issue enforceable judgments?
The possible discipline the court could impose could be either suspension or expulsion from the church, which has social implications.

The first problem the church courts had was that the only remedy they had to enforce judgments was to kick people out of the church.  They could not quiet title to land or place a lien on someone’s property.

How did the Mormon system of commercial dispute resolution decline?
The norm that latter day saints did not sue each other in secular courts fell by the wayside.  By the 1890s, the church often did not get upset if a member sued in secular court.  

Church leadership also reduced the scope of the disputes they resolved.  At one point, leadership told courts not to take disputes over corporations or land, which was 75% of all litigation.  Even then, however, the church retained the notion in theory that its courts were available to resolve disputes between members and, informally, they continued to do that until the first quarter of the twentieth century.  By then, however, church courts did not really handle most disputes besides water disputes.

And at some point after that, the church issued a hard rule not to use the church for civil disputes, but by then no one was doing so. When it issued that rule, the church hierarchy did not want to resolve commercial disputes anymore.  While it had originally set out to create love and brotherhood, resolving disputes actually created conflict.

Does the Mormon court system still exist today?
The three tier system continues to exist, but it is not really used to resolve civil disputes.  It is mostly used to just discipline church members for personal or sexual misconduct.

You have written about a time in which there was less of a fixed difference between the religious and state civil dispute systems.  How were those mixed before in a way that they are not now?
There have always been religious courts in the Christian tradition.  This dates back to the Letters of Paul in the New Testament, showing how the early church resolved disputes between members.

Ecclesiastical courts were just part of the legal system in England, up through the first half of the 19th century.  Under English law, they had jurisdiction over family law disputes and matters of inheritance.

These courts did not come to the United States.  This is because the Church of England was sharply disfavored in New England, and elites in Virginia that did belong to the church wanted a weak church.   And so, in the United States, religious traditions came out of the reform tradition in Protestantism (following Calvinists, like Presbyterians, Puritans, and Congregationalists) that said the church should discipline its members (they criticized Catholics as too lax) and that institutional machinery exists to hear disputes including civil disputes.

What Mormons did was just like other Protestants did, but they held on to that tradition for longer than other churches. Religious arbitration was very common all over America in the 18th and the first part of the 19th century, at least among Protestants.  It becomes less and less common to take these disputes before churches since they become less interested in discipline in general for complicated reasons.  I know from my historical research that Baptist churches were very involved in disciplining members, but lately much less so.

What do we know about the procedures in nineteenth century Mormon court disputes?
The procedures were pretty informal.  There was no procedural code. These disputes were often in small communities, and often the resolution process accounted for the personalities of the people involved.

When a more formal process was followed, there would be a trial with witnesses.  A bishop and two councilors would hear the case.  The councillors give thoughts to the bishop, who is supposed to consider it but ultimately decide himself, although there was a preference for consensus.  There would also be a clerk there to prepare written minutes and records.

The two councilors are permanent councillors; they are not just appointed for a particular trial.  They are like assistant pastors who help do all the sort of things bishops do.  They are not like special judicial officers, and they are the same two people for all of the work the bishop does.

How did a dispute start in the Mormon system?
Disputes began by notifying a bishop.  A bishop is like the pastor of the local congregation.  A plaintiff would write a complaint on a  piece of paper and deliver it to the bishop.  It would say something like, “Bishop I accuse Brother Smith of unchristianlike conduct,” and then set forth a brief description.  The plaintiff filed the paper with the bishop and a clerk, who issued a summons to the defendant.  The summons stated the defendant needed to come to trial on a specific date or be held in contempt of the priesthood and be subject to church discipline.

For big cases, a plaintiff might have filed directly with the High Council instead of the bishop.  Proceedings with the High Council were presided over by the State President and followed a similar procedure.

Did defendants file written answers?
Sometimes defendants made a written response, but sometimes they just showed up and orally made their response.

Image credit: https://en.wikipedia.org/wiki/The_Church_of_Jesus_Christ_of_Latter-day_Saints#/media/File:Salt_Lake_Temple,_Utah_-_Sept_2004-2.jpg

Were trials public?
Trials were public sometimes, and sometimes not.  In the nineteenth century, the trials tended to be very public, as the confession of sins was also very public. Later on, trials became private.  The church got rid of public confession, becoming more like Catholic private confessionals, and adopted strict confidentiality rules.

Were there written opinions?
The courts may issue an opinion, but not always in writing.  We still have some of these written decisions.

Nearly all of the court records are in Salt Lake City and have become confidential, so today the main repository is not open to researchers.   While that makes this subject hard to research, I understand why they are secret.  These records are like a priest’s records of a confessional.

I was able to get permission from church historians to access these nineteenth century court records, but they are not generally available to court researchers. Still, there are other places to get court records, and enough are available to see how these courts functioned.

Were there pre-trial motions?  
There was nothing that formal.  It was a very ad hoc system, procedurally.

In 1830s-1840s, the system was mostly dealing with small time contract snd real estate disputes, debt collection, and other simple issues. By the end of the 1800s, the church was asked to decide more complex issues, like whether a bank violated fiduciary duties or whether it could foreclose on a mortgage.

In complex cases, the church would go to its own general counsel, who was a secular lawyer, to get legal advice on how to rule.

So there were no motions, but there were cases where, at the highest levels, the church sought legal advice, like a special master’s report. The church didn’t like being in that position, though.

Was there discovery?
The church could command members to come and testify, which is like a subpoena. But there was nothing like discovery for documents. The cases were mostly debt collection actions, so often the facts were really simple and did not need a lot of discovery.

What law governed?  What legal authorities were cited?
Mormon courts did not really cite law.  Instead, they cited to sources on an ad hoc basis.  There was no strong sense that there is law in the sense of a system of stable rules used to decide cases.  Instead, Mormon bishops tried to resolve disputes in ways that maintain peace and unity of the community, which they viewed as more important than any particular rule.  They often split the difference between people.  When they did cite rules, there was no consistent effort to build a body of jurisprudence; it was more window dressing.

The Mormon Church has a notion of personal revelation: you pray to God and he will send answers.  So Bishops’ Courts would hear evidence and then deliberate, but beforehand, the bishop and councillors would pray and ask God to send His spirit to tell them how to decide.  This reliance on a message from God mitigates against a system of rules.  

There were a few areas where the church did create pretty clear and consistent rules because it had to.  The church did this on water rights because its members often lived in agricultural communities in an arid environment.  Irrigations systems were communally created under the direction of the church, and so local bishops directed people to build the systems.  In using these system, community members had water rights, reflecting the amount of time when they get to use water from ditches to irrigate their fields.  There were similar rules for land rights, since when Mormons arrived in the Great Basin, the were just squatters without legal rights to land and relied on grants by church leaders.  These grants had no legal validity under U.S. law, which issued its own grants under statutes like the Homestead Act.  The Mormon church therefore had rules on how to resolve competing claims to land.

Generally speaking, how long did it take for a case to go from complaint to judgment? 
Very fast.  Cases could be decided in a week, which was one of the system’s appeals.  

How did appeals work?
Litigants could appeal a decision, and that happened a lot.  You could go through the whole appellate system as of right, and in all cases.  Appeals were tried de novo on appeal.  The appellate tribunals did not defer to lower courts as a rule, but there was a norm of deference.

People running the tribunal had a lot of flexibility, but there was always someone above them, so if the lower courts were seen as abusing discretion or following a wrong policy, someone could come down and direct otherwise.

Mormons started out like Methodists, but its three nested layers of courts was unique to its church.

In the twentieth century, the church started creating handbooks on deciding cases.  The system became more formal and like a secular court in the period in which it ceased to really be resolving civil disputes.

Were their lawyers?  

It was very rare, but it occasionally happened that lawyers appeared. Often, a local LDS lawyer would represent a non-Mormon when suing a local Mormon. But you didn’t need one, which was a benefit to the system.

Do you believe that the Mormon traditions for dispute resolution had a particular strength for resolving commercial disputes? 
It aimed to achieve substantial justice.  And it was cheap and fast.  The church court was not just for the rich.  It was widely available and used by people of modest means to resolve small disputes.  And poorer people could win against wealthier people, with no ability for lawyers to wear others down.

It had credibility since the territorial government’s system was seen as a corrupt product of the spoils system that attracted the bottom of the barrel of political appointees who were willing to relocate to the wilderness.

How about a weakness? 
The system sometimes bothered people because it seemed arbitrary, which is why the church got out of the business.

It also promoted a very litigious culture.  Church clerks recorded what people and bishops were saying in proceeding.  And while the quality of minutes varies widely, a reader gets the sense the bishops were sometimes exasperated with people.

One may say, “Please stop coming here to bother us with your cow disputes,” or “Honestly, this is a dispute over $15; why can’t you resolve this among yourselves?”

Because it was so easy to go to a Bishops’ Court, the church set up a norm of asking litigants if they tried to resolve disputes among themselves.