Attorney Newsletter   The Religion Case Reporter   April 2009

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Landmark status and resulting limitations on Church’s ability to tear down an apartment building it owned adjacent to the Church did not place a substantial burden on the Church’s religious exercise in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Church bought building adjacent to its property with a view toward expansion. For years the Church operated the building as an apartment building. During that time period, the building was declared a city landmark by City Ordinance, over the Church’s objection. After 2003, the building became vacant and the Church declared it wish to demolish the building in order to build a “Family Life Center.” The City did not dispute that it was not viable for the Church to convert the apartment building into a usable space in compliance with the applicable ordinance because the internal support structure of the building prevented the expansion of the existing rooms within the building (i.e. the Church could not add more square footage or make the rooms larger). In addition, even if it were to renovate the building, it would cost the Church in excess of $1 million more than if it were to tear down the building and build a new structure. The Church’s application for a “certificate of appropriateness” allowing for the alteration or demolition of its landmark building was denied. The Church’s further request that the City Council withdraw the landmark designation was also denied. Held: the landmark status and resulting limitations on the Church’s ability to tear down the apartment building did not place a substantial burden on the Church’s religious exercise in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The landmark designation affected only one building and one location on the Church campus and in no way prevented the Church from continuing its religious ministries. While the Church was limited in the uses it could make of the apartment building and the manner in which it could be renovated, limiting the options that the Church had for expansion, and while this burden would add a financial cost to the church (if it elected to renovate the building), the landmarking did not render religious exercise by the Church effectively impracticable. The Church was free to exercise its religion, it was just limited in its ability to convert the apartment building into a more convenient forum for a handful of services it wished to offer.— Trinity Evangelical Lutheran Church v. City of Peoria, Illinois, ___ F. Supp. 2d ___ (C.D. Ill. 2009), No. 07-cv-1029. Dated March 31, 2009. Opinion by J. Joe B. McDade.    Case # 3469

 

Arizona school voucher programs in which sectarian schools could participate violated the “no aid” provision of the state constitution, Ariz. Const. Art. 9, § 10, which provides: “No tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation.” Court does not address whether or not the voucher programs also violates the “religion clause” of the state constitution, Ariz. Const. Art. 2, § 12, which provides: “No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.” The intermediate appellate court, the Court of Appeals, had held that the voucher programs did not violate the “religion clause” of the state constitution, but given its holding that the programs violated the “no aid clause,” the state Supreme Court did not address the issue and vacated the Court of Appeals’ opinion.

In Case # 3190, the Arizona Court of Appeals held that two state school voucher programs in which sectarian schools could participate, and which benefited children with disabilities and children in foster care, did not violate the “religion clause” of the state constitution, Ariz. Const. Art. 2, § 12, which provided: “No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.” Under both programs, qualified parents or legal guardians selected the private or sectarian school they desired their child to attend and the State disbursed a check or warrant to the parent or guardian, who was required to “restrictively endorse” the instrument for payment to the selected school. The Court of Appeals held that the statutes at issue were facially neutral and favored neither one religion over another, nor religion over nonreligion, and parents and children made an independent, personal choice to direct the funds to a particular school, which could be either religious or secular. Hence they did not violate Ariz. Const. Art. 2 § 12. The Court of Appeals’ holding was based on the conclusion that the meaning of Ariz. Const. Art. 2, § 12, was co-extensive with the meaning of the Establishment Clause of the First Amendment as interpreted by the U.S. Supreme Court. Thus, because the U.S. Supreme Court’s Establishment Clause jurisprudence had upheld voucher programs that permitted state funds to flow to religious institutions as a result of the genuinely independent and private choice of aid recipients, the Ariz. Court of Appeals held the same to be true under Ariz. Const. Art. 2, § 12. On appeal, the Arizona Supreme Court did not address the Court of Appeals’ conclusion that the voucher programs did not violate Art. 2, § 12.

Instead, the state Supreme Court agreed with the Court of Appeals’ conclusion in Case # 3190 that the voucher programs violated the “no aid” provision of the state constitution, Ariz. Const. Art. 9, § 10, which provided: “No tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation.” The Arizona Supreme Court rejected the argument that the voucher funds did not “aid” the sectarian schools, but rather the students who were the true beneficiaries of the programs. The appropriation of state funds to partially reimburse the Salvation Army’s expenses in providing emergency, non-religious services to members of the public who were in need, without religious restriction, had been held not to violate the “no aid” provision. That was because the Salvation Army received no financial aid or support, but merely served as a conduit directing state appropriated funds to the public. In contrast, the voucher programs under consideration transferred state funds directly from the state treasury to private schools. That the checks or warrants first passed through the hands of parents was immaterial; once a pupil was accepted into a qualified school under either program, the parents or guardians had no choice but to endorse the check or warrant to the qualified school. The voucher programs, which involved the appropriation of state monies to sectarian schools, were distinguishable from a tax credit allowed to parents sending their children to a religious school. — Cain v. Horne, ___ Ariz. ___, ___ P.3d ___ (Ariz. 2009) (en banc), No. CV-08-0189-PR. Dated March 25, 2009. Opinion by J. Michael D. Ryan.    Case # 3468

 

Action by principal of Roman Catholic parochial school against diocese and priest for breach of implied contract, breach of implied covenant of good faith, promissory estoppel, wrongful termination and negligent infliction of emotional distress and tortious interference with business expectancies was not subject to dismissal under the “ministerial exception” which precludes a court from adjudicating employment disputes between religious institutions and their religious leaders.

Plaintiff was the principal of a Roman Catholic parochial school. Several seventh- and eighth-grade female students complained about sexual remarks made by a priest (apparently the parish priest, although the court does not say so). Plaintiff alleged that she refused to follow the instruction of the priest to contact Connecticut’s Department of Children and Families concerning one of the complaining students, because she saw this instruction as retaliation against the student and her mother for good faith reporting of their concerns about the priest. Thereafter, the priest told plaintiff that he was concerned about plaintiff’s performance as principal; however, the priest refused to meet plaintiff to discuss her alleged shortcomings. Subsequently, the priest accused plaintiff of not “standing up for him” in the incident involving his unwanted sexual comments. During that same conversation, the priest requested that plaintiff resign, but promised plaintiff that she would have a teaching position for the following year if she resigned as principal. Plaintiff refused to resign and her contract as principal was not renewed, and she was not offered a teaching position for the following year. Based on these allegations, plaintiff brought suit against the diocese and the priest alleging breach of implied contract, breach of implied covenant of good faith, promissory estoppel, wrongful termination and negligent infliction of emotional distress and tortious interference with business expectancies. Defendants’ moved to dismiss on the ground that the court had no jurisdiction owing to the so-called “ministerial exception,” which precludes a court from adjudicating employment disputes between religious institutions and their religious leaders. The Connecticut Superior Court denied the motion to dismiss. Plaintiff’s claims involved discrete inquiries that did not intrude into purely religious matters or issues of church governance. See court’s opinion for further details.— Dayner v. Archdiocese of Hartford, 2009 Conn. Super. LEXIS 606 (Conn. Super. Ct. 2009), No. CV065002874S. Dated March 11, 2009. Opinion by J. Julia L. Aurigemma.    Case # 3467

 

Employee of the Jehovah’s Witness faith, denied permission to attend a two day religious convention, failed to state a claim for constructive discharge arising from a hostile work environment or a claim for retaliation. However, plaintiff’s complaint adequately stated a claim of religious discrimination under Title VII, both for failure to accommodate and for disparate treatment.

Plaintiff, who worked as a line cook in a restaurant, alleged that although he had been promised by the person who hired him that he could take off two days to attend a Circuit Assembly of Jehovah’s Witnesses, his immediate supervisor scheduled him to work on those two days telling him “[Y]ou have to make a choice between work and your religion.” The supervisor allegedly warned plaintiff that work absence would be interpreted as job abandonment. Thereafter, the supervisor allegedly created a “hostile workplace” by yelling, screaming and occasionally throwing cooking utensils. Plaintiff alleged that he eventually quit because he could not predict what his supervisor might do and that he felt unsafe. Plaintiff’s claim of constructive discharge arising from a hostile work environment was dismissed. The allegations of persistent shouting and a display of poor temperament – conduct which was not aimed exclusively at plaintiff – were insufficient to state a plausible hostile-environment claim. Using a loud and intimidating voice and slamming objects, without more, does not create a hostile work environment. While the supervisor’s habits of shouting at the restaurant’s employees may have been uncomfortable for plaintiff, or even rude, they did not create working conditions so intolerable that a reasonable person would have felt compelled to resign. Nor was the supervisor’s habit of “screaming” related to plaintiff’s religion, the complaint having alleged just one remark by the supervisor that raised the issue of the plaintiff’s religion. (“You have to make a choice between work and your religion.”). Plaintiff’s retaliation claim based on the assertion that after the plaintiff spoke about his request for days off to attend the religious convention the work environment got worse was also dismissed. Plaintiff, having failed to state a plausible hostile-environment claim, could not have such alleged hostile environment form the basis of his retaliation claim.

However, plaintiff adequately stated a claim of religious discrimination under Title VII, both under a theory of disparate treatment and failure to accommodate. The complaint adequately alleged that the plaintiff was denied reasonable accommodation in response to his request for two days off to attend the Circuit Assembly. Withdrawal of permission to attend the religious convocation was possible evidence that defendant restaurant owner did not offer a reasonable accommodation of plaintiff’s religious exercise. Plaintiff also stated a claim for disparate treatment. As described in the complaint, the supervisor withdrew previously granted permission for the plaintiff to attend the Circuit Assembly, issued an ultimatum that forced the plaintiff to choose between his religion and his employment at the restaurant, and may have denied him a reasonable accommodation. The alleged threat of termination was sufficient to constitute a disciplinary act that resulted in constructive discharge.— Faison v. Leonard St., LLC., 2009 U.S. Dist. LEXIS 25078, 2009 WL 636724 (S.D.N.Y. 2009), No. 08 Civ. 2192 (PKC). Dated March 9, 2009. Opinion by J. P. Kevin Castel.    Case # 3466

 

Plaintiff, a Chicago police officer, objected to prayers conducted at police-community meetings. Plaintiff sued the City alleging that that the prayer which occurred during the “beat meetings” organized by the police department violated the First Amendment and coerced plaintiff into supporting or participating in a Christian religious exercise. Plaintiff further alleged that, in violation of Title VII, the police department discriminated against her by removing her from assignment to beat meetings when she complained about prayer at the meetings. City granted summary judgment.

Plaintiff, a Chicago police officer, objected to prayers conducted at police-community meetings. The community meetings (“beat meetings”) were held on a monthly or quarterly basis in each of the 281 police beats in the City and offered an opportunity for police and community members to meet, exchange information, and identify and discuss crime and disorder problems on the beat. Plaintiff claimed that each of the beat meetings she was assigned to opened and closed with Christian prayer. While plaintiff did not participate in these prayers she remained present during them because, she claimed, “the intimacy of the meetings did not permit unobtrusive escape.” When plaintiff complained to her direct superior, she was told that she was free to excuse herself from beat meetings during prayer, that it would not be held against her, and that if anyone challenged plaintiff for excusing herself during prayer he would tell that person that prayer was not required. Plaintiff’s superior also offered to change plaintiff’s assignment so that she would no longer be in the pool of officers possibly assigned to attend beat meetings. Plaintiff sued the City alleging that that the prayer which occurred during the “beat meetings” organized by the police department violated the First Amendment and coerced plaintiff into supporting or participating in a Christian religious exercise. Plaintiff further alleged that, in violation of Title VII, the police department discriminated against her by removing her from assignment to beat meetings when she complained about prayer at the meetings. According to plaintiff, participation the in the community outreach program was highly compensated and necessary for advancement within the police department and her removal constituted an adverse employment action due to religious discrimination in violation of Title VII. Held: Plaintiff could not establish a First Amendment violation. First, plaintiff failed to show that prayer at the beat meetings was due to “state action” of any kind. Second, plaintiff could not show that she was coerced to observe the Christian prayer that occurred at the beat meetings she attended, or even that she was coerced to attend the meetings. Finally, plaintiff could not show that the asserted constitutional violation was attributable to a municipal policy or custom. Nor could plaintiff establish her claim that, in violation of Title VII, she was subject to retaliation in response to her objection to the prayers.— Kaplan v. City of Chicago, ___ F. Supp. 2d ___ (N.D. Ill. 2009), No. 05 C 2001. Dated March 27, 2009. Opinion by J. Harry D. Leinenweber.    Case # 3465

 

County commenced a nuisance abatement action in state court against a Christian school. The complaint alleged that the school was operating a private school without the required conditional use permit required by the zoning ordinance and that such use constituted a public nuisance. Defendant school filed a notice of removal to federal district court. Thereafter, in its Answer and Cross-Complaint, defendant alleged that the County was violating its rights under the First and Fourteenth Amendments to the U.S. Constitution and the Religious Land Use and Institutionalized Persons Act (RLUIPA). The federal district court held that it lacked subject matter jurisdiction, and therefore remanded the matter back to state court.

The presence or absence of federal question jurisdiction is governed by the “well-pleaded complaint rule,” which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint. Here, plaintiff’s complaint only raised an issue of state law, specifically zoning violations; no federal question was presented on the face of the complaint. Defendant argued that this matter qualified for federal jurisdiction because the case was one “arising under” a law of the United States. In rejecting this argument, the court observed that RLUIPA was not the basis for plaintiff’s claims, but was defendant’s defense to plaintiff’s claim for zoning violations. Although a plaintiff may not avoid federal jurisdiction by omitting from the complaint allegations of federal law that are essential to the establishment of his claim, plaintiff was not guilty of artful pleading so as to avoid federal jurisdiction. Plaintiff had a claim for the zoning violations. It was defendant who argued that plaintiff was in violation of RLUIPA. As such, plaintiff’s complaint was not artfully pled.— County of Los Angeles v. Sahag-Mesrob Armenian Christian School, 2009 U.S. Dist. LEXIS 24999 (C.D. Cal. 2009), No. CV 09-560 SVW (JWJx). Dated March 18, 2009. Opinion by J. Stephen V. Wilson.    Case # 3464

 

Inclusion of the words “under God” in the Texas pledge of allegiance – which had to be recited by Texas school children each day, unless excused in writing by a parent or guardian – did not violate the Establishment Clause of the First Amendment

In Texas, it was mandatory for public school students to recite the pledge of allegiance to the United States and Texas flags; however, on written request by a student’s parent or guardian, a student had to be excused from reciting either pledge of allegiance. The words “under God” were added to the Texas Pledge of Allegiance in 2007. The district court held that the inclusion of the words “under God” did not render the Texas pledge unconstitutional under the Establishment Clause of the First Amendment. The court rejected plaintiffs’ arguments that the Texas legislature did not have a secular purpose in adding the words “under God”; that recitation of the words “under God” had the effect of state endorsement of religion; that the inclusion of the words “under God” amounted to “psychological coercion” of schoolchildren who were atheist into supporting or participating in religion; and that inclusion of the words “under God” in the singular had the effect of preferring Christian and Jewish beliefs over polytheistic religions.— Croft v. Perry, ___ F. Supp. 2d ___ (N.D. Tex. 2009), No. 3:07-CV-1362-K. Dated March 26, 2009. Opinion by J. Ed Kinkeade.    Case # 3463

 

Congregant began counseling with her priest and thereafter entered into a consensual sexual relationship. Claim for breach of fiduciary duty against the priest and claims for negligent supervision and retention against the Diocese dismissed.

In order to demonstrate the existence of a fiduciary duty between a cleric and a congregant involved in a formal counseling relationship, a congregant must set forth facts and circumstances in the complaint demonstrating that the congregant became uniquely vulnerable and incapable of self-protection. The bare allegation that plaintiff was “a vulnerable congregant” was insufficient to establish that plaintiff was particularly susceptible to the priest’s influence, nor that the parties had a relationship characterized by control and dominance.— Doe v. Roman Catholic Diocese of Rochester, 2009 N.Y. Slip Op. 2264 (N.Y. 2009), No. 33. Dated March 26, 2009. Memorandum opinion, JJ. Lippman, Ciparick, Graffeo, Read, Smith, Pigott and Jones.    Case # 3462, reversing, Doe v. Roman Catholic Diocese of Rochester, 51 A.D.3d 1392, 857 N.Y.S.2d 866 (N.Y. App. Div. 4th Dept. 2008)

 

Part of Missouri’s scheme for creating specialty license plates struck down, because it allowed for viewpoint discrimination. The application for an anti-abortion “Choose Life” specialty plate was denied because of the opposition of two “pro-choice” legislators. Eighth Circuit affirms injunction requiring issuance of the “Choose Life” plate.

Missouri provided for two methods to create a specialty plate, such as “Choose Life.” (1) The legislature could pass a bill creating the specialty plate. (2) Private organizations could petition the state Department of Revenue (DOR) for a specialty plate. The Sponsorship of at least one current member of the general assembly was necessary. The application had to be accompanied by a list of at least 200 potential applicants who planned to purchase the proposed specialty plate. The application had to be accompanied by payment of a fee, not to exceed $ 5,000, to defray the department’s cost for issuing, developing and programming the implementation of the specialty plate, if authorized. The DOR had to submit the application for approval to the “joint committee on transportation oversight” during a regular session of the general assembly. Pursuant to Mo. Rev. Stat. § 21.795(6), the Joint Committee had to approve the application by unanimous vote and the Committee was not to approve any application “if the committee receives a signed petition from five house members or two senators that they are opposed to the approval of the proposed license plate.” Section § 21.795(6) was held unconstitutionally overbroad.

Using the second method, plaintiff Choose Life of Missouri, Inc., a nonprofit corporation, submitted an application to the DOR for a “Choose Life” specialty license plate. Two “pro-choice” Missouri state senators, both of whom were members of the Joint Committee, submitted a letter opposing the “Choose Life” specialty plates. Accordingly, the Joint Committee denied the application.

The Eighth Circuit Court of Appeals affirmed the holding of the district court that the specialty plates constituted private speech, not government speech, and that the statutory scheme lacked adequate guidelines to prevent viewpoint discrimination by the state because unbridled discretion was given to government officials in deciding to approve or deny a specialty license plate. The court thus struck down § 21.795(6) as unconstitutionally overbroad and entered an injunction requiring the DOR to issue the “Choose Life” specialty plate.

In determining, under the Missouri specialty license plate scheme, whether the messages on specialty plates are government speech, or private speech protected by the First Amendment, the Eighth Circuit said that the key question is whether, under all the circumstances, a reasonable and fully informed observer would consider the speaker to be the government or a private party. Notwithstanding the Sixth Circuit’s conclusion to the contrary, the Eighth Circuit joined the Fourth, Seventh and Ninth Circuits in concluding that a reasonable and fully informed observer would consider the speaker to be the organization that sponsors and the vehicle owner who displays the specialty license plate, not the government.

Having found that messages on specialty plates communicate private speech, the Court proceeded find § 21.795(6) unconstitutional on its face because it allowed the State to engage in viewpoint discrimination. Section 21.795(6), which authorized the Joint Committee to approve or deny specialty license plate applications, provided no standards or guidelines whatsoever to limit the unbridled discretion of the Joint Committee. Consequently, the Committee could deny an application for a specialty plate based solely on the organization’s viewpoint.

The Court found § 21.795(6) severable from the rest of the statutory scheme. The Joint Committee could still vote on specialty plate applications. However, the Committee was now limited to determining whether the specialty plate applicant had provided the required list of 200 individuals who planned to purchase the plate; whether the applicant had paid the fee, not to exceed $ 5,000, to defray the cost of issuing, developing, and programming the implementation of the plate; and whether the applicant had the sponsorship of at least one member of the Missouri Legislature. However, the Committee could not deny an application based on the viewpoint of the speaker as it could under the current statutory scheme.— Roach v. Stouffer, ___ F.3d ___ (8th Cir. 2009), Filed March 26, 2009. Opinion by J. Gruender.    Case # 3461

 

Arbitration award of Rabbinical Court vacated because of appearance of partiality and bias

Two religious corporations submitted their dispute over the terms of a lease to a Beth Din, a Rabbinical Court, which ruled in favor of the lessor. The arbitration award was vacated. An employee of the Beth Din, the clerk of the Rabbinical Court, was married to an employee of one of the parties to the arbitration, the lessor. The lessee did not learn of the marital relationship between the clerk and the lessor’s employee until the second hearing before the Beth Din. This relationship was significant enough that it should have been disclosed by either the Beth Din or the lessor prior to the agreement by the lessee to binding arbitration by the Beth Din. The fact that the Beth Din’s clerk, who was present during the entire arbitration hearing, was married to an employee of the lessor, in conjunction with the fact that the clerk informed the Beth Din of the results of a private telephone conversation he had with his wife during the hearing with respect to one of the issues in dispute which resolved this issue in the lessor’s favor created more than the requisite inference of partiality and bias.— In re Application of Beth Jacob Teachers Seminary Inc., 2009 NY Slip Op 50504U (N.Y. Sup. Ct. Kings Co. 2009), Index # 12218/08. Dated March 24, 2009. Opinion by J. Martin Schneier.    Case # 3460

 

Defendants did not violate plaintiff student’s free speech and free exercise rights by preventing her from making a proselytizing graduation speech

See McComb v. Crehan, ___ Fed. Appx. ___, 2009 U.S. App. LEXIS 5937 (9th Cir. 2009), No. 07-16194. Filed March 20, 2009. Memorandum opinion, JJ. Kozinski, Hug, and Bea. Unpublished opinion.    Case # 3459

 

Christian school excluded from Texas association of public schools and open-enrollment charter schools that organized interscholastic athletic and academic competition. Free exercise, due process, and equal protection rights of student and his parents not violated.

The University Interscholastic League (UIL) was a non-profit association of public schools and open-enrollment charter schools in Texas that organized interscholastic athletic and academic competition. It was part of the Division of Continuing Education of the University of Texas at Austin, submitted its rules and procedures to the commissioner of the Texas Education Agency for approval, and filed its accounting report with the governor of Texas and each house of the Texas Legislature. Pursuant to section 12(d) of the UIL Constitution and Contest Rules, private and parochial schools were permitted to apply for membership in the UIL so long as such school did not qualify for membership in any other similar organization and its right to participate in such similar organization had not been suspended or revoked for violating the rules or codes of such similar organization.

Plaintiff Christian college preparatory school had belonged to a similar interscholastic athletic and academic league, the Texas Association of Private and Parochial Schools (TAPPS), but TAPPS had refused to renew the religious school’s membership owing to violation of TAPPS’s recruiting rules. Thereupon, the school, applied for membership in the UIL, but its application was refused on the alternative grounds that the school was either eligible for admission to other organizations similar to the UIL or because its right to participate in TAPPS had been suspended or revoked for violating TAPPS’s rules.

Plaintiffs – the Christian school, a student in said school who participated in the school’s athletic programs and the student’s parents – brought suit against the UIL alleging that section 12(d) of the UIL Constitution and Contest Rules burdened plaintiff parents’ and student’s free exercise of religion and plaintiff parents’ Fourteenth Amendment due process right to control their children’s education by sending them to a parochial school. Plaintiffs also alleged that the policy violated equal protection because it excluded nonpublic schools and arbitrarily distinguished between nonpublic schools of different sizes, effectively limiting membership to two large parochial schools that had been admitted into the UIL.

The Fifth Circuit Court of Appeals held, inter alia, that (1) plaintiff school did not have association standing to bring the free exercise claim in this case, because the involvement of the school’s student and his parents was essential to resolution of the asserted claim. (2) Section 12(d) of the UIL’s Constitution and Contest Rules did not infringe plaintiffs’ free exercise or due process rights and neither section 12(d)’s distinction between public and nonpublic schools, nor or its purported distinction between nonpublic schools of differing sizes, violated the equal protection of the laws. See court’s opinion for complete details.— Cornerstone Christian Schools v. University Interscholastic League (UIL), ___ F.3d ___ (5th Cir. 2009), No. 08-50429. Filed March 20, 2009. Opinion by J. King.    Case # 3458

 

Plaintiff, sexually abused as a minor by a Roman Catholic priest, sued the Holy See of the Roman Catholic Church for (1) for vicarious liability based on the actions of the Holy See’s instrumentalities, the Archdiocese of Portland, the Bishop of Chicago, and the Order of Friar Servants; (2) for respondeat superior liability based on the actions of the abusive priest, and (3) for direct liability for the Holy See’s own negligence in retaining and supervising the priest and for the Holy See’s alleged negligent failure to warn plaintiff of the priest’s dangerous proclivities. Ninth Circuit, affirming in part and reversing in part the decision of the district court, discusses whether, based on the allegations in the complaint, the Holy See, which had the status of a foreign state, was, subject to the jurisdiction of an American court under the Foreign Sovereign Immunity Act (FSIA), 28 U.S.C. § 1602 et seq.

Plaintiff filed an action against the Holy See of the Roman Catholic Church; the Archdiocese of Portland, Oregon, the Catholic Bishop of Chicago, and the Order of Friar Servants for the alleged tortious conduct of a Catholic priest at a local parish church in Portland. The complaint alleged that the priest, a member of the Order of Friar Servants, had sexually molested a minor while employed with the Archdiocese of Armagh in Ireland in 1955-1956; that the priest had admitted to abusing the youth and was removed from his position in Ireland and placed in defendant Order’s Chicago province, at an all-boys school where he worked in the private counseling office; that while in Chicago, three male students made independent reports of sexual abuse committed by the priest, who admitted to all three reports; that the Chicago Bishop, “acting in accordance with the policies, practices, and procedures” of the Holy See, did not discipline or remove the priest from his post; and that in 1965 the Holy See and the Order of the Friar Servants “placed” the said priest in a parish priest position in Portland where he subjected plaintiff, who was, at the time, a minor, to sexual abuse.

The question under consideration was whether, based on the allegations in the complaint, the Holy See, which had the status of a foreign state, was subject to the jurisdiction of an American court under the Foreign Sovereign Immunity Act (FSIA), 28 U.S.C. § 1602 et seq. Plaintiff sued the Holy See (1) for vicarious liability based on the actions of the Holy See’s instrumentalities, the Archdiocese, the Chicago Bishop, and the Order; (2) for respondeat superior liability based on the actions of the abusive priest, and (3) for direct liability for the Holy See’s own negligence in retaining and supervising the priest and for the Holy See’s alleged negligent failure to warn plaintiff of the priest’s dangerous proclivities.

Claim For Vicarious Liability Dismissed

In Case # 2718, the district court rejected the argument that that the Archdiocese, the Chicago Bishop, and the Order were separate juridical entities for whose actions the Holy See could not be held vicariously liable, holding that plaintiff sufficiently pled the existence of an agency relationship to overcome the presumption of independence accorded to separate juridical entities. On this point, the Ninth Circuit Court of Appeals reversed, holding that plaintiff had not alleged facts sufficient to overcome the presumption of separate juridical status for governmental instrumentalities, so the negligent acts of those entities could not be attributed to the Holy See for jurisdictional purposes. Plaintiff’s complaint did not allege day-to-day, routine involvement of the Holy See in the affairs of the Archdiocese, the Order, and the Bishop. Instead, it alleged that the Holy See “creates, divides, and re-aligns dioceses, archdioceses and ecclesiastical provinces” and “gives final approval to the creation, division or suppression of provinces of religious orders.” Plaintiff also alleged that the Holy See “promulgates and enforces the laws and regulations regarding the education, training, and standards of conduct and discipline for its members and those who serve in the governmental, administrative, judicial, educational, and pastoral workings of the Catholic Church world-wide.” These factual allegations – that the Holy See participated in creating the corporations and continued to promulgate laws and regulations that applied to them – were insufficient to overcome the presumption of separate juridical status. Plaintiff did not allege that the Holy See inappropriately used the separate status of the corporations to its own benefit, or that the Holy See created the corporations for the purpose of evading liability for its own wrongs. See Court’s opinion for further details.

Claim for Respondeat Superior Liability Allowed

Plaintiff’s claims against the Holy See for respondeat superior liability could proceed because plaintiff sufficiently alleged that the priest who abused him was an employee of the Holy See and that, under Oregon law, the priest had acted within the “scope of his employment.” Under Oregon law, an intentional tort (such as sexual abuse) is within the scope of employment, and can support respondeat superior liability for the employer, if conduct that was within the scope of employment was “a necessary precursor to the” intentional tort and the intentional tort was “a direct outgrowth of . . . conduct that was within the scope of . . . employment.” Plaintiff’s allegations met this standard. Plaintiff asserted that he came to know the priest as his “priest, counselor and spiritual adviser,” and that the priest used his “position of authority” to “engage in harmful sexual contact upon” plaintiff in “several places including the monastery and surrounding areas in Portland, Oregon.” Although as a foreign sovereign, the Holy See was presumptively immune from suit under the FSIA unless an exception applied, the priest’s acts came within the FSIA’s tortious act exception of 28 U.S.C. § 1605(a)(5), so the Holy See was not immune from suit for the respondeat superior cause of action. In his complaint, plaintiff alleged that the Holy See employed priests, including the priest who had abused plaintiff, and that said priest was under the “direct supervision and control” of the Holy See and that the Holy See was further “responsible for the work and discipline [of] . . . priests.” According to the complaint, the Holy See on at least one occasion was responsible for controlling where the abusive priest performed his functions, having placed the priest in the Portland, Oregon parish. Under Oregon law, then, plaintiff clearly alleged sufficient facts to show that his claim was based on an injury caused by an “employee” of the foreign state while acting “within the scope of his . . . employment.” See § 1605(a)(5).

Negligence Claims Barred by the Discretionary Function Exception

The district court had also held that plaintiff’s negligence claims, but not his fraud claim, against the Holy See could proceed under the FSIA’s tortious act exception. On appeal, the Ninth Circuit disagreed.

Plaintiff’s complaint asserted a claim of negligence against the Holy See on the grounds that it knew or reasonably should have known of the priest’s dangerous propensities as a child abuser, but despite such knowledge, negligently retained and placed the priest and negligently failed to warn those coming into contact with him. The Holy See’s alleged placement of the priest in the Oregon parish occurred entirely within the United States because the priest was transferred from Chicago to Portland. Certainly, plaintiff’s injuries, including his emotional pain, dysfunction, embarrassment, and other psychological injuries, occurred entirely within the United States. Therefore, the district court held that plaintiff alleged a claim for negligence based on acts and injuries occurring entirely in the United States. This result was not changed by the fact that plaintiff’s complaint alleged many other bases of tortious conduct by the Holy See possibly occurring outside of the United States. The district court held that as long as plaintiff alleged facts sufficient to show both injury and the conduct (action or inaction) giving rise to a tort that occurred in the United States, the tortious activity exception applied. The district court further held that plaintiff’s negligence claims against the Holy See were not barred by the discretionary function exception, which bars jurisdiction over a foreign sovereign for “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused.” 28 U.S.C. § 1605(a)(5)(A). The district court held that the challenged actions in this case were not the type of judgments the discretionary function exception was designed to shield because the record was devoid of any evidence that the Holy See’s failure to warn was the result of a policy judgment or was even susceptible to balancing competing policy interests.

The Ninth Circuit disagreed, holding that the discretionary function exception barred plaintiff’s negligence claims against the Hoy See. Whether or not the alleged negligence otherwise came within the language of the FSIA’s tortious act exception was not decided by the Ninth Circuit panel. The complaint referred vaguely to the Holy See’s “policies, practices, and procedures” of not firing priests for, and not warning others about, their abusive acts. Plaintiff also referred to a “policy promulgated by the Holy See to cover up incidents of child abuse,” which he argued removed any element of judgment or choice from the Holy See’s actions. Yet nowhere did plaintiff allege the existence of a policy that was “specific and mandatory” on the Holy See. Plaintiff did not state the terms of this alleged policy, or describe any documents, promulgations, or orders embodying it. Nor did the complaint in any other way allege that the Holy See’s decisions to retain the abusive priest and not warn about his proclivities involved no element of judgment, choice, or discretion. While the burden of proof ultimately falls on the sovereign entity asserting the discretionary function exception, a plaintiff must advance a claim that is facially outside the discretionary function exception in order to survive a motion to dismiss. Plaintiff failed to do so. Hiring, supervision, and training of employees are discretionary acts. The Holy See’s failure on its motion to dismiss to present any evidence that its actions were actually based on policy considerations was not relevant to whether the discretionary function exception applied. A foreign state’s decision “need not actually be grounded in policy considerations so long as it is, by its nature, susceptible to a policy analysis.” Here, the Holy See might have decided to retain the priest and not to warn his parishioners because it felt that to do otherwise would have harmed the Church’s reputation locally, or because it felt that pastoral stability was sufficiently important for the parishioners’ well-being, or because low ordination rates or staffing shortages made it necessary to keep the priest on. That such social, economic, or political policy considerations could have influenced the decision rendered it the kind of judgment that the discretionary function exception was designed to shield.

The Commercial Activity Exception

The district court had also held that the Holy See was not subject to the court’s jurisdiction under the commercial activity exception of 28 U.S.C. § 1605(a)(2). Under the “private person test,” a foreign state engages in “commercial activities” for purposes of the FSIA if its activities are not an exercise in powers peculiar to sovereigns, but an exercise only of those powers that can also be exercised by private citizens. Plaintiff argued that the Holy See provided and promoted guidance, education and counseling services world-wide to Catholics in return for revenue and that such acts were in essence a commercial activity subjecting it to the court’s jurisdiction. However, the district court held that the true essence of plaintiff’s complaint was an allegation of sexual abuse committed by a parish priest and the gravamen of the complaint was not commercial in nature, but sounded in tort. Thus, the district court held it did not have subject matter jurisdiction under the FSIA’s commercial activity exception. The Ninth Circuit held that it did not have jurisdiction to consider plaintiff’s interlocutory cross-appeal as to the commercial activity exception. See Court’s opinion in Part III.B.2 for details.

Judge Berzon, in her dissenting opinion, agreed with the majority that plaintiff’s negligence claims against the Holy See, as currently pleaded, could not proceed under the tortious act exception. However, J. Berzon was of the opinion that plaintiff’s negligence claims came within the FSIA’s commercial activity exception, based on the principle that an employment relationship between a foreign sovereign and its employee constitutes commercial activity, so long as the employee is not a civil service, diplomatic, or military employee. The concurring opinion, while agreeing with the majority opinion that the Court could not presently consider the commercial exception on plaintiff’s interlocutory appeal, went on to address the substance of the question in light of the dissenting opinion. The concurring Judge agreed with the district court that the commercial activity exception did not allow plaintiff’s negligence claims.— Doe v. Holy See, ___ F.3d ___ (9th Cir. 2009), Nos. 06-35563 & 06-35587. Filed March 3, 2009. Per curiam decision, JJ. Ferdinand F. Fernandez, Marsha S. Berzon, and Otis D. Wright, II. J. Berzon dissenting in part. Responding to J. Berzon, J. Fernandez filed a concurring opinion responding to the dissenting opinion.    Case # 3457

 

Bankruptcy; Chapter 7; Religious Liberty and Charitable Donation Protection Act of 1998. 11 U.S.C. § 548(a)(2)(A) prevents the trustee from avoiding as constructively fraudulent a charitable contribution to a qualified religious or charitable organization if the amount of the contribution is not more than 15% of the debtor’s Gross Annual Income (GAI). Section 548(a)(2)(B) prevents the trustee from avoiding a charitable contribution to a qualified organization that exceeds 15% of the debtor’s GAI, if the contribution is “consistent” with the Debtor’s practices of making charitable contributions. Where a debtor has a sole proprietorship business (in this case a medical practice), the GAI of the debtor is the business’ gross receipts, without subtracting the cost of goods or operating expenses. Assuming that monies donated to a church in 2005 was 19% of the bebtors’ GAI, the transfers to the church in excess of 15% of GAI were still not recoverable by the Trustee because the Transfers were “consistent” with the debtors’ practice of giving charitable contributions.

The Debtors (husband and wife) filed a joint voluntary Chapter 7 petition in Bankruptcy. The Chapter 7 Trustee initiated an adversary proceeding under 11 U.S.C. § 548(a)(2), seeking to avoid Debtors’ 2005 transfers of charitable contributions to the defendant church as constructively fraudulent. The Transfers were contributions to the church as tithes and offerings and there was no reasonably equivalent value in exchange for the Transfers. In addition, the debtors were insolvent at the time of the challenged 2005 Transfers. Thus, the Trustee met his burden of proving constructive fraud. However, 11 U.S.C. § 548(a)(2)(A) prevents the trustee from avoiding as constructively fraudulent a charitable contribution to a qualified religious or charitable organization if the amount of the contribution is not more than 15% of the debtor’s Gross Annual Income (GAI). Section 548(a)(2)(B) prevents the trustee from avoiding a charitable contribution to a qualified organization that exceeds 15% of the debtor’s GAI, if the contribution is “consistent” with the Debtor’s practices of making charitable contributions.

The court’s first task was to determine whether the Transfers exceeded Debtors’ gross annual income (GAI). The Bankruptcy Code did not define the term “gross annual income,” and there were no reported case defining “gross annual income” within the meaning of 11 U.S.C. § 548(a)(2). After a lengthy analysis, the court concluded that where a debtor has a sole proprietorship business (in this case a medical practice), the “gross annual income” of the debtor, as said term is used in § 548(a)(2) is the business’ gross receipts, without subtracting the cost of goods or operating expenses. The Debtors’ GAI for 2005 was $ 325,920. The total amount of charitable contributions made by Debtors to Defendant in 2005 was $ 18,380, which was 6% of $ 325,920. As a result, the contributions made in 2005 did not exceed 15% of the Debtors’ GAI for the year in which the transfer of the contribution was made. Thus, the 2005 Transfers were not avoidable under § 548(a)(2)(A).

But even assuming that the $ 18,380 donated to the church in 2005 was 19% of the Debtors’ GAI, the transfers to the church in excess of 15% of GAI were still not recoverable by the Trustee because the Transfers were “consistent” with Debtors’ practice of giving charitable contributions. See § 548(a)(2)(B). The Trustee argued that since Debtors’ donations for 2004 and 2006 totaled 12% and 13% of Debtors’ GAI for each year and Debtors’ donations for 2005 totaled 19% of GAI, the donations in 2005 were not consistent with Debtors’ practice of contributing 12% or 13%, so that any 2005 Transfers in excess of 15% of GAI should be avoided. (In 2004 Debtors reported $ 17,648 in gifts to charity on their 2004 tax return and in 2005 they reported $ 17,950 in gifts to charity on their tax return.) Rejecting this argument, the court observed that the word “consistent” is a fluid term and is not rigid. Section 548(a)(2) could have used the term “conforming or “identical” or “same,” but it used the word “consistent.” The Debtor consistently had the practice of giving charitable donations. Looking at the actual amounts, they did not differ greatly from year to year. The total amount of contributions in 2005 was $ 18,380, whereas the total amount of contributions in 2006 was $ 18,790, a difference of only $ 410. In addition, 12% and 13% are not inexorably inconsistent with 19%. Therefore, the 2005 Transfers were consistent with Debtors’ practice in making charitable contributions and the 2005 Transfers to the defendant church in excess of the Debtors GAI could not be avoided pursuant to § 548(a)(2)(B).— In re Lewis (Wolkowitz v. Breath of Life Seventh Day Adventist Church), ___ B.R. ___, 2009 Bankr. LEXIS 306 (Bankr. W.D. Cal. 2009), No. 06-15173. Dated February 17, 2009. Opinion by U.S. Bankruptcy Judge Alan M. Ahart.    Case # 3456

 

Plaintiff filed a complaint asking, inter alia, exemption and removal of marijuana from the federal Controlled Substances Act (CSA). Plaintiff had not been arrested at home for anything spoken of in the complaint, but felt that he had been denied rights, as guaranteed in the Constitution. The district court held, inter alia, that (1) plaintiff lacked standing to assert most of his claims; (2) and as to his claim that the CSA interfered with his free exercise of religion, plaintiff failed to allege a substantial burden on his religious exercise, but simply asserted merely that he was prevented from experiencing the “inadvertent” spiritual side effects of the medicinal use of marijuana.

See Gover v. United States of America, 2009 U.S. Dist. LEXIS 22331 (W.D. Kan. 2009), No. 08-5207. Dated March 19, 2009. Opinion by J. Jimm Larry Hendren.    Case # 3455

 

District court grants plaintiff parent a preliminary injunction enjoining defendant school district from allowing any time release program for religious instruction to take place on school property during school instructional time. Here, the religious programming was held in a trailer brought onto school property (the school’s parking lot).

As allowed by Indiana state law, defendant county school district operated a religious “time release” program, enabling children to leave their normal classroom routines and receive religious instruction during the school day. Logistically, the organization that conducted the religious programming – the Associated Churches of Huntington County (ACHC) – consisted of bringing a trailer to various elementary schools, where ACHC employees escorted students from the school doors to the trailer, delivered a 30 minute religious-themed lesson, and returned the students to the doors of the school. The trailer was parked on the school grounds, in the front parking lot, roughly 50 feet from the school’s front entrance, sitting within plain sight of one of the school’s playgrounds. The trailers displayed no religious iconography or markings. Defendant school district did not set any education guidelines for the program, did not exercise any control over the content of ACHC’s program. ACHC hired and employed its own teachers, and paid its own utility bills. The constitutionality of the time release program was not in issue. However, after rejecting the argument that plaintiff parent did not have standing to challenge the practice of bringing the trailer onto the grounds of her child’s school during school hours, the district court granted plaintiff parent a preliminary injunction enjoining defendant school district from allowing any time release program to take place on school property during school instructional time.

Contra the U.S. Magistrate Judge, who had issued a report and recommendation in this case, the district court believed that defendant’s alleged secular concern for student safety in allowing the trailers onto the school grounds was not “a sham,” or at the very least that there was some question whether or not its decision to allow ACHC’s trailer to sit in the school’s parking lot was “motivated wholly by religious considerations.” Nevertheless, the practice violated the establishment clause because a reasonable observer would perceive that religion, and specifically the variety of Christianity practiced by ACHC, was “favored or preferred” by defendant school in allowing ACHC to conduct religious instruction on school property during school hours.— H.S. v. Huntington County Community School Corp., 2009 U.S. Dist. LEXIS 22488 (N.D. Ind. 2009), No. 1:08 CV 271. Dated March 19, 2009. Opinion by J. James T. Moody.    Case # 3454

 

Followers of the Brazilian Santo Daime religion were entitled to an exemption from the Controlled Substances Act. Guided by the U.S. Supreme Court decision in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, Case # 2193, the district court conclude that the Religious Freedom Restoration Act (RFRA) required that plaintiffs be allowed to import and drink Daime tea for their religious ceremonies, subject to reasonable restrictions, even though it contained the hallucinogen DMT, a Schedule I controlled substance.

The government failed to show that it had a compelling interest in prohibiting the Daime tea so as to protect the health of plaintiffs and others who drink Daime tea and in preventing Daime tea from being diverted to recreational users. See court’s opinion for details.— See Church of the Holy Light of the Queen v. Mukasey, ___ F. Supp. 2d ___ (D. Ore. 2009), No. CV 08-3095-PA. Dated March 18, 2009. Opinion by J. Owen M. Panner.    Case # 3453

 

In August 2007, plaintiff handed out free gospel tracts near the entrance to the Mount Rushmore National Memorial without incident. When, however, he returned the next day he was told by a park ranger that he could not distribute printed material without a permit. Plaintiff returned home without distributing any more leaflets or requesting a permit. Soon thereafter he contacted the Mount Rushmore ranger’s office to ask for a permit in anticipation of a return trip to the park in 2008, but his requests for a permit application went unanswered. Plaintiff asserted as-applied and facial challenges to the applicable regulations governing the issuance of permits. Part of one of the regulations was held facially unconstitutional. The remaining challenges to the regulations were dismissed including plaintiff’s claim under the Religious Freedom Restoration Act (RFRA).

The regulations authorized superintendents of national parks to designate the locations within each park that were available for “[p]ublic assemblies, meetings, gatherings, demonstrations, parades and other public expressions of views[]” (36 C.F.R. § 2.51(a)) and for “[t]he sale or distribution of printed matter” (36 C.F.R. § 2.52(a)). To get a permit for these activities, one had to fill out an application that included one’s name, the date, time, duration, nature, and location of the planned activity, and an estimate of the number of participants. See id. §§ 2.51(b) and 2.52(b). The park superintendent had to issue the applicant a permit “without unreasonable delay” unless a prior application for a permit for the same time and location had been made; it reasonably appeared that the activity would present a clear and present danger to public health or safety; or the number of persons engaged in the activity, or the length of the activity, could not reasonably be accommodated.

The court held that the phrase “public expressions of views” in 36 C.F.R. § 2.51(a) violated the First and Fifth Amendments and it severed said language from the section. The court found that the phrase restricted far more expression than necessary to achieve the government’s aim of preserving the scenic beauty and historical value of the national parks, maintaining the cleanliness and tranquility of the park grounds, and ensuring the safety and security of park visitors. The breadth of the phrase “public expressions of views” also invited park officials to exercise nearly unfettered discretion. The National Park Service’s attempt to clarify the scope of section 2.51(a) after this suit was filed was found to create its own problems. See court’s opinion for details.

Plaintiff’s other facial challenges to the regulations were found wanting. The court rejected plaintiff’s claim that the regulations gave officials unbridled discretion because they permitted the denial of a permit application if “[i]t reasonably appears that the event will present a clear and present danger to the public health or safety”; that the regulations were invalid because they required park superintendents to respond to permit applications “without unreasonable delay,” rather than within some limited, specified time period; that the regulations were not narrowly tailored because they applied to individuals and small groups; and that the regulations were not narrowly tailored because they foreclosed spontaneous expression (owing to the fact that a visitor had to wait to receive a permit) and anonymous expression (because a visitor had to include her name on a permit application). See the court’s opinion for its discussion on all these issues.

The court also dismissed plaintiff’s as applied challenges to the regulations. First, plaintiff’s complaint did not allege sufficient facts to sustain his claim that he was asked, while distributing his literature, to get a permit because of the religious content of his leaflets. Second, the failure of park officials to respond promptly to plaintiff’s subsequent permit requests was moot because, after plaintiff filed suit, he received his requested permit months in advance of his scheduled 2008 trip to Mount Rushmore. And in the summer of 2008, plaintiff handed out printed material, held religious signs, and conducted open air religious preaching at Mount Rushmore without hindrance.

Finally, plaintiff’s allegation that the challenged regulations, as applied to him, violated the Religious Freedom Restoration Act (RFRA) failed. Under RFRA the government may not “substantially burden a person’s exercise of religion” unless it demonstrates that the application of the burden is in furtherance of a compelling government interest and is the least restrictive means of furthering that compelling government interest. The RFRA claim failed because plaintiff did not allege that his religion required that he “must distribute his gospel tracts at the United States national parks.” Because the challenged regulations were at most, a restriction on one of a multitude of means plaintiff could use to spread the Gospel, they did not substantially burden his exercise of religion.— Boardley v. U.S. Department of the Interior, ___ F. Supp. 2d ___ (D. D.C. 2009), No. 07-1986 (JR). Filed March 17, 2009. Opinion by J. James Robertson.    Case # 3452

 

Alcoholics Anonymous (AA) meetings conducted in commercial zone reserved for office use did not constitute a form of “religious exercise” protected by the Religious Land Use and Institutionalized Persons Act (RLUIPA), even though the 12-step program that the AA meetings followed was based upon a belief in a higher power and various AA members testified that they found a connection with God by attending the meetings.

In order to conduct “group meetings” for members of Alcoholics Anonymous (AA), Narcotics Anonymous (NA) and Debtors Anonymous (DA), Glenside Center, Inc. rented office space in a commercial district, in which property had to be use primarily for office use. The use of the property for such purposes was not permitted in the zone and the Center was not entitled to a variance. See court’s opinion for details. In addition, the Center’s use of the property within the zone was not protected by the Religious Land Use and Institutionalized Persons Act (RLUIPA). Said Act applies to cases where the government imposes or implements a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution. However, the court held that the AA meetings under consideration did not constitute a form of “religious exercise” even though the 12-step program that the AA meetings followed was based upon a belief in a higher power and various AA members testified that they found a connection with God by attending the meetings. None of the meetings were administered by a religious leader; the Center did not hold any religious services or have any religious affiliations; its Articles of Incorporation stated nothing about being incorporated for a religious purpose, but only to assist people in recovering from addiction; the Center’s printed materials stated that it was not a religious organization and the Center did not require that members possess any religious belief to participate and members came from all religious walks of life, including non-believers in a higher power.— Glenside Center, Inc. v. Abington Township Zoning Hearing Board, 2009 Pa. Commw. LEXIS 104 (Pa. Commw. Ct. 2009), No. 886 C.D. 2008. Dated March 17, 2009. Opinion by J. Dan Pellegrini.    Case # 3451

 

Trial court did not err in granting summary judgment for the defendants, the Episcopal Diocese of Massachusetts and three of its bishops, where the plaintiff, filed an action making various claims against them in connection with her consensual involvement in a sexual relationship with the rector of her parish.

Plaintiff had asserted claims for, inter alia, negligent hiring, supervision, and retention, breach of fiduciary duty, vicarious liability, and a claim alleging that she had been portrayed in a false light. The facts were insufficient to establish that the diocese and the bishops breached any legal duty they may have owed to the plaintiff. Any alleged relationship between the plaintiff and the diocese and its bishops was based on no more than their shared religious affiliation and plaintiff’s role as a parishioner in a parish within the diocese. There was no evidence that the diocese or any of the bishops assumed any counselling role with respect to, agreed to act on behalf of, or to give advice to the plaintiff. And there was no evidence to support any allegation that the parish rector was acting within the scope of his employment duties when he engaged in a sexual relationship with the plaintiff. Nor was there any indication that defendants ratified the rector’s conduct. Concerning hiring, it was the parish vestry, and not the diocese, that “called” the priest to become its rector, and entered into an employment contract with him. Even assuming that the diocese’s role in commissioning or conducting a background check on the rector was sufficient to show that the diocese “hired” him, no rational jury could conclude that the diocese and the bishops overlooked or ignored any evidence suggesting that the rector would engage in a sexual relationship with an adult parishioner. The background check, conducted as required by church policy, revealed no such facts. Also in accordance with church policy, the diocese confirmed that the priest had attended training designed to prevent sexual misconduct. And, under the facts, no rational jury could find that the diocese and bishops were negligent in supervising or retaining the priest, even though they had been in receipt of unverified reports that the priest was having an affair with an unnamed woman. See court’s opinion for details.— Petrell v. Shaw, 453 Mass. 377, ___ N.E.2d ___ (Mass. 2009), No. SJC-10210. Dated March 16, 2009. Opinion by J. Ireland.    Case # 3450

 

Court refuses to dismiss action against monastery and its leaders for, inter alia, fraud, negligent misrepresentation, unjust enrichment, violation of the federal RICO statute, deceptive trade practices, and false advertising. The case centered on whether defendants falsely represented themselves to plaintiff as being affiliated with the Roman Catholic Order of Saint Benedict. Defendants' affiliation with the recognized Order of St. Benedict was a neutral factual determination that did not require the interpretation of religious doctrine.

Plaintiff, seeking to become a Benedictine monk, turned over some $ 2 million dollars to the not-for-profit “Most Holy Family Monastery” (MHFM), in Fillmore, New York. On the MHFM, see http://www.mostholyfamilymonastery.com/ Plaintiff alleged that the defendants represented themselves as Benedictine monks and MHFM as a Benedictine monastery, but were in fact not members of the recognized Order of St. Benedict. Plaintiff sought a return of the monies he had turned over, alleging, inter alia, fraud, negligent misrepresentation, unjust enrichment, violation of the federal RICO statute, deceptive trade practices, and false advertising. Defendants unsuccessfully moved to dismiss for lack of jurisdiction contending that, in violation of the First Amendment, the court was being called upon to make findings of fact with regard to the Order of St. Benedict in general, the requirements and obligations that must be fulfilled in order for one to become a Benedictine monk and for a monastery to be established, and whether defendants were legitimate Benedictine monks and MHFM a legitimate Benedictine monastery. Contrary to defendants' assertions, defendants' affiliation with the recognized Order of St. Benedict was a neutral factual determination that did not require the interpretation of religious doctrine. Defendants framed the issue as a dispute between MHFM and the Order of St. Benedict, and whether the defendants could be "Benedictines" without being a associated with the recognized Order. However, the dispute was one between plaintiff and the defendants, and whether the defendants falsely represented themselves as being affiliated with the Roman Catholic Order of Saint Benedict.— Hoyle v. Dimond, 2009 U.S. Dist. LEXIS 20051 (W.D.N.Y. 2009), No. 08-CV-347C. Dated March 5, 2009. Opinion by J. John T. Curtin.    Case # 3449

 

The parents, who had shared parental responsibility, disagreed regarding the religious upbringing of the children. Florida law.

The father had primary residential responsibility for the children. The mother, who wished to raise the children in the Catholic faith, could expose the children to her religious faith, although such faith was inconsistent with the father’s beliefs, or lack thereof. Without a showing of harm to the children, a court should not infringe on either parent’s free exercise of his or her religious beliefs. and should not preclude either party from exposing the children to his or her religious practices absent a clear, affirmative showing that the religious activities are harmful to the children.— Gerencser v. Mills, 2009 Fla. App. LEXIS 2226 (Fla. Dist. Ct. App. 5th Dist. 2009), No. 5D07-3461. Filed January 30, 2009. Opinion by J. Orfinger.    Case # 3448

 

Divorced parents shared joint custody of their two children, with the mother being the domiciliary parent. Initially, the children had attended a Catholic school, but the mother sought to have the children switched to a Baptist School on the ground that said school afforded greater academic opportunities. The father obtained an order prohibiting the mother from enrolling the children in the Baptist School.

The court rejected the mother’s contention that, as the domiciliary parent, she had the right to choose where the children would attend school. In case of joint custody, all major decisions made by the domiciliary parent, including the choice of schools, are subject to judicial review upon motion by the non-domiciliary parent. In the judicial review, it is presumed that all major decisions made by the domiciliary parent are in the best interest of the child and the burden of proving they are in fact not in the best interest of the child is placed on the non-domiciliary parent who opposes the decision. Here, the father, the non-domiciliary parent, met his burden of showing that it would not be in the best interests of the children to switch schools. The religious orientation of the two schools was not a factor in this case. Louisiana law.— Bergeron v. Bergeron, ___ So.2d ___ (La. Ct. App. 2009), No. 44,210-CA. Dated March 18, 2009. Opinion by J. Gaskins. Concurring in part and dissenting in part, J. Caraway.    Case # 3447

 

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