* Mr. Chopko is the General Counsel of the U.S. Conference of Catholic Bishops in Washington, D.C. He is a graduate of the University of Scranton and the Cornell Law School. The Article is the work and opinion of the author and not necessarily the view of the Conference or any of its bishop members. Mr. Chopko thanks Michael Moses for his work, review, and comment on this Article.
1 In most states, charitable immunity is no longer available to preclude recovery. In New Jersey, which preserves charitable immunity, a beneficiary of the charity may not maintain an action in tort for the negligence of the entity and its personnel. N.J. Stat. Ann. � 2A:53A7(a) (West 2000). Those who are not beneficiaries are not precluded from recovery. Id. Compare Brown v. St. Venantius Sch., 544 A.2d 842, 843, 847–48 (N.J. 1988) (reversing grant of summary judgment that denied recovery to plaintiff who was injured when she fell on property abutting school because she was not a beneficiary at the time of the injury), with Gray v. St. Cecilia’s Sch., 526 A.2d 264, 265 (N.J. Super. Ct. App. Div. 1987) (affirming summary judgment that denied recovery because plaintiff, a mother injured while picking up her son from school, was a beneficiary at the time of injury). In recent times, four states, Massachusetts, New Hampshire, South Carolina, and Texas, provided a limited immunity related to caps on recovery. See Mass. Gen. Laws ch. 231, � 85K (2000); N.H. Rev. Stat. Ann. � 508:17 (Supp. 2002); S.C. Code Ann. � 33-56-180 (Law. Co-op. Supp. 2002); Tex. Civ. Prac. & Rem. Code Ann. � 84 (Vernon 1997 & Supp. 2003). More states immunize volunteers and volunteer boards by statute. See Volunteer Protection Act, 42 U.S.C. �� 14501–14505 (2000).
2 California has removed the statute of limitations for certain claims of sexual abuse for one year. See Cal. Civ. Proc. Code � 340.1 (West Supp. 2003).
3 Kentucky and other states have attempted to strip religious bodies and their adherents of all privileges of confidentiality that normally (and constitutionally) apply to confessions of church members, if the communicant confesses sexual abuse. See Peter Smith, Lawmaker Tracks Clergy Abuse Cases: Bill Would Unseal Abuser’s Confessions (Jan. 8, 2003), at http://www.courier-journal.com/localnews/2003/01/08/ke010803s345077.htm.
4 As of January 2003, The Boston Globe has reported the files of 130 clergy accused of sexual abuse. See Michael Rezendes & Matt Carroll, 16 Priests Named for First Time in Sexual Abuse Lawsuits, Boston Globe, Jan. 30, 2003, at B6, available at http://www.boston.com/
globe/spotlight/abuse/stories4/013003_suits.htm.
5 See Mark E. Chopko, Emerging Liability Issues in Non-Profit Organisations: An Overview, Charity L. & Prac. Rev. 17, 18 (2002) (U.K.).
6 This hypothetical, which the author uses throughout this Article, is based on a real case, Krider v. General Council on Finance & Administration, Nos. 96-C-127, 96-C-165 (N.H. Super. Ct. Nov. 20, 1998). Information about this case was provided by the legal office of the General Council on Finance and Administration, Evanston, Illinois (on file with author).
7 See Samuels v. S. Baptist Hosp., 594 So. 2d 571, 574, 576 (La. Ct. App. 1992) (finding no abuse of discretion in jury award of $450,000 in damages against hospital and its insurance company for the actions of one of the hospital’s employees).
8 “Derivative liability” is more than (and includes) respondeat superior liability. It may even include ostensibly direct negligence claims that could not be asserted but for the negligence or misconduct of another. Derivative liability encompasses efforts to follow links in a denominational chain to impose responsibility in a coordinate or superior entity, not just an “employing” entity. Several important works address in complete detail the important facets of this topic. See generally Edward McGlynn Gaffney, Jr. & Philip C. Sorensen, Ascending Liability in Religious and Other Nonprofit Organizations (Howard R. Griffin ed., 1984); Mark E. Chopko, Ascending Liability of Religious Entities for the Actions of Others, 17 Am. J. Trial Advoc. 289 (1993) [hereinafter Ascending Liability]; Mark E. Chopko, Derivative Liability, in The Structure of American Churches: An Inquiry into the Impact of Legal Structures on Religious Freedom (Craig B. Mousin ed., forthcoming 2003) [hereinafter Derivative Liability]. Others would tend to distinguish solely between vicarious and direct liability. “Derivative liability” as used here includes that distinction but also applies in settings beyond traditional tort theories.
A thorough review of liability theory in various circumstances is found in 2 William W. Bassett, Religious Organizations and the Law, chs. 7–8 (2002) (Chapter 7 is entitled “The Churches in Court: Fundamentals in Litigation” and Chapter 8 is entitled “Specific Causes of Action for Personal Injury/Criminal Liability of Churches”) and Richard R. Hammar, Pastor, Church & Law, chs. 4, 10 (3d ed. 2000); see also Carl H. Esbeck, Tort Claims Against Churches and Ecclesiastical Officers: The First Amendment Considerations, 89 W. Va. L. Rev. 1 (1986); David Frohlich, Note, Will Courts Make Change for a Large Denomination?: Problems of Interpretation in an Agency Analysis in Which a Religious Denomination Is Involved in an Ascending Liability Tort Case, 72 Iowa. L. Rev. 1377 (1987). Given the space limitations of this Symposium Issue, I refer the reader to the above texts and concentrate here on a more narrow application of the legal theories by which religious institutions may properly be joined as defendants.
9 See infra Part II.
10 See infra Part III.
11 See N.H. v. Presbyterian Church (U.S.A.), 998 P.2d 592, 594–95, 597 (Okla. 1999). The defendants had initially filed this federal suit against the Presbyterian Church (U.S.A.), which is a corporation, and the assembly, which is not. When the court denied certification of a defendant class, the plaintiffs refiled the case against only the Presbyterian Church (U.S.A.), which plaintiffs identified in the caption as an unincorporated association because they were using it as a surrogate for all Presbyterian entities. See id. at 592.
12 See Plaintiffs’ Petition at pt. V, paras. I–K, N.H. v. Presbyterian Church (U.S.A.), No. CJ 97-7006-61 (Dist. Ct. Okla. County 1997) (citing the Book of Order).
13 See N.H., 998 P.2d at 597.
14 Id. at 594, 598–601.
15 See generally John S. Baker, Jr., Prosecuting Dioceses and Bishops, 44 B.C. L. Rev. 1061 (2003).
16 See Plate v. St. Mary’s Help of Christians Church, 520 N.W.2d 17, 19, 20–21 (Minn. Ct. App. 1994) (affirming decision indicating diocese not vicariously liable for actions of parish because parish was independent corporation).
17 Such was the case in Barr v. United Methodist Church when a California court asserted jurisdiction over the association of entities referred to as the “United Methodist Church” for the obligations created by separately incorporated, but affiliated retirement homes. See 153 Cal. Rptr. 322, 324, 330–31 (Ct. App. 1979), cert. denied, 444 U.S. 973 (1979). That case was wrongly decided. See Hope Lutheran Church v. Chellew, 460 N.E.2d 1244, 1247, 1248–49 (Ind. Ct. App. 1984) (holding no agency relationship existed between committee formed to operate a retirement home and other Lutheran churches even though the churches played a role in creating the committee); Ascending Liability, supra note 8, at 341.
18 See English v. Thorne, 676 F. Supp. 761, 761 (S.D. Miss. 1987). The literature abounds with other examples in other denominations. E.g., Houston v. Mile High Adventist Acad., 846 F. Supp. 1449 (D. Colo. 1994) (naming regional and national entities as codefendants); Konkle v. Henson, 672 N.E.2d 450 (Ind. Ct. App. 1996) (same).
19 English, 676 F. Supp. at 762, 764 (dismissing for lack of subject matter jurisdiction a claim that Vatican officials should answer for alleged abuse by a local priest); see also Package v. Holy See, No. 86-C-222 (N.H. Super. Ct. Nov. 30, 1988) (concluding Vatican officials not responsible for hazard created by member of monastic community; leader of faith community does not select followers). Additional cases are discussed in Parts II and III, infra.
20 The term “ascending liability” appears in one reported decision. MacDonald v. Maxwell, 655 N.E.2d 1249, 1250 n.1 (Ind. Ct. App. 1995). The term appears in cites to both Gaffney & Sorenson, supra note 8 and Ascending Liability, supra note 8. Id.
21 Religious entities tend to fall into two dominant types—“hierarchical” or “congregational.” Congregational bodies are fairly autonomous, self-governing local entities. 1 Bassett, supra note 8, ch. 3, � 3:3. They select or elect ministers and conduct their own affairs with respect to doctrine and to worldly affairs with a high degree of independence. See id. Hierarchical bodies are governed through “clerical” superiors, set in authority, over others. See id. A form of polity between the two is sometimes called “connectional” or “presbyterial.” Id. In that form, local congregations are autonomous, but are affiliated through regional or national groupings with a denominational identity. See id.; see also Guinn v. Church of Christ, 775 P.2d 766, 771–72 n.18 (Okla. 1989) (citing other authorities).
22See Crest Chimney Cleaning Co. v. Ali Ezer Congregation, 310 N.Y.S.2d 217, 225–27 (Civ. Ct. 1970); see also Ruffin v. Temple Church of God in Christ, Inc., 749 A.2d 719, 722–23 (D.C. 2000) (holding jury could reasonably conclude pastor had authority to enter church into a contract).
23 There are even efforts to pierce the corporate veil to find adequate compensation in particular cases. See Edward McGlynn Gaffney, Jr., Piercing the Veil of Religious Organizations 1, 15 (paper presented at the ABA National Institute on Tort and Religion June 15, 1990) (noting this form of litigation as example of derivative liability).
24 See Hanson v. St. Luke’s United Methodist Church, 704 N.E.2d 1020, 1021, 1024–27 (Ind. 1998); Crocker v. Barr, 409 S.E.2d 368, 370–71 (S.C. 1991); Cox v. Thee Evergreen Church, 836 S.W.2d 167, 168–69, 173 (Tex. 1992). These cases note state statutory changes to allow litigation by or against unincorporated associations, among other things, to remove a bar to member lawsuits (known as the doctrine of imputed negligence). See Crocker, 409 S.E.2d at 370–371; Cox, 836 S.W.2d at 168–69, 173.
25 Portions of this Part also appear in Ascending Liability, supra note 8, at pages 299–309.
26 230 P. 1, 1–2, 8 (Cal. 1924).
27 See id. at 8.
28 See id.
29 See id.
30 See id.
31 Doe v. O’Connell, No. PC 86-0077, 1989 WL 1110566, at *1 (R.I. Super. Ct. Nov. 21, 1989).
32 See id.; see also EEOC v. St. Francis Xavier Parochial Sch., 77 F. Supp. 2d 71, 75, 78 (D.D.C. 1999) (setting forth that parish, as part of corporation sole, lacked legal capacity to be sued).
33 See O’Connell, 1989 WL 1110566, at *1.
34 Id.
35 See id. at *1, 3. To the same effect is Plate v. St. Mary’s Help of Christians Church. See 520 N.W.2d 17, 19, 20–21 (Minn. Ct. App. 1994). In that case, the court affirmed dismissal, through directed verdict, of a diocesan corporation from a wrongful death case holding that the action complained of was vested by corporate form in a separate entity, the local parish church. See id. at 18, 20–21. In the secular world, related but separate entities rely on separate incorporation to limit liability, and courts do not look behind them except for compelling and narrowly restricted reasons. E.g., Tatum v. Everhart, 954 F. Supp. 225, 228–30 (D. Kan. 1997) (concluding mere membership in United Way was insufficient to create single employer for Title VII liability purposes). The same result should occur in the case of religious entities. Black v. Cardinal McCloskey Children’s & Family Servs., No. 17865-96 (N.Y. Sup. Ct. May 11, 2000) (concluding legally related but separate entity was not liable for other’s tort).
36 O’Connell, 1989 WL 1110566, at *1. The court relied on cases from other jurisdictions reaching the same conclusion on other facts in both the tort and the contract area. See id. at *2–3. Among the cases relied upon is Roman Catholic Archbishop v. Superior Court. See 93 Cal. Rptr. 338, 340, 341–42 (Ct. App. 1971) (determining contract for purchase of St. Bernard dog with Swiss Abbey not enforceable against Archbishop of San Francisco; Catholic organizations are separate civil entities).
37 County of San Luis Obispo v. Ashurst, 194 Cal. Rptr. 5, 5 (Ct. App. 1983).
38 Id. at 6, 8. A Canadian case recently reached the same conclusion holding that a bishop was not personally liable for the mistakes of a predecessor but the corporation sole might be. Doe v. Bennett (2002), 215 Nfld. & P.E.I.R. 310 at para. 9 (Nfld. S.C. (C.A.)), 2002 NFCA 47, leave to appeal to S.C.C. granted, [2003] WL 13731 (WL).
39 784 S.W.2d 935 (Tex. App. 1990).
40 See id. at 936–37, 939–41.
41 See id. at 938–41.
42 Id. at 938.
43 See id. at 938–39; see also Doe v. Cunningham, 30 F.3d 879, 883–84 (7th Cir. 1994) (concluding undisputed facts showed clergy supervision was vested in church body not named in litigation).
44 See Eckler, 784 S.W.2d at 941.
45 See id. at 938.
46 See id.
47 See Evan F. v. Hughson United Methodist Church, 10 Cal. Rptr. 2d 748, 758 (Ct. App. 1992) (concluding regional body not liable for misconduct because local body possessed hiring authority); Dewaard v. United Methodist Church, 793 So. 2d 1038, 1040–41 (Fla. Dist. Ct. App. 2001) (concluding regional body liable for supervision, local church dismissed).
48 See 998 P.2d 592, 594, 600–01 (Okla. 1999).
49 Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94, 116 (1952).
50 See id.
51 773 N.E.2d 929, 938 (Mass. 2002).
52 The problem of proof in these cases is delicate. Often it is the religious body that offers evidence of its religious doctrine as proof that it lacks the claimed responsibility over the subject matter of the lawsuit. Such disputes should be resolved in limine, with the benefit of the doubt going to the religious body. If there is a legitimate doubt in the court’s mind, then resort should be made to existing mechanisms within the church body to resolve the claim. It should be emphasized that, if a court is so heavily invested in deciding the legitimacy of a claim by attempting to resolve a dispute among trained experts in the law, practice and polity of a religion, serious questions must exist as to the constitutionality of the claim in the first instance.
53 457 N.W.2d 394, 395 (Minn. Ct. App. 1990). In one of six cases arising from the misconduct of Reverend Magnuson, a jury returned a verdict in excess of $1 million; $200,000 against Rev. Magnuson and nearly $900,000 against the local church. See Nat’l L.J., June 14, 1993, at 6. The report does not say what occurred with respect to the national body. See id.
54 Olson, 457 N.W.2d at 395.
55 Id.
56 See id. at 397. The court also concluded, however (in implicit accord with Eckler, 784 S.W.2d at 937) that mere membership in a national religious organization was not enough to confer jurisdiction over that national group to answer for a tort committed in a local church. See id.; see also Glover v. Boy Scouts of Am., 923 P.2d 1383, 1384, 1387–88 (Utah 1996) (concluding that issuing of guidelines and suggestions by the national association and local council did not amount to control over the day-to-day activities of the local group). Something more than a potential interest or authority must be shown. See Nye v. Kemp, 646 N.E.2d 262, 264–65 (Ohio Ct. App. 1994). Similarly, ecclesiastical supervisory authority can have civil law consequences when it is expressly reserved. See Does v. CompCare, Inc., 763 P.2d 1237, 1241–44 (Wash. Ct. App. 1988). In Does v. CompCare, Inc. a Catholic bishop in Louisiana was held answerable to a claim for damages in Washington because he continued to exercise ecclesial discipline over a suspended priest who was then in residence in Washington. See id. at 1239, 1243–44. The continued denominational relationship between the bishop and the priest provided sufficient links such that jurisdiction could be fairly asserted. See id. at 1241–44; see also Johnston v. United Presbyterian Church in the United States, Inc., 431 N.E.2d 1275, 1280 (Ill. App. Ct. 1981) (holding Church had sufficient control over relationship at local level to meet personal jurisdiction requirement).
57 The possibility of scrutiny of internal matters always raises the prospect of unconstitutional entanglement. See Serbian E. Orthodox Diocese for the United States & Canada v. Milivojevich, 426 U.S. 696, 708–09 (1976). It would also invite a court to scrutinize standards, policies, and actions (or the lack thereof) in violation of free exercise rights. See Hadnot v. Shaw, 826 P.2d 978, 987–88 (Okla. 1992) (setting forth that free exercise also protects church autonomy in tort litigation). For this reason, courts usually determine polity-dependent questions if they can be answered without intrusion. See Werling v. Grace Evangelical Lutheran Church, 487 N.E.2d 990, 992 (Ill. App. Ct. 1985). Courts routinely forbid litigation over internal religious matters and bar the civil enforcement of religious duties. See Phillips v. Marist Soc’y, 80 F.3d 274, 275 (8th Cir. 1996); Franco v. Church of Jesus Christ of Latter-day Saints, 21 P.3d 198, 203, 205–06 (Utah 2001). But there is no constitutional barrier to a court making an inquiry and a determination of the authority (or more likely, the lack of authority) in a religious entity, when invited by that entity on a motion to dismiss. Rashedi v. Gen. Bd. of Church of the Nazarene, 54 P.3d 349, 352, 353, 354–55 (Ariz. Ct. App. 2002) (remanding for fact finding because manuals unclear as to division of responsibility).
58 For example, in Malloy v. Fong, the California Supreme Court held a regional presbytery liable for personal injuries suffered in a car accident at a local mission church. 232 P.2d 241, 245, 255 (Cal. 1951). The presbytery had asserted the actions of the local church ministers were beyond their supervision. See id. at 245. But relying on ecclesial documents the court rejected that proposed limitation, noting that in the Presbyterian Church, presbyteries enjoyed a higher degree of direct supervision in a mission church than in a fully functioning (and therefore autonomous) congregation. See id. at 248–49. Because the church placed that control in the presbytery, the presbytery was the proper defendant. See id.
59 Package v. Holy See, No. 86-C-222, slip op. at 6 (N.H. Super. Ct. Nov. 30, 1988). In fact, the court found that, notwithstanding ecclesiastical law, the religious body really does not “have the opportunity to control [their followers’] acts so as to prevent harm to others.” Id. at 6–7. In Package, plaintiffs sued the international governing body for Catholics to compensate them for an automobile accident caused by the action of one individual monk. Id. at 6; accord M.L. v. Civil Air Patrol, 806 F. Supp. 845, 848–49 (E.D. Mo. 1992) (national entity not responsible for personnel decision at local level); N.H., 998 P.2d at 600–01 (holding national organization not liable because it did not have knowledge of the acts of the minister); see Plate, 520 N.W.2d at 20–21 (concluding diocese not responsible for actions of parish, which was separate corporation).
60 See supra notes 39–47 and accompanying text.
61 See 784 S.W.2d at 938–39.
62 See id.
63 See id. at 938; see also Doe v. New London Ass’n of the United Church of Christ, No. CV990551181S, 2001 WL 83883 at *2 (Conn. Super Ct. Jan. 12, 2001) (finding no legal duty owed to parishioner by Association); Evan F., 10 Cal. Rptr. 2d at 836–37 (holding negligent hiring does not carry over to those who are a step removed, i.e., those who are victims of the victim of the negligently hired employee); Konkle v. Henson, 672 N.E.2d 450, 461 (Ind. Ct. App. 1996) (holding summary judgment for defendant proper on grounds that procedure by which international church could have acted not invoked).
64 See 382 S.E.2d 607, 611 (Ga. Ct. App. 1989); see also Osborne v. Payne, 31 S.W.3d 911 (Ky. 2000) (affirming grant of summary judgment for diocese because no evidence was presented that priest had a history of misconduct or that diocese had knowledge that priest might engage in sexual misconduct, and therefore there was no support for an independent negligence claim).
65 Rashedi v. Gen. Bd. of Church of the Nazarene, 54 P.3d 349, 352–53 (Ariz. Ct. App. 2002).
66 See LDS Soc. Serv. Corp. v. Richins, 382 S.E.2d 607, 611 (Ga. Ct. App. 1989); see also Schieffer v. Catholic Archdiocese, 508 N.W.2d 907, 913 (Neb. 1993) (finding no direct negligence in a corporate defendant without negligence on the part of the individual cleric).
67 See Marco C. v. Roman Catholic Bishop, 5 Civ. No. F3610 (Cal. Ct. App. Mar. 29, 1985) (sexual assault).
68 See Paul v. Watchtower Bible & Tract Soc’y of N.Y., Inc., 819 F.2d 875, 876 (9th Cir. 1987) (shunning).
69 See Ambrosio v. Price, 495 F. Supp. 381, 383 (D. Neb. 1979) (automobile accident).
70 See, e.g., John R. v. Oakland Unified Sch. Dist., 769 P.2d 948, 953–55 (Cal. 1989).
71 But see Roman Catholic Archbishop v. Industrial Accident Commission where the property managing entity that was held liable was the regional judicatory corporation sole. See 230 P. 1, 2, 8 (Cal. 1924).
72 Fisher v. Northmoor United Methodist Church, 679 S.W.2d 305, 306–07 (Mo. Ct. App. 1984) (finding church had no duty to warn invitee doing volunteer work where volunteer helped create the dangerous condition). See Cottam v. First Baptist Church, 756 F. Supp. 1433, 1438–39 (D. Colo. 1991) (indicating no liability in local church when volunteers act gratuitously and outside the control of the church), aff’d, 962 F.2d 17 (10th Cir. 1992).
73 See Folwell v. Bernard, 477 So. 2d 1060, 1062–63 (Fla. Dist. Ct. App. 1985).
74 See id. at 1061–62.
75 See id. at 1062.
76 See id. at 1063.
77 See id.; see also Nye v. Kemp, 646 N.E.2d 262, 264–65 (Ohio Ct. App. 1994) (finding regional body not liable because of lack of control). The assertion of control becomes indefensible when one sues the national or international governing body of a religious organization alleging that those in charge are responsible in tort for the carelessness of individual members or ministers. The heads of these organizations do not choose their members (the members choose the organizations for doctrine, practices, and a variety of other reasons) and rarely do those in charge pass on the ministry credentials of each individual performing services around the globe. Compare Olson v. Magnuson, 457 N.W.2d 394, 397 (Minn. Ct. App. 1990), with Package v. Holy See, No. 86-C-222, slip op. at 5–7 (N.H. Super. Ct. Nov. 30, 1988).
78 See Folwell, 477 So. 2d at 1063. A state appellate court in Doe v. Roman Catholic Church listed factors that could be evaluated to determine if a charity volunteer was acting gratuitously or subject to sufficient direction to be considered an agent of the religious entity. See 615 So. 2d 410, 415 (La. Ct. App. 1993). “The right to control is a fact question, determined by the following questions: (1) the degree of contact between the charity and the volunteer, (2) the degree to which the charity orders the volunteer to perform specific actions, and (3) the structural hierarchy of the charity.” Id. The court in Roman Catholic Church found that, had the jury been properly instructed, it might have concluded that the leader of the youth organization was not a servant of the church. Id. at 412, 415.
79 See Folwell, 477 So. 2d at 1063.
80 See Stevens v. Roman Catholic Bishop, 123 Cal. Rptr. 171, 175–77 (Ct. App. 1975). Each of the experts who were divided over whether such a form of agency was possible has earned his own place in the life of the law and the Catholic Church in California. Plaintiff’s expert was John Noonan, now Judge of the U.S. Ninth Circuit Court of Appeals, and the defense expert was Roger Mahony, now Cardinal Archbishop of Los Angeles. For me, the issue is why the court allowed the battle of canonical experts over the degree of supervision a bishop had over the social activities of an individual priest and why the issue was not dealt with in limine, possibly through reference to Catholic Church agencies, to resolve that question definitively.
81 Brillhart v. Scheier, 758 P.2d 219, 221 (Kan. 1988).
82 Id. at 222 (quoting W. Page Keeton et al., Prosser & Keeton on the Law of Torts � 69 (5th ed. 1984)).
83 See Brillhart, 758 P.2d at 223; Nye, 646 N.E.2d at 264; Glover v. Boy Scouts of Am., 923 P.2d 1383, 1388 (Utah 1996).
84 See Destefano v. Grabrian, 763 P.2d 275, 285 (Colo. 1988) (“To date, no court has acknowledged the existence of . . . a tort” of clergy malpractice); Roppolo v. Moore, 644 So. 2d 206, 208 (La. Ct. App. 1994) (“To date, no court has acknowledged the existence of a separate cause of action for the malpractice of a clergy member while acting within a clerical capacity.”); Greene v. Roy, 604 So. 2d 1359, 1362 (La. Ct. App. 1992) (“There are no jurisdictions in the United States that have established a cause of action for clerical malpractice.”); Schieffer, 508 N.W.2d at 911 (“So far as we have been able to determine, no jurisdiction to date has recognized a claim for clergy malpractice.”).
85 See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 546–47 (1993); McDaniel v. Paty, 435 U.S. 618, 626 (1978).
86 See Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16–17 (1929).
87 See Kreshik v. Saint Nicholas Cathedral of the Russian Orthodox Church of N. Am., 363 U.S. 190, 191 (1960).
88 See Destefano, 763 P.2d at 290 (Quinn, C.J., concurring) (indicating that subjecting clergy to same standards as marriage counselors or licensed psychologists would endanger that which makes religious, as opposed to secular, counseling desirable).
89 In reaching this conclusion, I put off for another day the discussion of identifying the proper standard-setting defendant and the proper supervising defendant if there is to be a tort of clergy malpractice. For example, would there be a cause of action against the religious body that writes the Book of Discipline or Code of Canon Law for failure to anticipate a departure from ministerial expectations? Such a cause further complicates both the tort and the constitutional pictures.
90 See 243 Cal. Rptr. 128, 130, 131–32 (Ct. App. 1988).
91 See Tichenor v. Roman Catholic Church, 869 F. Supp. 429, 433–34 (E.D. La. 1993), aff’d, 32 F.3d 953 (5th Cir. 1994); see also Dausch v. Rykse, 52 F.3d 1425, 1429 (7th Cir. 1994) (Coffey, J., concurring); id. at 1436 (Ripple, J., concurring).
92 See Fearing v. Bucher, 977 P.2d 1163, 1166–67 (Or. 1999). In Fearing, the court noted that sexual assault on a minor is not part of the scope of duty of a cleric. See id. at 1166. The court opened the door to pleading a cause of action in respondeat superior, however, when the plaintiff states facts that, if true, show that the perpetrator was acting within the scope of his duty when he committed acts that led to the acts that caused the injury. See id. In other words, the court may allow a claim for the deceit of a pastor that allowed him access to a minor if ministry to young adults is part of his official duties. See id. at 1166–67. It will be difficult to maintain the line between official acts and the abandonment of those acts. This rule is a departure from the rules previously applied by courts and contrary to other decisions. See, e.g., Jeffrey Scott E., 243 Cal. Rptr. at 130–31.
93 Moses v. Diocese of Colo., 863 P.2d 310, 319 (Colo. 1993).
94 Reynolds v. United States, 98 U.S. 145 (1878).
95 Moses, 863 P.2d at 319.
96 Bear Valley Church of Christ v. DeBose, 928 P.2d 1315, 1323–24 (Colo. 1996).
97 Government action need not burden a specific religious belief or practice, or require interpretation of church doctrine, to violate a church’s claim of autonomy. See John H. Mansfield, Constitutional Limits on the Liability of Churches for Negligent Supervision and Breach of Fiduciary Duty, 44 B.C. L. Rev. 1167, 1177 (2003).
98 See, e.g., Angela C. Carmella, The Protection of Children and Young People: Catholic and Constitutional Visions of Responsible Freedom, 44 B.C. L. Rev. 1031, 1039 (2003) (discussing the “judicially created ‘ministerial exception’ from civil rights laws” and citing cases).
99 814 So. 2d 370 (Fla. 2002).
100 814 So. 2d 347 (Fla. 2002).
101 Id. at 361 (quoting Garcia v. Duffy, 492 So. 2d 435, 440 (Fla. Dist. Ct. App. 1986)) (internal quotations omitted).
102 See id. at 360–62.
103 See Isely v. Capuchin Province, 880 F. Supp. 1138, 1150–51 (E.D. Mich. 1995).
104 See id.
105 McClure v. Salvation Army, 460 F.2d 553, 558 (5th Cir. 1972).
106 Swanson v. Roman Catholic Bishop, 692 A.2d 441, 445 (Me. 1997).
107 See 814 So. 2d at 360.
108 Id. at 360–61.
109 See id.
110 NLRB v. Catholic Bishop, 440 U.S. 490, 502 (1979).
111 See id.; see also Ayon v. Gourley, 47 F. Supp. 2d 1246, 1250 (D. Colo. 1998), aff’d on other grounds, 185 F.3d 873 (10th Cir. 1999). Perhaps the issue is the way defenses are framed. Most challenges to negligence claims assert a lack of subject matter jurisdiction as opposed to a failure to state a claim. Where the objection goes to the evidence and the proofs, perhaps the latter is technically more correct, unless the complaint is a gross attack on the religious supervision system. Compare Kelly v. Marcantonio, 187 F.3d 192, 203 (1st Cir. 1999) (affirming grant of summary judgment for defendants), with Ayon, 47 F. Supp. 2d at 1248 (dismissing for failure to state a claim).
112 If the antecedent knowledge is related to some other form of questionable conduct as opposed to the precise form of misconduct charged in the lawsuit, there would be no basis for a negligent supervision claim. See Frith v. Fairview Baptist Church, No. 05-01-01605CV, 2002 WL 1565664, at *3–4 (Tex. App. July 17, 2002) (affirming summary judgment for defendant because, even though church breached duty to conduct background check, doing so would not have made conduct foreseeable). In other words, the claimed basis on which the religious leaders should act in cases of misconduct should be other prior instances of misconduct of the minister—instances made known to religious leaders in a position to act. Absent knowledge, there is no liability. Paul J.H. v. Lum, 736 N.Y.S.2d 561 (App. Div. 2002). Without any knowledge or an opportunity to supervise, there may be no liability. Rivers v. Poisson, 761 A.2d 232, 235–36 (R.I. 2000) (finding no duty to supervise janitor in use of phone when no knowledge that janitor would use phone to harass plaintiff); cf. Anonymous v. Dobbs Ferry Union Free Sch. Dist., 736 N.Y.S.2d 117, 118 (App. Div. 2002) (determining no liability in district because abuse occurred on social visit away from school).
113 See, e.g., Ehrens v. Lutheran Church-Missouri Synod, 269 F. Supp. 2d 328, 332 (S.D.N.Y. 2003); Swanson, 692 A.2d at 444 (quoting Serbian E. Orthodox Diocese for the United States & Canada v. Milivojevich, 426 U.S. 696, 708–09 (1976)); Gibson v. Brewer, 952 S.W.2d 239, 248 (Mo. 1997); Gray v. Ward, 950 S.W.2d 232, 234 (Mo. 1997); Pritzlaff v. Archdiocese of Milwaukee, 533 N.W.2d 780, 790 (Wis. 1995).
114 See Dewaard v. United Methodist Church, 793 So. 2d 1038, 1040–41 (Fla. Dist. Ct. App. 2001) (concluding local church was not supervising body over pastor and therefore negligent supervision claim not possible against local church, but only against proper supervising defendant, the regional conference and District Superintendent).
115 Gibson, 952 S.W.2d at 248; Gray, 950 S.W.2d at 234.
116 See Doe v. Roman Catholic Diocese, No. 05-99-01774-CV, 2001 WL 856963, at *3 (Tex. App. July 31, 2001); Hawkins v. Trinity Baptist Church, 30 S.W.3d 446, 452–53 (Tex. App. 2000). Similarly, even for a religious institution “‘absent special relationships or circumstances, a person has no duty to protect another from criminal acts of a third person.’” N.J. v. Greater Emanuel Temple Holiness Church, 611 So. 2d 1036, 1038 (Ala. 1992) (quoting Young v. Huntsville Hosp., 595 So. 2d 1386, 1387 (Ala. 1992)).
117 Courts frequently reject fiduciary duty claims against churches for nonconstitutional reasons. See Bryan R. v. Watchtower Bible & Tract Soc’y of N.Y., Inc., 738 A.2d 839, 845–47 (Me. 1999) (rejecting claim of fiduciary duty because it was not fact-specific enough and the church had no “generalized fiduciary duty . . . to protect members of its congregation from other members”); Gray, 950 S.W.2d at 234 (rejecting claim of fiduciary duty as a recharacterization of other barred claims).
118 See Dausch, 52 F.3d at 1438–39 (Ripple, J., concurring in part and dissenting in part); Schmidt v. Bishop, 779 F. Supp. 321, 328 (S.D.N.Y. 1991); Amato v. Greenquist, 679 N.E.2d 446, 452–53 (Ill. App. Ct. 1997); Teadt v. Lutheran Church Missouri Synod, 603 N.W.2d 816, 822–23 (Mich. Ct. App. 1999); Schieffer, 508 N.W.2d at 912; Langford v. Roman Catholic Diocese, 705 N.Y.S.2d 661, 662 (App. Div. 2000); Franco v. Church of Jesus Christ of Latter-day Saints, 21 P.3d 198, 208–09 (Utah 2001).
119 E.g., Dausch, 52 F.3d at 1429 (affirming dismissal of breach of fiduciary duty claim); id. at 1438 (Ripple, J., concurring in part and dissenting in part) (“If the court were to recognize such a breach of fiduciary duty, it would be required to define a reasonable duty standard and to evaluate [the minister’s] conduct against that standard, an inquiry identical to that which Illinois has declined to undertake in the context of a clergy malpractice claim and one that is of doubtful validity under the Free Exercise Clause.”); id. at 1429 (Coffey, J., concurring) (agreeing with Judge Ripple’s analysis of the fiduciary duty claim); Schieffer, 508 N.W.2d at 912 (“‘[A]nalyzing and defining the scope of a fiduciary duty owed persons by their clergy, the [c]ourt would be confronted by the same constitutional difficulties encountered in articulating the generalized standard of care for a clergyman required by the law of negligence.’”) (quoting Schmidt, 779 F. Supp. at 326).
120 Langford, 705 N.Y.S.2d at 662; see Teadt, 603 N.W.2d at 823.
121 Amato, 679 N.E.2d at 454 (quoting H.R.B. v. J.L.G., 913 S.W.2d 92, 99 (Mo. Ct. App. 1995)).
122 Id.
123 See id. (“[W]e would consider unlikely the Pastor’s ability to establish that his behavior in this case was religiously motivated,” but the fiduciary duty claim was barred nonetheless.). The case involved a claim that defendant began an affair with counselee’s spouse, also a counselee of defendant. Id. at 448.
124 Franco, 21 P.3d at 200–01.
125 See id. at 205.
126 See id.
127 Id. In addition, claimants cannot sue to enforce religious duties or seek damages for their breach. See Roman Catholic Bishop v. Superior Court, 50 Cal. Rptr. 2d 399, 406 (Ct. App. 1996) (denying claim that church has civil duty to enforce celibacy).
128 See Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 431 (2d Cir. 1999); Moses, 863 P.2d at 321; Evans, 814 So. 2d at 376.
129 Government action need not burden a specific religious belief or practice, or require interpretation of church doctrine, to violate a church’s claim of autonomy. Otherwise, claims by ministry personnel would and could be adjudicated. See supra notes 97–98 and accompanying text.
130 See Martinelli, 196 F.3d at 430–31; Moses 863 P.2d at 322–23.
131 Moses, 863 P.2d at 322–23.
132 Id. at 317–18.
133 Id.
134 See id. at 314.
135 Id. at 322 n.14.
136 Moses, 863 P.2d at 313–14.
137 Id. at 322.
138 Id.
139 Id.
140 Id. at 322–23.
141 Moses, 863 P.2d at 323.
142 Mary Moses’s claim that the bishop owed her a fiduciary duty seemed to arise wholly from his status as bishop and his representation to her that he would resolve the problem. If episcopal status and representations of this type were sufficient to create a fiduciary duty on the part of a bishop, however, it would seem that any bishop or religious superior would be a fiduciary simply by virtue of pastoral acts directed toward those within his episcopal jurisdiction, a conclusion that cannot be reconciled with the U.S. Constitution because it turns episcopal offices and standards into civil ones, and general policies into specifically enforceable fiduciary duties. Brown v. Pearson and other cases reject that point. See 483 S.E.2d 477, 484–85 (S.C. Ct. App. 1997). The least constitutionally offensive way to interpret Moses consistent with the constitutional principles is to construe the case as turning on the specific undertaking by the bishop made personally to plaintiff. Ayon v. Gourley expressly rejects Moses on this point. 47 F. Supp. 2d at 1248–49 (referring to the view taken in Moses as “extremely expansive”). Finally, allowing a jury the authority to evaluate evidence about the scope of a bishop’s duties and render a verdict based on what it thinks a bishop should do is precisely the abuse condemned in United States v. Ballard. See 322 U.S. 78, 86–88 (1944).
143 196 F.3d at 415, 426.
144 See id. at 429.
145 See id. at 413–14.
146 See id. at 429–30.
147 See id. at 430–31.
148 See Martinelli, 196 F.3d at 430–31.
149 Odenthal v. Minn. Conference of Seventh-Day Adventists, 649 N.W.2d 426, 441, 443 (Minn. 2002) (distinguishing between the acts of the minister as minister and counselor, and remanding for a determination of the jurisdiction to hear claims against the supervising religious body); see also Sanders v. Casa View Baptist Church, 134 F.3d 331, 335–36 (5th Cir. 1998) (allowing jury to determine if marriage counseling was “essentially secular” provided defendant with more than enough constitutional protection). On remand from the Minnesota Supreme Court, the Court of Appeals of Minnesota determined that the religious entity could be held liable in a tort case on a theory of negligent employment (supervision, training and retention) without violating the constitutional rights of the faith community. Odenthal v. Minn. Conference of Seventh-Day Adventists, 657 N.W.2d 569, 575–77 (Minn. Ct. App. 2003). The court’s determination in this regard turns on the artificial distinction between the pastor’s duties as pastor (and the church’s actions towards or concerning him in that regard) and the entity’s failure to act on information indicating sexual improprieties. In fact there is no way to read the decision except to conclude that the court believes the better policy is to hold the religious body in the case liable and allow the possible unconstitutional evidence or proofs to be excluded at trial. See id. at 574, 576; see also id. at 577 (allowing a vicarious liability claim to go forward).
150 In Evans, the Florida Supreme Court noted there were two fiduciary duty claims, one against the minister and the other against the church. 814 So. 2d at 374. Remarkably, after reviewing cases about duties of ministers, the court conflated the two and made the church liable as if its acts were the intentional misconduct of the ministers. See id. at 375. This is strict liability, not negligence. The better view of the law is that a breach of fiduciary duty must be based on some actual undertaking directed at the plaintiff (not some undifferentiated group) by the religious entity and those authorized to act for it. Doe v. Hartz, 52 F. Supp. 2d 1027, 1062–64 (N.D. Iowa 1999).
151 See 196 F.3d at 431.
152 See id.
153 Id.