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Updated 1/10/2013
2011 Form 990

Updated 6/22/2011
3ABN sued
over Tommy!

Added 3/14/2010
Can 3ABN Survive?

Added 11/16/2010
Judge Rejects
Plea Deal

Updated 4/2/2010
Tommy Shelton

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Mom in Pain #1

Mene, Mene,
Tekel, Parsin

The Actual Lawsuit
IRS Criminal Investigation

3ABN's Property Tax Case Appeal

Opening Brief of Appellant 3ABN

Part Five

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Typographical errors may actually be copied from the original.

In this part are some additional statements that indicate that 3ABN is anything but non-denominational, and that it preaches anything but a non-denominational message, contrary to the claims of the lawsuit.

Part Five of 3ABN's Appellant Brief

3.   Excluded Factual Evidence

The hearing judge excluded certain testimony that Three Angels believes was directly relevant to its case in chief, as well as evidence that supported its constitutional claims of equal protection violation. Three Angels had obtained the testimony of two experts regarding Seventh-day Adventist beliefs, Elder Ted Wilson, a Seventh-day Adventist church administrator and leader, and Dr. Denis Fortin, a theology professor. Three Angels also had evidence, and sought more evidence that it was denied by the court, regarding the content and treatment by the Department of Revenue of Tri-State Christian TV, a non-Adventist Christian

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television ministry, which showed that the Adventist station was treated in a discriminatory fashion when compared with the non-Adventist network. The excluded evidence was preserved through offers of proof in the record, and this Court should consider the affect the evidence would have had below. Should it not reverse the hearing judge's decision in its entirety, it should give Three Angels leave to complete its discovery on these constitutional issues, and give it an opportunity to present the evidence to the hearing judge.


A.  Elder Ted Wilson and Dr. Denis Fortin – Testimony Regarding Religious Nature of Three Angels Programming.

Elder Ted Wilson and Dr. Denis Fortin were prepared to testify to the religious nature of Three Angel's programming, but their testimony was excluded by the judge. This erroneous exclusion was compounded by the fact that a central part of the judge's decision was the ruling that Three Angel's program was not religious. Rather, she found that it consisted of topics related to 'health, gardening, cooking, music programs ... family entertainment" and "health and life style topics," along with religious programming. RD par. 41, 50. She argued that Three Angels was "advocating a way of life, but it is a lifestyle that applicant favors, not a religion." RD 31-32.

A finding that the content of Three Angels programming is not religious is indeed fatal to its claim to be a religious ministry. That is why it was clearly reversible error to exclude the very witnesses that would have testified as to the nature of Seventh-day Adventist religious beliefs and Biblical lifestyle and how these were reflected in Three Angel's programming.

The judge refused to take testimony on the very point on which Three Angel's case primarily hinged. The judge clearly saw the link between the kind of programming created and aired by Three Angels and whether it was fulfilling a religious purpose. "Leasing or otherwise

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using property," she wrote, "to promote a lifestyle and to market merchandise does not qualify as a use of property for primarily religious purposes." RD 31-32. But the judge came to the conclusion that the lifestyle promoted by Three Angels was not religious without listening to the very witnesses and evidence that Three Angels proffered to her on that very point.

Elder Ted Wilson, Vice President of the General Conference of Seventh-day Adventists, is the subject of offer of proof number four, found at "Offer of Proof Transcript" page 18-27. (Hereinafter "OPT #".) Elder Wilson was on Three Angels witness list, and was deposed by the Interveners during discovery. Three Angels also took his video-taped testimony for use at the administrative hearing, but this use was denied by the hearing judge.

On the witness list, the subject matter of Elder Wilson's testimony was described as follows:

The role of Applicant [Three Angels] in the ministry of the Seventh-day Adventist Church. He may also testify as an opinion witness concerning whether all applicant's programming and other activities are religious in the context of the Seventh-day Adventist Church. He will testify that the programming and activities carry out the theology and teachings of the Seventh-day Adventist Church and are substantially similar to the General Conference of the Seventh-day Church's related mass communication activities.

Elder Wilson was proffered as both an opinion witness and a fact witness. He had visited the Three Angels' property on a number of occasions, had knowledge of what it was used for, and had extensive knowledge of Three Angels' programming content. OPT 20-21. He also is a Vice-President for the Adventist Church, and had particular oversight of the Church's media activities, including television and radio ministries. OPT 19. The relevant portions of Elder Wilson's debene esse deposition testimony ("Wilson Test.") were submitted to the court below and are part of the record herein. OPT 18.

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In this testimony, Elder Wilson spoke to the religious nature of Three Angels programming and the manner in which it furthered the teachings of the Seventh-day Adventist church's message and mission. He also testified regarding the formal agreement between Three Angels and the Church, and the willingness of Three Angels to air and advance the Church's religious programming. Wilson Test. 118-120. He testified as to the Three Angels video catalog and its wide promotion of programs by Church theologians, preachers and other leaders. Id. At 143-144. He also testified as to the regular worship service programs from Adventist churches aired on Three Angels, including worship programs from churches in Fort Worth, TX, Sacramento, CA, Battle Creek and Berrien Springs, MI. Id. 147-48.

Elder Wilson also testified to his personal viewing of Three Angels programming. Id. 130. He testified that "Three Angels ABN covers every aspect of church doctrine and is very much involved in showing all these aspects." Id. 128. He testified that Three Angels programming was "very consistent with Seventh-day Adventist theology and outreach . . . [and] is very much in line with what the Seventh-day Adventist Church would believe . . ." Id.

Dr. Denis Fortin was the subject of offer of proof number five. OPT 28. Dr. Fortin is a professor of theology at the Seventh-day Adventist graduate Seminary at Andrews University in Michigan. He has specific expertise in the history of Seventh-day Adventist doctrine and religious teaching regarding health and lifestyle standards. He was prepared to testify regarding the manner in which Three Angel's health, nutrition and other lifestyle programming promoted the doctrinal and religious views of the Adventist

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church. OPT 28. Dr. Fortin's report regarding these issues was submitted to the court as Exhibit No. 26.

Dr. Fortin had been disclosed to the other side during the discovery period. The state and interveners had also been provided with a copy of his report. They had chosen not to depose him. Three Angels had planned to call him as a live witness at the trial, but based on the state's and interveners pre-trail objections and the court's adverse rulings, he was not permitted to testify.

B.  Evidence as to Tri-State Christian TV Relating to Equal Protection Claims.

The Department's argument that it has never decided whether or not a religious television station can be a tax-exempt ministry would be more convincing if the Department had not already granted such an exemption to a non-Adventist religious broadcast ministry almost identical to Three Angels. Tri-State Christian TV (WTCT-TV) is an Illinois not-for-profit organization that engages in religious broadcasting, and which receives a property tax-exemption from the State of Illinois. Evidence regarding this station and its operations, as well as Three Angel's court-thwarted attempts to obtain more information, was submitted as offer of proof number six. OPT 30.

Three Angels proffered evidence of Tri-State's tax exempt status OPT 33, its broadcasting-related properties OPT 34, its program topics and schedule, and its infomercials OPT 35. It was noted that Tri-State produced and aired a number of health and nutrition programs of the kind that the hearing officer below had labeled as "lifestyle" and "not religion" when aired by Three Angels. OPT 35. Offer of Proof number 7 was

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an affidavit from Danny Shelton who had visited and witnessed the activities at WTCT-TV. OPT 38-39.

All evidence regarding Tri-State was excluded by the hearing judge. Further, during discovery, Three Angels was prevented from obtaining additional information about WTCT when its subpoena to depose the president of WTCT was quashed by the court. OPT 30. Had the evidence been allowed in by the court, Three Angels would have shown that it was treated differently than a similarly situated organization in violation of the religious freedom and equal protection guarantees of the Illinois and U.S Constitution that prohibits discrimination based on religious grounds.

In a decision dated September 17, 2002, the hearing judge ruled that none of this evidence could come in because "this is not the proper forum to address constitutional challenges." Order of Sept. 17, 2002 p.3. For this proposition, she cited to Texaco-Cities Service Pipeline12 This case, however, stands for basically the opposite of the proposition for which it is cited.

In Texaco-Cities, the Illinois Supreme Court refused to consider a constitutional argument on appeal because the issue had not been raised in the administrative proceeding.13 The Court noted that "issues or defenses not placed before the administrative agency will not be considered for the first time on administrative review."14 The Court recognized that "that administrative agencies lack the authority to invalidate a statute on constitutional grounds or even to question its validity."15 "Nonetheless," the court asserted:

12 Texaco-Cities Service Pipeline v. McGaw, 182 Ill.2d 262 (1998).

13 Texaco-Cities, 182 Ill.2d at 278.

14 Id.

15 Id. citing, Moore v. City of East Cleveland, 431 U.S. 494, 497 n. 5, 97 S.Ct. 1932, 1934 n. 5, 52 L.Ed.2d

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it is advisable to assert a constitutional challenge on the record before the administrative tribunal, because administrative review is confined to the proof offered before the agency. Such a practice serves the purpose of avoiding piecemeal litigation and, more importantly, allowing opposing parties a full opportunity to present evidence to refute the constitutional challenge.16

Thus, the Illinois Supreme Court recognizes that evidence and proof relating to constitutional challenges should be heard and accepted by administrative courts, even if those courts cannot rule on the constitutionality of statutes. The hearing officer's failure to do this was plain, reversible, legal error. Her decision, if upheld, would make it impossible for Three Angels to assert its constitutional rights in any forum. This cannot be right, and thus her ruling on this matter should be reversed.




I.  Contrary to the bearing judge's legal conclusions, the property used by Three Angels to undertake its religious broadcasting ministry is used for exclusively religious purposes and is exempt from property taxes under 35 ILCS 200/15-40 and 35 [LCS 200/15-65.

The court below has failed to take seriously Three Angel's religious purposes, thus preventing Three Angels from obtaining its rights under Illinois law to a tax exemption for the land and buildings used for its ministry. The Illinois Constitution provides that the state assembly may exempt from taxation "property used for . . . schools, religious, cemetery and charitable purposes." Ill. Const. Sec. 6, art. IX. Under this provision, the Illinois assembly has passed to laws that extend property tax exemption to land used for religious purposes. The first law exempts "property used

531, 536 n. 5 (1977).

16 Id. at 279 (emphasis added).

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exclusively . . . for religious purposes." 35 ILCS 200/15-40 (2001). The second law exempts "all property . . . exclusively used for charitable or beneficent purposes, and not leased or otherwise used with a view to a profit" and which is owned by "institutions of public charity." 35 ILCS 200/15-65 (2001).

In applying these two clauses to religious organizations, Illinois courts have said that the statutory sections "are so closely associated that we will discuss them together."17 The analysis below will draw on both sections in showing that Three Angels is a not-for-profit religious institution that uses its properties exclusively for religious and charitable purposes.

Under Illinois law, two related questions are asked to determine if a religiously-based tax exemption is appropriate for a parcel of land. First, the court must decide if an entity has primarily religious or charitable purposes. (35 ILCS 200/15-40 (2001)). Second, it must then decide if the particular property in question is operated and used primarily for the religious purposes of that entity. Id. The manner in which the trial judge handled these questions is examined below. As in cases involving appeals from trial courts, these questions of law on appeal from an administrative finding are reviewed de novo.18

A.  The lower court's rejection of Three Angels view of its own religious purposes and the court's use of a rigid and narrow definition of religious purpose is contrary to Illinois law and constitutes reversible error.

  1.    Illinois law permits entities to define their own religious purposes as long as done in good faith.

17 The Congregational Sunday School and Publishing Society v. Board of Review, 290 Ill. 108, 112, 125 N.E. 7, 9 (1919).

18 See, e.g., Wison v. State Employee's Retirement System of Illinois 336 Ill.App.3d 199, 202, 782 N.E.2d 858, 861, 279 Ill.Dec. 299, 302 (2002), citing Veazey v. Baker, 322 Ill.App.3d 599, 602, 255 Ill.Dec.

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The primary reversible error in the hearing judge's decision is her failure to accept, or even listen to, Three Angels' view of what constitutes its religious beliefs and purpose. Under Illinois law, a judge should not start with the State's view of what a religious purpose or activity is. Rather, the Court should start with the applicant's view of what its religion consists of, and then examine that view for sincerity and good faith. As the court stated in Fairview Haven v. Dept. of Revenue, the state "must accept the entity's characterization of its activities and beliefs as religious as long as the characterization is made in good faith."19

In examining the religious nature of an applicant, its activities or beliefs, the court properly deals with only two questions:

When, as here, particular purposes and activities of a religious organization are claimed to be other than religious, the civil authorities may engage in but two inquiries: does the religious organization assert that the challenged purposes and activities are religious, and is the assertion bona fide? Neither the courts nor administrative agencies . . . may go behind the declared content of the religious beliefs any more than they may examine their validity.20

The decision in Fairview Haven has come to be recognized as definitive on the question of judicial inquiry into legal purposes. As one commentator on Illinois recently noted, Fairview Haven "represents the fullest and clearest expression in Illinois of the First Amendment principles implicitly followed in Scripture Press and explicitly recognized in Holy Spirit."21 Under these decisions, the state does not "define" religion,

19 Fairview Haven v. The Department of Rev., 153 Ill. App. 3d 763, 772, 506 N.E. 2d 341, 348 (Ill. App. 4d 1987) (emphasis added).

20 Id. at 772 and 348.

21 James W. Hilliard, "The 'Religious Purposes' Property Tax Exemption and the First Amendment," Illinois Bar Journal, Vol. 90, p. 549 (Oct. 2002), attached hereto as Exhibit A.

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but inquires to make sure that the religion is not a sham, and that the property is "actually and primarily used for the stated religious purpose."22

Under these precedents, the hearing judge's legal conclusions that Three Angels' activities and beliefs were not religious constitute reversible error. Conclusions such as "the evidence shows that 3ABN directly engaged in little or no specifically religious activity and used the property in question for no such purpose" RD 30-31 and that "applicant is advocating a way of life but it is a lifestyle that applicant favors, not a religion" RD 31-32 ignores Three Angels' belief, and those of leaders and theologians of the Adventist church, that it is promoting a religious lifestyle.

Because there are a wide variety of religious beliefs, practices and lifestyles, it should not be necessary for an applicant to show that the state of Illinois had previously accepted its beliefs and practices as religious for an exemption to be granted. The State should recognize and exempt a new or unique religious usage, as long as it is satisfied that the applicant is asserting its religious practice in good faith. Three Angels, however, presents no such unique or cutting-edge case. The activities and property uses that it carries out are weil within standard religious purposes recognized by existing Illinois judicial and administrative case-law, as discussed below.

2.  Illinois courts have found religious purposes to include a wide variety of activities that transmit religious teachings and beliefs through various media, such as print, audio, video and radio and television broadcast.

Three Angels' communication of its religious messages through print, audio, video and broadcast media are the very type of activities found to be religious by Illinois

22 Id. at 551.

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courts.23 A very early case, The People v. Deutsche Evangelisch Luterische Jehovah,24 referred to "religious purpose" of property as consisting of "public worship, Sunday Schools and religious instruction."25 Three Angels' operations arguable fit even this somewhat narrow definition of religious purpose, as its primary purpose is "religious instruction" through the broadcast of religious programming. But later cases have broadened the category of activities that fulfill a religious purpose.

The Illinois Supreme Court has noted that the definition found in Dutsche Evangelisch is unduly narrow, and that it was "not stated as inclusive of everything that might in the future be regarded as a use for religious purposes but as illustrative of the nature of such use."26 Later, the Court noted that "no decision of this court attempting to lay down an all inclusive definition or specification of what constitutes a religious purpose" has been called to its attention, even though it was familiar with the Deutsche Evanglisch decision.27

In light of these decision clarifying and expanding Deutsche Evanglisch, it is rather extraordinary that the hearing judge continues to rely primarily, if not at times exclusively, on that narrow definition. RD 24-25. She states that "because Deutsche Gemeinde explains that a religious purpose means a use of such property by a religious society or body of persons as a state place for worship, Sunday schools and religious instruction, the question of whether applicant uses the property for religious purposes must be answered in the negative. Applicant unequivocally fails to satisfy this statutory

23 Carson v. Muldoon, 306 Ill. 234, 238, 137 N.E. 863, 864 (1922); Scripture Press Foundation v. Annunzio, 414 Ill. 339, 350-352, 111 N.E.2d 519, 525 (1953).

24 The People v. Deutsche Evangelisch Luterische Jehovah, 249 Ill. 132, 136-37, 94 N.E. 162, 164 (1911).

25 Id.

26 Carson, 306 Ill. At 238, 137 N.E. at 864.

27 Scripture Press Foundation v. Annunzio, 414 Ill. at 350-352.

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mandate." RD 31. She then proceeds to examine and reject as inadequate Three Angel's on-site worship activities.

The lower court's ruling essentially ignores a large number of decisions by Illinois courts that viewed a "religious purpose" as far broader than a tradition Sunday morning church service. The buildings and activities that have qualified for exemption include: the administrative office buildings of an organization that supported Sunday schools by publishing and distributing Bible lesson supplies, quarterlies and lesson helps, as well as other religious and moral books;28 Inter-Varsity Christian Fellowship, a group that helped organize Christian student groups at secular colleges and universities and which published and sold Christian literature;29 the Evangelical Teacher Training Association, a group formed by various Christian schools to produce audio, visual and other materials to train Christian educators;30 and a 1.6 acre portion of a tax-exempt religious park, upon which stood a residence for the park care-taker and his wife, upon which horses grazed, and upon which religious services were conducted.31

Many of the above cases involve the spreading of religious messages through the production and sale, even at a "profit," of various media. While often print media, some of the cases deal with various types of audio and visual media. All the cases define "religious purpose" far more broadly than the traditional worship services allowed by Deutsche Evanglisch and the hearing judge below.

28 The Congregational Sunday School and Publishing Society v. Board of Review, 290 Ill. 108, 125 N.E. 7 (1919).

29 Inter-Varsity Christian Fellowship v. Hoffman, 62 Ill. App. 3d 798, 379 N.E.2d 813 (Ill. App. 2d 1978).

30 Evangelical Teacher Training Ass'n v. Novak, 118 Ill. App. 3d 21, 454 N.E.2d 836 (Ill. App. 2d. 1983).

31 Ill. Confer. Of the United Church of Christ v. Ill. Dept. of Rev., 165 Ill. App.3d 200, 518 N.E.2d 755 (Ill. App. 3d 1988).

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Based on the precedents discussed above, the hearing judge applied an erroneous legal standard to decide whether Three Angels was a religious entity and whether it used its property for primarily religious purposes. There are sufficient undisputed facts in the record, summarized from pages four to nine above, to show that Three Angels is a religious entity operated primarily for religious purposes for this Court to reverse the lower judge's legal conclusions and enter a judgment for Three Angels on this question. Short of this, this Court should reverse the hearing judge's ruling, clarify the legal standards involved, and remand the case for further testimony by the excluded witnesses Elder Ted Wilson and Dr. Denis Fortin.

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