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3. Excluded Factual Evidence
The hearing judge excluded certain testimony that Three Angels
believes was directly relevant to its case in chief, as well
as evidence that supported its constitutional claims of equal
protection violation. Three Angels had obtained the testimony
of two experts regarding Seventh-day Adventist beliefs, Elder
Ted Wilson, a Seventh-day Adventist church administrator and
leader, and Dr. Denis Fortin, a theology professor. Three Angels
also had evidence, and sought more evidence that it was denied
by the court, regarding the content and treatment by the Department
of Revenue of Tri-State Christian TV, a non-Adventist Christian
[page 25]
television ministry, which showed that the Adventist station
was treated in a discriminatory fashion when compared with the
non-Adventist network. The excluded evidence was preserved through
offers of proof in the record, and this Court should consider
the affect the evidence would have had below. Should it not reverse
the hearing judge's decision in its entirety, it should give
Three Angels leave to complete its discovery on these constitutional
issues, and give it an opportunity to present the evidence to the hearing judge.
A. Elder Ted Wilson and Dr. Denis Fortin – Testimony
Regarding Religious Nature of Three Angels Programming.
Elder Ted Wilson and Dr. Denis Fortin were prepared to testify
to the religious nature of Three Angel's programming, but their
testimony was excluded by the judge. This erroneous exclusion
was compounded by the fact that a central part of the judge's
decision was the ruling that Three Angel's program was not religious.
Rather, she found that it consisted of topics related to 'health,
gardening, cooking, music programs ... family entertainment" and
"health and life style topics," along with religious programming.
RD par. 41, 50. She argued that Three Angels was "advocating
a way of life, but it is a lifestyle that applicant favors, not a religion." RD 31-32.
A finding that the content of Three Angels programming is
not religious is indeed fatal to its claim to be a religious
ministry. That is why it was clearly reversible error to exclude
the very witnesses that would have testified as to the nature
of Seventh-day Adventist religious beliefs and Biblical lifestyle
and how these were reflected in Three Angel's programming.
The judge refused to take testimony on the very point on which
Three Angel's case primarily hinged. The judge clearly saw the
link between the kind of programming created and aired by Three
Angels and whether it was fulfilling a religious purpose. "Leasing or otherwise
[page 26]
using property," she wrote, "to promote a lifestyle and to
market merchandise does not qualify as a use of property for
primarily religious purposes." RD 31-32. But the judge came to
the conclusion that the lifestyle promoted by Three Angels was
not religious without listening to the very witnesses and evidence
that Three Angels proffered to her on that very point.
Elder Ted Wilson, Vice President of the General Conference
of Seventh-day Adventists, is the subject of offer of proof number
four, found at "Offer of Proof Transcript" page 18-27. (Hereinafter
"OPT #".) Elder Wilson was on Three Angels witness list, and
was deposed by the Interveners during discovery. Three Angels
also took his video-taped testimony for use at the administrative
hearing, but this use was denied by the hearing judge.
On the witness list, the subject matter of Elder Wilson's
testimony was described as follows:
The role of Applicant [Three Angels] in the ministry of the
Seventh-day Adventist Church. He may also testify as an opinion
witness concerning whether all applicant's programming and other
activities are religious in the context of the Seventh-day Adventist
Church. He will testify that the programming and activities carry
out the theology and teachings of the Seventh-day Adventist Church
and are substantially similar to the General Conference of the
Seventh-day Church's related mass communication activities.
Elder Wilson was proffered as both an opinion witness and
a fact witness. He had visited the Three Angels' property on
a number of occasions, had knowledge of what it was used for,
and had extensive knowledge of Three Angels' programming content.
OPT 20-21. He also is a Vice-President for the Adventist Church,
and had particular oversight of the Church's media activities,
including television and radio ministries. OPT 19. The relevant
portions of Elder Wilson's debene esse deposition testimony ("Wilson
Test.") were submitted to the court below and are part of the
record herein. OPT 18.
[page 27]
In this testimony, Elder Wilson spoke to the religious nature
of Three Angels programming and the manner in which it furthered
the teachings of the Seventh-day Adventist church's message and
mission. He also testified regarding the formal agreement between
Three Angels and the Church, and the willingness of Three Angels
to air and advance the Church's religious programming. Wilson
Test. 118-120. He testified as to the Three Angels video catalog
and its wide promotion of programs by Church theologians, preachers
and other leaders. Id. At 143-144. He also testified as to the
regular worship service programs from Adventist churches aired
on Three Angels, including worship programs from churches in
Fort Worth, TX, Sacramento, CA, Battle Creek and Berrien Springs,
MI. Id. 147-48.
Elder Wilson also testified to his personal viewing of Three
Angels programming. Id. 130. He testified that "Three Angels
ABN covers every aspect of church doctrine and is very much involved
in showing all these aspects." Id. 128. He testified that Three
Angels programming was "very consistent with Seventh-day Adventist
theology and outreach . . . [and] is very much in line with what
the Seventh-day Adventist Church would believe . . ." Id.
Dr. Denis Fortin was the subject of offer of proof number
five. OPT 28. Dr. Fortin is a professor of theology at the Seventh-day
Adventist graduate Seminary at Andrews University in Michigan.
He has specific expertise in the history of Seventh-day Adventist
doctrine and religious teaching regarding health and lifestyle
standards. He was prepared to testify regarding the manner in
which Three Angel's health, nutrition and other lifestyle programming
promoted the doctrinal and religious views of the Adventist
[page 28]
church. OPT 28. Dr. Fortin's report regarding these issues
was submitted to the court as Exhibit No. 26.
Dr. Fortin had been disclosed to the other side during the
discovery period. The state and interveners had also been provided
with a copy of his report. They had chosen not to depose him.
Three Angels had planned to call him as a live witness at the
trial, but based on the state's and interveners pre-trail objections
and the court's adverse rulings, he was not permitted to testify.
B. Evidence as to Tri-State Christian TV Relating to Equal Protection Claims.
The Department's argument that it has never decided whether
or not a religious television station can be a tax-exempt ministry
would be more convincing if the Department had not already granted
such an exemption to a non-Adventist religious broadcast ministry
almost identical to Three Angels. Tri-State Christian TV (WTCT-TV)
is an Illinois not-for-profit organization that engages in religious
broadcasting, and which receives a property tax-exemption from
the State of Illinois. Evidence regarding this station and its
operations, as well as Three Angel's court-thwarted attempts
to obtain more information, was submitted as offer of proof number six. OPT 30.
Three Angels proffered evidence of Tri-State's tax exempt
status OPT 33, its broadcasting-related properties OPT 34, its
program topics and schedule, and its infomercials OPT 35. It
was noted that Tri-State produced and aired a number of health
and nutrition programs of the kind that the hearing officer below
had labeled as "lifestyle" and "not religion" when aired by Three
Angels. OPT 35. Offer of Proof number 7 was
[page 29]
an affidavit from Danny Shelton who had visited and witnessed
the activities at WTCT-TV. OPT 38-39.
All evidence regarding Tri-State was excluded by the hearing
judge. Further, during discovery, Three Angels was prevented
from obtaining additional information about WTCT when its subpoena
to depose the president of WTCT was quashed by the court. OPT
30. Had the evidence been allowed in by the court, Three Angels
would have shown that it was treated differently than a similarly
situated organization in violation of the religious freedom and
equal protection guarantees of the Illinois and U.S Constitution
that prohibits discrimination based on religious grounds.
In a decision dated September 17, 2002, the hearing judge
ruled that none of this evidence could come in because "this
is not the proper forum to address constitutional challenges."
Order of Sept. 17, 2002 p.3. For this proposition, she cited
to Texaco-Cities Service Pipeline12 This case, however, stands
for basically the opposite of the proposition for which it is cited.
In Texaco-Cities, the Illinois Supreme Court refused to consider
a constitutional argument on appeal because the issue had not
been raised in the administrative proceeding.13 The Court noted
that "issues or defenses not placed before the administrative
agency will not be considered for the first time on administrative
review."14 The Court recognized that "that administrative agencies
lack the authority to invalidate a statute on constitutional
grounds or even to question its validity."15 "Nonetheless," the
court asserted:
12
Texaco-Cities Service Pipeline v. McGaw, 182 Ill.2d 262
(1998).
13
Texaco-Cities, 182 Ill.2d at 278.
14
Id.
15
Id. citing, Moore v. City of East Cleveland, 431 U.S. 494, 497
n. 5, 97 S.Ct. 1932, 1934 n. 5, 52 L.Ed.2d
[page 30]
it is advisable to assert a constitutional challenge on the
record before the administrative tribunal, because administrative
review is confined to the proof offered before the agency. Such
a practice serves the purpose of avoiding piecemeal litigation
and, more importantly, allowing opposing parties a full opportunity
to present evidence to refute the constitutional challenge.16
Thus, the Illinois Supreme Court recognizes that evidence
and proof relating to constitutional challenges should be heard
and accepted by administrative courts, even if those courts cannot
rule on the constitutionality of statutes. The hearing officer's
failure to do this was plain, reversible, legal error. Her decision,
if upheld, would make it impossible for Three Angels to assert
its constitutional rights in any forum. This cannot be right,
and thus her ruling on this matter should be reversed.
ARGUMENT
I. Contrary to the bearing judge's legal conclusions, the property used by Three
Angels to undertake its religious broadcasting ministry is used for exclusively
religious purposes and is exempt from property taxes under 35 ILCS 200/15-40 and
35 [LCS 200/15-65.
The court below has failed to take seriously Three Angel's religious
purposes, thus preventing Three Angels from obtaining its rights
under Illinois law to a tax exemption for the land and buildings
used for its ministry. The Illinois Constitution provides that
the state assembly may exempt from taxation "property used for . . .
schools, religious, cemetery and charitable purposes." Ill. Const.
Sec. 6, art. IX. Under this provision, the Illinois assembly
has passed to laws that extend property tax exemption to land
used for religious purposes. The first law exempts "property
used
531, 536 n. 5 (1977).
16
Id. at 279 (emphasis added).
[page 31]
exclusively . . . for religious purposes." 35 ILCS 200/15-40
(2001). The second law exempts "all property . . . exclusively
used for charitable or beneficent purposes, and not leased or
otherwise used with a view to a profit" and which is owned by
"institutions of public charity." 35 ILCS 200/15-65 (2001).
In applying these two clauses to religious organizations,
Illinois courts have said that the statutory sections "are so
closely associated that we will discuss them together."17 The
analysis below will draw on both sections in showing that Three
Angels is a not-for-profit religious institution that uses its
properties exclusively for religious and charitable purposes.
Under Illinois law, two related questions are asked to determine
if a religiously-based tax exemption is appropriate for a parcel
of land. First, the court must decide if an entity has primarily
religious or charitable purposes. (35 ILCS 200/15-40 (2001)).
Second, it must then decide if the particular property in question
is operated and used primarily for the religious purposes of
that entity. Id. The manner in which the trial judge handled
these questions is examined below. As in cases involving appeals
from trial courts, these questions of law on appeal from an administrative
finding are reviewed de novo.18
A. The lower court's rejection of Three Angels view
of its own religious purposes and the court's use of a rigid
and narrow definition of religious purpose is contrary to Illinois
law and constitutes reversible error.
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1. |
Illinois law permits entities to define their own religious purposes as long as done in good faith. |
17
The Congregational Sunday School and Publishing Society v. Board of Review, 290 Ill. 108, 112, 125
N.E. 7, 9 (1919).
18
See, e.g., Wison v. State Employee's Retirement System of Illinois 336 Ill.App.3d 199, 202, 782 N.E.2d
858, 861, 279 Ill.Dec. 299, 302 (2002), citing Veazey v. Baker, 322 Ill.App.3d 599, 602, 255 Ill.Dec.
[page 32]
The primary reversible error in the hearing judge's decision
is her failure to accept, or even listen to, Three Angels' view
of what constitutes its religious beliefs and purpose. Under
Illinois law, a judge should not start with the State's view of
what a religious purpose or activity is. Rather, the Court should
start with the applicant's view of what its religion consists
of, and then examine that view for sincerity and good faith.
As the court stated in Fairview Haven v. Dept. of Revenue, the
state "must accept the entity's characterization of its activities
and beliefs as religious as long as the characterization is made
in good faith."19
In examining the religious nature of an applicant, its activities
or beliefs, the court properly deals with only two questions:
When, as here, particular purposes and activities of a religious
organization are claimed to be other than religious, the civil
authorities may engage in but two inquiries: does the religious
organization assert that the challenged purposes and activities
are religious, and is the assertion bona fide? Neither the courts
nor administrative agencies . . . may go behind the declared content
of the religious beliefs any more than they may examine their
validity.20
The decision in Fairview Haven has come to be recognized as
definitive on the question of judicial inquiry into legal purposes.
As one commentator on Illinois recently noted, Fairview Haven
"represents the fullest and clearest expression in Illinois of
the First Amendment principles implicitly followed in Scripture
Press and explicitly recognized in Holy Spirit."21 Under these decisions, the state does
not "define" religion,
19
Fairview Haven v. The Department of Rev., 153 Ill.
App. 3d 763, 772, 506 N.E. 2d 341, 348 (Ill. App. 4d 1987) (emphasis
added).
20
Id. at 772 and 348.
21
James W. Hilliard, "The 'Religious Purposes' Property Tax
Exemption and the First Amendment," Illinois Bar Journal,
Vol. 90, p. 549 (Oct. 2002), attached hereto as Exhibit A.
[page 33]
but inquires to make sure that the religion is not a sham,
and that the property is "actually and primarily used for the
stated religious purpose."22
Under these precedents, the hearing judge's legal conclusions
that Three Angels' activities and beliefs were not religious
constitute reversible error. Conclusions such as "the evidence
shows that 3ABN directly engaged in little or no specifically
religious activity and used the property in question for no such
purpose" RD 30-31 and that "applicant is advocating a way of
life but it is a lifestyle that applicant favors, not a religion"
RD 31-32 ignores Three Angels' belief, and those of leaders
and theologians of the Adventist church, that it is promoting
a religious lifestyle.
Because there are a wide variety of religious beliefs, practices
and lifestyles, it should not be necessary for an applicant to
show that the state of Illinois had previously accepted its beliefs
and practices as religious for an exemption to be granted. The
State should recognize and exempt a new or unique religious usage,
as long as it is satisfied that the applicant is asserting its
religious practice in good faith. Three Angels, however, presents
no such unique or cutting-edge case. The activities and property
uses that it carries out are weil within standard religious purposes
recognized by existing Illinois judicial and administrative case-law,
as discussed below.
2. Illinois courts have found religious purposes
to include a wide variety of activities that transmit religious
teachings and beliefs through various media, such as print, audio,
video and radio and television broadcast.
Three Angels' communication of its religious messages through
print, audio, video and broadcast media are the very type of
activities found to be religious by Illinois
22
Id. at 551.
[page 34]
courts.23 A very
early case, The People v. Deutsche Evangelisch Luterische
Jehovah,24 referred
to "religious purpose" of property as consisting of "public worship,
Sunday Schools and religious instruction."25 Three Angels' operations arguable fit
even this somewhat narrow definition of religious purpose, as
its primary purpose is "religious instruction" through the broadcast
of religious programming. But later cases have broadened the
category of activities that fulfill a religious purpose.
The Illinois Supreme Court has noted that the definition found
in Dutsche Evangelisch is unduly narrow, and that it was
"not stated as inclusive of everything that might in the future
be regarded as a use for religious purposes but as illustrative
of the nature of such use."26
Later, the Court noted that "no decision of this court attempting
to lay down an all inclusive definition or specification of what
constitutes a religious purpose" has been called to its attention,
even though it was familiar with the Deutsche Evanglisch
decision.27
In light of these decision clarifying and expanding Deutsche
Evanglisch, it is rather extraordinary that the hearing judge
continues to rely primarily, if not at times exclusively, on
that narrow definition. RD 24-25. She states that "because Deutsche
Gemeinde explains that a religious purpose means a use of
such property by a religious society or body of persons as a
state place for worship, Sunday schools and religious instruction,
the question of whether applicant uses the property for religious
purposes must be answered in the negative. Applicant unequivocally
fails to satisfy this statutory
23
Carson v. Muldoon, 306 Ill. 234, 238, 137 N.E. 863,
864 (1922); Scripture Press Foundation v. Annunzio, 414
Ill. 339, 350-352, 111 N.E.2d 519, 525 (1953).
24
The People v. Deutsche Evangelisch Luterische Jehovah,
249 Ill. 132, 136-37, 94 N.E. 162, 164 (1911).
25
Id.
26
Carson, 306 Ill. At 238, 137 N.E. at 864.
27
Scripture Press Foundation v. Annunzio, 414 Ill.
at 350-352.
[page 35]
mandate." RD 31. She then proceeds to examine and reject
as inadequate Three Angel's on-site worship activities.
The lower court's ruling essentially ignores a large number
of decisions by Illinois courts that viewed a "religious purpose"
as far broader than a tradition Sunday morning church service.
The buildings and activities that have qualified for exemption
include: the administrative office buildings of an organization
that supported Sunday schools by publishing and distributing
Bible lesson supplies, quarterlies and lesson helps, as well
as other religious and moral books;28
Inter-Varsity Christian Fellowship, a group that helped organize
Christian student groups at secular colleges and universities
and which published and sold Christian literature;29 the Evangelical Teacher Training Association,
a group formed by various Christian schools to produce audio,
visual and other materials to train Christian educators;30 and a 1.6 acre portion of
a tax-exempt religious park, upon which stood a residence for
the park care-taker and his wife, upon which horses grazed, and
upon which religious services were conducted.31
Many of the above cases involve the spreading of religious
messages through the production and sale, even at a "profit,"
of various media. While often print media, some of the cases
deal with various types of audio and visual media. All the cases
define "religious purpose" far more broadly than the traditional
worship services allowed by Deutsche Evanglisch and the hearing
judge below.
28
The Congregational Sunday School and Publishing Society
v. Board of Review, 290 Ill. 108, 125 N.E. 7 (1919).
29
Inter-Varsity Christian Fellowship v. Hoffman, 62
Ill. App. 3d 798, 379 N.E.2d 813 (Ill. App. 2d 1978).
30
Evangelical Teacher Training Ass'n v. Novak, 118
Ill. App. 3d 21, 454 N.E.2d 836 (Ill. App. 2d. 1983).
31
Ill. Confer. Of the United Church of Christ v. Ill.
Dept. of Rev., 165 Ill. App.3d 200, 518 N.E.2d 755 (Ill.
App. 3d 1988).
[page 36]
Based on the precedents discussed above, the hearing judge
applied an erroneous legal standard to decide whether Three Angels
was a religious entity and whether it used its property for primarily
religious purposes. There are sufficient undisputed facts in
the record, summarized from pages four to nine above, to show
that Three Angels is a religious entity operated primarily for
religious purposes for this Court to reverse the lower judge's
legal conclusions and enter a judgment for Three Angels on this
question. Short of this, this Court should reverse the hearing
judge's ruling, clarify the legal standards involved, and remand
the case for further testimony by the excluded witnesses Elder
Ted Wilson and Dr. Denis Fortin.
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