In addition to the book, The Courts and the Colonies, the following may be of interest to students of Anabaptist history: 
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MENNONITES AND LITIGATION
2000
Alvin J. Esau- Professor of Law, University of Manitoba
 
COPYRIGHT- DO NOT QUOTE WITHOUT ATTRIBUTION.   
 
(No attempt has been made to update this survey of Mennonites and Litigation. While dated, it should still be of interest for those who want a window into this topic.)                             
 
I. INTRODUCTION
 
Mennonites in North America may be divided into two different streams- the Swiss-South German group who fled West and arrived in North America as early as 1683, and the Dutch-North German group who fled East, eventually establishing major semi-autonomous colonies in Russia and then only coming to North America in various waves beginning in the 1870's. Broadly speaking these two groups manifested somewhat different patterns of Anabaptist ideology with the Swiss group being more visibly separationist from the intrusion of modernist cultural norms, while the majority of the Russian group was more open to adapt Anabaptist norms to the modernist setting.[1] There are many Mennonite “denominations” that have been created as a result of various schisms, but in North America the three main groupings of Mennonites in order of size have been the Mennonite Church (MC), the General Conference of Mennonites (GC) and the Mennonite Brethren (MB). The MC wing is primarily from the Swiss stream, the MB is from the Russian stream, and the GC is mixed.[2]
 
While these three main groups can be identified, it must be recognized that any examination of Mennonite practices is problematic because along with diversity within these groups, there are a host of other smaller Mennonite denominations, so that we have a “Mennonite Mosaic.” Some traditionalist Old Order Mennonite groups, would appear very much more like the Amish and Hutterites in terms of culture and community practices, while other groups would appear to the outsider as being little different from many evangelical protestant churches, but for a special emphasis on peace theology, and even here, it is doubtful that some Mennonite groups are keeping the practice of nonresistance alive.[3]
 
II. WHY IS LITIGATION PROBLEMATIC FOR ANABAPTISTS?
 
1. The Separation of Two Kingdoms
 
 The traditional Anabaptist position that you should not litigate disputes in “outside” courts may be viewed as a particular consequence of the more general doctrine of the separation of two kingdoms, the Kingdom of God and the Kingdom of this World. While original Anabaptist thought and practice was quite diverse, the two-kingdom model eventually emerged as the dominant paradigm.[4] In any case, it was the paradigm I grew up in. It must be emphasized that the modern liberal conception of the separation of church and state is not the same as the traditional Anabaptist conception. The modern liberal might posit a separation of subject matter jurisdiction between private life and public life, or between secular and sacred realms. Religion, narrowly confined to a set of beliefs and activities having to do with worship or private moral conduct, is relegated to a private sphere where the citizen should be free from any state coercion, but conversely religion should not be the bases for norm generation in the public sphere. The price of religious freedom in this model of liberalism is the privatization of religion by the reduction of religion to modes of worship and abstract beliefs, and the reduction of religious communities to mere voluntary associations in the private sphere. In contrast to this, however, the Anabaptist separation of church and state is based on a rejection of the sacred and secular division. The Anabaptist separation of church and state must be linked to the Anabaptist refusal to separate Sunday and Monday.[5] The inside law of the church is comprehensive and applies to the whole life of the disciple. What you have is a separation of normative communities, rather than subject matters. You have the church community which is supposed to live all of life according to the law and love of Christ within the redeemed Kingdom of God, and you have the “world” community which is not yet redeemed and in which the state must use norms of public justice backed by violence to ensure a minimum social structure of peace and order.
 
If the Anabaptists had only pioneered a subject matter, jurisdictional, separation between different organizations in society they might not have been tortured and killed for their “dangerous” beliefs. The significant point is not the separation, and therefore limitation, of jurisdictions between church and state, but rather the integration for church members of all of their life into the jurisdiction of the church, and therefore the radical totalistic sovereign jurisdiction of the church as opposed to the state in regard to the members of the church. The Anabaptists called for a radical discipleship where the true followers of Jesus applied the ethics of Jesus, as best they understood them, to all of life. For the Anabaptist Christian, then, there were not two sovereigns with separate jurisdictions over different areas of life, but only one sovereign Lord who took the whole pie.
 
It should be remembered that the non-resistance-love ethic as a foundational inside law of the church was conceived by the Anabaptists as attainable only by those who had been converted and transformed by the grace of God and had entered into the new covenant community of the church. The state acting through its officials were not expected to act with nonresistant love. In 1527, two years after the birth of the Anabaptist movement, a synod of Anabaptists met at Schleitheim, Switzerland and seven articles were eventually agreed upon. In regard to the law and the state, the Schleitheim Confession, stated:

The sword is an ordering of God outside the perfection of Christ. It punishes and kills the wicked and guards and protects the good. In the law the sword is established over the wicked for punishment and for death and the secular rulers are established to wield the same. But within the perfection of Christ only the ban is used for the admonition and exclusion of the one who has sinned, without the death of the flesh, simply the warning and the command to sin no more.[6]
The confession went on to claim that a Christian may not use the sword, even "against the wicked for the protection and defence of the good, or for the sake of love,” and that Christians may not be magistrates or "pass sentence in disputes and strife about worldly matters."[7]
 
Thus, with their own form of ethical dualism, the Anabaptists affirmed the legitimacy of the state sword within certain boundaries as used by non-Christians in the Kingdom of this World, and yet renounced the use of it by Christians on the other hand, who were citizens of Christ’s Kingdom, even while residing in the territory of the old Kingdom. Membership in the Church involved a new citizenship in a new social order of redemption. Citizenship in the church involved a border crossing, a change of passport, a movement from one Kingdom to another, not in terms of geography, but in terms of ultimate loyalty and ethics. The Christian now was a member of the cross-bearing church, and that membership was incompatible with full participation in the sword-bearing state.
 
Within this framework of the separation of two kingdoms, it is now possible to understand how going to the law courts of the state would have been viewed as a violation of church citizenship. Quite apart from the issue of the violence of the law, it was clearly wrong for Christians to take their disputes with each other to foreign courts.[8] However, even when the Christian had a dispute with a non-Christian, the Anabaptist separationist model of two kingdoms would suggest that the Christian should not cross back over the border and invoke the courts of the old Kingdom.
 
In addition to this issue of jurisdictional loyalty to the Kingdom of Christ, going to court involved the invocation of violence. Suing someone in court at bottom involved calling on the violence of the state to uphold a court order in your favour. Thus, the assertion that Christians could not be soldiers, police officers, or magistrates, and that they could not use the law courts, was grounded in this Anabaptist belief that membership in the church constituted a new and higher citizenship in a divine social order of redemption that was above, and superior to, the temporary God ordained social order of preservation. Anabaptist Christians withdrew from positions involving state management. The job of the church was not to manage fallen society, but rather to model the new order of redemption, the way of the cross.
 
The radical priority that the Anabaptists gave to their citizenship in the church as the Kingdom of God, did not therefore mean that those who governed in the realities of the present social order were engaged in an illegitimate activity. The majority of Anabaptists asserted that the governmental authorities were ordained by God to use the power of the sword to maintain order and justice in a sinful world. Until the ultimate realization of the Kingdom of God and the victory of Christ over all the powers, civil authorities, including the courts of the state, had a God mandated duty to keep the peace and promote the welfare of society. While governmental authorities themselves could turn lawless and pervert their God given mandate, the Anabaptist position generally affirmed that the violent police power of the state was absolutely necessary as a kind of “divine accommodation to human frailty.”[9] Yet at the same time, the Anabaptists were clearly implying that all governmental positions involving the sword were filled by non-Christians, and supposedly if everyone was a Christian, properly so called, government, at least in terms of violent coercion, would be altogether unnecessary. In a context where governmental agents overwhelmingly viewed themselves as Christians, the Anabaptist position infuriated the authorities.[10] Today people still scratch their heads over the assertion that some measure of state violence is God ordained in the context of a fallen world, but the Christian citizen must be more righteous and have nothing to do with it.
 
This full-bodied separation of church and state and the effect of having such a gulf between the nonresistance ethic of the church member on one hand, and the necessity of violence by the state on the other, fed logically over time, not just to the withdrawal of Anabaptists from positions involving the management of governmental affairs, but also to the increased separation and non-involvement of Anabaptist groups with the rest of society generally. While to a significant degree the Hutterites remain within this two kingdom mentality, it should be noted that many Anabaptist groups have rejecting the separationist withdrawal model of church and society, and have adopted a much more activist, transformationalist model, where the church prophetically witnesses to the state and to society, and where church members are fully engaged in working for peace and justice, and serving the material and social needs of the wider community, while still affirming nonviolence.[11] From nonresistance to evil, we have shifted to nonviolent resistance to evil and injustice. This shift in the Anabaptist model also impacts on the particular issue of engaging in litigation.
 
The activist model is in part a response to the limitations of the separationist model. When engaging with Christians of different persuasions it is inevitable that the following sort of charge will be made:
Nonresistant communities face the charge of being moral freeloaders, because they benefit from the protections society provides but they refuse to share in the work of protecting. Although this difficulty can be overcome, to some degree, by alternative service, it can appear hypocritical to declare oneself too pure to participate in the use of force while significantly benefiting from the willingness of others to participate.[12]
 
But the shift to social and political activism is not just a reaction to charges of irresponsibility. More fundamentally the new model reflects a reconsideration of the rift between the ethics of Jesus and the ethics of governmental power. While Jesus did not take up the sword to establish social change, a new generation of scholars argued that Jesus was fully engaged in the struggle for peace and justice in the socio-political context in which he lived.[13] More than four and a half centuries after the early Anabaptist confessions, one of the leading contemporary Mennonite confessions reaffirms the principle of nonviolence as an ethic for the church, but also extends that principle as an ideal to all of society. For example, this confession states:

As followers of Jesus, we participate in his ministry of peace and justice... As disciples of Christ, we do not prepare for war, or participate in war or military service. The same Spirit that empowered Jesus also empowers us to love enemies, to forgive rather than to seek revenge, to practice right relationships, to rely on the community of faith to settle disputes, and to resist evil without violence...
Led by the Spirit, and beginning in the church, we witness to all people that violence is not the will of God. We witness against all forms of violence, including war among nations, hostility among races and classes, abuse of children and women, violence between men and women, abortion, and capital punishment.[14]
 
However, while new models of activism may narrow the gap, they do not necessarily replace the dualism of the two-kingdom model.[15] The dualistic tension can only be removed by revising the absolutist prohibition on all violence in all circumstances as the ethic for Christians on one hand, or by replacing the conception that it is necessary for the state at some level to use violence. Replacing nonviolence as a requirement of Christian ethics would just bring the Anabaptists into the mainstream and eliminate them as a distinct group. If Anabaptists take up the sword as police officers, soldiers, and executioners and argue that this is compatible with membership in the church, arguably they are now Calvinists or Lutherans and not Anabaptists. One slide in this direction is to redefine the violence that Anabaptists are prohibited from using. For example, if we suggest that only deadly violence is prohibited, we have opened up the door to all sorts of forceful compulsions short of deadly violence. On the other hand, while the argument can be made that the state should and could function in a far less violent way, and that using alternative nonviolent approaches in many areas of domestic and international affairs would be far more effective in securing peace and justice,[16] the claim that the state could function without at some point invoking the violence of the police power to prevent harm to others seems impossible short of the eschaton. We do not sit around and pray for intervention from God when a serial killer is on the loose. We capture him or her and use force to lock him or her up. If one approach is no longer Anabaptist, the other approach of calling for a completely nonviolent state is arguably no longer sane.[17]

The activist confession that Mennonites “witness against all forms of violence” is still moderated, even in recent Anabaptist confessions, by some recognition of necessity:
In contrast to the church, governing authorities of the world have been instituted by God for maintaining order in societies. Such governments and other human institutions as servants of God are called to act justly and provide order… Even at its best, a government cannot act completely according to the justice of God because no nation, except the church, confesses Christ’s rule as its foundation… Territorial nations and their governments are limited in their ability to fulfill the will of God because of their reliance on violence, at least as a last resort... However, a government that acts with relative justice and provides order is better than anarchy or an unjust, oppressive government... Christians are responsible to witness to governments not only because of their citizenship in a particular country, but also in order to reflect Christ’s compassion for all people and to proclaim Christ’s lordship over all human institutions.[18]
Thus, as we examine the Anabaptist inside law on going to outside law courts, we may acknowledge activist concerns, but nevertheless our discussion is premised on the fundamental conflict between the voice of Jesus and the violence of the law.
 
2. Going to Court: The Violence of the Law and the Voice of Jesus
 
Taking a dispute to court is often too expensive, takes too long, involves an adversary process that is too manipulative and hurtful to participants, and offers remedies that may be unresponsive to the real needs or interests of the parties.[19] This opinion that litigation is problematic is widespread, but the idea that it is wrongful would surely strike most people as strange. Indeed, while affirming the advantages of consensual alternative processes such as mediation and arbitration, most people would likely accept the view that going to court is sometimes necessary and even desirable. The reasons seem obvious. As a last resort when consent fails, we turn to coercion, so that legal rights will be vindicated. There must be a process of enforcement to get a remedy for breaches of law or else law fails as a method of social control. Sometimes those who do not fulfill their legal duties voluntarily must be held accountable to prevent them from harming others. To the extent that alternative dispute resolution processes are increasingly used within the framework of the governmental court system, such dispute processes also become part of the coercive nature of the formal legal system.[20]

There is an area of the law where the government itself takes the initiative in directly enforcing the law. For example, when dealing with criminal matters, or when dealing with most regulatory offences, there are police or enforcement officers who investigate and lay charges that are prosecuted in court by governmental agents. However, in most areas of the law, the enforcement of the law is initially left to those individuals who are directly affected by the alleged breach of the law. For example, if someone apparently breaks a legal obligation under a contract or causes damage through a negligent act, it is the victim who must seek redress for the violation. Unless a crime has been committed, complaining to the police or some government official will usually get you nowhere. Rather, you will be pointed to the courthouse door. If you want a remedy for a violation of your legal rights, you must bring an action in court. The vast majority of such claims will be settled without resort to further proceedings, because the facts and the law are so clearly in favour of one side or the other that it would be pointless and costly to continue to pursue or resist further. But, whether for tactical reasons, or for reasons of disputed facts or law, many cases are litigated in court, and settlements are negotiated in other cases within the shadow cast by the courts, as lawyers predict what a court would decide if the case went to adjudication. 
 
The coercive violence of the law is necessary. If a person refuses to even acknowledge the complaint made against them, or denies liability, there has to be a process that is backed up by the force of the state that offers an avenue to adjudicate the matter. While the techniques and tactics of litigation can amount to a ritualized war, and the violence of the state is used to enforce court rulings, ironically litigation on one level is actually a process of “keeping the peace”, by creating a forum where disputes are “peacefully” resolved by the application of legal norms to the facts and by the making of an authoritative and enforceable pronouncement of duties and rights as between the parties. If there were no state sanctioned and enforced court system of dispute resolution, we might well have a much higher degree of personal violence in society as aggrieved parties took self-help action.
 
We do not often think of the law in this way as fundamentally linked to state violence. To be sure, the whole system would collapse if people only obeyed the law or court orders because they were backed by the violence of the state. It is also true that law is much more about the avoidance of violence and the prevention of disputes by structuring transactions and ordering activities so that expectations are clarified, and needs met. But we should not forget that while law is not legitimated by state coercion, at bottom the law of the state is still backed by the violence of the state.[21] When the court orders you to hand over property to someone, or orders you to do something, or refrain from doing something, you obey the order of the court or the judgment of the court. The law has spoken. But while we do not see the exercise of the violence of the state in most cases, behind this obedience stands the reality that the violence of the police, sheriffs, bailiffs, or other state officials will be brought to bear if you do not obey the order of the court. 
 
Thus, as we have already noted, initiating an action in court may be wrongful from an Anabaptist point of view because it is contrary to the Anabaptist nonviolence principle. The bringing of an action in court usually involves invoking the threat of, or actual use of, coercive violence by the state to enforce a judgment in your favour. While that violence may not be personal to you, in civil cases it is the parties who are initiating and controlling the application of state violence as between private parties, in a way that is very different from the state control exercised over court proceedings in criminal cases and other regulatory proceedings. Furthermore, while the public violence of the state may serve to provide the framework for the peaceful settlement of disputes as between private parties, the process of court adjudication does not appear to be particularly about peace-making, but quite the opposite. The adversarial system of court proceedings often appears to be a process of verbal and psychological warfare, and if “peace” emerges at all, it is only achieved by the winning party destroying the losing party in a process that places might over right, process over substance, and tactics over truth.[22] Even when litigation proceeds on a much more civilized level compared to the pathological level of nastiness that it can be reduced to, parties often develop higher levels of antagonism toward each other simply because the process is adversarial. Reconciliation between the parties seems unlikely in a process designed for producing winners and losers.
 
That litigation is linked to violence is confirmed in a recent book that  provides a compelling and challenging vision for Christian lawyers.[23] When the author turned to the ethics of litigation, he elegantly outlined all the arguments against it from a Christian point of view, and then he concluded by turning to the principles used in the just war theory, using those same principles by analogy as a test to determine those circumstances where litigation might be justified.[24] Limiting, but not eliminating litigation by applying a just war framework is very telling, because it properly recognizes the link between litigation and violence, and the difference between those Christians who accept the just war theory and thus litigation, and traditional Anabaptists who do not accept either.
 
During the Roman phase of his trial, Jesus said, “Everyone who belongs to the truth, hears my voice.” Pilate then asked Jesus, “What is truth?”[25] It would appear that Pilate was interpreting Jesus to say that those who already know or already belong to the truth will recognize and acknowledge the voice of Jesus. However, a more radical, disturbing, and even seditious interpretation is that we belong to the truth by hearing the voice of Jesus. Rather than being one of a number of potential witnesses to a pre-existent truth, Jesus is himself the truth. The early Hutterites, alongside other Anabaptists, proclaimed the Lordship of Jesus in this more exclusivist and radical sense. The question was not Pilate’s, “What is truth?” but rather the disciple’s, “What is the voice of Jesus on this issue?”
 
What was the voice of Jesus on the litigation issue? For the early Anabaptists the voice of Jesus was heard from reading Scripture, particularly the New Testament. For example, the following passages quoting Jesus, or giving Paul’s understanding of the way of Jesus, would at minimum lead to a heavy presumption that the disciples of Jesus should not take disputes to court:[26]

You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, Do not resist one who is evil. But if anyone strikes you on the right cheek, turn to him the other also. (Matthew 5:38-39)
And if anyone would sue you and take your coat, let him have your cloak as well; and if any one forces you to go one mile, go with him two miles. (Matthew 5:40-41)
If your brother sins against you, go and tell him his fault, between you and him alone. If he listens to you, you have gained your brother. But if he does not listen, take one or two others along with you, that every word may be confirmed by the evidence of two or three witnesses. If he refuses to listen to them, tell it to the church; and if he refuses to listen even to the church, let him be to you as a Gentile and a tax collector. Truly, I say to you, whatever you bind on earth shall be bound in heaven, and whatever you loose on earth shall be loosed in heaven. (Matthew 18: 15-18).
‘Do you wish to go to Jerusalem, and there be tried on these charges before me?’ But Paul said, ‘I am standing before Caesar’s tribunal, where I ought to be tried; to the Jews I have done no wrong, as you know very well. If then I am a wrongdoer and have committed anything for which I deserve to die, I do not seek to escape death; but if there is nothing in their charges against me, no one can give me up to them. I appeal to Caesar.’ (Acts 25:9-11).
When one of you has a grievance against a brother, does he dare go to law before the unrighteous instead of the saints? Do you not know that the saints will judge the world? And if the world is to be judged by you, are you incompetent to try trivial cases? Do you not know that we are to judge angels? How much more, matters pertaining to this life! If then you have such cases, why do you lay them before those who are least esteemed by the church? I say this to your shame. Can it be that there is no man among you wise enough to decide between members of the brotherhood, but brother goes to law against brother, and that before unbelievers? To have lawsuits at all with one another is defeat for you. Why not rather suffer wrong? Why not rather be defrauded? But you yourselves wrong and defraud, and that even your own brethren. (1 Corinthians 6:1-8).
Therefore, if anyone is in Christ, he is a new creation; the old has passed away, behold, the new has come. All this is from God, who through Christ reconciled us to himself and gave us the ministry of reconciliation. (2 Corinthians 5:17-18).
 
While the Matthew 18 and 1 Corinthians 6 passages can be interpreted at a superficial level as dealing with disputes and law suits between Christians as opposed to dealing with lawsuits by Christians against non-Christians, there is no implication that just because litigation between Christians is explicitly prohibited, other litigation is allowed. It is not some specific text in isolation, but rather the basic framework of the ethics of non-retaliation, reconciliation, and righteous suffering that informed the Anabaptist position on litigation. To be a disciple of Jesus was to be a witness in the world for Jesus's way of peace and reconciliation. To take an aggressive lawsuit against an individual, seeking the police power of coercion, even when you were in the legal right and an injustice had been done to you, was inconsistent with the suffering love of Jesus for those who had enmity toward you.
 
III. DEVELOPMENT OF NORMATIVE STATEMENTS ON LITIGATION
 
While all Anabaptist groups struggled with the issue of litigation in the context of the growing pervasiveness and complexity of the law and the legal system in the second half of the twentieth century, it was the Mennonite Church (MC) that studied the issue and produced various statements that moved away from absolutism to a more particularized application of Anabaptist ethics to litigation.[27]
 
1. Conferences of 1956 and 1961.   
 
In 1956 a Mennonite Church Conference on Nonresistance and Political Responsibility was held in Laurelville, Pennsylvania.[28] At the 1956 conference, Guy Hershberger, the leading Anabaptist social ethicist of the time, made a fundamental distinction between the parties to a lawsuit. There was a difference between initiating a lawsuit (taking someone to court) and defending a lawsuit (being dragged into court). The party who initiates a lawsuit is called the plaintiff, in distinction to the defendant. For Hershberger, taking someone to court was almost always an aggressive action inconsistent with the “law of love,” while defending a case in court might be acceptable. Hershberger summarized his position as follows:
 
(1) When the Christian is summoned to court charged with a violation of law, he may use the services of an attorney to establish his innocence or to show that the law is in conflict with his Christian conscience, as the case may be. (2) In case of a civil suit brought against a Christian by a non-Christian it is not necessarily inconsistent with the principle of nonresistance to defend the case in court by legal means, although every effort should be made in the spirit of love to make a settlement out of court even with an unjust and unchristian plaintiff. (3) It is inconsistent for the Christian to be the aggressive party to any lawsuit, even when the legal justice is on his side. (4) Members of the Christian brotherhood may never settle differences among themselves by means of litigation in the civil courts. (5) Purely routine legal actions, such as suits to quiet title to real estate or to clear the records of estates or descendants, or to determine tax responsibilities, so-called friendly suits, are allowable.[29]
 
Hershberger’s distinction between the ethical position of the plaintiff and that of the defendant in civil cases, or the accused in criminal cases, may be directly related to the violence of the law. A person bringing a matter to court was calling upon the police power of the state to coerce the other party to do something, pay something, or stop doing something, while the defendant was not calling on state coercion, but rather was seeking to avoid the application of it. Hershberger’s position was also in tune with the separationist model of the church. While you could defend a case brought against you by the government or by a non-Christian, you could not defend yourself in a case brought be a fellow Christian, aside from the argument that there might be some “loving lawsuits” in matters requiring court application. Logically the Christian who initiated the lawsuit against a brother would be most at fault, but it was even wrongful for a brother to defend such cases in an outside court when the jurisdiction was supposed to be with the church community. 
 
The Hershberger distinction was a fundamental starting point, but further problems rose to the surface when the absolutist ice was broken. Most defendants do not fit Hershberger’s image of the humble individual dragged into court. Once a court has jurisdiction over a dispute, the defendant can usually bring a variety of pretrial motions or apply the rules of procedure and evidence in a way that might be even more aggressive and coercive than what the plaintiff seeks. Furthermore, what about bringing a counterclaim? How about the situation were the defendant loses the case and then appeals to a higher court? Is the initiation of an appeal different from the launching of a lawsuit to begin with?
 
At the conference in 1956, Samuel Wenger, a Mennonite lawyer,[30] suggested that the absolutist prohibition against being a plaintiff needed to be refined beyond the so called “loving lawsuit” scenario. He made a further distinction between governmental and non-governmental litigation. For example, while discussing a case of seeking compensation for expropriation of land by the government, he said:
It is my opinion that a Mennonite can file such a claim without violating our historic stand against litigation because he is not taking an aggressive act against an individual. The “state” is the party against whom he claims, and this is an impersonal sort of an entity against which it seems logically impossible to commit an “offense.”[31]

However, breaking the absolutist position as to plaintiffs also brought to the surface a host of problems. Entities, whether corporate or governmental, are not disembodied ghosts. There are people who act within and for the entity, and these people may have just as much of their personhood invested in such actions as if they were acting completely on their own behalf.
 
Given the numerous problems that had surfaced in the conference of 1956, discussion of the litigation issue continued at a “Consultation on Litigation Problems” sponsored by Mennonite Mutual Aid at Goshen in July 1961.[32] As to parties, Wenger again shifted away from the plaintiff - defendant distinction and focused instead on the individual- entity distinction. He now used insurance corporations as an example:
This comment is particularly pertinent to automobile cases where the real defendant is an insurance company and a suit at law is exactly the condition of things for which the insurance company has sold its policy. It is this writer’s opinion that there is nothing wrong in suing where the bill will have to be paid by the insurance company, because the insurance company is in business for just that sort of thing. It expects suits and if suits were not brought it would not be in business.[33]
 
Karl Kreider noted in reply that even if corporations were fictional legal persons in their own right, corporations were still constituted and managed by real people who must therefore be treated with the same Christian ethics extended to individual plaintiffs and defendants.[34] Furthermore, Charles Ainlay, a lawyer who had many Mennonite clients, reminded the participants that the so called lawsuit against the insurance company was in fact still a lawsuit brought against a named individual and not the insurance company. It was only after successfully suing the individual or organization and establishing their liability that the insurance company was now required under the policy to make payment.[35] Thus the traditional ban on being the plaintiff in a lawsuit might still apply even if the defendant was covered by insurance. For Ainlay this was a problem because some insurance companies knew that a Mennonite claimant would never sue, and so the insurance company would take advantage by refusing to pay a just claim. This was confirmed by John Rutledge, another lawyer with many Mennonite clients, who pointed out that many insurance companies would not even begin to enter into settlement discussions until a lawsuit had been filed.[36]
 
While a Mennonite might refuse to be a plaintiff even as against an insured defendant, avoiding litigation might be more difficult when Mennonites themselves subscribed to insurance schemes. Mennonites who contracted for insurance coverage might be thrown into litigation against their will. Ralph Barley, a lawyer representing a Mennonite managed insurance company, pointed out that a common condition of the insurance contract was the “subrogation clause” whereby the insured party would promise to cooperate with the insurance company if a decision was made by the company to sue or defend a case in court dealing with liability issues. Barley argued that it was naive to think that an insurance company could function without litigation. At some point the company had to defend some claims in court because if it did not, outrageous settlement demands would be made by those who believed the company would never go to court.[37] Barley thought that even Mennonite insurance companies might be justified in taking some cases to court even though these companies claimed to act consistent with the ethics of the church. Consistent with the Anabaptist doctrine of mutual aid, and to avoid the litigation problems associated with insurance, various Mennonite groups had set up their own insurance schemes for accidental loss or liability with the intention that such companies would make prompt and fair settlements of claims and use arbitration rather than litigation.[38] Could these companies really maintain a no litigation policy?
 
Along with the insurance issue, Samuel Wenger raised the point that not only were distinctions between parties needed, but also distinctions between tribunals. Various claims and disputes that previously were handled by the courts were now increasingly processed by administrative agencies. Was it consistent to allow members of the church to take claims and disputed matters to administrative agencies such as Worker’s Compensation Boards and the like, and yet continue to prohibit the initiation of all court lawsuits?
 
Finally at the 1961 consultation, John Howard Yoder combined the traditional nonresistance approach to the litigation issue with a call to the church to develop more structures of mutual aid that would make some of the individual costs of being nonresistant less painful.[39] For example, he called for the creation of a church-based debt collection and debt counselling service. Debts owed to a Mennonite entity or individual could be referred and dealt with in a non-coercive way, without any threat of lawsuits. In some cases, if the debt really could not be paid, the loss to the Mennonite creditor who refused to sue should be shared more widely in the whole church community rather than falling completely on the creditor. Yoder also proclaimed that the church should continue to develop alternative forms of dispute resolution. The bottom line, however, was that nonresistance might not be painless. Yoder affirmed that the church should still be faithful to the teaching of Scripture against taking disputes to court, even though the result of doing so might well be costly to the individual disciple.
 
After considering the various pressures to accommodate the new legal complexities of the modern economy, the participants at the 1961 consultations essentially affirmed the Hershberger position against aggressive lawsuits and court involvement between Christians. A statement of findings was circulated.[40] More than five of the eight pages of this document dealt with proposals to help people avoid getting into litigious circumstances in the first place and the use of various alternative dispute resolution processes in the church. However, on the issue of litigation, the 1961 statement is of interest, because while it upholds the earlier five-point Hershberger statement, it adds more details as to such problematic issues as counterclaims, appeals, and corporate entities:
 
III. The ministry of reconciliation which is the Christian’s primary function must always take precedence over personal considerations of rights, property, etc. This being the case, the legal, judicial and quasi-judicial or administrative process may never be used by the Christian for selfish and avaricious purposes, with motives of retaliation and revenge, or in a manner that brings the offense to another so as to interfere with the ministry of reconciliation. This applies to compulsive measures, such as “threat of suit”, as well as to the actual filing of a suit, whether against an individual or a corporation made up of individuals. We recognize that we have not been fully consistent in these matters.
 
IV. While it is impossible to spell out and classify in detail all judicial and legal processes which may or may not be in harmony with the nonresistant Christian ethic and the ministry of reconciliation at any given moment, the above outline of principles and the New Testament teachings on which they are based lead us to set forth the following as minimum standards for the Christian in his use of judicial process.
 
1. Disputes among brethren are to be settled with the help of qualified persons within the brotherhood, and not in the civil courts of law (1 Cor. 6:1-8).
 
2. The Christian must endeavour so to live that no one has a just cause for bringing suit against him (Rom. 13:1-7).
 
3. In case a Christian errs so as to give just legal cause for a suit to be brought against him, he should repent and make every effort to make restitution and to be reconciled to the one offended before it comes to court (Matt. 5:23-26).
 
4. If such efforts, honestly and sincerely made, fail, and the Christian is summoned to court, it is right and proper for him honestly and truthfully, with or without the help of legal counsel, to present his case.
 
5. If the court justly finds against the offending brother and attaches a penalty he should accept the verdict in meekness and humility.
 
6. If a Christian is unjustly accused and summoned to court he may answer the charges brought against him (Acts 25).
 
7. If after having done so he becomes the victim of an unjust verdict by the court he may appeal his case. However, if after having done so the unjust verdict is ultimately sustained, it should be accepted in a spirit of love and forgiveness (Matt. 5:40).
 
8. Throughout these proceedings the Christian should seek the counsel of the church (the local congregation) and the church is under obligation to support him with prayer, with counsel, and where needed with material help, sharing in the suffering of the penalty with him, thus bearing one another’s burdens and so fulfilling the law of Christ (Gal. 6:2).
 
9. In case a Christian has a just grievance against a brother (be it for non-payment of a debt or whatever), he should speak to the brother in love in an attempt at settlement and reconciliation. In case this fails, he should take “one or two others” with him, and again in the spirit of love attempt a reconciliation. If this fails, the church has an obligation to exercise discipline against the offending brother. The brother offended must continue to exercise love and forgiveness without resorting to court action. If he suffers loss because of his nonresistant attitude, the loss should, where it is needed, be shared by the brotherhood (Matt. 18:15-18).
 
10. In case of grievance between brethren it may well be that both are at fault and that the church must deal with both, step by step, in the manner indicated for the single offender.
 
11. In case of just grievance against one who is not a member of the brotherhood, the same procedure looking toward reconciliation should prevail. Here again the church and the offending brother must bear each other’s burdens and suffer wrong rather than to violate the principles here set forth.
 
12. All of this is based on the conviction that the Christian may never assume that nonresistance will be profitable in a material sense. In the long run honesty, unselfishness, and industry may lead to prosperity; but in given cases serious loss may be involved. We may well look for ways to reduce the loss resulting from nonresistance, or the risk thereof; but the rightness of the nonresistant position is not dependent on our finding ways for nonresistance to be made painless....
 
V. It is recognized that the legal settlement of certain property claims and transactions, even though the relations between the parties are friendly, sometimes requires a formal procedure which is technically a suit at law. Where this is a genuine friendly suit there would seem to be no objection.

VI. It is also recognized that in current legal practice, when one is the defendant in a suit there are occasions when pertinent facts essential to just settlement of a claim cannot be presented except through entering a counterclaim or counter suit. Such procedure may be used by a Christian, but only in the spirit of honestly and truthfully presenting information essential for a just settlement.[41]
 
This statement, while not necessarily providing answers to all questions, at least provided a degree of normative clarity in terms of minimum standards. An appeal of an unjust verdict was accepted in clause seven, although there was some ambiguity as to whether it included civil as well as criminal verdicts. Counterclaims were acceptable only to a limited degree and no distinctions were made between corporate and individual parties.
 
2. 1963 Statement
 
During the next few years following the 1961 Goshen consultation, the Peace Problems Committee of the MC church under the leadership of Guy Hershberger attempted to develop the statement on litigation.  Revisions were drafted with the intent that the statement should be adopted by the Church as an official formulation on the litigation issue. A new statement, “Litigation and the Use of the Law” was published in 1963 and circulated widely for comment.[42] The traditional ban on initiating litigation as a plaintiff was again affirmed:
 
6. In case of failure to effect a reconciliation, however, the Christian assumes the role of the suffering servant, accepting whatever loss there may be as the price of that love by which Christ died, declining the power of the courts for compelling the wrongdoer to do that which is just, even as He rejected the power of the state as a means of achieving His ends.[43]
 
What is most significant, however, is that the 1963 statement is stricter than the 1961 statement. For example, on the issue of a defendant appealing a verdict to a higher court, the 1963 statement might be interpreted as prohibiting it for both civil and criminal cases:
 
3 ...and in case the court finds any charge against him, [civil] he needs to accept it with humility, sorrow, and repentance.
 
4. If a Christian is unjustly accused and summoned to court [criminal] he may answer the charges brought against him (Acts 25). Even an unjust verdict, needs to be received in a spirit of love and forgiveness (Matt. 5:40). [44]
 
Furthermore, the 1961 clause allowing for a limited counterclaim was removed completely from the 1963 formulation. A review of the written comments received on the 1963 proposed statement indicates considerable dissatisfaction from those who found it too restrictive, but also from a few who still found it too liberal.[45] Edgar Stoesz, writing on behalf of Mennonite Indemnity Company, noted that the statement did not give enough specific guidance on such issues as subrogation and what measures could be taken short of an actual court hearing.[46] Elmer Zehr, head of an insurance agency, noted the prohibition on appeals:
I feel very strongly on this, in that I feel that we have an obligation to the civil courts when we do become involved in them to do our utmost to obtain justice. I believe this can be done with the spirit of love and patience and our failure to follow through in this could have a bad effect on the operation of law in our Country; not only affecting us but others as well.[47]
 
Walter A. Yoder, a Mennonite lawyer in Bloomington, Illinois, noted that, “there should be a more definitive statement as to what is and what is not considered an aggressive suit at law.”[48] Carl Kreider, again raised the insurance issue by bringing up a recent case of a Mennonite killed in an accident presumably caused by the other party who was insured. Kreider raised the possibility that the lawyer for the insurance company would assume that the Mennonite widow would never sue and so the settlement offer to her would be far lower than the company’s real liability. Thus, Kreider asked:
(1) Is there a difference between suing a true individual and suing a corporation (a fictitious person), especially when the corporation has been formed specifically to spread the financial burden of such suits? (2) If no suit or threat of suit is instigated and there has been “a loss suffered for conscience sake by the individual brother” will there realistically be a “mutual sharing of the entire brotherhood” of the loss?[49]

In one of the most critical responses, R. Wayne Clemens of Mennonite Disaster Services called for a more liberal view of litigation. After agreeing that all disputes between church members had to be settled without litigation, Clemens then suggested that at some stage when disputes arose between a church member and someone outside the church, it was not wrong for Christians to stand up against clearly unjust exploitation of themselves by others. Clemens continued:
It seems to me that the question of litigation and preservation of assets and personal integrity is not whether we should litigate, but how far we should go. As mentioned above, we are willing to probate wills, we are willing to quiet titles to real estate when the titles are in conflict, we are willing to allow our altercations to be determined by administrative or arbitration tribunals, we are willing to use the term that I call “negative aggression.” Negative aggression is putting ourselves in a position so that the other person is required to take the step in litigation and then, with righteous indignation, coming into court and defending our position. Therefore, it seems to me that our question is how far to go. And, the Bible does give some indication of how far one should go. When we are dealing with God and with the church we are to love infinitely. We are to give all; we are to be considered as God’s disciples in the most complete and real sense. But dealing with our finite neighbours, we are to love them, but as ourselves. This “as ourselves” indicates a realization that people are human and do need to be disciplined. Coupling this with “second mile thinking,” this means that we are to be grease in society between the gears that grind. We are to allow a person his right of integrity and give him the benefit of the doubt. But we do not need to go further.[50]
 
These letters indicate a willingness on behalf of Mennonites to consider opening up a somewhat wider scope for bringing cases to court. This move probably reflected the shift that was taking place away from separationist nonresistance to activist peacemaking and justice concerns.[51] One of the limitations to the exclusive use of consensual alternative dispute resolution processes is that unlike the formal court system such processes do not make law. In our common law system, while the courts adjudicate disputes between parties, they also at the same time make law for all of society, because the earlier decisions of courts, particularly appeal courts, give rise to legal rules and principles that form part of the law of the community. A great deal of the law is not found in legislation but is rather found in the precedents of court cases. Even the operation and application of legislation is contingent on judicial interpretations of that legislation arising out of litigation. What this means is that engaging in litigation may well be motivated by concerns going beyond the seeking of redress for the particular party in a particular case. Instead, litigation can be a process of political engagement with issues of justice, not just for the person involved, but for the community as a whole. Litigation does not just deal with the vindication of clearly established legal rights and duties, but also involves engaging in a process of arguing for what the law ought to be.

Somewhat related to the use of litigation for precedent setting, is the use of litigation for public accountability through publicity. Generally speaking, subject to protecting the identity of various particularly vulnerable parties or witnesses, formal court proceedings and documents are open to the public. Courts are public institutions, and even though the disputes in civil litigation may involve two private parties, as opposed to any governmental entity as a party, those so-called private disputes still become public when litigated. While this may be seen as a disadvantage for the parties, it may also be a real advantage in putting pressure on one side or the other to settle the matter, if the parties are not willing to face the accountability of public opinion. Quite apart from what the judge is going to determine and enforce as to the merits of the positions of the parties, in litigating a matter, the parties are bringing their dispute out of the backroom and into the public square in front of the community who are also potentially making judgments about the parties and the issues. In this sense, a party might win a lawsuit on a technicality or whatever, but completely lose a case in terms of public opinion. For some entities the loss of public confidence may be a far greater loss than any monetary award that they have successfully defended against.[52]
 
That engaging in litigation might be a part of the justice mission of the church hardly appealed to some other Mennonite observers who also responded to the 1963 Mennonite statement on litigation, this time arguing that it was too liberal, rather than too conservative. For example, D. R. Yoder stated:
Rather than giving a solid foundation for decisions concerning the use of the law, I fear it opens loopholes for those who desire to use the law and makes hazy the once clear Mennonite principles regarding legal action. “Aggressive suits at law in particular we have always considered a violation of the way of the cross.” The plaintiff never sees himself as aggressive; only desiring justice. Further vagueness is provided by the section entitled “Concerning Legitimate Judicial and Quasi-Judicial Procedures.” Once the use of the courts for any purpose except defence against unfounded criminal charges is accepted then the human mind is ingenious in finding justifiable reasons for the recourse to the courts.[53]
 
During this same period of discussion stimulated by the 1963 statement, Richard Yordy wrote a paper on “The Christian and Litigation” which was widely circulated but apparently never published.[54] The whole thrust of Yordy’s review of the biblical material was in the direction of upholding the traditional restrictive ban on going to law. However, Yordy emphasized the need to make ethical decisions in each situation within the spirit of being firmly committed to Christ as Lord, rather than making decisions according to some formalistic rules applied by the church. He stated:
To adjust our statements to permit certain types of legal action without consideration of the subjective and spiritual elements in each unique situation can also be human formalism.[55]
 
Over the next few years, the 1963 statement underwent various revisions, but as far as I am able to determine, the attempt to articulate a formal position on litigation was abandoned in 1965. The actual opinions of those sitting in the pew seemed to be out of step with the more restrictive views of Anabaptist leaders. That the traditional approach against ever being the plaintiff was under increasing pressure was indicated nicely in a letter written to J. H. Yoder by Edgar Stoesz on behalf of Goodville Mutual Casualty Company in 1972. Stoesz sought advice from Yoder because the company was in the process of restudying its position on litigation. Stoesz stated:
The situation is gradually changing... both within our country and within the Mennonite church. Witness, for example, the increasing number of Mennonites who are entering the law profession while maintaining strong church relationships. It is also my observation, though I cannot document it, that Mennonite businessmen are using more force if necessary in the collection of bills. In working with Mennonite church institutions (even more conservative ones), we have found a surprising readiness to permit a legal process to adjudicate a dispute. I do not recite this to suggest that these changes make litigation morally right, but simply to observe that Mennonite practice in this area seems to be changing.[56]
 
Judging from the results of a 1972 survey of members of various Anabaptist groups, the absolutist approach indeed was changing. Asked whether they agreed with the statement that, “If a Christian has a legitimate claim of property damage against another person, he is justified in bringing suit in a court of law” only 36 per cent of Mennonite respondents disagreed.[57]   Furthermore, in a 1980 survey of their membership, Mennonite Mutual Aid noted that it was reconsidering its traditional approach to litigation which was:
Presently, MMA does not use a court-of-law to seek recovery from uninsured drivers who damage our members’ vehicles. In most cases involving uninsured motorists, letters seeking reimbursement are mailed. However, if responses are not received, the claim is usually closed. In this case, where litigation is not used, MMA simply absorbs the cost of the loss.[58]
 
The written responses of members to the survey indicated that a majority of members still would rather pay higher premiums to absorb losses rather than having the company litigate, which was seen as violating Christian ethics. However, there was a significant number of responses that indicated a willingness to use the law to hold “wrongdoers” accountable.
 
3. Task Force on Litigation and Statement of 1981          
 
Clearly the Mennonite Church was significantly divided on the litigation issue. Another attempt to formulate a Mennonite inside law on going to outside law was made in 1976, when the MC church established a Task Force on Litigation. The Task Force, which eventually included about a dozen persons, was chaired by Carl Kreider. The Secretary was Richard Yordy, and Mennonite lawyer Elvin Kraybill was added to the group early in the deliberations.[59] J. Richard Burkholder, another member of the committee, surveyed the Mennonite position to that point in time.[60] There was wide consultation with interested groups and various drafts were circulated and revised before the Task Force ultimately produced a statement on “The Use of the Law” which was adopted by the Mennonite Church in 1981.[61]
 
The 1981 statement began with an affirmation that disciples of Jesus were called to live by, and witness to, the ethics of the Kingdom which included walking in the path of peace and reconciliation which in turn might require suffering wrong. After listing the various scriptural passages dealing with disputes, the statement noted:
Jesus’ teachings are not cast in a legal code. They are striking illustrations of the meaning of the gospel. Jesus challenges his followers to find reconciling ways to overcome conflicts in the various situations of life.[62]

The statement then turned to the modern context of legal affairs to which the ethics of the Kingdom were to be applied. In an increasingly litigious society, where people were quick to sue for ever increasing amounts of damages for real or imaginary loss, Mennonite businesses, professional persons and even congregations were increasingly threatened with lawsuits. Despite the possible abuse of the law for selfish ends, the statement affirmed the value of the law in the maintenance of order and the pursuit of justice in society and affirmed the desirability of using lawyers to put matters in proper legal form and prevent disputes from arising in the first place. As to insurance contracts, the statement raised a point of caution:
Christians should be aware that in securing many kinds of insurance, an agreement is made that gives the insurance company the sole right to resolve disputes involved. Such an insurance policy usually gives the insurance company the exclusive right to initiate a lawsuit in the name of the insured person. The insured is also required to notify the company of a potential claim immediately and is limited in making other personal approaches or statements. The delegation of these rights and responsibilities (i.e. subrogation) is a matter for careful deliberation.[63]
 
The most radical change from the traditional position against litigation, however, was the statements’ openness to the use of litigation to address structural and institutional evil:
A part of the church’s mission of proclaiming “good news” may be to address structural and institutional evil. For some, basic inequities are rooted in economic, social, legal, and religious structures. These structures can be responsible for injustice in the way service is supplied or in the way the law and custom are construed. The poor, the illiterate, the new immigrant, and other oppressed persons are in special jeopardy, because of the difficulty of equal access to some institutions and to the structures of justice. When the church, its agencies, or groups seek justice for a third party within existing structures, or by appealing for necessary changes in law, structure or procedures, litigation may be warranted.[64]
 
In dealing with the issue of whether a particular litigation matter is, or is not, in conformity with the ethics of the Kingdom, the statement refused to make any categorical claims, but rather focussed on how such decisions should be made rather than on what the decision should be. It was up to the church congregation to apply the scriptures and discern the will of God in each situation. In effect, whatever the intent, the statement might be seen as marking a very fundamental shift in the official position of the church, from a rejection of all “aggressive” litigation to an openness to the possibility that in some circumstances going to law would be acceptable, so long as the permission came from the congregation after deliberation. The statement asserted that in the deliberation at the congregational level, alternatives to litigation would have to be given priority and “approval can only be for cases that do not share those elements which New Testament examples clearly advise against.”[65] Thus, rather than attempting to implement more detailed substantive church rules on litigation, the Statement listed a number of questions for church counsellors and communities to consider:

(1) If a lawsuit has been filed against a believer, should he or she make the best defense possible and will this include a counter suit?
(2) If a Christian has acted negligently and then encounters unrealistic demands from the injured party, is litigation appropriate to establish the extent of the Christian’s responsibility?
(3) Is litigation necessary to protect children, the aged, the poor, or other persons with limited power?
(4) Is a lawsuit the best way of dealing with a government agency or public institution that will not acknowledge questionable behavior or liability until such a proceeding is initiated?
(5) If a fairly negotiated business contract is broken, should it be enforced by a court?
(6) Is litigation an appropriate method of involving a party who refuses to acknowledge any responsibility?
 
In each of the above, it cannot be assumed that justice as well as reconciliation would be served by litigation. The church resource can help clarify the issues of morality and Christian witness involved in a given case. Such counsel can also address the feelings of anger, revenge, hostility, hurt, or guilt that may be present. In each case the Christian concern should lead beyond order and justice to peace and reconciliation.[66]
 
This 1981 statement on the use of the law, appears to be the latest Mennonite formulation on the issue. While this statement may capture the evolution of Mennonite practice, from a more formal legislative set of prohibitions and permissions to a process-oriented approach within a set of broader principles, I would argue that the statement is out of step with a more legalistic and separationist Amish and Hutterite and Old Order Mennonite culture.
 
IV. BRIEF SURVEY OF ACTUAL MENNONITE LITIGATION

As in our survey of Hutterite and Amish litigation, we will divide the reported cases into those involving external relations which are arguably less problematic and those involving internal relations which are particularly problematic.
 
A. LITIGATION INVOLVING EXTERNAL RELATIONS
 
It should be noted that far more research is necessary dealing with Mennonite cases. The following amounts to little more than a first draft and rough notes on some of the cases I have found.
 
1. Mennonite Governmental Litigation

Some Mennonites were dragged into military and criminal proceedings during the period of the American Revolution when the nonresistance of the Mennonites was put to the test. The new militia acts passed in various States imposed heavy penalties on those who did not join the military drills. Many Mennonites appealed these extra fines and forfeitures to various appeal boards.[67] While the vast majority of Mennonites paid extra taxes for the war while not bearing arms, more direct challenges to the Mennonite faith were the so called “Test Acts” which required people to renounce their British allegiance and swear or affirm allegiance to the various States. Persons who did not do so would be ineligible to vote, hold office, serve on juries, sue for debt or transfer real estate by deed. Later new penalties were added to the list amounting to double taxation and exclusion from various occupations. Most Mennonites would not affirm any statement that they were enemies of Britain or that the current state, however imperfect, was not instituted by God. Aside from whatever loses of rights they might have suffered by refusing to take part in the Test Acts, some situations arose in 1778 where Mennonites were jailed after court hearings for their refusal to affirm allegiance to the State of Pennsylvania.[68]
 
In Canada, the Militia Act of 1793 exempted Quakers, Mennonites and Tunkers from militia duties, but in return for exemption there were a variety of annual fines that had to be paid for this privilege. These fees were sometimes challenged in court by Mennonites as being too onerous.[69]
 
In the 19th Century during the Civil War era, some Mennonites compromised their faith and fought on the Union side, but for those who remained nonresistant, the law allowed various special fees to be paid in leu of service, or even the hiring of a substitute. While these modes of getting exemption for military duty raised intense debates within the community as to whether they compromised true nonresistant practice, there must have been at least a few cases where Mennonites were also prosecuted for not only refusing to shoot, but also refusing to pay or to send a substitute.[70]
 
During the First World War, various Mennonite Conscientious Objectors were subjected to court martial hearings. For example, George S. Miller was found guilty of allegedly insulting the flag and disobeying an officer. Miller was found guilty and sentenced to life imprisonment at hard labor. In the military prison at Fort Leavenworth, Kansas, he was persecuted until a clemency board recommended his discharge.[71] There were many cases of Mennonites being court martialled. As noted by Juhnke, “By June 1919, the army had court-martialled 504 conscientious objectors and sentenced two-thirds of them to ten, twenty, or twenty-five years in prison. Only one such trial ended in acquittal.”[72] But the mistreatment of the German speaking Mennonites in the First World War was not confined to those who were drafted into noncombative military service. For example, Miller’s father, who edited an Amish newspaper, also found himself before the courts. The elder Miller was prosecuted before a grand jury on espionage-sedition charges because of various printed materials in his newspaper questioning the propriety of Anabaptists buying war bonds. In another case, Mennonite bishop Lewis Heatwole, was prosecuted for urging Mennonites not to buy war bonds. Various Mennonites were also persecuted by mobs, and several were nearly lynched. Significantly, those that were subjected to these illegal acts, refused to take the perpetrators to court. One of the many incidents of anti-Mennonite hostility involved John Schrag in Kansas, who was abducted and nearly lynched on Armistice Day in the town of Burton. He was saved from death by the intervention of the head of the local anti-horse-thief association, who brandishing a gun, got the victim into the local jail for protection. As recounted by Junke:
Then the Burrton patriots, charging that he had cursed the American flag, put him on trial in a Wichita district court. The Judge dismissed the case, partly because the monolingual plaintiffs could not prove that Schrag’s words, spoken in German, were actually slander.[73]
 
There are a number of Canadian and American cases involving military matters that need to be examined. These include:
            Rex ex rel Peters v. Harrison [1944] 1 W.W.R. 353 (Man. C.A.) re court martial for failure to put on army uniform after earlier being jailed for six months for failure to report for military training. Also R. v. Harder [1943] 1 W.W.R. 526 (Man. C.A.) re appeal of conviction for refusal to report for military training after denial of exemption on religious grounds. Also R. v. Giesbrecht [1944] 1 W.W.R. 42 (Man.C.A), but it is unclear in this case whether the Mennonite was a pacifist or actually had a preference to fight for Germany. See also Ken Reddig, “Judge Adamson Versus the Mennonites of Manitoba During World War II” (1989) 7 J. of Mennonite Studies 51. United States v. Schmucker (1987), 815 F.2d. 413 (Fed. C.A. 6th Circ.); (1985), 471 U.S. 1001 (S. Ct.); (1983), 721 F. 2d. 1046 (Fed. C.A. 6th Circ.); United States v. Epp (1984), 587 F. Supp. 383 (Fed. Dist. Ct. Kansas); United States v. Koehn (1972), F. 2d. 395 (Fed. C. A. 10 Circ.); United States v. Penner (1970), 420 F. 2d 344 (Fed. C.A. 10th Circ.); Thiessen v. United States (1956), 296 P. 2d. 566 (Cal. C.A. 4th Dist.); Rempel v. United States (1955), 220 F.2d. 949 (Fed. C.A. 10th Circ.); United States v. Derstine (1954), 129 F. Supp. 117 (Fed. Ct. East. Dist. Pa.); Jost v. United States (1953), 256 P. 2d. 71 (Cal. C.A.); Application of Wiebe (1949), 82 F. Supp. 130 (Dist. Ct. Nebraska); In re Warkentin (1937), 93 F. 2d 42 (Fed. C.A. 7th Circ.); State v. Rempel (1919), 172 N.W. 888 (S. Ct. Minnesota).
More research should be done on these cases.

In addition to the area of military service, another field of litigation has been schooling. It is noteworthy that when a delegation of Mennonites from Russia visited Canada in 1873, they negotiated terms of immigration for the Mennonites. The fifteen point document from the federal Secretary of Agriculture that was given to the Mennonite leaders included:
…an entire exemption from military service; eight townships of land available free in quarter-section quantities or less to males 21 years old and over; exclusive use by Mennonites of the reserved land; additional townships if needed and exchange privileges for another eight townships; purchase rights at one dollar per acre of an additional three-quarters to make a section of 640 acres, full exercise of religious principles and education of children without restriction; the right to affirm instead of to swear in taking the oath; transportation credits in the years 1874-1876 of up to 30 dollars for adults (no more than 40 dollars up to 1882) from Hamburg to Fort Garry; and supplies for the sea voyage.[74]

As to the right to control education, the Mennonites were probably unaware of the division of legislative power under Canadian federalism, and without being told of the changes, the actual Order-in-Council that was passed several days later had a significantly different and ultimately devastating impact on the Mennonites, when the land granted to them became part of the province of Manitoba. 
 
The historical details of the eventual conflict between some groups of Mennonites in Canada and the provincial governmental authorities, particularly in Manitoba and Saskatchewan is well documented.[75] However, there does not appear to be any research on the actual details of the unsuccessful litigation involving a test case. While the more conservative Mennonites did not challenge the many fines and imprisonments of Mennonite parents in the wake of refusal to send their children to the public schools, eventually one slightly more liberal group in Manitoba took a test case to court. The leading unsuccessful case is R v. Hildebrand and Doerksen [1919] 3 WWR 286 (Man.C.A.). Leave to appeal to the Privy Council in London was refused, and subsequently many thousands of the most conservative Mennonites left Manitoba and Saskatchewan rather than lose control over the schooling of their children.
 
 On the schooling issue note more recently R. v. Wiebe [1978] 3 W.W.R. 36 (Alta Prov. Ct). In this case the Mennonite accused did not hire a lawyer, so a lawyer was appointed as a “friend of the court” to present the defence. More recently some Mennonites joined a coalition of other minority religious groups in attempting to challenge the refusal of Ontario to fund minority religious schools in the context of funding Roman Catholic schools. See Bal v. Ontario (1997), 34 O. R. (3d) 484 (Ont. C.A).
 
Mennonites have also been involved in litigation dealing with labour union membership,[76] taxes,[77] and zoning.[78]
 
2. Civil Litigation involving External Relations
 
Trying to identify the amount of Mennonite litigiousness involves looking at a mosaic of groups from the most conservative end, who are similar to the Amish in their anti-litigation norm, all the way to the more liberal groups, where it is difficult to see much of any retention of nonresistant beliefs. It is extremely difficult to count reported cases dealing with Mennonite plaintiffs or defendants, because the religious affiliation of the parties will hardly be a relevant factor mentioned in most contract disputes or a liability suit for negligence, or whatever. Some years ago, I went through every volume of a regional law report series for Western Canada and identified 328 reported cases dealing with law suits by or against individuals or entities that had Mennonite ethnic names.[79] Of course these are only the Dutch-North German names of the Russian Mennonite group, who settled in the West in the late 19th Century and subsequently, and does not include the litigation that may exist, particularly in Ontario, among the Swiss- South German group, who have been in Canada for a much longer period. When doing computer searches of more recent court files in Manitoba using Russian Mennonite ethnic names the numbers of cases are so huge that it is fruitless to even try to count. Of course, if we try to identify cases using ethnic Mennonite names, we have a double problem in that many people with ethnic Mennonite names have long since left the Mennonite church, or they are several generations removed from it, and secondly, many Mennonite groups are evangelical, with rapidly growing churches, and thus many Mennonite believers do not have what might be called ethnic Mennonite names. Thus, counting cases by ethnic Mennonite names is rather pointless, but I still think we can conclude that of the many hundreds of reported cases in Manitoba alone, some proportion of these cases involved members of Mennonite congregations who were engaged in litigation, often contrary to the doctrinal statements we examined earlier.
 
We have obviously come a long way from the end of the 19th century, when the prohibition on bringing lawsuits to court was still firmly in place. As noted by Schlabach:
On another matter, initiating lawsuits, “old” and Amish Mennonite conferences usually were adamant. But a Lancaster conference discipline first printed in 1881 left a small opening for a special kind of case. “If a brother is appointed executor” or guardian of an estate and “cannot close the estate without suing at law” the discipline said, he could do so. Oddly, the discipline declared further that such a man should stay back from communion until the case was finished. Before again communing the man had to go “before the church” to “ask forbearance” and find out whether anyone were “grieved” by his action. Yet he did not have “to acknowledge an error or transgression.”[80]    
 
In a few older cases, the Mennonite affiliation is explicit. For example, in 1892 a Mennonite was successful in defending against a claim founded on a contract that he had signed but was unable to read. The court stated, “The defendant is a Mennonite and neither speaks nor writes English.”[81] It was established that the agent for the plaintiff had explained in German what the contract purportedly contained, but then the court determined that the actual contract turned out to be very different than the one the Mennonite thought he was signing. Both the trial court and the appeal court cancelled the contract. This action involved a Mennonite defendant and might be seen as justified by the more modern particularistic approach.
 
In another case, a group of Mennonites who were trying to establish a Mennonite colony in Saskatchewan made a contract in 1905 with some real estate agents in Winnipeg who claimed that they had purchase rights to a block of land. Eventually it turned out that the agents had been unable to assemble and survey the land, and that the claim that they had purchase rights was false. When the deal collapsed, the agents still sued the Mennonites for an amount of money allegedly agreed to by way of a guaranteed bond used by the agents to raise financing for the assembly of the land. The Mennonites successfully defended, as the agents took the case right up to the Supreme Court of Canada. The court said the Mennonites owed nothing to the real estate agents who provided no service to the Mennonites.[82]
 
On the same theme of being exploited, a Saskatchewan Mennonite farmer in 1907 purchased a threshing outfit and signed a promissory note as to payment. Eventually there was some difficulty as to coming up with the full amount owing on the note and the farmer and the vendor negotiating a new agreement that the farmer thought was in complete satisfaction of the debt. The farmer fulfilled all obligations under the new agreement, but then the vendor claimed that the farmer still owed more money and threatened to sue him. As stated by the court, “The defendant was a Mennonite, and it was against the principles of his religion to go to law. So, after Regier (agent for vendor) told him that unless he signed [a new note] the company might make him trouble, he signed it for the amount claimed, which note is the one now sued on.”[83] When he was sued, the farmer did defend himself in court, and while losing at trial, he appealed, and the Saskatchewan Court of Appeal threw out the coerced new note and held that the farmer owed nothing more since he had fully paid the debt under the original settlement agreement.
 
There are also enough reported cases dealing with Mennonite insurance companies in Canada to illustrate that in at least some cases the insurance company has defended against claims in court.[84] These are just some examples of Mennonites in Canada going to court to defend against claims.
 
Without any attempt at a comprehensive survey of American cases, we note that a Mennonite Board of Missions in Indiana sold some property and provided financing by way of a mortgage to the purchaser. The new owner failed to pay the taxes on the property and it was subsequently sold by the county at a tax sale, without any direct notice to the Mennonite Board. As a result of various peculiarities of Indiana law at the time, no direct notice to the mortgagee was required in terms of the right of the Board to redeem the property, and the tax sale purchaser, after a period of time, was entitled to receive the property free and clear. The new owner brought action to “quiet title” and the Mennonite Board defended, arguing that the lack of notice provisions in the law amounted to a violation of the due process clause of the Constitution. What is surprising is that the Mennonite entity fought the case all the way up to the Supreme Court of the United States, which ultimately found in favour of the Mennonite Board.[85] This is just one of numerous cases where Mennonite institutions in the United States have defended against claims brought for employment discrimination,[86] harms caused by negligence,[87] and other claims.[88] Mennonite insurance companies in the United States have also defended claims in court.[89]
 
The more interesting issue involves the extent to which Mennonites initiate lawsuits against other individuals and private entities. We would not be surprised as to the use of the courts by more acculturated groups of Mennonites, but there are some cases in which conservative groups have also sued. The leading example in Canada was the protracted litigation that resulted when a conservative group of Mennonites in Saskatchewan, moving to South America, attempted to sell their whole colony through church leaders as trustees, rather than having every individual sell their own land and belongings. It would appear that the Mennonites were taken for a ride at a great cost by unscrupulous actions of real estate speculators and trust company officials. One round of litigation involving a lawsuit by the Mennonite trustees to retain title to their land, as well as a lawsuit brought by the speculators, was fought all the way up to the Judicial Committee of the Privy Council in London, England.[90] In a second round of litigation on the matter, some settlement was reached just as another appeal to the Privy Council was commencing.[91] Perhaps this illustrates the idea that when the exploitation of the Mennonites is appalling and the cost of not taking court action will be devastating, even the conservative groups have been willing to go to court.
 
B. LITIGATION INVOLVING INTERNAL RELATIONS.
 
While the prohibition against bringing aggressive litigation against outsiders is breaking down, at the epicentre of the Anabaptist anti-litigation doctrine is the concept that ecclesiastical disputes within the church community should not be taken to external courts. Other Christian groups, who disagree with the Anabaptists on the issue of violence, may nevertheless join with the Anabaptists in affirming the wrongfulness of going to court in these kinds of cases. Thus, the prohibition in these matters goes beyond the issue of the violence of the law. It is also a matter of the church’s jurisdictional autonomy, competence, and witness. When the church is dealing with lawsuits involving outsiders or the government, the church is usually dealing with the interpretation and application of the outside law. However, when a member or ex-member sues the church, raising issues of rights to be a member, damages for wrongful expulsion, or entitlement to church property, it will almost always be the case that the inside law of the church will be a key aspect of the litigation, raising dangers, not only that the outside court will be incompetent to understand the inside law, but also that the inside law will be transformed or even overturned as it is measured by the additional requirements of the outside law, which may take precedence over inside law.
 
There are some American cases where lawsuits were brought by ex-members of either Amish or more conservative Mennonite churches claiming damages from church officials personally or from the church itself for the harm caused by shunning. For example, the Holdeman Mennonites exercised excommunication and shunning at least as strict as the Amish. This group would have nothing to do with bringing lawsuits to court, but interestingly as a result of their shunning practice, litigation was brought against them:
In 1878 [t]his group lost a troublesome $2,500 lawsuit brought by Joseph Liechty of Williams County in western Ohio. The church had excommunicated Liechty for drunkenness and had required his wife to shun him to the point of refusing to eat or have sexual relations with him. As the suit put it, the church caused her “not to live and cohabit with him as his wife and to abandon and desert his bed and board.”[92]
The bases for liability is not apparent in the secondary literature and the case does not appear to be reported although there is a reference to it.[93]
 
In another Mennonite case, the excommunicated member alleged that his father-in-law, as a result of the command to shun him, broke an existing contract as to the lease and eventual ownership of a farm. But the ex-communicated member sued the church leaders, not the father-in-law, and the court stated that there was no cause of action against the church leaders, unless they knew about the contract and actively conspired to interfere with existing contractual rights.[94] The clear implication of the case was that a religious duty to shun does not necessarily exempt a person from performing duties under existing contracts.
 
Subsequently there were several other American cases, dealing with shunning itself as a wrongful act, and how far the practice is protected under the First Amendment.[95] Some of these cases were again lost, likely because church leaders did not hire lawyers to defend themselves, and shunning was viewed by judges and juries to be a particularly abhorrent practice. There are also a number of more recent lawsuits brought by ex-members related in some way to allegations of harm caused by church counselling or the application of church discipline.[96]

There are also some Canadian cases dealing with liability for shunning in Mennonite contexts. For example, a Mennonite merchant in Saskatchewan was excommunicated because he went to court against another member of the church rather than obey his church leader’s order to settle the matter within the church. Thereafter the excommunicated man brought action against the church leaders for damages caused to his business due to the shunning by church members who were formerly customers. In the first round the courts dismissed the complaint as containing no legal cause of action.[97] However, the plaintiff was persistent and brought a second round of litigation alleging that the shunning constituted an illegal conspiracy. Various proceedings were taken on preliminary issues.[98] When the second-round case went to trial, the church leaders had no lawyer representing them, and the judge found in favour of the plaintiff. The decision seems in part to be based on erroneous findings as to the religious norms of the group, in that the judge concluded that the members of the Mennonite church were not prohibited from bringing lawsuits against other members and therefore the excommunication on that ground was unjustified which then made the subsequent shunning legally wrongful.[99]
 
In another Canadian case, a number of plaintiffs in 1927 brought an action in Manitoba against various leaders of the Holdeman Mennonite Church alleging damages for shunning based on excommunications that had taken place about 30 years earlier in 1898. There were some preliminary proceedings as to who the proper parties were,[100] whether the case was beyond the time limits provided by limitations legislation, and who was required to be examined for discovery. In dealing with these preliminary issues, the Manitoba Court of Appeal suggested that the case should perhaps have not been brought to begin with, because there likely was no cause of action for the harms the plaintiffs suffered by being shunned by the members of their former church.[101]
 
In all of these shunning cases, leaders of the church were sued, or the church itself was sued by ex-members. While these cases litigated inside law in outside courts, much more damaging as a gross violation of the anti-litigation norms, are those cases where church conflicts have led to lawsuits between existing members or different groups or factions of the church. These conflicts often are framed as church property disputes, but in reality, they often involve attempts to win battles in a struggle over correct religious doctrine or practice. Somewhat ironically, the peace-loving Mennonites are prone to be embroiled in often intense conflicts within their community.[102] In stark contradiction to the norms of the group, there have been at least a few cases where these conflicts have escalated to the point of litigation.
 
There is no mention of church litigation or civil litigation in a book dealing with the first hundred years of Mennonite history in North America, spanning roughly the 18th Century colonial period.[103] There is however a reference to a threatened lawsuit arising from a dispute within a congregation which threat was averted by the alternative practice of sending in several ministers from the wider conference to mediate the local dispute. This mediation failed to resolve the dispute, so the matter was taken up with all the ministers in the conference who imposed a settlement by silencing one of the ministers involved in the local dispute.[104] Much more research into old court records would have to be done to establish the proposition that Mennonites did not utilize the colonial courts for civil disputes.
 
One of the many schisms that took place in the Mennonite Church (MC) occurred in 1847 as followers of Rev. John Oberholtzer walked out of the Franconia Conference and formed their own East Pennsylvania Mennonite Conference which eventually joined the General Conference (GC) when that group emerged after 1860.[105] Oberholtzer was the leader of what became known as the “reformed” Mennonites who were more “progressive” and rebelled against some of the traditional practices of the Mennonite Church. Oberholtzer and his followers disagreed over issues such as the type of coat that a minister was supposed to wear, as well as the rule against using musical instruments in church, and other points of what they considered to be legalistic doctrine. Of more fundamental importance, the “progressives” wanted to have a written conference constitution, formal written minutes of meetings, and formal “due process” oriented church procedures, all of which appeared to the old MC group as evoking images of litigation mindedness. Indeed, in regard to litigation the new Mennonites affirmed the right to bring an action to court if the cause was judged by the community to be clearly a just one.[106] This departure from tradition was soon manifested when a group of the “new” Mennonites were involved in litigation in support of public schools in Bowmansville in Lancaster County.[107]
 
The departure from tradition in regard to litigation was illustrated several decades later when the schism ultimately led to litigation in relation to the church in Boyertown, Pennsylvania.[108] The minority of the Boyertown church followed Oberholtzer and formed a new congregation, but in the commendable spirit of nonresistant cooperation, the majority of the church that remained within the Franconia Conference, allowed the “New Mennonites” to use the church building, and the two congregations worshipped on alternative Sundays in the same building for almost 30 years. The dispute arose however when the original Franconia affiliated congregation, having outgrown the building, wanted to tear it down and build a new one. Again, with the utmost good will, the old congregation still offered the use of the proposed new building to the dissenting “New Mennonite” congregation as before, without any demand for compensation other than what the congregation would freely give, but there was a stipulation that the “New” group would not use musical instruments in their service. In 1876, the Oberholtzer group went to court in an attempt to get an injunction to stop the new church from being built, claiming that they were tenants in common with the Franconia group in the old building.
 
The trial judge first assigned the case to one master of the court to write a report. This master found in favor of the traditional Franconia group. The judge then assigned the case to a different master who came to the opposite conclusion, whereupon the judge ruled in favour of the Oberholtzer. Whether right or wrong as a matter of law, the judge noted:
It is to be regretted that the members of this religious organization should have such differences which they cannot harmonize. The Mennonite Church is world-wide renowned for peace, brotherly love, and good will to all, and for the amicable settlement of all their difficulties among themselves in a Christian spirit. The Court is the last place to which they should resort, and indeed never should until all other amicable modes at an honest effort of adjustment have failed. Once in court, immaterial how it may terminate, feelings of discord are often engendered, that many years will not allay. Neighbors who before were friends are parted forever.[109]
 
While the Oberholtzer group had violated the traditional norms of the Mennonite church by launching the court case, the Franconia group as defendants who had lost at trial, did appeal the decision against them to the Pennsylvania Supreme Court which reversed the decision and found in favour of the Franconia group.[110] The Court stated that the Oberholtzer group had no claim to the Boyertown church. They were not a majority if the case was to be decided on the bases of congregational support. They were not in conformity with the original doctrine of the Mennonites if the case was to be decided on the basis of the trust deed which donated the property to the church in 1790. In essence on either theory, the Oberholtzer were mere guests in the church belonging to the Franconia group.
 
Here we have an example of a Mennonite group who took aggressive court action against another Mennonite group alleging the joint ownership of church property. While the Oberholtzer action clearly violated the norms, the strength of the anti-litigation norm in the 19th Century was best exemplified by the fact that the Franconia trustees for the majority group at Boyertown were themselves disciplined by the Conference for having launched the appeal of the court decision against them.
 
Another schism involving a more conservative group appeared in 1893 as various controversies were raised around bishop Jonas Martin who formed an Old Order Mennonite body out of the Lancaster Conference. Among the various issues leading to this schism, was one dealing with Martin’s opposition to the incorporation of one of the congregations of the Lancaster conference. As noted by Schlabach:
The issue of the Kauffman meetinghouse charter rose after a wealthy politician, public official, and benefactor died in 1886 and left a certain will. The man’s parents (but not he) had been Mennonite, so he bequeathed a substantial sum to “Kauffman’s,” a congregation near Manheim in northwestern Lancaster County. The money was for maintaining the congregation’s property, for its poor, and for missions. In order to receive it the congregation took out a legal charter. But that went against the tradition of Mennonites who tried to stay clear of legal arrangements in order to avoid lawsuits and stay separate from coercive government. Bishop Martin and his supporters had opposed the charter. The issues were not petty. To make a congregation a legal entity was to make it formally an institution of society. And to do that was perhaps to compromise Anabaptist and Mennonite understandings of church as the people of God, belonging to another realm.[111]

We do not know if any litigation arose out of this controversy. There is also a reported case dealing with a contest over a Mennonite church in Kansas.[112]
 
It was almost a hundred years after the Oberholtzer litigation at Boyertown that the Franconia Conference was again faced with litigation presented to the court as a property dispute but being at its root another schism in the MC family. What is ironic is that the first litigation (Franconia 1) was brought by those who affirmed more “progressive” choices in church policy and life, while the second litigation commencing in 1956 was brought by Mennonites who viewed the MC church as having compromised far too much with modernity and calling it back to more traditional separationist forms. One wonders how they could reconcile their affirmation of old order practice with the willingness to go to court against the leaders of their own congregation.[113]
 
The lawsuit was brought in Montgomery County, Pennsylvania, by several individual members of the Franconia Mennonite Congregation against the trustees, deacons and ministers of that church and also the various bishops of the wider Conference. The plaintiffs, as members of the local Franconia church, alleged that the leaders of their church were in breach of trust in regard to the use of the church property. They noted that a trust deed granting some land to the church over 100 years ago explicitly mentioned that the land was to be used by the Franconia Mennonite congregation following the Dordrecht Confession of Faith as reprinted in Philadelphia in 1727 and used by the congregation for a church meeting house, a church school or a place to bury the dead.[114] The plaintiffs then alleged that the leaders of the church and the leaders of the conference were in breach of trust because they violated the deed in that the practices of the church and the use of the property were no longer in conformity with the confession mentioned in the deed. The alleged violations included the argument that the confession supposedly mandated a radical local congregational structure, which the church had now violated, by being in the larger conference of 29 congregations which no longer was simply an advisory body but increasingly exercised control of church polity and practice. In essence the Mennonites had moved from independent congregationalism to federated denominationalism asserted the plaintiffs and this violated the use for which the property had been granted. 
 
The main reason for the lawsuit was the argument that the leaders of the church and the conference had “without prior consultation, authorization, or approval of the congregation,” “silenced and suspended” one of the former Ministers of the church, one Elwood C. Derstine, who had supposedly properly followed the confession of faith. The litigation was brought in the name of two sons of the former Minister and one other supporter of him. Aside from the wrongful movement to denominationalism, the plaintiffs alleged a whole host of what they considered to be violations of the original confession of faith. As summarized by the defence:
The complaint alleges that the defendants have departed from the confession of faith reprinted in Philadelphia in 1727 by cooperating with other church groups; by certain practices in regard to baptism, communion, and ordaining men to the ministry; by changing the house of worship into a meeting place for business purposes; by suspending one Elwood D. Derstine from his ministry; by requiring applicants for membership to sign cards pledging themselves to subservience to a federated or denominational group; by allowing the swearing of oaths; by failing to exercise the power of excommunication and expulsion; by failing to enforce discipline through expulsion and shunning; by using the church for worldly purposes in collecting funds for the erection of buildings not dedicated to the service and worship of God; by permitting the expenditure of funds not associated with worship and without consulting the membership of the Congregation; and by collecting funds from the Congregation without consulting the wishes of the members for purpose of constructing unauthorized structures on adjoining property not conforming to the confession of faith.[115]
 
The last point dealing with the use of property, related to the decision of the congregation to raise funds for a building on adjoining property to the church (arguably not covered by the deed in question) for the purposes of a women’s sewing house to make articles for poor and needy people. The plaintiffs asked for a preliminary injunction to stop any further moves by the trustees and leaders of the Franconia congregation from building the sewing circle house, and also restraining them from acting contrary to the deed in terms of church practices.
 
You could argue that this litigation was the worst possible violation of Anabaptist norms. This was not litigation where someone who has been excommunicated from the church sued the church, or even litigation brought by a separate group of Mennonites against another group as in Franconia 1, but rather we have here litigation brought by some members of the local congregation against their own fellow church members in a dispute over church policy and practice.
 
By 1956, the Franconia church and the Franconia conference could hire Mennonite lawyers to respond to the lawsuit. Both Elvin Souder and Samuel S. Wenger acted for the church. They attempted to stop the litigation with various suggestions for out of court arbitration which the plaintiff’s rejected.[116] At a brief hearing on October 8, 1956, the request for a preliminary injunction was refused. The Mennonite lawyers then filed preliminary objections to the plaintiff’s bill in equity in an attempt to have the case thrown out of court without a trial.[117]
 
The Mennonite lawyers conceded that the courts had jurisdiction to deal with property rights, but they asserted that this was essentially an ecclesiastical dispute which the courts should not get involved in. The plaintiffs were not asking the court to hand over the property covered by the deed to them. Rather they were trying to get the court to rule that the practices of the church violated a confession of faith that supposedly the church was bound by. The building of the sewing house (on adjoining property not even covered by the deed and by purely voluntary contributions of members for such purpose) was quite incidental to the real ecclesiastical matters that the plaintiffs wanted the court to get involved in under the guise of a property dispute.
 
The Mennonite lawyers objected further that the church had established methods of internal appeal which the plaintiffs had not availed themselves of. They also pointed out that the establishment of various conference practices and powers were of long standing and the plaintiffs had not objected to these practices when they occurred. Furthermore, the defendants argued that in fact the establishment and practices of the larger Franconia conference did not violate the Dortrecht Confession at all. For 200 years the pattern of the ecclesiastical control by the larger conference over the rules for the administration of baptism, communion, foot washing, marriage, excommunication, and choosing and ordaining ministers, deacons, bishops and elders had been well established. The Mennonite lawyers also pointed out that the complaints of the plaintiffs made a lot of conclusions about the confession being breached, but they never gave any factual bases for such conclusions.
 
A brief in reply was filed by Louis Sager, lawyer for the plaintiffs.[118] As to jurisdiction, the plaintiff’s focused on the allegation that while the “sewing circle” land was not part of the land of the trust deed in question, property rights were still centrally involved by the “diversion” of funds by the congregation to build the building which allegedly breached the charitable purpose binding the congregation. Anyway, the main point asserted by the plaintiffs was not a matter of purely ecclesiastical concern but involved the misuse, mismanagement, and diversion of all the property of the Franconia church in violation of the charitable purposes for which the church had been set up. The court could properly enjoin the leaders of the church to conform to the trust even if that meant that the court had to sort out the ecclesiastical questions of who was in conformity with the original confession of faith that the property had been forever impressed with. Under the trust doctrine approach to property disputes a small minority might have the right to deal with the property if that minority was in conformity while the vast majority was in breach. That was a question for the trial to sort out, not one for the court to dismiss at the outset by way of claiming a lack of jurisdiction to deal with ecclesiastical dispute. The lawyer for the plaintiffs gave an impressive list of Pennsylvania precedents in support for his argument, including Franconia No. 1 where the court had turned to the question of which group or the other had been in conformity with the original deed for the Boyertown church.
 
As to the issue of exhausting so called church remedies before being given the right to court jurisdiction, the lawyer for the plaintiff pointed out that ecclesiastical bodies could not oust civil jurisdiction and there was no rule requiring appeals before jurisdiction would be granted, and in any case, there was no appeal provision in the original confession that the property was entrusted with, and further any appeal as provided by the Conference would be futile.
 
Finally, the lawyer attached three affidavits of various individuals to the brief.[119] One affidavit was from the suspended minister Elwood D. Derstine who reviewed some of the events leading up to his suspension by the Bishops of the Conference. At a meeting with various bishops in 1953, Derstine, who claimed that the congregation did not approve of the various departures from tradition that the Conference supported, was told that unless he cooperated, his ministerial position would be taken away from him.[120] Subsequently in 1955, Derstine was given a letter by Bishop Ruth, signed by the Secretary of the Conference, which stated:
Since Brother Elwood D. Derstine has for a long time demonstrated an attitude of self-will and inability to co-operate and work with the other ordained brethren of the Franconia Congregation, we hereby authorize Brother Arthur D. Ruth with the other ordained brethren to assume the responsibility of directing the affairs of said congregation and ask that Brother Derstine be subordinate in every way to their decisions.[121]
In September of 1956, an official announcement was made in the church that Derstine had been suspended from his ministry. Derstine concluded his affidavit:
It is quite apparent to me that any attempts by myself to confer as a member of the congregation with any of the executive committee of the Franconia Mennonite Conference has proven fruitless and has not resulted in any return to basic doctrine. When the Executive Committee finally wanted my lone dissident voice silenced, they pronounced their edict, and thereby discouraged any opposition as far as I was concerned.[122]
 
In another of the affidavits it was established that at a recent congregational meeting on Jan. 13, 1957, to approve trustees for the church, Ernest Derstine, arose and requested to make an objection to the motion before there had been a seconder to it. The Bishop, Arthur Ruth, stated, “No you are out of order; you are out of fellowship; you may be present at this meeting; however, you may not be heard.” In the third affidavit, Jacob Wile, one of the named plaintiffs, and Mahlon Alderfer asserted that they had engaged in a series of meetings from 1952 onward with the local ministers or officials of the conference about how the church had been gradually departing from the traditional practices and were told that, “If you are dissatisfied with our policy, you can look for another church.”[123] They concluded that, “It was only after all of these repeated attempts had been made over the years and had proven fruitless that we finally resorted to law.”[124]
 
The Mennonite lawyers again attempted to have the matter dealt with internally. On March 2, 1957, they offered to submit the case to arbitration with the plaintiffs selecting two bishops, the defendants selecting two, and the fifth to be chosen by the four so designated. The arbitration would proceed without legal counsel being present. The plaintiffs refused.[125]
 
In ruling on the defendant’s preliminary objection on March 5, 1957, Judge Knight noted that the court had jurisdiction to hear the case as a matter of property rights, if for example the confession of faith prohibited a federated type of ecclesiastical structure. Thus, he was not prepared to throw the case out of court at this stage. However he did require the plaintiffs to be much more specific and particular about what the various alleged breaches of the confession were, and ordered them to produce an amended complaint.[126] As a result, the plaintiffs now produced a complaint listing about 200 examples of matters that they alleged were done “without prior consultation, authorization, or approval of the congregation” and “contrary to ancient usage, custom, and tradition.”[127] Virtually all the major decisions and activities of the Franconia Conference Bishops were listed from 1918 to the date of writing in 1957. What seems most ironic is that while the plaintiffs objected to a host of so called “modernization” trends and the lack of proper discipline and shunning, they somehow seemed blind to their much more fundamental breach of Anabaptist norms in bringing the lawsuit.

One of the 200 complaints involves the fact that they were disciplined themselves for bringing this lawsuit:
(99) Without previous authority, consultation, or approval of the congregation, one Bishop Arthur Ruth, on or about May 5, 1957, announced to the congregation that since the signers of the subject Bill in Equity had refused to withdraw the suit, the said signers and those who gave the signers sympathetic support were not eligible for communion and would be “set back from the counsel of the church.” The said Arthur Ruth, on said date, further stated that unless a definite commitment was made to the Bench that resulted in a withdrawal of the suit, the brethren named and indicated would not be eligible for communion. This was in violation of a fundamental right of dissent against grievances and a totally unwarranted misuse of the holy ritual of communion and amounted to the use of said holy rite as a religious sanction. Further, it was in violation of the long-standing usage, custom, and tradition of the Mennonite Church.[128]

The plaintiffs then went on to assert that the bishops should have expelled and shunned individuals for breaching various doctrines that the plaintiff’s held dear. Being barred from communion for bringing an aggressive lawsuit against the church was somehow bad claimed the plaintiffs, but expulsion and shunning for simply being in attendance at an inauguration of the President, as one of the bishops had done, should have been done.
 
The Mennonite lawyers for the defendant wrote a lengthy brief in reply to the complaint and denied the points made by the plaintiffs.[129] While each of the approximately 200 claims were dealt with, there were a number of basic themes contained in the answer. As to the idea that somehow pure congregationalism was the pattern as alleged by the plaintiffs, the defendant’s pointed out that the local Franconia Church had been a federated member of the Conference for over a hundred years before the deed of land of 1834 relied on by the plaintiffs was made. It was the Conference that adopted and interpreted the Dordrecht Confession of Faith as referred to in the deed. The Conference, now composed of 29 churches, met semi-annually and each church was represented by its own ministers and deacons and the Conference had always had the power of supervision and ecclesiastical control of the churches within it. The complaint that all of the Conference decisions were done without the approval of the local congregation was denied in every case because each local congregation had a full vote in these decisions through their representatives, with resolutions requiring to be passed by a two-thirds majority. Once passed the resolutions bound the individual churches and this had been the pattern long before the deed in question was made. Furthermore, in regard to all of the decisions that had been made, including the recently adopted 1956 Constitution, Doctrinal Statement, and Discipline, there was no departure from the traditional emphasis of nonconformity to the world or the nonresistant heritage of Mennonite faith, and the lawyers denied on every issue raised by the plaintiff that any modifications to the wording of various rules of the church were in any way inconsistent with the Confession of the Conference. As to the deed itself, the lawyers argued that the deed merely described the congregation that was to receive the land, it was not prescriptive in the sense of freezing the congregation for all time to a particular confession, but was rather descriptive. 
 
Our information on this case basically runs out at this stage, except for the notation that the case went to trial before Judge Morris Gerber and the plaintiff’s lost. The note states:
The plaintiffs took defeat and their followers helped build a new Church near the Franconia Church on Route 113. They added a school were their children attend to the 8th grade with a non-college educated teacher. They call themselves conservatives and dress plainly and drive cars that have the bumpers painted black... Things were still not settled between the members of this branch. They split over the idea of having Sunday School and this group met in the schoolhouse for services. Other problems caused some people to go back to Franconia or attend another new branch at Railroad Ave in Souderton.[130]
 
At the time that the litigation over the use of church property was proceeding, a number of individuals including one of the Derstine sons named as plaintiffs in the first litigation, brought a second case to court in January, 1957, in the form of an objection to the granting of a non-profit corporate charter for the incorporation of the Franconia Mennonite School.[131] Mennonite lawyer, Elvin Souder filed a lengthy reply against the arguments of the plaintiffs.[132] We assume the school was properly allowed to incorporate.  
 
Finally in terms of church property, to some degree the litigation in Manitoba dealing with Mennonite Waisenamts (community financial organizations) might be placed in this category, because these institutions of mutual aid, originally holding property in trust for widows and orphans, but then expanding to meet other needs of the congregation, were in essence an arm of the church. In one case, a branch of the Reinland Waisenamt brought an action for money owing under a loan that the Waisenamt had made. Presumably the action was brought against an ex-member of the church and was brought a few days before the expiry of the six year limitation period.[133] Although the trustees of the Waisenamt brought the action in their own name, one might argue that the church here was suing a former member to recover a debt, which seems to be a particularly glaring example of breaching the church’s own doctrine.
 
Litigation also broke out in Manitoba when the Bergethaler Waisenamt was finally ready to distribute some remaining assets after going bankrupt during the depression. One of the beneficiaries initiated a series of lawsuits in an attempt to get priority over other creditors.[134]
.........................................................................

     [1] For a basic overview of the Mennonite experience in Canada see the three volume series: Frank H. Epp, Mennonites in Canada 1786-1920: The History of a Separate People (Toronto: Macmillan, 1974); Frank H. Epp, Mennonites in Canada 1920-1940: A People’s Struggle for Survival (Toronto: Macmillan, 1982); Ted D. Regehr, Mennonites in Canada 1939-1970: A People Transformed (Toronto: U. of T. Press, 1996). For an overview of the Mennonite experience in the United States, see Richard K. MacMaster, Land, Piety, Peoplehood: The Establishment of Mennonite Communities in America, 1683-1790 (Scottdale: Herald Press, 1985); Theron Schlabach, Peace, Faith, Nation: Mennonites and Amish in Nineteenth-Century America (Scottdale: Herald Press, 1988); James C. Juhnke, Vision, Doctrine, War: Mennonite Identity and Organization in America, 1890-1930 (Scottdate: Herald Press, 1989); Paul Toews, Mennonites in American Society 1930-1970 (Scottdale: Herald Press, 1996).

     [2] Most recently the MC and GC groups have decided to merge.

     [3] As to the Mennonite Brethren, see, Jacob Loewen and Wesley Prieb, Only The Sword of the Spirit (Winnipeg: Kindred Press, 1995).

     [4] As to original diversity, see, Harry Loewen, “Church and State in the Anabaptist-Mennonite Tradition: Christ Versus Caesar?” in Ross Bender and Alan Sell, eds., Baptism, Peace and the State in the Reformed and Mennonite Traditions (Waterloo: Wilfred L. U. P., 1991) 145-165. As to the dominant model, see, Guy F. Hershberger, ed., The Recovery of the Anabaptist Vision (Scottdale: Herald Press, 1957).

     [5] This use of “Sunday and Monday” comes from Frank H. Epp, The Glory and the Shame (Winnipeg: Canadian Mennonite Publishing Association, 1969) at 25.

     [6]  “Schleitheim Confession (Anabaptist, 1527)”, Mennonite Historical Society of Canada, Canadian Mennonite Encylopedia Online, 2000. <www.mhsc.ca/encyclopedia>. This version of the Confession is taken from John Howard Yoder, The Legacy of Michael Sattler (Scottdale: Herald Press, 1979).

     [7] Ibid.

     [8] See, 1 Corinthians 6: 1-11.

     [9] P.J. Klassen, The Economics of Anabaptism (Ann Arber: U. Microfilm, 1962) at 154 n.1.

     [10] Claus-Peter Clasen, Anabaptism: A Social History (Cornell U. Press, 1972) at 179-180.

     [11] For an overview of more activist Anabaptism, see, Leo Driedger and Donald B. Kraybill, Mennonite Peacemaking: From Quietism to Activism (Scottdale: Herald Press, 1994).

     [12] David M. Smolin, “A House Divided? Anabaptist and Lutheran Perspectives on the Sword” (1997) 47 J. of Legal Education 28 at 34.

     [13] See for example, John Howard Yoder, The Politics of Jesus (Grand Rapids: Eerdmans, 1992).

     [14] From Article 22, “Peace, Justice, and Nonresistance,” Confession of Faith in a Mennonite Perspective (Scottdale: Herald Press, 1995). This confession was adopted jointly in 1995 by the Mennonite Church (MC) and the General Conference Mennonite Church (GC), the two largest Mennonite groups in North America. These two groups have recently decided to merge.

     [15] There are a variety of competing paradigms for the new activist models. See, John R. Burkholder and Barbara Gingerich, eds., Mennonite Peace Theology: A Panorama of Types (Akron: M.C.C., 1991). See also J. R. Burkholder, “Mennonite Peace Theology: Reconnaissance and Exploration” for M.C.C. Peace Theology Colloquium VI, 1991.

     [16] On restorative justice in the area of criminal law and procedure, see Howard Zehr, Changing Lenses (Scottdale: Herald Press, 1990).

     [17] For example, one might argue that while many prisoners could be released, there are a few who are so obviously dangerous that the violence of the state must be used to keep them in custody.

     [18] Article 23, “The Church’s Relation to Government and Society,” Supra note 14.

     [19] The literature on the shortcomings and need for reform of the civil justice system is voluminous. Some recent Canadian examples include Report of the Canadian Bar Association Task Force on Systems of Civil Justice (Ottawa: C.B.A., 1996); Ontario Civil Justice Review: Supplement and Final Report (Toronto: Ont. Civil Justice Review, 1996); Ontario Law Reform Commission, Rethinking Civil Justice: Research Studies for the Civil Justice Review (Toronto: Ont. Law Ref. Comm., 1996); Manitoba Civil Justice Review Task Force Report (Winnipeg: Dept. of Justice, 1996).  For an American perspective, see Larry Kramer, ed., Reforming the Civil Justice System (New York: U. Y. U. Press, 1996); American Bar Association, An Agenda For Justice, (Chicago: American Bar Association, 1996); ABA Blueprint for Improving the Civil Justice System (Chicago: American Bar Association, 1992).

     [20] There is a vast literature on Alternative Dispute Resolution. Some recent Canadian examples include A. J. Pirie, Alternative Dispute Resolution (Toronto: Irwin Law, 2000); G. Chornenki and C. Hart, Bypass Court: A Dispute Resolution Handbook, (Toronto: Butterworths, 1996); The 1997 Isaac Pitblado Lectures, Dispute Resolution: Systems in Transition (Winnipeg: Law Society of Manitoba, 1997); Alberta Law Reform Institute, Dispute Resolution: A Directory of Methods, Projects and Resources (Edmonton: ALRI, 1990). A leading American reference is S. Goldberg, F. Sander, and N. Rogers, Dispute Resolution (New York: Aspen, 3rd ed, 1999).

     [21] See, Robert Cover, “Violence and the Word” (1986) 95 Yale L. J. 1601. For a broader treatment of other forms of coercion beyond physical violence see, Grant Lamond, “The Coerciveness of Law” (2000) 20 Oxford J. of Legal Studies 39.

     [22] Some classic criticisms of the adversary process include Marvin Frankel, Partisan Justice (New York: Hill and Wang, 1980); Anne Strick, Injustice for All (New York: Putman, 1977).

     [23] Joseph G. Allegretti, The Lawyer’s Calling: Christian Faith and Legal Practice (New York: Paulist Press, 1996).

     [24] Ibid. chapter 6, “Lawyers and Litigation” at 81-95.

     [25] John 18:37

     [26] All quotations from the Revised Standard Version.

     [27] The two other more liberal branches of the Mennonite side of the Anabaptist tree did not apparently formulate statements on the issue to the degree that the MC church did. A trip to both the Archives of the Mennonite Brethren Church at Concord College (MB) and the Archives at C.M.B.C. (GC) turned up very little on the topic of litigation. There was a GC Study Conference on “The Church and Its Witness In Society” in Winnipeg in 1959 where Mennonite lawyer John J. Enns presented, “Concerns Related to Legal Problems and Involvements.”  Enns, who later became a provincial court judge, affirmed that the traditional position of Mennonites was not to resort to the law courts for settlement of disputes. While agreeing with this principle in general, he noted some circumstances where it should not apply. For example, special funds to compensate victims had been set up by the government but required court action to access. On the MB side, there was a 1985 unpublished paper by R. M. Baerg, “The Christian and Litigations.” This paper focuses on disputes between Christians and the 1 Corinthian 6 passage.

     [28] The unpublished papers and discussion summaries for “Conference on Nonresistance and Political Responsibility”, Peace Problems Committee, 1956, found in the Canadian Mennonite Bible College Library, Winnipeg.

     [29] Hershberger, “Litigation in Mennonite History” Ibid. at 32. This summary of the Mennonite position on litigation is also contained in an article on “Litigation” by Hershberger in the Mennonite Encyclopedia, (Scottdale: Herald Press, 1956). Subsequently Hershberger restated his position in the leading work, Hershberger, The Way of the Cross in Human Relations (Scottdale: Herald Press, 1958) at 317-321.

     [30] In the first half of the 20th Century, lawyers with Mennonite backgrounds would usually leave the church. Being a Mennonite lawyer was an oxymoron. However, Samuel Wenger, who received his law degree in 1937, was an exception in that he was not only a lawyer, but also a faithful member of the MC church group. See “Mennonites and Professionalism: Beginnings in Lancaster” (1983) XLIV Mennonite Historical Bulletin, No. 4, 1-4 which gives an overview of Wenger’s career and views. Note too that in the more liberal GC church group, Maxwell H. Kratz practised law from the beginning of the century and continued to be a leading figure in the church, as noted in Paul Toews, Mennonites in American Society 1930-1970 (Scottdale: Herald Press, 1996) at 23. In contrast, all the lawyers of Mennonite background in Western Canada during the period that Kratz and Wenger were called to the bar left the Mennonite Church. It would be a later generation of lawyers who would venture to call themselves both a lawyer and a Mennonite. See Harold Dick, Lawyers of Mennonite Background In Western Canada Before the Second World War (Winnipeg: Legal Research Institute, 1992).

     [31] Wenger’s comments were expanded on in Samuel S. Wenger, “Mennonites and the Law” (Feb. 1958) Christian Living 6 at 33.

     [32] The unpublished background papers for “Consultation on Litigation Problems” were found in the Canadian Mennonite Bible College Library, Winnipeg.

     [33]  Wenger, “Classification of Types of Legal Proceedings,” Ibid. at 11.

     [34] Carl Kreider, “Legal Principles Which Are Compatible with Scriptural Principles and Those Which are Incompatible” Ibid. at 24.

     [35] Ainlay, “Comments on Wenger,” Ibid. at 11C.

     [36]  “Memorandum to the Mennonite Church,” Ibid. at 11G-L.

     [37]  Ibid. at 11d-f.

     [38]  For an overview of the wider theological doctrines and practices of mutual aid, see Willard M. Swartley and Donald Krabybill, eds., Building Communities of Compassion: Mennonite Mutual Aid in Theory and Practice (Scottdale: Herald Press, 1998).

     [39]  John H. Yoder, “Possible New Procedures For Use In Areas Where Existing Procedures Are Not Compatible With Scriptural Principle,” Supra note 32 at 37.

     [40] “The Christian and Litigation, Statement of findings adopted at Consultation”, found in the John Howard Yoder Collection, “Litigation, 1939-1984" Hist. Mss 1-48, Box 23, Archives of the Mennonite Church, Goshen.

     [41] Ibid. at 2-3.

     [42] “Litigation and the Use of the Law,” Gospel Herald, June 11, 1963, at 498-499, 509-510.

     [43] Ibid. at 499.

     [44] Ibid.

     [45] A variety of written responses are found in “Task Force on Litigation”, Official Files of the Mennonite Church General Board, Collection, I-6-5, Archives of the Mennonite Church, Goshen College. [Henceforth Task Force Files.] Most of these items are also found in the John H. Yoder collection, “Litigation, 1939-1984", Hist. Mss 1-48, Box 23, Archives of the Mennonite Church, Goshen. [Henceforth, Yoder Collection.]

     [46] Letter from Stoesz to Hershberger, April 29, 1963, Task Force Files.

     [47] Letter from Zehr to Hershberger, July 31, 1963, Task Force Files.

     [48] Letter from Yoder to Heshberger, Feb. 11, 1964, Task Force Files.

     [49] Letter from Kreider to Hershberger, May 22, 1963, Task Force Files.

     [50] Letter from Clemens to Hershberger, May 10, 1963, Task Force Files.

     [51] Supra note 11.

     [52] Of course, the other side of the coin is that the potential threat of negative publicity allows the “unscrupulous” plaintiff to leverage monetary awards from large entities who would rather settle the case than defend against such lawsuits.

     [53] Letter from D.R. Yoder to Peace Problems Committee, July 20, 1963, Task Force Files.

     [54] A copy of this paper is found in both the Yoder Collection and the Task Force Files in the Goshen Archives.

     [55] Ibid. at 22

     [56] Letter from Stoesz to Yoder, August 3, 1972, Yoder Collection.

     [57] J. Howard Kauffmann and Leland Harder, Anabaptists Four Centuries Later, (Scottdale: Herald Press, 1975) at 115. When a new survey was done several decades later, support for the traditional approach fell another notch to 35 per cent as recorded in J. Howard Kauffmann and Leo Driedger, The Mennonite Mosaic, (Scottdale: Herald Press, 1991) at 7.

     [58] Attachment to Howard Kauffman letter to John Liechty, Feb. 28, 1980. Task Force Files.

     [59] See materials in Task Force Files.

     [60] J. R. Burkholder, “Litigation: Mennonite Church Teaching and Its Scriptural Background.” Task Force Files.

     [61] The Use of The Law, (Scottdate, PA: Mennonite Publishing House, 1982). The statement was adopted by the Mennonite General Assembly in Bowling Green, Ohio, August 1981.

     [62] Ibid. at 6.

     [63] Ibid. at 7.

     [64] Ibid. at 7- 8.

     [65] Ibid at 3.

     [66] Ibid. at 11-12.

     [67] MacMaster, Supra n. 1 at 257.

     [68] Id. at 265-266. For a more detailed account of the various legal travails of the Mennonites in the Revolutionary period, see MacMaster, Horst, and Ulle, Conscience in Crises: Mennonites and Other Peace Churches in America. 1739-1789 (Herald Press, 1979).

     [69] Epp, Volume One History, Supra n. 1 at 101.

     [70] Schlabach, Supra, n. 1 at 190 mentions some threats of court-martials and even executions against Mennonites who refused to fight on the Confederate side.

     [71] Juhnke, Supra, note 1 at 208-209.

     [72] Id. at 237.

     [73] Id. at 225.

     [74] Epp, Supra note 1 at 192.

     [75] For more comprehensive treatments of various issues, see William Janzen, Limits On Liberty: The Experience of Mennonite, Hutterite, and Doukhobor Communities in Canada (Toronto: University of Toronto Press, 1990); and Adolf Ens, Subjects or Citizens? The Mennonite Experience in Canada, 1870-1925 (Ottawa: University of Ottawa Press, 1994).

     [76] Funk v. Manitoba Labour Board [1976] 3 W.W.R. 209 (Man. C.A.).

     [77] Canadian cases include Mennonite Collegiate Institute v. Gretna (1991), 82 D.L.R. (4th) 447 (Man. C.A.); affirming (1990), 76 D.L.R. (4th) 528 (Q.B.); Mennonite Home Assn. Of York County v. Whitchurch-Stouffville (1989), O.J. No. 1502 (Ont. S. Ct.); Ontario (Assessment Commissioner Stouffville) v. Mennonite Home Association (1973), S.C.R. 189. American cases include: In Re Application of Kansas Christian Home (2000), 2 P. 3d 168 (S. Ct. Kansas); Mutual Aid Association v. United States (1985), 759 F. 2d 792 (Fed. C. A. 10th Circ.); Bethel Conservative Mennonite Church v. Commissioner (1984), 746 F. 2d 388 (Fed. C. A. 7th Circ.); Frederick Mennonite Home v. Montgomery County (1983), 455 A. 2d 1274 (Comm. Ct Pa.); Reedy v. Commissioner (1981), 42 T.C.M. (CCH) 1401  (U.S. Tax Ct.); Gospel Worker Society v. United States (1981), 510 F. Supp. 374 (Dis. Ct. Columbia).

     [78] For example, Bethany Mennonite Church (Howard Trickett) v. Randolph Township (1995), Ohio Appeals LEXIS 3394 (C. A. Ohio, 11th Dist.).

     [79] Based on going through the Western Law Reporter from the late 19th century to the Western Weekly Reports from 1912 to about 1994, and based on names such as Friesen, Reimer, Giesbrecht, Loewen, Hiebert, Janzen, Dick, Dueck, Dyck, Klassen, Siemens, Penner, Rempel, Wiens, Wiebe, etc.

     [80] Schlabach, supra note 1 at 155-56.

     [81] Case Machine Co. v. Penner (1892), 3 Western Law 198 (Man. C. A.) at 198.

     [82] Colwell and Ferguson v. Neufeld (and 17 others) (1911), 1 W.W.R. 779 (S.C.C.).

     [83] Braun v. Peters (1918), 43 D.L.R. 754 (Sask. C.A.). It may well be that the plaintiff was also a Mennonite.

     [84] Friesen v. Mennonite Mutual (1916), 10 W.W.R. 814 (Man. C. A.); Mennonite Mutual v. Heinrichs [1932] 1 W.W.R. 218 (Sask. C.A.); Robson v. Mennonite Mutual (1987), S. J. No. 263 (Sask. Q.B.); Hudye Farms v. Mennonite Mutual (1987), S. J. No. 340 (Sask. Q. B.); Dueck v. Manitoba Mennonite Mutual [1993] 4 W.W.R. 531 (Man. C. A.), confirming (1992), 80 Man. R. (2d) 173 (Q.B.); Friesen Insurance Brokers v. Manitoba Mennonite Mutual (1994), M. J. No. 344 (Man. Q.B.). To a degree some of these cases might be placed in the next category of internal litigation, since they involve Mennonites in effect taking action against an entity set up and operated as a part of the church community.

     [85] Mennonite Board of Missions v. Adams (1983), U. S. 791; 103 S. Ct. 2706.

     [86] For example, Doerter v. Bluffton College (1984), 98 Ohio App. 3d 95; 647 N. E. 2d 876 (Ohio C.A.). Also, Stoltzfus v. Ulrich Supply (1984), 587 F. Supp. 1226 (D. C. Pa.) -claim by ex-Mennonite as to religious discrimination in employment by Mennonite controlled business.  For commentary as to a claim of religious discrimination in employment brought against Steinbach Bible College in Manitoba see Esau, “Islands of Exclusivity:” Religious Organizations and Employment Discrimination” (2000) 33 U.B.C. Law Rev. 719

     [87] Misch v. Meadows Mennonite Home (1983), 114 Ill. App. 3d 792; 449 N. W. 2d 1358 (Ill. C.A.). There are also numerous medical negligence cases in the United States dealing with claims brought against various Mennonite Hospitals.

     [88] Allison v. Mennonite Publications Board (1954), 123 R. Supp. 23 (D.C. Pa.) re libel claim; Falls v. Virginia Mennonite Retirement (1998) Westlaw No 1326-98-3, Virginia C.A., re worker’s compensation.

     [89] For example, some earlier cases from Kansas: Bussell v. Mennonite Mutual (1933), 137 Kan. 541; 21 P. 2d 308 (Kan. S. C.); Metropolitan Life v. Mennonite Mutual (1930), 131 Kan. 628; 293 P. 402 (Kan. S. C.); Johnson v. Mennonite Mutual (1917), 100 Kan. 450; 165 P. 275 (Kan. S.C.); Kennedy v. Mennonite Mutual (1915), 96 Kan. 598; 152 P. 639 (Kan. S.C.); Robinson v. Mennonite Mutual (1914), 91 Kan. 850; 139 P. 420 (Kan. S.C.)

     [90] Friesen et al (Trustees for the Mennonites) v. Sask. Mortgage and Trust Co. and Mennonite Land Sales Co. and Great West Permanent Loan Co. [1924] 3 W.W.R. 883 (P.C.), affirming in part [1924] 1 W.W.R. 945 (Sask. C.A.), affirming in part [1923] 3 W.W.R. 667 (Sask.  K.B.). See also Mennonite Land Sales v. Friesen [1921] 3 W.W.R. 341 (Sask. K.B.); [1922] 3 W.W.R. 832 (Sask. C.A.); and Friesen v. Sask. Mortgage [1924] 2 W.W.R. 608 (Sask. C.A.).

     [91] Friesen et al (Trustees for the Mennonites) v. Sask. Mortgage and Trust Co. and Mennonite Land Sales Co. and Great West Permanent Loan Co. [1926] 3 W.W.R. 125 (Sask. C.A.). See also Great West Permanent v. Rempel and Peters [1926] 4 D.L.R. 235 (Sask. C.A.); Friesen v. Sawatzky [1926] 1 W.W.R. (Sask. K. B.); Great West Permanent v. Menno Land Sales and Giesbrecht [1925] 2 W.W.R. 621 (Sask. C.A.); Menno Land Sales v. Friesen [1925] 1 W.W.R. 894 (Sask. C.A.).

     [92] Schlabach, Supra note 1 at 109. See also, Clarence Hiebert, The Holdeman People (South Pasadena: William Carey Library, 1973) at 190 and 213.

     [93] Liechty v. Holdeman (1878), No. 351, Williams County Ohio, Civil Records.

     [94] Kauffman v. Plank (1919), 214 Ill. App. 290, 306 (Ill. A.C.).

     [95] Gingerich v. Swartzentruber (1919), 30 Ohio Dec. 101, 22 N.P. (n.s.) 1 (Holmes C. Ct.) re injunction against shunning awarded by court on basis that member had voluntarily withdrawn, and church had lost jurisdiction, and Yoder v. Helmuth (1947), No. 35747, Wayne County, Ohio, (C.P. Ct.) re jury awarding damages and injunction. The transcript for this fascinating trial (in which the Amish church leaders appeared without  legal representation), with local and national newspaper clippings, and various research notes and correspondence is found in the John Howard Yoder Collection, at the Archives of the Mennonite Church, in Goshen. An outline and criticism of the judgment is provided in John Howard Yoder, “Caesar and the Meidung,” (1949) 23 M.Q.R. 76. This case is also reviewed as raising various issues for legal pluralist theory by Carol Weisbrod in “Emblems of Federalism” (1992) 25 U. Mich. J. L. Ref. 795. A more recent case is Bear v. Reformed Mennonite Church (1975), 341 A. 2d 105 (Pa. S.C.) re preliminary matter asserting that the case should not be dismissed without a trial. Perhaps shunning is not a protected religious right under the Constitution to the degree that it might amount to tortious conduct. Further proceedings were taken, but no published decisions appear to be available. The case is listed as unpublished in (1989), 568 A. 2d 414 affirming (1989), 564 A. 2d 999, with further proceedings taken (1990), 579 A. 2d 414 (Pa. Super.).

     [96] Gill v. Mennonite Church (1995), LEXIS 19375 (D. Ct. Penn) which only deals with a preliminary venue issue. Note also the numerous and seemingly never-ending claims and appeals brought over the last 15 years or so by Mary Cassell against various Mennonites and Mennonite organizations. The complaint of Cassell was that “they hated me without a cause; they devoureth my house, and for a pretense make long prayer; out of their hearts proceed evil thoughts, they bear false witness; they have disobeyed their own law to malign my character; they commit all evil and charge it to me.” See Cassell v. Shellenberger, Sherer, Stutzman and Yoder (1986), 356 Pa. Super. 101; 514 A.2d 163 (Pa. S. Ct.). Not surprisingly, the claim, lacking any sort of precision, was thrown out. Cassell nevertheless persisted in appeals, including an attempt to get the Supreme Court of the United States to hear the matter. See Cassell v. Lancaster Mennonite Conference (1994), 511 U. S. 1085 re denial of writ of certiorari. This was not the end of the matter, however, and as recently as the end of 1999, the courts were still dealing with appeals from Cassell. See Cassell v. Mount Joy Mennonite (1999), WL 1260306 (Pa. S. Ct.) re denial of appeal for reconsideration. 

     [97] See Heinrichs v. Wiens (1915), 21 D.L.R. 68 (Sask. S.C.), affirmed by (1915), 23 D.L.R. 664 (Sask. C.A.).

     [98] See Heinrichs v. Wiens (1916), 9 W.W.R. 1180 (Sask. S.C.), affirmed by (1916), 10 W.W.R. 414 (Sask. C.A.).

     [99] See Heinrichs v. Wiens (1916), 31 D.L.R. 94 (Sask. S. C.).

     [100] Toews v. Isaac [1928] 1 W.W.R. 643 (Man. K. B.), affirmed in part by [1929] 38 Man. R. 201 (C.A.).

     [101] Toews v. Isaac (1931), 39 Man. R. 436 (Man. C. A.).

     [102] See for example, Fred Kniss, Disquiet in the Land: Cultural Conflict in American Mennonite Communities (New Brunswick, N.J.: Rutgers U. Press, 1997).

     [103] Richard K. MacMaster, Land, Piety, Peoplehood: The Establishment of Mennonite Communities in America 1683-1790 (Scottdale: Herald Press, 1985).

     [104] Id. at 203-204.

     [105] For background material on this development see Theron F. Schlabach, Peace, Faith, Nation: Mennonites and Amish in Nineteenth-Century America (Scottdale: Herald Press, 1988) at 117-127, and also see 1972 Mennonite Quarterly Review issue on Oberholtzer.

     [106] Schlabach Ibid at 120.

     [107] Schlabach at 121. There is no reference to the actual court decision.

     [108] Information about this case is found in “Mennonite Litigation, 1870s and 1880s,” (1988) XLIX Mennonite Historical Bulletin 3:5-8.

     [109] Id. at 7.

     [110] Landis’s Appeal (1883) 102 Pa. 468 (S. Ct.).

     [111] Schlabach Supra note 1 at 225-226.

     [112] Schrag v. Schrag (1923), 113 Kan. 613, 215 P. 1010 (Kan. S.C.).

     [113] We have no final reported court decision for the “Franconia 2" litigation, but extensive court petitions and written submissions by both parties are in the Archives of the Mennonite Church in Goshen Indiana. Materials on the Franconia Conference II-3 Box 15 -56-57

     [114] Id. Wile, Derstine and Derstine v. Ruth, Lapp, Moyer, et.al. “Bill in Equity” September Term, 1956.

     [115] “Brief for Defendants Sur Preliminary Objections” Groshens, Souder and Wenger, at 5, Goshen Archives.

     [116] “Mennonite Dispute Aired Before Montgomery County Court” from North Penn. Reporter, April 1957, Goshen Archives.

     [117] “Brief for Defendants Sur Preliminary Objections” Groshens, Souder and Wenger, 23 pgs., Goshen Archives.

     [118] “Brief for Plaintiffs Sur Defendants’ Preliminary Objections” 20 pgs.

     [119] “Testimony of Wilmer Halteman, Joseph Halteman, John Wile, Norman Halteman, Arthur Detweiler, Lloyd Derstine, Ernest Derstine, and Edgar Landis” 3 pgs; “Testimony of Brothers Jacob Wile and Mahlon Alderfer” 3 pgs;

     [120] “Testimony of Brother Elwood D. Derstine” at 2.

     [121] Id.

     [122] Id. at 3-4.

     [123] “Testimony of Brothers Jacob Wile and Mahlon Alderfer” at 2.

     [124] Id. at 3.

     [125] Answer of Defendants, at paragraph 101, p. 61

     [126] Wile, Derstine and Derstine v. Ruth, “Sur Preliminary Objections, Knight P.J. In the Court of Common Pleas of Montgomery County.

     [127] “Amended Bill in Equity” 22pgs.

     [128] Amended Bill in Equity, at 11.

     [129] “Defendants’ Answer to Amended Bill in Equity” 101 pgs.

     [130] The two-page notation is headed “Mennonite Dispute Aired Before Montgomery County Court” North Penn Reporter, April 1957. However, it deals with subsequent events after that date so it must not be simply a retyping of the article. For example, it ends with the note that Elwood Derstine passed away in 1980. 

     [131] “Re Articles of Incorporation of Franconia Mennonite School. The Objection to Application, 3pgs.

     [132] Re Articles of Incorporation- Brief for Applicants, 24 pgs. These materials are in the Franconia 2 materials at the Goshen Archives.

     [133] Neufeld and Neufeld v. Fehr (1929), 38 Man. R. 194 (Man. C.A.).

     [134] In re Fehr and the Bergethaler Waisenamt [1947] 1 W.W.R. 132 (Man. K.B.).  A second case was brought. See In re Bergethaler Waisenamt [1948] 1 W.W.R. 305 (Man. K.B.), reversed by [1949] 1 W.W.R. 323 (Man. C.A.).