The Church of the Sword v. Town of Westmoreland

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0250, The Church of the Sword v. Town
of Westmoreland, the court on December 14, 2015, issued the
following order:

Having considered the parties’ briefs and oral arguments, the court
concludes that a formal written opinion is unnecessary in this case.

The plaintiff, The Church of the Sword, appeals an order of the Superior
Court (Kissinger, J.) granting the defendant, the Town of Westmoreland (Town),
summary judgment. In April 2014, the plaintiff applied for a property tax
exemption under RSA 72:23, III (2012), claiming that its real estate in
Westmoreland was a parsonage. The Town denied the exemption, the plaintiff
appealed to superior court pursuant to RSA 72:34-a (2012), and the Town
moved for summary judgment, which the court granted. On appeal, the
plaintiff challenges the court’s order on a number of procedural, statutory, and
State and Federal constitutional grounds. We affirm.

The following facts are derived from the record. The plaintiff is a
nonprofit organization incorporated in New Hampshire as a church; it states
that its members believe in “life-long learning, self-ownership, . . . independent
thought,” and Part I, Article X of the New Hampshire Constitution (Right of
Revolution). The plaintiff conducts weekly “services,” which consist of
“[c]onfrontation . . . with swords, [a]nnouncements of members in hospital or
otherwise afflicted, [c]ommunion, [r]eadings and [m]onologues, [i]nstrumentals,
the [o]ffertory, and pie.” The plaintiff’s foundational works include The Book of
Five Rings by Miyamoto Musashi, The Tao de Ching by Lao Tsu, The Art of War
by Sun Tzu, and a work by Max Stirner. To become a “pastor” of the plaintiff,
one must, among other things, run a service, organize an “approved event,”
and win six of ten sword “bouts.”

“When reviewing a trial court’s grant of summary judgment, we consider
the affidavits and other evidence, and inferences properly drawn from them, in
the light most favorable to the non-moving party.” Sabinson v. Trustees of
Dartmouth College, 160 N.H. 452, 455 (2010). “If this review does not reveal
any genuine issues of material fact, i.e., facts that would affect the outcome of
the litigation, and if the moving party is entitled to judgment as a matter of law,
we will affirm.” Id.

The plaintiff’s principal argument is that the trial court misapplied RSA
72:23, III in granting the Town’s motion for summary judgment. The plaintiff
also argues that the trial court impermissibly considered its “doctrines,”
“primary mission,” and “weekly services” individually as secular activities.
According to the plaintiff, the court should have found those activities, taken
as a whole, to be religious activities. Finally, the plaintiff proposes that we
adopt a multifactor test similar to the Internal Revenue Service’s (IRS)
guidelines for determining “whether an organization is considered a church for
federal tax purposes” as the metric for determining whether that organization’s
real estate is exempt from New Hampshire property taxes. We reject each of
these arguments.

RSA 72:23, III exempts many types of religious properties from taxation,
including:

[h]ouses of public worship, parish houses, church parsonages
occupied by their pastors, convents, monasteries, buildings and
the lands appertaining to them owned, used and occupied directly
for religious training or for other religious purposes by any
regularly recognized and constituted denomination, creed or sect,
organized, incorporated or legally doing business in this state and
the personal property used by them for the purposes for which
they are established.

RSA 72:23, III. RSA 72:23-m places the burden of proof on the organization
that is seeking the tax exemption to show that it meets the exemption’s
requirements. RSA 72:23-m (2012).

In most of our decisions concerning RSA 72:23, III, there has been no
dispute as to the religious nature of the organizations that have claimed the
exemption. Rather, the organizations in those cases objected to how the local
government apportioned the tax-exempt and nontax-exempt areas of their
properties. See Appeal of Liberty Assembly of God, 163 N.H. 622, 624 (2012)
(affirming an order of the Board of Tax and Land Appeals that only sixty
percent of a religious organization’s property was used for religious purposes
and was therefore tax-exempt); Appeal of Emissaries of Divine Light, 140 N.H.
552, 554 (1995). In one case, however, we affirmed the outright denial of a
religious property tax exemption. See Haas v. Town of Ashland, 122 N.H. 865,
865 (1982) (affirming the denial of an exemption to a “church” whose stated
purpose was to “search for the holy grail and other treasures”).

Using Haas as a guide, the trial court determined that the plaintiff simply
had not met its burden of showing that it qualified for an exemption under RSA
72:23, III. The court stated that, like the plaintiff in Haas, the plaintiff here
“does not fall into the grey area of what might be considered a ‘church’ or
‘religious’ under the plain and ordinary meaning of” the statute. The court
explained that, to qualify for the exemption, “an organization must do more
than simply have a set of beliefs about something and apply traditionally

2
religious vocabulary to its practices.” We agree, and therefore decline the
plaintiff’s invitation to establish expanded parameters for the definition of
“religion.” Contrary to the plaintiff’s assertion, the trial court did not engage in
impermissible evaluation of the merits of the plaintiff’s beliefs and practices.
Rather, the court concluded that the plaintiff had failed to show that it had not
merely assigned religious nomenclature to its beliefs and practices. Based
upon our review of the record and the parties’ arguments, we find no error in
the trial court’s ruling.

The plaintiff cites Emissaries of Divine Light in support of its position
that we should overturn the trial court’s grant of summary judgment to the
Town. In that case, we upheld the constitutionality of RSA 72:23, III because it
did not “establish or advance religion, but rather [it] foster[ed] beneficial and
stabilizing influences in community life.” Emissaries of Divine Light, 140 N.H.
at 558 (quotation omitted). Pointing to this language, the plaintiff asserts that
any organization, including itself, that “foster[s] beneficial and stabilizing
influences in community life [is] religious,” and therefore exempt from paying
property taxes. In so arguing, the plaintiff misapplies our ruling. Not every
organization that has a beneficial influence on the community is necessarily a
religious organization that is entitled under the statute to a property tax
exemption.

Given our narrow ruling in this case, we need not address the plaintiff’s
argument that we should adopt a multifactor test similar to the IRS’s
guidelines as the standard for whether an organization is a religious
organization exempt from paying New Hampshire property taxes. We note,
however, that we have held that the IRS’s interpretation of the tax code is not
authoritative with respect to tax exemption for educational institutions under
RSA 72:23. See New Canaan Academy v. Town of Canaan, 122 N.H. 134, 138
(1982).

Neither need we address the plaintiff’s federal and state constitutional
arguments asserting “excessive governmental entanglement” with religion.
Because the trial court conducted no impermissible evaluation of the merits of
the plaintiff’s beliefs and practices, “excessive entanglement” is not implicated.

The plaintiff argues that genuine issues of material fact precluded the
trial court from granting the Town’s motion for summary judgment. In its
brief, the plaintiff asserts that one of these issues is the determination of
“whether the Church of the Sword[,] as a new religious organization[,] should
be held to the same standard only an established church can satisfy.”
Another, according to the plaintiff, is the determination of the definition of
“church” or “religious” for purposes of statutory tax exemption. Contrary to the
plaintiff’s assertion, however, these are questions of law, the resolution of
which was unnecessary to the trial court’s ruling.

3
 Finally, the plaintiff contends that the trial court should not have
granted summary judgment prior to the completion of discovery. We disagree.
“A party against whom a claim, counterclaim, or crossclaim is asserted . . .
may, at any time, move for a summary judgment . . . .” RSA 491:8-a, I (2010).
Here, the Town moved for summary judgment after it received the plaintiff’s
answers to the interrogatories, and the plaintiff objected. In its objection, the
plaintiff had the opportunity to explain why additional discovery was
necessary, but it failed to do so. Further, as the Town represented at oral
argument and the plaintiff did not deny, the plaintiff made no effort to engage
in its own discovery prior to the filing of the Town’s summary judgment motion,
or the trial court’s ruling on that motion. Thus, the plaintiff’s discovery
argument fails.

We have reviewed the plaintiff’s remaining arguments and conclude that
they warrant no further discussion or are insufficiently developed for our
review. See Vogel v. Vogel, 137 N.H. 321, 322 (1993); Sabinson, 160 N.H. at
459 (declining to address arguments that are insufficiently developed for
appellate review). Because we find no error in the trial court’s conclusion that
the plaintiff failed to meet its burden of proving that its property is a tax-
exempt parsonage under RSA 72:23, III, we affirm.

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY, LYNN, and BASSETT, JJ.,
concurred.

Eileen Fox,
Clerk

4