In Re The Complex Litigation Div. Of Wa Ag

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Enforcement of the No. 87005-0-I

Investigative Subpoena of:

DIVISION ONE

THE COMPLEX LITIGATION

DIVISION OF THE WASHINGTON PUBLISHED OPINION

STATE OFFICE OF THE ATTORNEY

GENERAL.

STATE OF WASHINGTON,

Appellant,

v.

CORPORATION OF THE CATHOLIC

ARCHBISHOP OF SEATTLE,

Respondent.

BIRK, J. — We are asked whether the Washington Attorney General’s Office

(AGO) has statutory authority to subpoena records from a religious corporation

concerning sexual abuse. We hold that it does.

Washington’s charitable trust act (CTA), chapter 11.110 RCW, applies in

relevant part to “[a]ny person holding assets subject to limitations permitting their

use only for charitable, religious, eleemosynary, benevolent, educational, or similar

purposes.” RCW 11.110.020(2)(a)(iii). The CTA defines a person holding

charitable property as a “trustee” who is subject to certain regulatory provisions.

Id. One of the CTA’s provisions permits the AGO to “investigate transactions and

No. 87005-0-I/2

relationships of trustees and other persons” for the purpose of “determining

whether the trust or other relationship is administered according to law and the

terms and purposes of the trust, or to determine compliance with this chapter in

any other respect.” RCW 11.110.100. The CTA excludes from the definition of

“trustee” any “[r]eligious corporations duly organized and operated in good faith as

religious corporations, which have received a declaration of current tax exempt

status from the government of the United States,” as well as certain affiliated

organizations. RCW 11.110.020(2)(b)(ii).

The AGO relied on its investigative authority under RCW 11.110.100 to

subpoena the Corporation of the Catholic Archbishop of Seattle, the civilly

incorporated organization of the Archdiocese of the Roman Catholic Church in

Western Washington (Archdiocese). The AGO’s subpoena sought several

categories of documents, but in summary the requests centered on “records

regarding . . . clerics . . . who have been accused or suspected of sexual abuse or

sexual misconduct occurring on or after January 1, 1940.” The Archdiocese

successfully quashed the subpoena in superior court, arguing that it is exempted

from the definition of “trustee” under RCW 11.110.020(2)(b)(ii) and is therefore not

subject to the AGO’s investigative authority under RCW 11.110.100.

We hold that under the Washington constitution’s article I, section 12

privileges and immunities clause, the exemption for religious corporations may be

applied here only more narrowly to exempt religious corporations to the extent

required to protect their rights under the federal and state constitutional religion

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clauses. This means the AGO’s subpoena is supported by statutory authorization,

and we therefore reverse and remand for further proceedings.

I

The Archdiocese is civilly incorporated as a corporation sole under

Washington’s corporations sole act, chapter 24.12 RCW.1 Under RCW 24.12.030,

property held in the official capacity of the bishop or other person presiding over a

corporation sole “shall be held in trust for the use, purpose, benefit, and behoof of

his or her religious denomination, society or church.” Since its first recognition by

the Washington Territorial Legislature in 1861, today’s Archdiocese has gone

through a series of amendments to its articles of incorporation. LAWS OF 1860, at

129. Article VI of the Archdiocese’s 1951 amended articles of incorporation states

it is “not organized for profit or gain, . . . all property held by it being in trust for the

use, purpose, benefit and behoof of the Roman Catholic Church of the

Archdiocese of Seattle . . . in the State of Washington.”

The AGO served its subpoena on the Archdiocese in July 2023. According

to the AGO’s letter accompanying its subpoena, it invoked RCW 11.110.100 to

“determine ‘whether the trust or other relationship is administered according to law

and the terms and purposes of the trust.’ ” The AGO said it “initiat[ed] this

investigation to determine how the Catholic Church in Washington has handled

1 See RCW 24.12.010 (“Any person, being the bishop . . . of any church or

religious denomination in this state, may . . . become a corporation sole . . . and,

thereupon, said bishop . . . shall be held and deemed to be a body corporate, with

all the rights and powers prescribed in the case of corporations aggregate”); see

also BLACK’S LAW DICTIONARY 433 (12th ed. 2024) (defining “corporation sole” as

“a corporation having or acting through only a single member”).

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allegations of child sexual abuse, and whether recent reforms publicized by the

Church are being implemented and whether they are effective.” The AGO said

that “similar investigations around the country have revealed that the Church has

repeatedly failed to protect children and has misled the public by hiding the truth

about the extent of sexual abuse within its ranks.”2 The AGO said its “aim in this

investigation is to share a full accounting of sexual abuse committed by Catholic

clergy and other agents; ensure that appropriate reforms have been made and are

effective in preventing abuse; and honor survivors by giving voice to their

experiences and dignifying their journey towards recovery.”

The AGO’s initial July 2023 subpoena made 23 document requests.

Besides the request noted above for records regarding clerics accused or

suspected of abuse, the subpoena sought, for instance, documents provided to

certain third parties, such as treatment providers, “law enforcement on or after

January 1, 1940,” or documents “reflecting communications with the public about

allegations of sexual abuse.” It sought “[a]ll documents relating to the restriction

of duties, reassignment, removal from the ministry,” and other “discipline” of

individuals accused of sexual misconduct. It sought “[a]ll documents and policies

relating to compensation to, or monetary or non-monetary, formal or informal

settlements with private individuals arising from allegations of sexual abuse or

2 In this court and in the trial court, both parties have relied on sources

attributed to websites reportedly documenting, on the one hand, abuse by Catholic

clerics together with state investigations of the same, and, on the other hand, the

Catholic Church’s responses to such abuse. We accept the parties’ respective

representations of these sources, from each side without objection by the other,

but we have not independently examined the unauthenticated websites never

made part of the superior court record.

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sexual misconduct by clergy members.” The AGO supplemented its subpoena in

April 2024. The supplemental subpoena added five new requests seeking

“governing documents,” “[a]ll documents . . . pertaining to any trust,” and financial

records “describing liabilities,” “describing disbursements,” or any other

“accounting records.”

The Archdiocese produced some documents but otherwise objected to the

subpoena, and the AGO petitioned to enforce the subpoena in superior court. The

AGO’s petition described its investigation as addressing “allegations that the

Catholic Church has facilitated and attempted to cover up decades of pervasive

sexual abuse of children by Church leaders in Washington State” by “misus[ing]

its religious and charitable trust funds.” The petition emphasized the example of a

priest who joined the church in 1958 and perpetrated decades of abuse. According

to the AGO’s petition, the Archdiocese knew of this priest’s abuse but “repeatedly

transferr[ed] him to new parishes,” allowed him to “remain[] an incardinated priest,”

and provided him a “monthly stipend.” The Archdiocese responded that the

priest’s “reprehensible crimes against children, and any neglect on the part of the

Archdiocese, his former employer, has received a full airing without the AGO’s

involvement and with the standard use of civil process.”

The court ruled the CTA’s exemption of religious corporations from the

definition of trustee was enforceable as a categorical exemption and denied

enforcement of the subpoena. The AGO appeals.3

3 This court received amicus curiae briefs from three parties: Heal Our

Church, Suzanne Healy, and six First Amendment scholars from various law

schools. To the extent amici present new arguments not presented by the parties,

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II

The interpretation of a statute is a question of law that we review de novo.

Dep’t of Lab. & Indus. v. Cannabis Green, LLC, 4 Wn.3d 829, 840, 569 P.3d 303

(2025). Our goal is to determine the legislature’s intent. Id. We determine

legislative intent from the “plain language enacted by the legislature, considering

the text of the provision in question, the context of the statute in which the provision

is found, related provisions, amendments to the provision, and the statutory

scheme as a whole.” Ass’n of Wash. Spirits & Wine Distribs. v. Liquor Control Bd.,

182 Wn.2d 342, 350, 340 P.3d 849 (2015) (citing Dep’t of Ecology v. Campbell &

Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002)). Likewise, we review the

constitutionality of a statute de novo. Vet Voice Found. v. Hobbs, 4 Wn.3d 383,

398, 564 P.3d 978 (2025). Statutes are presumed constitutional, and in most

cases the challenger bears the burden of establishing otherwise. Id.

A

The AGO first argues that the religious corporations exemption by its terms

does not bar its investigation into sexual abuse. The exemption covers “[r]eligious

corporations duly organized and operated in good faith as religious organizations.”

RCW 11.110.020(2)(b)(ii). The AGO reasons that because the exemption requires

the religious corporations be “operated in good faith,” id., a religious corporation

cannot come within the exemption to the extent it is involved “in secular, bad-faith

misconduct like sexual abuse.” From this, the AGO concludes “the use of

we exercise our discretion to decline to consider them. See Keodalah v. Allstate

Ins. Co., 194 Wn.2d 339, 346 n.4, 449 P.3d 1040 (2019).

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No. 87005-0-I/7

charitable trust funds to conceal and facilitate sexual abuse” is “bad-faith

misconduct” outside the exemption.

However, the text of RCW 11.110.020(2)(b)(ii) defeats an activity-by-activity

analysis of the exemption. The whole phrase ends in language focusing the

analysis on the organization as a whole—covering “[r]eligious corporations duly

organized and operated in good faith as religious organizations.” RCW

11.110.020(2)(b)(ii) (emphasis added). To ask whether a corporation is operated

in good faith “as” a particular kind of organization focuses the inquiry on whether

the organization is truly of that kind, here a religious one, rather than on whether

individual acts, through individual agents, are individually done in good faith.4

Other aspects of the CTA besides the AGO’s investigative authority suggest

the desirability of an organizational-level determination of the exemption,

specifically the requirement that certain trustees register with the secretary of

state.5 RCW 11.110.051. The AGO convincingly argues that acts of involvement

in sexual abuse can never be done in good faith. But in asking whether a religious

corporation is “operated in good faith as [a] religious organization[],” the statute

4 Since the phrase “operated in good faith” is immediately followed by “as

religious organizations,” it is clear that these two phrases at minimum go together.

RCW 11.110.020(2)(b)(ii). It is likely that the earlier phrase, “duly organized” also

refers to “duly organized . . . as religious organizations,” though with the “duly

organized” prong not challenged, we need not address it. Id.

5 The CTA’s religious corporations exemption also requires that the religious

corporation “have received a declaration of current tax exempt status from the

government of the United States.” RCW 11.110.020(2)(b)(ii). The Archdiocese

provided a letter from the Internal Revenue Service confirming it is “exempt from

federal income tax under section [26 U.S.C. §] 501(c)(3) of the Internal Revenue

Code.” The AGO has not challenged the Archdiocese’s assertion that it meets this

element of the exemption.

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asks about good faith in the corporation’s being a religious one, a different

question. RCW 11.110.020(2)(b)(ii). When this question is asked of the

Archdiocese, the longstanding establishment in Western Washington of one of the

world’s most ancient and most cultivated religions, it clearly qualifies.

B

The AGO argues that the applicability of the exemption is nevertheless

limited by the privileges and immunities clause of article I, section 12 of the

Washington constitution. The AGO argues that under article I, section 12, the

CTA’s statutory carveout for religious organizations grants a privilege, in this case

implicating a fundamental right, that is not justified by reasonable grounds. The

AGO argues, “[T]here are no reasonable grounds to distinguish between religious

and secular institutions for purposes of authorizing an investigation into using

charitable funds to facilitate sexual abuse.” To the extent of our discussion below,

we agree with the AGO.

1

Washington’s privileges and immunities clause states, “No law shall be

passed granting to any citizen, class of citizens, or corporation other than

municipal, privileges or immunities which upon the same terms shall not equally

belong to all citizens, or corporations.” CONST. art. I, § 12. Although article I,

section 12 operates similarly to the federal equal protection clause, U.S. CONST.

amend. XIV, § 1, in Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 145

Wn.2d 702, 726, 42 P.3d 394 (2002) (Grant County I), vacated in part on reh’g,

150 Wn.2d 791, 83 P.3d 419 (2004) (Grant County II), the court explained it serves

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a further purpose: “whereas the federal constitution is concerned with majoritarian

threats of invidious discrimination, the state constitution protects against laws

serving private interests to the detriment of the majority.”6 Thus, independent state

constitutional analysis is appropriate in cases involving favoritism. Grant County

II, 150 Wn.2d at 808-09 & n.12. This state constitutional principle protects against

laws serving the interest of special classes of citizens to the detriment of the

interests of all citizens. Madison v. State, 161 Wn.2d 85, 97, 163 P.3d 757 (2007).

Article I, section 12 was intended to prevent favoritism and special treatment for a

few to the disadvantage of others. Martinez-Cuevas v. DeRuyter Bros. Dairy, Inc.,

196 Wn.2d 506, 518, 475 P.3d 164 (2020).

Antifavoritism analysis under article I, section 12 subjects legislation to a

two-part test. Schroeder v. Weighall, 179 Wn.2d 566, 572-73, 316 P.3d 482

(2014). First, the court asks whether a challenged law grants a “privilege” or

“immunity” for purposes of our state constitution. Id. at 573. If the answer is yes,

6 Among the Washington Supreme Court’s first applications of article I,

section 12, the court said, “The object of the constitution was to prohibit special

legislation, and substitute in its place a general law, which bore on all alike.” City

of Tacoma v. Krech, 15 Wash. 296, 297, 46 P. 255 (1896), overruled by State v.

Nichols, 28 Wash. 628, 69 P. 372 (1902). Krech’s focus on “special legislation”

anticipated the Supreme Court’s jurisprudence on article I, section 12 today. In

the same era, the court also applied the provision to legislative classifications,

analogously to the equal protection clause of the Fourteenth Amendment. E.g.

McDaniels v. J.J. Connelly Shoe Co., 30 Wash. 549, 555, 71 P. 37 (1902). During

the twentieth century, challenges to legislative classification became the mainstay

of article I, section 12 litigation. As early as 1941, the court said that analysis under

article I, section 12 is “substantially identical” to that under the federal Equal

Protection Clause. Texas Co. v. Cohn, 8 Wn.2d 360, 374, 112 P.2d 522 (1941).

By the end of the century, the near equivalence of the two provisions had been

stated many times. Seeley v. State, 132 Wn.2d 776, 788, 940 P.2d 604 (1997).

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then the court asks whether there is a “reasonable ground” for granting that

privilege or immunity. Id.

a

Under the first step, article I, section 12 antifavoritism analysis is triggered

only by statutory benefits implicating fundamental rights of state citizenship. Id.

(quoting State v. Vance, 29 Wash. 435, 458, 70 P. 34 (1902)). Citing a treatise,

Vance said that the terms privileges and immunities,

as they are used in the constitution of the United States, secure in

each state to the citizens of all states the right to remove to and carry

on business therein; the right, by usual modes, to acquire and hold

property, and to protect and defendant the same in the law; the rights

to the usual remedies to collect debts, and to enforce other personal

right[s]; and the right to be exempt, in property or persons, from taxes

or burdens which the property or persons of citizens of some other

state are exempt from.

29 Wash. at 458 (citing THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL

LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE

AMERICAN UNION 597 & n.3 (Alexis Angell ed., 6th ed. 1890)).

The treatise that Vance cited relied on Corfield v. Coryell, which said that

the privileges and immunities intended to be guaranteed under article IV, section

2 of the federal constitution may

be all comprehended under the following general heads: Protection

by the government; the enjoyment of life and liberty, with the right to

acquire and possess property of every kind, and to pursue and obtain

happiness and safety; subject nevertheless to such restraints as the

government may justly prescribe for the general good of the whole.

The right of a citizen of one state to pass through, or to reside in any

other state, for purposes of trade, agriculture, professional pursuits,

or otherwise; to claim the benefit of the writ of habeas corpus; to

institute and maintain actions of any kind in the courts of the state; to

take, hold and dispose of property, either real or personal; and an

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exemption from higher taxes or impositions than are paid by the other

citizens of the state; may be mentioned as some of the particular

privileges and immunities of citizens, which are clearly embraced by

the general description of privileges deemed to be fundamental: to

which may be added, the elective franchise, as regulated and

established by the laws or constitution of the state in which it is to be

exercised.

6 F. Cas. 546, 551-52 (C.C.E.D. Pa. 1823).7 The Washington Supreme Court has

cited Vance and Corfield in defining fundamental rights. Martinez-Cuevas, 196

Wn.2d at 521-22. The court has declined to adopt an exclusive enumeration of

fundamental rights. Id. at 522. In contrast, however, generally rights left to the

discretion of the legislature have not been considered fundamental. Id. at 519.

b

Under the second step of article I, section 12 antifavoritism analysis, the

reasonable ground test is more exacting than rational basis review. Schroeder,

179 Wn.2d at 574. Under the reasonable ground test, a court will not hypothesize

facts to justify a legislative distinction. Id. Rather, the court will scrutinize the

legislative distinction to determine whether it in fact serves the legislature’s stated

goal. Id. Article I, section 12’s analysis does not allow speculation. Martinez-

Cuevas, 196 Wn.2d at 523. Under article I, section 12, a provision must be justified

7 Corfield was written by United States Supreme Court Justice Bushrod

Washington, nephew of President George Washington, while riding circuit. ERIC

FONER, THE SECOND FOUNDING, HOW THE CIVIL WAR AND RECONSTRUCTION REMADE

THE CONSTITUTION 73-74 (2019). This was the “prewar effort” to interpret the

original Constitution’s mention of privileges and immunities that was “most widely

cited during Reconstruction”—the time when it became important to understand

the privileges and immunities clause of the Fourteenth Amendment. Id. at 73.

Corfield thus gained currency during the era leading up to the time when the

Washington constitution was formed. Martinez-Cuevas describes the widely-

criticized subsequent interpretation of the privileges and immunities clause of the

Fourteenth Amendment by the United States Supreme Court. Martinez-Cuevas,

196 Wn.2d at 515-19.

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in fact and theory. Id. In assessing the existence of reasonable grounds, courts

may rely on statutory language to ascertain legislative goals when construing

statutory and constitutional provisions. Woods v. Seattle’s Union Gospel Mission,

197 Wn.2d 231, 244, 481 P.3d 1060 (2021) (citing Dep’t of Ecology, 146 Wn.2d at

11). Meaning is discerned from the language itself, the context and related

provisions in relation to the subject of the legislation, the nature of the act, the

general object to be accomplished, and the consequences that would result from

construing a statute in a particular way. Id. at 244-45 (citing Burns v. City of

Seattle, 161 Wn.2d 129, 146, 164 P.3d 475 (2007)).

2

The AGO argues that this case is controlled by the analysis in Woods. In

Woods, the court examined an as applied challenge under article I, section 12 to

another statutory exemption for religious organizations, and relied on the First

Amendment to set “the appropriate parameters of the provision’s application.” Id.

at 241, 246. Woods brought an employment discrimination action against Seattle’s

Union Gospel Mission. Id. at 236. The Mission was “a nonprofit, evangelical

Christian organization providing services to Seattle’s unsheltered homeless

population.” Id. at 237. The Mission declined to hire Woods because he was in a

same-sex relationship. Id. The Washington Law Against Discrimination (WLAD),

chapter 49.60 RCW, guarantees “[t]he right to be free from discrimination because

of . . . sexual orientation,” which includes “[t]he right to obtain and hold employment

without discrimination.” RCW 49.60.030(1)(a). In Woods, the Mission argued that

it was exempt from the WLAD because, in defining “employer,” the WLAD exempts

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“any religious or sectarian organization not organized for private profit.” 197 Wn.2d

at 236-37; RCW 49.60.040(11). Woods argued that as applied specifically to his

case, the WLAD’s granting an exemption to religious employers violated article I,

section 12. Id. at 241.

As applied to Woods, the religious employer exemption from the WLAD

burdened two fundamental rights—the right to an individual’s sexual orientation

and the right to marry. Id. at 242 (citing Lawrence v. Texas, 539 U.S. 558, 577-

78, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003); Obergefell v. Hodges, 576 U.S.

644, 663-65, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015)). But, turning to reasonable

grounds, the court held that reasonable grounds existed to distinguish religious

and secular nonprofits to secure the “avoidance of state interference with religion.”

Id. at 246 (citing Ockletree v. Franciscan Health Sys., 179 Wn.2d 769, 806, 317

P.3d 1009 (2014) (Wiggins, J., concurring in part in dissent) (“[I]t was reasonable

for the legislature to exempt religious nonprofit organizations from the definition of

‘employer’ in order to promote two goals: avoiding excessive entanglement with

religious doctrines and practices and facilitating the free exercise of religion

guaranteed by our Washington Constitution.”)). However, while this conclusion

preserved the WLAD religious employer exemption against a facial challenge, the

court next turned to the possibility that the exemption “may still be unconstitutional

as-applied to Woods.” Id.

Having concluded that reasonable grounds existed justifying the legislature

in treating religious organizations differently “in order to avoid state interference

with religious freedoms,” id. at 245-46 (citing Ockletree, 179 Wn.2d at 784 (plurality

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opinion)), the court turned to the First Amendment to set “the appropriate

parameters of the provision’s application.” Id. at 246. Woods concluded that

article I, section 12 “is not offended” if the WLAD exemption for religious

organizations is applied concerning claims subject to the First Amendment

“ministerial exception.”8 197 Wn.2d at 250.

Woods held that that the ministerial exception provided “a fair and useful

approach for determining whether application of RCW 49.60.040(11)

unconstitutionally infringes on Woods’ fundamental right to his sexual orientation

and right to marry.” 197 Wn.2d at 251. With Woods’s fundamental rights burdened

by the religious employer exemption, the Supreme Court allowed the exemption to

apply coextensively with the reasonable grounds the court identified, avoiding state

interference with religious freedoms. This meant in turn that the exemption applied

coextensively with, and its availability would be determined by, the scope of the

Mission’s implicated religious freedoms, in that case the ministerial exception.

8 Under the ministerial exception, “to preserve a church’s independent

authority” on matters of faith and doctrine, courts must abstain from adjudicating

“employment disputes involving those holding certain important positions with

churches and other religious institutions.” Our Lady of Guadalupe Sch. v.

Morrissey-Berru, 591 U.S. 732, 746-47, 140 S. Ct. 2049, 207 L. Ed. 2d 870 (2020);

see also Hosanna-Tabor Evangelical Lutheran Church & Sch. v. Equal Emp’t

Opportunity Comm’n, 565 U.S. 171, 188, 132 S. Ct. 694, 181 L. Ed. 2d 650 (2012)

(“Requiring a church to accept or retain an unwanted minister, or punishing a

church for failing to do so, intrudes upon more than a mere employment decision.

Such action interferes with the internal governance of the church, depriving the

church of control over the selection of those who will personify its beliefs.”).

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3

a

Applying the above principles to the present case, the parties dispute

whether the CTA’s religious corporations exemption implicates a fundamental right

under article I, section 12. We hold that there is, as a fundamental right of

Washington state citizenship, a right to be free from unwanted interference with

one’s own body, which includes the right to be free from sexual abuse.

Cited with approval by the Washington Supreme Court, Corfield lists the

following among fundamental rights: protection by the government and the

enjoyment of life and liberty, and the right to pursue and obtain happiness and

safety. 6 F. Cas. at 551-52. Legal protection against assault is one of the oldest,

and one of the most basic, continually recognized aims of the law, with the common

law recognizing the right to be free from bodily invasion and from nonconsensual

invasions of one’s bodily integrity. In re Welfare of Colyer, 99 Wn.2d 114, 121-22,

660 P.2d 738 (1983). A fundamental interest in autonomous decision-making is

recognized involving “issues related to marriage, procreation, family relationships,

child rearing and education.” O’Hartigan v. Dep’t of Pers., 118 Wn.2d 111, 117,

821 P.2d 44 (1991). Washington courts recognize “a child’s fundamental right to

health and safety” in the context of parental termination proceedings.9 In re

9 Other principles of Washington law reinforce a fundamental right to be free

from unwanted interference with one’s person. Article I, section 7 of Washington’s

constitution states that “[n]o person shall be disturbed in his private affairs, or his

home invaded, without authority of law.” The “primary purpose” of article I, section

7 “is to protect the individual right to privacy.” State v. Mayfield, 192 Wn.2d 871,

882, 434 P.3d 58 (2019). Article 1, section 7 guarantees, for instance, a right to

refuse medical treatment. Colyer, 99 Wn.2d at 120. In furtherance of the

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Dependency of M.H.P., 184 Wn.2d 741, 758 n.7, 364 P.3d 94 (2015). Washington

law uniformly supports a right to be free from unwanted interference with one’s

own body, including the right to be free from sexual abuse, as a fundamental right

of state citizenship. This right is among the rights protected as privileges and

immunities under article I, section 12.

The Archdiocese does not directly dispute that a right to be free from sexual

abuse exists, but argues that exempting it from the AGO’s subpoena power under

the CTA does not burden the identified right in the same way that challenged

exemptions did in other cases. In Woods, exempting the Mission from the WLAD

would have permitted it to discriminate against Woods, undermining his

fundamental rights to his sexual orientation and to marry. In Martinez-Ceuvas, the

Washington Minimum Wage Act, ch. 49.46 RCW, was a statutory implementation

of the fundamental right of Washington workers to health and safety in the

workplace. 196 Wn.2d at 520-21. Although the Minimum Wage Act protected

farmworkers to an extent, id. at 521, the exemption for agricultural workers from

overtime pay requirements directly deprived them of guaranteed health and safety.

Id. at 520 (“Overtime work is particularly injurious, resulting in increased injuries,

illness, and mortality.”). And in Schroeder, the elimination of tolling for minors’

constitutional guarantee of privacy, the legislature and the Supreme Court have

recognized a fundamental right of privacy with respect to personal reproductive

decisions. RCW 9.02.100; Pacheco v. United States, 200 Wn.2d 171, 180, 515

P.3d 510 (2022). Under the state constitution’s due process clause, article I,

section 3, this court has recognized a protected person’s rights as including a

“liberty interest in their personal security and bodily integrity.” Wash. Fed’n of State

Emps., Council, 28 v. State, 22 Wn. App. 2d 392, 405, 511 P.3d 119 (2022), aff’d

in part, rev’d in part, 2 Wn.3d 1, 534 P.3d 320 (2023).

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claims for medical negligence directly impaired the minor’s fundamental right to

pursue common law causes of action in court. 179 Wn.2d at 573-74. The

Archdiocese says this case does not involve a similar direct impact on the

fundamental right to be free from unwanted bodily interference, because

exempting it from the AGO’s statutory subpoena power does not directly condone

the invasion of any person’s bodily autonomy.

If we were faced with a facial challenge to the religious corporations

exemption, we would likely agree with the Archdiocese. But the Supreme Court

expressly allows as applied challenges under article I, section 12. Woods, 197

Wn.2d at 246; Grant County II, 150 Wn.2d at 812 (“For a violation of article I,

section 12 to occur, the law, or its application, must confer a privilege to a class of

citizens.”). The AGO makes an as applied challenge to the operation of the

exemption, and expressly does not make a facial challenge. Although the scope

of the AGO’s subpoena is broad—and we address its scope below—its focus is on

sexual abuse that burdened survivors’ fundamental right to be free from unwanted

interference with their bodies. As the Archdiocese recognizes, one purpose of the

CTA was to facilitate enforcement of the purposes of charitable trusts because,

before such laws, trustees had no duty to furnish trust information to the AGO.

William H. Wicker, Charitable Trusts, 11 Gonz. L. Rev. 1, 12 (1975). In this as

applied challenge, we focus on the particular facts involving a long history, publicly

acknowledged, of abuse that was criminal, tortious, or both, together with a

statutory provision exempting religious corporations, but not secular trusts, from

disclosing evidence to a public agency vested with oversight authority. To the

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extent the AGO’s subpoena seeks evidence relevant to the existence of conduct

that was criminal, tortious, or both, the exemption from disclosure burdens the

rights of the survivors of such conduct.

b

When Woods turned to the second step of article I, section 12 antifavoritism

analysis, it held that federal and state constitutional religious protections and their

requirement of avoidance of state interference with religion justified the legislature

in treating religious and secular nonprofits differently. 197 Wn.2d at 245-46.

“Among other things,” the religion clauses of the First Amendment “protect the right

of churches and other religious institutions to decide matters ‘of faith and doctrine’

without government intrusion.” Our Lady of Guadalupe Sch. v. Morrissey-Berru,

591 U.S. 732, 746, 140 S. Ct. 2049, 207 L. Ed. 2d 870 (2020) (internal quotation

marks omitted) (quoting Hosanna-Tabor Evangelical Lutheran Church & Sch. v.

Equal Emp’t Opportunity Comm’n, 565 U.S. 171, 186, 132 S. Ct. 694, 181 L. Ed.

2d 650 (2012)). Closely linked, the First Amendment religion clauses guarantee

the independence of religious institutions in matters of church government. Id.

“This does not mean that religious institutions enjoy a general immunity from

secular laws, but it does protect their autonomy with respect to internal

management decisions that are essential to the institution’s central mission.” Id.

This autonomy includes, under the ministerial exception, “the selection of the

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individuals who play certain key roles.” Id. And article I, section 11 of the

Washington constitution states,

Absolute freedom of conscience in all matters of religious sentiment,

belief, and worship, shall be guaranteed to every individual, and no

one shall be molested or disturbed in person or property on account

of religion; but the liberty of conscience hereby secured shall not be

so construed as to excuse acts of licentiousness or justify practices

inconsistent with the peace and safety of the state.

The Washington Supreme Court has held that this language is “stronger” than that

of the First Amendment, and, compared to the federal constitution, has a broader

scope, protecting “both belief and conduct,” as evidenced in the terms “worship,”

“acts,” and “practices.” First Covenant Church of Seattle v. City of Seattle, 120

Wn.2d 203, 224, 840 P.2d 174 (1992). A civil court’s involvement in religious

matters can constitute excessive entanglement between church and state and

have the effect of inhibiting religion, in violation of the First Amendment. Erdman

v. Chapel Hill Presbyterian Church, 175 Wn.2d 659, 670, 286 P.3d 357 (2012).

The Archdiocese offers direct evidence that the religious corporations

exemption was included because its proponents had these concerns in mind. In

a February 3, 1966 memorandum, an AGO officer wrote in regard to then-

proposed charitable trust legislation that “[t]he exemption of bona fide religious

organizations was felt desirable because there are serious questions as to the

issues of separation of church and state which could be involved if it were handled

otherwise.” There is a difference between a nonreligious charitable trust and a

religious corporation having constitutionally guaranteed protections from

governmental interference with faith and doctrine, church government, selection of

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key personnel, and religious belief and conduct. Again, if the AGO were making a

facial challenge, we would probably conclude that reasonable grounds existed to

treat a religious corporation differently. But with the AGO making only an as

applied challenge, Woods teaches that the existence of reasonable grounds to

treat a religious corporation differently does not answer the question whether

reasonable grounds exist to support a “constitutional application” of the exemption

in this case.

We are satisfied that if the AGO, with the court’s authorization, achieved the

maximal exercise of its powers under the CTA as if there were not any exemption

for religious corporations, it would unconstitutionally encroach upon the

Archdiocese’s protected freedoms. The CTA authorizes the AGO to investigate

transactions and relationships of trustees and other persons, among other

purposes, “for the purpose of determining whether the trust . . . is administered

according to . . . the terms and purposes of the trust.” RCW 11.110.100. The

operative trust document in this case specifies those purposes as being “for the

use, purpose, benefit and behoof of the Roman Catholic Church of the

Archdiocese of Seattle . . . in the State of Washington.”

As the Archdiocese correctly observes, a civil authority in the United States

cannot sit in judgment of whether the Archdiocese has conformed to its faith and

doctrine. To the extent, by its subpoena or otherwise, the AGO were to purport to

second-guess whether a given action by the Archdiocese was truly “for the use,

purpose, benefit and behoof” of the church, the AGO and its use of the subpoena

would violate the federal and state constitutional religious protections. See

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Hosanna-Tabor, 565 U.S. at 187 (“[B]y inquiring into whether the Church had

followed its own procedures,” a court “had ‘unconstitutionally undertaken the

resolution of quintessentially religious controversies whose resolution the First

Amendment commits exclusively to the highest ecclesiastical tribunals’ of the

Church.”) (quoting Serbian E. Orthodox Diocese for U.S. of Am. and Canada v.

Milivojevich, 426 U.S. 696, 720, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976)). The

United States Supreme Court has acknowledged the possibility that when a

governmental inquiry “will necessarily involve inquiry into the good faith of the

position asserted by the clergy-administrators” and a religious organization’s

“relationship” to its “religious mission,” “the very process of inquiry” may “impinge

on rights guaranteed by the Religion Clauses.” Nat’l Lab. Rels. Bd. v. Catholic

Bishop of Chicago, 440 U.S. 490, 502, 99 S. Ct. 1313, 59 L. Ed. 2d 533 (1979).

At the same time, the subpoena to this point does not implicate a civil

authority second-guessing the Archdiocese’s decision-making or good faith, but

requires only the production of documents. Besides compliance with the terms of

a trust, the CTA also empowers the AGO to investigate transactions and

relationships of trustees and other persons “for the purpose of determining whether

the trust . . . is administered according to law.” RCW 11.110.100. The

Archdiocese has not pointed to any authority that constitutional religious

protections are offended by inquiry into whether criminal or tortious conduct has

occurred, including sexual abuse by clergy.

If “prohibiting the exercise of religion . . . is not the object of the [law] but

merely the incidental effect of a generally applicable and otherwise valid provision,

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No. 87005-0-I/22

the First Amendment has not been offended.” Emp’t Div., Dep’t of Hum. Res. v.

Smith, 494 U.S. 872, 877-78, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). Likewise,

constitutional religious protections do “not provide churches with absolute

immunity to engage in tortious conduct” “[s]o long as liability is predicated on

secular conduct and does not involve the interpretation of church doctrine or

religious beliefs.” C.J.C. v. Corp. of Catholic Bishop, 138 Wn.2d 699, 728, 985

P.2d 262 (1999) (“[T]he constitutional guarantee of religious freedom cannot be

construed to protect secular beliefs and behavior, even when they comprise part

of an otherwise religious relationship between a minister and a member of his or

her congregation.”) (citing Sanders v. Casa View Baptist Church, 134 F.3d 331,

336 (5th Cir. 1998)); see also N.K. v. Corp. of Presiding Bishop of Church of Jesus

Christ of Latter-Day Saints, 175 Wn. App. 517, 543-44, 307 P.3d 730 (2013) (“To

the extent the church may be arguing that nonprivileged information in the

disciplinary files is shielded by the First Amendment, we disagree.”).

Citing Surinach v. Pesquera De Busquets, 604 F.2d 73, 75-76 (1st Cir.

1979), the Archdiocese argues that “where document production is related to an

investigation pursuant to a statutory scheme that would infringe church autonomy,

the First Amendment is violated.” In Surinach, Puerto Rico law authorized its

Department of Consumer Affairs to restrain inflationary trends and establish price

controls. Id. at 73-74. Investigating the costs of private schools, including Roman

Catholic parochial schools, the Department ordered the parochial schools to

produce records detailing the schools’ budgets, revenues, and operating costs. Id.

at 74. Recognizing the schools’ Canon Law mandate to pursue academic

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excellence, the court concluded “the eventual use to which the school’s cost

information could be put could interfere seriously with these religious duties and

objectives.” Id. at 77. In the regulatory process, it was likely “some determination

of which costs are ‘necessary’ and ‘reasonable’ in the running of a private school

would have to be made.” Id. Thus, the court saw the likelihood of civil authorities

furthering a secular objective at the expense of a religious one, a chilling effect

resulting from public disclosure of the schools’ decision-making process and

donors, and entanglement in the schools’ fiscal management. Id. at 78. Thus, the

demands burdened the schools’ free exercise of religion and posed a threat of

entanglement between the affairs of church and state, placing the burden on the

government to show some compelling state interest justified that burden. Id. at 79.

The present case is distinguished, however, by a clear history, the existence

of which is not disputed even while its details may be, of acts by Archdiocese

personnel that were either criminal, tortious, or both. Although the AGO’s

investigatory power under RCW 11.110.100 may be a precursor to enforcement

action under RCW 11.110.120 or other statutory authority, under the CTA,

discovery of unlawful acts is an authorized end in and of itself. The authority to

take enforcement action where a charitable trust has engaged in an act violating

criminal or civil law logically includes the authority to discover that such an act has

occurred, regardless of whether enforcement is pursued. Unlike the Puerto Rico

law at issue in Surinach, the discovery of evidence of an act that was criminal,

tortious, or both, is “an end in itself” under the CTA. Id. at 75.

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A conclusion that a state may constitutionally investigate the existence and

scope of sexual abuse by clergy is reinforced by the parties’ acknowledgement

that a number of states have done so. The AGO points to civil investigations

completed by other states with a comprehensive scope, such as one by Maryland

and another by Illinois, with which the church cooperated, revealing “quadruple the

number of credibly accused abusers than the Church had voluntarily disclosed

prior to the investigation.” We recognize that the Archdiocese argues that the

investigation itself violates the First Amendment, but it cites no authority that other

states’ investigations into the existence and scope of sexual abuse by clergy

violated constitutional religious protections from governmental interference with

faith and doctrine, church government, selection of key personnel, or religious

belief and conduct. Rather, to distinguish those investigations, the Archdiocese

argues that Washington law imposes a more circumscribed role to our AGO. The

AGO’s state law authority is a question of state law, controlled by the CTA as it

must be construed under Article I, section 12. To the extent statutory authorization

supports the AGO’s subpoena, the Archdiocese has provided no authority why the

First Amendment would not permit Washington’s investigation to reach as far as

Maryland’s or Illinois’s.

We perceive in the AGO’s subpoena a scope that, if pursued, would clearly

unconstitutionally infringe the Archdiocese’s religious protections, to the extent the

AGO seeks to determine whether any given act or expenditure by the Archdiocese

was “for the use, purpose, benefit and behoof” of the church. But we also perceive

a scope that clearly does not infringe the Archdiocese’s religious protections, to

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No. 87005-0-I/25

the extent the AGO seeks evidence relevant to determining that an act occurred

that is criminal, tortious, or both, including sexual abuse by clergy. As in Woods,

the Archdiocese’s protections under the federal and state constitutional religion

clauses provide the appropriate approach for determining whether application of

the religious corporations exemption infringes on the fundamental rights of

survivors of criminal and tortious acts, including sexual abuse by clergy, and this

is the limit to which the CTA’s religious corporations exemption is supported by

reasonable grounds. We hold that RCW 11.110.020(2)(b)(ii) exempts religious

corporations from the AGO’s investigative authority under RCW 11.110.100 to the

extent the AGO’s exercise of that authority would intrude upon rights protected by

the federal and state constitutional religion clauses.10 However, to the extent the

AGO’s exercise of its authority would not intrude upon these protected rights, the

exemption cannot be applied and the AGO’s subpoena was authorized by RCW

11.110.100. As a result, we must reverse.

III

Because the superior court held that RCW 11.110.020(2)(b)(ii) categorically

exempted the Archdiocese from the AGO’s subpoena, it never reached the AGO’s

individual document requests. On remand, the superior court must address the

scope of the AGO’s subpoena that is allowable without infringing the Archdiocese’s

10 Neither party asserts that any other requirements under the CTA, such

as requiring trustees to register with the secretary of state under RCW 11.110.051,

implicate a fundamental right. Accordingly, in the absence of the necessary

analysis under article I, section 12, our opinion does not run to any provision of the

CTA other than RCW 11.110.020(2)(b)(ii) as applied in this case, and we do not

subject religious corporations to the requirements of the CTA generally.

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No. 87005-0-I/26

rights under the federal and state constitutional religion clauses. The subpoena

cannot be enforced to the extent the AGO purports to determine whether any given

act or expenditure by the Archdiocese was “for the use, purpose, benefit and

behoof” of the church. But the subpoena may and should be enforced to the extent

the AGO seeks evidence relevant to determining the existence of an act that was

criminal, tortious, or both, including sexual abuse by clergy. While we define these

two zones in which the subpoena is and is not enforceable, we do not determine

the precise boundaries to which the subpoena may extend in between them. On

remand, the superior court must determine the dividing line in the first instance,

with the aid of the parties’ briefing and argument.

We reverse and remand for proceedings consistent with this opinion.

WE CONCUR:

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